author: COHEN, J.

text:
    OCEAN PALM GOLF CLUB PARTNERSHIP, Appellant, v. The CITY OF FLAGLER BEACH, etc., Appellee.
    No. 5D12-4274.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.

      Philip M. Burlington and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and Ethan J. Loeb, David Smolker and Jon Tasso of Smolker, Bartlett, Sehlosser, Loeb & Hinds, P.A., Tampa, and Dennis K. Bayer of Bayer & Maguire, P.A., Flagler Beach, for Appellant.
    Dale A. Scott and Michael J. Roper of Bell & Roper, P.A., Orlando, for Appellee.

      . Prior to the public hearing, one city commissioner informed the City’s planning and zoning director that he was strongly opposed to the development of homes on the golf course parcel and asked the director to find some reason for him to deny the proposal.

   COHEN, J.

Ocean Palm Golf Club Partnership (“Ocean Palm Golf’) appeals from the final order and judgment entered in favor of the City of Flagler Beach (“the City”) in an action brought by Ocean Palm Golf and Caribbean Condominium Limited Partnership (“Caribbean Condo”) seeking compensation for the City’s alleged taking of two parcels. We affirm.

This is an inverse condemnation case involving two parcels of land located in Flagler Beach. The first parcel is a thirty-four-acre parcel that had been operated as a nine-hole golf course (“the golf course parcel”). The second parcel is a vacant 2.94-acre parcel situated inside the golf course parcel (“the condo parcel”). While the two parcels at issue are now owned by different entities, that was not always the case. For several decades, the golf course parcel and the condo parcel made up a single parcel owned by one entity, Ocean Palm Estates, Inc. (“Ocean Palm Estates”), which was the predecessor in title to Appellant, Ocean Palm Golf. The two parcels had been operated as a golf course for more than forty years. What is now referred to as the condo parcel was the driving range; the remainder of the property was operated as a nine-hole golf course under the applicable recreational zoning designation. Eventually, Ocean Palm Estates, claiming to be losing money on the operation of the golf course, threatened the City with litigation over its refusal to change the zoning from recreational.

To resolve this dispute, the City and Ocean Palm Estates entered into a Development Agreement in 1989. The Development Agreement created a Planned Unit Development consisting of two parcels. The golf course parcel would remain designated recreational in the Comprehensive Plan, and Oceari Palm Estates would continue to operate that parcel as a golf course, which was to be open to the City’s residents. If not operated as a golf course, the golf course parcel would be maintained as an open space. In return, the City would allow residential development on the condo parcel. The Comprehensive Plan designated the condo parcel as “high density residential” and the zoning was changed to RPUD. The building was to not be higher than eighty-five feet, consistent with an attached conceptual plan, and was limited to eighty-four units with a restaurant and golf facilities. The Development Agreement further required the proposed development to be “developed according to.all the applicable zoning and building regulations of the City.” By its own terms, the Development Agreement would expire on July 1, 2003.

In 1999, before it attempted to develop the property, Ocean Palm Estates sold both parcels, deeding the golf course parcel to Appellant Ocean Palm Golf for $1.5 million and the condo parcel to Ocean Palm Condominium Ventures, Inc. (“Ocean Palm Condo”), which was Caribbean Condo’s immediate predecessor in interest. Stephen Cejner was a principal of both Ocean Palm Golf and Ocean Palm Condo, and he is the president of Ocean Palm Golf. Cognizant of the terms of the Development Agreement, he expected to build condominiums on the condo parcel and rehabilitate and operate the golf course parcel; the ability to operate the golf course depended on the ability to sell the eighty-four residential units.

Ocean Palm Condo’s first attempt at development in 2000 resulted in a proposal for an eighty-four-unit condominium tower with a width of 210 feet, with the golf course as an amenity. The City, however, objected to the tower, causing Ocean Palm Condo to fashion a different plan to respond to the City’s concerns.

Ocean Palm Condo’s second attempt at development was not successful, either. Instead of the tower plan, Ocean Palm Condo proposed three connected buildings of 210 feet in length. While Ocean Palm Condo was working to develop the condo parcel, Ocean Palm Golf was actively rebuilding the golf course parcel. Again, the City found fault, concluding that the buildings did not meet the Development Agreement’s conceptual plan.

In 2001, Ocean Palm Condo deeded the condo parcel to Caribbean Condo, which was a partnership formed to own and develop the parcel. The partnership consisted of Ocean Palm Condo, Cejner, Todd Lynch, and others. Lynch’s company, Chase LLC, owns thirty-seven percent of Caribbean Condo. Caribbean Condo was a separate company from Ocean Palm Golf, and neither could control the other. Not everyone who owns part of Caribbean Condo also owns Ocean Palm Golf, and not everyone who has an ownership interest in Ocean Palm Golf also owns a share of Caribbean Condo.

In June 2002, Caribbean Condo made a third development proposal to the City, again proposing a single-tower design. Knowing the Development Agreement would soon expire, Caribbean Condo sought an extension of the agreement while the third proposal was being considered. The City denied the extension, but it did approve the site plan, with conditions attached, including a 150-foot maximum on the building’s length instead of the 210 feet it was designed to be. Caribbean Condo was unable to revise the plan from 210 feet to 150 feet. If it had done so, the other items required by the Development Agreement, i.e., a restaurant, a pro shop, and other amenities, would not fit into the building.

Even though the Development Agreement had expired in July 2003, Caribbean Condo made a fourth attempt to develop the condo parcel in 2004. This time, it proposed a forty-two-unit project only thirty-five feet high and 150 feet wide. To be built, it required that Caribbean Condo purchase one acre of the golf course parcel from Ocean Palm Golf. The City found issues with the plan and asked Caribbean Condo to resolve the issues before the City would reschedule a hearing. Caribbean Condo, unable to resolve the issues, abandoned the proposed plan.

In 2008, Cejner and his group decided to try another approach to development. This time, they abandoned the high-density proposals and tried to get the property “down-zoned” so they could develop single-family residences on both the condo parcel and the golf course parcel. To do so, they had to first get the Comprehensive Land Use Plan amended to make both parcels “low density residential.” The ownership of the two parcels was not, however, merged for purposes of this proposal. In June 2008, they submitted a proposed amendment to the Comprehensive Plan to the City.

The application for the Comprehensive Plan amendment listed Ocean Palm Golf as the owner, even though the application sought an amendment re-designating both the golf course parcel and the condo parcel as “low density residential” with PUD zoning. Moreover, the application listed the number of acres involved as “86.9” without distinguishing between the two parcels.

On October 30, 2008, a public hearing was held on the proposed amendment to the Comprehensive Plan, during which the City considered whether to transmit the proposed amendment to the Department of Community Affairs. Citizens spoke out against the amendment. At the conclusion of the hearing, the City voted against transmitting the proposed amendment.

A second public hearing was held, again drawing strong public opposition to the proposed amendment. The City denied the amendment. Ocean Palm Golf brought suit in the circuit court unsuccessfully, with the court ruling that it was within the City’s discretion to reject the plan amendment.

In February 2010, Ocean Palm Golf and Caribbean Condo jointly filed the instant suit, alleging, in pertinent part, that the City’s refusal to change the Comprehensive Plan’s designation of the two parcels left the parcels without any economic viability, resulting in a taking thereof by the City. The case proceeded to trial in September 2012. Ocean Palm Golfs position was that the City’s denial of its proposed Comprehensive Plan amendment from recreational to low-density residential (a) deprived Ocean Palm Golf of all economically beneficial use of the golf course parcel and, thus, amounted to a total taking, or, at a minimum, (b) resulted in a substantial diminution in the value of the parcel and was therefore a partial taking.

At trial, the parties presented evidence regarding the economic viability of the two parcels. For their part, representatives of Ocean Palm Golf and Caribbean Condo testified that they bought their respective parcels with the plan of developing the condo parcel into a high-density residential complex pursuant to the terms of the Development Agreement and operating the golf course as an amenity thereto. The income from the condominium sales and sales of associate memberships in the golf course would support the golf course operation. Without the development of the condo parcel, the golf course parcel was not a money-maker. In fact, the golf course was never profitable. From its purchase in 1999 until Ocean Palm Golf closed the course in 2008, it never showed a profit. It did have revenue; the revenue was usually in the $100,000 range, but once was as high as $400,000. The expenses were even greater, however, and Cejner never was able to take a salary from the project. Cejner, based on his experience and knowledge of golf course market conditions, believed that a golf course could never be profitably operated on the thirty-four-acre parcel. He testified that beginning in 2007, the golf industry “started to fall apart” all across the country. Furthermore, because the golf course was located just one block from the ocean, salt water in the air and from the soil wreaked havoc on the grass and plants and was very expensive to maintain.

After the golf course was closed in 2008, the company was no longer able to make the mortgage payments, and foreclosure proceedings were commenced. The payoff on the mortgage was $1.6 million at the time of trial. According to Cejner, the condo parcel is not economically feasible on its own “because there’s nothing you could put there. You couldn’t take up that kind of acreage with what we paid and what we’ve lost. There’s no yield off that 2.94 acres anymore.”

Lynch testified that while the City had first seemed to be on board with the project, it appeared to change its stance after public meetings were held at which citizens spoke out against development of the property. Lynch suspected that the City was raising roadblocks to the development in an effort to run the clock out on the Development Agreement.

The parties also presented conflicting expert testimony as to the economic viability of the property. Of major contention was whether the golf course parcel should be considered independent from the condo parcel or whether the two parcels should be considered as a single unit. Ocean Palm Golf urged an independent view of the parcels; the City’s expert analyzed them as a single unit. The experts testified as follows.

Robert Leichtenberg, a real estate appraiser, testified for Ocean Palm Golf. He addressed the two parcels separately because each parcel was owned by a different owner and had different uses. Under the recreational designation, the golf course parcel could be used as a golf course, baseball fields, tennis courts, a lake, hiking trials, or wilderness camping. It was not economically feasible to rehabilitate the golf course because the population of Fla-gler Beach was not large enough to sustain it, and the course competed with several eighteen-hole courses nearby, making it uncompetitive. Most nine-hole courses are owned by municipalities, he explained, because they are not economically feasible. The other uses allowed under the recreational designation would not have been supportable, either. He noted that there are fifteen golf courses within a ten-mile radius of the golf course parcel and that a nine-hole course is not as attractive as an eighteen-hole course. Golf courses are overbuilt and are closing at the rate of one per day. An eighteen-hole course needs a population base of 40,000 people within ten miles to be successful, and the whole population of Flagler County is 97,000 people, who have fourteen courses within range.

Leichtenberg valued the golf course parcel at $170,000 as of October 2, 2008. The low figure was ascribed to the development restrictions and the probability that the City would never re-designate the property. If the golf course parcel had been designated “low density residential” on October 29, 2008, as was up for consideration by the City on that date pursuant to the application to amend the Comprehensive Plan, the value would have been $8,125,000. The parcel could have been divided into 125 lots with a value of $65,000 per lot. The value was high, in part, because there are so few lots left in Florida that are in close proximity to both the ocean and the intracoastal. The diminution in value of the golf course parcel was ninety-eight percent.

For its part, the City called John Robinson, a real estate appraiser, to testify that the golf course parcel had a value of $560,000 as of October 29, 2008, and, he believed, the highest and best use of the land was recreational, i.e., as a golf course, given the current zoning restrictions. He reached his conclusion using comparisons to the sales of properties that were, or at one time had been, golf courses. After reviewing the 2005 tax return, Robinson concluded that the golf course was profitable. He acknowledged, however, that in assessing the value of the golf course parcel, he had not considered whether it was economically feasible to rehabilitate and operate the golf course. He did not conduct before-and-after appraisals of either of the two parcels; thus, he had no opinion as to the difference in value of the golf course parcel operated as a golf course as compared to it having the potential to be developed into single-family residences.

The City also presented expert testimony from Dr. Henry Fishkind, an economist. In evaluating the development potential for the property under the current Comprehensive Plan, over objection, Dr. Fishkind treated the two parcels as one. The court overruled the objection.

Dr. Fishkind testified that, to a degree of economic certainty, even if the City had approved the Comprehensive Plan amendment, there would have been no change in the value of the parcels:

On the one hand, in the before, at least the comprehensive plan would have allowed 54 townhome units and a recreational golf course. And in the — what was denied was the request for 125 single-family lots on those same two pieces of property. And so I analyzed the development of returns from each of those options, using the standard kinds of development approach to value that economists use, that I use in our normal business practice.
Essentially, because there was no lending and no markets in 2008 or '09, the development would have to wait to come to market. And, as a practical matter, it would have to wait anyway. If we look at the golf course townhomes option, it would take time to refurbish the golf course, to replant it, for it to grow in, to be able to get the infrastructure, to build a sales center. All those things take time anyway. Even before that, a site plan would have to have been processed through the City. And those things take 12 to 18 months. So there wasn’t any product that was going to happen anyway until 2010 at the earliest.
I then analyzed the market for the single-family lots, and I used Mr. Leichten-berg’s price of $65,000, although I don’t agree with it, and compared that to what I think a townhouse option would have been for the property, along with the use of the golf course as an operational amenity. My view, recognizing that that operational amenity, like almost any in any project I’ve ever run, runs at a deficit, it’s there to help sell real estate, and I factored that in.
And to a reasonable degree of economic certainty, given the inherent uncertainty in development and sales, we have to use a very large discount rate, Your Honor, so that the streams of value brought to their present value with a discount rate of 80 percent, which is what our clients use, there’s just no distinguishable difference between the proceeds, the net proceeds from the two development options after the discounting and the time involved. So I don’t believe there was any decrement to value based on my analysis.

He subsequently added:

In measuring economic viability, then we don’t take into account the cost basis. The cost basis isn’t irrelevant [sic] to making the decision today. Those costs are sunk. So if the owners can’t make a profit, they can’t make a profit. I’ve given what I think is the land plan that has the highest probability of generating the highest net revenue for them.

He also stated, “[I]t is appropriate to ignore the sunk costs in analyzing economic viability and whether the owners are left with any economically viable use of their property under the current comprehensive plan designations. It ... may not give them a profit, but those are different things.”

Dr. Fishkind also analyzed the development potential of the two parcels as of October 30, 2008, the date on which the proposed amendment to the Comprehensive Plan was rejected. He assumed that the two parcels would be developed “cooperatively” because that was how they had worked in the past — the owners of the two parcels applied jointly for the projects. In his opinion, having a townhouse project that has an adjacent nine-hole golf course is the “most likely and, assumably [sic], viable economic use for the properties” and “could be potentially permitted given the comprehensive plan that encumbers both properties at this time.” His analysis was done assuming that the land would be zoned to allow fifty-four units. He did not believe that sixty percent of the 2.94-acre site would have to be set aside as open space (as it did under current zoning) if both parcels were rezoned. Dr. Fishkind admitted that if the assumption that the two owners would work together was incorrect, then a different analysis would result. He believed, though, that the two owners had an economic interest in working together.

On cross-examination, Dr. Fishkind clarified that his assumptions were that the two parcels were treated as a single entity; the golf course would be rehabilitated and then operated at a loss and turned over to the homeowners. The homeowners would bear the loss into the future, offset by whatever public revenues they received.

Dr. Fishkind was asked to consider a profit analysis. He distinguished net profits going forward from ultimate profits, which takes into account the investment costs. Net profits may not give owners an ultimate profit. Even if there is no ultimate profit, it makes no economic sense to do nothing with the property. Dr. Fish-kind admitted that with the high costs already spent on the two parcels, there was “probably absolutely no development plan that would ever generate positive profit, given the cost and current market conditions and reasonable expectations about a development program and a discounting.”

Following the three-day, nonjury trial, the trial court entered a final judgment in favor of the City. In it, the court rejected Ocean Palm Golfs claim that the City’s refusal to amend the Comprehensive Plan from recreational to low-density residential deprived Ocean Palm Golf of all economically viable use of the property. Noting that the parties had disputed whether the two parcels should be treated as a single tract, the court stated it had considered both alternatives and determined that, under each option, there was an economically beneficial use of the property — it could be operated as a golf course. In considering the parcels together, the court found that Dr. Fishkind’s testimony as to the economically beneficial use was persuasive. In considering the golf course parcel separately, the court found as follows:

In considering the 34-acre golf course standing alone, the Court finds there is an economic beneficial use. [Ocean Palm Golf] contends there is a 10-year history of losses for the property. [Ocean Palm Golf] cites to its 1999 through 2008 tax returns as proof that the property has no economic beneficial use. However, a review of the tax returns indicates the losses, in large measure, are a result of basis costs. The calculation of economic beneficial use is not akin to profitability, as basis costs should not be considered. When factoring out the deductions for interest and depreciation on the tax returns, they reveal there was a profit to [Ocean Palm Golf] in 2001, 2002, 2003, 2004, and 2005. This is so without considering other reasons why [Ocean Palm Golf] was losing money. The Court finds Dr. Fishkind’s opinion as to the economic viability of the golf course to be persuasive.

Ocean Palm Golf timely appealed.

On appeal, Ocean Palm Golf argues that the City’s refusal to amend the Comprehensive Plan in 2008 from recreational to low-density residential to accommodate its proposed development of the golf course parcel constituted a total taking of that property because the current recreational designation of the parcel denied Ocean Palm Golf all economically beneficial use of the property. Ocean Palm Golf further contends that the trial court’s finding that it was not deprived of all economically beneficial use was not supported by competent, substantial evidence. Specifically, Ocean Palm Golf asserts that Dr. Fish-kind’s testimony, upon which the trial court relied, was not competent because it was based on the erroneous assumption that the golf course parcel and the condo parcel could be treated as a single tract. We disagree.

“Inverse condemnation is a cause of action by -a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken.” Osceola Cnty. v. Best Diversified, Inc., 936 So.2d 55, 59-60 (Fla. 5th DCA 2006) (citing Rubano v. Dep’t of Transp., 656 So.2d 1264 (Fla.1995); Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So.2d 171 (Fla. 2d DCA 1995)). To determine whether a government regulation of land use amounts to a taking of property, the court must determine whether the government action deprived the owner of all economically beneficial use of the land. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); see also Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (explaining that a regulation that deprives an owner of all economically beneficial use of property constitutes a per se taking for which the government must pay just compensation); Tampa-Hillsborough Cnty. Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 58 (Fla.1994) (“A taking occurs where regulation denies substantially all economically beneficial or productive use of land.”). Before the takings analysis can be initiated, however, it must first be determined whether the golf course parcel should be considered as a stand-alone parcel or whether it must be considered as a part of a larger tract that includes the condo parcel. See Dist. In-town Props. Ltd. P’ship v. Dist. of Columbia, 198 F.3d 874, 879 (D.C.Cir.1999) (“Under both Lucas and Penn Central, then, we must first define what constitutes the relevant parcel before we can evaluate the regulation’s effect on that parcel.”). Ocean Palm Golf urges the stand-alone view.

Generally, the courts have considered three factors in determining whether parcels are separate and independent or a single tract: “physical contiguity, unity of ownership, and unity of use.” Dep’t of Transp., Div. of Admin. v. Jirik, 498 So.2d 1253, 1255 (Fla.1986) (“Jirik II”). These factors are to be flexibly applied. Id. To determine whether there is unity of use, the courts have assessed the following factors:

(1) intent of the owner, (2) the adaptability of the property, (3) the dependence between parcels, (4) the highest and best use of the property, (5) zoning, (6) the appearance of the land, (7) the actual use of the land, and (8) the possibility of tracts being combined in use in the reasonably near future.

Town of Jupiter v. Alexander, 747 So.2d 395, 400 (Fla. 4th DCA 1998) (citing Div. of Admin. v. Jirik, 471 So.2d 549, 554-55 (Fla. 3d DCA 1985) {“Jirik I ”)).

It is undisputed that the golf course parcel and the condo parcel are two legally distinct lots. Because the property is separately platted and unoccupied, there is a rebuttable presumption of separateness. Jink II, 498 So.2d at 1256-57. We believe that the City did, in fact, rebut that presumption. In our view, the unity of use factor weighs in favor of finding that the presumption was rebutted. Historically, the two parcels were a single tract of land, until 1989, at which point the Development Agreement treated them as two distinct tracts. While the two parcels were sold to different owners in 1999, the purchasers worked together to obtain approval of symbiotic developments on the parcels. And, significantly, Ocean Palm Golf and Caribbean Condo treated the two parcels as one in their application for the Comprehensive Plan amendment.

The unity of ownership factor also weighs in favor of finding that the City rebutted the presumption of separateness. Although the parcels are now owned by different companies, there is substantial overlap in principals and shareholders of those companies. For instance, Stephen Cejner is the principal of both Ocean Palm Golf and Caribbean Condo. Moreover, in the amendment application, the parcels were claimed to be owned by Ocean Palm Golf alone. Ocean Palm Golf made a similar representation in a prior lawsuit.

Lastly, the physical contiguity factor weighs in favor of finding that the City rebutted the presumption of separateness. The two parcels at issue here are uniquely situated — not only are they contiguous, but one is located within the other.

Given our conclusion that the presumption of separateness was rebutted by the City, we hold that Dr. Fishkind’s testimony — that, taken together, the parcels retained an economically beneficial use— constituted competent, substantial evidence upon which the trial court properly relied. Because Ocean Palm Golf was not deprived of all economically beneficial use of the parcels, we affirm the trial court’s ruling that a total taking did not occur here.

We agree with Ocean Palm Golf that the government’s refusal to act can constitute a total taking under some circumstances. See, e.g., Tollius v. City of Miami, 96 So.2d 122 (Fla.1957) (holding that the denial of property owner’s request to rezone lots from residential to commercial was an abuse of discretion because the character of the area had changed greatly, rendering single-family residential use unsuitable); Kugel v. City of Miami, 206 So.2d 282 (Fla. 3d DCA 1968) (concluding that denial of rezoning request from residential to less restrictive zone constituted a taking of the property where what had been quiet residential area was now surrounded by tall buildings and parking lots). However, as the City correctly points out, the cases holding that a taking has occurred when the government refuses a request to change zoning, even though the character of the land surrounding the affected land has changed dramatically, are distinguishable from this case because, here, the character of the property surrounding the golf course parcel has remained largely the same for decades — it has long been used for single- and multifamily residences. Ocean Palm Golf replies that the changed circumstance on which it is relying is not a change to the surrounding properties, but rather is the change in market and demographic factors: the fact that golf courses across the country are no longer profitable due to the over-construction of golf courses, the aging golf population, and the increased expense involved in operating the golf course. We deem this to be a faulty argument, as it is based on Ocean Palm Golfs failed economic expectations. In effect, Ocean Palm Golfs position is that if a landowner buys a piece of property and the economy later takes a downturn, resulting in the frustration of the landowner’s expectations, then the government must act as a guarantor for the landowner’s investment after it becomes unprofitable due to, not the zoning regulations, but outside market forces. This is not the purpose of eminent domain law.

Although the partial takings claim was not addressed in the final order and judgment, both parties have assumed that the trial court implicitly denied Ocean Palm Golfs partial taking claim. Viewing the trial court’s order as a rejection of the partial takings claim, we review the facts in that light. We conclude that no partial taking occurred here. “In an as-applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact of the regulation on a particular parcel of property.” Collins v. Monroe Cnty., 999 So.2d 709, 713 (Fla. 3d DCA 2008). The standard for evaluating as-applied claims originates from the Supreme Court’s decision in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). “In Penn Central, the Court identified three factors to apply when engaging in an analysis of whether a regulation constitutes a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed- expectations; and (3) the character of the governmental action.” Leon Cnty. v. Gluesenkamp, 873 So.2d 460, 467 (Fla. 1st DCA 2004).

Ocean Palm Golf admits that the second Penn Central factor weighs in favor of finding that no partial taking occurred because the City’s refusal to amend the Comprehensive Plan did not interfere with its reasonable investment-backed expectations, as it purchased the golf course parcel well aware that it wás zoned recreational and it intended to put the property to recreational use as a golf course. However, Ocean Palm Golf argues that the other two Penn Central factors weigh in favor of finding a partial taking.

We agree with Ocean Palm Golf that the third Penn Central factor, the character of the government action, weighs in favor of finding a partial taking because the burden of the regulation falls disproportionately on Ocean Palm Golf. In a separate but related case involving the same parties, a prior trial court found that “[t]his parcel constitutes a substantial portion of the green space for the City” and that “it is the only privately owned parcel with an ‘R’ [recreational] designation.” Thus, while the benefits of the open space provided by the golf course are widely shared throughout the Flagler Beach community, Ocean Palm Golf alone shoulders the burden of that regulation. Cf. Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 640 (Minn.2007) (finding that “character of the government action” factor weighed in favor of property owner where the “Parks, Open Space and Recreation” land use designation “seems aimed at things that have been considered governmental functions” and where “[t]he benefits of the open space provided by the golf course are widely shared throughout the community, but the costs are focused solely on the property owner”). However, the first Penn Central factor — the economic impact of the regulation — weighs in favor of finding that there has been no partial taking. Dr. Fishkind’s testimony demonstrated that the two parcels, taken together, retained an economically beneficial use. Cf. Fla. Rock Indus. Inc. v. United States, 18 F.3d 1560, 1568 (Fed.Cir.1994) (noting that a partial regulatory taking may be found where a regulation results in the deprivation of “a substantial part ... of the economic use or value of the property”). Balancing these three Penn Central factors, we conclude that there was no partial taking here. Accordingly, we affirm the trial court’s judgment in all respects.

AFFIRMED.

LAWSON and BERGER, JJ., concur.

      . Caribbean Condo voluntarily dismissed its separate appeal.

      . The parcels are surrounded by multi-family and single-family residences.

      . As Cejner later explained, the investors decided that "we'll buy an acre from ourselves."

      . At this point, the condo parcel was subject to a thirty-five-foot height limit that had been adopted by the City in 2006.

      . Ocean Palm Golf and Caribbean Condo brought other causes of action in addition to their takings claims. Those causes of action are not relevant to this appeal, however.

      . This is important because, before a takings analysis can be undertaken, the subject of the alleged taking must first be determined.

      . Ordinarily, the failure to obtain a ruling on this claim would be fatal to Ocean Palm Golf's appeal of this issue; however, during oral argument, the City stipulated that the trial court implicitly denied Ocean Palm Golf's partial takings claim. With some reservation, we accept that stipulation for purposes of appeal.

      . Our conclusion is buttressed by the outpouring of public opposition to development of this project as well as the comment made by a city commissioner.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stanley McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3179.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before us on remand from the Florida Supreme Court, which quashed our earlier decision reported at McCloud v. State, 53 So.3d 1206 (Fla. 5th DCA 2011). McCloud was charged with first-degree murder and the jury was also instructed on the lesser included offenses of second-degree murder, third-degree felony murder, and manslaughter by act. He was convicted of second-degree murder. He appealed the trial court’s faulty jury instruction on manslaughter by act. In this case, the lesser included offense of manslaughter by act was two steps removed from the second-degree murder conviction due to the inclusion of the felony murder charge in the jury instructions and on the verdict form. Accordingly, pursuant to the ruling in Haygood v. State, 109 So.3d 735 (Fla.2013), we have undertaken a harmless error analysis. See also Pena v. State, 901 So.2d 781 (Fla.2005). Based upon that analysis, we hold that the trial court’s error in instructing the jury on the lesser included offense of manslaughter by act was harmless. Accordingly, we affirm McCloud’s conviction and sentence for second-degree murder. See also, Daugherty v. State, 96 So.3d 1076 (Fla. 4th DCA 2012), rev. granted, No. SC13-1791, 2014 WL 1782824 (Fla.2014).

AFFIRMED.

TORPY, C.J., PALMER and LAWSON, JJ., concur.


text:
    Preston S. ALLEN, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-5081.
    District Court of Appeal of Florida, First District.
    May 30, 2014.
    Preston S. Allen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Octavious Arnez JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6232.
    District Court of Appeal of Florida, First District.
    May 30, 2014.
    Octavious Arnez Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Taran Ricky LENHARDT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2125.
    District Court of Appeal of Florida, First District.
    May 30, 2014.
    Taran Lenhardt, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Edward G. RICCARDI, Appellant, v. JPMORGAN CHASE BANK, N.A., Appellee.
    No. 5D12-4575.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.
    Edward G. Riccardi, North Miami Beach, Pro Se.
    Susan Capote and Joseph Wargo of Wargo & French, LLP, Miami, for Appel-lee.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s Concession of Error, the circuit court’s October 30, 2012 Final Judgment for Plaintiff is reversed and this cause is remanded to the circuit court for further proceedings.

REVERSED and REMANDED.

PALMER, LAWSON and BERGER, JJ., concur.


text:
    RICHARDS and Harold Richards, Appellants, v. WALT DISNEY WORLD CO., etc., Appellee.
    No. 5D13-1882.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.
    Amy J. Carter of Law Office of C. Todd Smith, Orlando, for Appellants.
    Douglas H. Stein and Stephanie Martinez of Seipp, Flick & Hosley, LLP, Lake Mary, for Appellee.
   PER CURIAM.

We reverse the summary judgment entered in this trip-and-fall case. We conclude that questions of fact exist as to what caused Appellant to trip and whether the object that caused the trip and fall was open and obvious. See Javits v. RSMO Independence Mgmt. Consultants, Inc., 738 So.2d 521 (Fla. 4th DCA 1999); Abes v. Publix Supermarkets, Inc., 610 So.2d 709 (Fla. 4th DCA 1992).

REVERSED and REMANDED.

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


author: KHOUZAM, Judge.

text:
    Kelsey J. HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5894.
    District Court of Appeal of Florida, Second District.
    May 30, 2014.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KHOUZAM, Judge.

Kelsey J. Hughes appeals his conviction and sentence for possession of cocaine. This appeal was originally filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but this court ordered supplemental briefing on the issue of the adequacy of the State’s evidence to corroborate contested prior convictions at sentencing. We affirm the conviction but reverse and remand for re-sentencing because the State failed to meet its burden as to two of the three contested prior convictions.

At sentencing, Hughes’ counsel informed the trial court that on the previous day he had notified the State that Hughes disputed at least one of the prior convictions on his scoresheet. Counsel for Hughes then specified that Hughes was contesting three prior convictions: conspiracy to deliver cocaine (case number 92-11229), trafficking in cocaine (case number 97CF392), and shooting or throwing a deadly missile into a vehicle (case number 86CF4584).

Although the State produced a certified copy for the conviction for conspiracy to deliver cocaine, no other physical evidence was offered. The only support for the other convictions was information from the Department of Corrections’ website and from unspecified court computer documentation. Although it is clear from the transcript of the sentencing hearing that the clerk accessed some information on the court’s computer system, nothing in the record establishes specifically what was accessed by the clerk or reviewed by the judge. The trial court declared it was satisfied with the accuracy of the score-sheet with all three contested prior convictions included and sentenced Hughes to 41.4 months, the lowest permissible sentence.

‘When a defendant disputes a prior offense the sentencing court must either require the State to produce corroborating evidence of the offense or not consider the offense.” Smith v. State, 714 So.2d 1152, 1153 (Fla. 2d DCA 1998). Once disputed, the burden is on the State to produce “ ‘competent evidence of the disputed conviction.’ ” DeGeso v. State, 771 So.2d 1264, 1265 (Fla. 2d DCA 2000) (quoting Watson v. State, 591 So.2d 951, 953 (Fla. 2d DCA 1991)). “[HJearsay statements cannot support the inclusion of prior convictions on the scoresheet when an objection is made by a defendant.” Yankovski v. State, 785 So.2d 1283, 1284 (Fla. 5th DCA 2001).

Here, the conviction for conspiracy to deliver cocaine was supported by a certified copy and was therefore properly corroborated. See Jones v. State, 28 So.3d 981, 982 (Fla. 2d DCA 2010) (“The trial court ... correctly required that [the State] prove the ... conviction by obtaining a certified copy of the conviction.”). But the information pulled from the Department of Corrections’ website was hearsay and could not corroborate the convictions. See Yankovski, 785 So.2d at 1284 (concluding that a scoresheet prepared by the Department of Corrections was insufficient to corroborate contested prior convictions where the employee was not available as a witness). Finally, although a trial court may rely on “original court records” in addition to certified copies when verifying prior convictions, see Moore v. State, 944 So.2d 1063, 1064 (Fla. 4th DCA 2006), nothing in the appellate record establishes what records the trial court reviewed in this case. In the absence of certified copies, and without knowing what other records the trial court relied upon, we cannot conclude that the State met its burden to produce competent evidence to corroborate the contested prior convictions.

Consequently, the trial court erred by including two contested but uncorroborated prior convictions on Hughes’ score-sheet: trafficking in cocaine and shooting or throwing a deadly missile into a vehicle. The error is not harmless because Hughes was sentenced to the lowest permissible sentence under the incorrectly calculated scoresheet and nothing in the record conclusively shows the sentence would have been the same under an accurate one. See Fortner v. State, 830 So.2d 174, 175 (Fla. 2d DCA 2002) (“[A] scoresheet error is not deemed harmless unless the record conclusively shows that the trial court would have imposed the same sentence had it had the benefit of the corrected scoresheet.”). We must therefore remand for resentenc-ing, at which the State shall have the opportunity to present corroborating evidence of the contested prior convictions.

Convictions affirmed; sentence reversed and remanded for resentencing.

DAVIS, C.J., and LaROSE, J., Concur.


text:
    Ronald McPHERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5242.
    District Court of Appeal of Florida, First District.
    June 3, 2014.
    Ronald McPherson, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner Ronald McPherson seeks cer-tiorari review of the trial court’s order denying his motion to modify sentence as untimely. The State could not show cause why the petition shouldn’t be granted. For the following reasons, we grant Mr. McPherson’s petition.

On July 17, 2013, Mr. McPherson was found guilty on two counts of burglary of a conveyance and sentenced to five years in prison. On September 16, 2013, he gave corrections officials a motion for modification or reduction of his sentence for filing with the court. Under the “Mailbox Rule,” a document filed by a pro se inmate is timely if placed in the hands of an institution official for mailing on or before the last day for filing. See Thompson v. State, 761 So.2d 324, 326 (Fla.2000). The Florida Rules of Criminal Procedure require that motions to modify or reduce a sentence be filed within sixty days after imposition. See Fla. R.Crim. P. 3.800(c). The sixtieth day from July 17, 2013, was Sunday, September 15, 2013. Pursuant to the Florida Rules of Judicial Administration, the filing deadline rolls to the next business day — Monday, September 16, 2013 — the same day that Mr. McPherson gave his motion to corrections officials. See Fla. R. Jud. Admin. 2.514(a)(1)(C). Because Mr. McPherson placed his motion in the hands of corrections officials on the last day of the period, it must be considered timely filed.

We GRANT the Petition for Writ of Certiorari, QUASH the Order Denying Defendant’s Motion for Modification or Reduction of Sentence, and REMAND the matter for consideration of Mr. McPherson’s motion on the merits.

LEWIS, C.J., THOMAS, and OSTERHAUS, JJ., concur.


author: SALTER, J.

text:
    Keven CONSTANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2521.
    District Court of Appeal of. Florida, Third District.
    June 4, 2014.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER and LOGUE, JJ.
   SALTER, J.

Keven Constant appeals his conviction and sentence following a jury trial and verdict of guilt on a charge of robbery without possession of a firearm. We reverse and remand the case for a new trial. This is a single-eyewitness robbery case that must be retried because of mistakes by the prosecutor at trial.

The robbery occurred in April 2008 in a retail sports and shoe store. The single eyewitness was the store manager, who got a brief look at the perpetrator when he removed a rag from his face. After obtaining the contents of the register and safe by brandishing a gun, the perpetrator demanded that the store manager give him two pairs of high-end athletic shoes in size twelve as he left the store.

A store surveillance video system provided partial images of the perpetrator’s body, but not his face. There was no fingerprint or other forensic evidence to identify the perpetrator. Working with the store manager’s description of the perpetrator, a detective assembled a photo array of six photos, one of which was a photograph of the defendant. Viewing the array eleven days after the crime date, the store manager named the defendant as the perpetrator. Two other persons in the store as the robbery unfolded did not have a clear view of the perpetrator and could not identify him in the array.

During voir dire, the prosecutor asked potential jurors if they would be able to convict the defendant based upon the testimony of a single witness. A defense objection prompted the prosecutor to respond, incorrectly, that there would be more than one witness identification. The trial court ultimately denied a motion to strike the entire panel based on the prosecutor’s hypothetical.

During trial, the store manager testified that she was “110% sure” that she had correctly identified the defendant as the perpetrator, and that he was holding a gun during the robbery. The State asked the store manager if she could look at a person’s shoes and visually determine the size of the shoes, and she said she could. Asked to identify the defendant’s shoe size by looking at him in open court, the store manager initially testified that the defendant was wearing a size nine or ten. After an additional leading question by the prosecutor, she stated that the defendant’s shoes looked like a size eleven or twelve.

During closing argument, the prosecutor reminded the jury that they had “promised” to convict based on a single witness if they found that witness credible. The prosecutor also told the jury that “I do believe he [the defendant] committed this crime.” The defendant was found guilty of robbery without possession of a firearm. Analysis

The defendant’s claims of error relating to voir dire and the “shoe size” testimony might not be persuasive, in isolation. But we find the additional claim of error based on improper closing argument to be well taken and dispositive, given the facts of this case and those other errors.

In Sempier v. State, 907 So.2d 1277, 1278 (Fla. 5th DCA 2005), the prosecutor concluded her closing argument by asserting “Ladies and gentlemen, you have all the testimony that you need. He did it. He’s guilty. You should convict him.” In that case, as here, the evidence of guilt was far from overwhelming, such that a prosecutor’s admonition to the jury that the defendant was guilty assumed greater significance:

Generally, where there is overwhelming evidence of a defendant’s guilt, a prosecutor’s assertion that the defendant is guilty may be considered harmless. See, e.g., Kent v. State, 702 So.2d 265 (Fla. 5th DCA 1997). However, when the jury is “walking a thin line between a verdict of guilt and innocence, the prosecutor cannot be allowed to push the jury to the side of guilt with improper comments.” Ryan [v. State ], 457 So.2d [1084] at 1091 [ (Fla. 4th DCA 1984) ]. The prosecutor’s pronouncement that Sempier “is guilty” and that “he did it,” improperly injected into the jury’s consideration her personal belief as to Sempier’s guilt, and could have contributed to Sempier’s conviction.

Id. at 1278-79.

In the case at hand, the State’s case hung on a single eyewitness’ identification from a photo array eleven days after the robbery. There was no physical evidence. The perpetrator’s face was partially covered during much of the episode. Video surveillance did not permit positive identification, and the “shoe size” testimony was equivocal. The jury’s finding that the defendant did not possess a gun during the robbery evidenced a willingness to accept some, but not all, of the store manager’s testimony. Based on this record, we cannot say that the prosecutor’s improper comments constituted harmless error beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Reversed and remanded for a new trial.


author: LAGOA, J.

text:
    Kevin BURNS, Appellant, v. Lucie TONDREAU, Penelope Townsley, as Miami-Dade County Supervisor of Elections, Michael A. Etienne, as City Clerk, City of North Miami Canvassing Board, and Smith Joseph, Appellees/Intervenor.
    No. 3D13-2438.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.

      Rasco Klock Perez Nieto and Joseph P. Klock, Jr., Gabriel E. Nieto, Coral Gables, and Hilton Napoleon II, for appellant.
    Benedict P. Kuehne, Miami; Regine M. Monestime, City Attorney, for appellees Lucie Tondreau, Penelope Townsley, Michael A. Etienne, and City of North Miami Canvassing Board; Greenspoon Marder and Joseph S. Geller, Fort Lauderdale, for appellee/intervenor Smith Joseph.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   LAGOA, J.

Appellant, Kevin Burns (“Burns”) appeals from an order granting Appellee, Lucie Tondreau’s (“Tondreau”) Motion to Dismiss for lack of subject-matter jurisdiction. We affirm in part and reverse in part. We affirm the trial court’s order to the extent that Burns alleges that Ton-dreau failed to properly qualify to run for the office of mayor, as those types of challenges must be brought pre-election. Pursuant to section 102.168(3)(b), Florida Statutes (2012), however, Burns is not barred from bringing a post-election challenge to Tondreau’s eligibility to hold the office as set forth in Article II, Section 5 of the City of North Miami’s Charter (“City Charter”). Accordingly, we reverse and remand for Burns to pursue the permitted post-election eligibility challenge.

I. FACTUAL AND PROCEDURAL HISTORY

Burns and Tondreau, along with five other candidates, ran for the office of may- or for the City of North Miami (“City”). The general election was held on May 4, 2013. As a result of initial election results, a run-off was held between Burns and Tondreau. On June 7, 2013, Tondreau prevailed with 55.71% of the vote, was certified the winner, and was sworn in on June 11, 2013.

On June 17, 2013, Burns filed suit in circuit court seeking a declaratory judgment pursuant to sections 86.021 and 102.168, Florida Statutes (2012). Subsequently, Burns filed an Amended Complaint that also sought a judgment of ouster if the trial court determined Tondreau had not qualified to run for mayor. In the Amended Complaint, Burns alleged that Tondreau failed to file the documentation required by Article IV, Section 6-78(b)(2) of the North Miami Municipal Election Code (“City Code”). Specifically, Burns alleged that Tondreau failed to provide one of the following required documents: residential lease, voter’s registration card, driver’s license, property tax receipt, homestead exemption, or proof of utility service. Burns further alleged that Ton-dreau had not continuously resided in the City for at least one year prior to qualifying. As Tondreau filed her candidate packet on April 8, 2013, Burns alleged that she was required to establish that her residency within the City began on April 8, 2012 (or earlier) and continued through April 8, 2013.

On July 9, 2013, Burns moved for summary judgment based solely on Tondreau’s alleged failure to comply with the requirements of Section 6-78(b)(2) of the City Code, arguing that Tondreau’s application package was legally insufficient to qualify her as a candidate for mayor.

Tondreau answered the Amended Complaint, filed a Motion to Dismiss, and responded to Burn’s Motion for Summary Judgment.

After briefing by both parties, the trial court entered an order granting Ton-dreau’s Motion to Dismiss. In its written order, the trial court cited to McPherson v. Flynn, 397 So.2d 665 (Fla.1981), and found that “[g]enerally, courts have no inherent power to determine election contests nor do courts have jurisdiction to inquire into a person’s qualification to run for office after that person has been duly elected.” (Emphasis in original). Additionally, the trial court ruled that Burns’s Motion for Summary Judgment was rendered moot in light of the order granting dismissal. This appeal followed.

II. ANALYSIS

“[E]xtreme care must be given to post-election challenges to avoid disenfranchising Florida’s voters.” Levey v. Dijols, 990 So.2d 688, 692 (Fla. 4th DCA 2008). Indeed, “barring fraud, unfairness, disfranchisement of voters, etc., it is too late to attack the validity of an election after the people have voted.” Baker v. State ex rel. Caldwell, 122 So.2d 816, 826 (Fla. 2d DCA 1960).

In this case, the Amended Complaint commingles the statutory requirements of Tondreau to qualify to run for mayor with the constitutional eligibility requirement needed for Tondreau to be eligible to hold office. Because this is a post-election challenge, and section 102.168 authorizes post-election challenges only on limited enumerated grounds, the distinction between a candidate’s required steps to qualify to run for office and a candidate’s constitutional eligibility to hold office is significant and merits discussion.

“The law distinguishes between a candidate’s constitutional eligibility for office, on the one hand, and, on the other, a constitutionally eligible candidate’s taking the necessary, statutory steps to qualify to run for office.” Norman v. Ambler, 46 So.3d 178, 182 (Fla. 1st DCA 2010). The eligibility for office is determined solely by the constitutional requirement for holding the office sought. See Levey, 990 So.2d at 688 . “To establish ‘[i]neligibility of the successful candidate for the nomination or office in dispute,’ § 102.168(3)(b), Fla. Stat. (2010), a pleading must aver, and proof must show, constitutional ineligibility — the failure to meet qualifications the constitution lays down.” Norman, 46 So.3d at 184.

In this case, the City is a municipality, and “the paramount law of a municipality is its charter, (just as the State Constitution is the charter of the State of Florida,) and gives the municipality all the powers it possesses.... ” City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801, 803 (Fla.1972). As discussed below, Article II, section 5 of the City’s Charter establishes a person’s eligibility to serve as mayor.

The main thrust of Burns’s Amended Complaint, however, stems from the allegation that Tondreau failed to produce proper documentation as required by Section 6 — 78(b)(2) of the City Code to qualify to run for mayor. Specifically, Burns alleged that Tondreau failed to produce “voter’s registration, driver’s license, property tax receipt, homestead exemption, utility bills or lease agreement; all of which must have been in effect for at least one (1) year prior to qualifying.” These allegations, however, only pertain to whether Ton-dreau met the qualification requirements to run for office, not Tondreau’s eligibility to hold office. Because qualification issues cannot be raised after an election has been held, we will address the parties’ arguments involving pre-election and post-election challenges to whether a candidate has qualified to run for office.

A. PRE-ELECTION AND POST-ELECTION CHALLENGES TO QUALIFICATIONS

In granting Tondreau’s Motion to Dismiss, the trial court relied upon the Florida Supreme Court’s case of McPherson v. Flynn, 397 So.2d 665 (Fla.1981). In McPherson, the Florida Supreme Court concluded that the losing candidate for a seat in the Florida Legislature could not, post-election, unseat the winning candidate based on a false candidate oath that the winning candidate filed during the qualifications period. Significantly, the Court stated:

Since there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out. The statutory election contest has been interpreted as referring only to consideration of the balloting and counting process. The balloting process is distinct from the legal qualifications of the candidates, and we can find no authority for extending an election contest to areas outside the balloting process.

Id. at 668 (citations omitted).

Burns attempts to distinguish McPherson, claiming that case involved the interpretation of section 102.168 in the context of an election for state office, whereas here, the contest involves election for city office. Burns argues that McPherson is distinguishable because it involved requirements imposed by the State’s constitution, as distinct from requirements imposed by a city’s charter or ordinance. Burns misapprehends the crux of McPherson, as it is grounded in the doctrine of separation of powers and in the strict construction of section 102.168 — neither of which distinguishes between state and city offices.

Additionally, in support of his position that the trial court had jurisdiction to hear his qualifications challenge, Burns relies on this Court’s opinion in Marina v. Leahy, 578 So.2d 382 (Fla. 3d DCA 1991). We find this argument unpersuasive. In Marina, approximately one and a half months before the election, the supervisor of elections received a sworn affidavit from an elector challenging Marina’s residency to run for the position of mayor of the City of Sweetwater. The trial court disqualified Marina, and this Court affirmed, stating, in part:

The Sweetwater Code establishes a residency requirement as a condition precedent to a candidate’s name being placed on the ballot. Reasonable residency requirements as a qualification for candidacy to public office are a valid means of regulating the election of public officials. Marina failed to meet the requirement of establishing residence in the city six months prior to the qualifying date and, thus, was not a qualified candidate.

Marina, 578 So.2d at 384-85 (citations omitted). In Marina, the election had not yet taken place. Here, the election was over, and Tondreau had been declared the winner, certified, and sworn in.

To the extent Burns’s Amended Complaint and his Motion for Summary Judgment are based on whether Tondreau properly met the qualification requirements necessary to run for office of mayor prior to the election, the trial court correctly found that: “[generally, courts have no inherent power to determine election contests nor do courts have jurisdiction to inquire into a person’s qualification to run for office after that person has been duly elected.” Accordingly, we affirm the trial court’s order granting the dismissal based on the Amended Complaint’s allegations challenging, post-election, whether Ton-dreau met the qualification requirements necessary to run for the office of mayor. The time to have challenged Tondreau’s qualifications to run for office was prior to the election, not after.

B. POST-ELECTION CHALLENGES REGARDING CONSTITUTIONAL ELIGIBILITY OF SUCCESSFUL CANDIDATE

We now turn to the question of when a post-election challenge is permitted. Because “there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out.” McPherson, 397 So.2d at 668. “[T]he statutory right to bring an election contest after an election has taken place, which section 102.168 confers, should be construed in strict conformity with the language of the statute.” Norman, 46 So.3d at 181.

In 1999, the Florida Legislature amended section 102.168 to allow for post-election challenges based on the successful candidate’s ineligibility for the nomination or office in dispute. Specifically, section 102.168(3)(b) states as follows:

(3) The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. The grounds for contesting an election under this section are:
(b) Ineligibility of the successful candidate for the nomination or office in dispute.

(emphasis added).

In his Amended Complaint, Burns seeks relief pursuant to section 102.168. At issue here is the “[ijneligibility of the successful candidate [Tondreau] for the ... office in dispute.” § 102.168(3)(b), Fla. Stat. (2012). As discussed above, Burns’s Amended Complaint mainly challenges whether Tondreau met the qualification requirements necessary to run for the office of mayor, but it also alleges her ineligibility to hold the office, in that Burns alleges that Tondreau had not continuously resided in the City for at least one year prior to qualifying, an eligibility requirement under Article II, section 5 of the City Charter. As discussed supra, the law “distinguishes between a candidate’s constitutional eligibility for office, on the one hand, and, on the other, a constitutionally eligible candidate’s taking the necessary, statutory steps to qualify to run for office.” Norman, 46 So.3d at 182.

The Charter provision at issue is Article II, Section 5 of the City Charter, which defines a person’s “eligibility” to serve as mayor. Article II, Section 5(3), solely requires that the mayor “be a continuous resident of the City for one year prior to the time of qualification and thereafter.”

The City Charter’s eligibility requirement to serve as mayor of the City is different than the requirements for a candidate to qualify to run for the office of mayor contained in both the City Charter and the City Code. Article XVI, Section 167, of the City Charter establishes the procedural requirements for qualifying to run as a candidate and, as previously discussed, Section 6-78(b)(2) of the City Code requires a sworn affidavit and one required document establishing proof of residency.

Burns argues that Section 6-78(b)(2) of the City Code adds additional eligibility requirements, including the requirement to file particular documents that provide proof of residency for at least one year prior to qualifying. Tondreau asserts that treating this requirement as a condition of eligibility is improper as it would add to the constitutional eligibility requirements set out in the City Charter. We agree. The qualification requirements in the City Code for running for office cannot impose additional eligibility requirements beyond those set forth in the City Charter, as the Charter sets forth the constitutional eligibility requirements for holding the office at issue. If the City Charter imposed eligibility requirements for the office of mayor in addition to those set forth in Article II, Section 5, it would have so stated. Significantly, we note that while not applicable to the office of mayor, in the City’s May 14, 2013 election, the residents of North Miami approved a Charter amendment, which expressly added to the eligibility requirement for a candidate for the City Council. The Charter amendment approved by the City’s residents now requires that a candidate for City Council submit a Florida government issued identification with one type of proof of residency showing that the candidate has continuously resided in the district for which the candidate is seeking election for a period of one year prior to the time of qualification and thereafter.

In its written order, the trial court concluded that section 102.168 did not create jurisdiction for the court to entertain the post-election challenge. The trial court found “that the McPherson case makes it clear that any statutory right to contest an election pursuant to §§ 102.168 and 102.1682 is limited only to ‘consideration of the balloting and counting process.’ McPherson, 397 So.2d at 667. (“We can therefore find no right ... to attack the ... residency qualifications [of a candidate] under statutory sections [102.168 and 102.1682] providing for contest of elections.”).”

Section 102.168(3)(b), however, expressly authorizes post-election challenges involving the eligibility of a successful candidate for the office in dispute. As we must strictly construe the statutory grant required by section 102.168(3)(b), we find that the trial court erred in concluding that it lacked subject matter jurisdiction to hear a post-election challenge to determine whether Tondreau met the eligibility requirement for the office in dispute, i.e., whether Tondreau was “a continuous resident of the City for one year prior to the time of qualification and thereafter.”

III. CONCLUSION

For the reasons stated, we affirm the trial court’s order dismissing Burns’s Amended Complaint for lack of subject matter jurisdiction with regard to any allegations involving Tondreau’s qualifications to run for office, as this type of post-election challenge is not permitted.

Because the Amended Complaint also sought relief pursuant to section 102.168(3)(b), Florida Statutes (2012), which does permit post-election challenges to the eligibility of the successful candidate for the office in dispute, we reverse and remand for Burns to file an amended complaint that challenges only Tondreau’s alleged ineligibility for the office of mayor, i.e., whether Tondreau failed to meet the City Charter’s requirement that she be “a continuous resident of the City for one year prior to the time of qualification and thereafter.” We express no opinion as to the legal sufficiency of any amended complaint or the merits of the parties’ claims and defenses at this stage of the case.

AFFIRMED IN PART; REVERSED IN PART WITH INSTRUCTIONS.

      . Burns received 44.29% of the vote.

      . Section 6-78(b) of the City Code provides in pertinent part:
      (b) Any person seeking the office of mayor or councilperson must be a resident of the city and/or the respective district of North Miami for at least one (1) year prior to qualifying for office.
      (1) All candidates shall submit a sworn affidavit at the time of qualifying that provides their current address of legal residence and affirms that they have met the residency requirements pursuant to this section. The affidavit shall be on a form provided by the city clerk acting as the supervisor of elections.
      (2) In addition to filing the affidavit, candidates shall submit proof of residency which shall include one (1) of the following documents: voter’s registration, driver's license, property tax receipt, homestead exemption, utility bill or lease agreement; all of which must have been in effect for at least one (1) year prior to qualifying.

      . We reject Burns’s argument that he was not required to bring his action challenging Ton-dreau’s qualifications to run for mayor before the election. Burns asserts that it would have been "political suicide” to file a challenge before Tondreau was elected to office as it "may have alienated some of his constituents.” The law, however, requires that suit be brought before the election if the plaintiff challenges whether a candidate has successfully qualified to run. As evidenced by the Marina case, the supervisor of elections had the authority to act before the election and, at least once administrative remedies had been exhausted, the court, as in Marina, could have ordered the filing officer to take any action required by law.

      .Although not an issue in this case, we note that section 102.168(2) requires a complaint to be filed "within 10 days after midnight of the date the last board responsible for certifying the results officially certifies the results of the election being contested.” The vote was certified on June 7, 2013 and Burns filed his complaint on June 17, 2013. As such, the post-election challenge was timely. •

      . Burns's motion for summary judgment was based solely on Tondreau's alleged failure to comply with the qualification requirements necessary to run for office.

      . Following the adoption of a Charter amendment in 2013, the City Charter has since been renumbered.

      . Article XVI, Section 167, provides as follows:
      Sec. 167. Qualification of candidates.
      (a) Any qualified elector, as described in Article II, Section 5 above, of the city may qualify and run for a single council district seat, for mayor, or for city clerk by filing such intention in writing with the city election authorities not earlier than forty-three (43) days nor later than thirty-five (35) days before the election, such intention to be in substantially the following form:
      (b) I, the undersigned, an elector of the City of North Miami, whose residence is _ hereby announce my candidacy for the office of (Councilperson, District No. _ (for Mayor), (for City Clerk) to be voted for at the election to be held on the day of_20,_ and I hereby agree to serve if elected.
      Signature of candidate_
      Date and hour filing_
      Received by_
      (signature of election official)
      (c)No intention or announcement of candidacy shall be accepted by the election authorities unless accompanied by a qualifying fee to be paid by the candidate in the sum of five (5) percent of the yearly salary which a councilperson is then entitled to receive. The officer who receives the qualifying fee shall issue a receipt. Such qualifying fee shall be returned to the candidate if the candidate becomes ineligible or withdraws such candidacy not later than the close of qualifying. Any candidate may withdraw such candidacy not later than the last day for filing same by filing a notice of withdrawal with the city clerk.

      . We affirm, however, the trial court’s ruling that Section 6 — 78(b)(2) of the City Code, "which details the minimum qualifications any person seeking to run for the office of mayor must satisfy prior to the election” did "not provide jurisdiction to [the] court, once a candidate is elected into office.”


text:
    Richard Albert KIMMICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3120.
    District Court of Appeal of Florida, Second District.
    June 4, 2014.
    Howard L. Dimmig, Public Defender, and Richard Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Walker v. State, 137 So.3d 594 (Fla. 2d DCA 2014).

CRENSHAW, MORRIS, and SLEET, JJ., Concur.


text:
    Rene RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-556.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT

PER CURIAM.

The Supreme Court quashed the decision in this ease and remanded for further proceedings consistent with its decision in Williams v. State, 123 So.3d 23 (Fla.2013). Appellant was convicted of attempted second degree murder and other crimes. As in Williams, the circuit court committed fundamental error by giving a faulty instruction on attempted manslaughter. Appellant’s attempted second degree murder conviction was one step removed from attempted manslaughter. Id. at 24. Based on Williams, we reverse appellant’s convictions and remand for a new trial.

GROSS, CIKLIN and FORST, JJ., concur.


text:
    Denise GILLESPIE, Appellant, v. James McCOMBS, Laura Bruno, Inez Willis and Michael Willis, Appellees.
    No. 4D12-2473.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Rafael A. Castro, III, Miami, for appellant.
    Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, for appellees.
   PER CURIAM.

Although the court’s March 15, 2012 order was improper, we affirm on the tipsy coachman doctrine, which “allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ” Robertson v. State, 829 So.2d 901, 906 (Fla.2002). Had the judge considered the third amended complaint, it would nonetheless have been subject to dismissal with prejudice. See Barrett v. City of Margate, 743 So.2d 1160 (Fla. 4th DCA 1999).

Affirmed.

GROSS, GERBER and FORST, JJ., concur.


author: SUAREZ, J.

text:
    YACHTBRASIL MOTOR BOATS & CHARTERS, LLC, et al., Appellants, v. John GLUCK, Appellee.
    Nos. 3D14-271, 3D13-1733.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.
    Rehearing Denied June 20, 2014.
    Richard S. Gendler & Associates and Martin G. McCarthy, for appellant Yacht-Brasil Motor Boats & Charters LLC.
    Moscowitz & Moscowitz and Norman A. Moscowitz and Jane W. Moscowitz, for appellee.
    Before SUAREZ, SALTER, and SCALES, JJ.
   SUAREZ, J.

YachtBrasil Motor Boats & Charters LLC, and Aderbal Coelho, Junior appeal the trial court’s Order Granting Sanctions dated June 5, 2013 striking YachtBrasil’s answers and affirmative defenses and dismissing YachtBrasil’s counterclaim with prejudice. Although these are severe sanctions, we find the trial court did not abuse its discretion and find that each of the elements of Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) is supported by the evidence.

Affirmed.


text:
    Cesar RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-166.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.
    Carlos Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    Tecoy Marquis CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3307.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.

      Tecoy Marquis Campbell, pro se.
   PER CURIAM.

Tecoy Marquis Campbell appeals the order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand with directions.

Campbell entered an open plea of no contest to sale of a controlled substance and to possession of a controlled substance, and the trial court sentenced him as a habitual felony offender (HFO) to fifteen years’ imprisonment for the sale count to be served concurrently with five years’ imprisonment for the possession count. After this court affirmed his convictions and sentences, Campbell filed the posteonviction motion at issue in this appeal.

In order to establish a claim of ineffective assistance of counsel during the plea process, a postconviction movant must show that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, the movant would not have entered a plea but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In ground one of his rule 3.850 motion, Campbell argued that his plea was involuntary because the trial court never informed him that it constituted a waiver of his right to remain silent, to have compulsory process for obtaining witnesses on his behalf, to confront his accusers, and to appeal all matters relating to the judgment, including the issue of guilt or innocence. See Fla. R. Crim. P. 3.172(c)(3), (4). Campbell noted that the trial court provided him with a waiver of rights form and asked him if he understood the rights he was waiving but that it never determined whether the form had been read and explained to him or if he had the requisite education level or mental capacity to understand the form. See Townsend v. State, 927 So.2d 1064, 1066 (Fla. 4th DCA 2006) (“ ‘[A] judge using a preprinted rights form as a part of a plea colloquy must orally verify that the defendant has intelligently consumed the written information contained within it.’ ” (citation omitted) (quoting Thornton v. State, 747 So.2d 439, 441 (Fla. 4th DCA 1999))).

The postconviction court failed to address this claim. However, because Campbell did not allege how the trial court’s failures prejudiced him, see Fla. R. Crim. P. 3.172(j) (providing that failure to follow any of the procedures of rule 3.172 does not render a plea void absent a showing of prejudice), we reverse and remand for the postconviction court to strike this claim and provide Campbell sixty days to amend it to state a facially sufficient claim for relief, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2); see also Spera v. State, 971 So.2d 754, 761 (Fla. 2007).

In ground two of his motion, Campbell argued that trial counsel was ineffective for failing to apprise him that he had a right to confront witnesses against him and a right to review of the judgment but that he was giving up those rights by entering a plea. Campbell asserted that he would not have waived these rights if he had been advised of them and afforded an opportunity to depose the witnesses against him. He argued that trial counsel’s failure rendered his plea involuntary.

In denying this claim, the postcon-viction court found that the acknowledgment and waiver of rights form it attached to its order showed that Campbell understood that by entering a plea, he was waiving his right to a trial, including the right to confront and cross-examine witnesses. But a waiver of rights form can only refute a defendant’s claim of involuntary plea if the trial court conducted a proper plea colloquy and determined that the defendant understood the form. See Townsend, 927 So.2d at 1066 (rejecting the State’s argument that the signed acknowl-edgement of plea and waiver of rights form showed that the defendant had notice of the terms of the plea agreement because the trial court failed to determine if the defendant could read and understand the form or if the form had been explained to him). In this case, the transci'ipt of the plea hearing the postconviction court attached to its order shows that the trial court failed to make many of the inquiries required by rule 3.172(c). See Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (noting that “[bjecause a guilty, or no contest, plea has serious consequences for the accused, the taking of a plea ‘demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence’ ” (quoting Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969))). Nevertheless, this claim is facially insufficient because Campbell did not allege that he was prejudiced by counsel’s failure to advise him of all of the rights he was waiving. See Cousino v. State, 770 So.2d 1258, 1260 (Fla. 4th DCA 2000) (noting that to establish prejudice from counsel’s ineffectiveness during the plea process, a postconviction movant must allege that there is a reasonable probability that but for counsel’s ineffectiveness, he would have insisted on going to trial). Accordingly, we reverse and remand for the postconviction court to strike this claim and provide Campbell sixty days to amend it to state a facially sufficient claim for relief, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2); see also Spera, 971 So.2d at 761.

In ground three of his motion, Campbell argued that his plea was involuntary because the trial court failed to disclose how long the maximum sentence would be and to advise him that he could receive any sentence up to the maximum allowed by law. See Fla. R. Crim. P. 3.172(c)(1) (providing that the trial court must determine that the defendant understands “the nature of the charge to which the plea is offered, the maximum possible penalty, and any mandatory minimum penalty provided by law”). Campbell asserted that if he had been properly apprised of the maximum penalty, he would not have entered a plea but would have insisted on going to trial. This claim is facially sufficient.

In denying this claim, the postconviction court found that the acknowledgment and waiver of rights form reflects that Campbell understood that he could face a maximum sentence of fifteen years plus five years and that he was entering an open plea. Again, the postconviction court could not rely on the waiver of rights form because the trial court failed to conduct a proper plea colloquy and determine whether Campbell understood the form. See Townsend, 927 So.2d at 1066. Because this claim is not conclusively refuted by the attachments to the postconviction court’s order, we reverse and remand for the court to attach portions of the record that conclusively refute this claim or to hold an evidentiary hearing.

In ground four of his motion, Campbell argued that his plea was involuntary because the trial court failed to inform him of the maximum possible habitual offender penalty and to discern whether he understood that the HFO designation could cause him to be ineligible for certain programs affecting early release. See Ashley v. State, 614 So.2d 486, 490 n. 8 (Fla.1993) (holding that a trial court should confirm that a defendant is personally aware of his eligibility for habitualization, the maximum habitual offender term, and the fact that habitualization may affect the possibility of early release); Marckman v. State, 997 So.2d 1275, 1276 (Fla. 2d DCA 2009) (“It is well-settled that a trial court must confirm that the defendant understands the consequences of an HFO sentence.”). Campbell noted that the judgment and sentence fail to reflect the trial court’s oral pronouncement that he was sentenced as a HFO. He asserted that the only option under these circumstances is to allow him to withdraw his plea.

In denying this claim, the postconviction court found that the plea hearing transcript showed that the trial court informed Campbell that he qualified as a HFO, the State specified the resulting enhancement, Campbell did not object, and defense counsel stated that he had no objection to the introduction of evidence of Campbell’s pri- or convictions, agreeing that they were accurate. While the court’s finding fails to address Campbell’s allegation that he was not advised of the consequences of habitu-alization, Campbell failed to allege how he was prejudiced by this failure. Accordingly, we reverse and remand for the postcon-viction court to strike this claim and provide Campbell sixty days to amend it to state a facially sufficient claim for relief, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2); see also Spera, 971 So.2d at 761.

The postconviction court also failed to address Campbell’s assertion that the written judgment fails to reflect the trial court’s oral pronouncement that it sentenced him as a HFO. On remand, the postconviction court shall address this claim and correct the judgment if necessary. See Nelson v. State, 1 So.3d 345, 345 (Fla. 1st DCA 2009) (“A written sentence must comport with the sentence that was orally pronounced, and when the two are inconsistent, the oral pronouncement controls.”); see also Rivera v. State, 117 So.3d 449, 449 (Fla. 2d DCA 2013) (“Because the written sentences do not comport with the trial court’s oral pronouncement, we must remand for correction of the written sentences to reflect the oral pronouncement.”).

In ground five of his motion, Campbell argued that trial counsel was ineffective for advising him to enter an open plea and reject the State’s first offer of five to seven years’ imprisonment in exchange for not disclosing the identity of the confidential informant (Cl). He asserted that counsel misled him and his mother to believe that he faced a maximum of five years if he pleaded open and that his mother was available and willing to testify to this. Campbell alleged that if counsel had informed him that he faced a statutory maximum of thirty years, he would have accepted the State’s first offer. Campbell argued that there was a reasonable probability that the State and the trial court would not have withdrawn the offer because it was made in order to protect the identity of the CI. See Missouri v. Frye, — U.S. -, -, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012) (holding that in order to show prejudice from the rejection of a plea offer because of counsel’s deficient performance, movants must demonstrate a reasonable probability that they would have accepted the earlier offer and that it would not have been canceled by the prosecutor or rejected by the trial court); see also Alcorn v. State, 121 So.3d 419, 429-30 (Fla.2013).

Campbell stated that after he rejected the State’s first offer, the State filed a notice of intent to seek habitualization and then made a second offer of a ten-year cap. Campbell argued that counsel was ineffective for failing to inform him, when conveying the second offer, of the possibility of habitualization and that the maximum possible HFO sentence was thirty years’ imprisonment, plus a five-year statutory maximum. Campbell asserted that if counsel had advised him that he faced a thirty-five-year HFO sentence, he would have accepted the State’s second offer. Under the mistaken impression that the trial court approved the State’s offer before it was made, Campbell maintained that there was a strong probability that the State would not have withdrawn the offer. See Alcorn, 121 So.3d at 429-30.

In denying this claim, the postconviction court quoted counsel’s statement at the plea hearing that “Mr. Campbell has requested of the State two other plea offers to which they have been denied by the Court.” The entire context of this statement is as follows:

[Defense counsel]: We’re here for sentencing ... for Mr. Campbell ... and we have no negotiated plea with the State Attorney’s Office.
It’s an open plea to the Court based upon the computations provided by the State Attorney’s Office. The bottom of the guidelines for Mr. Campbell is 18.45 months. I know that the State Attorney’s Office is asking for a significantly higher sentence in that case, but we would proffer to the Court that this is really nothing more than a run-of-the-mill sale of cocaine case where Mr. Campbell is alleged to have sold to an informant. There is nothing more, nothing aggravating other than that, that he sold this cocaine.
I know Mr. Campbell has requested of the State two other plea offers to which they have been denied by the Court, so with the Court’s indulgence I would like to ask the Court to be involved in the plea and provide this to the Court.

In his brief filed in this appeal, Campbell asserts that counsel was referring to offers advanced by him off the record prior to the proceedings, whereas Campbell referred in his motion to offers advanced by the State and rejected by him several months earlier. Because we cannot discern from the plea hearing transcript whether there may have been earlier offers from the State that counsel failed to convey to Campbell, we cannot determine whether the statement quoted by the post-conviction court conclusively refutes Campbell’s claim. In addition, the post-conviction court failed to address Campbell’s claim that counsel advised him that he faced a maximum of five years’ imprisonment if he pleaded open. Accordingly, we reverse this claim and remand with directions that the postconviction court address it in its entirety and attach portions of the record that conclusively refute it or conduct an evidentiary hearing.

In ground six of his motion, Campbell argued that trial counsel was ineffective for failing to file a motion to suppress the items found in his vehicle — $8000 in cash and a “Boost” cell phone — because it was illegally searched. He stated that his vehicle was stopped three weeks after an arrest warrant was executed for his participation in a controlled buy. After he was taken to jail, a K-9 unit was brought to the vehicle and the dog alerted, leading law enforcement to determine they had probable cause to search. The cash was checked for funds used by the special operations unit and six bills were located. An officer dialed the number used to set up the controlled purchase and the seized cell phone rang.

Campbell argued that the search of his vehicle was illegal because he did not consent to it and there was no probable cause to support it. He noted that at the time of the search, he was in custody and en route to jail and therefore not within reach of the passenger compartment. See Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (holding that “[police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest”). Campbell then asserted that while the K-9 officer found that there was probable cause to search his vehicle, the dog’s alert was false as no drugs or paraphernalia were found. He cited this court’s holding in Gibson v. State, 968 So.2d 631, 631 (Fla. 2d DCA 2007) (citing Matheson v. State, 870 So.2d 8, 14 (Fla. 2d DCA 2003)), that “[t]o demonstrate that an alert by a narcotics detection dog is sufficiently reliable to furnish probable cause to search, the State must introduce evidence of the dog’s ‘track record’ or performance history.” Campbell also cited the supreme court’s approval of Gibson in Harris v. State, 71 So.3d 756 (Fla.2011), referring to the court’s statement that “[fjalse alerts may lead to the search of a person who is innocent of any wrongdoing.” Id. at 768 (citing Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L. Rev. 1, 12). Campbell argued that in light of these decisions, counsel was ineffective for failing to file a motion to suppress.

In denying this claim, the postconviction court found that by entering an open plea, Campbell acknowledged that he was giving up the right to contest his guilt or innocence and all of his rights relating to the judgment. The court further found that Campbell was required to move to withdraw his plea and that this claim did not state a permissible ground for a postsen-tencing motion to withdraw plea. In addition, the court found that to the extent this claim alleged ineffective assistance of counsel, it attacked the sufficiency of the evidence and was therefore inappropriate for a rule 3.850 motion.

The postconviction court’s findings are incorrect. “An allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.” Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004). However, a movant must still allege prejudice, i.e., that there is a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial. See Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008).

While Campbell failed to allege that he was prejudiced by counsel’s failure to file a motion to suppress, he cannot show that counsel’s performance was deficient. The K-9 dog’s alert to his vehicle provided probable cause for its search. The fact that no narcotics or paraphernalia were recovered did not make the alert false or unreliable:

A detection dog recognizes an odor, not a drug, and should alert whenever the scent is present, even if the substance is gone .... [A] well-trained dog’s alert establishes a fair probability — all that is required for probable cause — that either drugs or evidence of a drug crime ... will be found.

Florida v. Harris, — U.S. —, 133 S.Ct. 1050, 1056 n. 2, 185 L.Ed.2d 61 (2013). Because the fact that no narcotics or paraphernalia were found in Campbell’s vehicle did not present a basis to challenge the reliability of the K-9 dog’s search through a motion to suppress, counsel was not ineffective for failing to file such a motion.

Accordingly, we affirm the denial of ground six but reverse the denial of the remaining grounds and remand with the directions set forth in this opinion. If the postconviction court again summarily denies any grounds, it must attach the portions of the record that conclusively refute those grounds. Otherwise, an evidentiary hearing is necessary.

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

ALTENBERND, MORRIS, and SLEET, JJ., Concur.

      . Campbell asserted that while counsel informed him of the State's notice of intent to seek habitualization as they entered the courtroom for the plea hearing, because counsel said that he did not qualify and there was nothing to worry about, counsel failed to advise him of the possibility of habitualization.

      . Two months before Campbell filed his motion, the United States Supreme Court disapproved Harris in Florida v. Harris, - U.S. -, 133 S.Ct. 1050, 1058, 185 L.Ed.2d 61 (2013), holding that "[t]he question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.”