text:
    Gerardo GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1354.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Gerardo Guzman challenges his sixty-year sentence for violation of his probation. He claims that the sentence violates the Eighth Amendment’s prohibition of cruel and unusual punishment in light of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Because we find that Graham strictly addressed actual life sentences — and not lengthy term-of-years sentences that might constitute a de facto sentence of life — we affirm Guzman’s sentence. We certify both conflict with the First District Court of Appeal and two questions to be of great public importance.

Guzman committed multiple violent crimes at the age of fourteen. Upon his open guilty plea to all charges, the trial court sentenced Guzman to, among other things, juvenile probation to be followed by adult probation for the charge of burglary of a conveyance with an assault or battery. After Guzman turned eighteen, a jury convicted him of kidnapping. The trial court imposed a life sentence for this conviction. Based upon the testimony the trial court heard regarding the kidnapping, the trial court also revoked Guzman’s probation and sentenced him to a concurrent term of life in prison.

Guzman appealed both life sentences. This court affirmed the life sentence for the kidnapping conviction, but reversed the life sentence for the violation of probation because Guzman had committed the original underlying offense, burglary, when he was a minor. See Guzman v. State, 68 So.3d 295 (Fla. 4th DCA 2011). We found that, based on Graham, the trial court could not impose a life sentence for a minor who committed a non-homicide offense. Id. at 297-98. We remanded the case to the trial court to craft a non-life imprisonment sentence as to Guzman’s violation of probation that comported with the holding in Graham. Id. at 298.

Upon remand, the trial court sentenced Guzman to sixty years for the violation of probation. Guzman now appeals this sentence, claiming that it amounts to a de facto life sentence and thus violates the precepts of Graham. Because we believe that the express holding of Graham established a bright-line and all-encompassing prohibition on actual life sentences without the possibility of parole for non-homicide juvenile offenses, we hold that Guzman’s sixty-year sentence was not unconstitutional under the Eighth Amendment.

We review the constitutionality of this sentence de novo. See id. at 297.

In Graham, the United States Supreme Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham, 130 S.Ct. at 2034. As we previously held in Guzman’s last appeal, Graham controls the sentence for violation of probation because he committed the underlying crime, burglary, when he was fourteen.

Guzman argues that his sixty-year sentence constitutes a de facto life sentence and is therefore cruel and unusual punishment as understood in Graham. We begin our analysis by observing the simple fact that the Court in Graham did not address the concept of a de facto life sentence. Instead, “Graham fashioned a bright line rule prohibiting the imposition of [an actual] life sentence without parole on a person who commits an offense, other than a homicide, while under the age of eighteen.” Guzman, 68 So.3d at 298.

The Fifth District has addressed the difficulties inherent in the concept of a de facto life sentence:

If we conclude that Graham does not apply to aggregate term-of-years sentences, our path is clear. If, on the other hand, under the notion that a term-of-years sentence can be a de facto life sentence that violates the limitations of the Eighth Amendment, Graham offers no direction whatsoever. At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is “life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written. If the Supreme Court has more in mind, it will have to say what that is.

Henry v. State, 82 So.3d 1084, 1089 (Fla. 5th DCA 2012) (footnotes omitted); see also Mediate v. State, 108 So.3d 703 (Fla. 5th DCA 2013). In Henry, the Fifth District interpreted Graham as only applying to actual life sentences without parole, and not to term-of-years sentences, regardless of the length, and affirmed the defendant’s ninety-year sentence. Henry, 82 So.3d at 1089; see also Walle v. State, 99 So.3d 967, 973 (Fla. 2d DCA 2012) (affirming a ninety-two-year sentence, reasoning “[l]ike the Fifth District in Henry, we conclude that we must apply Graham as written ... ”).

The First District has taken different approaches. In Thomas v. State, 78 So.3d 644, 646-47 (Fla. 1st DCA 2011), the court held that “at some point, a term-of-years sentence may become the functional equivalent of a life sentence” but affirmed the defendant’s fifty-year sentence. See also Gridine v. State, 89 So.3d 909, 911 (Fla. 1st DCA 2011) (repeating that a term-of-years sentence may become a de facto life sentence but holding that the seventy-year sentence did not reach that point). In Floyd v. State, 87 So.3d 45, 46 (Fla. 1st DCA 2012), the First District reversed an eighty-year sentence, finding it to be the functional equivalent of a life sentence without parole. Two months later, however, the First District affirmed an eighty-year sentence under Graham. Smith v. State, 93 So.3d 371, 374-75 (Fla. 1st DCA 2012). Finally and most recently, in Adams v. State, — So.3d — (Fla. 1st DCA 2012), the First District reluctantly reversed the defendant’s sixty-year sentence and in doing so certified conflict with the Fifth District’s Henry decision and also certified two questions to the Florida Supreme Court regarding the application of Graham to a term-of-years sentence.

We agree with the Fifth District’s Henry and the Second District’s Walle decisions. While we understand the temptation to acknowledge that certain term-of-years sentences might constitute “de fac-to” life sentences, we are compelled to apply Graham as it is expressly worded, which applies only to actual life sentences without parole. Without further guidance from our supreme court or the United States Supreme Court, it is logistically impossible to determine what might or might not constitute a de facto life sentence— assuming such a concept is to be considered in the first instance. We should not burden our trial courts by directing them to function as actuaries in determining each individual defendant’s particularized life expectancy and thereupon craft a sentence which does not run afoul of Graham.

Until such time as we receive further instruction, the only reasonable path is to abide by the plain wording of Graham and find that it does not apply to a term-of-years sentence.

Accordingly, we affirm Guzman’s sentence. We certify conflict with Adams, Smith, Floyd, Gridine, and Thomas. Further, we certify the following questions to the Florida Supreme Court:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affirmed; conflict certified; questions certified.

WARNER and LEVINE, JJ., concur.

      . We are aware that the sentences in Henry and Watte involved aggregate sentences, i.e., consecutive sentences, but we find no rationale why their reasoning should not apply to a single, term-of-years sentence as well.

      . In Graham, the Court ultimately held that for non-homicide offenses, juveniles cannot receive a life sentence without "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 130 S.Ct. at 2030. Because Florida has abolished parole, every life sentence for a juvenile non-homicide offense prohibits an early release and is therefore violative of the holding in Graham.

      . The First District certified these questions in Adams, and we find no basis to improve upon the wording.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Amy Worden ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1496.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Carey Haughwout, Public Defender, and Ian Seldin, 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. McCloud, 577 So.2d 939 (Fla.1991).

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    Albert C. ECKARDT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3594.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Rehearing Denied April 26, 2013.
    Albert C. Eckardt, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

The court has reviewed the initial brief and the record filed in this case. Finding there is no preliminary basis for reversal, we summarily affirm. See Fla. R.App. P. 9.315(a).

GROSS, GERBER and CONNER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Summer ALLEN, Appellee.
    No. 4D11-4389.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellee Summer Allen was stopped pursuant to section 316.3045(1)(a), Florida Statutes (2010), which made it unlawful for a person operating a motor vehicle to operate the radio loud enough to be plainly audible twenty-five feet or more from the motor vehicle. She was subsequently searched and charged with driving while license suspended and possession of Al-prazolam. After her arrest, the statute authorizing the stop was declared unconstitutional by State v. Catalano, 60 So.3d 1139 (Fla. 2d DCA 2011), aff'd, 104 So.3d 1069 (Fla.2012). As a result, Allen filed a motion to suppress, arguing the officer did not have reasonable suspicion for the stop of her vehicle. The lower court granted Allen’s motion to suppress and the State appeals. We reverse because the officer operated on a good faith basis that the statute was constitutional at the time of the stop. State v. Lockett, 101 So.3d 1275, 1276 (Fla. 4th DCA 2012) (concluding that, “before the decision in Catalano, a reasonable police officer would not have known that the noise statute was unconstitutional”). We remand for further consideration of Allen’s motion to suppress. See id.

Reversed and remanded.

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


text:
    Luis E. MORA, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-4191.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, and Russell J. Williams of the Law Firm of Russell J. Williams, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Luis Mora petitions for a writ of prohibition seeking review of the denial of his motion to dismiss and to prevent his continued prosecution. Mora argues that the prosecution was not commenced within the statute of limitations because the State failed to execute process without unreasonable delay. We agree and grant the petition.

On July 22, 2008, Mora was arrested for three misdemeanor counts of contracting without a license. § 489.127(2)(a), Fla. Stat. (2008). On September 11, 2008, the State filed a single third-degree felony charge, which alleged that Mora had previously been convicted for the same offense. § 489.127(2)(b), Fla. Stat. (2008). A capias issued for the new charge, but the notice was sent to the wrong address. The capi-as was not served until December 10, 2011.

Mora moved to dismiss the information. He argued that prosecution was not commenced within the three-year statute of limitations for this third-degree felony. See § 775.15(2)(b), Fla. Stat. (2008) (providing that a prosecution for a third-degree felony must be commenced within three years after it is committed). The trial court held an evidentiary hearing and denied the motion concluding that Mora had previously been arrested. The court explained that the misdemeanor charge had identical elements to the offense charged in the information and that the only change was an elevation in the penalty. This petition follows.

“A petition for writ of prohibition is a proper remedy to prevent a prosecution that is barred by expiration of the statute of limitations.” Beyer v. State, 76 So.3d 1132, 1134 (Fla. 4th DCA 2012).

Section 775.15(4), Florida Statutes, provides:

(4)(a) Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.
(b) A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capi-as, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

After conducting the evidentiary hearing, the trial court concluded that authorities failed to conduct a diligent search. Mora was living in Broward County the entire time and was involved in civil litigation with the same victim that is the subject of the unlicensed contracting charge. As noted by the court, “[t]he defendant would have been easy to locate if the victim was contacted or civil case records were checked in the clerk’s office.” Nevertheless, the court found that prosecution was timely commenced because paragraph (a) of the statute applied as Mora had previously been arrested .for the misdemeanor unlicensed contracting charge.

Petitioner correctly argues that the felony unlicensed contracting charge is a different crime. In Cicilian v. State, 945 So.2d 654 (Fla. 4th DCA 2007), we granted a petition for writ of prohibition under extremely similar circumstances. We concluded that the felony DUI charge at issue in that case was a different crime and distinct from misdemeanor DUI. Id. at 655. Analogously, in this case, the felony unlicensed contracting offense requires proof of an element that the misdemeanor does not; that is, the existence of a prior conviction. See id. (citing State v. Woodruff, 676 So.2d 975, 977 (Fla.1996)).

The prosecution was not timely commenced in this case. Petitioner’s motion to dismiss the information should have been granted.

Petition granted.

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

      . The record before this court does not reveal the date the offense was allegedly committed as the charging document does not specify a date.


author: MAY, C.J.

text:
    Timothy EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3389.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Carey Haughwout, Public Defender, and Narine N. Austin, 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.
   MAY, C.J.

The defendant appeals his judgment and sentence for trafficking in oxycodone and possession of marijuana less than 20 grams. He argues the court erred in denying his motion for judgment of acquittal on the marijuana charge. We agree and reverse on that charge only.

Due to an ongoing investigation, law enforcement was watching a house where the defendant was seen exiting. A couple of weeks before the transaction giving rise to his arrest, an undercover detective met the defendant as he emerged from the house under surveillance. Subsequently, the detective called the defendant’s cell phone and set up a meeting to purchase forty-five oxycodone pills. The detective drove to the house where they first met. The detective called the defendant to let him know she was outside. The defendant exited the house, got into the passenger side of the detective’s car, and exchanged forty-five oxycodone pills for the agreed upon sum of $675.

Another agent watched the transaction from an undercover vehicle. When the transaction concluded, the defendant attempted to leave in his vehicle. Law enforcement took him into custody. When law enforcement searched the defendant, they found the $675 used to purchase the pills along with an additional $430, deejay business cards, a wallet, and a set of keys to the house.

When law enforcement searched the residence pursuant to a warrant, they found a turntable, a blue pill bottle, and a burnt marijuana cigarette in the living room. In one bedroom on a dresser, they found loose marijuana and a picture of the defendant. Only male clothing was found in that bedroom.

The State charged the defendant with trafficking in oxycodone and possession of marijuana less than 20 grams. At trial, the defense moved for judgment of acquittal, arguing there was insufficient evidence linking the defendant to the house and the bedroom where the marijuana'was found. The trial court denied the motion.

The defense called the defendant’s cousin, who testified that she lived at the residence but the defendant did not. The house was owned by the defendant’s sister, and the defendant collected rent. The defendant’s girlfriend testified that the defendant lived with her in another city and had been living there for a year at the time of his arrest.

The jury found the defendant guilty of trafficking in oxycodone in an amount between 4 and 14 grams and possession of marijuana less than 20 grams. The trial court sentenced the defendant to 65.4 months with a three-year mandatory minimum. From his conviction and sentence, the defendant appeals.

The defendant argues the trial court erred in denying his motion for judgment of acquittal on the possession of marijuana charge because there was insufficient evidence to prove he had dominion and control of the house and the marijuana found inside. The State responds that there was sufficient evidence to prove the defendant lived in the house, and that the marijuana was found in his bedroom. We have de novo review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

“ ‘By the motion [for judgment of acquittal], a defendant admits all facts introduced into evidence and the court must draw every inference favorable to the prosecution.’ ” Corpuz v. State, 733 So.2d 1048, 1049 (Fla. 4th DCA 1999) (quoting Pressley v. State, 395 So.2d 1175, 1177 (Fla. 3d DCA 1981)). “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

The defense to the marijuana count was that the defendant did not have dominion and control of the house or the marijuana. Because the defendant was not in actual possession of the marijuana, the State had to prove constructive possession. See Sundin v. State, 27 So.3d 675, 676-77 (Fla. 2d DCA 2009). We agree with the defendant that the State failed in its burden of proof on the marijuana charge.

The State established the defendant emerged from the house on two occasions. The defendant told law enforcement that he stayed at the house sometimes. He possessed a set of keys to the house and business cards that matched other business cards found in the house. His picture was found next to the marijuana in a room where only male clothing was found.

All of these facts are consistent with the defendant’s hypothesis of innocence. They do not rebut the defendant’s hypothesis of innocence: he had keys to, and was seen in, the house because he collected rent from the tenants. See, e.g., Bennett v. State, 46 So.3d 1181, 1184 (Fla. 2d DCA 2010); Mounds v. State, 778 So.2d 514, 515-16 (Fla. 4th DCA 2001). Here, the State offered no evidence that the defendant lived at the house, none of the defendant’s personal items were found in the house, and only a photograph of the defendant linked him to the bedroom.

We therefore reverse the conviction and sentence on the marijuana charge, but affirm the trafficking conviction and sentence.

Affirmed in part; and reversed in part.

TAYLOR and CONNER, JJ., concur.

      . The defendant also argues that section 893.13 is unconstitutional. That issue has been resolved adversely to the defendant. See State v. Adkins, 96 So.3d 412, 422 (Fla.2012) (holding that section 893.13 is not facially unconstitutional).


text:
    Michael A. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-312.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Carey Haughwout, Public Defender, and Patrick B. Burke, 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, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Rodolfo CARRILLO-JIMENEZ, Petitioner, v. Celina CARRILLO, Respondent.
    No. 4D12-4512.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Michael D. Cirullo, Jr. and Felippe Mon-carz of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, and Jason A. Bro-die and Joshua K. Friedman of Brodie & Friedman, P.A., Boca Raton, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Petitioner, Rodolfo Carrillo-Jimenez, petitioned this court to issue a writ of certio-rari, Fla. R.App. P. 9.030(b)(3), quashing a trial court order denying his amended motion to strike a social investigation report prepared in the dissolution of marriage proceedings below. See § 61.20(1), Fla. Stat. (2010). He alleges that in preparation of this report, confidential communications between his children and their psychotherapist were improperly disclosed by the psychotherapist to the report’s author without the consent of the minor children, for whom no guardian ad litem was appointed by the trial court, in violation of section 90.503, Florida Statutes (2010). Petitioner claims irreparable harm in the trial court’s future consideration of the report’s contents, including the privileged information which would disadvantage him in the proceedings.

We deny the petition based on Hughes v. Schatzberg, 872 So.2d 996, 997-98 (Fla. 4th DCA 2004), where we held that a parent lacked standing to assert the statutory privilege found in section 90.503 on behalf of his or her minor child, where the parent is involved in litigation seeking to pursue his or her own interests, and the child is not a party to the underlying action. As petitioner seeks to strike the social investigation report due to his perception that the confidential information placed in the report by its author is to his disadvantage in the ongoing custody aspect of this dissolution proceeding, he falls squarely within the rationale for the holding in Hughes. Accordingly, we deny the petition for writ of certiorari in this case.

Petition denied.

WARNER, STEVENSON and CIKLIN, JJ., concur.


text:
    Douglas J. BLASS, Appellant, v. ILINI ASSOCIATION, INC., a Florida Corporation, Appellee.
    No. 4D11-4641.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Rosemary Wilder of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. See § 718.112(2)(f), Fla. Stat. (1977).

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


text:
    Robert DESA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4755.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Robert Desa, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In what amounts to an appeal from an order denying relief under Florida Rule of Criminal Procedure 3.800, we remand to the sentencing court to allow the trial judge to add language to the written sentences reflecting his oral pronouncement at sentencing to run the sentences concurrently with sentences being served on cases that arose in Broward County.

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


text:
    Miguel BONILLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2651.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Miguel Bonilla, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

Miguel Bonilla appeals the denial of his motion seeking additional jail time credit, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Bonilla sought credit against his prison sentence for time he spent in jail in Georgia before being transported to Florida to face charges in the instant case. The denial was based on a state response that his documentation did not suffice to show that he was being held in Georgia in connection with the instant case, and also that he had waived additional credit by agreeing, in the course of his plea colloquy, to the number of days the court awarded, 1035 days. The state also attached a copy of the plea agreement, signed by the state, defense counsel, and Bonilla, which provided for 1035 days of jail time credit, not the 1160 he now sought.

Challenges to plea agreement provisions concerning credit for time served are not cognizable in rule 3.800(a) motions because they present factual questions that cannot be resolved on the basis of trial court records. Johnson v. State, 60 So.3d 1045 (Fla.2011). Furthermore, regardless of the sufficiency of the documentation and regardless of whether the colloquy sufficed to constitute a waiver, a claim that a defendant is entitled to out-of-state jail credit is not cognizable in a rule 3.800(a) motion; such a claim must be raised either on direct appeal or in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Gomez v. State, 984 So.2d 577 (Fla. 4th DCA 2008); West v. State, 22 So.3d 797 (Fla. 1st DCA 2009); Sambolin v. State, 2 So.3d 1097 (Fla. 5th DCA 2009); Garnett v. State, 957 So.2d 32 (Fla. 2d DCA 2007) (en banc).

However, even by the time Bonilla filed his prior motion raising this same claim, the time to file a motion pursuant to rule 3.850 already had expired. Thus, this claim cannot now be raised.

Affirmed.

CIKLIN, GERBER and CONNER, JJ., concur.


text:
    Smith MICHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3479.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d — (Fla.2012).

STEVENSON, TAYLOR and DAMOORGIAN, JJ., concur.


author: POLEN, J.

text:
    M.A.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4603.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

The juvenile, M.A.L., appeals her adjudication of delinquency and commitment to a moderate risk residential program after the trial court found her guilty of violating her probation. The juvenile argues that the court erred in three respects: (1) conducting the disposition hearing at a sidebar conference outside of her and her father’s presence, thereby denying them the opportunity to be heard on this issue of disposition; (2) finding she violated a condition of her probation by using drugs based solely on hearsay testimony; and (3) failing to enter a written order specifying the conditions of probation that she was found to have violated. We agree with the juvenile on all three respects, and each issue will be addressed in turn. We reverse and remand for further proceedings.

Background

The juvenile, who was sixteen at the time, was charged as a principal with the fraudulent use of a credit card exceeding $100. She pled no contest to the charge, and the court withheld adjudication while imposing probation. Special conditions of her probation included community service, restitution, and counseling. Meanwhile, relevant mandatory conditions required her to attend school every day with no suspensions, live with a parent or guardian, abstain from alcohol and controlled substances, and comply with all laws.

Ten months later, the State filed an Affidavit/Petition for Violation of Probation (VOP), alleging that the juvenile: (1) committed the offense of “Fleeing or Eluding the Police and Stolen Property” in Michigan; (2) failed to live at home for a week, and associated with anti-social peers; (3) had multiple unexcused absences from school; and (4) tested positive for marijuana in April 2011, and refused to submit to a drug test the following month.

The trial court ordered a predisposition report (PDR) prepared and returnable to the parties. The Department of Juvenile Justice (DJJ) referred the juvenile for a comprehensive evaluation and prepared the PDR one month before the probation revocation hearing. A doctor completed the comprehensive evaluation in October 2011, at which time the juvenile had admitted using marijuana since the age of fifteen with her last use about a month prior. She tested positive for the drug in April 2011 and July 2011, and refused to be tested in May 2011. The DJJ concluded the juvenile had willfully committed the offenses and that her prior counseling had little impact on her behavior. The DJJ also concluded that she appeared to be a risk to public safety and required structure to address this issue. Finally, the DJJ recommended a commitment to a level 6 moderate risk residential program followed by conditional release.

Probation Revocation Hearing

At the November 2011 hearing, the State proceeded only on the technical violations against the juvenile as alleged in counts two, three, and four. The juvenile’s probation officer testified that probation began November 30, 2010, at which time the conditions of probation were read to the juvenile. The State then presented sufficient evidence upon which the trial court found that the juvenile had violated her probation as to counts two and three.

As to count four, over defense counsel’s hearsay objection, the probation officer testified that the juvenile tested positive for marijuana. This test was administered in April 2011 by a staff member of the Starting Place, a program which the juvenile had been assigned. A Starting Place therapist informed the probation officer of this positive test and that the juvenile refused to submit to a follow-up test in May 2011. The probation officer spoke with the juvenile, but did not testify to what, if anything, the juvenile said about these drug use allegations. The probation officer also received a urinalysis from the Starting Place, but did not testify whether or not it showed a positive result. The State did not introduce this urinalysis into evidence. The probation officer agreed the only way she knew about the refusal was from the Starting Place therapist.

The trial court noted that the juvenile had completed some of her probation requirements. However, the court revoked probation stating:

The bottom line is between hearsay and direct testimony, I find that this child has substantially violated her probation by not staying home, disappearing for a week, leaving the state, not going to school, and not being drug free.

The court did not enter a subsequent written order specifying the conditions of probation that were violated.

Disposition

After finding the violations of probation, the trial court stated, “Now that being said, I’m reading the PDR. May I have the attorneys up here please.” During a lengthy sidebar, outside of the presence of the child and her father, the court then discussed the PDR and the recommended disposition with the attorneys along with a DJJ representative. The court did not utilize the microphone and thus, the parties could not be heard.

Immediately upon conclusion of the sidebar, the trial court called the juvenile and her father to come up. Without soliciting their comments on the proposed disposition, the court announced the probation revocation, the adjudication, and the commitment to a level 6 moderate risk residential program followed by conditional release in accordance with the DJJ’s recommendation. The court further ordered secure detention for five days pending release to the program. No post-disposition motions were filed.

Analysis

In her first issue on appeal, the juvenile argues that the trial court fundamentally erred when it conducted the disposition hearing at sidebar outside of the presence of her and her father. She claims that this sidebar conference violated her due process rights to be present and meaningfully heard prior to the disposition. The State responds that this issue was not preserved for review because no contemporaneous objection was made during the disposition hearing nor was any post-commitment motion filed afterward. Nevertheless, the State argues that any error was harmless. We agree with the juvenile because the trial court’s failure to give her and her father an opportunity to comment on the issue of disposition prior to its determination in accordance with section 985.433(4), Florida Statutes (2011), constituted fundamental error.

We review an unpreserved error in sentencing de novo. Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (citing Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010)).

First, contrary to the State’s assertion that this issue is precluded from our review, the alleged error concerns the process through which the trial court determined the disposition and thus, a post-commitment motion under Florida Rule of Juvenile Procedure 8.135(b)(2) was not necessary. See Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010) (noting that although a defendant challenging a sentencing error must generally file a motion under the rule governing correction of a sentencing error in order to raise fundamental error on appeal, if the error is not an error in the sentencing order, but rather an error in the sentencing process, the rule does not apply). Hence, we may review the disposition issue here for fundamental error because it involves a denial of due process. See Josephs, 86 So.3d at 1272 (holding we could review for fundamental error defendant’s unpreserved claim that the trial court relied on improper factors at sentencing).

Section 985.433(4), Florida Statutes (2011), which governs dispositional hearings in delinquency proceedings, requires that before a court determines and announces a disposition, it shall:

(a) State clearly, using common terminology, the purpose of the hearing and the right of persons present as parties to comment at the appropriate time on the issues before the court.
(b) Discuss with the child his or her compliance with any home release plan or other plan imposed since the date of the offense.
(c) Discuss with the child his or her feelings about the offense committed, the harm caused to the victim or others, and what penalty he or she should be required to pay for such transgression.
(d) Give all parties ... involved in the case who are present at the hearing an opportunity to comment on the issue of disposition and any proposed rehabilitative plan. Parties to the case shall include the parents, legal custodians, or guardians of the child; the child’s counsel; the state attorney; and representatives of the department.

§ 985.433(4), Fla. Stat. (2011)(emphasis added).

Additionally, “|l]ike criminal defendants, juveniles have a constitutional right to be present at all critical stages of the proceedings.” J.R. v. State, 953 So.2d 690, 691 (Fla. 1st DCA 2007); see also R.R. v. Portesy, 629 So.2d 1059, 1062 (Fla. 1st DCA 1994) (holding that Florida Rule of Juvenile Procedure 8.100(a) means that the accused child is required to be physically present at all hearings held under the juvenile rules, except when there has been a waiver of the right to be present made personally by the juvenile — not by the juvenile’s counsel — or the court makes specific findings regarding the child’s physical or mental condition that precludes physical presence).

Here, upon conclusion of the sidebar where the disposition was discussed with counsel and a DJJ representative outside of the juvenile’s presence, the trial court immediately called the juvenile and her father to come forward. Without soliciting their comments on the issue, the court determined and announced the disposition. Therefore, because the juvenile did not personally waive her right to be present or heard during these discussions, the trial court’s failure to give the juvenile and her father an opportunity to comment on the issue of disposition prior to its determination constituted fundamental error. See § 985.433(4), Fla. Stat. (2011); see also B.R. v. State, 902 So.2d 333, 335 (Fla. 5th DCA 2005) (holding that trial court’s refusal to allow juvenile’s mother to speak at disposition hearing was reversible error); A.P. v. State, 666 So.2d 211 (Fla. 2d DCA 1995) (holding that the trial court’s refusal to allow juvenile or juvenile’s parents to address the court at disposition was reversible error).

We now move on to address the second issue. The juvenile next argues that the trial court erred in finding that she violated her probation by using drugs, claiming that the only evidence supporting this allegation was the probation officer’s hearsay testimony, which merely related what a representative from the testing agency had said. The State responds that the trial court did not err in deciding the issue, arguing that the juvenile’s own admission of recent marijuana use to the DJJ — documented in the PDR — was an admissible exception to the hearsay rule, which supported the otherwise inadmissible hearsay evidence. See § 90.803(18)(a), Fla. Stat. (2011) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party’s own statement in either an individual or a representative capacity”). We agree with the juvenile because the trial court’s finding that she violated her probation by using drugs was based solely on evidence consisting of the inadmissible hearsay testimony of her probation officer.

“To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.” Shep ard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006). We review a trial court’s decision on violations of probation for an abuse of discretion. Ubiles v. State, 23 So.3d 1288, 1290-91 (Fla. 4th DCA 2010).

While hearsay that is normally inadmissible in a criminal trial may be admitted in VOP proceedings, it may not constitute the sole basis for finding a violation of probation. Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998). Such hearsay evidence may be used when combined with admissible evidence — such as evidence which is an exception to the hearsay rule — to establish the violation. Id. However, that admissible evidence must actually be admitted into evidence in the proceedings. M.M. v. State, 839 So.2d 881, 882 (Fla. 4th DCA 2003).

Here, the statement contained in the PDR, wherein the juvenile allegedly admitted that she had recently used marijuana while on probation, was never admitted into evidence either through the relevant DJJ representative or through the PDR itself during the hearing. Thus, the trial court’s finding that she violated her probation by using drugs was based solely on evidence consisting of the inadmissible hearsay testimony of her probation officer. See Sagner v. State, 776 So.2d 1088 (Fla. 4th DCA 2001) (revocation of probation cannot stand on hearsay evidence alone). The State failed to introduce any admissible evidence to support a finding that the juvenile failed to remain drug free while on probation and therefore, the trial court’s finding that she violated her probation on this count was an abuse of discretion.

Although the record contained sufficient evidence upon which the trial court found that the juvenile violated her probation on two other counts “by not staying home, disappearing for a week, leaving the state, [and] not going to school,” remand is appropriate for the trial court to reconsider the revocation matter and placement. See J.B. v. State, 84 So.3d 401, 402 (Fla. 4th DCA 2012) (holding that trial court’s finding that defendant violated a condition of probation was improperly based solely on hearsay evidence and remanding for the trial court to reconsider whether it would have imposed the same sentence if faced with only the remaining, supported violation); Davis v. State, 33 So.3d 747, 748-49 (Fla. 4th DCA 2010) (holding that the evidence was insufficient to establish defendant violated one of the terms of his probation and remanding for the trial court to reconsider whether it would have still revoked his probation and imposed the same penalty based on the remaining violation).

Finally, in her last issue on appeal, the juvenile argues that due process requires the entry of a formal, written statement of the specific conditions of her probation that the trial court found she violated. We agree.

“If a trial court revokes a defendant’s probation, the court is required to render a written order noting the specific conditions of probation that were violated.” Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (quoting King v. State, 46 So.3d 1171, 1172 (Fla. 4th DCA 2010)). “If a formal, written order does not exist, it is appropriate to remand for entry of a proper order....” Id. (citation omitted).

Here, although the record is clear as to which conditions the court found the juvenile to have violated, we have likewise made clear that there are no exceptions to this written order rule. See A.T.J.F. v. State, 78 So.3d 57 (Fla. 4th DCA 2012) (stating, “the record contains only disposition orders, so we remand to the trial court for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated”).

For the forgoing reasons, we hold that the trial court’s failure to give the juvenile and her father an opportunity to comment on the issue of disposition prior to its determination constituted fundamental error. We reverse the trial court’s finding that the juvenile violated a condition of her probation by using drugs. Accordingly, we remand for the trial court to reconsider whether it would have imposed the same disposition if faced only with the remaining two supported violations. Additionally, the court shall enter a written order of revocation of probation specifying the conditions the juvenile was found to have violated.

Reversed and remanded for proceedings consistent with this opinion.

CONNER, J., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.

      . We do not construe rule 8.100(a) to preclude the trial court from discussing certain matters at sidebar with the child's attorney present, but out of the hearing of the child. Although juvenile disposition hearings should for the most part be conducted in the same fashion as adult sentencing hearings, there are times when dealing with children that sensitive things need to be discussed about the child which may be emotionally damaging for a child to hear in a public forum. Juvenile judges need to be fully informed about circumstances relating to the child, and there may be family dynamics or concerns that are simply inappropriate to discuss with or in front of a child.


author: GERBER, J. CONNER, J.,

text:
    Javier NAVARRO, Appellant, v. Juan CASTRO, Jr., Appellee.
    No. 4D11-4809.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.
    Brian Yosef of Isrief, Ponzoli, Keller & Simpson, P.A., Miami, for appellant.
    John H. Reynolds of Reynolds & Reynolds, P.L., West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from the circuit court’s denial of his motion to set aside the court’s final order of dismissal with prejudice after a settlement. The defendant argues the court erred in finding that it did not have jurisdiction to consider the motion. We agree with the defendant and reverse. We remand for the court to set an evidentiary hearing on the motion.

The parties entered into a stock purchase agreement in which the plaintiff agreed to sell his shares of a business to the defendant. The defendant executed a promissory note in which he agreed to pay for the shares in installments. The plaintiff later filed a complaint against the defendant for breach of the note. The defendant responded with a counterclaim against the plaintiff for breach of the stock purchase agreement.

The parties settled the case. They sent the circuit court a proposed final order of dismissal with prejudice. The proposed dismissal order directed an insurance company to pay insurance proceeds to the plaintiff as part of the settlement. The court entered the dismissal order.

Shortly after the court entered the dismissal order, the defendant filed a motion to set aside the order. In the motion, the defendant argued that the parties submitted the order under a mutual mistake. According to the defendant:

The crux of the Settlement Agreement between the parties was that the [plaintiff] was to receive the value of [an] ... insurance policy in the amount of $250,000. However, the true value of the ... insurance policy is $300,000. It was always the parties’ belief that the [plaintiff] would only receive $250,000 from the ... insurance policy. If the Court does not intervene^ the plaintiff] will unjustly receive a windfall at the expense of the [defendant].

The defendant set the motion for hearing on the court’s non-evidentiary motion calendar. At the hearing, the defendant’s counsel advised the court that he set the motion for hearing on the court’s non-evidentiary motion calendar in an abundance of caution and was “asking for an evidentiary hearing.” The plaintiffs counsel argued that the court did not have jurisdiction to consider the motion because the motion sought to set aside a final order of dismissal with prejudice. In support, the plaintiffs counsel cited Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978). The court agreed with the plaintiffs counsel’s argument and denied the motion.

This appeal followed. The defendant argues the court erred in denying the motion on the basis that it did not have jurisdiction to consider the motion.

We agree with the defendant’s argument. On its face, rule 1.540(b) gives a court jurisdiction to consider a motion to set aside a final order of dismissal on the ground of alleged mistake. See Fla. R. Civ. P. 1.540(b) (2011) (“On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, decree, order, or proceeding for the following reasons: ... mistake_”). The fact that the defendant stipulated to the entry of the final order of dismissal is not relevant to the initial question of jurisdiction. Cf. Wells Fargo Bank, NA v. Haecherl, 56 So.3d 892, 894-95 (Fla. 4th DCA 2011) (circuit court had jurisdiction under rule 1.540(b) to consider the plaintiffs motion to vacate its mistakenly-filed notice of voluntary dismissal with prejudice, even though the filing of the notice deprived the circuit court of jurisdiction for all other purposes); Shampaine Indus., Inc. v. S. Broward Hosp. Dist., 411 So.2d 364, 368 (Fla. 4th DCA 1982) (“[W]e believe that Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out in the Rule.”).

The plaintiffs reliance on Randle-Eastern was misplaced. In Randle-Eastern, our supreme court held that “a voluntary dismissal ... divests the trial court of jurisdiction to relieve the plaintiff of the dismissal.” 360 So.2d at 69. However, in Miller v. Fortune Insurance Co., 484 So.2d 1221 (Fla.1986), the court clarified that the “only point for determination ... in Ran-dle was whether a judgmental mistake by a lawyer permitted relief provided for by rule 1.540(b).” Id. at 1223. The court then agreed with our statement in Shampaine “that Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule.” Miller, 484 So.2d at 1224 (quoting Shampaine, 411 So.2d at 368) (emphasis added).

Here, the face of the defendant’s motion alleges he is seeking to set aside the dismissal order not on the ground of a judgmental mistake, but rather on an alleged non-judgmental mistake, that is, the true value of the insurance policy to be paid as part of the settlement. Thus, because the defendant’s motion pled the existence of a ground set out under rule 1.540(b), the circuit court had jurisdiction to consider the motion and should have set an eviden-tiary hearing on the motion. See River Bridge Corp. v. Am. Somax Ventures, 76 So.3d 986, 989 (Fla. 4th DCA 2011) (“Generally, an evidentiary hearing is required on a motion for relief, unless the allegations do not state a colorable entitlement to relief.”) (citation omitted). Discovery is permissible before the hearing. See Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996) (“If the allegations in the moving party’s motion for relief from judgment raise a colorable entitlement to ... relief, a formal eviden-tiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”) (citation and quotations omitted).

The dissent concludes on the merits that the alleged mistake was judgmental in nature based on the type of policy at issue. However, we believe it is premature to reach a conclusion on the merits without affording the parties an opportunity to present their arguments at an evidentiary hearing. We take no position on the merits as to whether the alleged mistake was judgmental or non-judgmental.

Reversed and remanded for proceedings consistent with this opinion,

STEVENSON, J., concurs.

CONNER, J., dissents with opinion.

CONNER, J.,

dissenting.

I respectfully dissent from the majority’s opinion in two respects. First, the mistake at issue was judgmental in nature, and as the majority points out, Florida Rule of Civil Procedure 1.540(b)(1) does not grant relief for judgmental or tactical mistakes made by the moving counsel. Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986) (“The true rationale in Randle[-Eastern Ambulance Service, Inc. v. Vasta] ... was that judgmental error by the plaintiff is not the kind of mistake, inadvertence, or excusable neglect contemplated by rule 1.540(b).”). Second, appellant’s motion did not state a colorable claim for relief. See Schuman v. Int’l Consumer Corp., 50 So.3d 75, 77 (Fla. 4th DCA 2010) (a rule 1.540(b) motion “should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege colorable entitlement to relief’); Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996) (in order to warrant an evidentiary hearing under rule 1.540(b)(3) [fraud], motion must specify the essential facts and not merely assert legal conclusions).

The majority does not discuss what I think is an essential fact: the policy at issue was a key-man life insurance policy. It is common knowledge that life insurance policies are purchased as financial investments and different policies offer different benefits. The life insurance policy at issue in this case allows for accruals in addition to the face amount of the policy. If the parties or their attorneys had examined the language of the policy itself, it is likely the accrual of an additional benefit payment would have been known. Therefore, a failure of the attorney to determine the true value of the policy before advising a client to accept a settlement provision involving the ownership of a life insurance policy is a judgmental error, and relief for such an error cannot be granted pursuant to Rule 1.540(b)(1).

Another fact not mentioned in the majority opinion is that the settlement agreement involved other individuals who were not named in the lawsuit, and it was a global settlement agreement involving issues other than those raised in the pleadings. In such a context, it is all the more important for counsel to investigate the true nature and value of assets being distributed as part of a settlement agreement before advising the client to sign a settlement agreement.

The reality is that either the plaintiff knew the true value of the life insurance policy before entering into the settlement agreement or he did not. If he knew the true value of the policy, there was no mutual mistake. If he did not know the true value of the policy, it again strikes me that both sides made judgmental errors in negotiating the settlement.

In addition, the motion for rule 1.540(b) relief is premised on mutual mistake, not fraud, misrepresentation or other conduct of an adverse party. A motion for relief from judgment based upon mistake must state the specific facts associated with the grounds for relief. Taylor v. Jones, 760 So.2d 975, 976 (Fla. 3d DCA 2000). Here, the motion falls short: it merely stated in a conclusory fashion that “[i]t was always the parties’ belief that the [plaintiff] would only receive $250,000 from the life insurance policy.” No essential facts are alleged in the motion to show the plaintiffs belief as to the value of the policy at the time the parties negotiated or entered into the settlement. Thus, the motion does not state a colorable claim for relief under rule 1.540(b)(1).

      . By this opinion, we do not mean to suggest that a party may seek to set aside a final order of dismissal after a settlement simply by expressing "buyer's remorse” about the settlement’s value. We expressly limit this opinion’s scope to the fact that the settlement in this case involved the contemplated exact value of an insurance policy. Whether the defendant can prove mutual mistake as to the policy’s true value at the time of the settlement remains to be determined at the eviden-tiary hearing.

      . It is not uncommon for life insurance policies to provide for diminishing benefits after the insured reaches a certain age, so it would be just as much a judgmental error to fail to determine if the benefits payable can be decreased as it is to not know if the benefits payable can increase.

      . Florida Rule of Civil Procedure 1.540(b)(3) provides for relief in such context.


text:
    Yony GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3266.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.

      Rogell Levers of Levers & Jackson Law Firm, PLLC, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely motion for postconviction relief. See State v. Green, 944 So.2d 208 (Fla.2006). Appellant failed to establish any valid exception to the time limitation. Further, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to convictions which were final at the time that decision issued. Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, — So.3d —(Fla.2012).

Affirmed.

GROSS, GERBER and CONNER, JJ„ concur.


text:
    Santiago VILLAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-676.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.
    Santiago Villar, Malone, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the State’s motion for rehearing, withdraw our previous opinion, and substitute the following in its place. The trial court denied appellant’s Rule 3.800(a) motion for additional jail credit by attaching a copy of the negotiated plea form which contains a scrawled, handwritten notation that defendant was to receive forty days jail credit. We initially reversed the denial of the motion pursuant to cases holding that a mere notation on a plea form regarding the amount of jail credit is not sufficient to show a clear waiver of entitlement to additional jail credit. See Davis v. State, 968 So.2d 1051 (Fla. 5th DCA 2007).

However, in Johnson v. State, 60 So.3d 1045, 1048 (Fla.2011), the Florida Supreme Court disapproved of Davis and other cases which had allowed challenges to the jail credit provision of a negotiated plea agreement to be raised in a Rule 3.800(a) motion. Johnson, 60 So.3d at 1048 n. 1. The court also rejected the notion that a trial court must attach records to refute a Rule 3.800(a) claim. Id. at 1051; see also Jarrett v. State, 89 So.3d 293 (Fla. 5th DCA 2012) (rejecting the State’s concession of error).

Pursuant to Johnson, because the appellant in this case agreed to a specific amount of jail credit as part of his negotiated plea agreement, his remedy to challenge an incorrect jail credit calculation was to move to withdraw his plea. He did not request this relief in his motion. Appellant filed his motion within the Rule 3.850 time limit. We therefore affirm without prejudice for appellant to file a Rule 3.850 motion in the trial court within sixty days of the mandate for this opinion.

Affirmed.

STEVENSON, TAYLOR and LEVINE, JJ., concur.

      . The overruled cases include: Howard v. State, 40 So.3d 46 (Fla. 4th DCA 2010); Rudicil v. State, 31 So.3d 328 (Fla. 4th DCA 2010); Velasquez v. State, 11 So.3d 979 (Fla. 1st DCA 2009); Giggetts v. State, 5 So.3d 756 (Fla. 1st DCA 2009); Silverstein v. State, 654 So.2d 1040 (Fla. 4th DCA 1995).


text:
    Arthur D. GARDNER, Appellant, v. Todd DWYER, individually and The Town of Lantana, a political subdivision of the State of Florida, Appellees.
    Nos. 4D11-917, 4D11-3616.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.
    Barbara J. Scheffer, Palm Beach Gardens and Kevin R. Anderson of Anderson & Welch, LLC, West Palm Beach, for appellant.
    Joan Carlos Wizel and Jeremy Roth of Lydecker Diaz, Miami, for appellee, Todd Dwyer.
    George P. Roberts, Jr. and Lyman H. Reynolds, Jr. of Roberts, Reynolds, Be-dard & Tuzzio, PLLC, West Palm Beach, for appellee, The Town of Lantana.
   PER CURIAM.

Affirmed. See City of Clearwater v. Williamson, 938 So.2d 985 (Fla. 2d DCA 2006); City of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2d DCA 2005); and LeGrand v. Dean, 564 So.2d 510 (Fla. 5th DCA 1990).

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


author: MORGAN, DAVID C., Associate Judge.

text:
    PLANTATION KEY OFFICE PARK, LLLP and Douglas Development Group, Inc., et al., Appellants, v. PASS INTERNATIONAL, INC.; Care Sheet Metal Florida, Inc., d/b/a Care Sheet Metal & Roofing and Brothers Fire Protection, Inc., et al., Appellees.
    Nos. 4D12-169, 4D12-199.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Stephen T. Maher, Dario A. Perez and Lauren M. Sobel of Shutts & Bowen LLP, Miami, for appellants Plantation Key Office Park and Douglas Development Group.
    Scott S. Katz and Jessica M. Skarin of Butler Pappas Weihmuller Katz Craig LLP, Tampa for appellant Zurich American Insurance Company.
    Michele I. Nelson of Paxton & Smith, P.A., West Palm Beach for appellee Pass International, Inc.
    Sean M. Conahan and Tera L. Radigan of Fulmer, Leroy, Albee, Baumann, PLC, Tampa, for appellee Care Sheet Metal & Roofing, Inc.
    Daniel Cruz and Frank J. Sioli of Brown Sims, P.C., Miami, for appellee Brothers Fire Protection, Inc.
   MORGAN, DAVID C., Associate Judge.

Douglas Development Group, Inc., and Plantation Key Office Park LLLP (“the Douglas Appellants”) appeal a final summary judgment entered in favor of Pass International, Inc. (“Pass”), and subcontractors Care Sheet Metal and Roofing, Inc., and Brothers Fire Protection, Inc. (“the Subcontractors”) in their claims for reformation, breach of contract, negligence and statutory violations. Because there was a genuine issue of material fact as to the reformation claim, summary judgment was improper and we reverse.

This action arises from damages sustained as a result of a fire that occurred during a multi-million dollar renovation project of ten buildings, which make up the Plantation Key Office Park. The project was owned and developed by the Douglas Appellants. After the fire, the Douglas Appellants commenced this action against Pass and the Subcontractors.

The Douglas Appellants filed an amended complaint asserting the following claims: (1) breach of the master renovation contract against Pass; (2) negligence against all appellees; (3) claims for statutory violation against the Subcontractors; and (4) a count to reform the master owner-contractor agreement with Pass.

As the basis for the reformation claim, the Douglas Appellants assert that the parties to the contract, Plantation Key and Pass, never intended to include A201 as a part of their written agreement. The A201 document was referenced on most of the pages within the Alll-1997 contract form. The Alll represented the written agreement between Pass and Plantation Key.

To support the claim that A201 was incorporated because of mutual mistake, the Douglas Appellants cite to the deposition testimony of Paul Douglas and Robert Waskiewicz, who negotiated and signed the contract on behalf of Plantation Key and Pass, respectively. At the time of the contract, Mr. Waskiewicz was the Vice President of Pass. The testimony of Mr. Waskiewicz relied upon by the appellants, taken as true, proves that the A201 was not discussed or signed by the parties as they prepared the Alll. Further, and over form objections, Mr. Waskiewicz testified to the following:

Q: Is the reference to the A201 in that contract that you have in front of you ... a mistake?
[objections omitted]
A: Yes.

Mr. Douglas, as representative of Plantation Key, also testified that the inclusion of A201 “was an oversight.”

Based on the deposition testimony of Mr. Douglas and Mr. Waskiewicz, the appellants contend that the inclusion of A201 was due to mutual mistake, and therefore reformation was warranted. The appel-lees, however, point to the testimony and affidavit of Pass’ president, Roger Rex, as evidence that A201 was standard form in these contracts and that it was always the intention of Pass that the A201 be incorporated into the Alll. In his affidavit, Mr. Rex avers:

All AIA contract forms Alll-1997 ... explicitly incorporate the general conditions of AIA form A201-1997 ...; these general conditions are an essential element to form Alll-1997; in order to exclude the incorporated General Conditions of A201-1997 from the Alll-1997 contract form, it is necessary to affirmatively provide for such exclusion by additional terms....

Mr. Rex further testified that the AIA “General Conditions” are “part of the contract. It’s written on the front page, every term in the contract has to be clarified by the general conditions. It’s impossible to use an AIA contract without the general conditions.”

The parties all moved for summary judgment. Pass, Care Sheet, and Brothers Fire sought partial summary judgment against the appellants on the grounds that the loss of use and consequential damages were barred as a matter of law, citing John W. Reis, Measure of Damages in Property Loss Cases, 76 Fla. B.J. 32 (Oct. 2002). In their motion for summary judgment, the appellees also argued that A201 applies because there was no evidence that it was intended to be excluded from the contract, and that A201 bars all claims— including consequential damages — against the Contractor and Subcontractors. The Douglas Appellants’ motion for summary judgment argued the A201 provisions did not apply because the testimony proved that A201 was never intended to be a part of the final contract; therefore, the contract should be reformed to reflect the parties’ true intention to exclude A201.

The trial court held a hearing on the pending motions for summary judgment. Thereafter, the trial court issued five orders in the case. All of the orders are summary in nature and do not contain findings of fact or citations to legal authority. The trial court granted Pass’s motion for summary judgment, and denied the Douglas Appellants’ and Zurich’s claim for reformation. The trial court also denied the Douglas Appellants’ motion for summary judgment as it related to their claim for reformation.

The Douglas Appellants and Zurich filed motions for clarification. After a hearing on these motions, the trial court entered final judgment for Pass, Care Sheet, and Brothers. The Douglas Appellants and Zurich now appeal the final judgment, as well as the orders granting the appellees’ motions for summary judgment and denying appellants’ motions for summary judgment.

On appeal, the appellants contend that it was an error to deny their motion for summary judgment on the reformation claim. At the least, they argue, it was an error to grant the appellees’ motions for summary judgment regarding the incorporation of A201 because, appellants contend, there was a genuine issue of material fact regarding whether the parties intended to include A201 as a part of their final written agreement. Further, appellants contend that, assuming A201 does in fact apply in this case, the terms of that document do not preclude their claims for consequential damages, but only claims for damages “to the Work” as defined by A-201.

We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.110(a)(1) and 9.080(b)(1)(A).

Issues involving summary judgment are reviewed by the appellate court using the de novo standard. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Due to the strong presumption that a written agreement accurately expresses the parties’ intent, the party seeking reformation based on a mutual mistake must prove its case by clear and convincing evidence.” BrandsMart U.S.A. of W. Palm Beach, Inc. v. DR Lakes, Inc., 901 So.2d 1004, 1006 (Fla. 4th DCA 2005). However, a trial court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment; instead, the moving party must conclusively show the absence of any genuine issues of material fact. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480-81 (Fla. 4th DCA 2006).

Where a writing that evidences or embodies an agreement in whole or in part fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may at the request of a party reform the writing to express the agreement, except to the extent that rights of third parties such as good faith purchasers for value will be unfairly affected.

Restatement (Second) of Contracts § 155 (1981). “A court of equity has the power to reform a written instrument where, due to mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument.” BrandsMart, 901 So.2d at 1005 (quoting USAA Cas. Ins. Co. v. Threadgill, 729 So.2d 476, 478 (Fla. 4th DCA 1999)). “A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” Id. at 1005-06 (quoting Circle Mortgage Corp. v. Kline, 645 So.2d 75, 78 (Fla. 4th DCA 1994)). “In an equitable action for reformation of a contract, the plaintiff must prove by clear and convincing evidence that a mutual mistake occurred to overcome the strong presumption that a contract expresses the intent of the parties.” Resort of Indian Spring, Inc. v. Indian Spring Country Club, Inc., 747 So.2d 974, 976-77 (Fla. 4th DCA 1999) (citing Canal Ins. Co. v. Hartford Ins. Co., 415 So.2d 1295, 1297 (Fla. 1st DCA 1982)).

The facts of Indian Spring are analogous to the instant case, and its holding illustrates why summary judgment was improper. In Indian Spring, RIS sought to reform the legal description of property in a deed conveyed to the Club. Id. at 975. The lawyer for the Club, Mr. Wolmer, negotiated the contract on behalf of the Club, which ultimately included “office facilities” as part of the property being transferred to the Club. Id. at 976. Subsequently, RIS discovered that the Executive Office parcel had been included in the legal description of the property conveyed to the Club. Upon discovery, RIS’s attorney obtained a “scrivener’s error affidavit,” and Wolmer also wrote a letter, and testified at trial, that the Club, which he represented at closing, had not intended to receive the Executive Office parcel in the transaction. Id. The issue at trial concerned whether the parties intended to include the Executive Office parcel as part of the conveyance, or whether its inclusion was a mutual mistake resulting from a scrivener’s error. Id.

The evidence at trial included testimony from a Mr. Streem, a board member for the Club, who testified that the Club intended the parcel to be included from the beginning of negotiations through closing. His testimony was contradicted by the Club’s attorney, Wolmer. The trial court ultimately ruled in favor of the Club, denying RIS’s action to reform the contract and exclude the Executive Office parcel. Id.

On appeal, we affirmed the trial court’s decision to deny reformation and held that the “trial court’s factual findings are presumed correct, particularly where there are evidentiary conflicts, and will not be disturbed on appeal unless clearly erroneous.” Id. at 977. We also described the scenario as follows:

In the instant case, what RIS wishes to attribute to the Club was Wolmer’s conclusion, based wpon the lack of particular discussions about the Executive Office parcel, that the Office parcel was not included in the transaction. Nowhere did Wolmer testify that either Club members or RIS representatives specifically told him that the parcel was not included. Thus, RIS wants to bind the Club with a negative inference that the parcel wasn’t included because no one talked about it.

Id. at 977 (emphasis added).

Indian Spring, however, was ultimately decided based on the fact that Wolmer’s testimony was contradicted by Streem. Id. at 977. This court held:

In any event, Wolmer’s conclusion was rebutted. Streem contradicted almost every detail of Wolmer’s testimony. As to the lack of specific discussions about the parcel, Streem explained that he simply assumed that it was included and that he at all times intended it to be part of the transaction.... Certainly, the Club is not bound by factual evidence that it expressly disputes. It is axiomatic that in matters where the trial court is sitting as trier of both fact and law, “matters pertaining to the credibility of witnesses and the weight of the evidence are exclusively within its province.” ... Thus, it was within the trial court’s discretion to accept Streem’s testimony and reject the testimony of Wolmer.

Id. (quoting Davis v. State, 606 So.2d 460, 463 (Fla. 1st DCA1992)).

The instant case is analogous to the scenario in Indian Spring. The appellants contend that, during negotiations between Douglas and Mr. Waskiewicz, the lack of discussions regarding A201 is evidence that the parties never intended to include A201 in the final written agreement. Although both parties to the contract testified that A201 was not discussed, it was nevertheless incorporated by numerous references within the final written document. Furthermore, the President of Pass, Roger Rex, submitted an affidavit, as well as testified that A201 is intended to be incorporated in all Alll-1997 forms (like the one signed by Mr. Douglas and Mr. Waskiewicz on behalf of Plantation Key and Pass, respectively), and that these general conditions “are an essential element to form Alll-1997[.]” Like in Indian Spring, “[the appellants] want to bind [the appellees] with the negative inference that the [A201] wasn’t included because no one talked about it.” See Indian Spring, 747 So.2d at 976 (affirming trial court’s denial of reformation claim).

Also like Indian Spring, there is conflicting testimony regarding whether A201 was intended to be a part of the final contract between Douglas and Pass. At the signing of the written instrument, Pass was represented by Mr. Waskiewicz, a Vice President at Pass. He testified that it was a mistake to include A201. As discussed above, however, the President of Pass submitted an affidavit and also testified that the A201 is intended to be incorporated in all Alll-1997 forms, and that these general conditions “are an essential element to form Alll-1997[.]” Like Indian Spring, “what [the appellants] wish[] to attribute to [Pass] was [Waskiewicz’s] conclusion, based upon the lack of particular discussions about the [A201], that the [A201] was not included in the [Alll-1997].” See Indian Spring, 747 So.2d at 976. As in Indian Spring, however, Waskiewicz’s conclusion was rebutted by the President of Pass’ own testimony and affidavit.

Had this issue been resolved at trial, the trial court would have been free to accept Mr. Rex’s testimony and reject the testimony of Mr. Waskiewicz with regards to whether A201 was intended to be a part of the final written agreement. However, the cause was heard at a hearing on the parties’ motions for summary judgment; and at that stage in the proceedings, the trial court is not permitted to weigh testimony or determine credibility of witnesses. Craven, 925 So.2d at 480-81. Therefore, summary judgment was improper because a genuine issue of material fact existed regarding whether A201 was intended to be a part of the agreement signed by Mr. Douglas and Mr. Waskiewicz. Accordingly, the trial court was correct in denying appellants’ motion for summary judgment seeking reformation, but erred in granting the appellees’ motion on the same issue— whether the inclusion of A201 was due to mutual mistake.

Here, there is record evidence that Plantation Key and Pass had an agreement that predated the written contract, and the parties operated under this original “handshake agreement” for eighteen months before the written contract was hastily developed to satisfy the bank. Further, based on the record, a fact finder could determine that the original agreement did not contemplate the A201 provisions and that these provisions were never intended to be part of the written contract. The fact finder could also find the contrary to be true, based upon the testimony and affidavit of Mr. Rex. This conflicting evidence creates a factual dispute that goes to the core of this case. Such factual disputes cannot be resolved by summary judgment.

Based on the foregoing, we reverse the summary judgment entered in favor of Pass and the Subcontractors because there was a genuine issue of material fact regarding whether the parties intended A201 to be incorporated within their final written agreement. Because we reverse on this threshold matter, we need not determine whether the trial court erred in its application of A201 to the facts of this case. Once the matter of reformation is properly resolved by the trial court, only then may the court properly apply, or not apply, the provisions of A201 to determine the ultimate rights and liabilities of the parties. Accordingly, and on remand, the trial court must now determine — through any proper procedure — whether the A201 should control in this case. Once it makes this determination, only then can the trial court properly determine the ultimate rights and liabilities of the parties.

Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.

      . The A201 addresses several issues, including claims for consequential damages, purchase of insurance and waivers of subrogation.

      . Zurich also filed a cross-motion for partial summary judgment requesting the court grant the claim for reformation. Brothers Fire, also filed a separate motion for summary judgment as to Zurich’s claim for subrogation.


author: STEVENSON, J.

text:
    LK GROUP HOLDING COMPANY, Appellant, v. SPURRIER INVESTMENTS, INC., a Florida corporation, Appellee.
    No. 4D12-991.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Alex P. Rosenthal and Amanda Jassem Jones of Rosenthal Law Group, Weston, for appellant.
    James W. Sherman and Richard A. Sherman, Sr., of the Law Offices of Richard A. Sherman, P.A., and Terry Schneider of the Law Offices of Esther Nickas, Fort Lauderdale, for appellee.
   STEVENSON, J.

This case involves a commercial landlord-tenant dispute. In this appeal, the trial court granted summary judgment in favor of Spurrier Investments, Inc. (“Landlord”) on LK Group Holding Company’s (“Tenant”) counterclaim for wrongful eviction. The tenant’s counterclaim was based on nothing more than the fact that a default judgment of eviction obtained earlier by the landlord in this same case had been reversed on appeal. The record disclosed that the reversal of the judgment of eviction was based on the trial court’s failure to allow tenant to pay into the registry an amount determined by the court for the disputed amount of rents pursuant to section 83.232(1), Florida Statutes (2010). Because the complaint and the tenant’s response to the motion for summary judgment failed to allege a legally sufficient factual basis for “unlawfulness” of the eviction, or any “wrongdoing” on the part of the landlord in procuring the eviction, we affirm.

A wrongfully evicted tenant may bring an action against the landlord for damages. Bielek v. Drs. Bielek, Birely & Salerno, P.A., 366 So.2d 44, 45 (Fla. 4th DCA 1978) (citing Young v. Cobbs, 83 So.2d 417 (Fla.1955)). In order to be actionable, the eviction must be “wrongful or unlawful,” which is the crux of this dispute. Walsh v. CAS, Inc., 633 So.2d 561, 562 (Fla. 4th DCA 1994) (citing McCready v. Booth, 398 So.2d 1000 (Fla. 5th DCA 1981); Sentry Water Sys., Inc. v. ADCA Corp., 355 So.2d 1255 (Fla. 2d DCA 1978)). In the final order of summary judgment, the trial court stated:

This court finds the tenant was not wrongfully evicted. The landlord followed the proper statutory procedures to obtain the requested relief from the courts. The County Court Judge granted the Final Default Judgment and order of Writ of Possession after considering the pleadings and the merits. The landlord followed all legal requirements of the Court. Absent the court order, the landlord could lawfully not evict the tenant.
A careful reading of the appellate opinion reveals the county court judgment was reversed because the trial judge did not comply with F.S. 83.232(1). The trial judge did not make the necessary determination of the amount the tenant must deposit into the court registry as articulated in the statute. There was no finding the landlord either did not comply with the applicable statute(s) or with any county court orders in obtaining the county court judgment. The contrary is true. Consequently, it cannot be said the landlord wrongfully or unlawfully evicted the tenant under these unique circumstances.

Adelhelm v. Dougherty, 129 Fla. 680, 176 So. 775 (1937), is the only landlord-tenant case which tenant cites for the proposition that the eviction was ipso facto wrongful after the reversal of the judgment because the parties must be put back in the same place as just prior to entry of the judgment. In Adelhelm, our supreme court considered whether it was a trespass for the landlord to execute a warrant for possession knowing that, the day before, the.court entered an order setting aside the underlying default and judgment.

It is elementary that no person has the right to forcibly enter premises in the possession of and occupied by another, whether the person occupying the premises happens to be in [t]he premises or absent therefrom at the time. The law provides an adequate and speedy remedy for the acquisition of possession of premises which are wrongfully held by another, and in this case [landlord] in the court below had no more right to enter the premises by procuring keys to the locks placed thereon by the occupant than they would have had without having filed any proceedings to acquire possession of the property, because the judgment awarding them possession had been canceled and set aside, which had the effect of leaving the case in the same position and the parties in the same position that they were before judgment was entered.

Id. at 777. Tenant argues that because the judgment of eviction here was reversed, there was no legal basis for the landlord to evict tenant as in Adelhelm, and accordingly, the eviction was ipso facto wrongful. We find Adelhelm is distinguishable because the landlord there knew that .the underlying judgment was set aside. The wrongfulness of the eviction in Adelhelm was attributable to the landlord who evicted the tenant in the face of the trial court’s setting aside of the order.

In the instant case, the manner in which the tenant pleaded the cause of action warranted the imposition of summary judgment as there is no per se rule in Florida that an eviction based on a judgment of eviction which is subsequently reversed constitutes an ipso facto -wrongful eviction. Here, tenant never alleged that landlord convinced the trial court to enter the default judgment with a bad faith or frivolous legal argument, or attempted to dispossess tenant with anything other than a judgment of eviction in-hand obtained through due legal process. Tenant alleged no underlying wrongful conduct of the landlord beyond that of being the winning recipient of a judgment which was later reversed because of an error by the trial court. Further, the judgment of eviction was neither entered nor reversed on the merits of the claim. The gravamen of the tort of wrongful eviction lies in the alleged “wrongful” conduct of the landlord, see, e.g., Young v. Cobbs, 83 So.2d 417 (Fla.1955); appellant has cited no Florida authority to suggest otherwise. As such, we approve the trial court’s determination that “it cannot be said the landlord wrongfully or unlawfully evicted the tenant under these unique circumstances.”

Affirmed.

CIKLIN and GERBER, JJ., concur.


text:
    FLORIDA EUROCARS, INC., and Edvinas Budzinauskas, Appellants, v. T.J. PECORAK, Appellee.
    No. 4D12-1211.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Patrick St. George Cousins of Cousins Law, APA, West Palm Beach, for appellants.
    Steven M. Goldsmith of Steven M. Goldsmith, P.A., and Donald S. Hershman of Donald S. Hershman, P.A., Boca Raton, for appellee.
   POLEN, J.

The defendants/appellants were defaulted by the clerk, and the plaintiff subsequently obtained a default final judgment. The defendants then moved to vacate the default final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). This motion was denied by the trial court, which expressly found that the defendants failed to show they acted with due diligence in seeking relief from the default judgment. We reverse the trial court’s order denying the defendants’ motion to vacate because the record and supporting affidavits are sufficient to show the defendants acted with due diligence in seeking relief from the default judgment.

On October 6, 2011, the plaintiff served the defendants with a complaint alleging fraud, breach of contract, and violation of the Florida Deceptive and Unfair Trade Practices Act. The defendants did not file an answer or responsive pleading. The plaintiff moved for a clerk’s default on October 31, 2011, which was entered on November 9, 2011. The defendants admit that they were served with the complaint on October 6, but did not respond because conversations with their out-of-state attorney led them to believe that a settlement had been reached and the matter was closed.

On November 18, 2011, the plaintiff filed a motion for final judgment. A hearing on this motion was held on December 15, 2012. The defendants did not attend the hearing because, again, they claim to have been assured by counsel that the matter was resolved.

Final judgment was entered by the court on December 20, 2011. On the same day, the defendants were advised by their out-of-state attorney that he was not permitted to practice law in Florida. The very next day, the defendants retained their current attorney to represent them in this action.

On January 31, 2012, thirty-nine days after current counsel was retained, the defendants filed a motion to vacate the default final judgment. On February 8, 2012, the plaintiff filed a response to the motion to vacate, alleging that defense counsel failed to prove due diligence because he failed to present evidence of exceptional circumstances explaining the delay in filing the motion to vacate. Thereafter, on February 10, defense counsel filed an affidavit of his own explaining the circumstances of his representation, and the extent of his involvement in the current litigation. This affidavit explained the reasons for the delay included, but were not limited to: the holiday closings of the court and counsels’ offices; communications with opposing counsel seeking a resolution of the matter; checking the court docket without seeing a final judgment entered against the defendants; and preparing affidavits and an answer with affirmative defenses, while simultaneously addressing a writ of garnishment entered against the defendants.

A hearing was held on the defendants’ motion to vacate the default final judgment on February 24, 2012. This hearing was not transcribed. The defendants’ motion was denied on March 12, 2012, by an order expressly finding that “the affidavits do not set forth sufficient facts for this Court to conclude that the Defendants acted with due diligence to promptly move to set aside the default.” We hold that the trial court erred in making this determination.

An order denying a motion to vacate a default judgment is reviewed under an abuse of discretion standard. Mullne v. Sea-Tech Constr. Inc., 84 So.3d 1247, 1248 (Fla. 4th DCA 2012). A party moving to vacate a default final judgment must demonstrate three things: “(1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default.” Wells Fargo Bank, N.A. v. Jidy, 44 So.3d 162, 164 (Fla. 3d DCA 2010). In this case, the trial court expressly based its order denying the defendants’ motion to vacaté on the finding that the defendants failed to act with due diligence in seeking relief from the default judgment. Accordingly, the only issue to be addressed on appeal is whether the defendants demonstrated that they acted with due diligence in seeking relief from the default judgment.

In this case, there appears to be no factual dispute upon which the trial court based its decision to deny the defendants’ motion. The trial court based its decision on the finding that the defendants’ affidavits failed to show the defendants acted with due diligence in seeking relief from the default judgment, which is required by law in order to vacate a default final judgment. Therefore, because the trial court’s ruling was made as a matter of law, our standard of review is de novo. See Mourning v. Ballast Nedam Constr. Inc., 964 So.2d 889, 892 (Fla. 4th DCA 2007) (holding that a ruling on a motion to vacate is usually reviewed under the abuse of discretion standard, but when there is no factual dispute and the trial court’s ruling is a matter of law, the standard of review is de novo).

Florida’s public policy on setting aside defaults is described as one that:

[F]avors the setting aside of defaults so that controversies may be decided on the merits.... In implementing this policy, if there be any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing a trial upon the merits.

Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001) (internal quotation omitted). “[W]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.” Latin Am. Prop. & Cas. Ins. Co. v. Italian Palace, Inc., 596 So.2d 1174, 1175 (Fla. 4th DCA 1992) (quoting Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)).

In considering whether a party has made a “timely application” to set aside a default, courts must evaluate both the extent of the delay as well as the reasons for the delay. Roberts v. Safeway Ins. Co., 610 So.2d 700, 701 (Fla. 3d DCA 1992). Examples of justifiable reasons for a delay include: (1) miscommunications between counsel; see Apolaro v. Falcon, 566 So.2d 815, 817 (Fla. 3d DCA 1990) (holding that a delay between thirty and forty days was reasonable because “a misunderstanding ... delayed the actual filing of the motion which plaintiffs knew would be forthcoming”); (2) a party not knowing of his or her ability to contest a default judgment; see Franklin v. Franklin, 573 So.2d 401, 403 (Fla. 3d DCA 1991) (holding that nine months was not an unreasonable delay because the former husband “was not aware of his ability to contest [the judgment] until a co-worker told him that this might be done [and] [w]ithin a few days after that, he retained a lawyer and sought to do so”); and (3) trying to obtain counsel; see Roberts, 610 So.2d at 701 (holding that the defaulted party’s affidavit demonstrated due diligence under the circumstances by averring that he diligently sought counsel through a pro bono service after learning of the default against him).

In this case, defense counsel concedes that it took thirty-nine days after being retained as counsel for him to file the motion to set aside the default. In his affidavit filed in support of the motion to vacate, defense counsel avers that he contacted plaintiffs counsel immediately after being retained (on December 21, 2011), and he was informed that plaintiffs counsel had sent a final judgment to the trial court based on the December 15, 2011 hearing. Defense counsel claims that opposing counsel “was not clear that [this] judgment would be signed by the court.” Thereafter, defense counsel “checked the court docket on December 22 and did not see a judgment entered against the defendants.” The affidavit further states that the courthouse was closed on December 23 through December 27, and that counsels’ offices were closed from December 23 until January 3. Defense counsel did not receive a copy of the final judgment until January 6, 2013, when he received a copy of the judgment attached to the writ of garnishment. Defense counsel then wrote to plaintiffs counsel on January 10 seeking “an amicable resolution based on the prior communication.” This letter asked opposing counsel to set aside the final judgment and notified the plaintiff of the defendants’ intention to move to set aside the default.

The motion to set aside the default was finally filed on January 31, 2013. Defense counsel’s affidavit states that during this lapse of time, he was acting “diligently by reviewing the Complaint and all court documents filed to determine whether defendants had any meritorious defenses to the complaint,” addressing the writ of garnishment entered against the defendants, and preparing affidavits in support of the motion to be reviewed and signed by the defendants.

In light of Florida’s public policy of having cases resolved on the merits, the trial court in this case erred by denying the defendant’s motion to set aside the default. As in Apolaro, “[d]efense counsel was entirely correct in contacting plaintiffs’ counsel initially to determine if the matter could be resolved by agreement rather than by resort to the court. [This] procedure should be encouraged, not penalized.” Apolaro, 566 So.2d at 817.

Moreover, defense counsel’s affidavit sets forth a reasonable and credible explanation of the delay. This includes, but is not limited to: the holiday closings of the court and counsels’ offices; communication with opposing counsel seeking an amicable resolution; checking the court docket without seeing a final judgment entered against the defendants; and preparing affidavits and an answer with affirmative defenses, while simultaneously addressing the writ of garnishment entered against the defendants. The affidavit clearly states that, upon learning of the final judgment, defense counsel very quickly notified opposing counsel of his intention to vacate the final judgment and began preparing to do just that. Considering the totality of these circumstances in light of Florida’s public policy requiring “any reasonable doubt in the matter of vacating a default ... be resolved in favor of granting the application and allowing a trial upon the merits[,]” it was an error for the trial court to deny the defendants’ motion to vacate the default final judgment in this case. See Lloyd’s Underwriter’s, 801 So.2d at 139 (internal quotation omitted).

Based on the foregoing, we l’everse the trial court’s order denying the defendants’ motion to vacate the default final judgment. Because the trial court’s order denying the motion to vacate expressly does so on the grounds that the defendants failed to show they acted with due diligence in seeking relief from the default final judgment, our holding is limited to our determination that the record and supporting affidavits do show that the defendants acted with due diligence in seeking relief from judgment. On remand, the trial court should consider the other elements required to vacate the final judgment, including whether the defendants can demonstrate excusable neglect and a meritorious defense.

Reversed and Remanded.

DAMOORGIAN and LEVINE, JJ., concur.