author: DAMOORGIAN, J.

text:
    David Scott EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-258.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

David Scott Evans timely appeals his judgment and sentence for felony resisting with violence and battery on a law enforcement officer. We reverse, holding that the jury instruction stating that the trespass or narcotics investigation constituted the lawful execution of a legal duty impermis-sibly directed a verdict for the State. By failing to instruct the jury that the investigation must be “lawful” in order for it to find that the officer was executing a legal duty, the trial court took the issue away from the jury.

Sergeant Baer, Officer Jozwick, and four other officers were driving in an unmarked vehicle when Sergeant Baer observed Evans in the parking lot of an open convenience store talking to another male, which he knew from past encounters. He noticed the other male had money in his hands and watched as Evans tossed an object into his month. Under the belief that he just witnessed a drug transaction and that the men were trespassing, Sergeant Baer decided to conduct an investigatory stop. The police vehicle then pulled up to the men, and Officer Jozwick exited the vehicle, signaling them to stop with his hand. Evans then grabbed officer Jozwiek’s thumb, and a struggle ensued. Following the incident, Evans was charged with felony resisting with violence and felony battery on a police officer.

During trial, the court conducted a charge conference at which defense counsel requested that the jury be given the following instruction:

“[I]f you find that the police officer had reasonable suspicion to detain you for a criminal investigation, then you should find that the officer was lawfully executing a legal duty. If you find that Officer Jozwick did not have reasonable suspicion to detain the defendant for a criminal investigation, then you should find that Officer Jozwick was not executing a lawful duty and thus you should find the defendant not guilty as to the crimes charged.”

The State objected to the instruction, arguing that the jury instruction should state that the officer needed probable cause in order to have been executing a legal duty. The trial court denied defense counsel’s request, and instead, advised that it was going to give the following instruction: “[T]he Court further instructs you that conducting a trespass or narcotic investigation is a lawful execution of a legal duty.” In response, defense counsel asked that the word “lawful” be inserted before trespass, and the State agreed. The Court, however, over defense counsel’s objection, declined to change the instruction to include the word “lawful.” The instruction was subsequently submitted to the jury as proposed by the trial court. Evans now appeals, arguing that the trial court erred in giving the above mentioned instruction. We agree.

To prove felony resisting with violence pursuant to section 843.01, Florida Statutes (2007), and felony battery on a law enforcement officer pursuant to 784.03 and 784.07, Florida Statutes (2007), the State must prove that the officer was lawfully executing a legal duty at the time of the incident. Accordingly, a jury instruction should not define the “lawful execution” element in a way that takes the issue from the jury. See State v. Anderson, 639 So.2d 609, 610 (Fla.1994). A jury instruction is valid “as long as the jury understands that it must decide that the officers were in fact performing the duty described.” Perry v. State, 861 So.2d 462, 464 (Fla. 1st DCA 2003) (citing Anderson, 639 So.2d at 610). In Anderson, the Florida Supreme Court held that “in those cases where the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, an instruction should be given to insure that the jury understands that it must decide the issue.” 639 So.2d at 610.

The jury instruction in this case was improper because it did not convey to the jury that it was to determine whether the trespass or narcotic investigation was lawful. Although defense counsel did not maintain that the arrest was unlawful, it did assert that the stop was unlawful and thus, the instruction should have made clear that the jury was to decide this issue. See id. By inserting the word “lawful” before “trespass” in the jury instruction, the instruction would have conveyed to the jury that it needed to determine that the investigation was lawful before it could find that officer Jozwick was executing a legal duty. See Campbell v. State, 812 So.2d 540, 544 (Fla. 4th DCA 2002) (holding that by omitting the word “lawful” before “arrest,” the jury instruction failed to clarify that the “arrest itself must have first been lawful”). Accordingly, the trial court’s failure to give the requested jury instruction constituted error.

We also conclude that the error in this case is reversible. Although not all erroneous failures to give a jury instruction constitute reversible error, the failure to give the requested instruction does constitute reversible error when it is established that: “(1) [t]he requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.” Campbell, 812 So.2d at 544 (citing Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001)). Here, the requested jury instruction correctly stated the applicable law, the facts supported giving the instruction because the lawfulness of the stop was a central issue in the case, and it was necessary to convey to the jury that it must decide that issue. Because each of the elements was established, the trial court’s failure to give the requested instruction constituted reversible error. Id.

Reversed.

WARNER and STEVENSON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Bruno ANDRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1403.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Rehearing Denied July 6, 2009.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Bruno Andre (Defendant) appeals his judgment and sentence after a jury found him guilty of, among other things, aggravated false' imprisonment. We reverse Defendant’s conviction for aggravated false imprisonment holding that it was fundamental error to convict Defendant of that charge where the State failed to present any evidence that the confinement of the child was without the consent of her parent or legal guardian. We find no merit to Defendant’s other arguments and affirm his convictions on the following charges: (1) luring or enticing a child under the age of twelve in violation of section 787.025, Florida Statutes (2006); (2) child abuse in violation of section 827.03(l)(b), Florida Statutes (2006); and (3) lewd or lascivious molestation — offender eighteen or older, victim twelve or younger in violation of section 800.04(5)(b), Florida Statutes (2006).

The relevant facts are that on January 3, 2006, Defendant and Mona Dosuede registered C.S. (the child) for elementary school. At Dosuede’s request, Defendant agreed to drive the child to school the following day. Dosuede testified that she was not the child’s biological mother but that she had raised the child since she was two years old. There was no evidence presented that Dosuede had legal custody of the child.

The next day, Defendant picked up the child to take her to school. Along the way, Defendant covered the child with a shirt and while stopped at a red light, unbuckled her pants and touched her vagina. He then informed her that they were going to go to a motel. Defendant pulled up to the motel around nine in the morning. The motel clerk observed Defendant drive up and watched as the child exited the vehicle and entered the motel room while Defendant remained outside. When the motel clerk approached Defendant and asked what he was doing with the little girl, Defendant informed him that he was waiting for the child’s mother. Suspicious that something was wrong, the motel clerk wrote down Defendant’s license plate number. When the child came out of the room, the motel clerk approached the child and asked her if she was Defendant’s daughter. She did not respond but instead got in Defendant’s vehicle. Defendant then left the motel and proceeded to drop the child off at her school. The motel clerk called the police, and Defendant was subsequently arrested.

On appeal, Defendant argues that the trial court erred in convicting him of false imprisonment of a child under age thirteen when the State failed to present any evidence that the confinement of the child was without the consent of her parent or legal guardian. He concedes that he failed to preserve this issue for appeal but contends that it is properly before this Court because failure to prove an essential element of the crime constitutes fundamental error. The State responds that it did prove that element by presenting evidence that: (1) Dosuede, although not the biological mother or legal guardian, raised the child for eleven years, provided for her care, and was married to the child’s natural father; and (2) Dosuede authorized Defendant to take the child to school and nowhere else.

“[W]ith two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.” F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The first exception occurs in death penalty cases, where review of the sufficiency of the evidence is mandated by the rule. Id. The second exception is triggered when “the evidence is insufficient to show that a crime was committed at all.” Id.; see, e.g., Vance v. State, 472 So.2d 734 (Fla.1985) (holding that the second conviction was “totally unsupported by the evidence” because section 790.10, Florida Statutes (1981) was violated only once in a single episode). “[A] conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.” Troedel v. State, 462 So.2d 392, 399 (Fla.1984); see Rodriguez v. State, 964 So.2d 833, 836 n. 1 (Fla. 2d DCA 2007) (“It is [ ] fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime.”); see, e.g., Alvarez v. State, 963 So.2d 757, 764-65 (Fla. 3d DCA 2007) (holding it was fundamental error to convict the defendant of the crime of carjacking when the victim was unaware of the theft — an element of the offense).

Section 787.02(l)(a), Florida Statutes (2006) defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” If the confinement is of a child under age thirteen, then it is against her or his will if it is “without the consent of her or his parent or legal guardian.” Section 787.02(b), Fla. Stat. (2006). While there is no precise definition of legal guardian, the Fifth District Court of Appeal in Cason ex rel. Saferight v. Hammock, 908 So.2d 512, 517 n. 2 (Fla. 5th DCA 2005), “found a definition of the term ‘legal guardianship’ in section 39.01(34), Florida Statutes (2003), which provides that the term ‘means a judicially created relationship between the child and caregiver which is intended to be permanent and self-sustaining and is provided pursuant to the procedures in chapter 744.’ ”

Our analysis of the issue and the result reached are constrained by the wording of section 787.02(3)(a), Florida Statutes (2006). Here, Dosuede testified that she was the child’s godmother and that she helped raise the child since she was two. She did not, however, testify that she had legal custody or guardianship of the child and no evidence was presented to that effect. Without such evidence, the State could not prove that the confinement was against the child’s will. Because the State failed to prove an essential element of the crime, it was fundamental error to convict Defendant of aggravated false imprisonment.

Accordingly, we reverse Defendant’s conviction for aggravated false imprisonment in violation of section 787.02(3)(a), Florida Statutes (2006).

Affirmed in part; Reversed in part.

WARNER and STEVENSON, JJ., concur.


author: PER CURIAM.

text:
    Stephen HERRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4825.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Rehearing Denied July 9, 2009.
    Stephen Herrington, Belle Glade, for pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant, Stephen Herrington, appeals an order denying his Rule 3.800(a) motion to correct sentence. This case involved a plea bargain as to multiple counts. Herrington was sentenced in accordance with a second written judgment entered at the time of sentencing, rather than in accordance with a prior judgment which found him guilty of a lesser included offense. His sentence would be illegal if the first judgment were controlling. However, we find that a factual dispute exists which cannot be resolved by a Rule 3.800 motion. Thus, we affirm.

In this case the defendant was charged by Information with Counts I, III and V, Burglary (Dwelling), Counts II and VI, Petit Theft and Count IV, Grand Theft. A plea conference was held on December 23, 1991, as to this and nine other cases. There is a transcript of this plea conference contained in the summary record as an attachment to both Exhibit J and Exhibit L to the state’s response. At the beginning of the plea conference the trial judge indicates that, as he understands it, “you intend to plead guilty as charged in each and every one of these matters.” Nobody disputed this characterization on the record. However, the court also references a plea sheet signed by the defendant. The signed plea sheet indicates that the defendant was pleading guilty only to the “lesser” charge of Burglary Conveyance as to count III. A “Judgment” dated December 27, 1991 reflects that the defendant was convicted as to count III of “burglary (conveyance),” a third degree felony.

On April 17, 1992, the defendant was adjudicated a habitual felony offender and sentenced to 30 years imprisonment as to Count I. For unexplained reasons a new “Judgment” was also entered on April 17, 1992, listing all the same convictions, except this time finding the defendant guilty of “Burglary Dwelling” as to Count III, a second degree felony. We have no transcript of this sentencing hearing.

The “Judgment, Sentence and Order Placing Defendant on Community Control II During Portion of Sentence” dated June 29,1992 describes the offenses in Counts I, III and V, as Burglary (Dwelling). As to Count III, the defendant was sentenced to Community Control II for a period of one year, followed by 29 years probation. This sentence was consecutive to the 30 years of imprisonment for Count I.

On February 9, 2007, the defendant filed the current motion to correct sentence, arguing that the sentence as to count III exceeded the ten-year statutory maximum for burglary (conveyance). The state responded, arguing that the written records were conflicting and that no transcripts still exist, so that relief should be denied. The trial court denied the motion.

Before the trial court, the state relied on Nielson v. State, 984 So.2d 587, 590 (Fla. 2d DCA 2008). That case involved a 3.800 motion which alleged that the face of a sentence was inconsistent with the trial court’s oral pronouncement, but the transcript of the sentencing proceeding could not be obtained. The second district stated:

As a general rule, sentencing issues that are addressed under rule 3.800(a) after the expiration of the period to consider issues under rule 3.850 must involve matters that render the sentence “illegal.” These issues are generally restricted to matters that can be established from the record without the need for any significant evidentiary proceedings. The proceedings contemplated by Rule 3.800(a) are not intended to resolve disputed factual conflicts between witnesses or within documents.

Id. The current defendant is relying on the written judgment entered closest in time to his guilty plea and the plea sheet discussed at that hearing. However, we have no transcript of the sentencing hearing at which the second judgment was entered, and even as to the change of plea hearing there was a factual conflict between the indication in the record that the defendant was pleading to the various counts as charged and the reference to the plea sheet, which showed only the lesser offense. Thus, the state is right that a factual dispute exists which cannot be resolved in a 3.800 motion.

The defendant argues that the second judgment violated his double jeopardy rights, but we find no authority that jeopardy attaches in a plea situation prior to sentencing.

Affirmed.

GROSS, C.J., FARMER and MAY, JJ„ concur.


author: ALTENBERND, Judge.

text:
    CITY OF MARCO ISLAND, Petitioner, v. David DUMAS, Respondent.
    No. 2D09-532.
    District Court of Appeal of Florida, Second District.
    May 22, 2009.
    Carla M. Barrow, Joseph H. Serota, and Laura K. Wendell of Weiss Serota Helf-man Pastoriza Cole & Boniske, P.L., Fort Lauderdale, for Petitioner.
    Donald P. Day of Berry, Day & McFee, P.A., Naples, for Respondent.
   ALTENBERND, Judge.

The City of Marco Island (the City) seeks a writ of mandamus to compel the circuit court to reinstate the City’s appeal from an order entered by the county court. We grant the petition because the notice of appeal was timely as to the final order entered by the county court.

The Marco Island City Ordinance 06-05 regulates the mooring of vessels in certain areas. David Dumas was cited in January 2007 for violating this ordinance because he allegedly moored a 42-foot motor yacht, the Kin Ship, for twelve hours within 300 feet of a seawall. The City commenced an enforcement proceeding in county court that is comparable to a misdemeanor charge.

Mr. Dumas responded to this proceeding with a motion challenging the constitutionality of the ordinance both facially and as applied. This motion is over twenty pages in length and presents his arguments in exceptional detail. It is not, however, a motion to dismiss the enforcement proceeding. Instead, it simply asks the county court to declare the ordinance unconstitutional. In many respects, it is essentially a request for declaratory relief filed within the enforcement proceeding.

On October 25, 2007, the county court entered an “Order on Defendant’s Motion to Declare Ordinance Unconstitutional” that declared parts of the ordinance unconstitutional. The order did not dismiss the proceeding. Apparently, the county court judge orally and incorrectly informed the City that the order was a final order. The City properly disagreed with the oral advice that it had received from the county court judge as to the finality of the order and, on November 26, 2007, at the City’s request the county court entered an order dismissing the charge against Mr. Dumas. Within fifteen days, the City filed a notice of appeal challenging the November 26 order.

Mr. Dumas responded to the appeal by filing a motion to dismiss, arguing that the order entered on October 25 was the final appealable order and not the order of dismissal entered in November. The circuit court granted the motion and the City has petitioned for a writ of mandamus requesting that this court compel the circuit court to reinstate the appeal.

The circuit court concluded that the October order was a final order because it left no judicial labor to be done “except the execution of the judgment.” It relied on McGurn v. Scott, 596 So.2d 1042 (Fla.1992), and Rollins Fruit Co., Inc. v. Wilson, 923 So.2d 516 (Fla. 2d DCA 2005).

In McGurn, the trial court entered an order entitled “final judgment” that reserved the right to award prejudgment interest. As the court stated: “Therefore, the issue before this Court is whether a trial court may issue a final appealable order while reserving jurisdiction to award prejudgment interest.” 596 So.2d at 1043. The court then explained: “It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment.” Id. Obviously, what the circuit court overlooked in this case is the fact that the October order did not expressly adjudicate the merits of the enforcement proceeding or dispose of the action; it merely entered a legal ruling as to an issue in the case. It is comparable to the order granting a motion to dismiss that this court held to be nonfinal in Rollins Fruit, 923 So.2d 516, which is the other case that the circuit court cited in support of its order of dismissal. It is also comparable to an order granting summary judgment, which is not appealable. See Cardiothoracic & Vascular Surgery, P.A. v. W. Fla. Reg’l, 993 So.2d 1060 (Fla. 1st DCA 2008).

The order entered in October was a nonfinal, nonappealable order. The City properly requested the county court to enter a final appealable order based on the reasoning of that order and it has filed a timely appeal from that order.

Petition for writ of mandamus granted with instructions to reinstate appeal from county court.

KELLY and KHOUZAM, JJ„ Concur.

      . Because the City filed the appeal within fifteen days, we are not required to decide whether such an appeal is criminal and must be filed within fifteen days, see Fla. R. App. P. 9.140(c)(3), or is civil and can be filed within thirty days, see rule 9.110(b).

      . A petition for writ of mandamus in this court is the appropriate vehicle to challenge the circuit court's dismissal of the City’s appeal. See Lombardo v. Haige, 971 So.2d 1037, 1039 (Fla. 2d DCA 2008).


author: KAHN, J.

text:
    MATT HOWARD BAIL BONDS, Appellant, v. ESCAMBIA COUNTY CLERK OF COURT, Appellee.
    No. 1D08-2581.
    District Court of Appeal of Florida, First District.
    May 22, 2009.

      Tony L. Henderson, Milton, for Appellant.
    Paula G. Drummond of Paula G. Drum-mond, P.L., Pensacola, for Appellee.
   KAHN, J.

Appellant, a bail bondsman in Escambia County, seeks review of a trial court order denying appellant’s motion to set aside a bond estreature. We reverse because an amended information filed in the underlying criminal case worked a material change to the bond contract.

Appellant posted a $50,000 bond on behalf of Cipriano Gongora, who had been arrested on charges of trafficking in cocaine, a first-degree felony, and possession of marijuana with intent to sell or deliver, a third-degree felony. The face of the bond indicates that Gongora was arrested for “poss cocaine, trafficking.”

Initially, the State Attorney filed a two-count information charging Gongora with: (1) conspiracy to traffic in cocaine in an amount over 400 grams, but less than 150 kilograms, a first-degree felony; and (2) conspiracy to sell, manufacture, deliver, or possess with intent to sell, manufacture, or deliver, cannabis, a third-degree felony. Several months later, and with appellant still on Gongora’s bond, the State filed an amended information in three counts, repeating the conspiracy to traffic in cocaine and the conspiracy to sell, manufacture, deliver, or possess with intent to sell, cannabis, as charged in the first information. This time, however, the State added a charge of trafficking in cocaine, another first-degree felony.

When Gongora failed to appear, the circuit court issued a Notification of Surety Bond Forfeiture directing estreature of the bond by appellant within sixty days. Appellant moved to set aside the bond estreature, urging that the State Attorney had now charged Gongora with an additional crime and that such change, made without appellant’s consent, constituted a material change to the bond contract and “absolved the Surety from liability on the contract.” The circuit court denied appellant’s motion, finding no substantial material change in the charges against Gongo-ra.

Because determination of the question of substantial change involves an issue of law, we review the matter de novo. See A-Alternative Release Bail Bonds v. Martin County, 882 So.2d 414 (Fla. 4th DCA 2004). A surety bond “is simply a three-party contract made by the state, the accused, and the surety, with the surety guaranteeing to the state that the accused will appear at subsequent proceedings.” Wiley v. State, 451 So.2d 916, 922 (Fla. 1st DCA 1984). If later actions by the State, although appropriate in the pending criminal matter, interfere with the surety’s right to control the defendant, a substantial breach of the surety contract occurs, and the surety is discharged. Fast Release Bail Bonds, Inc. v. State, 895 So.2d 448, 450 (Fla. 4th DCA 2005); Wiley, 451 So.2d at 922. Addition of a new criminal charge increases the risk from that to which the surety originally agreed, because “the likelihood of flight by a criminal defendant is much greater when an additional felony charge is added.” Am. Bankers Ins. Co. v. Monroe County, 644 So.2d 560, 561 (Fla. 3d DCA 1994).

Appellee argues the State added no new charges because the amended information only restated and clarified the original charges. Such a conclusion is apparent neither from the face of the amended information nor from the record. The amendment adds a trafficking count, but with a specific date of commission, in contrast to the original two conspiracy counts, which referenced date ranges. As appellant points out, under the first information, Gongora faced a maximum of thirty-five years’ imprisonment, with the possibility of a fifteen-year minimum mandatory term, on the single charge of conspiracy to traffic cocaine. On the amended information, however, Gongora faced the potential of another fifteen-year minimum mandatory, as well as another lengthy term of imprisonment. The record does not support a claim that the State would have been barred from seeking consecutive sentencing.

Under American Bankers Insurance Co., the additional felony charge materially changed the three-party bond contract and thus absolved the surety from liability on that contract. Accordingly, we REVERSE the order on review.

THOMAS, and ROBERTS, JJ., concur.


author: KHOUZAM, Judge.

text:
    Thomas J. BROWN and Pamela H. Brown, his wife, Appellants, v. Louis B. CARTER and Bonnie C. Carter, his wife, Appellees.
    No. 2D08-3993.
    District Court of Appeal of Florida, Second District.
    May 29, 2009.
    Rehearing Denied July 20, 2009.

      Thomas G. Long and Amy E. Stoll of Barnett, Bolt, Kirkwood, Long & McBride, P.A., Tampa, for Appellants.
    Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A., Tampa, for Ap-pellees.
   KHOUZAM, Judge.

Thomas J. Brown and Pamela H. Brown appeal a final judgment against them for nondisclosure of defects in a home they sold to Louis B. Carter and Bonnie C. Carter. Because no competent, substantial evidence supported the trial court’s finding that the Browns had knowledge of and failed to disclose defects materially affecting the value of the home, we reverse.

In 1997, the Browns remodeled their three-story Apollo Beach home. The contractor that did the remodeling work removed several interior walls on the second floor and installed three beams in the ceiling to add extra support. The Browns also built a pool and spa. During the installation of the pool, the pool contractor became concerned that the cutting of some cement underneath the house might create a structural problem and consulted with Samuel Greenberg, a structural engineer. Mr. Greenberg advised the pool contractor to install the pool at least five feet away from the footings. The Browns did not encounter any problems with the pool, and no work was done on the pool after its installation. However, approximately one year after the remodeling work was completed, the Browns noticed a hump in the third floor and a deflection in the ceiling of the second floor where the beams had been installed. The Browns did not fix the hump and deflection.

On May 2, 2002, the Carters entered into an offer and acceptance agreement to purchase the Browns’ home. The Carters scheduled a home inspection and an inspection by a structural engineer. The home inspection report noted that a pool had been installed and that the ceramic tile and marcite were in good condition. The structural engineer’s report indicated that there was a visible deflection in a beam that supported an upper floor at the rear of the home. The report also noted that the home had been remodeled and that a bearing wall had been removed from the rear of the home. Both reports were provided to the Carters.

On May 6, 2002, the Carters entered into a contract to purchase the Browns’ home for $925,000. Section L of the contract contained the following provision:

12. PROPERTY CONDITIONS DISCLOSURE: Seller warrants that there are no facts known to Seller materially affecting the value of the subject real property which are not readily observable by Buyer and/or which have not been disclosed to Buyer.

Section P of the contract, entitled SPECIAL, provided as follows:

The property being purchased by Buyer, including the dwelling, other im-provemtnes (sic), fixtures, appliances and personal property, is not new, and is being purchased “AS IS.” Buyer has had the property inspected by persons of Buyer’s choice, at Buyer’s expense, and has determined that the property is in acceptable condition for purchase. It is understood that the Buyer accepts the property “as is.” ... The Seller has no further responsibility or liability with respect to the condition of the property....

After moving into the home, the Carters discovered that the hump in the third floor and the deflection in the ceiling below had worsened and that the third floor was beginning to sag downwards. The Carters subsequently paid $307,102 to restore the structural integrity of the home. In August 2003, the Carters filed a complaint against the Browns alleging misrepresentation, promissory estoppel, and fraud in the inducement.

The trial court found that the hump in the floor and deflection in the ceiling were obvious and were disclosed to the Carters. However, the court determined that the Browns were liable under Johnson v. Davis, 480 So.2d 625 (Fla.1985), for failing to disclose the nature and extent of the work performed to install the pool. The court entered final judgment for the Carters and awarded them $307,102 in damages.

On appeal, the Browns contend that the evidence was insufficient to support a finding of liability under Johnson. The Browns also argue that the trial court erred in allowing the Carters to amend the pleadings to conform to the evidence by adding a claim concerning the nondisclosure of the details of the pool installation. We find that the trial court did not err in this respect because the issue was tried by consent. See Fla. R. Civ. P. 1.190(b). However, we agree that there was no competent, substantial evidence to support a finding that the Browns knew there was a defect with the pool that materially affected the value of the property.

In Johnson, the Florida Supreme Court held that “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.” 480 So.2d at 629.

Here, no evidence was presented to show that the Browns knew that the installation of the pool had caused a structural problem. Thomas Brown testified that he was aware that the pool installation involved “some serious cutting of some cement underneath the house” and the pool contractor was concerned that this “might create a structural problem.” (Emphasis added.) He further testified that the pool contractor consulted with a structural engineer but that he had no personal knowledge of what was done as a result of the consultation. The Browns did not encounter any problems with the pool from 1997 to 2002, when they lived in the home.

Further, there was no competent, substantial evidence to support a finding that the installation of the pool actually affected the structural integrity of the home. Mr. Greenberg opined that the construction of the pool did not affect the structural integrity of the home because “[t]he pool was kept a significant distance away from the supporting members of the house.” The Carters’ structural engineer, Russell Ferli-ta, stated that the removal of the load-bearing wall caused the structural problems in the rear of the house while the original construction caused the structural problems in the front of the house.

Arnold Hutchinson, a contractor hired by the Carters to fix the structural problems, was the only witness who indicated that the installation of the pool might have compromised the foundation of the house. Mr. Hutchinson testified that the installation “likely” involved excavating below the footings for a column that held up the rear of the house. He also speculated that the pool contractor might have improperly compacted the dirt while digging the pool. However, Mr. Hutchinson admitted that the problems could have been caused by “a number of reasons,” including the remodel and the removal of existing walls, and “could have been the sum of all components.” Thus Mr. Hutchinson’s testimony was insufficient to support a finding that the installation of the pool caused structural damage to the house.

“Johnson does not convert a seller of a house into a guarantor of the condition of the house.” Slitor v. Elias, 544 So.2d 255, 258 (Fla. 2d DCA 1989). As such, the trial court erred in finding that the Browns were obligated to disclose the nature and extent of the work performed to install the pool. Accordingly, we reverse the judgment on appeal and remand for the entry of judgment in favor of the Browns.

Reversed and remanded.

WALLACE, J., and CASE, JAMES R., Associate Senior Judge, Concur.


author: GRIFFIN, J.

text:
    John Charles GRAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3486.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2009.
    Mark L. Horwitz and Cassandra A. Snapp, of Law Office of Mark L. Horwitz, P.A., for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ON MOTION FOR CERTIFICATION

GRIFFIN, J.

After having denied the petition for writ of certiorari, we now have this case on a Motion for Certification of a Question of Great Public Importance, to wit:

In determining a defendant’s motion to dismiss on the grounds of immunity from prosecution under § 776.032 Florida Statutes, what is the procedure the trial court must follow, what is the correct allocation of the burden of proof, and what standard of proof must a party meet in order to carry the burden allocated to him or her?

The question arises in light of two recent decisions by our sister courts. In Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), the First District Court of Appeal concluded that the right to immunity from criminal prosecution afforded in section 776.031(1), Florida Statutes (2007) (commonly known as the “stand your ground” law) is to be determined by the court after an evidentiary proceeding in which the criminal defendant has the burden of proof by a preponderance of the evidence. Recently, the Fourth District has disagreed with the First District in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009). In Velasquez, the panel majority ruled that Florida Rule of Criminal Procedure 3.190(c)(4) is the proper device for testing this immunity and that whenever the State traverses and properly disputes the facts contained in the defense motion, the motion must be denied and the issue determined at trial.

In this proceeding, Defendant has taken a view different from that of both courts. Defendant urges that because the burden remains with the State to prove its case, including the absence of self-defense, the proper approach is to have the court make the determination at a proceeding much like the one Peterson requires, except that the burden at such a proceeding would be on the State to establish that Defendant is not entitled to immunity.

In our prior opinion, which was issued virtually simultaneously with Velasquez, we adopted the procedure described in Peterson. Now, with the benefit of Velasquez, we see no reason to alter our opinion. In the case before us, the trial court conducted both a Peterson-type hearing, as well as a rule 3.190(c)(4) hearing, and denied Defendant’s claim of immunity in both. The court explained that Defendant did not meet his burden of establishing his claim of immunity by a preponderance of the evidence.

We elect not to certify the question posed at this time, although it appears from the number of cases already resulting in opinions and the differing views expressed about how the new statutory immunity should be determined, that this is a question that eventually will require a definitive answer from our high court. In this case, we will take it up, if raised, on plenary appeal. Accordingly, the Motion to Certify is denied.

MOTION DENIED.

SAWAYA and MONACO, JJ., concur.

      . See also Dennis v. State, - So.3d -, 2009 WL 605356 (Fla. 4th DCA 2009).


text:
    BAY COUNTY and Laguna Beach Properties, LLC, Appellants, v. Brenda HARRISON and West Beaches Neighborhood Defense Fund, Inc., Appellees.
    No. 1D08-1203.
    District Court of Appeal of Florida, First District.
    May 29, 2009.
    Rehearing Denied July 10, 2009.

      Dan R. Stengle, Gary K. Hunter, and Jere Earlywine, Tallahassee, for Appellant Laguna Beach Properties, LLC; and Terrell K. Arline, Panama City, for Appellant Bay County.
    Douglas M. Wyckoff, DeFuniak Springs, for Appellee Brenda Harrison; and Brad E. Kelsky, Plantation, for Appellee West Beaches Neighborhood Defense Fund, Inc.
   KAHN, J.

Appellants Bay County and Laguna Beach Properties, LLC, challenge the circuit court’s determination that a development order authorizing construction of a large beachfront resort is inconsistent with the Bay County Comprehensive Plan. For the reasons that follow, we reverse the order.

BACKGROUND

Laguna Beach is a community in western Bay County heavily populated with older, single-family homes dating from the 1930s and 1940s, as well as mobile homes and trailers rented or used for transient purposes. The court below received evidence of economic distress and crime in the area.

In 1999, Bay County amended the Bay County Comprehensive Plan (“Plan”) with a focus on future uses of land in Laguna Beach. Provisions of the Plan, as amended, designated several beachfront areas, including parts of Laguna Beach, as a “seasonal/resort” category of land use. By Plan terms, such category would “provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists.” Such areas consist of “concentrations of accommodations and businesses that are used for nonresidential, tourist-oriented purposes.” “Allowable uses” of land in the “seasonal/resort” area include: “[b]each houses, cottages, condominiums, townhouses, apartments or other similar multi-family structures, motels, hotels, lodges, restaurants, convenience stores, retreats, and lounges, bars, and other similar uses and public utilities.” Under Plan amendments, the county sought to create a tourism-oriented area and chose Plan language reflective of such goal: “Year-round permanent residences should not be located in this area. Lounges and bars are permitted only as an accessory use to multifamily structures, motels, hotels, or restaurants.” “No more than fifteen (15) dwelling units per acre” are permitted in a “seasonal/resort” area. The Plan reflects the county’s intent to transform Laguna Beach from an older seaside community to a tourist district. Neither the validity nor the wisdom of Bay County’s Plan is at issue in the present case. Instead, our focus is upon a proposed resort development project.

In 2005, Bay County approved a development proposal submitted by appellant Laguna Beach Properties, LLC, to build “a resort condominium” called “the Mayan.” According to the development order (“DO”), the resort would include “279 living/rental units,” built in 22 stories on slightly less than two acres. As a condition of the DO, the county imposed concurrency requirements, among them a bond from the developer to ensure the infrastructure improvements that the Mayan will necessitate.

Appellee Brenda Harrison lives near the site of the proposed resort and opposes construction of the Mayan. Harrison and appellee West Beaches Neighborhood Defense Fund, Inc. (“Fund”), an organization of concerned Laguna Beach homeowners, initially appealed the DO to the Bay County Commission. After that challenge failed, appellees filed the present lawsuit in the circuit court. Their complaint alleged, in relevant part, that the DO authorizing construction of the Mayan was inconsistent with the Plan. Appellees sought injunctive and declaratory relief.

During a five-day trial, the circuit court received evidence concerning characteristics of the Mayan, resulting traffic, and related matters. A county planner testified that, because the condominium units in the Mayan would resemble hotel rooms more than residential apartments, the Plan’s density restrictions would not apply to the Mayan. At the conclusion of the trial, the circuit court concluded the DO was inconsistent with the Plan. The court considered that the two-acre resort would include 279 resort condominium units in an area where the Plan authorized only fifteen dwelling units per acre. In the final judgment granting injunctive relief and voiding the DO, the judge reasoned:

Two hundred seventy nine “transient” occupied units has [sic] a density nine and one-half times that permitted for resident “occupied” structures. If 16 residential units per acre is [sic] a violation of the purposes and goals of the Comprehensive Plan, 279 transient units on less than two acres surely must also violate them.

The decretal portion of the order voided the DO and enjoined the county from reissuing an order “unless the Comprehensive Plan is amended to definitively permit such a development of that property.” At oral argument, able counsel for appellees conceded that the trial court’s application of the Plan’s density restriction to transient units would effectively outlaw almost all hotels in a “seasonal/resort” district such as the Laguna Beach area.

ANALYSIS

Bay County and Laguna Beach Properties have jointly appealed the order. Although we agree with the circuit court that the Fund had standing to maintain its claims in this case, we reverse the final judgment because the Plan’s density restriction for dwelling units does not apply to the resort construction at issue. We conduct our review de novo, as no disputed facts play into our decision. See Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000).

By statute, a local government may not authorize any development that would be inconsistent with the applicable comprehensive plan. § 163.3194(l)(a), Fla. Stat. (2005). An aggrieved party may challenge a DO as inconsistent with a comprehensive plan by filing a consistency challenge in circuit court. § 163.3215(3), Fla. Stat. (2005). In a chapter 163 consistency proceeding, a court will find “consistency” between a DO and the extant comprehensive plan

if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan....

§ 163.3194(3)(a), Fla. Stat. (2005).

Under the statute, a reviewing court will evaluate consistency “by reference to ‘the objectives, policies, land uses, and densities and intensities in the comprehensive plan,’ itself.” Buck Lake Alliance, Inc. v. Bd. of County Comm’rs of Leon County, 765 So.2d 124, 127 (Fla. 1st DCA 2000) (quoting § 163.3194(3)(a), Fla. Stat. (1997)). Courts construe a plan’s silence as to a particular land use as indicative of planners’ intent not to authorize that particular use. See Dixon, 774 So.2d at 766.

As a preliminary matter, we note that appellants have challenged the Fund’s standing to join as a plaintiff in the action below. Section 163.3215(3), Florida Statutes (2007), permits “[a]ny aggrieved or adversely affected party” to bring a consistency challenge. “[T]he term ‘aggrieved or adversely affected party’ means any person ... that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan....” § 163.3215(2), Fla. Stat. (2005). Because section 163.3215 is a remedial statute affording aggrieved parties the right to enforce comprehensive plans, courts liberally construe the statute to grant standing to a broad class of plaintiffs. See S.W. Ranches Homeowners Ass’n, Inc. v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987); see also Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (explaining that “[sjection 163.3215 enlarged the class of persons with standing to challenge a development order as inconsistent with the comprehensive plan,” and holding statute must be construed liberally). The Fund demonstrated below that the proposed development would adversely affect a substantial number of its individual members, and we do not disturb the circuit court’s conclusion that the Fund had standing to join this action.

In resolving the merits, however, the court erred by finding the DO at issue inconsistent with the Plan because the condominium units would exceed the Plan’s 15-dwelling-unifi-per-acre density restriction. By all accounts, the Mayan would be the substantial equivalent of a hotel, an allowable use of land in Laguna Beach. Accordingly, the project will not be comprised of “dwelling units” as that phrase appears in the Plan’s density restriction.

Under the DO, the Mayan would be a “resort condominium.” Such a use is regulated by chapter 509, Florida Statutes (2007), and defined as “any unit or group of units in a condominium, cooperative, or timeshare plan which is rented more than three times in a calendar year” for less than a month at a time. § 509.242(l)(c), Fla. Stat. (2005). Chapter 509 describes “resort condominiums” as “public lodging establishments,” along with hotels and motels. § 509.242(1), Fla. Stat. (2005). Accordingly, resort condominiums, like hotels, are not residences or dwellings, but are permanent structures that accommodate temporary visitors. See generally Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir.2008) (explaining that, “as the administrative definition of ‘dwelling unit’ suggests, the house, apartment, condominium, or co-op that you live in is a ‘residence,’ but the hotel you stay in while vacationing at Disney World is not”).

Some land use plans in Florida distinguish between restrictions on the density of residential dwellings and restrictions on the density of hotel- and resort-type units. See, e.g., City of Cocoa Beach v. Vacation Beach, Inc., 876 So.2d 719, 720 n. 2 (Fla. 5th DCA 2004) (reciting density restrictions in municipal zoning ordinance as follows: “No part of the City of Cocoa Beach shall be zoned to a residential density greater than ten (10) dwelling units per acre for permanent occupancy dwellings, or twenty-eight (28) units per acre for transient lodging establishments (hotels and motels).”); Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So.2d 379, 380 (Fla. 5th DCA 1984) (discussing “density cap” in local zoning ordinance that imposed different restrictions on residences and hotels). The Plan in this case, however, does not include such a distinction.

Although not addressing lodging establishments or hotels in terms of density, the Plan imposes two density requirements: a high “population” minimum of 5,000 people per square mile, and a “housing” restriction of no more than 15 “dwelling units” per acre. The density requirement utilized by the trial court is the “housing” restriction. The term “housing” carries a dimension of permanence: “housing” is “shelter; lodging; dwellings provided for people.” Webster’s New Collegiate Dictio nary 550 (5th ed. 1973). “Dwelling” is “a building or other shelter in which people live: house.” Id. at 352. The county’s planners evidently appreciated the permanency that the term “housing” conveys; in other sections, the Plan refers to “housing” in the context of county residents’ permanent homes. Both the terms “dwelling” and “housing” in the Plan evoke a sense of permanency — they are places where “people live” — that could not reasonably be ascribed to a class of temporary or transient accommodations, such as the Mayan, secured by tourists on their Gulf beach vacations. Conspicuously, Bay County chose not to impose a density cap for lodging establishments, reflecting the county’s intent not to limit the density of public lodging establishments such as the Mayan. That planners, when they wish, may indeed impose different density limitations for residential and non-residential property supports this conclusion. See, e.g., Vacation Beach, Inc., 876 So.2d at 720 n. 2; Innkeepers Motor Lodge, Inc., 460 So.2d at 380.

Considering next “ ‘the objectives, policies, land uses, and densities and intensities in the comprehensive plan,’ itself,” Buck Lake Alliance, 765 So.2d at 127, the DO was, in fact, consistent with the Plan. The Plan describes the “seasonal/resort” land use category as comprising “[a]reas with concentrations of accommodations and businesses that are used for non-residential, tourist-oriented purposes.” The category’s purpose is “[to] provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominately seasonal or temporary visitors and tourists.” Examples of allowable uses include “condominiums,” “hotels,” and “similar uses.” The Plan expressly discourages year-round permanent residences. The Plan thus envisions an area friendly to “non-residential, tourist-oriented purposes” frequented by “seasonal or temporary visitors and tourists.”

The intended use of the Mayan — to offer resort accommodations to tourists — conforms in material respects with the purposes of the Plan and the types of uses envisaged for “seasonal/resort” developments. If “hotels” are allowable uses, as they are in the Plan, then a resort condominium with the characteristics of the Mayan must be, as well. The Mayan’s condominium units are not “dwelling units.” The trial judge erred in finding the DO inconsistent with the Plan on the basis of a density restriction that does not apply to the Mayan.

CONCLUSION

The face of the Bay County Comprehensive Plan bespeaks Bay County’s intent to transform the Laguna Beach neighborhood to an environ primarily touristic in character. The DO in this case fits quite neatly with the Plan. We agree that the Fund had standing to join as a plaintiff below, but we REVERSE the final judgment in all other respects and REMAND with instructions to enter judgment for appellants.

DAVIS and CLARK, JJ., concur.


text:
    MORRIS PUBLISHING GROUP, LLC, d/b/a, The Florida Times-Union, Petitioner, v. STATE of Florida and Tyrone Hartsfield, Respondents.
    No. 1D09-1474.
    District Court of Appeal of Florida, First District.
    June 1, 2009.

      Timothy J. Conner and Zachary R. Potter of Holland & Knight, LLP, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent State of Florida. No appearance for Respondent Tyrone Hartsfield.
   PER CURIAM.

Morris Publishing Group, LLC, publisher of The Florida Times-Union newspaper, seeks review of an order of the Circuit Court for Duval County which denied access to certain judicial records in the matter of State of Florida versus Tyrone Hartsfield. We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.100(d); see also Media Gen. Operations, Inc. v. State, 933 So.2d 1199 (Fla. 2d DCA 2006); WESH Television, Inc. v. Freeman, 691 So.2d 532 (Fla. 5th DCA 1997).

Because Hartsfield is accused of the attempted murder of a member of the Jacksonville Jaguars professional football team, the case has been the subject of considerable public interest. At a hearing on the issue of the defendant’s entitlement to pretrial release, both parties relied on a lengthy audiotape of a conversation between Hartsfield and another individual, and a partial, preliminary and unofficial transcript of that audiotape prepared by the attorneys and their staffs. A Times-Union reporter requested copies of the tape and transcript and counsel for the newspaper appeared at a subsequent hearing and argued for their release. The court denied the records request, finding that certain statements of the defendant were admissions or confessions which are exempted from disclosure pursuant to section 119.071(2)(e), Florida Statutes (2008). Further, the court concluded that the records should remain confidential to ensure the defendant’s right to a fair and impartial jury in Duval County. Petitioner argues that the court erroneously equated an admission by the defendant with a confession, and failed to conduct the proper analysis on the fair trial issue required by Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.1982).

It is well-settled that the courts are not agencies under Florida’s Public Records Act, Chapter 119, Florida Statutes, and therefore the Act does not govern access to judicial records. Justice Coalition v. First Dist. Court of Appeal Nominating Comm’n, 823 So.2d 185 (Fla. 1st DCA 2002). Instead, Florida Rule of Judicial Administration 2.420 governs public access to the records of Florida’s judicial branch. Subdivision (c)(7) of rule 2.420 exempts from public access court records which are made confidential “under the Florida and United States Constitutions and Florida and federal law.” The question of whether some or all of the records are exempt as confessions is one for the circuit court to resolve under the rule. We do not reach that question, however, because of our disposition of the petition on other grounds.

Rule 2.420(f)(2) provides that “[rjequests for access to records shall be in writing and shall be directed to the custodian.” The records of the circuit court proceedings before us do not reflect that Morris has complied with this writing requirement. Although denial of relief for this reason may appear to place form over substance, the presiding circuit judge twice stated at a hearing that the court could best consider petitioner’s arguments if reduced to writing. We therefore conclude that the instant petition should be denied because the trial court correctly denied the public records request, albeit for the wrong reason. Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). We decline to address petitioner’s arguments on the merits at this time, finding that they should be reconsidered by the circuit judge under rule 2.420 prior to review by this court.

PETITION DENIED.

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


author: HAZOURI, J.

text:
    Constance A. HERRILKA, Appellant, v. Christine P. YATES, Appellee.
    No. 4D08-1727.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Brian R. Dolan and James D. Camp, Jr., of Camp & Camp, P.A., Fort Lauderdale, for appellant.
    Christine P. Yates and Jeffrey M. Fauer of Tripp Scott, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

This appeal arose from ongoing litigation regarding the administration of the Estate of Joseph M. Herrilka, the decedent. At issue for the lower tribunal was whether the Appellee, Christine P. Yates, as the Curator of Joseph’s Estate, had a right to place a lien on Joseph’s homestead real property for attorney’s fees and costs incurred by her while acting on behalf of the Estate. The Appellant, Constance A. Herrilka, who is the alleged second wife of Joseph and joint owner of the homestead property, argues that the trial court erred by allowing the imposition of the lien because Yates failed to meet the statutory requirements of section 733.608, Florida Statutes (2008). We agree and reverse.

Yates was appointed as Curator of the Estate when, after Joseph’s death, Kathleen Piascik petitioned for, and was appointed as, the personal representative of the Estate. Upon learning of Kathleen’s appointment, Constance petitioned the trial court for Kathleen’s removal and to have herself appointed as personal representative. The trial court resolved the dispute by removing Kathleen as personal representative and appointing Yates, an attorney, as Curator for the Estate. After her appointment, Yates performed legal services on behalf of the Estate. The services were for the administration of the Estate as a whole. The services were not conducted for the specific purpose of preserving, insuring, and protecting the homestead property. Also, neither party contests the real property’s status as homestead property, which Constance currently occupies.

Pursuant to a motion by Yates, the trial court, under section 733.608, Florida Statutes (2008), imposed a lien on the homestead property. The pertinent parts of section 733.608 are:

(2) If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and. protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.
(3) If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. The debt shall include any amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the personal representa-five in the court proceeding provided for in this section.

§ 733.608(2)-(3) (emphasis added).

The trial court’s decision to impose the lien pursuant to section 733.608 was improper because, in accordance with the plain meaning of the statute, Yates failed to meet its requirements. This is because: (1) Yates has not, and cannot, take possession of the property, as it is occupied by an “interested person;” and (2) the fees incurred by Yates for which the lien was imposed were not incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property.

With respect to section 733.608, subsection (3) allows for imposition of a lien on “property referenced in subsection (2).” § 733.608(3). The property referenced in subsection (2) is “protected homestead” that “is not occupied by a person who appears to have an interest in the property” which the personal representative has “take[n] possession of ... for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property.” Id. § 733.608(2). For purposes of probate litigation, the Florida Legislature has defined an “interested person” as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Id. § 731.201(23). In order to impose a lien, section 733.608(3) also requires that the “expenditures and obligations incurred,” which include “fees and costs,” for which the lien is imposed were incurred for the purpose of “preserving], maintaining], insuring], or protecting]” the homestead property.

In this case, the trial court erred in imposing the lien because the homestead property was never taken into possession, either legally or factually, by Yates, as Constance still occupies it. This failure to take possession negates a claim for the imposition of the lien because, to do so, section 733.608 first requires that the personal representative take possession of the property “for the limited purpose of preserving, insuring, and protecting it.” § 733.608(2). Furthermore, Yates cannot legally take possession of the property because it is “occupied by a person who appears to have an interest in the property,” id., i.e., Constance. Constance is an “interested person” because, by potentially being Joseph’s surviving spouse and joint owner of the property, as well as being the property’s current occupant, she is a “person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Id. § 731.201(23).

Even if Yates met the threshold possession requirement of section 733.608, the lien was still not properly imposed. This is because the expenses the lien represents were incurred for legal services having to do with the administration of the Estate. The services, as required by section 733.608(3), were not incurred for the specific purpose of preserving, maintaining, insuring, or protecting the homestead property.

Accordingly, the imposition of the lien was improper because it failed to meet the requirements of section 733.608. We, therefore, reverse its imposition.

Reversed.

FARMER and GERBER, JJ., concur.

      . A matter pending in the lower court is the validity of Constance's marriage to Joseph, as there is a question regarding the dissolution of his previous marriage to Kathleen Piascik.

      . Yates, as Curator, is subject to the same rights and responsibilities under the law as a personal representative, as Florida Probate Rule 5.122(g) states that "[cjurators shall be subject to the provisions of these rules and other applicable law concerning personal representatives.”


text:
    Sandra Sue BECKLEY and Michael Beckley, Appellants, v. BEST RESTORATIONS, INC., Appellee.
    No. 4D09-249.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Scott J. Topolski and Eric J. Neuman of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for appellants.
    Lee D. Sarkin and Drew M. Levitt, Boca Raton, for appellee.
   DAMOORGIAN, J.

Sandra and Michael Beckley (the Defendants) timely appeal the trial court’s non-final order denying their cross-motion to quash service of process and non-final order granting Best Restorations, Inc.’s (the Plaintiff) motion for default. We reverse the trial court’s order denying the Defendants’ cross-motion to quash service of process because section 48.031(6), Florida Statutes (2008) was not a valid method for the Plaintiff to serve the Defendants. By doing so, we deem moot whether the order granting the motion for default is an ap-pealable non-final order.

On March 18, 2008, the Plaintiff brought a complaint against the Defendants alleging that they failed to pay for repair and restoration work on their home located in Deerfield Beach, Florida. A summons was issued for the Defendants listing the Deer-field Beach home address. The Plaintiff unsuccessfully attempted to serve the Defendants at that address. Through the use of a private investigator, the Plaintiff discovered that the Defendants owned a house in Knoxville, Tennessee, and service was attempted at the Knoxville address. The process server in Knoxville discovered that the Defendants were in Florida so the Plaintiff once again attempted to serve the Defendants at their Deerfield Beach home. The Florida process server’s affidavit reflected that nobody was living at the Deer-field Beach home and that it was up for sale.

The Plaintiff discovered that the Defendants maintained a UPS store mailbox in Sevierville, Tennessee. On November 10, 2008, the Plaintiff delivered copies of an Alias Summons and Complaint to the owner of the UPS store in Sevierville. Thereafter, the Plaintiff moved for default, arguing that the Defendants had been served at the mailbox address, pursuant to section 48.031(6), Florida Statutes (2008), and had failed to file or serve any paper in response. The Defendants opposed the motion and filed a cross-motion to quash service, arguing that the conditions for private mailbox service were not met. The trial court denied the Defendants’ cross-motion to quash service.

The issue in this case is whether section 48.031(6), Florida Statutes (2008) is a permitted method of service under the facts of this case. This is a question of law subject to a de novo standard of review on appeal. Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007).

Section 48.031(6), Florida Statutes (2008) reads as follows:

If the only address for a person to be served, which is discoverable through public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location.

The Plaintiff argues that substitute service by private mailbox service under section 48.031(6), Florida Statutes (2008) is proper, provided that a plaintiff has first made a diligent effort to serve a defendant at any address or addresses discoverable through public records. The Defendants counter that the statute, by its very terms, applies only to those instances where the only address for a defendant, which is discoverable through the public records, is a private mailbox.

The plain language of the statute leads us to conclude that substitute service on the Defendants pursuant to section 48.031(6), Florida Statutes (2008) is limited to those instances where the only address discoverable through the public records to effect service is a private mailbox maintained by the party to be served. See Cruz v. Petty Transp., LLC, No. 6:08-cv-498-Orl-22KRS, 2008 WL 54059828 (M.D.Fla. Aug. 27, 2008); Kramer v. MRT, LLC, No. 07-80931-CIV, 2008 WL 877211 (S.D.Fla. Apr.1, 2008); see also Rinker Materials Corp. v. City of North Miami, 286 So.2d 552, 553 (Fla.1973) (stating that the rules of statutory construction instruct that statutes must be given their plain and obvious meaning and it must be assumed that the legislature knew the plain and ordinary meaning of words).

Here, private mailbox service pursuant to section 48.031(6), Florida Statutes (2008) was not an appropriate method of substitute service on the Defendants because the Plaintiff did not prove that the only address for the Defendants, which was discoverable through public records, was a private mailbox. See Henzel v. Noel, 598 So.2d 220, 221 (Fla. 5th DCA 1992) (citing Carlini v. State Dep’t of Legal Affairs, 521 So.2d 254 (Fla. 4th DCA 1988)) (noting that the party seeking to invoke the jurisdiction of the court has the burden to prove the validity of service of process). The record reflects that the Plaintiff discovered at least one address through public records at which to serve the Defendants, and unsuccessfully attempted to serve them at that address.

Accordingly, we reverse the trial court’s order denying the Defendants’ cross-motion to quash service of process and remand with instructions for the trial court to quash service of process. Our conclusion does not, however, preclude the Plaintiff from utilizing other avenues for service of process which might be available to it under the laws of this state.

Reversed and remanded with instructions.

POLEN and STEVENSON, JJ., concur.


author: BROWNING, J.

text:
    Jamal KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2966.
    District Court of Appeal of Florida, First District.
    June 3, 2009.
    Nancy A. Daniels, Public Defender; and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Giselle Denise Lylen & Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   BROWNING, J.

Jamal Kelly (Appellant) appeals the trial court’s decision to revoke his sex-offender probation without making a finding, pursuant to section 948.30(l)(g), Florida Statutes (2006), that the obscene materials, which Appellant was found to have viewed, “are relevant to the offender’s deviant behavior pattern.” Appellant’s sole ground for relief is Kasischke v. State, 991 So.2d 803 (Fla.2008), which was issued six weeks after Appellant’s revocation hearing. Concluding that the trial court’s failure to make a determination as to whether the materials are relevant to Appellant’s deviant behavior pattern 1) was not preserved by a contemporaneous, specific objection at the revocation hearing, 2) is not a “sentencing error” cognizable in a Florida Rule of Criminal Procedure 3.800(b)(2) motion, and 3) does not constitute fundamental error, we affirm the revocation order.

In October 2006, Appellant entered a plea of no contest to three counts of an information charging lewd or lascivious molestation of a person 12 years of age or older but less than 16 years old, while Appellant was 18 years of age or older; and contributing to the delinquency or dependency of two different children. The trial court sentenced him to six months in the county jail, to be followed by three years of sex-offender probation. One of the standard conditions of Appellant’s probation (designated as Condition (40)) is taken verbatim from section 948.30(l)(g) and states:

Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

The trial court heard the State’s two witnesses, two probation supervisors, who testified that at the commencement of sex-offender probation, Appellant received complete instructions regarding the conditions to which he was subject, including the proscription from viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating materials. In a periodic, previously announced visit to Appellant’s residence, an officer found several empty DVD covers on the floor beside the television in the living room and on a bookshelf in the same room. The DVD’s themselves were not found in any areas of the residence where the officers were authorized to search. The covers depict men and women engaging in various sexual acts that the trial court deemed obscene. Relying on Appellant’s testimony, defense counsel argued that the DVD covers were not Appellant’s, and that Appellant did not know of their presence on the bookshelf (which contained numerous other DVD covers of non-proscribed materials) and on the floor of the living room.

The trial court heard testimony that Appellant rented a room in the residence and shared the common living spaces with his mother, stepfather, and several siblings; that the stepfather owned the obscene DVD covers in question and kept the DVD’s secured in his bedroom beyond Appellant’s reach; and that Appellant had admitted the officers into the residence through the front door leading into the living room where the covers were found. Exercising its duty to resolve conflicts in the evidence, the trial court found that Appellant had “viewed” the empty DVD covers, which lay in plain sight on the floor beside the television in the living room and could be identified as obscene materials on first observation. Because competent, substantial evidence supports the finding that Appellant viewed these obvious obscene, pornographic, or sexually stimulating materials, we find no abuse of discretion in this determination. Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974); Varner v. State, 395 So.2d 583 (Fla. 5th DCA 1981).

At the conclusion of the revocation hearing, the trial court orally announced that the DVD covers are obscene and that the substantial, willful violation of Condition (40) justified revocation of sex-offender probation. The court never addressed the qualifying language in section 948.30(l)(g) limiting the prohibition of obscene, pornographic, or sexually stimulating materials to those “that are relevant to the offender’s deviant behavior pattern.” Defense counsel never asked the court to make such a finding, nor was a contemporaneous, specific objection made at the revocation hearing when the judge announced that revocation was warranted. F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (acknowledging the general “preservation” requirement to make a timely, specific objection in the trial court, except where the error is fundamental); Castor v. State, 365 So.2d 701, 703 (Fla.1978) (setting out the “contemporaneous objection” requirement and explaining the general rule that a reviewing court will not consider a point raised for the first time on appeal).

Appellant filed a notice of appeal and subsequently filed a timely rule 3.800(b)(2) motion in the trial court asserting that the recently decided opinion of the Supreme Court of Florida in Kasischke compelled the trial court to set aside the revocation order and to reinstate probation because the DVD covers depicting adult sexual acts are not “relevant” to Appellant’s particular deviant behavior, which he described as molesting an underage girl. In Kasischke, the supreme court applied the rule of lenity and held that the qualifying language relating to “relevance” in section 948.03(5)(a)(7), Florida Statutes (1999)— which was renumbered section 948.30(l)(g) — qualifies each of the prohibitions in the statute. 991 So.2d at 815. Because the trial court did not file an order ruling on Appellant’s motion within 60 days from the filing of the motion, the request for relief is considered denied pursuant to rule 3.800(b)(1)(B). Moses v. State, 844 So.2d 686 (Fla. 4th DCA 2003).

On direct appeal, Appellant essentially reiterates the argument advanced in his rule 3.800(b)(2) motion: he did not violate Condition (40), in that the DVD covers depicting various adult sexual acts are not relevant to his act of molesting an underage girl. In response, the State asserts that this specific issue is not preserved for appellate review, in that defense counsel never made a timely, specific objection at the revocation hearing when counsel had an ample opportunity to do so. Jackson v. State, 983 So.2d 562, 573 (Fla.2008).

“[Mjost trial court errors are subject to the contemporaneous objection rule.” Id. at 567-68. It is well-established that “rule 3.800(b) was not intended to circumvent rules requiring contemporaneous objections or to substitute for ineffective assistance of counsel claims.” Id. at 573. By its express language, rule 3.800(b)(2) allows a defendant to file in the trial court a motion to correct “a sentencing error.” See id. at 565. “[R]ule 3.800(b) is intended to permit defendants to bring to the trial court’s attention errors in sentence-related orders, not any error in the sentencing process.” Id. at 572; see Saintelien v. State, 990 So.2d 494, 502 (Fla.2008) (Cantero, J., concurring in result only); Brown v. State, 994 So.2d 480, 481 (Fla. 1st DCA 2008). The alleged error about which Appellant complains relates to the sufficiency of proof that a violation of probation occurred. This is not an error “related to the ultimate sanctions imposed.” Jackson, 983 So.2d at 573; see Brown, 994 So.2d at 481. As the supreme court has made clear, referring to rule 3.800(b)(2): Jackson, 983 So.2d at 573. The trial court’s failure to address and determine the issue of “relevance” is a matter to which defense counsel could have made a timely, specific objection at the revocation hearing, thereby affording the court an opportunity to rectify the purported error. Fierro v. State, 10 So.3d 149 (Fla. 3d DCA 2009). In this instance, “the interests of justice are better served by applying th[e] [contemporaneous objection] rule to challenges to the sufficiency of the evidence.” F.B., 852 So.2d at 230. Neither of the two exceptions to the “preservation” requirement explained in F.B., 852 So.2d at 230-31, applies here. Such a claim does not involve a sentencing error cognizable in rule 3.800(b)(2) and in Jackson.

The rule was never intended to allow a defendant (or defense counsel) to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under rule 3.800(b).

Therefore, because Appellant’s claim does not involve a sentencing error, we consider it on appeal, but “only under the stringent fundamental error standard.” Jackson, 983 So.2d at 565. Appellant does not argue that fundamental error occurred, nor does the record support a finding of fundamental error in the trial court’s omission. Accordingly, we AFFIRM the revocation order. Our decision is without prejudice to Appellant’s right to seek collateral relief pursuant to Florida Rule of Criminal Procedure 3.850 in a timely motion for postconviction relief.

AFFIRMED.

HAWKES, C.J, and VAN NORTWICK, J., concur.


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    WHITE CONSTRUCTION COMPANY, INC., Appellant, v. Timothy JONES, Appellee.
    No. 1D08-1669.
    District Court of Appeal of Florida, First District.
    June 3, 2009.

      George E. Spofford, IV, and Aaron W. Proulx, of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Appellant.
    Christopher T. McRae and David J. Metcalf of McRae & Metcalf, P.A., Tallahassee, for Appellee.
   PER CURIAM.

This case arises from a 1992 agreement by which Timothy Jones licensed White Construction Co. to mine limerock deposits under Jones’ property. In the present lawsuit litigated in the circuit court, each party alleged the other party breached the agreement. We affirm the final judgment for Jones and reject Jones’s argument on cross-appeal regarding White’s failure to mine the land continuously.

The trial court correctly determined that the applicable statute of limitations, section 95.11(2)(b), Florida Statutes (1997), barred White’s counterclaim for breach in this case. According to White’s own pleadings, arguments, and evidence at trial, the company’s case against Jones rested on the theory that Jones breached the mining agreement in 1997 — not that Jones anticipatorily repudiated his contractual obligations, as White argues on appeal. White’s cause of action for breach accrued in 1997; the statute of limitations barred the company’s claim of breach some ten years later. See Abbott Labs., Inc., v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000) (discussing elements of breach).

We also reject Jones’s argument on cross-appeal that the trial court erred “by failing to find as a matter of law that White has an implied duty to mine with reasonable diligence.” We ascertain that Jones actually seeks review of a jury instruction, as his brief cites only a jury instruction on the subject as the juncture at which the trial court committed error, and not denial of a motion for directed verdict or for summary judgment. We find no abuse of discretion in the instruction at issue, which, almost word for word, tracked the extant rule in Florida that, when “the real consideration for the lease is totally dependent upon the commencement and continuance of mining operations by the lessee,” the lessee incurs an implied duty to mine. Deerfield Rock Corp. v. McClellan, 121 So.2d 822, 823 (Fla. 2d DCA 1960). Accordingly, as other jurisdictions have held, when the consideration is not “totally dependent upon the commencement and continuance of mining operations,” as it was here, the lessee or licensee incurs no duty to mine continuously. See id.; accord Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 388 (1986); Clark v. Louisville-Lafayette Coal Co., 96 Colo. 420, 43 P.2d 386, 387 (1935); Haeffner v. A.P. Green Fire Brick Co., 76 S.W.2d 122, 125 (Mo.1934); Weatherly v. Am. Agric. Chem. Co., 16 Tenn.App. 613, 65 S.W.2d 592, 598-99 (1933); Coal Creek Mining & Mfg. Co. v. Tenn. Coal, Iron & R.R. Co., 106 Tenn. 651, 62 S.W. 162, 168 (1901).

AFFIRMED.

KAHN, THOMAS and ROBERTS, JJ., concur.


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    Adam Christopher ZELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0995.
    District Court of Appeal of Florida, First District.
    June 4, 2009.
    Rehearing Denied July 28, 2009.

      Adam Christopher Zellers, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Smith v. State, 951 So.2d 965 (Fla. 1st DCA 2007).

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


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    Carlos BOYD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2157.
    District Court of Appeal of Florida, First District.
    June 4, 2009.
    Rehearing Denied July 23, 2009.
    Carlos Boyd, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


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    Steven Charles HANNUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5280.
    District Court of Appeal of Florida, Second District.
    June 5, 2009.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   DAKAN, STEPHEN L., Associate Senior Judge.

Steven Charles Hannum seeks review of his judgment and sentence for carrying a concealed firearm. We affirm Hannum’s conviction without further discussion. Because the trial court improperly considered certain factors when imposing sentence, we reverse Hannum’s sentence and remand for resentencing before a different judge.

Hannum was charged with carrying a concealed firearm in violation of section 790.01, Florida Statutes (2006). The State’s evidence established that Hannum called 911 during an altercation with a man at an apartment complex. Hannum informed the operator that he had a gun. When the responding officer arrived on the scene, he saw two men standing eight to twelve feet apart. The officer approached with his gun drawn and asked the two men to show their hands. Han-num raised one hand, and the other he kept on the telephone pressed to his ear. The other man raised his hands, and he informed the officer that Hannum had a gun. Hannum then told the officer that the gun, which the officer testified was concealed by Hannum’s shirt, was in his waistband. Hannum informed the officer that he had a concealed weapons permit but admitted it had expired.

Hannum testified that the other man was threatening people in a common area of the apartment complex, throwing beer bottles and yelling repeatedly, “I’m gonna kill you.” Hannum went into his apartment, dialed 911 from his cell phone and retrieved his loaded 45-Derringer. Han-num confronted the other man in the hall and pulled back the hammer on the gun. At that point, Hannum saw that his connection to 911 failed, so he retreated to the parking lot. The call eventually connected, but he had to redial several times because he kept losing the signal. When he heard the police arriving, Hannum put the gun in a holster attached to his waistband. Hannum explained that he did not want the police to find him holding a gun. He did not put the gun on the ground because he was afraid the other man would retrieve it. Hannum denied that his shirt covered the gun. A jury convicted Han-num as charged, and he proceeded to sentencing.

Hannum’s sentencing scoresheet provided for a sentencing range of a nonstate prison sanction to five years. When given the opportunity to speak at sentencing, Hannum maintained his innocence and continued to place blame on the other man involved in the altercation. He repeatedly asserted that he handled the altercation appropriately. The court responded to these assertions as follows:

Having now sat through all the testimony, especially Mr. Hannum, your testimony, it is very much alarming to me the seriousness, and I guess Mr. Han-num’s responses being less than candid and the way in which he testified are very troubling to me.
And especially in light of the disregard for the laws concerning gun use here and some of his flippant responses are very alarming to me.
You know, here’s the thing, Mr. Han-num. It’s really troubling that you take no responsibility for your own personal actions in this. I didn’t hear you take personal responsibility on the stand. I don’t hear you taking any personal responsibility of your own actions that night, and that’s the troubling part to me.
You know what’s interesting, though, Mr. Hannum to me is that your testimony is that you were still trying to call 911 even when the police were right there in front of you.
Okay. [Defense counsel], do either one of you have anything else you’d like to say? I mean, I’d like to give Mr. Han-num the full opportunity to say whatever he would like to be said, although the longer he talks, perhaps the worst [sic] it’s getting.
So would either one of you — is there anything else you would like to say in mitigation about any of the other facts that didn’t come into the trial or anything else?
I think it’s best if you all speak for your client.

Although the State recommended probation and Hannum had no prior record, the court imposed a sentence of twenty-four months in prison. The court did not offer any basis to explain its rejection of the State’s recommendation other than that quoted above. Hannum sought review of his judgment and sentence in this court.

During the course of this appeal, Han-num filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) in which he argued that the trial court abused its discretion in imposing sentence based upon his refusal to take personal responsibility. The court ruled that it had not sentenced Hannum on that basis but had relied on

the inconsistencies of the testimony that I heard that day, the verbal and nonverbal demonstrations, and demonstrations of Mr. Hannum’s gun expertise as he described both physically — a physical description and verbal description of his abilities with cross-draws was part of it, in addition to information about the victim that came from the police officer’s testimony.

On appeal, Hannum argues that the court improperly considered his failure to take responsibility and the above factors in imposing sentence.

Initially, we must point out that rule 3.800(b)(2) is not the proper mechanism for preserving for appeal the issue of whether the court improperly considered certain factors in imposing sentence. See Jackson v. State, 983 So.2d 562 (Fla.2008); Brown v. State, 994 So.2d 480, 481 (Fla. 1st DCA 2008). Rule 3.800(b)(2) was not intended to correct any errors that occur during the sentencing process. Jackson, 983 So.2d at 572. Instead, rule 3.800(b)(2) “may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process — that is, orders related to the sanctions imposed.” Id. at 574. Any error in the court’s consideration of certain factors in imposing sentence is an error in the sentencing process, not an error in the sentencing order. See Brown, 994 So.2d at 481. Therefore, the court erred in ruling on the merits of Hannum’s rule 3.800(b)(2) motion, and its order is a nullity.

This determination does not end our inquiry into the propriety of the court’s consideration of certain factors in imposing sentence, however. Such an error in the reasoning of the judge is cognizable on direct appeal if it is fundamental. Id. (citing Jackson, 983 So.2d at 574). “ ‘[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.’ ” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (alteration in original) (quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)). We must therefore consider whether the trial court’s comments at sentencing were so erroneous as to be equivalent to a denial of due process.

It is impermissible for a trial court to consider a defendant’s assertions of his innocence and refusal to admit guilt in imposing sentence. See Bracero v. State, 10 So.3d 664, 665-666 (Fla. 2d DCA 2009); Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004). In this case, Hannum maintained his innocence throughout sentencing and the trial court twice remarked that it was troubled by Hannum’s failure to take responsibility for his actions. The more Hannum asserted his innocence, the more frustrated the court became, eventually remarking that “the longer [Hannum] talks, perhaps the worst [sic] it’s getting.” The court even told defense counsel it would be best if Hannum did not make any more statements.

Moreover, the court also improperly considered the truthfulness of Hannum’s testimony at trial. See City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985); Eltaher v. State, 777 So.2d 1203, 1205 (Fla. 4th DCA 2001). A court may not rely on a defendant’s lack of truthfulness in imposing sentence because it “would create a catch-22 — the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial.” Del Per-cio, 476 So.2d at 205.

The trial court’s improper consideration of the fact that Hannum maintained his innocence in his testimony at trial and at sentencing and refused to take responsibility for his actions was equivalent to a denial of due process. See Bracero, 10 So.3d at 665-666. Although the court offered additional reasons to justify its sentence in ruling on Hannum’s rule 3.800(b)(2) motion, the court’s order on the motion is a nullity. Regardless, the court’s original statements at sentencing were not ambiguous in any manner and expressly addressed these improper factors. Accordingly, the trial court committed fundamental error in imposing sentence. We therefore reverse Hannum’s sentence and remand for resentencing before a different judge. See id.

Affirmed in part, reversed in part, and remanded.

FULMER and WHATLEY, JJ., Concur.

      . We recognize that this court has previously suggested that rule 3.800(b)(2) was the proper mechanism for preserving such a challenge to a sentence. See, e.g., Harley v. State, 924 So.2d 831, 832 (Fla. 2d DCA 2005). However, the supreme court has since clarified the scope of rule 3.800(b)(2), in Jackson v. State, 983 So.2d 562 (Fla.2008), thus requiring reconsideration of our previous holdings on the matter of what constitutes a sentencing error correctable under this rule.


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    James D. OWNBY, etc., Appellants/Cross-Appellees, v. CITRUS COUNTY, Florida, Citrus Springs, etc., et al., Appellees/Cross-Appellants.
    Nos. 5D07-4102, 5D08-44.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.

      Jill H. Bowman and J. Andrew Meyer of James, Hoyer, Newcomer and Smiljanich, P.A., Tampa, for Appellants/Cross-Appel-lees.
    Charles Wachter and Hala A. Sandridge of Fowler White Boggs Banker P.A., Tampa, and Robert Battista, Inverness, for Appellees/Cross-Appellants.
   PER CURIAM.

In this consolidated appeal, Appellant James Ownby challenges the trial court’s denial of class certification. Appellants Fernando and Edith Monroy challenge the denial of a subsequent motion for the Mon-roys to intervene and be substituted as class representatives. The cross appeal was abandoned. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(2)(vi).

Finding no abuse of discretion, we affirm the trial court’s determination that class certification should be denied because the proposed class representative failed to establish that he would adequately represent the putative class. However, we do conclude that the trial court abused its discretion in denying the motion to intervene. Intervention is ordinarily liberally allowed absent some valid reason for denial. Department of Children and Family Services v. Brunner, 707 So.2d 1197, 1198 (Fla. 1st DCA 1998). Here, the trial court gave no reason for denying the intervention and none is apparent to us. The case met all the criteria for class certification except the adequacy of the proffered representative. The intervening parties were members of the very large, putative class. Although the litigation had been pending for some time, the case had not been set for trial, and there is no indication that the intervention would delay the proceeding.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY and LAWSON, J.J., and COBB, W., Senior Judge, concur.


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    STATE of Florida, Appellant, v. Steven LUXENBURG, Appellee.
    No. 2D08-2985.
    District Court of Appeal of Florida, Second District.
    June 5, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee.
   ALTENBERND, Judge.

The State of Florida appeals the trial court’s order withholding adjudication and placing the defendant, Steven Luxenburg, on a seven-day term of “court-supervised” probation. Because court-supervised probation is not a sanction recognized under Florida law, we reverse the order withholding adjudication and remand for further proceedings.

On May 29, 2008, Mr. Luxenburg appeared before the court for trial. At that time, the trial judge was presiding over an unrelated trial that had begun the previous day and which was expected to continue for at least another day. Mr. Luxenburg’s Criminal Punishment Code scoresheet provided for any nonstate prison sanction, but Mr. Luxenburg was not amenable to the State’s offer of a withhold of adjudication, probation, and court costs. At the court’s suggestion, Mr. Luxenburg entered an open plea of no contest to his two charges. The court, over the State’s objection, then placed Mr. Luxenburg on a seven-day term of “court-supervised” probation, which was to terminate once Mr. Luxen-burg paid his court costs.

Probation is a sanction authorized upon a court’s entry of an adjudication of guilt or a withhold of adjudication. See § 948.01(2), Fla. Stat. (2007). Section 948.001(5) defines probation as “a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as provided in s. 948.03.” Section 948.01(1) explains that “[i]f the court places the defendant on probation or into community control for a felony, the department shall provide immediate supervision by an officer employed in compliance with the minimum qualifications for officers.” Nothing within chapter 948, which governs probation and community control, allows a judge to personally supervise probationers.

In Phillips v. State, 455 So.2d 656, 657 (Fla. 5th DCA 1984), the court addressed a somewhat analogous disposition. There, the trial court imposed prison sentences but suspended execution of the sentences and released the defendant onto various court-imposed conditions. The Fifth District reversed, explaining that the court “may not ... release the defendant on conditions, without formally placing him on probation under the supervision of the Department of Corrections.” Id.

Thus, the disposition Mr. Luxen-burg received was not lawful. The State raised a timely objection below and may properly challenge this illegal disposition on direct appeal. Forshee v. State, 579 So.2d 388, 389 (Fla. 2d DCA 1991) (reversing illegal sentence on direct appeal). We accordingly reverse the order withholding adjudication. On remand, the parties may agree to any disposition authorized by the Florida Statutes, but “the state ... is not bound to accept a sentence [for which] it did not bargain.” Id.; see also Tucker v. State, 864 So.2d 580, 581 n. 1 (Fla. 2d DCA 2004).

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.