author: WOLF, J.

text:
    George LEWIS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D12-2806.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Rehearing Denied April 10, 2013.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Mark Hiers, Assistant Attorney General, Florida Parole Commission, Tallahassee, for Appellee.
   WOLF, J.

George Lewis, appellant, appeals from the trial court’s determination that his petition for writ of mandamus challenging his presumptive parole release date (PPRD) was untimely as a result of the application of section 95.11(5)(f), Florida Statutes (2011). He alleges that the statute constitutes an unconstitutional infringement on the Florida Supreme Court’s rulemaking power pursuant to article V, section 2(a) of the Florida Constitution. We find the statute to be constitutional pursuant to the dictates of Kalway v. Singletary, 708 So.2d 267, 269 (Fla.1998), and affirm.

Appellant is serving a life sentence with a minimum mandatory twenty-five years in prison for first-degree murder and twelve years in prison for sexual battery. An initial parole interview was held on March 26, 2010, and at the following Florida Parole Commission (Commission) meeting, the PPRD was established as August 30, 2051. Appellant requested a review of the Commission’s action, and the review meeting was held on October 20, 2010. The decision of the Commission was filed with the clerk on October 29, 2010.

On January 20, 2012, appellant (through counsel) filed a Complaint for Writ of Mandamus with the circuit court to review the Commission’s decision. Finding the com-plainf/petition facially sufficient, the court issued an Order to Show Cause. The Commission filed a response which included an allegation that the petition was time-barred pursuant to section 95.11(5)(f) and Moger v. Florida Parole Commission, 22 So.3d 138 (Fla. 1st DCA 2009), rev. denied 32 So.3d 59 (Fla.2010). Appellant filed a reply, arguing that section 95.11(5)(f) violated the separation of powers doctrine and was therefore unconstitutional. The lower court dismissed the petition as time-barred by statute, indicating that the First District already determined the applicability of section 95.11(5)(f) to parole determinations in Moger. The court also pointed out that, as mandamus is non-habeas relief, other cases finding the unconstitutionality of section 95.11 in the habeas context, such as Jones v. Florida Parole Commission, 48 So.3d 704 (Fla.2010), are not applicable. Constitutional challenges to statutes are pure questions of law, subject to de novo review. Haddock v. Carmody, 1 So.3d 1133 (Fla. 1st DCA 2009).

In 1986, with the repeal of a prisoner’s ability to file an appeal of an administrative proceeding, the Florida Supreme Court acknowledged that the proper method to seek review of a, PPRD determination is a complaint or petition for writ of mandamus and, for review of effective parole release dates, a writ of habeas corpus. Griffith v. Fla. Parole & Probation Comm’n, 485 So.2d 818, 820 (Fla.1986). The court noted at that time that a petition for writ of mandamus was “subject to no rigid time requirement for filing.” Id. at 819 n. 1.

In 1996, the Florida Legislature adopted section 95.11(5)(f) establishing the one-year limit on petitions for extraordinary writs filed by or on behalf of prisoners. See Ch. 96-106, Laws of Fla.

Article V, section 2(a) of the Florida Constitution grants the supreme court the exclusive authority to adopt rules of “practice and procedure.” Where the Legislature enacts a procedural law, it encroaches upon the judicial branch and violates the separation of powers doctrine. However, the supreme court has, at times:

deferred to the expertise of the legislature in implementing its rules of procedure. See, e.g., Amendment to Florida Rule of Juvenile Procedure 8.100(a), 667 So.2d 195, 195 (Fla.1996) (noting that the need for juvenile detention shall be made “according to the criteria provided by law” and explaining that these “include those requirements set out in section 39.042, Florida Statutes (1995)”); In re Family Law Rules of Procedure, 663 So.2d 1049, 1086 (Fla.1995) (setting forth amended rule 12.740, which provides that all contested family matters may be referred to mediation, “[e]xeept as provided by law”).

Kalway, 708 So.2d at 269.

In Kalway, the supreme court acknowledged such a deferral in Florida Rule of Civil Procedure 1.630, entitled “Extraordinary Remedies,” which provides in part:

(a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certiora-ri, and habeas corpus.
(c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certio-rari shall be filed within 30 days of rendition of the matter sought to be reviewed.

(Emphasis added).

The Kalway court relied on this rule language to find that section 95.11(8), Florida Statutes, which limits the time to challenge a disciplinary decision of the Department of Corrections to thirty days, was not a violation of the separation of powers doctrine and was, therefore, constitutional. Kalway, 708 So.2d at 269. It is the interplay of the rule and the statute that prevents a violation of the separation of powers doctrine. The Commission argues that the same reasoning should apply for section 95.11(5)(f).

The supreme court, however, has limited the broad language of Kalway. In Allen v. Butterworth, the supreme court considered a constitutional challenge to the Death Penalty Reform Act (DPRA), which attempted to alter drastically the postcon-viction procedure of Florida Rule of Criminal Procedure 3.850 motions, which are a substitute for habeas corpus petitions. The act was challenged as a violation of the separation of powers doctrine, a suspension of the writ of habeas corpus, and a violation of equal protection and due process. 756 So.2d 52, 59 (Fla.2000). The court rejected the argument that Kalway applied to habeas corpus petitions and wrote:

It is important to note that, unlike the DPRA, which poses equal protection and due process problems, there were no constitutional infirmities with the thirty-day deadline at issue in Kalway. However, we clarify our holding in Kalway in order to make it clear that this Court did not cede to the Legislature the power to control the time in which extraordinary wit actions must be commenced.

Allen, 756 So.2d at 62 n. 4. (emphasis added). Further:

[T]he writ of habeas corpus and other postconviction remedies are not the type of “original civil action” described in Williams [v. Law, 368 So.2d 1285 (Fla. 1979)], for which the Legislature can establish deadlines pursuant to a statute of limitations. Due to the constitutional and quasi-criminal nature of habeas proceedings and the fact that such proceedings are the primary avenue through which convicted defendants are able to challenge the validity of a conviction and sentence, we hold that article V, section 2(a) of the Florida Constitution grants this Court the exclusive authority to set deadlines for postconviction motions.

Id. at 62 (emphasis added).

In Jones, the supreme court, applying the Allen analysis, concluded that Kalway and section 95.11(5)(f) did not apply to habeas corpus petitions filed to challenge parole revocation matters. 48 So.3d at 708. Additionally, the Jones court found that a habeas corpus petition would always be timely:

The writ of habeas corpus is one of the most important and protected legal rights in both United States and Florida jurisprudence. “The purpose of a habe-as corpus proceeding is to inquire into the legality of the petitioner’s present detention.” Sneed v. Mayo, 69 So.2d 653, 654 (Fla.1954) (emphasis supplied). The purpose of a habeas petition is not to challenge the judicial action that places a petitioner in jail; rather, it challenges the detention itself. Section 95.11(5)(f) does not provide for a specific time when causes of action subject to its statute of limitations accrue. Even if this Court were to find that section 95.11(5)(f) can constitutionally be applied to habeas petitions, which we do not, a new cause of action would accrue each day that a defendant is detained. If a petitioner alleges that he is unlawfully detained, “his claim [is] necessarily filed within the one-year time limitation established by the statute.” Martin [v. Fla. Parole Comm’n, 951 So.2d 84, 86 (Fla. 1st DCA 2007) ]. Here, Jones was detained at the time his habeas petition was filed, so it was timely even under an unconstitutional application of section 95.11(5)(f).

Jones, 48 So.3d at 710-711.

We are, thus, faced with the question of whether the reasoning of Kalway applies to a non-habeas petition which does not challenge the prisoner’s present detention. In Moger, 22 So.3d 138, we applied the statute to such a situation but did not expressly reach the constitutional issue.

Appellant wishes this court to focus on the language from Allen and Jones that the court “did not cede” its power to control the time in which extraordinary writs actions must be commenced. We interpret this language to mean, as in Kalway, that while the supreme court could always override the Legislature in this area, absent action by the court, the “as provided by law” language in Florida Rule of Civil Procedure 1.630 gave the Legislature the opportunity to adopt reasonable time limitations.

The reason Florida Rule of Civil Procedure 1.630 and Kalway did not apply in Jones and Allen was because of the special constitutional protections related to habeas corpus. The application of section 95.11(5)(f) in the instant situation does not raise the same concerns.

Appellant also relies on language contained in Johnson v. Florida Parole Commission, 841 So.2d 615 (Fla. 1st DCA 2003). We find that any language in Johnson related to writs of mandamus in PPRD proceedings was dicta as the issue in that case involved the review of the revocation of parole by petition for writ of habeas corpus. Thus, any reliance on Johnson in the PPRD context is misplaced.

Here, the issue does not involve a petition for habeas corpus. The only constitutional challenge to the statute is a separation of powers challenge. Appellant raises no other “constitutional infirmities” in applying Florida Rule of Civil Procedure 1.630 and section 95.11(5)(f) to non-habeas writs. Until the Florida Supreme Court exercises its authority to control the time in which a PPRD writ of mandamus must be commenced, Florida Rule of Civil Procedure 1.630 controls and the time shall be “as provided by law.” Because of this interplay of rule and law, section 95.11(5)(f) does not violate the separation of powers doctrine.

AFFIRMED.

BENTON, C.J. and SWANSON, J., Concur.

      . The Kalway court did acknowledge its recent adoption of the same thirty-day limit in Florida Rule of Appellate Procedure 9.100(c)(4), but that rule would not have been applicable to the outcome of the previously-filed Kalway case.

      . Other cases cited by appellant, including Roberts v. Florida Parole Commission, 951 So.2d 75 (Fla. 1st DCA 2007), do not specifically address the applicability or constitutionality of section 95.11(5)(f) in the PPRD context either because the case did not involve a PPRD or because one year had not yet lapsed between the final decision of the Commission and the filing of the petition for writ of mandamus.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John A. OLIVER, Appellant, v. Mary Anne OLIVER, Appellee.
    No. 5D11-2770.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Rehearing and Rehearing En Banc Denied May 16, 2013.
    Sean P. Sheppard, of J. Scott Gunn, P.A., Ft. Lauderdale, for Appellant.
    A. Russell Smith, of A. Russell Smith, P.A., Jacksonville, and Michael J. Korn and Mary C. Coxe, of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   PER CURIAM.

John A. Oliver, the former husband, appeals a final judgment dissolving his marriage to Mary Anne Oliver, the former wife. We affirm the final judgment, but modify one provision. The final judgment required the former husband to reimburse the former wife seventy-five percent of the cost of any medical expenses incurred by the minor or dependent children. We modify this provision to apply only to non-elective reasonable and necessary medical expenses. The former husband is not responsible for elective medical procedures, absent his express agreement or court order. See Hill v. Hill, 706 So.2d 406, 407 (Fla. 5th DCA 1998).

AFFIRMED as MODIFIED.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    Frank Andre MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4936.
    District Court of Appeal of Florida, First District.
    March 18, 2013.

      Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Chief-Criminal Appeals, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his convictions and sentences for Lewd and Lascivious Molestation and Aggravated Stalking. We affirm his convictions without further comment. We, however, agree with Appellant that it was error to impose consecutive sentences for Count I, Lewd and Lascivious Molestation, and Count II, Aggravated Stalking. Appellant was sentenced as a prison release reoffender (PRR) and designated a sexual predator. PRR sentences may not be ordered to run consecutively when the crimes were committed during a single criminal episode. See Preston v. State, — So.3d -, -(Fla. 1st DCA 2012); Robinson v. State, 829 So.2d 984, 985 (Fla. 1st DCA 2002). Because we conclude that Count I and Count II occurred during the same criminal episode, Appellant’s consecutive PRR sentences were error.

Upon resentencing, the trial court may remove the PRR designation on one of the counts and still impose consecutive sentences. See Reeves v. State, 957 So.2d 625, 628-29 (Fla.2007) (holding that Criminal Punishment Code sentence can run consecutive to PRR sentence even though offenses arose from same criminal episode). Although not argued by the State, we recognize an apparent conflict between our opinion in Preston and the Fifth District’s opinion in Young v. State, 37 So.3d 389, 391 (Fla. 5th DCA 2010), which in analyzing the Supreme Court’s decision in Reeves, held that consecutive PRR sentences are not prohibited.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

WOLF, PADOVANO, and THOMAS, JJ., Concur.


text:
    Victor Lopez RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4684.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Rehearing Denied May 31, 2013.

      Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach,- for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d - (Fla.2012).

TAYLOR, Levine and CONNER, JJ., concur.


text:
    William L. WHIPPLE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-45.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Rehearing Denied April 16, 2013.
    William L. Whipple, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SHEPHERD, SALTER, and FERNANDEZ, JJ.
   On Order to Show Cause

PER CURIAM.

On January 16, 2013, we issued an order treating Whipple’s petition for common law writ of habeas corpus as a Florida Rule of Appellate Procedure 9.141(d) petition alleging ineffective assistance of appellate counsel, and denied the petition. At the same time, we ordered Whipple to show cause why he should not be prevented from filing further pro se appeals, petitions, or motions in this court regarding the conviction and sentence imposed in lower tribunal Case No. 93-40908. See State v. Spencer, 751 So.2d 47 (Fla.1999) (holding a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). After carefully considering Whipple’s response to this court’s order, we conclude good cause has not been shown.

Accordingly, Whipple now is prohibited from filing any further pro se appeals, pleadings, motions, or petitions in this court relating to the conviction and sentence in Case No. 93-40908. We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to lower court Case No. 93^10908, unless they have been reviewed and signed by an attorney who is a duly licensed member of the Florida Bar in good standing. See Johnson v. State, 915 So.2d 682 (Fla. 3d DCA 2005) (ordering, after repeated denials of frivolous pro se filings, that any future papers filed be reviewed and signed by an attorney licensed to practice law). We also caution Whipple that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court is subject to having his gain-time forfeited. See Minor v. State, 963 So.2d 797 (Fla. 3d DCA 2007).


text:
    Nikee Taron TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-678.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2013.
    Rehearing and Rehearing En Banc Denied May 16, 2013.
    Nikee Taron Turner, Zephyrhills, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

TORPY, EVANDER and COHEN, JJ„ concur.


text:
    1500 CORAL TOWERS CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D12-132.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.
    Rehearing Denied May 24, 2013.

      Mager Lawyers and Scott A. Mager and Gerard A. Marino, Fort Lauderdale, for appellant.
    Hinshaw & Culbertson and James H. Wyman, Fort Lauderdale, and Maureen G. Pearcy, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Citizens Property Insurance Corporation’s motion for rehearing, withdraw our previous opinion issued February 6, 2013, and substitute the following opinion in its place:

1500 Coral Towers Condominium (“Coral Towers”) appeals a final summary judgment in favor of Citizens Property Insurance Corporation (“Citizens”) in a breach of contract action. We have reviewed, once again, the entire record as well as controlling case law and conclude that the trial court was correct in finding Citizens was presumed prejudiced by Coral Towers’ late notice and, based on our de novo review, find that Coral Towers failed to overcome the presumption of prejudice. Therefore, we affirm the trial court’s summary judgment in favor of Citizens.

At the time of Hurricane Wilma, in October 2005, Coral Towers was insured under a commercial-residential property insurance policy with Citizens. Approximately five years after Hurricane Wilma, on June 29, 2010, Coral Towers notified Citizens for the first time that the property had sustained damages as a result of Hurricane Wilma. Pursuant to the terms of the insurance policy, Citizens requested that Coral Towers submit a sworn proof of loss within sixty days. Coral Towers did not submit the proof of loss within sixty days. In October 2010, Coral Towers brought suit for breach of contract alleging that it had properly and timely notified Citizens of the damages it had sustained to the condominium properties as a result of Hurricane Wilma. It also alleged that Citizens had denied its claim. Citizens filed an answer and asserted affirmative defenses alleging that Coral Towers had failed to give prompt notice of the alleged loss and had breached the following policy provisions:

4. You[r] Duties After Loss. In case of a loss to covered property, you must:
a. Give prompt notice to us, or your producer, who is to give immediate notice to us.
d. Send to us, within sixty (60) days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1) The time and cause of loss;
(2) Your interest and that of all others in the Covered Property involved, and all liens on the covered property;
(3) Other insurance which may cover the loss;
(4) Changes in titles or occupancy of the Covered Property during the term of the Policy;
(5) Specifications of damaged buildings and detailed repair estimates;
(6) The inventory of damaged and undamaged personal property described in Condition number 4.b., Your Duties After Loss.

Citizens also asserted as an affirmative defense that Coral Towers was barred from recovery because it had failed to comply with conditions precedent to filing the lawsuit under the following policy provision:

15. Suits Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within five (5) years from the date the loss occurs.

Three months after filing suit, Coral Towers provided the sworn proof of loss. The first opportunity Citizens had to inspect the property was in early August of 2010.

In discovery, Coral Towers admitted knowledge of the loss in November 2005, and that a roofer had repaired the elevator, roof, and surrounding walls in December 2005. The roof continued to leak and Coral Towers obtained estimates to replace the roof. The latter of the estimates was for $259,269.20. The reason Coral Towers alleged it did not notify Citizens immediately after Hurricane Wilma was because initially there was a question of whether the damages would exceed the policy deductible.

In September 2011, Citizens moved for summary judgment on grounds that Coral Towers was barred from recovery as a result of the failure to give prompt notice and failure to provide a sworn proof of loss within sixty days. Citizens alleged that it was prejudiced by the inability to investigate and evaluate the claim under the policy. Coral Towers maintained that the type of damages it had sustained appeared over time and would not have necessarily evidenced themselves within the first two years after the hurricane. The two issues addressed by the trial court and presented on appeal are whether Coral Towers’ notice of loss was timely and, if not, whether Citizens was prejudiced by the late notice.

We agree with the trial court that there is no factual dispute that Coral Towers failed to give timely notice of the loss. When an insurance contract contains a provision which applies to notice of the damage claim, an insured must give notice of the loss that implicates a potential claim without waiting for the full extent of the damages to become apparent. Kendall Lakes Towers Condo. Ass’n v. Pacific Ins. Co., No. 10-24310-CIV, 2012 WL 266438 (S.D.Fla. Jan. 30, 2012); see Clena Invs., Inc. v. XL Specialty Ins. Co., No. 10-CV-62028, 2012 WL 1004851 (S.D.Fla. March 26, 2012); Gypsum Co. v. Travelers Indent Co., 417 So.2d 254 (Fla.1982)(preju-dice is assumed when the insured does not give notice of a possible claim); Ideal Mut. Ins. Co. v. Waldrep, 400 So.2d 782 (Fla. 3d DCA 1981). On facts similar to those before us, the Southern District of Florida has held that a condominium association is not entitled to wait until it determines on its own that the damages in question exceed the deductible under its insurance policy or until it ascertains the precise cause of the damage before giving notice of the loss or damage under the terms of the insurance contract. Kendall Lakes, 2012 WL 266438, at *4. In Kendall Lakes, the insured waited approximately four years to notify the insurance company of its claim caused by Hurricane Wilma because it believed the damage did not meet the policy deductible. After Hurricane Wilma, the Kendall Lakes Condominium Association had the roof repaired on its own, but the premises continued leaking and required periodic repairs. It was not until 2009, approximately four years after the damage occurred, that the association determined the problems were structural in nature, were, in fact, attributable to Hurricane Wilma, and submitted a claim. The Southern District held:

As a result, Pacific was entitled to prompt notice of the loss following Hurricane Wilma, not, as occurred here, to notice more than four years later. There is no genuine factual dispute that Kendall Lakes did not provide timely notice and Pacific is entitled to judgment as a matter of law on this issue.

Kendall Lakes, 2012 WL 266438, at *4. Here, as in Kendall Lakes, there is no genuine factual dispute that Coral Towers failed to give timely notice as required by the Citizens policy in question. The reasons given by Coral Towers for the late notice do not excuse Coral Towers’ failure to comply with the policy requirements of prompt notice. Therefore, we find the trial court was correct in finding that Citizens was prejudiced by the late notice.

The next question in this analysis is whether Coral Towers can overcome the presumption of prejudice to Citizens caused by the late notice. If not, summary judgment was appropriate. We find, based on yet another extensive review of the record and the case law, Coral Towers failed to overcome this presumption at the hearing for summary judgment. An insurer is prejudiced by untimely notice when the underlying purpose of the notice requirement is frustrated by late notice. 13 Couch on Insurance § 193.30 (3d ed. Supp. 2012). Failure to give timely notice creates a presumption that the insurer was prejudiced. Id.; see, e.g. Ideal Mut. Ins. Co., 400 So.2d at 786. The insured may rebut the presumption of prejudice by alleging and showing that the late notice did not prejudice the insurer. See Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla.1985); Soronson v. State Farm Fla. Ins. Co., 96 So.3d 949 (Fla. 4th DCA 2012). In other words, once the presumption of prejudice exists, the burden shifts to the insured to show that the insurer was not prejudiced by the insured’s late notice. Soronson, 96 So.3d at 953.

As in Kendall Lakes, Citizens alleges that the extended passage of time creates a very strong inference that Citizens’ investigation and defenses have been diminished as a result of the late notice. Also, it alleges that the repairs made without first notifying Citizens hampered the monitoring of, and efforts to coordinate, mitigation of damages. Although the issue of whether an insured has overcome the presumption of prejudice caused by late notice is generally reserved for the trier of fact, it is appropriately raised on summary judgment where, as in this case, the insured fails to present evidence sufficient to rebut the presumption. Soronson, 96 So.3d at 953; see also City Mgmt. Grp. Corp. v. Am. Reliance Ins. Co., 528 So.2d 1299, 1300 (Fla. 3d DCA 1988) (finding a presumption of prejudice to the insurer arose as a result of late notice, and there was nothing in the record to overcome this presumed prejudice or to raise genuine factual issues in relation to it).

The record fails to show any evidence or issue of fact presented by Coral Towers sufficient to overcome the presumption of prejudice resulting from its late notice to the insurer. The closest Coral Towers comes is a conelusory statement by one of its engineers that, in his opinion, the late notice did not prejudice Citizens. This is not the legally sufficient evidence required to overcome the presumption of prejudice. We affirm the trial court’s grant of summary judgment in favor of Citizens.

Affirmed.

      . We do not find it necessary to address the issue raised by Citizens that it would also have been entitled to summary judgment on the separate ground that the insured allegedly failed to timely comply with Citizens’ request of proof of loss.


text:
    CHURCH’S CHICKEN and The Hartford, Appellants/Cross-Appellees, v. Meischel ANDERSON, Appellee/Cross-Appellant.
    No. 1D12-3182.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Rehearing Denied May 20, 2013.

      Hillarey A. McCall of Harbsmeier DeZa-yas, LLP, Lakeland, for Appellants/Cross-Appellees.
    Craig 0. Stewart of Morgan & Morgan, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee/Cross-Appellant.
   PER CURIAM.

We have for review a workers’ compensation case that presents three issues on appeal and one on cross-appeal. We affirm in part and reverse in part for the following reasons.

The Employer/Carrier (E/C) first argues the Judge of Compensation Claims (JCC) erred in the method he employed in directing its recoupment of an advance payment of compensation made to Claimant pursuant to section 440.20(12)(c)l., Florida Statutes (2010). We affirm without comment.

The E/C next argues the JCC erred in awarding payment of medical bills for unauthorized medical services provided to Claimant between March 21, 2011, and March 25, 2011. The bills were deemed by the JCC to have been provided “on an emergency basis.”

The law provides that a JCC’s award of unauthorized emergency room treatment is reviewed for competent, substantial evidence. See Chudnof-James v. Racetrac Petroleum, Inc., 827 So.2d 369, 370 (Fla. 1st DCA 2002) (reversing JCC’s award of medical expenses for emergency room treatment where competent, substantial evidence failed to support finding of medical necessity and causal relationship). It was Claimant’s burden to prove that the treatment was necessitated by the injury which “arose as a result of a work-related accident.” § 440.13(3)(b), Fla. Stat. (2010). The causal relationship “for conditions that are not readily observable must be by medical evidence only....” § 440.09(1), Fla. Stat. (2010). See also Orange County MIS Dep’t v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998) (holding claimant’s lay testimony about cause of back condition, taken alone, was not competent evidence of medical causation). Notwithstanding the JCC’s finding that the services were provided on an emergency basis, there is no medical evidence that the services were causally related or medically necessary for Claimant’s compensable injury. Claimant’s testimony, standing alone, will not support a finding that the treatment was causally related and medically necessary for her compensable back injury. Thus, the JCC’s award of payment for the bills lacks the support of competent, substantial evidence. Accordingly, we reverse the award of payment of the bills for services provided between March 21 and March 25, 2010. Likewise, we reverse the award of entitlement to any attorney’s fee and taxable costs associated with the reversed award of medical bills.

Finally, on cross-appeal, Claimant challenges the JCC’s denial of temporary partial disability benefits for three days— March 26 through 28, 2011. The JCC found, and it is unchallenged, that Claimant “had restrictions on her physical activity after the date of the accident throughout the remainder of her employment with the employer here [and] that ended on March 28, 2011 when Dr. Sharf took her off work completely.” Claimant testified her job required her to regularly lift up to twenty pounds and, on occasion, she was required to lift weight in excess of even that amount. On February 16, 2011, Dr. Sharf limited Claimant’s lifting to no more than ten pounds, along with no prolonged bending, stooping, squatting, crawling, or kneeling.

Nevertheless, the JCC awarded temporary partial disability benefits only through March 25, 2011, and denied benefits for the period March 26 through March 28 on grounds that Claimant had not shown why she had not worked on those days. The JCC applied an incorrect legal standard in denying those three days.

This Court, in Wyeth/Pharma Field Sales v. Toscano, 40 So.3d 795, 799 (Fla. 1st DCA 2010), stated:

Generally, the test used to determine whether physical limitations after an accident are a contributing causal factor to a loss of wages is whether a claimant’s capabilities allow her to return to and adequately perform her prior job with the employer, and whether the workplace injury caused a change in employment status resulting in a reduction of her wages below 80% of her pre-injury average weekly wage.

See also Interim Servs. v. Levy, 843 So.2d 915, 916-17 (Fla. 1st DCA 2003) (stating that in order to establish causal relationship between injury and wage loss, “a claimant can show that his or her capabilities preclude adequate performance of his or her prior job”).

Thus, once Claimant satisfied her initial burden of proving the causal connection for the wage loss, that cause remained the established cause unless and until an intervening or superseding cause for the wage loss was demonstrated by the E/C. See Toscano, 40 So.3d at 803 (“[T]he cause of a claimant’s displacement from employment and wages, once established, remains the cause unless an intervening or superseding cause is established.”). See also Thayer v. Chico’s FAS, Inc., 98 So.3d 766, 768 (Fla. 1st DCA 2012) (same, citing Toscano). Because the JCC did not find that the E/C established either of its affirmative defenses (deemed earnings because work was available or voluntary limitation of income — either of which would have been an intervening or superseding cause), the JCC erred in denying payment of benefits for those three days. Accordingly, the JCC’s denial of temporary partial benefits for March 26, 2011, to March 28, 2011, is reversed. On remand, the JCC is directed to enter an order awarding the same.

AFFIRMED in part, REVERSED in part, and REMANDED for entry of an order consistent with this opinion.

LEWIS, THOMAS, and MAKAR, JJ., concur.


author: LaROSE, Judge.

text:
    Terry HUNT, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 2D11-6484.
    District Court of Appeal of Florida, Second District.
    April 5, 2013.
    Rehearing Denied May 23, 2013.

      Matthew R. Danahy and Kimberly E. Low of Danahy & Murray, P.A., Tampa, for Appellant.
    Lee Craig and Timothy R. Engelbrecht of Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Appellee.
   LaROSE, Judge.

Terry Hunt appeals a final summary judgment in favor of his insurer, State Farm, in his bad-faith lawsuit. The trial court erred in ruling that Mr. Hunt could not maintain a bad-faith claim without a breach-of-contract judgment against State Farm. The trial court also erred in ruling that the civil remedy notice provided under section 624.155, Florida Statutes (2006), was invalid for failure to include a definite cure amount. We reverse.

Mr. Hunt’s home sustained sinkhole damage in July 2006. He filed a claim with State Farm. Mr. Hunt disagreed with State Farm’s damages estimate. In April 2007, he sued State Farm and filed a civil remedy notice of insurer violation (CRN) pursuant to section 624.155. The Florida Department of Financial Services accepted the CRN on April 25, 2007, which began a sixty-day period in which State Farm could cure its alleged wrongful conduct. See § 624.155(S)(a). State Farm moved to dismiss Mr. Hunt’s lawsuit and to require an appraisal. The trial court abated the lawsuit and granted the motion for appraisal.

In October 2008, a $162,571.61 appraisal award was entered in Mr. Hunt’s favor. State Farm paid that amount. The trial court awarded Mr. Hunt attorney’s fees in February 2010. See § 627.428, Fla. Stat. (2009); Goff v. State Farm Fla. Ins. Co., 999 So.2d 684, 688 (Fla. 2d DCA 2008) (holding insurer’s payment of appraisal award after insured files suit but before judgment is functional equivalent of confession of judgment, entitling insured to section 627.428 attorney’s fees). Mr. Hunt voluntarily dismissed his lawsuit but subsequently filed this bad-faith action in the fall of 2010. State Farm moved for summary judgment or, alternatively, dismissal, arguing that Mr. Hunt (1) had not obtained a judgment against State Farm in the first lawsuit and (2) had not specified a definite cure amount in his CRN.

The Appraisal Satisfied the Favorable Resolution Requirement

The trial court ruled that a judgment against State Farm for breach of contract was a condition precedent to a bad-faith action. In Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289, 1291 (Fla.1991), the supreme court held that a bad-faith action cannot accrue until the underlying lawsuit seeking insurance benefits is resolved in the insured’s favor:

[A]n insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue.... Absent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiffs damages, a cause of action cannot exist for a bad faith failure to settle.

See also Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla.2000) (“[B]ringing a cause of action in court for violation of section 624.155(l)(b)l is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract.”). But, “[a] judgment on a breach of contract action is not the only way of obtaining a favorable resolution.” Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., 100 So.3d 1155, 1158 (Fla. 4th DCA 2012). For example, “an arbitration award establishing the validity of an insured’s claim satisfies the condition precedent required to bring a bad faith action.” Id. (citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216 (Fla.2006)). Similarly, as in this case, an appraisal award establishes the validity of Mr. Hunt’s claim and satisfies this condition precedent. See id.

Cure Amount

The trial court’s second justification for granting summary judgment was its finding that “[Mr. Hunt’s] civil remedy notice is invalid because there is no definite ‘cure’ amount.” Mr. Hunt argues that Florida law imposes no such requirement. The trial court’s order relies on Talat Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So.2d 1278 (Fla.2000), as support. Talat recites the unremarkable proposition that “for there to be a ‘cure,’ what ha[s] to be ‘cured’ is the non-payment of the contractual amount due the insured” and that “the remedy itself does not ripen if the insurer pays what is owed on the insurance policy during the cure period.” Id. at 1284. Talat does not hold that the CRN must provide a specific cure amount.

Section 624.155, Florida Statutes (2005), provides, in pertinent part, as follows:

624.155. Civil remedy
(3)(a) As a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days’ written notice of the violation. If the department returns a notice for lack of specificity, the 60-day time period shall not begin until a proper notice is filed.
(b) The notice shall be on a form provided by the department and shall state with specificity the following information, and such other information as the department may require:
1. The statutory provision, including the specific language of the statute, which the authorized insurer allegedly violated.
2. The facts and circumstances giving rise to the violation.
3.The name of any individual involved in the violation.

On its face, the statute does not require a specific cure amount. We are hesitant to impose a requirement beyond that directed by the legislature.

State Farm relies on two federal cases, Longpoint Condominium Ass’n v. Allstate Insurance Co., No. 5:05CV45RHWCS, 2005 WL 1315810 (N.D.Fla.2005), and 316, Inc. v. Maryland Casualty Co., 625 F.Supp.2d 1187 (N.D.Fla.2008), for its argument that the CRN requires a specific cure amount. Longpoint states that the CRN must be “sufficient to apprise [the insurer] of the assertion that it ha[s] inadequately investigated the claim and failed to pay the [amount of the] demand.” 2005 WL 1315810, at *2 n. 3. Longpoint does not hold that the CRN must include the amount of the demand. Similarly, 316 does not sweep as broadly as State Farm urges. Rather, 316 states:

Of concern to me are the shortcomings in the Civil Remedy Notice and in the Plaintiffs pleadings. Plaintiffs Civil Remedy Notice was written in such general terms that it gave no actual notice of the specific actions that Defendant could have undertaken to cure it. Additionally, Plaintiff has not stated in any of its pleadings the amount it contended Defendant should have paid to avoid bad-faith litigation at the time the Notice was filed.

316, 625 F.Supp.2d at 1193-94 (emphasis added). We cannot discern from this language any intent to impose added content to the CRN.

In Vest, the supreme court stated that the insured may submit a CRN before liability or damages have been determined; the insurer’s appropriate response to the CRN is not dependent on such a determination. 758 So.2d at 1275. Rather the insurer must make a “good-faith evaluation of what is owed ... based upon proof of loss required by the policy and [the insurer’s] expertise in advance of a determination by a court or arbitration.” 753 So.2d at 1275-76. The court further explained that “[w]hat is owed on the contract is in turn governed by whether all conditions precedent for payment contained within the policy have been met.” Id. at 1275.

We also recognize the holdings of several federal court decisions that section 624.155(3)(b) does not require the CRN to allege a specific cure amount. See, e.g., King v. Gov’t Emps. Ins. Co., No. 8:10-cv-977-T-30AEP, 2012 WL 4052271, at *7 (M.D.Fla. Sept. 13, 2012) (citing Bullard Bldg. Condo. Ass’n v. Travelers Prop. Cas. Co. of Am.,' No. 8:08-cv-50-T-30MAP, 2009 WL 2423436, at *10 (M.D.Fla. Aug. 4, 2009); Tropical Paradise Resorts, LLC v. Clarendon Am. Ins. Co., No. 08-60254-CIV, 2008 WL 3889577, at *3 (S.D.Fla. August 20, 2008)). As is apparent from our discussion, we must agree.

We reverse final summary judgment and remand for further proceedings.

Reversed and remanded.

ALTENBERND and MORRIS, JJ., concur.

      . Although Mr. Hunt has been paid the full appraisal award and attorney's fees, he is essentially seeking delay damages for the period between when the claim was paid and when he maintains it should have been paid.

      . Cf. Goff, 999 So.2d at 688 (holding payment of policy proceeds after suit is filed but before judgment has been rendered is equivalent of confession of judgment or verdict in insured’s favor (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla.2000))).

      .
      The judiciary must use a degree of common sense in deciding whether the legislature’s intent is sufficiently clear that the court may imply a qualifying phrase within a statute. If there is any reasonable concern that a reading other than a strict interpretation might not comport with the legislature’s intent, the legislature should generally be required to amend the statute, if that is necessary to fulfill its actual intent.

        Doe v. Dep't of Health, 948 So.2d 803, 809 (Fla. 2d DCA 2006) (footnote omitted).

      . We note that “a claim brought prematurely is not subject to a summary judgment [and] should be dismissed as premature.” Vest, 753 So.2d at 1276.


author: MORRIS, Judge.

text:
    Adam DERMIO, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-647.
    District Court of Appeal of Florida, Second District.
    April 5, 2013.
    Rehearing Denied May 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Adam Dermio appeals his judgments and sentences for armed trafficking in illegal drugs (four to fourteen grams), possession of a firearm by a convicted felon, possession of a controlled substance with intent to sell or deliver, possession of cannabis (under twenty grams), and possession of drug paraphernalia. Dermio filed a motion to suppress which addressed evidence obtained as a result of an encounter between Dermio and a Manatee County sheriffs deputy as well as Dermio’s confession. The motion was denied. Thereafter, Dermio entered a no contest plea to the charges while specifically reserving his right to appeal the denial of the motion. For the reasons set forth herein, we affirm.

I. Background

In March 2010, a Manatee County sheriffs deputy came across Dermio’s car parked in the parking lot of a local bar around 3:30 in the morning. The ear’s motor was running and the lights were on. The deputy pulled in behind Dermio’s car and turned on her emergency lights. Because there was a barrier in front of Der-mio’s car, he would not have been able to back out of the parking space without hitting the deputy’s car. As the deputy got out of her car and walked up to Dermio’s car, she noticed that Dermio, who was sitting in the driver’s seat, had his head cocked to the left side and had a cell phone lodged between his shoulder and cheek. However, the deputy noted that Dermio’s eyes were closed and that he appeared to be asleep. The deputy shined her flashlight in the window, but when Dermio did not respond, the deputy tapped her flashlight on the window. At that point, Der-mio awoke but he seemed “really out of it” and incoherent. The deputy then asked Dermio to roll down the window. When Dermio did not respond, the deputy identified herself as being with the sheriffs office and asked him a second time to roll down the window. Still Dermio did not respond. After the deputy made a third request to roll down the window with no response and because Dermio still appeared to be incoherent, the deputy testified that she opened the door to the car because she was concerned for Dermio’s safety. Upon opening the door, the deputy smelled the odor of burnt marijuana and observed a metal pipe on the center console. Eventually, Dermio’s car was searched, and in addition to the pipe, a firearm, marijuana, and varying types and amounts of other drugs were located. Dermio was transported to the sheriffs office, and after being advised of his Miranda rights, he made incriminating statements.

The deputy testified that while she was attempting to talk to Dermio, his eyes were droopy and the deputy had a suspicion that a crime had been committed, to wit: driving under the influence. The deputy testified that her suspicion was based on the facts that the car was running, the lights were on, and Dermio was asleep behind the wheel. On cross-examination, the deputy acknowledged that she had observed no traffic infractions and that Dermio’s car was legally parked. When defense counsel inquired why the deputy conducted “an investigatory stop,” the deputy responded that the “original purpose was to make sure that [Dermio’s] safety was okay, that he was fine. But also in my head was this is a possible DUI.” The deputy further testified that prior to opening the door to Dermio’s car, she did not smell any odor of alcohol or marijuana.

A detective with the sheriffs office conducted the interview with Dermio at the sheriffs office. The deputy who transported Dermio to the sheriffs office testified that she overheard the detective telling Dermio that if he provided truthful statements, she [the detective] could help him. According to the deputy, the detective “didn’t define help, but she did say she could help him.” Dermio subsequently made incriminating statements. The interview was not recorded.

The detective testified that she told Der-mio that “depending on what information he gave, ... I might be able to talk to the judge” and that she might be able to “help [him] out with something.” The detective testified that the Sheriffs Department policy was to “let [defendants] know if there’s anything that we can do that comes of the information [they] give us, then we will talk at a sentencing hearing.” However the detective clarified that she did not make any promises to Dermio and specifically told him there were “[n]o promises.” The detective testified she did not make any representations to Dermio about what type of sentence he could receive.

In the order denying Dermio’s motion to suppress, the court found that the deputy who initially discovered Dermio approached his car to determine if he needed medical attention and that “[the deputy] investigated further ‘for his safety.’ ” The circuit court, relying on Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), held that the deputy’s conduct did not violate the Fourth Amendment prohibition against unreasonable searches and seizures because officers may make a warrantless entry and search where they believe someone is in need of immediate aid.

Addressing Dermio’s confession, the circuit court credited the detective’s testimony that while she told Dermio that she would speak at his sentencing hearing, she did not make any promises to him. The circuit court also noted that there was no evidence of “promises to interact with the State and no quid pro quo.”

Subsequent to the denial of his suppression motion, Dermio agreed to enter a no contest plea to the charges. At the change of plea hearing, Dermio’s counsel notified the court:

We have agreed that the motion to suppress in this case, upon which there is previously entered an order denying the motion, was dispositive as to the search and seizure issue, and we are expressly reselling our right to appeal that order denying the dispositive motion to suppress. And I state that because in the order denying the motion, which came out sometime after the motion was filed, it did not address the dispositive nature of the motion. So it’s something that we agreed upon, that it was a dispositive motion.

The circuit court inquired whether the State agreed with defense counsel’s representation, but the State did not respond to the question, instead addressing the issue of minimum mandatory sentencing. The circuit court eventually found “that the motion to suppress that was previously filed ... is a dispositive motion.” Neither the circuit court nor the State clarified whether the motion was dispositive in its entirety or whether it was dispositive, as defense counsel represented, only on the search and seizure issue.

After Dermio’s plea was accepted, the circuit court adjudicated him guilty and sentenced him to a ten-year minimum-mandatory sentence for armed trafficking in illegal drugs (four to fourteen grams), three years on the charge of possession of a controlled substance with intent to sell or deliver, and to time served on the remaining charges.

II. Analysis

Our standard of review on a motion to suppress is a mixed question of law and fact; we give deference to the circuit court’s factual findings if they are supported by competent, substantial evidence. See Greider v. State, 977 So.2d 789, 792 (Fla. 2d DCA 2008) (citing Bautista v. State, 902 So.2d 312, 314 (Fla. 2d DCA 2005)).

A. There was no unlawful search and seizure.

Because the Fourth Amendment prohibits unreasonable searches and seizures, it is necessary to determine whether a seizure occurred. See id.

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), our supreme court defined three levels of police-citizen encounters.
The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
Id. Next on the escalating hierarchy of police-citizen encounters is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For a police officer to lawfully detain a citizen, “an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, 626 So.2d at 186. The third and final level of a police-citizen encounter “involves an arrest which must be supported by probable cause that a crime has been or is being committed.” Id.

Greider, 977 So.2d at 792.

It is well recognized that police officers may conduct welfare checks and that such checks are considered consensual encounters that do not involve constitutional implications. Id. (recognizing that officer’s making initial contact with driver of car who was lawfully parked late at night in a park was an appropriate welfare check where officer testified he was concerned because towels were obscuring the car windows); Dep’t of Highway Safety & Motor Vehicles v. Luttrell, 983 So.2d 1215, 1217 (Fla. 5th DCA 2008) (opining that officer’s making contact with driver of parked ear supported “a finding of a consensual encounter” and that “[t]he officer was not required to negate each and every possible act or circumstance that might transform a consensual encounter into an investigatory stop”).

Here, the deputy clearly testified that based on the time, location, Dermio’s appearance, the fact that the car motor was running, and the fact the lights were on, she was concerned for Dermio’s safety. The deputy’s classification of the stop as “investigatory” in nature does not control our disposition because it is clear the deputy was initially conducting a welfare check. Thus the interaction began as a consensual encounter. See Greider, 977 So.2d at 792.

We are cognizant that the position of the deputy’s car prevented Dermio from leaving and that the deputy had activated her emergency lights. But in this case, those factors do not lead us to conclude that a seizure occurred when the deputy initially approached because Dermio was asleep and was thus not aware that the deputy had pulled in behind him and activated her emergency lights. Dermio simply had not submitted to a display of police authority. Cf. G.M. v. State, 19 So.3d 973, 978-83 (Fla.2009) (discussing cases involving activation of emergency lights or police officer’s blocking a person’s vehicle and holding that appellant was not seized until he became aware of and submitted to police authority). Indeed, even after Dermio was awakened by the deputy, there was no evidence as to whether he was aware of the deputy’s presence as the deputy testified he was incoherent, “out of it,” and unable to follow her instructions.

Yet, even though the initial stop was consensual, that does not end our analysis because the deputy went on to ask Dermio to roll down the window on multiple occasions and the deputy eventually opened the door to Dermio’s car. This court has repeatedly held that where an officer orders an individual to exit a vehicle, an investigatory stop occurs. See, e.g., State v. Jimoh, 67 So.3d 240, 241-42 (Fla. 2d DCA 2010); Parsons v. State, 825 So.2d 406, 408 (Fla. 2d DCA 2002); Danielewicz v. State, 730 So.2d 363, 364 (Fla. 2d DCA 1999). We have extended that principle to situations where an officer commands an occupant of a car to roll down the window. See Greider, 977 So.2d at 792-93.

However Greider does not control this case because there, during the officer’s initial welfare check, the officer’s concern for the occupant’s safety had subsided and the officer testified he “didn’t think any criminal activity had occurred or was about to occur.” Id. at 792. In contrast, the deputy’s concern for Dermio’s safety in this case had not yet been alleviated because Dermio continued to be incoherent and “out of it.” Consequently, the deputy’s requests for Dermio to roll down the window did not transform the consensual encounter into an investigatory stop.

For the same reason, we do not believe the deputy’s conduct in opening Dermio’s car door transformed the consensual encounter into an investigatory stop. Rather, we hold that under the circumstances of this case, the deputy’s opening of the car door was merely a continuation of the welfare check. Cf. Parsons, 825 So.2d at 409 (noting that nothing suggested deputy still believed appellant was intoxicated at the time he learned appellant was a sex offender); Danielewicz, 730 So.2d at 364 (noting that although officer testified he suspected appellant was intoxicated, he did not testify that he was concerned for appellant’s safety and he acknowledged that people sleep in their cars without criminal implication). Indeed, the fact that Dermio continued to be incoherent and “out of it” despite the deputy’s repeated attempts to communicate with him suggested he might have been in need of assistance, thereby permitting the deputy to enter Dermio’s car under the emergency exception to the warrant requirement. See Mincey, 437 U.S. at 392, 98 S.Ct. 2408 (recognizing emergency exception); Vitale v. State, 946 So.2d 1220, 1221 (Fla. 4th DCA 2007) (“ ‘[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.’” (quoting Mincey, 437 U.S. at 392-93, 98 S.Ct. 2408)).

Based on the deputy’s concern for Der-mio’s safety and the fact that Dermio was unresponsive to the deputy’s attempts to communicate with him, we hold that no unreasonable search or seizure occurred prior to the deputy opening the car door and smelling the odor of marijuana. The deputy was merely conducting a welfare check and her conduct did not violate constitutional principles. Accordingly, we affirm the denial of that portion of the suppression motion dealing with the search and seizure issue.

B. Dermio failed to preserve the challenge to his confession, but even if it had been properly preserved, he would not be entitled to relief.

We have previously recognized that orders denying motions to suppress confessions are not dispositive unless stipulated to by the parties. England v. State, 46 So.3d 127, 129 (Fla. 2d DCA 2010). Dermio argues that the parties did so stipulate, but the record reflects that Dermio’s counsel specifically told the circuit court that there was a stipulation as to the dis-positive nature of the search and seizure issue. Although neither the circuit court nor the State made any specific reference to the parameters of the stipulation, defense counsel’s specific reference to the search and seizure issue indicates the stipulation did not extend to the suppression motion in its entirety. We simply do not believe that this is a case where the record is “murky” as to the breadth of the stipulation. Cf England, 46 So.3d at 129 (finding record “murky” where there were two separate suppression motions and neither the parties nor the court made any differentiation between motions when discussing stipulation). Consequently, the portion of the order dealing with Dermio’s confession was not dispositive and Dermio cannot raise that issue on appeal.

Yet, even if that portion of the order was subject to the stipulation, thereby entitling Dermio to challenge it on appeal, Dermio is not entitled to relief. We have previously held that confessions are not deemed freely and voluntarily given if they have been elicited by direct or implied promises of leniency. State v. Walter, 970 So.2d 848, 851 (Fla. 2d DCA 2007). Thus where an officer offers to “help” or “fix things” without clarification on the limits of the officer’s authority, courts have found that a defendant’s resulting confession was involuntary. See Day v. State, 29 So.3d 1178, 1181 (Fla. 4th DCA 2010); Ramirez v. State, 15 So.3d 852, 856 (Fla. 1st DCA 2009).

But here, the detective testified that while she told Dermio that she would speak for him at his sentencing hearing and “do what she c[ould],” she could “not make any promises.” The detective’s statement was not an unlimited offer to help but merely an offer to make Dermio’s cooperation known to the circuit court. Such a statement by a law enforcement officer does not render a- subsequent confession involuntary. See Walter, 970 So.2d at 852 (relying on Maqueira v. State, 588 So.2d 221, 223 (Fla.1991)); see also State v. Carroll, 103 So.3d 929, 931 (Fla. 2d DCA 2012). Accordingly, even if we had found this issue to have been properly preserved, we would affirm the circuit court’s denial of the motion.

Affirmed.

VILLANTI and WALLACE, JJ., Concur.

      . Beyond the challenge to the denial of the suppression motion, Dermio also argues on appeal that his adjudication and sentencing for the drug-related offenses were fundamentally erroneous because section 893.13, Florida Statutes (2009), is facially unconstitutional. However, the Florida Supreme Court has ruled that section 893.13 is constitutional, State v. Adkins, 96 So.3d 412 (Fla.2012), and therefore we do not further address Dermio's argument on that issue.

      . Specifically, seventy-five Xanax pills, ninety-one roxicodone pills, and fifty-eight methadone pills were discovered.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Hector FERNANDEZ and Vincente Velasquez, Appellees.
    No. 2D11-1837.
    District Court of Appeal of Florida, Second District.
    April 5, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellees.
   DAVIS, Judge.

The State challenges the trial court’s order dismissing for lack of venue charges of trafficking in cocaine and conspiracy to traffic in cocaine filed against codefen-dants Hector Fernandez and Vincente Velasquez in circuit court case number 10-CF-18964. We agree with the trial court that the State did not establish venue in Hillsborough County. However, “[a]s a general principle, a transfer, rather than dismissal, is the preferred remedy for improper venue.” State v. Kotecki, 82 So.3d 1150, 1152 (Fla. 2d DCA 2012). Therefore, as we did in State v. Cisneros, 106 So.3d 42 (Fla. 2d DCA 2013), we reverse the dismissal of these charges and remand for transfer to a county of proper venue.

Reversed and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . We note that the State seems to put forth on appeal arguments regarding RICO offenses charged in circuit court case number 07-CF-35763. These arguments are not properly before this court in the instant appeal because the order dismissing those charges was entered October 10, 2010, and the State never appealed that order.


text:
    Terrance Jamar GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1514.
    District Court of Appeal of Florida, First District.
    April 5, 2013.
    Rehearing Denied May 23, 2013.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Terrance Jamar Graham, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 93 So.3d 371 (Fla. 1st DCA 2012).

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    Bill SCHREFFLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0824.
    District Court of Appeal of Florida, First District.
    April 9, 2013.
    Rehearing Denied May 20, 2013.
    Bill Schreffler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

LEWIS, THOMAS, and MAKAR, JJ., concur.


author: LaROSE, Judge. ALTENBERND, Judge,

text:
    Randy MERRITT and Rose Merritt, Appellants/Cross-Appellees, v. OLMHP, LLC, a Florida limited liability company, Appellee/Cross-Appellant.
    No. 2D12-1646.
    District Court of Appeal of Florida, Second District.
    April 10, 2013.

      Michael D. Allweiss of Allweiss & All-weiss, St. Petersburg, for Appel-Iants/Cross-Appellees.
    Marion Hale and Sharon E. Krick of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee/Cross-Ap-pellant.
   LaROSE, Judge.

This appeal stems from an overly ambitious tree-trimming project that damaged a stand of melaleuea trees. Randy and Rose Merritt appeal the trial court’s amended final judgment approving the order of a voluntary trial resolution judge granting OLMHP, LLC’s motion for judgment in accordance with motion for directed verdict. The voluntary trial resolution judge presided over a jury trial pursuant to section 44.104(1), Florida Statutes (2011), which provides as follows:

(1) Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration, or voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.

Particularly pertinent to our analysis is section 44.104(11):

(11) Any party may enforce a final decision rendered in a voluntary trial by filing a petition for final judgment in the circuit court in which the voluntary trial took place. Upon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court. Factual findings determined in the voluntary trial are not subject to appeal.

(Emphasis added.) We exercise jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A) based upon the trial court’s amended final judgment. See art. V, § 4(b)(1), Fla. Const.; Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004). We affirm. Consequently, OLMHP’s cross-appeal is moot.

The Merritts sued OLMHP for civil theft and trespass. See §§ 812.014, 772.11, Fla. Stat. (2004). The ease involved a March 2005 tree-trimming dispute over a large stand of melaleuca trees situated on, or abutting, the Merritts’ property.

The melaleuca trees, commonly known in Florida as “punk trees” or “paperbark tea trees,” grew prolifieally over time and large limbs dangled over OLMHP’s property, creating a danger or nuisance to the residents of the OLMHP’s mobile home park. OLMHP hired a tree-trimming company to trim the trees. Unfortunately, the company slashed back large portions of the trees to but a few feet in height. We note that the tree-trimming company was not a party at trial; earlier, the trial court granted summary judgment in its favor for lack of criminal intent.

The case proceeded to trial against OLMHP. Although finding no trespass, the jury returned a verdict for the Merritts on their civil theft claim. The voluntary trial resolution judge previously had taken OLMHP’s motion for directed verdict under advisement. He granted relief to OLMHP after the jury verdict. He concluded that the Merritts failed to establish felonious intent, an essential element of civil theft. See Anthony Distribs., Inc. v. Miller Brewing Co., 941 F.Supp. 1567, 1575 (M.D.Fla.1996) (“ ‘felonious intent to steal on the part of the defendant’ is a ‘necessary element of proof ”) (quoting Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So.2d 986, 988 (Fla. 1st DCA 1991)). No one questions that the Merritts had to establish the elements of civil theft by clear and convincing evidence. See §§ 772.011(1), 812.035(7); see also Shuler Bros., 590 So.2d at 988 (quoting Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)):

[Cjlear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

The voluntary trial resolution judge entered a comprehensive order on OLMHP’s motion. The trial court thereafter entered an amended final judgment pursuant to section 44.104(11). This judgment does not specifically adopt or incorporate the voluntary resolution trial judge’s order. For our purposes, we will assume that the trial court adopted the order as its own. Indeed, the amended final judgment refers to the order. The judgment also recites that final judgment is entered in favor of OLMHP, notwithstanding the earlier jury verdict.'

We review a directed verdict ruling de novo. Jackson Hewitt, Inc. v. Hainan, 100 So.3d 19, 27 (Fla. 2d DCA 2011) (addressing directed verdict standard of review); Alterra, Healthcare Corp. v. Campbell, 78 So.3d 595, 601 (Fla. 2d DCA 2011) (addressing standard of review for judgment notwithstanding the verdict). We apply the same test that the trial court would apply:

A motion for directed verdict should be granted only where no view of the evidence, or inferences made theréfrom, could support a verdict for the nonmov-ing party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party.

Kaman, 100 So.3d at 27 (citations omitted). Applying this standard, we conclude that the Merritts did not demonstrate by clear and convincing evidence that OLMHP acted with a felonious intent. Accordingly, we agree with OLMHP that the voluntary trial resolution judge correctly applied the law to the facts before him.

Although our decision favors OLMHP on the merits, we do not agree with its suggestion that we may not review the underlying factual findings at trial. See § 44.104(11). We are not convinced that our review involves a reassessment of the facts. Instead, we accept the facts as developed below and determine only whether they were sufficient, as a matter of law, to establish civil theft. This legal analysis is the ken of an appellate court. Moreover, OLMHP’s brush sweeps too broadly and would eviscerate our de novo standard of review in cases involving a directed verdict. We are aware of no supreme court standard or rule of appellate procedure that so limits our review standard.

We previously allowed an appeal from a section 44.104 order in an insurance coverage case. See W. Fla. Vill. Inn, Inc., 874 So.2d at 29. That case, which involved a bench trial before a voluntary trial resolution judge, recognized that “Hollowing procedural maneuvering not relevant here, the parties submitted the matter to voluntary trial resolution in Hillsborough County pursuant to section 44.104, Florida Statutes (2001).” Id. We did not suggest that section 44.104(11) trumps the standard appellate review requirements at issue here. But cf. Witt v. La Gorce Country Club, Inc., 35 So.Sd 1033, 1037 (Fla. 3d DCA 2010) (stating that pursuant to section 44.104(11) the trial resolution judge’s findings of fact are not reviewable on appeal, but questions of law, including those pertaining to contract interpretation, are reviewed de novo).

For purposes of clarity we must note that the Merritts asserted that the parties intended only a substitute judge who would act like an actual sitting judge and did not intend limited appellate review. Although not directly relevant to our conclusion, we must say that this position flies in the face of the wording of the statute and the admonition in the applicable administrative order. See Admin. Order at note 4. Litigants who agree to the use of a voluntary trial resolution judge should be well-advised by their counsel of the ramifications of such an agreement.

Having determined that there was, as a matter of law, no clear and convincing evidence of felonious intent so as to constitute civil theft, we must affirm the amended final judgment.

Affirmed.

BLACK, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion. I write to emphasize that we have reviewed de novo the legal rulings of Judge Demers, who in turn was reviewing the legal rulings of Judge Lenderman. Judge Lenderman presided in this case, not as a senior circuit court judge, but as a statutory voluntary trial resolution judge. Any lawyer with more than five years’ experience can serve as such a voluntary judge. See § 44.104(2), Fla. Stat. (2011).

The issues raised in footnote four of the court’s opinion are difficult issues of a constitutional dimension that currently stand as an impediment to broader use of the mechanism provided in section 44.104. This case appears to have been tried in a Pinellas County courtroom with the services of all the usual court personnel. Moreover, this case was tried by a jury whose members apparently were selected from the pool of jurors summoned for use in an Article V courtroom. See Art. V, § 1, Fla. Const, (limiting the legislature’s power to create courts); §§ 40.23-.2B1, Fla. Stat. (2011). Whether section 44.104 contemplates trial by jury in a state-provided courtroom and whether actual jurors can be compelled to hear cases tried pursuant to this statute are issues that have not been presented in this case.

      . The parties use the term motion for judgment notwithstanding the verdict. Although disfavored, see Hall v. Ricardo, 331 So.2d 375, 376 (Fla. 3d DCA 1976) (citing Fla. R. Civ. P. 1.480), and 55 Fla. Jur. 2d Trial § 160 (2013), the term is still widely used.

      . BJ Jarvis, Melaleuca An Invasive Tree of Florida, http://pasco.ifas.ufl.edu/gardening/ melaleuca.shtml (last visited Mar. 14, 2013).

      . We do not address whether the facts of this case, which sound in traditional causes of action for negligence or trespass, can state a cause of action for civil theft.

      . Section 44.104(1) is silent as to the level of deference the trial court owes to an order of a voluntary trial resolution judge. Must the trial court review the order de novo? Is an abuse of discretion applicable? Does the trial court merely perform a ministerial act in rendering a final judgment on the order? We think it is beyond peradventure that litigants and courts would benefit from further guidance on this issue from the legislature or the supreme court. We observe, however, that some courts have alerted litigants to the limited review attending the use of a voluntary trial resolution judge. See Sixth Judicial Circuit Admin. Order No. 2005-053 PA/PI-CIR. Voluntary Trial Resolution.


text:
    Pamela RUPPERT and Jason Ruppert, Appellants, v. RBC CENTURA BANK, Appellee.
    No. 4D11-2344.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Rehearing Denied May 10, 2013.
    Robert P. Lithman of Orshan, Lithman, Seiden, Ramos, Hatton, Huesmann & Fa-jardo, LLP, Coral Gables, for appellants.
    N. Alejandra Arroyave and Jeffrey S. Lapin of Lapin & Leichtling, LLP, Coral Gables, for appellee.
   PER CURIAM.

We reverse the partial summary judgment of foreclosure of an equitable lien. On remand, we direct the trial court to first resolve the issues raised by the Rup-perts in their affirmative defenses before entering judgment.

We note that generally this court will not accept jurisdiction over “piecemeal appeals.” See Flinn v. Flinn, 68 So.3d 424, 425 (Fla. 4th DCA 2011) (dismissing appeal when party appealed the resolution of one count of a multi-count complaint, and the appealed count was interrelated with the pending counts). We review the summary judgment in this case because it may not be possible to correct the error after the disposition of the entire case. See Fisher v. Tanglewood at Suntree Country Club Condo. Ass’n, 669 So.2d 1050, 1051 (Fla. 5th DCA 1995) (“Although this permits piecemeal review, it is the only way to correct an erroneous ruling that may not be subject to correction at a later date.”).

Reversed and remanded with instructions.

STEVENSON, GROSS and CIKLIN, JJ., concur.


author: POLEN, J.

text:
    Timothy JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-236.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

The defendant, Timothy Johnson, appeals his convictions for eight counts of robbery with a firearm. He was sentenced to life in prison on each count, to be served concurrently. We affirm on both issues raised by the defendant, and write to address only his argument that the trial court erred by admitting evidence of a collateral robbery at his trial.

In the early hours of September 4, 2007, two men robbed a CVS Pharmacy in Pompano Beach. One month later, on October 8, 2007, two men robbed three chain pharmacies in a single night — each occurring in the early morning hours in northwestern Broward County. The defendant and a codefendant, Deitrick Johnson, were arrested and both men were charged with eight counts of robbery with a firearm stemming from the four robberies. The codefendant was alleged to have physically committed the robberies inside the chain pharmacies while the defendant participated as a lookout.

Thereafter, the State filed a pre-trial motion in limine seeking a ruling on whether the September robbery was admissible as collateral crime evidence during the defendants’ trial for the October robberies. In Johnson v. State, 110 So.3d 954 (Fla. 4th DCA 2018), where we affirmed the codefendant’s convictions in his related case, we noted that during a hearing on the motion, the State presented evidence showing numerous similarities between the four robberies. Id. at 955. Upon hearing that evidence, the trial court granted the State’s motion, finding that evidence of the September robbery was admissible to prove material facts associated with the October robberies. Accordingly, the court denied the defendants’ motion to exclude Williams rule evidence.

The defendant also moved to suppress confessions, admissions, and statements that he made during a taped interview with police. The court denied his motion, finding that his statements were freely and voluntarily made after a knowing and intelligent waiver of his rights. This evidence would later be used against him at trial. A jury ultimately found the defendant guilty of robbery with a firearm as charged on all eight counts, and this appeal followed.

The defendant argues that the trial court reversibly erred by admitting collateral crime evidence of the September robbery. We reject his argument because the evidence was sufficiently similar to the October robberies for which he was on trial, it was relevant, and it was not unduly prejudicial.

We review a trial court’s admission of collateral crime evidence, including Williams rule evidence, for an abuse of discretion. Pulcini v. State, 41 So.3d 338, 344 (Fla. 4th DCA 2010).

Similar-fact evidence, otherwise known as Williams rule evidence, is “admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” DeLuise v. State, 72 So.3d 248, 251 (Fla. 4th DCA 2011); § 90.404(2)(a), Fla. Stat. (2010). Prior to admitting evidence of the September robbery, “the trial court had to make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice.” Alsfield v. State, 22 So.3d 619, 621 (Fla. 4th DCA 2009); see also §§ 90.402, 90.403, 90.404(2), Fla. Stat. (2010).

Here, the September robbery was relevant to prove the State’s contention that the defendant, by his own later admission, was there as a lookout — not by accident or mistake as he had originally maintained and the defense argued at trial. During the robbery, cell phone records indicated that he was in contact with the codefen-dant whose DNA linked him to the crime scene. Moreover, as we noted when rejecting the codefendant’s argument on this issue, based on the numerous similarities between the robberies, the trial court acted within its discretion when it determined that this Williams rule evidence was admissible. See Johnson, 110 So.3d at 956. “The evidence was sufficiently similar to the charged crimes, x-elevant on the issues of modus operandi and identity, was not unduly prejudicial, and did not become a feature of the trial.” Id.

Accordingly, we affirm the defendant’s convictions and sentence.

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: CONNER, J.

text:
    Willie HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2466.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Opinion on Rehearing May 17, 2013.

      Willie Hunter, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

CONNER, J.

We grant the state’s motion for rehearing and deny its motion for rehearing en banc. We substitute the following for the slip opinion issued on December 5, 2012.

Willie Hunter appeals an order summarily denying his rule 3.850 motion for post-conviction relief. We affirm, but write to address point six of Hunter’s mul-ti-point motion where he argues that counsel was ineffective in failing to challenge his conviction of armed burglary of a dwelling with a dangerous weapon “as charged” in the information. The information specified that the deadly weapon involved in each charge was a firearm and alleged that Hunter actually possessed the firearm. However, on a special interrogatory submitted for purposes of the 10-20-Life law, see section 775.087, Florida Statutes, the jury found that Hunter did not actually possess a firearm.

Counsel was not ineffective. In point three of his motion for new trial, counsel argued that the jury’s finding that Hunter was guilty of armed burglary of a dwelling with a dangerous weapon “as charged” but that Hunter did not actually possess a firearm were inconsistent. Although Hunter states in his motion for post-conviction relief that he is “not arguing inconsistent verdicts,” we find no material difference between the argument raised in the motion for new trial and the claim raised in point six of Hunter’s motion for post-conviction relief.

Affirmed.

POLEN and TAYLOR, JJ., concur.

TAYLOR, J., did not serve on the original panel, but she has had the opportunity to review the entire case.

      . We note that Hunter has not alleged counsel failed to timely object to the inconsistency of the verdicts.


text:
    Christopher R. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2852.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Christopher R. Hicks, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, West Palm Beach, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Christopher Hicks appeals the summary denial of a rule 3.850 motion. We reverse as to one issue raised in his motion.

In claims 6 and 7 of his rule 3.850 motion, Hicks complained that crimes he was not charged with in the information in this case were included on his Criminal Punishment Code scoresheet. The State pointed out that these charges were pending in a separate case. In its response below, the State suggested any scoresheet error was harmless because Hicks was sentenced as a habitual offender and prison releasee reoffender, which Hicks denies. Contrary to the State’s argument, the record shows he was sentenced under the Criminal Punishment Code, not a recidivist statute.

The scoresheet should not have included pending charges from a separate case which he had not been convicted of at the time of sentencing in this case. § 921.0021(1), Fla. Stat. (2009); Fla. R. Crim. P. 3.704(d). Removing these offenses from his scoresheet would have reduced the lowest permissible sentence from 37.5 to 30.75 months. The record does not show that the court would have imposed the same sentence regardless of any scoresheet error. See Brooks v. State, 969 So.2d 238, 241-42 (Fla.2007) (recognizing that the “would have been imposed” test applies to scoresheet errors raised in a rule 3.850 motion).

On appeal, the State does not dispute that this claim is facially sufficient and not refuted by the attached records.

This case is reversed and remanded for further proceedings on this issue. The denial of the remaining claims is affirmed.

Affirmed in Part, Reversed in Part and Remanded.

DAMOORGIAN, GERBER and LEVINE, JJ, concur.


text:
    Yosdan GAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4345.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Jan Peter Weiss, West Palm Beach, for appellant.
    No appearance required for appellee..
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d - (Fla.2012).

WARNER, STEVENSON and LEVINE, JJ., concur.


text:
    Elvira GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4342.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Antonio Bugge, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d - (Fla.2012).

POLEN, STEVENSON and CONNER, JJ., concur.


text:
    Alejandro PINILLOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4228.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Michelle A. Estlund of Michelle A. Est-lund, P.A., Coral Gables, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (U.S.2013); Hernandez v. State, — So.3d - (Fla.2012).

DAMOORGIAN, CIKLIN and CONNER, JJ., concur.


text:
    Errol POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4099.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Steven Raisman of Raisman & Raisman, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d - (Fla.2012).

POLEN, STEVENSON and CIKLIN, JJ., concur.


text:
    Jose A. AMADOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3462.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Jose Amador, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant appeals the denial of his Rule 3.800(a) motion to correct illegal sentence in which he sought additional jail credit on his Broward County sentences for violation of probation (“VOP”) in case no. 10-8639CF10A for time spent in the Charlotte County jail on unrelated charges arising in Charlotte County. Appellant resolved his Broward VOP case by plea agreement that included sixteen days of jail credit. Appellant argued in his Rule 3.800(a) motion that he should have received credit from the time the Broward VOP arrest warrant was issued, but did not include in his motion any information as to where in the Broward County case record it could be shown when the VOP warrant was either transmitted or executed upon appellant while he was incarcerated in the Charlotte County jail. As a result, his Rule 3.800(a) motion was insufficiently pled, and thus denial of his motion by the trial court was proper. See Alphonso v. State, 20 So.3d 959, 960 (Fla. 4th DCA 2009); see also Johnson v. State, 60 So.3d 1045, 1051-52 (Fla.2011) (claim for jail credit beyond amount agreed to in plea bargain not cognizable in Rule 3.800(a) proceedings); Rocha v. State, - So.3d -, 2013 WL 611332, 38 Fla. L. Weekly D416 (Fla. 4th DCA Feb. 20, 2013) (same). Thus, the trial court’s summary denial of appellant’s motion is affirmed.

However, since the time for appellant to file a timely motion for postconviction relief under Rule 3.850 to resolve any factual disputes underlying his request for jail credit does not expire until May 1, 2014, our affirmance is without prejudice to appellant filing a timely motion for postcon-vietion relief under Rule 3.850 seeking the additional jail credit described in his Rule 3.800(a) motion. Any timely Rule 3.850 motion appellant files on this subject shall not be considered successive as that term is defined in Rule 3.850(f). Seplow v. State, 82 So.3d 948, 948 (Fla. 4th DCA 2011).

Affirmed without prejudice.

GROSS, LEVINE and CONNER, JJ., concur.


text:
    Philip Dennis LEIGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3918.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Philip D. Leigh, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Sean P. RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3779.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Thomas Andrew Kennedy, Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d - (Fla.2012).

STEVENSON, GERBER and LEVINE, JJ., concur.


text:
    Juan HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-128.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Attorney General, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, for appellee.
   PER CURIAM.

Appellant appeals three of his four burglary convictions, following an open plea of nolo contendere, asserting a double jeopardy violation. We find the trial court convicted appellant of three counts of burglary in violation of double jeopardy, and we reverse for the trial court to dismiss those counts.

Appellant pled no contest to four counts of false imprisonment, two counts of robbery with a deadly weapon while wearing a mask, and four counts of burglary of a dwelling with an assault or battery while armed and masked. The trial court accepted appellant’s plea. During sentencing, the public defender argued that three of the four burglary counts should be dismissed, because “[wjhere there is but one entry, dual convictions for burglary cannot stand.” Gorham v. State, 968 So.2d 717, 718 (Fla. 4th DCA 2007). The state agreed that appellant could be sentenced on only one burglary count, but objected to the dismissal of the three remaining burglary counts. The trial court denied the motion to dismiss, believing that by not sentencing appellant, he would not be convicted of those counts. The trial court did not include the three remaining burglary counts in the written judgment, nor did the trial court sentence appellant on those counts.

“A defendant who enters a general or open plea does not waive double jeopardy claims.” Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007). “[A] conviction that violates the prohibition against double jeopardy constitutes fundamental error ... and a claim of fundamental error may be raised for the first time on appeal.” Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003). See also Sibley v. State, 955 So.2d 1222, 1225 (Fla. 5th DCA 2007) (construing a double jeopardy challenge after a no contest plea to be an appeal “as otherwise provided by law” under rule 9.140(b)(2)(A)(ii)e. “because a double jeopardy violation constitutes fundamental error which may be raised for the first time on appeal”).

Contrary to the trial court’s belief, appellant was convicted of the burglary counts when the trial court accepted the plea. By allowing the remaining burglary counts to stand, the trial court violated appellant’s double jeopardy rights. A plea “is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “[W]here a plea of nolo contendere is accepted it is not necessary in passing sentence for the court to adjudge the party to be guilty, for that follows as a legal inference from the implied confession in the plea.” Pensacola Lodge No. 497, Benevolent & Protective Order of Elks v. State, 74 Fla. 498, 77 So. 613, 614 (1917). See also McCrae v. State, 395 So.2d 1145, 1154 (Fla.1980) (“[0]nce a plea ... has been accepted by a court, it is the conviction and the only remaining step is the formal entry of judgment and the imposition of sentence”); People v. Davis, 185 Cal.App.4th 998, 112 Cal.Rptr.3d 70 (2010) (concluding that a no contest plea — not the ensuing sentence and judgment of conviction — constituted a conviction).

Murphy v. State, 16 So.3d 269 (Fla. 5th DCA 2009), is instructive. In that case, a jury found defendant guilty of two counts. The court sought to avoid a potential double jeopardy violation by not entering an order adjudicating defendant guilty or sentencing him on the second conviction. The appellate court reversed and remanded, explaining: “A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act.” Id at 269.

This case is similar to Murphy even though it involved a no contest plea. See Hudson v. United States, 272 U.S. 451, 455, 47 S.Ct. 127, 71 L.Ed. 347 (1926) (stating that a “plea of nolo contendere .... is an admission of guilt for the purposes of the case”). The trial court could not avoid a double jeopardy violation simply by omitting the three remaining burglary convictions from the written judgment. The trial court’s action was more analogous to withholding an adjudication of guilt or declining to impose a sentence, neither of which cures a double jeopardy violation. See Griffin v. State, 69 So.3d 344, 346 (Fla. 4th DCA 2011); Burford v. State, 8 So.3d 478, 480 (Fla. 4th DCA 2009).

For the foregoing reasons, we reverse and remand for dismissal of the three remaining burglary counts. We affirm appellant’s remaining convictions and sentences.

Reversed in part, affirmed in part, and remanded.

TAYLOR, LEVINE and CONNER, JJ., concur.


text:
    Joshua ALBARRACIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-294.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Brett D. McIntosh, Sarasota, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction for aggravated child abuse. However, we vacate the sentence and remand with instructions to order a presentence investigation report (PSI) before re-sentencing appellant. Because appellant was a first-time felony offender, Florida Rule of Criminal Procedure 3.170(a) required the trial court to first order a PSI before sentencing appellant to more than probation. Also, because appellant was eligible for Youthful Offender sentencing, section 958.07, Florida Statutes (2011), required the trial court to order a PSI before sentencing appellant. See Bready v. State, 430 So.2d 997, 997 (Fla. 4th DCA 1983) (vacating sentence and remanding with instructions to order a presentence investigation pursuant to the mandatory provisions of the 1979 Florida Youthful Offender Act).

Affirmed, in part; Reversed in part; and Remanded.

MAY, C.J., TAYLOR and GERBER, JJ., concur.

      . The trial court’s failure to consider a mandatory presentence investigation report before sentencing a defendant is a sentencing error that can be preserved via the filing of a rule 3.800(b) motion. Brown v. State, 61 So.3d 1238, 1238 (Fla. 1st DCA 2011).

      . Florida Rule of Criminal Procedure 3.710(a) provides:
      No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.