author: CONNER, J.

text:
    Steven E. SPIKES and Nicole Faith Spikes, Appellants, v. ONEWEST BANK FSB, Appellee.
    No. 4D11-2549.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2012.

      Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellants.
    Peter M. Armold of Gary Dytrych & Ryan, P.A., for appellee.
   CONNER, J.

Steven and Nicole Spikes (collectively “the Spikes”) appeal the final order imposing an equitable subrogation lien on their homestead and granting foreclosure of the lien. OneWest Bank FSB (“OneWest”) cross-appeals the trial court’s denial of its request to impose and foreclose an equitable vendor’s hen in the amount of the purchase money loan used to acquire the homestead. We affirm the imposition and foreclosure of the equitable subrogation lien, but reverse the denial of the imposition and foreclosure of an equitable vendor’s lien.

Steven Spikes was loaned funds to purchase a house which became his homestead. In exchange, he executed a purchase money note and mortgage. His wife, Nicole Spikes, was present during the signing of the documents and admitted that she would have signed each; however, she was not asked to join in the mortgage because of a mistake or inadvertence by the closing agent. Nicole thought her name was put on the deed; however, the property was conveyed to Steven with the indication that he was a married man. The money from Steven’s loan was paid to satisfy two existing mortgages on the property given by the previous owners and the rest was paid to the previous owners.

Because Steven defaulted on his payment, OneWest began a foreclosure action against him. Subsequently, an amended complaint was filed, seeking equitable relief against both Steven and Nicole in the form of imposition and foreclosure of an equitable vendor’s lien for the full amount of the loan or, alternatively, imposition and foreclosure of a subrogation lien in the amount of the prior mortgages satisfied at closing.

The trial court granted final judgment, awarding OneWest an equitable subrogation lien in an amount equal to the prior mortgages, but stating OneWest was entitled to an equitable lien for the same amount. Implicitly, the trial court declined to award an equitable lien for the full amount of the purchase money loan. It further held that the equitable subrogation lien is superior to any interest of the Spikes and granted foreclosure of the equitable subrogation lien.

Although it was not argued before the trial court or on appeal, we first observe that we have previously held that the inadvertent failure to obtain a wife’s signature on a mortgage when the wife attended the loan closing, knew the proceeds of the mortgage were being used to pay for the property, and would have signed the mortgage if requested to do so, does not preclude foreclosure of the mortgage upon default. Countrywide Home Loans, Inc. v. Kim, 898 So.2d 250 (Fla. 4th DCA 2005). However, since the holding of Kim was not addressed, we proceed with reviewing what was decided by the trial court.

On appeal, the Spikes argue that because neither of them engaged in fraudulent or egregious conduct, the imposition of either an equitable subrogation lien or an equitable vendor’s lien was improper, as well as granting foreclosure. The Spikes further argue that because Nicole did nothing wrong and did not waive homestead protection, it was improper to grant foreclosure of her marital interest in the property. OneWest argues that neither an equitable subrogation lien nor an equitable vendor’s lien requires fraudulent or egregious conduct. As to the subrogation lien, OneWest argues the homestead status of the property does not protect against foreclosure because the lien for the mortgages satisfied at closing existed prior to homestead status attaching to the property. On cross-appeal, OneWest argues the trial court erred by refusing to award an equitable vendor’s lien for the full amount of the purchase money loan and failing to grant foreclosure of the equitable vendor’s lien.

We affirm without further discussion the trial court granting an equitable subrogation lien and allowing foreclosure of that lien.

Generally speaking, an equitable lien is a right granted by a court of equity, arising by reason of the conduct of the parties affected that would entitle one party as a matter of equity to proceed against certain property. Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). Included within the class of equitable liens is an equitable vendor’s lien. Moss v. Sperry, 140 Fla. 301, 191 So. 531 (1939); Edelson v. Quinn, 123 Fla. 670, 167 So. 535 (1936). An equitable vendor’s lien is an implied hen belonging to the vendor for the purchase price of land; the lien does not result from an agreement, but is given by implication of law as an incident to the debt, enforceable in equity. Golden v. Woodward, 15 So.3d 664, 669 (Fla. 1st DCA 2009). A third party who advances the purchase price is entitled to an equitable vendor’s lien. See Craven v. Hartley, 102 Fla. 282, 135 So. 899 (1931).

In this case, all of the money loaned to Steven was used to pay the purchase price of the property. If the mortgage hen is ineffective due to the nonjoinder of Nicole Spikes, we are satisfied that OneWest is entitled to an equitable vendor’s hen on the property. We now turn to the contention that the homestead status of the property precludes foreclosure of the equitable vendor’s hen.

The Florida Constitution granting homestead protection does not preclude foreclosure of an equitable vendor’s hen. Article X, Section 4(a), Florida Constitution provides:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a hen thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead....

“The purpose of the homestead exemption provision in our state constitution is to protect the family home from forced sale for the debts of the owner and head of the family.” Tullis v. Tullis, 360 So.2d 375, 377 (Fla.1978). The provision which creates the homestead exemption lists three exceptions. The loan Steve secured to purchase the property was clearly an “obligation[] contracted for the purchase” of the property that became his homestead. Thus, the language of the constitution precludes Steven from raising homestead protection from foreclosure upon his failure to pay on the purchase money mortgage.

Nicole, as Steven’s spouse when the home was purchased and a resident in the home, has a marital interest in the home. § 61.075(6)(a)l.a., Fla. Stat. (2011). Nicole can claim a homestead exemption to the forced sale of her beneficial (marital) interest. See Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832, 833 (1946) (“any beneficial interest in land [can give] the claimant a right to exempt it as [ ] homestead”). Thus, we are left to decide whether the exception from forced sale protection for obligations contracted for the purchase of the homestead applies to her beneficial interest. Coy v. Mango Bay Prop. & Invs., Inc., 963 So.2d 873 (Fla. 4th DCA 2007) (husband was entitled to determination as to whether he had a homestead protection from forced sale even though the title to the home was in wife’s name alone).

Generally, when an equitable lien is imposed on a homestead purchased with fraudulently obtained funds, the homestead exemption from forced sale does not apply to either spouse, even if one spouse is innocent or ignorant of wrongdoing. See Hirchert Family Trust v. Hirchert, 65 So.3d 548, 551 (Fla. 5th DCA 2011). Equitable liens have been imposed on homestead property to prevent unjust enrichment. See Palm Beach Sav. & Loan Ass’n v. Fishbein, 619 So.2d 267, 270 (Fla. 1993); Hirchert, 65 So.3d at 552. If equity allows the innocent spouse to lose the protection of homestead when her spouse fraudulently obtains the funds to purchase the homestead, and equity will not protect the innocent spouse who will be unjustly enriched by the loan proceeds, then equity will not protect the innocent spouse from forced sale who attends the closing for a legitimate purchase money loan obtained by her husband, especially when she is willing to sign on the mortgage if asked. Moreover, to allow Nicole to avail herself of the homestead protection in this case would grant a non-owner spouse greater homestead protection than the spouse who owned the property. As we see it, the three exceptions to homestead protection carved out in the constitution apply to the non-owner spouse to the same extent they apply to the owner spouse.

We conclude that the trial court erred by granting only a subrogation lien in the amount of the previous mortgages. An equitable vendor’s lien should have been granted for the full amount of the loan that was invested into the property (less any payments made). Further, we hold that a non-owner spouse cannot claim homestead exemption against an equitable lien imposed for a purchase money mortgage, regardless of whether the lien was imposed for fraud. Thus, we reverse and remand to the trial court to enter judgment granting an equitable vendor’s lien for the full amount of the loan, less payments received, and permitting foreclosure.

GROSS and HAZOURI, JJ, concur.

      . According to the pre-trial stipulation of the parties, Nicole was not included on the note because her credit score was purportedly too low.

      . Although the trial court did not use the term "equitable vendor's lien,” we construe the final judgment to mean that.

      . The prior owners used part of the purchase price to pay off two existing mortgages, which in turn gave rise to the equitable subrogation lien.


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    LORILLARD TOBACCO COMPANY (“Lorillard”), Appellant, v. Michelle MROZEK, In re: Engle Progeny Cases, Tobacco Litigation, Appellee.
    No. 1D11-4446.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2012.
    Rehearing Denied Feb. 14, 2013.

      Elliot H. Scherker, David L. Ross, Julis-sa Rodriguez, and Brigid F. Cech Samóle of Greenberg Traurig, P.A., Miami, for Appellant.
    Evan J. Yegelwel, Bruce R. Anderson, Jr., and Angelo M. Patacca, Jr. of Terrell Hogan Ellis Yegelwel, P.A., Jacksonville, and John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, for Ap-pellee.
   MARSTILLER, J.

A Duval County, Florida, jury awarded Michelle Mrozek (“Mrozek”) $3.9 million in compensatory damages and $11.3 million in punitive damages in her wrongful death suit against Lorillard Tobacco Company (“Lorillard”) for the death of her mother, Jacqueline Swann Miller, from lung cancer. The genesis of this litigation is a 1994 class action lawsuit against various cigarette manufacturers, including Lorillard, and tobacco industry organizations seeking damages for smoking-related illnesses and deaths. Mrozek’s lawsuit is one of thousands filed after the Florida Supreme Court, in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), upheld the class action jury verdict on common issues relating to the defendants’ conduct, but decerti-fied the class for liability and damages purposes, allowing class plaintiffs to sue individually.

Lorillard appeals Mrozek’s judgment, arguing that the trial court erred by (1) granting her partial summary judgment on the issue of whether she is an Engle class plaintiff; (2) instructing the jury on concurrent causes; (3) admitting purported hearsay evidence showing Ms. Miller’s state of mind and attitude about smoking decades before her death; (4) admitting evidence of general misconduct by Loril-lard not specifically directed to Ms. Miller; and (5) permitting Mrozek to rely on factual findings from the Engle class action that the Florida Supreme Court deemed to have res judicata effect in subsequent individual suits for liability and damages. Finding no error by the trial court, we affirm on all issues. We briefly discuss only one, however — the court’s determination that Mrozek is an Engle class plaintiff.

The Engle class was defined as all Florida “ ‘citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’ ” Engle, 945 So.2d at 1256. The undisputed facts before the trial court when Mrozek moved for partial summary judgment were that Ms. Miller contracted and died of lung cancer caused, within a reasonable degree of medical certainty, by her two-pack-a-day cigarette smoking. Ms. Miller, a Florida resident, began smoking in the 1940s and continued smoking until her death in December 1994. She was addicted to the nicotine in the cigarettes she smoked. From these facts, the trial court determined that Ms. Miller — and thus, Mro-zek — satisfied the Engle class definition, and that there remained no disputed factual issues to send to the jury.

Lorillard contends that a significant factual issue remains, precluding summary judgment as to class membership. The issue, Lorillard argues, is whether Ms. Miller’s illness and death were caused by her addiction specifically, or by her choice to continue smoking.

We disagree that choice is relevant to class membership. The class definition requires only that the smoker is/was addicted to cigarettes containing nicotine, and contracted or died from a disease caused by cigarette smoking. Whether the addicted individual kept smoking after learning of cigarettes’ deleterious health effects is a question of comparative fault, and thus, of liability to be determined at trial. Indeed, in this case, the jury found Ms. Miller 35 percent responsible for her death. As to class membership, however, the undisputed facts showed Ms. Miller was addicted to cigarettes and died of lung cancer, a disease caused by cigarette smoking. She therefore satisfied the requirements for membership in the Engle class, and the trial court correctly granted Mrozek partial summary judgment on that issue.

AFFIRMED.

DAVIS and CLARK, JJ., concur.

      . For a history of the class action, see R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1062-64 (Fla. 1st DCA 2010).

      . We review the summary judgment ruling de novo. See Wingate v. Wingate, 84 So.3d 427, 429 (Fla. 1st DCA 2012).


author: BERGER, J.

text:
    Adam R. HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1074.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2013.
    Rehearing Denied Feb. 8, 2013.

      Adam R. Haynes, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt and Rebecca Rock McGuigan, Assistant Attorney Generals, Daytona Beach, for Appellee.
   BERGER, J.

Appellant, Adam Haynes, appeals the trial court’s summary denial of his pro se motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Haynes argues that his nine-year sentence, consisting of three consecutive three-year minimum mandatory terms, is illegal on its face. Because we hold the sentence was not subject to challenge by way of a motion to correct illegal sentence, we affirm the trial court’s denial.

Haynes was originally charged by Information with eight counts: five counts of aggravated assault with a firearm in violation of sections 784.021(l)(a), 775.087(2)(a)l, and 775.087(2)(a)2, Florida Statutes (2010); possession of a firearm by a convicted felon in violation of sections 790.23 and 775.087(2)(a)l, Florida Statutes; shooting a deadly weapon into an occupied conveyance in violation of section 790.19, Florida Statutes; and battery in violation of section 784.03, Florida Statutes. Haynes entered a negotiated plea to two counts of aggravated assault with a firearm and one count of possession of a firearm by a convicted felon, in return for three consecutive three-year minimum mandatory sentences and dismissal of the remaining five counts. The judge imposed the agreed-upon sentence, for a total of nine years imprisonment.

Haynes now complains the sentence he bargained for was illegal. His “right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So.2d 203, 205 (Fla. 4th DCA 2002); accord Wheeler v. State, 864 So.2d 492, 492 (Fla. 5th DCA 2004) (“[A]n illegal sentence cannot be imposed even as part of a negotiated plea agreement....”) But while Haynes sought relief under rule 3.800(a) to obtain correction of his sentence, he was actually challenging the terms of his plea agreement and the resulting convictions. See Dominguez v. State, 98 So.3d 198, 200 (Fla. 2d DCA 2012); Nedd v. State, 855 So.2d 664, 664 (Fla. 2d DCA 2003). As the sentence was the product of a negotiated plea, the remedy is not to correct the illegal sentence, but rather a motion under Rule of Criminal Procedure 3.850 to set aside the plea, vacate the judgment and sentence, and reinstitute all charges pending against the defendant prior to entry of the plea. See Jolly v. State, 392 So.2d 54, 56 (Fla. 5th DCA 1981) (“If the plea negotiation is not binding on the defendant, then it is not binding upon the state.”). Thus, the current motion was properly denied. Nedd, 855 So.2d at 664; Jolly, 392 So.2d at 56; see also Dominguez, 98 So.3d at 201.

The withdrawal of a plea can have unintended consequences. Ciambrone v. State, 93 So.3d 1176, 1177 (Fla. 2d DCA 2012) (“This case demonstrates that a defendant who is allowed to withdraw a plea sometimes runs the risk of an outcome far worse than the sentence under the original plea.”). Haynes’ offenses are subject to the 10-20-life law, meaning that he must receive a mandatory twenty-year sentence for any aggravated assault involving the discharge of a firearm. See § 775.087(2)(a)2, Fla. Stat. Absent a plea to reduced charges, with the State’s concurrence, see Thomas v. State, 932 So.2d 1221, 1224 (Fla. 5th DCA 2006), if convicted Haynes will plainly face an increase in the time he must serve after withdrawal of his plea. We nonetheless affirm the trial court’s denial of Haynes’ rule 3.800(a) motion without prejudice to his right to file an appropriate 3.850 motion.

AFFIRMED.

SAWAYA and JACOBUS, JJ., concur.

      . Haynes pled as charged to two counts of aggravated assault with a firearm and stipulated to a factual basis to support the plea. The information filed by the State alleged that Haynes discharged a firearm when he assaulted the juveniles.

      . Haynes’ sentence became final on March 25, 2011. Thus, he remains within the two-year time limit to file a motion pursuant to rule 3.850 should he choose to do so.


author: PER CURIAM.

text:
    Sergio G. CAMPOS-CARRIERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1571.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2013.
    Rehearing Denied Feb. 11, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Sergio Campos-Carriera (defendant) appeals his judgment and sentence which were entered by the trial court after he pled nolo contendere to the charge of second-degree murder. Because the defendant did not timely file a motion to withdraw his plea, we dismiss this appeal for lack of jurisdiction. See Hicks v. State, 915 So.2d 740 (Fla. 5th DCA 2005). Accord Vestal v. State, 50 So.3d 733 (Fla. 5th DCA 2010). The dismissal is without prejudice to the defendant’s right to seek appropriate and timely postconviction relief in the trial court.

DISMISSED.

ORFINGER, C.J., and PALMER and BERGER, JJ., concur.


text:
    Davide Forrest DELAFE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1516.
    District Court of Appeal of Florida, First District.
    Jan. 4, 2013.
    Rehearing Denied Feb. 14, 2013.

      Davide Forrest DeLaFé, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all but one of the appellant’s claims.

In his motion, the appellant asserts that he was illegally sentenced to an upward departure sentence based on reasons which were found by the trial court, rather than the jury. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the supreme court held that “other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.” In Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court clarified that “the ‘statutory maximum’ for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (emphasis in original). Both Apprendi and Blakely had been decided at the time of the appellant’s sentencing and thus would apply to him because he was sentenced under the guidelines. Generally, when a defendant demonstrates an Apprendi/Blakely error, the court must conduct a harmless error analysis. Galindez v. State, 955 So.2d 517 (Fla.2007). The test is “whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the facts at issue].” Id. at 523. Here, the record on appeal is not sufficient to conduct a harmless error analysis. Accordingly, we reverse and remand for the trial court to either attach portions of the record conclusively showing the appellant is not entitled to relief, to conduct a harmless error analysis, or to resentence the appellant. Should the court find that any error is harmless, it shall attach record portions supporting its conclusion.

AFFIRMED in part, REVERSED and REMANDED in part with directions.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


author: STEVENSON, J.

text:
    Michelle VRASIC, Appellant, v. Lome LEIBEL, Appellee.
    No. 4D12-1289.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.
    Rehearing and Rehearing En Banc Denied Mar. 1, 2013.
    Gary S. Edinger of Gary S. Edinger, Gainesville, and Daniel R. Aaronson of Benjamin & Aaronson, P.A., Fort Lauder-dale, for appellant.

      Daniel S. Weinger and Ivan John Kopas of Conrad & Scherer, LLP, Fort Lauder-dale, for appellee.
   STEVENSON, J.

The parties to the instant appeal were once romantically involved. Some years after the end of their romantic relationship, Leibel sued Vrasic, alleging that, in the intervening years, she had engaged in a pattern of harassment, i.e., she hacked into his email — sending offensive letters and a naked photograph of him to those on his contact list — and created a website, using his name, to pre-sell her book and to post an excerpt that included defamatory statements about him. Leibel’s complaint included claims for injunctive relief, defamation, invasion of privacy, credit card fraud, and cyberstalking. Leibel also petitioned the court for a temporary injunction, seeking to prevent Vrasic from making further defamatory statements about him, including the making of such statements through the use of her website and book. The lower court granted temporary injunctive relief to Leibel, giving rise to the instant appeal. We affirm the “no contact” provision of the order, but reverse as to the other restrictions which we conclude amount to a prior restraint on speech.

The modified order of injunction prohibits contact between Vrasic and Lei-bel and, among other things, enjoins Vra-sic “[f]rom using the name or likeness of LEIBEL for commercial purposes”; “[f]rom using the words ‘Lome’ together with ‘Leibel’ for any commercial purpose”; and “[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease” her book “as previously published,” allowing her to publish a work only “so long as the work does not use the words ‘Lome’ and/or ‘Leibel,’ alone or in any combination.” While lodging no challenge to the order’s “no contact” provisions, Vrasic insists the injunction must be reversed to the extent it enjoins her speech. We agree.

Florida’s courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Murphy v. Daytona Beach Humane Soc’y, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965). There are two chief reasons for this rule. First, to be entitled to temporary injunctive relief, the moving party must establish that he will suffer irreparable harm as there is no adequate remedy at law. See Animal Rights Found, of Fla., Inc. v. Siegel, 867 So.2d 451, 454 (Fla. 5th DCA 2004). In the case of a libelous or defamatory statement, there is an adequate remedy at law — an action for damages. Murphy, 176 So.2d at 924. And, Leibel has availed himself of this remedy in the instant case.

Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. See Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla.1949) (recognizing First Amendment concerns triggered by temporary injunction); Murphy, 176 So.2d at 924 (same); see also Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007) (recognizing temporary injunction forbidding speech constitutes a prior restraint) (citing Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 68B (1976). And, protection against prior restraints on speech extends to both false statements and to those from which a commercial gain is derived. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (“[S]peech does not lose its First Amendment protection because money is spent to project it.... Speech likewise is protected even though it is carried in a form that is ‘sold’ for profit.”) (citations omitted); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir.2003) (same); Town of Lantana v. Pelczynski, 290 So.2d 566, 569 (Fla. 4th DCA) (“Freedom from prior restraint upon speech and press extends to false, as well as true statements.”) (citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907)), aff'd, 303 So.2d 326 (Fla.1974). “[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).

In an effort to justify the temporary injunction, Leibel points to Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987), and Murtagh v. Hurley, 40 So.3d 62 (Fla. 2d DCA 2010), review denied, 51 So.3d 1155 (Fla.2010). These cases acknowledge a limited exception to the general rule that applies where the defamatory words were made in the furtherance of the commission of another tort. Both decisions, however, involved statements made as part of an alleged tortious interference with an advantageous business relationship. And, both contemplated application of the exception where a party demonstrates a special harm, i.e., in Zimmerman, the builder offered evidence that, on days of picketing, it had no sales and the damages from the loss of sales was “incalculable” and, in Murtagh, the court contemplated application of the exception in the event the plaintiff physician was able to substantiate allegations that defendant’s statements were resulting in lost revenue because patients were terminating their relationship with plaintiff. The instant case involves neither a claim for tortious interference with a business relationship nor a claim of specialized harm. Indeed, in issuing the temporary injunction, the lower court expressly found that while Leibel had suffered embarrassment and emotional distress — the same harm suffered by all who are the subjects of defamatory statements — there was no evidence that he had been “shunned by society” or had suffered any business or financial losses. We thus decline to extend Zimmerman and Murtagh to uphold the temporary injunction entered in this case.

Accordingly, the modified temporary injunction is hereby reversed in its entirety, save that portion of the order enjoining Vrasic from contacting Leibel. The “no contact” provisions shall remain in effect as Vrasic has not challenged them on appeal.

Affirmed in Part; Reversed in Part; and Remanded.

POLEN, J., and BONAVITA, AUGUST, Associate Judge, concur.

      . It appears that Leibel later dropped the claim for credit card fraud and added claims for statutory misappropriation, in violation of section 540.08, Florida Statutes; property damage; and intentional infliction of emotional distress.


text:
    Ocelyn ST. CYR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-583.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.

      Ocelyn St. Cyr, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Ocelyn St. Cyr appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We affirm as to appellant’s claim that the trial court erred in not evaluating his mental health status before sentencing. This claim is not proper for a rule 3.800(a) motion. See Potter v. State, 769 So.2d 519, 520 (Fla. 3d DCA 2000).

Appellant also claimed that the trial court could not revoke his “youthful offender status” following revocation of community control. We remand as to this claim because, as the state concedes, the trial court failed to attach records to refute the claim.

The trial court revoked appellant’s youthful offender community control status following substantive violations, including appellant’s commission of new offenses while on community control. Because this was a substantive and not a technical violation, the court could sentence appellant as a youthful offender up to the statutory maximum for the offenses and was not limited by the six-year cap that applies to technical violations only. § 958.14, Fla. Stat. (2007).

Appellant’s argument that he could not be sentenced to more than six years in prison is incorrect. Appellant appears confused by language in Rogers v. State, 972 So.2d 1017, 1019 (Fla. 4th DCA 2008) (citing Boynton v. State, 896 So.2d 898, 899 (Fla. 3d DCA 2005)). The confusion was clarified by the Fifth District Court of Appeal in Christian v. State, 84 So.3d 437, 440 (Fla. 5th DCA 2012). See also Flores v. State, 46 So.3d 102, 104-05 (Fla. 3d DCA 2010), rev. dismissed, 93 So.3d 324 (Fla.2012).

A defendant need not have been charged or convicted of the new offense constituting the substantive violation in order for a court to sentence a youthful offender in excess of the six-year cap. See Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (“[W]hile the court must maintain the defendant’s youthful offender status upon revocation of probation, the court is not limited to imposing the usual youthful offender sentence of six years or less in prison if the revocation is based on a substantive violation of probation.”).

The court in this case could sentence appellant as a youthful offender up to the statutory maximum for his offenses. The fifteen-year sentence he received is not illegal on the ground that it exceeds the six-year cap that applies to technical violations.

Nevertheless, as the state concedes, without the sentencing records, it is not clear whether the trial court sentenced appellant as a youthful offender following revocation. “Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.” Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010) (citations omitted). The erroneous revocation of this status, that is the failure to sentence the defendant as a youthful offender following revocation of supervision, can be raised in a rule 3.800(a) motion. Id. at 787.

Appellant’s designation as a youthful offender could affect his classification within the prison system, the availability of programs, and the possibility of early release. See Christian, 84 So.3d at 443-44; Blacker, 49 So.3d at 787.

Accordingly, we remand to the circuit court with directions to sentence appellant as a youthful offender or to attach records refuting appellant’s claim.

Reversed and remanded with directions.

WARNER, POLEN and CIKLIN, JJ., concur.

      . This court previously denied the state's motion to supplement the appellate record with the sentencing documents. St. Cyr v. State, -So.3d-(Fla. 4th DCA 2012).


text:
    The LAW OFFICES OF DAVID J. STERN, P.A., and David J. Stern, Appellants, v. Rory HEWITT, Appellee.
    No. 4D11-3524.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.

      Jeffrey Tew and James Malphurs of Tew Cardenas LLP, Miami, for appellants.
    Philip M. Burlington and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, Louis M. Silber of Sil-ber & Davis, LLC, West Palm Beach, and Kirk Friedland, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm the class certification order in this case on the authority of Law Offices of David J. Stern, P.A. v. Banner, 50 So.3d 1221 (Fla. 4th DCA 2010), which we find to be indistinguishable from this case in all relevant respects. We reject appellants’ argument that the class representative’s claim was atypical because he did not pay any of the reinstatement charges. Id. at 1222 (declining to distinguish between those class members who paid reinstatement charges and those who did not).

We note, however, that our jurisdiction in this non-final appeal is limited to review of the propriety of the class certification. The trial court’s denial of appellants’ motion for partial summary judgment on appellee’s claim for a violation of FDUTPA is not before us at this point. See Pinellas Cnty. Sch. Bd. v. Crowley, 911 So.2d 881, 882 (Fla. 2d DCA 2005) (“The School Board’s argument ... actually addresses the issue of whether the class representatives’ complaint stated a cause of action. This issue is not properly before us, and we express no opinion on it. Our jurisdiction in this nonfinal appeal is limited to the review of the propriety of the order of class certification.”).

We therefore cannot express an opinion on whether appellee’s complaint stated a cause of action for a FDUTPA claim. However, we note our decision in State, Office of Attorney General v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4th DCA 2011), in which we upheld a trial court order quashing a subpoena seeking production of documents related to a law firm’s representation of lending institutions in foreclosure cases, and ruled that “the alleged conduct of the law firm ... d[id] not fall within the rubric of ‘trade or commerce’ as required for civil investigative subpoenas under FDUTPA.” Id. at 356. Further, any future determination on whether the FDUTPA claim is viable would not affect the trial court’s determination as to class certification of the FCCPA claim. We thus hold that the class certification order here was not an abuse of discretion.

Affirmed.

TAYLOR, CIKLIN and LEVINE, JJ„ concur.


author: PALMER, J.

text:
    Jean PIERROT, as Personal Representative, etc., Appellant, v. OSCEOLA MENTAL HEALTH, INC., etc., et al., Appellee.
    No. 5D11-2513.
    District Court of Appeal of Florida, Fifth District.
    Jan. 11, 2013.
    Rehearing Denied Feb. 13, 2013.

      Jose F. Garcia, of Udowychenko & Garcia, P.A., Kissimmee, for Appellant.
    Michael R. D’Lugo and Barbara A. Flanagan, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appel-lee.
   PALMER, J.

In this wrongful death action, Jean Pierrot appeals the trial court’s order dismissing with prejudice the count of his complaint against Osceola Mental Health, Inc., d/b/a Park Place Behavioral Health Care (Park Place). Determining that the court erred in dismissing the claim for failure to comply with Florida’s medical malpractice presuit requirements, we reverse.

A trial court’s ruling on a motion to dismiss based on a question of law is reviewed de novo. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).

Pierrot’s complaint alleged the following facts. Farrah Krystle Jean, a 25-year-old pregnant woman, went to a hospital in the afternoon with complaints of pain. That evening, the hospital “Baker Acted” Jean and transferred her involuntarily to Park Place. When she arrived, Jean was in distress, complaining of severe abdominal pain and other symptoms. Over the next two days, Park Place employees committed various acts and omissions that resulted in Jean’s death. The complaint alleged a wrongful death claim for violations of Jean’s rights as a patient under the Baker Act, and stated that Pierrot was not seeking damages under Florida’s Medical Malpractice Act.

Park Place moved to dismiss Pierrot’s wrongful death claim, arguing that the claim was one for medical malpractice and that Pierrot had failed to comply with the presuit requirements of the Medical Malpractice Act. These requirements include investigation by the parties and notice to the prospective defendant. See §§ 766.104, .106, .203, Fla. Stat. (2010). The trial court dismissed Pierrot’s claim with prejudice, ruling that the gravamen of the claim was that Park Place failed to properly respond to Jean’s physical symptoms of severe abdominal pain, and therefore, the claim was inescapably one for medical negligence. Further, the court ruled that Pierrot could not avoid the pre-suit requirements of the Medical Malpractice Act by pleading the claim under the Baker Act.

On appeal, Pierrot argues that a plaintiff claiming only violations of a mental health patient’s rights under the Baker Act is not required to comply with the medical malpractice presuit requirements. Additionally, Pierrot contends that the presuit requirements do not apply to his claim because Park Place was not a health care provider. We agree with both arguments.

The presuit requirements of Florida’s Medical Malpractice Act restrict plaintiffs’ constitutional right of access to courts, so the requirements’ applicability must be construed narrowly in favor of access. See Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002); Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993). For the requirements to apply, the claim must be for medical malpractice. See J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 948-49 (Fla.1994); Joseph v. Univ. Behavioral LLC, 71 So.3d 913, 917 (Fla. 5th DCA 2011); Blom v. Adventist Health Sys./Sunbelt, Inc., 911 So.2d 211, 213-14 (Fla. 5th DCA 2005). Also, the defendant must be a health care provider. See Weinstock, 629 So.2d 835; Sova Drugs, Inc. v. Barnes, 661 So.2d 393 (Fla. 5th DCA 1995). Neither of these elements was present here.

First, Pierrot’s claim was not for medical malpractice. The primary test for whether a claim is one for medical malpractice is whether the claim relies on the application of the medical malpractice standard of care. See Weinstock, 629 So.2d at 838; Joseph, 71 So.3d at 917; GalenCare, Inc. v. Mosley, 59 So.3d 138, 141-43 (Fla. 2d DCA 2011). Thus, when a claim relies on a different standard provided by another statute, the claim is not one for medical malpractice for purposes of the presuit requirements. See Integrated Health Care Servs., Inc. v. Lang-Redway (Integrated I), 783 So.2d 1108 (Fla. 2d DCA 2001), approved, 840 So.2d 974 (Integrated II) (Fla.2002).

In Integrated I, the plaintiff sued a nursing home, alleging a claim for violation of nursing home residents’ rights under section 400.022, Florida Statutes. The complaint alleged that the decedent suffered from pressure sores while residing at the nursing home. He ultimately had his left leg and right big toe amputated. The relevant portion of section 400.022 gave residents

[t]he right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency.

§ 400.022(1)(Z), Fla. Stat. (1997). The nursing home moved to dismiss the complaint, arguing that the plaintiff was required to comply with the medical malpractice presuit requirements. The Second District disagreed, holding:

[A] plaintiff who chooses to allege only a statutory claim under section 400.022 ... is not required to comply with the presuit requirements of section 766.106.... Although there may be some overlap between the [section 400.022(1)(£) ] statutory right to “receive adequate and appropriate health care” and the common law claim for medical negligence, we conclude that the presuit requirements of chapter 766 must be narrowly construed to apply only to common law medical negligence claims and not to the separate statutory rights created by chapter 400.

Id. at 1109. The court explained:

Florida’s policies favoring access to courts ... weigh against interpreting the presuit conditions in chapter 766 to regulate statutory rights not mentioned in chapter 766. Nothing in section 766.106 compels this court to read that statute in an expansive manner to include claims filed under section 400.022(l)(i).

Id. at 1111. The Florida Supreme Court approved the Second District’s decision, agreeing that the presuit requirements did not apply because the claim did not rely on the medical malpractice standard of care. Integrated II, 840 So.2d at 980-81.

Similarly, the Baker Act provides several statutory standards of care applicable to specific patient rights. See § 394.459, Fla. Stat. (2008). Pierrot’s claim against Park Place relies exclusively on these standards. Although there may be some overlap between the medical aspects of Baker Act patients’ rights and a cause of action for medical malpractice, the presuit requirements must be construed narrowly to apply only to malpractice claims, not to separate statutory claims.

Second, the trial court erred in dismissing Pierrot’s claim because Park Place was not a health care provider. A defendant is a “health care provider” for purposes of the presuit requirements only if the defendant is included within the applicable definitions of that term within the Medical Malpractice Act. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993). Because the Act contains several definitions of health care provider, the definition that applies depends on which section of the Act is at issue. See Sova Drugs, Inc. v. Barnes, 661 So.2d 393, 395 (Fla. 5th DCA 1995).

The presuit requirements are set forth in sections 766.104, .106, and .203. Sections 766.104 and .106 do not contain a definition of health care provider. However, in Weinstock, our supreme court resolved this omission by looking at the whole of chapter 766’s definitions to determine whether the defendant was a health care provider. Weinstock, 629 So.2d at 836-37. Here, according to the complaint, Park Place was a mental health facility licensed under chapter 394. Cf. §§ 394.461, .4612. This type of entity is not listed in any of chapter 766’s definitions, nor is it apparent from the complaint that Park Place otherwise met any of the descriptions in those definitions.

Section 766.203 is governed by the definition of health care provider in section 766.202(4). See § 766.202. Section 766.202(4) does not list mental health facilities licensed under chapter 394, and it is likewise not apparent that Park Place otherwise met that section’s definition. Thus, viewing the allegations of the complaint in the light most favorable to Pierrot as the plaintiff, see Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla. 2002), Park Place failed to establish that it was a health care provider for purposes of the presuit requirements. See Rolle v. Brevard County, No. 6:06-cv-714-ORL-19JGG, 2007 WL 328682, at *1-2, *12 (M.D.Fla. Jan.31, 2007) (holding that where it was unclear from complaint whether mental health professional who provided services to decedent was included in chapter 766, court had to view complaint in light most favorable to plaintiffs, and court would deny motion to dismiss for failure to comply with presuit requirements).

REVERSED and REMANDED.

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

      .Appellate jurisdiction is proper because the court dismissed the only count against defendant Park Place. Robert Granoff Corp. v. United First Fed. Sav. & Loan Assoc. of Sarasota, Fla., 424 So.2d 199 (Fla. 5th DCA 1983); Clermont Builders Supply, Inc. v. Gen. Constr. & Design, Inc., 423 So.2d 518 (Fla. 5th DCA 1982).

      . The Baker Act provides for involuntary commitment of persons based on mental illness. See Ch. 394, Pt. I, Fla. Stat. (2008).

      . See § 394.459.

      .Chapter 766.

      . Although the Supreme Court limited its holding to claims under section 400.022, id. at 980 n. 9, we conclude that the same rule applies to claims under other statutory standards of care.

      . Subsection (3) of section 766.104 references section 456.00 l’s definition of "health care practitioner.” However, subsection (3) references that definition not for the purpose of defining the types of defendants to which the plaintiff's presuit requirements apply, but for the purpose of defining the types of entities that must make available medical records of a decedent. In any event, section 456.001(4)'s definition does not include a mental health facility licensed under chapter 394, which is what the complaint alleged Park Place was here.


author: GROSS, J.

text:
    Stephan HAMIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2568.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Rehearing Denied Mar. 1, 2013.

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

This is an appeal of the circuit court’s denial of a motion to withdraw a plea after sentencing filed pursuant to Florida Rule of Criminal Procedure 3.170(1). The court held an evidentiary hearing on the motion and resolved credibility issues against appellant. Finding no abuse of discretion, we affirm.

Appellant was charged with two counts of vehicular homicide and one count of reckless driving causing serious bodily injury. Appellant entered an open plea of no contest shortly before his twenty-first birthday to maintain the possibility of receiving a youthful offender sentence. See § 958.04(l)(b), Fla. Stat. (2010). During the plea colloquy before Judge John J. Hoy, appellant affirmed that he understood that his minimum guideline sentence was 19.6 years in prison. Judge Hoy did not expressly ask appellant whether his attorneys made any promises regarding his possible sentence.

Judge Hoy sentenced appellant to the minimum mandatory sentence of 236.04 months in prison, finding that a youthful offender sentence was “inappropriate” since appellant exhibited qualities of maturity and did not have a “diminishment of capacity” due to drug or alcohol use. After the sentence was entered, appellant moved to withdraw his plea, alleging that the plea was “involuntary, in that it was taken in reliance upon counsel’s advise as to the sentence [he] would receive.”

An evidentiary hearing on the motion to withdraw the plea was held before Judge Barry M. Cohen, at which point the court heard testimony from appellant, members of his family, and his former attorneys. Following the hearing, Judge Cohen entered a thoughtful, detailed written order denying appellant’s motion to withdraw his plea, finding by a preponderance of the evidence that the plea was entered freely and voluntarily. In making this ruling, Judge Cohen found “that the sworn testimony of both Assistant Public Defenders who discussed with [appellant] his open plea to the court along with the record of the plea colloquy outweigh[ed] the testimony of [appellant] and his family members.”

We review a trial court’s denial of a motion to withdraw a plea after sentencing for an abuse of discretion. Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006) (citing Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004)). Under this standard, the trial court abuses its discretion when its decision is “arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).

“Where a motion to withdraw a plea is filed after sentencing, the defendant has the burden of proving that a manifest injustice has occurred and that withdrawal is necessary to correct the manifest injustice.” Panchu v. State, 1 So.3d 1243, 1245 (Fla. 4th DCA 2009) (citing State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003); Woodly, 937 So.2d at 198). “This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice.” Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (emphasis added); Powell v. State, 929 So.2d 54, 55 (Fla. 5th DCA 2006). When challenging the voluntariness of a plea, “mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered.” Robinson v. State, 761 So.2d 269, 274 (Fla.1999) (emphasis added).

In the case at hand, appellant failed to carry the burden of proving that he was misled by his attorneys’ alleged promises of receiving a reduced sentence. Judge Cohen weighed the testimony and resolved the credibility issues against appellant. The evidence produced at the evidentiary hearing supports the decision.

Appellant also argues that he is entitled to withdraw his plea because Judge Hoy failed to ask at the plea colloquy whether his attorneys made any promises to him regarding his sentence. To accept a plea, the trial court must place the defendant under oath and perform a plea colloquy to determine that the defendant entered into the plea voluntarily. See Fla. R.Crim. P. 3.172(c). This court has recognized that the “trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those discussed during the plea colloquy.” Rappoport v. State, 24 So.3d 1211, 1214 (Fla. 4th DCA 2009) (quoting Simmons v. State, 611 So.2d 1250, 1253 (Fla. 2d DCA 1992)). However, failure of a trial judge to specifically ask the defendant if his attorneys made any promises to him about sentencing does not by itself warrant withdrawal of a plea, nor is it even required; rather, the defendant must show prejudice. See Carmichael v. State, 631 So.2d 346, 347 (Fla. 2d DCA 1994) (“[W]e are not holding that such an inquiry is required[.]”); Otero v. State, 696 So.2d 442, 442 (Fla. 4th DCA 1997); see also Fla. R.Crim. P. 3.172(j) (“Failure to follow any of the procedures in [Rule 3.172] shall not render a plea void absent a showing of prejudice.” (emphasis added)).

Appellant relies on Neeb v. State, 643 So.2d 40 (Fla. 2d DCA 1994), and Rappoport v. State, 24 So.3d 1211 (Fla. 4th DCA 2009), for the proposition that the trial judge’s failure to ask appellant about his attorney’s sentencing promises required reversal. Both of these cases are inappo-site because the reversals were based on the failure of the trial court to hold an evidentiary hearing. In Neeb, the second district reversed a trial court’s order summarily denying the defendant’s motion for postconviction relief and remanded the case for an evidentiary hearing to ascertain whether there were “any promises to [the defendant] that his plea would result in a certain sentence.” 643 So.2d at 41-42. Likewise, in Rappoport, this court remanded for an evidentiary hearing “[because the record d[id] not refute the claim that [the defendant] was promised something for entering into [a] substantial assistance agreement.” 24 So.3d at 1214.

In this case, the trial court afforded appellant the opportunity to present evidence at an evidentiary hearing. As the State points out, the testimony of his attorneys and every document, including the emails produced at the hearing, the initialized rights form, and the affirmations during the plea colloquy, support Judge Cohen’s finding that appellant entered the plea voluntarily in the hope of receiving a youthful offender sentence. It is

within the trial judge’s province, when acting as trier of both fact and law, to determine the weight of the evidence, evaluate conflicting evidence, and determine the credibility of the witnesses, and such determinations may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence, or to constitute an abuse of discretion.

Jockey Club, Inc. v. Stern, 408 So.2d 854, 855 (Fla. 3d DCA 1982) (citations omitted). Affirmed.

MAY, C.J., and GERBER, J., concur.


author: JACOBUS, J.

text:
    TDM OF CENTRAL FLORIDA, LLC, etc., et al., Appellants, v. SAUL HOLDINGS LIMITED PARTNERSHIP, Appellee.
    No. 5D11-1106.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2013.

      Michael L. Keiber of Michael L. Keiber, P.A., Sebring, and Scott LeConey of Swaine & Harris, P.A., Lake Placid, for Appellants.
    Randall P. Mueller and Michael P. Quinn of Carey, O’Malley, Whitaker & Mueller, P.A., Tampa, for Appellee.
   JACOBUS, J.

The Appellant, TDM of Central Florida, LLC (“TDM”), appeals the final summary judgment entered in favor of the Appellee, Saul Holdings Limited Partnership (“Saul Holdings”). TDM contends that the trial court should not have granted summary judgment in this case because issues of material fact remain. We agree and reverse.

On April 8, 2008, TDM entered into a commercial lease with Saul Holdings and agreed to lease space in a strip mall. The leased space was to be used as a restaurant. At the initial inspection, TDM determined that the current air conditioning system installed on the premises was insufficient. While negotiating the lease, Saul Holdings agreed to install, at its sole cost and expense, a new 7.5-ton HVAC rooftop air conditioning unit to serve the premises. This became a condition of the lease and it was included in the lease terms.

TDM subsequently developed architectural drawings and obtained bids for the build-out of the premises for use as a restaurant. Thereafter, Saul Holdings sent TDM a document entitled “Substantial Completion Inspection and Tenant Space Approval,” which provided that the Substantial Completion Inspection was made on April 80, 2008, and that the leased premises is accepted as-is. TDM objected to signing the form because the air conditioning unit had not been installed at the time TDM received the form. After discussions with Saul Holdings, the form was modified to include an exception for the landlord to install a new 7.5-ton HVAC rooftop unit.

After signing the form and returning it to the landlord, TDM received a letter from Saul Holdings on May 2, 2008. This letter indicated that the parties had entered an oral agreement, in which TDM had agreed to install the 7.5-ton unit as required by the lease and Saul Holdings agreed to give TDM a credit for the cost of the installation in the amount of $18,000 against the rent due under the lease. Upon receipt of the letter, TDM immediately advised Saul Holdings that there was no agreement, there never had been an agreement to modify the lease, and it was cancelling the lease agreement because Saul Holdings was operating in bad faith.

Saul Holdings subsequently sent TDM a form entitled “Commencement and Estop-pel Agreement.” That form memorialized the start date of the lease and purported to act as an estoppel to any claims TDM may have against Saul Holdings. It specifically recited that the tenant had accepted possession of the premises as-is. TDM did not sign the form. At the time TDM received this agreement, neither party had installed the air conditioning unit on the premises.

Saul Holdings sued TDM for eviction and for breach of the lease. Below, TDM claimed it never took possession of the premises and, therefore, it was never obligated under the lease. TDM filed an affidavit swearing that it never had possession of the premises. TDM further argued that Saul Holdings’ conduct was an anticipatory repudiation of the lease. Ultimately, the trial court entered summary judgment in favor of Saul Holdings, finding TDM was liable for damages for lease payments over the term of the lease. TDM appeals this judgment.

Entry of summary judgment is appropriate when “there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). When considering a case in which summary judgment has been entered, an appellate court “must review the record and any supporting affidavits in the light most favorable to the non-moving party.” Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000).

We agree with TDM that there are material issues of fact remaining, which preclude the entry of summary judgment in this case. In particular, there are factual disputes as to: (1) whether Saul Holdings attempted, in bad faith, to make TDM accept the premises as-is without installing the air conditioner required by the lease; (2) whether Saul Holdings sent the letter reflecting an oral modification to the lease without TDM’s acceptance of that modification; and (3) whether Saul Holdings ever installed the air conditioner as required by the lease. If these factual disputes are resolved in favor of TDM, then there may be merit to its anticipatory repudiation argument and TDM would be released from performing any further contractual obligations. See Lucite Ctr., Inc. v. Mercede, 606 So.2d 492, 493 (Fla. 4th DCA 1992)(“The breach by one party to a contract releases the other party from performing any future contractual obligations.”' (quoting Reinhart v. Miller, 548 So.2d 1176, 1177 (Fla. 4th DCA 1989))). In light of the factual disputes, summary judgment was not appropriate in this case. We, therefore, reverse the final summary judgment entered in Saul Holdings’ favor and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J. and LAWSON, J., concur.


author: WARNER, J. POLEN, J.,

text:
    Angela M. BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1954.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the trial court’s denial of appellant’s motion to withdraw her plea prior to sentencing on the charges of grand theft at a construction site and trespass at the site. She sought to withdraw the plea when her co-defendant, who had absconded, was arrested and placed in custody. Her attorney told the court that the co-defendant would provide testimony as to the nature of the property taken and the lack of a proper warning against trespass, and had appellant known that the co-defendant would be available, she would have gone to trial. The trial court, however, determined that she had not shown good cause to withdraw her plea.

In State v. Braverman, 348 So.2d 1183, 1186 (Fla. 3d DCA 1977), the court discussed the requirements of good cause to withdraw a plea prior to sentencing:

It is the established law of this state that a plea of guilty or nolo contendere should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, undue persuasion, promises, mistake, fraud, inadvertence or ignorance. A defendant should be permitted to withdraw a plea of guilty or nolo contendere prior to sentencing where it is the least evident that the plea was infected by any of the above influences or was entered by one not competent to know its consequences or was otherwise involuntary, or where it appears that the ends of justice would be served by the withdrawal of such a plea. The defendant has the burden of establishing one of the above grounds in order to be entitled to withdraw his guilty or nolo contendere plea.

(Citations omitted). In Braverman, the defendant sought to withdraw his plea based upon newly discovered evidence. The court rejected this as a ground for withdrawal:

This newly discovered evidence in no way relates to any of the established grounds for setting aside a nolo conten-dere plea prior to sentencing under Florida law. It fails to establish that the pleas were not freely and voluntarily entered by one competent to understand its consequences. It fails to establish that the pleas were induced by fear, misapprehension, undue persuasion, promises, mistake, fraud or ignorance. It fails to establish that the ends of justice would be served by permitting the pleas to be withdrawn.
Ordinarily, newly discovered evidence cannot constitute a ground for withdrawing a nolo contendere or guilty plea pri- or to sentencing since it in no sense relates to whether the plea was entered freely and voluntarily with full knowledge of its consequences or was induced by some improper influence. Only upon a showing that the ends of justice would be served can newly discovered evidence constitute a basis for withdrawing such pleas prior to sentencing. We believe that such a showing should be reserved to those cases where evidence has been uncovered subsequent to the plea which raises a substantial question as to the guilt or innocence of the defendant. Our law should never be so inflexible that a showing of innocence would be to no avail in withdrawing a nolo contende-re or guilty plea prior to sentencing.

Id. at 1187-88 (emphasis supplied). Although the absent co-defendant is not exactly newly discovered evidence, we think the same principles applied in Braverman are applicable here.

In this case we cannot say that the ends of justice require the trial court to allow withdrawal of the plea. Appellant was charged with grand theft on a construction site. § 812.014(2)(c)10., Fla. Stat. That section does not require any minimum value of the property stolen. Even though the appellant was charged with stealing a minimal amount of rebar, it still constitutes a felony of the third degree. Trespass on a construction site requires the posting of signs warning that it is a construction site. However, appellant’s defense that the posting was not visible could have been proved both by her own testimony and other evidence. When she requested to withdraw her plea, she did not proffer the co-defendant’s testimony, nor was it apparent that the co-defendant was ready and willing to testify on appellant’s behalf.

Appellant was not under any misapprehension when she entered her plea and received a very favorable sentencing recommendation. While she may have been mistaken that her co-defendant could not be found at all, she did not show that his testimony would show that she was innocent of the charges. Therefore, she did not prove that withdrawal of her plea was necessary to serve the ends of justice.

We cannot say that the trial court abused its discretion in denying the motion to withdraw the plea.

Affirmed.

STEVENSON, J., concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I respectfully dissent. When Berry entered her plea, she alleges it was because the co-defendant, whom she believed would be a defense witness, had absconded. When he was later rearrested, and thus available to Berry if her plea were withdrawn, she filed the instant motion to withdraw the plea prior to sentencing. I would hold this was good cause shown to allow withdrawal of the plea. I would reverse.


text:
    Michael Anthony McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2671.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    David A. Lamos, Fort Pierce, for appellant.
    No appearance required for appellee.
   PER CURIAM.

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

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Barnard JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2155.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Barnard Joseph, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)).

MAY, C.J., CIKLIN and LEVINE, JJ., concur.


text:
    Maguenord VILSAINT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1757.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Lachezar Vanchev, Coral Springs, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, -So.3d-(Fla.2012).

WARNER, DAMOORGIAN and GERBER, JJ., concur.


text:
    Stephen FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1155.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

POLEN, GROSS, JJ., and STONE, BARRY, Senior Judge, concur.


text:
    Maurice T. CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-792.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Maurice T. Curry, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Maurice T. Curry appeals an order summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. He claimed that his scoresheet was miscalculated because section 921.0024(2), Florida Statutes (2005), provides “When the total sentence points exceeds 44 points, the lowest permissible sentence in prison months shall be calculated by subtracting 28 points from the total sentence points and decreasing the remaining total by 25 percent.” He maintained that the “remaining total” had not been decreased by twenty-five percent. However, by multiplying the “remaining total” by .75, as his scoresheet showed was done, the same result was achieved. Thus, Curry failed to demonstrate a scoresheet error. Further, under any circumstances, this would not be grounds for relief under rule 3.800(a).

Affirmed.

POLEN, GROSS and TAYLOR, JJ., concur.


text:
    Reginald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-315.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Attorney General, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Regina JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4903.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

MAY, C.J., TAYLOR and CONNER, JJ., concur.


text:
    Larry PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4599.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Roderick L. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4117.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

POLEN, GROSS JJ., and STONE, BARRY J., Senior Judge, concur.


text:
    T.D.T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3761.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

WARNER, CIKLIN and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    Willie SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3189.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, and Willie F. Simmons, Sneads, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Willie F. Simmons (“Appellant”) appeals the trial court’s final order imposing a judgment and sentence after an open plea of no contest. We have reviewed the record and Appellant’s pro se brief. We grant appellate counsel’s motion to withdraw filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the conviction and sentence.

Nonetheless, we remand with directions to correct a scrivener’s error in the judgment. Appellant was charged with, entered a plea to, and was sentenced for failure to redeliver a hired vehicle in violation of section 817.52(3), Florida Statutes (2009). The judgment, however, reflects a conviction for failure to redeliver a hired or leased property of $300 or more in violation of section 812.155(3), Florida Statutes (2009). See McKeliver v. State, 45 So.3d 934 (Fla. 4th DCA 2010) (affirming and remanding with directions to correct the scrivener’s error in the written sentence in an Anders appeal); Murphy v. State, 977 So.2d 748 (Fla. 2d DCA 2008) (affirming and remanding with directions to correct the scrivener’s error in -written judgment in an Anders appeal).

Affirmed and remanded with instructions.

MAY, C.J., and GERBER, J., concur.


text:
    Antorey Davon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2456.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and Peggy Natalie, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. As to issue 1, see Carpenter v. State, 785 So.2d 1182 (Fla.2001); Ste phens v. State, 787 So.2d 747 (Fla.2001). As to issue 2, see Saunders v. State, 547 So.2d 193 (Fla. 3d DCA 1989).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Adam JOLLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1812.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Adam Jolly, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s untimely post-conviction motion. A petition for writ of habeas corpus may not be used as a substitute for a rule 3.850 motion. See Baker v. State, 878 So.2d 1236, 1241 (Fla.2004); Fla. R.Crim. P. 3.850(Z). As to appellant’s claim that the sentencing court believed that it was required to sentence appellant to the statutory maximum once it concluded that he was a habitual felony offender, see Burdick v. State, 594 So.2d 267 (Fla.1992), appellant fails to show manifest injustice that merits relaxing the pro-eedural bars. Cf. Johnson v. State, 9 So.3d 640 (Fla. 4th DCA 2009); Prince v. State, 98 So.3d 768 (Fla. 4th DCA 2012).

Affirmed.

POLEN, GROSS and CONNER, JJ., concur.


text:
    Antonio Terrell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1096.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. As to appellant’s first point on appeal, see Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994).

POLEN, GROSS, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    James OSBORNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3365.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    James Osborne, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hudson v. State, 95 So.3d 413 (Fla. 4th DCA 2012).

POLEN, GROSS, JJ., and STONE, BARRY J., Senior Judge, concur.


text:
    James KNOESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4586.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

POLEN, GROSS, JJ., and STONE, BARRY J., Senior Judge, concur.


text:
    John COATES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2503.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.
    Rehearing Denied Feb. 14, 2013.
    John Coates, pro se, Appellant; Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We find no error in the convictions or in the terms of the sentences imposed by the court, but we reverse for the correction of two errors in the assessment of fines, fees, and costs. The discretionary fine imposed in each of the cases in the lower tribunal and the surcharges imposed on those fines are reversed on the ground that they were imposed as a lump sum for both circuit court cases at the sentencing hearing, without an oral pronouncement of'the basis therefor. See Williams v. State, 845 So.2d 987, 989 (Fla. 1st DCA 2003); Dodson v. State, 710 So.2d 159, 160-61 (Fla. 1st DCA 1998), quashed on other grounds, 760 So.2d 145 (Fla.2000); Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997). The fee for the public defender’s services is reversed on the ground that the defendant was not given notice of his right to contest the fee. See Fla. R.Crim. P. 3.720(d)(1); Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011); Parker v. State, 44 So.3d 1190, 1191 (Fla. 1st DCA 2010). In all other respects, the convictions and sentences are affirmed.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Todd MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1661.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2013.
    Todd H. Miller, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the lower court’s order removing a court-ordered lien on his inmate trust account but denying his request for reimbursement of funds used from the account to pay court costs and fines. The State properly concedes error. See Wilcox v. State, 79 So.3d 878, 878-79 (Fla. 5th DCA 2012) (holding that no statutory basis exists to impose lien on inmate trust account for court costs and fines); Araujo-Espichan v. State, 62 So.3d 683, 684 (Fla. 5th DCA 2011) (reversing judgment that improperly placed lien on inmate’s account and instructing lower court to reimburse funds removed from account).

Accordingly, we REVERSE and REMAND, with instructions that the State be ordered to reimburse Appellant for the $883 improperly removed from his account pursuant to the lien order.

REVERSED and REMANDED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Howard WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4316.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2013.
    Robert Wesley, Public Defender, and Assistant Public Defender, Migdalia Perez, Kissimmee, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2012-CF-1553-A-OS, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, LAWSON and JACOBUS, JJ., concur.


text:
    Darius JUITT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3019.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2013.
    Darius Juitt, Cocoa, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 05-2010-CF-54752-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., SAWAYAAND PALMER, JJ., concur.


text:
    Brian P. KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-225.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2013.
    Brian P. Kennedy, South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Geter v. State, — So.3d-(Fla. 3d DCA 2012).

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


text:
    Juan JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5869.
    District Court of Appeal of Florida, First District.
    Feb. 1, 2013.
    Juan Jenkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Wood v. State, 750 So.2d 592 (Fla.1999).

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    B.R., Father of N.R., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, and L.P., Mother of N.R., a Child, Appellees.
    No. 5D12-4144.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2013.
    Elliott R. Ambrose, of Law Office of Elliott R. Ambrose, Brooksville, for Appellant.
    Deborah A. Schroth, Jacksonville, for Appellee, Department of Children and Families.
    E.J. Lynum of Lynum & Associates, PLLC, Orlando, for Appellee, L.P., Mother.
    Wendie Michelle Cooper, Appellate Counsel, Tavares, for Guardian ad Litem Program.
   PER CURIAM.

The father, B.R., appeals from an order placing his child, N.R., in permanent guardianship. Based upon the State’s proper concession of error, we reverse.

Section 39.621(3)(a), Florida Statutes (2011), requires the Department to file and serve, at least three business days before the permanency hearing, a judicial review social services report which includes a recommended permanency goal and an explanation as to why such a recommendation is in the best interest of the child. The State concedes no such notice was provided. Cf. In re KM., 86 So.3d 556, 560 (Fla. 2d DCA 2012) (reversing where Department of Children and Family Services did not provide mother with proper notice of permanency hearing).

REVERSED.

TORPY, COHEN and JACOBUS, JJ., concur.


author: ORFINGER, C.J.

text:
    Andrew Joseph HICKMAN, Appellant, v. Tasha Monae MILSAP, Appellee.
    No. 5D12-1239.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    Charles D. Fantl, Tavares, for Appellant.
    David E. Cauthen, of Cauthen, Oldham & Associates, P.A., Tavares, for Appellee.
   ORFINGER, C.J.

Andrew J. Hickman appeals the trial court’s order granting his petition to disestablish paternity of A.J.H., the minor child of Appellee, Tasha Milsap. We affirm.

Mr. Hickman and Ms. Milsap were never married to each other. Ms. Milsap gave birth to A.J.H. in 2001, and both parties executed his birth certificate, declaring themselves his natural parents. In May 2005, Ms. Milsap brought a paternity action against Mr. Hickman resulting in a paternity judgment that found Mr. Hickman was A.J.H.’s father. By separate order, Mr. Hickman was ordered to pay $751 in monthly ongoing child support and $49 monthly toward the $20,277 in child support arrearages.

In early 2011, DNA test results revealed that Mr. Hickman was not A. J.H.’s biological father. As a result, pursuant to section 742.18, Florida Statutes (2011), Mr. Hickman filed a petition to disestablish paternity. Following a hearing, the trial court granted Mr. Hickman’s petition and entered an order disestablishing his paternity and terminating his ongoing child support obligation, but continuing to hold him responsible for the previously determined support arrearage. On appeal, Mr. Hickman contends that the trial court erred by concluding that under section 742.18, Florida Statutes, he remains responsible for previously adjudicated child support ar-rearages.

Enacted in 2006, section 742.18 created a new cause of action for disestablishing paternity. In relevant part, that statute provides:

relief shall be limited to the issues of prospective child support payments and termination of parental rights, custody, and visitation rights. The male’s previous status as father continues to be in existence until the order granting relief is rendered. All previous lawful actions taken based on reliance on that status are confirmed retroactively but not prospectively. This section shall not be construed to create a cause of action to recover child support that was previously paid.

§ 742.18(5), Fla. Stat. (2011). Mr. Hickman argues that the plain meaning of “prospective child support payments” includes all future payments, regardless of whether such payments are for ongoing support or arrearages. Thus, he contends that the statute absolves a disestablished father of the obligation to pay previously established but unpaid child support ar-rearages. We disagree.

When a statute’s language conveys a clear and definite meaning, the statute is given its plain and obvious meaning. Macoca v. Gov’t Emps. Ins. Co., 953 So.2d 451, 457 (Fla.2006); McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1208 (Fla.2006). However, when reasonable differences exist as to the meaning or application of a statute, the rules of statutory construction control its interpretation. Childers v. Cape Canaveral Hosp., Inc., 898 So.2d 973, 975 (Fla. 5th DCA 2005). When construing a statute, it must be considered in its entirety and all parts of a statute read together in order to achieve a consistent whole. GTC, Inc. v. Edgar, 967 So.2d 781, 787 (Fla.2007). Here, we conclude there is a reasonable question as to whether “prospective child support payments” include arrearages.

Section 742.18(5) specifically confirms all previous legal actions based on the father’s status prior to disestablishment, and disallows its use to recover previously paid child support. By confirming past lawful actions, the statute, by its plain language, supports the continued efficacy of the previous arrearage order entered by the court. Courts generally hold that money judgments are final, and not prospective, even when they compel future payments of the judgment. Gibbs v. Maxwell House, A Div. of Gen. Foods, 738 F.2d 1153, 1156 (11th Cir.1984) (stating that although party may continue to feel money judgment’s effects, it is not “prospective”). Consequently, even when a money judgment is prospective in the sense that it remains unpaid, such a judgment is nevertheless a final order and not prospective for purposes of relief under section 742.18. Thus, we hold that the relief from prospective child support payments granted by section 742.18 to disestablished fathers does not include relief from arrearages.

Still, Mr. Hickman suggests that the legislature specifically employed language relieving the disestablished father from prospective “payments” as opposed to prospective “obligations,” evidencing the intent that successful application of the statute ceases all prospective payments, including those for arrearages. We again disagree. Section 742.18 indicates the intent to relieve the disestablished father of future obligations, not previously established support, and, despite the statute’s failure to employ that specific term, courts, in dicta, have suggested as much. See Dep’t of Revenue ex rel. Donaldson v. Blocker, 988 So.2d 1292, 1293 (Fla. 2d DCA 2008) (noting “section 742.18 ... allows a male to petition the court for disestablishment of paternity or termination of child support obligations when the male is not the biological father”) (emphasis added).

AFFIRMED.

PALMER and BERGER, JJ., concur.


author: CRENSHAW, Judge. CASANUEVA, Judge,

text:
    David DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1744.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.
    Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CRENSHAW, Judge.

David Diaz challenges his judgment and sentence for trafficking in cannabis twenty-five to two thousand pounds, possession of paraphernalia, possession of a firearm by a convicted felon, and obstructing an officer without violence arising from Diaz’s role in a grow house operation. On appeal he argues, among other issues, that the trial court erred in allowing a booking report into evidence over his objection. We affirm the judgment without further comment. However, we reverse for resen-tencing in accordance with this opinion.

Diaz argues that the trial court erred in sentencing him to thirty years’ prison even though the Department of Corrections recommended a minimum mandatory sentence of three years’ prison, with a suggested maximum of ten. Specifically, he charges that the trial court considered improper factors in its sentencing determination, notably its determination that Diaz lied on the stand in stating that he did not live at the grow house, a fact contradicted by other evidence. The trial court stated that Diaz was “obviously telling a patent falsehood to the Court that’s just beyond pale” and stated “especially after this morning, he gets up and tells me the same thing and obviously he was living there the whole time.... I think the aggravating factors outweigh any mitigating factor” (emphasis added).

We agree with Diaz that a trial court cannot base a sentence on the truthfulness of the defendant’s testimony. See Smith v. State, 62 So.3d 698, 700 (Fla. 2d DCA 2011) (citing Hannum v. State, 13 So.3d 132, 136 (Fla. 2d DCA 2009)). We note also that “[t]here is no protected right to commit perjury.” Brown v. State, 27 So.3d 181, 185 (Fla. 2d DCA 2010) (Kelly, J., concurring). And a sentencing court can base its determinations on a wide range of information. Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009). That leeway, however, does not allow “ ‘a trial court to consider a defendant’s assertions of his innocence.’ ” Brown, 27 So.3d at 183 (quoting Hannum, 13 So.3d at 135). Here, the trial court’s statements indicate that it improperly considered Diaz’s truthfulness. Therefore, we remand for resen-tencing before a different judge.

Judgment affirmed, sentence vacated and remanded with directions.

LaROSE, J., Concurs.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge,

Concurring.

I fully concur with the majority opinion but write separately to discuss two eviden-tiary issues that arose during the trial. While the admission of the testimonies was, in my view, error, the error in this instance was harmless.

The initial evidentiary issue concerned the following excerpt of Officer Robbins’ testimony regarding inculpatory information received from a nontestifying witness:

ROBBINS: So for officer safety reasons, we made contact with that gentleman.
STATE: Well, that gentleman that you contacted, was [sic] his characteristics consistent with what the neighbor had told you?
ROBBINS: That is correct.
DEFENSE: Objection, Judge.
COURT: Excuse me?
DEFENSE: Calls for hearsay. Move to strike that.
STATE: That’s not hearsay.
COURT: Okay, overruled.

Section 90.801(l)(c), Florida Statutes (2010), defines hearsay as “a statement, other than one made by the declarant while testifying at trial ... offered in evidence to prove the truth of the matter asserted.” Generally, hearsay evidence is inadmissible. § 90.802.

Here, the State introduced evidence from an unknown neighbor declarant regarding the physical description of the individual observed by the neighbor. Clearly, it was being offered for the truth of the matter; that is, that Mr. Diaz matched the physical description provided by the neighbor. As such, it was hearsay.

A similar situation was presented in Roman v. State, 937 So.2d 235 (Fla. 3d DCA 2006), where the defendant was convicted of sexually battering a victim behind an Amoco station. The detective investigating the crime viewed the store’s videotape which showed the victim and her assailant at the store conversing at the counter shortly before the battery. The detective spoke to a store employee who recognized the defendant on the tape as a former employee of the store. Based on the store employee’s information and the fact the man in the videotape matched the description the victim had given him, the detective arrested the defendant. At the trial, the victim and detective testified but the store employee did not. When the detective testified that he was able to obtain the identity of the defendant after viewing the videotape and speaking to the store employee, a defense hearsay objection was overruled. Id. at 237. The Third District reasoned that “ ‘[w]here ... the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.’ ” Id. (quoting Pos-tell v. State, 398 So.2d 851, 854 (Fla. 3d DCA 1981)).

Here, as in Roman, the officer’s similar testimony about what a nontestifying witness told him constituted inadmissible hearsay, and the trial court erred in failing to sustain defense counsel’s objection.

A second mistakenly overruled defense hearsay objection occurred at trial when the State was attempting to prove Mr. Diaz’s involvement in the grow house operation. This time, the State sought to place before the jury Mr. Diaz’s street address that was listed on his booking sheet as his home address. To admit this testimony, the State offered the custodian of the record but not the testimony of the deputy who prepared the booking sheet. The records custodian testified that she did not interview Mr. Diaz, another deputy had done so. Accordingly, she did not know if the address information had been provided by Mr. Diaz or from a different source.

By using the address on the booking sheet, the State was seeking to admit the address for the truth of the matter asserted, i.e., this address was, in fact, Mr. Diaz’s home. The evidentiary situation is one often referred to as hearsay within hearsay or double hearsay. “Hearsay within hearsay is not excluded under the hearsay rule, ‘provided each part of the combined statements conforms with an exception’ to the rule.” Love v. State, 971 So.2d 280, 286 (Fla. 4th DCA 2008) (quoting § 90.805, Fla. Stat. (2006)).

To overcome a double hearsay objection, the State was first required to establish the booking report as a business record exception pursuant to section 90.803(6)(a).

“In order to lay a foundation for the admission of a business record, it is necessary to call a witness who can show that each of the foundational requirements set out in the statute is present. It is not necessary to call the person who actually prepared the document.”

Twilegar v. State, 42 So.3d 177, 199 (Fla.2010) (quoting Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So.2d 1369, 1373 (Fla. 1st DCA 1992)). Here, the record reflects that the State met this evidentiary foundation. The records custodian testified that the booking sheet was made at or near the time the event was recorded, that it was kept in the ordinary course of the sheriffs regularly conducted business activity, that it was the regular practice of the sheriffs office to make a record of the booking process, and that the deputy who completed the booking report had knowledge of the process and made the booking report from information transmitted by appropriate services. See Yisrael v. State, 993 So.2d 952 (Fla.2008); Charles W. Ehrhardt, Florida Evidence § 803.6 (2012 ed.).

It is the second hearsay exception that the State failed to satisfy. Section 90.803(18) permits the introduction of a statement “that is offered against a party and is: (a) the party’s own statement.” The deputy who filled out the booking sheet and who allegedly received this address from Mr. Diaz himself would have been competent to provide the desired testimony under section 90.803(18) had the deputy been called. But this deputy did not testify and there was no other evidence establishing that it was Mr. Diaz who made the statement. In the absence of such testimony, the State failed to carry its burden of proving the second exception to the hearsay rule, and the trial court erred in admitting the challenged testimony.

However, despite these errors, the record demonstrates that the errors individually and collectively are harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

      . We note that the State requested a sentence of thirty years' prison in part based on Diaz’s prior history as a drug trafficker.