text:
    Jessica Patrice ANUCINSKI, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-1281.
    Supreme Court of Florida.
    Sept. 24, 2014.

      Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Robert Jay Krauss, Bureau Chief, and Sara Elizabeth Macks, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

Jessica Anucinski seeks review of the decision of the Second District Court of Appeal in Anucinski v. State, 90 So.3d 879 (Fla. 2d DCA 2012), on the ground that it expressly and directly conflicts with a decision of this Court in Hall v. State, 826 So.2d 268 (Fla.2002), as well as with the decisions of the Fourth District Court of Appeal in Gordon v. State, 24 So.3d 727 (Fla. 4th DCA 2009), L.O.J. v. State, 974 So.2d 491 (Fla. 4th DCA 2008), and Pomaski v. State, 989 So.2d 721 (Fla. 4th DCA 2008), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Pursuant to section 812.025, Florida Statutes (2009), a defendant may properly be charged with both theft and dealing in stolen property. However, when the offenses are committed “in connection with one scheme or course of conduct ... the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.” § 812.025, Fla. Stat. (2009). The question raised in this case relates to the proper remedy on appeal where a defendant has been adjudicated guilty of theft and dealing in stolen property in violation of section 812.025, following an open plea of guilty or no contest. Following our decision in Hall, we hold that the proper remedy is to remand the case for the trial court to exercise its discretion in vacating the adjudication of guilt of either the dealing in stolen property or theft count, and to resentence the defendant on the remaining count. We therefore quash the district court’s decision below and approve Hall, Pomaski, L.O.J., and Gordon. We remand this case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In December 2009, Anucinski was charged in Collier County with one count of grand theft, a third-degree felony, and one count of dealing in stolen property, a second-degree felony. The State alleged in the information that Anucinski committed the grand theft of property belonging to Tiffany & Co. and that she dealt in the stolen property that same day. In response to the charges, Anucinski executed a plea of guilty or no contest as to both offenses.

At Anucinski’s plea hearing, the prosecutor outlined the factual basis for the plea: “Ms. Anucinski walked into Tiffany’s, stole a $2,500 ring right in the middle of the day, and then pedaled her bike down to the pawnshop and pawned it for an amount of $400.” Finding that she possessed sufficient mental capacity to enter the plea and that there was a factual basis for the plea, the trial court adjudicated Anucinski guilty of both grand theft and dealing in stolen property. Anucinski did not contend at the plea hearing that, based on section 812.025, the court could not adjudicate her guilty of both offenses. On each count, the trial court sentenced Anu-cinski to concurrent one-year jail terms as special conditions of probation. Following the incarcerative portion of her sentence, Anucinski was ordered to serve six years of probation on the dealing in stolen property count and four years of probation on the grand theft count, which were ordered to run concurrently with each other.

Anucinski appealed her dual adjudications of guilt, claiming that the trial court committed fundamental error — per section 812.025 — by accepting her plea and adjudicating her guilty of both grand theft and dealing in stolen property. The Second District reversed, holding that, based on section 812.025, the trial court erred in adjudicating Anucinski guilty of both offenses. Anucinski, 90 So.3d at 880. As to the remedy on appeal, Anucinski sought for the case to be remanded to the trial court for it to vacate one of her convictions based on whether she was a “common thief’ or a “trafficker in stolen property,” while the State asked the district court to vacate the grand theft conviction. Id. at 881. Despite acknowledging being bound by Hall, which “suggests some level of discretion in deciding which conviction to vacate upon remand,” the district court remanded with directions that the trial court vacate the grand theft conviction and to resentence Anucinski accordingly. Id. at 880, 882. The district court found that

when a jury convicts a defendant of both grand theft and dealing in stolen property, trial courts do not have to engage in any determination of which conviction to vacate — they are simply directed to vacate the lesser offense. Therefore, requiring trial courts to hold an evidentia-ry hearing in plea cases to determine which crime a defendant is “more guilty of’ seems illogical when no such analysis is required after a jury verdict.

Id. at 882 (citation omitted). The district court reasoned that there was “no factual determination left to be made by the trial court” and that its decision fosters judicial economy. Id.

ANALYSIS

Section 812.025, provides as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

§ 812.025, Fla. Stat. Adjudicating a defendant guilty of both theft and dealing in stolen property in accordance with a plea of guilty or no contest violates section 812.025, if the offenses were “in connection with one scheme or course of conduct.” The question raised is whether the proper remedy on appeal for such violation is to remand the case back to the trial court to decide which count to vacate, as advanced by Anucinski, or to simply vacate the lesser offense, as argued by the State. Questions of statutory interpretation are subject to de novo review. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).

Hall, Blackmon, and Williams

In Hall, we held that “section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.” 826 So.2d at 271. We explained that

Section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to [his or her] own use or to the use of a person not entitled to the use of the property or whether the defendant traffics or endeavors to traffic in the stolen property. The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both. The legislative scheme is clear and the same legislative rationale militates against allowing a defendant to plead guilty to inconsistent counts, i.e., stealing property with intent to use under section 812.014 or stealing property with intent to traffic in the stolen goods pursuant to section 812.019. Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts. Legislative history leads us to believe that this comports with legislative intent.

Id. at 271 (emphasis added). We remanded with directions that the defendant’s conviction be reversed on either the grand theft or dealing in stolen property count, and for him to be resentenced on the remaining count. Id. at 272.

Recently, this Court decided Blackmon and Williams, which both involved jury trials. In Blackmon, we held that the defendant’s convictions of petit theft and dealing in stolen property violated section 812.025, and that the trial court erred in (1) failing to instruct the jury on section 812.025, and (2) adjudicating the defendant guilty of both offenses. 121 So.3d at 548. Finding that the defendant failed to demonstrate fundamental error, this Court approved the district court’s reversal of the petit theft conviction. Id. at 549, 551.

Unlike the defendant in Blackmon, the defendant in Williams requested for the trial judge to instruct the jury under section 812.025, Florida Statutes (2008). 121 So.3d at 526. We concluded that the defendant’s convictions of grand theft and dealing in stolen property violated section 812.025, and that the trial court erred in refusing to instruct the jury on the statute, and in precluding the defendant from arguing to the jury that it could find him guilty of either offense. Id. at 534. Finding the errors not to be harmless, we determined that the defendant was entitled to a new trial. Id. We held in Williams that when both theft and dealing in stolen property counts are submitted to a jury, the trial court must provide an instruction on section 812.025. Id. at 531.

The Conflict Issue

As noted above, in remedying the improper dual adjudications of guilt of grand theft and dealing in stolen property in accordance with the defendant’s plea of no contest, this Court in Hall decided not to vacate the lesser offense. To the contrary, we remanded with directions that the conviction be reversed on either the grand theft count or dealing in stolen property count, and for resentencing on the remaining count. Hall, 826 So.2d at 272. We thus afforded the trial court discretion on remand to decide which count to vacate based on whether the defendant is a “common thief who steals property with the intent to appropriate said property to his own use or to the use of a person not entitled to the use of the property” or one who “traffics or endeavors to traffic in the stolen property.” Id. at 271.

Consistent with Hall, the Fourth District, in Gordon, Pomaski, and L.O.J., allowed the trial courts to exercise their discretion on remand. See Gordon, 24 So.3d at 728 (reversing and remanding for the trial court to vacate either the grand theft or dealing in stolen property offense, and resentence the defendant, having been adjudicated guilty of both offenses following a plea of nolo contendere); Pomaski, 989 So.2d at 722-23 (reversing and remanding for the trial court — which found the defendant guilty of both grand theft and dealing in stolen property and withheld adjudication following a no contest plea — to determine whether either offense is supported by the record); L.O.J., 974 So.2d at 493-94 (reversing and remanding for the trial court to vacate either the dealing in stolen property delinquency adjudication or the delinquency adjudications of the grand thefts, which had resulted from a plea of no contest).

This Case

As a threshold matter, we find that Anucinski is not precluded from raising her claim that her dual adjudications of guilt violate section 812.025 even though the argument was not raised in the trial court. We conclude that Anucinski’s grand theft and dealing in stolen property offenses, which involved the theft of a ring and the pawning thereof the same day, were “in connection with one scheme or course of conduct” under section 812.025. See Blackmon, 121 So.3d at 548 n. 17 (finding that “one scheme or course of conduct” was satisfied where the defendant took steel bars and approximately two hours later sold them to a scrap yard). Therefore, the trial court erred in adjudicating Anucinski guilty of both grand theft and dealing in stolen property, following her open plea of guilty or no contest, contrary to section 812.025. See Hall, 826 So.2d at 271 (“[W]e find that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.”); Blackmon, 121 So.3d at 548; Williams, 121 So.3d at 534.

With regard to the appropriate remedy, we follow the remedy we articulated in Hall. We hold that the trial court should be allowed to exercise its discretion in vacating the adjudication of guilt of either theft or dealing in stolen property, and to resentence the defendant on the remaining count. In exercising its discretion, the trial court on remand is to decide whether the defendant is a “common thief,” i.e., the defendant had the intent to appropriate the property to her own use or to the use of any person not entitled to the use of the property, or a “trafficker,” i.e., the defendant had the intent to traffic or endeavor to traffic in the stolen property. Finding the defendant to be a “common thief’ requires the court to vacate the dealing in stolen property count. On the other hand, finding the defendant to be a “trafficker” requires the court to vacate the theft count. The trial court on remand need not conduct an evidentiary hearing on this matter where the record before it is sufficient for it to exercise its discretion. Accordingly, we remand for the trial court to vacate either Anucinski’s adjudication of guilt of her grand theft count or of her dealing in stolen property count, and to resentence her on the remaining count.

CONCLUSION

Based on the foregoing, we quash the Second District Court’s decision in Anu-cinski, and approve our decision in Hall as well as the decisions of the Fourth District in Pomaski, L.O.J., and Gordon. We remand this case for proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, POLSTON, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion.

CANADY, J.,

dissenting.

In this case we consider the proper remedy on appeal when a defendant — who has entered an unbargained-for, open plea to the court — is improperly convicted of both theft and dealing in stolen property “in connection with one scheme or course of conduct,” contrary to section 812.025, Florida Statutes (2009), but the defendant failed to preserve the error in the trial court. Because I conclude that the proper remedy is to vacate the conviction of the lesser offense,1 would approve the result reached by the Second District Court of Appeal,

Generally, Florida law requires offenders to be “sentenced separately for each criminal offense” committed “in the course of one criminal transaction or episode.” § 775.021(4)(a), Fla. Stat. (2009). In enacting this rule, the Legislature intended “to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection [§ 775.021](1) to determine legislative intent.” § 775.021(4)(b), Fla. Stat. (2009). “Exceptions to this rule of construction are: 1. Offenses which require identical elements of proof. 2. Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” Id. When one of these exceptions comes into play, dual convictions are understood to be double jeopardy violations. An additional exception to the general rule of separate sentences for each offense exists in section 812.025 — the statute at issue here — which provides that a defendant may be convicted of either theft or dealing in stolen property, but not both, where those charges relate to “one scheme or course of conduct.”

When dual convictions are impermissibly imposed in violation of section 775.021(4)(b), the proper remedy is to vacate the lesser conviction. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (“When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.”); State v. Barton, 523 So.2d 152, 153 (Fla.1988) (stating that when “one of two convictions must fall, we hold that the conviction of the lesser crime should be set aside”).

As I have previously explained, “[t]here is no more harm [when the lesser conviction is vacated due to a violation of section 812.025] than there is under section 775.021(4) when impermissible dual convictions have been returned and the conviction for the lesser offense has been set aside.” Williams v. State, 121 So.3d 524, 535 (Fla.2013) (Canady, J., dissenting). Therefore, when impermissible dual convictions for theft and dealing in stolen property are imposed, the remedy should also be to vacate the lesser conviction. The majority has never provided a cogent explanation for why impermissible dual convictions under section 812.025 should be treated differently than impermissible dual convictions under section 775.021(4)(b). And, indeed, the majority in recent cases has not been consistent in its approach to this issue.

Recently, in Blackmon v. State, 121 So.3d 535 (Fla.2013), the Court approved a result that inexplicably is totally at odds with the result reached by the majority here. Blackmon was charged with both theft and dealing in stolen property after he took steel bars from the side of the road and sold them to a scrap yard hours later. Id. at 538-39. At trial, the jury was not instructed that it could only return a guilty verdict for either theft or dealing in stolen property in connection with one scheme or course of conduct, and Black-mon did not request such an instruction. Id. at 539. The jury found Blackmon guilty of both theft and dealing in stolen property. Id. The trial court thereafter adjudicated Blackmon guilty of both offenses and sentenced him for each offense. Id. Blackmon did not bring section 812.025 to the trial court’s attention, and he did not object to the dual convictions or sentences. Id.

On review, we held that although the trial court erred in failing to instruct the jury on the rendering of dual convictions and in adjudicating Blackmon guilty of both offenses in connection with one scheme or course of conduct, the error was not preserved by Blackmon, and it was not fundamental error such that we would require a new trial or resentencing. Id. at 548^49. Therefore, we approved the decision of the district court, vacating the conviction for the lesser offense. Id. at 549. In doing so, we noted that the remedy “was consistent with the remedy in double jeopardy contexts.” Id. at 549 n. 18 (citing Pizzo, 945 So.2d at 1206).

Anucinski was also charged with theft and dealing in stolen property in connection with one scheme or course of conduct. Anucinski v. State, 90 So.3d 879, 880 (Fla. 2d DCA 2012). By way of her guilty plea, she admitted committing both offenses, and she stipulated that the State could prove each offense beyond a reasonable doubt. The convictions resulting from her plea are no different than convictions resulting from a jury verdict. See Boykin v. Alabama, 395 U.S. 238, 242 n. 4, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (“A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need b[e] advanced.... It supplies both evidence and verdict, ending controversy.”); McCrae v. State, 395 So.2d 1145, 1154 (Fla.1980) (“[0]nee a plea ... has been accepted by a court, it is the conviction and the only remaining step is the formal entry of judgment and the imposition of sentence.”); Robinson v. State, 373 So.2d 898, 902 (Fla.1979); Reyes v. Kelly, 224 So.2d 303, 306 (Fla.1969) (“[W]e think that the plea of guilty in this situation is correctly accorded the effect of a jury verdict....”). Like Blackmon, Anucinski did not object to the dual convictions and sentences, and she did not bring section 812.025 to the attention of the trial court.

The trial courts in each of these cases erred in entering convictions for both theft and dealing in stolen property in connection with one scheme or course of conduct. In each case the error was neither preserved nor fundamental so as to require resentencing. The cases are indistinguishable except for the inconsequential fact that Anucinski’s improper dual convictions were the result of an open plea rather than a trial. Requiring trial courts “in plea cases to determine which crime a defendant is ‘more guilty of seems illogical when no such analysis is required [when improper dual convictions are rendered] after a jury verdict.” Anucinski, 90 So.3d at 882. Therefore, there is no reason to impose a different remedy here than we did in Blackmon.

Accordingly, I would approve the decision of the Second District Court of Appeal directing that-the conviction for the lesser crime be vacated.

      . § 812.014(1), (2)(c), Fla. Stat. (2009).

      . § 812.019(1), Fla. Stat. (2009).

      . Blackmon v. State, 121 So.3d 535 (Fla.2013).

      . Williams v. State, 121 So.3d 524 (Fla.2013).

      . We authorized the use of amended instruction 14.2 following our decision in Williams. See In re Standard Jury Instructions in Criminal Cases- — Instruction 14.2, 140 So.3d 992 (Fla.2014).

      . Without mentioning this Court’s decision in Hall, the dissent argues that Anucinski's lesser offense should be vacated and that the Court "approved a result [in Blackmon ] that inexplicably is totally at odds with the result reached by the majority here.” Dissent op. at 112. However, instead of requesting a remand to the trial court for it to exercise its discretion in vacating either count, the Petitioner in Blackmon argued that he was entitled to a new trial because the jury was allowed to return guilty verdicts on both offenses, which we rejected. 121 So.3d at 540, 549.

      . The lesser offense is either the offense of a lesser degree — here, the third-degree grand theft rather than the second-degree dealing in stolen property — or, if the offenses are of the same degree, the offense with the lesser severity ranking under the Criminal Punishment Code. See § 921.0022(3)(a), Fla. Stat. (2009).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elisha THOMAS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0487.
    District Court of Appeal of Florida, First District.
    July 22, 2014.
    Rehearing Denied Oct. 14, 2014.
    Elisha Thomas, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The portion of the petition for writ of mandamus seeking to compel a ruling on petitioner’s motion for postconviction relief is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). The portion of the petition seeking to compel a ruling on petitioner’s petition for nisi decree is also denied. See Sapp v. Crosby, 917 So.2d 905 (Fla. 1st DCA 2005) (“Because the circuit court has nothing before it on which to rule, we deny the petition for writ of mandamus.”).

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: LaROSE, Judge.

text:
    Fred PENA, Appellant, v. The BOARD OF TRUSTEES OF the PENSION FUND FOR the FIRE-FIGHTERS AND POLICE OFFICERS IN the CITY OF TAMPA, Appellee.
    No. 2D13-3540.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.

      Michael B. Germain of Germain Law Group, P.A., Tampa, for Appellant.
    Stuart A. Kaufman and Paul A. Daragja-ti of Klausner, Kaufman, Jensen & Levin-son, Plantation, for Appellee.
   LaROSE, Judge.

Fred Pena, a retired Tampa firefighter, appeals a final summary judgment entered in favor of The Board of Trustees of the Pension Fund for the Firefighters and Police Officers in the City of Tampa (“Trustees”). Mr. Pena alleged that the Trustees paid an incorrect interest rate on the delayed payment of a “13th Check” from the pension fund. More specifically, he alleged that when the Trustees delayed payment, they held the funds in a separate interest-bearing account. Upon payment of the “13th Check,” the Trustees paid interest on those funds for the delay period at the separate interest-bearing account rate. Mr. Pena contends that he is entitled to the interest at the rate mandated in his pension contract, the net investment performance rate. For the reasons explained herein, we affirm.

Mr. Pena is a pension fund beneficiary. The Trustees administer the pension fund pursuant to Florida law and the terms of the pension contract. Mr. Pena participates in the Deferred Retirement Option Program (“DROP”) established in Section 26 of the pension contract. Under DROP, an employee may retire for pension purposes but remain employed with the City. While still employed, monthly retirement benefits accrue in the employee’s DROP account, together with the amount of any applicable cost of living adjustments, interest, and the amount of a “13th Check,” if available. Upon termination of employment, the employee receives the funds accumulated in his or her DROP account.

The “13th Check” is a benefit created in Section 27 of the pension contract. The “13th Check” is a supplemental benefit program for eligible retired employees, including DROP participants. If certain financial and actuarial conditions are met as of September 30 of the pension fund’s fiscal year, the Trustees pay a thirteenth pension check each year to eligible retirees. When a “13th Check” is paid to DROP participants, payment accrues to their DROP accounts, accumulating interest thereafter at the rate specified under the terms of Section 26 of the pension contract. Section 27(B) of the pension contract reflects that the “13th Check” is an account within the pension fund.

The Trustees must establish the amount, if any, of the “13th Check” no later than May 31 of the following fiscal year, distributing payment no later than June 30 of the then current fiscal year. For the fiscal year ending September 30, 2005, the conditions precedent to the issuance of a “13th Check” were satisfied. Under normal circumstances, therefore, the Trustees would have set the amount of the “13th Check” by May 31, 2006, and would have made payment by June 30, 2006. Pending litigation against the Trustees, however, stalled their momentum. They delayed payment of the “13th Check” beyond June 30, 2006, but with good reason.

In the early 2000s, retirees challenged the Trustees’ apportionment of investment losses among accounts within the pension fund. They sued the Trustees in what became known as the Maxey case. City of Tampa Retired Fire & Police Ass’n v. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers in Tampa, 950 So.2d 1242 (Fla. 2d DCA 2007). The trial court ruled in favor of the Trustees; the retirees appealed.

Although a “13th Check” for the fiscal year ending September 30, 2005, was otherwise payable to retirees, including Mr. Pena, the Trustees feared that an unfavorable appellate ruling would impact adversely the pension fund’s actuarial certification. If the retirees won the Maxey case on appeal, the pension fund would not have made a sufficient actuarial gain to issue a “13th Check.” Recouping paid-out funds would be difficult, if not near impossible. The Trustees decided to withhold payment of the “13th Check,” placing the funds in a separate interest-bearing account, pending resolution of the Maxey case.

The Trustees advised the retirees and DROP participants of this decision. This notification provided ample time for participants to protest the decision, yet our record reflects no opposition. No one seems to contest that the Trustees had the discretion to take this action. Indeed, the trial court framed the issue as whether the Trustees acted within their authority when they decided to withhold payment. The trial court reasoned that paying the “13th Check” would have resulted in overpayment if the retirees were successful on appeal in the Maxey case. The Trustees would have faced liability for paying benefits prematurely. The trial court stated that the Trustees put the funds into a separate account to prevent market fluctuations that could have resulted in a loss of the “13th Check.” The trial court found that the Trustees acted reasonably and in everyone’s interests.

The Trustees eventually paid out the “13th Check” for the 2005 fiscal year after their success in the appeal of the Maxey case. Thus, the heart of this appeal involves the Trustees’ decision to pay DROP participants, such as Mr. Pena, the interest amount earned in the separate account in which the “13th Check” funds were placed rather than at the pension fund’s higher net investment performance rate.

Mr. Pena argues that the pension contract dictated the interest rate payable on the “13th Check,” that the Trustees lacked discretion to apply a different rate, and that the Trustees are estopped from applying a different rate. We review the final summary judgment de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

Section 26(D) of the pension contract describes the applicable interest rate for the funds that accumulate in the DROP accounts. The pension contract provides that “the DROP participant shall choose to have interest accumulate annually, whether positive or negative, at either (i) a rate reflecting the [pension] [fjund’s net investment performance, as determined by the ... Trustees, or (ii) a rate reflecting a low-risk variable rate selected annually by the ... Trustees in [their] sole discretion.” Sections 26(C) and (D) of the pension contract contemplate that the proper interest rate applies to funds that accumulate to the DROP accounts. The then-pending Maxey case presented an unanticipated wrinkle because the Trustees did not pay the “13th Check” for the 2005 fiscal year into Mr. Pena’s account until after June 30, 2006.

Mr. Pena argues that Section 26 mandates that the interest rate must be the net investment performance rate. We disagree. A fair reading of Section 26 indicates that the selected interest rate applies only to funds that actually accumulate in the DROP account. The “13th Check” went into Mr. Pena’s DROP account when the Trustees made payment after the conclusion of the Maxey case. At that point, the funds were subject to interest accumulation under Section 26. The Trustees acted in compliance with the pension contract in paying interest at the rate earned while the “13th Check” funds sat in a separate interest-bearing account.

Mr. Pena’s contention that the Trustees are judicially estopped from applying a lower interest rate fares no better. Mr. Pena informs us that the Trustees took the position in Board of Trustees of City Pension Fund for Firefighters & Police Officers in Tampa v. Parker, 113 So.3d 64 (Fla. 2d DCA) petition for review granted, 137 So.3d 1021 (Fla.2013), that the pension contract governs the proper interest amount for DROP participants. True. Mr. Pena posits further, however, that the Trustees conceded in Parker that the amount of interest payable for delay in the issuance of a “13th Check” was at the pension fund’s net investment performance rate. Mr. Pena urges too much. Judicial estoppel is an equitable doctrine used to prevent litigants from taking inconsistent positions in separate lawsuits. Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001). And, as even Mr. Pena acknowledges, the party to be estopped must have successfully maintained the allegedly inconsistent position in a prior judicial proceeding. Id. The Trustees’ alleged concession in Parker has no place here.

Parker involved a retired firefighter, as a class representative, challenging the Trustees’ refusal to distribute a “13th Check” for the fiscal year ending September 30, 2004. See 113 So.3d at 66. To recoup actuarial losses incurred in the pension fund in 2001 and 2002, the Trustees decided not to pay. Eventually, the Trustees recognized that they should have issued the “13th Check” for the 2004 fiscal year. Id. Apparently, use of the funds to pay off prior year losses was inappropriate. Key to Parker was whether the Trustees could withhold a “13th Check” to recover those investment losses. According to Mr. Pena, for settlement purposes, the Trustees agreed to pay interest at the net investment performance rate to sums that were otherwise due and payable.

Here, we face a narrower issue, the applicable interest rate payable for the time “13th Check” funds had not accumulated in DROP accounts pending the resolution of the Maxey case. The Trustees resolved the Parker case and paid the funds owed to the eligible retirees. 113 So.3d at 66. Significantly, the parties in Parker apparently stipulated as part of the settlement that for those individuals in DROP at the time the “18th Check” was distributed, the funds accrued to their DROP accounts, accumulating interest at the pension fund’s net investment performance rate.

The Parker case is fundamentally different than Mr. Pena’s situation. Mr. Pena’s case involves a “18th Check” for the September 30, 2005, fiscal year that was being withheld pending resolution of the Maxey case, an action neither party challenged. In the Parker case, the Trustees apparently conceded that they should have issued the “13th Check.” The only factual similarity between these cases is that the Trustees made a discretionary decision not to issue a “13th Check.” Yet in Mr. Pena’s case, sound fiduciary reasons spurred the decision. Until resolution of the Maxey case, entitlement to the “13th Check” was not a foregone conclusion. In Parker, the funds were due and payable, not subject to a withholding. 113 So.3d at 66. The Trustees cannot be judicially estopped from applying a different interest rate under the circumstances Mr. Pena presents. Moreover, the parties in the Parker case appropriately noted that the net performance investment rate applied to funds that accumulated in a retirement account, including those of DROP participants.

Having carefully reviewed the record before us, we affirm the trial court’s decision that the Trustees acted within their discretion in withholding payment of the “13th Check” for the 2005 fiscal year pending resolution of the Maxey case. We must also conclude that the trial court was correct in finding that the Trustees properly paid interest for the withheld funds at the rate paid in the separate account where the funds were placed pending resolution of the Maxey case.

Affirmed.

VILLANTI, J., and DAKAN, STEPHEN L., Associate Senior Judge, concur.

      . Mr. Pena's amended complaint was filed on behalf of himself and others similarly situated. See Fla. R. Civ. P. 1.220. Our record does not disclose what, if anything, has occurred with respect to Mr. Pena’s apparent desire to proceed on a class-action basis.


text:
    Jeffery L. PHILLIPS a/k/a Jeffery Leroy Phillips, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-928.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    John S. Lynch, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See State v. Daniels, 33 So.3d 749 (Fla. 2d DCA 2010).

SILBERMAN, KELLY, and VILLANTI, JJ„ Concur.


text:
    Lawrence Lee JONES, Appellant, v. Executive Clemency Office, Coordinator, Julia McCALL, Appellee.
    No. 1D14-0975.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2014.
    Rehearing Denied Oct. 14, 2014.
    Lawrence Lee Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Wade v. Singletary, 696 So.2d 754 (Fla.1997).

CLARK and OSTERHAUS, JJ., concur; BENTON, J.,- dissents without opinion.


text:
    Michael CRUMP, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3742.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2014.
    Rehearing Denied Oct. 15, 2014.
    Michael Crump, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, RAY, and OSTERHAUS, JJ., concur.


author: WOLF, J.

text:
    Shaheim Hassan LOMAX, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4271.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Rehearing Denied Oct. 13, 2014.

      Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, for Appellee.
   WOLF, J.

Appellant challenges his convictions for second-degree murder and possession of a firearm by a juvenile delinquent found to have committed a felony act. He argues the trial court erred in denying his motion to suppress evidence found during a traffic stop because an officer’s observation of his car swerving over solid double yellow lines was not probable cause that he committed a traffic violation. We affirm.

An officer testified that appellant was traveling down a two-lane road separated by solid double yellow lines. The officer observed the car swerve, with both the driver’s side front and back tires traveling over the double yellow lines, so that the vehicle was partially in the oncoming lane of traffic. The officer then conducted a traffic stop and wrote appellant a ticket for violating a traffic control device as prohibited by section 316.047, Florida Statutes. The officer testified that when appellant crossed the double yellow lines, he was not attempting to pass another car. He testified there were no oncoming cars or cars in front of appellant, and that appellant did not interfere with the safe operation of any vehicle.

In his motion to suppress, appellant argued that his briefly swerving two tires over the double yellow lines did not constitute violating a traffic control device. Specifically, he argued the purpose of the double yellow lines was to prohibit passing, not brief swerving. He relied on a federal driving manual pertaining to traffic control devices that was incorporated by reference in Florida Administrative Code Rule 14-15.010. The manual states that double yellow lines delineate “where crossing the centerline markings for passing is prohibited.” See Federal Highway Administration Manual on Uniform Traffic Control Devices, 2009, at Section 3B.01-3B.02. Appellant argues that because there was no evidence that he was passing or attempting to pass another vehicle, his briefly swerving two tires over the double yellow lines did not constitute the traffic offense of violating a traffic control device. Thus, he argued there was no probable cause for the traffic stop. The trial court denied the motion to suppress.

“ ‘The ruling of the trial court on a motion to suppress comes to us clothed with a presumption of correctness and we must interpret the evidence and deductions in a manner most favorable to sustaining the trial court’s ruling.’ ” Johnson v. State, 608 So.2d 4, 9 (Fla.1992) (quoting Owen v. State, 560 So.2d 207, 211 (Fla.1990), receded from, on other grounds by State v. Owen, 696 So.2d 715 (Fla.1997)). In reviewing a motion to suppress, a trial court’s findings of fact are reviewed for whether there is competent, substantial evidence to support the findings, whereas a trial court’s findings of law are reviewed de novo. See Calabro v. State, 995 So.2d 307, 311 (Fla.2008).

The State notes that section 316.0875, Florida Statutes, prohibits both passing and driving to the left of the pavement striping in no-passing zones:

(1) The Department of Transportation and local authorities are authorized to determine those portions of any highway under their respective jurisdiction where overtaking and passing or driving to the left of the roadway would be especially hazardous and may, by appropriate signs or markings on the roadway, indicate the beginning and end of such zones, and when such signs or markings are in place and clearly visible to an ordinarily observant person, every driver of a vehicle shall obey the directions thereof.
(2) Where signs or markings are in place to define a no-passing zone as set forth in subsection (1), no driver shall at any time drive on the left side of the roadway with such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.
(3) This section does not apply when an obstruction exists making it necessary to drive to the left of the center of the highway, nor to the driver of a vehicle turning left into or from an alley, private road or driveway.
(4) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.

§ 316.0875, Fla. Stat. (2010) (emphasis added).

We find the officer’s testimony that he observed appellant’s front and back driver’s side tires travel over the solid double yellow lines, so that the vehicle was partially in the oncoming lane of traffic, was competent, substantial evidence that appellant violated the traffic control device of double yellow lines. Thus, there was competent, substantial evidence that appellant violated section 316.0875 by “driving] ... on the left side of any pavement striping designed to mark such no-passing zone.”

We note that in a similar context, courts have found that a driver’s failure to maintain a single lane as required by section 316.089, Florida Statutes, does not by itself establish probable cause for a traffic stop unless the driver’s behavior placed other vehicles in danger. See, e.g., Hurd v. State, 958 So.2d 600 (Fla. 4th DCA 2007). Because section 316.089 prohibits leaving a lane unless it can be done “with safety,” courts have reasoned that “the failure to maintain a single lane alone cannot establish probable cause when the action is done safely.” Hurd, 958 So.2d at 603.

In contrast, section 316.0875 does not permit crossing solid double yellow lines even if it can be done safely, unless one of the exceptions in subsection (3) applies. Instead, it states “no driver shall at any time drive ... on the left side of any pavement striping designed to mark such no-passing zone.” § 316.0875(2), Fla. Stat. (emphasis added). Thus, the officer’s observation of appellant crossing the solid double yellow lines here constituted probable cause, regardless of the fact the officer testified that appellant did not create a safety hazard. We AFFIRM.

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

       We note that, as discussed in Hurd v. State, 958 So.2d 600 (Fla. 4th DCA 2007), erratic driving can give rise to reasonable suspicion of impairment in certain circumstances. However, that was not an issue in this case.


text:
    Adam L. SWANSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1347.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2014.
   PER CURIAM.

Affirmed. See Steadman v. State, 23 So.3d 811 (Fla. 2d DCA 2009); Murray v. State, 36 So.3d 792 (Fla. 1st DCA 2010).

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


text:
    Robert ALTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1481.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2014.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003).

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


text:
    Grier B. MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1567.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2014.
   PER CURIAM.

Affirmed. See Dale v. State, 703 So.2d 1045 (Fla.1997); Steward v. State, 931 So.2d 138 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Williams v. State, 651 So.2d 1242 (Fla. 2d DCA 1995).

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


text:
    Karl KERR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1256.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Karl Kerr, Jr., pro se.
   PER CURIAM.

Karl Kerr Jr. filed timely motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 in two circuit court cases, numbers 2010-CF-8438 and 2011-CF-1183, on approximately August 16, 2013. The motion in case number 2011-CF-1183 was denied on the merits, and we affirm without comment the post-conviction court’s orders directed to this motion. However, the motion in case number 2010-CF-8438 was dismissed as untimely and successive. Because the motion appears to have been timely filed under the mailbox rule, we reverse and remand for the postconviction court to reconsider the motion.

The motion filed in case number 2010-CF-8438 was dismissed twice for facial insufficiency. The second dismissal order found Kerr’s claim that his counsel was ineffective for waiving his speedy trial rights was facially insufficient and gave him thirty days from September 18, 2013, to amend the claim. Kerr then filed an amended motion, although it was not titled as such. This amended motion arrived for filing in the circuit court on November 27, 2013. However, the certificate of service and a corrections facility date stamp on the motion reflect that it was filed on September 27, 2018. The postconviction court, without addressing the timeliness of this motion, ordered the State to respond to the claim of ineffective assistance of counsel regarding Kerr’s speedy trial rights.

Citing the circuit court filing date of November 27, 2018, the State responded that the amended motion was untimely filed beyond the court-ordered time limit and beyond the two-year filing period of rule 3.850, which expired on September 13, 2013. In addition, the State noted that after the order to show cause was issued, Kerr attempted to amend his motion again but the postconviction court denied the motion to amend on the ground that it had already issued an order to show cause to the State. The State concluded that the first amended motion was untimely and that the claim of ineffective assistance of counsel regarding Kerr’s speedy trial waiver was otherwise successive. The postconviction court adopted the State’s position without further elaboration in its final order denying the motion. Neither the postconviction court nor the State addressed the inconsistency between the date on the certificate of service and the actual filing date of the amended motion.

Under the prisoner mailbox rule, the timeliness of Kerr’s pleading should be measured from the date he placed the document in the hands of prison officials for mailing. See Scullock v. Gee, 133 So.3d 1208, 1209 (Fla. 2d DCA 2014) (citing Haag v. State, 591 So.2d 614 (Fla.1992)). The date on the certificate of service creates a rebuttable presumption that the motion was actually placed in an official’s hands on that date. Id. (citing Thompson v. State, 761 So.2d 324, 325 (Fla.2000)). Absent evidence from the State to rebut the presumption, Kerr’s amended motion should be deemed timely and the postcon-viction court should address it on the merits. Accordingly, we reverse the portion of the postconviction court’s order directed to case number 2010-CF-8438 and remand for reconsideration.

Affirmed in part; reversed in part; remanded.

NORTHCUTT, MORRIS, and BLACK, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Renny ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-133.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2014.

      Renny Armstrong, pro se.
   SILBERMAN, Judge.

Renny Armstrong appeals the summary denial of his postconviction motion filed under Florida Rule of Criminal Procedure 8.850. We affirm the denial of grounds two, three, and four without comment, but we reverse the denial of ground one and remand for further proceedings.

In 2010, Armstrong entered an open plea to burglary (count one), grand theft (count two), fleeing to elude law enforcement (count three), and driving while license suspended or revoked (count four). He was sentenced to fifteen years in prison as a prison releasee reoffender (PRR) with a fifteen-year mandatory minimum on count one, to five years in prison on count two, to fifteen years in prison on count three, and to time served on count four. He did not appeal his judgment and sentence but instead filed this timely postcon-viction motion.

In ground one of his motion, Armstrong claimed that his former counsel was ineffective for failing to inform him of the maximum sentence and of the possibility of a fifteen-year mandatory minimum sentence as a PRR during plea negotiations, resulting in the rejection of a favorable plea offer of forty-eight months in prison. He maintained that had he been properly advised, he would have accepted the offer of forty-eight months. He argued that although the State had not filed a notice of intent to seek PRR designation, counsel had an obligation to advise him of the possibility of such a designation to allow him to make an informed decision about the State’s offer. He asserted that after he rejected the offer, the State filed a PRR notice.

In a response that was adopted and incorporated by the postconviction court, the State asserted that although Armstrong’s claim is facially insufficient, it should be denied without leave to amend because he would be unable to amend it in good faith to establish prejudice. Citing Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007), the State maintained that because the trial court advised Armstrong of the maximum sentence and of the mandatory minimum as a PRR at the plea hearing, he could not rely on counsel’s alleged misadvice. Although we agree Armstrong’s motion is facially insufficient under Alcorn v. State, 121 So.3d 419 (Fla. 2018), we disagree that Armstrong was not entitled to leave to amend ground one.

In Alcorn, the supreme court held that to establish prejudice in a claim of ineffective assistance based on misadvice resulting in the rejection of a favorable plea offer, the defendant must demonstrate that:

(1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (8) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Id. at 422 (citing Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)).

Armstrong failed to allege that the prosecutor would not have withdrawn the offer and that the court would have accepted it, prongs two and three of Alcorn. See Ramos v. State, 141 So.3d 643 (Fla. 4th DCA 2014). Because Armstrong’s motion was pending at the time Alcorn was decided, the postconviction court was required to apply Alcorn in resolving the claim. See Odegaard v. State, 137 So.3d 505, 513 (Fla. 2d DCA 2014) (LaRose, J., concurring) (“However, recent cases suggest an expansion of the ‘pipeline’ analysis to new law that applies to postconviction claims where the resolution of the postconviction claim was still pending when the new case was decided.”); see also Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004) (“Because this appeal was in the ‘pipeline’ at the time Nelson [v. State, 875 So.2d 579 (Fla.2004),] became final, Barthel is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal.”).

Moreover, the State applied an incorrect prejudice analysis. In the context of ineffective assistance resulting in the rejection of a plea offer, “[prejudice ... is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.” Al-corn, 121 So.3d at 432. The State incorrectly focused on what occurred after Armstrong rejected the plea offer; what happened after did not rectify counsel’s failure to provide Armstrong with all of the information necessary to make an informed decision on whether to accept the offer. Also, this court has expressly refused to follow Scheele and has held that a trial court’s informing the defendant of the maximum sentence would not necessarily have put him on notice that he could not rely on counsel’s advice. See Ely v. State, 13 So.3d 167,169 (Fla. 2d DCA 2009). See also Singfield v. State, 74 So.3d 127, 129 (Fla. 2d DCA 2011) (“However, the court’s advice to Singfield was clearly qualified: the court informed him that in all likelihood, he would be sentenced to sixty-five months in prison, despite having previously informed him of the maximum sentences. The trial court’s statement placed Singfield on notice that he could not rely on counsel’s statements to the contrary.”).

Accordingly, we reverse and remand for the postconviction court to allow Armstrong an opportunity to amend ground one if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So.2d 754 (Fla.2007).

Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ., Concur.


text:
    McKinsie Alexander LYONS, Appellant, v. STATE Of Florida, Appellee.
    Nos. 2D13-4245, 2D13-4247.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2014.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SILBERMAN, Judge.

McKinsie Alexander Lyons seeks review of convictions in two cases for carrying a concealed firearm; obstructing an officer without violence; driving while license can-celled, suspended, or revoked (second offense); and felonious possession of a firearm. Lyons entered negotiated pleas to the charges while reserving the right to appeal the denial of his motions to dismiss and suppress. Counsel filed briefs pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In our independent review of the record, we discovered a discrepancy between the sentences that were orally pronounced and the written sentences. The trial court orally pronounced sentences of 41.625 months in prison, but the written sentences impose 41.65 months in prison. Because the oral pronouncement controls, the written sentences are erroneous. See Williams v. State, 957 So.2d 600, 603 (Fla.2007). However, Lyons has not preserved this issue for review by filing a motion to correct sentencing error. See Woodard v. State, 6 So.3d 726, 727 (Fla. 2d DCA 2009). Accordingly, we affirm without prejudice to any right Lyons may have to seek post-conviction relief on this issue. See id.

Affirmed.

WALLACE and BLACK, JJ., Concur.


text:
    Robert ARMSTRONG, Appellant, v. STATE Of Florida, Appellee.
    No. 2D14-1600.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2014.
    Robert Armstrong, pro se.
   PER CURIAM.

Robert Armstrong filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 on February 29, 2012. The postconviction court dismissed the motion as untimely, erroneously relying on the February 24, 2010, date of a memorandum of sentencing for the filing date of Armstrong’s judgment and sentence and concluding that Armstrong’s motion should have been filed by February 23, 2012. In addition to relying upon the wrong document for determining the date on which Armstrong’s rule 3.850 filing time began to run, the postconviction court overlooked the rule that the time for filing a postconviction motion is triggered by the date on which the judgment and sentence become final. See Fla. R. Crim. P. 3.850(b). When no appeal is filed, finality occurs thirty days after rendition of the judgment and sentence, which is the date on which the time for filing the notice of appeal expires. Westley v. State, 903 So.2d 312, 313 (Fla. 2d DCA 2005); Davis v. State, 687 So.2d 292, 293 (Fla. 2d DCA 1997).

Armstrong’s judgment and sentence were rendered on March 3, 2010. Because Armstrong did not file a notice of appeal, his judgment and sentence were final on April 2, 2010, and Armstrong’s February 29, 2012, motion was filed well within the two-year time limit. Accordingly, we reverse the postconviction court’s order dismissing Armstrong’s motion as untimely and remand for consideration on the merits.

Reversed and remanded.

ALTENBERND, LaROSE, and MORRIS, JJ., Concur.


text:
    Glenn SMITH, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D14-1057.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Glenn Smith, pro se, Appellant..
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because a non-final appeal is pending of an order on transfer, it was error for the circuit court to issue a final order. Accordingly, the order dismissing the case is quashed and the cause is remanded for further proceedings after disposition of the non-final appeal. See Fla. R. App. P. 9.130(f) (providing that the lower tribunal may not enter a final order disposing of the cause while an appeal of a non-final order is pending); Cooper v. Cooper, 69 So.3d 977 (Fla. 2d DCA 2011) (holding that trial court’s purported final order was a nullity by operation of law where the order was entered while appeal of earlier non-final order was pending).

WOLF, RAY, and OSTERHAUS, JJ., concur.


text:
    Randy SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1132.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Randy Spencer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

In light of his extensive pro se activities before this court that substantially interfered with the orderly process of judicial administration, the patently frivolous nature of many of his pleadings, and the sheer volume of filings which have occupied an inordinate amount of the judicial resources of this court, we directed Randy Lavern Spencer to show cause why sanctions should not be imposed upon him. In the three months since that order issued, Spencer requested and was granted an extension of time to respond, requested but was denied a stay, and unsuccessfully sought both discretionary review and prohibition relief in the supreme court. He has not, however, responded to our order to show cause, and his time for doing so has expired.

Accordingly, because Randy Lavern Spencer has misused the judicial process to the detriment of other litigants with legitimate claims and has failed to make any showing of good cause why sanctions should not be imposed, he is hereby barred from future pro se appearances before this court. The clerk of the court is directed to reject any future filings by Randy Lavern Spencer or by any party on his behalf unless signed by a member in good standing of the Florida Bar. In any active case before the court in which Spencer is appearing pro se, he shall secure the appearance of counsel on his behalf within 30 days, failing which any such case will be subject to dismissal without further opportunity to be heard.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Paul PLATACIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1376.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Paul Platacis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on April 12, 2012, in Escambia County Circuit Court case numbers 2011-CF-00724A, 2011-CF-001032A, 2011-CF-001199A, 2011-CF-001285A, 2011-CF-001286A and 2011-CF-001287A 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.

LEWIS, C.J., PADOVANO and CLARK, JJ., concur.


text:
    Aaron S. HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1430.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Aaron S. Hope, pro se, Appellant.
    Pamela Jo Bondi, Attorney General; and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

Aaron Hope appeals a final order summarily denying his sworn motion for post-conviction relief. As to Hope’s eleven issues on appeal, we affirm without discussion the denial of the claims that gave rise to appellate Issues Two through Five and Seven through Eleven., We issued an order pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), directing the State to show cause why the claims raised in appellate Issues One and Six should not be remanded to the post-conviction court for an evidentiary hearing, and affording Hope an opportunity to reply to the State’s response. Having reviewed the response and reply relating to the “jury instruction” claim raised in appellate Issue Six, we affirm the denial of relief on that issue. Agreeing with the State’s concession of error in the post-conviction court’s summary denial of appellate Issue One, we reverse that part of the order and remand for an evidentiary hearing on that issue only.

Appellate Issue One, which arose from Ground One in the Rule 3.850 motion, dealt with the claim of ineffective assistance based on trial counsel’s failure (1) to promptly ascertain Hope’s wish to accept the State’s seven-year plea offer and (2) to convey Hope’s decision to the prosecutor before the offer expired. Given the record evidence that Hope was sentenced to more than seven years’ incarceration, the State recognizes that the post-conviction court’s order and attachments did not conclusively refute the possibility that trial counsel performed deficiently, resulting in prejudice to the defense. Cf White v. State, 731 So.2d 74, 75 (Fla. 2d DCA 1999) (reversing and remanding for reconsideration of post-conviction claim that trial counsel was ineffective for the delay in communicating to the State the defendant’s acceptance of the State’s 52-month plea offer until after the State withdrew its offer, where the defendant alleged he would have received a less severe sentence than the one imposed after the trial).

The final order is AFFIRMED in part, REVERSED in part, and REMANDED for an evidentiary hearing as to appellate Issue One only.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Michael A. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2829.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Michael A. Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Cf Hair v. Crews, 116 So.3d 616 (Fla. 1st DCA 2013) (denying petition for writ of mandamus without prejudice to petitioner’s right to refile where the pleading at issue was not received by the lower tribunal).

LEWIS, C.J., PADOVANO and CLARK, JJ., concur.


text:
    William N. TAYLOR, Jr. M.D., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3316.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    William N. Taylor, Jr. M.D., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The “Petition for Writ of Habeas Corpus and Motion to Discharge Court-Appointed Counsel for Negligence and Willful Misrepresentation” is treated as a petition alleging ineffective assistance of appellate counsel and is DENIED on the merits.

LEWIS, C.J., PADOVANO and CLARK, JJ., concur.


text:
    Willie Deangelo BIGHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0901.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Willie Deangelo Bigham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, MARSTILLER, and MAKAR, JJ., concur.


text:
    Antonio W. KNIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3317.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Antonio W. Knight, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is dismissed. See English v. McCrary, 348 So.2d 293 (Fla.1977).

ROWE, MARSTILLER, and MAKAR, JJ., concur.


author: WALLACE, Judge.

text:
    John E. MOXLEY, as Personal Representative of the Estate of Jake Bell, Appellant, v. U-HAUL CO. OF FLORIDA and Infinity Indemnity Insurance Company, Appellees.
    No. 2D13-4163.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.

      Brandon G. Cathey, Brent G. Steinberg and Elizete D. Velado of Swope Rodante, P.A., Tampa, for Appellant.
    Fredric S. Zinober and Thomas A. Valdez of Quintarnos, Prieto, Wood & Boyer, P.A., Tampa; and Troy B. Froderman, admitted pro hac vice, and Nicole M. Hamilton of Polsinelli PC, Phoenix, Arizona, for Appellees.
   WALLACE, Judge.

John E. Moxley, as Personal Representative of the Estate of Jake Bell, deceased, challenges an order granting a summary judgment in favor of U-Haul Co. of Florida (U-Haul) based on a release executed by Mr. MOxley’s predecessor in interest. Because the claims described in the release did not include the claims for which the underlying action was brought, we reverse the circuit court’s order and the resultant final judgment entered in favor of U-Haul.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On May 2, 2007, Vernell Butler entered into a “U-Haul equipment rental contract” and addendum (the Rental Agreement) with U-Haul whereby U-Haul granted Ms. Butler and other authorized drivers the use of a U-Haul moving truck for three days. Jake Bell was an authorized driver of the truck. On May 3, 2007, Mr. Bell was driving the truck on Interstate 75 near Ocala when the truck collided with a vehicle operated by Jayne Wakeman. As a result of the collision, Mr. Bell was killed and Ms. Wakeman allegedly sustained serious injuries.

Ms. Butler was appointed as the personal representative of Mr. Bell’s estate. After her appointment, Ms. Butler negotiated a settlement of certain claims that Mr. Bell’s estate had against U-Haul arising out of the collision. On February 20, 2009, in exchange for $5000, Ms. Butler — acting in her capacity as personal representative — executed a Release of All Claims, Confidentiality and Indemnity Agreement (the Release) in favor of U-Haul and certain related parties. The Release referred to Ms. Butler in her representative capacity as “CLAIMANT” and to U-Haul and its related parties as “the RELEASED PARTIES.” The Release provided, in pertinent part, as follows:

1. THE CLAIM
On or about May 3, 2007, an incident occurred on Interstate 75 near the intersection of State Road 200 in Ocala, Marion County, Florida, wherein JAKE BELL, JR. was allegedly injured and died as the result [of] an automobile accident (the “ÍNCIDENT”). CLAIMANT claims that at the time and place aforesaid, the RELEASED PARTIES were negligent, vicariously liable or are otherwise legally responsible for the injuries and death of JAKE BELL, JR. CLAIMANT further alleges that the Estate of JAKE BELL, JR. and his survivors have suffered damages allowable under the Florida Wrongful Death Act (collectively, the “DAMAGES”). CLAIMANT affirms that she is the Personal Representative of the Estate of JAKE BELL, JR. and is otherwise qualified by law to settle all claims on behalf of the Estate. The RELEASED PARTIES have denied and continue to deny any and all responsibility for the DAMAGES complained of by CLAIMANT.
2. SETTLEMENT AMOUNT
CLAIMANT and the RELEASED PARTIES desire to compromise and settle any and all claims of CLAIMANT arising out of the INCIDENT. CLAIMANT has agreed to accept the sum of FIVE THOUSAND and 00/100 [DOLLARS] ($5,000.00) (“SETTLEMENT AMOUNT”) in compromise and settlement of any and all claims for DAMAGES to him/her,' including any not now known or contemplated, arising out of the aforementioned INCIDENT, which he/she, his/her personal representatives, heirs or assigns now have or may have hereafter against the RELEASED PARTIES, and has further agreed to execute this RELEASE in consideration of said payment. CLAIMANT is responsible for his/her own attorney’s fees and costs in connection with the RELEASE and any legal proceedings associated with the INCIDENT.
3.RELEASE OF CLAIMS
CLAIMANT, for and in consideration of the SETTLEMENT AMOUNT, receipt of which is hereby acknowledged, does hereby remise, release, and forever discharge the RELEASED PARTIES of and from any and all manner of action and actions, cause and causes of action, suits, sums of money, trespasses, agreements, controversies, damages, claims, and demands whatsoever, in law or in equity, which the undersigned ever had, now has, or which he/she or his/her heirs, personal representatives, or assigns hereafter can, shall, or may have against the RELEASED PARTIES for, upon, or by reason of damage to CLAIMANT arising out of the INCIDENT, or for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day and date of these presents. The CLAIMANT declares and represents that the DAMAGES sustained are or may be permanent and progressive in nature and in making this RELEASE, it is understood and agreed that CLAIMANT relies wholly upon the CLAIMANT’S judgment, belief, and knowledge of the nature, extent, effect, and duration of the DAMAGES and liability therefore [sic], and that this RELEASE is given freely without reliance upon any statement or representation of the RELEASED PARTIES or their representatives.

In addition to these paragraphs 1 through 3, the Release contained nine additional paragraphs. The provisions of these additional paragraphs are not pertinent to the determination of the issue before us.

In May 2009, after the Release was signed, Ms. Butler, in her capacity as personal representative of Mr. Bell’s estate, filed an action against Ms. Wakeman for the wrongful death of Mr. Bell. Ms. Wakeman, joined by her husband, filed a counterclaim against Mr. Bell’s estate. Neither U-Haul nor Mr. Bell’s automobile liability insurance carrier, Infinity Insurance Company, defended the counterclaim on behalf of Mr. Bell’s estaté. Ultimately, the wrongful death claim filed on behalf of Mr. Bell’s estate was dismissed. After a bench trial, the Marion County Circuit Court entered a final judgment in favor of Ms. Wakeman and her husband and against Mr. Bell’s estate for $2,162,883.90.

On September 21, 2011, Ms. Butler filed the underlying action in the Hillsborough County Circuit Court against U-Haul and Infinity. In count one of her second complaint, Ms. Butler alleged that U-Haul had breached its contractual duty under the Rental Agreement by failing to provide the estate with a defense to the counterclaim brought by Ms. Wakeman and her husband. In count two, Ms. Butler alleged that U-Haul had breached its duty of good faith by failing to settle the claims made against the estate by Ms. Wakeman and her husband. In counts three, four, and five, Ms. Butler asserted various claims against Infinity.

II. U-HAUL’S MOTION AND THE CIRCUIT COURT’S RULING

U-Haul eventually moved for summary judgment on multiple grounds, including on its defense that the Release executed by Ms. Butler barred the estate’s claims. For reasons not pertinent to our discussion, the circuit court ruled that it would hear U-Haul’s motion for summary judgment only as it related to the defense based on the Release.

After a hearing, the circuit court granted U-Haul’s motion for summary judgment on the ground that the scope of the Release was broad enough to bar Ms. Butler’s claims based on the alleged breach of U-Haul’s contractual duty to provide the estate with a defense to the claims brought by Ms. Wakeman and her husband. The circuit court ruled as follows:

Here, [Ms. Butler] argues that the Release applied only to the wrongful death claim [Ms. Butler] made against [U-Haul] and does not apply to the present suit and the alleged duty to defend. However, the plain language of the Release indicates otherwise....
The Release is extensive and comprehensive. It lasts “forever,” and it bars [Ms. Butler] from bringing “any and all claims ” against [U-Haul] for “any and all manner of action and actions” arising out of the May 3, 2007 collision. Count I of [Ms. Butler’s] Amended Complaint arises out of the May 3, 2007 collision. The Release is clear and unambiguous, and this Court “cannot indulge in construction or interpretation of its plain meaning.” Vermut [v. Gen. Motors Corp., Inc., Cadillac Div.], 773 So.2d [126,] 128 [ (Fla. 4th DCA 2000) (quoting Hurt v. Leatherby Ins. Co., 380 So.2d 432, 433 (Fla.1980)) ]. Accordingly, [U-Haul’s] Motion for Summary Judgment on Count I of [Ms. Butler’s] Second Complaint is hereby GRANTED.

After the entry of the summary judgment, the circuit court entered final judgment in favor of U-Haul on count one, the claim for failure to provide a defense, and on count two, which alleged U-Haul’s bad faith failure to settle the claims against the estate, thereby disposing of the entire case as to U-Haul. The estate’s claims against Infinity remained pending. This appeal followed.

After the circuit court entered summary judgment but before the case was concluded as to U-Haul by the entry of the final judgment, Ms. Butler died. John E. Mox-ley was appointed as the successor personal representative of Mr. Bell’s estate. The circuit court entered an order substituting Mr. Moxley as the party plaintiff in the litigation.

III. FRAMING THE ISSUE

The issue that we are called upon to decide in this case is quite narrow. We need only determine if the Release executed by Ms. Butler in favor of U-Haul was sufficiently broad that it released the estate’s claims based on the alleged breach of U-Haul’s contractual duties to the estate with regard to the claims brought by Ms. Wakeman and her husband. The circuit court’s ruling regarding the scope of a release on a motion for summary judgment is a question of law that we review de novo. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) (citing D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)); Alderman v. BCI Eng’rs & Scientists, Inc., 68 So.3d 396, 399 (Fla. 2d DCA 2011); AXA Equitable Life Ins. Co. v. Gelpi, 12 So.3d 783, 785 (Fla. 3d DCA 2009).

IY. DISCUSSION

In the circuit court, Ms. Butler argued that the scope of the Release was limited to the estate’s wrongful death claim against U-Haul and that the Release was inapplicable to the claims made in the underlying action arising out of U-Haul’s alleged breach of its contractual duty to defend. In rejecting Ms. Butler’s argument for a liinited interpretation of the Release, the circuit court focused on the broad language contained in paragraph 3 of the Release. The circuit concluded that the “extensive and comprehensive” language contained in the Release’s paragraph 3 barred Ms. Butler “from bringing ‘any and all claims’ against [U-Haul] for ‘any and all manner of action and actions’ arising out of the May 3, 2007 collision.”

In considering the effect to be given to the Release, we begin with “the assumption that the released claims are those that were contemplated by the agreement.” Mazzoni Farms, Inc. v. E.I. DuPont de Nemours & Co., 761 So.2d 306, 315 (Fla.2000). We are also guided by the teaching of the Florida Supreme Court that we must give effect to the entire document and not merely consider its provisions in isolation from each other:

[A]s the district court stated below, “ ‘[t]he construction and effect to be accorded a release depends on its purpose, the terms in which it is stated, and the subject matter to which it applies.... In construing a release and determining the intent of the parties, the entire instrument, and not detached sections of it, is to be examined.’ ” Cerniglia [v. Cerniglia ] 655 So.2d [172] at 174 [ (Fla. 3d DCA 1995) ] (quoting Commercial Trading Co. v. Zero Food Storage, Inc., 199 So.2d 109, 112 (Fla. 3d DCA), cert, denied, 204 So.2d 332 (Fla.1967)).

Cerniglia v. Cerniglia, 679 So.2d 1160, 1164 (Fla.1996) (some alterations in original); see also Alderman, 68 So.3d at 401 (citing Commercial Trading Co., 199 So.2d at 112).

In this case, the circuit court erred in its interpretation of the scope of the Release by focusing unduly on the admittedly broad language of paragraph 3 titled, “RELEASE OF CLAIMS.” The circuit court failed to appreciate that the broad language of paragraph 3 is constrained and limited by the definitions and recitals contained elsewhere in the Release. Paragraph 1 of the Release, titled “THE CLAIM,” contains important recitals and critical provisions defining both the “INCIDENT” that is the subject of the Release and the “DAMAGES” arising out of the “INCIDENT” that the parties intended to release and to discharge. The Release defines the “INCIDENT” as the event occurring on or about May 3, 2007, “on Interstate 75 near the intersection of State Road 200 in Ocala, Marion County, Florida, wherein JAKE BELL, JR. was allegedly injured and died as the result [of] an automobile accident.” Paragraph 1 also contains a recital of the estate’s claims arising out of the “INCIDENT,” i.e., that at the time and place described, U-Haul and related parties “were negligent, vicariously liable or are otherwise legally responsible for the injuries and death of JAKE BELL, JR.” Finally, paragraph 1 defines the “DAMAGES” that the estate and Mr. Bell’s survivors claim to have sustained arising out of the “INCIDENT” as “damages allowable under the Florida Wrongful Death Act.”

As the Florida Supreme Court instructs, we must read the broad language of the “RELEASE OF CLAIMS” in paragraph 3 in conjunction with the much more restrictive definitions and recitals contained in paragraph 1 concerning “THE CLAIM.” So read, one must conclude that the parties’ intent as reflected in the instrument was to release only the claims of the estate and the survivors for the wrongful death of Mr. Bell arising out of the collision on May 3, 2007. The definitions and the recitals in paragraph 1 do not suggest that the parties also intended to cause the release of an entirely separate contractual duty that U-Haul might then have or become obligated for in the future to provide a defense to the estate in accordance with the Rental Agreement. Indeed, when Ms. Butler executed the Release in February 2009, U-Haul could not have had a contractual duty to provide a defense that was presently enforceable. Ms. Wakeman and her husband did not file an action against the estate until after the Release was executed. When Ms. Butler executed the Release, U-Haul’s alleged contractual duty to provide a defense had not even arisen. U-Haul could not be expected to provide Ms. Butler with a defense for a claim that was yet to be filed.

In paragraph 1 of the Release, the parties took care to limit the scope of the Release by defining the “INCIDENT” and the “DAMAGES” that were its subject. The parties were also careful to include a recital that Ms. Butler’s claims arose out of her claim that U-Haul and the other parties being released “were negligent, vicariously liable or are otherwise legally responsible for the injuries and death of JAKE BELL, Jr.” In light of the particularity of the definitions and the recitals in paragraph 1, we think that the parties would have drafted the Release differently if they had intended to cause the release of U-Haul’s contractual duty to provide a defense for an action or actions that might be filed in the future. If that had been their intent, then the parties might have either: (1) defined the incident and the damages that were in their contemplation more broadly to include claims for contractual damages resulting from any future breach by U-Haul of the rental agreement, or (2) included a specific provision in paragraph 3 releasing U-Haul from its alleged separate contractual duty to defend. The parties’ failure to adopt either of these alternatives supports the conclusion that the scope of the Release was limited to damages arising from a claim for the wrongful death of Mr. Bell.

Y. CONCLUSION

The scope of the Release was not broad enough to release U-Haul from the contractual claims asserted in the underlying action. It follows that the circuit court erred in granting the summary judgment and in entering a final judgment in favor of U-Haul. Accordingly, we reverse the order granting the summary judgment and the resultant final judgment. We remand this case to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

ALTENBERND and SILBERMAN, JJ., Concur.

      . Ms. Wakeman and her husband also filed their own action against Ms. Butler in her capacity as the personal representative of Mr. Bell’s estate. In accordance with the parties' stipulation, this action was abated and the claims made by Ms. Wakeman and her husband were tried in connection with their counterclaim to the complaint filed by Ms. Butler. The Release also pre-dated the separate action filed by Ms. Wakeman and her husband.

      . The circuit court did not reach the questions of whether either U-Haul or Infinity was required to provide Mr. Bell's estate with such a defense. We express no opinion on these issues.


author: BLACK, Judge. ALTENBERND, Judge,

text:
    AGROSOURCE, INC., a Delaware corporation, Appellant, v. FLORIDA DEPARTMENT OF CITRUS, a Florida state agency, Appellee.
    No. 2D13-4624.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.

      Lewis J. Conwell and J. Trumon Phillips of DLA Piper LLP (US), Tampa, for Appellant.
    Monterey Campbell, Mark N. Miller, Kristie Hatcher-Bolin, and William Roberts of GrayRobinson, P.A. Lakeland; and Mayanne Downs of GrayRobinson, P.A. Orlando, for Appellee.
   BLACK, Judge.

AgroSource, Inc., appeals the order denying access to twenty-two emails that were the subject of a public records request, asserting that the trial court did not conduct a proper inspection of these documents. We affirm because the trial court’s determination that the responsive emails were exempt from disclosure is supported by competent, substantial evidence. See Bryan v. Butterworth, 692 So.2d 878, 881 (Fla.1997) (holding that where “the record shows that competent substantial evidence supports the trial court’s findings” that the documents were exempt from disclosure, said findings will not be “second guess[ed]”). The trial court considered the testimony of the authoring attorney and performed an in camera inspection of the documents, and there is no indication from the record that the trial court abused its discretion in concluding that the responsive emails were exempt from disclosure. See id.

MORRIS, J., Concurs.

ALTENBERND, J., Concurs in part and dissents in part with opinion.

ALTENBERND, Judge,

Concurring in part and dissenting in part.

This is an appeal from an order denying access to twenty-two emails that were the subject of a public records request. AI-though after a de novo review I agree that all of the content within the bodies of these emails is exempt from disclosure as material prepared by an agency attorney in anticipation of imminent civil litigation, see § 119.071(l)(d)(l), Fla. Stat. (2012), I am unconvinced that some of the attachments to the emails are exempt. See § 119.07(l)(d), Fla. Stat. (2012) (“A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.”). I write primarily to comment on the Appellant’s argument that the trial court did not do a proper review of the documents and to disclose my confusion about our standard of review in this case.

AgroSource, Inc. (AgroSource), and the Florida Department of Citrus (the Department) have had a contractual relationship for several years. AgroSource has been attempting to develop a chemical that would cause ripe citrus to fall from trees, thereby making it easier and more economical to harvest the fruit. The Department has expended substantial funds on this project. The chemical apparently showed initial promise but ultimately had environmental side effects. As a result, the relationship between AgroSource and the Department soured. By 2012, litigation seemed likely.

In the latter half of 2012 and the first few months of 2013, the Department’s attorney sent a series of emails to persons within the Department concerning this dispute. Thereafter, AgroSource filed a broad public records request and the Department provided many documents. The Department declined to provide the emails on the ground that these documents were prepared by an agency attorney in anticipation of imminent civil litigation. See § 119.071(l)(d). AgroSource then filed a two-count complaint, which included a count titled “Civil Action to Enforce Public Records Act.”

The trial court conducted a hearing at which the Department’s attorney testified. The emails in contention had been filed under seal with the trial court immediately before the hearing and thus had not been reviewed by the trial court prior to the hearing. Because the documents were filed under seal, the Department’s attorney did not discuss the details of the emails and did not explain individually why the items attached to those emails were exempt. He did, however, testify that in his opinion all of the responsive emails were exempt because they were prepared in anticipation of litigation and contained his “mental impressions, legal theories, and legal conclusions, and legal strategies.” Without any access to the emails, AgroSource’s attorneys understandably were at a disadvantage when cross-examining the attorney.

Counsel for both parties recognized that the trial court would need to conduct an in camera inspection, see § 119.07(l)(g), and at the end of the hearing the trial court took the matter under advisement. Thereafter, the trial judge issued a several-page order in which he indicated that he had conducted an in camera review of the twenty-two email records. In the order, the trial court found that one of the emails was not responsive to AgroSource’s public records request and that the remaining emails were exempt under section 119.071(l)(d). The order does not make individual findings as to the separate emails and attachments. The order concluded by denying AgroSource access to the documents.

On appeal, AgroSource argues that the trial judge did not make a proper inspection of these documents. AgroSource, of course, has no actual knowledge about the judge’s in camera inspection of the documents. In light of the judge’s decision, he could not reveal more than the fact that he had conducted the inspection. Accordingly, AgroSource is not arguing that the trial court made a specific error; it is arguing that in our own in camera inspection, it hopes that we will discover that the trial court committed an error. Thus, Agro-Source’s argument in this appeal turns on this court’s conducting a de novo in camera inspection and discovering that the trial court committed an error.

I should emphasize at this point that I have total confidence this experienced circuit court judge conducted a full and fair review of these emails and that he made his decision with care and in utmost good faith. A judge presiding in a court of record is always challenged by the secret nature of an in camera inspection. It is a time when a judge, as a sworn constitutional officer, takes his or her responsibility to fulfill the rule of law with the greatest of care.

It would have made this court’s review easier if the trial court could have made individualized findings as to each email and attachment. But the secret nature of the documents would have caused such findings to be written in the most conelusory of language. Thus, I conclude the trial court did not err in stating the single conclusion that twenty-one of these emails fit within the exemption without further elaborating on the factual basis for that decision.

Our standard of review, which could be outcome determinative, is unclear. There are public records cases that invoke the de novo standard of review when the issue appears to be a question of law. State v. City of Clearwater, 863 So.2d 149, 151 (Fla.2003); Butler v. City of Hallandale Beach, 68 So.3d 278, 280 (Fla. 4th DCA 2011). AgroSource asks this court to apply the de novo standard.

The Department admits that the issue of whether a document is a public record is a question of law for de novo review. But the Department argues that once it is determined that a document is a public record, whether that public record is exempt under the litigation exemption is a matter that must be established in the trial court by competent, substantial evidence. The Department contends that if the exemption is established by such evidence, the appellate court cannot “second guess” the trial court. See Bryan, 692 So.2d at 881 (involving the denial of a death-penalty defendant’s request for the disclosure of records in the possession of the State) (citing Orme v. State, 677 So.2d 258, 262 (Fla.1996)). Applying this analysis, the standard of review is essentially abuse of discretion. See, e.g., Chavez v. State, 132 So.3d 826 (Fla.2014) (involving the denial of a death-penalty defendant’s request for public records filed pursuant to Florida Rule of Criminal Procedure 3.852). Under this standard of review, the appellate court would examine the transcript of the hearing, but it would not need to do an independent, de novo review of each document.

The majority’s affirmance in this case is based on this Bryan standard of review. Because the lawyer testified that his emails were in anticipation of litigation and the trial court accepted that testimony, the majority will not “second guess” the trial court’s review of the records.

I have applied a full de novo standard of review. While I have given deference to the opinion of the Department’s attorney that his emails are exempt under section 119.071(l)(d), and I do not review that testimony for any issue of credibility, I believe it is incumbent on this court to review all of these records to make our own separate determination as to whether the documents in their entirety fall within the anticipation-of-imminent-litigation exemption.

Although “anticipation of imminent civil ... litigation” has a factual component, determining whether the content of each document entirely reflects “a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency” is a mixed issue with a major legal component. § 119.071(l)(d)(l). It can and should be reviewed de novo.

In this case there really is no factual question as to whether the lawyer reasonably anticipated imminent litigation. He did and he was correct to do so. Given the undisputed, but secret, content of these emails and the strong public policies supporting open government in Florida, I am convinced that both the trial court and this court can and should independently examine the documents to determine whether they are entirely exempt. Such a review by a district court is little different from the “second guessing” that we perform when conducting a de novo review of an order granting summary judgment on a claim of negligence.

The “second guess” prohibition was established in the context of collateral review of death penalty cases, which are a common source of litigation over this exemption. I do not deny this large and consistent body of law. But this is perhaps another example of death penalty cases being different. The type of documents sought in death penalty cases, the nature of collateral review, and the supreme court’s involvement in all steps toward the imposition of the death penalty justify giving the trial court more discretion in the production of the public records involved in those cases. I am not convinced that the deference shown to the trial court’s determination in a death penalty collateral review should apply in the context of public records sought prior to the filing of civil litigation over a large public contract.

Section 119.07(l)(d) places the obligation to redact the part of a record that is exempt upon the person in custody of the public record. When an agency declines to produce the entirety of a document, the member of the public who requests the document has no ability to make any specific argument that the document should be produced in part. It seems to me that when public records are kept inside the proverbial black box, the trial court’s review should include a determination of whether the documents could be redacted and produced in part. In this case, which may be a matter of first impression, I believe that many of the email attachments can be severed from the email. At least some of the attachments in this case appear to me to be documents that could be produced separately without revealing any litigation theory or strategy.

Accordingly, while I would affirm as to the majority of these documents, I would either remand to the trial court to perform a redaction analysis of these emails and their attachments or I would perform that task de novo in this court.

      . The first email predated the time frame of AgroSource’s request, and the trial court found that email to be nonresponsive to the request.

      . Because this court affirms the order on appeal, we likewise cannot disclose information about the content of the sealed records.


author: KELLY, Judge.

text:
    Diana AYRA, Appellant, v. Osvaldo AYRA, Appellee.
    No. 2D13-262.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.

      Lorena L. Kiely, Tampa, for Appellant.
    Allison M. Perry of Florida Appeals & Mediations, P.A., Tampa, for Appellee.
   KELLY, Judge.

Diana Ayra (the Former Wife) challenges the amended final judgment that dissolved her marriage to Osvaldo Ayra (the Former Husband). On appeal, she argues that the trial court abused its discretion by (1) failing to award her nominal permanent alimony; (2) failing to order the Former Husband to maintain medical and dental insurance for the minor child; (3) failing to allocate the child’s uncovered medical expenses; and (4) failing to require the Former Husband to pay her attorney’s fees and costs. We find merit only in the Former Wife’s contentions regarding alimony and allocation of the child’s uncovered medical expenses and therefore reverse. In all' other respects, we affirm the amended final judgment without discussion.

The parties’ marriage lasted twenty years. This is a long-term marriage. See § 61.08(4), Fla. Stat. (2010) (defining long-term marriage as “having a duration of seventeen years or greater”); see also Grill v. Grill, 123 So.3d 683, 683 (Fla. 2d DCA 2013) (same). In the context of a long-term marriage, there is an initial presumption in favor of permanent periodic alimony. Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008). In determining alimony, “[t]he primary factors for the trial court to consider are the needs of one spouse and the ability of the other spouse to pay.” Id. (citing Hann v. Hann, 629 So.2d 918, 920 (Fla. 2d DCA 1993)). In determining need, the trial court is obligated to consider the factors in section 61.08(2). A trial court’s decision on whether permanent, periodic alimony is appropriate is subject to an abuse of discretion standard of review. Murray v. Murray, 598 So.2d 310, 312 (Fla. 2d DCA 1992).

In considering the Former Wife’s need for alimony, the trial court stated, in part, that the Former Wife had the potential to earn an additional $5000 per month as a police officer. However, that finding is not supported by the record. The testimony at the final hearing did not show that this was a viable option for the Former Wife. Further, the Former Wife’s testimony established that there is a likelihood her medical and housing expenses will increase after the marriage is dissolved. Accordingly, it was error for the trial court to conclude that the Former Wife did not have the need for any alimony.

The long-term duration of the parties’ marriage, coupled with the potential future needs of the Former Wife in the form of rent and medical expenses warrant at least a nominal amount of permanent alimony. See Nourse v. Nourse, 948 So.2d 903, 904 (Fla. 2d DCA 2007) (concluding “that the historic incomes of the parties, the length of the marriage, and the wife’s potential future needs require an award of at least a nominal amount of permanent alimony”). Accordingly, we reverse and remand for the trial court to award at least a nominal amount of alimony per year in order to retain jurisdiction to reconsider alimony in the future.

As for the child’s uncovered medical expenses, the Former Wife argues, and the Former Husband concedes, that the trial court erred because it failed to address this item in the amended final judgment. On remand, the trial court must allocate these expenses in accordance with the parties’ respective shares of the child support obligation. See Zinovoy v. Zinovoy, 50 So.3d 763, 764-65 (Fla. 2d DCA 2010) (holding that any uncovered medical expenses should be allocated in the same percentage as the child support allocation unless the final judgment contains a logical rationale to the contrary).

Affirmed in part, reversed in part, and remanded.

WALLACE and KHOUZAM, JJ., Concur.