author: LAWSON, J.

text:
    TRANSPORTATION ENGINEERING, INC., Appellant, v. Annette CRUZ, etc., et al., Appellees.
    No. 5D13-923.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Rehearing and Rehearing En Banc Denied Dec. 15, 2014.

      Daniel B. Rogers, of Shook, Hardy & Bacon, LLP, Miami, and David S. Johnson and Tiffany C. Raush, of Shook, Hardy & Bacon, LLP, Tampa, for Appellant.
    Angela C. Flowers, of Kubicki Draper, Ocala, for D.A.B. Constructors, Inc., Ap-pellee.
    Arnold R. Ginsberg, of Arnold R. Ginsberg, P.A.; Manuel F. Fente, of Law Offices of Manuel F. Fente, P.A.; Robert Rossano, of Law Offices of Robert Rossa-no, P.A., Miami, for Annette Cruz, Appel-lee.
   LAWSON, J.

In this personal injury case, defendant Transportation Engineering, Inc. (“TEI”) appeals from an order granting summary final judgment for codefendant D.A.B. Constructors, Inc. (“DAB”), but denying its summary judgment motion on the same issue. Although that portion of the trial court’s order denying TEI’s motion falls outside of our appeal jurisdiction, we conclude that under these unique facts TEI has demonstrated a departure from the essential requirements of the law and irreparable harm, warranting certiorari relief.

RELEVANT FACTS AND PROCEEDINGS BELOW

The Accident and Suit

Vanessa Cruz (“Vanessa”) was tragically killed on July 15, 2008, in a single vehicle accident on the Florida Turnpike. Vanessa was the front seat passenger in a vehicle when the driver lost control, left the roadway, and struck an uncushioned guardrail end at an emergency crossover in the median. The guardrail end struck the car at Vanessa’s door.

Annette Cruz (“Cruz”), as personal representative of the estate of her daughter, Vanessa, settled with the vehicle’s driver for policy limits, and then filed suit against the Florida Department of Transportation (“DOT”), the entity responsible for erecting and maintaining the guardrail; TEI, the company that designed the guardrail; DAB, the company that constructed the guardrail; and two other companies not related to this appeal. In the complaint in effect at the time of the summary judgment hearing (the third amended complaint), Cruz alleged that DOT breached a duty of care to Vanessa by failing to warn the public about or failing to remedy a dangerous condition, not readily apparent to the public, which was caused by an improperly designed and constructed guardrail. Specifically, Cruz alleged that DOT failed to provide safeguards to prevent vehicles from becoming impaled on the guardrail end at the emergency crossover where Vanessa died, and in so doing, DOT failed to follow both national safety standards and its own standards for constructing guardrail ends at emergency crossovers. Cruz similarly alleged that TEI and DAB breached their duties of care to Vanessa by negligently designing and constructing the guardrail ends, and in failing to follow the national safety standards and DOT standards applicable to the design and construction of guardrail ends.

The Turnpike Guardrail Project

Five years before the accident, in 2003, DOT initiated a project to install median guardrails along the entire Florida Turnpike to reduce the number of fatal accidents caused by vehicles crossing the median into oncoming traffic lanes. Because it was separating the oncoming traffic lanes with a guardrail, DOT recognized the need for regular emergency crossovers, or breaks, to allow police and other emergency vehicles to cross the median and access oncoming traffic lanes.

DOT Design Standards

DOT had specific “Design Standards,” derived from national standards, governing the design and construction of guardrails and emergency'crossovers. Design Standard Index 700 required a clear zone of 36 feet for areas where the speed limit exceeds 55 miles per hour. The clear zone is an area next to the road, generally free of obstructions, where drivers can attempt to regain control of errant vehicles. Design Standard Index 400 required “crash cushions” as end treatments for guardrail openings (like those in an emergency crossover) located inside the clear zone (where they are more likely to be struck by fast-moving vehicles, causing injury to passengers). The speed limit was 70 miles per hour where the crash occurred and the guardrail was approximately 30 feet from the road, or within the 36-foot clear zone. Consequently, the Design Standards required crash cushions on the guardrail end involved in this accident.

Outside the clear zone, DOT Design Standards allowed unprotected “Type II” end anchorages, without crash cushions, on exposed guardrail ends. In 2004, crash cushions were at least three to four times as expensive as Type II end anchorages.

DOT’s “Guide Drawings” for Emergency Crossovers

Although the emergency crossover at issue was inside the clear zone, in March 2004, DOT developed preliminary guide drawings specifying Type II end anchorages instead of crash cushions, contrary to its own Design Standard Index 400. In an attempt to prevent vehicles from striking the unprotected Type II end anchorage of the approaching or oncoming guardrail end of an emergency crossover, the trailing guardrail was angled outward so that most errant vehicles heading toward the emergency crossover would strike the trailing guardrail, deflecting them away from the oncoming guardrail end.

DOT’s Mike Shannon maintained that using Type II end anchorages with a “departure angle design” on the trailing guardrail of an emergency crossover was an alternative that served the same purpose as using crash cushions. According to Shannon, the alternative design “waived” the need for crash cushions. Shannon believed this alternative design was derived from “national based information,” based on national studies, but he was not familiar with any specific national or state engineering studies on the alternative design.

TEI’s Design of the Emergency Crossovers

Despite believing that the alternative design in DOT’s guide drawing was “safe,” Shannon nevertheless maintained that the guide drawings were only “concept drawings” to be used as “guidance,” and that TEI had the ultimate responsibility to ensure that its design plans met state and national standards. At one point, DOT and TEI met to discuss the project. A DOT memo memorializing that meeting included the following statement:

TEI discussed receipt of the Turnpike’s comment regarding their turnaround design not being consistent with the standard turnaround design adopted by the Turnpike in March 2004. TEI sited [sic] several reasons to include enhancements to the adopted design; however, the Turnpike requested that they reconsider utilizing the adopted design for consistency with the other guardrail projects unless there was clearly an unsafe aspect with the adopted design. TEI agreed to revise their design.

TEI ultimately submitted design plans for the guardrail ends and emergency crossovers within its scope of work, including the one at issue here. The first page of those designs indicated that the governing standards and specifications for the designs were DOT’s 2004 “Design Standards,” including 2004 Design Standard Index 400. However, consistent with DOT’s March 2004 guide drawings, TEI’s design plans depicted Type II end anchorages instead of crash cushions on all guardrail ends at the emergency crossovers, and DOT accepted TEI’s design plans.

DAB’s Construction of the Emergency Crossovers

DOT hired DAB to construct the guardrails and emergency crossovers at issue according to TEI’s design plans. DOT expected DAB to follow TEI’s design plans. According to DOT’s Shannon, the notes on the design plans referring to the applicable DOT Design Standards did not modify the plans themselves. Similarly, Mark Davidson, a representative of the engineering firm DOT hired to supervise construction, testified the design plan superseded any applicable DOT Design Standards, even though the plans referenced the standards. Thus, if DAB had wanted to install crash cushions, it would have had to seek a modification to the plans. It was not allowed to make unilateral modifications. DAB constructed the guardrails and emergency crossovers according to TEI’s plans, using Type II end anchorages instead of crash cushions. DOT accepted DAB’s completed work.

Cruz’s Engineering Expert’s Testimony on Duty and Breach

Cruz’s standard of care expert, Arnold Ramos, testified that DAB had a duty to ensure that the guardrails and emergency crossovers were constructed according to DOT Design Standards. Consequently, DAB had a duty to ensure that the guardrail ends in the emergency crossover at issue were constructed with crash cushions because they were located inside the clear zone. He acknowledged that TEI’s plans called for Type II end anchorages, but they also referenced Design Standard Index 400, which “put the burden on the contractor to make sure he’s familiar with the standards.” According to Ramos, DAB should have recognized the need for crash cushions and then requested a supplemental agreement or change order from DOT to include them.

However, Ramos testified that TEI was not negligent.

Q If I understand correctly, your— your testimony, as it relates to the design, is that the design adequately calls for a design that meets the State standard; right?
A Yes. As I said earlier, the designer could have been more specific. But all the information, even though they show a Type II end treatment in the little diagram, they do specify in the front page, the Governing Specifications and Design Standards are Index 400, year 2004. So that would tell someone to go look at what’s required.
Q So, am I understanding correctly that you don’t believe that the design professional in this case deviated from the standard of care?
A Not unless there is a memorandum someplace where he raised the issue what do we do about the clear zone and was directed just leave it alone.

Significantly, Ramos was Cruz’s only standard of care expert. And, the only breach of duty identified by Ramos was DAB’s failure to construct the end anchorages using crash cushions, as required by DOT’s Design Standard Index 400.

Cruz’s causation expert, Ying Lu, Ph. D., opined in an affidavit that if an appropriate crash cushion had been installed on the guardrail end, Vanessa would not have suffered any severe head injury and would not have died.

TEI’s and DAB’s Motions for Summary Judgment

After extensive discovery, DAB and TEI filed motions for suihmary judgment. DAB based its motion solely upon the so-called Slavin doctrine. See Slavin v. Kay, 108 So.2d 462 (Fla.1959). The Slavin doctrine has been concisely restated in subsequent cases as follows: “Under the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.” Plaza v. Fisher Dev., Inc., 971 So.2d 918, 924 (Fla. 3d DCA 2007); see also Foreline Sec. Corp. v. Scott, 871 So.2d 906, 909 (Fla. 5th DCA 2004) (“The Slavin doctrine extinguishes the liability of a contractor for a defect by shifting the duty of care originally owed to others by the contractor to the accepting owner as long as any defects are patent.”). DAB argued that the undisputed evidence satisfied both requirements of Slavin. First, DOT accepted DAB’s construction of the guardrail. Second, the location of a guardrail end, in the clear zone, with Type II anchorages instead of crash cushions, was a patent defect, e.g., open, obvious, and discoverable by DOT.

In its motion, TEI argued that it was entitled to summary judgment for two reasons. First, like DAB, TEI sought summary judgment based upon Slavin and its progeny, relying primarily on Easterday v. Masiello, 518 So.2d 260 (Fla.1988). In Easterday, the Florida Supreme Court was presented with the certified question of whether Slavin precluded recovery against an architect and/or engineers for personal injury to a third party caused by a patent design defect in a structure. The court began its analysis by reasoning that if Slavin applied to contractors, “logic dictates that it would apply likewise to architects and engineers.” Id. at 260. Without further analysis on that point, the court stated that the issue was not so much whether the court would extend the doctrine to engineers and architects, but whether Slavin was still good law. Id. at 261. The court then reaffirmed Slavin as the law in Florida with respect to contractors, architects, and engineers. Id. at 262. Based on Easterday, TEI has consistently and correctly argued that if Slavin barred Cruz’s claims against DAB, it also barred her claims against TEI because the nature of the defect was the same as to both defendants and the patency of that defect was the same as to DOT. TEI further noted that there could be no dispute that DOT had actual knowledge of the alleged defect where DOT expressly required TEI to design the crossovers with Type II end treatments instead of crash cushions.

As its second basis for summary judgment, TEI relied upon the deposition testimony of Cruz’s sole standard of care expert, Ramos, who stated that TEI had satisfied the applicable standard of care by referencing Design Standard Index 400 on its plans.

Cruz’s Evidence in Opposition to Summary Judgment

In response to TEI’s summary judgment motion, Cruz filed the discovery from DOT’s witnesses, summarized above, stating that TEI’s plans did not call for crash cushions, irrespective of the reference to Design Standard Index 400 on the plans. In addition, Cruz filed an expert affidavit from her engineering expert, Ramos, in which he changed his opinion as it related to TEI’s standard of care. In the affidavit, contrary to his deposition testimony, Ramos opined that TEI’s “[rjeference to design standard 400 created[ ] a contradiction between the [plan] detail the design standard which needed to be resolved by the designer and contractor before the project was built.” (emphasis added). Ramos explained in the affidavit that TEI had a duty to follow a specific procedure in order to deviate from “standard 400,” which it did not do, ultimately leading Ramos to conclude that TEI was negligent when it designed the emergency turn around without complying with the Design Standards (requiring crash cushions).

The Summary Judgment Hearing and Rulings

At the summary judgment hearing, Cruz first focused on the latency/patency issue, arguing that the alleged defect in the design alternative to using crash cushions was latent, similar to the alleged defect causing a summary judgment reversal in Florida Department of Transportation v. Capeletti Brothers., Inc., 743 So.2d 150 (Fla. 3d DCA 1999). The trial court unequivocally rejected Cruz’s argument in granting summary judgment for DAB, stating, “I think Slavin applies to bar that.” The trial judge expressly concluded that the defect was patent, at one point reasoning:

[W]e got a metal rod that’s sticking out there uncovered, and no matter what [speed] you project the vehicle going, there is a way that a car could hit this end of it. And that’s why, I guess ... you’re saying the crash cushion is ... [needed] as opposed to hitting a static metal object.

The judge also observed:

And isn’t that what Slavin says? Like, look, if the owner does it, it’s because it’s not like — you know, patent and latent, it’s not like, you know, you can miss the fact that it didn’t have this lack of a bumper on there.

When Cruz later asked for clarification, the court stated,

Well, you’re saying they need [crash cushions]. You’re saying they have a standard that requires them.... DOT knew they weren’t there and they accepted it, and they built what DOT asked for[.] [T]heir people responsible for putting the plan on the ground said it; so they’re out.

The court’s written order also stated, “Based on Slavin v. Kay, 108 So.2d 462 (Fla.1959), DAB’s motions for Final Summary Judgment is Granted.”

However, the court was unconvinced that the same defect could be viewed as patent when addressing TEI’s summary judgment motion. The judge stated:

So you might be able to argue they got what they asked for, but that — it starts breaking down into a lot of nuances: You know, what was the exact distance, you know, who — who goes back and forth to look at it or whatever? You know, I’m just — I’m not sure from a design — between engineers what’s latent and what’s not.
Well, your — I understand your argument — if I do, tell me. But I hear your argument to be, you know, they have a written, promulgated standard that calls for “X.” Okay? They sent out a diagram that didn’t depict X, and then you sent them back another diagram that didn’t depict X.
And so the question is there some type of latent, unexplainable detail between engineers that made that happen? I mean, for instance, if you’re a qualified design group, why didn’t you guys send it back and say, well, “This is better than your sketch you sent us, because you had 400 on it?” And that’s where I think the devil’s going to be in the details, that — that I need to have fully developed and let the jury decide.
And what — that’s the problem I’m having, because the logic of your argument is DOT missed what should be obvious, according to you, that there’s no crash cushions. Your client missed that there should be crash cushions. So doesn’t that in and of itself tell me there must be something latent that two different, separate eyeballs of engineers missed what you’re now telling me should have been there?

The trial judge’s view that the same issue should be viewed differently when analyzing TEI’s liability appears to have been attributable, at least in part, to Cruz’s attempt to analyze the latency/patency issue based upon a new and different theory of liability vis-á-vis TEI. According to Cruz’s counsel, at the summary judgment hearing, TEI was hired to “come up with an alternate design that was safe ... .[so that] the issue really isn’t whether or not there were crash cushions ... [but] whether or not this opening was safe.” When making this argument, Cruz’s counsel “eoncede[d] it’s obvious there’s not a crash cushion,” but argued that there was a latent defect in TEI’s alternative design.

TEI’s counsel countered:

But so we’re in this world of litigation where we have to respond to their allegations. Their- allegations are that the design is defective because there’s not crash cushions. So living in that litigation world where we’re analyzing what their claims are, which is the presence or absence of crash cushions, that defect is obvious to the DOT. It’s — their experts admit that they can just drive up and look at it and you can tell the difference whether there’s a crash cushion or not a crash cushion.

Ultimately, the trial court denied TEI’s motion for summary judgment without stating a clear basis for treating TEI differently than DAB, and then entered a written order that gave no explanation of the basis for the court’s ruling on TEI’s motion.

Cruz’s Motion for Clarification

Subsequently, Cruz filed a motion to clarify the court’s rulings. In part, Cruz asked the court to reconsider its ruling as to DAB, reiterating that the question of whether a defect is patent or latent under Slavin is normally for the jury to decide. It also sought clarification of the two rulings on the ground that “it would be inconsistent for the Court to determine that the Slavin doctrine applies in this case and warrants the granting of a summary judgment on behalf of [DAB] and not' also warrant the granting of a summary judgment on behalf of [TEI].” In the event that the trial court was unwilling to reconsider its ruling as to DAB, Cruz asked that a new order be entered to clarify that summary judgment had been granted as to DAB based upon its lack of duty, instead of Slavin.

TEI filed a response to the motion for clarification and its own motion for reconsideration. It argued that the trial court’s summary judgment for DAB was based solely on Slavin, not on the additional ground of a lack of duty, as asserted by Cruz. It noted that DAB had not sought summary judgment on that additional ground because Cruz’s expert testified that DAB had a duty and breached it by failing to seek a deviation from the Design Standards. Second, TEI argued that there was no expert testimony that any alleged defect was latent. To the contrary, Ramos testified that DOT knew or should have known of the dangerous condition. Finally, TEI pointed out that Cruz had conceded in her motion for clarification that if summary judgment was appropriate for DAB under Slavin, it was also appropriate for TEI.

At the hearing on Cruz’s motion for clarification, TEI asked the court to clarify whether its summary judgment for DAB was based solely on Slavin or on an additional ground as well. The court responded:

[I]t seems to me that I was saying either way D.A.B. is out. So it ought to say, like I said, D.A.B.’s motion for final summary judgment is granted period. See also Slavin.
Because there’s no doubt that that, I mean, I know I didn’t have a problem with the cite being there. Maybe you don’t need the words see also, but I think if you look at the record, you know, the appeal court can say, Judge Takac had two grounds. And the Appellate Court could then say, well, he’s wrong about the one but it didn’t matter, it’s not reversible error because he had the other one right based on the state of the record. And so I’m okay with that.
And knowing Slavin and just having read it, ... I don’t see it applying to really TEI or DOT of liability on the basis of a Motion to Dismiss. And I would point out that if you read Slavin, those cases all went to trial, they talk about the evidence at trial if I’m not mistaken. That wasn’t a summary judgment case.

The court entered a subsequent written order simply stating that summary judgment was denied as to TEI and granted as to DAB, without reference to Slavin. On February 6, 2013, the court rendered a final judgment for DAB. TEI timely appealed on March 4, 2013. Cruz filed a notice of cross-appeal on March 14, 2013, but later abandoned her cross-appeal.

ANALYSIS

Jurisdiction and Scope of Review

TEI’s argument on appeal presents a unique jurisdictional problem. First, TEI has standing to appeal the final judgment that entirely disposes of Cruz’s case against DAB. See, e.g., Benton Inv. Co., Inc. v. Wal-Mart Stores, Inc., 704 So.2d 130, 132 (Fla. 1st DCA 1997) (noting that defendant not only has a right but a duty to appeal judgment exonerating codefen-dant to preserve future right of contribution); S. Bell Tel. & Tel. Co. v. Fla. Dep’t of Transp., 668 So.2d 1039, 1041 (Fla. 3d DCA 1996) (noting that absent appeal and reversal of judgment exonerating codefen-dant, defendant cannot seek contribution or place codefendant on verdict form to offset its liability); see also Fla. R. App. P. 9.110(k) (“If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.”). As TEI correctly concedes, however, this court lacks appellate jurisdiction to review the order denying its motion for summary judgment because it is a non-final, non-appealable order. See, e.g., TP Orlando 504, LLC v. Seymour Intern., Inc., 57 So.3d 977, 978 (Fla. 3d DCA 2011) (dismissing appeal of denial of motion for summary judgment for lack of jurisdiction over non-appealable, non-final order); Gionis v. Headwest, Inc., 799 So.2d 416, 417 (Fla. 5th DCA 2001) (“Generally, trial court orders denying motions for summary judgment are non-final, non-appealable orders.”).

Normally, certiorari jurisdiction cannot be used to challenge the denial of a summary judgment motion because a party can raise the summary judgment denial at the conclusion of the case — and “the inconvenience and expense of litigation after an allegedly incorrect interlocutory ruling does not constitute the kind of material harm or irreparable injury for which cer-tiorari review is available.” Mariner Health Care v. Griffith, 898 So.2d 982, 984 (Fla. 5th DCA 2005). Here, however, TEI correctly argues that waiting until the end of the litigation to challenge the trial court’s ruling on its summary judgment motion would deprive TEI of its opportunity to have the jury consider DAB as a potentially responsible party for purposes of apportionment of fault if this court, in a subsequent plenary appeal, were to reject its argument that the absence of crash cushions was a patent defect. In other words, if DAB were to be found liable at trial, it could argue in a subsequent appeal that the judgment against it should be reversed because the defect (lack of crash cushions in the clear zone) causing the injury was, under Slavin, a patent defect, which should have shifted the liability solely to DOT once DOT accepted the completed project. But, there would be no way at that point for TEI to alternatively argue that even in the event that the patency/la-tency issue were a jury question, it should get a new trial in order to attempt to apportion liability to DAB. That issue would have been forever waived by failing to raise it in an appeal from the earlier judgment in favor of DAB. 704 So.2d at 132; 668 So.2d at 1041.

Given the unique fact that TEI and DAB faced the same theory of liability, and sought summary judgment on the same basis, TEI’s current appeal of the final judgment in favor of DAB is an illusory remedy as well. First, because TEI argued below that summary judgment should be entered under Slavin, it is doubtful that TEI could successfully argue for a reversal of the trial court’s order now, given well-established rules regarding preservation of error. See, e.g., Hol land v. Cheney Bros., Inc., 22 So.3d 648 (Fla. 1st DCA 2009) (stating that “we have never excused, however, the requirement that a party seeking appellate review must preserve an issue by first presenting the perceived deficiency to the [lower tribunal]”). Even if there were a way around TEI’s preservation problem, it is hard to view this appeal as an adequate remedy for TEI when arguing for reversal of DABs judgment would require it to abandon its own Slavin defense (in an attempt to demonstrate trial court error on the issue in its initial brief). Understandably, TEI has not attempted to demonstrate that the trial court erred in granting summary judgment in favor of DAB based upon the Slavin doctrine. And, with Cruz having abandoned her cross-appeal, this means that no party has attempted to demonstrate that the trial court erred in granting summary judgment in favor of DAB based upon the Slavin doctrine. As explained by the Florida Supreme Court, “when a decree of the trial court is brought ... on appeal the duty rests upon the appealing party to make error clearly appear.” Lynn v. City of Fort Lauderdale, 81 So.2d 511, 513 (Fla.1955) (citing F E C News Co. v. Pearce, 58 So.2d 843 (Fla.1952)). To this end, Id.; see also Prince v. State, 40 So.3d 11, 13 (Fla. 4th DCA 2010) (“An appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue — essentially conceding that denial was correct.”); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.2014) (“When an appellant fails to challenge properly on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.”); Mitchell v. Allstate Ins. Co., 322 Fed.Appx. 674, 675 (11th Cir.2009) (affirming summary judgment because appellant failed to challenge, and therefore abandoned, two independent grounds given by trial court to support judgment). As such, if we were to limit our inquiry to the order on review under our appeal jurisdiction, that inquiry would end with the observation that TEI has not attempted to demonstrate that the trial court erred by granting summary judgment for DAB based upon the Slavin doctrine, without ever addressing the issue.

[a]n appellant does not discharge this duty by merely posing a question with an accompanying assertion that it was improperly answered in the court below and then dumping the matter into the lap of the appellate court for decision. Under such circumstances it must be held ... that [the appellate court is] under no duty to answer the question.

For these reasons, we agree with TEI that this court’s appeal jurisdiction offers it no adequate remedy on these unique facts, such that certiorari review of the denial of its summary judgment motion is appropriate. See Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So.2d 1041, 1041 (Fla. 5th DCA 2007) (“It is settled law that, as a condition precedent to invoking this court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.”). When appellate jurisdiction does not exist, but certiorari jurisdiction exists, the appellate court must treat the cause as if the proper remedy had been sought. Fla. R. App. P. 9.040(c) (2014); Casper & Friends, Inc. v. Nelson, 915 So.2d 646, 648 (Fla. 2d DCA 2005).

Slavin Should Apply on This Record

It was undisputed at summary judgment that DOT accepted the project with bare (uncushioned) guardrail ends within the clear zone, and that this was an open and obvious condition. Therefore, even if TEI violated its standard of care by failing to follow Index 400 in its design or failing to follow some required procedure to deviate from Index 400 (which was the theory of liability belatedly proffered by Cruz’s expert), we agree that summary judgment should have been granted in TEI’s favor based upon Slavin and Easter-day. See, e.g., Plaza v. Fisher Dev., Inc., 971 So.2d 918, 925 (Fla. Bd DCA 2007) (affirming summary judgment for contractor who installed conveyor system without protective guard or kill switch because company accepted completed project containing patent defects as a matter of law); Gustinger v. H.J.R., Inc., 573 So.2d 1033, 1034 (Fla. 3d DCA 1991) (affirming summary judgment for contractor that designed and constructed road improvements for DOT because evidence demonstrated that DOT had knowledge of the specific line-of sight problem created by improvements before deadly accident); Seitz v. Zac Smith & Co., Inc., 500 So.2d 706, 711 (Fla. 1st DCA 1987) (affirming summary judgment for contractors, subcontractors, and engineers where school board accepted improperly assembled floodlight with obvious missing foot peg, which caused plaintiff to fall and suffer injury).

In reaching this conclusion, we note that the liability issue addressed at summary judgment should have been analyzed only in light of those theories of liability supported by some evidence. As previously discussed, Ramos’s testimony focused solely on the absence of crash cushions, which, he opined, were absolutely and unalterably required as a necessary safety precaution by the applicable Design Standards. ‘Where a duty is not so obvious as to be apparent to persons of common experience, as is generally the case with professional negligence, a plaintiff must offer expert testimony to establish the standard of care used by similar professionals in the community under similar circumstances.” U.S. ex rel. J & A Mech., Inc. v. Wimberly Allison Tong & Goo, No. 6:05CV1207 ORL 31DAB, 2006 WL 3388450 (M.D.Fla. Nov. 21, 2006) (citations omitted) (applying rule in Florida design liability case to grant summary judgment for architect due to lack of expert testimony as to any breach of architect’s standard of care). Because there was no expert testimony supporting any other theory of liability, there could be no dispute of material fact precluding summary judgment based upon any other theory of liability. .

For these reasons, we affirm the final judgment in favor of DAB, but quash that portion of the trial court’s order denying TEI’s motion for summary judgment. On remand, we direct the trial judge to enter judgment in favor of TEI.

APPEALED JUDGMENT AFFIRMED; CERTIORARI GRANTED AND ORDER QUASHED; REMANDED WITH DIRECTIONS.

BERGER, J., and MURPHY, M., Associate Judge, concur.

      . According to the police report, the driver admitted that at the time of the crash she was driving between 80 and 90 miles per hour with a movie playing on a DVD screen on the console between her seat and Vanessa’s. The driver was cited for careless driving.

      . As a matter of logic, this conclusion is confusing in that it is both true and false depending upon whether one is viewing the “purpose” of the crash cushions broadly or narrowly. In the broadest sense, the purpose of both Index 400 and the crash cushions that Index 400 requires under some conditions is to reduce serious injury. And, the departure angle design would appear to serve that same purpose by significantly reducing the number of errant vehicles that could strike a guardrail end at high speed. So, in the broader sense, the alternative design would appear to increase safety and reduce injury that could be caused to passengers in vehicles that enter the median at a high rate of speed. But, in a narrower sense, the crash cushion is designed to reduce injury to passengers in vehicles that actually strike a guardrail end at high speed. And, the departure angle design clearly does not serve that same narrow purpose. Understanding that the overall purpose of the project was to reduce injury and save lives (by preventing cross-over accidents), one could understand DOT determining its chosen design (adding guardrails using the departure angle design in lieu of crash cushions) to be the safest way to address the high number of deaths from cross-over accidents on the Turnpike given budgetajy constraints. But, in the narrower sense, it is important to the issue on appeal to understand that the alternative design does nothing to protect passengers in those vehicles that leave the Turnpike at a direction and angle that propels them into an uncush-ioned guardrail end in the clear zone.

      . In Capeletti, the court reversed a summary judgment in favor of a general contractor where there was record evidence that alleged construction defects in a road project were latent defects. 743 So.2d at 152. The defects alleged in Capeletti were removal of a guardrail and failure to construct a roadway embankment at the 4:1 slope required by the plans. The evidence before the court at summary judgment showed that parts of the embankment slope did meet the safe 4:1 ratio, while other parts were steeper-but that the steeper (dangerous) sections would not have been obvious to DOT and would only have been discoverable if DOT had taken detailed slope measurements. With respect to the guardrail, one expert in Capeletti testified that failure to replace the guardrail was not a defect as it did not create a dangerous condition. The other experts testified that although removal of the guardrail created a dangerous condition, the need for a guardrail was not readily apparent at the location of the accident in that case.

      . TEI correctly recognizes that the denial of its summary judgment motion is beyond the scope of review permitted in its appeal from DAB’s final judgment. See, e.g., Merkle v. Home Shopping Network, Inc., 916 So.2d 841, 843 (Fla. 2d DCA 2005) '(prohibiting plaintiff from challenging on appeal pretrial orders related to pending claims against one defendant through appeal of final order in favor of another defendant); Cygler v. Presjack, 667 So.2d 458, 461 (Fla. 4th DCA 1996) (prohibiting defendant from appealing summary judgment for plaintiff on one of her affirmative defenses through appeal of final summary judgment for codefendant because case against defendant was still pending); see generally Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 23:3 (2014 ed.) ("An appeal by one defendant does not bring up for review an earlier order affecting the rights of another defendant if the case is still pending as to that defendant.”).

      . Given that the nature and patency of the defect were the same vis-a-vis both defendants, we agree with TEI that it has also shown a departure from the essential requirements of the law and irreparable harm in that the trial court applied the same law differently to two defendants in the same legal position. Cruz attempts to avoid this conclusion by arguing that the trial court did not grant summary judgment in favor of DAB based upon Slavin, but based upon its conclusion that DAB did not breach any duty owed to Cruz. This explanation is belied by the judge’s oral ruling at the summary judgment hearing as well as its initial written order. In addition, because Slavin was the only basis for summary judgment argued in DAB’s motion, it would have been error for the trial judge to have granted summary judgment on any other basis. Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 215 (Fla. 5th DCA 2011) ("It is reversible error to enter summary judgment on a ground not raised with particularity in the motion [for summary judgment].” (quoting Williams v. Bank of Am. Corp., 927 So.2d 1091, 1093 (Fla. 4th DCA 2006))); Deluxe Motel, Inc. v. Patel, 727 So.2d 299, 301 (Fla. 5th DCA 1999) ("[T]he trial court erred to the extent that, in entering judgment for the sellers, it relied on the arguments made at the hearing but not in the motion.").

      .Given the position of Cruz's expert that bare guardrail ends in the clear zone were obvious and violated DOT’S own standards, Cruz was in no position to argue that the dangerousness of the condition was somehow hidden from DOT. See Capeletti Bros., 743 So.2d at 152 ("[T]he test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care.”).

      . Even though Cruz’s expert, Ramos, testified that DAB did not violate its standard of care based upon its reference to Index 400 on the design plans, TEI correctly recognized that the testimony from DOT’s witnesses (stating that TEI's plans superseded Index 400 and unambiguously eliminated crash cushions in the clear zone, including at the location of the accident) could have been sufficient to create an issue of material fact as to this point.

      . Although we have accepted this theory for purposes of analysis, we note that Cruz should not have been permitted to avoid summary judgment on the basis of an affidavit from its expert that materially differed from that expert’s deposition testimony. See, e.g., Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303, 305 (Fla. 5th DCA 2003) ("It is well established that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow pri- or sworn testimony with new and starkly different sworn affidavit testimony, solely to avoid summary judgment.”).


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Mendy Rae HENDERSON, Appellee.
    No. 5D13-2441.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellee.
   COHEN, J.

The State appeals the trial court’s imposition of a downward departure sentence for Mendy Rae Henderson, arguing that the trial court erred in finding that Henderson’s fourth DUI offense was an isolated incident. This is the second time that the legality of Henderson’s sentence has come before this Court. Once again, we reverse.

In 2012, Henderson entered an open plea to driving under the influence (her fourth DUI), resisting an officer with violence, and driving while her license was suspended or revoked. Originally, the trial court departed from the sentencing guidelines on the basis that Henderson was in need of rehabilitation for substance abuse, and that she was needed at home to be “financially, physically, mentally and emotionally supportive of her minor son,” who himself was at risk due to his mother’s addiction. On appeal, this Court reversed and remanded for resentencing, finding that the nonstatutory mitigators used by the trial court “failed to comport with legislative sentencing policies as interpreted by Florida courts.” State v. Henderson, 108 So.3d 1137, 1141 (Fla. 5th DCA 2013).

At resentencing, Henderson again argued for a downward departure, this time based upon section 921.0026(j), Florida Statutes. That section provides for a downward departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(j), Fla. Stat. (2013). Henderson argued that her offense was isolated because it was her first felony DUI. The trial court agreed, finding that Henderson was remorseful, that the offense was unsophisticated, and that it was an isolated incident. The trial court reasoned: “Henderson has never before had a felony DUI, so that meets the legal test. And ... it had been some ten months or more before she had had a previous DUI.” The trial court then re-imposed the identical sentence that was originally imposed.

Florida’s sentencing scheme requires the trial court to impose a sentence that comports with the guidelines unless a valid basis for departure is established. See § 921.0026, Fla. Stat. Section 921.0026(j) cannot, and should not, be read to mean that as long as the defendant has never committed the exact offense for which he or she is currently being sentenced, the offense can be considered isolated regardless of the defendant’s criminal history. For example, a person being sentenced for sexual assault who has numerous prior robbery convictions cannot be eligible for a downward departure simply because he has never previously been convicted of a sexual assault.

In this case, Henderson had three prior DUI convictions. The second, third, and fourth DUIs were committed within a two-year period. The fourth DUI occurred just ten months after the third DUI, while Henderson was still on probation. The fact that she was able to avoid being arrested for ten months does not render her last DUI isolated. See State v. Stephenson, 973 So.2d 1259, 1263-64 (Fla. 5th DCA 2008) (holding that incident was not isolated where defendant had a “substantial criminal record prior to the current offense”); State v. Bell, 854 So.2d 686, 691 (Fla. 5th DCA 2003) (noting that multiple driving while license suspended convictions prove that crime was not isolated).

Additionally, as to the resisting arrest with violence charge, the record does not support the trial court’s finding that Henderson was remorseful. As the trial court acknowledged, Henderson denied resisting the officer with violence at the sentencing hearing. See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (holding that the record did not support element of remorse where defendant continued to deny responsibility for the offense); State v. Chestnut, 718 So.2d 312, 313 (Fla. 5th DCA 1998) (“We are certain that [the defendant’s] denial of doing ‘what [he] was accused of is not the kind of remorse contemplated by the legislature.”).

In sum, the trial court erred in granting Henderson a downward departure. Accordingly, we are compelled to reverse with instructions to the trial court to impose a sentence within the statutory guidelines.

REVERSED and REMANDED for imposition of a guideline sentence.

SAWAYA and WALLIS, JJ., concur.

      . Henderson's son was ten years old at the time of the first sentencing hearing.


author: ORFINGER, J.

text:
    Angel PADILLA-PADIAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1037.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.

      Angel G. Padilla-Padial, Bonifay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Angel Padilla-Padial appeals the summary denial of his pro se “Motion to Correct Illegal Sentence,” which was filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and raised his alleged entitlement to additional jail credit. The trial court treated it as a Florida Rule of Criminal Procedure 3.801 motion to correct jail credit, and denied it on the merits. However, because the motion was filed during the pendency of Padilla-Padial’s direct appeal of his judgment and sentence (case number 5D13-3356), the trial court lacked jurisdiction to rule on the motion. See Mann-Stack v. Homeside Lending, Inc., 982 So.2d 72, 73-74 (Fla. 2d DCA 2008) (holding that, once notice of appeal is filed, lower court is divested of jurisdiction to proceed with matters related to appealed order). Additionally, since appellate counsel represented Padilla-Padial when he filed his pro se motion, and the motion did not contain an unequivocal request to discharge counsel, the trial court should have stricken the motion as a nullity. Cf. Sheppard v. State, 17 So.3d 275, 281 (Fla.2009) (noting that Florida appellate courts have uniformly held that pro se petitions for relief filed in appellate courts were stricken where defendant was represented by counsel (citing Carlisle v. State, 773 So.2d 647, 648 (Fla. 5th DCA 2000))).

We recognize that there may be cases involving jail credit issues that, if not promptly resolved, would result in a defendant having served the legal portion of the sentence prior to the conclusion of the direct appeal. We would urge the State and defendants to work cooperatively to correct those errors. If the justice of the individual case requires it due to circumstances such as a short sentence, a joint motion by the parties requesting relinquishment of jurisdiction to the trial court for the limited purpose of correcting an illegal sentence may be appropriate. See Amendments to Fla. R. of Crim. P. 3.111(e) & 3.800 & Fla. R. of App. P. 9.020(h), 9.HO, & 9.600, 761 So.2d 1015, 1019 (Fla.1999). We encourage the Appellate Rules Committee to consider revising Florida Rule of Appellate Procedure 9.600(d) to give the trial courts concurrent jurisdiction to consider such matters in a fashion that would not disrupt the orderly resolution of the defendant’s direct appeal.

We reverse the trial court’s order, as it was entered without jurisdiction. This is without prejudice to Padilla-Padial filing an appropriate and timely rule 3.801 motion to correct jail credit after his judgment and sentence become final.

REVERSED and REMANDED.

LAWSON and LAMBERT, JJ., concur.

      . Padilla-Padial’s direct appeal has yet to be perfected, and is still pending before this Court.


author: PER CURIAM.

text:
    Devin RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1272.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the summary denial of Devin Rivera’s postsentencing motion to withdraw his plea without prejudice to allow him to assert the same or similar issues in a properly pled and timely filed motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. See Keene v. State, 8 So.3d 1278 (Fla. 5th DCA 2009).

AFFIRMED.

EVANDER, WALLIS and LAMBERT, JJ., concur.


author: LAMBERT, J.

text:
    Zackery A. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3159.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Zackery A. Martin, East Palatka, pro se.
    No Appearance for Appellee.
   LAMBERT, J.

Zackery Martin appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct his sentence. Martin was sentenced to serve 12 years in the Department of Corrections (“DOC”) for conspiracy to traffic in cocaine and was awarded 755 days of jail credit. His sentence was ordered to run concurrently with a federal prison sentence he was serving. Martin finished serving his federal sentence and was transferred to the Dade County jail, but was inadvertently released before completing his state sentence. Martin remained out of custody for 306 days until rearrested.

In his 8.800(a) motion, Martin does not contest the legality of his initial sentence. Rather, he claims that the DOC is not properly awarding him jail credit for the 306 days he was out of custody through no fault of his own and for the remaining time he served on his concurrent federal sentence.

Martin’s request for credit after sentencing does not impact the legality of the sentence that has been imposed, and thus is not a proper claim under rule 3.800(a). Reynolds v. State, 590 So.2d 1043, 1044 (Fla. 1st DCA 1991). His entitlement to relief, if any, is properly sought through administrative proceedings and, if neces.sary, by filing a petition for writ of mandamus in the appropriate circuit court, naming the DOC as respondent. Williams v. State, 673 So.2d 873-74 (Fla. 1st DCA 1996) (citing Barber v. State, 661 So.2d 355 (Fla. 3d DCA 1995); Bowles v. State, 647 So.2d 1056 (Fla. 5th DCA 1994)). Under the circumstances, our affirmance is without prejudice to Martin seeking an appropriate remedy.

AFFIRMED.

ORFINGER and BERGER, JJ., concur.


text:
    Christopher EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3219.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Christopher Edwards, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 21, 2013, violation of probation judgment and sentence in Case No. 2012-CF-738-A-(03), in the Circuit Court in and for Lake County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, ORFINGER, and WALLIS, JJ., concur.


text:
    David Matthew MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3331.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    . Adam Pollack, of Law Office of Adam L. Pollack, P.A., Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   ON CONCESSION OF ERROR

PER CURIAM.

Petitioner, David M. Miller, seeks a writ of prohibition to prohibit the trial court from proceeding with the underlying action. The State commendably concedes that the petition should be granted.

Miller was charged in Seminole County Circuit Court Case No. 2013-CF000153A with unlawful travel to meet a minor and computer solicitation of a child. He filed an amended motion to dismiss information based on entrapment pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion on June 23, 2014. On July 2, 2014, the State filed a motion to rescind the court order dismissing the information and setting a hearing on Miller’s amended motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.192. On September 5, 2014, the trial court granted the State’s motion.

Miller then filed a petition for writ of prohibition in this Court. He contends that the trial court lacked jurisdiction to rescind its June 23, 2014, order of dismissal because, under rule 3.192, when the trial court failed to rule on the State’s motion, it was deemed denied. Miller asks that this Court issue a writ preventing the trial court from acting in excess of its authority as the matter stands dismissed.

We issued an order staying the proceedings below and ordered the State to respond. In its response, the State agreed that the trial court had until August 4, 2014, to rule on the motion for rehearing, and when it failed to do so, the motion was deemed denied. No timely appeal was taken. As a result, the State concedes that the September 2, 2014, order rescinding the dismissal was a nullity and that the petition should be granted.

We accept the State’s concession and grant the petition for writ of prohibition. We quash the trial court’s September 5, 2014, “Order Rescinding This Court’s Order Dismissing The Information and Setting Defendant’s Amended Motion to Dismiss for Hearing.”

PETITION GRANTED; ORDER QUASHED.

PALMER, ORFINGER and BERGER, JJ., concur.

      . Florida Rule of Criminal Procedure 3.192, effective in 2010, provides:
      When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the state, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding. A response may be filed within 10 days of service of the motion. The trial court's order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. If no order is filed within 40 days, the motion is deemed denied. A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered 40 days from the order of which rehearing is sought, or upon the filing of a written order denying the motion for rehearing, whichever is earlier. This rule shall not apply to post-conviction proceedings pursuant to rule 3.800(a), 3.850, 3.851, or 3.853. Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case.


author: WALLIS, J.

text:
    Verdell J. HILL, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3470.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2014.
    James S. Purdy, Public Defender, and Noble Brunton, Assistant Public Defender, Palatka, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   WALLIS, J.

Petitioner seeks a writ of habeas corpus challenging the trial court’s order, which revoked his pretrial bond and denied his motion for rehearing. Petitioner further seeks the reinstatement of his bond. We partially grant the petition and remand for the trial court to determine and make written findings as to whether Petitioner willfully violated ■ a condition of his pretrial release and whether there are any reasonable conditions of release which would assure Petitioner’s presence at trial.

On April 5, 2014, Petitioner was arrested and charged with aggravated battery. Petitioner bonded out prior to first appearance. While on pretrial release, Petitioner contacted the alleged victim on two occasions. The State filed a motion to revoke Petitioner’s bond pursuant to Florida Rule of Criminal Procedure 3.131(f), citing the contact between Petitioner and the victim. Due to confusion with the electronic filing system, Petitioner’s attorney was not provided a copy of the motion to revoke bond. On July 14, 2014, prior to Petitioner’s counsel receiving a copy of the motion to revoke bond, the trial court issued an order granting the State’s motion without a hearing.

On July 17, 2014, Petitioner filed an emergency motion for hearing and reinstatement of bond, arguing the court never imposed a no-vietim-contact provision as a bond condition and, therefore, the alleged contact with the victim could not have violated his bond. The trial court heard legal arguments but received no evidence during the hearing on the emergency motion. The trial court denied the emergency motion, and Petitioner was arrested on August 20, 2014. Petitioner remains incarcerated.

Florida Rule of Criminal Procedure 3.131(g) provides for a trial court to order the arrest and commitment of a defendant who is released on bail where:

(1) there has been a breach of the undertaking;
(2) it appears that the defendant’s sureties or any of them are dead or cannot be found or are insufficient or have ceased to be residents of the state; or
(3) the court is satisfied that the bail should be increased or new or additional security required.

Fla. R. Crim. P. 3.131(g).

The State has the burden of proving that there is a change in circumstances or that new information warrants the increase or revocation of bond. Lee v. Bieluch, 855 So.2d 713 (Fla. 4th DCA 2003). Florida Rule of Criminal Procedure 3.132(c)(2) states, in relevant part, that “[t]he court’s pretrial detention order shall be based solely on evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record.” Likewise, section 907.041(4)(i), Florida Statutes (2014), provides that:

The pretrial detention order of the court shall be based solely upon evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within 24 hours of the pretrial detention hearing.

§ 907.041(4)(i), Fla. Stat.

In the present case, neither the trial court’s order granting the State’s motion to revoke bond nor the court’s order denying Petitioner’s emergency motion contained findings of fact to support the bond revocation. The audio recording of the evidentiary hearing also reveals that the court did not make any oral findings as to whether Petitioner violated his pretrial release. Therefore, we grant the petition in part and remand to the trial court to make written findings as to both whether the Petitioner willfully violated a condition of his pretrial release and whether there are any reasonable conditions of release that would assure Petitioner’s presence at trial. See Smith v. State, 933 So.2d 689 (Fla. 5th DCA 2006).

PETITION GRANTED in part; REMANDED with instructions.

BERGER and LAMBERT, JJ., concur,

      . Florida Rule of Criminal Procedure 3.131(f) provides: "Revocation of Bail. The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit the defendant to the custody of the proper official to abide by the judgment, sentence, and any further order of the court.”


author: EMAS, J.

text:
    N302DP, LLC, Appellant, v. CHARDAN AERO CORP, et al., Appellees.
    No. 3D14-407.
    District Court of Appeal of Florida, Third District.
    Filed Nov. 12, 2014.
    Rehearing Denied Dec. 18, 2014.
    Arnstein & Lehr and Susan E. Trench, Miami, for appellant.
    Eric A. Arrington & Associates and Eric A; Arrington, Hollywood, for appellees.
    Before WELLS, EMAS and LOGUE, JJ.

      . Chardan did not cross-appeal the trial court’s adverse determination of its counterclaim.

   EMAS, J.

Appellant, N302DP, LLC (“N302DP”) seeks review of a final judgment which, though entered in its favor on the issue of breach, limited its damages to $24,626.50. We hold that the -trial court erred in so limiting N302DP’s damages, and reverse and remand.

N302DP was formed in 2007 by R. Donahue Peebles for the purpose of purchasing a Gulfstream IIB aircraft. Peebles had agreed to purchase the aircraft after being approached by, and entering into negotiations with, Frederico Machado, who was in the business of private jet management and charters. Machado, who did not have the financial wherewithal or available credit to purchase the $3.8 million aircraft, sought to have Peebles purchase the aircraft and then lease it to Machado’s company, Chardan Aero Corporation (“Char-dan”), for five years, in exchange for, inter alia, Peebles having access to the aircraft for ten days a month.

Under the terms of the “Aircraft Lease Terms and Charter Management Agreement” (“the Agreement”), entered into between N302DP and Chardan on July 16, 2007, N302DP had the right to use the aircraft for ten days each month, and Chardan was entitled to use of the aircraft for the remainder of the month, for the purpose of operating third-party charters. Chardan was entitled to collect all revenue generated by the charter business, but was required to make monthly lease payments of $24,626.50 and was responsible for all insurance, maintenance, repair, servicing, and other associated costs of the aircraft. N302DP would be invoiced by Chardan for N302DP’s own charter expenses, including jet fuel, pilot costs/expenses, and landing fees incurred for flights on its allotted days. The Agreement also provided remedies upon termination and/or default:

12. Remedies on Termination or Default. In the event of a termination and/or default of this Agreement, the following remedies shall apply:
(a) Within sixty (60) days, a full accounting shall be made ...
(b) After such settlement of accounts, [Chardan] shall turn over to [N302DP] the Aircraft, together with all aircraft log records appertaining to the Aircraft, and
(c) In addition to 12.1(a) and (b) above, in the event of a termination due [ ] only to a default by [Chardan], then [Chardan] shall be liable to [N302DP] for the balance of the Lease Payments through the end of the Term of the Agreement.

Machado also executed a personal guaranty of the Agreement.

On September 2, 2008, Chardan invoiced N302DP for charges and expenses incurred from N302DP’s client aircraft hours which occurred between July and August 2008. N302DP disputed some of the charges contained in that invoice and the record reflects the parties had multiple discussions on this issue through early October. It is undisputed that thereafter, Chardan failed to make the next scheduled lease payment of $24,626.50, due October 10, 2008.

On October 12, Machado notified Pee-bles that Machado’s lawyer would send a termination letter the next day due to N302DP’s failure to pay the disputed invoices. Peebles advised Machado that Chardan was in default for failure to pay the October lease payment, and encouraged Machado not to proceed with declaring N302DP in default at the risk of legal action. Nevertheless, N302DP was served with a notice of default and termination letter on October 13.

Thereafter, N302DP sued Chardan for breach of contract and Machado for breach of guaranty and sought, as its remedy, the accelerated balance of all lease payments as provided under the terms of the Agreement. It also alleged a claim against both Chardan and Machado for breach of fiduciary duty for allegedly abandoning the aircraft. Chardan filed a counterclaim for breach of contract and unjust enrichment, alleging that N302DP had failed to pay properly-invoiced charges. After a two-day bench trial, the trial court entered a final judgment finding in favor of N302DP on its breach of contract claim against Chardan, denying N302DP’s breach of fiduciary duty claims, and denying Char-dan’s counterclaim. Specifically, the court found that Chardan defaulted by failing to make the October 10 lease payment. This finding, combined with the trial court’s denial of the counterclaim, left Chardan as the only party in default. Nevertheless, the trial court awarded N302DP damages in the amount of the single October 2008 lease payment ($24,626.50), noting that since N302DP took possession of the plane by October 16, 2008, and thereafter had the use and enjoyment of the plane, N302DP was not entitled to any portion of the balance of the accelerated lease payments.

This appeal followed. N302DP contends that the trial court erred in finding it was not entitled to the balance of the accelerated lease payments through the end of the Agreement (50 months), asserting its entitlement to same because the Agreement specifically provided for that remedy in the event of a default only by Chardan. We agree.

The Agreement unambiguously provides that in the event of a termination due only to a default by Chardan, it “shall be liable to [N302DP] for the balance of the Lease Payments through the end of the Term of the Agreement.” There is competent substantial evidence in the record to support the trial court’s finding that Chardan defaulted on the Agreement by failing to pay the October lease payment. Given this determination, and the trial court’s denial of Chardan’s counterclaim (which was premised upon allegations that N302DP had breached and defaulted on the Agreement), Chardan was determined below to be the only party in default. Because the termination of the Agreement was “due only to a default by” Chardan, N302DP was entitled, under the plain terms of the Agreement, to recover from Chardan “the balance of the Lease Payments through the end of the Term of the Agreement.” See Wolf v. Buchman, 425 So.2d 182, 184 (Fla. 3d DCA 1983) (holding “[a] lease, whether of real or personal property, may create or defeat the right to the value of the lease as damages even upon return of the property”); Chandler Leasing Div. v. Florida-Vanderbilt Dev. Corp., 464 F.2d 267, 271 (5th Cir.1972) (holding that although there are multiple remedies available to a lessor upon breach by the lessee under Florida law, including retaking possession of the premises, those remedies are “intended to supply remedies when none are provided in the lease.”)

Accordingly, we hold that it was error for the trial court to limit N302DP’s damages to an amount representing the single lease payment of $24,626.50, and reverse and remand for entry of a judgment in an amount of damages that includes “the balance of the Lease Payments through the end of the Term of the Agreement”, and for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The monthly lease payment was based upon the monthly financing charges which N302DP was obligated to pay pursuant to a loan agreement with Northern Trust Bank.

      . Machado testified at trial that at this point, he was "waiting for [N302DP] to default” so he could “end the relationship.”


text:
    Helen DUENO, etc., Appellant, v. MODERN USA INSURANCE COMPANY, et al., Appellees.
    No. 5D13-3358.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    Rehearing and Rehearing En Banc Denied Dec. 16, 2014.

      William H. Rogner, of Hurley, Rogner, Miller Cox, Waraneh & Westcott, P.A., Winter Park, and Dock A. Blanchard, of Blanchard, Merriam, Adel & Kirkland, P.A., Amicus Curiae, Ocala, for Appellant.
    Hunter A. Hall, of Hall Keener, P.A., Tampa, for Appellees.
   LAWSON, J.

Helen yDueno, as next friend of her minor nephew, A.C., timely appeals a final summary judgment in favor of Modern USA Insurance Company, who filed a declaratory judgment action, seeking a declaration that its homeowner’s insurance policy did not cover its insureds, Alexa Iri-zarry and Jose L. Yambo, Sr., for their negligent supervision of A.C. Dueño had filed a complaint against Irizarry and Yambo alleging that A.C. was sexually battered by J.Y., another minor, while in Irizarry and Yambo’s care. J.Y. is the son of Irizarry and Yambo, and is also an insured under the policy. We agree with the trial court that the sexual molestation exclusion in the homeowner’s policy is unambiguous, and excluded coverage for injury arising out of J.Y.’s alleged sexual molestation of A.C. The facts and policy language at issue in this case appear to be materially indistinguishable from those addressed in Valero v. Florida Insurance Guaranty Association, Inc., 59 So.3d 1166 (Fla. 4th DCA 2011), which the trial court properly followed in granting summary judgment. Our review is de novo. Chandler v. Geico Indem. Co., 78 So.3d 1293 (Fla.2011).

As in Valero, Appellant in this case argues that we should reverse based on Premier Insurance Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994) and Mactown, Inc. v. Continental Insurance Co., 716 So.2d 289 (Fla. 3d DCA 1998). Appellant also argues for reversal based upon Westmoreland v. Lumbermens Mutual Casualty Co., 704 So.2d 176 (Fla. 4th DCA 1997), a case not addressed in Valero. Appellant also argues that the sexual molestation exclusion in this case should not apply because her complaint alleges injury arising out of sexual battery, not sexual molestation. Finally, Appellant attempts to paint Valero as an ill-reasoned anomaly. We will briefly address each argument, but note generally that our affirmance in this case rests upon our conclusion that the policy exclusion at issue here is clear and unambiguous. See, e.g., Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005) (“[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” (quoting Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996))). The exclusion reads:

SECTION II-EXCLUSIONS
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others [do not apply to “bodily injury” or “property damage”]:
k. Arising out of actual or alleged sexual molestation or harassment, corporal punishment, or physical or mental abuse;....

In Premier, our court held that an intentional act exclusion did not apply to exclude coverage for a negligent supervision claim, based upon an ambiguity in that policy. Premier, 632 So.2d at 1055-57. In that case, as in Valero and this case, the plaintiffs sued two named insureds, alleging that their minor son (also a named insured) sexually abused another child while in their care. The ambiguity in the Premier policy was created by language in a severability clause (stating that the insurance applied “separately to each insured”) which arguably conflicted with the intentional act exclusion (which excluded any injury “intended by any insured”). Id. The Premier panel found that the sever-ability clause essentially negated the intentional act exclusion for either a cause of action that did not apply to all insureds or an intentional act that only applied to one insured. Id. In this case, as in Valero, the exclusion at issue does not exclude injury caused by another insured, but by any act of sexual molestation (irrespective of whether the person causing the injury is an insured or not). Given the broad wording of the sexual molestation exclusion in this case, there is no ambiguity created by the severability clause in the policy.

In Mactown, the Third District Court of Appeal held that an intentional tort exception in a general liability policy did not bar a claim against an employer for negligent retention of an employee who battered another employee. 716 So.2d at 291-93. It reasoned that while the intentional act exclusion “covers a number of intentional torts” it did “not specifically exclude negligent acts ... [such that from] the ‘ordinary person perspective’ [the] exclusion is, at best, ambiguous, and must be construed in favor of coverage.” Id. at 292 (citations omitted). The Valero panel found “Mac-town to be of limited assistance,” reasoning: “There [in Mactown ], our sister court addressed the exclusion at issue in isolation and found the exclusion to be ambiguous. Here, we have been able to consider the exclusion at issue in context with the entire exclusions section and have found the exclusion to be unambiguous.” 59 So.3d at 1169. Although we also find Mac-town to be unpersuasive, we agree with Appellant that the case could be read as essentially finding an ambiguity in the “arising out of’ language at issue in that policy, which was even broader than similar language at issue here and in Valero. The intentional act exclusion considered in Mactown excluded claims “based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged ... battery. ...” To us, that seems as clear as the exclusion for claims “[a]rising out of actual or alleged sexual molestation” at issue here and, as such, should have barred recovery for injuries attributable to a battery, even if pursued under a negligent retention theory. To the extent that Mac-town can be read as holding the “arising out of’ language to be ambiguous, we believe that the holding has been superseded by Taurus Holdings, which essentially found similar “arising out of’ language in an insurance policy exclusion provision to be unambiguous. 913 So.2d at 532-33 (quoting with approval the Fifth District Court’s conclusion in Hagen that the term “arising out of’ is “unambiguous[;]” is “broader in meaning than the term caused by[;]” and “means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with’ ”); see also Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 787 (Fla.2004) (“Florida has long followed the general rule that tort law principles do not control judicial construction of insurance contracts. Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.”).

Appellant also argues that we should follow Westmoreland, the one case in Florida that appeared to expressly find the “arising out of’ language in an insurance policy to be ambiguous. The Florida Supreme Court fully addressed Westmore-land in Taurus Holdings, explaining:

One Florida case, however, has found the “arising out of’ language ambiguous. In Westmoreland v. Lumbermens Mutual Casualty Co., 704 So.2d 176 (Fla. 4th DCA 1997), the Fourth District interpreted a policy that excluded claims for “ ‘bodily injury’ ... arising out of the ownership, maintenance, use, loading or unloading of motor vehicles.” Id. at 178. The court noted that the term “arising out of’ was not defined and stated that “[wjhere a critical term is not defined in an exclusionary clause of the policy, it will be liberally construed in favor of an insured.” Id. at 180. The court found the policy ambiguous and defined “arising out of’ to require a showing of proximate causation. The Fourth District has since clarified, however, that the ambiguity found in the Westmoreland policy was a product of the “arising out of’ language combined with other policy language. See Estate of Bombolis v. Cont’l Cas. Co., 740 So.2d 1229, 1230 (Fla. 4th DCA 1999). As clarified, therefore, Westmoreland does not hold that the “arising out of’ language, standing alone, is ambiguous.

Taurus Holdings, 913 So.2d at 533. The Supreme Court also noted that “[ojther courts applying Florida law disagreed with Westmoreland.” Id. at 533 n. 2. (citations omitted). More recently, a federal court applying Florida law more bluntly, but accurately, concluded that any “argument [based] on Westmoreland must fail as it is no longer good law.” Continental Cas. Co. v. City of Jacksonville, 654 F.Supp.2d 1338, 1346 n. 2 (M.D.Fla.2009) (citations omitted).

As for Appellant’s argument that the exclusion should not apply because it only excluded injury arising out of a sexual molestation, and not a sexual battery (as alleged in her complaint), we conclude that the term sexual molestation unambiguously includes any unwanted sexual touching. See generally 3 Insurance Claims and Disputes § 11:23B (6th ed.) (“Modern liability insurance policies often contain exclusions eliminating coverage for injuries arising out of sexual molestation or abuse. When the words ‘sexual molestation’ and ‘abuse’ are not defined, those words should be given their dictionary definitions.”).

Finally, we address Appellant’s general assertion that Valero and the Fourth District’s interpretation of the sexual molestation exclusion involved in that case is “an anomaly that is inconsistent with this District, other Districts, and other jurisdictions.” General research on this issue readily reveals Appellant’s assertion to be inaccurate. For example, one commentator has noted Valero as one of many cases reaching similar conclusions, as follows:

Sexual abuse or molestation exclusions are becoming more common in liability policies, particularly in homeowners policies and in CGL policies issued to businesses or organizations that may be susceptible to sexual abuse or molestation claims. The specific language in an exclusion can vary significantly from policy to policy, so again it is important to evaluate the exclusion language carefully. For example, a sexual abuse or molestation exclusion may preclude coverage for injury from sexual abuse or molestation, regardless of who engaged in the alleged conduct. If sexual abuse or molestation caused an injury, then a policy with that exclusion would not cover those claims. Most courts have upheld the application of these types of exclusions as drafted. See, e.g., Valero v. Florida Ins. Guar. Ass’n, Inc., 59 So.3d 1166, 1168 (Fla.Ct.App.2011) (rejecting the insured’s argument that the sexual molestation exclusion, which excluded coverage for bodily injury “arising out of sexual molestation,” did not apply to claims of negligent supervision, the court found the plain language of the exclusion precluded coverage for injury arising out of sexual molestation “by any person”); Hing-ham Mut. Fire Ins. v. Smith, 69 Mass.App.Ct. 1, 865 N.E.2d 1168, 1173 (2007) (excluding coverage for all the insureds, despite the severability clause, because the exclusion precluded coverage for bodily injury arising out of sexual molestation); Philbrick v. Liberty Mut. Fire Ins. Co., 156 N.H. 389, 934 A.2d 582, 585-86 (2007) (upholding the application of the exclusion for all claims because they originated from the sexual abuse); Am. Commerce Ins. Co. v. Porto, 811 A.2d 1185, 1196 (R.I.2002) (“if the alleged sexual molestation is a cause of the claimed bodily injuries, then the existence of other alleged negligence claims and proximate cause is of no moment — the bodily injuries alleged are causally connected to or ‘arise out of the sexual molestation, and are thereby excluded from coverage”); Allstate Ins. Co. v. Bates, 185 F.Supp.2d 607, 613 (E.D.N.C.2000) (excluding coverage for negligent coinsured reasoning that “without the molestation there would be no injury and thus, no basis for the negligence claims”). Some courts, however, have refused to apply the exclusion as written. See, e.g., Am. Family Mut. Ins. Co. v. Bower, 752 F.Supp.2d 957 (N.D.Ind.2010) (finding that a claim against parents for failure to intervene to stop molestation was separate from the sexual molestation and, therefore, not excluded by the sexual molestation exclusion, which precluded coverage for injury “arising out of or resulting from any actual or alleged sexual molestation or contact”).

Rebecca R. Haller, IS THERE COVERAGE? Sexual Abuse Claims Against Nonparticipants, 55 NO. 5 DRI For the Defense 70 (2013). Similarly, Couch on Insurance provides in pertinent part:

[A] policy may contain specific exclusionary clauses or endorsements that exclude coverage of sexual abuse, harassment, molestation, or other similar claims. [Footnote omitted]. Coverage for sexually related claims will be excluded if the policy language is the clear and unambiguous language. [Footnote omitted].
Á policy may state that no coverage is provided to anyone who is connected with the insured who commits an act of sexual abuse. Under these circumstances, there is no coverage for all insureds under the policy for claims arising from an act of sexual abuse, even though the policy contains a severability clause providing that each insured would be regarded as having separate coverage. [noting: American Family Mutual Ins. Co. v. Copeland-Williams, 941 S.W.2d 625, 629-30 (Mo.Ct.App.E.D.1997); Bagley v. Monticello Ins. Co., 430 Mass. 454, 457, 720 N.E.2d 813, 816 (1999); Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 182-83 (N.D.1994); Ristine ex rel. Ristine v. Hartford Ins. Co. of Midwest, 195 Or.App. 226, 97 P.3d 1206, 1209-10 (2004); Caroff v. Farmers Ins. Co. of Wash., 98 Wash.App. 565, 989 P.2d 1233, 1237 (1999). See also Neff ex rel. Landauer v. Alterra Healthcare Corp., 271 Fed.Appx. 224, 226 (3rd Cir.2008); Hingham Mut. Fire Ins. Co. v. Smith, 69 Mass.App.Ct. 1, 8, 865 N.E.2d 1168, 1173 (2007) (holding that a severability clause did not affect the applicability of an exclusion for bodily injuries “arising out of’ sexual molestation, and thus no coverage was available for actions against parents of perpetrator for negligent supervision, as the claim against them had its basis in the sexual molestation).]

9 Couch on Ins. § 127:28.

AFFIRMED.

BERGER, J„ and MURPHY, M., Associate Judge, concur.

      . Black’s Law Dictionary defines the term "molestation” as ”[t]he act of making unwanted or indecent advances to or on someone, esp. for sexual gratification.” Black’s Law Dictionary (15C) (9th ed. 2009). Similarly, Merriam-Webster dictionary defines "sexual” as "of, relating to, or involving sex”, and "molest” ("molestation" being the noun form) as “to make annoying sexual advances to; especially: to force physical and usually sexual contact on.” Merriam-Webster's Dictionary, http://www.merriam-webster.com/ dictionary/sexual, http://www.merriam-webster.com/dictionaiy/molest (last visited October 21, 2014).


text:
    Craig Levell JOHNSON (Brown), Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3025.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    Rehearing Denied Dec. 18, 2014.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Craig L. Johnson, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence in this Anders appeal, except for the assessment of a $250 public defender’s' fee. It appears from the record that the defendant was not informed of his right to contest the amount of the fee as required by-Florida Rule of Criminal Procedure 3.720(d)(1). As a result, the fee is stricken without prejudice to reimpose it after compliance with the rule.

AFFIRMED.

ORFINGER, COHEN and BERGER, JJ., concur.

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


text:
    Robert HORN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1393.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    Rehearing Denied Dec. 22, 2014.
    Robert Horn, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten and Kay-lee D. Tatman, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the summary denial of Horn’s motion for postconviction relief. Our affir-mance is without prejudice to Horn pursuing any administrative remedies he may have with the Florida Commission on Offender Review (formerly the Florida Parole Commission).

AFFIRMED.

LAWSON, EVANDER and WALLIS, JJ., concur.


text:
    Harold BLAKE, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D13-2503, 2D14-3410.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2014.

      Linda McDermott of McClain & McDer-mott, P.A., Estero, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Harold Blake appeals the orders summarily denying two motions for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 in the same circuit court case. We consolidate the cases only for purposes of this opinion.

Case No. 2D13-2503

In case number 2D13-2503, Mr. Blake seeks review of the denial of his motion that contained three grounds. We affirm the denial of grounds one and two without comment, but we reverse the denial of ground three and remand for the postcon-viction court to afford Mr. Blake an opportunity to amend his claims of newly discovered evidence.

Mr. Blake was charged with first-degree murder and attempted armed robbery with a firearm for events that occurred on August 1, 2002. His first two trials ended in mistrials, and he was found guilty as charged by a jury at his third trial. The trial court sentenced him to terms of life and fifteen years in prison. Mr. Blake appealed his convictions and sentences, and this court affirmed without written opinion. Blake v. State, 950 So.2d 419 (Fla. 2d DCA 2007) (table decision).

On April 6, 2012, Mr. Blake filed a motion under rule 3.850, alleging in ground three that newly discovered evidence established that his convictions and sentences violate the Eighth and Fourteenth Amendments to the United States Constitution. Primarily, he claims that several witnesses admit that they lied at his trial. Mr. Blake’s motion alleges that Mr. Preston, who testified at the trial that Mr. Blake confessed to shooting the victim, now claims that his testimony was false. Likewise, Mr. Blake alleges that another significant witness, Mr. Jones, now claims that his testimony at the trial was false. Mr. Blake further alleges that the substance of Mr. Jones’ admissions casts substantial doubt on the veracity of Richard Green, the cofelon who placed Mr. Blake at the scene of the crimes in this case. Finally, Mr. Blake alleges that Ms. Watson admitted that she lied to the police about overhearing his confession to Mr. Preston and also that the State failed to disclose evidence that revealed Ms. Watson’s statements were false.

The postconviction court denied Mr. Blake’s motion as untimely, which is a correct ruling for the first two claims. But the court did not acknowledge or address Mr. Blake’s claims of newly discovered evidence. A claim of newly discovered evidence can be an exception to the two-year time limitation in rule 3.850(b). Fla. R. Crim. P. 3.850(b)(1). If the postconviction court had addressed Mr. Blake’s claims of newly discovered evidence, we conclude that the court would have been required to strike the claims as insufficiently pleaded.

This court has explained that because rule 3.850(b) requires a claim of newly discovered evidence to be filed within two years from the date the evidence could have been discovered with the exercise of due diligence, a defendant must “not only allege but also demonstrate that his motion was filed within two years from the date that the evidence could have been discovered” Burns v. State, 110 So.3d 96, 97 (Fla. 2d DCA 2013). In his motion, Mr. Blake did not allege when or how he learned of the newly discovered facts. In that respect, his claims were insufficiently pleaded.

When claims in a postconviction motion are facially insufficient, the post-conviction court should strike the claims with leave to amend within a reasonable time. See Burns, 110 So.3d at 97; Fletcher v. State, 53 So.3d 1249, 1252 (Fla. 4th DCA 2011) (holding Spera v. State, 971 So.2d 754, 761 (Fla.2007), applies to insufficiently pleaded claims of newly discovered evidence); see also Davis v. State, 26 So.3d 519, 527 (Fla.2009) (extending Spera to successive postconviction motions raising claims of newly discovered evidence under rule 3.851(e)(2)(C)). Accordingly, we reverse the portion of the postconviction court’s order that summarily denied ground three of Mr. Blake’s motion and remand for the postconviction court to strike ground three and provide Mr. Blake with sixty days to amend. '

Case No. 2D14-3410

In case number 2D14-3410, Mr. Blake appeals the denial of a second motion that raised claims of newly discovered evidence based on the testimony of Mr. Jones and Mr. Preston at the evidentiary hearing in his death penalty case. The trial court dismissed that motion due to the pending appeal in case number 2D13-2503. Although it may have been correct for the trial court to dismiss or stay proceedings on this motion, given the relief we grant in case number 2D13-2503, the issues raised in this appeal are now moot. Accordingly, we dismiss this appeal, recognizing that Mr. Blake’s counsel, is authorized on remand to file an amended claim of newly discovered evidence.

Case number 2D13-2503 is affirmed in part, reversed in part, and remanded; case number 2D14-3410 is dismissed.

ALTENBERND, KHOUZAM, and BLACK, JJ„ Concur.

      . Mr. Blake was also convicted of another murder that occurred on August 12, 2002. In that case, he was sentenced to death. His judgment and sentence were affirmed on appeal. See Blake v. State, 972 So.2d 839 (Fla.2007). The case that is currently before this court concerning the August 1 murder was apparently used as an aggravator in the sen-fencing phase of that case. There is an overlap of witnesses in the two cases. The post-conviction proceedings in this case and the death penalty case have been handled by two different circuit court judges. We do not know from our record whether the proceedings in the other case involved claims similar to the claims we address today.

      . Mr. Green was convicted of first-degree murder, attempted robbery with a firearm, and grand theft of an automobile for his role in the August 12, 2002, murder referenced in footnote 1. This court affirmed his judgments and sentences in case number 2D05-273, and Mr. Green is serving a life sentence. Green v. State, 954 So.2d 33 (Fla. 2d DCA 2007) (table decision).

      . The postconviction court issued its order in this case before the effective date of the 2013 amendments to rule 3.850. The 2013 amendments to rule 3.850(d) were intended to codify existing case law and address the different options that the postconviction court has when considering a motion under this rule. See In re Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d 734, 738 (Fla.2013). The current rule does not expressly address a situation such as this, where the facial insufficiency precludes the postconviction court from determining whether the motion is timely, but treating such a motion as a timely but insufficient motion under rule 3.850(f)(2) would effectuate the intent of the amendment.


text:
    John RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-728.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Rehearing Denied Dec. 18, 2014.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Goddard v. State, 458 So.2d 230 (Fla.1984); State v. Di Guilio, 491 So.2d 1129 (Fla.1986).


text:
    Jorge Alberto GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-463.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.

      Jorge Alberto Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

We affirm the trial court’s denial of Gonzalez’s motion, filed in a criminal proceeding but pursuant to Florida Rule of Civil Procedure 1.540, seeking to vacate a July 2013 order which returned certain personal property to its rightful owner. Gonzalez filed his motion in January 2014, asserting that he was unaware of this July 2013 order, and further asserting that he is the rightful owner of the property.

The State argues that Gonzalez was not permitted to invoke rule 1.540 in the criminal proceeding below. However, we need not reach that issue (or the additional merits arguments made by the State) as we hold that the trial court no longer had jurisdiction over the personal property at issue.

A trial court’s jurisdiction over a criminal proceeding includes the inherent authority over property seized or otherwise obtained in connection with the proceeding and held by the court in custodia legis. See Garmire v. Red Lake, 265 So.2d 2 (Fla.1972); Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981); Daniel v. State, 991 So.2d 421 (Fla. 5th DCA 2008). “This authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner.” Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006).

However, because the personal property in this case had been returned to its rightful owner (a private citizen) pursuant to an order that was not appealed, the property is no longer held in custodia legis, and the trial court’s authority over that property has terminated. See Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993); Heinrich v. Johnson, 549 So.2d 1187 (Fla. 2d DCA 1989). See also State ex rel. Gerstein v. Durant, 348 So.2d 405, 407 (Fla. 3d DCA 1977) (applying section 812.061, Florida Statutes and holding that an application for return of property “may not be made when the property sought to be returned is not held in custodia legis within the territorial jurisdiction of the court.”). We express no opinion whether Gonzalez may properly pursue an alternative remedy through an original proceeding in civil court or otherwise; we hold merely that he may no longer seek such relief through motion or pleading in the criminal proceeding.

AFFIRMED.

      . The order returning the property was based upon a motion filed by the rightful owner of the property, as well as a joint motion of the State and Gonzalez. The joint motion was signed by Gonzalez’s trial counsel on behalf of his client, agreeing to the return of the property. Gonzalez asserted in his rule 1.540 motion that he was unaware of any such agreement and did not give his counsel permission to enter into an agreement for the return of the property.

        . Gonzalez argues that because his criminal conviction in case number FI 1-28885 is currently on direct appeal, the trial court should have abated the motion for return of property pending the outcome of his direct appeal. See Davies v. State, 934 So.2d 606 (Fla. 5th DCA 2006). However, the returned property was not related to, or held as evidence for, the case in which Gonzalez was convicted (and is currently appealing). Rather, the order directed return of property stemming from an earlier offense involving Gonzalez, but unrelated to the charges in FI 1-28885. This earlier offense was "no actioned” by the State; following termination of that prosecution, and upon motion by the rightful owner and pursuant to an agreement of the parties, the court issued its order (though issued, apparently inadvertently, under case number FI 1-28885) releasing the property from police custody and returning it to its rightful owner.