text:
    Zaheer KHAN, Appellant, v. Shazia Zaheer KHAN, Appellee.
    No. 4D12-904.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.
    David H. Nevel of David H. Nevel, P.A., Plantation, for appellant.
    Terry Ellen Fixel of Fixel & La Rocco, Hollywood, for appellee.
   PER CURIAM.

Appellant/husband, Zaheer Khan, appeals from the trial court’s denial of his motion to vacate an order, dated January 25, 2010, entitled Final Judgment of Uncontested Dissolution of Marriage with Minor Children (hereafter the “2010 judgment”). The motion at issue in this case was filed pursuant to Florida Rule of Civil Procedure 1.540(b) and requested relief from the 2010 judgment due to mistake, inadvertence and/or excusable neglect by the husband. After an evidentiary hearing, the trial court entered an order on February 16, 2012, denying the motion to vacate. In the order, the trial court restated some of the testimony of the witnesses but then found that the 2010 judgment was not a “final judgment” because the petition for dissolution of marriage initially filed by appellee/wife, Shazia Zaheer Khan, in August 2008 had been dismissed by the court and all the rights between the parties had not been adjudicated. The trial court did not address the merits of the husband’s motion to vacate.

At the final hearing on the wife’s petition for dissolution of marriage, the wife withdrew her request for dissolution but proceeded on her claim for alimony and child support unconnected with dissolution pursuant to section 61.09, Florida Statutes (2010). The wife also requested assistance from the court in preventing the husband from selling marital property which would be subject to equitable distribution. In the 2010 judgment, the trial court dismissed the petition for dissolution and awarded the wife alimony and child support. Additionally, the trial court ordered that the husband execute a quitclaim deed for marital real property in his individual name to both parties as tenants by the entireties.

A final judgment is “one that determines the rights of the parties and disposes of the cause on its merits leaving nothing more to be done other than to enforce the judgment.” Donaldson Engineering, Inc. v. City of Plantation, 326 So.2d 209, 210 (Fla. 4th DCA 1976). The judgment entered by the trial court in 2010 dismissed the dissolution petition and ordered the payment of alimony and child support unconnected with dissolution pursuant to section 61.09. As such, the judgment disposed of the wife’s cause for support and alimony and retained jurisdiction to enforce the judgment. Although the judgment for support and alimony is subject to modification, the judgment is final and subject to a motion to vacate pursuant to rule 1.540(b).

The trial court erred in finding that the 2010 judgment was not a final judgment. We reverse the denial of the husband’s motion to vacate and remand for the trial court to address the merits of the husband’s motion to vacate.

Reversed and remanded for further proceedings.

GROSS, FORST, JJ., and ROSENBERG, ROBIN, Associate Judge, concur.

      . Since the entry of the judgment, the wife has filed a new petition for dissolution under a new case number.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Miguel RABESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-523.
    District Court of Appeal of Florida, Fourth District.
    June 19, 2013.

      Michael Salnick of Law Offices of Sal-nick, Fuchs & Bertisch, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse the circuit court’s order denying appellant’s motion to withdraw his no contest plea after sentencing and remand for further proceedings. Fla. R.Crim. P. 3.170(0-

Appellant contends that his lawyer failed to correctly advise him about the immigration consequences of his plea. See generally Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). During the plea colloquy, the judge advised appellant that his conviction “may” result in deportation. Fla. R.Crim. P. 3.172(c)(8). Appellant claims he was misled because he pled to “aggravated” felonies under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(4S)(F), mandating his deportation under 8 U.S.C. § 1227(a)(2)(A)(iii). The Florida Supreme Court has held that an equivocal warning, such as the one appellant received, is not by itself sufficient to conclusively refute a claim that counsel was ineffective in failing to advise a defendant about “truly clear” deportation consequences. Hernandez v. State, — So.3d -, 37 Fla. L. Weekly S730, 2012 WL 5869660, at *4 (Fla. Nov. 21, 2012) (abrogating in part this court’s holding in Flores v. State, 57 So.3d 218, 220-21 (Fla. 4th DCA 2010), which held that the “may” warning refutes such a claim).

“Where a motion to withdraw a plea is filed after sentencing, the defendant has the burden of proving that a manifest injustice has occurred and that withdrawal is necessary to correct the manifest injustice.” Panchu v. State, 1 So.3d 1243, 1245 (Fla. 4th DCA 2009) (citing State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003); Woodly v. State, 937 So.2d 193, 198 (Fla. 4th DCA 2006)). “This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice.” Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003). To make such a showing under Rule 3.170((), a defendant must establish the same criteria that would be required of him in a Rule 3.850 motion for postconviction relief. In Cano v. State, 112 So.3d 646, (Fla. 4th DCA 2013), we described what a movant must establish in these circumstances:

Where a movant has received the standard “may” or “could” deportation warning required by rule 3.172(c)(8), to state a claim for relief under Padilla, a mov-ant must establish the following: (1) that the movant was present in the country lawfully at the time of the plea; (2) that the plea at issue is the sole basis for the movant’s deportation; (3) that the law, as it existed at the time of the plea, subjected the movant to “virtually automatic” deportation; (4) that the “presumptively mandatory” consequence of deportation is clear from the face of the immigration statute; (5) that counsel failed to accurately advise the movant about the deportation consequences of the plea; and (6) that, if the movant had been accurately advised, he or she would not have entered the plea.

Id. at *1.

Here, the trial court denied appellant’s claim based on the “may” warning given during the colloquy. The law is now clear that the “may” warning is not alone sufficient to refute the claim where the deportation consequence is truly clear and automatic from the face of the immigration statute. We therefore remand for further proceedings consistent with this opinion. To be entitled to relief, appellant must establish the criteria set forth above.

FORST, J., and ROSENBERG, ROBIN, Associate Judge, concur.


author: COHEN, J.

text:
    Phillip Martin BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4908.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.

      Matthew R. McLain of Brownstone, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish and Ann Phillips, Assistants Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Phillip Martin Baker timely appeals from the order denying his rule 3.850 motion. We agree with Baker that the motion is not procedurally barred and reverse.

In 2010, Baker was charged with felony driving under the influence (“DUI”) for a third DUI violation within ten years after a prior DUI conviction. See § 316.193(2)(b), Fla. Stat. (2010). Baker entered a plea of nolo contendere to the lesser included offense of misdemeanor DUI, in violation of section 316.193(2)(a), Florida Statutes, and was sentenced to twelve months’ probation.

In negotiating the plea, the State and Baker apparently agreed that Baker’s driver’s license would be revoked for one year. After Baker was sentenced, he discovered that he was, in fact, subject to a ten-year license revocation. Upon learning this, Baker, with the benefit of trial counsel, moved to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(0, arguing that the State failed to honor the plea agreement. The State claimed there was no manifest injustice because Baker was advised of the consequences of his decision, as well as the immediate impact to his driver’s license. The State further submitted that Baker’s plea was voluntary and the driver’s license revocation was a collateral consequence of the plea. The trial court denied Baker’s motion, finding that the license revocation was not a punishment but a collateral consequence. Baker did not directly appeal his judgment and sentence.

In September 2012, Baker, with the benefit of new counsel, filed the motion at issue and alleged trial counsel was ineffective for misadvising him about the consequences of accepting the State’s plea agreement. Baker claimed trial counsel advised him that as a result of the plea, he would be sentenced to ten days in jail, have his license revoked for one year, and be put on misdemeanor probation. Trial counsel also allegedly advised the Department of Highway Safety and Motor Vehicles (“DHSMV”) would permit Baker to immediately receive a license restricted to business purposes only. Baker asserted that when he went to DHSMV to obtain said license, he was informed he was not eligible to receive it for two years or a standard driver’s license for ten years. Baker argued he would not have entered the plea had counsel correctly advised him, as the State’s evidence against him was weak.

The trial court denied, the rule 8.850 motion, finding that the issue of the length of the suspension was fully adjudicated in its order denying Baker’s rule 3.170 motion. The court concluded that Baker’s proper avenue of relief would have been to appeal that order and that relitigation was not available through a rule 3.850 motion.

On appeal, Baker contends the claim in his rule 3.850 motion is different than the claim presented in his rule 3.170 motion and, therefore, is not procedurally barred. Baker alleges in the instant motion, for the first time, that trial counsel was ineffective when he mistakenly believed DHSMV was required to follow the State’s agreement of a one-year license revocation. Baker claims that, but for this misadvice, he would not have entered the plea.

The State counters that Baker should have raised his current claim on direct appeal from the trial court’s denial of his rule 3.170 motion, and his failure to do so constitutes a procedural bar. The State cites Kessell v. State, 96 So.3d 1031 (Fla. 4th DCA 2012), for support; however, Kes-sell is distinguishable and therefore inapplicable.

In Kessell, the defendant questioned counsel’s effectiveness in both his rule 3.170 motion and his rule 3.850 motion. Unlike the defendant in Kessell, Baker did not raise the ineffectiveness of counsel in his rule 3.170 motion; he raised only the State’s failure to abide by the terms of the plea agreement. Baker challenges the effectiveness of counsel for the first time in his rule 3.850 motion. Also, in Kessell, the attorney that filed the rule 3.850 motion also filed the rule 3.170 motion and direct appeal. Here, however, Baker relied on a different attorney to file his rule 3.850 motion after recognizing trial counsel’s ineffectiveness at the plea negotiation stage and at the rule 3.170 motion hearing. The attorney that represented Baker at the plea hearing and in his rule 3.170 motion did not argue at the rule 3.170 motion hearing that he was ineffective or misad-vised Baker.

In Florida, a judge is required to inform a defendant of only the direct consequences of his or her plea, not the collateral consequences. Bolware v. State, 995 So.2d 268, 272 (Fla.2008). Revocation of a driver’s license is considered a collateral consequence of a plea. Id. at 275. However, “[a]ffirmative misadvice about even a collateral consequence of. a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.” Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001). Thus, Baker’s ineffective assistance of counsel claim is not proeedurally barred.

Alternatively, the State takes the position that if this Court determines the documents attached are not sufficient to support the summary denial of Baker’s claim, then the matter should be remanded for attachments or an evidentiary hearing. We agree and remand to allow the trial court to address the claim by either attaching records conclusively refuting the claim or holding an evidentiary hearing.

REVERSED and REMANDED for further proceedings.

SAWAYA and BERGER, JJ., concur.


author: SAWAYA, J.

text:
    Harold Robert RUSSELL, Appellant, v. Holly A. McQUEEN, Appellee.
    No. 5D11-4429.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.

      Neal L. Betancourt, of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellant.
    Anna K. Jarvis, of Anna K. Jarvis Law, P.A., Ponte Vedra Beach, for Appellee.
   SAWAYA, J.

The first appearance of the underlying paternity action in this court two years ago resulted in an opinion that specified five errors regarding the computation of child support that required correction on remand. Russell v. McQueen, 62 So.3d 683, 683 (Fla. 6th DCA 2011) (Russell I). Of those errors, the following two are pertinent to our review in this current appeal: twice charging the father, Harold Russell (Father), for the child’s unreimbursed medical expenses; and failing to properly calculate Father’s income for 2006 and 2007. Id. Despite this court’s opinion explaining these errors, confusion crept into the remand proceedings, resulting in further error that is manifest in the order we now review. So we must readdress those two errors. Father claims that a third error discussed in Russell /, the failure to credit Father with the cost of the child’s medical insurance, was not properly corrected on remand. But that error, as we shall see, only has tangential significance to Father’s actual contention that the trial court erred by failing to credit him for the cost of his medical insurance. We also see a fourth issue has emerged that was not evident when Russell I was decided: whether the trial court erred in failing to reconsider the attorney’s fees award to the mother, Holly McQueen (Mother), that was based on prior erroneous calculations of Father’s income. These matters will be discussed seriatim.

Father contends that the error of charging him twice for the child’s unreim-bursed medical expenses was not corrected on remand. As a prelude to our discussion of that error, we note the statutory requirements that “[e]ach order for [child] support shall contain a provision for health insurance for the minor child” and “[t]he court shall apportion the cost of health insurance, and any noncovered medical ... expenses of the child, to both parties by adding the cost to the basic [child support] obligation ....” § 61.13(1)(b), Fla. Stat. (2010). An option is therefore available that allows the trial court to simply add this medical expense to the child support obligation or order the obligation to be paid separately on a percentage basis. § 61.30(8), Fla. Stat. (2010). Eschewing the percentage basis approach (or so it appeared), the trial court imposed a flat-rate obligation of $230 per month on Father to cover the unreimbursed medical expenses and factored that amount in Father’s total child support obligation. Having done that, the trial court then ordered Father to pay a percentage of the unreim-bursed medical expenses in addition to the flat rate. Russell I held that this double charge was improper and ordered that the error be corrected on remand. Unfortunately, this same error was made again by the trial court, and now we must, for the second time, order that it be corrected. We parenthetically note that Mother concedes the error in her brief.

Father next contends that his income for 2006 and 2007 was not properly calculated on remand. But the error, as we see it, primarily involves the trial court going beyond the dictates of our mandate on remand by delving into matters previously reviewed and affirmed by this court in Russell I. The mistake revealed in Russell I consisted of failing to use Father’s 2006 income tax return to calculate his support obligation for that year and attributing his wife’s income ($89,915) to him in calculating his income for 2007. The record establishes that on remand the trial court did use Father’s 2006 tax return to calculate his support obligation for that year, and although Father claims further error in that calculation, we do not see any mistake. We do, however, see that the trial court’s reconsideration of Father’s 2007 income went beyond the deletion of his wife’s income and traveled the entire route of completely recalculating Father’s income for 2007 by crediting Father with business losses previously considered and rejected by the trial court in the original proceedings. Because we examined the calculation of Father’s 2007 income and affirmed that calculation (except for the improper inclusion of his wife’s income) in the first appeal, the correction on remand only required the simple mathematical task of subtracting her income from Father’s income for 2007.

As we begin discussion of the issue regarding the trial court’s failure to consider the cost of Father’s medical insurance in calculating his income, we acknowledge, in fairness to the trial court, that Russell I spoke in terms of failing “to include the cost to Father of the health insurance that covered his child in calculating child support.” 62 So.3d at 683 (emphasis added). Therefore, Russell I and the mandate that emanated from that appeal did not require inclusion of Father’s health insurance in the calculation. We believe that failure constitutes an error in need of correction based on notions of fairness and the statutory provisions that require the trial court “to determine net income based upon section 61.30, Florida Statutes, by determining ‘gross income’ as defined in subsection (2)(a) 1-14 and then subtracting from this figure ‘allowable deductions’ as defined in subsection (3)(a)-(g).” Pedroza v. Pedroza, 779 So.2d 616, 618-19 (Fla. 5th DCA 2001) (footnote omitted). In calculating gross income, “[a]l-lowable deductions shall include ... [h]ealth insurance payments ....” § 61.30(3)(e), Fla. Stat. (2010). The record shows that Father testified at the initial hearing, and on remand, regarding the amount he paid for his health insurance and yet, despite his repeated requests that this cost be included in the calculation, it was not deducted from his gross income. Father notes the inherent unfairness in denying him that deduction while allowing Mother to deduct the cost of her medical insurance from her gross income. On remand, the trial court should allow the deduction to Father, just as it was allowed to Mother. See Magann v. Magann, 848 So.2d 496, 498 (Fla. 2d DCA 2003) (“[I]n calculating the child support, the trial court erred by failing to take into consideration the $125.04 per month the former husband paid for his own health insurance.” (citation omitted)).

We are left with the alleged error regarding attorney’s fees. This discussion will require some procedural history. When the trial court rendered the original final judgment, it reserved the issue of Mother’s request for attorney’s fees for a hearing at a later time. That time came on February 19, 2010, while the Russell I appeal was pending in this court. Over a year after the hearing on that date, the trial court rendered its order granting Mother’s motion for fees, concluding that Father has the ability to satisfy Mother’s need for fees based on his computed annual income of approximately $152,000 and her income of $46,000. Coincidentally, on the same day this court rendered its decision in Russell I (June 3, 2011), Father filed a motion for rehearing, contending that the amount of his annual income was an issue in the Russell I appeal. Three days later, after this court held that the trial court’s calculation of Father’s ineome erroneously included Father’s wife’s salary of $89,915, Father filed a motion to stay the fee order, noting the reversal by this court of the erroneous calculation of Father’s income. Shortly thereafter, the mandate issued from this court and the trial court scheduled a hearing for the purpose of recalculating child support in accordance with the mandate and to rehear “the issue of attorney fees since the parties’ income, especially the father’s income is at issue which affects this Court’s past appeal ruling on attorney’s fees.” In the order rendered after that hearing, however, the trial court decided that this court’s decision in Russell I precluded it from doing so, stating that “the issue of past attorney fees was not addressed in the appellate [realm]. The Case was reversed and remanded ‘for consideration and recalculation of child support.’ ”

This procedural course, with its unique bumps and round-about turns, provides the basis for further discussion of this issue. The readily apparent fact is that this court did not address the issue of fees because that issue was not raised in the Russell I appeal. Equally important, the trial court did not derive its authority to review the award of attorney’s fees from this court’s mandate in Russell I, but rather from its prior order granting rehearing as to the issue of attorney’s fees. After this court’s opinion made clear that the trial court’s erroneous calculations more than doubled Father’s income, the trial court should have reconsidered whether, in light of the corrected amount, there is still a significant disparity in the parties’ incomes such that Father should be required to pay Mother’s attorney’s fees. See Tilchin v. Tilchin, 65 So.Sd 1207 (Fla. 2d DCA 2011) (reversing and remanding order on attorney’s fees when final judgment of dissolution was previously reversed, as “the actions taken by the trial court on remand from our previous opinion could impact the figures used to calculate the parties’ respective needs or abilities to pay”); Austin v. Austin, 12 So.3d 314, 318 (Fla. 2d DCA 2009) (requiring trial court on remand to reconsider the issue of attorney’s fees based on the appellate court’s reversal of the equitable distribution scheme); Doyle v. Doyle, 789 So.2d 499, 503 (Fla. 5th DCA 2001) (same). Therefore, the trial court erred in declining to reconsider the award of attorney’s fees based on Father’s corrected income.

Father requests that we instruct the trial court that compliance with this court’s mandate is required. The principle has been firmly established in the law since early times that when an appellate court issues its mandate, the trial court is obligated to comply without deviation. See Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 328 So.2d 825 (Fla.1975); O.P. Corp. v. Vill. of N. Palm Beach, 302 So.2d 130 (Fla.1974); Cone v. Cone, 68 So.2d 886 (Fla.1953); Baskin v. Klemm, 118 Fla. 657, 160 So. 509 (1935); State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837 (1930); Curry v. State, 16 So.3d 933 (Fla. 3d DCA 2009); Robinson v. Weiland, 988 So.2d 1110 (Fla. 5th DCA 2008); Formor v. State, 923 So.2d 563 (Fla. 5th DCA 2006); Mendelson v. Mendelson, 341 So.2d 811 (Fla. 2d DCA 1977); City of Miami Beach v. Arthree, Inc., 300 So.2d 65 (Fla. 3d DCA 1973). We do not attribute to the trial court any conscious effort to deviate, but charge the errors that were made to the confusion (noted several times in Father’s brief) that cast a pall over the remand proceedings. We trust that with this new opinion, the pall has been lifted so that the next remand will proceed without any further confusion.

We reverse the order under review and remand this case for further proceedings consistent with this opinion.

REVERSED; and REMANDED for further proceedings.

ORFINGER, C.J. and GRIFFIN, J„ concur.

      . The order rendered after the remand proceeding is entitled "Order on Motion for Rehearing on Child Support and Attorney Fees” and is dated October 27, 2011. The paternity action only involved one child.

      . See also Hindle v. Fuith, 33 So.3d 782, 786 (Fla. 5th DCA 2010) ("In making an award of child support, the trial court is required to determine the net income of each parent pursuant to section 61.30, and to include findings in the final judgment. See Deoca v. Deoca, 837 So.2d 1137, 1138 (Fla. 5th DCA 2003); see also § 61.30(2) (includable income), (3) (allowable deductions), (4)-(6) (determination of net income), Fla. Stat. (2008).”); Deoca, 837 So.2d at 1138 (quoting Pedroza).

      . Of course deviation is permitted if authorization is first obtained from the appellate court that issued the mandate. Blackhawk, 328 So.2d at 827 ("A trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so.” (citation omitted)). Here, no permission was obtained from this court to deviate from the terms of the mandate and the opinion in Russell I.


author: PER CURIAM.

text:
    Lacress CHRISTIAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1633.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.
    Lacress Christian, Blountstown, 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 Petitioner’s motion to withdraw plea in Case No. 05-201l-CF-29088, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON, and BERGER JJ., concur.


text:
    Khristi YATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-773.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.
    Khristi Yates, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Based upon the State’s concession of error, we remand for the lower court to reconsider Appellant’s January 30, 2013 motion to correct the illegal sentence.

REMANDED.

GRIFFIN, EVANDER and COHEN, JJ., concur.


author: GRIFFIN, J.

text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. Cedilien FORESTAL, Respondent.
    No. 5D12-4942.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.

      Julie Waldman, Gainesville, for Petitioner.
    Robert Wesley, Public Defender, and Daniel S. Spencer, Assistant Public Defender, Orlando, for Respondent.
   GRIFFIN, J.

The Agency for Persons with Disabilities [“Agency”] petitions this Court for a writ of certiorari seeking to quash the order of the trial court which committed Cedilien Forestal [“Forestal”] to the Agency for competency restoration training. The trial court committed Forestal under section 916.18, Florida Statutes, which pertains to defendants who are adjudicated incompetent to proceed due to a mental illness, although none of the experts who evaluated Forestal opined that he was mentally ill. Moreover, persons committed under section 916.13 are committed to the Department of Children and Famihes. We assume, therefore, that the statutory reference is a scrivener’s error, and that the trial court intended to reference section 916.802. This is the statute that authorizes commitment to the Agency for incompetency due to mental retardation or autism. The latter statute, however, contains certain statutory requirements for findings that are lacking, and we do not have a transcript of the competency hearing held on November 27, 2012. We accordingly vacate the order and remand for correction and further findings.

Order VACATED and REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . The Agency also contends that Forestal cannot meet the criteria for commitment under section 916.302, but it is premature to reach that conclusion until the trial court has completed its work.


text:
    Terrance TOBLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2538.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.
    Terrance Tobler, Century, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Terrance Tobler appeals the summary denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. He claims the composite sentence of eight years he received for violating the probation imposed after successfully completing the Department of Corrections basic training program (boot camp) was illegal. The State properly concedes error. Because Tobler committed the offenses prior to the July 1, 2006 amendment to section 958.045(5)(c), Florida Statutes, as a youthful offender who successfully completed boot camp, the harshest sentence he could receive on a violation of probation in each of his cases was 364 days. See § 958.04(2)(b), Fla. Stat. (2005); Negron v. State, 90 So.3d 948 (Fla. 5th DCA 2012); Lamore v. State, 86 So.3d 546 (Fla. 2d DCA 2012); Mason v. State, 864 So.2d 1225, 1227 (Fla. 1st DCA 2004); Thomas v. State 825 So.2d 1032, 1033-34 (Fla. 1st DCA 2002); Bloodworth v. State, 769 So.2d 1117, 1118 (Fla. 2d DCA 2000). Accordingly, we reverse and remand for resen-tencing.

REVERSED and REMANDED.

SAWAYA, LAWSON and BERGER, J.J., concur.

      . Putnam County Case Numbers: 2006-520-CF, 2006-643-CF, 2006-1321-CF

      . Section 958.04(2)(b), Fla. Stat. (2005), provides:
      The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in either a county facility, a department probation and restitution center, or a community residential facility which is owned and operated by any public or private entity providing services. No youthful offender may be required to serve a period of incarceration in a community correctional center as defined in s. 944.026. Admission to a department facility or center shall be contingent upon the availability of bed space and shall take into account the purpose and function of such facility or center. Placement in such a facility or center shall not exceed 364 days.
      (Emphasis added).


text:
    LACARETTA RESTAURANT and Zenith Insurance Company, Petitioners, v. Engelds ZEPEDA, Respondent.
    No. 1D13-0993.
    District Court of Appeal of Florida, First District.
    June 24, 2013.

      William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Petitioners.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Respondent.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) petitions for writ of certiorari from a discovery order entered by the Judge of Compensation Claims. Although the order is broad, the E/C challenges only the compelled disclosure of “Note A” and “Note B,” which are entries in the E/C’s internal paperless communication/documentation system, the first note made by the adjuster to memorialize a meeting with in-house counsel, and the second note made by in-house counsel herself. The E/C asserts that both notes are protected by the attorney-client privilege and the work product privilege. For the reasons that follow, we grant the petition, and quash the JCC’s order in part, to the extent it orders disclosure of Notes A and B.

To obtain a writ of certiorari, a petitioner must show there has been “(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.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004). The latter requirements constitute irreparable harm, and irreparable harm is a condition precedent to invoking certiorari jurisdiction that should be considered first. See Spry v. Prof'l Employer Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008). Discovery of information protected by privilege ‘may reasonably cause material injury of an irreparable nature.’ ” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (quoting Martin-Johnson v. Savage, 509 So.2d 1097, 1100 (Fla.1987)). Thus, it appears that if there has been a departure from the essential requirements of law regarding either alleged privilege, the harm is indeed irreparable.

“Departure from the essential requirements of law” is defined the same way across all uses of certiorari review: “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Padovano, Florida Appellate Practice § 18.10, at 367 (2010 ed.) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)). As the Florida Supreme Court said,

The required “departure from the essential requirements of law” means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error.

Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla.1995) (quoting Jones v. State, 477 So.2d 566, 569 (Fla.1985)).

It appears to us that there is legal error in the disclosure of both notes, because both clearly constitute or memorialize communication from the attorney to the E/C made in the rendition of legal services. Further, this error rises to the level of inherent illegality, which would result in a gross miscarriage of justice were the order to stand, because it would have a chilling effect on communications between attorneys and clients. See Hagans v. Gatorland Kubota, LLC/Sentry Ins., 45 So.3d 73, 77 (Fla. 1st DCA 2010). Because we sustain the claim of attorney-client privilege, we do not reach the claim of work product privilege.

Consequently, the petition is GRANTED, and the order QUASHED in part, to the extent it orders disclosure of Notes A and B.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


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    Jerome BLACKSHEAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3166.
    District Court of Appeal of Florida, First District.
    June 24, 2013.

      Jerome Blackshear, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jerome Blackshear appeals an order denying his motion seeking to compel a response from the Clerk of the Circuit Court for Madison County to his request for information about the cost for copying the records in his criminal case file. The lower court denied the motion because it “is not the correct avenue for seeking relief in the form of this Court ordering a public official to perform a ministerial duty.” We conclude the court should have treated Blackshear’s motion as a petition for writ of mandamus and issued an alternative writ to the Clerk to show cause why the relief sought should not be granted.

“The Clerk of the Circuit Court has a legal duty to maintain and to provide access to the records contained in its files unless the records are legally exempt from disclosure.” Radford v. Brock, 914 So.2d 1066, 1068 (Fla. 2d DCA 2005) The Clerk is also duty-bound to respond to a request about copying costs for the records sought. See Fla. R. Jud. Admin. 2.420(a), (m)(1)-(3) (2013); Woodard v. State, 885 So.2d 444, 446 (Fla. 4th DCA 2004) (holding that clerk of court had duty to respond to request for information as to copying costs) (citing Wootton v. Cook, 590 So.2d 1039, 1040 (Fla. 1st DCA 1991)). A petition for writ of mandamus is the proper vehicle for enforcing one’s right of access to court records. See Minasian v. State, 967 So.2d 454, 455 (Fla. 4th DCA 2007). If such a petition is facially sufficient, the court is required to issue an alternative writ, which, in effect, is a show cause order. See Fla. R. Civ. P. 1.630(b), (d)(3); Gilliam v. State, 996 So.2d 956, 957 (Fla. 2d DCA 2008).

Other district courts have held that a motion, like the one Blackshear filed in this case, containing a facially sufficient claim for mandamus relief should be treated as a proper petition and acted upon accordingly. Those courts have reversed denials of motions setting forth facially sufficient claims for mandamus relief seeking court records or a statement from the clerk regarding costs to produce the records. See Gilliam, 996 So.2d at 957-58 (reversing denial of inmate’s “Motion For Execution of Ministerial Duties” where factual allegations in motion, together with attached request to clerk of court for records, constituted facially sufficient petition for writ of mandamus such that court was required to issue alternative writ); Hogan v. State, 983 So.2d 656, 657-58 (Fla. 2d DCA 2008) (reversing denial of inmate’s motion to compel clerk’s office to provide costs of copying requested records from inmate’s criminal files, and directing court on remand to treat motion as mandamus petition).

We reverse the order denying Black-shear’s motion to compel a response from the Clerk to his request for cost information, and remand for the circuit court to issue an alternative writ.

REVERSED and REMANDED.

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


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    Rodney FURNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3853.
    District Court of Appeal of Florida, Fourth District.
    June 26, 2013.
    Michael Salnick of Law Offices of Sal-nick, Fuchs & Bertisch, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Rodney Furney appeals an order summarily denying his rule 3.850 motion. In denying his motion, the trial court ruled that the fundamental error issues Furney raised in his direct appeal procedurally barred the claims of ineffective assistance of counsel he alleged in the instant rule 3.850 motion. See Furney v. State, 932 So.2d 208 (Fla. 4th DCA 2006) (affirmed per curiam without a written opinion). When ruling on the motion, however, the trial court did not have the benefit of our opinion to the contrary. See Clarke v. State, 102 So.3d 763, 765 (Fla. 4th DCA 2012) (holding that an affirmance without a written opinion does not reveal whether the reviewing court did not find fundamental error); see also Ruiz v. State, 108 So.3d 694, 696 (Fla. 2d DCA 2013) (“It is well established that an affirmance of a direct appeal on an unpreserved issue does not bar a defendant from seeking postconviction review under a claim of ineffective assistance of counsel.”).

Rather than merely reverse for the trial court to reconsider the rule 3.850 motion, we treat the appeal as a petition for writ of habeas corpus to prevent a manifest injustice and ordered supplemental briefing on the issue of whether Furney should be granted a belated appeal. See Carswell v. State, 23 So.3d 195, 197 (Fla. 4th DCA 2009); Johnson v. State, 9 So.3d 640, 640 (Fla. 4th DCA 2009); Lago v. State, 975 So.2d 613, 614 (Fla. 3d DCA 2008). Having considered the parties’ supplemental briefs and the entire trial transcript, we grant Furney a new trial.

In 2003, the State charged Furney with aggravated battery and two counts of aggravated assault with a firearm. At his jury trial in 2005, there was conflicting testimony about a fight at a campsite. The State’s witnesses testified that Furney was the aggressor, and that he beat one of them in the face and shot a gun in their direction when they were driving away. Furney and his girlfriend told a different story, contending that the alleged victims instigated the fight by attacking and punching Furney, causing him to retreat to his camper, retrieve his gun, and fire it in their general direction to scare them off. Furney raised the defense of self defense as to all three charges.

Without objection, the trial court instructed the jury on the forcible felony exception to self defense, negating his sole defense. The instruction was based on section 776.041, Florida Statutes (2002), which provides in pertinent part:

The justification described in the preceding sections of this chapter [concerning use of force in defense of person or in defense of others] is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony....

§ 776.041(1), Fla. Stat. (2002).

With respect to the battery charge, the jury was instructed that the use of non-deadly force in self defense was not justified if they found that Furney was attempting to commit, committing, or escaping after the commission of a felony battery or aggravated assault-the same offenses that he admitted to committing in self defense. With respect to the two counts of aggravated assault, the jury was likewise instructed that the use of deadly force in self defense was not justified if they found he was attempting to commit, committing, or escaping after the commission of a felony battery or aggravated assault-again, the same offenses he admitted to committing in self defense. Furney was found guilty of counts I and II. (Count III pertained to an alleged victim who did not testify at trial.)

By the time of Furney’s appeal in 2005-06, we had already reversed many convictions involving similar circumstances. In those cases, we held that it was fundamental error to give the forcible felony exception to the self defense instruction when the defendant was not accused of committing a separate forcible felony and the instruction negated the defendant’s sole defense. See Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002); Rich v. State, 858 So.2d 1210, 1210 (Fla. 4th DCA 2003); Hickson v. State, 873 So.2d 474, 475 (Fla. 4th DCA 2004).

In 2008, the supreme court narrowed the circumstances where the giving of the forcible felony instruction will result in a reversal. It held that such an erroneous instruction is not per se fundamental error, but rather, that the issue depends on whether the instruction was so flawed that it deprived the defendant of a fair trial. Martinez v. State, 981 So.2d 449, 455-56 (Fla.2008). In Clark v. State, 23 So.3d 1213, 1214-15 (Fla. 4th DCA 2009), we explained the effect of Martinez:

This court once held that erroneously giving the forcible-felony-exception instruction was fundamental error where it was “reasonably possible” that the instruction contributed to the conviction. See, e.g., Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). The Florida Supreme Court later rejected the notion that the instruction always constitutes fundamental error and explained that the standard for fundamental error in an instruction relating to an affirmative defense is more stringent. Martinez v. State, 981 So.2d 449, 455-56 (Fla.2008) (clarifying that error in giving instruction is not per se fundamental error and that issue depends on whether the instruction was so flawed that it deprived the defendant of a fair trial).
In cases before Martinez, this court granted petitions that raised a claim of ineffective assistance of appellate counsel based on failure to raise this issue and ordered a belated appeal so the entire record could be reviewed to determine if fundamental error occurred. Permenter v. State (Permenter I), 953 So.2d 647, 648 (Fla. 4th DCA 2007); Fair v. Crosby, 858 So.2d 1103, 1105 (Fla.4th DCA 2003) (“The fundamental nature of the error can be gleaned only from a review of the full record on appeal.”).
In reviewing the issue after Martinez, this court has found that the error is not fundamental where the State did not rely on the erroneous instruction in closing argument, and the defendant was not deprived of a fair trial by the erroneous instruction. Permenter v. State (Permenter II), 978 So.2d 277 (Fla. 4th DCA 2008); Farmer v. State, 975 So.2d 1275 (Fla. 4th DCA 2008).

In this case, the State’s position is that Furney’s self defense claim was weak, pointing out inconsistencies in his version of the events. It also maintains that self defense was not his only defense, as he also argued that the State failed to meet its burden of proof. On the other hand, Furney argues that self defense was his sole theory, and that the mistakenly given instruction deprived him of a fair trial. See Crimins v. State, 113 So.3d 945, 2013 WL 461800, at *3 (Fla. 5th DCA 2013) (concluding, on direct appeal, that the trial court committed fundamental error by giving the forcible felony exception to the self-defense instruction where there was no evidence that the defendant was engaged in a separate forcible felony, the defendant and the victim had given conflicting testimony, and the court was unable to conclude “that the evidence of guilt was overwhelming or that the claim of self-defense was extremely weak,” even though the State impeached much of the defendant’s trial testimony); Smith v. State, 76 So.3d 379, 387 (Fla. 1st DCA 2011) (reversing conviction for aggravated battery where the improper forcible felony instruction “gutted Appellant’s key defense and very likely confused the jury” in a classic “he said/she said” case); Vowels v. State, 32 So.3d 720 (Fla. 5th DCA 2010) (finding such an instruction to constitute fundamental error where eyewitnesses gave conflicting testimony and the parties did not present forensic evidence establishing the sequence of events, making it unclear who was the initial aggressor).

Furney was not charged with engaging in another separate forcible felony while allegedly committing the charged offenses, all of which he argued he committed in self defense. This court has focused on the testimony presented at his trial and the closing arguments. The two sets of eyewitnesses had different versions of the events, creating a classic “he said/she said” situation; Furney’s sole defense was, effectively, self defense, which the improper instruction negated; and the State did argue the forcible felony exception during closing argument. We agree with Furney that he was deprived of a fair trial.

Accordingly, we conclude that fundamental error occurred. We grant the petition for writ of habeas corpus to prevent a manifest injustice, and we reverse Fur-ney’s convictions and remand for a new trial.

Case Redesignated as Petition for Writ of Habeas Corpus to Prevent Manifest Injustice, Petition Granted, Conviction Reversed and Remanded for New Trial.

MAY, C.J., GROSS and LEVINE, JJ„ concur.


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    Charles L. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0377.
    District Court of Appeal of Florida, First District.
    June 27, 2013.

      Charles L. Wright, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Charles L. Wright appeals the summary denial of his motion seeking postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse and remand.

The appellant entered a plea agreement with the state wherein he admitted to a violation of his probation in return for a 5-year prison sentence. As an additional condition of his plea, he agreed to waive his prison credit from his previous sentence in this case. The plea agreement contained no waiver of previously earned gain time. In accepting the plea, the sentencing court expressed concern that the Department of Corrections would also revoke the appellant’s gain time from his prior prison sentence, causing his sentence to exceed that contemplated by the parties. It was agreed that, if this occurred, the parties would revisit the issue.

In the instant postconviction motion, the appellant alleged that the subsequent revocation of his previously earned gain time caused his prison sentence to exceed that contemplated by his plea agreement. He argued that it was the intent of the parties that he serve no more than 5 years in prison.

A claim that a forfeiture of gain time by the DOC thwarted the intent of a negotiated plea agreement may be raised in a timely rule 3.850 motion. See Chase v. State, 57 So.3d 898, 899 (Fla. 1st DCA 2011). A defendant is entitled to enforcement of the agreement if the forfeiture of gain time frustrated the intent of the plea agreement. Etienne v. State, 994 So.2d 450, 452 (Fla. 3d DCA 2008). A court “cannot compel the DOC to follow the plea agreement since it would usurp the DOC’s authority to forfeit gain time,” but it can honor the intent of the plea agreement “by either resentencing the appellant in a manner that will effectuate the plea agreement given the DOC’s forfeiture, or by allowing the appellant to withdraw from his plea.” McAllister v. State, 821 So.2d 1250, 1251 (Fla. 1st DCA 2002).

In the instant case, as the state concedes, the trial court’s order does not contain any record attachments that conclusively refute the appellant’s claim. Further, while the trial court construed the instant motion as barred by a prior decision on the merits on a motion brought pursuant to Florida Rule of Criminal Procedure 3.800, an examination of this motion reveals that it did not address the same claims.

Accordingly, we reverse and remand the trial court’s order denying the appellant’s rule 3.850 motion for the attachment of portions of the record conclusively refuting the appellant’s claim or to hold an eviden-tiary hearing.

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


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    Winston L. KNOX, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-994.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Winston L. Knox, pro se, Appellant.
    Pamela Jo Bondi, Attorney General-, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

See Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013) (reaffirming the holding in Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012), that the decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), did not apply retroactively to defendant’s postconviction motion, and certifying question to Florida Supreme Court as a matter of great public importance).

AFFIRMED.

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


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    Mark E. CLORE, Appellant, v. Yolanda R. CLORE, Appellee.
    No. 5D12-3926.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      Russell S. Hershkowitz, Altamonte Springs, for Appellant.
    Elaine A. Barbour, Orlando, for Appel-lee.
   GRIFFIN, J.

Mark E. Clore [“Husband”] appeals a non-final temporary relief order in a dissolution proceeding. Husband contends that he has been required to pay more than 100% of his available net income in temporary support. We conclude that the record is inadequate to determine whether the trial court erred in the total amount of temporary support ordered, and remand for further proceedings.

On August 7, 2012, the trial court conducted a hearing on Wife’s motion for temporary relief. Wife testified that she had been married to Husband for twenty-six years, and that Husband left the home in November 2011. She explained that Husband “was solely responsible for [their] finances” prior to him leaving the home, that they had “decided when [they] first got married that [she] was to be home with the children,” and that “[h]e was the provider, the sole — as they say, the breadwinner of the home.” Wife stated that she went back to work part-time as a substitute teacher eleven years ago when their youngest son was in elementary school. The most she had made on an annual basis during the eleven years was “fifteen two,” and “[t]he only reason why it might go to seventeen” was due to an “extra bonus for FCAT money.”

Regarding Husband’s income history, Wife explained: “It’s fluctuated anywhere between one hundred to ninety thousand because between the work at the post office and his lawn care business.” When asked whether Husband had a base salary and overtime, Wife said: ‘Tes, he has base and overtime.” Also, when asked whether Husband had “ever made just his base salary,” Wife said: “No, not in thirty years.” She confirmed that he had always made more than his base salary.

Wife stated that, to her knowledge, there were three mortgages on the marital home. She confirmed that in her financial affidavit she “indicated with a footnote that [her] husband [was] currently sporadically paying the mortgages....” She stated that she had been receiving calls from creditors “[m]any times throughout the day” regarding non-payment of the mortgages. She also stated that the water had been turned off, and that she had incurred funds having the utilities put in her own name. She indicated that she had had to borrow funds from “[fjriends and family, mostly from family” to make ends meet; that she had had to use her “student loan for electric, water, just for the basics, and car;” and that she had had to apply for food stamps.

Wife stated that she and Husband had equity in the home, and that she would like to stay in the home. When asked “Have you asked your husband for support,” Wife answered:

Actually, I did. Before he left I asked him if he would stay for six months until my son — our son graduated, and he had told me that he didn’t care, he wanted to foreclose on the home. He stated to me that he was going to file bankruptcy and he didn’t care if I lived in a box and I should just be eating oatmeal.

Wife confirmed that her current need, after having reduced her expenses, and without paying the mortgages, was $1,672.00. She also confirmed that she was seeking $3,200.00 per month in temporary support so that she could be sure the parties’ mortgages were paid.

Husband testified that he was employed with the United States Postal Service. He identified one of his pay-stubs and confirmed that the pay-stub was for pay-period fifteen of 2012, that he had twenty-six pay-periods, and that the pay-stub showed that his year-to-date gross at the fifteenth pay-period was $36,177.83. When asked if dividing fifteen pay-periods into $36,000.00 would give the amount that he received per pay-period, Husband said: “That’s correct. It fluctuates.”

Husband acknowledged that he had not filed an updated financial affidavit, nor had he complied with Wife’s request to produce financial records at the hearing. When asked whether he was current on the mortgage payments, Husband said: “No, I’m not.”

With respect to Wife’s testimony that he had made $90,000, when asked whether that was the amount that he had always been earning at the Post Office, Husband said: “No, but like I said it fluctuated depending on overtime.” Husband confirmed that he had presented his most recent pay-stub, which accurately showed that he made $36,000.00 through fifteen pay-periods. Husband indicated that he didn’t anticipate any change in his earning potential and that there was “[v]ery little” overtime available.

Husband confirmed that, out of his paycheck, he was repaying a $699 Thrift Savings loan. He also was covering Wife’s health, dental, vision, and car insurance. When asked “How much is car insurance,” Husband said: “Three thirty.” He indicated that he paid that every month and that he was current. When asked whether he had any money available to give to Wife, Husband said:

No. After each and every month I come down to dollars. I have dollars after paying just the essential — trying to pay the insurance, maybe juggle paying the home equity line. I just can’t find it to pay. Fourteen hundred dollar mortgage bill. It’s just not there. I wish it was.

Also, when asked whether he had been making payments on joint marital credit cards, Husband said: “I’ve tried at times. It’s been a little while since I had. For the VISA — I’ve got two other ones.” He explained: “On the VISA, they’ve taken it out of my account.”

In closing argument, Wife’s counsel argued in part:

Your Honor, the reality is this gentleman left the home on his own volition. He stopped paying all marital bills except for sporadically paying — by his own admission he’s not current on the first mortgage. He’s paying the second and third. He’s caught that up to date. And the other thing that he pays monthly is the TSP loan which my client testified he took out in their marriage for a reasons she doesn’t know.
Other than that he has a five hundred dollar a month alleged rent payment to his friend that he is rented a room for, and nothing else. He cut the utilities off on my client during the pendency of this case. He’s refused to give her any funds. He’s told her that for all he cares, she can eat oatmeal, live in a box, he’s going to foreclose on the home, and he’s making good on that.
I don’t know what he’s doing making— his history of earnings last year was eighty-one thousand dollars. That’s what the W-2 shows just from the post office. If you take his pay stub it shows he’s on track for sixty-two. I don’t know what he’s doing with his money.

Husband’s counsel responded:

Thank you, Your Honor. Your Honor, my fault for not getting back to the lawn business, but Ms. Barbour took his deposition. He hasn’t [sic] the lawn business since 2002. He did it on the side with some other guys. He hasn’t made any money in that lawn business in ten years.
Your Honor, as I said I’ve got the expenses from his bank statements. I can hand to the Court. The man has made seventeen hundred dollars a month out of his net income just for the three mortgages, the auto insurance, the credit cards, and the IRS. On a monthly basis that’s what he’s paying. Okay. You know, he’s paying almost a thousand dollars out of his pay directly through the post office for the TSP, the wife’s health insurance, you know, et cetera. So he’s paying over twenty-six hundred dollars of net income a month just to meet marital expenses.
Other than that he’s cut to the bone to where he can’t afford to do anything else. He’s made as much of the payments as he can. He’s kept up the second, the third, and the TSP. And he’s making as much payments as he can towards the first mortgage.
There’s no money. He’s not living a good life like he was when he got all the overtime. And his own testimony was that he got all this overtime because they had to close down Daytona and move everything down here. So his hours were jacked up last year, and that’s why his income is where it is. Yes, he’s on track to make sixty-two thousand dollars, but when you take into consideration everything that he’s paying, Judge, the man doesn’t have any money to live on his own. He’s making a good faith effort — as I said right now he’s paying at least twenty-six hundred dollars per month towards marital bills. There’s nothing left.

The trial court found:

Okay. Well, the purpose of temporary relief is so the parties can, you know, maintain something resembling the status quo during the pendency of the litigation.
The status quo during — when they were married was that she was living in the home and not on food stamps so that’s kind of what we’re trying to maintain here.
The husband makes at least sixty-two thousand dollars a year. His expenses on the financial affidavit are not reliable .... on facts on the ground. It’s either how it was or how it might be in the future, you know, toupee maintenance aside.
So the mortgages need to be paid until you guys agree or I order that the house be sold or you guys can decide that you really don’t have — it really doesn’t make sense to the keep the house. You guys let it go into foreclosure, and then he’s got a lot more money available to pay spousal support.
Well, then what I’ll do is I will order that the husband keep the mortgages current and he’ll pay them directly. I find that he has the ability to pay them, and he can pay them directly. But he will pay them each and every month and get them current until further order of the Court or agreement by the parties. I don’t know whether it makes sense to keep this house.
I also know that if the mortgage — if a foreclosure hasn’t been filed yet, it could be years before someone actually gets thrown out. But, you know, I’m not here to decide that for you guys today. But she can stay in the house, and it needs to be — the mortgage needs to be paid for. She’s responsible for the utilities. He’s going to maintain the health insurance that he’s been paying for, and he’s going to pay a thousand dollars a month in additional support. And I find that he has the ability to do that.

Thereafter, on September 2, 2012, the trial court entered a temporary relief order consistent with its oral order. In part, the court found:

B. That the Court finds the Husband’s income to be approximately $62,000.00 per year and the Wife’s income to be approximately $17,000.00 per year.

Husband filed a motion to vacate order and motion for reconsideration, which the trial court denied.

The problem we see with the temporary support ordered is that it appears to exhaust Husband’s income, as found by the trial court to be $62,000 per year, and as reflected on the pay-stub admitted in evidence. See Hotaling v. Hotaling, 962 So.2d 1048, 1050-51 (Fla. 2d DCA 2007) (“ ‘[A]ppellate courts are reluctant to disturb the judgment of a trial court in respect to financial awards in marital cases,’ but such an award will be reversed where it ‘is not supported by substantial, competent evidence’ ” (quoting Sokol v. Sokol, 441 So.2d 682, 684 (Fla. 2d DCA 1988))). Importantly, “[a] financial award which requires one party to pay alimony or marital obligations in excess of that party’s ability to pay constitutes an award which is not supported by substantial, competent evidence.” Hotaling at 1051. As such, “ ‘a trial court cannot enter a temporary [financial] award that exceeds or nearly exhausts a party’s income’ because it would abuse its discretion by doing so.” Id. (quoting Bolton v. Bolton, 898 So.2d 1084, 1084 (Fla. 4th DCA 2005)). Husband argues that the temporary financial award in the instant case exhausts his income, leaving him with no money to meet his essential needs. Pointing to his pay-stub that was admitted into evidence, Husband asserts, that while the trial court relied on the information on the pay-stub to ascertain his gross income, it failed to determine his net income. Wife counters that her testimony that Husband’s income “was historically greater than his base salary and sufficient to pay their marital expenses was competent, substantial evidence that permitted the trial court to properly find that [he] could meet the financial obligations imposed on him by the temporary order, especially in light of [his] own testimony that his income fluctuated.”

The pay-stub, the piece of record evidence relied upon by the trial court, contains information from which to calculate the following:

Net Year-to-Date Income for Fifteen of Twenty-Six Pay-Periods = $36,157.83 (Gross Year-to-Date Income for Fifteen of Twenty-Six Pay-Periods)-$13,571.14 (Year-to-Date With-holdings for Fifteen of Twenty-Six Pay-Periods) = $22,586.69;
Average Net Income Per Pay-Period = $22,586.69 (Net Year-to-Date Income for Fifteen of Twenty-Six Pay-Periods) /15 Pay Periods = $1,505.78;
Estimated Annual Net Income = $1,505.78 (Average Net Income Per Pay-Period) * 26 Pay-Periods = $39,-150.28;
Estimated Monthly Net Income = $39,150.28 (Estimated Annual Net Income)/12 months = $3,262.52.

In order to determine Husband’s monthly net income available to live on, the following amounts need to be deducted from his Estimated Monthly Net Income: mortgage payments, car insurance premium, and the $1000.00 alimony payment. Doing so,

Husband’s Monthly Net Income Available to Live On = $3,262.52 (Estimated Monthly Net Income)-$l,400.00 (1st Mortgage Payment)-$440.00 (2nd & 3rd Mortgage Payments)-$330.00 (Car Insurance Premium)-$1000.00 (Alimony Payment) = $92,52.

The temporary relief order appears to nearly exhaust Husband’s net income. Without an updated financial affidavit of Husband or discovery from Husband concerning his actual income and expenditures, it is unclear, however, whether the trial court erred. Accordingly, we vacate the current temporary relief order and remand for Husband to make full and current disclosure of his income and expenses, for the trial court to re-evaluate temporary support in light of better information and to enter a new order.

ORDER VACATED; REMANDED.

ORFINGER, C.J., and SAWAYA, J., concur.


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    WELLS FARGO BANK, N.A., Appellant, v. Erica J. STAHLER, Appellee.
    No. 5D11-4547.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      Dean A. Morande, Michael K. Winston and Donna L. Eng of Carlton Fields, P.A., West Palm Beach, and Joshua D. Moore, Carlton Fields, P.A., Orlando, for Appellant.
    George M. Gingo and James E. Orth, Jr., of Gingo & Orth, P.A., Titusville, for Appellee.
   PER CURIAM.

Wells Fargo Bank, N.A. (“Wells Fargo”) appeals an order dismissing -without prejudice its action against Erica J. Stahler. Wells Fargo filed a complaint against Stahler, seeking to reestablish a lost note and mortgage, and to foreclose on certain real property. During the pendency of the litigation, Stahler moved to compel better answers to interrogatories, and to compel production of requested documents, arguing that the first set of responses was evasive and nonresponsive. The trial court granted those motions. Wells Fargo responded by filing a new set of responses to the interrogatories and requests for production. Unsatisfied with Wells Fargo’s response, Stahler filed a motion to dismiss with prejudice, arguing, among other things, that Wells Fargo’s new responses were not compliant with the trial court’s order.

The trial court held a hearing on the motion to dismiss. Stahler argued that because Wells Fargo had failed to comply with the court’s order, the complaint should be dismissed. Wells Fargo argued at length about its own efforts to comply with the court’s order, the vagueness of the interrogatories and requests for production, and its compliance with a monetary sanction imposed by the court. After hearing from both sides, the trial court dismissed the case without prejudice.

The dismissal without prejudice was clearly intended as a sanction for perceived discovery abuses. As such, we agree with Wells Fargo that the trial court erred in failing to include in its order a written finding of willful or intentional defiance of court authority. Commonwealth Fed. Savings & Loans Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990). Dismissal “based on the violation of a discovery order requires express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.” Erdman v. Bloch, 65 So.3d 62, 66 (Fla. 5th DCA 2011). “[C]ontinuing and repeated failure to comply” is not the equivalent of “willful” or “contumacious” behavior, even if it does reflect “sloppy, inattentive and inadequate” counsel. Kelley v. Schmidt, 613 So.2d 918, 920 (Fla. 5th DCA 1993). Generally, “a protracted history of discovery abuses, numerous motions to compel, prior sanctions by the trial court, patent prejudice to the opposing party, or other circumstances” may support a finding of willful or deliberate disregard, but written findings are ultimately needed. Ham v. Dunmire, 891 So.2d 492, 499 (Fla.2004). The order of dismissal makes no findings; additionally, nothing in the current record reflects willful defiance of the court’s order or contumacious behavior.

REVERSED.

PALMER, EVANDER and COHEN, JJ., concur.

      . While titled “without prejudice,” it is conceded that the intent of the court was to put an end to judicial labor in the case. There were no actions Wells Fargo could take short of attempting to file a new lawsuit. See Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010). Appellee has argued, “However, if the Appellant were foolish enough to file another action utilizing the exact same default date as alleged in the first action, then the new case may be barred by res judicata, and it would suffer irreparable harm, albeit at its own hand.”

      . Another judge had been assigned to the case at that time.


author: JACOBUS, Senior Judge.

text:
    Douglas R. INGRAM, Appellant, v. Aurelia A. INGRAM, Appellee.
    No. 5D12-1501.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Douglas R. Ingram, Littleton, Colorado, pro se.
    Joe Teague Caruso of Caruso, Swerbi-low & Camerota, P.A., Merritt Island, for Appellee.
   JACOBUS, Senior Judge.

The former husband, Douglas R. Ingram, appeals a post-judgment order holding him in contempt for his failure to produce certain financial records relating to his 401 (k) account with his employer and ordering him to pay the former wife, Aurelia A. Ingram, $2,500 in attorney’s fees. We affirm in part, and reverse in part.

The parties were divorced by final judgment of dissolution on April 28, 2009. The final judgment gave a portion of the former husband’s 401 (k) to the former wife. The final judgment required the former wife to prepare the Qualified Domestic Relations Order (“QDRO”). The former husband was required to execute and provide all documents necessary to facilitate the preparation of the QDRO, including monthly and year-end statements for his 401(k) account since April 1, 2006, if he had access to them. In over three years since the final judgment, the former husband has not provided any records to the former wife so that the QDRO could be completed, and she has not prepared the QDRO.

. The former wife filed a motion for contempt directed to the former husband’s failure to comply with the final judgment by failing to provide the records necessary to complete the QDRO. At the contempt hearing, the former wife’s counsel explained the posture of the case and what he was seeking on behalf of his client. The former husband appeared by phone and was unsworn. He did testify, albeit not under oath, stating that he did not have the records, he only had access to records involving his 401(k) through a computer link, and the records only went back two years. The former husband was held in contempt for failure to comply with the final judgment by failing to secure the necessary records to complete the QDRO. The former wife was awarded $2,500 in attorney’s fees to be paid by the former husband. The attorney’s fee award was not based on evidence presented at the hearing; rather, it was based solely on the former wife’s attorney’s response to the question of how much he wanted.

The former husband raises several issues on appeal, one of which merits discussion. Although the procedure was somewhat unconventional, we find that the lower court’s finding was not unwarranted in light of the fact that the former husband has failed to comply with the final judgment entered more than three years prior. Although the former husband indicates the 401(k) account records are only available online, it is hard to imagine that the former husband is unable to gain access to these records. We are quite certain that his employer can provide him with the necessary documentation relating to his 401(k) so that the QDRO can be completed. We find no issue with the court’s order of the court as it relates to the obligation of the former husband to provide the necessary documents. However, we take issue with the attorney’s fees. An affidavit was never offered to support the award, and the former wife’s counsel presented the only testimony stating he was seeking $2,500 in fees. Fees are available as a sanction in civil contempt cases, but they must be based on actual damages and supported by findings. H.K. Dev., LLC. v. Greer, 32 So.3d 178, 185-86 (Fla. 1st DCA 2010). For these reasons, we affirm the contempt order and reverse the order awarding attorney’s fees.

AFFIRMED in part; REVERSED in part.

PALMER and LAWSON, JJ., concur.


text:
    Janos FARKAS and Julia Dang, etc., Appellants, v. NATIONSTAR MORTGAGE, LLC, et al., Appellee.
    No. 5D12-4482.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Janos Farkas and Julia Dang, Austin, pro se.
    Nancy M. Wallace and Michael J. Larson of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senter-fitt, Fort Lauderdale, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellee concedes that Appellants have demonstrated reversible error in relation to the trial court’s order dated October 25, 2012. Accordingly, we reverse the October 25, 2012 “Final Judgment of Foreclosure” and remand'for further proceedings.

REVERSED and REMANDED.

TORPY and BERGER, JJ., and JACOBUS, Senior Judge, concur.


text:
    Luis G. TORRES and Carmen Y. Melendez, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., Appellee.
    No. 5D13-221.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Hector Pagan Jr., of Hector Pagan, Jr, P.L., Orlando, for Appellant.
    William David Newman, and Karene Lynn Tygenhof of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellee concedes that Appellants have demonstrated reversible error in relation to the trial court’s order dated December 13, 2012. Accordingly, we reverse the December 13, 2012 “Revised Final Judgment of Foreclosure” and remand for further proceedings.

REVERSED and REMANDED.

TORPY and BERGER, JJ., and JACOBUS, Senior Judge, concur.


text:
    Jon DePRIEST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5331.
    District Court of Appeal of Florida, First District.
    June 28, 2013.
    Jon Depriest, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, ROBERTS, and ROWE, JJ., concur.


text:
    Joseph ATKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2628.
    District Court of Appeal of Florida, First District.
    June 28, 2013.
    Joseph Atkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, ROBERTS, and ROWE, JJ., concur.


text:
    Clifton CLARK, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0319.
    District Court of Appeal of Florida, First District.
    June 28, 2013.
    Clifton Clark, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

LEWIS, ROBERTS, and ROWE, JJ., concur.


author: THOMAS, J.

text:
    Ana TORRES, Petitioner, v. COSTCO WHOLESALE CORP. and Liberty Mutual Insurance Group, Respondents.
    No. 1D13-0754.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    L. Barry Keyfetz, Miami, for Petitioner.
    Douglas W. Barnes of Eraclides, Gel-man, Hall, Indek & Goodman, L.L.P., Aventura, for Respondents.
   THOMAS, J.

We have for certiorari review an order of the Judge of Compensation Claims (JCC) requiring Claimant to submit to an independent medical examination (IME), as requested by the Employer/Carrier (E/ C). We quash the order, because it departs from the essential requirements of law.

Claimant sustained a compensable accident on October 24, 2001, which resulted in an injury to her lumbar spine. Claimant received authorized medical care from various providers, including her treatment in 2003 with Dr. Vega, a pain management specialist. Dr. Vega placed Claimant at maximum medical improvement on July 10, 2003, and assigned a 6% permanent impairment. Claimant also underwent an IME with Dr. Ray in 2003, but that examination did not address pain management.

In 2012, the E/C arranged for another IME with Dr. Wachsman, a pain management specialist, which Claimant declined to attend. In 2013, the E/C filed a motion to compel the examination with Dr. Wachs-man “[biased upon the continued treatment with Dr. Vega and the frequency of the visits and the amount of medications being prescribed.” The E/C asserted that its prior IME with Dr. Ray did not address pain management; that the JCC has jurisdiction to compel attendance at an IME even when there is no petition for benefits pending; and the JCC has jurisdiction to compel attendance when there is a question of overutilization, pursuant to sections 440.13(6) and (7), Florida Statutes (2001).

Claimant filed a response containing two arguments. First, Claimant argued that the E/C failed to detail any legally cognizable dispute regarding overutilization, asserting that the possibility of overutilization was based on speculation. Claimant also argued that the E/C did not establish the necessary statutory criteria for entitlement to an alternate examiner, because Dr. Ray also specialized in pain management.

By order dated January 30, 2013, the JCC granted the E/C’s motion to compel an IME with Dr. Wachsman. In the order under review, the JCC cited Delgado v. J.C. Concrete, 721 So.2d 353 (Fla. 1st DCA 1998). Claimant now seeks certiorari review.

“For a nonfinal [workers’] compensation order to be reviewable by certiorari, a party is required to demonstrate that the order: (1) constitutes a departure from the essential requirements of law; (2) would cause material harm; and (3) could not be adequately remedied on appeal.” See Diestel v. Winfrey Plumbing, Inc., 668 So.2d 283, 284 (Fla. 1st DCA 1996). The E/C does not challenge Claimant’s assertion that a compelled physical exam may provide the irreparable harm that cannot be remedied on appeal; thus, our focus is on whether the order compelling the exam departed from the essential requirements of law.

First, we note that because it was the E/C’s motion to compel an IME, it was the E/C’s burden to establish the factual and legal basis for the examination. See Velasquez v. Malaja Constr., Inc., 720 So.2d 302, 305 (Fla. 1st DCA 1998). Second, we recognize that under section 440.13, Florida Statutes (2001), either party may obtain an IME “[i]n any dispute concerning overutilization, medical benefits, compensability, or disability.” § 440.13(5)(a). To construe this statute, we first look to its plain language. See Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008) (“In construing a statute, this court looks to its plain language.”).

Here, the relevant and plain statutory language requires a “dispute” as the condition precedent to an IME. This was made clear in Lehoullier v. Gevity/Fire Equipment Services, 43 So.3d 834 (Fla. 1st DCA 2010): “Section 440.13(5)(a), Florida Statutes (2007), permits an IME if the facts disclose a dispute ‘concerning overu-tilization, medical benefits, compensability,’ or disability. Under this provision, ‘the only condition required for a party to request an IME is a dispute.’ Id. at 836. (quoting Cortina v. State, Dep’t of HRS, 901 So.2d 273 (Fla. 1st DCA 2005) (emphasis in original)). In Lehoullier, the alleged dispute concerned both the length of the claimant’s treatment with one of his physicians, and whether the claimant had a psychiatric condition, after the E/C had authorized psychiatric care. Id. at 835. This court held that “dispute” must be read to be “a legal dispute cognizable under the Florida Workers’ Compensation Law.” Id. at 836. In Lehoullier, it was determined there was no dispute, because no requested benefit or medical treatment had been denied by the E/C. Id.

Here, under the statute, an E/C’s claim to need a utilization review can potentially constitute a “dispute” between an E/C and a health care provider. See § 440.13(6) and (7), Fla. Stat. (2001). Nevertheless, the IME statute still requires that the E/C must establish some facts to show it is entitled it to an IME. See § 440.13(5)(a), Fla. Sta. (2001).

Under Delgado, it appears there was no question but that the E/C had begun its utilization review. 721 So.2d at 354. Here, however, the E/C’s motion avers only that Claimant began treating with Dr. Vega in 2003, and since that time,

Claimant has been treating with Dr. Vega on a regular basis since being placed at maximum medical improvement [July 10, 2003]. Dr. Vega has provided injections, as well as the following medications: Percocet, Soma, Zolpi-dem, Klonopin, Zantac, Lodine, Trama-dol, and Lidoderm patches. In addition to treating claimant for her lumbar spine, Dr. Vega has been treating claimant for a cervical condition since 3/3/08 for which the doctor is being paid by Medicare.

In that the motion was filed over twelve years after Dr. Vega began treatment, the vague assertion that the doctor sees Claimant “on a regular basis” and has prescribed eight different medications in that same time period does not set out a prima facie case for overutilization. The E/C’s assertion is similar to the “concern over Claimant’s progress with the physician it authorized to treat Claimant’s injuries,” which this court found insufficient to demonstrate a dispute in Lehoullier. 43 So.3d at 836.

We hold that the E/C must present some evidence to demonstrate that it is in fact engaged in the statutory utilization review process. Under section 440.13(5)(a), Florida Statutes (2001), argument and assertions by counsel are not evidence sufficient to demonstrate the existence of a dispute. See, e.g., Bellamy v. Golden Flake Snack Foods, Inc., 97 So.3d 941 (Fla. 1st DCA 2012) (quashing order compelling IME, stating, “Simply expressing unilateral speculative concerns over a claimant’s progress with' an authorized physician is insufficient” to create medical “dispute” warranting IME) (quoting Lehoullier, 43 So.3d at 836).

Because the JCC departed from the essential requirements of law in compelling Claimant to attend a physical examination without evidence of a dispute, we need not reach Claimant’s second argument. Accordingly, the petition for writ of certiorari is GRANTED, and the January 30, 2013, order compelling Claimant’s attendance at an IME is QUASHED.

ROWE and SWANSON, JJ., concur.


text:
    C.L.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6132.
    District Court of Appeal of Florida, First District.
    July 5, 2013.

      Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Monique Rolla, Assistant Attorney General, Trisha Meggs Pate, Bureau Chief, Tallahassee Criminal Appeals, Office of the Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the trial court’s adjudication of delinquency, contending the court erred in denying his dispositive motion to suppress cannabis and drug paraphernalia found by police in Appellant’s home. Appellant argues the court erred, because the facts did not establish that the “emergency aid exception” justified a war-rantless search of the home. For the reasons explained below, we disagree and affirm.

Factual Background

Appellant and his friend got into a fight with Curtis Pierce, another resident of Appellant’s home. Someone made a 911 hang-up call, during which a disturbance or altercation was heard in the background. Two deputies were dispatched to the location of the call where they encountered Mr. Pierce outside of the residence. The deputies observed blood on his hands, but no injury. Mr. Pierce was uncooperative, evasive, angry, and irate while talking with the deputies. He eventually told them he had been in a fight at the residence, but claimed that the other participants had already left. Nevertheless, concerned about the safety of the other participants, the officers decided to enter the residence to check on the safety of anybody inside.

The deputies entered the home through an unlocked door in the garage. After loudly announcing their presence three or four times without receiving a response, the deputies entered the house, where they observed Appellant and his friend asleep on two couches. They also observed a bong pipe and a small baggie of marijuana on the coffee table, and noticed an odor of burnt marijuana in the air. As the deputies approached the sleeping juveniles, they observed that Appellant’s friend had a black eye and Appellant had a laceration on his head. The deputies awoke the two juveniles and quickly discovered that they were both intoxicated. After Appellant was apprised of his Miranda rights, he agreed to speak and admitted to possessing the marijuana.

At the adjudicatory hearing, Appellant moved to suppress the cannabis and drug paraphernalia, arguing that the deputies violated his Fourth Amendment right against unreasonable searches and seizures. Specifically, Appellant argued that any exigency “evaporated” when Mr. Pierce told the deputies that the other participants in the fight had left. The trial court found that the deputies’ entry into the home fit within the emergency aid exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, and it denied the motion.

Analysis

A trial court’s ruling on a motion to suppress is a mixed question of law and fact. Johnson v. State, 995 So.2d 1011, 1013 (Fla. 1st DCA 2008). The trial court’s findings of fact will be upheld if supported by competent, substantial evidence. Id. That “evidence and the reasonable inferences drawn therefrom must be viewed ‘in a light most favorable to affirming the trial court’s rulings.’ ” Id. (quoting Ingram v. State, 928 So.2d 423, 428 (Fla. 1st DCA 2006)). The application of the law to those facts is subject to de novo review. Id.

Emergency Exception to Warrant Requirement

“[L]aw enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury” without running afoul of an occupant’s Fourth Amendment right against unreasonable searches and seizures. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The Florida Supreme Court has recognized that the authority of the police to enter private property in the face of an emergency “ ‘is inherent in the very nature of their duties as peace officers and derives from the common law.’ ” Riggs v. State, 918 So.2d 274, 280 (Fla.2005) (quoting Zeigler v. State, 402 So.2d 365, 371 (Fla.1981)) (“The right of police to enter and investigate an emergency ... is inherent in the very nature of their duties as peace officers and derives from the common law.”). In Riggs, the supreme court rejected our contrary rationale in Eason v. State, 546 So.2d 57 (Fla. 1st DCA 1989), “to the extent it conflicts” with Riggs. Riggs, 918 So.2d at 276.

To justify an emergency entry into a home by police officers, the State must demonstrate that “an objectively reasonable basis exist[ed] for the officer to believe that there is an immediate need for police assistance for the protection of life....” Seibert v. State, 923 So.2d 460, 468 (Fla.2006); see also Brigham City, 547 U.S. at 404, 126 S.Ct. 1943. “It is immaterial whether an actual emergency existed in the residence; only the reasonableness of the officer’s belief at the time of entry is considered on review.” Seibert, 923 So.2d at 468. The “inquiry must be undertaken in light of the totality of the circumstances confronting the officers, including, in many cases, a need for an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.” U.S. v. Martins, 413 F.3d 139, 147 (1st Cir.2005), cert. denied, 546 U.S. 1011, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005); see also Seibert, 923 So.2d at 468; Riggs, 918 So.2d at 282.

In Riggs, the Florida Supreme Court applied a two-pronged analysis in determining the reasonableness of an emergency entry, considering first whether the officers had reasonable grounds to believe that there was an emergency situation, and second, whether the officers had reasonable grounds to connect the emergency to the property in question: 918 So.2d at 282. Therefore, in order for an emergency entry into a home to comport with the demands of the Fourth Amendment, the State must show that, in light of the totality of the circumstances, the officers reasonably believed both that a person was in danger and that entry into the home was a necessary step toward providing aid to the endangered person.

When police officers arrive at the source of a 911 call and find suspicious circumstances, they may enter the home even where a life-threatening emergency has not been positively identified. Seibert, 923 So.2d at 469. In Campbell v. State, 477 So.2d 1068, 1070 (Fla. 2d DCA 1985), the Second District held that when police are responding to a 911 call, they are justified in entering the location where that call was made “to facilitate their investigation of the emergency,” even if the occupant and person who made the call denies consent. Similarly, in State v. Barmeier, 878 So.2d 411 (Fla. 3d DCA 2004), the Third District held that when police are responding to a 911 call, they are justified in entering the location where the call was made, after not receiving any response to their knocks and announcements of their presence. In In re J.B., 621 So.2d 489 (Fla. 4th DCA 1993), the court held that because a 911 call may be a call for help, when police observe suspicious circumstances where the call was made, they have a duty to enter and investigate, even if the occupant attempts to deny them entry.

Evidence that is discovered during an emergency entry may be lawfully seized if the evidence was observed in plain view during the course of the emergency. In Seibert, the Florida Supreme Court explained that “ ‘if the police enter a home under exigent circumstances and, prior to making a determination that the exigency no longer exists, find contraband in plain view, they may lawfully seize the illegal items.’ ” Seibert, 923 So.2d at 470 (quoting Davis v. State, 834 So.2d 322, 327 (Fla. 5th DCA 2003)). This is because the officers are justified in being where they are, and the contraband is not the product of an additional unjustified search. “ ‘However, if the police determine the exigency that initially allowed their entry into the residence no longer exists, any subsequent search is illegal and any contraband discovered pursuant to the illegal search is inadmissible.’ ” Id. Therefore, when officers are in a home because of an exigent circumstance, any evidence which is in plain view during the duration of the exigency can be seized.

In this case, the deputies’ belief that a medical emergency existed was imminently reasonable. The 911 hang-up call indicated that a physical altercation of some kind had occurred, which supports a reasonable belief that the 911 hang-up call was a “call for help.” See In the Interest of J.B., 621 So.2d at 490. Here, the deputies arrived at the scene to find a man who was agitated, angry, and uncooperative, with blood on his hands, and he told the deputies he had been in a fight. These facts indicated that another person could be seriously hurt and in need of medical attention; therefore, the totality of the circumstances confronting the deputies gave them reasonable grounds to believe that an emergency existed.

The deputies’ belief that the emergency necessitated their immediate entry into the home was reasonable. Although Mr. Pierce stated that the other participants in the fight had left, he also stated that the fight had occurred at the home. Where the location of a potentially injured party is uncertain, and a witness is evasive or uncooperative, it is entirely reasonable to begin looking at the location where the injury is believed to have been incurred. Appellant argues that the emergency “evaporated” after Mr. Pierce identified the home as the location of the fight, because Mr. Pierce made a concerted effort to withhold consent from the deputies to enter the home, and in fact stated that the other participants had already left. However, “[t]he right of police to enter and investigate an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law.” Zeigler, 402 So.2d at 371 (emphasis added). Therefore, the totality of the circumstances demonstrated that immediate entry into the home was necessary to render aid to an injured party-

The deputies in this case found the contraband before alleviating their concerns regarding the safety of Appellant and his friend; therefore, the seizure was proper under the Fourth Amendment. As the deputies entered the living room, they immediately observed the contraband, before ascertaining the actual condition of Appellant and his friend. As the deputies approached the two young men, they observed that both had sustained injuries. Therefore, the exigency was not yet over when the deputies observed the contraband in plain view.

Conclusion

For the foregoing reasons, the deputies’ entry into Appellant’s home fits within the emergency aid exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, and the trial court’s adjudication of delinquency is affirmed.

AFFIRMED.

BENTON and CLARK, J., concur.


text:
    Ladaniel LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1136.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Petitioner LaDaniel Lee, pro se.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

LaDaniel Lee petitions this Court for relief due to ineffective assistance of appellate counsel. In the direct appeal following Lee’s conviction for robbery with a weapon, his attorney failed to raise a meritorious, preserved argument as to which we granted his codefendant relief in Collier v. State, — So.3d - (Fla. 1st DCA 2013). In this case, the failure to raise the issue meets the deficiency prong of the Strickland test. See Cupon v. State, 833 So.2d 302, 304-05 (Fla. 1st DCA 2002). Further, the Collier opinion establishes that the result of Lee’s appeal would have been different if the issue had been raised. The fairness and correctness of Lee’s direct appeal has thus been undermined, such that he has established prejudice under Strickland. See id. Accordingly, we grant the petition, vacate Lee’s judgment and sentence, and remand this case to the circuit court for further proceedings consistent with Collier.

PETITION GRANTED.

VAN NORTWICK, MARSTILLER, and RAY, concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Ivan TILLETT, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Spirit Airlines Inc., Appellees.
    No. 1D13-2105.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Ivan Tillett, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

To be timely, a notice of appeal must be filed -with the appropriate court within 30 days of rendition of the order on appeal. Fla. R.App. P. 9.110(b). Merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient. Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Although appellant alleges he mailed the notice of appeal within the appropriate time, it was not received by the Court until May 6, 2013, and was therefore not filed in a timely manner. Further, the filing of a notice of appeal is jurisdictional. Florida courts are required to dismiss an appeal if the notice is not filed within the applicable time limit. See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003). Accordingly, the appeal is dismissed.

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


text:
    C.T., Mother of A.B. and J. W., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-2132.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    C. T., MOTHER OF A.B. AND J. W., MINOR CHILDREN, pro se, Appellant.
    Ward L. Metzger, Children’s Legal Services, Jacksonville; Drew Parker, General Counsel, Department of Children and Families, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b). This dismissal is without prejudice to appellant’s right to seek relief in the trial court. See Interest of E.H., 609 So.2d 1289, 1290-1291 (Fla.1992).

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


text:
    Arzell DIGGS Jr., Appellant, v. T.E.W. On Behalf Of A.W., Appellee.
    No. 1D13-2421.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Anabelle Dias and Kevin Robert Alvarez of Anabelle Dias, P.A., Tallahassee, for Appellant.
    T.E.W. on behalf of A.W., pro se, Appel-lee.
   PER CURIAM.

DISMISSED. See Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000) (explaining avenues for obtaining belated appeal and stating that in civil proceedings a “petitioner must seek relief in the trial court by motion pursuant to rule 1.540”). Compare Hollifield v. Renew & Co., Inc., 18 So.3d 616 (Fla. 1st DCA 2009) (granting petition for writ of certiorari where “no action attributable to the circuit court or court personnel contributed to counsel’s neglect in failing to take a timely appeal”), with Pompi v. City of Jacksonville, 872 So.2d 931, 933 (Fla. 1st DCA 2004) (concluding trial court erred in denying relief from late filing caused by an excusable error).

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