author: ORFINGER, J.

text:
    Jacob Alexander WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2023.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Jacob A. Wilkerson appeals his conviction and sentence for lewd or lascivious battery on a fourteen-year-old child. Wilkerson raises several issues on appeal, only one of which merits discussion. Following his conviction, Wilkerson was classified a dangerous sexual felony offender pursuant to section 794.0115(2), Florida Statutes (2012). While he does not challenge that designation, he contends his life sentence, with a mandatory minimum term of twenty-five years imprisonment, is illegal. We agree and reverse for resentenc-ing.

We review the trial court’s interpretation of sentencing statutes de novo. E.g., Paul v. State, 129 So.3d 1058, 1061 (Fla.2013). Legislative intent is the polestar that guides a court’s statutory interpretation. Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). To discern legislative intent, courts look to the statute’s language since the statute’s text primarily determines legislative intent. Anderson v. State, 87 So.3d 774, 777 (Fla.2012); State v. D.C., 114 So.3d 440, 441 (Fla. 5th DCA 2013).

The purpose of section 794.0115 is to provide enhanced sentences for repeat sex offenders such as Wilkerson. Felder v. State, 116 So.3d 605, 606 (Fla. 5th DCA 2013); State v. Mason, 979 So.2d 301, 303 (Fla. 5th DCA 2008). Section 794.0115(2)(e) requires that an individual found to be a dangerous sexual felony offender “be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.” Section 794.0115(6) further provides:

(6) Notwithstanding s. 775.082(3), chapter 958, any other law, or any interpretation or construction thereof, a person subject to sentencing under this section must be sentenced to the mandatory term of imprisonment provided under this section. If the mandatory minimum term of imprisonment imposed under this section exceeds the maximum sentence authorized under s. 775.082, s. 775.084, or chapter 921, the mandatory minimum term of imprisonment under this section must be imposed. If the mandatory minimum term of imprisonment under this section is less than the sentence that could be imposed under s. 775.082, s. 775.084, or chapter 921, the sentence imposed must include the mandatory minimum term of imprisonment under this section.

(Emphasis added).

Here, Wilkerson was convicted under section 800.04(4)(b), a second-degree felony, generally punishable by a term of imprisonment of up to fifteen years. See § 775.082, Fla. Stat. (2012). Section 794.0115(6) provides that when, as here, the mandatory minimum under section 794.0015 (twenty-five years) exceeds the maximum sentence authorized under section 775.082 (fifteen years), the mandatory minimum must be imposed. Thus, while we conclude the trial court was required to impose the twenty-five year minimum sentence, the life sentence was unauthorized.

For these reasons, we affirm Wilkerson’s conviction, but remand for correction of sentence. Since the only lawful sentence that can be imposed under the circumstances is the twenty-five year minimum mandatory prison term required by section 794.0115(6), Wilkerson need not be present at resentencing.

AFFIRMED in part; REVERSED in part; REMANDED for correction of sentence.

TORPY, C.J., and EVANDER, J., concur.

      . The sentencing issue was preserved by the filing of a timely motion under Florida Rule of Criminal Procedure 3.800(b)(2).

      . Section 794.0115(2)(e) was recently amended to require a fifty-year minimum mandatory, but that amendment is not applicable here. Ch. 2014-4, § 4, at 7, Laws of Fla. (effective Oct. 1, 2014).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    N.R., as Parent and Natural Guardian of K.T.O., a Minor., Appellant/Cross-Appellee, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Ezer Ojeda, M.D., Angelina Pera, M.D., Pediatrix Medical Group of Florida, Inc., Osceola Regional Medical Center, Lance Maki, M.D., Tanya Medina, M.D., and J. Rapha Medical, P.A., Appellees/Cross-Appellants.
    Nos. 5D12-4340, 5D12-4401, 5D12-4319.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.

      Rebecca B. Creed and Jessie L. Harrell, of Creed & Gowdy, P.A., Jacksonville, for Appellant/Cross-Appellee.
    J. Stephen Menton, Stephen A. Ecenia, and Craig D. Miller, of Rutledge Ecenia, P.A., Tallahassee, for Appellee, Florida Birth-Related Neurological Injury Compensation Association.
    Robert E. Biasotti and Annette M. Lang, of Biasotti and Associates, St. Pe-tersburg, for Appellee/Cross-Appellant, Osceola Regional Medical Center.
    Bradley P. Blystone, of Marshall, Den-nehey, Warner, Coleman & Goggin, Orlan-
    do, and Joseph S. Justice and Robert D. Henry, of Ringer, Henry, Buckley & Sea-cord, P.A., Orlando, for Appellee/Cross-Appellant, Ezra Ojeda, M.D.
    Kevin T. O’Hara and Gabrielle S. Osborne, of Beytin, McLaughlin, McLaughlin, O’Hara & Bolin, P.A., Altamonte Springs, for Appellee/Cross-Appellant, Lance Maki, M.D.
   ON MOTION FOR REHEARING

PER CURIAM.

The Cross-Appellant, Dr. Ezer Ojeda, has filed a motion for rehearing. We grant rehearing only as to the issue raised in Dr. Ojeda’s cross-appeal. We, therefore, withdraw our prior opinion and substitute the following in its place.

We affirm as to all issues raised by the parties in this appeal, except as to the notice issue raised by Dr. Ojeda in his cross-appeal under section 766.316, Florida Statutes (2011). Dr. Ojeda bases his motion for rehearing on Weeks v. Florida Birth-Related Neurological, 977 So.2d 616 (Fla. 5th DCA 2008), wherein this court specifically held that under section 766.316, “the formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish the notice.” Id. at 618-19. This court further made it clear that “[t]he determination of when this relationship commences is a question of fact” and concluded that “[wjhen the patient first becomes an ‘obstetrical patient’ of the provider and what constitutes a ‘reasonable time’ are issues of fact. As a result, conclusions might vary, even where similar situations are presented.” Id. at 619, 620.

Our analysis of the Order under review does reveal, as correctly stated in Dr. Oje-da’s brief, that the Administrative Law Judge (ALJ) did not make a finding as to when the relationship commenced between N.R. (the patient) and Dr. Ojeda, and this finding is required under Weeks. Therefore, we reverse that part of the Order under review relating to the notice issue raised by Dr. Ojeda in his cross-appeal and remand this case for further proceedings to determine when that relationship was formed. See § 766.309(l)(d), Fla. Stat. (2011) (“The administrative law judge shall make the following determinations based upon all available evidence: ... Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in § 766.316 are satisfied. The administrative law judge has the exclusive jurisdiction to make these factual determinations.”); Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705, 717 n. 18 (Fla.2007) (noting that the 2006 amendment to section 766.309, Florida Statutes, “ ‘clarifies that since July 1,1998, the administrative law judge has had the exclusive jurisdiction to make factual determinations as to whether the notice requirements in s. 766.316, Florida Statutes, are satisfied.’ ” (quoting Ch. 2006-8, § 2, at 194, Laws of Fla.)); see also Fla. Health Seis. Ctr., Inc. v. Div. of Admin. Hearings, 974 So.2d 1096, 1099-1100 (Fla. 2d DCA 2007) (“Because it was the healthcare providers who sought the affirmative application of these provisions, the burden rested on them to show that the statutory requirements were met.” (citing Balino v. Dep’t of Health & Rehabilitative Servs., 348 So.2d 349, 350 (Fla. 1st DCA 1977) (observing that “the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal”))).

Accordingly, we reverse that part of the Order under review relating to Dr. Ojeda and remand this case for further proceedings. On remand, the ALJ should make a specific finding relating to the timing of the formation of the provider-obstetrical patient relationship between N.R. and Dr. Ojeda.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, WALLIS, JJ. and JACOBUS, Senior Judge, concur.

      . As Dr. Ojeda states in pertinent part in his reply brief, "the proper evaluation as to Dr. Ojeda, individually, would have been for the ALJ to ascertain when the provider-obstetrical relationship was established between Dr. Oje-da and N.R. This is mandated by Weeks. While the AU specifically made a finding as to when Dr. Maki formed a professional relationship with N.R., the ALJ did not do so as to Dr. Ojeda.”


text:
    Keith Alan LITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1885.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Keith Alan Little challenges the revocation of his drug offender probation. Little argues that the charging affidavit failed to allege an act that violated the terms of his probation. We agree and reverse.

Little was placed on drug offender probation after pleading guilty to two drug possession charges. He was ordered to comply with, among other things, Special Condition 22, which reads:

22. Other: YOU WILL ENTER, PARTICIPATE AND SUCCESSFULLY COMPLETE PUTNAM COUNTY ADULT DRUG COURT.

Little reviewed each condition of his probation with a probation officer. At drug court orientation, Little received and reviewed the Putnam Adult Drug Court Operation Participant Handbook (“PADCO Handbook”), which contained rules for the successful completion of drug court. Regarding over the counter (OTC) medications, the PADCO Handbook reads:

We encourage you not to resolve ailments and other problems by using medications when possible; nonetheless you may use over the counter medications as needed. Before taking these medications, you must discuss it with your treatment counselor for approval. Do not take medications that contain ... pseudoephedrine ....

(Emphasis added).

Conducting a random search of pseu-doephedrine logs throughout the county, a Drug Court Team member, Captain Joe Wells, found that Little purchased pseu-doephedrine fifteen times over a nine-month period during his probation. When questioned, Little told Captain Wells that he took the drug for a cold. Little’s probation officer filed an affidavit of violation of drug offender probation, which alleged:

FAILURE TO COMPLETE DRUG COURT
Violation of Special Condition (22) of the Order of Drug Offender Probation, by failing to successfully complete Putnam County Adult Drug Court and as grounds for belief that the offender violated his probation, Officer Kevin Manning states that the offender failed to comply with all operating rules, regulations and procedures of the Putnam County Adult Drug Court between 02/29/2012 and 11/22/2012 as evidenced by Putnam County Sheriffs Office ... which shows the offender purchased/possessed Pseudoephedrine fourteen times without permission.

(Emphasis added). Little sought dismissal of the violation of probation (VOP), arguing that possessing pseudoephedrine while participating in drug court, as alleged in the VOP affidavit, did not violate the Drug Court rule against taking medications with pseudoephedrine. The trial court denied the motion to dismiss.

Following a VOP hearing, the trial court found:

I am going to find that Mr. Little has willfully and substantially violated his probation by violating Special Condition 22, which is not following the rules of drug court by taking pseudoephedrine.
You know, Mr. Little has told us — told Captain Wells one thing and told us something else today. And that testimony today just is not credible.
So I’m going to find that he failed to complete — successfully complete drug court and find that he has violated Special Condition 22.

(Emphasis added). Prior to sentencing, the court restated its finding:

I found that you violated Condition 22 of not following the drug court rules by using the pseudoephedrine and by purchasing the pseudoephedrine. I believe that’s made abundantly clear in the written materials and in the directions that are given by the [counselors] and by, you know, drug court representatives, that you may not possess that and the fact that you’ve bought pseudoephed-rine 14 times.

(Emphasis added). The court adjudicated Little guilty, revoked his probation, and sentenced him to prison. Little argues that the charging affidavit did not allege the act that was the basis for the trial court’s revocation of probation or an act that violated Special Condition 22. This is a question of law that we review de novo. E.g., Lawson v. State, 969 So.2d 222, 229 (Fla.2007).

An affidavit of violation of probation “must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence.” Hines v. State, 358 So.2d 183, 185 (Fla.1978). A VOP affidavit need not be as specific as a criminal charging document and may, despite defects, be acceptable so long as the probationer’s “minimal due process rights” are protected. Smart-mays v. State, 901 So.2d 278, 280 (Fla. 5th DCA 2005); see Lawson, 969 So.2d at 235 (upholding revocation based on failure to complete drug program despite regulations that failed to specify required date of completion or maximum number of chances to complete, holding that “[probation orders need not include every possible restriction so long as a reasonable person is put on notice of what conduct will subject him or her to revocation”). However, it is error to revoke probation based on allegations contained in an affidavit that fails to provide the probationer notice of the acts he allegedly violated. Hines, 358 So.2d at 185; see Smartmays, 901 So.2d at 280 (citing Ray v. State, 855 So.2d 1260, 1261 (Fla. 4th DCA 2003)).

The VOP affidavit alleged that Little “purchased/possessed” pseudoephedrine, an act that does not violate Special Condition 22, which only prohibits “taking” an OTC medication containing pseudoephedrine. See, e.g., Bonner v. State, 138 So.3d 1101, 1102 (Fla. 1st DCA 2014) (reversing revocation where affidavit alleged non-existent crime of “LSOA [leaving scene of accident] without giving info more than $50 damage” rather than actual crime of leaving scene of accident with personal injury). By revoking Little’s probation for taking pseudoephedrine, the trial court based the violation on a charge that was not alleged in the affidavit. See, e.g., Garcia v. State, 73 So.3d 823, 823-24 (Fla. 5th DCA 2011) (reversing trial court’s revocation for firearm possession where affidavit alleged different criminal activity). Therefore, we reverse the probation revocation order due to the violation of Little’s due process right to sufficient notice.

REVERSED and REMANDED.

WALLIS and LAMBERT, JJ., concur.


text:
    Scott Allen MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2356.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

In this case, Scott Allen Moore was charged with and convicted of sexual battery, sexual battery of a helpless person and serving alcohol to an underage person.

The record shows that Moore served alcohol to an eighteen-year-old woman staying at his home with his daughter. The woman became helplessly intoxicated. The women testified that she woke during the night to find Moore beside her with his finger in her vagina. She was unable to voice an objection but her stare led Moore to remove his finger. Later, she moved to Moore’s daughter’s bed, but before she fell asleep, Moore rolled her onto her stomach, pulled down her shorts and had vaginal intercourse with her.

The jury, by special interrogatory, found Moore guilty of Count 1, sexual battery of a helpless victim, by having union (not penetration) between his finger and the women’s vagina. The State contends that this does not meet the statutory definition of sexual battery and that this conviction must be reversed. A lesser-included offense, simple battery, was proven and, upon remand, a judgment should be entered for this offense.

Moore also challenges the sexual battery conviction based on having vaginal intercourse with the women, claiming that the court erred in permitting his now-adult daughters to testify that he had abused them until they were thirteen. He claims there were insufficient similarities between the past acts and the instant crimes for the court to admit the Williams rule evidence. We disagree and affirm this conviction.

AFFIRMED in PART; REVERSED in PART and REMANDED for resentencing in accordance with this ruling.

TORPY, C.J., PALMER, J., and HARRIS, C. M., Senior Judge, concur.

      . Williams v. State, 110 So.2d 654, 659 (Fla. 1959)


author: EVANDER, J.

text:
    Timothy Dean FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2830.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.

      James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincenb-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Timothy Fletcher pled no contest to trafficking in four grams or more of oxyco-done (Count I) and possession of drug paraphernalia (Count II), specifically reserving the right to appeal the denial of his motion to dismiss on constitutional speedy trial grounds. The trial court accepted Fletcher’s plea and sentenced him to serve three years’ imprisonment as the minimum mandatory sentence on Count I and twenty-two days’ time served on Count II. On appeal, Fletcher again argues that the State’s post-information delay in bringing him to trial violated his constitutional right to a speedy trial. We disagree.

On March 1, 2010, Fletcher was alleged to have participated in the sale of oxyco-done pills to an undercover law enforcement officer in Osceola County. Five months later, a warrant was issued for Fletcher’s arrest. On November 4, 2010, the State filed an information charging Fletcher with trafficking in oxycodone and possession of drug paraphernalia.

Fletcher was not arrested on the warrant until September 10, 2012, approximately twenty-two months after the filing of the information. A public defender was appointed to represent Fletcher the following day at his initial appearance. However, on October 12, 2012, the public defender withdrew because of a potential conflict and the Office of Regional Conflict Counsel was appointed to represent Fletcher. On November 8, 2012, Fletcher’s counsel filed a notice of appearance, entry of a plea of not guilty, and request for a jury trial.

Trial was scheduled for January 14, 2013. However, at the pretrial conference held on December 18, 2012, Fletcher moved for a continuance of the trial with a waiver of speedy trial. The motion for continuance was granted.

On February 5, 2013, Fletcher filed his motion to dismiss the charges on constitutional speedy trial grounds. At the ensuing evidentiary hearing, Fletcher testified that he had lived continuously at the same residence in Hillsborough County since March 2010, where he had received government benefits. Fletcher did not, however, present evidence as to how his defense would be impaired as a result of the delay in bringing him to trial. The State presented argument, but no evidence, as to its efforts to locate Fletcher subsequent to issuance of the arrest warrant.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. Szembruch v. State, 910 So.2d 372, 375 (Fla. 5th DCA 2005). The guarantee of a speedy trial becomes applicable upon either arrest or filing of the formal charging document, whichever occurs first. Vela v. State, 450 So.2d 305, 306 (Fla. 5th DCA 1984). In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth four factors to be balanced against each other on a case-by-case basis to determine whether a defendant’s right to constitutional speedy trial has been violated. These factors are: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to speedy trial; and (4) prejudice to the defendant caused by the delay. Id.

The first factor, the length of delay, is merely a threshold “triggering mechanism.” The court need not inquire into the other factors unless there has been a delay of such length as to be “presumptively prejudicial.” Id. Here, the length of the delay was presumptively prejudicial. See State v. Joyner, 460 So.2d 584, 585 (Fla. 5th DCA 1984) (delay of twenty months between filing of information and issuance of capias and return of defendant from prison was sufficient to trigger presumption of prejudice).

As to the second element, the trial court correctly found that the State’s delay in ascertaining Fletcher’s whereabouts and returning him for trial was a negligent delay. Although a deliberate delay is to be weighted heavily against the government, a negligent delay is “a more neutral reason” and should be weighted less heavily. Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”).

Balanced against the length of the delay and the reason for the delay was Fletcher’s failure to promptly assert his rights. The trial court correctly observed that Fletcher was represented by counsel for nearly five months before attempting to assert his constitutional right to speedy trial. In Barker; the Court emphasized the need for a defendant to timely assert his right to a speedy trial:

Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

407 U.S. at 531-32, 92 S.Ct. 2182.

The fourth factor, prejudice to the defendant, generally involves consideration of three interests: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Id. Here, the trial court properly concluded that Fletcher had failed to show actual prejudice:

With respect to prejudice to the defendant, the fourth Barker factor, although prejudice is presumed due to the length of the delay, [Fletcher] presented no particularized evidence as to how his defense will be impaired as a result. In this case, [Fletcher] did not suffer oppressive pretrial incarceration as he was not arrested until [September 10, 2012] (and was released on bond on October 1, 2012). [Fletcher] suffered no undue anxiety and concern over the pending charges as he was presumably unaware of their existence prior to his arrest on [September 10, 2012],

We conclude that in its well-written, detailed order, the trial court properly analyzed and applied the balancing test set forth by the United States Supreme Court in Barker.

AFFIRMED.

TORPY, C.J. and COHEN, J., concur.

      . § 893.135(l)(c)l.a., Fla. Stat. (2012).

      . § 893.147(1), Fla. Stat. (2012).


text:
    Mark Christopher ALMEIDA, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4143.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.

      James S. Purdy, Public Defender, and Robert J. Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Mark Almeida appeals the restitution order requiring him to pay $12,500 to the victim, his aunt, as a condition of his probation. He was placed on probation after he entered an open plea of no contest to one count of dealing in stolen property.

Almeida argues that there is insufficient evidence to support the amount of the award. We agree. “It is the burden of the State to prove the amount of loss for restitution purposes by a preponderance of the evidence.” Box v. State, 993 So.2d 135, 136 (Fla. 5th DCA 2008). “Restitution must be proved by substantial competent evidence.” Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005) (citations omitted), approved, 934 So.2d 1226 (Fla.2006). Here, the trial court erred in ordering restitution based upon the victim’s desire for $50 per week for five years. The amount of the award based on this request is unrelated to-the value of the items taken and is wholly unsupported by any evidence presented at the restitution hearing. While Almeida stated he wanted to repay his aunt, it was clear that he objected to her claim as to the lump sum value of the stolen items. His statements that he would do what it took to satisfy both the court and his aunt were not an acquiescence to an unsupported award, as the State erroneously contends.

We conclude that Almeida did not agree to the restitution imposed and, thus, cannot be said to have waived his right to a restitution amount supported by substantial competent evidence. Accordingly, we reverse the order of restitution and remand this case to the trial court for further proceedings to determine the appropriate amount of restitution to be awarded to the victim.

REVERSED and REMANDED.

SAWAYA, ORFINGER, and COHEN, JJ., concur.


text:
    Brian E. SUNBLADE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1099.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    Mike Graves, Public Defender, Tavares and John M. Jackson, Assistant Public Defender, Tavares, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2012-CF-3240-02, in the Circuit Court in and for Lake County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, CJ, SAWAYA and BERGER, JJ., concur.


text:
    Nathaniel REVELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1215.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    Nathaniel Revell, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying in part and granting in part the petitioner’s “Petition for Writ of Habeas Corpus/Motion for Postconviction Relief/Alternative Motion to Correct Illegal Sentence” filed in Case No. 2009-CF-1298, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED. '

COHEN, WALLIS and LAMBERT, JJ., concur.


text:
    Eric HOOKS a/k/a and James Flowers, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1508.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    Robert Wesley, Public Defender, Orlando and Alfred Suarez, Assistant Public Defender, Kissimmee, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2013-CF-003429-A-OS, in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, COHEN and WALLIS, JJ., concur.


text:
    Samuel BUTLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1561.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    Robert Wesley, Public Defender, Orlando and, Steven S. Graves, Assistant Public Defender, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 12CF-013615, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON and COHEN, JJ., concur.


text:
    Eddie Lee DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1611.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    Eddie Lee Daniels, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Eddie Lee Daniels, seeks review of the trial court’s denial of his motion for reduction or modification of sentence brought pursuant to Florida Rule of Criminal Procedure 3.800(c). Because the ruling on this motion is not subject to review on appeal, we dismiss. Lee v. State, 108 So.3d 718 (Fla. 5th DCA 2013); Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

APPEAL DISMISSED.

TORPY, C.J, SAWAYA and LAMBERT, JJ., concur.

      . The trial judge, in her order, inadvertently advised appellant that if he wished to appeal, he had to do so within thirty days of the date of the order.


text:
    Steve WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D14-730.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2014.
    Steven Williams, Jr., Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the denial of Steve Williams, Jr.’s untimely and successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, as the order does not adjudicate Williams’s motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853, we do not consider that issue. Williams’s rule 3.85B motion has been pending for nearly one year. The trial court should consider that motion at its earliest convenience.

AFFIRMED.

SAWAYA, ORFINGER and BERGER, JJ., concur.


text:
    Joshua BLANKENSHIP, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0812.
    District Court of Appeal of Florida, First District.
    July 25, 2014.
    Joshua Blankenship, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joshua Blankenship appeals an order denying his motion for an additional 337 days jail credit related to a conviction and 12-month jail sentence with credit for 51 days. According to his argument, when the arrest warrant in this case was issued, he was in the custody of the Department of Corrections (DOC) serving a sentence in an unrelated case. The warrant was not immediately executed. Rather, he was arrested by the Jacksonville Sheriffs Office months later in the DOC parking lot upon his release from DOC’s custody on August 23, 2013. Mr. Blankenship asserts that he subsequently entered a plea in this case on October 16, 2013, and received the above-described county jail sentence.

In denying Mr. Blankenship’s motion for an additional 337 days jail credit, the trial court found that Mr. Blankenship “was awarded the proper amount of jail time credit for time served, 51 days.” We affirm the trial court’s conclusion that Mr. Blankenship is not due credit for time served while in DOC’s custody. See Gethers v. State, 838 So.2d 504 (Fla.2003); Gregg v. State, 43 So.3d 818 (Fla. 1st DCA 2010). But it appears that Mr. Blankenship is entitled to one additional day’s credit — 52 days instead of 51 — for the time spent in jail between August 26, 2013, and October 16, 2013. The State of Florida apparently agrees. Citing Florida Rule of Judicial Administration 2.514(a), it stated in a response to this court that: “it appears, based on the facts asserted by Appellant, that he would be entitled to 52 days of time served rather than the 51 days awarded by the trial court.”

We recognize that there may be facts not present in the record on appeal which may have informed the trial court’s decision to grant only 51 days credit to Mr. Blankenship. We thus reverse and remand this case for the trial court to attach the portion of the record which refutes Appellant’s entitlement to 52 days credit; to resentence Mr. Blankenship with credit for 52 days of time served; or for other appropriate proceedings consistent with this opinion. See Waye v. State, 114 So.3d 350, 351 (Fla. 3d DCA 2013) (remanding because Florida Rule of Appellate Procedure 9.141(b)(2)(D) requires the appellate record to “show[] conclusively that the appellant is entitled to no relief’).

REVERSED IN PART AND REMANDED.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


author: MAKAR, J.

text:
    Kaitlyn HARRELL, a minor, individually and through her natural parents and guardians, Joy D. Harrell and Greg A. Harrell, husband and wife, and Joy D. Harrell and Greg Harrell, individually, Appellants, v. STATE of Florida, Agency for Health Care Administration, et. al., Appellee.
    No. 1D12-5597.
    District Court of Appeal of Florida, First District.
    July 28, 2014.

      Floyd B. Faglie of Staunton & Faglie, P.L., Monticello, for Appellant.
    Adam J. Stallard of Agency for Health Care Administration, Tallahassee, for Ap-pellee.
   MAKAR, J.

Appellants, Joy D. Harrell and Greg Harrell, appeal an order of the trial court determining that the Agency for Health Care Administration (AHCA) is entitled to the full amount of its Medicaid lien from the personal injury settlement the Harrells entered on behalf of their daughter, Kait-lyn Harrell. For the reasons that follow, we reverse and remand.

In 2002, Kaitlyn was deprived of oxygen during the birthing process and left with catastrophic injuries, including mental retardation, cerebral palsy, and quadriplegia. The Harrells sued the hospital for damages, eventually accepting a confidential settlement. Florida’s Medicaid program, administered through AHCA, paid medical expenses for Kaitlyn’s care in the amount of $360,741.48, for which AHCA asserted a lien in the full amount from the settlement proceeds. The Harrells filed a petition to determine the amount of the Medicaid lien, specifically arguing that the formula in section 409.910(ll)(f), Florida Statutes, used to determine the amount of the State’s recovery had been “overruled” by the United States Supreme Court in Arkansas Department of Health & Human Services v. Ahlbom, 547 U.S. 268, 292, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), which held that the federal anti-lien provision affirmatively barred states from asserting a lien on a settlement in excess of the medical expenses. They argued that because the past medical expenses they recovered were less than the lien asserted by AHCA, it could only recover its proportionate share. Relying in part on the decision in Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010), AHCA opposed the petition, arguing that use of the statutory formula was mandatory, and under the formula, it was entitled to full satisfaction of its lien. At the hearing on the petition, the trial court agreed with AHCA, concluding that “at this juncture at least, this court is obligated to render a decision in favor of [AHCA] for the full amount of its lien.”

At the time of the hearing, the trial court acknowledged that the United States Supreme Court had granted review of a case similar to the one before it: Wos v. E.M.A., — U.S.—, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013). The Supreme Court in Wos subsequently held that North Carolina’s statutes, which established a set proportion (one-third) as the amount of the state’s reclamation from a beneficiary’s tort recovery, was pre-empted by the Medicaid Act to the extent they required payment beyond that shown to be for medical expenses. Id. at 1399 (“An irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical expenses.”).

The decision in Wos has undermined the reasoning of the decisions that AHCA and the trial court have previously relied upon, so much so that three of five district courts in Florida have, when presented with the issue of whether section 409.910(ll)(f) has been preempted, uniformly changed course by issuing opinions consistent with Wos. See, e.g., Ag. for Health Care Admin, v. Riley, 119 So.3d 514 (Fla. 2d DCA 2018) (applying Wos, abrogating Russell, and expressly adopting the holding in Roberts v. Albertson’s Inc., 119 So.3d 457 (Fla. 4th DCA 2012)); see also Dillard v. Ag. for Health Care Admin., 127 So.3d 820 (Fla. 2d DCA 2013) (holding that recipient entitled to present evidence to rebut amount of claimed Medicaid lien); Davis v. Roberts, 130 So.3d 264, 269 (Fla. 5th DCA 2013) (holding that statutory formula in section 409.910(ll)(f) is not mandatory; parents of Medicaid recipient child were entitled to opportunity to demonstrate AHCA’s lien exceeded portion of settlement allocated to medical expenses); Ag. for Health Care Admin, v. Williams, 127 So.3d 854 (Fla. 4th DCA 2013) (holding similarly). As the Fifth District recently noted, “Ahlbom and Wos make clear that section 409.910(ll)(f) is preempted by the federal Medicaid statute’s anti-lien provision to the extent it creates an irrebuttable presumption and permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses.” Davis, 130 So.3d at 270.

The Harrells urge that we fall in line with these decisions, which is warranted because our district’s jurisprudence is outdated in light of the change that Wos has wrought. As an example, in Storey ex rel. Storey v. Hickcox, 44 So.3d 600 (Fla. 1st DCA 2010), we specifically relied upon Russell to affirm, in a per curiam decision, the trial court’s denial of a motion for equitable distribution. But Russell is no longer valid, the Second District forswearing its continued applicability. See Riley, 119 So.3d at 516. Because Wos has altered the Medicaid reimbursement field, we must recede from Hickcox, and we decide expressly to adopt the holding of Riley (as adopted from Albertson’s Inc.). Riley, 119 So.3d at 516. That is, we now hold that a plaintiff must be given the opportunity to seek reduction of the amount of a Medicaid lien established by the statutory formula outlined in section 409.910(ll)(f), by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. When such evidence is introduced, a trial court must consider it in making a determination on whether AHCA’s lien amount should be adjusted to be consistent with federal law.

At the time the trial court issued its ruling in this case, it could not apply this new legal principle, concluding instead that it was bound to follow the statutory formula at issue and could not consider the Harrells’s evidence. On remand, the trial court may consider evidence in the record from the prior hearing and, as appropriate, any additional relevant evidence in determining the appropriate amount of medical evidence subject to the lien. See Riley, 119 So.3d at 516.

REVERSED and REMANDED.

RAY and SWANSON, JJ., concur.

      . Because section 409.910 was substantially amended, effective July 1, 2013, to provide a mechanism for the hearings envisioned by Wos to challenge the presumptive lien amount, see § 409.910(17)(b)-(e), Fla. Stat. (2013), much of the debate regarding the continued viability of the prior case law is now largely academic.


author: WALLIS, J.

text:
    E.N., Father of M.N. & M.N., Children, Appellant, v. Y.W., Custodian, and Guardian ad Litem Program, Appellees.
    No. 5D14-1017.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2014.
    Allan Campbell, Lake Mary, for Appellant.
    Laura E. Lawson of Guardian ad Litem Program, Sanford, for Appellee, Guardian ad Litem.
    No Appearance for Appellee, Y.W.
   WALLIS, J.

E.N. appeals a non-final order denying his request to remove his children from their permanent guardian and place them with another caregiver. We treat this appeal as a Petition for Writ of Certiorari and dismiss.

This case comes to us following the trial court’s adjudication of the children as dependent and their placement in a permanent guardianship with E.N.’s paternal cousin. The trial court retained jurisdiction. The trial court did not terminate E.N.’s parental rights. E.N. filed an emergency motion to change the placement of the children to his adult daughter. The trial court entered an order denying the emergency motion, which E.N. appealed as a final order.

Courts have held that “orders entered in dependency proceedings after the entry of the order adjudicating dependency and before an order terminating supervision or jurisdiction are not appealable pursuant to [rule] 9.130(a)(4).” In re M.V.-B., 19 So.3d 381, 385 (Fla. 2d DCA 2009) (dismissing appeal). “When appropriate, such orders may be challenged by common law certio-rari.” Id. Occasionally, we treat the notice of appeal as a petition for writ of certiorari. Guardian ad Litem Program v. R.A., 995 So.2d 1083, 1084 n. 1 (Fla. 5th DCA 2008). “To obtain a writ of certiorari, the petitioner must show (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Dep’t of Child. & Fame. v. B.D., 102 So.3d 707, 709 (Fla. 1st DCA 2012). Here, E.N. has not demonstrated certiorari would provide a possible remedy.

DISMISSED.

SAWAYA and EVANDER, JJ„ concur.


text:
    Alonzo McNEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0746.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Alonzo McNeal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 27, 2012, judgment and sentence in Escambia County Circuit Court case number 2010-CF-004963-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PADOYANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Rhoderick LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1631.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Rhoderick Lewis, II, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 27, 2012, judgments and sentences in Escambia County Circuit Court case numbers 2008-CF-002242-A and 2008-CF-002243-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Brandon DUNNELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2011.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Brandon Dunnell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 13, 2013, judgment and sentence in Duval County Circuit Court case number 16-2013-CF-000120-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Leroy FERGUSON, Sr., Appellant, v. GEO GROUP, INC., etc., Appellee.
    No. 1D14-2373.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Leroy Ferguson, Sr., pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of May 30, 2014, the Court has determined that its jurisdiction was not timely invoked. It appears that appellant’s notice of appeal was not filed with the court within 30 days of rendition of the order on appeal. Appellant’s attempt to file a notice of appeal by serving it on opposing counsel did not invoke the Court’s jurisdiction. Fla. R. App. P. 9.110(b). Accordingly, the appeal is dismissed.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


author: SWANSON, J.

text:
    Manuel Alexandra PERALTA-MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3180.
    District Court of Appeal of Florida, First District.
    July 30, 2014.

      Nancy A. Daniels, Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this appeal from his conviction and sentence for lewd and lascivious molestation of his six-year-old daughter, appellant claims the trial court abused its discretion by (1) admitting collateral crime evidence over appellant’s objection; and (2) denying appellant’s motion for mistrial based on repeated references to inadmissible child hearsay during trial. We affirm the denial of appellant’s motion for mistrial without further discussion. We also affirm the admission of the collateral crime evidence for the reasons that follow.

During the state’s case-in-chief, the victim testified that she and her younger sister, who lived in Kentucky with their mother and stepfather, traveled to Florida to visit their father, appellant, in the summer. During this visit, the victim claimed appellant touched her “middle part” under her pants with his hands and then put his “middle part” inside her.

The state then called the lead detective who had conducted a recorded interview with appellant, which was played for the jury after the trial court gave a limiting instruction. During the interview, appellant claimed that before divorcing the children’s mother, his wife performed oral sex on the victim and asked appellant to do the same while the three of them were taking a shower. Appellant also indicated that while he and his wife were having sex, the victim’s three-year-old sister came into their bedroom, jumped on top of his wife, and started “humping.” Appellant admitted touching the child’s buttocks. Later during the interview, appellant admitted touching the victim’s vagina and the victim touching his penis a few times while he was still married to the children’s mother.

On appeal, appellant claims the trial court abused its discretion in admitting the collateral crime evidence, over his objection, because it was not relevant, similar, or proven by clear and convincing evidence. The collateral crime evidence consisted of appellant’s own statement to law enforcement. Statements made by a defendant either before or after the crime charged, even when they show the commission of separate crimes or wrongs or cast the defendant’s character in a bad light, are admissible if relevant to prove a material fact in issue. Hoefert v. State, 617 So.2d 1046, 1050 (Fla.1993); Swafford v. State, 533 So.2d 270, 275 (Fla.1988). Under section 90.404(2)(b)l., Florida Statutes (2010), “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.”

Contrary to appellant’s assertion, his admission to collateral crimes was relevant, even if it was highly implausible, because it showed appellant’s consciousness of guilt. See Delacruz v. State, 734 So.2d 1116,1122 (Fla. 1st DCA 1999) (observing that defendant’s statement admitting that he could have accidently touched the child’s vagina “a lot of times” when playing with her was admissible as an admission by a party-opponent because a trier-of-fact could conclude that defendant’s explanation that the touchings were accidental was so inherently implausible in light of other circumstances that it demonstrated a consciousness of guilt). Thus, the admissibility of appellant’s statement did not hinge on whether the collateral crimes were proven by clear and convincing evidence.

Although section 90.404(2)(b) “broadly provides that evidence of the defendant’s commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity,” such evidence “remains subject to weighing under section 90.403,” which requires the court to assess “whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice.” McLean v. State, 934 So.2d 1248, 1259 (Fla.2006). In making this determination, the court should consider all relevant factors including (1) the similarity of the prior acts to the act charged regarding the location where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. Id. The court also must ensure that the evidence will not become “a feature of the trial” or “confuse or mislead the jurors” and give an appropriate cautionary instruction if it is requested. Id.

Although there were dissimilarities in the manner in which the collateral and charged acts of molestation were committed, they were all committed in appellant’s home against appellant’s biological daughters when they were young children. Moreover, the collateral acts of molestation were committed approximately two years before the charged offense, which could be explained by the intervening circumstance of appellant’s divorce from the children’s mother. Finally, the trial court provided an appropriate cautionary instruction, and the collateral crime evidence did not become a feature of the trial. Based on the above, the trial court did not abuse its discretion in admitting the collateral crime evidence.

AFFIRMED.

VAN NORTWICK and CLARK, JJ., concur.


text:
    Earl SPENCE, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D14-2761.
    District Court of Appeal of Florida, First District.
    July 31, 2014.
    Earl Spence, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R. Jud. Admin. 2.514(a); Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998).

LEWIS, C.J., BENTON and MARSTILLER, JJ., concur.


text:
    James Burton SOUDER, Appellant, v. Jason George MALONE, Appellee.
    No. 5D13-4054.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.

      Gary L. Simmons, New Smyrna Beach, for Appellant.
    Joseph C. Shoemaker, of Bogin, Munns, & Munns, P.A., Leesburg, for Appellee.
   EVANDER, J.

James Souder appeals a final order striking his claims against the estate of Robina Malone. Because Souder’s claims were untimely filed, we affirm.

Robina Malone died testate on April 25, 2011. Her son, Jason Malone, filed a petition for administration on June 20, 2011, and was appointed personal representative of the estate eight days later. In accordance with section 733.2121(1) and (2), Florida Statutes (2011), a notice to creditors was published with the first publication date being July 10, 2011. However, Souder was not served with a copy of the notice to creditors.

Souder filed four separate claims against the estate. Only his first three claims are at issue in this appeal. Souder’s first two claims were filed on June 6, 2012 and July 20, 2012, respectively. On September 7, 2012, the personal representative filed a motion to strike Souder’s claims as being untimely filed. Souder filed his third claim on March 15, 2013. Significantly, Souder never petitioned the trial court for an extension of time in which to file his claims against the estate.

After a hearing held on October 1, 2013, the probate court entered an order striking Souder’s claims, determining that they were untimely under section 733.702, Florida Statutes (2011). Specifically, the probate court found that the claims were untimely because they were filed after the three-month creditors’ claim period had expired and Souder had failed to petition the court for an extension of time in which to file his claims.

On appeal, Souder contends that the probate court erred in striking his claims before first determining whether he was a known or reasonably ascertainable creditor. Souder observes that section 733.2121(3)(a), Florida Statutes (2011), requires a personal representative to promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable and serve them with a copy of the notice to creditors.

It is Souder’s position that he was a known or reasonably ascertainable creditor and because the personal representative failed to serve him with a copy of the notice to creditors, the creditors’ claim period never began to run. Therefore, according to Souder, his claims were timely because they were filed within the two-year limitation period set forth in section 733.710.

Generally, a probate court’s decision on whether to strike a claim is reviewed for an abuse of discretion. Strulowitz v. Cadle Co., II, 839 So.2d 876, 881 (Fla. 4th DCA 2003). However, to the extent this issue turns on a question of statutory interpretation, a de novo standard of review applies. BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003).

The argument made by Souder finds support in the Fourth District Court of Appeal’s recent decision in Golden v. Jones, 126 So.3d 390 (Fla. 4th DCA 2013), review granted, No. SC13-2536, 2014 WL 3360166 (Fla. July 1, 2014). However, Golden is in conflict with the decisions of two of our other sister courts, Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012) and Morgenthau v. Estate of Andzel, 26 So.3d 628 (Fla. 1st DCA 2009). We agree with the Lubee and Morgenthau decisions and conclude that even assuming Souder was a known or reasonably ascertainable creditor, his claims were time-barred because they were filed beyond the three-month creditors’ claim period set forth in section 733.702(1), and no petition seeking an extension of time in which to file claims was filed.

Section 733.702(1) provides that:
[N]o claim or demand against the decedent’s estate that arose before the death of the decedent ... is binding on the estate ... unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor ....

The Golden court determined that where a known or reasonably ascertainable creditor is not served with a copy of the notice to creditors, that creditor’s claim is timely if filed within two years of the decedent’s death:

If the trial court determines that thé claimant was a known or reasonably ascertainable creditor, then appellant’s claim was timely, as it was filed prior to the earlier of 30 days after service of notice to creditors (which never occurred) or two years after the decedent’s death.

126 So.3d at 393. We believe that a closer examination of subsection (3) of the statute compels a different conclusion. That subsection provides:

Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period. No independent action or declaratory action may be brought upon a claim which was not timely filed unless an extension has been granted by the court. If the personal representative or any other interested person serves on the creditor a notice to file a petition for an extension, the creditor shall be limited to a period of 30 days from the date of service of the notice in which to file a petition for extension.

§ 733.702(3), Fla. Stat. (2011) (emphasis added).

We disagree with Golden’s apparent holding that the remedy for a personal representative’s failure to serve a known or reasonably ascertáinable creditor with a copy of the notice to creditors is a determination that the limitations period set forth in subsection (1) does not begin to run. Subsection (3) expressly provides that a probate court may grant a petition to extend the time in which to file a claim where there was “insufficient notice of the claims period.” Thus, construing' subsections (1) and (3) together, we believe that the Legislature has determined that where a personal representative has failed to serve a copy of the notice to creditors on a known or reasonably ascertainable creditor, that creditor’s remedy is to petition the probate court for an extension of time.

In summary, as stated in Lubee, creditors who are served a copy of the notice to creditors are required to file their claims within thirty days following service. Creditors who are not served a copy of the notice to creditors are required to file their claims within the three-month window following publication or, alternatively, may seek an extension from the probate court pursuant to section 733.702(3) within the two-year window set forth in section 733.710. Lubee, 77 So.3d at 884.

AFFIRMED.

TORPY, C.J. and COHEN, J., concur.

      . Subsections (1) and (2) of section 733.2121 state:
      (1) Unless creditors’ claims are otherwise barred by s.733.710, the personal representative shall promptly publish a notice to creditors. The notice shall contain the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, the name and address of the personal representative, the name and address of the personal representative's attorney, and the date of first publication. The notice shall state that creditors must file claims against the estate with the court during the time periods set forth in s. 733.702, orbe forever barred.
      (2) Publication shall be once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.

        . See § 733.710, Fla. Stat. (2011). "Limitations on claims against estates.”


author: LAWSON, J.

text:
    Daniel ROMAN and Noemi Roman, Appellants, v. WELLS FARGO BANK, Appellee.
    No. 5D13-2479.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.

      Monique M. Sadarangani and Oded Chayoun of Advocate Law Groups of Florida, P.A., Miami Lakes, for Appellants.
    Michael K. Winston, MaryEllen M. Farrell and Dean A. Morande, of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.
   LAWSON, J.

Daniel and Noemi Roman appeal from a summary final judgment of foreclosure in favor of Wells Fargo Bank. We affirm in all respects and write only to address the Romans’ argument that a genuine issue of material fact should have precluded summary judgment given their averment that they did not receive Wells Fargo’s notice of default. Because the express language of the mortgage only required that Wells Fargo mail notice, not that the Romans receive it, we reject the Romans’ argument. Wells Fargo established by affidavit that it mailed notice to the Romans as required by the mortgage. That is the material fact. See, e.g., Jackson v. Wells Fargo Home Mortg., N.A., No. 2120513, — So.3d—, 2014 WL 1098998 (Ala.Civ.App. March 21, 2014) (holding that borrower’s assertion that he or she did not receive notice of default “does not establish a genuine issue of material fact regarding whether [the notice] was sent as required by the mortgage instrument”); Coleman v. BAC Servicing, 104 So.3d 195, 205 (Ala.Civ.App.2012) (rejecting borrower’s argument that genuine issue of material fact created by her denial that she had received notice where the mortgage only required mailing); Deutsche Bank Nat’l Trust Co. v. Seplowitz, No. CV075001419, 2007 WL 2757463, *1 (Sup.Ct.Conn. Sept. 12, 2007) (rejecting borrower’s argument that he never received notice of default and intent to accelerate where no dispute that lender mailed it; noting, “[a]ctual receipt of the notice is unnecessary if the mortgage documents lack such a provision”); Ne. Savings, F.A. v. Scherban, No. 930134439, 1996 WL 571466, *2-3 (Sup.Ct. Conn. Sept. 25, 1996) (same). Griffin v. Bierman, 403 Md. 186, 941 A.2d 475, 481-82 (2008) (finding that mortgage provision deeming mailing as sufficient notice did not violate due process principles); U.S. Bank Nat’l Ass’n v. Martz, No.2013-P-0028, 2013 WL 5635986 (Ohio Ct.App. Oct. 15, 2013) (affirming summary judgment, finding sufficient notice where lender mailed notice and rejecting argument that fact issue created by assertion that borrower did not receive it); U.S. Bank Natl. Assn, as Tr. c/o GMAC Mortg., L.L.C. v. Weber, No. 12AP-107, 2012 WL 6669213 (Ohio Ct.App. Dec. 20, 2012) (“[AJppellee submitted affidavit evidence that the notice of default was mailed to Christopher Weber pursuant to the terms of the note and mortgage. Further, appellants submitted no contrary evidence on this issue.”); Taylor v. Countrywide Home Loans, No. 08-cv-13258, 2010 WL 750215, *4 (E.D.Mich. March 3, 2010) (“Pursuant to the terms of the Mortgage, a notice is ‘deemed to have been given to Borrower when mailed by first class mail ....’ Nothing in the Mortgage requires that the Borrowers (plaintiffs), actually receive notice for notice to have been given.”).

AFFIRMED.

COHEN and LAMBERT, JJ., concur.

      . Specifically, paragraph 15 of the mortgage states that: "Any notice to Borrower in connection with this Security instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.”


text:
    Victoria Q. POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3010.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.
    Christopher J. Anderson, Neptune Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The convictions and sentences imposed for two counts of attempted second degree murder are affirmed without prejudice to the raising of the issue of the adequacy of the factual bases for her no contest pleas in a motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure.

AFFIRMED.

WOLF, VAN NORTWICK, and MARSTILLER, JJ., concur.


text:
    AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. The CHRYSALIS CENTER, INC., Appellee.
    No. 1D14-2944.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.
    Stuart F. Williams, General Counsel, and Tracy Lee George and Cynthia L. Hain, Assistant General Counsels, Tallahassee, for Appellant.
    Katherine E. Giddings, Kristen M. Fiore and Steven A. Grigas, of Akerman LLP, Tallahassee; Eduardo R. LaCasa, Coral Gables, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of July 10, 2014, the Court has determined that the appeal is premature. Dep’t of Children & Families v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999) (“the order does not set the amount of attorney’s fees and is therefore non-final and non-appealable as to attorney’s fees”); Scullin v. City of Pensacola, 667 So.2d 215, 216 (Fla. 1st DCA 1995) (dismissing appeal from order granting a motion for costs and fees that reserved jurisdiction to determine the amounts). Accordingly, the appeal is dismissed for lack of jurisdiction.

THOMAS, CLARK, and SWANSON, JJ., concur.


text:
    Stephen D. WRIGHT and E & M ERS, Inc., Petitioners, v. Lacy BRANCH, Respondent.
    No. 1D14-3044.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.
    Brentt E. Palmer of Young, Bill, Roum-bos & Boles, P.A., Pensacola, for Petitioner, Stephen D. Wright.
    No appearance for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of an order denying his motion to stay discovery. Petitioner has failed to demonstrate that he will be irreparably harmed by the order denying stay as the order does not compel discovery. Accordingly, the petition for writ of certiorari is denied.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.


text:
    George WILLIAMS, IV, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3073.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2014.
    Richard A. Selinger, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on May 7, 2014, in Duval County Circuit Court case number 2013-CF-001151, 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. The court notes that the lower tribunal has appointed the Office of the Public Defender to represent petitioner in the appeal authorized by this opinion.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.


text:
    Willard G. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3426.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2014.
    Nancy A. Daniels, Public Defender, Danielle Jorden, Assistant Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014); Gideon v. State, 1D13-4173, 2014 WL 3566538 (Fla. 1st DCA 2014); Culp v. State, 1D13-1808, 2014 WL 3600434 (Fla. 1st DCA 2014).

BENTON, CLARK, and OSTERHAUS, JJ., concur.


author: THOMAS, J.

text:
    Storm Patrick WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-95.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee; Crystal

      McBee Frusciante of The Frusciante Law Firm, P.A., Jupiter, for Appellant.
    Pamela Jo Bondi, Attorney General, Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant was convicted of Driving Under the Influence-Manslaughter, Felony Driving While License Suspended or Revoked, and Aggravated Fleeing to Elude a Law Enforcement Officer Causing Death. Appellant appeals the lower court’s order summarily denying his Motion for Post-Conviction Relief and to Vacate Judgment and Sentence, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising seven grounds for relief. We affirm the lower court’s summary denial of all but one of Appellant’s claims.

In order to prevail on a claim of ineffective assistance of counsel, Appellant must show that: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A trial court may summarily deny relief without granting an evidentiary hearing if the record conclusively establishes that the defendant is not entitled to relief. See Fla. R. Crim. P. 3.850(d) (allowing trial court to summarily deny relief “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief’).

On appeal, Appellant asserts that the trial court erred in summarily denying Ground One of his postconviction motion, as the record did not conclusively refute his claim that his trial counsel was ineffective for failing to retain and present an independent accident reconstruction expert. We express no opinion as to the merits of Appellant’s claim, but find that Appellant has alleged a facially sufficient claim under Ground One. We agree with Appellant that the record before us does not conclusively refute this claim. Accordingly, we reverse and remand for an evidentiary hearing on this issue. See Brantley v. State, 912 So.2d 342, 343 (Fla. 3d DCA 2005) (reversing summary denial of a rule 3.850 motion and remanding for an evidentiary hearing because “we are obligated to reverse ‘unless the record shows conclusively that the appellant is entitled to no relief ....’”) (emphasis omitted).

AFFIRMED in part, REVERSED in part, and REMANDED for an evidentiary hearing.

LEWIS, C.J., and OSTERHAUS, J„ concur.


text:
    In re Donita Yvette BROOKS.
    No. 2014-B-1102.
    Supreme Court of Louisiana.
    July 9, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, failed to refund the unearned portion of the fee she was paid, and failed to return a client file upon request. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.3, 1.4, 1.5(f), 8.1(c), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Donita Yvette Brooks, Louisiana Bar Roll number 23667, be suspended from the practice of law for one year and one day. All but six months of the suspension shall be deferred, subject to respondent’s successful completion of a one-year period of supervised probation. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: CRAIN, J.

text:
    METRO CITY REDEVELOPMENT COALITION, INC. v. Ralph W. BROCKMAN, Jr. and Will J. Belton d/b/a AAmagin Property Group, L.L.C.
    No. 2013 CA 1615.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2014.

      John W. Williams, Jr., Baker, LA, for Plaintiffs/Appellees, Metro City Redevelopment Coalition, Inc. and Lawrence Triggs, Jr.
    Ernest L. Johnson, Arthur R. Thomas, Baton Rouge, LA, for Defendants/Appellants, AAmagin Property Group, LLC, and Will J. Belton.
    Brady D. King, II Monroe, LA, for Defendants/Appellees, Ralph Brockman, Jr., William Brockman, and Sunquest Properties, Inc.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|2In this quo warranto proceeding, the trial court found that a member of AAmag-in Property Group, L.L.C. properly exercised its right to remove and replace the president of AAmagin. We affirm.

FACTS AND PROCEDURAL HISTORY

AAmagin is in the real estate development business and was formed in 2003 with two members, WJ Belton Company, L.L.C., which has a 51% ownership and voting interest, and Sunquest Properties, Inc., which holds the remaining 49% ownership and voting interest. The member entities’ respective presidents, Will J. Bel-ton and William Brockman, previously developed properties together and decided to form AAmagin to pursue further development projects. The Articles of Organization designated Belton as the manager of the company. Although Sunquest is the minority member by ownership interest, it holds a 67% economic interest in AAmagin pursuant to the company’s Operating Agreement, meaning that Sunquest is entitled to 67% of the company’s profits and bears the same percentage of any losses.

According to William Brockman’s testimony, during the course of AAmagin’s operations, it became apparent that Brockman would be required to execute guarantees on significant loans in order to procure additional financing for the company; but Brockman refused to assume that risk without more protection of Sunquest’s financial interest and control over AAmagin. While the Operating Agreement already granted Sunquest the right to remove Belton as manager pursuant to a provision authorizing that action by a member owning only a 33% interest in the company, Brockman was concerned that if Sunquest exercised that right, then Belton Company, as the majority owner, would simply re-hire Belton as manager. That concern, and Brock-man’s refusal to execute the necessary Isguarantees to facilitate additional financing for the company, led to the preparation and execution of an amendment to the Articles of Organization.

The amendment, captioned “First Amendment to Articles of Organization of AAmagin Property Group, LLC” (Amendment) was executed on November 1, 2006, and provides, in pertinent part, that the manager of AAmagin would be given the title of “President” and that Belton would occupy that position. The Amendment also contains the following provision:

3.1.4 Removal of the President. The Members, by vote of Members holding at least thirty three percent (33%) of the Percentages then held by Members, at any time and from time to time and for any reason, may remove the President then acting. Should the Manager ever be removed pursuant to this Section 3.1.4, then Sunquest Properties, Inc., shall have the sole right to appoint a new President and this new President shall be removed only by unanimous consent of the Members. Should a new President be appointed pursuant to this Section 3.1.4, a Second Amendment to Articles of Incorporation shall be executed and filed with the Louisiana Secretary of State reflecting said change.

The Amendment was signed on behalf of both members, with William Brockman signing on behalf of Sunquest and Belton’s signature appearing on behalf of Belton Company.

Brockman testified that his concerns over control of the company were addressed by the sentence providing that if the manager (president) was removed, Sunquest Properties had the sole right to appoint a new president who could be removed only by unanimous consent of the members. Belton hand-delivered the Amendment to the Louisiana Secretary of State’s Office for filing.

Approximately five years later, the shareholders of Sunquest, consisting of William Brockman and his brother, Ralph W. Brockman, Jr. (Brockman, Jr.), decided to exercise the right to remove Belton as president and replace him with Brockman, Jr. A resolution of AAmagin setting forth that action was adopted and [4executed on behalf of Sunquest by William Brockman on October 31, 2011. Belton, however, refused to vacate his position, and the resulting uncertainty over the control of AAmagin prompted one of its business partners, Metro City Redevelopment Coalition, Inc., to file this quo warranto proceeding against Belton and Brockman, Jr., to determine which of the defendants is president of AAmagin.

The trial court set a date for oral argument and ordered the parties to file all depositions, affidavits and other evidence that they wished the court to consider. In support of his authority, Brockman, Jr., argued that the Amendment vested Sun-quest with the right to remove and replace Belton with a person of its choosing, and Sunquest chose Brockman, Jr., as the new president. Belton countered that the Amendment was defective because the acknowledgments attached to the Amendment were not signed by either William Brockman or Belton. He further asserted that his removal was improper because the action was not approved at a meeting of the members of AAmagin. The parties submitted numerous documents and depositions to the trial court, including but not limited to the organizational documents for AAmagin, including the Amendment and the Operating Agreement, the corporate documents for Sunquest, and the depositions of Belton, William Brockman, and Brockman, Jr.

The trial court issued written reasons for judgment finding in favor of Brockman, Jr., and concluding that the Amendment was controlling and that Section 3.1.4 thereof allowed Sunquest to remove and replace Belton without a meeting of the AAmagin members. A judgment was signed that declared Brockman, Jr., to be the president of AAmagin, and Belton appealed.

LAW AND ANALYSIS

Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent | ¡¡usurpation of office or of powers. La. Code Civ. Pro. art. 3901; In re Interdiction of Vicknair, 01-0902 (La.App. 1 Cir. 6/21/02), 822 So.2d 46, 49-50. When the court finds that a person is holding or claiming office without authority, the judgment shall forbid him to do so. It may declare who is entitled to the office and may direct an election when necessary. La.Code Civ. Pro. art. 3902. The writ of quo warranto, although required to be instituted by petition, is an extraordinary remedy which may be tried summarily. See La.Code Civ. Pro. art. 3781; Clay v. Clay, 389 So.2d 31, 35 (La.1979). The respondent in a quo warranto proceeding has the burden of showing by what authority he or she claims or holds office in the corporation. In re Interdiction of Vick-nair, 822 So.2d at 50. The trial court’s factual findings in a quo warranto proceeding are reviewed on appeal under the manifest error/clearly erroneous standard of review. See In re Interdiction of Vick nair, 822 So.2d at 52; Hale v. Liljeberg, 04-861 (La.App. 5 Cir. 1/25/05), 895 So.2d 28, 32.

Belton assigns five errors to the trial court’s judgment that essentially assert two contentions: (1) the trial court erred in admitting into evidence and assigning any validity to the Amendment because it was not properly acknowledged, and (2) the trial court erred in finding that Sun-quest could remove Belton from his position as president and replace him with Brockman, Jr., without a vote at a meeting of the members of AAmagin.

A. Validity of Amendment

Louisiana Revised Statute 12:1309 permits an amendment to the articles of organization of a limited liability company, but the statute requires that the [ ¿‘articles of amendment be acknowledged by at least one of the persons who signed them or ... be executed by authentic act.” The Amendment contained an acknowledgment for the signature of William Brockman that provides:

STATE OF LOUISIANA

PARISH OF OUACHITA

BE IT KNOWN, that on this 1st day of November, 2006, before me, the undersigned Notary Public, duly commissioned, qualified and sworn in and for the aforesaid Parish and State, personally appeared William G. Brockman, appearing herein as the President of Sun-quest Properties, Inc., who executed the above and foregoing instrument and declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses, that he executed the above and foregoing instrument of his own free will, as his own act and deed, for the uses, purposes, and benefits therein expressed.

The acknowledgment is signed by two witnesses and a notary public, but it is not signed by Brockman, nor is there a signature line for Brockman on the acknowledgment page. A similar acknowledgment is attached for Belton’s signature, and that document provides that Belton appeared on behalf of Belton Company and “declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses, that he executed the above and foregoing instrument of his own free will, as his own act and deed, for the uses, purposes, and benefits therein expressed.” That acknowledgment is also signed by two witnesses and a notary public but is not signed by Belton.

Belton contends that the acknowledgments are insufficient because neither is signed by the party who is acknowledging his signature. The form of a acknowledgment is governed, in part, by Louisiana Revised Statute 35:511, which provides that either “the forms of acknowledgment now in use in this state, or the following, may be used in the case of conveyances or other written instruments, whenever such acknowledgment is required or authorized by law for any purpose!.]” After this introductory language, Section 35:511 sets forth standard provisions that can be used in an acknowledgment that essentially provide that a |7party “appeared” before a notary public and “acknowledged” that he executed an instrument. The statute then addresses the necessary signatures in a parenthetical that provides, “In all cases, acknowledgments taken in this state shall be signed in conformity with the provisions of R.S. 35:12 and either Article 1886 of the Louisiana Civil Code or R.S. 18:3720.” Thus, to determine the necessary signatures on an acknowledgment, Section 35:511 directs the court’s attention to Louisiana Revised Statute 35:12, Louisiana Civil Code article 1836, and Louisiana Revised Statute 13:3720.

Section 35:12 governs the information that a notary public must include in an act and mandates that the notary public insert his name and the names of the witnesses “under their respective signatures.” La. R.S. 35:12A(1). Accordingly, the act reflecting an acknowledgment under Article 1836 must contain the signatures of the notary public and witnesses. Belton does not dispute that the acknowledgments were signed by a notary public and two witnesses. Rather, he challenges the authority of the notary public who executed the acknowledgment for William Brock-man’s signature because the notary’s seal contains “Union Parish,” while the acknowledgment occurred in Ouachita Parish. This argument has no merit. Acknowledgments may be taken before any notary public duly appointed and qualified in Louisiana. La. R.S. 35:3. Furthermore, any person validly appointed a notary public for Union Parish is authorized to exercise all of the functions of a notary public in Ouachita Parish. La. R.S. 35:191G. The subject acknowledgement complies with Louisiana Revised Statute 35:12. | ^Section 35:511 next references Article 1836, which provides, in pertinent part:

An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law. (Emphasis added)

Article 1836 permits a party to acknowledge an instrument by “recognizing” his signature before a court, notary public, or other authorized office. The article does not specifically require that the party sign the instrument that documents the acknowledgment. The language of Article 1836 can be contrasted with the provisions of Louisiana Revised Statute 13:3720, which is also referenced in Section 35:511 and permits an acknowledgment by an “affidavit” of the vendor, grantor or witness to an instrument. To be valid, an affidavit must be signed by the affiant and a notary public. See Gorman v. Miller, 12-0412 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 841 (en banc).

Thus, while Section 13:3720 requires that the acknowledgment by the party or witness be evidenced by a signed document (an affidavit), Article 1836 does not expressly require that the party’s acknowledgment be set forth in an act signed by him, only that he appear before a court, notary public, or other authorized officer and “recogniz[e]” his signature on the original instrument. Although the party’s signature on an act of acknowledgment certainly provides additional evidence of the acknowledgment, the issue before the court is whether such a signature is required for a valid acknowledgment under the particular facts of this case. For the above reasons, we find that it is not.

For the Amendment to satisfy the form requirement of Louisiana Revised Statute 12:1309, it must be acknowledged by at least one person who signed it. The record establishes that the following facts have not been disputed: (1) William | sBrockman appeared before a notary public and two witnesses and “declared and acknowledged” that he signed the Amendment, (2) the notary public and both witnesses signed an instrument evidencing Brockman’s acknowledgment, and (3) Brockman confirmed his signature on the Amendment under oath in his deposition. No party to this proceeding has ever questioned the authenticity of Brockman’s signature on the Amendment. Under these circumstances, we conclude that Brockman sufficiently acknowledged his signature in accordance with Article 1836 and Section 35:511. The Amendment satisfies the form requirement of Section 12:1309 because it was acknowledged by at least one person who signed it. The Amendment is therefore valid and enforceable.

Belton challenges the trial court’s decision to admit the Amendment into evidence and relies on Leibe v. Hebersmith, 39 La.Ann. 1050, 3 So. 283 (1887), as support for his challenge. In Leibe the court held that a mortgage agreement was not admissible because the acknowledgment was made in the presence of only one witness, and the proponent offered no other proof of the signatures on the agreement. Leibe, 39 La.Ann. at 1051-1052, 3 So. at 283-284. The present case is distinguishable because the acknowledgement was made in the presence of two witnesses and a notary public, as required, and Brockman confirmed his signature on the Amendment under oath in his deposition which was admitted into evidence. Furthermore, Belton’s signature was sufficiently established by his admission that his wife was authorized to sign his name on the Amendment. Leibe does not support Belton’s challenge to the Amendment. The trial court did not err in admitting the Amendment into evidence. See Louisiana State Mineral Board v. Abadie, 164 So.2d 159, 174 (La.App. 1 Cir.1964) (an act under private signature |10is inadmissible until the signatures are proved, but the signatures can be proved in open court, in the same manner as any other material and relevant circumstance).

Accordingly, the trial court did not err in admitting the Amendment into evidence and finding that the Amendment controlled the removal and replacement of Belton from his position as president of AAmagin.

B. Necessity of a Meeting

Belton’s remaining assignments of error primarily concern whether the trial court erred in determining that Belton could be removed as manager/president and replaced by Brockman, Jr., without a meeting of the members of AAmagin. Generally, a manager of a limited liability company may be removed by a vote of a majority of the members at a meeting called expressly for that purpose, unless the articles of organization or operating agreement provide otherwise. See La. R.S. 12:1313. Brockman contends, and the trial court agreed, that the articles of organization, by virtue of the Amendment, “provide otherwise” and dispensed with the necessity of a meeting. We find no error in this interpretation of the Amendment.

Section 3.1.4 of the Amendment provides, in pertinent part, that the “Members, by vote of Members holding at least thirty three percent (33%) of the Percentages then held by Members, at any time and from time to time and for any reason, may remove the President then acting.” The Amendment further provides that if the president is removed pursuant to this provision, then “Sunquest Properties, Inc., shall have the sole right to appoint a new President and this new President shall be removed only by unanimous consent of the Members.” Only InSunquest is granted the authority to both remove Belton and appoint his replacement. Thereafter, as provided in the Amendment, the individual appointed by Sunquest can only be removed with Sunquest’s consent because any such removal requires unanimous consent of the Members. Therefore, based upon the language of the Amendment, the members agreed that Sunquest had the unilateral right to remove and permanently replace Belton “at any time and from time to time and for any reason.”

Belton’s argument that a meeting is required to exercise this right ignores both the letter and intent of the Amendment. The parties agreed that the right could be exercised “at any time” by Sunquest. If, as Belton proposes, Sunquest could only exercise the right at a meeting, the Amendment and the right granted therein would be essentially useless. Under the terms of the Operating Agreement, a meeting could only be called by the manager/president, which was Belton, or by the Members holding at least a majority of the ownership interest in the company, which was Belton Company. Consequently, if a meeting was required, Sunquest could exercise its right to permanently remove and replace Belton only if Belton agreed to call a meeting for that purpose. Belton would effectively retain total control over the management of the company. That interpretation is contrary to the terms of the Amendment and the intent of the parties as reflected in the testimony of William Brockman. The trial court did not err in concluding that a meeting was not necessary for Sunquest to exercise its right to remove and replace Belton pursuant to Section 3.1.4 of the Amendment.

Belton’s final argument is that he was not properly removed and replaced because the resolution executed on behalf of Sunquest for that purpose is a nullity in that it was not adopted at a duly called meeting of Sunquest. The evidence established that William Brockman and Brock-man, Jr., are the only shareholders of Sun-quest and also serve as directors for the company, with the only other director | igbeing an employee of Brockman, Jr. Both William Brockman and Brockman, Jr., testified that the subject resolution was adopted after they met and agreed to remove Belton. The by-laws for Sunquest allow a director to call a special meeting, and a majority of the directors at any such meeting constitutes a quorum that may transact business. We find no manifest error in the trial court’s conclusion that the Sunquest resolution granting authority in connection with the removal of Belton as president of AAmagin was properly-adopted. This argument is without merit.

CONCLUSION

The trial court did not err in finding that the Amendment was properly acknowledged by William Brockman in accordance with Louisiana Civil Code article 1836 and Louisiana Revised Statute 35:511, and that Sunquest properly removed and replaced Belton as president of AAmagin. We affirm the June 10, 2013 judgment and assess all costs of the appeal to Will J. Belton.

AFFIRMED.

      . Belton testified that his wife actually signed the instrument for him, but he admitted in his deposition and acknowledged in his appellate brief that she was authorized to sign it on his behalf. Belton also confirmed that he reviewed the Amendment before it was executed, and he did not communicate any objections to Brockman.

      . We note that Louisiana Code of Civil Procedure article 3901 expressly authorizes the quo warranto proceeding to determine one’s authority to hold a "public office, or office in a corporation” and does not expressly permit the proceeding to determine the authority of one holding office in a limited liability company. However, because neither party objected to this action as an unauthorized use of summary proceeding, we pretermit any review of whether the quo warranto proceeding may be utilized to determine the authority of a person holding office in a limited liability company. See La.Code Civ. Pro. arts. 926A(3) and 928A.

      . This provision was incorporated into the statute by 2004 La. Acts No. 455. Prior to that amendment, Section 35:511 provided that the acknowledgment should contain the "signature and title of the officer taking the acknowledgment,” which had been construed by at least two courts as requiring only the signature of the notary public and not the acknowledging party. See Succession of Voorhies v. Voorhies, 03-163 (La.App. 3 Cir. 7/16/03), 853 So.2d 655, 660; First National Bank of Lafayette v. The King Fish, 173 F.Supp. 367, 368 (E.D.1959).

      . The remaining cases cited by Belton hold that an unsigned affidavit is not admissible in support of, or in opposition to, a motion for summary judgment. See Robertson v. Doug Ashy Building Materials, Inc., 10-1552 (La. App. 1 Cir. 10/4/11), 77 So.3d 339, 351 n. 16, writs not considered, 11-2432, 11-2433 (La. 1/13/12), 77 So.3d 973, 974, and writs denied 11-2468, 11-2430 (La. 1/13/12), 77 So.3d 972, 973; Charles v. Faust, 487 So.2d 612, 613 (La.App. 4 Cir.1986). An affidavit must be signed to be valid. Gorman, 136 So.3d 834, 842 (en banc). The present case does not involve an attempt to introduce an unsigned affidavit into evidence.