text:
    Gary W. ROBERTS, Appellant, v. Alfred O. BONATI, M.D.; Gulf Coast Orthopedic Center—Alfred O. Bonati, M.D., P.A.; Medical Development Corporation of Pasco County, d/b/a The Bonati Institute; James S. St. Louis, D.O.; Patricia Shaw-Caillouet; and Allen Caillouet, Appellees.
    Nos. 2D12-1502, 2D12-4731.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.

      Gary W. Roberts and Michael K. Beck of Gary Roberts & Associates, P.A., West Palm Beach, for Appellant.
    Evelyn M. Merchant of Berk, Merchant & Sims, PLC, Coral Gables, and Christopher J. Bailey of Russo Appellate Firm, P.A., Miami, for Appellees Alfred 0. Bona-ti, M.D.; Gulf Coast Orthopedic Center— Alfred 0. Bonati, M.D., P.A.; Medical Development Corporation of Pasco County, d/b/a The Bonati Institute; and James S. St. Louis, D.O.
    No appearance for Appellees Patricia Shaw-Caillouet and Allen Caillouet.
   SILBERMAN, Judge.

In appeal 2D12-1502, attorney Gary W. Roberts seeks review of an order sanctioning him for breaching a confidentiality order by requiring him to pay $23,403.70 to Gulf Coast Orthopedic Center — Alfred 0. Bonati, M.D., P.A. (Gulf Coast Orthopedic). While Roberts’ conduct violated the confidentiality order, we reverse because the trial court did not make a finding that the violation was intentional. In appeal 2D12^731, Roberts seeks review of an order denying his motion for relief from the sanction order. He sought relief based on a subsequent settlement in another case. We affirm because the plain language of the settlement agreement does not release Roberts from his obligation to pay the sanction.

The underlying action is a medical malpractice suit brought in Pasco County by Patricia Shaw-Caillouet and Allen Cail-louet against Dr. Alfred 0. Bonati, Gulf Coast Orthopedic, and Medical Development Corporation of Pasco County d/b/a The Bonati Institute (together the Bonati Parties). During the course of the proceedings, the Bonati Parties obtained a confidentiality order to protect against the disclosure of their financial information outside of the case.

The Bonati Parties subsequently filed a motion for sanctions against the Caillouets’ attorney, Roberts, alleging that he breached the confidentiality order. The Bonati Parties explained that Roberts was co-counsel in a Walton County case in which his client obtained a judgment against Gulf Coast Orthopedic. The judgment creditor had issued a request for production in aid of execution to Gulf Coast Orthopedic, but it had not yet responded. Although the judgment creditor should not have known the identity of Gulf Coast Orthopedic’s financial institutions, he obtained orders for issuance of writ of garnishment on two of those financial institutions. The Bonati Parties noted that those financial institutions had very recently been identified by the Bonati Parties’ account manager in her deposition in the Pasco County case. The Bonati Parties asserted that Roberts must have violated the confidentiality order and disclosed the information discerned at the deposition to co-counsel in the Walton County case.

The trial court conducted a hearing on the motion at which Roberts denied disclosing any information and asserted that the information was probably in the public records. The court determined that the Bonati Parties had only established something that looked suspicious and declined to rule on the motion at that time. The Bonati Parties then issued a notice of production of nonparty in which it requested from co-counsel in the Walton County case all public records used to locate the financial institutions at issue.

When co-counsel was unable to produce any such records, the Bonati Parties filed a second motion for sanctions. The Bonati Parties requested that the court sanction Roberts $23,403.70, which was the amount garnished in the Walton County case. The Bonati Parties attached an affidavit in which their account manager averred that the $23,403.70 had indeed been garnished from the named financial institutions.

At the hearing on the second motion for sanctions, counsel for the Bonati Parties informed the court that Roberts’ co-counsel in the Walton County case had sent him an email admitting that the names of the financial institutions had come from Roberts’ office. Roberts nonetheless persisted with his denial of the disclosure. He also asserted that any such disclosure would not have violated the confidentiality order because the order merely prohibited the disclosure of documents produced in discovery. Roberts did not object to the amount of sanctions requested. The court took the motion under advisement.

The Bonati Parties thereafter obtained a copy of the email that was sent from Roberts’ office to his co-counsel in the Walton County case disclosing the names of the financial institutions. The Bonati Parties scheduled a third hearing on their motion for sanctions at which they again requested that the court sanction Roberts $23,403.70. Roberts initially asserted a work-product objection to the email, but after some discussion he withdrew the objection. Roberts finally admitted that his office sent the email, but he argued that it must have been sent by a paralegal who unwittingly included the confidential information. Roberts also reasserted that his office did not technically violate the confidentiality order because it did not disclose any documents produced in discovery. As to the amount requested, Roberts did not challenge its factual basis but asked the court to award the sanctions to a charitable institution because Gulf Coast Orthopedic was a wealthy company.

The Bonati Parties responded that it was Roberts who compiled the list of banks using information from a discovery deposition. The Bonati Parties noted that the memo was written in the first person from Roberts’ perspective. And the Bona-ti Parties pointed out that Roberts had previously insisted that he had obtained the information from public records.

The trial court ruled as follows:

I think clearly there was a violation of the Court’s order here and I am going to impose a sanction of $23,403.70. Whether it was intentional or not it was still a violation, and frankly the Court is somewhat disturbed by the representations that were made [that] this was from the public record which now seems [sic] to be abandoned.

The order granting the motion for sanction similarly states that “Roberts clearly violated the Confidentiality Order entered on August 9, 2010, in this matter by providing the banking information of [Gulf Coast Orthopedic] to a third party.”

Appeal 2D12-1502

In appeal 2D12-1502, attorney Roberts argues that the court abused its discretion in entering the sanction order. He contends that (1) he did not violate the terms of the confidentiality order, (2) the court did not find that any such violation was intentional, and (3) the sanction amount is excessive, disproportionate, and not based on any actual damages to the Bonati Parties. We find no merit in Roberts’ first and third arguments but conclude that the second requires reversal.

As to Roberts’ first argument, he claims that the confidentiality order did not prohibit him from sharing the Bonati Parties’ financial “information” but only prohibited him from sharing financial “documents” produced during discovery. He points to the court’s ruling in the hearing transcript that “the material that’s produced not be disclosed.” (Emphasis added.) However, the transcript reflects that the issue was maintaining the confidentiality of the financial information. In context, it is evident that the court’s reference to “material” was not intended to limit confidentiality to documents. In fact, Roberts repeatedly assured the court at the hearing on the motion for confidentiality order that he had no intention of sharing the Bonati Parties’ “financial information ” with anyone outside the case. (Emphasis added.)

Roberts’ second argument is that the court was precluded from imposing a monetary sanction without a finding that the violation was willful. This sanction order is a compensatory contempt sanction because the court imposed the monetary sanction for past noncompliance and made the sanction payable to the injured party to compensate it for damages caused by the contumacious conduct. See Johnson v. Bednar, 573 So.2d 822, 824 (Fla.1991), receded from on other grounds by Parisi v. Broward Cnty., 769 So.2d 359, 365 n. 6 (Fla.2000); H.K. Dev., LLC v. Greer, 32 So.3d 178, 185 (Fla. 1st DCA 2010). But a necessary element of civil contempt is the contemnor’s intent to violate a court order. Fla. Ventilated Awning Co. v. Dickson, 67 So.2d 218, 219 (Fla.1953); Northstar Invs. & Dev., Inc. v. Pobaco, Inc., 691 So.2d 565, 566 (Fla. 5th DCA 1997); Paul v. Johnson, 604 So.2d 883, 884 (Fla. 5th DCA 1992).

In this case, the court did not make a finding that the violation of the confidentiality order was intentional. In fact, the court expressly declined to decide the issue, stating, “Whether it was intentional or not it was still a violation.... ” Although the court also stated that it was “somewhat disturbed by the representations that were made [that] this was from the public record,” the court did not conclude that these representations established Roberts’ intent to violate the confidentiality order. Without a finding of intent, the sanction order cannot stand.

Roberts’ third argument is that the sanction amount is excessive, disproportionate, and not based on any actual damages to the Bonati Parties. It is well settled that courts must base the fine imposed as a compensatory contempt sanction on evidence of the injured party’s actual damages. See Parisi, 769 So.2d at 366; Johnson, 573 So.2d at 824; H.K. Dev., 32 So.3d at 185. In this case, the Pasco County court concluded that Gulf Coast Orthopedic suffered a loss of $23,403.70, which was the amount garnished against Gulf Coast Orthopedic’s bank accounts in the Walton County case as a result of the improper disclosure of bank accounts.

The crux of Roberts’ argument is that the Bonati Parties did not prove that his disclosure of the two bank accounts resulted in any actual damages. He maintains that Gulf Coast Orthopedic would have no right to confidentiality in these bank accounts and eventually would have been required to disclose them in response to the request for production in aid of execution in the Walton County case. Thus, he argues that the garnishments actually ben-efitted Gulf Coast Orthopedic because the amount garnished reduced the amount Gulf Coast Orthopedic owed on the judgment in the Walton County case.

Although this argument has persuasive value, we are precluded from granting relief because Roberts did not make this argument to the trial court. See Garcia v. Andonie, 101 So.3d 339, 350 (Fla.2012) (holding that the appellant failed to preserve issues regarding the sufficiency of the record evidence because it did not “seek to refute or contest the uncontra-dicted evidence submitted by the [appel-lees]”); Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010) (holding that, in order for an argument to be preserved for appeal, the aggrieved party must have made a contemporaneous objection raising the specific legal argument he seeks to raise on appeal). Roberts consistently maintained that he did not violate the confidentiality order (though he did not maintain a consistent position as to why). But Roberts never argued that the Bonati parties had not been damaged or that the $23,403.70 the Bonati Parties requested in the second motion for sanctions could not be awarded as a sanction. Nor did he dispute how the requested sanction was computed or argue that it was excessive or not supported by the evidence. Instead, Roberts merely requested that if the court did impose the sanction, the money should go to a charity that needed the money more than the Bonati Parties. Thus, Roberts’ challenge to the amount of the sanction which is being made for the first time on appeal is not cognizable.

Appeal 2D12-4731

After the sanction order was entered in the Pasco County case, Roberts filed a motion for relief from the order based on a settlement agreement from the Walton County ease. In appeal 2D12-4731, Roberts seeks review of the order denying his motion for relief. We conclude that the motion was properly denied because the settlement agreement relates solely to the Walton County case.

In the Walton County case, two entities, Gulf Coast Orthopedic and American Orthopedic Surgeons, Inc., sued a former Gulf Coast Orthopedic employee, Anthony Mork, for breach of a noncompete agreement and improper use and/or disclosure of trade secrets. Mork filed what is referred to as a “cross-complaint” against Gulf Coast Orthopedic. All of Gulf Coast Orthopedic’s claims were either voluntarily dismissed or dismissed by the trial court, and the trial court entered a judgment awarding Mork attorney’s fees and costs against Gulf Coast Orthopedic. But Mork’s cross-complaint remained pending against Gulf Coast Orthopedic, and the remaining counts filed by American Orthopedic against Mork remained pending as well.

The parties subsequently entered into a settlement agreement which required the Bonati Parties to pay $250,000 “[t]o settle the aforesaid controversies between them.” To support his argument for relief from the Pasco County sanction order, Roberts relies on the section of the settlement agreement titled “Releases.” The part of that section obligating the Bonati Parties provides, “In consideration of the settlement payments provided for above, the Bonati Parties, unconditionally and irrevocably release, remise, forgive and forever discharge the Mork Parties and their/its agents, successors, or assigns.” Roberts argues that, as an “agent” of the Mork Parties, he was released from his preexisting obligation to pay Gulf Coast Orthopedic under the sanction order in the Pasco County case. However, the settlement agreement is limited by its terms to obligations that arose under the Walton County case, and the “Releases” section does not expand the scope of the agreement. Accordingly, the trial court did not abuse its discretion in denying Roberts’ motion for relief from the sanction order.

Conclusion

In summary, regarding appeal 2D12-1502 we conclude there was no error in the Pasco County court’s determination that Roberts’ conduct violated the confidentiality order. And we reject Roberts’ challenge to the amount of the sanction because it was not preserved for review. However, we reverse and remand for the court to determine whether Roberts’ conduct was intentional. The court may reimpose the civil contempt sanction on remand if it answers this question in the affirmative. In appeal 2D12-4731, we affirm because the terms of the Walton County settlement do not discharge Roberts from his obligation to pay the sanction in the Pasco County case.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and MORRIS, JJ., Concur.

      . It may be that the garnishment proceedings interrupted payment of other checks drawn on those accounts or caused some other expense or harm to Gulf Coast Orthopedic, but the Bonati Parties did not seek relief on this basis.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Irvin PRESTON, Jr., Petitioner, v. Sheriff David GEE, as Sheriff of Hillsborough County, Florida, Respondent.
    No. 2D12-3125.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.

      Julianne M. Holt, Public Defender, and Joseph Spilatro, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Irvin Preston, Jr., petitioned for a writ of habeas corpus after the circuit court ordered him held without bond pending his trial on criminal charges. We conclude that the order was not supported by adequate proof, and we grant his petition.

Preston was arrested for several offenses, including four counts of armed robbery with a firearm. Armed robbery with a firearm is a first-degree felony punishable by life imprisonment. § 812.13(2)(a), Fla. Stat. (2012). The day after Preston’s arrest, he was taken for his first appearance hearing before a judicial officer, who ordered Preston held without bond pending his trial. This determination was based solely on the judge’s review of the criminal report affidavit (CRA) prepared by a police officer. The court ordered Preston held despite defense counsel’s objections that the State had not moved for pretrial detention or presented witnesses in support of it and that the CRA was an insufficient basis for ordering it.

A petition for writ of habeas corpus is the appropriate vehicle for challenging an order denying pretrial release. See Greenwood v. State, 51 So.3d 1278, 1279 (Fla. 2d DCA 2011) (holding that a petition for writ of habeas corpus is the appropriate way to challenge a trial court’s rulings on conditions of pretrial release); Rosa v. State, 21 So.3d 115, 116 (Fla. 5th DCA 2009).

The Right to Pretrial Release

In Florida, the right of an accused to obtain his or her release pending trial is grounded in article I, section 14, of the Florida Constitution. It states:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

As stated, this provision guarantees every accused the right to pretrial release on reasonable conditions, with two exceptions. First, a person charged with a capital offense or an offense punishable by life imprisonment has no right to pretrial release if the proof of the accused’s guilt is evident or the presumption that he or she committed the crime is great. Second, any accused may be detained if no conditions of release can reasonably protect the community from physical harm to persons, ensure the accused’s presence at trial, or ensure the integrity of the judicial process.

Applicable Procedures

Procedurally, the constitutional right to bail and its qualifications most recently have been effectuated generally by a statute and two rules of criminal procedure and specifically, in regard to persons charged with capital offenses or offenses punishable by life imprisonment, by the supreme court’s decision in State v. Arthur, 390 So.2d 717 (Fla.1980). Preston’s petition for a writ of habeas corpus calls into question the interpretation of those authorities and their proper interplay.

In Arthur, the supreme court held that when seeking to deny pretrial release to an accused charged with a capital offense or one punishable by life imprisonment, the State bears the burden to show that the proof of guilt is evident or the presumption is great. 390 So.2d at 720. Further, and importantly, “[s]imply to present the indictment or information is not sufficient.” Id. Rather, the court wrote,

[t]he state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty.... The state can probably carry this burden by presenting the evidence relied upon by the grand jury or the state attorney in charging the crime. This evidence may be presented in the form of transcripts or affidavits. If, after considering the defendant’s responsive showing, the court finds that the proof is evident or the presumption great, the court then has the discretion to grant or deny bail. On this issue, the burden is on the accused to demonstrate that release on bail is appropriate. It is with regard to this question that consideration of the likelihood that the accused will flee, regardless of the sureties required, becomes appropriate.

Id.

Arthur thus established the proper construct for applying the constitution’s first exception to the right of pretrial release, applicable only when the accused is charged with a capital offense or an offense punishable by life imprisonment. On the other hand, the pertinent statute and rules of procedure appear to be directed to the second, more general, exception to the right of pretrial release, which may be applied regardless of the charge.

Section 907.041, Florida Statutes (2012), is entitled “Pretrial detention and release.” It sets forth a scheme wherein there is a presumption in favor of releasing an accused on nonmonetary conditions unless he or she is charged with a “dangerous crime” as defined in the statute or unless the court determines that monetary conditions are necessary to assure the accused’s presence at trial or other proceedings, to protect the community from the risk of physical harm, or to assure the integrity of the judicial process. As can be seen, the latter criteria essentially parrot the conditions attendant to the general exception to the right of pretrial release set forth in the constitution.

Under the statute, a person charged with a listed dangerous crime enjoys no presumption in favor of pretrial release on nonmonetary conditions. Further, he or she may be denied bail altogether and ordered to be detained pending trial if the court finds “a substantial probability” of the existence of one of seven listed circumstances, all of which relate directly or indirectly to the factors described in the constitution’s general exception to the right of pretrial release, i.e., protecting the community from physical harm, assuring the accused’s presence at trial, and insuring the integrity of the judicial process. When assessing whether there is a substantial probability of one of the seven circumstances, the court may consider the defendant’s behavior patterns, the criteria in section 903.046, Florida Statutes, and any other relevant facts. § 907.041(4)(e). Section 903.046 lists required considerations applicable to bail determinations generally. Among them is “[t]he weight of the evidence against the defendant.” § 903.046(2)(b), Fla. Stat. (2012).

For purposes of the statute, offenses qualifying as dangerous crimes which may warrant pretrial detention are listed in section 907.041(4)(a). Although some of the listed crimes, like homicide, could be capital offenses or punishable by life imprisonment, others are not. For example, number 18 on the list is an “[a]ct of domestic violence as defined in s. 741.28.” Under the referenced statute, domestic violence may include a simple assault or battery. § 741.28(2), Fla. Stat. (2012).

It is apparent, then, that section 907.041 is directed to the second, general, exception to the right of pretrial release set forth in article I, section 14. It does not directly implement the first exception set forth therein and construed by the supreme court in Arthur. Although the statute permits the court to order pretrial detention based in part on an assessment of the weight of the evidence against the accused, it does not require a showing that the proof of guilt is evident or the presumption great, as mandated by the constitution and Arthur in cases involving capital offenses and offenses punishable by life imprisonment. Indeed, the statute makes no reference, as such, to whether the accused is charged with such an offense.

The two relevant rules of criminal procedure also appear to effectuate only the general exception to an accused’s right to pretrial release. Florida Rules of Criminal Procedure 3.131 and 3.132 are interrelated, the former addressing pretrial release and the latter governing pretrial detention.

Rule 3.131 begins with a recitation of an accused’s right to pretrial release and its two broad exceptions, tracking the constitutional provision. It goes on to provide in subsection (b)(1) that at an accused’s first appearance, the court shall conduct a hearing to determine the conditions of pretrial release “[u]nless the state has filed a motion for pretrial detention pursuant to rule 3.132.” In turn, rule 3.132 prescribes a two-step procedure, beginning with the State’s filing of a motion seeking pretrial detention at the accused’s first appearance. Upon the filing of the motion, the court must determine whether there is probable cause to believe that the accused committed the charged offense. If so, he or she may be detained in custody pending the second step in the process, an adversarial final hearing on pretrial detention. At the final hearing, the State must prove beyond a reasonable doubt that pretrial detention is necessary under the criteria set forth in section 907.041. Fla. R. Crim. P. 3.132(c)(1).

This scheme differs from Arthur in four important ways. First, under the rule, the evidence that the accused committed the charged offense is subjected only to a probable cause determination, whereas Arthur requires an evidentiary showing that the proof of guilt is evident or the presumption great. Second, although the rule is vague on this point, it seems to contemplate that this determination may be based solely on the motion for pretrial detention itself, which must “[set] forth with particularity the grounds and the essential facts” on which it is based and “[certify] that the state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion.” Fla. R. Crim. P. 3.132(a). On the other hand, Arthur provides that the accused may make a “responsive showing” on the question whether the proof of guilt is evident or the presumption is great. Further, the certification required in rule 3.132(a) is quite similar to that mandated by Florida Rule of Criminal Procedure 3.140(g), which states that an information must contain the prosecutor’s oath that he or she has received testimony under oath from the material witnesses. Whereas rule 3.132 seems to contemplate that a court may find probable cause and order the defendant detained based on a motion containing the required certification, Arthur held that an information containing a similar certification is insufficient to demonstrate that the proof of guilt is evident and the presumption great. Finally, if the State satisfies its burden on the issue of the weight of the evidence, under Arthur the accused has the burden to demonstrate that pretrial release is appropriate. But under rule 3.132, the burden never shifts away from the State; it must prove the need for pretrial detention beyond a reasonable doubt.

Although Arthur and the rules of criminal procedure provide for differing inquiries and burdens of proof, as a practical matter they are intertwined. Thus, an accused charged with a capital offense or one punishable by life imprisonment nevertheless is entitled to have the question of his or her pretrial release or detention determined under rules 3.1B1 and 3.132 absent an adequate showing by the State under Arthur that the proof of guilt is evident and the presumption great. For its part, when seeking to have the accused detained pretrial, the State may proceed under either of the exceptions to the constitutional right of pretrial release. It may attempt to show that under Arthur its case is sufficient to shift the burden on the appropriateness of pretrial release to the accused, or it may file a motion for pretrial detention under rule 3.132 and undertake the showings required by that rule.

The Instant Case

In Preston’s case, the State did not file a motion for pretrial detention under rule 3.132, nor did the court receive evidence sufficient to demonstrate the need for pretrial detention under that rule and section 907.041. Therefore, we must determine whether Preston’s pretrial detention was permissible under the dictates of Arthur.

As mentioned, Preston was ordered to be detained at his first appearance hearing when, after reviewing the CRA, the court found that the proof of guilt was evident and the presumption great. Preston argues in part that it was improper to detain him on that basis because no indictment or information had been filed against him. Therefore, he contends, he had not yet been “charged” with an offense punishable by death or life imprisonment. We disagree.

If, as Preston maintains, the word “charged” within the meaning of article I, section 14, requires the filing of an indictment or information, this qualification would apply not only to the court’s authority to order the pretrial detention of those charged with capital or life offenses, but also to the right of every accused to obtain pretrial release regardless of the charge. Thus, the constitution provides that “every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.” Under Preston’s construction, no person arrested for an offense would be entitled to release before the State filed an information or indictment. This would lead to the absurdity that an accused would enjoy a greater right to liberty after the filing of an information or indictment than he or she did previously.

Not surprisingly, the rules of criminal procedure promulgated by the supreme court contemplate otherwise. Rule 3.131(b)(2) provides that the court must consider and determine the conditions of pretrial release “at the defendant’s first appearance.” Under Florida Rule of Criminal Procedure 3.130, a first appearance must be afforded within 24 hours of arrest, at which time the court “shall proceed to determine conditions of release pursuant to rule 3.131.” Fla. R. Crim. P. 3.130(a), (d). Moreover, rule 3.131(j) states that “[o]n the filing of either an indictment or information charging the commission of a crime, if the person named therein is not in custody or at large on bail for the offense charged,” the court shall issue a capias for the accused’s arrest. This provision clearly contemplates that the accused either has not been arrested on the charge or has been granted pretrial release following his or her arrest.

Preston also maintains that the first appearance court erred when it sua sponte found that the proof of guilt was evident or the presumption great without conducting an evidentiary hearing and taking testimony. We disagree that the court was required to take testimony. Arthur makes clear that the parties may make their respective showings by submitting affidavits or transcripts of sworn testimony. 390 So.2d at 720. See also Mininni v. Gillum, 477 So.2d 1013, 1014 (Fla. 2d DCA 1985) (observing that under Arthur, a court may determine that proof of guilt was evident or the presumption great on the basis of affidavits); Castro v. State, 914 So.2d 467 (Fla. 5th DCA 2005) (holding that the affidavits of the victim and a witness, along with the live testimony of the investigating officer, were sufficient to establish that the proof of guilt was evident or the presumption great that Castro committed the offense of burglary of a structure with an assault or battery); Kinson v. Carson, 409 So.2d 1212, 1212-13 (Fla. 1st DCA 1982) (holding that State carried its burden of showing that the proof of guilt was evident or the presumption great when it presented the affidavits of the victim and the arresting officer).

That said, the CRA in this case failed to establish that the proof of Preston’s guilt was evident or the presumption great. This court and others have long recognized that the level of proof necessary to meet this test is greater than that necessary to prove a defendant guilty to the exclusion of a reasonable doubt. E.g., Primm v. State, 293 So.2d 725 (Fla. 2d DCA 1974). Arthur potentially muddied this issue when it observed that the State must undertake its burden by presenting evidence that would be “legally sufficient to sustain a jury verdict of guilty.” 390 So.2d at 720. But this was not an issue before the Arthur court. The two questions presented in that case were whether a court has discretion to grant bail even when the proof of the accused’s guilt is evident or the presumption great (yes), and which party has the burden of proof on the issue (the State). When making the latter ruling, the court acknowledged that there was longstanding precedent holding that the accused bore the burden of proof. Id. at 719 (quoting Rigdon v. State, 41 Fla. 308, 26 So. 711, 712 (1899)). The court wrote that “[w]e can no longer ascribe to this procedure” and proceeded to explain why. Id.

In contrast, the AHhur court made no mention of the prior supreme court decisions holding that the “proof of guilt is evident or the presumption is great” standard is more demanding than proof to the exclusion of a reasonable doubt. This had been the law for sixty-four years, Russell v. State, 71 Fla. 236, 71 So. 27 (1916), and it remained unaltered at the time Arthur was decided. See State ex rel. Van Eeghen v. Williams, 87 So.2d 45 (Fla.1956); Deeb v. Gandy, 110 Fla. 283, 148 So. 540 (1933); State ex rel. Gobel v. Chase, 91 Fla. 10, 107 So. 921 (1926). The Arthur court did not indicate that it intended to change this entrenched rule or explain the court’s reason for doing so, and indeed that question was not at issue in the case. In light of this, the observation that the State’s proof must be legally sufficient to sustain a guilty verdict certainly must be treated as dicta. In the years since Arthur was decided, we district courts have done precisely that, and we have continued to apply the Russell standard of proof to bail issues. See Mininni, 477 So.2d at 1015; Bleiweiss v. State, 24 So.3d 1215, 1216 n. 1 (Fla. 4th DCA 2009); Whitehead v. McCampbell, 700 So.2d 135 (Fla. 4th DCA 1997); Kirkland v. Fortune, 661 So.2d 395 (Fla. 1st DCA 1995); State v. Perry, 605 So.2d 94 (Fla. 3d DCA 1992).

The CRA in Preston’s case fell well shy of the Russell standard in terms both of the quantum of its proof and of the competence of its proof. It was signed by a Tampa police officer, who swore that the statements contained in the report were true “to the best of [his] knowledge.” It did not contain the names of the victims or of any other witnesses, nor did it recite any statements attributed to them. The “Tangible Evidence” section of the CRA did indicate the existence of sworn statements recovered by “AFFIANTS” and that their present location was “EVIDENCE.” But the affidavit did not indicate who made the sworn statements, to whom the statements were made, or what was contained in them. No written statements of any kind were attached.

The facts recited in the CRA generally alleged that Preston robbed the victims while in a vehicle of a specific description and bearing a specified license plate number. It did not indicate whether the license number was observed by witnesses to the crime when it was committed or was obtained by the officer (or someone else) thereafter. The affidavit did not state whether Preston’s supposed presence in the vehicle or at the scene of the crime was confirmed by eyewitnesses or whether he was simply alleged to have been present on the basis of some connection to the vehicle, which also was not specified in the affidavit. The CRA stated that Preston was taken into custody, but it did not indicate the circumstances of his arrest or whether he was with the vehicle at the time. These omissions in turn undermined the weight of the one alleged piece of evidence that circumstantially tied the vehicle to the crime, that being the discovery by the “affiants” of the victims’ belongings inside it.

Manifestly, the facts alleged to have constituted the charged crimes were vague, conclusory, and outside the personal knowledge of the officer who signed the CRA. The other facts alleged, relating to Preston’s arrest and the discovery of the victims’ property inside the vehicle, may or may not have been within the officer’s personal knowledge. But even assuming that the officer himself discovered the items in the vehicle, and assuming further that the vehicle was in some way connected to Preston, these circumstances did not meet the quantum of proof necessary to deny Preston’s pretrial release. See State ex rel. Hyde v. Thursby, 184 So.2d 505 (Fla. 1st DCA 1966) (holding that circumstantial evidence of accused’s guilt that did not exclude hypotheses of innocence failed to exceed the “beyond a reasonable doubt” standard, and so was insufficient to deprive him of his right to pretrial release); Nix v. McCallister, 202 So.2d 1 (Fla. 1st DCA 1967) (same).

All in all, the CRA in this case contained little more than a recitation of broad, conclusory allegations by persons unnamed. As such, it was insufficient and incompetent to support a finding that the proof of Preston’s guilt was evident or the presumption great. Confirmation of this can be found in Arthur, which quite clearly stated that “[s]imply to present the indictment or information is not sufficient.” 390 So.2d at 720. When Arthur was decided, as now, an information was required to allege the essential facts constituting the offense charged and to include the prosecutor’s sworn statement “certifying that he or she has received testimony under oath from the material witness or witnesses for the offense.” Fla. R. Crim. P. 3.140(d)(1), (g). Thus, under Arthur, the State cannot meet its burden simply by tendering a sworn statement alleging the elements of a crime based on the sworn testimony of others. At best — and this assumes without knowing that the allegations contained in the CRA were derived from sworn statements of witnesses with personal knowledge — that is all the court relied on when ordering Preston detained without bond.

Because the CRA was insufficient in this instance to support a determination that the proof of guilt is evident or the presumption great that Preston committed the armed robberies, we set aside the first appearance court’s finding in this regard. If it has not already done so, the trial court shall determine appropriate conditions of pretrial release under rule 3.131 or, upon proper motion by the State, conduct the appropriate hearing to determine in accordance with this opinion whether Preston may be detained pursuant to rule 3.132 or Arthur. See Young v. Neumann, 770 So.2d 205 (Fla. 4th DCA 2000).

Petition granted.

WALLACE, J., Concurs.

MORRIS, J., Concurs in result only.

      . Regardless of whether the circuit court has subsequently revisited the question whether Preston should be detained or granted pretrial release, the petition is not moot because the error is capable of repetition but evading review. See Greenwood v. State, 51 So.3d 1278, 1279-80 (Fla. 2d DCA 2011).

      . Preston was also arrested for violating his probation in another felony case, and in all probability he has no bond in that proceeding.

      . The Arthur court interpreted article I, section 14, of the constitution before its amendment in 1983. The preamendment version stated:
      Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.
      Art. I, § 14, Fla. Const. (1968).

      . Section 907.04 l(4)(c) states:
      The court may order pretrial detention if it finds a substantial probability, based on a defendant's past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exists:
      1. The defendant has previously violated conditions of release and that no further conditions of release are reasonably likely to assure the defendant’s appearance at subsequent proceedings;
      2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process;
      3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant's appearance at subsequent criminal proceedings; or
      4. The defendant is charged with DUI manslaughter, as defined by s. 316. 193, and that there is a substantial probability that the defendant committed the crime and that the defendant poses a threat of harm to the community; conditions that would support a finding by the court pursuant to this subpara-graph that the defendant poses a threat of harm to the community include, but are not limited to, any of the following:
      a. The defendant has previously been convicted of any crime under s. 316. 193, or of any crime in any other state or territory of the United States that is substantially similar to any crime under s. 316. 193;
      b. The defendant was driving with a suspended driver’s license when the charged crime was committed; or
      c. The defendant has previously been found guilty of, or has had adjudication of guilt withheld for, driving while the defendant’s driver's license was suspended or revoked in violation of s. 322.34;
      5. The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.
      6. The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed; or
      7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.

      .Section 907.041(4)(a) provides:
      (a) As used in this subsection, "dangerous crime” means any of the following:
      1. Arson;
      2. Aggravated assault;
      3. Aggravated battery;
      4. Illegal use of explosives;
      5. Child abuse or aggravated child abuse;
      6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
      7. Aircraft piracy;
      8. Kidnapping;
      9. Homicide;
      10. Manslaughter;
      11. Sexual battery;
      12. Robbery;
      13. Carjacking;
      14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
      15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority;
      16. Burglary of a dwelling;
      17. Stalking and aggravated stalking;
      18. Act of domestic violence as defined in s. 741.28;
      19. Home invasion robbery;
      20. Act of terrorism as defined in s. 775.30;
      21. Manufacturing any substances in violation of chapter 893; and
      22. Attempting or conspiring to commit any such crime.

      . We discuss the allegations in generalities in light of the supreme court’s suggestion in Van Eeghen, 87 So.2d 45, that when reviewing a trial court's decision to deny bail, an appellate court should refrain from discussing the details of the evidence in order to avoid implying an assessment of the weight or sufficiency of the evidence at a subsequent trial. We note, however, that the allegations in the CRA were barely more specific than our description here.

      . It is impossible to discern the extent of the officer’s personal knowledge from the CRA because it did not describe his involvement in the matter. Indeed, although one officer signed it, the CRA repeatedly referred to "affi-ants,” plural, suggesting the possibility that even the actions of the police were outside the personal knowledge of the officer himself, whose attestation stated merely that the facts alleged therein were true "to the best of [his] knowledge.”


author: ALTENBERND, Judge.

text:
    Eric HACKNEY, Maureen Larkin, and Albert Hackney, Appellants, v. Scott NIEDECKEN, individually; Paula Dumas, individually; and Sweepstakes Fundraising Concepts, Inc., a Florida corporation, Appellees.
    No. 2D12-2762.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.
    Bruce Jacobs, Amida Umesh Frey, Ab-bie B. Cuellar, and Sebastian M. Alovisi of Bruce Jacobs & Associates, P.A., Miami, for Appellants.
    Morgan R. Bentley of Bentley & Brun-ing, P.A., Sarasota, for Appellees.
   ALTENBERND, Judge.

On motion for rehearing, the Appellants request a written opinion. The request deals primarily with Maureen Larkin’s claims that she is entitled to pursue a civil theft claim against Scott Niedecken and that $40,000 should not have been inter-pleaded into the registry of the court. The rather emotional motion for rehearing, which the attorneys for the Appellants undoubtedly sent to their clients, states:

Ms. Larkin placed her faith and trust in the judiciary to resolve this dispute according to Florida law. In light of the extensive record of Appellee’s documented bad faith conduct, respectfully, she should be entitled to more than summary denials of her claims at both the trial and appellate levels.

We write briefly to give her that explanation.

Scott Niedecken and Eric Hackney decided to open a gambling or gaming operation in Charlotte County, Florida. Because the two men were short on money and credit, they approached Ms. Larkin, who is Eric Hackney’s mother, about investing $180,000 in the business. She borrowed the money from another man, giving a promissory note that was secured by a lien against her retirement holdings in Ohio.

The gaming operation was incorporated in Florida as Palace Casino Arcade, Inc. On May 1, 2009, Ms. Larkin loaned $130,000 to the corporation and received a promissory note from the corporation. About two weeks earlier, she also had received all of the shares of stock in Palace Casino Arcade, Inc.

The $130,000 was used, in large part, to buy fifty gaming machines described as redemption gaming machines. The corporation soon decided to shift to sweepstakes gaming machines. In shifting to a sweepstakes operation, a new corporation, Sweepstakes Funding Concepts, Inc., was created. Much of this litigation has dealt with a disagreement over Eric Hackney’s possible interest in that corporation and claims that Scott Niedecken engaged in self-dealing.

While in the process of creating the new entity, Eric Hackney and Ms. Larkin sold the assets of Palace Casino Arcade to a businessman in Georgia in June 2010. The fifty redemption gaming machines were excluded from the sale. The record contains a copy of the “agreement for purchase and sale of business assets.” In the agreement, the seller is described as “The Palace Casino, specifically Eric Hackney and Maureen Larkin (the Sellers).” Eric Hackney signed the agreement for the sellers. A problem, of course, might be that the assets were owned by Palace Casino Arcade, Inc., which does not appear to be a party to the agreement.

Following this sale of assets, the fifty redemption machines apparently were unused and sitting in storage. Scott Nie-decken found a willing buyer for the machines. With the knowledge and consent of Ms. Larkin, Mr. Niedecken sold the machines for about $40,000 in early October 2010. Although it would have been better had he obtained a check payable to Palace Casino Arcade, Inc., he apparently obtained payment to himself.

When Mr. Niedecken did not immediately transmit the $40,000 to the corporation, Ms. Larkin demanded payment from Mr. Niedecken. His lawyer suggested the parties use a general release, which was unacceptable to Ms. Larkin. When payment was not forthcoming, she filed an action that expressly claimed that she, individually, was owed the money. She further claimed that Mr. Niedecken’s failure to pay her constituted civil theft. Originally, Mr. Niedeeken claimed a potential interest in Palace Casino Arcade, Inc., but he quickly claimed no direct interest in the $40,000. The trial court permitted Mr. Niedecken’s attorney to place the money into the registry of the court.

The partial final judgment on appeal was entered after an extensive evidentiary hearing. In the order, the trial court required that the $40,000 be disbursed by a check payable to Palace Casino Arcade, Inc. It further entered judgment in favor of Mr. Niedeeken on Ms. Larkin’s claim for civil theft.

The reason that Ms. Larkin lost in the trial court and is losing this appeal stems from her failure and that of her attorneys to distinguish between her individual rights as a creditor of Palace Casino Arcade, Inc., and the rights of the corporation in which she was a shareholder. The money held by Mr. Niedeeken was owed to the lawful owner of the gaming machines. Ms. Larkin never proved that the machines belonged to her. In fact, it is quite clear from the record that the machines were owned by the corporation. The trial court correctly made the check payable to Palace Casino Arcade, Inc. If there is no corporate creditor with a claim superior to that of Ms. Larkin, presumably the corporation will be able to pay her the $40,000 as a partial payment of her loan.

Affirmed.

WALLACE and MORRIS, JJ., Concur.


author: KELLY, Judge.

text:
    ZEPHYR HAVEN HEALTH AND REHAB CENTER, INC.; Sunbelt Health Care Centers, Inc.; Adventist Health System/Sunbelt, Inc.; and Adventist Health System Sunbelt Healthcare Corporation, Appellants, v. The ESTATE OF Roy CLUKEY, by and through Brenda Lee Miller CLUKEY, Personal Representative, Appellee.
    No. 2D12-5978.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.

      Mark B. Hartig and Amy L. Miles of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Appellants.
    Kathleen Clark Knight of Wilkes & McHugh, P.A., Tampa, for Appellee.
   KELLY, Judge.

Zephyr Haven Health and Rehab Center, Inc. (“Zephyr Haven”), appeals the trial court’s order denying its motion to dismiss and compel arbitration of the claims filed against it by Brenda Lee Miller Clukey, as personal representative of the Estate of Roy Clukey. For the reasons expressed below, we reverse and remand for further proceedings.

Mrs. Clukey, acting pursuant to a durable power of attorney signed by Mr. Clu-key, admitted her husband to Zephyr Haven’s nursing facility where he resided for approximately two and a half years. Days after his discharge from the facility, Mr. Clukey died. Mrs. Clukey, as personal representative of the Estate, sued Zephyr Haven for violation of Mr. Clukey’s nursing home residents’ rights, negligence, and wrongful death. Zephyr Haven moved to compel arbitration pursuant to the arbitration agreement Mrs. Clukey signed when Mr. Clukey was admitted to the facility. The arbitration agreement was part of the nursing home admission agreement, execution of which was not required as a condition of admission to the facility. After a hearing, the trial court denied the motion to compel arbitration, finding that the durable power of attorney did not give Mrs. Clukey the authority to enter into the nursing home admission agreement on her husband’s behalf. The court also found that the arbitration provision was substantively unconscionable because Mr. Clukey’s estate did not have the ability to pay the costs associated with arbitration and was procedurally unconscionable because of the manner in which the admissions agreement was presented to Mrs. Clukey.

On appeal, Zephyr Haven first challenges the trial court’s determination that Mrs. Clukey did not have the authority to enter into the nursing home admission agreement based on language in the durable power of attorney which states: “This document does not authorize anyone to make medical or other health care decisions. You may execute a health care proxy to do this.” However, contrary to what the trial court found, the Estate acknowledged both here and in the trial court that Mrs. Clukey would have qualified as a person who could act as a health care proxy for Mr. Clukey, and accordingly, in that capacity she was authorized to sign the admission agreement but not authorized to sign the arbitration agreement. In support of that argument, the Estate cited Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 299-300 (Fla. 4th DCA 2005), for the proposition that a health care proxy is not authorized to agree to arbitration because that is not strictly a health care decision. Mrs. Clukey, however, was not simply acting as a health care proxy.

Mrs. Clukey was also acting pursuant to a durable power of attorney, and it was in that capacity that she was authorized to agree to arbitration. Specifically, the power of attorney states that the attorney-in-fact could act on Mr. Clukey’s behalf with respect to, among other things, “claims and litigation” and “all other matters.” We have previously held that such grants of authority include the power to agree to enter into an arbitration agreement. See Candansk, LLC v. Estate of Hicks, 25 So.3d 580, 583-84 (Fla. 2d DCA 2009). Moreover, the power of attorney was executed in New York, and under New York law, a power of attorney that gives an agent authority with respect to “claims” and “litigation” empowers the agent to “submit to alternative dispute resolution” or settle “any claim existing in favor of or against the principal, or any litigation to which the principal is, or may become or be designated a party.” N.Y. Gen. Oblig. Law § 5-1502H(5) (2005).

Zephyr Haven next challenges the trial court’s determination that the arbitration agreement was procedurally and substantively unconscionable. The trial court found that the agreement was substantively unconscionable because the Estate did not have the ability to pay the costs of arbitration. Although couched in terms of substantive unconscionability, the Estate’s argument regarding the costs of arbitration is in all material respects the same as the one we rejected in Zephyr Haven Health & Rehab Center, Inc. v. Hardin, 122 So.3d 916 (Fla. 2d DCA 2013). As was the case in Hardin, the Estate in this case has failed to carry its burden to demonstrate that the likely cost of arbitrating this specific claim would exceed its litigation expenses. See id. at 922-23. Accordingly, the trial court erred when it found that the agreement was substantively unconscionable. Because the Estate has failed to demonstrate that the agreement was substantively unconscionable, this court need not reach the issue of whether the manner in which the agreement was entered was procedurally unconscionable. See, e.g., Bland ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006), abrogated on other grounds by Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2011); Stewart Agency, Inc. v. Robinson, 855 So.2d 726, 727 (Fla. 4th DCA 2003) (explaining that a court must find both substantive and procedural unconscionability before permitting a party to avoid arbitration for uncon-scionability).

The trial court erred in finding that Mrs. Clukey had no authority to enter into the admissions agreement and by implication the arbitration agreement. It also erred when it determined that the arbitration agreement was substantively unconscionable because the Estate did not have the ability to pay the costs of arbitration. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

MORRIS and SLEET, JJ„ Concur.


author: DAVIS, Chief Judge.

text:
    Kiefer FILPPULA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2432.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.

      Ryan C. Morris of Brownstone, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellant.
   DAVIS, Chief Judge.

Kiefer Filppula challenges the new sentence he received following this court’s reversal of his original sentence. See Filppula v. State, 106 So.3d 45, 46 (Fla. 2d DCA 2013). Although the new sentence reflects some of the same errors and illegalities that led to the reversal of Filppu-la’s original sentence, the errors are of the type that must be preserved through the filing of a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b) before this court can review them on direct appeal. Because Filppula’s counsel failed to file such a rule 3.800(b) motion, we affirm.

The written sentence reflects that at resentencing Filppula was sentenced to sixty days for possession of a prescription drug without a prescription, to five years for possession of cannabis with intent to sell, to “2 years prison with 5 years probation as a condition” for possession of al-prazolam, and to one year for possession of drug paraphernalia. The sentences for each count are to run concurrently, and according to the order of probation, the probation for possession of alprazolam is consecutive to the prison term for possession of cannabis. We note that the oral pronouncement, which controls over the written sentence, was for five years of probation for possession of alprazolam to run consecutive to the sentences on the other counts and that a condition of that probation was serving an additional two years in prison on that count, resulting in three years’ probation following an aggregate seven-year prison sentence.

As stated in the first Filppula opinion, an imposed term of incarceration as a condition of probation cannot exceed 364 days and must be served in a nonprison facility, such as a county jail. 106 So.3d at 46. Thus Filppula’s sentence for the possession of alprazolam is again illegal. See id. The State concedes the problematic nature of this sentence and merely argues that Filppula is foreclosed from relief by his failure to fíle a motion to correct sentence pursuant to rule 3.800(b) and because his counsel did not preserve the error when counsel agreed at the resentencing that the proposed sentence was legal.

We do not agree that counsel’s acquiescence to the sentence forecloses relief; the fact that his counsel thought it was a legal sentence does not make it so. “A defendant cannot by agreement confer on the court the authority to impose an illegal sentence.” Williams v. State, 500 So.2d 501, 503 (Fla.1986), receded from on other grounds, Quarterman v. State, 527 So.2d 1380 (Fla.1988). But the State is correct that rule 3.800(b) is the necessary mechanism designed to correct otherwise unpreserved structural sentencing errors, including illegal sentences, and to preserve those errors for direct appellate review. See Jackson v. State, 983 So.2d 562, 573-74 (Fla.2008).

Thus, rule 3.800(b) creates a two-edged sword for defendants who do not object to sentencing errors before the sentence is rendered: on the one hand, it allows defendants to raise such errors for the first time after the sentence; on the other hand, it also requires defendants to do so if the appellate court is to consider the issue. In other words, for sentencing errors, to raise even fundamental error on appeal, defendants must first file a motion under rule 3.800(b).

Id. at 569. For that reason alone we affirm Filppula’s new sentence. However, we note that this affirmance does not impact any right Filppula may have to seek to correct his illegal sentence by filing a motion pursuant to either rule 3.800(a) or rule 3.850. The postconviction court should consider any such motion on an expedited basis.

Affirmed.

LaROSE and KHOUZAM, JJ., Concur.

      . See Rivera v. State, 117 So.3d 449 (Fla. 2d DCA 2013).

      . Filppula also argues that his sentence for count three exceeds the five-year statutory maximum where he will serve two years in prison and five years of probation as a split sentence. He further notes a discrepancy in the oral and written sentence and a problem with the credit awarded. These issues also were unpreserved by a rule 3.800(b) motion.


author: PER CURIAM.

text:
    TAMA BROADCASTING, INC., Petitioner, v. GROUP ASSETS, LLC, Glenn W. Cherry, and Charles W. Cherry, II, Respondents.
    No. 2D13-1419.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.

      J. Carter Andersen, Keith D. Skorewicz, and Bryan D. Hull for Bush Ross, P.A., Tampa, for Petitioner.
    Charles W. Cherry II, Plantation, for Respondents.
   PER CURIAM.

We treat Tama Broadcasting, Inc.’s petition for a writ of certiorari as an appeal of a final order and affirm.

Affirmed.

SILBERMAN, WALLACE, and BLACK, JJ., Concur.


author: GROSS, J.

text:
    Jim NAUGLE, as Personal Representative of the Estate of Lucinda Naugle, deceased, Petitioner, v. PHILIP MORRIS USA, INC., Respondent.
    No. 4D14-391.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.

      Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A., Miami, and John J. Uustal and Todd R. McPharlin of Kelley Uustal, PLC, Fort Lauderdale, for petitioner.
    No brief filed for respondent.
   GROSS, J.

The plaintiff in the underlying tobacco litigation seeks certiorari review of a trial court order allowing a post-verdict interview of the jury foreperson. We deny the petition finding that the limited inquiry scheduled by the judge does not depart from the essential requirements of law.

The plaintiff obtained a jury verdict for over $300 million in damages. The trial court remitted the damages to about $36 million, but on appeal, this court remanded for a new trial on damages. Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 948 (Fla. 4th DCA 2012). On October 16, 2013, a jury rendered a new verdict awarding about $11.2 million in damages. The court entered a final judgment on October 17, 2013.

On October 23, 2013, the trial court issued an order explaining that the jury foreman had left a voicemail message at the judge’s office on either October 17 or 18. In the voicemail, the foreman stated: “I received a text from one of the jurors ... on the case last night and ... I didn’t like the information that ... I got from him — because ... something was done wrong ... by them during the process of the trial.” In the message, the foreman asked to speak with the judge. The court’s order memorialized this communication and prohibited any contact with the jurors by the parties, their representatives, or counsel.

On October 24, 2013, Philip Morris filed an emergency motion to interview jurors and preserve the text message. The plaintiff objected, arguing that the motion was too speculative to require an interview. The court granted the motion to preserve the text message. The plaintiff passed away, and the proceedings were delayed until a personal representative was appointed.

On January 4, 2014, the court entered the order challenged here. The court ordered the foreperson to appear in court and bring his cell phone so the judge could review the text message in camera. Based on the contents of the text message, the judge could ask questions of the foreperson. The court deferred ruling as to whether other jurors would be interviewed. The order prohibits the parties from directly asking questions but allows them to submit proposed questions in writing which the court may ask depending on the contents of the text message.

The court granted a motion to stay, and the order on review is stayed pending the outcome of this proceeding.

Petitioner argues that the requirements for a juror interview under rule 1.431(h) are not met because the voicemail message from the foreperson is too abstract. The rule provides:

(h) Interview of a Juror. A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.

Id. The motion was timely in this case although the court’s ruling was delayed by the plaintiffs death.

The Florida Evidence Code prohibits inquiry of a juror regarding any matter which “inheres in the verdict.” § 90.607(2)(b), Fla. Stat. (2013) (“Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.”).

Courts have clarified that a juror may be questioned only about overt prejudicial acts: “To the extent an inquiry will elicit information about overt prejudicial acts, it is permissible; to the extent an inquiry will elicit information about subjective impressions and opinions of jurors, it may not be allowed.” Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla.1991).

An inquiry is not permitted unless the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial using the standard adopted in State v. Hamilton, 574 So.2d 124 (Fla.1991), and Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97 (Fla.1991). Under the Hamilton standard, the moving party must first establish actual juror misconduct. The movant is entitled to a new trial unless the opposing party can demonstrate that there is no reasonable possibility that the juror misconduct affected the verdict. Hamilton, 574 So.2d at 129. Although certain acts, for example, private communications, contact, indirect or direct tampering with a jury, raise a presumption of prejudice, Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), not all misconduct raises the presumption. If the misconduct is such that it would probably influence the jury, and the evidence in the cause is conflicting, the onus is not on the accused to show he was prejudiced, for the law presumes he was. Not all misconduct, however, will vitiate a verdict even though that conduct is improper. It is necessary to show that prejudice resulted or that the misconduct was of such character as to raise a presumption of prejudice. Amazon v. State, 487 So.2d 8 (Fla.1986); see also Russ v. State, 95 So.2d 594 (Fla.1957). In other words, potentially harmful misconduct is presumptively prejudicial, but the defendant has the initial burden of establishing a prima facie case that the conduct is potentially prejudicial. Amazon, 487 So.2d at 11-12.

Nationwide Mut. Fire Ins. Co. v. Tucker, 608 So.2d 85, 88 (Fla. 2d DCA 1992).

The foreperson’s voice message here does not establish any “actual misconduct” that could amount to an overt prejudicial act. The message intimates that, in the foreperson’s view, a text message from another juror showed “something was done wrong.” Petitioner is correct that the voice message is vague as to any alleged juror misconduct and also correct that the motion for juror interviews was not supported by affidavit.

However, the trial court has not ordered a full-blown interview of the jury. The court has ordered only a limited inquiry to review the text message that the foreperson received. Presumably, no further questions will be asked if the text message does not meet the standard for ordering a juror interview. This limited in camera inquiry concerning the text message does not invade the sanctity of jury deliberations. As the court concluded in its well-reasoned order, “[a] party requesting a jury interview does not have to conclusively establish that the alleged juror misconduct occurred and prejudiced their case, but only that a legal basis for the inquiry exists.” Singletary, By & Through Barnett Banks Trust Co., N.A. v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991) (citations omitted).

Further, contrary to the plaintiffs argument, sworn testimony from counsel or a party is not necessary, as the information forming the basis for the court’s order came directly to the court. The plaintiff confuses a court-ordered compulsory juror interview on the motion of a party with a voluntary juror interaction with the judge. Here, the party was not the one who initiated contact with the juror. It was the foreman who contacted the judge. The court has taken the initiative and plans to conduct what amounts to a “preliminary” interview in order to establish whether further inquiry is necessary. The court acted within its discretion in finding a legal basis to inquire of the foreperson in this limited manner.

Rule 1.431(h) is not intended to be used as a sword to prevent jurors from contacting the court to reveal misconduct. The rule is a shield to prevent disgruntled parties and attorneys from harassing jurors after a verdict. In a civil case, a party seeking to contact a juror must file a 1.431(h) motion. See Walgreens, Inc. v. Newcomb, 603 So.2d 5, 6 (Fla. 4th DCA 1992) (reversing order granting new trial where evidence of juror misconduct was obtained by lawyer in violation of the rule); see also R. Reg. Fla. Bar 4-3.5(d)(4) (prohibiting lawyers from initiating communications with jurors post-trial except when there is reason to believe grounds may exist to challenge verdict and requiring notice to opposing party and judge).

Importantly, the rule does not prohibit a juror from speaking out about misconduct or voluntarily communicating the misconduct to the judge. Here, soon after the verdict, the foreperson asked to speak with the judge about something “wrong” that occurred during the trial. The plaintiff seeks to pervert the purpose of the rule to prevent any inquiry into potential misconduct.

The plaintiff argues that the order invades the privacy of the juror. However, the foreman subject to the order at issue directly contacted the judge’s office to raise his concerns regarding the text message. He wants to talk.

This is in stark contrast to the situation in Schmitz v. S.A.B.T.C. Townhouse Ass’n, 537 So.2d 130 (Fla. 5th DCA 1988), where certiorari was granted to preclude a juror interview. In Schmitz, no juror initiated contact with the court. Rather, a person who knew one of the jurors told an attorney involved in the lawsuit that the juror had said he felt pressured into reaching a quick decision. Id.

The court did not depart from the essential requirements of law under the facts of this case. At this point, the court has done nothing more than allow the juror to reveal the text message.

The petition for writ of certiorari is denied.

CIKLIN and GERBER, JJ., concur.

      . Certiorari has been used to review and quash such orders. E.g., Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla.1991); Schmitz v. S.A.B.T.C. Townhouse Ass’n, 537 So.2d 130, 131 (Fla. 5th DCA 1988).


author: STEVENSON, J.

text:
    A.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3818.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

A.L. pled no contest to carrying a concealed firearm, reserving his right to appeal the denial of his earlier-filed motion to suppress. In his motion to suppress, the defendant argued that the gun and any incriminating statements were the product of a stop, not a consensual encounter, and that the stop was not supported by the requisite reasonable suspicion. We agree and reverse.

Evidence at the suppression hearing established that, on June 26, 2012, a gun fell from AL.’s pants during an encounter with a City of Miramar police officer. At around 9:00-9:30 a.m., the officer was patrolling an area where a burglary had been reported several days earlier. The officer spotted the defendant riding his bicycle. She stopped her patrol car and approached. She inquired why the defendant was in the area. The defendant stated he was visiting a friend, but was unable to tell the officer where the friend lived. The officer told the defendant there had been burglaries in the area and he should stay out of the area if he had no legitimate reason to be there. The defendant said he would and rode away.

Fifteen to twenty minutes later, in the same area, the officer again saw the defendant riding his bike. The officer pulled her car over and the defendant stopped his bike. The officer approached and asked the defendant what he was doing in the area. The defendant told the officer he had gone to his friend’s home to retrieve his wallet. The officer instructed the defendant to get off his bike and to sit on the curb. After the defendant reiterated that he had gone to get his wallet, the officer asked the defendant for identification. The officer assisted the defendant to a standing position and, as the defendant was adjusting his pants, a gun fell. The defendant indicated the gun was his and was arrested.

The trial court found that the police did not have the reasonable suspicion of criminal activity necessary to justify a stop, but nonetheless denied the motion to suppress, finding the contact between the defendant and the officer was a consensual encounter. Like the trial court, we find the police lacked a reasonable suspicion of criminal activity. We conclude, however, that this was a stop, not a consensual encounter. See Delhall v. State, 95 So.3d 134, 150 (Fla.2012) (recognizing mixed standard of review applies to ruling on motion to suppress and, while deference is afforded findings of fact supported by competent substantial evidence, trial court’s application of the law to those facts is reviewed de novo).

“During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them” and, since the citizen is free to leave during a consensual encounter, no reasonable suspicion is required. Popple v. State, 626 So.2d 185, 186 (Fla.1993). There is no bright-line test for distinguishing a consensual encounter from a stop; whether an encounter is consensual requires consideration of the totality of the circumstances. See, e.g., Garcia v. State, 88 So.3d 394, 401 (Fla. 4th DCA 2012). “A consensual encounter becomes a Terry stop ‘when an officer makes an official show of authority from which a reasonable person would conclude that he or she is not free to end the encounter and depart.’ ” Smith v. State, 95 So.3d 966, 968 (Fla. 1st DCA 2012) (quoting Majors v. State, 70 So.3d 655, 659 (Fla. 1st DCA 2011)).

An officer may approach a defendant on a public street and ask questions of the defendant and such contact is nothing more than a consensual encounter. See, e.g., D.T. v. State, 87 So.3d 1235, 1238 (Fla. 4th DCA 2012). This is true even where the defendant is on a bike and stops to speak with the officer. See State v. Davis, 543 So.2d 375, 376 (Fla. 3d DCA 1989). But, where an officer makes a show of authority, such as a request for the defendant to remove his hands from his pockets, such show of authority may convert the consensual encounter into a stop. See, e.g., Gentles v. State, 50 So.3d 1192, 1197 (Fla. 4th DCA 2011) (holding consensual encounter became a stop when the officer directed the defendant to shut off car’s engine as this “constituted a show of authority which restrained the defendant’s freedom of movement”); Williams v. State, 694 So.2d 878, 880 (Fla. 2d DCA 1997) (finding officer’s instructing defendant to pull waistband of his pants forward converted consensual encounter into a stop).

Here, during the defendant’s first encounter with the officer, she instructed the defendant to leave the area. During the second encounter, only fifteen to twenty minutes later, the officer ordered the defendant to get off his bike and to sit on the curb. Under these circumstances, a reasonable person would not have felt free to end the encounter and walk away and the officer’s orders thus converted the consensual encounter into a stop. Since the stop was not supported by reasonable suspicion, the incriminating evidence was subject to suppression. See, e.g., Harrison v. State, 627 So.2d 583, 584-85 (Fla. 5th DCA 1993) (holding officer’s request that defendant remove hands from pockets converted consensual encounter into a stop; stop not supported by reasonable suspicion; and cocaine that fell from the pocket should be suppressed as seizure occurred before cocaine dropped).

Reversed.

CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Quinton MOORER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4286.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

At about 7 a.m. one January morning, a detective and 17 members of the Sunrise Police Department SWAT team broke into appellant’s apartment to execute a search warrant. They found appellant asleep on the living room couch. Appellant punched and kicked multiple officers, leading to the charge in this case for resisting an officer with violence. A search of the residence uncovered young children and two women, but no drugs or guns.

At appellant’s trial, a police sergeant testified that when asked for his name, appellant falsely provided that of his brother. Defense counsel immediately objected that such information had not been provided in discovery. The trial court overruled the objection without inquiring further. The sergeant conceded that his police report said nothing about the false name.

Appellant’s objection was sufficient to raise the issue of a discovery violation. The trial court’s failure to conduct a Richardson hearing is reversible error unless a reviewing court can say beyond a reasonable doubt that the defense was not procedurally prejudiced. See Smith v. State, 7 So.3d 473, 505-06 (Fla.2009); State v. Schopp, 653 So.2d 1016, 1020-21 (Fla.1995). We cannot say that the defense was not so prejudiced.

Reversed and remanded for a new trial.

WARNER and CONNER, JJ., concur.

      . Richardson v. State, 246 So.2d 771, 775 (Fla.1971).


text:
    Douglas A. MINERVINI, Appellant, v. BANKUNITED, Appellee.
    No. 4D13-1011.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Douglas A. Minervini, North Palm Beach, pro se.
    Frances Guasch De La Guardia of Holland & Knight LLP, Miami, for appellee.
   PER CURIAM.

We dismiss for lack of jurisdiction that portion of the appeal challenging the trial court’s denial of appellant’s motion to dismiss for lack of subject matter jurisdiction. See Fiocchi v. Trainello, 566 So.2d 904, 904 (Fla. 4th DCA 1990) (“[A]n appeal of an order denying subject matter jurisdiction does not come within the purview of rule 9.130(a)(3)(C)(i) and is a non-final non-appealable order.”). We affirm without comment the other issues raised on appeal.

Affirmed in part and dismissed in part.

STEVENSON, MAY and GERBER, JJ., concur.


text:
    Christopher A. JEFFRIES, Appellant, v. Virginia L. JEFFRIES, Appellee.
    No. 1D13-4757.
    District Court of Appeal of Florida, First District.
    March 24, 2014.

      Christopher A. Jeffries, pro se, Appellant.
    No appearance for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of Appellant’s motion for rehearing and the hearing transcript filed by Appellant with the motion, we withdraw the opinion issued on January 23, 2014, and substitute this opinion in its place.

Appellee filed a petition for an injunction for protection against domestic violence. The respondent was her husband, Appellant. The trial court held an eviden-tiary hearing on the petition and thereafter entered a permanent injunction against Appellant. On appeal, Appellant contends that the injunction should be reversed because he did not receive a fair trial and because the injunction was not supported by competent substantial evidence. For the reasons that follow, we affirm.

This was a classic “he said, she said” case. Appellee testified that Appellant jumped on her while she was lying down and shoved her into the wall during an argument. Appellant did not dispute that the argument occurred, but he testified that he was the victim in this incident. Appellant testified that he had scratches on his neck from Appellee trying to choke him, but Appellee testified that the scratches were from her fighting off Appellant’s attack.

It was the responsibility of the trial court to determine the credibility of the witnesses and to resolve the conflicts in the evidence. See Disston v. Hanson, 116 So.3d 612 (Fla. 5th DCA 2013). The trial court apparently credited Appellee’s testimony over Appellant’s testimony because the court granted her petition, stating “I will give you [Appellee] a permanent injunction against his committing domestic violence against you.” We do not have the authority to second-guess the trial court’s decision to believe Appellee over Appellant. Id. (stating that “the credibility of the witnesses is within the trial court’s exclusive purview”); see also Lahodik v. Lahodik, 969 So.2d 533, 535 (Fla. 1st DCA 2007) (“It is well-established that the appellate court does not re-weigh the evidence or the credibility of witnesses.”).

Appellee’s testimony describes an incident of domestic violence, as defined in section 741.28, Florida Statutes, and provides the requisite evidentiary support for the trial court’s decision to grant the petition. See Abravaya v. Gonzalez, 734 So.2d 577 (Fla. 3d DCA 1999); § 741.30(6)(a), Fla. Stat. The fact there was conflicting testimony from Appellant that would have supported the denial of the petition is of no significance on appeal. See Disston, supra (stating that the appellate court “cannot reweigh the evidence”); Lahodik, 969 So.2d at 535 (explaining that “the appellate court does not assess whether it is possible to recite contradictory record evidence which supports arguments rejected below, nor does it retry the case or substitute its judgment for the trial court’s on factual matters supported by competent, substantial evidence”).

In sum, because the record contains competent substantial evidence to support the injunction, we are required to affirm. This does not preclude Appellant from seeking to modify or dissolve the injunction if, as he contends in his appellate filings, circumstances have changed since the entry of the injunction. See § 741.30(10), Fla. Stat.; Alkhoury v. Alkhoury, 54 So.3d 641 (Fla. 1st DCA 2011).

AFFIRMED.

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

      . We summarily reject Appellant’s claim that he was denied a fair trial because the transcript of the evidentiary hearing reflects that Appellant was afforded a full and fair opportunity to present his case.


text:
    Danny Lee FLAGG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3816.
    District Court of Appeal of Florida, First District.
    March 24, 2014.
    Danny Lee Flagg, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 3, 2010, judgment and sentence imposed upon violation of probation, in Alachua County Circuit Court case number 01-2007-CF-004603-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.

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


text:
    Kadeem Quaishawn HART, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-1754, 1D13-1810.
    District Court of Appeal of Florida, First District.
    March 24, 2014.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Austin v. State, 127 So.3d 1286, 1287 (Fla. 1st DCA 2013); Gridine v. State, 89 So.3d 909, 910-11 (Fla. 1st DCA 2011), review granted, 103 So.3d 139 (Fla.2012); Henry v. State, 82 So.3d 1084, 1089 (Fla. 5th DCA), review granted, 107 So.3d 405 (Fla.2012); Thomas v. State, 78 So.3d 644, 646 (Fla. 1st DCA 2011). See generally Adams v. State, — So.3d _ (Fla. 1st DCA 2012).

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


text:
    Jovan Demario ABRAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5264.
    District Court of Appeal of Florida, First District.
    March 24, 2014.
    Bruce A. Miller, Public Defender, and Patrice M. Falzone, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 13, 2013, judgment and sentence, in Escambia County Circuit Court case number 2013 CF 000197 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.

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


text:
    Stewart LILKER, Petitioner, v. Jackson “Jack” P. BERRY, Respondent.
    No. 1D13-5641.
    District Court of Appeal of Florida, First District.
    March 24, 2014.
    Stewart Lilker, pro se, Petitioner.
    Charles B. Lembcke of the Law Office of Charles B. Lembcke, P.A., Jacksonville, for Respondent.
   PER CURIAM.

By petition for writ of prohibition, petitioner Stewart Lilker seeks review of the lower tribunal’s order denying petitioner’s motion for disqualification. We have jurisdiction. See, e.g., Lusskin v. State, 717 So.2d 1076, 1077 (Fla. 4th DCA 1998).

Upon review, we find that the motion for disqualification was timely and legally sufficient. The petition is therefore granted and the trial judge is directed to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

PADOVANO and ROBERTS, JJ., concur.

BENTON, J., dissents.


text:
    Bruce Robert HIGGINBOTHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0059.
    District Court of Appeal of Florida, First District.
    March 24, 2014.
    Bruce A. Miller, Public Defender, and David A. Dunkerley, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the November 14, 2013, judgment and sentence, in Escambia County Circuit Court case number 2013 CF 003994 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.

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


author: HUGHES, J.,

text:
    Shannon JONES and Jennifer Jones, Individually and on Behalf of their Daughter, Haley Jones v. ABC INSURANCE COMPANY, and Cobe Cardiovascular, Inc., et al.
    No. 2013-CC-2676.
    Supreme Court of Louisiana.
    Feb. 7, 2014.
   In re Jones, Jennifer; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. S, No. 535-525; to the Court of Appeal, Fifth Circuit, No. 13-CA-167.

Not considered; not timely filed. See State v. Crandell, 05-1060 (La.3/10/06), 924 So.2d 122; Morris v. Stueben, 01-0137 (La.3/16/01), 781 So.2d 1220.

HUGHES, J., dissenting. Under the particular procedural posture of this case, I would consider the merits.

HUGHES, J.,

dissenting.

|, Under the particular procedural posture of this case, I would consider the merits.