text:
    Dujuan Jermaine STALEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4627.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Dujuan Jermaine Staley seeks review of the sentence imposed in Collier County after he entered a guilty plea to the charge of driving while license suspended as a habitual offender. Staley argues that the trial court erred in denying him jail credit from the time he was arrested on the Collier County charge in Miami to the time he was sentenced in Collier County. We agree and reverse.

In November 2010, Staley was charged in Collier County Circuit Court case number 10-CF-2478 with driving while license suspended as a habitual offender (DWLSR). Staley failed to appear in court on the charge, and the circuit court issued a bench warrant for failure to appear (FTA) on January 10, 2011. On January 24, 2011, Staley was arrested in Miami-Dade County and the Miami Police Department issued a “Complaint/Arrest Affidavit” which stated in the “violation of law” section that Staley was wanted in Collier County because an arrest warrant had been issued in case number 10-CF-2478 for “FTA/DWLS.”

Staley was transferred to the Pinellas County jail and held based on a warrant for unrelated drug charges. After he entered a plea to those charges, he was transferred to the Collier County jail to await proceedings in case number 10-CF-2478. On March 28, 2012, he was served there with the bench warrant in case number 10-CF-2478. The form reflecting the date of service indicates that Staley also had an active warrant in Dade County for a DUI. The form reflects that the arresting officer also served Staley with “a teletype hold for Dade County.”

Staley entered a plea to the charge in case number 10-CF-2478 on August 6, 2012. He requested 561 days of jail credit to be calculated from the January 24, 2011, date of his arrest in Miami-Dade County. The court denied the request and awarded 135 days of jail credit calculated from March 28, 2012, the date Staley was served with the bench warrant in Collier County jail.

Staley filed a motion to correct sentencing error with the trial court and raised the jail credit issue. The court issued an order denying the request for additional jail credit. The court concluded that Sta-ley was not entitled to credit for the time served in Miami-Dade County because the “Complaint/Arrest Affidavit” issued by the Miami Police Department was a detainer notification and not an arrest warrant. In so ruling, the court relied on the supreme court’s decision in Gethers v. State, 838 So.2d 504 (Fla.2003).

On appeal, Staley argues that the trial court misconstrued the “Complaint/Arrest Affidavit” as a detainer notification instead of an arrest warrant. He claims that he is therefore entitled to credit under Gethers. The State argues that Staley is not entitled to relief under Gethers because the “Complaint/Arrest Affidavit” was merely a detainer.

In Gethers, the supreme court held
that absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.

838 So.2d at 505. The court also recognized an exception to this rule when a defendant incarcerated in another county “is subject to release but is being held because a detainer has been lodged.” Id. at 507. And the court provided guidance for determining whether the defendant was being held pursuant to an executed warrant or a detainer. See id.

The question presented to the trial court in this case was whether the “Complaint/Arrest Affidavit” issued in Miami-Dade County constitutes an arrest warrant or a detainer under Gethers. But the parties have missed the mark by focusing on Gethers. Gethers does not apply when a defendant is arrested in another county on the original county’s warrant. Solomon v. State, 69 So.3d 396, 397 (Fla. 2d DCA 2011); Bedford v. State, 880 So.2d 1265, 1266 (Fla. 2d DCA 2004).

Bedford is directly on point. There, the defendant filed a postconviction motion for jail credit in a Hillsborough County case. 880 So.2d at 1266. The defendant asserted that he was entitled to credit from the date he was arrested in Pinellas County pursuant to a Hillsborough County warrant. Instead, he was only granted jail credit from the date he was transferred to Hillsborough County. The trial court denied relief based on its conclusion that, under Gethers, the defendant was not entitled to credit because he was being held in Pinellas County pursuant to a detainer. Id.

On appeal, this court determined that “the principle articulated in Gethers is inapplicable here because the record demonstrates that [the defendant] was held in Pinellas County, not on a detainer but pursuant to his arrest for the pertinent offenses.” Id. Thus, we determined that the defendant was entitled to the jail credit he requested. Id. at 1267; see also Howard v. State, 23 So.3d 1273, 1274 (Fla. 2d DCA 2010) (“[W]hen a defendant is actually arrested in the other county on charges stemming from the original county, he is entitled to jail credit for the time served in the other .county”).

In this case the “Complaint/Arrest Affidavit” stated in the “violation of law” section that Staley was a fugitive wanted in Collier County based on an arrest warrant that had been issued in case number 10-CF-2478 for “FTA/DWLS.” This document specifically reflects that Staley was arrested in Miami-Dade County based on the fugitive warrant from Collier County. See Howard, 23 So.3d at 1275 (construing a Broward County event report as indicating that the defendant was arrested for violating probation on a Polk County case). And the authenticity of this document is not in question because Staley entered it in evidence at sentencing without objection.

While it is certainly possible that Staley was also arrested for a new violation of law committed in Miami, Staley was entitled to jail credit from the date of his arrest in Miami-Dade County as long as he was arrested at least in part on the Collier County warrant. See Thomas v. State, 863 So.2d 1277, 1278 (Fla. 2d DCA 2004). Further, nothing in our record indicates that Staley’s arrest in Miami was related to any other violation. Accordingly, the trial court erred in denying Staley’s request for additional jail credit in the motion to correct sentencing error.

Reversed.

NORTHCUTT and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    In the Interest of Z.C.(1) and Z.C.(2), children. K.D., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees. Z.H., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    Nos. 2D13-538, 2D13-623.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.

      David A. Dee, Tampa, for Appellant K.D.; and Scott L. Robbins, Tampa, for Appellant Z.H.
    Pamela Jo Bondi, Attorney General, and Meredith Hall, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Sanford, for Appel-lee Guardian ad Litem Program.
   ALTENBERND, Judge.

K.D., the mother, and Z.H., the father, each appeal a final judgment terminating their parental rights to their twin boys, Z.C.(l) and Z.C.(2). This is the second appeal involving this termination proceeding. See Dep’t of Children & Family Servs. v. K.D., 88 So.3d 977 (Fla. 2d DCA 2012) (en banc). We conclude that we must reverse and remand for an evidentia-ry hearing.

In the first appeal, this court reviewed two trial court orders that had not terminated parental rights. Instead, the trial court had determined that grounds for termination had been proven but that the two children should be placed in a permanent guardianship with the maternal grandparents. This court issued an en banc opinion discussing at length the legal framework for an expedited petition to terminate parental rights concerning two children when only one child has been abused. Id.

In the en banc opinion, this court concluded that the trial court had properly determined that the Department of Children and Families (DCF) had proven a sufficient statutory ground for the termination of parental rights for each parent as to both children. But as a separate matter, we concluded that if the trial court elected not to terminate parental rights, it could not immediately place the children in a permanent guardianship. Id. at 988-89. We explained that if a court determines that termination is not the appropriate disposition for such a petition, the court’s options are limited by statute. It can either adjudicate the children dependent or simply dismiss the petition. Id. at 982; see § 39.811(1), Fla. Stat. (2009). Accordingly, we reversed and remanded for a reconsideration of the issues of least restrictive means and manifest best interests and a decision by the trial court either to terminate parental rights or to elect one of the other options available to it. K.D., 88 So.3d at 989.

On remand, the trial court and the parties disagreed as to whether additional evidence could be presented. The attorneys for DCF and each of the parents maintained that additional evidence should be received prior to a final determination of the issues of least restrictive means and manifest best interests. The attorney for the Guardian ad Litem Program maintained that additional evidence was unnecessary. Our opinion had instructed the trial court to reconsider the petition by “reapplying the manifest best interest and least restrictive means tests.” Id. at 989. The trial court decided that it should only “reapply” the tests to the existing evidence. Recognizing that we may have contributed to the confusion, we reverse and remand for another hearing at which the parties may present evidence prior to the final decision on the manifest best interests and least restrictive means prongs of the analysis.

Although additional evidence may be needed to determine the issue of least restrictive means, our primary concern is the trial court’s failure to obtain updated information before making a determination of the manifest best interests of each child under section 39.810. In the two original orders, the trial court had made findings on each of the eleven factors described in section 39.810 based on the conditions at the time of the orders in June 2010 when the twins were about twenty months old. At that time, the court determined that it was not in the manifest best interests of the children that the rights of their parents be “fully” terminated. In the order now on appeal, the trial court makes no new findings of fact but incorporates by reference its old findings even though it had earlier concluded that these findings did not support a termination of parental rights.

Because the rights of the parents to these two children were not terminated in 2010, the trial court needed to determine the least restrictive means of protecting the children from serious harm and the manifest best interests of the children under the conditions existing as of the time of the hearing when it actually terminated parental rights. It is useful to consider that a manifest best interests decision is not made to protect the legal rights of the parents; it is made to ensure the best interests of each child. When making an analysis under section 39.810, the trial court should reach its decision and state its findings based on evidence that is sufficiently current to support the decision and findings in the order of termination.

The final hearing on the order currently on appeal occurred when the twins were three years old. Under the original alternative placement plan, the twins had been placed in a permanent guardianship with the maternal grandparents. Between the hearings, this couple apparently had separated and the children were living with their maternal grandfather, who wished to adopt them but had not yet passed a home study. The children’s father apparently was no longer involved in the family. The twins have an older half-sibling who is now seven years old and has always lived with the mother. The mother is now about twenty-eight years old and presumably has given birth to a fourth child during the pendency of this appeal.

If the trial court had considered the new circumstances, it might have concluded that termination of parental rights followed by adoption was the appropriate remedy. On the other hand, we cannot say with certainty that the trial court would not have decided that the circumstances warranted an adjudication of dependency instead. Given the separation of the parents, it is possible that different approaches would be appropriate for each parent. Accordingly, we reverse and remand for the trial court to determine the issues of least restrictive means and manifest best interests, permitting the parties to present additional evidence relevant to these issues.

Reversed and remanded.

LaROSE and VILLANTI, JJ., Concur.

      . As our en banc decision described, the reference to "grounds for termination” in section 39.811(1) does not refer to a statutory ground under section 39.806 but rather to all of the elements that must be proven to entitle the State to terminate parental rights under section 39.802(4), Florida Statutes (2009).

      . We limit this statement with "apparently” because the trial court did not conduct an evidentiary hearing. The record contains representations about significant changes in circumstances, but the trial court did not consider these changes in making its decision.


author: PER CURIAM.

text:
    Margetta LANGLOIS, Appellant, v. GEOVERA SPECIALTY INSURANCE CO.; and DLJ Mortgage Capital, Inc., Appellees.
    No. 2D12-1194.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Margetta Langlois, pro se.
    No appearance for Geovera Specialty Insurance Co.
    Adam B. Leichtling of Lapin & Leich-tling LLP, Coral Gables, for Appellee DLJ Mortgage Capital Inc.
   PER CURIAM.

Margetta Langlois challenges a nonfinal order that prohibited the circuit court clerk’s office from accepting pro se filings from Langlois in this case. The nonfinal order is not appealable under Florida Rule of Appellate Procedure 9.130. We treat this as a petition for writ of certiorari, see Epps V. State, 941 So.2d 1206 (Fla. 4th DCA 2006), and we deny the petition.

NORTHCUTT, VILLANTI, and WALLACE, JJ., Concur.


author: VILLANTI, Judge.

text:
    Heidi Nicole MARINO, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1614.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Heidi Nicole Marino, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

The order denying Heidi Nicole Mari-no’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 is affirmed without prejudice to any right Marino may have to file a rule 3.850 motion seeking to vacate the sentence based on newly discovered evidence, the basis of such a claim being the affidavit of the victim averring that she suffered no injuries in the attack. See Marek v. State, 14 So.3d 985, 990 (Fla.2009) (holding that in order to vacate a sentence based on newly discovered evidence, a defendant must demonstrate that said evidence would probably yield a less severe sentence). Any such motion shall be filed within sixty days from the issuance of the mandate in this proceeding and shall not be considered successive.

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.

      . See Stallworth v. State, 21 So.3d 84, 86 (Fla. 1st DCA 2009) (holding that "[rjecantation evidence is considered to be a type of newly discovered evidence”).


author: SLEET, Judge.

text:
    J.N., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-351.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

J.N. appeals the order committing him to the Department of Juvenile Justice (DJJ) in a moderate-risk facility. Because the juvenile court deviated from the DJJ’s recommendation of probation without indicating its reasons for doing so, we reverse and remand for further proceedings.

I. Background

On December 7, 2012, J.N. pleaded no contest to petit theft (case 2012-4263) and grand theft (case 2012-4114). On December 13, 2012, the DJJ provided the court its predisposition report in which it recommended J.N. be committed to a low-risk facility. However, no low-risk facility would accept J.N. because of his designation as a sex offender. Therefore the DJJ reconvened and provided the court with an amended pre-disposition report in which it recommended placing J.N. on probation. On December 21, 2012, the juvenile court held a disposition hearing. The court considered the fact that the DJJ initially recommended committing J.N. to a low-risk facility and changed it to probation once it found out that no low-risk facility would accept J.N. for placement. The juvenile court adjudicated J.N. delinquent and committed him to a moderate-risk facility.

II. Analysis

This court reviews a juvenile court’s decision to disregard the DJJ’s recommenda-' tion to determine: “(1) whether the juvenile court has employed the proper legal standard ... in providing its on-the-record departure reasons; and, if so, (2) whether its stated reasons are supported by a preponderance of the competent, substantial evidence contained within the record.” E.A.R. v. State, 4 So.3d 614, 638-39 (Fla.2009).

Before disregarding the DJJ’s recommended restrictiveness level assessment, the court must “identify! ] significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id. at 634.

In E.A.R., the Florida Supreme Court held that if a juvenile court departs from the DJJ’s recommended placement, it must:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.
Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is . better suited for providing the juvenile offender “the most appropriate disposi-tional services in the least restrictive available setting.”

Id. at 638 (quoting § 985.03(21), Fla. Stat. (2007)). Here, the only finding the juvenile court made regarding the departure is that a low-risk facility is not available for J.N. and that “[i]f there’s any deviation at all its [sic] DJJ from its own initial determination that he needed a low risk commitment.” This does not satisfy the requirements set forth in E.A.R. Accordingly, we reverse the order committing J.N. to the DJJ and remand for the entry of an order consistent with this opinion.

Reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.


text:
    Alexander TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6180.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2014.

      Joshua W. Westcott of Joshua W. West-cott, P.A., Kissimmee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Alexander Taylor appeals his judgment and sentence following the denial of his postsentence motion to withdraw plea, which was filed pursuant to Florida Rule of Criminal Procedure 3.170(Z). He argues that the trial court erred in denying the motion because there was no mutual agreement as to the sentence negotiated in his written plea agreement. After a review of this record, we conclude that Mr. Taylor was entitled to withdraw his plea because he demonstrated that he did not knowingly plead to the sentence that was ultimately imposed. Accordingly, we reverse and remand for further proceedings. As explained at the end of this opinion, we reverse only the denial of the motion in order to give Mr. Taylor a final opportunity to confirm that he wishes to withdraw his plea.

Mr. Taylor was charged, along with Glenn D. Sanchez, Jr., and Ryan A. Noriega, with armed robbery and unauthorized use of a credit card. The three men apparently robbed a woman of her wallet and then used her credit card. All three men have been sentenced for these offenses.

Mr. Taylor entered into a negotiated plea on January 13, 2012, using a standard form. He pleaded guilty to the offenses as charged. The terms of the agreement relating to the sentence were abbreviated. In the space after “FSP” someone hand wrote “TBD by court w/ lOyr FSP CAP” On the next line of the form, in the space after “Probation,” a rough arrow was drawn to the space between “w/” and “lOyr” in the preceding line, followed by the letters “TBD.”

The plea hearing was conducted by Senior Judge Barbara Fleischer on the same day that Mr. Taylor signed the written form. Following a private discussion with his mother, Mr. Taylor reached this agreement. His attorney described the agreement to the court as follows:

To explain the recommended disposition it is going to be a cap. The State is recommending if Mr. Taylor is willing to plead as charged that the disposition would be determined by the Court essentially at a sentencing hearing. However, in no event would he be sentenced to anything greater than ten years Florida State Prison.

After this explanation, Judge Fleischer asked if Mr. Taylor understood what his lawyer had just explained. Mr. Taylor agreed that he did. It was further agreed that the State was not alleging that Mr. Taylor actually had physical possession of any firearm during this robbery. Judge Fleischer asked the usual questions that occur at a plea hearing, including whether anyone had promised Mr. Taylor anything besides that he would have a capped sentence whereby “the most the Court could sentence [him] to would be ten years.” The court explained that “[ajnything underneath that,” would be up to the court. Mr. Taylor acknowledged that he understood. Thereafter, Judge Fleischer confirmed that Mr. Taylor knew that a different judge would sentence him and that he agreed to this circumstance.

The sentencing hearing was conducted by Judge Martha Cook on February 23, 2012. Following testimony, Judge Cook explained her understanding of the plea agreement: “Up to ten years and then probation to be determined. Ten years applies to incarceration.” Neither attorney at the hearing objected to this description of the agreement. Ultimately, Judge Cook sentenced Mr. Taylor to a split sentence: ten years’ imprisonment followed by five years’ probation.

With the assistance of counsel, Mr. Taylor filed a timely motion to set aside his sentence. Mr. Taylor maintained that he understood that he had negotiated a sentence, the total of which could not exceed ten years. The sentence he received did not exceed ten years in prison, but including the probation it was fifteen years in length.

We interpret the abbreviation on the negotiated plea form to mean that Mr. Taylor was agreeing to a term in the Florida state prison system that was to be determined by the court with a maximum term of ten years. The unusual problem in this case is the meaning of the rough arrow drawn from the lower line to the upper line.

Mr. Taylor interprets the arrow to mean that both the term of imprisonment and any term of probation had to fit within the ten-year cap. That is not an unreasonable interpretation. In light of the statements made by Judge Fleischer at the plea hearing, Mr. Taylor’s understanding of the plea agreement appears completely reasonable.

Judge Cook’s interpretation of the agreement is also reasonable. With no objection from the attorneys, we cannot fault Judge Cook’s decision to sentence Mr. Taylor in accordance with her reading of the plea agreement. Nevertheless, the issue on appeal is not the reasonableness of the judge’s interpretation but whether Mr. Taylor is entitled to withdraw from the plea after sentencing because his plea was not a knowing plea.

The grounds for a motion to withdraw plea after sentencing pursuant to rule 3.170(0 are narrower than those for a motion filed prior to sentencing pursuant to rule 3.170(f). See State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003). Nevertheless, rule 3.170(l) allows a defendant to seek to withdraw from a plea for the grounds listed in Florida Rule of Appellate Procedure 9.140(b)(2). A violation of a plea agreement and an involuntary plea are both grounds for relief under rule 3.170(l).

Mr. Taylor has clearly demonstrated his misunderstanding concerning the terms of the plea. In light of the irresolvable ambiguity in the negotiated agreement, it would be a manifest injustice not to give Mr. Taylor the option to withdraw from this plea. See Partlow, 840 So.2d at 1043. Accordingly, we reverse the order on appeal.

Although we reverse the order denying the motion to withdraw plea, we do not reverse the judgment and sentence. The robbery to which Mr. Taylor and his code-fendants pleaded guilty was an offense punishable by life in prison. The ambiguity in this plea agreement entitles Mr. Taylor to withdraw his plea, but that same ambiguity means that he is not entitled to enforce the agreement against the State. If Mr. Taylor withdraws his plea, which resulted in this relatively short sentence, he has no guarantee that his circumstances will improve. Accordingly, we give Mr. Taylor the ability to consult with his counsel on remand to determine whether he continues to wish to withdraw from this plea. If he chooses to pursue his request to withdraw his plea on remand, the trial court should grant the motion and conduct further proceedings on the charges. Otherwise, he should file a notice of withdrawal of the motion. On remand, the trial court may set a reasonable time for Mr. Taylor to make his decision. It may be necessary for the court to reappoint counsel for Mr. Taylor.

Reversed and remanded.

WALLACE and BLACK, JJ., Concur.

      . Mr. Sanchez’s appeal involved a discrepancy between his oral and written sentence, an issue that is not present in Mr. Taylor’s case. See Sanchez v. State, 124 So.3d 406 (Fla. 2d DCA 2013). It does not appear that Mr. Noriega appealed his judgment and sentence.

      . This motion filed by Mr. Taylor is similar to a motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.850(a)(5), in that both allow a defendant to challenge the voluntariness of his plea after sentencing. See Dooley v. State, 789 So.2d 1082, 1084 (Fla. 1st DCA 2001); see also Robinson v. State, 792 So.2d 632 (Fla. 4th DCA 2001) (discussing possible involuntary plea due to ambiguity in plea form in a rule 3.850 context).


text:
    Mark MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1381.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2014.

      Mark Morgan, pro se.
   PER CURIAM.

Mark Morgan appeals the postconviction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. Because the postconviction court failed to attach portions of the record conclusively refuting Morgan’s claim, we reverse and remand for the court to attach the relevant portions or hold an evidentia-ry hearing.

On June 1, 2010, Morgan pleaded no contest to two counts of burglary of an unoccupied structure, two counts of grand theft, one count of criminal mischief, one count of possession of burglary tools, and two counts of trafficking in illegal drugs. The trial court sentenced him to fifteen years’ imprisonment followed by ten years’ probation for the trafficking charges and five years’ imprisonment on the other charges, all terms to be served concurrently-

In his motion, Morgan alleged that counsel told him the State had offered an eight-year prison sentence but that counsel had rejected the offer because he was sure the prosecutor would make a better offer. Morgan asserted that he would have accepted the plea offer but counsel’s actions caused the offer to lapse and Morgan was forced to take a plea offer with a harsher sentence.

The postconviction court found that Morgan’s claim was conclusively refuted by the record of Morgan’s plea colloquy, which it attached to its order. During the colloquy, Morgan was informed of the fifteen-year sentence he would receive under the plea, he was advised of the rights he was giving up, and he stated he was satisfied with the work done for him by counsel.

We conclude that the plea colloquy is insufficient to refute Morgan’s claim because it does not indicate that the trial court addressed this specific issue with Morgan. See, e.g., Reyna v. State, 18 So.3d 1131, 1133 (Fla. 2d DCA 2009) (“[Njothing within the limited record before this court demonstrates that counsel, before the rejection of the State’s plea offer, informed Mr. Reyna that jail credit would offset the length of incarceration offered by the State.”); Ely v. State, 13 So.3d 167, 169 (Fla. 2d DCA 2009) (reversing and remanding where plea colloquy merely indicated defendant was advised of the maximum possible sentence but did not address defendant’s specific claim that counsel told him he would only receive probation); Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008) (reversing post-conviction court’s denial of claim that counsel was ineffective for failing to file a motion to suppress where transcript of plea colloquy did not specifically address the voluntary nature of defendant’s statements to police or the circumstances of his arrest); Jones v. State, 846 So.2d 1224, 1226 (Fla. 2d DCA 2003) (noting that a generalized plea colloquy confirming satisfaction with counsel was insufficient to refute a claim based on counsel’s failure to advise of a specific defense).

Accordingly, we reverse and remand for the postconviction court to attach portions of the record that conclusively refute Morgan’s claim or hold an evidentiary hearing on the matter.

Reversed and remanded.

LaROSE, CRENSHAW, and SLEET, JJ., Concur.


text:
    Ednol Antonio HANNA III, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6222.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2014.
    Robin H. Stevenson, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Ednol Antonio Hanna III appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of his motion without comment. However, as it appears that Hanna, who was a juvenile at the time of his offense, may be entitled to relief from his life sentence for robbery with a firearm under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), our affirmance is without prejudice for Hanna to raise this claim in a motion to correct illegal sentence. See Fla. R.Crim. P. 3.800(a).

Affirmed.

DAVIS, C.J., and ALTENBERND, J., Concur.


text:
    Bruce M. GLAUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2675.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2014.
   PER CURIAM.

We affirm the denial of Bruce M. Glaum’s motion filed under Florida Rule of Criminal Procedure 3.800(a), in which he raised two issues. We note that the post-conviction court did not address Glaum’s claim that he is entitled to credit for weekends spent in county jail. However, because this claim was facially insufficient, we affirm. See Johnson v. State, 60 So.3d 1045, 1051 n. 2 (Fla.2011). Our affirmance is without prejudice for Glaum to file a facially sufficient motion under Florida Rule of Criminal Procedure 3.801.

Affirmed without prejudice.

SILBERMAN, MORRIS, and BLACK, JJ., Concur.


author: VAN NORTWICK, J.

text:
    Anthony D. MOORE, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Opryland Hospitality, LLC, Appellees.
    No. 1D12-4820.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Anthony D. Moore, pro se, Appellant.
    Amanda L. Neff, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   VAN NORTWICK, J.

Anthony D. Moore appeals a final order of the Reemployment Assistance Appeals Commission affirming the decision of the appeals referee which found that Moore was overpaid $4,740.00 in unemployment compensation benefits. Because the Commission’s order is not supported by competent substantial evidence, we reverse.

Moore was employed as a bartender at a resort from December 2007 through April 2011. As a bartender, part of Moore’s salary was received in the form of tips. The resort pooled the tips of the wait staff, and the process by which those pooled tips were distributed varied among the venues in the resort. "While originally hired as a full-time employee, Moore later worked on-call. Following the loss of his full-time position, Moore sought unemployment compensation benefits and was awarded such. However, the Department of Economic Opportunity, which administers the unemployment compensation program, later determined upon review of material submitted by the employer resort that Moore had not accurately reported his earnings and thus received excessive unemployment compensation benefits from the week ending July 31, 2010 through the week ending April 23, 2011. According to the Department’s determination of Aug. 5, 2011, Moore received $4,740 in excess benefits. Moore appealed that determination. Although the appeals referee noted that Moore had asserted his prior employer had failed to respond to his request to produce weekly pay records, the appeals referee nevertheless affirmed the determination that Moore was overpaid.

Moore thereafter appealed to the Commission, which reversed. The Commission found the information supplied by the employer to be “obviously inaccurate,” and therefore, the appeals referee should not have rejected Moore’s “unrefuted testimony.” The Commission ordered that the matter be reheard by the appeals referee so that the record could be developed as to Moore’s actual weekly earnings. The Commission added that it would be “appropriate for the Department to subpoena the claimant’s actual weekly earnings information from the employer.” If the employer failed or refused to provide the weekly earnings, the Commission instructed it would be “appropriate” for Moore to estimate his weekly earnings based on the biweekly payroll.

There is no indication in the record that the Department sought from Moore’s prior employer the records supporting Moore’s actual weekly earnings. In his second decision, the appeals referee explained that the issue before him was whether the claimant made any fraudulent representation for the purpose of obtaining benefits. The appeals referee noted that the employer had failed to provide Moore with documentation of the earnings received. But, because Moore could not provide a record of earnings, actual or estimated, for the weeks in question, the appeals referee found Moore had not met his burden of proof. As the appeals referee also noted, however, Moore had previously claimed that he received no earnings during the weeks in question. The appeals referee did not explain why these prior estimates of earnings, or lack thereof, were being rejected. Although there was insufficient evidence regarding 21 weeks, according to the appeals referee, it was determined in the second decision of the appeals referee that Moore was only overpaid $1,575. Thus, the prior decision was modified such that the finding of fraud was reversed, and the amount of overpayment was reduced to $1,575 (less $92 determined to be owed Moore).

Moore again appealed to the Commission. In his second appeal, Moore did not argue to the Commission that he was not given proper notice that the issue of total or partial unemployment would be addressed. Instead, he argued that the information previously supplied by the employer was obviously inaccurate, as the Commission had previously found, and that his prior representations as to earnings should not have been rejected. Moore stated that he was not able to produce further evidence, because he had none to offer since the employer refused to provide any information to him. Moore further argued to the Commission that the appeals referee had prejudged the case.

Despite the issues on appeal as framed by Moore, the Commission reversed for other reasons. In its order, the Commission noted that the appeals referee had prepared a corrected decision to reflect that the amount overpaid to Moore was $5,775; however, the Commission added, no corrected decision was actually entered and, thus, “the decision’s $1,575 overpayment amount remains uncorrected.” Nevertheless, the Commission reversed the decision of the appeals referee because “procedural error” required yet another hearing before the appeals referee. After observing that Moore could not give further details about his earnings at the previous hearing, the Commission explained that the cause must be remanded again because Moore “was not provided notice that the issue of his total or partial unemployment would be addressed at the supplemental hearing and because the overpayment amount of $1,575 is inconsistent with the referee’s findings of fact and conclusions of law and is obviously incorrect.”

A third evidentiary hearing was held before the appeals referee and, again, Moore could not offer more evidence of his earnings than what was previously offered. The same information from the employer, which the Commission had previously deemed “obviously inaccurate,” was again considered. At the hearing, the appeals referee again acknowledged that Moore had challenged the accuracy of information supplied by the employer. The appeals referee further acknowledged that Moore was not comfortable with that information being used to establish Moore’s pay. Also, in his decision, the appeals referee noted that the information from the employer was hearsay, but that it was being used as it appeared to be “the most complete and consistent record of the claimant’s earnings during the period in question.” The appeals referee therefore determined that Moore was overpaid $4,740. The Commission summarily affirmed.

We review the Commission’s order “to determine whether it is clearly erroneous and whether it is supported by competent, substantial evidence.” Alliance Business Solutions, Inc. v. Fla. Reemployment Assistance Appeals Comm’n, 98 So.3d 692 (Fla. 1st DCA 2012) (quoting Tallahassee Primary Care Assoc. v. Fla. Unemployment Appeals Comm’n, 930 So.2d 824, 825-26 (Fla. 1st DCA 2006)). In affirming the appeals referee based upon the record before us, the Commission erred. The finding that Moore was overpaid $4,740 is not supported by competent and substantial evidence. As initially found by the Commission, the information regarding Moore’s wages supplied by the employer to the Department was not accurate. As the Commission explained in its first order:

While the claimant acknowledged the benefit payment report submitted into evidence accurately reflects the benefit payments he received during the weeks in question, he asserted the weekly earnings information provided by the employer cannot be correct. According to the claimant’s reasoning, if the employer was unable to provide the claimant his weekly earnings information, it could not have had the earnings information available to provide the Department. The claimant testified the number of shifts he worked varied from week to week and his earnings varied from shift to shift, depending on his tips. It is, therefore, virtually impossible that the claimant would have earned the exact same amount in two consecutive weeks. However, as the claimant correctly points out in his request for review, the earnings information reported by the employer reflect [sic] identical amounts every two weeks. Therefore, it is evident that instead of reporting the claimant’s actual weekly earnings, the employer simply reported half the claimant’s bi-weekly earnings in each of the two weeks of a pay period. Based on the claimant’s unrefuted testimony, the earnings information provided by the employer is obviously inaccurate. It is, therefore, inappropriate to reject the claimant’s unrefuted testimony as less credible than the documentary evidence provided by the Department which contains the inaccurate earnings information reported by the employer.

The Commission offered no explanation why it departed from its prior holding that Moore’s unrefuted testimony should not have been rejected. The hearsay evidence supplied at the first evidentiary hearing was appropriately deemed inaccurate by the Commission and, as such, could not later constitute competent and substantial evidence of overpayment.

As there is no record basis for the finding that Moore was overpaid, the Commission’s order affirming a finding of overpayment is REVERSED, and the cause is REMANDED for entry of an order vacating the determination that Moore was overpaid.

ROWE and MARSTILLER, JJ., concur.

      . The weeks in question are the weeks ending on: July 31, 2010, Aug. 7, 2010, Aug. 14, 2010, Sept. 4, 2010, Sept. 11, 2010, Sept. 18, 2010, Sept. 25, 2010, Oct. 2, 2010, Oct. 9, 2010, Oct. 16, 2010, Oct. 23, 2010, Oct. 30, 2010, Nov. 6, 2010, Nov. 13, 2010, Dec. 4, 2010, Dec. 11, 2010, Dec. 18, 2010, Dec. 25, 2010, Jan. 1, 2011, Jan. 29, 2011, and April 23, 2011.

      . Moore's benefit rate was $275 per week. It is not apparent how the appeals referee reached the figure of $1,575. Nor did the appeals referee explain why the initial figure of $4,740 was no longer valid.


author: THOMAS, J.

text:
    Robert Lamar GERALD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1362.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his convictions for aggravated assault and battery. We conclude that the trial court properly denied Appellant’s motion for judgment of acquittal, and affirm without comment. We, however, agree with Appellant that his conviction for aggravated assault must be reduced to simple assault, because the jury’s verdict of guilt as to aggravated assault is truly inconsistent with its specific finding on the verdict form that Appellant did not possess a firearm during the aggravated assault.

Facts

On June 6, 2012, the victim drove with her two small children to a convenience store. Upon pulling into the parking lot and looking in her rearview mirror, she saw someone rushing her car. She left her car and proceeded to the back of her vehicle. Appellant approached, and began screaming at her; she yelled back, saying he needed to get away from her car because her children were inside. Appellant then poked the victim in the chest with a gun, saying that he’s “got that for your old man.” Appellant quickly put the gun back into his pocket and shoved the victim to the ground. She responded by calling the police. The victim testified at trial that she did not know who Appellant was when he approached her vehicle, but believed that his statement concerning her “old man” was directed at her former fiancé, who had been involved in a prior altercation with Appellant.

The jury was instructed on the crime of aggravated assault. The jury was also instructed that if they found Appellant guilty of aggravated assault and found beyond a reasonable doubt that he actually possessed a firearm, they should find Appellant guilty of aggravated assault with actual possession of a firearm. Both the State and Appellant agreed to omit the lesser-included offense of assault from the jury instructions and verdict form. The jury found Appellant guilty of aggravated assault and battery, but in answering the particular interrogatory on the verdict form, specifically found that Appellant did not actually possess a firearm during the aggravated assault.

Appellant filed a motion for new trial, asserting that the jury’s specific finding on the interrogatory was truly inconsistent with finding Appellant guilty of aggravated assault. Appellant argued that the jury’s specific finding that he did not possess a firearm during the aggravated assault contradicted an essential element of aggravated assault — that the assault was made with a deadly weapon — and noted that it was undisputed that there was no evidence presented at trial of any weapon other than the alleged firearm. Appellant requested a new trial or, alternatively, that the trial court adjudge Appellant guilty of simple assault. The State asserted that the verdict was not truly inconsistent and the jury was exercising its pardon power. The trial court denied Appellant’s motion, concluding that the case was analogous to State v. Carswell, 914 So.2d 9 (Fla. 4th DCA 2005).

Analysis

“An inconsistent verdicts claim presents a pure question of law and is reviewed de novo.” Brown v. State, 959 So.2d 218, 220 (Fla.2007) (citing Dial v. State, 922 So.2d 1018, 1020 (Fla. 4th DCA 2006)).

In Brown, the Florida Supreme Court described the general principles of inconsistent jury verdicts as follows:

As a general rule, inconsistent jury verdicts are permitted in Florida. Eaton v. State, 438 So.2d 822 (Fla.1983); Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA), review dismissed, 444 So.2d 417 (Fla.1983). Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. See Eaton, 438 So.2d at 823....
This Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception, referred to as the “true” inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent. As ... explained ... in Gonzalez, true inconsistent verdicts are “those in which an acquittal on one count negates a necessary element for conviction on another count.” 440 So.2d at 515.

959 So.2d at 220.

Here, the trial court concluded that Carswell was controlling and that there was not a truly inconsistent verdict. We must disagree and find Carswell distinguishable. In Carswell, the defendant sold impure cocaine to the victim, and the two individuals later got into an altercation over the drugs. 914 So.2d at 10. Although the defendant flashed a gun before the altercation, the victim testified that he did not think the defendant would use it. Id. During the altercation, the defendant again pulled out the gun and shot the victim. Id. The jury verdict form included the offenses of attempted second-degree murder with a firearm, attempted second-degree murder, and aggravated battery. Id. at 11. The jury was instructed that if they found the defendant guilty of any of the three offenses, they had to determine whether the defendant possessed a firearm, discharged the firearm, and/or inflicted great bodily harm as a result of the discharge of the firearm. Id. The jury returned a verdict of guilty to aggravated battery, but “inexplicably determined that [the defendant] did not possess a firearm.” Id. The trial court granted the defendant’s motion for judgment of acquittal and/or arrest of judgment due to the fact that the jury found that the defendant did not possess a gun. Id.

The Fourth District reversed, holding that the jury was lawfully exercising its pardon power. Id. The court found that the verdict was certainly factually inconsistent with the evidence that the defendant not only possessed a firearm, but the victim’s only injury was a gunshot wound. Id. The court also determined that convicting the defendant of aggravated battery after finding that he did not possess or discharge a firearm was impossible to reconcile, but still found that the verdict was not “truly inconsistent,” because aggravated battery could be committed by intentionally or knowingly causing great bodily harm, permanent disability or permanent disfigurement, or using a deadly weapon, or by committing a battery on a victim who is known to be pregnant. Id. at 11-12. The Fourth District held that a finding that the defendant did not possess a firearm did not negate the elements of aggravated battery under the first definition of great bodily harm, and concluded that if it were to affirm the reduction of the defendant’s conviction of aggravated battery to simple battery, that would only exacerbate the apparent partial jury pardon and display of lenience. Id. at 12.

Here, in contrast to the defendant in Carswell, Appellant was convicted of aggravated assault pursuant to section 784.021, Florida Statutes (2012). Section 784.021, in pertinent part, provides:

(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.

Unlike the aggravated battery in Cars-well, which could be established by great bodily injury, aggravated assault can only be established if an assault was committed with a deadly weapon or with an intent to commit a felony. It is undisputed that, in this case, the only evidence of a deadly weapon presented at trial was the firearm. As such, the firearm is the only basis on which the deadly weapon element could be established. Thus, it is impossible to reconcile how the jury could find that Appellant committed aggravated assault with a deadly weapon, but also specifically find beyond a reasonable doubt that Appellant did not possess the firearm during the commission of the assault.

Moreover, the jury could not have independently concluded that Appellant committed the aggravated assault with an intent to commit a felony. The trial court did not instruct the jury on aggravated assault with an intent to commit a felony, pursuant to section 784.021(l)(b), nor could the evidence here have supported such an instruction. Instead, the jury was only instructed on aggravated assault with a deadly weapon. As such, we are left with the jury’s finding, beyond a reasonable doubt, that Appellant did not actually possess the firearm during the aggravated assault, which negates the critical element that elevates simple assault to aggravated assault. This is a true inconsistent verdict and is akin to the Fifth District’s opinion in Waits v. State, 795 So.2d 237 (Fla. 5th DCA 2001), reversed on other grounds, 848 So.2d 1030 (Fla.2003).

In Waits, the Fifth District reduced a conviction for aggravated battery, which was based only upon the use of a deadly weapon with no evidence of great bodily harm, to simple battery, because the jury specifically found that the defendant did not carry, display, use, etc., a deadly weapon. Id. at 238. The Fifth District concluded that upon the jury’s finding that a deadly weapon was not used, the trial court should have granted the defendant’s motion to reduce his conviction to simple battery, citing prior precedent on inconsistent verdicts. Id. In Waits, because there was no evidence of great bodily harm to support the conviction of aggravated battery, the Fifth District was forced to address the issue that the Fourth District was able to avoid in Carswell. Like the Waits court, we find that the trial court here should have reduced Appellant’s conviction for aggravated assault to simple assault, because the jury finding that he did not possess a gun cannot be reconciled with the jury finding of aggravated assault with a deadly weapon, under these facts.

The facts of this case are also akin to the Florida Supreme Court’s decision in Redondo v. State, 403 So.2d 954 (Fla.1981). In Redondo, the defendant was charged with aggravated battery and unlawful possession of a firearm while engaged in the commission of a felony. Id. at 955. The jury returned a verdict for the lesser-included offense of simple battery, but still found the defendant guilty of possession of a firearm during the commission of a felony. Id. The trial court granted a motion for arrest of judgment on the firearm charge, finding it inconsistent with the jury’s acquittal of the defendant of the underlying felony. Id. On appeal, the district court reversed the trial court’s order, “reasoning that although technically inconsistent with the jury’s verdict on the underlying felony charge, the guilty verdict for possession of a firearm during the commission of a felony was within the power of the jury to return.” Id. The Florida Supreme Court reversed and reinstated the trial court’s order arresting the judgment on the firearm charge. Id. at 956. The supreme court concluded that the verdicts were inconsistent, because the jury found the defendant guilty of simple battery, a misdemeanor. The jury, in effect, acquitted the defendant of the felonies of aggravated battery and attempted aggravated battery, and the existence of a felony or an attempted felony was an essential element of the crime of unlawful possession of a firearm during the commission of a felony. Id.; see also Mahaun v. State, 377 So.2d 1158 (Fla.1979) (holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony, as essential element of the felony murder offense). Here, the jury, in response to an interrogatory, negated an essential element of aggravated assault by finding that Appellant did not possess a firearm.

The State postulates that the jury was aware of the 10-20-Life statute and that the use of a firearm carried mandatory penalties, therefore, the jury was exercising its leniency power in finding that Appellant did not possess a firearm during the aggravated assault. This argument, however, does not address the fact that the jury’s finding that Appellant did not possess a firearm during the aggravated assault negates the essential element that elevates simple assault to aggravated assault. In essence, the jury spared Appellant from exposure to any mandatory sentence and a conviction of aggravated assault.

This case is also distinguishable from our prior opinion in Naumowicz v. State, 562 So.2d 710 (Fla. 1st DCA 1990), cited by the State for support. In Naumowicz, the defendant was charged with two counts of DUI manslaughter, resulting from the death of the passenger in the car which the defendant was driving and the death of the driver of the other vehicle involved in the fatal collision. Id. at 711. The jury found the defendant guilty of manslaughter in relation to the death of the passenger, but not guilty in the death of the other driver. Id. This court noted that the general rule was that inconsistent verdicts were permitted, noting that “[t]he only exception to the proposition that separate counts must be viewed independently is limited to instances where what the jury fails to find in one count vitiates a guilty verdict on a separate count to the benefit of the defendant.” Id. at 713 (emphasis in original) (citing Streeter v. State, 416 So.2d 1203, 1206 n. 3 (Fla. 3d DCA 1982)). This court acknowledged that jury’s power of lenity and quoted Damon v. State, 397 So.2d 1224, 1228 n. 10 (Fla. 3d DCA 1981), which held, “If the jury decides upon a partial ‘pardon’ and returns a verdict of guilty on one count and not guilty on another, it is certainly unwise to have a procedure which requires the judge to enter verdicts of acquittal on both counts if the verdict is found to be inconsistent.” Id. This court concluded that the jury’s acquittal as to the death of the other driver may not have been a finding that his conduct was the sole cause of the accident, as there was evidence that both the defendant and the other driver operated their vehicles in a manner which contributed to the fatal accident, but could have been an exercise of the jury’s power to pardon the defendant regarding that death. Id.

Here, unlike Naumowicz, we are not presented with a situation where the jury, addressing two separate offenses, reached verdicts that are factually inconsistent. Instead, we are presented with a situation where finding Appellant guilty of aggravated assault with a deadly weapon cannot be reconciled with a specific finding that he did not possess a firearm, the only weapon alleged to be involved in the assault. See also Cunningham v. State, 647 So.2d 164 (Fla. 1st DCA 1994) (holding that jury’s failure to find the defendant guilty of possession of marijuana could not be reconciled with a verdict of guilty of possession of marijuana with intent to purchase).

Accordingly, we reverse the trial court’s denial of Appellant’s motion for new trial, which, in the alternative to a new a trial, sought the reduction of his conviction for aggravated assault to simple assault. We remand to the trial court to reduce Appellant’s conviction from aggravated assault to simple assault and for resentencing. See § 924.34, Fla. Stat. (2012); State v. Sigler, 967 So.2d 835 (Fla.2007).

AFFIRMED in part, REVERSED in part, and REMANDED.

MARSTILLER and MAEAR, JJ., concur.


author: CLARK, J.

text:
    Frank JAMES, Appellant, v. Michael D. CREWS, Secretary Florida Department of Corrections, Appellee.
    No. 1D13-2785.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.

      Frank James, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Frank James, a state prisoner, appeals the circuit court’s dismissal of his complaint for writ of mandamus. The circuit court found that Appellant had failed to state a cause of action for the writ of mandamus because: 1) the complaint failed to allege or show that Appellant had exhausted his administrative and other remedies; and 2) the allegations of fact were insufficient and the relief requested inappropriate to state a claim for mandamus relief. The order of the circuit court is affirmed.

While the order dismissing the complaint did not state that the dismissal was with prejudice, “[a] dismissal need not be with prejudice to be a final order for appeal purposes.” Gries Inv. Co. v. Chelton, 388 So.2d 1281, 1283 (Fla. 3d DCA 1980) (where dismissal deemed an adjudication on the merits by rule 1.420(b), Fla. R. Civ. P., it was final appealable order); see also Palm AFC Holdings, Inc. v. Minto Cmtys., Inc., 766 So.2d 436 (Fla. 4th DCA 2000) (dismissing complaint for failure to state cause of action was adjudication on merits pursuant to rule 1.420(b) and thus final for purposes of appeal). Amendment of the pro se complaint for the extraordinary writ is not contemplated. Appellate courts have generally allowed direct review of an order dismissing a complaint seeking a writ of mandamus. Walker v. Ellis, 989 So.2d 1250 (Fla. 1st DCA 2008). Because the issue of whether a complaint is sufficient to state a cause of action is a question of law, the appellate court reviews such orders under the de novo standard of review. Barnett v. Antonacci, 122 So.3d 400 (Fla. 4th DCA 2013); Chandler v. City of Sanford, 121 So.3d 657, 658 (Fla. 5th DCA 2013).

Examining the complaint for writ of mandamus de novo, the allegations are insufficient to state a cause of action for the extraordinary writ of mandamus and dismissal was proper. The paragraphs of unnumbered sentences in narrative form do not specify dates, particular incidents, or specific actions to be compelled. Mr. James alleged generally that numerous prison employees violated section 944.14, Florida Statutes, and rules 33-103.017 and 33-602.220(3)(d), Florida Administrative Code. He complained of unpleasant and offensive treatment he suffered at the hands of prison staff and voiced his suspicion that his inmate grievance requests were not being properly processed. He sought the writ of mandamus to compel Department employees and officials to “stop obstructing his access to the grievance process” and “for this court to supervise the Defendant(s) compliance with the agency rules by court order until the set time by this court has expired.” He did not further specify any particular ministerial action or service from corrections officials to which he deemed himself entitled.

The complaint does not contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief,” as required by rule 1.110(b)(2), Florida Rules of Civil Procedure. The absence of discreet averments of fact (dates, incidents), numbered or otherwise, precludes the individual responses (admit, deny, or statement that Department is “without knowledge”) required for an answer under rule 1.110(c), Florida Rules of Civil Procedure.

In addition, the complaint failed to contain an appropriate “demand for judgment for the relief to which the pleader deems himself or herself entitled.” Fla. R. Civ. P. 1.110(b)(3). The writ of mandamus is intended to accomplish certain limited functions and not to redress every grievance or disagreement. Eichelberger v. Brueckheimer, 613 So.2d 1372 (Fla. 2d DCA 1993). Relief via the extraordinary writ of mandamus is available only where the pleader asserts “a clear legal right to the performance of a clear legal duty by a public officer and that he has no other legal remedies available to him.” Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So.3d 851, 855 (Fla. 1st DCA 2013). Appellant conceded that he did not seek any specific enforcement of a particular rule or statute, but generally sought to compel the Department of Corrections to comply with “the law” regarding his treatment by corrections officers and the handling of his inmate grievances. Appellant did not request that the circuit court compel the Department to take a specific action regarding any particular grievance he submitted or to change a particular aspect of his prison conditions. He also failed to allege that he had no other remedy available and in fact complained that his civil rights action in federal court did not yield satisfactory results.

In RHS Corp. v. City of Boynton Beach, 736 So.2d 1211 (Fla. 4th DCA 1999), the plaintiff sought a writ of mandamus to “require the City of Boynton Beach to hear and consider Plaintiffs appeals.”

The general request was not sufficient to allege a claim for mandamus relief. The court explained:

In order for a court to issue a writ of mandamus, a plaintiff must establish “that he has a clear legal right to the performance of a clear legal duty by a public officer and that he has no other legal remedies available to him.” Hatten v. State, 561 So.2d 562, 563 (Fla.1990). Further, “[m]andamus is defined as a remedy to command performance of a ministerial act that the person deprived has a right to demand, or a remedy where public officials or agencies may be coerced to perform ministerial duties that they have a clear legal duty to perform.” Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996). “A duty or act is defined as ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law.” Id.
Florida Rule of Civil Procedure 1.110(b)(2) requires that a pleading contain, “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Id. To state a cause of action for mandamus relief, the complaint must allege that: the City has a clear legal duty to perform a ministerial act; RHS has a clear legal right to have the duty performed; and RHS does not have another legal remedy available. RHS has not alleged that the City has a legal duty to hear its appeals nor that the duty is ministerial. Further, RHS has failed to allege any entitlement to the City’s performance of such a duty. The appellant having failed to properly allege the cause of action, dismissal was appropriate.

RHS Corp., 736 So.2d at 1213. Similarly, the complaint in this case sought an order to compel the Department of Corrections generally to comply with the law and handle Appellant’s inmate grievances appropriately. Appellant failed to allege that the Department had failed to perform a clear legal duty it owed to Appellant and that Appellant had no other legal remedy.

Considering Appellant’s request for ongoing court supervision of the Department’s future compliance with “the law,” a writ of mandamus is not appropriate to command performance of a continuing series of acts requiring continuous court supervision. State ex rel. Fraternal Order of Police v. City of Orlando, 269 So.2d 402 (Fla. 4th DCA 1972).

Generally, pro se pleadings are to be construed liberally and not held to the same technical standards as pleadings by a licensed attorney. Prince v. State, 40 So.3d 11, 12 (Fla. 4th DCA 2010). However, the right of self-representation is not “a license not to comply with relevant rules of procedural and substantive law.” Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Further, leniency in construing pleadings does not allow a court to re-draft the substance of a claim because a court “cannot assist the pro se litigant to the detriment of the opposing party or to the point that the impartiality of the tribunal can be called into question.” Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999). As stated in Kohn v. City of Miami Beach, 611 So.2d 538, 540 (Fla. 3d DCA 1992):

Compassion for a pro se litigant and justice under law are entirely different concepts that should not be confused. Further, we should avoid the temptation to require governmental entities to defend because they seemingly have an inexhaustible supply of legal talent available. To do so would penalize the public who ultimately pays the bill.

Because even a lenient reading of the complaint in this case does not reveal the assertion of ultimate facts showing that Appellant is entitled to a writ of mandamus to compel the performance of a particular ministerial duty owed to him by the Department, the circuit court’s dismissal of the complaint was proper. The order on appeal is AFFIRMED.

WOLF and VAN NORTWICK, JJ., concur.

      . The initial pleading seeking a writ of mandamus "shall be a complaint.” Fla. R. Civ. P. 1.630(b).

      . In contrast to the standard for a dismissal of the complaint, orders granting or denying the writ are subject to review only for abuse of discretion. Rosado v. State, 1 So.3d 1147 (Fla. 4th DCA 2009).


text:
    Paras DESAI, Appellant, v. ONEWEST BANK, FSB Successor in Interest to Indymac Federal Bank, F.S.B. Successor in Interest to Indymay Bank FSB, Appellee.
    No. 1D13-0804.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Paras Desai, pro se, Appellant.
    Christopher L. Hixson of the Law Offices of Daniel C. Consuegra, P.L., Tampa, for Appellee.
   PER CURIAM.

This appeal is hereby dismissed for appellant’s failure to obey the rules and orders of this court.

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and State of Florida, Division of Risk Management, Appellants, v. Albert ANDERSON, Appellee.
    No. 1D13-3429.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.

      William J. Spradley, III, of William J. Spradley, P.A., Jacksonville, for Appellants.
    Jonathan B. Israel of Harris, Guidi, Ros-ner, Dunlap & Rudolph, P.A., Jacksonville, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals that portion of a final merits hearing order wherein the Judge of Compensation Claims (JCC) rejected its partial affirmative defense under section 440.09(5), Florida Statutes (2009). The E/C also argues that the JCC erred by reserving jurisdiction on “claims” for workers’ compensation benefits that were not listed on any petition for benefits (PFB) filed by the injured employee (Claimant). We affirm the rejection of the partial affirmative defense without comment, but modify the order on appeal by striking the reservation of jurisdiction over any claims that were not the subject of a pending PFB at the time of the final hearing.

This court has previously held that a JCC may properly reserve jurisdiction over PFBs that have been filed, but not mediated, because mediation is mandatory under section 440.25(2), Florida Statutes; such unmediated claims are not procedurally ripe for adjudication. Parodi v. Fl. Contracting Co., Inc., 16 So.3d 958, 961 (Fla. 1st DCA 2009) (holding JCC properly reserved jurisdiction on unmediated PFBs); see also Ake v. U.S. Sugar Corp., 112 So.3d 171, 173 (Fla. 1st DCA 2013) (holding that order containing both final disposition of claims ripe for adjudication as well as reservation of jurisdiction on unmediated PFBs results in final, appeal-able order). In contrast, the JCC here granted Claimant’s request for reservation of jurisdiction over certain benefit issues that were not only never mediated, but also never the subject of any filed PFB. In fact, the parties agree that the reserved issues concern benefits that have never been denied by the E/C. Because the jurisdiction of the office of the judges of compensation claims over these benefit issues was never invoked through the filing of a PFB, we find the reservation of jurisdiction over what are admittedly “future claims” improper and contrary to the self-executing system of workers’ compensation benefits. Accordingly, the order is AFFIRMED as modified.

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


text:
    Christopher J. IGNAS, Casey Ignas, and Irena Ignas, Appellants, v. CITIMORTGAGE, INC., Appellee.
    No. 1D13-2707.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    George M. Gingo and James E. Orth, Jr., Titusville, for Appellants.

      Nancy M. Wallace and Michael J. Larson of Akerman Senterfitt, Tallahassee; William P. Heller of Akerman Senterfitt, Fort Lauderdale, for Appellee.
   PER CURIAM.

Finding that appellee’s notice of confession of error is well-taken, the final order on appeal is vacated and the cause is remanded to the trial court to reverse the summary judgment in favor of appellee, vacate the foreclosure sale and the certificate of title, and conduct further proceedings.

CLARK, WETHERELL, and RAY, JJ., concur.


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    Frederick DEMERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3252.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Frederick Demery, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence. We reverse and remand for the trial court to either grant relief or attach documents refuting appellant’s claim that he was illegally sentenced as a habitual felony offender for a count of possession of a controlled substance. § 775.084(1)(a)3., Florida Statutes (1998) (a defendant with two prior felony convictions qualifies as an HFO if “[t]he felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance.”); Dougherty v. State, 33 So.3d 732, 733-34 (Fla. 5th DCA 2010) (“The [HFO] statute reflects the legislative intent to exempt purchase or possession of a controlled substances from habitual felony offender enhanced sentencing.”). We affirm the denial of appellant’s remaining claim.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

BENTON, PADOVANO, and ROBERTS, JJ., concur.


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    Maurice STRUGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3508.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.

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

The amended petition seeking a belated appeal of the judgment and sentence rendered on or about December 27, 2012, in Escambia County Circuit Court case numbers 2007-CF-004184, 2007-CF-004815, and 2007-CF-004826, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


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    Douglas SINCLAIR, Petitioner, v. STATE of Florida and Michael D. Crews, Secretary, Florida Department of Corrections, Respondents.
    No. 1D13-4799.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Douglas Sinclair, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of prohibition is treated as a petition for writ of habeas corpus, and is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004). As we have recognized previously, the petitioner has brought the claim raised herein before this court repeatedly, and it has been considered and rejected by this court at least four times over the past year alone. Accordingly, we direct the clerk of the court to forward a copy of this opinion to the appropriate institution with the Department of Corrections for consideration of disciplinary measures against the petitioner pursuant to section 944.279(1), Florida Statutes.

The petitioner is warned that any future frivolous filings in this court may result in the imposition of additional sanctions, including but not limited to a prohibition on any further pro se filings relating to the sentence imposed in Duval County Circuit Court case number 16-2000-CF-9964-AXXX.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.

      . In case numbers 1D13-0762, 1D13-1416, and 1D13-5285, this court affirmed the trial court's denials of the petitioner’s postconviction motions which raised the issue he asserts herein. In case number ID 13-4813, this court dismissed a habeas corpus petition raising the same issue and referred the petition to the Department of Corrections for potential sanctions against the petitioner pursuant to section 944.279(1), Florida Statutes.


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    John ROBBINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5283.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    John Robbins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the order rendered on or about August 22, 2018, on petitioner’s motion to correct illegal sentence in Escambia County Circuit Court case number 1977 CF 001945, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, MARSTILLER, and MA-KAR, JJ., concur.


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    JACKSONVILLE TRANSPORTATION AUTHORITY, a body politic and corporate, and an agency of the state, under the laws of the State of Florida, Petitioner, v. CONTINENTAL EQUITIES, INC., f/k/a Industrial Park Development Corporation, a Florida Corporation; Gate Biofuels, LLC, A Florida Limited Liability Company; Mike Hogan, Tax Collector, Duval County, Florida; if alive or dead, any unknown spouses, heirs, devisees, grantees, creditors and all parties claiming interest by, through, under or against a defendant named in this action, and all persons having or claiming to have any right, title or interest in the property herein described; and Austin Law Firm, Respondent.
    No. 1D13-5358.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Joshua R. La Bouef and John Daniel Webb of Brennan, Manna & Diamond, P.L., Jacksonville, for Petitioner.
    Ronald R. Austin of the Austin Law Firm, Jacksonville, for Respondent Austin Law Firm.
   PER CURIAM.

Dismissed as moot.

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


author: CASANUEVA, Judge.

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    Gregory T. FLYNN, Petitioner, v. Myrna Dejesus FLYNN, Respondent.
    No. 2D13-3329.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.

      Stuart Jay Levine and Thomas C. Valentine of Walters Levine Klingensmith & Thomison, P.A., Tampa, for Petitioner.
    Laura H. Howard and Michael C. Addison of Addison & Howard, P.A., Tampa, for Respondent.
   CASANUEVA, Judge.

Gregory T. Flynn, the Former Husband, petitions this court for certiorari review of an order that denied his motion to consolidate, transfer, and/or stay a civil action filed by Myrna Dejesus Flynn, the Former Wife, pending resolution of substantially the same issue in the family division of the circuit court. We conclude that the circuit court departed from the essential requirements of law in failing to stay the Former Wife’s cause of action and grant the petition.

The final judgment dissolving the parties’ marriage was entered on May 12, 2008, and it incorporated the parties’ marital settlement agreement. Both the judgment and the agreement recognized that the parties were owners of the Flynn Family Limited Partnership, which owned property and a building thereon in Tampa, Florida. The parties’ agreement and the judgment provided that the Former Wife would execute a quitclaim deed in favor of the Former Husband with respect to this property and that she would assign her shares of the limited partnership to the Former Husband. The agreement and the judgment also provided that the Former Husband would execute a note agreeing to pay the Former Wife an equalizing payment of $600,000. The quitclaim deed and the assignment were to be held in escrow until the Former Husband made all equalizing payments under the note. The judgment and the agreement also provided that the Former Husband would pay the Former Wife interest on the note at a rate of 6% per annum.

The parties’ agreement and the judgment reflected the parties’ recognition that in order for the Former Husband to make this equalizing payment, the Former Husband must refinance the property owned by the limited partnership and that such refinancing was the basis of that part of the parties’ agreement involving the equalizing payment. The final judgment stated that, because refinancing may not be possible, the court “shall retain jurisdiction over the parties to enter such further and additional relief which the court deems appropriate if the Husband shall be unsuccessful in obtaining the refinancing.”

In January 2009, the Former Husband filed a petition in the family division of the circuit court requesting that the court readdress all issues relating to the equalizing payment, including his execution of the note and his obligation to pay interest on the note. The petition alleged that the Former Husband could not obtain refinancing of the property and he therefore was unable to pay the equalizing payment on the note or the interest on the note. This petition remains pending before the family division of the circuit court.

Despite the pending petition, the Former Wife filed a complaint and an amended complaint in a separate action seeking damages equal to the accrued interest on the note that the Former Husband failed to pay her. The Former Husband filed a motion to consolidate, transfer and/or stay the civil case so that the issue could be determined by the family division court. The court denied his motion and the Former Husband filed this petition for writ of certiorari asking this court to quash that order. In his petition, the Former Husband argues only that the trial court departed from the essential requirements of law in denying his motion to stay the Former Wife’s cause of action.

We first note that certiorari relief is appropriate when a circuit court order departs from the essential requirements of law and causes material harm that cannot be remedied on appeal. Spacebox Dover, LLC v. LSREF2 Baron LLC, 112 So.3d 751, 752 (Fla. 2d DCA 2013). An order denying a motion to stay in this circumstance qualifies for certiorari review. Id.; Sorena v. Gerald J. Tobin, P.A., 47 So.3d 875, 877 (Fla. 3d DCA 2010) (“This Court has certiorari jurisdiction to review a trial court’s non-final order denying a motion for stay.”).

In State v. Harbour Island, Inc., 601 So.2d 1334, 1335 (Fla. 2d DCA 1992), this court granted consolidated petitions for writs of certiorari where, although a state case and a federal case were not identical, the disposition of the federal case would resolve numerous issues raised in the state court action. This court noted that “[i]t is well established that when a previously filed federal action is pending between the same parties on the same issues, a subsequently filed state court action ordinarily should be stayed until the determination of the federal action.” Id. A subsequently filed action should be stayed in favor of a previously filed action that “involves the same parties and the same or substantially similar issues.” Fla. Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994).

In the present case, where the cases are pending in different divisions of the same circuit court, the principles of priority would apply to prevent multiple cases and unnecessary litigation. See Graham v. Graham, 648 So.2d 814, 815-16 (Fla. 4th DCA 1995) (holding that trial court correctly did not proceed to rule on issues which were being litigated in a previously filed dissolution action in another county).

Staples v. Staples, 168 So.2d 705 (Fla. 3d DCA 1964), is somewhat similar to the present case. In Staples, the trial court entered a final judgment of dissolution of marriage which adopted the parties’ property settlement agreement. Id. at 706. The agreement contained a provision requiring the husband to pay the wife $80,000 over a period of eight years in monthly installments. Id. After the death of the wife, the executor of her estate filed an action in the civil court to recover monthly installments that had not been paid, and the husband filed a separate action in the circuit court seeking to either cancel or modify the property settlement agreement and to restrain the enforcement of the agreement. Id. The executor of the estate then filed a motion to show cause against the husband in the original divorce proceeding based on his failure to make the monthly payments. Id. The Third District held that it would be proper to deny the subsequently filed motion in the dissolution action pending disposition of the previously filed suit by the husband because it would prevent “unseemly conflict between separate divisions of the court.” Id. at 707.

In the present case, the Former Husband’s petition was pending in the family division of the circuit court when the Former Wife filed her complaint. The litigation of both cases simultaneously may create conflict between separate divisions of the court and result in unnecessary litigation where the parties are identical and the two actions involve the same or substantially similar issues. This court has held that cases have substantially similar issues where the actions “involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” In re Guardianship of Morrison, 972 So.2d 905, 910 (Fla. 2d DCA 2007) (quoting Fla. Crushed Stone Co., 632 So.2d at 220); see Harbour Island, 601 So.2d at 1335 (“While the two cases are not identical, the disposition of the federal case will resolve many of the issues raised in the state action.”).

Here, both cases involve the same set of facts. In his petition to readdress all issues relating to the equalizing payment, the Former Husband states that he has been unable to obtain refinancing and that he is unable to pay the equalizing payment and the interest payments on the note. He requests the family division court to readdress all issues relating to the payment of the equalizing payment, including his execution of the note and his obligation to pay interest on the note.

In her amended complaint, the Former Wife seeks the interest owed to her pursuant to the terms of the final judgment of dissolution and the note. She acknowledges that pursuant to the note, the Former Husband was required to pay her an accrued interest at 6% per annum, unless he was unable to obtain refinancing as contemplated by the marital settlement agreement. Therefore, both actions involve the same issue pertaining to the refinancing of the property, the promissory note, and the interest on the promissory note.

Accordingly, the circuit court departed from the essential requirements of law in denying the Former Husband’s request to stay the proceedings. We grant certiorari, quash the order denying the stay, and remand with directions to stay the Former Wife’s suit pending disposition of the petition in the family division of the circuit court.

NORTHCUTT and SILBERMAN, JJ„ Concur.