author: SENTERFITT, ELIZABETH, Associate Judge. PADOVANO, J.,

text:
    William R. CREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4703.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.
    Rehearing Denied Feb. 4, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   SENTERFITT, ELIZABETH, Associate Judge.

William R. Crews appeals the denial of several motions to dismiss prior to the entry of his no contest plea to fourteen felonies. We affirm in part and reverse in part.

Crews formerly worked as a teacher at Deane Bozeman School in Bay County, Florida. According to the amended information, while a teacher, Crews engaged in sexual activity with several students. He was charged with sexual activity with a child (two counts), lewd and lascivious molestation (three counts), lewd and lascivious exhibition (four counts), and showing obscene material to a minor (five counts). He moved to dismiss eight of the fourteen charges filed against him. After these motions were denied, Crews entered a no contest plea reserving the right to appeal the denial of'these motions. Pursuant to an agreement, he was adjudicated guilty as to all counts and sentenced to twenty years.

On appeal, Crews argues the trial court erred in denying the motion to dismiss count six of the amended information. Count six of the amended information charged:

William R. Crews, between June 2004 and June 2006, in the County of Bay and State of Florida, did unlawfully engage in sexual activity with J.E., a child 12 years of age or older but less than 18 years of age, while William R. Crews was in a position of familial or custodial authority over J.E., in that William R. Crews did perform oral sex on J.E. by placing J.E.’s penis in his mouth, contrary to Florida Statute 794.011(8)(b). (1 DEG FEL).

(Bold added). Crews moved to dismiss this first degree felony on the ground that he did not have custodial or familial authority over the victim at the time the oral sex was committed. In support of dismissal, appellant cited Hallberg v. State, 649 So.2d 1355 (Fla.1994).

In his deposition, the victim of count six, J.E., described his encounters with Crews. While in the 7th grade, J.E. was asked to go to a car show with Crews. After the show, Crews invited J.E. to a storage unit where he stored a car and also kept a television and DVD player. According to J.E., Crews would play pornography on the DVD player; he had sex “toys” in the unit as well. This pattern was repeated and served as a prelude to Crews’ sexual offenses. Eventually, Crews began driving J.E. to and from school, despite the fact that the child’s grandparents, who were also his guardians, distrusted Crews. They did not give appellant any authority over J.E. The interaction between Crews and J.E. continued into the child’s eighth grade year, when Crews was one of his teachers. Then, on one occasion in the summer between J.E.’s eighth and ninth grades, or early in the ninth grade year, Crews took J.E. to Crews’ residence and an incident of oral sex occurred, as described in count six. The State admitted, in its traverse to the motion to dismiss count six, the following from Crews’ motion to dismiss:

(5) At all times material, J.E. lived with his grandparents. His grandparents did not know that he was going to the storage shed; J.E. kept his grandparents from knowing that he went to the storage shed; J.E.’s grandparents never gave Defendant the authority to take him to the storage shed; J.E.’s grandmother did not like Defendant; J.E.’s grandmother never gave Defendant authority to do anything with J.E.; and J.E.’s grandparents did not want him to have anything to do with Defendant.
(7) J.E. testified that the factual allegations of Count VI concerning oral sex occurred in Defendant’s house. (See deposition of J.E., page 29). This was the last incident between J.E. and Defendant.
(8) The factual allegations of Count VI concerning oral sex did not occur on school property; did not occur during a school activity; and did not occur during a school extracurricular activity.

There is no argument by the State that Crews was in familial authority with J.E. As to the question of whether Crews was in custodial authority at the time of the sexual encounter alleged in count six, the defense below argued that no such custodial authority could be said to exist because the encounter occurred away from school grounds and was unconnected with a school activity. As the incident occurred in the summer or early in the ninth grade, Crews was not one of J.E.’s teachers at the time.

In Hallberg v. State, 649 So.2d 1355 (Fla.1994), the Florida Supreme Court held that “a teacher, without any teaching responsibility or extracurricular activity supervisory authority over a child during a summer recess, is not in a position of custodial authority” for the purposes of the statute which forbids sexual activity with a child by a person in familial or custodial authority. Thus, “teachers are not, by reason of their chosen profession, custodians of their students at all times, particularly when school is recessed for the summer.” Id. at 1857. The activity between the victim and the defendant in Hallberg:

did not occur during the school year or on school premises. They did not occur in connection with the activities of a recognized extracurricular event such as band or drama club. Mr. Hallberg went to the home of S.S. in the middle of summer vacation. Although the parents of S.S. were generally aware that this man wanted S.S. to help him with a history project during the summer, these visits were not scheduled with her parents’ knowledge or consent. He simply showed up at the front door with a textbook and talked his way inside the house when only S.S. was at home.

649 So.2d at 1357 (quoting from J. Alten-bernd’s concurring and dissenting opinion, Hallberg v. State, 621 So.2d 693, 705-06 (Fla. 2d DCA 1993)). Further, “[i]t is clear S.S.’s parents did not place Hallberg in custodial control and authority over their daughter.” Id. at 1357-58.

The trial court, in denying Crews’ motion to dismiss count six, held that Hall-berg is distinguishable because “the acts between the defendant [and J.E.] occurred during the school year (but off campus) when the defendant had teaching authority over [J.E. and others] as students in his class.” (Bold added). The highlighted passage is contrary to the facts as admitted by the State in its traverse to the motion to dismiss. As noted above, the sexual activity between Crews and J.E. as alleged in count six occurred away from school, at a time when Crews was not the victim’s classroom teacher, and was unconnected to a school activity. Given the admitted facts regarding the conduct at issue in count six, reversal is required under Hallberg.

Crews also challenges the denial of his motions to dismiss counts two through five and seven through ten. His basis for seeking dismissal of these counts was the claim the statute of limitations, as stated in section 775.15(2), Florida Statutes, had expired and that the State improperly utilized section 775.15(12)(b), to extend the period of permissible prosecution. This statute provides:

(12) If the period prescribed in subsection (2) ... has expired, a prosecution may nevertheless be commenced for:
(b) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he or she leaves public office or employment, or during any time permitted by any other part of this section, whichever time is greater.

The term “misconduct in office” is not defined in the statute or in any case law interpreting this provision. Crews has argued that the criminal offenses for which he has been convicted do not constitute “misconduct in public office” as intended by this statute. On the authority of LaMorte v. State, 984 So.2d 548 (Fla. 2d DCA 2008), the trial court disagreed and denied the motions to dismiss. We agree with the trial court and affirm the denial of the motions to dismiss counts two through five and seven through ten.

In LaMorte, the defendant was a teacher and swim coach at a public high school who engaged in sexual activity with two students. He was convicted of sexual battery by a person in custodial authority, attempted sexual battery by a person in custodial authority, and lewd, lascivious or indecent act upon or in the presence of a child. Like appellant in the instant case, the defendant in LaMorte argued that the charges against him were barred by the applicable statute of limitations; the State argued that the time for prosecution was extended by virtue of the “misconduct in public office,” section 775.15(3)(b). The trial court agreed as did a majority of the reviewing court. Like the majority in La-Morte, we hold that section 775.15(3)(b) may apply to the type of offenses committed by Crews while he was indisputably a public school teacher.

Accordingly, we affirm all of the convictions except for count six; the conviction for count six is reversed, and the cause is remanded for entry of an order of acquittal as to this count and the vacation of the corresponding sentence.

BENTON, J., concurs; PADOVANO, J., concurs in part and dissents in part with written opinion.

PADOVANO, J.,

concurring in part and dissenting in part.

I agree that Hallberg v. State, 649 So.2d 1355 (Fla.1994), requires reversal of the denial of the motion to dismiss count six. As to the affirmance of the denial of the motions to dismiss counts two through five and seven through ten, I respectfully dissent and would certify a conflict with LaMorte v. State, 984 So.2d 548 (Fla. 2d DCA 2008).

As Judge Altenbernd reasoned in his dissent in LaMorte, section 775.15(12)(b), Florida Statutes does not define the phrase “misconduct in office.” We do not know whether the legislature meant to use the phrase in a broad sense to refer to any government employee, or in a narrow sense to include only those employees who hold an “office” as defined in the state constitution or the state laws. The narrow construction makes more sense to me as I do not think there is any valid reason to treat public employees differently from private employees.

At the very least, the statute is ambiguous, and I would resolve the ambiguity in favor of the defendant pursuant to the rule of lenity. See Kasischke v. State, 991 So.2d 803, 814 (Fla.2008) (“[a]ny ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.”) (quoting State v. Byars, 823 So.2d 740, 742 (Fla.2002)).

Accordingly, I would reverse the denial of the motions to dismiss counts two through five and seven through ten, certify a conflict, and remand for further proceedings.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    BAC HOME LOANS SERVICING, INC., etc., Appellant, v. Mary Gamarra de HEADLEY and Todd Headley, Appellees.
    No. 3D12-1560.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2013.
    Rehearing Denied Feb. 13, 2014.

      McGuire Woods LLP, and R. Eric Bilik, Jeffrey S. York, Sarah F. Holladay-Tobias and Emily Y. Rottmann, Jacksonville, for appellant.
    Bruce Jacobs & Associates, P.A., and Bruce Jacobs; Orshan, Lithman, Seiden, Ramos, Hatton, Huesmann & Fajardo, LLP, and Robert P. Lithman, Coral Gables, for appellees.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”; or “(4) offer evidence that the lawyer knows to be false.... ” R. Regulating Fla. Bar 4-3.3(a)(1), (4). Despite the clear and unambiguous directive of Rule 4-3.3(a), counsel representing the defendants, Mary Gamar-ra de Headley and Todd Headley (“the Headleys”) in this foreclosure action, made material misrepresentations in the Head-leys’ motion for final judgment, resulting in the issuance of a final judgment that granted relief which was not pled. Because the due process rights of BAC Home Loans Servicing, Inc., f/k/a Countrywide Home Loans, Inc. (“BAC”), were violated, and the trial court committed fundamental error, we reverse.

The salient facts are as follows. In 2006, Mrs. Headley executed and delivered a promissory note, and the Headleys executed a mortgage on the subject property, securing payment of this promissory note. By February 2008, Mrs. Headley had defaulted on the promissory note, and BAC filed its foreclosure action in October 2008. The Headleys filed a one-page answer devoid of any affirmative defenses, and on January 25, 2010, BAC was granted a summary judgment of foreclosure.

In April 2010, the trial court vacated the final judgment of foreclosure entered in favor of BAC, and thereafter, the Head-leys filed an amended answer. The amended answer raised the single affirmative defense of “unclean hands,” and alleged six counterclaims against BAC and seven crossclaims against six new cross-claim defendants. The Headleys, however, did not serve any of the crossclaim defendants and have not otherwise pursued their crossclaims. When BAC failed to respond to the counterclaims alleged by the Headleys in their amended answer, the Headleys obtained a default on their counterclaims and thereafter filed a motion for a default final judgment. This motion and the trial court’s rulings on the motion are the subject of this appeal.

Specifically, the Headleys’ motion for entry of a final judgment, filed by counsel for the Headleys, noted that BAC had failed to file a responsive pleading tu their crossclaims or counterclaims and that a default had been entered as to their counterclaims against BAC. In this motion, the Headleys and their counsel specified that they were not seeking any monetary damages against BAC, but were, instead, seeking the equitable relief they had requested in their counterclaims. Specifically, the Headleys’ motion for entry of final judgment stated: “The Defendants, by virtue of this motion, are not seeking at this time the granting of monetary damages against the Plaintiff [BAC] but are merely seeking specific in rem relief requested in Defendants’ counterclaim including equitable relief quieting title to real property.” (emphasis added).

Relying on these representations, that the Headleys’ counterclaims specifically requested in rem relief and equitable relief quieting title to the property, the trial court entered an extraordinary order on May 9, 2012, granting “in rem” relief as to the Headleys’ counterclaims; declaring the mortgage and promissory note “null and void,” “cancelled,” and “satisfied”; and ordering that the subject property be declared free of all encumbrances and liens, and that the Headleys be deemed the rightful owners of the property. The trial court further ordered BAC to surrender the original note and mortgage to the trial court for their immediate cancellation and satisfaction.

The representations made by the Head-leys and their counsel in the motion for entry of a final judgment were, in fact, misrepresentations, as the Headleys’ counterclaims never sought “specific in rem relief’ or “equitable relief quieting title to real property” as their motion claimed. Their counterclaims merely sought “damages, costs, reasonable attorney’s fees, and such other relief as the court deems just and proper .... ”

It is elementary that although a party against whom a default has been properly entered admits the truth of the well-pleaded allegations of the complaint or the counterclaims, the damages which may be awarded may only include the damages specifically sought. Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231, 1233 (Fla. 1st DCA 1995); Freeman v. Freeman, 447 So.2d 963, 964 (Fla. 1st DCA 1984) (“A defendant against whom a default is entered admits only the well-pleaded facts and acquiesces only in the relief specifically prayed for. The award of relief not sought by the pleadings is error.”) (citations omitted).

As the courts of this state have repeatedly held, a trial court lacks jurisdiction to hear and determine matters that were not the subject of proper pleadings and notice. See Mullne v. Sea-Tech Constr., Inc., 84 So.3d 1247, 1249 (Fla. 4th DCA 2012); Carroll & Assocs., P.A. v. Galindo, 864 So.2d 24, 28 (Fla. 3d DCA 2003); In re Estate of Hatcher, 439 So.2d 977, 980 (Fla. 3d DCA 1983); Fine v. Fine, 400 So.2d 1254, 1255 (Fla. 5th DCA 1981). “To allow a court to rule on a matter without proper pleadings and notice is vio-lative of a party’s due process rights.” Carroll & Assocs., 864 So.2d at 29.

The entry of a default judgment which provides relief that exceeds the scope of the pleadings constitutes fundamental error. Hooters, 655 So.2d at 1235.

Adequate notice is a fundamental element of the right to due process. A litigant may choose to suffer a default, for whatever reason, and suffer the consequences. However, the litigant should be entitled to anticipate the consequences that reasonably flow from the allegations of the complaint.... Any new admittee to the Bar who engages in civil trial practice learns quickly from his or her peers, or upon the first appearance before the trial court for entry of a judgment following default, that “you cannot get more than you asked for in the complaint.”

Id.; see also Verizon Bus. Network Servs., Inc. v. Dep’t of Corrs., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008) (holding that a denial of due process constitutes fundamental error, which may be challenged for the first time on appeal); Bank One, N.A. v. Batronie, 884 So.2d 346, 348-49 (Fla. 2d DCA 2004) (holding that lack of jurisdiction is a fundamental error that may be raised for the first time bn appeal).

In Mullne, the Fourth District found that the default judgment issued by the trial court was void because the trial court was without jurisdiction to award relief that was not requested by the complaint. 84 So.3d at 1249. Similarly, in Carroll & Associates, this Court reversed the portion of the summary judgment that granted relief not pled. 864 So.2d at 28-29.

Aside from the misrepresentations made in the Headleys’ motion for final judgment, where they claimed that the relief they were requesting — in rem relief including equitable relief quieting title— was specifically pled in their counterclaims, they argue on appeal that the final judgment issued by the trial court should nevertheless be affirmed because the “wherefore” clauses of their counterclaims sought “such other relief as the court deems just and proper under the circumstances.” However, such boilerplate requests do not-provide meaningful notice, see Cent. Fla. Council v. Rasmussen, Case No. 6:07-cv-1091-Orl-19GJK, 2010 WL 1258070, at *8 (M.D.Fla. Mar. 29, 2010), and certainly did not provide BAC with notice that if it failed to answer the Head-leys’ counterclaims to BAC’s foreclosure action, the trial court could and would declare the mortgage and promissory note satisfied, order the subject property to be freed of all encumbrances and liens, and declare the defaulting Headleys the rightful .owners of the property. The counterclaims specifically seek monetary damages. They do not request or even suggest that nullification, cancellation, or satisfaction of the note and mortgage was being sought.

By specifically seeking monetary damages, the Headleys elected their remedy, thereby affirming or ratifying their contracts with BAC (the mortgage and note). See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 313 (Fla.2000) (“A damages claim ... affirms the contract, and thus ratifies the terms of the agreement.”). Thus, any redress that may be available to the Headleys based on their counterclaims is limited to monetary damages (offset of course by their failure to pay on their note since 2008 despite reaping the advantages associated with their possession of the property throughout their default), or rescission. See Bliss & Laughlin Indus., Inc. v. Malley, 364 So.2d 65, 66 (Fla. 4th DCA 1978).

Lastly, we briefly address the Headleys’ argument that despite their failure to specifically request the relief granted by the trial court in their counterclaims, by asserting “unclean hands” as an affirmative defense they invoked the trial court’s equitable jurisdiction, and thus the relief granted was lawful. Affirmative defenses and counterclaims are, however, separate and distinct terms. See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991) (“[Cjounterclaims and affirmative defenses are separate and distinct terms. A counterclaim is a cause of action that seeks affirmative relief, while an affirmative defense defeats the plaintiff’s cause of action by a denial or confession and avoidance.”). While the party against whom a default judgment is entered is deemed to admit only the well-pled facts of the complaint or counterclaim, affirmative defenses are automatically deemed denied as a matter of law and no relief can be granted for the failure to respond to a defense. Fla. R. Civ. P. 1.110(e).

In conclusion, we reverse the inexplicable and extraordinary final judgment entered in this foreclosure action by the trial court because the trial court was without jurisdiction to grant relief not pled by the Headleys in their counterclaims, and remand for a determination of damages, if any. We also remind counsel for the Headleys of his duty of candor to the tribunal. Not only did he file a misleading pleading, which led the trial court to err, he compounded the error by defending an indefensible appeal.

Reversed and remanded.

      . No payments have been made on the subject note since Mrs. Headley defaulted in February of 2008.


author: ALTENBERND, Judge.

text:
    Charles LEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2163.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Rehearing Denied Jan. 30, 2014.

      Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Charles Lee appeals his sentence for attempted first-degree murder, which was imposed on resentencing following the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). On resen-tencing, the trial court sentenced Mr. Lee to forty years’ incarceration with a twenty-five-year minimum mandatory term. We affirm.

On the evening of November 21, 1999, Mr. Lee was on a street and got into a disagreement with two people who were in a van attempting to purchase cocaine. The nature of the disagreement is not entirely clear, but there is evidence that Mr. Lee thought he was owed forty dollars. Mr. Lee threatened to shoot the driver if he drove away. When the driver attempted to leave, Mr. Lee carried through with his threat. He shot the driver, who sustained permanent, disabling injuries. Mr. Lee was fifteen years old at the time of these events.

The State filed an information charging Mr. Lee as an adult with attempted murder in the first degree. The information alleged that he “did attempt to kill and murder and inflict upon [the victim] mortal wounds by shooting with a firearm.” The testimony at trial included testimony from the treating physician about the gunshot wound and the extent of the injury. The jury returned a verdict finding Mr. Lee guilty of attempted first-degree murder with a firearm as charged in the information.

Judge Maynard F. Swanson conducted the original sentencing hearing on April 20, 2001. The presentence investigation (“PSI”) at that time recommended an adult sanction and specifically a life sentence. Although the scoresheet permitted a sentence as short as 92.1 months’ imprisonment, it was undisputed at the hearing that section 775.087, Florida Statutes (1999), applied. As a result, the trial court classified the offense as a life felony. See § 775.087(1)(a). Because it was undisputed that Mr. Lee had discharged a firearm causing great bodily harm, everyone agreed that he was subject to a minimum term of imprisonment of not less than twenty-five years and not more than a term of life in prison. See § 775.087(2)(a)(3). At the conclusion of the sentencing hearing, Judge Swanson used his discretion to impose a life sentence without the possibility of parole. Mr. Lee appealed his judgment and sentence, and this court affirmed. See Lee v. State, 833 So.2d 132 (Fla. 2d DCA 2002) (table decision).

After the Supreme Court issued Graham, Mr. Lee filed a motion to correct his illegal sentence. The trial court granted that motion, and the case was set for resentencing on April 1, 2011, before Judge Susan L. Gardner. At the beginning of the hearing, Judge Gardner disclosed that this was her first Graham re-sentencing, as did both the assistant state attorney and Mr. Lee’s counsel. To their credit, they cooperated with one another in fashioning an appropriate procedure for the hearing. Mr. Lee’s counsel was permitted to call Mr. Lee’s mother as a witness and to place Mr. Lee on the stand. Mr. Lee admitted that he had committed the crime, took responsibility for his actions, and described his efforts to improve himself during the decade that he had spent in prison. His counsel introduced into evidence Mr. Lee’s entire prison record, which is approximately two hundred pages in length.

Mr. Lee’s counsel argued that Mr. Lee should receive the minimum sentence of twenty-five years’ imprisonment, emphasizing Mr. Lee’s progress in prison. The assistant state attorney argued for a sentence of forty-five years’ imprisonment with a twenty-five-year minimum mandatory term, pointing out that a Graham hearing was not the same as a parole hearing. Judge Gardner stated that she had reviewed portions of the trial transcript and had more thoroughly reviewed the original sentencing transcript. She decided to sentence Mr. Lee to forty years’ imprisonment with a twenty-five-year minimum mandatory term. She explained that her discretionary decision was based more on the facts that had influenced Judge Swanson than on matters that had occurred more recently.

On appeal, Mr. Lee raises three issues. First, he argues that the forty-year term of imprisonment is cruel and unusual punishment. Second, he claims that he was entitled to an updated PSI at the sentencing hearing. Finally, he claims that the jury’s verdict does not permit him to receive a twenty-five-year minimum mandatory term of imprisonment. We reject all of these arguments, recognizing that the final argument is a close issue.

Concerning the claim that the forty-year term of imprisonment is unconstitutional, we note that this court has already rejected similar arguments in a similar case. See Walle v. State, 99 So.3d 967 (Fla. 2d DCA 2012). We reject Mr. Lee’s argument for the same reasons that we rejected Mr. Walle’s arguments.

Concerning the claim that the trial court failed to order and consider an updated PSI, we first note that the record does not contain any request by Mr. Lee for such an update. He has not cited any law that would compel the trial court to obtain such an update. His counsel, of course, updated the record with nearly two hundred pages of information documenting Mr. Lee’s experiences in prison. Mr. Lee testified about his experiences between the two sentencing hearings. It is difficult to imagine that an update to the original PSI would contain anything that is not already in this record.

Concerning the twenty-five-year minimum mandatory term of imprisonment, Mr. Lee argues that it is unauthorized as a matter of law. The jury found that Mr. Lee committed attempted first-degree murder “with a firearm as charged in the information.” The information charged that he did “inflict upon [the victim] mortal wounds by shooting with a firearm.” Mr. Lee must admit that the evidence establishes beyond any reasonable doubt that he discharged a firearm causing great bodily harm. At resentenc-ing, this is the crime for which he took responsibility, recognizing that his victim would be disabled for life.

The verdict form, however, did not require the jury to make express findings that Mr. Lee “discharged” a firearm or that he caused “great bodily harm.” These elements may be implicit within a “shooting with a firearm” that causes “mortal wounds,” but Mr. Lee correctly argues that these precise factual questions were not presented to his jury when it returned a verdict in 2001. He, of course, did not object to the verdict form that was used in 2001. But arguably it was the responsibility of the State to submit an adequate verdict form. The ambiguity in the verdict form could only be helpful to Mr. Lee; it was not a harmful error to which he had any obligation to object.

Generally, it is error to enhance a defendant’s sentence under section 775.087 without a clear jury finding regarding the factual basis for enhancement. State v. Tripp, 642 So.2d 728, 730 (Fla.1994). Earlier case law tended to require a specific finding in an interrogatory verdict form to support such a sentence. See Thompson v. State, 862 So.2d 955, 958 (Fla. 2d DCA 2004); Muldrow v. State, 842 So.2d 240, 242 (Fla. 2d DCA 2003).

Certainly, an interrogatory verdict form is still the preferred method to address section 775.087. However, the supreme court has clarified that such an interrogatory is not essential. State v. Iseley, 944 So.2d 227, 230-31 (Fla.2006). In Gentile v. State, 87 So.3d 55 (Fla. 4th DCA 2012), a “clear jury finding” was established by a verdict and information very similar to those in this case. Gentile and other cases have extended the harmless error analysis in Galindez v. State, 955 So.2d 517 (Fla.2007), to this context. See Knight v. State, 6 So.3d 733, 735 (Fla. 2d DCA 2009); Lindsay v. State, 1 So.3d 270 (Fla. 1st DCA 2009); see also Gentile, 87 So.3d at 58 (“[A]ny error in the jury’s failure to make a more specific finding is clearly harmless because of the overwhelming evidence that he used a deadly weapon.”). We admit some concern that the Galindez test — that no rational jury could find otherwise — could become a slippery slope that too frequently tempts an appellate court to dispense with the constitutional right to trial by jury. But in this case, even though the language is not precise, we are convinced beyond a reasonable doubt that the actual jury made a clear finding that Mr. Lee discharged a firearm causing great bodily harm. Thus, we are not relying upon what we believe every hypothetical “rational jury” might have done under like circumstances.

We have not overlooked the Supreme Court’s recent decision in Alleyne v. United States, — U.S. -, -, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013), which held that facts that increase the mandatory minimum sentence are “elements” that must be submitted to the jury. We assume that Alleyne would apply to the resentencing in this case because this appeal was pending when Alleyne was decided. But, just as a failure to obtain a jury finding could be determined to be harmless in the context of an Apprendi or Blakely error, see Gentile, 87 So.3d at 58; Knight, 6 So.3d at 735; Lindsay, 1 So.3d 270, we conclude that a failure to obtain a jury finding can be determined to be harmless beyond a reasonable doubt in the case of an Alleyne error.

Finding no reversible error in this sentence or in the sentencing procedure, we affirm Mr. Lee’s sentence.

Affirmed.

SILBERMAN and LaROSE, JJ., Concur.

      . The scoresheet appears to contain an error in Mr. Lee’s favor. The attempted murder should have been scored as a level 10 offense rather than a level 9 offense. See §§ 775.087(1), 921.0022(3)0), Fla. Stat. (1999).

      . This court has not yet determined whether or how Graham might apply retroactively. This issue was not raised in this appeal.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).


author: FERNANDEZ, J.

text:
    PARK WEST PROFESSIONAL CENTER CONDOMINIUM ASSOCIATION, INC., Appellant, v. John LONDONO, Appellee.
    No. 3D13-770.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Rehearing Denied Feb. 13, 2014.

      Lerman & Whitebook, P.A., and Carlos D. Lerman, Hollywood, for appellant.
    Derek R. Griffith, Coral Gables, for ap-pellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Park West Professional Center Condominium Association, Inc. appeals the trial court’s Final Order and order denying Park West’s motion for rehearing, which determined the priorities with respect to assessments due between Park West and appellee John Londono, a third-party purchaser at a foreclosure sale. On the authority of Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc., 105 So.3d 637 (Fla. 3d DCA 2013) and Barnes v. Castle Beach Club Condominium Association, Inc., 106 So.3d 86 (Fla. 3d DCA 2013), we reverse.

This case arose from two separate actions, a mortgage foreclosure brought by Bank of America, N.A. against Florida Title Professionals, Inc., the former owner of the two condominium units at issue, and a foreclosure action brought by Park West against Florida Title. Bank of America was first to initiate the mortgage foreclosure action, to which Park West was eventually joined as a defendant. On September 19, 2011, while Bank of America’s action .was pending, Park West filed its own foreclosure action against Florida Title based on an assessment lien. Park West’s action concluded first, with Park West taking title to the subject property in January, 2012. Subsequently, Bank of America’s mortgage foreclosure action concluded, and Londono took title to the property on April 18, 2012.

On July 17, 2012, Londono filed a motion for determination of priority with the trial court. Londono urged the trial court, as he urges here, that his responsibility for unpaid assessments relates back to the time that he took title to the property and no further. Park West, on the other hand, argues that Londono has joint and several liability with Park West for any unpaid assessments, and because Park West is deemed to have joint and several liability for unpaid assessments with Florida Title, then Londono’s responsibility for unpaid assessments relates back to those that were owed by Florida Title.

Park West and Londono rely on the holding in Spiaggia, supra, in support of their respective positions. Both are incorrect in their interpretation of Spiaggia. The Spiaggia court held that “the prior owner is jointly and severally liable with the current owner for all past due assessments up to the time of transfer of title.” Spiaggia, 105 So.3d at 639. On the facts of this case, this means that Park West is jointly and severally responsible with Florida Title back to the time when title to the subject property was transferred to Florida Title, and Londono is responsible for unpaid assessments back to the time when Park West took title to the subject property-

Reversed and remanded.


author: WALLACE, Judge.

text:
    Victor MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6339.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Victor Miller, pro se.
   WALLACE, Judge.

We affirm the postconviction court’s denial of Victor Miller’s motion filed under Florida Rule of Criminal Procedure 3.800(a) because Mr. Miller did not demonstrate where in the record it can be shown that he is entitled to relief. See Johnson v. State, 60 So.3d 1045, 1051 n. 2 (Fla. 2011). However, our affirmance is without prejudice for Mr. Miller to file a facially sufficient motion.

Although we affirm the denial of Mr. Miller’s motion, we note that constructive possession of a firearm cannot support the imposition of a minimum mandatory sentence enhancement under sections 775.087(1)-(2), Florida Statutes (2000). See Irons v. State, 851 So.2d 798, 798 (Fla. 2d DCA 2003).

Affirmed without prejudice.

SILBERMAN and MORRIS, JJ., Concur.


author: MARSTILLER, J.

text:
    AGENCY FOR PERSONS WITH DISABILITIES, Appellant, v. C.B. and Z.H. and Y.S., Z.W.M., and C.M., Appellees.
    No. 1D13-613.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.
    Rehearing Denied Feb. 4, 2014.

      Brian F. McGrail, Senior Attorney, Agency for Persons with Disabilities, Tallahassee, for Appellant.
    Megan Wall of St. Johns County Legal Aid, St. Augustine; and Amanda E. Heys-tek of Disability Rights Florida, Tampa, for Appellees.
   MARSTILLER, J.

The Agency for Persons with Disabilities (“APD”) appeals an amended final order from the Division of Administrative Hearings sustaining Appellees’ Petition for Administrative Determination of Invalidity of Agency’s Use of an Unadopted Rule. Appellees are APD clients receiving Intensive Behavioral Residential Habilitation (“IBRH”) treatment. They claimed APD was employing an unadopted rule, as opposed to certain provisions in the “Developmental Disabilities Waiver Services Coverage and Limitations Handbook” November 2010 (“Handbook”), to place IBRH recipients in less intensive treatment programs. The particular Handbook provisions are six “conditions for transition” which, when met, signify that a recipient no longer needs IBRH treatment and should be transitioned to a less intensive treatment program.

Following an evidentiary hearing, the presiding Administrative Law Judge (“ALJ”) ruled that APD must abide by the Handbook and cannot reduce an IBRH client’s level of treatment unless all six transition conditions are met. The ALJ further ruled that APD’s reliance on any other criteria to reduce services constituted use of an unadopted rule, and ordered the agency to immediately discontinue all reliance on such criteria. For the reasons discussed below, we conclude the ALJ erred, and accordingly reverse the pertinent portion of the amended final order.

I. Regulatory Background

APD’s general responsibilities concerning the Developmental Disabilities Medicaid Waiver (“DD Waiver”) are set forth in the Handbook, which is incorporated by reference into Florida Administrative Code Rule 59G-13.083. APD operates and oversees the DD Waiver. ‘Waiver services shall only be provided when the service or item is medically necessary.” “When a requested service or item is determined to be medically necessary and the service or item is covered by the waiver, it shall be approved within limits specified, in accordance with this handbook.” If APD determines the requested service is not medically necessary, a Medicaid recipient may appeal the decision by requesting an administrative hearing.

Under an Agency for Healthcare Administration rule, a service is “medically necessary” when it meets all the following conditions:

1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;
3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or in-vestigational;
4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and
5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.

Fla. Admin. Code R. 59G-1.010(166)(a). Importantly, the rule further states, “The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity[.]” Fla. Admin. Code R. 59G-1.010(166)(c). The Handbook quotes these rule provisions.

IBRH is a covered DD Waiver service, the goal of which “is to prepare the person for full or partial reintegration into the community, with established behavioral repertoires[.]” Thus, the Handbook instructs service providers that “[ijndividual service plans for recipients receiving [IBRH] will include a written plan to decrease services through improved behavior and when applicable, medical condition.” The Handbook also tells providers that the specified “recipient characteristics and service characteristics must be met in order to receive an intense behavioral residential habilitation rate.” Further, “[s]ervice authorization [via APD’s prior service authorization process] shall be based on established need and re-evaluated at least annually while the recipient is receiving the services.”

As to recipient characteristics, the Handbook provides:

[IBRH] is for recipients who present problems with behavior that are exceptional in intensity, duration, or frequency and that meet one or more of the following conditions.
Within the past 6-months the recipient:
1. Engaged in behavior that caused injury requiring emergency room or other inpatient care from a physician or other health care professional to self or others.
2. Engaged in a behavior that creates a life-threatening situation. Examples of these types of behavior are excessive eating or drinking, vomiting, ruminating, eating non-nutritive substances, refusing to eat, swallowing excessive amounts of air, and severe Insomnia.
3. Set a fire in or about a residence or other facility in an unauthorized receptacle or other inappropriate location.
4. Attempted suicide.
5. Intentionally caused damage to property in excess of $1,000 in value for one incident.
6. Engaged in behavior that was unable to be controlled via less restrictive means and necessitated the use of restraints, mechanically, manually or by commitment to a crisis stabilization unit, three or more times in a month or six times across the applicable six-month period.
7. Engaged in behavior that resulted in arrest and confinement.
8. Requires visual supervision during all waking hours and intervention as determined by a certified behavior analyst or licensed behavior analysis professional to prevent behaviors previously described above that were likely, given past behavior in similar situations, without such supervision.
9. Engaged in sexual behavior with any person who did not consent or is considered unable to consent to such behavior, or engaged in public displays of sexual behavior (e.g. masturbation, exposure, peeping Tom, etc.).
10. If the supervision and environment is such that the person lacks opportunity for engaging in the serious behaviors the behavior analyst providing oversight must determine that the behavior would be likely to occur at least every six months if the person is without the supervision or environment provided and document in the recipient’s records![]

The Handbook describes IBRH service characteristics, and discusses “Special Considerations,” among which are the conditions for transitioning a recipient to less intensive treatment. The Handbook specifically states that “[t]he transition criteria for intensive residential habilitation define the conditions under which the treatment team must recommend a less structured, more open environment[J” It goes on to list the following six “Conditions for transition”:

1. The behavioral excesses that made treatment necessary no longer occur in the presence of the environmental conditions that previously evoked those behaviors.
2. The behaviors do not occur as a function of new environmental conditions.
3. The behaviors intended to replace the problem behavior now reliably occur in the presence of the environmental conditions that previously evoked those behaviors that previously controlled the behavioral excesses.
4. Caregivers reliably carry out the medical and behavioral strategies necessary to maintain or continue improvements in health and behavior without direct supervision from a nurse, behavior analyst or other professional care provider. The direct care providers and recipient no longer require the levels of oversight established within the exceptional services program for professional care providers including physicians, nurses, and behavior analysts.
5. Direct care providers no longer require the levels established within the exceptional services program for direct supervision. Supervision is the same as that which is typically provided in the residential setting to which the person is most likely to move.
6. The provider has determined the recommended transition levels of staff across all categories and the physical environment requirements needed for the recipient to maintain or to continue improvements.
When the conditions identified above are met, the recipient would no longer require intensive habilitation treatment. However, treatment would continue with the focus shifting to ensuring that the gains made maintain or continue to improve in settings that have more variability in the prevailing contingencies and afford greater access to unplanned, everyday encounters and untrained people.[]

II. Analysis

Appellees’ burden of proof below was to establish, by a preponderance of the evidence, that APD relied on an unadopted rule in transitioning IBRH clients to less intensive services. See § 120.56(1)(e), Fla. Stat. On appeal, we review the ALJ’s findings of fact for competent, substantial evidence, and the conclusions of law de novo. See § 120.68(7), Fla. Stat.; Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009, 1011 (Fla. 1st DCA 2009).

The gravamen of Appellees’ rule challenge was that APD moved them from IBRH to a lower level of service without first determining all six conditions for transition set forth in the Handbook were met. At the administrative hearing, APD explained through witnesses that in reviewing an IBRH client’s service level, which it must do “at least annually,” its primary consideration is whether the recipient characteristics initially justifying IBRH still exist. But the overarching determinant is medical necessity for continued IBRH. APD posited that the transition conditions in the Handbook are “considerations” in its service level review. The ALJ concluded, inter alia:

38. The [Handbook] provides for six conditions for transition. APD’s statement that the review starts with medical necessity or “need” is not found in the conditions for transition. ... Further, it may seem logical that the same characteristics used to get into the [IBRH] service are used to transition out of the [IBRH] service (number one of the six conditions to transition), but APD’s elimination of the remaining five conditions amounts to an un-promulgated rule....
39. The [Handbook] language is specific: “Intensive behavioral residential habilitation is for recipients who present problems with behaviors that are exceptional in intensity duration, or frequency,” and the rule provides those characteristics. That portion of the Handbook does not equivocate, nor provide that those same characteristics shall be used to transition a client or resident to a lower level of service.

(Emphasis in original.)

The ALJ’s conclusions are inconsistent with the plain language of the Handbook, which specifically provides that “recipient characteristics ... must be met in order to receive an intense behavioral residential habilitation rate.” (Emphasis added.) As the Handbook explains, APD’s authorization for IBRH services “shall occur prior to service delivery, for new services ... and at least annually while the recipient is receiving the service.” Thus, contrary to the ALJ’s conclusion, whether APD is conducting an initial review of a service request or a periodic reevaluation of services provided, authorization for IBRH rests on the existence of one or more of the requisite recipient characteristics. If, upon reevaluation, a client displays none of those characteristics, under the Handbook, APD may not authorize continued treatment at that level. In that instance, APD’s decision does not rest on an unpro-mulgated rule.

The transition conditions to which, the ALJ ruled, APD must adhere, describe the circumstances under which the treatment team must recommend less intensive ha-bilitation service for the client. Although the Handbook tells service providers that, “when the [transition] conditions ... are met, the recipient would no longer require [IBRH],” it does not prohibit less intensive treatment if all six conditions are not met.

Moreover, neither does the Handbook, explicitly or implicitly, prohibit APD from denying continued authorization for IBRH until the six transition conditions are met. Rather, the Handbook states: “Waiver services shall only be provided when the service or item is medically necessary.” The ALJ appears to have interpreted the statement in the Handbook, that “[intensive behavioral residential habilitation is for recipients who present problems with behaviors that are exceptional in intensity, duration, or frequency,” to mean IBRH is per se medically necessary for a client who has such behavioral problems and who exhibits at least one of the requisite recipient characteristics. But a service is only medically necessary when it meets all five criteria set forth in rule 59G-1.010(166)(a), including that it must “[b]e reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.]” Fla. Admin. Code R. 59G-1.010(166)(a)4. The fact that a provider has prescribed a particular service or treatment does not mean the service or treatment is medically necessary. See Fla. Admin. Code R. 59G-1.101(166)(c). Thus, under both the Handbook and rule 59G-1.101(166), the medical necessity determination requires a separate analysis under which, even if a client is eligible for a given level of service— here, IBRH — APD must yet determine whether service at that level is medically necessary before the service may be authorized, or reauthorized, and be paid for by Medicaid. The six conditions for transitioning an IBRH recipient to less intensive service levels may be relevant to APD’s decision on reauthorizing IBRH treatment for that recipient. But, contrary to the ALJ’s conclusion, nothing in the Handbook requires continued IBRH treatment — deeming it medically necessary — unless the recipient satisfies all conditions for transition to a less intensive treatment. APD may properly conclude that continued IBRH is not medically necessary for a client even though the six transition conditions are not met. APD has appropriately relied on the rules governing medical necessity determinations and service authorizations — rule 59G-1.010(166) and the Handbook — in making its reauthorization decisions.

III. Conclusion

Appellees failed to establish that APD transitioned IBRH clients to less intensive services based on an unadopted rule. Because the Handbook expressly conditions authorization of IBRH services on the existence of one or more specified recipient characteristics, APD did not rely on an unadopted rule in denying continued authorization for IBRH for DD Waiver clients who no longer exhibited such characteristics. Furthermore, medical necessity, as defined in rule 59G-1.101(166)(c) and as specified in the Handbook, is the penultimate determination APD must make before Medicaid will pay for any DD Waiver service. Nothing in the Handbook precludes APD from determining that IBRH is no longer medically necessary for an individual client, even though the transition conditions under which a service provider must recommend less intensive treatment are not fully met. A client who disagrees with the reduction in services for lack of medical necessity may require APD to fully explicate its decision in a fair hearing, where the client also may produce evidence challenging the decision. See Fla. Admin. Code R. 65-2.042-2.044, 65G-3.003(5). For these reasons, we REVERSE the amended final order insofar as it sustains Appellees’ unadopted rule challenge. In all other respects, the order is AFFIRMED.

AFFIRMED, in part; REVERSED, in part.

THOMAS and SWANSON, JJ„ concur.

      . See § 120.56(4), Fla. Stat. Appellees also challenged certain existing rules as vague and lacking adequate standards for agency decision making. That rule challenge was not sustained, and is not at issue in this appeal.

      . Handbook at 1-1; see §§ 393.066, 393.0661, 408.302(1), Fla. Stat.

      . Id. at 2-4; see 42 C.F.R. § 440.20(2)(d) (2011) (providing that the state Medicaid agency "may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures”).

      . Handbook at 2-4.

      . Id.; see Fla. Admin. Code R. 65-2.042-2.044.

      . The Agency for Healthcare Administration is the state Medicaid agency.

      . Handbook at 2-67.

      . Id. at 2-66. Under the heading, "Purpose of This Handbook” is the following statement: "This handbook is intended for use by eligible providers who furnish DD waiver services to recipients enrolled in the waiver.” Id. at 1-9 (emphasis added).

      . Id. at 2-64 (emphasis added).

      . Id.

      . Id. at 2-65.

      . Id. at 2-67 (emphasis added).

      . Id. at 2-67 — 2-68.

      . Id. at 2-64.

      . Handbook at 2-68. As we read the Handbook provisions concerning IBRH, we conclude the transition conditions are to ensure that service providers maintain an eye toward reducing treatment intensity and reintegrating clients into society-the stated goal of IBRH treatment.

      .Handbook at 2-4.


text:
    Amable J. MOYA, Appellant, v. TRUCKS & PARTS OF TAMPA, INC. and Ameritrust Insurance Corporation, Appellees.
    No. 1D13-1334.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Rehearing Denied Feb. 4, 2014.

      Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    William H. Rogner and Gregory D. White of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   MARSTILLER, J.

Amable J. Moya (“Claimant”) appeals a summary final order denying his Petition for Benefits (“PFB”) seeking authorization for an MRI of his right shoulder. Because Claimant failed to demonstrate existence of a material factual dispute, we affirm the order.

On the date of the accident, Claimant worked as a dismantler in the Employer’s salvage department, taking apart and removing equipment from trucks. Claimant filed a PFB seeking medical treatment for asserted repetitive trauma. The Judge of Compensation Claims (“JCC”) rejected Claimant’s request for benefits, finding that

the most reasonable interpretation of the medical evidence is that, as of September 19, 2005, Claimant suffered from pre-existing cervical and shoulder problems, in addition to carpal tunnel syndrome. The work-related activities that Claimant engaged in on September 19, 2005 caused temporary aggravations of his cervical and shoulder conditions. This same activity caused a flare-up of Claimant’s bilateral carpal tunnel. He reached MMI as of October 24, 2006 for the aggravations of his cervical and shoulder conditions. No further treatment is necessary for these complaints.

The JCC did approve, however, treatment for Claimant’s bilateral carpal tunnel syndrome. Claimant did not appeal the portion of the January 30, 2009, order denying his PFB as to the cervical and shoulder conditions.

On December 27, 2012, Claimant filed a PFB seeking “authorization/set-up of an appt. for an MRI of the right shoulder pursuant to the attached recommendation from Dr. Aird the authorized physician.” Attached to the PFB was a September 7, 2012, office note by Dr. Aird stating, in full:

Amable has been experiencing pain in both wrists and numbness of both hands. He also complains of pain in both shoulders worse in the right.
On examination active range of motion of both shoulders was full. Grip strength in the right hand was 57 pounds per square inch and in the left hand 68 per square inch with the Jamar Dynamome-ter in the third position.
PLAN: The patient was scheduled for an MRI of the right shoulder and will be seen again for follow-up care in one month.

The Employer/Carrier (“E/C”) filed a response denying the request for an MRI and stating:

[T]he JCC ruled in her Order of 1/30/09 that the injured employee had reached MMI with regard to his shoulder complaints and that no further treatment was needed. Dr.. Aird is only authorized to treat injured employee’s bilateral carpal tunnel complaints.

The E/C subsequently filed a motion for summary final order, asserting, based on the January 30, 2009, order, that res judi-cata prohibited re-litigation of the issue of Claimant’s need for treatment for his right shoulder. Claimant timely filed a response to the E/C’s motion, stating only that Dr. Aird, his authorized treating physician, had written a prescription for the MRI, that “Claimant is setting the deposition of Dr. Aird,” and that “This issue is not appropriate for a Summary Final Order.” Claimant made no further factual allegations, and submitted no supporting affidavits or other documents. The JCC entered an order the next day granting the motion for summary final order. Therein, the JCC noted, “The mere fact that Dr. Aird has recently recommended that Claimant undergo an MRI of his right shoulder does not negate the validity of the undersigned’s findings relative to Claimant[’s] need for further treatment due to his industrial accident.”

We consider de novo whether disposition by summary final order was appropriate here. See Thomas v. Eckerd Drugs, 987 So.2d 1262, 1263 (Fla. 1st DCA 2008). In workers’ compensation proceedings, Florida Administrative Code Rule 60Q-6.120 permits any party to file a motion for summary final order when there are no material factual disputes, and directs the opposing party to “file a response to a motion for summary final order together with supporting depositions, affidavits, and/or other documents within 30 days after service of the motion[.]” Fla. Admin. Code R. 60Q-6.120(2), (3). A JCC “shall” enter a summary final order if she or he “determines from the pleadings and depositions, together with affidavits, if any, that no genuine issue as to any material fact exists and that the moving party is entitled as a matter of law to the entry of a final order.” Fla. Admin. Code R. 60Q-6.120(2). Such an order is appropriate when it “would be dispositive of the issues raised by the [PFB]. Issues that would be dispositive include ... whether the claim is barred by res judicata[.]” Fla. Admin.Code R. 60Q-6.120(1).

The E/C’s motion for summary final order averred that the JCC’s January 30, 2009, order deemed Claimant at MMI and in need of no further treatment for the shoulder conditions for which he now seeks an MRI. Therefore, the E/C argued, res judicata bars Claimant’s current claim. Claimant’s response to the motion asserted only that his authorized treating physician had written a prescription for the MRI, and that the issue “is not appropriate for” disposition by summary order. Aside from the office note filed with the PFB, Claimant submitted no affidavits, depositions, or other evidence to substantiate a material issue of fact that would preclude application of res judicata to his claim. Instead, he merely suggested the existence of such facts, providing no supporting evidence as required by rule 60Q-6.120(3), and represented that Dr. Aird’s deposition would be set, but giving no date or time-frame, and seeking no extension of time. See Fla. Admin. Code R. 60Q-6.120(3) (providing that the JCC shall grant party opposing motion for summary final order an extension for good cause).

We conclude the JCC appropriately entered a summary final order because Claimant failed to demonstrate a material factual issue precluding application of res judicata based on the January 2009 order. The JCC determined in 2009 that Claimant did not suffer a repetitive trauma injury to his shoulders, but that Claimant temporarily aggravated pre-existing shoulder conditions, had reached MMI, and needed no further treatment. Even assuming, as Claimant argues, the MRI was for diagnostic purposes, the only document he submitted with the PFB — Dr. Aird’s office note, recounted in full above — is not sufficient to demonstrate the existence of some new fact(s) inconsistent with the JCC’s 2009 findings.

AFFIRMED.

THOMAS and MAKAR, JJ., concur.


author: EMAS, J.

text:
    GENERAL COMPUTER SERVICES, INC., Appellant, v. AP SC RIVER OAKS LLC, etc., Appellee.
    Nos. 3D12-1186, 3D11-2355.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2013.
    Rehearing Denied Feb. 13, 2014.
    Arthur J. Morburger, for appellant.
    Greenberg Traurig, P.A. and Julissa Rodriguez, Ronald M. Rosengarten and Jay A. Yagoda, for appellee.
    Before WELLS, ROTHENBERG and EMAS, JJ.
   EMAS, J.

Appellant General Computer Services, Inc. (“GCS”) appeals the trial court’s orders denying its motion to vacate a default and default final judgment, as well as an order denying GCS’s successive motion for relief from the final judgment and from a post-default order.

We conclude that upon the record in this case, and contrary to the arguments made by GCS, the default entered by the clerk was not void, see Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So.2d 1305 (Fla. 3d DCA 1987), and in fact GCS received actual notice of the motion for default two weeks prior to entry of the default. We further conclude that the trial court did not abuse its discretion in determining that GCS failed to demonstrate excusable neglect or due diligence and in seeking relief under Florida Rule of Civil Procedure 1.540, and that principles of res judicata bar successive motions for relief from judgment where the grounds for relief “were repetitive of those asserted in the first motion, or which with due diligence could have been asserted in the first motion.” See Veloso v. Trustcorp Capital Leasing, 791 So.2d 1138, 1138 (Fla. 3d DCA 2001) (citing Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971)).

Affirmed.


text:
    Pierre R. CAZI, Appellant, v. Rose May PROPHETE, Appellee.
    No. 3D12-3279.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.
    Larry R. Fleurantin & Associates, P.A., and Larry R. Fleurantin, North Miami Beach, for appellant.
    Rose May Prophete, in proper person.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

In 2009, a final judgment was entered dissolving the marriage between Pierre R. Cazi (“former husband”) and Rose May Prophete (“former wife”). Thereafter, the former wife moved to modify and/or clarify the final judgment. A general magistrate heard the motion and, thereafter, entered a report and recommendation in favor of the former wife.

The former husband filed timely exceptions to the general magistrate’s report and recommendations and requested a hearing on the exceptions. Contending that the former husband’s exceptions had not been timely filed, the trial court did not consider the filed objections and entered an order adopting and ratifying the general magistrate’s order. Although the former husband immediately filed a motion for rehearing, thereby alerting the trial court of its error and requesting a hearing on his exceptions, the trial court denied the former husband’s motion for rehearing and refused to conduct a hearing on the exceptions.

Because the former husband’s exceptions were indisputably timely filed, the trial court abused its discretion by adopting and ratifying the general magistrate’s report and recommendations without conducting a hearing on the.exceptions. See Fla. R. Civ. P. 1.490(h) (2012) (stating that if a party timely files exceptions to the general magistrate’s report, “they shall be heard on reasonable notice by either party”); Fla. Fam. L. R. P. 12.490(f) (providing that if exceptions are filed to a general magistrate’s report, “they shall be heard on reasonable notice by either party or the court”); Collado v. Pavlow, 951 So.2d 69, 70 (Fla. 5th DCA 2007) (holding that the trial court abused its discretion by adopting the general magistrate’s report and recommendations without conducting a hearing where a party filed timely exceptions to the report and requested a hearing); Martinez v. Garcia, 575 So.2d 1365, 1366-67 (Fla. 3d DCA 1991) (holding that the trial court was required to conduct a hearing on timely filed exceptions to general master’s order).

We therefore reverse the trial court’s order adopting and ratifying the general magistrate’s report and recommendations, reverse the trial court’s order denying the former husband’s motion for rehearing and to set aside the trial court’s order approving and ratifying the general magistrate’s report and recommendations, and remand for a hearing on the former husband’s timely filed exceptions.

Reversed and remanded.


author: SALTER, J.

text:
    Jeff GREENE, Appellant, v. TIMES PUBLISHING CO., etc., et al., Appellees.
    No. 3D12-2427.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2014.

      Wood Hernacki & Evans and L. Lin Wood., pro hac vice.; Kenny Nachwalter and Stanley H. Wakshlag, Miami, for appellant.

      Rahdert, Steele, Reynolds & Driscoll, and George K. Rahdert, Alison M. Steele and Anne H. Arsenault, Saint Petersburg; Holland & Knight, and Sanford L. Bohrer and Scott D. Ponce, for appellees.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER and, JJ.
   SALTER, J.

Jeff Greene appeals a final judgment and order dismissing his complaint against Times Publishing Company, Miami Herald Media Company, and three reporters for libel. Concluding that the complaint states a legally sufficient cause of action against each defendant, we reverse and remand the case to the circuit court for further proceedings.

I. Parties

Greene was a candidate for nomination as the Democratic candidate for election to the United States Senate in 2010. In mid-August 2010, about three weeks before the primary election for the nomination, the St. Petersburg Times, a newspaper and online publisher owned by defendant/ap-pellee Times Publishing Company, and The Miami Herald, a newspaper and online publisher owned by defendant/appellee Miami Herald Media Company, published three articles about Greene. Two of the pieces addressed Greene’s alleged role in a 2006 real estate deal in California. The third described various alleged activities involving Mike Tyson and Greene’s “mega yacht,” the “Summerwind,” during the period 2005-2007. The stories were published in print and online.

Greene provided pre-publication information and denials of certain information disclosed by the reporters, and he sent timely, written post-publication retraction demands pursuant to section 770.01, Florida Statutes (2010). As to the last article, Greene alleged, among other things, that he had no knowledge of whether Tyson was using illegal drugs in the summer of 2005 or 2007, that he paid for Tyson to go to rehabilitation when he later learned that Tyson was addicted, and that Tyson had publicly acknowledged that, but for Greene’s help, Tyson likely would have died from an overdose; But retractions were not forthcoming. Greene then sued Times Publishing, Herald Media, three individual and named reporters, and unnamed “John or Jane Does” that might have participated in the investigation, reporting, or editorial review regarding the three articles, in the circuit court in Miami.

II. The Articles and Alleged False, Defamatory, and Misleading Representations of Fact

The three articles are referred to in the complaint, dismissal order, and here as articles 1, 2, and 3. Articles 1 and 2 dealt with Greene’s 2006 real estate transactions at a 300-unit condominium property known as La Mirage in Ridgecrest, California. Article 3 reported Greene’s relationship with Mike Tyson and alleged activities in 2005-2007 aboard Greene’s “raucous party boat,” the “Summerwind.”

Article 1, “Calif. Deal Put Jeff Greene on Front Line of Mortgage Mess,” linked Greene to “mortgage shenanigans,” “massive fraud,” and “a man now under federal indictment.” The article recounted transactions in which a company owned by Greene sold all 300 Mirage condominiums in a single transaction to James Delbert McConville in the summer of 2006. Although McConville had paid Greene’s company only $70,000 per unit, McConville apparently used escrowed deeds and straw transactions to sell the individual units at prices in the range of $145,000 to $165,000. McConville’s buyers obtained mortgage financing, defaulted on those loans, and left the buyers and lenders with substantial losses. The article reported that “half of McConville’s buyers were the same people who had purchased units from Greene.” In fact, Greene has alleged, no buyers except McConville purchased units from Greene’s company.

The complaint and its attachments, including the statutory retraction correspondence, detail thirteen “libelous statements” in article 1 accusing Greene of selling the units to purchasers other than McConville directly at the inflated prices he never received, and of active participation in McConville’s criminal mortgage fraud.

Article 2, “Jeff Greene’s Real Estate Dealings Need Explaining,” was published on the editorial page by the Times two days after article 1. The article included numerous references to statements and topics in article 1, as well as new content. Representative statements in article 2 are:

The billionaire participated in a California real estate deal featuring the conversion of old apartments to condos, inflated sales prices to straw buyers and defaults that cost banks and taxpayers millions. The FBI is investigating, and it should talk to Greene.
Why are half of McConville’s buyers the same people who bought from Greene and who defaulted on all of the loans?[]
Federal investigators should keep digging around Greene’s involvement in the failed development in the California desert. And Florida voters should not send to the U.S. Senate someone whose first line of defense is too often at odds with the facts.

Greene alleged that these and other specific allegations in article 2 were false and known to be false at the time they were made.

Article 3, published three days after article 2, was headlined “Jeff Greene Brushes off Raucous Party Boat Tales” in the Times and “Jeff Greene’s Yacht Holds the Secrets: Sexcapades or Sabbath?” in the Herald The complaint and its attachments alleged that article 3 included several specific statements of fact that were false and defamatory: that Tyson, who was the best man at Greene’s wedding in 2007, had told Sports Illustrated about a summer “when he spent so much time with Greene” that made that period of his life “sound more like the Love Boat [sic],” in St. Trope?;, Ibiza; Monte Carlo, and elsewhere, and about “getting high” with “naked girls.” The Times, Herald, and reporters were warned in writing and before publication that a number of the statements were false.

III. Motive and Allegations of Actual Malice

Greene alleged that the articles were published two weeks before the primary election in order to derail Greene’s nomination, with one of the individual defendants describing an early piece on Greene as a “hit job” or “hit piece,” and another having described her bias against Greene to third parties. Greene alleged that he invested over $24,000,000 of his own funds in his campaign for the nomination. He alleged that, prior to the publication of articles 1, 2, and 3, most polls indicated that Greene had a significant lead in the polls over his opponent, Kendrick Meek, and that his lead dropped to a double-digit deficit after publication of the articles. He lost the primary election. He also alleged that the allegedly-libelous statements damaged his reputation as a person and businessman.

As to each article, Greene alleged in the complaint that the allegedly-libelous statements were published without any privilege and with “actual malice, that is, with actual knowledge of falsity or with reckless disregard for truth or falsity.”

IV. Proceedings Below

Greene’s fifty-four page complaint referred to and attached eight documents (the articles and the statutory post-publication retraction demands). The defendants’ motions to dismiss were extensively briefed and then heard by the trial court in August 2011. Thereafter, each side filed additional memoranda addressing the arguments advanced by the other. In April 2012, the trial court granted each defendant’s motion to dismiss, but authorized amendment of the complaint with respect to the allegations and libel claim against the corporate defendants relating to article 1. The dismissal rulings addressing articles 2 and 3 were with prejudice as to all defendants, and the motions to dismiss by the three reporters were granted with prejudice as to all three articles.

Greene then waived the limited right to amend granted in the order, the trial court entered a final judgment in favor of all defendants, and this appeal followed.

V.Analysis

Our review is de novo. We assume that all allegations in the complaint are true, and we construe all reasonable inferences from those allegations in favor of Greene. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010). That said, we acknowledge at the outset that the legal sufficiency of a libel complaint by a public figure against news media and reporters is subject to a more rigorous set of tests than a contract claim between private parties. First Amendment case law has, over the years, created such principles as the “substantial truth” doctrine and protection for statements of “pure opinion.” “Actual malice” is also a rigorous standard for pleading purposes, as well as for proof.

The trial court correctly specified the five elements of a legally sufficient cause of action for libel involving a public figure: (1) publication, (2) falsity, (3) the defendant’s knowledge of, or reckless disregard for, the falsity (i.e., actual malice), (4) actual damages, and (5) the false statement must be defamatory. Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla.2008). In this case, publication is alleged (and is undisputed). The defendants’ knowledge or reckless disregard for alleged falsity is sufficiently pled, and actual damages are sufficiently pled as well. The key elements in contention, therefore, are the falsity of certain statements in the articles and whether any such false statements were “defamatory.”

A. Falsity

According to the allegations and attachments, a number of statements in the articles are false. In articles 1 and 2, no individual purchasers bought condominium units from Greene, other than McCon-ville, and Greene did not sell any condominium units for the purchase prices listed in the articles. Nor was Greene “party to precisely the kind of deal that decimated the market,” according to the complaint. Nor did Greene participate in a California real estate deal with “inflated sales prices to straw buyers and defaults that cost banks and taxpayers millions.” According to the complaint and its attachments, McConville completed deeds signed in blank — provided under the “bulk” sale contract for all 300 condominium units to give effect to the “or assignees” feature of the agreement — which were then misused by McConville for his own scheme. Qualifying phrases like “documents show” and “the records show” that Greene made the sales to straw buyers do not remedy the fact that, according to the complaint, no such transactions occurred and Greene received no funds from any such sales of individual units. If Greene’s allegations in the complaint are true, the sales records— settlement statements, payments to public property offices to record the deeds, and other documents — will also contradict the assertion in articles 1 and 2 that Greene participated in the fraudulent individual unit sales transactions.

In article 3, the complaint alleges that it is false that Tyson spent time with Greene aboard Greene’s yacht doing drugs and cavorting with naked women. References in article 3 to a “raucous party boat,” “the Love Boat,” and “Sexeapades” make it clear that Greene was being accused of participating in, or at the very least condoning, unlawful and immoral behavior.

Nor are these alleged falsehoods, which are illustrative rather than a comprehensive and complete list, protected as a matter of law by the “substantial truth” doctrine. The overarching impact of each article, its “gist” or “sting,” is a direct result of specific factual statements which, if the complaint is assumed to be true, are completely — not partially — false.

B. “Defamatory”

In Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305 (11th Cir.2001), the court summarized the tests in Florida to assess whether a communication is defamatory:

Where the court finds that “a communication could not possibly have a defamatory or harmful effect, the court is justified in dismissing the complaint for failure to state a cause of action.” On the other hand, if an allegedly defamatory publication is reasonably susceptible of two meanings, one of which is defamatory and one of which is not, it is for the trier of fact to determine the meaning understood by the average reader. A statement is not defamatory unless the “gist” or “sting” of the statement is defamatory. The gist of any statement within a publication or broadcast is found only by reference to the entire context.

Id. at 1306 (footnotes omitted).

In the present case, the communications could, and allegedly did, have a defamatory or harmful effect. Various specific representations of fact in all three articles, as illustrated above, each considered in the context of the entire article, were not reasonably susceptible of a non-defamatory meaning — they directly portrayed Greene as a participant in criminal real estate and mortgage fraud, who needed to be investigated by the Federal Bureau of Investigation, and as a yacht owner who either took part in, or allowed his yacht to be used in, illegal drug use and “sexcapades.”

VI. Conclusion

We do not reach the appellees’ assertion that certain other statements in the articles may be non-actionable because they are accurately-reported statements of pure opinion by non-parties and are based on facts disclosed in the article. The actionable and provable false and defamatory statements, if any, will winnow out via pretrial discovery and motions for summary judgment. We express no opinion regarding the accuracy of Greene’s allegations and his ability to prove them. We simply hold that, at the preliminary point of assessing the legal sufficiency of the complaint and attachments, Greene has adequately detailed a cause of action for libel as to each article and each defendant.

Reversed and remanded for further proceedings.

      . The complaint alleges that Greene was unaware of fraud by McConville at the time Greene's company completed its sale to him. McConville was indicted by a federal grand jury in California in 2010 for fraud and money laundering relating to McConville's post-purchase transactions regarding the Mirage condominium units. Greene’s complaint alleged that, through the time of publication of the articles and through the date of his complaint, he had not even been contacted by any law enforcement agency regarding the bulk sale from his company to McConville.

      . The complaint clarified that one of the allegedly libelous statements, and a picture relating to it, were published by the Times, but not by the Herald.

      . A question which "simply provokes public scrutiny of the plaintiff’s activities” would not be actionable; in this case, however, the question is reasonably read as an assertion of a false fact, according to the complaint — that Greene sold individual condominium units to persons who defaulted on loans. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir.1993).

      .The Herald version of article 3 included, at one point, an "editor's note,” correcting certain information in the initial publication of the article.

      .The Times and its reporters also moved to strike the complaint, but this motion became moot by virtue of the trial court’s order on the motions to dismiss and the final judgment.

      . See Smith v. Cuban Am. Nat'l Found.., 731 So.2d 702, 706 (Fla. 3d DCA 1999).

      . See Lipsig v. Ramlawi, 760 So.2d 170, 184 (Fla. 3d DCA 2000).

      . The media defendants have argued that "courts should be loathe to become involved in post-election disputes,” and "money damages are not appropriate for lost elections.” As true as those assertions may ordinarily be, they have nothing to do with the allegations in the complaint. The complaint includes specific claims of damage to Greene’s business and reputation, as well as his claim that the articles nullified the $24,000,000 in personal funds he had invested in his campaign before publication. Greene’s complaint does not suggest that he suffered damages because he was deprived of the privileges and emoluments of office.

      . The purchase contract between Greene's company and McConville, as well as the escrow agreement relating to the individual deeds, were attached to the retraction demand and the complaint.

      . Smith v. Cuban Am. Nat’l Found., 731 So.2d 702, 706 (Fla. 3d DCA 1999).

      . The significance of the procedural point at which we review claims for libel is aptly illustrated in comparing Barnes v. Horan, 841 So.2d 472 (Fla. 3d DCA 2002) (order of dismissal reversed), to Don King Productions, Inc. v. Walt Disney Co., 40 So.3d 40 (Fla. 4th DCA 2010) (summary judgment affirmed).


text:
    Dennis TLUCZEK, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2949.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Dennis Tluczek appeals his order of revocation of probation and the sentence imposed thereon. Despite the fact that Mr. Tluczek appears to have spent several months in the Lee County Jail on an obviously illegal sentence, and despite other concerns demonstrated by the record, we are constrained to affirm.

Mr. Tluczek was arrested on December 11, 2011, and later charged with burglary of a dwelling, as a second-degree felony, and criminal mischief, as a second-degree misdemeanor. These charges arose because Mr. Tluczek was essentially stalking a woman at her home. Except for a few days, he was in jail at all times until he entered a no contest plea on March 29, 2012.

Our record contains neither a transcript of the change of plea and sentencing hearing nor a written, negotiated plea agreement. But our record does contain a signed, written plea form that reflects that Mr. Tluczek entered a plea of no contest to trespass of a structure, a second-degree misdemeanor, and to criminal mischief. Thus, his plea appears to have been an open plea involving a lesser offense. On March 29, the circuit court entered a judgment adjudicating Mr. Tluczek guilty of these two second-degree misdemeanors. Various costs and fees and a fine of $250 were imposed in the written sentencing documents. For the criminal mischief conviction, the trial court sentenced Mr. Tluc-zek to sixty days in jail. For the trespass conviction, the court sentenced him to a period of twelve months’ probation.

Because Mr. Tluczek had already served 109 days in jail when these sentences were imposed, he was immediately released from jail to serve his term of probation. A twelve-month term of probation for this second-degree misdemeanor in this case was almost certainly incorrect. However, it appears that Mr. Tluczek did not appeal that sentence. Regardless, almost immediately after his release from jail, Mr. Tluczek returned to the woman’s home in violation of the terms of his probation. As a result, he was arrested and returned to jail on March 30. .

On May 7, 2012, the circuit court held a hearing on the violation of probation. Mr. Tluczek did not plead to the violation. The court conducted an eviden-tiary hearing, a transcript of which is in our record. After finding that Mr. Tluc-zek had violated his probation, the court revoked his probation and sentenced him to 270 days in jail for the offense of trespass with credit for the 148 days that he had already served. Mr. Tluczek then filed this timely appeal.

Given that the maximum incarcerative sentence for a second-degree misdemeanor is 60 days, it is very difficult to understand why someone in the courtroom did not notice the mistake in sentencing Mr. Tluczek to 270 days in jail on his second-degree misdemeanor conviction for trespass. Moreover, by the time the revocation hearing took place, Mr. Tluczek had already served 28 days more than the maximum legal sentence for his two see-ond-degree misdemeanors. Mr. Tluczek apparently returned to jail and served the full length of his 270-day sentence. Although he appealed, he had fully served this illegal sentence before his appellate attorney had a record from which she could have discovered the-error.

In addition to the sentencing error, the order of probation revocation, which the circuit court entered on May 7, is also flawed. It indicates that Mr. Tluczek admitted the violation of probation and that the court accepted his admission. That is incorrect. Additionally, the court entered a second judgment, convicting Mr. Tluczek a second time for the trespass. Hopefully, this stray document will not prejudice Mr. Tluczek. See Johnson v. State, 17 So.3d 1290 (Fla. 2d DCA 2009).

What may be even more problematic is the fact that the court entered a cost order in May that contains the same costs, fees, and fine as those imposed in March. Perhaps the clerk of court in Lee County treats such orders as mere duplicates. But at the end of the revocation hearing, the court announced: “50 to the State. 50 to the Public Defender. All financial obligations referred to the clerk of courts for collections.” Given that the costs, fees, and fines in the order total more than $750 and provide $100 to the Public Defender Application Fee and $100 to the costs of prosecution, there appears to be a conflict between the oral pronouncement and the written order. Frankly, we wonder whether the order on costs, fees, and fines was designed to be an order for use in a felony conviction and not a misdemeanor conviction. Without a transcript of the original plea hearing, we do not know what costs, fees, and fines were orally imposed at that time.

These errors, however, are not preserved or otherwise cannot be corrected by this court at this time.

Affirmed.

CASANUEVA and BLACK, JJ., Concur.

      . § 810.08(1), Fla. Stat. (2011).

      . After Mr. Tluczek’s attorney filed an initial brief, this court asked the parties to file briefs addressing whether the circuit court had jurisdiction over the misdemeanor probation such that it could revoke probation. In their briefs, the parties maintain that the circuit court had continuing jurisdiction to revoke misdemeanor probation and to resentence Mr. Tluczek for this misdemeanor. We recognize that a circuit court has jurisdiction to enter a judgment and sentence on only a misdemeanor offense, as a lesser offense, when the information properly charges a felony. See § 26.012(2)(d), Fla. Stat. (2011). We do not decide in this case whether that exclusive original jurisdiction includes supervision of the misdemeanor probation once the defendant is serving that probation. At least as a practical matter, if supervision of this probation had been transferred to a county court it is unlikely that a county judge would have imposed a 270-day jail term for a second-degree misdemeanor.

      . § 775.082, Fla. Stat. (2011). Generally, under the sentencing options for adults, "[a] defendant who is convicted of a second-degree misdemeanor may either be placed on probation for six months or may be sentenced to a maximum of sixty days in jail.” Sloan v. State, 10 So.3d 686, 687 (Fla. 2d DCA 2009) (relying on Smith v. State, 484 So.2d 581 (Fla.1986)); see also § 948.15(1), Fla. Stat. (2011). However, there appear to be exceptions to these general rules. See, e.g., § 775.0837, Fla. Stat. (2011) (concerning habitual misdemeanor offenders); Collins v. State, 626 So.2d 991, 993 (Fla. 1st DCA 1993) ("Section 948.15(1), Florida Statutes (1991), provides that a defendant found guilty of a misdemeanor shall be subject to supervision for not more than six months, unless otherwise specified by the court, or unless the use of alcohol is a significant factor in the offense (then probation may extend to one year).”). Nothing in this record suggests that any exceptions to these general rules were applicable here.


text:
    Claudia HERRERA-FRIAS, Appellant, v. Jesus FRIAS, Appellee.
    No. 2D12-3294.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2014.

      Claudia Herrera-Frias, pro se.
    Kenneth R. Turner, Jr., Naples, for Ap-pellee.
   ALTENBERND, Judge.

Claudia Herrera-Frias appeals the judgment of dissolution of her marriage to Jesus Frias. She challenges the trial court’s decisions relating to equitable distribution. She also challenges the trial court’s decision to award her husband sole parental responsibility for the three children of the marriage while giving her limited contact with the children. Finally, she challenges the trial court’s calculation of child support.

The record in this case does not contain a transcript of the final hearing. As a result, we do not know what evidence the trial court considered when making its decision. We gave Ms. Herrera-Frias an opportunity to provide this court with a transcript, but she has failed to provide a transcript. It appears likely that neither party arranged for that hearing to be recorded.

The record reflects that Ms. Herrera-Frias has not complied with the judgment on appeal. Prior to the entry of the final judgment, she willfully disobeyed a court order, fleeing to Mexico with her three children. She has not returned the children to the United States, despite the fact that at least one of the children is a United States citizen. This court presumably had the authority to dismiss this appeal because of her noncompliance. See Gazil v. Gazil, 343 So.2d 595 (Fla.1977). We have not dismissed the appeal because we are aware that proceedings are pending in Mexico seeking the return of these children to the United States and we want that court to have confidence that this court has accorded a full measure of due process to Ms. Herrera-Frias.

Concerning equitable distribution, we note that the judgment on appeal requires that all property of the marriage in the United States be sold and the proceeds divided equally between the parties. It identifies certain property in Mexico, some of which is awarded to Ms. Herrera-Frias. Although our ability to review the equitable distribution is extremely limited without a transcript, there is nothing in the judgment on appeal that would appear to be incorrect or not in accordance with Florida law.

Concerning child custody and child support, again our review is hampered by Ms. Herrera-Frias’s failure to take the steps necessary to provide a record to this court. Under Florida law, it was her responsibility to take those steps if she wished to challenge a decision by the trial court that was dependent upon the evidence and arguments before that court. See Fla. R. App. P. 9.200(e); Carney v. Carney, 861 So.2d 1272 (Fla. 1st DCA 2008). When a parent is in willful violation of a pretrial order addressing the removal of the children from the jurisdiction of the court, it is well within the discretion of the trial court to award sole responsibility to the parent who is properly before the court and compliant with the orders of that court.

Affirmed.

DAVIS, C.J., and BLACK, J., Concur.

      . We note that although Ms. Herrera-Frias is representing herself in this appeal, she was represented by counsel in the trial court until she refused to comply with the order requiring her to return the children to Florida.


author: SLEET, Judge.

text:
    Fred WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6116.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2014.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Fred Washington appeals his judgment and sentences after pleading nolo conten-dere to grand theft and dealing in stolen property. He argues that the trial court erred in adjudicating him guilty of both crimes and that the trial court erred in denying his motion to suppress. We affirm the second issue without comment. However, we write to address the correctness of Washington’s dual convictions for both grand theft and dealing in stolen property. Because both offenses stem from the same course of conduct, we reverse.

On November 14, 2011, the State charged Washington by way of a single information with grand theft and dealing in stolen property. Washington allegedly stole a Nintendo Wii game console on October 14, 2011, and pawned it between October 14, 2011, and October 18, 2011.

On October 26, 2012, Washington entered into a plea agreement in which he agreed to plead nolo contendere in exchange for a forty-two-month prison sentence. The trial court adjudicated Washington guilty on both counts and sentenced him to concurrent prison time in accordance with the plea agreement.

Washington argues that the trial court improperly adjudicated him guilty of both grand theft and dealing in stolen property because the dual convictions are impermissible under Florida law. Because this issue is a question of pure law, this court reviews the judgment and sentence de novo. See Lafferty v. State, 114 So.3d 1115, 1117 (Fla. 2d DCA 2013).

Washington correctly argues that convictions for both grand theft and dealing in stolen property are impermissible when they arise from the same scheme or course of conduct. See § 812.025, Fla. Stat. (2011). This is so even when a defendant enters an open guilty or no contest plea to the charges. Hall v. State, 826 So.2d 268, 271 (Fla.2002); Pomaski v. State, 989 So.2d 721, 723 (Fla. 4th DCA 2008). The information in this case indicates that the grand theft occurred on October 14, 2011, and that the dealing in stolen property occurred sometime between October 14, 2011, and October 18, 2011. Thus, the threshold issue is whether the two offenses can be a part of the same course of conduct if the conduct occurred as much as four days apart.

This court has held that dual convictions are impermissible when the theft and the dealing in stolen property occurred on the same day. See Wilson v. State, 884 So.2d 74, 77 (Fla. 2d DCA 2004). The First District determined that dual convictions were impermissible where the defendant stole a television set and sold it four days later. Stallworth v. State, 538 So.2d 1296, 1299 (Fla. 1st DCA 1989). This is especially true when there is nothing that meaningfully disrupts the flow of a defendant’s conduct by a set interval of time or set circumstances. Id.

A review of the record fails to reveal any meaningful disruption in Washington’s conduct. Accordingly, we hold that the offenses of grand theft and dealing in stolen property in this case arise from the same course of conduct and are not permitted. Therefore, we reverse and remand with directions that the trial court vacate the grand theft conviction. See Anucinski v. State, 90 So.3d 879, 882 (Fla. 2d DCA 2012).

Reversed and remanded.

LaROSE and MORRIS, JJ., Concur.