author: BENTON, J.

text:
    Nan H. MULLINS, D.M.D., Petitioner, v. Alice TOMPKINS, Respondent.
    No. 1D09-1148.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Rehearing Denied Aug. 25, 2009.

      Michael W. Kehoe of Fuller, Johnson, Kehoe, Horky & Rettig, LLC, Pensacola, for Petitioner.
    Brent F. Bradley of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Respondent.
   BENTON, J.

Nan H. Mullins, the defendant in a dental malpractice action filed by Alice Tompkins, petitions for a writ of certiorari. Dr. Mullins asks us to quash the trial court’s order which denied her motion for protective order, and required instead that the materials in controversy be unsealed and provided to Ms. Tompkins, a former patient: The trial court ruled that Dr. Mullins had waived any attorney-client privilege or work product protection merely by sending the documents to her own expert. Persuaded that the trial court’s ruling departs from the essential requirements of law and that its order would cause material harm that could not adequately be remedied on appeal, we grant the writ and quash the order.

In the normal course of discovery, Ms. Tompkins scheduled the deposition of C. Benson Clark, another dentist whom Dr. Mullins had listed as an expert witness. In preparation for the deposition, Ms. Tompkins caused a subpoena duces tecum to issue which directed Dr. Clark to produce for the deposition his complete file, including all documents furnished to him by anyone. At the deposition, Dr. Clark testified that, in forming his opinion, he reviewed x-rays, photographs, transcripts of other depositions, and a model. Conceding other documents were in his possession, including the materials in controversy here, Dr. Clark testified that he had never read them.

Dr. Mullins’ counsel described the materials in controversy as letters from counsel (to Dr. Mullins and her malpractice insurer, whom he also represented) which included counsel’s evaluations of claims and defenses; and as e-mails and other correspondence from Dr. Mullins to him in which she explained in detail and commented on Ms. Tompkins’ care and treatment.

The parties agreed to seal the materials in controversy pending a ruling by the trial court, and Dr. Mullins promptly moved for a protective order to prevent their disclosure to Ms. Tompkins. Attached to the motion was Dr. Mullins’ affidavit averring that she had never desired to waive any privileges applicable to the materials in controversy and that she had not even meant to send the materials to Dr. Clark, the expert. The trial court entered an order, however, ruling that, by negligently including the materials in controversy when she made the transmittal to her expert, Dr. Mullins had waived all applicable privileges, pursuant to section 90.507, Florida Statutes (2008). By petition for writ of certiorari, Dr. Mullins now asks this court to quash the order of the trial court.

To “obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). “A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law,” Metabolife Int’l, Inc. v. Holster, 888 So.2d 140, 141 (Fla. 1st DCA 2004) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)), and would require disclosure negating a petitioner’s legal privilege in “violation of a clearly established principle of law.” Combs v. State, 436 So.2d 93, 96 (Fla.1983).

The privileges at issue here are the attorney-client privilege and the work product privilege. In her response to the petition for writ of certiorari, Ms. Tompkins concedes that “it is clear that ... the documents ... were ordinarily privileged under the attorney-client and/or work product privileges.” The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert. See Fla. R. Civ. P. 1.280(b)(4)(B):

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence. See Smith v. State, 873 So.2d 585, 591 (Fla. 3d DCA 2004) (“We also hold that the act of disclosing it [privileged material] to an expert witness who would be testifying at trial does not alone waive the work product privilege.”). But see Charles W. Ehrhardt & Matthew D. Schultz, Pulling Skeletons From the Closet: A Look Into the Work-Product Doctrine as Applied to Expert Witnesses, 31 Fla. St. U.L.Rev. 67, 83-89 (Fall 2003).

The trial court gave no indication it did not believe Dr. Clark’s testimony that he had not even read the privileged documents, much less find that he had relied on them in any way. Even assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert’s opinion, see §§ 90.704-.705, Fla. Stat. (2008); Fla. R. Civ. P. 1.280(b); Northup v. Acken, 865 So.2d 1267, 1270 (Fla.2004) (“[T]he scope of the attorney work product privilege protection is specifically bounded and limited to materials which are not intended for use as evidence or as an exhibit at trial.... On the other hand, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court’s order and the discovery requests of the opposing party.”); but see Lovette v. State, 636 So.2d 1304, 1308 (Fla.1994) (“[T]he state cannot elicit specific facts about a crime learned by a confidential expert through an examination of a defendant unless that defendant waives the attorney/client privilege by calling the expert to testify and opens the inquiry .... ”), there has been no such showing here.

In the present case, the trial court did not address the question of whether Dr. Clark used the materials in controversy in reaching his opinion. The trial court therefore departed from the essential re-quii'ements of law when it ruled that Dr. Mullins waived her attorney-client privilege or work product protection solely by virtue of the fact that she turned over— inadvertently, as far as can be told from this record- — the materials in controversy to an expert witness.

The petition for writ of certiorari is granted, and the order under review is quashed.

WEBSTER and ROBERTS, JJ., concur.

      . The order under review does not reject this uncontroverted testimony.

      . The privilege is codified in section 90.502(2), Florida Statutes (2008): “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” Pursuant to section 90.502(1 )(c), Florida Statutes (2008), "[a] communication between lawyer and client is 'confidential' if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication.” Section 90.507, Florida Statutes (2008), provides: “A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person ... voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.” The parties do not dispute the applicability of the privilege, if it has not been waived.

      . The parties do not dispute the applicability of the work product privilege to much of the material in controversy, if it has not been waived. This privilege, which is not absolute, is described in Florida Rule of Civil Procedure 1.280(b)(3), which provides in part:
      Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative, including that party's attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
      Subdivision (b)(4), which deals specifically with discovery in relation to expert witnesses, provides that "[djiscovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule [i.e., relevant and not privileged] and acquired or developed in anticipation of litigation or for trial, may be obtained" by the procedure set forth in the subdivision.

      . See Smith v. State, 873 So.2d 585, 590 (Fla. 3d DCA 2004) ("[MJaterials lose their privileged status and are discoverable when they are intended to be used at trial. We have been given no indication, however, that the disputed materials here ... are reasonably expected or intended to be used at trial. If they are, we would of course agree that they are discoverable.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan M. STEWART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2423.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Rehearing Denied Aug. 26, 2009.
    Jonathan M. Stewart, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, WEBSTER, and CLARK, JJ, concur.


text:
    Ronnie TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0266.
    District Court of Appeal of Florida, First District.
    July 21, 2009.

      Nancy Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Griffis v. State, 759 So.2d 668 (Fla.2000).

BARFIELD, ALLEN, and DAVIS, JJ., concur.


text:
    Elizabeth E. PHILLIPS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and K Mart Corp., Appellees.
    No. 1D09-0671.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Rehearing Denied Sept. 1, 2009.
    Elizabeth E. Phillips, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 20, 2009, the Court has determined that the appellant failed to timely invoke the Court’s jurisdiction. See Fla. RApp. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely. The appellee’s Motion to Dismiss for Lack of Jurisdiction, filed on May 22, 2009, is denied.

PADOVANO, BROWNING and THOMAS, JJ., concur.


author: FULMER, Judge.

text:
    Beverly AGUILAR, Appellant, v. Debra AGUILAR, as Personal Representative of the Estate of Mike Aguilar, Jr., Deceased, Pamela Aguilar, and Sheila Smith, Appellees.
    No. 2D07-5968.
    District Court of Appeal of Florida, Second District.
    July 22, 2009.
    Rehearing Denied Aug. 25, 2009.

      Randall O. Reder of Randall O. Reder, P.A., Tampa, for Appellant.
    William R. Platt, Tampa, for Appellees.
   FULMER, Judge.

Beverly Aguilar, the wife of the decedent Mike Aguilar, Jr., (hereinafter “the Wife”) appeals from an order dismissing her motion to contest the decedent’s will and remove the personal representative. The Appellees are the daughters of the decedent (hereinafter “the Daughters”). The Wife’s motion raised the issue of undue influence in the procurement of the will by two of the daughters, Debra and Pamela Aguilar. The motion also sought the removal of Debra as personal representative. The trial court dismissed the Wife’s motion on the ground that it was not seiwed by formal notice within three months of service of the notice of administration. We reverse and remand for the trial court to reinstate the Wife’s motion.

Notice of administration of the estate was served on the Wife on September 27, 2006. On November 3, 2006, the Wife filed a motion to contest the will and remove the personal representative and served it by regular U.S. mail to counsel for the personal representative. In January 2007, the Wife filed a motion for summary judgment on the ground that the undisputed affidavits and depositions showed the will was procured by undue influence. At the hearing on the Wife’s motion for summary judgment held March 15, 2007, counsel for the personal representative opposed the motion by filing a motion to dismiss and arguing that the Wife’s motion to contest the will had not been served by formal notice within three months of the date of service of the notice of administration. The trial court denied the Wife’s motion for summary judgment and ordered the parties to mediate all other issues in dispute. The next day, counsel for the Wife served her motion to contest the will with formal notice and filed proof of service on March 22, 2007.

On October 23, 2007, the personal representative filed an amended motion to dismiss the Wife’s motion to contest the will. The trial court granted the personal representative’s motion and dismissed the Wife’s motion to contest the will with prejudice. The proceeding at which the trial court dismissed the Wife’s motion was not reported. Therefore, an agreed statement of evidence was filed in the appellate record pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). An addition to the statement of evidence was prepared by the trial court and also filed in the appellate record. It states:

1. Notice of Administration of the estate was served by formal notice on September 27, 2006.
2. The petitioner did not timely serve a petition to contest the will according to the Florida Probate Code 733.212(3). The petitioner merely filed a motion to contest the will without using formal notice.
3. Under the Florida Probate Code 733.212(3), any objection to the validity of the will must be served with formal notice within three (3) months or objections are forever barred.
4. Petitioner served the petition to contest the will by formal notice on March 16, 2007, almost six (6) months after the Notice of Administration.
5. Judge Sexton denied the petition to contest the will on the grounds that it did not comply with Florida Probate Code 733.212(3).

The Wife contends that the statute, section 733.212(3), Florida Statutes (2006), requires only the “filing” of objections within three months and that her failure to serve her motion by formal notice within the three-month deadline is not fatal to her claim. She further contends that even if service by formal notice were required within the three-month period, the Daughters waived the requirement by engaging in protracted litigation before raising their objection to the service. The Daughters respond that section 733.212 is implemented by Florida Probate Rules 5.025, 5.040, and 5.041(d), which require that an objection be served with formal notice by the three-month deadline.

Section 733.212(3) provides:

Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

(Emphasis added.)

The Wife’s motion was an adversary proceeding as defined in rule 5.025(a), and therefore she was required to serve formal notice pursuant to rule 5.025(d)(1). Rule 5.040 sets out the requirements for serving formal notice. It provides in subsection (a)(3)(A) that formal notice shall be served “by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt.” Rule 5.041(d) governs filing and provides that “[a]ll original papers shall be filed either before service or immediately thereafter.”

None of these rules contain a time requirement for serving formal notice. Further, the trial court’s conclusion that section 733.212(3) requires service of formal notice within three months is erroneous because the statute requires only the “filing” of objections within three months after the notice of administration is served. It does not require both filing and service of formal notice within the three-month period. It is undisputed that the Wife’s motion was timely filed. We therefore reverse the order dismissing the Wife’s motion and direct that it be reinstated.

Reversed and remanded for further proceedings.

KELLY and LaROSE, JJ., Concur.

      . The Wife styled her pleading as a "Motion to contest the will and to remove Debra Aguilar as Personal Representative.” The Wife's pleading might more properly have been styled as a two-count petition for "revocation of probate of a will” and "removal of personal representative.” Fla. Prob. R. 5.025(a), 5.270, 5.440(a).


text:
    Emilio BLAISDELL, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D08-3511.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Emilio Blaisdell, Boston, MA, Pro Se.
    John D. Maher, Tallahassee, for appel-lee.
   PER CURIAM.

The claimant, Emilio Blaisdell, appeals a final order of the Unemployment Appeals Commission, which upheld the appeals referee’s findings that the claimant was disqualified from receiving unemployment compensation benefits and obligated to repay benefits initially awarded by the claims adjudicator. Claimant contends that the employer’s appeal of the initial benefits determination was untimely. We agree. Because the appeals referee’s determination that the employer’s appeal was timely is not supported by competent substantial evidence, we reverse the order of the Unemployment Appeals Commission.

On January 3, 2007, the employer, PDQ Internet Auctions LLC, initially responded to claimant’s unemployment claim by stating on a form that the claimant, Emilio Blaisdell, had quit because of a “disagreement w/ manager’s policy.” The unemployment division’s original notice of determination stated that the claimant was discharged by the employer “for instigating conflict on the job” and that “[n]o information has been submitted which substantiates misconduct.” The notice of determination thus awarded the claimant unemployment benefits. The notice further advised that the employer had the right to appeal the decision within twenty days and indicated that the notice was mailed to the employer’s address at 2599 N. Federal Highway in Ft. Lauderdale on February 22, 2007.

On May 24, 2007, well after the appeal time had run, Scott Balsón, the CEO of the employer, wrote to “Unemployment Compensation” and indicated that the claim was fraudulent because claimant had quit his employment. As for his delay in responding, he indicated that, “[t]he timing is unfortunate; however the response to our protest just crossed my desk.” On June 25, 2007 and August 2, 2007, Balsón wrote additional letters to the “Unemployment Compensation Program” again claiming that the claimant had quit his job.

The appeals referee held a telephone hearing on the employer’s appeal on September 17, 2007. Balsón testified that he did not receive the February 22 decision awarding benefits. He said he first learned of the decision when he received an April 12 document, a “UCT1,” that showed the charges to his tax rate record. He immediately called and spoke to a Ms. McCloud. He was told to send a protest letter. He did that in a letter dated May 24. He testified:

I’ve got seven people in a start up business and we’re overwhelmed and I’m- — ■ I’m apologetic if something took three weeks from the time that it was received by us for it to reach my desk, but sometimes, you know, you even get a grace period of a month to pay a bill.

The appeals referee found:

The claimant (sic) did not receive the adverse determination of the claims adjudicator mailed to the employer at its address of record on February 22, 2007. The employer filed its appeal on May 24, 2007, within 20 days of learning of the determination.

Florida Statute section 443.151(4)(b)l provides:

The claimant or any other party entitled to notice of a determination may appeal an adverse determination to an appeals referee within 20 days after the date of mailing of the notice to her or his last known address or, if the notice is not mailed, within 20 days after the date of delivery of the notice.

The statute contains no “good cause” exception. Pelletier v. State, Unemployment Appeals Comma., 761 So.2d 413 (Fla. 2d DCA 2000).

The face of the notice of determination indicates that it was mailed to the employer on February 22, 2007. The employer has never disputed that it was mailed on that date, contending only that he never received it. In fact, the appeals referee affirmatively found that the notice was “mailed to the employer at its address of record on February 22, 2007.” Thus, under the express terms of the statute the employer had only until March 14, 2007 to file its appeal. It is undisputed that the appeal was not filed until May 24, 2007, more than two months late.

In defense of permitting the untimely appeal, the UAC argues that this court should apply the doctrine of equitable tolling, citing Machules v. Dept. of Admin., 523 So.2d 1132, 1133 (Fla.1988). However, in that case the court found the equitable tolling doctrine applicable for two reasons: 1) the late filer had been misled or lulled into inaction by the opponent; and 2) the late filer had timely raised the issue, only in the wrong forum. Id. at 1134. Neither condition applies in this case. The employer’s excuse, that it was a small company “overwhelmed” with work was insufficient to invoke equitable tolling or any general due process exceptions to the statutory time-frame. Cf. Holmes v. City of West Palm Beach, 627 So.2d 52 (Fla. 4th DCA 1993) (recognizing judicially created exceptions to the rule and statute in certain individual circumstances, such as when the claimant contends he never received the notice of hearing and notice of determination).

The appeals referee’s finding that “[t]he employer filed its appeal on May 24, 2007, within 20 days of learning of the determination” is not supported by the record. The employer’s CEO admitted that he learned of the determination when he received the April 12 document, a “UCTI,” which showed the charges to his tax rate record. He testified that he immediately contacted Ms. McCloud at the Division and was told to send a protest letter. He did so in a letter dated May 24.

We note that the record does not establish exactly when the employer’s CEO learned of the adverse determination, because it does not show when he received the April 12 UCTI form. However, Florida law’s five-day tolling provisions for service by mail recognize that documents should be received within five days of mailing. See e.g. Appel v. Florida Dept. of State, Div. of Licensing, 734 So.2d 1180, 1182 (Fla. 2d DCA 1999) (applying five day tolling provision in Florida Administrative Code Rule 28-5.103); Beacon v. Dept. of Ins., State of Florida, 656 So.2d 197, 198-99 (Fla. 1st DCA 1995) (same). Thus, the employer, who admits receipt of the April 12 UCTI, should have received it by April 17. He testified that he immediately called the division and was told to mail a protest letter. Yet, he waited until May 24 to write his protest letter, some 37 days later. The appeals referee’s finding that the employer filed its appeal “within 20 days of learning of the determination” is thus not supported by the record and his conclusion that the employer’s appeal was timely is erroneous.

Reversed and Remanded to reinstate claimant’s benefits.

WARNER, POLEN, and TAYLOR, JJ., concur.


author: MAY, J.

text:
    James DEPELISI, Appellant, v. Roger WISHNER and Sheila Alu, Appellees.
    No. 4D08-2581.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.

      Mark C. Perry, of Law Offices of Mark C. Perry, P.A., Fort Lauderdale, for appellant.
    Stuart R. Michelson and Kimberly A. Kisslan of Law Office of Stuart R. Michelson, Fort Lauderdale, for appellees.
   MAY, J.

The plaintiff appeals an order denying his motion to vacate the dismissal of his complaint for libel and slander, pursuant to Florida Rule of Civil Procedure 1.540, after he and his attorney failed to appear at hearings on two motions to dismiss. He argues that a successor judge failed to conduct an evidentiary hearing to determine if the plaintiff received notice. We agree and reverse.

The plaintiff, a candidate for city commissioner, filed a first amended complaint alleging two counts of defamation of character against two separate defendants. The allegations focused on the defendants’ interviews with media and other communications in which the defendants allegedly called the plaintiff anti-Semitic. From the record, it appears that there was some miscommunication regarding the setting of hearings between plaintiffs counsel and defense counsel prior to the hearings giving rise to this appeal because the trial court issued the following order.

Both attorneys of record must coordinate all court hearing dates and all deposition dates with the opposing counsel in the spirit of professional courtesy and order of this court. There shall be no unilateral setting of hearings or depositions.

The defendants filed motions to dismiss. Despite the order, one of the defendants filed a notice of hearing on the motion for May 7, 2008. The certificate of service indicated that the notice was sent by mail on April 29, 2008. Plaintiffs counsel failed to appear at the hearing. Defense counsel advised the court that he had faxed and mailed the notice to plaintiffs counsel, and had called and left messages on both the cell and office phones. The judge called plaintiffs counsel on his cell and office numbers, heard counsel’s voice mail, and left a message instructing the lawyer to return the call. The judge then heard a motion for protective order, but declined to hear the motion to dismiss.

The next day, the same defendant filed a re-notice of hearing for May 22, 2008, certifying that notice was sent by mail to the same address for plaintiffs counsel. Once again, neither the plaintiff nor his counsel appeared at the hearing. Defense counsel explained to the court the efforts taken to notice plaintiffs counsel, which included mail, fax, and phone notice. Defense counsel also advised the court that he had difficulty reaching plaintiffs counsel, but had received a message indicating that plaintiffs counsel had moved and no longer had a fax machine.

The trial court proceeded with the hearing. The court granted the motion to dismiss with prejudice, and added that the “[pjlaintiff was duly noticed and for the second time failed to appear.”

The next day, the second defendant filed a notice of hearing on his motion to dismiss for May 29, 2008 showing service at both the plaintiffs counsel’s old and new addresses. Yet, once again no one appeared for the plaintiff on the scheduled hearing date. Defense counsel explained his unsuccessful efforts to reach plaintiffs counsel by mail, fax, and phone. The judge once again attempted to call the attorney, but reached an assistant who advised the judge to leave a voice mail message for the attorney. The court granted the second defendant’s motion to dismiss with prejudice and made a finding that the plaintiff was duly noticed and failed to appear.

Through new counsel, the plaintiff filed a motion for rehearing and/or modification and/or to vacate the orders dismissing the first amended complaint. The motion alleged that plaintiffs former counsel was never notified of the hearings and did not receive copies of the dismissal orders. Former plaintiffs counsel provided a sworn affidavit that he had not received the notices of hearings on either motion to dismiss. The affidavit further explained that counsel had moved offices, and that defense counsel had continually set hearings without coordinating with his office as required by the pre-trial order.

A successor judge heard the motion. That judge indicated that he was bound by the prior trial judge’s findings that the plaintiffs counsel had been notified and could not rehear the issue. Plaintiffs counsel urged the court to consider the affidavit and the arguments set forth in the motion, but the successor judge declined to address whether the complaint had been properly dismissed with prejudice and whether plaintiffs counsel had been properly noticed of the hearings. The successor judge denied the motion.

On appeal, the plaintiff argues that the successor judge erred in failing to conduct an evidentiary hearing to determine whether plaintiff had received notice of the hearings on the motions to dismiss. Alternatively, the plaintiff argues the trial court erred in granting the motions to dismiss. We agree that the plaintiff was entitled to an evidentiary hearing on the motion to vacate. We do not reach the second issue.

“A trial court’s refusal to vacate a default judgment is reviewed for a gross abuse of discretion.” Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006).

A presumption of notice arises when a certificate of service indicates that pleadings and orders were mailed to counsel. Camerota v. Kaufman, 666 So.2d 1042, 1045 (Fla. 4th DCA 1996). That presumption is rebuttable. Id.; W.T. Holding v. State, Agency for Health Care Admin., 682 So.2d 1224, 1225-26 (Fla. 4th DCA 1996). “While a sworn affidavit stating that the filing was not received will not automatically overcome the presumption, such an affidavit will create an issue of fact which must be resolved by the trial court.” Camerota, 666 So.2d at 1045. That resolution requires an evidentiary hearing. Torrey v. Torrey, 815 So.2d 773, 775-76 (Fla. 4th DCA 2002).

The defendants suggest that the original trial judge made the requisite finding that the plaintiff received notice of the hearings. However, the original judge did not have the opportunity to consider the affidavit of plaintiffs counsel in rebuttal. That affidavit was not produced until the plaintiff filed his motion to rehear/modify/vacate the order of dismissal. It appears the trial court “mistakenly believed that the matter had been resolved adversely to plaintiff by a predecessor.” Scutieri v. Miller, 584 So.2d 15, 16 (Fla. 3d DCA 1991). For this reason, we reverse and remand the case to the trial court to resolve the factual dispute.

Reversed and Remanded.

STEVENSON and LEVINE, JJ., concur.


author: SUAREZ, J.

text:
    James C. MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-3204, 3D06-3205.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Roderick D. Vereen, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before.COPE, SHEPHERD, and SUAREZ, JJ.
   On Motion for Rehearing

SUAREZ, J.

We grant James C. Marshall’s motion for rehearing, withdraw our previously rendered per curiam opinion dated March 25, 2009, and substitute the following in its place:

James C. Marshall appeals from his conviction for one count of second degree murder. We affirm.

We address only the claim that the trial court committed reversible error by not conducting a proper Faretta hearing. Based upon our review of the record, Mar-shall’s alleged requests for self-representation were at best equivocal; he was not entitled to an inquiry on the subject of self-representation under Faretta. See Rios v. State, 696 So.2d 469 (Fla. 2d DCA 1997) (holding that if court-appointed counsel is found, after a proper Nelson inquiry, to be rendering effective assistance and the defendant insists that he still wants to discharge him or her, then a Faretta hearing is in order); accord Davi-la v. State, 829 So.2d 995 (Fla. 3d DCA 2002) (finding that because there was no unequivocal request for self-representation, the defendant was not entitled to an inquiry on the subject of self-representation under Faretta). Further, we cannot conclude from the record before us that the trial court abused its discretion in refusing to permit Marshall to discharge his counsel after holding a proper Nelson hearing. See Rios, 696 So.2d at 471.

We affirm all remaining issues on appeal.

Affirmed.

      . Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Alfredo ECHEVARRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1413.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Knight v. State, 919 So.2d 628, 632 (Fla. 3d DCA 2006) (“A trial court’s determination that a peremptory strike is genuine, rather than pretextual, ‘will be affirmed on appeal unless clearly erroneous.’ ” (quoting Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996))).


text:
    James Clifford JERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4147.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Rehearing Denied Sept. 3, 2009.
    James Clifford Jerry, Belle Glade, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before us on remand from the Supreme Court of Florida for reconsideration following its decision in Yisrael v. State, 993 So.2d 952 (Fla.2008). After reviewing the record and the State’s response to our order to show cause, we find that neither the record attachments to the defendant’s motion nor the record on appeal establish the required qualifications for the defendant’s designation as a prison releasee reoffender (PRR). The record fails to show that a Time and Crime Report was attached to a signed and sealed release date letter in this case.

Nonetheless, we affirm the trial court’s order summarily denying the motion to correct illegal sentence because the defendant failed to allege in his 3.800(a) motion that the release date letter misstated the date of his release and that his actual date of release made him ineligible for PRR sanctions. The defendant did not establish that his sentence was illegal under rule 3.800(a) for that reason. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008). See also Dover v. State, 797 So.2d 1246 (Fla.2001). Rule 3.800(a) is not intended for challenges made to the procedures used to impose the punishment. A similar challenge to the procedures used to qualify a defendant for PRR sentencing based on Yisrael was rejected as improper under rule 3.800(a) by this Court in Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008). See also Williams v. State, 982 So.2d 1234 (Fla. 4th DCA 2008).

Affirmed.

WARNER, MAY and LEVINE, JJ., concur.


author: FARMER, J.

text:
    William M. GUTTMAN and Susan G. Guttman, Appellants, v. William P. VANNECK; 210 West Indies Drive, LLC.; Christian R. Odasso; and Michael A. Vecellio, Appellees.
    No. 4D08-2489.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.

      Charles L. Siemon of Siemon & Larsen, P.A., Boca Raton, and Catherine E. Stetson and Jessica L. Ellsworth of Hogan & Hartson, LLP, Washington, D.C., for appellants.
    Margaret L. Cooper of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Jane Kreusler-Walsh, of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, for appellee William P. Vanneck.
    Lee Huszagh of Florida Land Title Association, Inc., Tallahassee, Amicus Curiae for The Florida Land Title Association, Inc.
   FARMER, J.

We affirm the final judgment to the extent that it holds that the set-back requirements (SBR) for appellants’ property — which we agree are properly deemed negative easements — have not been extinguished by the Marketable Record Title Act and are otherwise enforceable.

We treat as obiter dicta — and thus of no force or effect — any findings or conclusions in the final judgment to the effect that the 35-feet SBR has been extinguished or is unenforceable as to any other properties sharing a^ common root of title with appellants. See Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604 (Fla.2006) (final decree affecting interests of parties not joined in suit is wholly inconsistent with equity and good conscience); Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579 (Fla. 5th DCA 2003) (court lacks jurisdiction to issue decree interfering with rights of those not parties to action).

Affirmed as modified.

POLEN and GERBER, JJ., concur.

      . §§ 712.01-712.11, Fla. Stat. (2009).

      . The parties had agreed that for purposes of MRTA, the setback requirements (SBR) for 16 of the 20 lots covered by the root of title do not appear in any “Muniments of Title” recorded in or after the originating conveyance for Brams Addition to the Town of Palm Beach. But the SBR does appear in the 4 lots which include appellants' lot 2.


text:
    David MERCER, Appellant, v. Terry KANOWSKY and Wintter & Associates, Appellees.
    No. 4D07-3164.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.

      David Mercer, Coral Springs, pro se.
    No brief filed for appellees.
   PER CURIAM.

In this appeal, a trustee challenges an order requiring him to pay one half of the attorney’s fees the trust beneficiary incurred in challenging extraordinary attorney’s fees and costs the trustee had charged the estate. We reverse on the authority of our prior opinion, Wintter & Associates, P.A. v. Kanowsky, 992 So.2d 434 (Fla. 4th DCA 2008).

David Mercer was the trustee of a trust established by Blanche Heisch. The final accounting submitted by Mercer included extraordinary attorney’s fees and costs associated with clearing title to real property that Heisch’s will devised to Mercer personally. The trust beneficiary objected to the fees. At the close of the evidentiary hearing held to address the propriety of the fees and costs incurred by the trustee, the trust beneficiary sought, for the first time, to recover her own attorney’s fees. The trial court ordered Mercer and the law firm he had retained, Wintter & Associates, P.A., to reimburse the estate. The court further found that the trust beneficiary was entitled to recover her own attorney’s fees from the trustee and the law firm, but did not then address the amount of those fees. The trial court’s initial ruling, i.e., the propriety of the extraordinary fees incurred by the trustee, was appealed. Such ruling was affirmed, but the case was reversed and remanded on an unrelated issue. See Mercer v. Kanoiuslcy, 917 So.2d 222 (Fla. 4th DCA 2005).

On remand, the trust beneficiary continued to pursue her claim for attorney’s fees. The trial court awarded fees to the beneficiary, establishing the amount of attorney’s fees and ordering Mercer and the law firm to each bear half of the same. Both the law firm and Mercer appealed. See Wintter & Assocs., P.A., 992 So.2d at 434. The law firm argued, among other things, that the beneficiary was not entitled to fees as she had failed to plead them as required by Stockman v. Downs, 573 So.2d 835 (Fla.1991). This court found merit in the law firm’s argument and reversed the fee award. See 992 So.2d at 436. Mercer’s appeal of the fee award is now at issue, and he makes the same arguments that were advanced by the law firm. For the reasons expressed in our prior opinion, we reverse the fee award against Mercer and in favor of the trust beneficiary.

Reversed and Remanded.

STEVENSON, MAY and LEVINE, JJ., concur.

      . Since the lower court had not yet determined the amount of the fees the beneficiary could recover from the trustee and the law firm, the court's ruling regarding the beneficiary's right to fees was not yet appealable. See Wintter & Assocs., P.A., 992 So.2d at 435 n. 1.


author: STEVENSON, J.

text:
    Richard PARISI, Appellant, v. Michael MIRANDA, individually, and on behalf of Island Shore Homes, Inc., a Florida corporation, similarly situated, Kevin Kelly, and Island Shore Homes, Inc., a Florida corporation, Appellees.
    No. 4D08-2110.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Alan B. Rose and Stefanie R. Shelley of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellant.
    Steven M. Goldsmith and Sherry Whit-acre of Steven M. Goldsmith, P.A., Boca Raton, and Leif J. Grazi of the Law Offices of Grazi & Gianino, Stuart, for appellee Michael Miranda.
   STEVENSON, J.

Richard Parisi appeals a final judgment entered pursuant to a jury verdict awarding Michael Miranda, individually, $784,000 for the value of his shares of stock and awarding Island Shores Homes, Inc., derivatively, $950,000 for funds improperly removed from that corporation. We affirm the derivative award without discussion. However, we reverse the individual award as contrary to the manifest weight of the evidence and remand for a new trial as to individual damages.

In October 2003, Parisi and Kevin Kelly formed Island Shores Homes, Inc., in order to enter the residential real estate and home construction industry in Florida. In early 2004, they hired Miranda, a licensed contractor, to oversee the construction and development of homes. Parisi, Kelly and Miranda each owned 500 of the corporation’s 1500 outstanding shares. In 2006, Miranda discovered missing funds while investigating the corporation’s financial resources. On August 25, 2006, Miranda filed a four-count complaint against Parisi and Kelly demanding a court order for records inspection, injunctive relief on behalf of himself and the coiqooration, damages for breach of contract, and damages for breach of fiduciary duty on behalf of the corporation. Mmanda was terminated on August 31, 2006.

Kelly and Parisi counterclaimed raising counts for fraudulent inducement, breach of duty of good faith, conversion, tortious interference with business relationships, and tortious interference with contractual relationships. The case proceeded to a five-day trial in April of 2008, and the jury returned a verdict favorable to Miranda, specifically awarding him $784,000 as to count III, the individual claim for breach of contract, and $950,000 as to count IV, the derivative claim. The trial court entered judgment accordingly.

Post-trial, Parisi and Kelly filed a motion entitled “Motion for Rehearing and/or in the Alternative J.N.O.V.,” wherein they also requested a new trial. The trial court denied the motion for rehearing portion and noted that because Parisi had not moved for a directed verdict below, he could not now seek a JNOV. We find that the trial court correctly denied the motion for rehearing and JNOV, but erred in denying the motion for new trial as to the $784,000 individual award. This court reviews the trial court’s denial of a motion for new trial for an abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). “Despite this deferential standard, ‘an appellate court should reverse a jury verdict when there is no rational basis in the evidence to support the verdict of the jury.’ ” Izquierdo v. Gyroscope, Inc., 946 So.2d 115, 118 (Fla. 4th DCA 2007) (quoting Sifford v. Trans Air, Inc., 492 So.2d 407, 408 (Fla. 4th DCA 1986)).

In the instant case, the shareholders’ agreement provided that if a shareholder was terminated, the terminated shareholder was required to sell his shares to the corporation at a price determined by the market value of all of the corporation’s “tangible assets” plus “2 times net annual earnings” of the corporation. It was undisputed that Miranda was terminated on August 31, 2006. At trial, Miranda’s expert valued Miranda’s shares of stock as of December 31, 2006, because he used the 2006 tax return to plug numbers into the valuation formula. During deliberations, the jury asked what date it should'use to value Miranda’s shares. The trial court concluded that the shareholders’ agreement contemplated using the date of termination to value the shares and instructed the jury to use the August 31, 2006 termination date. See Barclays Am. Mortgage Corp. v. Bank of Cent. Fla., 629 So.2d 978, 979 (Fla. 5th DCA 1993) (noting the well-accepted principle that the trial court has the authority to interpret a contract that is not ambiguous.).

Although we agree with the trial court that the shareholders’ agreement unambiguously contemplates valuation at the time of termination, the jury received no evidence regarding the value of the shares on August 31, 2006. Therefore, the jury’s verdict was contrary to the manifest weight of the evidence since the jury assigned a value to the shares identical to the December 31, 2006 value proffered by Miranda’s expert. Because Parisi did not move for a directed verdict at the close of the evidence, the proper remedy is a new trial on that issue. Compare Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Anderson, 501 So.2d 635, 637 (Fla. 1st DCA 1986) (reversing and remanding for a new trial because trial court erred in entering a JNOV where defendant had at no point sought a directed verdict on any portion of the claim against him), with Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1131 (Fla. 4th DCA) (holding that the trial court should have granted defendant’s motion for directed verdict, entering a final judgment in its favor as opposed to granting a new trial because plaintiff is not entitled to a second “bite at the apple” where it presented no proof at trial on the correct measure of damages), review denied, 973 So.2d 1120 (Fla.2007), and Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (remanding for entry of judgment for the defendants because there was no proof at trial of the correct measure of damages and defendant had timely moved for involuntary dismissal).

Because we must remand for a new trial based on the jury’s employment of an incorrect valuation date, we take this opportunity to highlight other troublesome areas in the initial trial. For example, the corporation’s 2006 tax return reflects a negative profit, revealing that the corporation had no net annual earnings for 2006, the year of Miranda’s termination. Miranda’s expert explained that he used a 10.31 percent profit in his calculation of the value of Miranda’s shares because, if Parisi and Kelly had not removed money from the corporation in 2006, the corporation would have recognized a profit. Parisi contemporaneously objected and raised this issue in his motion for new trial. We conclude that, despite the expert testimony, the jury returned a verdict contrary to the manifest weight of the evidence because the tax return revealed no actual net annual earnings, which is the figure called for in the formula. For purposes of retrial, we also note that, because the shareholders’ agreement contemplates the date of termination as the date of valuation, the 2006 net annual earnings should be prorated to the date of termination as well.

Last, Miranda’s expert’s valuation necessarily included an analysis of the corporation’s tangible assets. The expert included cash, accounts receivable, an advance and an investment in his list of tangible assets. For purposes of retrial, this court finds no legal reason to preclude the expert’s inclusion of cash on hand and accounts receivable as “tangible assets.” See Carr v. Carr, 522 So.2d 880, 885 (Fla. 1st DCA 1988) (finding error in the trial court’s exclusion of the tangible assets of husband’s medical practice, such as cash on hand, furniture and fixtures, and accounts receivable, from marital assets). Accounts receivables, of course, should be properly adjusted and discounted for risk and bad debt. See Staman v. Staman, 622 So.2d 1147 (Fla. 1st DCA 1993); Spilled v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990). Miranda’s expert witness included in the accounts receivable category money owed to the corporation by Parisi and Kelly, as well as “Unreconciled Differences.” We find that “tangible assets” does not include money improperly removed from the corporation because Par-isi and Kelly never proffered a note evidencing a debt or indicating repayment. Thus, the jury’s verdict, which incorporated the erroneous tangible assets figure employed by Miranda’s expert, is contrary to the manifest weight of the evidence for this reason as well. Again, we note that the valuation formula contemplates tangible assets as of the date of termination.

Accordingly, we reverse and remand for retrial of the valuation of Miranda’s shares of stock in accordance with this opinion. As to the remaining arguments on appeal, we are unpersuaded and affirm.

Reversed and remanded.

MAY and DAMOORGIAN, JJ., concur.

      . In fact, Parisi never contested the date Miranda’s expert used for valuation during the evidentiary portion of the trial and, when the issue first came up during deliberations based on the jury’s inquiry, Parisi argued that the stock should be valued as of the date of trial.


author: SHEPHERD, J.

text:
    Edward Joe YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1455.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Rehearing Denied Aug. 28, 2009.

      Edward Joe Young, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Appellant, Edward Joe Young, appeals the denial of a Florida Rule of Criminal Procedure 3.800(a) motion, in which he seeks credit for time served.

On January 13, 2000, Young originally was sentenced on five counts to a prison term of three-and-one-half years, followed by one year of community control and fifteen years of probation, pursuant to a plea to reduced charges of three counts of attempted capital sexual battery, § 794.011(2), Fla. Stat. (2000), and two counts of incest, § 826.04, Fla. Stat. (2000). On July 28, 2006, upon revocation of probation, Young was resentenced to ten years in state prison on all five counts, to run concurrently, with credit for time served from November 16, 2005.

On May 24, 2007, Young filed a motion to correct illegal sentence, alleging he was not given credit for the three-and-one-half years previously served in the Department of Corrections. Two months later, he amended the motion to further allege entitlement to credit for time served on probation.

The State responded to the motion, asserting that pursuant to a negotiated plea, Young waived credit for time served for the three-and-one half years he served in state prison prior to November 16, 2005. On October 29, 2007, the trial court summarily denied the motion. Upon Young’s appeal of the summary denial, we reversed the trial court in an opinion utilizing our standard admonition, “If the trial court again enters an order summarily denying [Young’s] post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to relief.” Young v. State, 973 So.2d 624, 624 (Fla. 3d DCA 2008). Apparently misinterpreting our opinion to suggest that one of its options on remand was to conduct an evidentiary hearing on a Florida Rule of Criminal Procedure 3.800(a) motion, cf. Renaud v. State, 926 So.2d 1241, 1241 (Fla.2006) (“A requirement for relief under Florida Rule of Criminal Procedure 3.800(a) is ‘that the court records demonstrate on their face an entitlement to ... relief.’ Fla. R. Crim. P. 3.800(a). This rule does not contemplate the necessity of an evidentiary hearing.”), the trial court did so, and, on May 9, 2008, after hearing what it considered to be the more credible evidence from Young’s former counsel— that the agreed credit at the plea colloquy was from November 16, 2005, Young’s last booking date — the trial court again denied Young’s motion. Young now appeals this order.

During the pendency of this appeal, we ordered the transcripts from the plea colloquy and evidentiary hearing to be filed with this Court. The governing document, July 19, 2006 resentencing plea colloquy, conclusively refutes Young’s contention he would receive credit for time served for any period of incarceration pri- or to November 16, 2005. In fact, the pronouncement made in open court by the trial judge with both Young’s and his counsel’s consent was that Young “[would] receive credit time served since November 16th of 2005, the date he was taken into custody for this [violation of probation]”. It is apodictic that a defendant in a probation revocation hearing may waive credit for time served as part of a plea agreement. See Johnson v. State, 974 So.2d 1152, 1152 (Fla. 3d DCA 2008) (“A provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim to credit for time served before that date.”); Joyner v. State, 988 So.2d 670, 672 (Fla. 3d DCA 2008). Accordingly, we affirm the trial court order insofar as it denies the motion for credit for time served in prison. However, this does not end our labor in this case.

In its Answer Brief, the State commendably reminded us that the trial court did not rule upon Young’s amendment to his Rule 3.800(a) motion seeking credit for time previously served on community control and probation. On this point, we reverse and remand for further proceedings.

Under the statutory sentencing laws in effect at the time Young committed his crimes:

[T]he court may not impose a subsequent term of probation or community control, which, when combined with any amount of time served on preceding terms of probation or community control for offenses before the court for sentencing, would exceed the maximum penalty allowable as provided by s. 775.082. No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he or she shall be sentenced to serve.

948.06(3), Florida Statutes (1997); see also Chase v. State, 977 So.2d 708, 709-10 (Fla. 1st DCA 2008). In this case, Young was sentenced for three first-degree felonies— attempted capital sexual batteries, each of which carried a sentence of thirty years’ incarceration. The sentences Young received upon probation revocation were for ten years’ incarceration plus fifteen years’ probation, with credit for time served of approximately eight months. The combined, effective sentence was twenty-five years, with eight months’ credit. Young alleges he spent an additional four years and eleven months on probation or community control, and that he previously served approximately three-and-one-half years in prison. Under the Florida Supreme Court’s pronouncement in Waters v. State, 662 So.2d 332, 333 (Fla.1995), when a split sentence is imposed upon a revocation of probation, the total period of past and future incarceration, plus past and future probation or community control, cannot exceed the maximum sentence which could be imposed. We do not have the precise data concerning Young’s incarceration dates, community control, and probation before us. However, we know he served approximately three-and-one-half years in prison, one year on community control, and three-and-one-half years on probation, before he was arrested for violating his probation. We also know his resentence was ten years in prison plus fifteen years’ probation. Young alleges the total of his past, current, and future incarceration, plus probation and community control, would be approximately thirty-three years, in excess of the thirty-year maximum for a first-degree felony. The State further candidly and properly advises that the sentencing guidelines in effect in 1997, the year in which Young committed his crime, further provided that if a split resentence was imposed, it also was possible for the resentencing court to exceed the statutory maximum. See Fla. R. Crim. P. 3.703(d)(31) (providing that if a split sentence was imposed, “[t]he total sanction (incarceration and community control or probation) shall not exceed the term provided by general law or the guidelines recommended sentence where the provisions of subsection 921.001(5) apply”). Because the trial court did not consider the allegations of the amended motion and the law applicable thereto, we reverse and remand for determination whether the total terms of prison, community control, and probation exceeded the legal maximum sentence, and, if so, to provide the defendant partial credit for time previously served on community control or probation, or to reduce the future probationary term.

Affirmed in part, reversed in part, and remanded with directions.


text:
    OPEN PERMIT SERVICES OF FLORIDA, INC., Appellant, v. Thomas Scott CURTISS, Appellee.
    No. 3D07-3258.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Rehearing Denied Aug. 28, 2009.

      Gerson M. Joseph, Weston, for appellant.
    George M. Evans, Coral Gables; Dennis R. Haber, Palmetto Bay, for appellee.
    Goldman Felcoski & Stone and Robert W. Goldman, Naples; Brigham Moore and John W. Little, III, West Palm Beach, as amicus curiae.

    Before RAMIREZ, C.J., and SUAREZ, J., and SCHWARTZ, Senior Judge.

      . At this Court's request, the Real Property Section of the Florida Bar submitted an Ami-cus brief, and we appreciate their contribution in this matter.

   SUAREZ, J.

Open Permit Services of Florida, Inc. (“Open Permit”), appeals a final Order Compelling Compliance with Final Judgment which requires Open Permit, the buyer, and Thomas Scott Curtiss (“Cur-tiss”), the seller, to comply with the terms and conditions of a contract for the purchase and sale of real property. We affirm in part the trial court’s final order as there was substantial competent evidence to support the trial court’s findings and interpretation of the sales contract as to the repair costs of the property properly charged to the buyer. We reverse in part the costs charged to the buyer to satisfy the back taxes and liens.

On January 6, 2005, the parties entered into a Contract for the purchase and sale of real property. At issue in this appeal are three provisions of the Contract. The first issue concerns the risk of loss provision that states:

16. RISK OF LOSS: If the improvements are damaged by fire or other casualty, before delivery of the deed and can be restored to substantially the same condition as now existing within a period of 60 days thereafter, Seller may restore the improvements and the Closing shall be extended accordingly. If Seller fails to so restore the Property, Buyer shall have the option of (a) taking the Property in “as is” condition, together with the insurance proceeds, if any, or (b) cancelling this Contract and the Deposit shall forthwith be returned to Buyer, and Buyer and Seller shall be relieved, as to each other, of all obligations under this Contract.

The Contract provides in its maintenance provision that:

17. MAINTENANCE: Between the Effective Date and Closing, the Property, including lawn, shrubbery and pool, if any, shall be maintained by Seller in the condition as it exists as of the Effective Date, ordinary wear and tear excepted.

The second issue concerns the marketability of title provision that states:

8C. DELIVERY, EXAMINATION:
If any title defects render the title unmarketable, Seller shall use diligent effort to cure such defect.... If Seller shall fail to cure such defects within the 90 day period, Buyer shall have the option of (1) accepting title as it is; or (2) demanding a refund of the Deposit, in which case, the Deposit shall forthwith be returned to Buyer, and Buyer and Seller shall be relieved, as to each other, of all obligations under this Contract.

A Financing Rider was attached to the Contract which provided for a new purchase money mortgage in the amount of $130,000.00. The property was sold in an “as is” condition. The closing originally was scheduled for January 18, 2005.

On February 16, 2005, Open Permit initiated an action for specific performance to enforce the Contract for the purchase and sale of the house. On March 29, 2006, a final default judgment was entered in favor of Open Permit, and the trial court ordered Curtiss forthwith to convey the property to Open Permit under the terms set forth in the Contract. The Final Judgment was affirmed by this Court. See Curtiss v. Open Permit Servs., Inc., 955 So.2d 579 (Fla. 3d DCA 2007). The parties agreed on a new closing date. At the pre-closing walk-through, it was discovered that the contracted-for fixtures, cabinets, and appliances had been removed from the house. Prior to closing, Open Permit also discovered that property taxes remained unpaid and liens had been recorded against the property. Included in the HUD 1 closing Settlement Statement were line items deducting from the purchase price the cost of the missing fixtures and the costs to bring the taxes current and to satisfy liens. Curtiss objected on grounds that the terms of the Contract did not provide for deductions for these items from the purchase price and that the buyer, Open Permit, should bear the risk of the loss. Open Permit moved for an Order Compelling Compliance with the Final Judgment to require that Curtiss convey the property in the condition as it existed when the Contract was entered into, that the property be conveyed free of liens and that the seller provide financing, as agreed, in the amount of $130,000.00 under the terms of the Contract. Curtiss raised, as an affirmative defense, that the loss to the property was a casualty within the meaning of paragraph 16 of the sales contract, and therefore, Open Permit had only two options pursuant to that paragraph: to take the house in an “as is” condition or to take back the deposit and be relieved of all obligations under the Contract. Because Open Permit only could take title “as is” or cancel the Contract and demand return of the deposit, Curtiss argued against enforcement of the marketability of title clauses under paragraphs 8C and 9 the Contract, and against charging costs of bringing taxes current and satisfying liens to the seller.

The trial judge held evidentiary hearings on August 3, 2007, September 18, 2007, and October 24, 2007. The trial judge found no testimony or other evidence establishing that Curtiss was involved in the removal of the fixtures. Therefore, as he was not involved in the removal of the fixtures, the trial judge held that the loss was a casualty pursuant to paragraph 16. In the Order Compelling Compliance with Final Judgment, the trial judge determined, therefore, that the portion of the purchase price which had been escrowed on the HUD 1 closing statement for the repair of the premises was not provided for in the Contract. Pursuant to paragraph 16, Open Permit’s only options were to take the property in the “as is” condition or to take back the deposit and-be relieved of all obligations under the Contract. The trial court ordered that, under the terms of paragraph 8C of the Contract, Open Permit could not deduct from the purchase price at closing to pay the back taxes or liens. The trial court held that, pursuant to pax-agraph 16C, Open Permit could only take title to the property “as is” or could, once again, cancel the Contract and demand return of the deposit. Open Permit appeals the Order Compelling Compliance with Final Judgment, contending that the trial court erred in not ordering specific performance with the repair costs and the costs to satisfy the back taxes and liens charged to Curtiss.

Open Permit first argues on appeal that the trial judge improperly held that the escrow of the repair expenses and deductions from the purchase price were unauthorized. Open Permit contends that, because Curtiss had an affirmative duty to maintain the property under paragraph 17, and that because he failed to meet his burden of proving his asserted casualty-loss affirmative defense (Curtiss argued that he was not responsible for the loss of the fixtures), the repair expenses were properly escrowed and deducted from the purchase price.

We agree that, under paragraph 17, the maintenance provision of the Contract, Curtiss had a duty to maintain the property “in the condition as it existed as of the Effective Date of the Contract.” However, if a loss to the property occurs, and if the loss is determined to be a casualty pursuant to paragraph 16, then the remedies provided by that paragraph are the only remedies available to the buyer. Should it be determined that the seller were in some way responsible for the loss, then it would not be a casualty and the provisions of paragraph 17 would apply requiring the seller to maintain the property. The question presented, then, is whether Curtiss was responsible, in any way, for the disappearance of the fixtures. If he were responsible, then the provisions of paragraph 17 would apply. If he was not, then the provisions of paragraph 16 would apply. The trial court found, after an evidentiary hearing, that Curtiss had not participated in removal of the fixtures.

The grant or withhold of specific performance is within the sound discretion of the trial court and will not be disturbed on appeal unless clearly erroneous. Henderson Dev. Co. v. Gerrits, 340 So.2d 1205, 1206 (Fla. 3d DCA 1976). The trial court’s findings of fact are reviewed under the substantial competent evidence standard of review. See, e.g., Bellucci v. Moore, 585 So.2d 490 (Fla. 5th DCA 1991); Bloch Equip. Co. v. Nat’l Med. Indus., Inc., 539 So.2d 1140 (Fla. 3d DCA 1988). Curtiss had the burden of proving that he was not responsible for the loss of the fixtures. See Hough, v. Menses, 95 So.2d 410 (Fla.1957); Henderson, 340 So.2d at 1206 (holding that burden of proof is on the vendor where a party seeks to establish an affirmative defense to specific performance). The trial court heard testimony and determined that substantial competent evidence was presented to prove that Curtiss was not involved in the removal of the fixtures. Therefore, it correctly found that the loss was a casualty and, as such, the provisions of paragraph 16 apply. Paragraph 16 does not contain a duty for Curtiss to repair the house. The express terms of paragraph 16 give Curtiss the option of restoring the improvements to the property.' It provides that “the seller may restore” the property to its original state. See Leghorn v. Wieland, 289 So.2d 745, 747 (Fla. 2d DCA 1974) (stating that the word “may” in a contract denotes a permissive term and does not have the mandatory connotation of the word “shall”). If the seller fails to restore the property, the buyer then has the option of taking the property in an “as is” condition or cancel-ling the Contract with the return of the deposit. This is in accord with the principle announced in Johnson v. McKinnon, 45 Fla. 388, 34 So. 272, 276 (1903), which states: “If anything happens to the estate between the time of sale and the time .of completion of the purchase, it is at the risk of the purchaser ... If [the seller] willfully damages [the property], he is liable to the purchaser.” In this case, there was no showing of willful damage to the property by Curtiss, and, by the express terms of this Contract, Curtiss was not obligated to restore the property to its original condition on the day the Contract was entered into. The risk of loss was on the buyer, Open Permit, to accept the property in the damaged condition or to cancel the Contract and take back its deposit. See O’Neal v. Commercial Assurance Co., 263 So.2d 246 (Fla. 3d DCA 1972); cf. Munshower v. Martin, 641 So.2d 909 (Fla. 3d DCA 1994). As there was substantial competent evidence to support the trial court’s findings, the trial court did not abuse its discretion in denying specific performance and holding that the expenses for repairs were improperly charged to the seller, Curtiss, and that buyer Open Permit could take the property either “as is” or cancel the Contract and take back the deposit.

Open Permit next argues on appeal that the trial court erred in finding that the sums deducted from the seller at closing to satisfy back taxes and remove liens are not authorized by the Contract. We agree.

Section 8B of the Contract specifies that the title to the property show marketable title as follows:

B. CERTIFICATION, MARKETABILITY: Evidence of Title shall be certified or brought current through a date not more than 30 days prior to Closing. Evidence of Title shall show a marketable title of record in Seller, in accordance with current title standards adopted by the Florida Bar, subject only to those title exceptions permitted by this Contract or which shall be discharged by Seller at or before Closing. At Closing, Seller shall convey to Buyer a marketable title of record as described in this paragraph.

(emphasis added)

Section 8C establishes a duty on the part of the seller to take affirmative steps necessary to achieve and deliver a marketable title as follows:

C. DELIVERY, EXAMINATION: Seller, at Seller’s expense, shall deliver Evidence of Title to Buyer at least 15 days prior to Closing and if Evidence of Title is not received by Buyer as required, Buyer may delay the Closing so that Buyer shall have up to 15 days from date of receipt of Evidence of Title to examine same. Buyer shall examine Evidence of Title within 15 days after receipt thereof, and Buyer shall, within the same 15 day period, notify Seller in writing of any title defects. If any title defects render the title unmarketable, Seller shall use diligent effort to cure such defects (including the bringing of necessary lawsuits) within 90 days from receipt of such notice. If Seller shall fail to cure such defects within the 90 day period, Buyer shall have the option of: (1) accepting title as it is; or (2) demanding a refund of the Deposit, in which case, the Deposit shall forthwith be returned to Buyer, and Buyer and Seller shall be relieved, as to each other, of all obligations under this Contract. Upon Closing, the Evidence of Title shall become the property of Buyer.

(emphasis supplied)

It is the seller’s obligation to deliver a marketable title at closing. In order to do so, all liens must be released by the seller as a contractual precondition to the duty set forth in Section 8B, the duty of the seller to convey to the buyer a marketable title. See Henley v. MacDonald, 971 So.2d 998 (Fla. 4th DCA 2008) (holding that unpaid fines for code violations render property unmarketable); accord Chafetz v. Price, 385 So.2d 104 (Fla. 3d DCA 1980). As there was no evidence adduced below of any attempt, let alone a “diligent effort,” to render the title marketable by satisfying back taxes and liens on the property, the seller is not relieved of his obligation to the buyer to deliver marketable title. Thus, the trial court erred in relieving the seller of his obligation to cure all outstanding costs, taxes and liens on the property and thereby deliver marketable title to the buyer at or before closing. See Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931) (holding that an encumbrance which the buyer cannot satisfy and remove by applying part of a purchase money, will render the title unmarketable).

Affirmed in part; reversed in part.

      . Property is defined in the Contract to include not only real property but also fixtures such as the refrigerator, stove, sink and cabinets.

      . There was no showing below of an agreement to shift the risk of loss back to the seller. Absent such a contract provision, the purchaser bears the loss stemming from the damage to the property. Alvarez v. Garcia, 662 So.2d 1312 (Fla. 3d DCA 1995); O’Neal, 263 So.2d at 246.

      . We affirm the order below compelling compliance with the Final Judgment, which required the seller to abide by all the terms and conditions as set forth in the Contract for Sale and Purchase of Property including the Financing Rider attached to the Contract.


text:
    Donald Keith KOEHLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2567.
    District Court of Appeal of Florida, First District.
    July 23, 2009.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 5 So.3d 750 (Fla. 1st DCA 2009).

BARFIELD, PADOYANO and LEWIS, JJ., concur.


author: DAVIS, Judge.

text:
    Melinda RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5808.
    District Court of Appeal of Florida, Second District.
    July 24, 2009.

      Jackson S. Flyte, Regional Counsel, Second District, and Christine A. Trakas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Melinda Ramirez appeals the denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which she alleged eight claims of ineffective assistance of counsel. The postconviction court summarily denied six of Ramirez’s claims and denied the remaining two after an evidentiary hearing. While we reverse the summary denial of claim one, we affirm the denial of the remaining seven claims without comment.

Ramirez was convicted of trafficking in methamphetamine and sentenced to twenty years’ prison with a fifteen-year minimum mandatory. Her charges stemmed from a traffic stop that occurred while she was driving away from Lakeland Square Mall. The investigating officer who testified at trial indicated that he had received a tip from a confidential informant (Cl) that Ramirez would be at the mall in a white car and would be in possession of a one-half-pound bag of methamphetamine. The officer proceeded to the mall and lo-catecl a white car in the parking lot. He waited in the mall parking lot until he observed a Hispanic female exit the mall and enter the white car. The officer radioed additional officers, who stopped Ramirez on a side street after she had left the mall parking lot. The officers searched the car, and a one-half-pound bag of methamphetamine was found under the driver’s seat.

In her rule 3.850 motion, Ramirez alleged that her trial counsel was ineffective for failing to seek to suppress the drugs and contraband seized, as well as her resulting confession, because the evidence was the result of an illegal stop and a warrantless search. She further claimed that had her counsel sought the suppression, the evidence would have been excluded and she would not have been convicted.

In summarily denying this claim, the postconviction court concluded that Ramirez’s trial counsel was not ineffective, reasoning that even if counsel had filed the motion to suppress, the trial court would have denied it because the officers had probable cause to stop Ramirez and perform the search of the car. The postcon-viction court based this conclusion on its finding that the stop was made in reliance on an anonymous tip that was corroborated by independent police observation. The postconviction court attached portions of the transcripts of the investigating officer’s deposition and trial testimony to demonstrate that the record conclusively refuted Ramirez’s claim. The court also noted that an independent basis for the stop existed because the officers performed a “traffic stop” on Ramirez.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to establish ineffectiveness of counsel, a defendant must establish (1) that his or her attorney acted unreasonably according to prevailing professional norms and (2) that the defendant was prejudiced by his or her attorney’s deficient performance. “[0]n an ineffectiveness claim ... [t]he appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo.” Bruno v. State, 807 So.2d 55, 61-62 (Fla.2001). Furthermore, if the postconviction court denies a claim without an evidentiary hearing, it must attach to its order portions of the record that conclusively refute the claim. Fla. R.Crim. P. 3.850(d).

Here, the postconviction court’s attachments do not conclusively refute Ramirez’s claim that counsel was ineffective for failing to file a motion to suppress. As such, the postconviction court erred in summarily denying this claim. See id.

The investigating officer’s testimony was that the Cl had provided information to the police on two prior occasions but that no arrests had been made based on the information provided. In the instant case, the Cl had advised that he had previously purchased trafficking amounts of methamphetamine from Ramirez. Although the Cl had previously attempted to set up a controlled buy with Ramirez, he had been unsuccessful. The officer testified that on the day of the arrest, the Cl called and advised that Ramirez had possession of a quantity of methamphetamine that she was going to sell and that she was at Lakeland Square Mall driving a white car. The officer testified that he went to the mall parking lot and located a white car. He further testified: “A short time later I observed a Hispanic female approaching the vehicle. The Hispanic female matched the description of Melinda Ramirez.” He then called on other officers to initiate a “traffic stop.” Soon after the other officers stopped Ramirez, the investigating officer arrived and immediately searched the vehicle, finding the drugs. The officer testified that the vehicle was a rental car and that he did not know in whose name the car had been rented.

The record before us indicates that the police may have had probable cause to stop the vehicle either based on a traffic stop or the Cl’s tip. However, the record does not conclusively show that the stop was a legal traffic stop. Although the attached transcripts do indicate that the officers performed a traffic stop, the record does not identify the basis for the stop. This might suggest that Ramirez committed a traffic violation, but that is not clearly stated. The portion of the record regarding the traffic stop that the postconviction court attached to its order does not conclusively rebut Ramirez’s claim that the stop was illegal. Further, even if a traffic stop was properly executed, there is no indication that the stop gave the officers a basis to conduct a search. See generally Tinson v. State, 650 So.2d 189, 190 (Fla. 2d DCA 1995) (“[F]ounded suspicion to stop a vehicle does not carry with it authority to search the vehicle or its occupants.”).

Because the record does not conclusively establish that the stop was proper for a traffic violation, if the postconviction court’s summary denial of the claim is to be affirmed, the record must demonstrate that the Cl’s tip, in and of itself, was sufficient to justify the stop and search. A Cl’s tip, along with the corroborating circumstances surrounding it, can provide sufficient probable cause for the police to effectuate a stop and search of a vehicle or person. See State v. Butler, 655 So.2d 1123, 1131 (Fla.1995); State v. Walker, 898 So.2d 198, 200 (Fla. 2d DCA 2005). Had Ramirez’s trial counsel challenged the probable cause of the officers to initiate the stop or to conduct the warrantless search, the trial court would have reviewed the motion to suppress to determine whether under “the totality of the circumstances,” which includes the basis of the Cl’s veracity and knowledge, the information provided by the Cl gave rise to the necessary probable cause. See Walker, 898 So.2d at 200; Mitchell v. State, 787 So.2d 224, 226 (Fla. 2d DCA 2001).

Accordingly, to summarily deny this claim, the postconvietion court would have been required to find that specific facts in the record establish that the Cl’s tip provided a sufficient basis for the stop and subsequent search. See Perez v. State, 851 So.2d 849, 850-51 (Fla. 2d DCA 2003) (noting that while officers may have probable cause to stop and search a vehicle based on information provided by a Cl, the postcon-viction court would be required to substantiate the summary denial with specific facts about the Cl and record attachments supporting the determination). Therefore, the record must contain sufficient details to provide a basis for the postconviction court to determine that the trial court would necessarily have denied the motion to suppress.

There is nothing in the instant record to suggest that the trial court would have denied the motion to suppress based on the reliability of this Cl’s past information. See Mitchell, 787 So.2d at 227. In fact, the only information provided by the record would tend to show that although the Cl had attempted to set up a buy the previous week, he had been unsuccessful and that information supplied by this Cl in other cases had not led to any arrests. Similarly, the record fails to show anything more than general information that could be used to establish “veracity by showing that the information leading to the arrest in the current case was both sufficiently detailed and verifiable.” Id. at 227-28 (“[T]he C.I.’s information lacked sufficient detail .... [where] [t]he only verifiable information was ... readily available because the [defendant was] in an open public place.... Without more evidence suggestive of criminal activity, the very generalized description in this case could apply to many innocent persons.”). Based on the record before us, the only facts that the officer could have relied on to verify the Cl’s tip prior to the stop of Ramirez were that a Hispanic woman would exit the mall and that she would then get into a white car.

Although the officer testified during deposition that Ramirez fit the description of the person referred to by the Cl, the record does not provide any details as to what distinguished Ramirez from any other Hispanic female. The fact that the Cl said that the person would be driving a white car at Lakeland Square Mall is similarly vague considering the size of the mall parking lot and the number of white cars that might be present within the lot at any given time. Additionally, since the white ear was a rental, it does not appear that prior to the stop, the officer was able to verify through vehicle information that the woman was Ramirez.

In other words, the record does not include many of the details that would have to be considered by the postconviction court in order for it to determine whether the totality of the circumstances shows that the trial court would have denied a motion to suppress had counsel filed it. Based on the lack of details included in this record, the postconviction court erred in finding that the record conclusively refutes Ramirez’s claim. We recognize that such details might exist in portions of the record not provided to this court. Furthermore, testimony at an evidentiary hearing on the claim could provide sufficient details to show that, based on a totality of the circumstances, a motion to suppress would have been denied and show that Ramirez’s claim of ineffectiveness is thereby conclusively refuted.

Accordingly, we reverse the summary denial of claim one of Ramirez’s rule 3.850 motion and remand for the postconviction court to either provide additional record support for the summary conclusion that counsel was not ineffective for failing to file a motion to suppress or hold an eviden-tiary hearing on this claim. See Perez, 851 So.2d at 851.

Affirmed in part, reversed in part, and remanded.

WALLACE and CRENSHAW, JJ., Concur.


author: CASANUEVA, Chief Judge.

text:
    A.D., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1930.
    District Court of Appeal of Florida, Second District.
    July 24, 2009.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

A.D. appeals the trial court’s order finding her guilty of contributing to the delinquency or dependency of a child, withholding adjudication, and placing her on a term of probation. Because the finding of guilt is for an offense that was not charged in the delinquency petition and is not a lesser-included of the charged offense, we reverse.

Facts

By juvenile petition, the State charged A.D. with one count of felony child abuse. The petition alleged that A.D. “did intentionally inflict physical or mental injury upon [C.F.], a child, or did an intentional act or actively encouraged another to commit an act that results or could reasonably be expected to result in physical or mental injury to [C.F.], a child.”

Following the close of evidence, A.D. moved for a judgment of acquittal. The trial court granted the motion but, over A.D.’s objection, found her guilty of what it ruled was the lesser-included offense of contributing to the dependency of a minor.

Analysis

A.D. contends that the trial court’s finding of guilt under the circumstances presented constitutes a denial of due process. “A conviction on a charge not contained in the charging document is considered a denial of due process. This principle applies in juvenile delinquency proceedings.” N.H.M. v. State, 974 So.2d 484, 485-86 (Fla. 2d DCA 2008) (internal citations omitted).

The issue before this court is whether contributing to the delinquency or dependency of a child is a lesser-included offense of child abuse. For one offense to be a necessarily lesser-included offense of another, its statutory elements must be subsumed by the charged offense. See Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008). Consequently, we must look to the statutory elements of both offenses.

To commit the offense of contributing to the delinquency or dependency of a child, one must commit an act “which causes, tends to cause, encourages, or contributes to a child becoming a delinquent or dependent child or a child in need of services.” § 827.04, Fla. Stat. (2006). However, the statute for felony child abuse does not require one to contribute to a child becoming delinquent, dependent, or in need of services. See § 827.03(1). Therefore, the former is not a necessarily lesser-included offense of the latter. See also Fla. Std. Jury Instr. (Crim.) 16.3 (giving the standard jury instruction for child abuse, but not listing contributing to the delinquency or dependency of a child as a lesser-included offense).

We must also determine whether contributing to the delinquency or dependency of a child might possibly be a permissive lesser-included offense. “[WJhen an offense is not a necessarily lesser-included offense of the charged offense— that is, the offense is a ‘category 2’ or permissive lesser-included offense — the trial court cannot convict the defendant of the lesser crime unless the allegations of the charging document include the elements of that crime.” 974 So.2d at 486. The charging petition in this case makes no mention of the major element of contributing to the delinquency of a minor to support a finding of guilt for that offense.

Conclusion

Because contributing to the delinquency or dependency of a minor is not a category one or category two lesser-included offense of felony child abuse, as charged, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      . See § 827.03, Fla. Stat. (2006).

      . See § 827.04, Fla. Stat. (2006).


author: WALLACE, Judge.

text:
    Kevin Daniel WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4237.
    District Court of Appeal of Florida, Second District.
    July 24, 2009.

      John H. Trevena and Lauren N. Dabule, Largo, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Kevin Daniel White appeals the circuit court’s denial of his pro se motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170(1). The circuit court denied the motion without conducting an evidentiary hearing. Because the allegations of the motion were legally sufficient and were not conclusively refuted by the record, we reverse the order denying the motion and remand for an evidentiary hearing.

The State charged Mr. White with murder in the first degree. On May 28, 2008, Mr. White filed a letter asking the circuit court to dismiss defense counsel based on seven complaints. Mr. White subsequently filed a written motion to dismiss counsel and filed two bar grievances against defense counsel. The circuit court never ruled on Mr. White’s motions to dismiss. Mr. White entered a negotiated guilty plea on June 16, 2008, in exchange for the State’s agreement to waive the death penalty.

At the beginning of the plea hearing, the State requested that Mr. White acknowledge that he was waiving his motions to dismiss defense counsel and state that he was “fine with his counsel.” The following discussion ensued:

THE COURT: All right. I read — I read the letter into the record. Certainly, I — I gave copies to counsel, and I just want to make sure, Mr. White, that this is a decision that you want to — you know, you want to enter into.
The suggestion is right now that you are entering a plea of guilty to the charge contained in the indictment, murder in the first degree, in exchange for a life sentence.
[MR. WHITE]: At this time, it’s about the only option, sir.

At that point, the circuit court began the plea colloquy. As part of the colloquy, the court asked Mr. White whether anyone was threatening or forcing him to enter the plea. He responded, “No, sir. I just feel that if I go to trial, I’m gonna lose with the defense I have.” When asked whether he was satisfied with counsel’s advice and representation, Mr. White stated, “Satisfied with counsel? I do believe there is a lack of medical experts and people who could have helped my case, consulted and ... a lack of investigation.” After further inquiry by the court, Mr. White acknowledged that defense counsel had deposed two experts but that their opinions would not be favorable. The circuit court found that Mr. White’s plea was freely and voluntarily made and that he was satisfied with counsel. The court then adjudicated him guilty and sentenced him to life imprisonment. Afterward, in response to a question from the circuit court about whether he had any questions, Mr. White asked: “I’d just like to know how much time I’m gonna have when I get up there to put in the proper motion to possibly fight this from up there?”

On July 3, 2008, Mr. White filed a pro se rule 3.170(0 motion to withdraw plea. Mr. White’s motion incorporated by reference his previous requests to dismiss counsel. Mr. White alleged that counsel had misled him into entering the plea. In particular, Mr. White stated that defense counsel had told him that his motions to dismiss counsel had been denied. The circuit court denied Mr. White’s rule 3.170(Z) motion without a hearing on the ground that the transcript of the plea hearing conclusively refuted his claim.

We review the denial of a motion to withdraw plea for abuse of discretion. Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004). If the motion to withdraw plea is facially sufficient, the circuit court must either grant “ ‘an evidentiary hearing or accept the defendant’s allegations ... as true [unless] they are conclusively refuted by the record.’ ” Bayer v. State, 902 So.2d 353, 354 (Fla. 2d DCA 2005) (quoting Boule, 884 So.2d at 1024); see also Townsend v. State, 927 So.2d 1064, 1065 (Fla. 4th DCA 2006).

Mr. White’s motion was facially sufficient. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (holding that a rule 3.170(1) motion based on the allegation that counsel misled the defendant into entering the plea was facially sufficient because it challenged the voluntariness of the plea). A review of the plea colloquy reveals that Mr. White never responded to the State’s request that he waive his prior motions to dismiss counsel. Mr. White’s statements during the plea hearing do not reveal the nature of any communications between his defense counsel and him. In fact, nothing in the record refutes Mr. White’s allegation that counsel told him that his motions to dismiss counsel had been denied. Thus the circuit court had to accept Mr. White’s allegations as true. Indeed, Mr. White’s inquiry at the conclusion of sentencing about how he could continue to “possibly fight this” lends additional support to the motion instead of refuting it. Because Mr. White’s motion is facially sufficient and not conclusively refuted by the record, the circuit court erred when it denied the motion without an evidentiary hearing. See Bayer, 902 So.2d at 355; Townsend, 927 So.2d at 1065-66.

We note that “ ‘once a defendant indicates his desire to avail himself of the rule 3.170(0 procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.’ ” Smith v. State, 849 So.2d 485, 485-86 (Fla. 2d DCA 2003) (quoting Lester v. State, 820 So.2d 1078, 1078 (Fla. 1st DCA 2002)). Therefore, we reverse the order summarily denying Mr. White’s rule 3.170(0 motion and remand for an evidentiary hearing where Mr. White shall be represented by conflict-free counsel.

Reversed and remanded with directions.

FULMER and DAVIS, JJ., Concur.

      . Because Mr. White’s motion includes an unequivocal request to discharge counsel, the rule prohibiting hybrid representation for rule 3.170(/) motions does not apply. See Sheppard v. State, 988 So.2d 74, 78 (Fla. 2d DCA 2008) ("[T]his court has been willing to permit pro se representation by a defendant filing a rule 3.170(0 motion only where the defendant has made an unequivocal request to discharge counsel.”), review granted, 990 So.2d 1060 (Fla.2008).


text:
    DORSCH, INC. d/b/a Florida Fun Bike Super Center/Federated Mutual Insurance Company, Appellants, v. Norman HUNT, Appellee.
    No. 1D08-5873.
    District Court of Appeal of Florida, First District.
    July 24, 2009.
    Rehearing Denied Sept. 1, 2009.
    Robert M. Todd of Robert M. Todd, P.A., Clearwater, for Appellants.
    Carl A. Feddeler of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this appeal from an order of the Judge of Compensation Claims (JCC), the Employer/Carrier (E/C) raises four issues and the Claimant raises one issue on cross-appeal. We affirm, without comment, three of the issues raised by the E/C. We reverse and remand the fourth issue for further proceedings. Because of this disposition, we find it unnecessary to reach the issue on cross-appeal.

Following Claimant’s filing of a grievance and subsequent petition for benefits, the E/C offex-ed Claimant, on two occasions, different lists of thi-ee psychiatrists from which to make a selection. In the order on appeal, the JCC found the E/C failed to “timely schedule an appointment for a psychiatrist to examine and provide medical care and treatment to the Claimant as requested,” citing to Butler v. Bay Center, 947 So.2d 570 (Fla. 1st DCA 2006). The JCC interpreted Butler as providing that “once the employer/carrier ‘authorized an appointment’ with a physician within the requested specialty, the claimant had the obligation to accept care and treatment from the authorized physician.” The JCC then interpreted the phrase “authorized an appointment” to mean that an appointment with a specific physician was “actually scheduled.” The JCC erred in this interpretation. Butler does not stand for the proposition that an appointment must be scheduled within the specified time. It requires merely that the appointment be timely authorized.

At times, chapter 440 has required an E/C to offer a claimant a list of at least three physicians from which to select when a one-time change was requested. See, e.g., § 440.13(2)(f), Fla. Stat. (2002). Here, although the Claimant did not request a one-time change, the E/C’s willingness to offer Claimant a choice, as opposed to simply scheduling an appointment, did not represent a failure or a refusal on the E/C’s part to meet its statutory obligation to provide Claimant the requested medical treatment pursuant to section 440.13(2)(c), Florida Statutes (2002). See, e.g., City of Bartow v. Brewer, 896 So.2d 931, 933 (Fla. 1st DCA 2005) (“Section 440.13(2)(c), Florida Statutes, does not authorize the JCC to order treatment with a specific physician, where the E/C promptly offers qualified alternatives.”). Accordingly, the JCC erred in finding that Dr. Walker was authorized by operation of law because the E/C failed to timely schedule an appointment. On remand, the JCC shall revisit this issue applying the correct law, as set out in this opinion. We note, for purposes of the proceedings on remand, that the relevant evidence as to whether the E/C responded in a timely fashion to Claimant’s request for psychiatric treatment begins with the grievance filed in November 2003.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, DAVIS and LEWIS, JJ., concur.