author: RAY, J.

text:
    Michael Joseph NILIO, Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent.
    Nos. 1D13-5003, 1D14-0451.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied Aug. 11, 2014.

      Michael Joseph Nilio, pro se, Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appel-lee/Respondent.
   RAY, J.

On our own motion, we consolidate these cases for disposition. In case number 1D14-0451, Michael Joseph Nilio, a prison inmate, seeks prohibition relief in the form of an order directing the disqualification of the trial judge from hearing postconviction matters in his cases. In case number 1D13-5003, he appeals the trial court’s order summarily denying his motion for postconviction relief. Because the trial court’s jurisdiction had not been invoked at the time Mr. Nilio sought disqualification of the judge, his petition for writ of prohibition is denied. However, we reverse the trial court’s order denying Mr. Nilio’s subsequent motion for postconviction relief and remand for compliance with Florida Rule of Criminal Procedure 3.850.

Mr. Nilio entered negotiated pleas to property crimes in multiple cases and received concurrent sentences. After a round of postconviction challenges and an unsuccessful appeal, he filed a motion to disqualify the trial judge from presiding over further postconviction proceedings. At the time the motion was filed, Mr. Nilio had no pending cases before the trial court, although he later filed the “Motion to Correct, Modify, or Vacate Sentence,” discussed below. He argues in his petition before this Court that because the judge failed to rule on his motion for disqualification within 30 days of its service, disqualification is mandated by Florida Rule of Judicial Administration 2.330(j).

We find no authority dictating that a motion to disqualify filed when the trial court’s jurisdiction has not otherwise been invoked is held in abeyance until the court possesses jurisdiction over some other substantive matter. Nor would such a pronouncement be reasonable given the strict and unforgiving nature of the 30-day requirement set forth in rule 2.330(j), and the burden such a procedure would place on trial judges in that circumstance. We conclude that Mr. Nilio’s motion for disqualification, having been filed at a time when the trial court’s jurisdiction had not been invoked for any other purpose, was void ab initio and therefore did not implicate the provision of rule 2.330(j) upon which Mr. Nilio relies. The petition for writ of prohibition is denied.

Mr. Nilio’s subsequently filed “Motion to Correct, Modify, or Vacate Sentence” was properly before the trial court and compelled review and disposition in accordance with rule 3.850. See Williams v. State, 113 So.3d 974 (Fla. 2d DCA 2013). The motion stated under oath that Mr. Nilio had been sentenced to a term of incarceration, to be followed by a period of probation. It further averred that he had fully complied with a special condition of probation that he pay in full all court costs, fines, and restitution, yet the trial court failed to automatically terminate the probationary portion of the sentence, contrary to the terms of his negotiated plea agreement.

Since no evidentiary hearing was held below, “we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999). On the State’s proper concession of error, we' reverse the summary denial of the motion and remand for the trial court either to attach those portions of the file or record that conclusively refute the allegations or to hold an evidentiary hearing to resolve any factual disputes. See Ashley v. State, 59 So.3d 1172 (Fla. 1st DCA 2011).

Petition for writ of prohibition DENIED on the merits; order summarily denying motion to correct sentence REVERSED and REMANDED with instructions.

THOMAS and SWANSON, JJ., concur.

      . Florida Rule of Judicial Administration 2.330(j) provides:
      (j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after service of the motion as set forth in subdivision (c). If not ruled on within 30 days, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Yehowshua YISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4774.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.

      Yehowshua Yisrael, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orsoa, Assistant Attorney General, West Palm Beach, for appellee.
   On Order to Show Cause

PER CURIAM.

We previously affirmed the trial court’s November 8, 2013 order which denied appellant’s untimely, successive, and procedurally barred challenges to his convictions in the underlying cases which were entered in the year 2000.

The habeas corpus petitions which appellant filed in these cases raised a frivolous claim that he was convicted of an uncharged crime. The trial court agreed with the State’s response which correctly noted that these challenges were barred and which attached a copy of the information conclusively refuting appellant’s false and misleading allegations.

In this appeal, appellant filed a motion to supplement the record with another set of habeas corpus petitions that he allegedly filed in the trial court on August 13, 2012 and October 17, 2012. These petitions were not on appeal, but appellant provided us with a copy of his petitions, which raise frivolous claims that the prosecution violated his First Amendment rights because the prosecution was allegedly based on his religion. We granted the motion to supplement and affirmed the trial court’s order denying the filings on appeal. Because appellant has filed numerous abusive postconviction challenges and appeals, we issued an order to show cause why appellant should not be prohibited from further pro se filing in this court. State v. Spencer, 751 So.2d 47 (Fla.1999).

We have considered appellant’s April 28, 2014 response and find that it fails to show any cause why sanctions should not be imposed. The postconviction challenges presented in the underlying habeas corpus petitions were procedurally barred claims of trial court error as well as barred as untimely and successive. The trial court correctly determined that a writ of habeas corpus could not be used to circumvent these procedural bars. See Baker v. State, 878 So.2d 1236, 1241-2 (Fla.2004). The petitions raised frivolous claims.

While this appeal was pending, appellant filed a certiorari petition in case number 4D14-1066 which purported to seek review of the same underlying order but which raised a different, frivolous challenge to the convictions. His claim that the trial court lacked jurisdiction because the State had nolle prossed the charges is frivolous because the State refiled the charges. That petition was denied by unpublished order. Yisrael v. State, No. 4D14-1066 (Fla. 4th DCA Apr. 14, 2014).

Appellant has initiated numerous merit-less postconviction challenges, appeals, or other proceedings challenging his convictions in the underlying cases. See Yisrael v. State, 855 So.2d 73 (Fla. 4th DCA 2003) (table) (4D03-2297); Yisrael v. State, 907 So.2d 543 (Fla. 4th DCA 2005) (table) (4D04-4896); Yisrael v. State, 905 So.2d 145 (Fla. 4th DCA 2005) (table) (4D05-347); Yisrael v. State, No. 4D05-658 (Fla. 4th DCA Jan. 9, 2006) (habeas corpus petition dismissed by unpublished order); Yisrael v. State, 11 So.3d 370 (Fla. 4th DCA 2009) (table) (4D09-769); Yisrael v. State, 52 So.3d 673 (Fla. 4th DCA 2011) (table) (4D10-1027); Yisrael v. State, No. 4D12-3278 (Fla. 4th DCA Apr. 1, 2013) (voluntarily dismissed by unpublished order). Appellant’s continued filing of untimely, successive, and frivolous postconviction challenges and.appeals interferes with this Court’s ability to consider legitimate claims.

Accordingly, the Clerk of this Court is directed to no longer accept any paper filed by appellant unless the document has been reviewed and signed by a member in good standing of the Florida Bar. The Clerk is directed to forward a certified copy of this order to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2013).

WARNER, CONNER and FORST, JJ., concur.


text:
    Charles Litton MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0327.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied Aug. 5, 2014.
    Charles Litton Morris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Johnson v. State, 974 So.2d 363 (Fla.2008); Logan v. State, 846 So.2d 472 (Fla.2004); Young v. State, 12 So.3d 234 (Fla. 3d DCA 2009).

BENTON, CLARK, and OSTERHAUS, JJ., concur.


author: CIKLIN, J.

text:
    M.K., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4635.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.

      Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

M.K. appeals an order finding him guilty of first-degree petit theft and the subsequent disposition order withholding adjudication and imposing probation. M.K. argues the state failed to prove that the value of the stolen property amounted to at least $100, a requisite for a finding of first-degree petit theft pursuant to section 812.014(2)(e), Florida Statutes (2011), and therefore he could not be found guilty of anything more than second-degree petit theft. We agree.

After a classmate’s necklace was stolen, M.K. was charged with third-degree grand theft, which section 812.014(2)(c)l., Florida Statutes (2011), defines as the theft of property valued at $300 or more, but less than $5,000. The stolen necklace was not recovered.

At the adjudicatory hearing on the charge, the state’s sole evidence of the value of the necklace was the testimony of the twelve-year-old victim, who explained that the necklace was Gucci, “real” gold, and in “fine” condition. The -victim also gave a detailed description of the appearance of the charms on the necklace, explained that it was a gift, and, implying that the property must have been genuine gold, stated that her aunt, who purchased the necklace, is allergic to fake gold.

At the close of the state’s case, M.K. moved for a judgment of dismissal on the ground that the state failed to prove the value of the necklace. The state conceded “the valuation issue,” and the court granted the motion in part and proceeded on a charge of petit theft without specifying the degree.

After the defense rested, M.K. renewed his motion for judgment of dismissal, arguing as he does on appeal that he could only be convicted of second-degree petit theft because the state failed to prove the value of the necklace as $100 or more. The state contended that the property at issue was not just a simple gold necklace, but rather a Gucci necklace with multiple charms, and was therefore worth at least $100. Taking into consideration the victim’s personal knowledge of the necklace and her ability to describe it in detail, as well as her perceived intelligence being “far and way above” that of the average twelve-year-old, the trial court denied M.K’s motion and found him guilty of first-degree petit theft.

M.K. contends the state did not put forth sufficient evidence to establish that the necklace was worth at least $100 because the victim was not competent to testify to its value. The state suggests that the trial court properly found the value of the necklace to be not less than $100 pursuant to section 812.012(10)(b), Florida Statutes (2011):

(10) “Value” means value determined according to any of the following:
(a)l. Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certaip amount; if no such minimum value can be ascertained, the value is an amount less than $100.

To determine whether the evidence adduced at trial to prove the value of stolen property is sufficient to withstand a motion for judgment of dismissal, a two-pronged test is applied:

First, an owner, though presumed competent to testify to the value of stolen property, must demonstrate personal knowledge of the characteristics of the stolen property, such as the quality, cost, and condition of the property. The competence presumed of an owner is fragile, and where the owner shows a lack of familiarity with the stolen property, the opinion evidence will not support a determination of value.
Second, the trial court must ascertain whether the State presented sufficient evidence to prove the value of the stolen property beyond a reasonable doubt.

Sanchez v. State, 101 So.3d 1283, 1286 (Fla. 4th DCA 2012) (internal citations omitted). In the absence of direct testimony of market value, “ ‘proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.’ ” M.S.O. v. State, 73 So.3d 842, 843 (Fla. 4th DCA 2011) (quoting Lucky v. State, 25 So.3d 691, 692 (Fla. 4th.DCA 2010)).

As to the first prong, “[o]ne’s competency to testify as to the value of stolen property is not so much a question of whether he owns the stolen property as it is a question of his personal knowledge of the property.” Williams v. State, 59 So.3d 373, 375 (Fla. 4th DCA 2011) (citation omitted).

Simply stated, the victim’s lack of familiarity with the quality, length, weight and cost of the stolen necklace rendered her incompetent to testify to its value and purity. Although the victim was able to testify to the condition of the necklace and to the appearance of the charms in detail, her personal knowledge regarding the quality and value of the necklace was very limited, at best.

Additionally, because the necklace was a gift, the victim was unable to testify to its purchase price or replacement cost beyond repeating what she was told by her father or saw from her mother’s research on the internet. See S.M.M. v. State, 569 So.2d 1339, 1341 (Fla. 1st DCA 1990) (finding that victim who received stolen jewelry as gift had no personal knowledge of its value, therefore victim’s testimony was not competent to establish the value of the jewelry). Without personal knowledge of the value or cost of the necklace, the victim’s testimony was insufficient to establish the value of the necklace to be at least $100.

Moreover, the state’s argument that the trial court properly found that the necklace was not less than $100 pursuant to section 812.012(10)(b) must fail. Section 812.012(10)(b) provides, “[i]f the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount.” In interpreting this provision, the Florida Supreme Court has held that “[a] plain reading of this criminal theft provision reveals that a jury is only allowed to determine a minimum value instead of an actual value if the value of property cannot be ascertained,” which is “completely unrelated ... [to] the State’s failure to present evidence of value (although capable of valuation).” Marrero v. State, 71 So.3d 881, 888-89 (Fla.2011) (emphasis in original); see also Olivera v. State, 117 So.3d 433, 434 n. 1 (Fla. 4th DCA 2013) (noting that section 812.012(10)(b) is not a mere alternative to establishing market or replacement value, but rather may only be applied if “the value of the property cannot be ascertained”) (emphasis in original).

Inexplicably, the state offered no alternative evidence to establish the authenticity, market value, original purchase price, or replacement cost of the stolen item, such as evidence of the current price for a necklace of the same style or for similar Gucci necklaces, or testimony from the victim’s mother, father, or aunt. Nor did the state demonstrate that such evidence was unavailable or that the value of the necklace could not be ascertained.

Where the state fails to prove that the stolen property is worth at least $100, a conviction for first-degree petit theft must be reduced to second-degree petit theft. Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010). Consequently, we reverse the order finding M.K. guilty of first-degree petit theft and the disposition order, and we remand for the trial court to enter judgment for second-degree petit theft and hold a new disposition hearing.

Reversed and remanded with instructions.

MAY and LEVINE, JJ., concur.


author: ROWE, J. CLARK, J.,

text:
    Dennis MEHAFFIE, Petitioner, v. John RUTHERFORD as Sheriff of Duval County, Respondent.
    No. 1D14-2804.
    District Court of Appeal of Florida, First District.
    July 16, 2014.

      Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus and Bryan E. De-Maggio, of Sheppard, White Kachergus & DeMaggio, P.A., Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   ROWE, J.

Dennis Mehaffie petitions this court for a writ of habeas corpus asserting that his pretrial detention on a $750,009 bond is illegal. Because Mehaffie failed to demonstrate reversible error in the trial court’s determination of bond, we deny the petition on the merits.

Mehaffie, a 37-year-old man, was arrested in Jacksonville following an undercover operation by law enforcement. Me-haffie is charged with using a computer to seduce, solicit, lure, or entice a child, traveling to meet a child after using a computer to seduce, solicit, lure, or entice a child, and unlawful use of a two-way communication device. At first appearance, bail was set in the amount of $250,003 for each charge, for a total amount of $750,009. Mehaffie filed a motion to reduce his bond.

At the evidentiary hearing on the motion to reduce bond, Mehaffie’s father testified that Mehaffie lives in Valdosta, Georgia, where he is stationed in the military. Me-haffie does not have the funds to pay for the bond. His father is willing to pay, but the most he could pay would be $5,000. Mehaffie’s parents, who live in Augusta, Georgia, represented to the trial court that Mehaffie could live with them, that they would make sure that Mehaffie appeared at his court appearances, and that they could ensure Mehaffie complied with any non-monetary conditions the court may require with a reduction in bond. Other evidence introduced at the bond hearing included: a report from a psychologist who evaluated Mehaffie and concluded that he was not at risk of sexual perpetration or aberrant behavior; performance reports from the military demonstrating that Me-haffie had exceeded his goals for the past seven years and had been active in community service projects. Mehaffie also introduced into evidence an order finding that he was indigent and eligible for court-appointed counsel, although his parents have hired private counsel to represent him.

The state also presented evidence and testimony at the hearing. Detective Michelle Jones testified that she participated in the undercover operation that led to Mehaffie’s arrest. She testified that Me-haffie responded to a Craigslist ad and began conversing by text message with an undercover officer posing as a 13-year-old. Mehaffie asked where the undercover officer attended school. Mehaffie initiated the communications relating to sexual activities, and indicated specific sexual activities he would like to engage in. Mehaffie arrived at the home indicated by the undercover officer at 10:00 p.m., with condoms in his possession. Detective Jones interviewed him, and Mehaffie admitted that he believed the person he was talking to was 13 years old, and that he intended to have sexual intercourse with a 13-year-old. On cross-examination, Detective Jones testified that Mehaffie fully cooperated at the house and consented to her searching his phone.

After reviewing the evidence, the trial court denied Mehaffie’s motion to reduce the bond, finding it reasonable in light of Mehaffie’s risk of flight, the nature of the charges, and the danger to the community.

In his petition to this court, Mehaffie argues that his bond is excessive and tantamount to no bond at all because he does not have the resources to pay the bond, he has extensive ties to a nearby community, and poses no danger to the community. We disagree.

The determination of bail is generally left to the discretion of the trial court, and is reviewed under an abuse of discretion standard. Hernandez v. Roth, 890 So.2d 1173, 1174 (Fla. 3d DCA 2004). “The purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant.” § 903.046(1), Fla. Stat. (2013); Patterson v. Neuman, 707 So.2d 946, 947 (Fla. 4th DCA 1998). In seeking a reduction in bail, an accused must present “evidence sufficient to overcome the presumption of correctness of the trial court’s order.” Robinson v. State, 95 So.3d 437, 438 (Fla. 5th DCA 2012). Simply because a defendant testifies that he cannot meet a given bond amount does not mean the bond is per se excessive or unreasonable. See Dyson v. Campbell, 921 So.2d 692, 693 (Fla. 1st DCA 2006). Further, “[i]n addition to a defendant’s financial resources, a trial court must consider a host of other factors in determining whether to release the defendant on bail or other conditions, and if so, what bail or other conditions are appropriate.” Id.

Here, the trial court properly considered that Mehaffie is a flight risk given that Mehaffie has no ties to the Jacksonville community or even to the State of Florida. Second, the court took into consideration the serious nature of the charges against Mehaffie in finding that he posed a clear and imminent threat of danger to the community. Third, the court determined that requiring Mehaffie to live at his parents’ home would not be sufficient to reduce the risk to the community because at the age of 37, Mehaffie lives outside the control of his parents.

Mehaffie did not present evidence to overcome the trial court’s determinations. He presented no evidence of ties to the Jacksonville community or even to the State of Florida; rather, he introduced evidence only of his ties to his community in Valdosta, Georgia. Further, Mehaffie failed to present any evidence at the hearing regarding his financial circumstances. “In the absence of a record which demonstrated that the amount of bail was beyond the ability of this defendant to meet,” the petition for habeas corpus must be denied. Rogers v. State, 966 So.2d 490, 491 (Fla. 1st DCA 2007).

OSTERHAUS, J., concurs; CLARK, J., dissents with opinion.

CLARK, J.,

dissenting.

I respectfully dissent. I would grant the petition for writ of habeas corpus. On the record before us, I find the bond amount set by the trial court excessive, and thus tantamount to the denial of bond.

Arrested on charges of using a computer to seduce, solicit, lure, or entice a child, traveling to meet a child after using a computer to seduce, solicit, lure, or entice a child, and unlawful use of a two-way communication device, Petitioner’s bond was set at $250,003 per count for a total of $750,009. Petitioner later filed an application for modification of bail, arguing that the amount of bond set was unreasonable and that non-monetary conditions could ensure the safety of the community and his presence at all future proceedings.

The testimony at the hearing on Mehaf-fie’s motion established that he has been in the Air Force for over seventeen years, and is by all accounts a “good soldier.” He has received numerous service medals and commendations, including one for deployment overseas. For at least the past seven years, Mehaffie has received the highest ratings in the performance reports given by the Air Force. Mehaffie has never gone “AWOL” and he has no prior criminal history. A psychologist who examined Mehaffie determined that he was at a low risk of entering into a sexually-inappropriate activity, and was not at risk of sexual perpetration or aberrant behavior. The testimony also established that Mehaffie cannot afford to pay anything towards his bond, and in fact, the trial court has found him indigent.

Though stationed in Valdosta, Georgia, some two hours from Jacksonville, Mehaf-fie’s father testified at the hearing that he and his wife, Mehaffie’s mother, would be willing to have Mehaffie live with them in Augusta, Georgia, should the court require. If bond were reduced, Mehaffie’s parents would assure that Mehaffie attended all court appearances, and they could make sure he did not use the internet, view pornography, access Craigslist, or have any unsupervised contact with minor children, if the court imposed such conditions.

The Florida Constitution entitles every person charged with a crime, except the most serious of crimes, to pretrial release on reasonable conditions. See Art. I, § 14, Fla. Const. When determining bail or other conditions, a trial court is to consider the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant’s family ties, length of residence in the community, employment history, financial resources, past and present conduct, the nature and probability of danger which the defendant’s release poses to the community, and other factors, including any the court considers relevant. See § 903.046(2), Fla. Stat. (2013); see also Fla. R. Crim. P. 3.131(b)(3).

“The purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant.” § 903.046(1), Fla. Stat. (2013). “[B]ail may not be used to punish ah accused.” Rodriguez v. McRay, 871 So.2d 1001,1003 (Fla. 3d DCA 2004). Therefore, an “excessive bond, depending on the financial resources of the defendant, is tantamount to no bond at all.” Camara v. State, 916 So.2d 946, 947 (Fla. 3d DCA 2005) (citing Winer v. Spears, 771 So.2d 621, 622 (Fla. 3d DCA 2000); Mesidor v. Neumann, 721 So.2d 810 (Fla. 4th DCA 1998)).

Here, the bond of $750,009 is excessive in light of the undisputed evidence of Me-haffie’s exemplary employment and armed service history and involvement in his community, along with his financial status. On the record presented here, I would find the bond amount excessive. Accordingly, I dissent.


text:
    Leon SMITH, Appellant, v. CITY OF DAYTONA BEACH POLICE DEPT./City of Daytona Beach Risk Management, Appellees.
    No. 1D13-4409.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Kelli Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Orlando, and James Spears of the Law Office of James R. Spears, PLLC, Orlando, for Appellant.
    Gregory J. McDole, Daytona Beach, for Appellees.
   RAY, J.

In this workers’ compensation matter, Claimant, a law enforcement officer, argues that the Judge of Compensation Claims (JCC) erred by applying the doctrines of res judicata and collateral estop-pel to bar his claim for benefits based on a new period of disability arising out of treatment of a non-compensable cardiac condition. We find no error in the JCC’s application of either, or both, of these preclusion doctrines. We write, however, to explain why we reject Claimant’s primary legal argument, which posits that he was not required to show a new injury, or a worsening of a compensable injury, in order to establish a new date of accident separate and apart from the injury previously denied with finality.

I.

Claimant began working as a police officer for the City of Daytona Beach (Employer) in 2001. During the summer of 2007, he was diagnosed with dilated car-diomyopathy (a disease of the heart muscle affecting its main pumping chamber), and received a heart transplant. Before Claimant could return to work following this surgery, during a period of no exposure to law enforcement activity, he developed bradycardia (a low heart rate), and had a cardiac pacemaker surgically implanted to control this condition. After a recuperation period, Claimant went back to work for the Employer.

Claimant did not file a petition for benefits relating to his heart condition until late in 2010. Following a hearing on the merits of that petition, the JCC denied the petition on grounds that the statute of limitations had expired, and alternatively, that the Employer/Carrier (E/C) had successfully rebutted the statutory presumption of compensability afforded law enforcement officers under section 112.18(1), Florida Statutes. Claimant appealed the JCC’s order, but later dismissed the appeal by agreement of the parties. As part of this agreement, the parties stipulated to the finality of the JCC’s order denying benefits for Claimant’s heart disease.

In 2012, Claimant suffered another period of disability related to his heart disease when he was hospitalized for the replacement of a lead on the cardiac pacemaker originally implanted in 2007. The lead was found defective based on abnormalities noted on an EKG performed during a routine follow-up visit. Claimant filed a petition for benefits — alleging a new date of accident — again requesting compensation for his heart disease, but this time as a result of the new period of disability suffered for this condition. After an eviden-tiary hearing, the JCC denied benefits based on the doctrines of res judicata and collateral estoppel. This order is the subject of the current appeal.

Claimant argues that the JCC erred in holding that his petition for benefits was barred by doctrines of claim and issue preclusion because each new date of disability for heart disease is a new “date of accident,” and hence a new claim as a matter of law. He asserts that it is irrelevant that the claimed condition has been previously deemed non-compensable. Citing cases involving repetitive trauma, Claimant submits that he was not required to prove the worsening of a compensable condition or that he suffered a new cardiac condition; instead, all that mattered was that he suffered a new period of disability. We disagree.

II.

Claimant’s heart disease is claimed to be compensable under the occupational disease theory of recovery. See Sledge v. City of Fort Lauderdale, 497 So.2d 1281, 1238 (Fla. 1st DCA 1986) (finding heart disease compensable as occupational disease in cases where section 112.18(1), Florida Statutes, applies). An essential element of a claim based on an occupational disease is that the disease results in disability. See § 440.151(l)(a), Fla. Stat. (2012) (“[T]he disablement or death of an employee resulting from an occupational disease ... shall be treated as the happening of an injury by accident ....”); § 112.18(1), Fla. Stat. (2012) (requiring employees seeking to avail themselves of occupational presumption of compensability prove covered condition “result[ed] in total or partial disability”). See also Am. Beryllium Co. v. Stringer, 392 So.2d 1294, 1296 (Fla.1980) (“In occupational disease cases, therefore, it is the disability and not the disease which determines the compens-ability of a claim.”).

Although it is correct to focus on the date of disability in determining whether a new accident occurred, that determination alone does not control the result. A new date of accident is found only when the underlying occupational disease is compensable and the disease progression results in a subsequent period of disability. See Orange Cnty. Fire Rescue v. Jones, 959 So.2d 785, 786 (Fla. 1st DCA 2007) (explaining subsequent increase in viral load from already compensable condition, coupled with subsequent period of disability, resulted in new date of accident for occupational disease); see also Michels v. Orange Cnty. Fire/Rescue, 819 So.2d 158, 160 (Fla. 1st DCA 2002) (permitting second date of accident for calculation of average weekly wage, where compensable occupational disease “deteriorated” to cause permanent disability).

In contrast to Jones and Michels, in the case currently before the Court, Claimant’s underlying condition, specifically the heart disease that resulted in the heart transplant and implantation of a pacemaker, was previously adjudicated as non-compensable. Claimant admitted there had been no change in his condition when he was hospitalized for the repair of his pacemaker lead; rather, he experienced a new period of disability. Because the underlying condition was adjudicated to be non-compensable, it follows that the subsequent disability arising out of treatment for that condition is likewise non-compensable. Claimant presents no legal authority supporting his argument that in the instance of occupational diseases, a new date of accident can be proven in the absence of a new or different injury.

III.

Both the law and competent substantial evidence support the JCC’s conclusion that Claimant’s cardiac condition on the new date of disability relates directly back to the 2007 date of injury, thus compelling application of res judicata and collateral estoppel to bar the new claim. Because the 2007 date of injury, with all of its sequelae, was determined to be non-com-pensable based on grounds of statute of limitations and a lack of occupational causation, the argument that the 2012 hospitalization represents a new, compensable date of accident is without merit.

AFFIRMED.

WOLF and PADOVANO, JJ., concur.

       On appeal, Claimant likens the analysis for proving compensability of occupational diseases to that of repetitive trauma cases. Claimant argues that in the instance of repetitive trauma cases, a change in condition is not necessary to establish a new date of accident, and a claimant seeking to establish a new date of accident under a repetitive trauma theory of recovery need only prove continued exposure and legal causation. See Rose v. GEICO, 90 So.3d 886, 888 (Fla. 1st DCA 2012) ("No change in condition need be shown, given claimant’s allegation of subsequent repetitive traumas, because every new exposure to the trauma was a new ‘accident’ for purposes of workers’ compensation.”). We emphasize that the instant case is not a repetitive trauma case, and this Court has explained that the elements of proof for a repetitive trauma case are not identical to those required by occupational disease cases. See City of Orlando v. Lemay, 652 So.2d 850 (Fla. 1st DCA 1995).


text:
    Steven J. CASKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0850.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Steven J. Casker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


author: EVANDER, J. SAWAYA, J.,

text:
    SOUTHERN OWNERS INSURANCE COMPANY, Appellant, v. COOPERATIVA DE SEGUROS MULTIPLES, etc., et al., Appellees.
    No. 5D12-3048.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.

      Manuel J. Alvarez, Kerry C. McGuinn, Jr., and Carla M. Sabbagh, of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Daniel P. Mitchell and Debra M. Met-zler, of Barr, Murman & Tonelli, P.A., Tampa, for Appellees Cooperativa De Se-guros Multiples de Puerto Rico and Daisy Eastwood.
    Peter G. Walsh, of David W. Singer & Associates, PA, Hollywood, for Appellee Margarita Fiallo.
   EVANDER, J.

Southern Owners Insurance Company (“Southern Owners”) appeals an amended summary final judgment declaring that certain policies of insurance issued by Southern Owners provided coverage to Daisy Eastwood for the claims brought against her by Margarita Fiallo, as personal representative of the Estate of Damian Fiallo. Because the undisputed material facts of record do not support the trial court’s determination of coverage, we reverse.

Ms. Fiallo brought a wrongful death action against Daisy and Eastwood Community Association, Inc. after seven-year-old Damian drowned in the Eastwood Community swimming pool while in Daisy’s care. Daisy owned a home in the Eastwood residential community and, thereby, was a member of the Eastwood Community Association. As a member of the Association, Daisy had a right to use the community swimming pool. The lawsuit filed by Ms. Fiallo alleged that Daisy negligently supervised Damian and, as a result, Damian drowned.

The complaint filed by Ms. Fiallo further alleged Eastwood Community Association was a homeowners’ association that owned or operated the swimming pool and, as such, had a duty to operate the pool in a reasonably safe manner. Eastwood Community Association was alleged to have breached that duty in numerous ways, thereby causing Damian’s death.

At the time of the loss, Daisy was insured under a homeowner’s insurance policy issued by Appellee, Cooperativa de Seguros Multiples de Puerto Rico (“Coo-perativa”). After Ms. Fiallo filed her wrongful death action in the underlying case, Cooperativa retained counsel to defend Daisy. At the time of the loss, Eastwood Community Association was insured under two policies issued by Southern Owners; a comprehensive general liability policy and an umbrella policy. The policies included an endorsement that extended coverage to each individual member of the Association, “but only with respect to liability arising out of the ownership, maintenance or repair of that portion of the premises which is not reserved for that member’s exclusive use or occupancy.” (Emphasis added).

After the commencement of the underlying action, Cooperativa and Daisy instituted a declaratory judgment action against Southern Owners seeking a determination that Southern Owners was required to defend and indemnify Daisy for the claim brought against her by Ms. Fiallo. Subsequently, Ms. Fiallo moved to intervene in the declaratory judgment action. When the motion to intervene was granted, Ms. Fiallo filed her own declaratory judgment complaint against Southern Owners. Ultimately, the trial court entered summary judgment in favor of Cooperativa, Daisy, and Ms. Fiallo, finding that Daisy was entitled to a defense and to indemnity under both of the Southern Owners’ insurance policies. This appeal followed.

The parties agree that any potential liability Daisy may have in the underlying wrongful death action would not arise from the “maintenance” or “repair” of the swimming pool. Thus, the only issue is whether Daisy has potential liability arising from the “ownership” of the pool.

In its detailed order, the trial court correctly concluded that the phrase “arising out of’ is broader in meaning than the term “caused by” and means “originating from, having its origin in, growing out of, flowing from, incident to, or having a connection with.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532-33 (Fla.2005).

The trial court continued its analysis as follows:

DAISY was entitled to make use of the pool solely because of her membership in EASTWOOD which arose solely from her ownership of her unit. In other words, her right to use the pool, to invite the decedent to use the pool or to even enter the pool area was an incident of her ownership interest in the EASTWOOD common elements, including the pool. More simply stated, but for her ownership, neither DAISY nor Damian Fiallo, would have been in the pool area, in the pool itself or even subject to the provisions that guests must be super-, vised while at the pool.

If Daisy did, in fact, have an ownership interest in the Eastwood common areas, Appellees’ argument would be stronger. However, as all parties acknowledged in their supplemental briefs, the record is extremely sparse on the issue of whether individual members of the Eastwood Community Association have any ownership interest in the community swimming pool. Section 720.301(2), Florida Statutes (2009), suggests that Daisy may not have an ownership interest in the community pool:

“Common area” means all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members, including, regardless of whether title has been conveyed to the association:
(a) Real property the use of which is dedicated to the association or its members by a recorded plat; or
(b) Real property committed by a declaration of covenants to be leased or conveyed to the association.

In the instant case, the record is devoid of deeds, association articles of incorporation and/or bylaws, plats, declarations of covenants, or any other documents or evidence that would tend to reflect Daisy’s specific ownership interest, if any, in Eastwood Community Association’s common areas.

Absent an ownership interest in the pool, Daisy would not be entitled to coverage under Southern Owners’ policies because her potential liability would arise, at most, out of her “use” of the pool. Although the right to use property is an indicia of ownership, it does not equate to ownership. The primary elements of ownership are the rights of possession, use and enjoyment, the right to change or improve the property, and the right to alienate the property. Ill. Dep’t of Tramp, v. Anderson, 384 Ill.App.3d 309, 322 Ill.Dee. 869, 892 N.E.2d 116, 120 (2008). Because it is unclear from the record whether Daisy had an ownership interest in the community pool, we conclude that it was error to enter summary judgment in favor of Appellees.

REVERSED and REMANDED.

ORFINGER, J., concurs.

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

SAWAYA, J.,

concurring in part; dissenting in part.

I agree with the majority that the summary judgment rendered in favor of the Appellees in the declaratory judgment action should be reversed. But the majority remands the case to the trial court, apparently for the purpose of allowing the parties to establish whether Daisy Eastwood (the alleged tortfeasor and additional individual insured under the policy endorsement) has an ownership interest in the property. I do not believe that is the controlling issue in this case and, therefore, I respectfully dissent from that part of the opinion. I believe that the issue in this appeal is whether the personal act of Eastwood’s alleged negligent supervision of the child who drowned in the pool is covered under the provisions of the policy endorsement, which will be discussed shortly. It clearly is not, and a remand to the trial court should only be for the purpose of entering summary judgment in favor of the Appellant.

Coverage does not exist under the policy endorsement because it only provides coverage for the individual members of the association, like Eastwood, for “liability arising out of the ownership, maintenance or repair” of the premises. This coverage is for premises liability, which insures against damage or injury arising out of a dangerous condition on the premises. Eastwood is accused of an act of personal negligence in failing to properly supervise the child who drowned, which has nothing to do with a dangerous condition on the premises, and the parties do not contend otherwise.

The endorsement was issued as a part of a Commercial General Liability (CGL) insurance policy that, like the typical commercial lines policy, insures against loss caused by business operations conducted on the premises. Eastwood was not conducting any business activity on the premises at the time the child drowned, and again, the parties do not contend otherwise. But the issue in the declaratory judgment action is whether coverage is provided under the specific provisions of the endorsement, so I will confine the remainder of my argument to that issue.

This declaratory judgment action was filed against the issuer of the CGL and the endorsement, Southern Owners Insurance Company (Southern), and was considered in conjunction with a wrongful death action initiated by the personal representative of the deceased child (the Estate). The wrongful death action was filed against Eastwood, the individual insured, the Eastwood Community Association (the Association), which is also an insured under the policy (it is a mere coincidence that both defendants share the name Eastwood), and House of Management Enterprises for Community Associations, Inc. (House of Management). Eastwood owns a home in a residential community, and the Association owns and operates the common areas of the residential community, which include the pool and adjoining amenities. House of Management was hired by the Association to manage and operate the common areas, including the pool. Eastwood, as a member of the Association, is entitled to use the common areas, including the pool. Eastwood has a homeowner’s policy issued by Cooperativa De Seguros Multiples de Puerto Rico (Cooper-ativa).

The deceased child is Damian. Eastwood invited him to the pool to play with her son. Tragically, Damian drowned. The sole allegation against Eastwood in the underlying wrongful death action is that she negligently supervised Damian. There is absolutely nothing in the record to suggest that the drowning was caused by a dangerous condition on the premises.

After the wrongful death action was filed, Eastwood and Cooperativa filed the declaratory judgment action seeking to declare that the CGL policy endorsement issued by Southern to the Association provides coverage to Eastwood individually and personally for the alleged wrongful death of the child. At the time, Cooperati-va was providing the defense for Eastwood pursuant to the homeowners policy it had issued to her. The Estate intervened in the action, also seeking to have Southern placed on the hook for coverage and indemnity in the wrongful death action filed against Eastwood. Motions for summary judgment were filed by the parties on each side. The trial court granted the motion filed by Eastwood and Cooperativa and denied the motion filed by Southern. Southern appeals, arguing that the summary judgment should be reversed and this case remanded for entry of summary judgment in its favor.

The basis of the declaratory judgment action is an endorsement issued by Southern that includes the members of the Association as additional insureds under limited circumstances. That endorsement provides:

ADDITIONAL INSURED

HOMEOWNERS ASSOCIATION MEMBERS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.
A. SECTION II — WHO IS AN INSURED is amended to include as an additional insured each individual member of the insured Homeowners Association, but only with respect to liability arising out of the ownership, maintenance or repair of that portion of the premises which is not reserved for that member’s exclusive use or occupancy.

(Emphasis added). The provisions of the endorsement that are pertinent to the issue in this case are underscored.

The issue in this case is whether there is coverage under this endorsement for Eastwood’s personal act of negligent supervision, and “coverage under an insurance contract is defined by the language and terms of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 169 (Fla.200S) (citing Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 359 (Fla. 4th DCA 2001)). “In interpreting an insurance contract, we are bound by the plain meaning of the contract’s text.” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569 (Fla.2011); see also Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla.2004) (“If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written.”). “In construing words in insurance policies, it is appropriate for courts to turn to legal and non-legal dictionaries for common meanings.” Siegle, 788 So.2d at 360.

The endorsement specifically provides coverage for “liability arising out of ownership, maintenance, or repair ... of the premises.” The plain meaning of this provision clearly reveals that the endorsement provides premises liability coverage only for loss that results from a dangerous condition on the premises. The majority correctly states that “ownership” means the right to possess the property, to change or improve it, and to alienate it. Indeed, the courts have repeatedly held that ownership requires the owner to comply with the duty to properly maintain and repair the premises and warn invitees of known dangerous conditions on the premises. Fried-rich v. Fetterman & Assocs., P.A., 137 So.3d 362 (Fla.2013); Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA 2012); Aaron v. Palatka Mall, L.L.C., 908 So.2d 574 (Fla. 5th DCA 2005). The term “maintenance” means “the work of keeping something in suitable condition.” Webster’s II New Riverside University Dictionary 717 (1984 ed.). The term “repair” means “to restore to sound condition after damage or injury.” Webster’s II New Riverside University Dictionary 996 (1984 ed.); see also Siegle, 788 So.2d at 360 (stating that “repair” means “restore to a good condition” (quoting The Merriam Webster Dictionary 410 (1994 ed.))). I believe that the plain meaning of the terms and provisions of the endorsement is that it provides premises liability coverage for the owner regarding dangerous conditions on the premises that cause injury. See Union Am. Ins. Co. v. Haitian Refugee Ctr./Sant Refijie Ayisyin, Inc., 858 So.2d 1076, 1078 (Fla. 3d DCA 2003); Hilton Hotels Corp. v. Emp’rs Ins. of Wausau, 629 So.2d 1064, 1065 (Fla. 3d DCA 1994) (holding that one of the reasons a policy providing coverage for liability arising out of the ownership, maintenance, or repair of the premises did not provide coverage for the alleged loss is because “[t]he accident was not a result of any physical condition which emanated from the premises ...”); Parliament Ins. Co. v. Bryant, 380 So.2d 1088, 1089-90 (Fla. 3d DCA 1980) (analyzing a policy that provided coverage for injuries “‘arising out of the ownership, maintenance, or use of the insured premises,’ ” and stating that “it is evident that that the policy we are examining is a premises liability policy, not a general liability policy ... ”). Therefore, it does not provide coverage for Eastwood’s personal act of negligent supervision of the child.

In Union American, the court was confronted with a CGL policy that provided coverage for “ ‘bodily injury ... arising out of [t]he ownership, maintenance or use of the premises shown in the [sjchedule and operations necessary or incidental to those premises.’” Union Am. Ins. Co., 858 So.2d at 1077. That policy differs from the endorsement in the instant case because it provided coverage for injury arising from the “use of the premises” and to “operations necessary or incidental to those premises,” which are not included in the endorsement in the instant case. But both policies do provide for coverage for loss arising out of the ownership of the premises. The court in Union American held that the policy provision essentially made the policy a “designated premises policy,” which meant that the injury must have occurred on the premises and resulted from a dangerous condition on the premises as opposed to the active negligence of the tortfeasor. Id. at 1078. The court explained:

As was said in 11 Couch on Insurance 2d section 44:379 at 551-52 (1982):

A very common form of liability insurance is the one which insures the owner, occupier, or operator of real property against liability incident to his ownership or use of the premises. Such insurance, the purpose of which is simply to protect against liability arising from the condition or use of the building as a building must be distinguished from insurance against liability arising from the nature of the enterprise or activity conducted therein. More simply stated, a building liability policy does not cover a liability arising from the insured’s activity in the building.

Id.

Rather than consider all of the pertinent provisions of the endorsement, the trial court and the analysis in the majority opinion erroneously focus solely on the term “ownership” in isolation. It is improper to consider chosen phraseology of a policy in isolation to the rest of the provisions. § 627.419(1), Fla. Stat. (2013) (“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.”); U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007) (“ ‘[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.’ ” (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000))); Swire Pac. Holdings, Inc., 845 So.2d at 166 (same); Cont'l Ins. Co. v. Collinsworth, 898 So.2d 1085, 1087 (Fla. 5th DCA 2005). Specifically, “‘when construing an insurance policy to determine coverage the pertinent provisions should be read in pari materia.’ J.S.U.B., Inc., 979 So.2d at 877 (quoting State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1074-75 (Fla.1998)). Proper application of these rules requires that “[a]n insurance policy ... receive a reasonable, practical and sensible interpretation.” Denman Rubber Mfg. Co. v. World Tire Corp., 396 So.2d 728, 729 (Fla. 5th DCA 1981) (citations omitted).

When proper consideration is given to all of the pertinent provisions, it becomes clear that the endorsement does not provide coverage in this case. The complaint against Eastwood does not allege that the child was injured as a result of a dangerous condition on the premises. When deciding whether an insurer has a duty to defend, the allegations of the underlying complaint determine whether that duty exists. Essex Ins. Co. v. Big Top of Tampa, Inc., 53 So.3d 1220, 1223 (Fla. 2d DCA 2011). A liability insurer has no duty to defend a suit where the complaint on its face alleges facts that fail to bring the case within the coverage of the policy. Id. If there is no duty to defend, there is no duty to indemnify. Id. at 1224. Because this endorsement and the coverage it provides do not apply to the alleged act of personal negligence in this case, there is no corresponding duty to defend or indemnify on the part of Southern. I would reverse the judgment under review and remand this case to the trial court to enter a summary judgment declaring that Southern has no duty to defend or indemnify for Eastwood’s alleged act of negligence.

      . To avoid confusion, Daisy Eastwood will be referred to as "Daisy.” It is pure coincidence that Daisy and the Association share the same name.

      . Throughout the proceedings, Southern Owners has maintained that because the underlying complaint alleged that Daisy was negligent in supervising Damian, any liability on the part of Daisy did not arise out of her “ownership" interest in the parcel on which the community pool was situated. Although Southern Owners denied that Daisy had an ownership interest in the community pool in its pleadings, at times it appeared to accept opposing counsels' assertion that Daisy, as a member of the Homeowner’s Association, had an ownership interest in the common areas. Appellees’ contention that Daisy had an ownership interest in the common areas appears to have been based on caselaw involving condominiums. However, the Florida statutory scheme regarding ownership of common elements in a condominium is significantly different from the statutory scheme regulating the ownership of common areas in a homeowners’ association. Section 718.103(11), Florida Statutes (2009), expressly defines "condominium” to mean "that form of ownership of real property created pursuant to this chapter, which is comprised entirely of units that may be owned by one or more persons, and in which there is, appurtenant to each unit, an undivided share in common elements.” By contrast, as referenced above, the statute regulating homeowners’ associations suggests that title to the common areas is often held by the association.

      . Appellees cite to the deposition testimony of Cheryl Simmons, Eastwood Community Association’s manager, for support of its contention that Daisy had an ownership interest in the community pool. However, a close review of Ms. Simmons’ testimony reflects that she gave conflicting testimony on this issue. She testified at one point that the common areas were owned by the Association and at another point that they were owned by the members of the Association. Furthermore, it is unclear from her deposition whether Ms. Simmons had die knowledge necessary to be able to render an opinion on this issue.

      . I do not believe that coverage exists under the other provisions of the CGL. In order to properly determine coverage, it is necessary to consider the type of policy involved. See U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871 (Fla.2007); Union Am. Ins. Co. v. Haitian Refugee Ctr./Sant Refijie Ayisyin, Inc., 858 So.2d 1076, 1078 (Fla. 3d DCA 2003). "Commercial General Liability policies are designed to protect an insured against certain losses arising out of business operations.” J.S.U.B., Inc., 979 So.2d at 877 (citation omitted). CGL policies are distinguished from personal liability policies, and the importance of the distinction between the two lies in what is and what is not covered under each. "Whereas personal liability insurance policies are intended to protect the insured against the risks which are associated with the 'personal' aspects of the insured’s life, commercial general liability policies are designed to protect the insured from losses arising out of business operations.” 9A Steven Plitt et al., Couch on Insurance § 129:1 (3d ed. 2013) (footnote omitted). The Florida courts have adopted this principle. J.S.U.B., Inc.; Union Am., Therefore, unless the loss arises out of the insured's business operations, it is not covered.
      These principles extend beyond the confines of Florida jurisprudence, as the authors in Couch on Insurance explain:
      Commercial general liability policies are designed to protect the insured against losses to third parties arising out of the operation of the insured's business. Consequently, a loss must arise out of the insured’s business operations in order to be covered under the policy issued to the insured.
      9A Steven Plitt et al., Couch on Insurance § 129:2 (3d ed. 2013) (footnote omitted). In Stempel on Insurance Contracts, the author similarly explains:
      Appreciating the nature and organizational structure of the CGL is of value in gauging coverage controversies. The CGL, like most insurance policies, has a relatively targeted objective for insuring risks. It is designed to protect commercial operators from litigation and liability arising out of their business operations.
      2 Jeffrey W. Stempel, Stempel on Insurance Contracts § 14.01[B] at 14-17 (3d ed. Supp. 2010); see also Kennedy v. Lumbermans Mut. Cos. Co., 152 Misc.2d 491, 577 N.Y.S.2d 353, 354 (N.Y.Sup.Ct.1991) ("Looking at the overall scheme of the policy and the exclusion in particular, the policy is a homeowner's policy and intends to cover only the home and domestic related activities. This is not a 'business’ policy, and the carrier wishes to make sure that it is not forced to cover business activities. The policy holder has, of course, not paid for business coverage.”), affirmed as modified on other grounds, 190 A.D.2d 1053, 593 N.Y.S.2d 659 (1993).
      Considering the policy as a whole, it is clear that it provides coverage that is limited to business conducted on the premises. The definition of "insureds” in Section II of the policy specifically provides that if you are designated as an individual insured, "you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.” (Emphasis added). The definition of insureds goes on to discuss partnerships or joint ventures, but only "with respect to the conduct of your business.” Therefore, the CGL policy does not provide coverage for personal acts of negligence, such as the negligent supervision of a child, committed by an individual Association member who uses the pool for personal and social reasons, as Eastwood did.

      . Eastwood and Cooperativa argue that a duty to defend is established by the allegations in the underlying complaint that Eastwood’s membership in the Association, which allows her the right to use the swimming pool owned by the Association, bestows upon Eastwood ownership of the pool and creates coverage and a duty to defend. I agree with the majority that a duty to defend cannot be based on such allegations. This is no more than clever and fanciful pleading designed to create coverage that does not exist. As the court explained in Pioneer National Title Insurance Co. v. Fourth Commerce Properties Corp., 487 So.2d 1051 (Fla.1986), to allow a party to improperly plead his way into coverage by asserting allegations that do not fairly bring the cause of action within the scope of coverage would force insurance companies "to underwrite risks not bargained for by either party.” Id. at 1054; see also Great Am. Bank of Fla. Keys v. Aetna Cas. & Sur. Co., 662 F.Supp. 363, 365 (S.D.Fla.1986) ("In Pioneer, the court reasoned that to hold an insurer liable for an action not covered under the policy would force insurers ‘to underwrite risks not bargained for by either party.' ” (quoting Pioneer, 487 So.2d at 1054)). The complaint in the instant case does nothing more than attempt to create an inference of ownership, and no fair reading of it can lead to the conclusion that Eastwood was an owner of the premises.


author: MORRIS, Judge.

text:
    Paul WAGNER, Appellant, v. BANK OF AMERICA, N.A., successor by merger to BAC Home Loans Servicing, L.P., f/n/a Countrywide Home Loans Servicing, L.P., Appellee.
    No. 2D12-6131.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.

      Richard R. Kosan, Brandon, for Appellant.
    Trida J. Duthiers and J. Randolph Lie-bler of Liebler, Gonzalez & Portuondo, P.A., Miami, for Appellee.
   MORRIS, Judge.

Paul Wagner appeals a final judgment of foreclosure entered in favor of BAC Home Loans Servicing, LP, the predecessor in interest to appellee Bank of America, N.A. (collectively referred to as the bank). We affirm the finding of liability in the final judgment without comment, but we reverse and remand for further proceedings on damages.

Wagner claims that the trial court erred in awarding $9588.85 for the costs of collection (including attorney’s fees) when there was no evidence presented to support this amount. He also contends that the trial court erred in including $3619 for property inspections because there was no evidence to support this amount.

A damages award must be supported by competent, substantial evidence. See Shakespeare v. Prince, 129 So.3d 412, 413-14 (Fla. 2d DCA 2013). The $3619 awarded to the bank for property inspections was not reflected on the payment history admitted at trial, which was the only evidence offered by the bank regarding the non-principal amounts owed by Wagner. The $9588.85 for costs of collection, which included costs paid by the bank’s counsel and attorney’s fees charged by the bank’s counsel, were also not reflected on the payment history. The only evidence of these costs and fees was an affidavit filed by the bank’s counsel prior to trial, but as all parties agreed below, Wagner was entitled to an evidentiary hearing on the amount of attorney’s fees and costs sought by the bank. See Newman v. Newman, 121 So.3d 661, 662 (Fla. 1st DCA 2013) (holding that trial court “erred in awarding fees and costs without conducting a hearing and giving [a]ppellant the opportunity to dispute the reasonableness of the attorney’s hourly rate and time claimed”). Therefore, there was no competent, substantial evidence to support the award of damages for the $9588.85 for costs of collection or the $3619 for property inspections.

Wagner also argues that the trial court’s calculations for insurance damages exceeded the actual amount reflected on the payment history, and our review of the payment history indicates that the amount awarded to the bank for insurance payments exceeded the actual amount proven by $149.

Accordingly, we reverse the final judgment as to damages and remand for further proceedings on the issue of attorney’s fees and costs. On remand, the trial court shall also correct the calculation of insurance damages and eliminate the $3619 awarded for inspections.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and LaROSE, JJ., Concur.

      . In fact, the bank conceded at the bench trial that it was not prepared to present evidence on attorney’s fees unless the trial court was willing to consider the affidavit filed by counsel. Wagner’s counsel objected, and they all agreed that live testimony was required.


author: KHOUZAM, Judge.

text:
    In the Interest of A.R., a child. R.R., Appellant, v. M.M., Appellee.
    No. 2D13-3036.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Radha Rothrock of Rothrock Law Firm PL, Bonita Springs, for Appellant.
    Cary Alan Cliff of Cary Alan Cliff, P.A., Naples, for Appellee.
   KHOUZAM, Judge.

The Father appeals the final judgment terminating his parental rights to his minor child, A.R. On August 16, 2012, the Mother filed a private petition for involuntary termination of the Father’s parental rights, arguing that the Father’s parental rights should be terminated pursuant to— among other grounds — section 39.806(l)(d)(l), Florida Statutes (2012). That section provides for termination of parental rights where “[t]he period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority.” After a hearing, the court granted the petition and terminated the Father’s parental rights on this ground.

On appeal, the Father argues that the circuit court erred by failing to find that termination was the least restrictive means of preventing harm to the child and failing to adequately support its finding that termination was in the child’s manifest best interests. He also claims that the court erred by not allowing him to present evidence that the Mother thwarted his efforts to maintain a relationship with the child, finding that such evidence was irrelevant to an analysis under section 39.806(l)(d)(l). We agree that the court erred and therefore reverse for a full evidentiary hearing.

The Florida Supreme Court has held that in addressing the termination of parental rights under section 39.806(l)(d)(l), a court must not only consider the length of the parent’s incarceration but also whether termination is the least restrictive means of protecting the child from harm and in the manifest best interests of the child. See B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1053 (Fla.2004). The incarcerated parent’s relationship with the child and efforts to maintain that relationship while in prison are relevant to these inquiries. As the supreme court has stated:

Termination of the parental rights of a parent who has played a supportive and beneficial role in the child’s life despite the disabilities of incarceration probably would not meet these additional statutory and constitutional criteria. Cf [In Interest of B.W., 498 So.2d 946, 948 (Fla.1986) ] (stating that “efforts, or lack thereof,” by incarcerated parent “to assume his parental duties through communicating with and supporting his children must be measured against his limited opportunity to assume those duties while imprisoned”). Further, termination of an incarcerated parent’s rights when another parent retains custody, which is permitted under section 89.810(3), Florida Statutes, would in many cases be contrary to the child’s best interests if the custodial parent facilitates contact with the incarcerated parent.
In sum, termination cannot rest exclusively on the length of incarceration. The actual effect of incarceration on the parent-child relationship must also be considered in light of the additional statutory and constitutional requirements. As we recently stated in [Florida Department of Children & Families v. F.L., 880 So.2d 602 (Fla.2004) ] concerning the court’s obligation to assess when termination is the least restrictive means of protecting the child from serious harm, the termination decision as a whole “can be made only after a judicious assessment of all relevant circumstances.” 880 So.2d at 608. We are confident that trial judges will diligently apply all the statutory and constitutional criteria in ruling on petitions for termination.

Id. at 1053-54.

Here, the court completely failed to address in its final judgment whether termination was the least restrictive means of protecting the child. And though the court did recite the required statutory factors on the manifest best interests of the child, the findings on these factors show that the court placed undue focus on the fact that the Father was incarcerated, failing to consider other relevant factors, such as the nature of the Father’s relationship with the child. Indeed, the record shows that the court limited questioning about the Father’s attempts to maintain a relationship with the child and the extent to which the Mother thwarted the relationship between the Father and the child. So the court did not give the Father the opportunity to present evidence on this important factor. Accordingly, we reverse and remand for a full evidentiary hearing.

Reversed and remanded.

MORRIS and SLEET, JJ., Concur.


text:
    Ray YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2371.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges his judgment and sentence for lewd or lascivious molestation of a child less than twelve years old. Although he raises several points on appeal, we conclude that only one point has merit and necessitates a new trial. The trial court erred by admitting as impeachment evidence the certified copies of Appellant’s prior convictions for similar crimes. Mathis v. State, 135 So.3d 484, 486-87 (Fla. 2d DCA 2014). See also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 610.6 (2014 ed.) (error for prosecutor to attempt to introduce evidence regarding nature of witness’s felony conviction for impeachment purposes unless witness denies conviction or otherwise gives misleading testimony regarding conviction).

The State does not refute this claim of error but argues nevertheless that the introduction of the nature of Appellant’s convictions was harmless beyond a reasonable doubt. We cannot reach this conclusion on this record.

REVERSED AND REMANDED.

TORPY, C.J., LAWSON and BERGER, JJ., concur.


text:
    Derrick Deshawn WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4074.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm on all issues but write to address a scrivener’s error in the written sentencing order.

The court orally pronounced that “as to Count-II, you’ll be sentenced to 25 years in the Florida Department of Corrections, 10 of which is a firearm mandatory/minimum-” In conflict with the oral pronouncement, the written sentence reflects that a twenty-year firearm mandatory minimum was imposed on Count II. The written sentence should be corrected to conform to the oral pronouncement. Cros key v. State, 71 So.3d 199 (Fla. 5th DCA 2011) (remanding for correction of erroneous written sentencing order to conform to oral pronouncement; explaining that written order imposing a twenty-year mandatory minimum pursuant to section 775.087(2)(a)2., Florida Statutes (2008), was erroneous where the jury specifically found appellant possessed but did not discharge a firearm and trial judge’s oral pronouncement of a ten-year minimum mandatory sentence pursuant to section 775.087(2)(a), Florida Statutes (2008), was correct); see also Douglas v. State, 140 So.3d 691 (Fla. 1st DCA 2014) (affirming judgment and sentence but remanding for correction of written sentence to match oral pronouncement).

AFFIRMED; REMANDED for correction of scrivener’s error.

TORPY, C.J., SAWAYA and PALMER, JJ., concur.

      . The written sentence not only conflicts with the oral pronouncement but it also conflicts with the jury's verdict finding that "the defendant did actually possess and carry display, use or threaten to use a firearm.” See § 775.087(2)(a), Fla. Stat. (2011) (providing that a defendant who possesses a firearm during the commission of the offense shall be sentenced to a minimum term of imprisonment of ten years). On Count II, the jury did not find that the defendant discharged the firearm.


author: LAMBERT, J.

text:
    Antonious LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4289.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    Antonious Louis, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Appellant appeals an order denying his motion to correct jail time credit. He contends the trial court erred in awarding only fifty-two days of jail credit when he was sentenced. We reverse and remand.

Appellant was first arrested on September 25, 2012. On November 14, 2012, he posted bond. Thereafter, appellant failed to appear at a mandatory court proceeding, and a bench warrant was issued for his arrest. He was rearrested on May 29, 2013, brought to court that same day, and the trial court reinstated his bond. Based upon these facts, the trial judge, when sentencing appellant, awarded him fifty-two days of jail credit and, in his order denying appellant’s motion for jail credit, attached copies of documents supporting this chronology.

Appellant argued below and argues here that he was entitled to receive two additional days of jail credit at sentencing because, although his bond was posted on November 14, 2012, he was not actually released from jail until November 15, 2012, and, although he was rearrested on May 29, 2013, and his bond was reinstated that day by the trial court, he was not released from the county jail until May 30, 2013. Appellant attached to his motion a copy of a letter dated October 4, 2013, from a court records specialist with the Brevard County Sheriffs Office, which indicated that, prior to sentencing, he was in custody on this case from September 25, 2012, until November 15, 2012 (i.e., fifty-two days) and then from May 29, 2018, until May 30, 2013 (two days).

When, as in this case, a factual dispute exists, and the files and records do not conclusively show appellant is entitled to no relief, an evidentiary hearing is generally required. See Fla. R. Crim. P. 3.850(f) (incorporated in Fla. R. Crim. P. 3.801(e)).

REVERSED and REMANDED with directions that the trial court either grant the additional two days jail credit or hold an evidentiary hearing to determine appellant’s entitlement to the same.

LAWSON and WALLIS, JJ., concur.

      . Florida Rule of Criminal Procedure 3.801(a) permits a court to correct a sentence that fails to allow a defendant credit for all of the time he or she spent in the county jail before sentencing.

      . This court entered an order directing the State to file a response addressing the merits of appellant’s jail credit claim. In its response, the State asserted, among other things, that the letter from the Brevard County Sheriff's Office, which appellant attached to his motion, "verifies the facts contained in the trial court’s order.”


text:
    Jose Wilfred Telleria ARRAIAGA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1148.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    Jose Wilfred Telleria Arraiaga, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence imposed in case no. 2012-CF-001468-A-0, in the- Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, COHEN, and WALLIS, JJ., concur.


text:
    Guillermo BRUZON-GARCIA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1442.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    Mercedes L. Leon, Kissimmee, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2013-CF-001741-A-0, in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, EVANDER, and WALLIS, JJ., concur.


text:
    Calvin JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2104.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2014.
    Robert Wesley, Public Defender, and Erin Hyde, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. CF13-12602-A, Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, EVANDER, and BERGER, JJ., concur.


author: VAN NORTWICK, J.

text:
    G.B., Z.L., through his guardian K.L., J.H., and M.R., Appellants, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D13-4903.
    District Court of Appeal of Florida, First District.
    July 21, 2014.

      Gigi Rollini of Messer Caparello, P.A., Tallahassee, Cynthia A. Mikos of Allen Dell, P.A., Tampa, for Appellants.
    David A. Yon and Donna E. Blanton of Radey Law Firm, Richard D. Tritschler, General Counsel and Brian McGrail of Agency for Persons with Disabilities, Tallahassee, for Appellee.
   VAN NORTWICK, J.

G.B., Z.L., through his guardian K.L., J.H., and M.R., appellants, challenge a series of rules (the Proposed Rules) promulgated by the Agency for Persons with Disabilities (the Agency). See Fla. Admin. Code R. 65G-4.0210-65G4.027. The Agency’s Proposed Rules implement the Legislature’s new iBudget Statute. See § 393.0662, Fla. Stat. (2010). The iBudget Statute redesigned Florida’s system governing the amount, duration and scope of health and other services provided to persons with developmental disabilities under Florida’s Medicaid Developmental Disabilities Waiver funding system, known as the “D.D. Waiver Program.” Id. An Administrative Law Judge found the Proposed Rules permissibly implemented the iBudg-et Statute. Because we find the Proposed Rules contravene the specific requirements of the Legislature in the iBudget Statute, we reverse.

Background

The record reflects that each of the four individual appellants receive services under the DD Waiver. For example, appellant Z.L. is a 26-year-old male who was born with Cri-du-Chat syndrome, a fifth chromosome abnormality. As a result, Z.L. is low-functioning, with a non-measurable IQ level (below the level at which mental retardation can even be designated). Z.L. speaks only a few words, communicates with some sign language, and is ambulatory, but totally depends on others for all aspects of daily living. Z.L. also has extreme behavioral issues, including self-abuse and physical abuse of others.

Z.L. lives at home with two other developmentally disabled men. The home where they reside belongs to the family of K.L. (Z.L.’s father and legal guardian), allowing Z.L. and the other two men with DD Waivers to rent the home at less than its actual market value. The services Z.L. receives under the DD Waiver to live in this home and avoid more costly institutionalization include 24-hour assistance with daily living activities; behavioral analysis through a certified behavior analyst, and personal care assistance.

Prior to the adoption of his iBudget, Z.L.’s cost plan (the amount paid under the DD Waiver for services provided to Z.L., which services were determined by APD to be medically necessary) totaled $61,824.22. The record shows that if the iBudget system were implemented as set forth in the Proposed Rules, Z.L.’s cost plan will be reduced by $8,175.98. Appellants assert that such a reduction would prevent Z.L. from being able to afford to maintain his current level of services in order to remain in his home. Appellants argue if Z.L. cannot remain in his home, where he (like his roommates) is able to pay reduced rent because the home is owned by a family member, Z.L. would have to be institutionalized. Z.L. cannot live in his parents’ home because his mother suffered a closed head injury in a bicycle accident, is incapable of defending herself in the event Z.L. acts aggressively toward her, and another traumatic injury to her head could be fatal.

If the rules are upheld, each appellant will be transitioned to the iBudget system set forth in the Proposed Rules. Like Z.L., the other three individual appellants have also received iBudget reduction notices. G.B.’s existing cost plan reduction will be $5,376.40. M.R.’s proposed iBudg-et reduction is $6,524.16. J.H.’s existing cost plan reduction will be $3,769.49.

Appellants timely filed their Petition for Administrative Determination of Invalidity of Proposed Rules 65G-4.0210 through 65G-4.027 on May 16, 2013, ten days following the final public hearing. See § 120.56(2)(a), Fla. Stat.

The iBudget Statute

Section 393.0662, Florida Statutes, creates a new system to distribute funds under the DD Waiver Program. The Legislature created the new system based on individual budgets, or “iBudgets” for each DD Waiver client for the express purpose of affording greater flexibility for clients and families to choose services within the limit of an established budget. § 393.0662, Fla. Stat. The statute instructed the Agency to develop “an allocation algorithm and methodology” for use in developing each client’s budget. § 393.0662(l)(a), Fla. Stat. The Legislature mandated that the algorithm “use variables that have been determined by the agency to have a statistically validated relationship to the client’s level of need for services.” Id. Importantly, the Legislature then clearly required the algorithm be the sole mechanism to set a client’s iBudget, with one exception: “A chent’s iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b).” § 393.0662(l)(c), Fla. Stat. Pursuant to paragraph (b), the algorithm could be increased if a client had one or more particular needs that could not be accommodated within the funding as determined by the algorithm. § 393.0662(l)(b), Fla. Stat. (listing extraordinary need, significant need for one-time or temporary support or services, and significant increase in need for services after the beginning of the service plan year as the three paragraph (b) additions).

The Proposed Rules

The Proposed Rules promulgated by the Agency created an algorithm. Fla. Admin. Code R. 65G-4.0210(2)-(2)(b). The Proposed Rules also created a review process whereby each client’s algorithm amount could be adjusted. See Fla. Admin. Code R. 65G-4.0210(3), (7), (19), 65G-4.0212. This independent review process involved an allocation of algorithm amounts, further target allocations, allocation implementation meetings, and extraordinary needs reviews. See Fla. Admin. Code R. 65G-4.0212. The Proposed Rules also called for a reduction of the algorithm amount where the amount exceeded an existing chent’s former annualized cost plan amount; if this occurred, the algorithm amount was reduced to the former cost plan. See Fla. Admin. Code R. 65G-4.0212(2)(a). And, finally, the Proposed Rules created supplemental funding when a client showed significant need or significant increase in need for services since the beginning of the plan year. Fla. Admin. Code R. 65G-4.027(2)-(5). As the Agency witnesses testified below, the algorithm the Agency created was just the beginning of its allocation process.

Analysis

An agency may not propose or create a rule that “enlarges, modifies, or contravenes the specific provisions of ... the language of the enabling statute.” § 120.52(8)(c), (9), Fla. Stat. It is not enough that the Agency’s rule is “reasonably related” to the Legislature’s purpose or statutory provisions. § 120.536(1), Fla. Stat. The Agency’s rule and interpretation must comport with the specific authorizing statute. § 120.536(1), Fla. Stat.; State, Dep’t of Children & Family Sens, v. I.B., 891 So.2d 1168, 1171 (Fla. 1st DCA 2005) (“No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation ... or [ ] within the agency’s class of powers and duties.”). The rule must comply with the Legislature’s particular requirements. Moreland, 19 So.3d at 1011-13.

Here, the Legislature was clear: the algorithm is the sole mechanism to set a client’s iBudget, save for three exceptions specifically delineated by statute. § 393.0662(l)(c), Fla. Stat. In contravention of this clear requirement, the Proposed Rules use the algorithm, instead, as merely a starting point. The algorithm amount is then put through various modification mechanisms — none of which are contemplated by the clear statutory mandate that the “iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b).” Id.

Further, the use of the review mechanisms to decrease the algorithm amount contravenes the iBudget Statute. Nowhere in the statutory language does the Legislature contemplate decreasing the algorithm amount. The Legislature directed the algorithm be the floor and then permitted increases to that algorithm amount based on three delineated circumstances. Id. (“A client’s iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b).”). For sure, clients are required to “use all [other] available services” prior to “using funds from his or her iBudget to pay for support and services.” § 393.0662(4), Fla. Stat. But this does not decrease a client’s iBudget by the amount of other services; instead, it merely requires clients use those other services before paying for them with their already-allocated iBudget funds. And finally, the Proposed Rules provide for a one-time assessment. The iBudget Statute contemplates more, as it intends for an ongoing process and assessment of client needs.

In sum, the Proposed Rules directly conflict with and contravene the Legislature’s clear language. We recognize the difficulty in adhering to the Legislature’s command to create an algorithm solely capable of determining each client’s level of need. Further, we accept that APD is attempting to find a reasonable way to administer funds to the tens-of-thousands of people in need that it assists. However, when, as here, the Legislature is clear, there is no room for deviation.

Accordingly, because the Proposed Rules conflict with the requirements of the statute, we REVERSE the ALJ’s order finding the Rules valid.

BENTON and OSTERHAUS, JJ., concur.

      . The iBudget Statute replaced a tier system design for delivering home and community based services for persons with developmental disabilities. See § 393.0661, Fla. Stat. (2007). This Court invalidated the Agency's proposed rules for the tier system in Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009, 1012-13 (Fla. 1st DCA 2009). In Moreland, the Court determined the Proposed Rules imposed criteria beyond that found in the enabling statute and failed to assign clients to the correct DD Waiver budget tier based on the methods set forth in the statute. Id. at 1012.

      . Based on this resolution, we need not address appellants' issues regarding the $1,000 buffer and Statement of Estimated Regulatory Costs.


text:
    Chanterria ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1361.
    District Court of Appeal of Florida, First District.
    July 21, 2014.
    Nancy A. Daniels, Public Defender; Nicole A. Bamberski and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s conviction and sentence are affirmed in this Anders appeal, but we remand for correction of the statute citation in the written judgment that reflects the appellant was convicted under section 784.03(2), Florida Statutes (2013). Instead, she was convicted under section 784.045(l)(b), Florida Statutes (2013), aggravated battery on a pregnant victim, a second-degree felony.

AFFIRMED, but REMANDED to correct the statute citation in the judgment.

WOLF, ROBERTS, and ROWE, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Joseph Daniel FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6064.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Jeffrey E. Lewis, General Counsel, and Melissa J. Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joseph Daniel Flowers appeals the final judgment after a jury found him guilty of seven charges. We affirm, but remand this case to the trial court to enter a written order of competency.

Flowers correctly argues that the trial court must enter a written order finding the defendant competent. See Fla. R. Crim.P. 3.212(b). However, as noted by this court in White v. State, 548 So.2d 765, 768 (Fla. 1st DCA 1989), where a trial court has entered an oral finding that the defendant is competent, but no written order of competency has been entered, the proper remedy is to affirm the judgment and to remand the case to the trial court for entry of a nunc pro tunc order finding the defendant competent to stand trial.

We disagree with Flowers’s assertion that the court was required to conduct a second competency proceeding. Nothing was presented to the trial court which could raise a bona fide and reasonable doubt as to his competency at the time of his October 2013 trial or November 2013 sentencing hearing. See Pericola v. State, 499 So.2d 864, 867 (Fla. 1st DCA 1986), pet. rev. denied, 509 So.2d 1118 (Fla.1987).

We affirm the final judgment, but remand this case to the trial court to enter a nunc pro tunc order finding Flowers competent to stand trial.

SWANSON and MAKAR, JJ„ and SJOSTRUM, JONATHAN, Associate Judge, concur.


text:
    Ronald THORNTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0902.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Ronald Thornton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Ronald Thornton seeks a writ of mandamus compelling the circuit court to rule upon a motion for post-conviction relief filed on or about September 16, 2010. The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). We encourage the circuit court, however, to promptly rule on the motion pending therein.

LEWIS, C.J., WOLF and WETHERELL, JJ., concur.


text:
    Victor BOUIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1758.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Victor Bouie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order on the motion to correct illegal sentence rendered October 24, 2013, in Gadsden County Circuit Court case number 2003-CFA-059, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Bobbie D. DRESSEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2116.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Bobbie D. Dressel, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying second motion for post-conviction relief rendered February 3, 2014, in Baker County Circuit Court case number 02-2006-CF-000412-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Daniel Lavon EFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3426.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2014.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Knight v. State 107 So.3d 449 (Fla. 5 DCA 2013).

SAWAYA and BERGER, JJ., and HARRIS, C. M., Senior Judge, concur.


text:
    Christopher G. WALKER, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-5864.
    District Court of Appeal of Florida, First District.
    July 23, 2014.
    Christopher G. Walker, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


text:
    Weston JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2940.
    District Court of Appeal of Florida, First District.
    July 24, 2014.
    Weston Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.