author: PER CURIAM.

text:
    Virginia HOKENSTROM and Holly Hokenstrom, Appellants, v. ENVIRON TOWERS I CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D13-1185.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellants.

      Max R. Price and Jay S. Warman of Law Offices of Max R. Price, P.A., Miami, for appellee.
   PER CURIAM.

Appellants, Virginia Hokenstrom and Holly Hokenstrom, were co-owners of a condominium apartment at Environ Towers. Appellee, the condominium association, has a fífty-fíve and older age restriction for all residents. Appellee sought injunctive relief against appellants that would require Holly Hokenstrom, Virginia’s daughter, to vacate the unit because she was and still is under the age of fifty-five. A final summary judgment was issued and Holly Hokenstrom was ordered to vacate the condo within thirty days of the order. The court ultimately found the daughter in contempt of court because she failed to “vacate” the condo, continuing to spend several hours nearly every day at the premises for purported “remodeling and gardening,” and staying overnight on several occasions. For the reasons set forth below, we reverse the court’s order finding the daughter in contempt.

The daughter argued that the final summary judgment’s order to vacate was ambiguous, unclear and imprecise, and therefore her actions could not be deemed an intentional violation of the order. However, according to the court, the plain meaning of the word “vacate,” as used in the context of real estate law, is “to surrender occupancy or possession; to move out or leave.” Black’s Law Dictionary (9th ed. 2009). Therefore, the court held: “In no instance does the use of the word ‘vacate’ mean that the person ordered to vacate is permitted to spend several hours per day at the property in question.... Regardless of the nature of her activity, [the daughter] cannot be present at Unit 2-508 on such a frequent and routine basis and also be in compliance with this court’s Final Summary Judgment.”

We find that the trial court erred in holding the daughter in contempt based upon supposed violations of an ambiguous judgment. To be held in contempt of a court order, a party must have willfully and substantially refused to comply with a precise and unambiguous order. DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). In DeMello, this court explained:

When a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order. See Keitel [v. Keitel], 716 So.2d [842,] 844 [(Fla. 4th DCA 1998) ] (mother’s relocation out of state with children could not serve as a basis for order of civil contempt where the final judgment of dissolution did not contain an express provision prohibiting the relocation). Even though a judgment of contempt is clothed with a presumption of correctness, one may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction. See id.; see also Lawrence v. Lawrence, 384 So.2d 279, 280 (Fla. 4th DCA 1980). Prior to assessing contempt sanctions for a violation of a court order, the trial court must first have issued a clear and unambiguous order or otherwise clearly established for the record the standards of conduct required by the court. See Carnival Corp. v. Beverly, 744 So.2d 489, 496-97 (Fla. 1st DCA 1999). Implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt. See Keitel, 716 So.2d at 844. Courts should be explicit and precise in their commands and should only then be strict in exacting compliance. See Lawrence, 384 So.2d at 280.

Id. at 1093-94.

As a co-owner of the unit, the daughter has certain responsibilities under the Florida Statutes as well as the condominium’s bylaws and declarations that might require some degree of routine presence at the unit. The judgment entered by the trial court gives insufficient directives to the daughter as to how she can both fulfill these obligations and comply with the court’s order. The court simply ordered the daughter to “vacate” the condo without providing any further specificity. Under these circumstances, the term “vacate” could be interpreted in ways as might otherwise impair her ability to properly fulfill her co-ownership responsibilities, or so overbroad as to prohibit her presence at the condo even as an infrequent visitor. At the hearing on the motion for contempt, it was undisputed that since the final judgment was entered, the daughter had taken actions which included entering into a new lease agreement and moving to an apartment in another city where she receives her mail. A reasonable person could believe that the acts of moving out of the unit and signing a lease for a new apartment would be sufficient to comply with an order. to “vacate” the condo pursuant to the terms of the judgment.

In sum, the court’s final judgment does not provide sufficient direction about what the daughter must do to comply with its order, thereby rendering it imprecise and ambiguous. As such, the court’s finding of contempt was error.

Reversed.

TAYLOR, CONNER and KLINGENSMITH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    SAGA BAY GARDENS CONDOMINIUM ASSOCIATION, INC., Appellant, v. FOR The APPOINTMENT OF BLANKET RECEIVER, Appellee.
    Nos. 3D12-1859, 3D12-2912.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.

      Lisa Lehner, P.A., and Lisa B. Lehner, for appellant.
    The Reyes Law Firm, P.A., and Israel Reyes and Christopher Reyes, for appel-lee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Saga Bay Gardens Condominium Association (“the Association”) appeals the trial court’s award of attorney’s fees and costs to Israel Reyes (“the receiver’s attorney”). We reverse because the receiver’s attorney lacked standing to pursue the receiver’s claim for attorney’s fees and costs.

In November 2011, Saga Bay Gardens Condominium had a number of units delinquent in assessments. As a result, the Association petitioned the trial court for the appointment of a receiver. The trial court granted the petition and appointed Enrique Garcia (“the receiver”).

In the order appointing the receiver, the trial court authorized him “[t]o employ attorneys to provide legal services for [him] for such purposes as may be necessary during the period of the receivership,” including any services related to a person or entity interfering with him in the performance of his duties. The order went on to state that “[s]hould the Receiver be required to engage the services of [his] attorney(s) for the enforcement of this Order, the Receiver shall [be] entitled to reasonable costs, expenses, and attorney(s) fees.”

In December 2011, a group of Saga Bay Gardens Condominium unit owners filed a motion to intervene and to vacate the order appointing the receiver, in which several allegations were made against the receiver. The receiver’s attorney responded to the motion, contending that the unit owners seeking to intervene lacked a sufficient interest in the case. Following a hearing, the trial court granted the motion and discharged the receiver. The receiver incurred additional legal fees subsequent to his discharge that apparently related to his obligation under a new receivership order to cooperate with his replacement.

In March 2012, the receiver’s attorney filed a motion to withdraw from the case, which was granted. One month later, the receiver’s attorney moved for attorney’s fees and costs that had been incurred prior to — and subsequent to — the receiver’s discharge. The trial court granted the motion. This appeal followed.

The receiver’s attorney lacked standing to pursue an award of attorney’s fees and costs independent of the receiver. See Cacho v. The Bank of New York Mellon, 124 So.3d 943, 945 (Fla. 3d DCA Sept. 25, 2013) (holding that an attorney who withdrew as counsel of record and failed to timely seek a charging lien lacked standing to pursue attorney’s fees on his behalf in a foreclosure suit); see also Fickle v. Adkins, 385 So.2d 1141, 1142 (Fla. 3d DCA 1980) (“We are cognizant of the oft-stated proposition that the right to attorneys’ fees is derivative in nature ....”). Under the order appointing the receiver, the receiver-not an attorney-was entitled to seek an award of attorney’s fees and costs: “the Receiver shall [be] entitled to reasonable costs, expenses, and attorney(s) fees.” (emphasis added). Moreover, the record reflects that no other court order, such as an order that approved retaining the receiver’s attorney, permitted the receiver’s attorney to pursue an award of attorney’s fees and costs independent of the receiver. We therefore reverse and vacate the award of attorney’s fees and costs to the receiver’s attorney.

      . Because we reverse on the issue of standing, we need not address the other issues raised by the Association on appeal, such as whether the services rendered by the receiver's attorney benefitted the receivership estate or the receiver individually. Of course, attorney’s fees and costs cannot be awarded to a receiver if the expenses do not benefit the receivership estate. Sundale Assocs. Ltd. v. Moore, 481 So.2d 1300, 1301 (Fla. 3d DCA 1986) (holding that a former receiver could not recover attorney's fees and costs when one party to an earlier lawsuit alleged that he committed a tort during the receivership “[b]ecause these expenses did not arise out of the receivership and could not in any way benefit the receivership estate, as opposed to the receiver individually”); Tanner v. Ledington, 513 So.2d 255, 256 (Fla. 2d DCA 1987) (holding that a trial court lacked authority to award attorney’s fees and costs incurred by a receiver in defending her actions as the receiver because "[a]ny benefit derived from the legal services performed at [the receiver’s] behest accrued to her individually and not to the estate”).

      . It would be in the best interests of both receivers and attorneys for the receiver to obtain court approval prior to retaining legal services. Creative Prop. Mgmt., Inc. v. Gen. Elec. Credit Corp. of Ga., 314 So.2d 807, 808 (Fla. 3d DCA 1975) (recognizing that "the better practice would be for the receiver to obtain approval of the court prior to the engaging of counsel and rendition of services by him,” even though such approval is not required) (citing Lewis v. Gramil Corp., 94 So.2d 174, 177 (Fla. 1957)).


author: VILLANTI, Judge.

text:
    KINGSTON CORPORATION GROUP OF FLORIDA, INC.; Kingston Group, LLC; Tamiami Hoehne, LLC; and The Source Ministries, Inc., Appellants, v. RICHARD KLEIBER WALTER KLEIBER PARTNERSHIP, Appellee.
    Nos. 2D11-4878, 2D11-6440.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Richard V. Lee, Bradenton, for Appellants.
    Philip N. Hammersley and Derrick Maginnes of Norton, Hammersley, Lopez & Skokos, P.A., Sarasota, for Appellee.
   VILLANTI, Judge.

Appellants Kingston Corporation Group of Florida, Inc. (KCGF); Kingston Group, LLC; Tamiami Hoehne, LLC; and The Source Ministries, Inc., seek review of two final judgments entered in favor of appel-lee Richard Kleiber Walter Kleiber Partnership (RKWKP) in these proceedings supplementary. We affirm both judgments to the extent that they award attorney’s fees against KCGF without further comment. However, we reverse both judgments to the extent that they purport to award attorney’s fees against the remaining appellants and remand for entry of corrected judgments.

In 2006, KCGF filed suit against RKWKP based on allegations arising out of a real estate transaction. During the course of litigation, RKWKP served a proposal for settlement on KCGF, which KCGF did not accept. Following a bench trial, the trial court entered judgment in favor of RKWKP. RKWKP then sought an award of its attorney’s fees and costs based on the unaccepted proposal for settlement. The trial court found the proposal valid and entered judgment against KCGF in the amount of $81,824.59.

However, when RKWKP attempted to collect on this judgment, it discovered that KCGF had no funds with which to satisfy the judgment. RKWKP then instituted proceedings supplementary, during which it impleaded appellants Kingston Group, LLC; Tamiami Hoehne, LLC; and The Source Ministries, Inc. (collectively “the impleaded parties”), — entities that RKWKP alleged were owned and controlled by Ralph and Joanne Hoehne, the principals of KCGF. In the proceedings supplementary, RKWKP alleged that KCGF had fraudulently transferred its assets to the impleaded parties in a deliberate effort to avoid satisfying RKWKP’s judgment. KCGF and the impleaded parties asserted that the disputed transfers were made for legitimate purposes during the regular course of business of each of the entities.

A special magistrate held an evidentiary hearing in the proceedings supplementary, following which it found that the disputed transfers constituted fraudulent transfers. Based on that finding, the magistrate recommended that the disputed transfers from KCGF to the impleaded parties be voided so as to allow RKWKP access to those assets to satisfy its judgment against KCGF. The trial court subsequently adopted the magistrate’s recommended order and entered a final judgment against the impleaded parties voiding the transfers in question. Later, the trial court entered a second final judgment awarding RKWKP the attorney’s fees and costs it incurred in the proceedings supplementary.

In this appeal, the impleaded parties argue that both final judgments in the proceedings supplementary improperly award attorney’s fees and costs against them. We agree that the impleaded parties are not liable for attorney’s fees and costs in these proceedings supplementary. In such proceedings, attorney’s fees and costs may be awarded only against the original judgment debtor — not against any impleaded parties. See, e.g., Bloco, Inc. v. Porterfield, Oil Co., 990 So.2d 578, 580 (Fla. 2d DCA 2008); Gaedeke Holdings, Ltd. v. Mortg. Consultants, Inc., 877 So.2d 824, 826 (Fla. 4th DCA 2004); Dusoe v. Securis Int'l, Inc., 672 So.2d 89, 90 (Fla. 1st DCA 1996); Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993); see also § 56.29(11), Fla. Stat. (2011). Here, the only judgment debtor is KCGF, and the trial court had no lawful authority to award attorney’s fees and costs against any party to these proceedings supplementary other than KCGF.

RKWKP does not dispute this general proposition of law; however, it claims that no error occurred because the trial court did not actually award attorney’s fees and costs against the impleaded parties. We cannot agree with RKWKP’s characterization of the substance of the final judgments.

The final judgment on the merits is entitled “Final Judgment Against Implead-ed Parties Kingston Group, LLC, Tamiami Hoehne, LLC[,] and The Source Ministries, Inc.” It awards judgment against the impleaded parties jointly and severally, and it “reserves jurisdiction to award costs and attorney’s fees in favor of Defendant [RKWKP] as set forth in the Recommended Order of the Special Magistrate.” The magistrate’s recommended order provided that “RKWKP’s court costs and attorney’s fees incurred in these proceedings supplementary are taxed against KCGF and the Impleaded Parties jointly and severally.” (Emphasis added.) Thus, it is clear that the final judgment on the merits finds that the impleaded parties are jointly and severally liable for RKWKP’s attorney’s fees and costs incurred in the proceedings supplementary.

In the subsequent “Final Judgment Awarding Attorney’s Fees and Costs For Proceedings Supplementary,” the trial court awarded RKWKP a total of $48,700.03 in attorney’s fees and costs to be recovered from “Plaintiff, Kingston Corporation Group of Florida, Inc.” We agree with RKWKP that this judgment does not specifically award attorney’s fees against the impleaded parties. However, the judgment then provides that RKWKP is “entitled to the issuance of executions against any or all of the Impleaded Parties in order to effect collection of this judgment.” Notably, nothing in this final judgment for attorney’s fees and costs limits the writs of execution to the fraudulently transferred assets of KCGF in the possession of the impleaded parties. Hence, the effect of this final judgment is to allow RKWKP to execute on any and all assets held by the impleaded parties, without any limitations, to satisfy a judgment for attorney’s fees and costs entered solely against KCGF.

Accordingly, to the extent that the “Final Judgment Against Impleaded Parties Kingston Group, LLC, Tamiami Hoehne, LLC[,] and The Source Ministries, Inc.” purports to reserve jurisdiction to award attorney’s fees and costs against the im-pleaded parties jointly and severally with KCGF, we reverse because attorney’s fees and costs are not legally awardable against the impleaded parties. RKWKP’s attorney’s fees and costs incurred in the proceedings supplementary are recoverable only from KCGF, the original judgment debtor.

For the same reason, we must reverse the “Final Judgment Awarding Attorney’s Fees and Costs For Proceedings Supplementary” to the extent that it purports to permit writs of execution against all of the assets of the impleaded parties — rather than solely the assets of KCGF now in the hands of the impleaded parties as a result of the fraudulent transfers. See § 56.29(5) (permitting the court to order that any property of the judgment debtor “in the hands of any person” may be applied toward satisfaction of the judgment debt). Only those assets of KCGF in the hands of the impleaded parties may be obtained by RKWKP to satisfy its judgment and the award of attorney’s fees and costs. On remand, the trial court must enter corrected final judgments that conform with this opinion.

Affirmed in part, reversed in part, and remanded for entry of corrected final judgments.

NORTHCUTT and SLEET, JJ., Concur.

      . RKWKP also impleaded The Hoehne Family Limited Partnership, but that partnership was subsequently dropped as a party.


author: ALTENBERND, Judge.

text:
    Rickie Joe BRADLEY, Doc # 510898, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6053.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Rickie Joe Bradley appeals his judgment and sentence for battery on a person over the age of sixty-five. We affirm. We write to distinguish this case from Talley v. State, 106 So.3d 1015 (Fla. 2d DCA 2013), because, unlike in Talley, the extra comma in the self-defense jury instruction is not a fundamental error.

The victim in this case was a black man over the age of sixty-five who, along with his daughter, accompanied a woman, Ms. Anderson, to the home of Mr. Bradley. Ms. Anderson’s daughter was a friend of Mr. Bradley’s daughter and she was visiting the Bradley home. She had planned to spend the night at the Bradley home for a sleepover. Ms. Anderson had changed her mind about allowing her daughter to spend the night at the Bradley home. Thus, the victim drove Ms. Anderson and his daughter to the Bradley home in his truck to pick up Ms. Anderson’s daughter.

When the group of three arrived, Mr. Bradley and Ms. Anderson got into a verbal disagreement. This argument occurred near the truck; the group did not enter the Bradley home. Ms. Anderson claimed that Mr. Bradley was upset because she had brought a black man to his home. She claimed that Mr. Bradley was using racial slurs and that he shifted his attention to the victim. He hit and kicked the victim. The victim and his daughter testified that the attack was not provoked. Ms. Anderson testified that the victim had made aggressive movements toward Mr. Bradley. Mr. Bradley did not testify.

Following this attack, the victim returned to the truck. He obtained a lug wrench for protection, but it is undisputed that he never tried to hit Mr. Bradley with the lug wrench. He gathered up his daughter, Ms. Anderson, and her daughter, and they left the scene. The incident was quickly reported to the police. The investigating officer noted bruising on the victim’s arm and forehead. He observed no injuries to Mr. Bradley, who had alcohol on his breath.

Mr. Bradley presented no evidence in his case. His theory of self-defense was based on three matters: (1) Ms. Anderson’s description of aggressive movement, (2) the possibility that the victim may have become aggressive in light of Mr. Bradley’s racial slurs, and (3) the fact that the first thing Mr. Bradley said to the arresting officer was: “The [victim] took a swing at me, so I swung at him.”

The State charged Mr. Bradley with a racially motivated battery on a person over the age of sixty-five. The jury found that the battery occurred, but it did not find that it was racially motivated. The trial court sentenced Mr. Bradley to 79.2 months’ imprisonment, the lowest permissible guidelines sentence in light of Mr. Bradley’s extensive prior record.

The only issue raised on appeal is whether the standard jury instruction on self-defense given in this case was erroneous due to an extra comma. This error was not preserved in the trial court and is raised in this court as a matter of fundamental error.

The portion of the written self-defense instruction at issue provides:

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

(Emphasis added.) As in Talley, the written instruction utilized in this case misplaces a comma after the phrase “including deadly force.” See Talley, 106 So.3d at 1016. In Talley, the defendant was convicted of felony battery in a case in which the alleged victim testified that Mr. Talley stabbed him twice without provocation. Mr. Talley denied that he stabbed the victim. He testified that the alleged victim started the fight and sustained his injuries as the two men wrestled against a chain-link fence that had protruding sharp wires. There were no witnesses to support either version. The assistant state attorney in Talley actually relied on the extra comma in the jury instruction when explaining the law — incorrectly—to the jury.

By contrast, although the written jury instruction in this case contained the extra comma, the assistant state attorney provided a correct explanation of the applicable law of self-defense in his initial closing argument. Mr. Bradley’s attorney agreed in her closing argument on his behalf that the explanation provided by the assistant state attorney was correct.

We recognize that when an error occurs in an instruction presenting the defendant’s sole defense it is more likely that the error should be regarded as fundamental. See, e.g., Crimins v. State, 113 So.3d 945 (Fla. 5th DCA 2013). But in this case, the evidence suggesting that Mr. Bradley had any need to act in self-defense was extremely limited. The State had eyewitnesses that refuted the defense. The physical evidence observed by the police officer tended to refute the defense. There was no testimony that either man used deadly force. Given that the explanation of the law was correct as provided by the attorneys, the jury would have had to read the written instruction very closely to discover the additional comma. As a result, we are confident that this comma in the written jury instruction played no role in the jury’s decision-making process.

Ultimately, it was Mr. Bradley’s burden of persuasion in this case to demonstrate that the error deprived him of a “fair trial.” See Martinez v. State, 981 So.2d 449, 455 (Fla.2008). He has not met that burden. Mr. Bradley had a fair opportunity to present his defense and the jury simply accepted the conflicting testimony presented by the State.

Affirmed.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . We have substituted "victim” for the profane, racially-derogatory name actually contained in the quotation.

      . During the pendency of this appeal, Mr. Bradley filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court granted the motion and entered an amended sentence reducing the term of imprisonment to 75.45 months.

      . Admittedly, the record cannot demonstrate what, if any, effect the comma may have had upon the cadence of the trial judge as he read this instruction aloud.


author: DAVIS, Chief Judge.

text:
    Frederick SMITH, Appellant, v. GEICO CASUALTY COMPANY, Appellee.
    No. 2D11-6392.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Stephan A. Barnes of Barnes Trial Group, Tampa, and Valeria Hendricks of V. Hendricks, P.A., Tampa, for Appellant.
    Joseph F. Kinman of Ogden & Sullivan, P.A., Tampa, and Henry G. Gyden and Dorothy V. DiFiore of Haas, Lewis, DiF-iore, P.A., Tampa, for Appellee.
   DAVIS, Chief Judge.

Frederick Smith challenges the trial court’s final judgment in favor of Geico Casualty Company in Mr. Smith’s uninsured motorist action against the insurer. The trial court’s final judgment was based on a jury verdict by which the jury awarded Mr. Smith past medical damages but denied him future medical expenses. We affirm the final judgment but write to address two evidentiary issues.

Mr. Smith was a passenger on a public bus when the bus was involved in an accident with another vehicle. Mr. Smith alleges that as a result of the accident, he received injuries to his back requiring extensive treatment and multiple surgeries. Mr. Smith filed a cause of action against the driver of the other vehicle and Geico as his underinsured motorist carrier. In his complaint, he claimed that he had incurred a permanent physical injury, had $250,000 in past medical expenses, and was entitled to an award of future medical expenses. Geico argued below that Mr. Smith had a prior degenerative condition not related to the accident. Additionally, Geico pointed to prior back problems suffered by Mr. Smith, questioned the necessity of some of the surgeries and procedures that Mr. Smith had incurred, and cast doubt on whether Mr. Smith was in as much pain as he claimed. The issues of causation and damages both were closely contested.

During the pendency of the action below, Mr. Smith settled with the driver of the other vehicle and voluntarily dismissed the action against him. The action against Geico proceeded to jury trial, and the jury returned a verdict in Mr. Smith’s favor for $20,000 in past medical expenses but also found that Mr. Smith had not incurred a permanent injury as a result of the accident and was not entitled to any future medical expenses. Mr. Smith now appeals the final judgment based on the jury’s verdict.

On appeal, Mr. Smith first argues that the trial court erred in allowing Geico to present to the jury videos taken by surveillance cameras located within the bus. These were time-lapse videos that showed only four to five frames per second as opposed to real time videos, which the parties agreed below typically show twenty-nine to thirty frames per second. In opening statement, counsel for Geico indicated that the jury would “get to actually see the accident occur because the accident was recorded on bus videotapes.... And you’ll get to see what happened to Mr. Smith in the bus.” Counsel for Geico further stated that Geico’s expert witness, an accident reconstructionist, had viewed the videos and would use them to testify as to the speed at which the bus was traveling and the distance the bus traveled during the accident. In objecting to the introduction of the videos, Mr. Smith first stipulated to the speed and distance traveled as determined by Geico’s expert. He then argued that the videos were not fair and accurate representations of what occurred on the bus and that the probative value of the videos was outweighed by the possibility that they would mislead the jury because they did not “catch the entire motion of Mr. Smith. It catches him at certain points. We don’t know what happened in the other frames.” The trial court overruled Mr. Smith’s objection and allowed the time-lapse videos to be shown to the jury.

Mr. Smith maintains on appeal that this was error because the images on the time-lapse videos did not contain all that happened during the incident. Mr. Smith argues that Geico’s experts were able to mislead the jury by suggesting that Mr. Smith did not hit the seat in front of him during the accident as he had testified. Mr. Smith asserts that the videos were not a fair and accurate representation of what happened in the bus during the incident.

A videotape, like a still photograph may be admissible, “if relevant to any issue required to be proven in a case,” State v. Wright, 265 So.2d 361, 362 (Fla.1972), “unless it is barred by a rule of exclusion or its admission fails a balancing test to determine whether the probative value is outweighed by its prejudicial effect.” Rose v. State, 787 So.2d 786, 794 (Fla. 2001).

Bryant v. State, 810 So.2d 532, 535 (Fla. 1st DCA 2002). “The proponent of a [videotape] must be prepared to establish as a predicate for its admission that the [videotape] fairly and accurately represents what it purports to depict.” Id. at 536. Furthermore, the time-lapse nature of a video does not make the video per se inadmissible. See generally Jefferson v. State, 818 So.2d 565, 566 (Fla. 1st DCA 2002) (“Each case in which a time[-]lapse videotape or a copy thereof has been received in evidence over objection supports affirming here. Cases in which no objection to such tapes was noted also support the view that time[-]lapse videotapes are not automatically excludable.” (citations omitted)).

Here, Mr. Smith stipulated that the videos were from the bus on the day in question. As such, we cannot say that the trial court abused its discretion in determining that the videos were a fair and accurate representation of what occurred on the bus that day. See Bryant, 810 So.2d at 536 (noting that if no witness is available to testify as to the accuracy of a video or photograph, a trial court can base a finding that the evidence “ ‘is a fair and accurate representation of a material fact,’” on “foundational facts establishing the reliability of the process that yielded the photographic images” (quoting Charles W. Ehrhardt, Florida Evidence, § 401.2, at 114 (2001 Ed.))); see also Bowles v. State, 979 So.2d 182, 194 (Fla.2008) (“Admission of photographs is a matter for the discretion of the trial court, and this [c]ourt has held it will not disturb such rulings absent a clear abuse of discretion.”).

We likewise cannot say that the trial court abused its discretion in rejecting Mr. Smith’s section 90.403, Florida Statutes, argument that the videos’ probative value is substantially outweighed by the danger that they might unfairly mislead the jury due to their time-lapse nature. As the trial court pointed out in its ruling, there would be nothing prejudicial about introducing still photographs taken from the videos. Still shots would also be accurate representations of what occurred on the bus. The time-lapse videos essentially consist of four to five still photographs per second shown in rapid succession. And also as the trial court pointed out, Mr. Smith was free to — and did— cross-examine the expert regarding the time-lapse nature of the videos and the fact that real time would include another twenty-four to twenty-six frames per second. As such, Mr. Smith’s arguments go to the weight that should be given the evidence, not the admissibility of the evidence. We see no error in the trial court’s admitting the time-lapse videos in to evidence.

Mr. Smith’s second argument on appeal pertains to the letters of protection that his attorney sent to his several treating physicians. At trial, counsel for Geico first mentioned the letters of protection in opening statement by suggesting that the individual doctors each had a financial interest in the lawsuit. Counsel stated: “You will hear ... that Chiropractor Thorpe was treating Mr. Smith under a letter of protection. The letter of protection essentially says, I’ll treat you for free, pay me back out of your lawsuit. Chiropractor Thorpe’s financial interest in this lawsuit is about $6500.” This type of statement was repeated regarding each of Mr. Smith’s physicians.

In response, during direct examination of Mr. Smith’s first witness, Dr. Paul Zak, M.D., counsel asked the doctor to describe the letter of protection he received from Mr. Smith. The doctor responded that although Mr. Smith was still responsible for the bill, payment would be deferred until the claim against the insurance company was completed. The conversation concluded with the following exchange:

Q: All right. That is my point. If the insurance company doesn’t pay, do you just forget about the bill?
A: No, we still ask the patient to find a way to pay the bill.

On cross-examination, counsel for Geico showed a portion of the letter of protection on an overhead projector and asked Dr. Zak if he had agreed to the following language in the letter: “The client and the provider agree that in the event the Settlement, Verdict, or Judgment are reduced, compromised or modified and if the client does not receive full value for their [sic] claim the provider shall also reduce its bill proportionately to the client’s reduced recovery.” Dr. Zak confirmed that he had agreed to that provision in the letter of protection he received from Mr. Smith. When counsel inquired of Dr. Zak as to the discrepancy between his earlier statement that Mr. Smith would be held responsible for the bill and the language agreeing to a reduction of the bill, counsel for Mr. Smith objected, arguing that the question brought up an inadmissible collateral source, was irrelevant, and provided a way for Geico to escape liability for the damages Mr. Smith incurred.

Counsel for Geico suggested that Mr. Smith’s counsel had opened the door on direct examination by giving the impression that if Mr. Smith obtained a judgment less than the amount of medical bills, he would be held personally responsible for the difference. Geico argued that this was not an accurate impression and that it had the right to show that Mr. Smith’s financial obligations would be reduced proportionately based on the value of his recovery. Counsel also argued that the issue of Dr. Zak’s personal financial interest in the outcome of the case was proper witness impeachment. The trial court overruled Mr. Smith’s objection, and Geico’s counsel went on to ask similar questions of Dr. Hassan, again over Mr. Smith’s objections. After the jury returned a verdict for Geico, Mr. Smith moved for a new trial, but the trial court denied the motion.

Mr. Smith argued below, and argues now on appeal, that introduction into evidence of this language in the letters of protection could lead the jury to compromise its liability verdict by thinking that if Mr. Smith obtained a limited award — or no award at all — he would not be prejudiced because his doctors agreed to take a reduced fee proportionate to the award of damages stated in the verdict. Mr. Smith maintains that this evidence amounted to collateral source evidence, which is per se inadmissible. We do not agree.

Under the common law, collateral source evidence was per se inadmissible and the payments from such sources were not used to offset the tortfeasor’s liability. Goble v. Frohman, 848 So.2d 406, 408 (Fla. 2d DCA 2003). However, the Florida Legislature modified the portion of the rule related to damages by enacting section 768.76, Florida Statutes. By this provision, the payments made to or on behalf of an injured party by a collateral source are to be offset against the damage awarded to an injured party by verdict or settlement. § 768.76(1), Fla. Stat. (2011) (“[T]he court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources.”). But “[t]he collateral source rule functions as both a rule of damages and a rule of evidence.” Gormley v. GTE Prods. Corp., 587 So.2d 455, 457 (Fla.1991). And the evidentiary application of the collateral source rule has remained unchanged.

[Collateral source evidence misleads the jury on the issue of Lability and, thus, subverts the jury process. Because a jury’s fair assessment of liability is fundamental to justice, its verdict on liability must be free from doubt, based on conviction, and not a function of compromise. Evidence of collateral source benefits may lead the jury to believe that the plaintiff is “trying to obtain a double or triple payment for one injury,” Clark [v. Tampa Elec. Co.], 416 So.2d 475, 476 [(Fla. 2d DCA 1982) ], or to believe that compensation already received is “sufficient recompense.” Kreitz v. Thomas, 422 So.2d [1051,] 1052 [(Fla. 4th DCA 1982) ].

Id. at 458.

The reduction-of-fee agreements included in the letters of protection at issue here do not involve a payment by a third party. The doctors’ fees will only be established after the jury determines the damages. The collateral source rule specifically relates to the offsetting of damages, but there is no offset to be paid here. Accord: ingly, the instant agreements do not meet the definition of a collateral source.

We agree that the evidence might lead to the same prejudice that collateral source evidence can cause. But the way to remedy that problem is by weighing the potential prejudice against the evidence’s probative value as called for in section 90.403, not by per se excluding the evidence as violative of the collateral source rule. Mr. Smith, however, did not make a section 90.403 challenge to this evidence below or on appeal, and thus we cannot consider such prejudice in our disposition of this appeal. See Pagan v. Sarasota Cnty. Pub. Hosp. Bd., 884 So.2d 257, 271 (“‘[A]n appellate court will not consider any ground for objection not presented to the trial court; review is limited to the specific grounds raised below.’ ” (alteration in original) (quoting Clock v. Clock, 649 So.2d 312, 315 (Fla. 3d DCA 1995))).

Having determined that the letters of protection are not evidence of a collateral source, we conclude that the trial court did not abuse its discretion in allowing Geico to question Mr. Smith’s treating doctors about their reduction-of-fee agreements. See Pelham v. Walker, — So.3d -, -, 2013 WL 5225340, *3 (Fla. 2d DCA Sept. 18, 2013) (“We review the trial court’s evidentiary rulings for an abuse of discretion.”).

Because Mr. Smith has not established reversible error, we affirm the trial court’s final judgment.

ALTENBERND and CASANUEVA, JJ., Concur.

      . Counsel for Mr. Smith specifically stated: "[P]laintiff doesn't dispute this is an unadulterated version of the video that was on the bus.”

      . " 'A letter of protection is a document sent by an attorney on a client’s behalf to a healthcare provider when the client needs medical treatment[ ] but does not have insurance. Generally, the letter states that the client is involved in a court case and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider’s bill from the proceeds of [a] settlement or award[,] and typically if the client does not obtain a favorable recovery, the client is still liable to pay the providers' bills.’ Caroline C. Pace, Tort Recovery for Medicare Beneficiaries: Procedures, Pitfalls and Potential Values, 49 Hous. Law. 24, 27 (2012).” Carnival Corp. v. Jimenez, 112 So.3d 513, 517 n. 3 (Fla. 2d DCA 2013).


text:
    Robert SKALA, Appellant, v. LYONS HERITAGE CORPORATION; Sean Clark; and Sean Clark Contracting, Inc., Appellees.
    No. 2D12-1331.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Dorothy Venable DiFiore of Haas, Lewis, DiFiore, P.A., Tampa, and Charles S. Spinner, Jr., of Spinner Law Firm, P.A., Wesley Chapel, for Appellant.
    Hinda Klein and Thomas Regnier of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee Lyons Heritage Corporation.
    No appearance for remaining Appellees.
   DAVIS, Chief Judge.

Robert Skala challenges the final summary judgment entered by the trial court in favor of Lyons Heritage Corporation, Sean Clark, and Sean Clark Contracting, Inc., the defendants in Mr. Skala’s negligence action. Because there remain genuine issues of material fact that must be resolved, we reverse the final summary judgment.

Mr. Skala is a tile setter who occasionally did work for Lyons Heritage, a general contractor. On October 7, 2008, a construction supervisor for Lyons Heritage asked Mr. Skala to inspect the tile work in a home under construction. Mr. Skala did not have a contract to install tile in that home but rather was asked to assess the quality of work already performed by another tile setter and give an estimate as to what could be done to satisfy the disgruntled homeowner.

Mr. Skala approached the partially constructed home and saw debris in the front yard. He noticed a trim carpenter working near the front door and decided to enter the home through the garage as it was the most direct route into the home. While entering, Mr. Skala saw building materials and debris throughout the garage. He tripped and fell on unspecified construction debris and suffered complex fractures to both arms. He filed suit against Lyons Heritage, alleging negligence in the failure to maintain the premises in a safe condition.

Following discovery, Lyons Heritage moved for summary judgment, arguing that as a matter of law the conditions were so obvious that it could not be held liable for any injury that Mr. Skala incurred. The trial court agreed and entered final summary judgment in favor of Lyons Heritage.

“The determination of the existence of a duty of care in a negligence action is a question of law.” Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Here, because Mr. Skala was a business invitee on the property, Lyons Heritage, as the possessor of the premises, owed him a duty, as a matter of law, to “maintain the premises in a reasonably safe condition.” See Strickland v. Timco Aviation Servs., Inc., 66 So.3d 1002, 1006 (Fla. 1st DCA 2011); see also Ahl v. Stone Sw., Inc., 666 So.2d 922, 923 (Fla. 1st DCA 1995).

Whether Lyons Heritage failed to satisfy its duty to maintain, however, is a question of fact disputed by the parties. As such, the trial court erred in entering summary judgment. See Strickland, 66 So.3d at 1006 (“A trial court’s grant of a motion for summary judgment is appropriate where there ‘is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law.’ ” (quoting Lomack v. Mowrey, 14 So.3d 1090, 1091 (Fla. 1st DCA 2009))). While we recognize that as a general principle Lyons Heritage is not liable for harm caused by known or obvious dangers, an exception applies if the facts show that Lyons Heritage should have anticipated the harm despite its known or obvious nature. See Ahl, 666 So.2d at 923-24; see also DeCruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013) (“The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.” (internal quotation marks omitted)).

The instant case is factually similar to the situation before the First District in Ahl, 666 So.2d 922. There, the plaintiff was employed by an independent contractor of the property’s owner. When he entered a room to perform his work, he saw that the floor was wet and greasy and complained of the condition to his supervisor. He then proceeded to perform his assigned task by positioning a ladder and climbing it in order to remove a part requiring service. As he descended the ladder, his foot slipped due to the grease on the sole of his shoe. He fell and suffered serious injury. Id. at 923. The First District observed that “there are situations in which the landowner can and should foresee that the dangerous condition will cause harm to an invitee despite its known or obvious danger.” Id. at 924.

A reasonable probability to expect harm to an invitee from known and obvious dangers may arise ... if the landowner may expect that the invitee will encounter the known or obvious danger, because, to a reasonable person in the invitee’s position, the advantages of [facing the danger] would outweigh the apparent risk.

Id.

Viewing the facts of the instant case in the "light most favorable to Mr. Skala as the party who did not move for summary judgment, see Reserve Ins. Co. v. Earle W. Day & Co., 190 So.2d 803, 805 (Fla. 2d DCA 1966), the record before us establishes that Mr. Skala saw the garage as the most direct route into the house, that the alternative front door entrance was occupied by one or more workmen, and that entering the house was necessary to perform the job he was being paid to do. Under these facts, a genuine issue of material fact exists as to whether Lyons Heritage should have anticipated that Mr. Ska-la would choose to encounter the obvious perils of entering the home through the garage scattered with debris because the advantages of entering the house to complete his job outweighed the risks associated with navigating the garage in that condition. See Ahl, 666 So.2d at 924; see also Taylor v. Tolbert Enters., 439 So.2d 991, 992 (Fla. 1st DCA 1983) (holding that whether a hotel owner breached its duty to maintain the premises in a reasonably safe condition is a jury question where a guest slipped on an obvious accumulation of sand and water on the available steps leading from the hotel to the beach).

We also need not address whether Mr. Skala’s apparent recognition of the open dangers within the garage resulted in his assumption of the risk of entering by that route. That is an issue to be decided by the jury as part of its comparative negligence determination. See DeCruz-Haymer, 117 So.3d at 888; Taylor, 439 So.2d at 992.

Because it was error to grant summary judgment in favor of Lyons Heritage where genuine issues of material fact remain, we reverse the final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and LaROSE, JJ„ Concur.

      . According to Mr. Skala's deposition, he was technically an employee of Classic Tile, an entity of which he was the sole owner and only employee.

      . "[I]t is not ownership of the property which determines the duty of care, but rather, [']the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contractor, or other possessor with authority or control), to use due care .... [']" Worth v. Eugene Gentile Builders, 697 So.2d 945, 947 (Fla. 4th DCA 1997) (quoting Haynes v. Lloyd, 533 So.2d 944, 946 (Fla. 5th DCA 1988)).

      .Additionally, Lyons Heritage had the duty to warn Mr. Skala of latent perils — those "concealed perils which [were] or should [have been] known to" Lyons Heritage and which were unknown to Mr. Skala and could not have been discovered by him through the exercise of due care. See Ahl, 666 So.2d at 923. However, Mr. Skala has not alleged that Lyons Heritage's negligence was its failure to warn him of some latent peril. In fact, he acknowledged in his deposition, affidavit, and complaint that the debris that caused him to trip was open and obvious to him. As such, the duty to warn is not at issue in this case.
      It is for this same reason that the cases relied on by the trial court in granting summary judgment are inapplicable. See Roberts v. Dacra Design Assocs., 766 So.2d 1184, 1184-85 (Fla. 3d DCA 2000) (concluding that property owner of a building under construction had no duty to warn a plaintiff hired to repair an air conditioning unit in the building on a floor with no windows or working lights where the plaintiff was aware of construction debris throughout the building before he was injured by stepping off a ladder onto a piece of pipe that was lying on the floor); Kagan v. Eisenstadt, 98 So.2d 370, 372 (Fla. 3d DCA 1957) (concluding that property owner had no duty to warn an experienced lumber salesman of the open stairwell that is a necessary phase of any partially constructed, multilevel home such a salesman might enter).


text:
    Louis F. REED, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1809.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Louis Reed appeals the order revoking his community control and the ten-year sentence of imprisonment imposed on the revocation. We affirm the revocation of his community control and the sentence. Because the written order of revocation does not comport with the oral pronouncement and because one of the findings of a violation of community control was not proven, we remand with directions to the trial court to strike the revocation order and to enter a corrected order of revocation.

For events in 2009 and 2010, the State charged Mr. Reed with a scheme to defraud, as a second-degree felony, and five additional charges of fraudulent use of personal identification. Facing a maximum of forty years’ imprisonment, Mr. Reed negotiated a favorable plea that ultimately resulted in judgments and sentences for concurrent nine-month terms of incarceration in the county jail on all of these charges. On the second-degree felony the term of incarceration was followed by two years’ community control and three years’ probation.

In the first three months after he was released from jail, Mr. Reed violated his community control on multiple occasions. As a result, the State filed an amended affidavit of violation alleging that Mr. Reed had committed eight violations of the conditions of his community control. Three of these violations, involving condition 5 of Mr. Reed’s community control, were new criminal offenses. Two of the new offenses involved fraud, and the other involved fleeing to elude a law enforcement officer. Five of these violations concerned allegations that Mr. Reed had failed to comply with the condition of community control that required him to remain confined to his approved residence “except for one half hour before and after [his] approved employment, public service work, or any other special activities approved by [his] officer.” Although the affidavit referred to these latter five violations as violations of condition 15 of Mr. Reed’s community control, these violations actually concerned an additional condition 16 of the community control order of supervision.

The trial court held a revocation hearing at which the State introduced extensive testimony and evidence. During the hearing, the State decided not to proceed on one of the alleged violations of condition 5. In its oral pronouncement, the trial court found a “willful and material violation” as to the other two violations of condition 5. With respect to the alleged violations of the condition requiring Mr.. Reed to remain confined to his approved residence, the trial court found that Mr. Reed had committed four of the alleged violations but that the evidence was insufficient to establish one of these alleged violations. Accordingly, the trial court revoked Mr. Reed’s supervision order and sentenced him to a term of ten years’ imprisonment.

In this appeal, Mr. Reed does not challenge the trial court’s findings that he committed a willful and material violation of condition 5 of his community control by fleeing to elude a law enforcement officer or its findings that he committed multiple willful and material violations of the condition that required him to remain confined to his residence except in certain approved circumstances. He does, however, correctly argue that the evidence was insufficient to establish that he committed the additional violation of condition 5 alleged in the amended affidavit for which he was found to be in violation. In this regard, the affidavit alleged that Mr. Reed committed the criminal offense of “Fraud-Impersonate-Use/Possess ID of Another Person Without Consent” between September 3 and September 6, 2011. The evidence presented at the revocation hearing appeared to relate to a different offense that occurred after the time frame alleged in the affidavit. Although this violation of condition 5 does not support the revocation of Mr. Reed’s community control, we nonetheless affirm the revocation and the resulting sentence because it is clear from the record that the trial court would have revoked Mr. Reed’s community control and imposed the same sentence based solely on Mr. Reed’s single violation of condition 5 and the four violations of the condition that required him to remain confined to his residence. See Pollard v. State, 930 So.2d 854, 856 (Fla. 2d DCA 2006); Ogletree v. State, 886 So.2d 420, 421 (Fla. 2d DCA 2004); Baker v. State, 789 So.2d 410, 411 (Fla. 4th DCA 2001).

Finally, as argued by Mr. Reed and conceded by the State, the revocation order contains numerous flaws. It does not conform to the oral pronouncement; it incorrectly reflects that Mr. Reed committed all eight violations alleged in the amended affidavit. Additionally, the revocation order incorrectly reflects that Mr. Reed admitted the allegations that were actually contested.

Accordingly, we remand this matter to the trial court with directions to strike the revocation order and to enter a corrected revocation order that refers to only one violation of condition 5 but in all other respects conforms to the oral pronouncement and that does not incorrectly reflect that Mr. Reed admitted to the allegations in the amended affidavit. Additionally, while the references to condition “15” violations in the revocation order were the product of a mistake in the amended affidavit, to avoid any confusion the order entered on remand should reflect the correct condition number.

Affirmed and remanded with instructions.

CASANUEVA and BLACK, JJ., Concur.

      . The form order is a combined order of community control and probation. Condition 16 is in a section of conditions following special condition 22.

      . At the revocation hearing, Mr. Reed’s attorney conceded on two of these alleged violations of this condition but only after the introduction of evidence that established these violations.


author: KHOUZAM, Judge.

text:
    Candy DILLARD, Individually and as Mother and Next Friend of Reuben Fife, Jr., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Department of Juvenile Justice, Prison Health Services, Inc., and Kevin Rambosk, in his official capacity as Sheriff of Collier County, Florida., Appellees.
    No. 2D12-2654.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Richard K. Slinkman of Slinkman & Slinkman, P.A., Jupiter, for Appellant.
    James H.K. Bruner, Sr., and Adam J. Stallard, Tallahassee, for Appellee Agency for Health Care Administration.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Reuben Fife, Jr., was catastrophically injured when he overdosed on cocaine shortly after he was taken into custody at a juvenile detention center. Candy Dillard, Fife’s mother, filed suit on Fife’s behalf against the Sheriff of Collier County, the Department of Juvenile Justice, and Prison Health Services, claiming that he had been denied appropriate medical attention at the detention center. The suit settled, and because Fife had received and continues to receive Medicaid benefits to cover his medical costs, the Agency for Health Care Administration (AHCA), which administers Florida’s Medicaid program, asserted its right to be reimbursed from the settlement. Dillard moved to reduce the Medicaid lien, and the circuit court denied her motion. Dillard appeals the denial. We reverse and remand because, although the trial court’s order was well reasoned and appears to have been legally accurate when issued, it relied on case law that has since been overturned.

In the trial court, AHCA argued that it was entitled to be reimbursed in the amount produced by applying the formula set out in section 409.910(ll)(f), Florida Statutes (2011), to the entire settlement. According to AHCA, this amount represented the past medical expenses portion of the settlement. Dillard, on the other hand, contended that the AHCA was only entitled to apply the statutory formula to the portion of the settlement already allocated to past medical expenses because 42 U.S.C. § 1396p(a)(l) (2012), the anti-lien provision of the Federal Medicaid law, prohibits the encumbrance or attachment of proceeds related to damages other than medical costs. Dillard relied on the United States Supreme Court’s decision in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The trial court found that section 409.910(ll)(f) was not preempted by the Federal Medicaid law, citing Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010), in which this court held that it was appropriate to apply the statutory formula to an entire settlement in the absence of evidence that the Medicaid lien extended beyond the portion of the settlement meant to cover medical damages.

But during the pendency of this appeal, the United States Supreme Court issued Wos v. E.M.A. ex rel. Johnson, — U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), and this court applied Wos to section 409.910(ll)(f) in Agency for Health Care Administration v. Riley, 119 So.3d 514 (Fla. 2d DCA 2013), holding that Russell is no longer good law. In Wos, the Court held that an “irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical expenses.” 133 S.Ct. at 1399. The Court suggested that a State could remedy this problem by providing a process for determining which portion of the recovery is attributable to medical expenses. Id. at 1401-02.

In Riley, this court held that the statutory allocation in section 409.910(ll)(f) should be treated as a default allocation and that the plaintiff must be given an opportunity to rebut it. The court clarified that “ ‘a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses.’ ” Riley, 119 So.3d at 516 (quoting Roberts v. Albertson’s Inc., 119 So.3d 457, 466 (Fla. 4th DCA 2012)). Accordingly, though we recognize that the trial court may ultimately deny Dillard’s motion to reduce lien again on remand, we must reverse and remand for this issue to be newly decided at a supplemental hearing at which the parties and the trial court will be guided by Wos and Riley. The trial court may rely on evidence in the record from the prior hearing and consider additional evidence as needed.

Reversed and remanded for further proceedings consistent with this opinion.

LaROSE and MORRIS, JJ., Concur.

      . AHCA also argues for the first time on appeal that it should be able to recover from the portion of the settlement allocated to future medical expenses as well as past medical expenses. We do not comment on this argument because it was not raised in the trial court.

      . Unlike in Ahlbom, where the parties had stipulated to the amount of the settlement that accounted for medical expenses, there was no such finding or stipulation in this case.

      . We note that section 409.910 has been substantially amended since the trial court entered its order in this case and it now provides a mechanism for hearings as envisioned in Wos and Riley. See § 409.910(17)(b), Fla. Stat. (2013) (stating that “[a] recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (ll)(f) by filing a petition under chapter 120 within 21 days after the date of payment of funds to the agency or after the date of placing the full amount of the third-party benefits in the trust account for the benefit of the agency”). AHCA mentioned the amendment at oral argument, suggesting that it would not apply in this case because it effects a substantive change and does not include any language indicating that it would apply retroactively. However, the parties ultimately did not ask this court to address whether the amendment applies here, and we make no finding on this issue.


author: WELLS, Judge.

text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Patricia MUNOZ-UPTON and Ricky Fox-Upton, Appellees.
    No. 3D13-573.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.

      Steven G. Schwartz and David J. Pas-cuzzi, Boca Raton, for appellant.
    Alvarez, Carbonell, Feltman & DaSilva and Paul B. Feltman, for appellees.
    Before WELLS, LAGOA and FERNANDEZ, JJ.
   WELLS, Judge.

Sunshine State Insurance Company appeals from an order denying its motion to transfer venue from Miami-Dade County to Palm Beach County where the property at issue is located. Because Sunshine State met its burden of proving that venue is improper in Miami-Dade County and proper in Palm Beach County and the appellees/homeowners, Patricia Munoz-Upton and Rick Fox-Upton failed to demonstrate that venue is proper in Miami-Dade County, we reverse. See Fla. Gam-co, Inc. v. Fontaine, 68 So.3d 923, 928 (Fla. 4th DCA 2011).

This action was brought in Miami-Dade County by the Uptons to recover under an insurance policy issued by Sunshine State for damage to their home. The Uptons’ home is located in Palm Beach County. In their unverified complaint, the Uptons represented that Sunshine State “does business in the entire state of Florida” and “maintains its administrative offices, home office, mailing address, office of policy holder relations and the location of its records in Miami-Dade County.” Sunshine State moved to transfer venue claiming that these allegations were false and supported its motion with the affidavit of its Assistant Vice President of Property Claims who attested that “[as of the dates relevant here] ... its only office [for the transaction of business] is in Jacksonville, Duval County, Florida.” Sunshine argued that although venue was not proper in Miami-Dade ' County, it was proper in Palm Beach County, the location of the Uptons’ home. The Uptons countered with an unsworn memorandum of law in which they argued that venue was proper in Miami-Dade County “because Defendant promotes and sells policies through offices in Miami-Dade County.”

The motion was denied. We reverse because although the Uptons had the prerogative of selecting the venue in which to bring their suit, that selection does not fall within one of the alternatives provided by section 47.051 of the Florida Statutes, see Fla. Gamco, Inc., 68 So.3d at 928. Section 47.051, governing venue in actions against corporations, provides that a domestic corporation such as Sunshine State may be sued in “only” one of three places: where it has an office for the transaction of its customary business, where the cause of action accrued, or where the property at issue is located:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

(Emphasis added).

The unrebutted record in this case is that although insurance agents statewide write Sunshine State policies, Sun'shine State itself keeps an office for the transaction of its customary business only in Duval, and not in Miami-Dade County. As this court confirmed in Rodin v. AutoTrain Corp., 377 So.2d 810, 811 (Fla. 3d DCA 1979), this method of conducting business through an agent does not make venue proper in an action against a domestic corporation wherever such agents are located because “the statutory provisions concerning an agent apply to foreign corporations only.” As our sister court in Florida Gamco, Inc., 68 So.3d at 929, more recently stated:

Section 47.051 provides, with regard to a domestic Florida corporation, that venue is proper “in the county where such corporation has, or usually keeps, an office for transaction of its customary business.” This section distinguishes between Florida and foreign corporations: “A Florida corporation resides where it has an office for the transaction of its customary business,” while “[a] foreign corporation doing business in Florida resides where it has an agent or other representative.” Aladdin Ins. Agency, Inc. v. Jones, 687 So.2d 937, 939 (Fla. 3d DCA 1997) (citations omitted).

See also § 47.051, Fla. Stat. (2013) (“Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”). Thus for domestic corporations such as Sunshine State, doing business, that is, issuing policies to Miami-Dade homeowners, is not the test. See Fla. Gamco, Inc., 68 So.3d at 929 (confirming that a corporation in Florida “resides where it has an office for transaction of its customary business. ‘Doing business’ is not the test.”) (quoting Aladdin Ins. Agency, Inc., 687 So.2d at 939); Deerfield Import-Export, Inc. v. Newton, 437 So.2d 175, 177 (Fla. 2d DCA 1983) (“Doing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic corporation.”). The appropriate test is whether venue has been lodged in the county where the domestic corporation has an office for transaction of its customary business, here, Duval County. Alternatively, venue may be proper where the cause of action accrued or where the property at issue is located, here, Palm Beach County.

Because venue is improper in Miami-Dade County but proper in Palm Beach County as Sunshine State suggests, we reverse the order on appeal and remand for an appropriate order transferring venue.

Reversed and remanded with instructions.


text:
    Stephen A. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1921.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Stephen A. Hall, pro se.
   PER CURIAM.

The postconviction court’s partial denial of Stephen A. Hall’s motion filed under Florida Rule of Criminal Procedure 3.800(a) is affirmed without prejudice for Hall to file a motion under rule 3.801. If Hall chooses to filé a rule 3.801 motion, it must comply with the requirements outlined in rules 3.801(b), (c), (e), and 3.850(n). Upon receipt of a rule 3.801 motion, the court must follow the procedure outlined in rule 3.850(f). See Fla. R.Crim. P. 3.801(e) (effective July 1, 2013). Because it appears that Hall’s time to file a rule 3.801 motion will have expired during the pen-dency of this appeal, if he files such a motion within thirty days of the date this opinion becomes final, it shall not be considered untimely.

Affirmed without prejudice.

SILBERMAN, CRENSHAW, and MORRIS, JJ., Concur.


author: MORRIS, Judge.

text:
    Eugene K. HORTON, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-712.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Eugene K. Horton, III, pro se.
   MORRIS, Judge.

Eugene K. Horton, III, appeals the dismissal of his petition for removal of the requirement to register as a sexual offender under the “Romeo and Juliet Law.” See § 943.04354, Fla. Stat. (2013). We affirm the trial court’s dismissal of Mr. Horton’s petition as facially insufficient because Mr. Horton failed to allege that removal of the registration requirement would not conflict with federal law. See § 943.04354(3)(b). However, we note that since the trial court dismissed the petition for facial insufficiency rather than denying it on the merits, Mr. Horton is not barred from filing a facially sufficient petition. Cf. id. (“If the court denies the petition, the person is not authorized under this section to file any further petition for removal of the registration requirement.” (emphasis added)).

Affirmed.

KELLY and BLACK, JJ., Concur.


text:
    Antonio D. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2368.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Antonio D. Brown, pro se.
   PER CURIAM.

The postconviction court’s denial of Antonio D. Brown’s motion filed under Florida Rule of Criminal Procedure 3.800(a) is affirmed without prejudice for Brown to file a motion under rule 3.801. If Brown chooses to file a rule 3.801 motion, it must comply with the requirements outlined in rules 3.801(b), (c), (e), and 3.850(n). Upon receipt of a rule 3.801 motion, the court must follow the procedure outlined in rule 3.850(f). See Fla. R.Crim. P. 3.801(e) (effective July 1, 2013).

In its order, the postconviction court did not indicate whether Brown is entitled to credit for time spent in jail prior to his original sentencing and prior to his first violation of probation sentence. We note that a probation violator sentenced to prison is entitled to credit for time served in jail awaiting the original probationary sentence and time spent in custody on violation of probation charges. See Barnes v. State, 74 So.3d 1135, 1136 (Fla. 2d DCA 2011); see also Griffin v. State, 828 So.2d 1087, 1088 (Fla. 1st DCA 2002).

It appears that Brown is scheduled for release on January 26, 2014. Therefore, the postconviction court should expedite any rule 3.801 motion Brown files.

Affirmed without prejudice.

CASANUEVA, VILLANTI, and MORRIS, JJ., Concur.


text:
    Tarzmyn D. FORBES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4617.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State concedes that the trial court erred by failing to enter a written order revoking Defendant’s probation. Recent decisions of this court support that concession. See Oertel v. State, 82 So.3d 152, 157 (Fla. 4th DCA 2012) (“[Ajlthough the trial court orally pronounced the violation of probation, it did not enter a written order.”); King v. State, 46 So.3d 1171, 1172 (Fla. 4th DCA 2010) (“If a trial court revokes a defendant’s probation, the court is required to render a written order noting the specific conditions of probation that were violated.”). The State also concedes that Defendant was not afforded proper notice of the public defender fee, which was later imposed. Pursuant to Florida Rule of Criminal Procedure 3.720(d)(1), Defendant was to have been given notice of the opportunity to object to the amount assessed for public defender’s fees. See also Ciccia v. State, 854 So.2d 243, 243 (Fla. 4th DCA 2003).

Accordingly, we reverse and direct the trial court to strike the public defender’s fee without prejudice to being re-imposed on remand after the proper procedure is followed. We further remand to provide the trial court the opportunity to enter a written order with respect to the revocation of Defendant’s probation and to conform such written order to the trial court’s oral pronouncement.

WARNER, CONNER and FORST, JJ., concur.


text:
    Richard SURABIAN and Steven Surabian, Appellants, v. John DUGAN, Appellee.
    No. 4D12-1636.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Rehearing Denied Jan. 3, 2014.
    Richard Surabian, West Hyannisport, Massachusetts, pro se, and Steven Surabi-an, South Yarmouth, Massachusetts, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, CONNER and FORST, JJ., concur.


author: WALLACE, Judge.

text:
    Dave MOYERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5478.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Dave Moyers appeals two orders finding him in indirect criminal contempt for failing to comply with truancy orders requiring him to ensure his daughter’s attendance at school. On the authority of this court’s decision in Sockwell v. State, 123 So.3d 585 (Fla. 2d DCA 2012), we reverse both of the orders under review.

We need not detail the confusing and convoluted course of the proceedings in the circuit court that led to the entry of the orders under review. It is sufficient to say that the proceedings on both of the orders to show cause at issue in this case suffer from the same procedural and evi-dentiary deficiencies identified in Sockwell. The truancy court judge improperly acted as the judge and the prosecutor, and the evidence was insufficient to establish Mr. Moyers’ willful noncompliance with the truancy court’s orders. There was no evidence presented at the hearing on the first order to show cause, and the evidence presented at the hearing on the second order to show cause merely showed that Mr. Moyers’ daughter had been absent from or tardy to school on several days. The evidence also showed that a medical condition had prevented the daughter from attending school for several days. There was no evidence that Mr. Moyers had willfully failed to ensure his daughters’ timely attendance at school or to obtain medical treatment for her condition. Because of the truancy judge’s improper role in the proceedings as prosecutor and because the evidence failed to prove Mr. Moyers’ willful noncompliance with the truancy orders beyond a reasonable doubt, we reverse both of the orders under review.

Reversed.

SILBERMAN and VILLANTI, JJ., Concur.


author: SLEET, Judge. ALTENBERND, Judge,

text:
    Jimmy CAZARES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5754.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Jimmy Cazares appeals his judgment and sentences for three counts of sexual activity with a child by a person in familial custodial authority following revocation of probation. We affirm the revocation of probation without further comment, but because the trial court erred in resentenc-ing Mr. Cazares after he had already begun serving his sentences on those charges, we reverse his amended sentences and remand for reinstatement of the original sentences.

In 1995, Mr. Cazares entered a plea of no contest to three counts of attempted sexual battery on a child less than twelve years old and three counts of sexual activity with a child by a person in familial custodial authority. The trial court imposed a sentence of ten years’ prison on the attempted-sexual-battery charges with a consecutive sentence of fifteen years’ prison followed by ten years’ probation on the sexual-activity charges. In 2010, the State filed an affidavit of violation of probation alleging that Mr. Cazares violated his probation by failing to provide truthful information to his probation officer. Following a revocation of probation hearing, the trial court found that Mr. Cazares violated the terms of his probation and sentenced him to thirty years’ prison on the attempted-sexual-battery charges and five years’ prison on the sexual-activity charges, to run consecutively.

What transpired thereafter is a procedural quagmire, but for the purposes of this appeal it is sufficient to say that Mr. Cazares then filed a motion under Florida Rule of Criminal Procedure 3.800(b)(1) to correct an illegal sentence, arguing that the sentences imposed on the attempted-sexual-battery charges should be vacated because Mr. Cazares was not placed on probation with respect to those charges. The trial court granted the motion and vacated the sentences on the attempted-sexual-battery charges, but on motion by the State, the trial court increased the sentences on the sexual-activity charges to reflect the trial court’s intended sentence of thirty years’ prison. In this appeal, Mr. Cazares argues that the trial court erred in resentencing him on the sexual-activity charges when he had already begun serving his sentences on those charges and did not challenge those sentences in his rule 3.800 motion.

“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). Moreover, a motion to correct sentence directed at specified counts does not permit a trial court to modify legal sentences imposed in other counts in the same case. See Delemos v. State, 969 So.2d 544, 549 (Fla. 2d DCA 2007).

Here, it is apparent that the trial court made a mistake in sentencing Mr. Cazares on the attempted-sexual-battery chai’ges but intended that Mr. Cazares serve an overall sentence of thirty years. Nevertheless, under current Florida law we must hold that the trial court erred in increasing Mr. Cazares’ sentences on the sexual-activity charges because Mr. Ca-zares had already begun to serve his sentences on those charges. See Ashley, 850 So.2d at 1265; see also Taylor v. Dugger, 527 So.2d 891, 892 (Fla. 1st DCA 1988) (“[0]nce the first sentence was vacated, the consecutive sentence must be calculated from the date it was imposed, not from the date the first sentence was vacated.” (citing Falagan v. Wainwright, 195 So.2d 562 (Fla.1967); Helton v. Mayo, 153 Fla. 616, 15 So.2d 416 (1943))). Furthermore, Mr. Cazares’ motion to correct illegal sentence was directed solely at the sentences imposed on the attempted-sexual-battery charges, precluding the trial court from increasing his sentences on the unchallenged sexual-activity charges. Accordingly, we conclude that the trial court erred in increasing Mr. Cazares’ sentences on the sexual-activity charges, and we reverse and remand for reinstatement of the original sentences imposed following revocation of probation.

Affirmed in part; reversed in part; remanded.

KELLY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I agree that the outcome we reach in this case appears to be compelled by the holding in Ashley v. State, 850 So.2d 1265 (Fla.2003). I do not question the wisdom of examining criminal judgments and sentences individually in most contexts. However, for purposes of constitutional double jeopardy analysis, I continue to believe that the “package approach” utilized by federal courts and some other states is a better approach. See e.g., United States v. Watkins, 147 F.3d 1294 (11th Cir.1998). Mr. Cazares apparently will be entitled to immediate release even though a thirty-year term of imprisonment was an entirely lawful sentence for each of the three judgments that actually were eligible for sentencing at the sentencing hearing on his violation of probation.

It is noteworthy that the sentences he received for attempted capital sexual battery at this sentencing hearing were more than illegal; they were void from inception because the original sentences had already been fully served. Under a package approach to sentencing, the void sentences entered on the three judgments for which he had already fully served his sentences would not prevent an amendment to the sentences on his three active judgments.

The Double Jeopardy Clause of the U.S. Constitution should not prevent a trial court from readjusting the sentences imposed at a single sentencing hearing to impose lawful sentences consistent with the overall aggregate sentencing package intended by the pronouncement at that sentencing hearing. I am unconvinced that the Constitution compels the immediate release of a prisoner merely because the participants at a sentencing hearing were confused about the judgments eligible for sentencing at that hearing.

      . Our decision renders Mr. Cazares' remaining argument that he was entitled to be present for his resentencing moot.

      . U.S. Const. Amend. V.


text:
    Randall BROWN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D12-890, 3D12-889.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Randall Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   PER CURIAM.

We affirm without discussion Appellant’s adjudications and sentences following his probation revocation hearing. However, the trial court failed to reduce to writing its oral pronouncement of the -violations and revocation of Appellant’s probation. We therefore remand this cause to the trial court for entry of a written order of revocation of probation which, consistent with its oral pronouncement at the hearing, sets forth the conditions of probation that Appellant violated. See Daniels v. State, 45 So.3d 922 (Fla. 3d DCA 2010); Nelson v. State, 670 So.2d 193 (Fla. 4th DCA 1996).

Remanded with directions.


text:
    Ammy M. kogan, Appellant, v. Michael MILDENBERGER, Appellee.
    No. 3D12-1787.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Ammy M. Kogan, in proper person. Bressler, Amery & Ross, P.C., and Alex J. Sabo, Jonathan C. Schwartz and Leonel Peraza, Jr. (Fort Lauderdale), for appel-lee.
    Before WELLS, LAGOA and FERNANDEZ, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee, Michael Mildenberger (“Mil-denberger”) moves to dismiss the appeal filed by Appellant, Ammy Kogan (“Ko-gan”). Mildenberger contends that the order on appeal is a non-final, non-appeal-able order and that this Court lacks jurisdiction to entertain this appeal. We agree.

On June 15, 2012, Mildenberger filed a Motion for Entry of Default Judgement against Kogan pursuant to Rule 1.500(b), Florida Rule of Civil Procedure. On June 27, 2012, the trial court entered an order granting Mildenberger’s Motion for Entry of Default Judgment against Kogan as to liability only, and Kogan appeals from this order.

Florida Rule of Appellate Procedure 9.130(a)(8) authorizes interlocutory review of a limited number of non-final orders. Rule 9.130 “is designed to reduce the number of appealable pretrial orders and to discourage piecemeal review. Given this objective, the courts have narrowly construed the scope of the rule so that it applies only to the orders it identifies as appealable orders.” Cotton States Mut. Ins. v. D’Alto, 879 So.2d 67, 69 (Fla. 1st DCA 2004) (citations omitted). Appeals of non-final orders determining the issue of liability in favor of a party seeking affirmative relief were previously appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Doctor’s Hosp. of Hollywood, Inc. v. Madison, 411 So.2d 190, 191 (Fla.1982). “However, that provision of Rule 9.130 was deleted, effective January 1, 2001, so orders determining the issue of liability now ‘are not appealable until the conclusion of the case.” ’ Fascetti v. Fascetti, 795 So.2d 1094, 1095 (Fla. 4th DCA 2001) (quoting Fla. R.App. P. 9.130 (Committee Notes, 2000 Amendment)). No remaining section of Rule 9.130 allows for an immediate appeal of the instant order.

Here, Kogan appeals the trial court’s entry of a Default Judgment on the issue of liability. The order at issue, however, does not bring an end to the litigation below. Because this type of order was expressly removed from the list of appeal-able non-final orders included in Rule 9.130, we grant the motion and dismiss this appeal for lack of jurisdiction. See Westwood One, Inc. v. Flight Express, Inc., 940 So.2d 1241 (Fla. 5th DCA 2006) (dismissing appeal of trial court’s non-final order granting motion for default for lack of jurisdiction).

APPEAL DISMISSED.


text:
    G.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2493.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA and FERNANDEZ, JJ.
   ON PARTIAL CONFESSION OF ERROR

WELLS, Judge.

We find no abuse of discretion in the trial court’s decision to deny G.R.’s last minute motion for a continuance. See Mills v. State, 280 So.2d 35 (Fla. 3d DCA 1973). We also find no error in the trial court’s order adjudicating G.R. delinquent for fleeing from a police officer. However, based on the State’s proper partial confession of error, we reverse and remand for the limited purpose of conforming the written adjudicatory and disposition orders to the trial court’s oral pronouncement that adjudication be withheld. See McDavid v. State, 790 So.2d 1292 (Fla. 3d DCA 2001).

Affirmed, in part; reversed, in part, and remanded with directions.


author: LAGOA, J.

text:
    KLING CORPORATION, etc., et al., Appellants, v. HOLA NETWORKS CORPORATION, etc., et al., Appellees.
    Nos. 3D13-2327, 3D13-1936.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Cueto Law Group P.L. and Santiago Cueto; Allen Hyman, North Hollywood, California, for appellants Kling Corporation and Anthony Kling.
    Jorge L. Piedra and Gregory R. Bel, Miami, for appellees Hola Networks Corporation and Hispanic Network Group, LLC.
    Before SUAREZ, LAGOA and SALTER, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Appellees, Hola Networks Corporation and Hispanic Network Group, LLC, (collectively “Appellees”) move to dismiss the appeal filed by Appellants, Kling Corporation, Anthony Kling, and Santiago A. Cue-to, Esq., (collectively “Appellants”). Ap-pellees contend that the orders on appeal are non-final orders and that this Court, therefore, lacks jurisdiction to entertain this appeal. We agree.

Appellants appeal from a June 19, 2013 Order granting Appellees’ Motion for Sanctions (the “Order”), and from a June 19, 2013 Order denying Appellants’ Motion for Rehearing. The Orders at issue expressly state that the amount of fees to be awarded would be determined at a later date.

An order that merely finds entitlement to attorney’s fees but does not set an amount is a non-final, non-appealable order. See Alexopoulos v. Gordon Hargrove & James, P.A., 109 So.3d 248, 250 (Fla. 4th DCA 2013); Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005) (“An award of attorneys’ fees does not become final, and, therefore, appealable until the amount is set by the trial court.”); Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997) (stating that an order awarding entitlement to attorney’s fees does not become final until the amount of the fee is set). Nor is such an order one of the enumerated appealable non-final orders set forth in Florida Rule of Appellate Procedure 9.130. See Fla. RApp. P. 9.130(a)(3).

Because the Orders on appeal do not set the amount of the award, but only find an entitlement to fees, we grant the Appel-lees’ motion and dismiss the appeal for lack of jurisdiction.

Motion granted; appeal dismissed.


text:
    Kevin PUGH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2869.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Rehearing Denied Jan. 6, 2014.
    Kevin Pugh, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Freeny v. State, 621 So.2d 505 (Fla. 5th DCA 1993) (holding possession of a firearm by codefendant in course of robbery is sufficient to support conviction of defendant for armed robbery pursuant to principal theory).


text:
    Escelia TIMEUS, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D13-1462.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Philippe Symonovicz, Fort Lauderdale, for appellant.
    Broad and Cassel and Francisco Armada, and Beverly A. Pohl, Fort Lauderdale, for appellee.
    Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   PER CURIAM.

We reverse the final judgment of foreclosure in this case on the basis that the earlier entered default was improper. See Visoly v. Kluger, Peretz, Kaplan & Berlin, 707 So.2d 427, 428 (Fla. 3d DCA 1998) (concluding, when a default is based on failure to follow a court order, the court must find the failure to comply was “deliberate and in contumacious disregard of the court’s authority”).

Reversed and remanded for further proceedings.


text:
    G.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1178.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.

      Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA and FERNANDEZ, JJ.
   ON PARTIAL CONFESSION OF ERROR

WELLS, Judge.

We find no error in the adjudication of delinquency rendered below. However, based on the State’s’ proper partial confession of error, we reverse and remand for the limited purpose of conforming the written adjudicatory and disposition orders to the trial court’s oral pronouncement that adjudication be withheld. See McDavid v. State, 790 So.2d 1292 (Fla. 3d DCA 2001).

Affirmed, in part; reversed, in part, and remanded with directions.


text:
    Ricardo JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2877.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Ricardo Jones, in proper person. Pamela Jo Bondi, Attorney General, for appel-lee.
    Before WELLS, LAGOA and FERNANDEZ, JJ.
   LAGOA, J.

Ricardo Jones (“Jones”) appeals from the trial court’s denial of his petition for writ of habeas corpus. We affirm.

On September 19, 2011, Jones was convicted and sentenced. In October 2011, he filed an appeal from his judgment and sentence. While his direct appeal was still pending in this Court, Jones filed a petition for writ of habeas corpus in the trial court, which raised arguments as to the merits of his underlying conviction. The trial court correctly found that it lacked jurisdiction to consider the petition as Jones’s direct appeal was pending. See Curry v. State, 7 So.3d 633 (Fla. 3d DCA 2009); Marshall v. State, 481 So.2d 973 (Fla. 2d DCA 1986).

The trial court, however, denied the petition, rather than dismissing the petition for lack of jurisdiction. “While it is clear that the trial court had no jurisdiction to render a ruling on the post-conviction petition while the judgment and sentence were pending on appeal in this Court, it is also clear that the trial court intended that the ruling be without prejudice to [Jones] to timely pursue his post-conviction remedies at the conclusion of his direct appeal.” Curry, 7 So.3d at 634.

Accordingly, pursuant to Curry, we affirm the trial court’s denial of Jones’s petition for writ of habeas corpus, as modified, as the denial is -without prejudice to Jones’s right to timely seek post-conviction relief in the trial court at the conclusion of his direct appeal. See Curry, 7 So.3d at 633; Marshall, 481 So.2d at 973. We note that this Court has now affirmed Jones’s direct appeal, see Jones v. State, No. 3D11-2661 (Fla. 3d DCA 2018), and the mandate issued on May 24, 2013.

Affirmed.


text:
    Van JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-1792.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Van Jackson, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Van Jackson appealed an order summarily denying his motion for reinstatement and leave to refile postconviction motion. This court treated the appeal as a petition for writ of mandamus to compel the trial court to allow him to refile his purported initial rule 3.850 motion, originally served on September 16, 1999, and to consider same on the merits.

This court appointed a commissioner to make findings of fact: first, as to whether Jackson actually turned over his purported initial rule 3.850 motion to prison officials for mailing on September 16, 1999; and second, whether he exercised due diligence thereafter in seeking a ruling on that motion within a reasonable time.

The commissioner heard testimony from Jackson, who presented a copy of the rule 3.850 motion which he had presented to a prison official for mailing on September 16, 1999, along with copies of other documents including a “motion for reinstatement and leave to refile” presented in 2012. The commissioner found Jackson to be credible, and determined he actually turned over his purported initial rule 3.850 motion to prison officials for mailing on September 16, 1999, and that he exercised due diligence thereafter in seeking a ruling on that motion. The commissioner recommended the case be sent back to the trial court to address Jackson’s initial motion on the merits.

No objections have been filed to the commissioner’s report. Accordingly, we grant the petition. The case is hereby returned to the trial court to address on the merits Jackson’s original rule 3.850 motion presented to prison officials for mailing on September 16,1999.

Petition for writ of mandamus is granted.

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Patrick O’HEARN, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 4D13-1728.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Patrick O’Hearn, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), review denied, 104 So.3d 1085 (Fla.2012).

STEVENSON, MAY and CONNER, JJ., concur.


text:
    Michael Markel TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3826.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Mackey v. State, 124 So.3d 176 (Fla.2013).

WARNER, CONNER and FORST, JJ., concur.


text:
    Brendan CLEMENTS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-4486, 4D12-4487, 4D12-4488, 4D12-4489, 4D12-4490, 4D13-851, 4D13-852.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

DAMOORGIAN, C.J., STEVENSON and MAY, JJ., concur.


text:
    Charlie GIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1849.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Rehearing Denied Jan. 3, 2014.
    Michael D. Gelety, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Janvier v. State, 123 So.3d 647(Fla. 4th DCA 2013).

GROSS, CONNER and LEVINE, JJ., concur.


text:
    Stacy-Ann SINCLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2450.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Michael P. Mirer and Lisa H. Colon, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ioselli v. State, 122 So.3d 388, 390 (Fla. 4th DCA 2013); Ibarra v. State, 125 So.3d 820 (Fla. 4th DCA 2013); Joseph v. State, 107 So.3d 492 (Fla. 4th DCA 2013); Rosas v. State, 991 So.2d 1003 (Fla. 4th DCA 2008); Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999).

GROSS, CIKLIN and GERBER, JJ., concur.


text:
    Ruddy BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2720.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Ruddy Baker, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez v. State, 124 So.3d 757 (Fla.2012).

WARNER, GROSS and CONNER, JJ., concur.