author: MAKAR, J.

text:
    Marybeth LEAMER, as Trustee of the Marybeth Learner Lifetime Trust, Appellant, v. Marilyn B. WHITE and Omni Amelia Island LLC, a foreign limited liability company, Appellee.
    No. 1D13-4573.
    District Court of Appeal of Florida, First District.
    Jan. 27, 2015.
    Rehearing Denied Feb. 20, 2015.

      J. Thomas McKeel, Fernandina Beach, for Appellant.
    John R. Hamilton of Foley & Lardner LLP, Orlando; Scott D. Richburg of Foley & Lardner LLP, Jacksonville, for Appellee Omni Amelia Island LLC.
    Arthur I. Jacobs, Richard J. Scholz and Yvonne R. Mizeras of Jacobs, Scholz & Associates, LLC, Fernandina Beach, for Appellee Marilyn B. White.
   MAKAR, J.

If good fences make good neighbors, what do yard lights make? Answer: This litigation in which neighboring townhouse owners scuffle over a yard lighting system to which one strenuously objects. The trial court granted summary judgment for the objector, Marilyn White, as well as Omni Amelia Island LLC (Omni), whose architectural review board interpreted its covenant against “ostentatious site features” as granting Ms. White a veto over any lighting system that her neighbor, Marybeth Learner, might propose. As explained below, we conclude that the trial court erred in its interpretation of the covenant.

I.

The beatific Long Point neighborhood at the center of this controversy is a private subdivision within the Amelia Island Plantation at the southern tip of the island, bordering the marshlands of Nassau Sound. The Whites and Learners live in adjoining luxury waterfront townhouses that share views of the Intracoastal Waterway — they also share a common wall. Their townhouses are among the five currently built on the ten townhouse lots that are subject to a “Declaration of Covenants, Conditions, Restrictions, and Easements for The Pointe at South Pointe” (the Covenants). The restriction at issue in this dispute is section 3.17, which deals with landscaping, lighting, and service courts. Subsection (b) of that covenant provides, in relevant part:

(b) Ostentatious Site Features. The construction of ostentatious site features such as topiary, sculpture, free standing fountains in the foreground of townhouses or lighting systems which may be offensive to adjacent neighbors is unacceptable.

(Emphasis added). The italicized language is the focal point of the parties’ squabble, which began in May 2012 when Mr. Learner had landscape lighting installed on his side of the property. He did so without submitting the requisite fee and application for approval by the Amelia Island Plantation Architectural Review Board, which is controlled by Omni. Deeming the lighting offensive, Mr. White complained to the Board, the management of which is one of the many responsibilities of Mr. William Moore, Omni’s director of planning and development. The Board’s responsibility is to review plans submitted by homeowners and approve them if they comply with the Covenants; the Board has no enforcement authority and does not canvass the neighborhood for violations.

In response to Mr. White’s complaint, Mr. Moore spoke about the situation with Mr. Learner, who lives part of the time in the Atlanta, Georgia area. Soon thereafter in June 2012, Mr. Moore wrote to Mr. Learner to explain that progress had been made as to the specific objections Mr. White had about the lighting, such as mitigating “light spillage.” He explained that a “procedural” problem existed, which could be corrected by Mr. Learner submitting a fee along with an application and plan for the Board’s review. As a part of this submission, however, Mr. Learner was required to submit “statements from the two adjacent property owners that your proposed plan for outdoor lighting is acceptable to them and they do not find it offensive.” The Board deemed these statements as necessary because section 3.17(b) was a “unique provision” that “provides neighbors with a veto over the installation of your lighting.” Mr. Moore characterized the “neighbor veto” as a “substantive problem” over which the Board had no control, but suggested modifications to the lighting plan to assuage Mr. White, such as using “moon glow” effects rather than “hot spot” lighting, turning off the system entirely when not present, and so on. He encouraged reaching an accommodation with Mr. White.

In response, Mr. Learner took the position that no fee, application, or plan would be forthcoming because other similar lighting systems existed on home sites in the Long Point community that had not been approved by the Board (which was apparently the case for some non-townhouse properties). The Board met to discuss the situation and followed up with a July 18, 2012, letter from Mr. Moore, who again said that Mr. Learner must submit an application, noting that no property owner is “authorized to unilaterally decide what provisions they may want to follow and what provision[s] they want to ignore.”

Mr. Learner capitulated by submitting the necessary fee and paperwork, which became the focus of a Board meeting on August 14, 2012, at which Mr. White objected to the plan. In its letter sent a week later, the Board found the current lighting plan was “generally consistent” with its standards except, for example, that some driveway lights close to the property line “need to have the intensity reduced or dialed back.” It again noted that it deemed itself powerless to approve any plan unless Mr. White withdrew his ongoing general objection to the lighting plan. The Board said it “would like to find a resolution to this issue without any party having to resort to a judicial solution,” suggesting it would approve a slightly modified plan that Mr. White “seemed willing” to consider “but made no commitment.” It concluded by saying that the two neighbors “need to talk” (“Perhaps a little personal communication at this stage would be fruitful to both of you”) and reemphasizing its view that “it must abide by” section 3.17(b) “as long as it remains a part of the documents.”

The Board’s ambassadorial efforts did not pay off. In early September, Mr. White filed a lawsuit against Mr. Learner alleging that the landscape lights were “excessively bright and positioned such that they shine onto [his] property and into [his] home between dusk and midnight everyday regardless of [Mr. Learner’s] presence in the home.” He further complained that the lighting “flooding in [his] home” was a source of “serious discomfort, distress and inconvenience” to him and also to “any person of normal sensibilities.” The lighting caused “serious annoyance and discomfort as well as mental and physical distress.” He sought a temporary and permanent injunction restraining Mr. Learner from operating the outdoor lights.

In the interim, Mr. Learner made the suggested changes to the lighting plan, which the Board now deemed to be consistent with its standards. The Board’s. December 3, 2012, letter to Mr. Learner explicitly acknowledged the lighting plan was acceptable and would be approved but for Mr. White’s continuing objections. (“Your neighbor has clearly stated that he finds all outdoor lighting of the type installed to be offensive to him.”) For this reason, the Board refused to approve the modified plan “unless your neighbor provides written documentation that the lighting as currently installed is acceptable to him or a judge strikes” section 3.17(b) from the Covenants.

Once again, the Board’s diplomatic approach failed and the impasse between the neighbors devolved into dismissal motions and counter-claims (one that made Omni a party to the litigation), answers and defenses, and a deposition of Mr. Moore, as manager of the architectural review board process. His conciliatory letters tried to keep the Board at arm’s length from the neighbors’ dispute while tactfully brokering a detente, but now both he and the Board were enmeshed in the property owners’ litigation.

Mr. Learner moved for summary judgment, seeking a legal ruling that the Board’s interpretation of section 3.17(b), which required the written approval of his neighbors, was arbitrary and unreasonable. Omni responded with its own motion for summary judgment, joined by Mr. White, seeking a ruling that its interpretation should be upheld. In response, the trial judge denied Mr. Learner’s motion, entered an unadorned final summary judgment in favor of Omni and Mr. White, and subsequently awarded Omni its attorneys’ fees and costs, which were approximately $32,000. This appeal followed.

II.

Florida is perhaps ground zero in legal battles between homeowners’ associations and property owners over the interpretation and enforceability of private restrictive covenants, which are commonly used in newer subdivisions, large developments, and condominium communities. See John N. Redding, Florida Real Property Transactions § 10.31 (7th ed. 2013). The State’s burgeoning population, the desirability of maintaining uniform aesthetics and architectural standards within a community, and the protection of property values from detrimental activities, have made restrictions on the use of property pervasive statewide.

In a world without restrictive covenants, architectural review boards, and a court system, neighboring property owners such as the Learners and Whites would have to resolve their disputes privately and cooperatively, a timeless and pervasive method by which order informally and sometimes spontaneously arises without resort to legal process. See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 4-6 (1991). But human nature prevails; differences arise that cannot be resolved without an umpire. What one homeowner sees as clear and unambiguous restrictions are viewed as cloudy and equivocal by another, leading to disputes that force courts to interpret them. Florida’s appellate courts have weighed in on covenants affecting vehicle signs, satellite dishes, and even a terra cotta plaque. Yard lights now join this list.

A benefit of our State’s jurisprudence on restrictive covenants is that the framework for resolution of this type of dispute is well-established. To begin, we review and interpret the language of the restrictive covenant de novo, meaning we are not bound to the trial court’s view and are free to draw our own legal conclusion about the meaning of the language used. See Klinow v. Island Court at Boca W. Prop. Owners’ Ass’n, Inc., 64 So.3d 177, 180 (Fla. 4th DCA 2011). In doing so, we must make a judgment about the meaning of section 3.17(b) in the context of this townhouse community.

Our opening observation is that section 3.17(b) establishes a general principle: the “construction of ostentatious site features” is “unacceptable.” The key words are “ostentatious” and “unacceptable,” which raise two interpretive difficulties. First, it is not at all clear what ostentatious means in this context. See The New Shorter Oxford English Dictionary 2030 (1993) (“1. Characterized by ostentation; intended or intending to attract attention or admiration, esp. of wealth or luxury; pretentious, showy. 2. Likely to attract attention; conspicuous.”). What standards are to guide Long Point townhouse owners as they make landscaping, lighting, and service court decisions? Second, unclear is who is to judge that which is ostentatious and thereby “unacceptable” versus that which is not? Ostentatiousness, like beauty, is often in the eye of the beholder, so it helps to know who is tasked with the beholding.

Preliminarily, we reject as unreasonable that section 3.17(b) was intended to prohibit any lighting system, no matter how benign, that “may be offensive to adjacent neighbors.” Instead, we read that portion of section 3.17(b) which says that items “such as topiary, sculpture, free standing fountains in the foreground of townhouses or lighting systems which may be offensive to adjacent neighbors” as setting forth non-exclusive illustrative examples of the types of features that can be prone to excessiveness, but are not per se ostentatious. Hedges discreetly pruned to look round, square, or geometric could be deemed topiary because they are clipped to form “ornamental shapes.” See The New Shorter Oxford English Dictionary 3341 (1993) (topiary defined as “concerned with, involving, or formed by the clipping of shrubs, trees, etc., into ornamental, geometric, animal or other shapes”). Yet they are ubiquitous in gated and other privately-restricted communities. Intricately carved and unobtrusively placed pathway stones are a form of sculpture, id. at 2739 (sculpture defined as the “art or process of creating ... representational or abstract forms in the round, in relief, or (formerly) in intaglio [etching], by chiseling stone, casting metal, modeling clay, or some other plastic substance, carving wood, etc., or, now also, by assembling separate parts”); they too are not necessarily ostentatious.

The definitional breadth of what may constitute topiary and sculpture suggests that aesthetic line-drawing is necessary. "Whether it be topiary or sculpture, a judgment has to be made whether the potentially offending site feature is sufficiently “ostentatious” to warrant banishment. To interpret the sentence otherwise would prohibit all topiary and all sculpture no matter how understated. We see no indication that the Board desires to ban non-ostentatious displays of topiary and sculpture; to do so would throw the baby out with the bathwater.

For parallel reasons, the determination of whether a lighting system that “may be offensive to adjacent neighbors” is “ostentatious” likewise requires the exercise of aesthetic judgment; the question here is by whom? The Board says the language in this phrase eliminates its discretion; it has no power to approve a lighting system that any adjacent neighbor dislikes. We find no basis for reading this language as creating veto power. Nothing in section 3.17(b) or elsewhere in the Covenants clearly and unequivocally gives “adjacent neighbors” a right to veto any proposed lighting system they find personally and subjectively offensive. If such a power was intended, it has not been explicitly stated; nor can we infer it from the language used. The ordinary meaning of section 3.17(b) does not establish an across-the-board veto by one neighbor over another’s use of her property; no textual basis exists for such a severe restraint. To impute such a restriction would cut against the principle that such restraints “are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.” Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003) (citing Moore v. Stevens, 90 Fla. 879, 106 So. 901, 903 (1925)); see also Lathan v. Hanover Woods Homeowners Ass’n, Inc., 547 So.2d 319, 321 (Fla. 5th DCA 1989) (“[R]estrictive covenants are strictly construed against those who assert the power to limit the homeowner’s free use of his land.”).

A restrictive covenant “will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms.” Shields v. Andros Isle Prop. Owners Ass’n, Inc., 872 So.2d 1003, 1005-06 (Fla. 4th DCA 2004); accord Klinow, 64 So.3d at 180 (“In determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness.”). The most reasonable interpretation of section 3.17(b) is that the Board wields the authority and exercises the discretion to determine whether a lighting system is “ostentatious,” and that the phrase “may be offensive to adjacent neighbors” merely makes a neighbor’s sensibilities an important factor, but not a decisive one, in the Board’s decision. This interpretation ensures that aesthetic concerns can be met by the Board without judicially engrafting a neighbor’s veto into the restriction. Though section 3.17(b) clearly does not contain such a veto, we note that as the drafter and enforcer of the restriction, any claimed ambiguity in section 3.17(b) would be construed against the Board and the Whites, respectively. Shields, 872 So.2d at 1006; Hurt v. Leatherby Ins. Co., 380 So.2d 432, 434 (Fla.1980) (“Generally, ambiguities are construed against the drafter of the instrument.”).

In holding that section 3.17(b) cannot be read to include a neighbor veto, we note that Mr. Moore testified that the “idea” for requiring neighbor approval “was basically a decision of the [Board]” that was not explicitly in the Covenants, which cannot be altered by the Board unilaterally. The Board feared it might get enmeshed in litigation and thereby “become the focus of the issue rather than keeping the issue between the two owners.” While the Board may have believed that compulsory neighbor-approval was the better course to keep the Board out of such disputes (and out of court), a more clearly worded restriction would be necessary under the longstanding legal principles that guide courts in these types of enforcement actions.

We have no quibble with the Board’s point that townhouse living, particularly for contiguous wall-sharing owners, presents unique personal compatibility concerns that may have been the unstated motivation for section 3.17(b). The Board felt that section 3.17(b) was unique because it “only exists in this one subdivision for this limited group of townhouses” and, in its view, left the Board with no authority to approve a lighting plan in the face of a neighbor’s objection, no matter how unreasonable. Our construction of section 3.17(b)’s language, however, does not defeat its central purpose of ensuring that the concerns of neighboring townhouse owners are taken into account. See Robins v. Walter, 670 So.2d 971, 974 (Fla. 1st DCA 1995) (“[Wjhile we are aware that restrictive covenants should be narrowly construed, they should never be construed in a manner that would defeat the plain and obvious purpose and intent of the restriction.”). To the contrary, much elbow room is left to achieve an aesthetically acceptable lighting plan that meets community and neighborly norms without the interlineation of a veto power. The natural reading of section 3.17(b) is that the Board must consider in its calculus the views of neighbors who may be (or are) offended. The Board may give this factor significant weight, but it cannot give it conclusive or exclusive weight. Other factors, such as the Whites’ concerns about the adverse effects of nighttime light intrusion on their home and the Learners’ desire to have safety lights left on when they are away to ward off burglars (some of whom may surreptitiously use their elongated dock at night to gain entry to the townhouses), should be put on the Board’s decision-making scale. As it does in other contexts, the Board must render a measured judgment about the importance of the concerns expressed and render the ultimate decision on what to approve as reasonable. Indeed, it appears to have done just that here. After various modifications to the Learners’ lighting plan, the Board deemed it reasonable and accorded it conditional approval. But for the Whites’ veto, the Board adjudged the new and improved lighting plan as an acceptable one.

III.

In closing, we note that our holding, which finds no support in the restrictive covenants for an adjacent-neighbor veto, requires the Board to make the ultimate determination regarding whether a proposed lighting system complies with section 3.17(b). The Board has been making judgment calls about the reasonableness of lighting systems elsewhere in the community, so we are confident that it can navigate between the Seylla of restrictive covenants and the Charybdis of neighbors’ sensitivities in this case as well. Because section 3.17(b) does not grant the power to veto an adjacent neighbor’s lighting system, the entry of summary judgment against the Learners was error. We reverse and vacate the final judgment on that basis, and direct entry of judgment for the Learners on their motion for summary judgment (which sought -a ruling that no neighbor veto existed) except as to their selective enforcement claim for which we find no error. See Killearn Acres Homeowners Ass’n, Inc. v. Keever, 595 So.2d 1019 (Fla. 1st DCA 1992).

REVERSED IN PART, AFFIRMED IN PART.

RAY and OSTERHAUS, JJ., concur.

      . Initially this dispute involved the husbands, Mr. Gerald White and Mr. Fred Learner, but both were dropped from this litigation prior to final judgment as named parties because neither is listed as an owner of the two townhouses (their respective wives replacing them as named parties). For simplicity, we will refer generally to the owners/parties as Mr. Learner and Mr. White because it is their names that appear on most of the relevant emails, letters, and other correspondence regarding the matter.

      . Shields v. Andros Isle Prop. Owners Ass’n, Inc., 872 So.2d 1003, 1006 (Fla. 4th DCA 2004) (signs placed on inside windows of homeowner’s vehicle do not violate covenant against vehicles with "no lettering or signage thereon”); Wilson v. Rex Quality Corp., 839 So.2d 928 (Fla. 2d DCA 2003) (restrictive covenant did not prevent residents from parking their company's vehicle in driveway).

      . Killearn Acres Homeowners Ass’n, Inc. v. Keever, 595 So.2d 1019 (Fla. 1st DCA 1992) (satellite television dish is a “structure” subject to restrictive covenant, which architectural review board applied fairly by prohibiting in front and side yards).

      . Lakeridge Greens Homeowners Ass’n, Inc. v. Silberman, 765 So.2d 95 (Fla. 4th DCA 2000) (hanging of 2' x 4' terra cotta plaque, "which depicts three, clothed cherubs pouring water from a pail,” subject to approval of community architectural control board).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Andy HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3157.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2015.
    Andy Hernandez, Groveland, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee. ■
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

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


author: ROTHENBERG, J.

text:
    Ursula Q. SILVEIRA, Petitioner, v. Guardianship of Ana Maria QUIROGA, Respondent.
    No. 3D13-2302.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2015.

      Ursula Q. Silveira, in proper person.
    Guardianship Program of Dade County, Inc., and Caren Lesser and Farah Viota, for respondent.
    Before ROTHENGERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

On March 26, 2013, the Chief Executive Officer of Kindred Hospital (“CEO”) filed a petition to determine whether Ana Maria Quiroga (“Ana Maria”) was legally incapacitated. The petition provided the names of Ana Maria’s next of kin, listing both her sister, Ursula Q. Silveira (“Ms. Silveira”), and her mother, Digna Lopez (“Ms. Lopez”), as required by section 744.3201(l)(g), Florida Statutes (2013). The petition also alleged that Ana Maria was not using her social security check and that the social security money was not being used in her best interests. In support of the petition, the CEO attached a psychiatric re-evaluation that had been performed on Ana Maria the month before, wherein the psychiatrist noted that Ana Maria had stated that she could no longer make her own health care decisions and wanted these decisions to be made by her sister or another family member.

Thereafter, the trial court appointed a three-member examining committee to determine Ana Maria’s capacity as specified in section 744.331(3)(a), Fla. Stat. (2013). The trial court also appointed the Office of Criminal Conflict and Civil Regional Counsel to represent Ana Maria. See § 744.331(2)(a), Fla. Stat. (2013).

On April 11, 2013, the CEO filed a Formal Notice of Petition to Determine Incapacity and For the Appointment of Guardianship (“Formal Notice”), notifying Ana Maria, as the “alleged incapacitated person,” that the petition to determine incapacity and to seek the appointment of a guardian had been filed and that a hearing to appoint a guardian would be conducted on May 14, 2013. The Formal Notice specifies that “the notice must be read to the alleged incapacitated person.” The certificate of service indicates that a copy of the Formal Notice was furnished to Ana Maria’s counsel and known next of kin.

On April 22, 2013, the members of the reporting committee filed their reports. Each member agreed that Ana Maria is incapacitated, see § 744.3215(2), (3), Fla. Stat. (2013), and recommended that a plenary guardian be appointed.

On May 10, 2013, four days before the guardianship hearing, Ana Maria’s sister, Ms. Silveira, filed a notice of unavailability stating that she was not available from May 9, 2013 to May 30, 2013. Ms. Sil-veira’s notice also claimed that she was Ana Maria’s guardian, and therefore, she must be present when the “petition” is read to Ana Maria.

On May 14, 2013, the Guardianship Program of Dade County, Inc. (“GPDC”) filed its petition seeking to be appointed as Ana Maria’s plenary guardian. This petition also listed Ms. Silveira and Ms. Lopez as Ana Maria’s next of kin.

The trial court heard argument regarding the petition to determine incapacity and the petition for appointment of a guardian despite Ms. Silveira’s notice of unavailability. Following the hearing on May 14, 2013, the trial court entered an order finding that Ana Maria is totally incapacitated and in need of a plenary guardian based on the clear and convincing evidence presented at the hearing. This order specifies that the notice of hearing and petition were read to Ana Maria, Ana Maria’s known next of kin were given the petition and notified of the hearing, Ana Maria’s counsel was present at the hearing, and the trial court had taken testimony and considered the reports of the examining committee. The trial court appointed GPDC, a public guardian, as Ana Maria’s plenary guardian.

A public guardian should be appointed where “there is no willing and responsible family member or friend, other person, bank, or corporation available to serve as guardian for an incapacitated person, and such person does not have adequate income or wealth for the compensation of a private guardian.” § 744.702, Fla. Stat. (2011). In addition to being “willing and responsible,” the family member or friend seeking to be appointed guardian cannot be statutorily disqualified to be appointed as a guardian. See § 744.309(3), Fla. Stat. (2013).

The record before this Court does not explain why the trial court appointed a public guardian, GPDC, when Ana Maria’s sister, Ms. Silveira, is willing to act as guardian and has actively attempted to take that role. The record before this Court does not include a transcript of the hearing conducted on May 14, 2013, see Fla. Prob. R. 5.541 (“Electronic or stenographic recordings shall be made of all hearings on the: (a) adjudication of incapacity; (b) appointment of a guardian .... ”), and the trial court’s order appointing GPDC as Ana Maria’s guardian does not address Ms. Silveira whatsoever.

After the trial court appointed GPDC as guardian, Ms. Silveira filed numerous pro se motions and petitions essentially seeking to have GPDC removed as her sister’s plenary guardian and to have herself appointed as the plenary guardian instead. Florida Probate Rule 5.660(a) provides: “Proceedings for removal of a guardian may be instituted by a court or by verified petition of any other guardian, any surety, the next of kin, or any other interested person.” (emphasis added). However, a review of Ms. Silveira’s numerous petitions and motions reflect that they do not comply with the legal requirements for a petition for the appointment of a guardian, see § 744.334, Fla. Stat. (2013); Fla. Prob. R. 5.560, or the requirements for a petition for the removal of a guardian, see §§ 744.474, 744.477, Fla. Stat. (2013).

In response to Ms. Silveira’s numerous motions and petitions, the trial court entered an order on August 9, 2013, finding, in part, that despite appointing GPDC as Ana Maria’s guardian on May 14, 2013, Ms. Silveira “professes to be the Guardian, Decision Maker and Trustee for [Ana Maria] while in actuality she holds none of those positions.” Further, the trial court found that Ms. Silveira continues to file “pleadings, personally visit[] the Courthouse and make[ ] telephone calls purportedly on behalf of her sister while having no authority to do so.” Therefore, “should [Ms.] Silveira seek to become the legal guardian of her sister she shall retain an attorney to file the appropriate Petition on her behalf and in the interim shall refrain from the above described actions.” On September 27, 2013, the trial court entered an order clarifying its August 9, 2013, order and ordering the Clerk for Miami-Dade County to accept no further pleadings from Ms. Silveira because she filed a pleading following the trial court’s August 9, 2013 order.

Ms. Silveira appeals the trial court’s August 9, 2013, and September 27, 2013, orders. We treat Ms. Silveira’s appeal as a petition for writ of certiorari, grant the petition, and quash the orders under review in part.

In GPDC’s memorandum of points and authority in support of its position, GPDC asserts that pursuant to Florida Probate Rule 5.030(a), Ms. Silveira cannot file any pro se motions or pleadings because guardians “shall be represented by an attorney admitted to practice in Florida.” GPDC’s reliance on rule 5.030(a), however, is misplaced because Ms. Silveira is not a “guardian” as defined in the Florida Probate Rules, see Fla. Prob. R. 5.015(b)(6) (defining a “guardian” as “a person appointed pursuant to chapter 744, Florida Statutes, or a guardian advocate unless a rule indicates otherwise”), or in the Florida Guardianship Law, see § 744.102(9) (defining a “guardian” as “a person who has been appointed by the court to act on behalf of a ward’s person or property, or both”). Here, Ms. Silveira has not been appointed by the trial court to act as Ana Maria’s guardian, and therefore, rule 5.030(a) does not apply to her. Ms. Silveira accordingly cannot be precluded from filing further documents on that basis.

A trial court, however, does have the inherent authority to prevent “abusive litigants from continuously filing frivolous petitions.... ” See Sibley v. Sibley, 885 So.2d 980, 985 (Fla. 3d DCA 2004) (quoting Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998)). Further, if a litigant is abusing the legal process, the trial court can require that the litigant obtain counsel in order to proceed. See Sibley, 885 So.2d at 985. Although we understand the trial court’s frustration, as Ms. Silveira’s various filings seeking to be appointed as her sister’s guardian do not comply with the applicable statutes and procedural rules, see § 744.334, Fla. Stat. (2013); Fla. Prob. R. 5.560, our review of the record indicates that Ms. Silveira’s actions have not risen to the point that she should be precluded from filing further pro se pleadings.

Accordingly, we grant the petition for writ of certiorari and quash the portion of the August 9, 2013, order requiring Ms. Silveira to retain an attorney in order to file a petition for appointment of a guardian and also quash the portion of the September 27, 2009, order that directs the Clerk of the Court for Miami-Dade County not to accept any further filings from Ms. Silveira. We do not quash the portion of the trial court’s August 9, 2013, order which prohibits Ms. Silveira from holding herself out as Ana Maria’s guardian.

We also take this opportunity to explain to Ms. Silveira that pro se litigants are not held to a “lesser standard than a reasonably competent attorney.” See Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992). Therefore, if she opts to file a pro se petition seeking to be appointed as her sister’s guardian, the petition must sufficiently comply with the applicable statutes and procedural rules. Further, due to Ana Maria’s declining health, Ms. Silveira should consider retaining counsel or seeking pro bono legal assistance.

Petition granted; orders quashed in part.

      . The record indicates that Ana Maria receives both Social Security and a private pension totaling approximately $2700 per month.

      . Ms. Silveira did not appeal the trial court’s order appointing GPDC as Ana Maria’s plenary guardian.

      . This Court issued an order directing GPDC to file an answer brief within ten days from the date of the order or be precluded from filing a brief and/or presenting an oral argument. GPDC failed to file an answer brief as directed by this Court. Thereafter, this Court issued an order precluding GPDC from filing an answer brief or presenting an oral argument unless otherwise ordered, but allowed GPDC to file a memorandum of points and authorities in support of its position.


author: LAGOA, J.

text:
    Rhondel PARIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1402.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2015.
    Rhondel Paris, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Rhondel Paris appeals from an order denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we affirm the trial court’s denial.

“A rule 3.800(a) motion to correct an illegal sentence is intended to address cases in which the sentence imposes ‘a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.’ ” Rutherford v. State, 93 So.3d 1132, 1132 (Fla. 1st DCA 2012) (quoting Carter v. State, 786 So.2d 1173, 1178 (Fla.2001)); see also Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1992) (en banc) (“[Rule 3.800(a)] is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.” Instead, this rule “is intended to provide relief for a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law.”).

Here, appellant does not explain how his sentence fails to comport with either the statutory or constitutional limitations. Instead, appellant’s motion solely asserts that the trial court failed to consider mitigating factors during his sentencing and that, therefore, he is entitled to be resen-tenced. Because we find that appellant’s motion is legally insufficient to show that his sentence was illegal pursuant to rule 3.800(a), we affirm the trial court’s order.

Affirmed.


text:
    Moshe MAZINE, Appellant, v. BRANCH BANKING AND TRUST COMPANY, Appellee.
    No. 3D14-2092.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2015.
    David H. Charlip, for appellant.
    Kass Shuler, P.A., and Melissa A. Giasi (Tampa), for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   CONFESSION OF ERROR

LAGOA, J.

Appellant, Moshe Mazine (“Mazine”), appeals an order denying his Motion to Quash Service by Publication and directing Mazine to file a response to Appellee Branch Banking and Trust Company’s complaint. Based on Appellee’s proper confession of error, we reverse the trial court’s order denying Mazine’s Motion to Quash Service by Publication.

While Appellee submits that adequate evidence was presented to the trial court to establish that Mazine was avoiding service and service by publication would be permitted pursuant to section 49.041(3)(c),. Florida Statutes (2013), Appellee concedes that the trial court’s order was incorrectly predicated on a sworn statement made pursuant to section 49.041(3)(a), i.e., that Mazine’s residence was “[u]nknown to the affiant.” Accordingly, we reverse the trial court’s order and remand for further proceedings.

REVERSED AND REMANDED.


text:
    Wallace A. WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2629.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2015.
    Wallace A. Woods, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to .make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Daniel ROBIDA, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1292.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.
    Daniel Robida, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tab lahassee,- and Kaylee D. Tatman, Assistánt Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Daniel Robida, pro se, in a belated appeal accepted by this court, appeals his judgment and sentence arguing that his counsel was ineffective for not advising him that the State’s plea offer of a bottom-of-guidelines sentence should have been five and a half years, rather than eight years. We disagree and affirm.

Robida was charged with three counts of unlawful sexual activity with a minor. Robida made a recorded confession in which he admitted to sexual activity with the minor on three separate ocea-sions. He rejected the State’s initial offer of eight years on one count of unlawful sexual activity with a minor, entered open guilty pleas to three counts of unlawful sexual activity with a minor, and was sentenced to a composite sentence of 214 months (17.83 years) in the Department of Corrections (“DOC”). Robida insists on appeal that he rejected the offer of eight years, not the bottom-end of the guidelines sentence offer.

Generally, ineffective assistance of counsel claims are not cognizable on direct appeal. Larry v. State, 61 So.3d 1205, 1207 (Fla. 5th DCA 2011). However, prior to his belated appeal, Robida filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 to address a seven-year plea deal allegedly offered by the State. Consequently, the trial court held an evidentiary hearing to consider Robida’s motion. See Robida v. State, 118 So.3d 814 (Fla. 5th DCA 2013) (affirming trial court’s denial of Robida’s 3.850 motion). The trial transcript clearly refutes the claim Robida now makes on direct appeal, and plainly establishes that the State’s only offer was 8 years DOC on one count of unlawful sexual activity with a minor regardless of the lowest possible guidelines sentence.

Accordingly, we find that Robida has failed to establish that his counsel was ineffective.

AFFIRM.

BERGER, LAMBERT and EDWARDS, JJ., concur.

      . Robida v. State, 135 So.3d 1136 (Fla. 5th DCA 2014).


author: ORFINGER, J.

text:
    Kendal Pierre COBB, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4432.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Kendal P. Cobb appeals his conviction of lewd act upon a child, which was alleged to be in violation of section 800:04(1), Florida Statutes (2012). He contends, and the State concedes, that the information neither referenced a statute that establishes a crime, nor set forth the essential elements of any substantive crime. The State also concedes that the error is fundamental. The parties differ only on the relief to which Mr. Cobb is entitled. The State argues that a new trial is appropriate, whereas Mr. Cobb argues that he is entitled to be discharged.

We conclude that discharge is appropriate. When a conviction is based on a nonexistent crime, a retrial is appropriate only on any lesser offenses instructed on at trial. See State v. Gibson, 682 So.2d 545, 546 (Fla.1996); see also State v. Brady, 685 So.2d 984 (Fla. 5th DCA 1997) (holding when defendant convicted of non-existent crime, remedy is retrial only on lesser offenses on which jury was instructed). Those lesser offenses not instructed on at trial cannot be the basis for a retrial. Gibson, 682 So.2d at 546. Here, no lesser offenses were submitted to the jury at trial. Hence, Mr. Cobb is entitled to discharge.

REVERSED and REMANDED.

BERGER and LAMBERT, JJ., concur.

      . An earlier version of section 800.04(1), Florida Statutes (1998), provided that "[a] person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner ... without committing the crime of sexual battery, commits a felony of the second-degree....” That section of the statute was amended in 1999 to set forth definitions only and no substantive crimes.


text:
    Shirley McKINNEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D14-851, 5D14-852.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.
    James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Shirley McKinney appeals the judgment and sentence imposed against her after the trial court found that she had violated her probation. Although there is substantial, competent evidence to support the trial court’s decision, we are compelled to remand because the trial court failed to enter a written order specifying the conditions of probation that McKinney willfully violated. See Roberts v. State, 76 So.3d 1047, 1048 (Fla. 5th DCA 2011) (“This court has consistently held that the trial judge must specify, in the written order or judgment, which conditions of probation or community control have been violated.”).

Accordingly, we vacate the judgment under review and remand for entry of a proper order specifying the conditions that McKinney was found to have violated.

Judgment VACATED; case REMANDED with directions.

BERGER, WALLIS and LAMBERT, JJ., concur.


text:
    D.A.B., A CHILD, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-964.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

D.A.B. appeals an order directing payment of restitution. In April of 2018, D.A.B. pleaded no contest to charges of taking a deer at night and unlawfully possessing a firearm and knife. In May, at the time of disposition, an issue arose as to the characterization of a $1,000 payment D.A.B. was ordered to make. No order resolving that issue was entered until February 2014, by which time D.A.B. had turned nineteen years old. As conceded by the State, the juvenile court’s authority to order restitution ends when the child turns nineteen. J.D. v. State, 849 So.2d 458, 460 (Fla. 4th DCA 2003). Accordingly, the order under appeal is quashed.

ORDER QUASHED.

PALMER, COHEN and EDWARDS, JJ., concur.

      . That order also terminated D.A.B.’s probation.


text:
    Amiri T. LUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1999.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.
    Amiri T. Lundy, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Amiri Lundy appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that motion, Lundy alleged separate claims numbered one through nine. Our review of the Order reveals that as to claims numbered one through four and claim number eight, the records attached do not refute Lundy’s claims of ineffective assistance of counsel. We, therefore, reverse that part of the Order under review summarily denying claims one, two, three, four, and eight and remand for an evidentiary hearing. In all other respects, the Order is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

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


author: COHEN, J.

text:
    Cassandra Leigh HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-456.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.

      James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Cassandra Harvey appeals the revocation of her community control. On appeal, Harvey challenges the sentence imposed, and the trial court’s finding that her violation was willful and substantial. We find no error in the court’s determination that the violation of community control was willful and substantial. However, the court appears to have failed to appreciate its sentencing options, and we feel compelled to remand for resentencing.

Following an earlier violation of community control, Harvey was reinstated to community control with a seven-year suspended sentence imposed. After she once again violated her community control, the trial court sentenced her to seven years’ imprisonment, remarking, “[this] is a seven year suspended sentence. She violated; it’s an automatic sentence.”

Apparently, the trial court was unaware that the only thing accomplished by suspending a sentence is that the trial court is limited if and when the individual violates probation or community control. The suspended sentence acts as a cap on the sentencing judge. See, e.g., Lacey v. State, 831 So.2d 1267, 1269-70 (Fla. 4th DCA 2002) (“This puts a cap on what the judge may sentence, but in no way indicates that there is no discretion.”). It is not an “automatic sentence” in the sense that the trial court is required to impose the suspended sentence in the event of a violation. Instead, the court retains the discretion and authority to impose any sentence it could otherwise have imposed. Casey v. State, 50 So.3d 782 (Fla. 2d DCA 2010); Nadzo v. State, 24 So.3d 690 (Fla. 2d DCA 2009); Cowart v. State, 860 So.2d 1041 (Fla. 5th DCA 2003); Lacey, 831 So.2d at 1270; Griffin v. State, 783 So.2d 337 (Fla. 5th DCA 2001).

We make no determination as to the propriety of the sentence imposed. The trial court was well within its discretion to impose such a sentence and is not precluded from doing so again on remand. However, implicit in the exercise of discretion is the knowledge that such discretion exists. We remand for reconsideration of the sentence imposed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PALMER and EDWARDS, JJ., concur.

      . Harvey was on community control for robbery with a deadly weapon, dealing in stolen property, and giving false verification of ownership to a pawnbroker.


text:
    Jamal POLLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3039.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2015.
    Gary Schwartz, of Brownstone, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Jamal Pollock appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We conclude that the trial court’s order and the attachments thereto, do not conclusively negate Pollock’s claims, which are facially sufficient to warrant a hearing. Accordingly, we reverse the trial court’s order denying relief and remand this matter for an evidentiary hearing.

REVERSED and REMANDED.

SAWAYA, ORFINGER and LAMBERT, JJ., concur.


text:
    Aurea SANTOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2640.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2015.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

Appellant, Aurea Santos (“Santos”), appeals from the trial court’s order summarily denying her Motion for Post-Conviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we find that the trial court erred in denying Santos’s Motion for Post-Conviction Relief without first holding an evidentiary hearing, we reverse the trial court’s order and remand for further proceedings.

1. FACTUAL AND PROCEDURAL HISTORY

Santos was charged with one count of dealing in stolen property and one count of unlawfully purchasing regulated metals property. Santos pled guilty to both counts. As a condition of the plea, the trial court withheld adjudication and sentenced her to three years on probation.

After entering the plea, Santos filed a Motion for Post-Conviction Relief requesting the right to withdraw her guilty plea pursuant to Rule 3.850. Santos asserted that trial counsel had not properly advised her of the elements for the charged offense. In summarily denying the motion, the trial court attached a transcript of the plea colloquy to its written order. The trial court determined that Santos knowingly entered the plea, that she understood the nature of the charges against her and the consequences of the plea, and that Santos waived her right to require the State prove its case against her beyond a reasonable doubt.

II. ANALYSIS

We conclude that the trial court erred in summarily denying Santos’s Motion for Post-Conviction relief based on ineffective assistance of trial counsel. In Jacobs v. State, 880 So.2d 548 (Fla.2004), the Florida Supreme Court explained that “if the trial court finds that the motion is facially sufficient, that the claim is not conclusively refuted by the record, and that the claim is not otherwise procedurally barred, the trial court should hold an evidentiary hearing to resolve the claim.” Id. at 551. After reviewing the plea colloquy attached to the trial court’s order, we conclude that the colloquy does not conclusively refute Santos’s allegation of ineffective assistance of counsel.

Because the attached plea colloquy to the trial judge’s order does not refute Santos’s sworn claim regarding ineffective assistance of her defense counsel, the trial court must conduct an evidentiary hearing. See, e.g., State v. Leroux, 689 So.2d 235, 237-38 (Fla.1996) (reversing for evidentia-ry hearing because plea colloquy and record did not conclusively refute defendant’s post-conviction relief claim); Bowers v. State, 862 So.2d 772, 773-74 (Fla. 4th DCA 2003) (same); Fisher v. State, 824 So.2d 1050, 1051-52 (Fla. 3d DCA 2002) (same); Lewis v. State, 795 So.2d 1061, 1061-62 (Fla. 4th DCA 2001) (same); Rensoli v. State, 718 So.2d 1278, 1279 (Fla. 3d DCA 1998) (same); Kit v. State, 654 So.2d 1235, 1236 (Fla. 2d DCA 1995) (same).

Accordingly, on remand, Santos is entitled to an evidentiary hearing to determine if her allegation is true that trial counsel failed to correctly advise her regarding the elements of the charged offense. If Santos proves her allegation of ineffective assistance of counsel, she should be given the opportunity to withdraw her plea and proceed to trial.

REVERSED AND REMANDED.

      . Section 812.019(1), Florida Statutes (2012), states: "Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084.”

      . Section 538.26(4), Florida Statutes (2012), reads in relevant part: "It is unlawful for a secondary metals recycler to do or allow any of the following acts ... (4)[p]urchase regulated metals property....”


text:
    Ariel BUENO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1296.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2015.
    Ariel Bueno, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

Upon the State’s motion for clarification, we withdraw our previously-issued opinion and substitute the following opinion in its stead.

Appellant, Ariel Bueno, appeals from an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). After Bueno filed his initial brief, we directed the State to file an answer brief addressing whether the judgment and sentence accurately reflects the oral pronouncement made by the trial court at the time of sentencing. In its answer brief, the State acknowledges that the judgment and sentence do not conform to the trial court’s oral pronouncement, but correctly points out that Bueno did not raise this issue in the trial court, and we therefore do not consider it on appeal. Stangarone v. State, 94 So.3d 652 (Fla. 4th DCA 2012).

As to the issues which Bueno did raise in his motion below and on appeal, we find they are without merit and affirm the trial court’s order denying same. Our affirmance is without prejudice to the filing, by either party, of a motion to correct illegal sentence to the extent the written judgment and sentence conflicts with the oral pronouncement. See Fla. R. Crim. P. 3.800(a) (providing that “[a] court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief....”); Williams v. State, 957 So.2d 600 (Fla.2007) (holding that where it is apparent from the face of the record that a written sentence conflicts with the oral pronouncement, relief is properly sought by a motion to correct illegal sentence under rule 3.800(a)). Affirmed without prejudice.

      . In its oral pronouncement (as set forth in the transcript of the plea colloquy), Bueno agreed to, and the trial court imposed, a prison sentence of twenty-five years as to Count One, and a consecutive term of fifteen years' probation as to Count Two. This oral pronouncement was consistent with the negotiated terms of the written plea agreement between the State and Bueno, and was notated in the Criminal Punishment Code Score-sheet setting forth the terms of the sentence imposed. However, the written sentence reflects concurrent sentences of twenty-five years' prison as to both Count One and Count Two, and fails to include a separate order of probation.


text:
    BATH FITTER FRANCHISING, INC., Appellant/Cross-Appellee, v. Fernand LABELLE, Appellee/Cross-Appellant.
    No. 3D14-2053.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2015.
    Rehearing Denied March 3, 2015.
    Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and Carolina A. Latour and Teresa Ragatz, for appellant/cross-appel-lee.
    Chepenik Trushin and Daniel F. Bach-man, for appellee/cross-appellant.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Bath Fitter Franchising, Inc., a franchisor and independent operator specializing in the manufacture, sale, and installation of bathroom products, appeals a non-final order denying its emergency motion for a preliminary injunction against Fernand Labelle, formerly the owner of a minority interest in a Bath Fitter franchisee. La-belle cross-appeals the trial court’s eviden-tiary ruling that a surreptitiously-recorded telephone conversation was inadmissible.

In the appeal, we find no error in the trial court’s determination that the substantive law of Vermont was controlling, Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 311 (Fla.2000), as specified in the franchise agreement. We also conclude that the trial court correctly applied the substantive law of Vermont in denying the motion for an injunction on multiple grounds. Roy’s Orthopedic, Inc. v. Lavigne, 487 A.2d 173 (Vt.1985).

In the cross-appeal, we find no abuse of discretion and affirm the trial court’s exclusion of the surreptitiously-recorded telephone conversation. One of the parties was in Florida and unaware that the conversation was being recorded in Utah. We venture no opinion regarding the result if the recorded telephone conversation was offered in a court in Utah (which has a different statute requiring only one party’s consent). In a Florida proceeding such as this, however, the recording and “evidence derived therefrom” are inadmissible (with limited exceptions inapplicable to this record). § 934.06, Fla. Stat. (2014).

Affirmed as to both the appeal and cross-appeal.


text:
    The STATE of Florida, Petitioner, v. Aaron MALDONADO, Respondent.
    No. 3D15-159.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2015.
    Rehearing Denied Feb. 24, 2015.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for respondent.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LAGOA, J.

The State of Florida petitions this Court for the issuance of a writ of certiorari quashing the trial court’s order denying the State’s motion to place the Respondent, Aaron Maldonado, into custody. Because the trial court has not rendered a written order, we dismiss this petition for lack of certiorari jurisdiction. See Burns v. State, 906 So.2d 351, 351 (Fla. 3d DCA 2005) (“[S]ince the trial court has not rendered an order regarding the defendant’s bond, and in fact has not modified the defendant’s pretrial release, we conclude that the certiorari jurisdiction of this court has not been invoked.”); see also Owens v. State, 579 So.2d 311, 312 (Fla. 1st DCA 1991) (district court of appeal did not have jurisdiction absent signed, written order by trial court and transcript could not substitute for written order); Fla. Citrus Comm’n v. Griffin, 249 So.2d 42, 43 (Fla. 2d DCA 1971) (even if order on appeal was dictated into the record, but the trial judge did not render a written order, the appeal must be dismissed for lack of jurisdiction).

Petition dismissed.


text:
    Waldo JEUNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-16.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2015.
    Waldo Jeune, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Perez v. State, 34 So.3d 99 (Fla. 3d DCA 2010); Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994).


text:
    Katrina DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0017.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2015.
    Katrina Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: WOLF, J.

text:
    Maria Eileen BRATTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4923.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2015.
    Nancy A. Daniels, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   WOLF, J.

In this Anders appeal, appellant raises two minor sentencing errors. She argues the trial court erred in imposing a $100 sheriffs investigatory cost because there was no request for that cost on the record. She further argues the court erred in imposing a public defender lien because the court did not inform her of her right to a hearing to dispute the amount. Appellant preserved these issues through a motion filed pursuant to Florida Rule of Appellate Procedure 8.800(b). The trial court purported to grant the motion and strike the cost and lien. However, because the court ruled on the motion more than sixty days after the motion was filed, the motion was deemed denied, and the order was a nullity. Johnson v. State, 149 So.3d 732, 733 n. 2 (Fla. 1st DCA 2014).

Having been given the opportunity to respond pursuant to Harrison v. State, 146 So.3d 76, 80-81 (Fla. 1st DCA 2014), the State concedes error. Thus, we strike the sheriffs investigatory cost because there was no request for that cost on the record. See Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011) (striking sheriffs investigatory costs because there was “no record evidence that they were requested or documented by the State” as required by section 938.27, Florida Statutes).

We also strike the public defender lien and remand with instructions that the trial court advise appellant of her right to contest the amount of the lien. See Harrison, 146 So.3d at 79 (finding where the trial court fails to give the defendant the “ ‘opportunity to object’ to the cost of defense ... we are constrained to reverse this [] cost and remand for the trial court to advise Appellant of his right to a hearing to contest the amount of the indigent legal assistance lien”); § 938.29(5), Fla. Stat.; Fla. R. Crim. P. 3.720(d)(1). Appellant’s judgment and sentence are otherwise affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED with instructions.

BENTON and MAKAR, JJ., concur.

         Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    John A. RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-6041.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2015.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee:
   PER CURIAM.

This appeal is brought under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the record on appeal, we affirm Appellant’s conviction for aggravated battery while in actual possession of a firearm and the ten-year mandatory minimum sentence the trial court imposed.

However, the record reveals potential errors in the imposition of costs and fees, and a discrepancy between the total amount orally announced and the total reflected in the written judgment and sentence. In order to reverse for sentencing errors in an Anders appeal, the appellant must have preserved the errors either by objecting when the sentence was imposed or by filing a motion to correct sentencing errors. See A.L.B. v. State, 23 So.3d 190, 191 (Fla. 1st DCA 2009). Appellant did neither in this case; therefore we must affirm. But we do so without prejudice to his hereafter filing an appropriate post-conviction motion. See A.L.B., 23 So.3d at 192 (“Today’s affirmance is without prejudice to appellant’s right to seek relief collaterally[.]”); Colon v. State, 869 So.2d 1290, 1290 (Fla. 4th DCA 2004).

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Willie C. GRANT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3558.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2015.
    Willie C. Grant, Jr., Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Affirmed without prejudice to Grant’s right to file a timely motion under Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

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


text:
    Decius Gene JULES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4323.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2015.
    Decius Gene Jules, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and treated as the notice of appeal from the July 1, 2014, order denying postconviction relief in Case No. 2010-CF-8869-C, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, C.J., ORFINGER, EVANDER, JJ., concur.


text:
    Michael Dennard GOODSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0347.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2015.
    Michael Dennard Goodson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, WETHERELL, and BILBREY, JJ., concur.


author: FERNANDEZ, J.

text:
    U.E., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et. al., Appellees.
    No. 3D14-2598.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2015.
    Richard F. Joyce, for appellant.
    Karla Perkins, Appellate’ Counsel for the Department of Children & Families; Patricia Propheter, Appellate Counsel for the Guardian Ad Litem Program.
    Before ROTHENBERG, LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

ON CONCESSION OF ERROR

Based upon appellee Department of Children and Families’ Concession of Error, we reverse the appealed-from order, and remand for further proceedings in the trial court.

Reversed and remanded.


text:
    Manuel CHINCHILLA, etc., et al., Petitioners, v. INTERNATIONAL PETROCHEMICAL SALES LIMITED, etc., Respondent.
    No. 3D14-3047.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2015.

      Carey Rodriguez O’Keefe Milian Gonya, LLP, and Juan J. Rodriguez and David M. Levine, for petitioners.
    Hogan Lovells U.S. LLP, and Richard C. Lorenzo, Alvin F. Lindsay, and Yara Lorenzo, for respondent.
    Before WELLS, LAGOA, and LOGUE, JJ.
   PER CURIAM.

We deny the petition for certiorari and approve the trial court’s order overruling exceptions to the carefully-crafted, narrowly-drawn, and well-reasoned report and recommendation of General Magistrate Elizabeth M. Schwabedissen.

Denied.


text:
    Leif WHITE, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Nexus Staffing Solutions, Appellees.
    No. 1D14-4639.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2015.
    Leif White, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Assistant Court Chief, Tallahassee, for Appellee Reemployment Assistance Appeals Commission.
   PER CURIAM.

AFFIRMED. See Hill v. Unemployment Appeals Comm’n, 686 So.2d 658, 659 (Fla. 5th DCA 1996); Ahlswede v. Brumm Contracting, Inc., 583 So.2d 438 (Fla. 3d DCA 1991).

MARSTILLER and RAY, JJ, and TERRELL, TERRY D., Associate Judge, concur.


text:
    Alvin Pierre CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-5421.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2015.
    Bruce A.- Miller, Public Defender, and Alice F. Harris and Jasmine Green, Assistant Public Defenders, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to the appellant’s right to seek a belated appeal.

RAY, MAKAR, and BILBREY, JJ., concur.


text:
    Sascha HUFER (“HOMEOWNER”), Appellant, v. BANK OF AMERICA, N. A., Unknown Spouse of Sascha M. Hufer; Unknown Tenant I, Unknown Tenant II; Oakleaf Plantation West Property Owners Association, Inc., and any Unknown Heirs, Devisees, Grantees, Creditors, and other unknown Persons or Unknown Spouses Claiming by, Through and Under any of the Above-Named Defendants, Appellees.
    No. 1D14-2003.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2015.
    Amanda L. Lundergan and Thomas Ers-kine Ice of ICE Appellate, Royal Palm Beach, for Appellant.
    Alan M. Pierce and J. Randolph Liebler of Liebler, Gonzalez & Portuondo, Miami, for Appellees.
   PER CURIAM.

Upon appellee’s proper confession of error, we reverse the final summary judgment and remand to the trial court for further proceedings. We conditionally grant appellant’s motion for appellate attorney’s fees and remand to the trial court for further proceedings thereon should appellant ultimately prevail below.

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