author: ' ROBERTS, J. PADOVANO, J.,

text:
    David P. TROTTI, Appellant, v. Ken DETZNER, Secretary of State, Appellee.
    No. 1D14-3667.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2014.
    Rehearing Denied Sept. 29, 2014.

      David P. Trotti, pro se; Nick James and Christopher W. LoBianco of Hunt, Green & James, Jacksonville, for Appellant.
    J. Andrew Atkinson, General Counsel, Ashley E. Davis and Thomas D. Winokur, Assistant General Counsels, Tallahassee, for Appellee.
    John S. Mills and Andrew D. Manko of The Mills Firm, Tallahassee, for Intervener, Bruce R. Anderson, Jr.
   ' ROBERTS, J.

The appellant, David Trotti, seeks review of an order of the Second Judicial Circuit in and for Leon County that denied his emergency petition for writ of mandamus, which sought to compel the appellee Secretary of State (the Secretary) to accept his qualifying papers for a judicial vacancy in Group 12 of the Fourth Judicial Circuit Court. On appeal, the appellant argues that the circuit court erred in holding that the judicial seat should be filled by gubernatorial appointment rather than by election. We disagree and affirm.

The judicial seat at issue here is currently occupied by Circuit Judge Donald R. Moran, Jr. On March 26, 2014, Judge Moran tendered a letter of resignation to Governor Rick Scott in which he wrote that his resignation was to be “effective the last day of my term in January 2015.” On March 31, 2014, Judge Moran sent a second letter to Governor Scott clarifying that his specific date of resignation was to be Friday, January 2, 2015. January 2, 2015, is three calendar days (one business day) before Judge Moran’s term was due to expire on January 5, 2015. See Art. V. § 10(b)(3)b., Fla. Const.; § 100.041(4), Fla. Stat. (2014).

On April 2, 2014, the appellant filed a Form DS-DE 9 with the Division of Elections (the Division) indicating his intention to run for election for the seat at issue. On April 3, 2014, the Division acknowledged receipt of the appellant’s paperwork and placed him on the Division’s list of active candidates. The appellant was listed as a candidate for Group 12 on the Secretary’s website on April 3, 2014. Although the appellant filed his preliminary paperwork in early April, the statutory qualifying period for the seat was set to begin at noon on April 28, 2014, and end at noon on May 2, 2014. See §§ 105.031(1), 100.061, & 100.032, Fla. Stat. (2014).

On April 10, 2014, Governor Scott sent Judge Moran a letter accepting his resignation. On April 25, 2014, the appellant received an email from the Division informing him that Judge Moran had submitted his resignation and accordingly Group 12 would be fulfilled by gubernatorial appointment rather than election. The Division advised the appellant to withdraw his candidacy or apply for candidacy in a different group.

The appellant filed a petition for mandamus seeking to compel the Secretary to accept his qualifying papers for Group 12 of the Fourth Judicial Circuit. On August 1, 2014, the circuit court entered an order denying the petition. The order found that because Judge Moran resigned prior to the start of the qualifying period and a physical vacancy would occur between the effective date of his resignation and the start of the following term, his seat should be filled by gubernatorial appointment. The court recognized the appellant’s reliance on Spector v. Glisson, 305 So.2d 777 (1974), for the assertion that Florida law generally favors elections. However, the court found that Spector’s holding had been limited to a set of facts in which “a judge resigns effective at a future date and no interim vacancy will exist” between the effective resignation date and the start of the new term. See Pincket v. Harris, 765 So.2d 284, 287 (Fla. 1st DCA 2000) (citing In re Advisory Op. to the Gov. (Judicial Vacancies), 600 So.2d 460, 462 (Fla.1992)). We affirm the order denying mandamus relief.

“Mandamus may not be used to establish the existence of a right, but only to enforce a right already clearly and certainly established in the law.” Fla. League of Cities v. Smith, 607 So.2d 397, 400 (Fla.1992) (emphasis added). The appellant failed to show that the Secretary had a clear legal duty to accept his qualifying papers and fees and qualify him for Group 12 in the 2014 election as the law is clear that the vacancy created by Judge Moran’s resignation must be filled by appointment.

Article V, section 11(b), of the Florida Constitution vests the Governor with the power to fill judicial vacancies via appointment:

The governor shall fill each vacancy on a circuit court or on a county court, wherein the judges are elected by a majority vote of the electors, by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election occurring at least one year after the date of appointment, one of not fewer than three persons nor more than six persons nominated by the appropriate judicial nominating commission. An election shall be held to fill that judicial office for the term of office beginning at the end of the appointed term.

The Florida Supreme Court has provided that when a vacancy is created prior to the commencement of the qualifying period, the vacancy is required to be filled by gubernatorial appointment. See Advisory Op. to the Gov. re Sheriff & Judicial Vacancies Due to Resignations, 928 So.2d 1218, 1220-21 (Fla.2006). Whereas a vacancy that occurs after the election process begins should be filled by election. See Advisory Op. to the Gov. re Judicial Vacancy Due to Resignation, 42 So.3d 795, 797 (Fla.2010) (“[W]hen a vacancy occurs in the county or circuit courts before the qualifying period for the seat commences, the vacancy should be filled by appointment, but once the election process begins, such vacancy should be filled by election.”).

Thus, the salient question to answer here is when the vacancy occurred in relation to the election process. A judicial vacancy occurs when a letter of resignation is received and accepted by the Governor, even if the resignation, as here, has a future effective date. See In re Advisory Op. to the Gov. (Judicial Vacancies), 600 So.2d 460, 462 (Fla.1992) (“When a letter of resignation to be effective at a later date is received and accepted [by the Governor], a vacancy in that office occurs and actuates the process to fill it.”). See also Sheriff & Judicial Vacancies, 928 So.2d at 1220; Spector, 305 So.2d at 780. Thus, when Governor Scott accepted Judge Moran’s resignation on April 10, 2014, the vacancy occurred.

“In order to promote consistency in the process of filling judicial vacancies, we identified the beginning of the statutory qualifying period as a fixed point to mark the commencement of the election process.” Advisory Op. to Gov. re Judicial Vacancy Due to Resignation, 42 So.3d at 797. Here, the statutory qualifying period was due to commence at noon on April 28, 2014, 18 days after the vacancy occurred. As the vacancy occurred before the qualifying period commenced, the Secretary could not conduct a qualifying period because the vacancy had to be filled by appointment. See Sheriff & Judicial Vacancies, 928 So.2d at 1220-21.

The appellant argues that underlying policy considerations should lead to an interpretation favoring election unless the resulting vacancy is “unreasonable.” He argues that the vacancy here — one business day or three calendar days — is not so unreasonable as to require an appointment. In support he relies on Spector, 305 So.2d at 784. In Spector, an incumbent judge resigned effective at the end of his term, midnight on the last day, the qualifying period and election were available after the resignation letter, and there was no emergency or public business requiring an immediate appointment. Id. The Florida Supreme Court held that the seat should be filled by election, recognizing that Florida law generally favors the elective process:

Interim appointments need only be made when there is no earlier, reasonably intervening elective process available. As between the appointive power on the one hand and the power of the people to elect on the other, the policy of the law is to afford the people priority, if reasonably possible ... if such policy is to be modified, let the people speak.

Id.

In Pincket v. Harris, this Court recognized that Spector had been limited to “situations in which a judge resigns effective at a future date and no interim vacancy will exist.” 765 So.2d at 287 (citing In re Advisory Op. to the Gov., 600 So.2d at 462)). The appellant argues that Pincket relied on dicta from In re Advisory Opinion to the Governor and that the spirit of the law should be read to mean if a circuit court judge resigns prior to the qualifying period his seat shall be filled by appointment unless his resignation is for a future date and no unreasonable vacancy will occur

We reject the appellant’s arguments inviting an analysis of the reasonableness of the vacancy, which, as pointed out by thé Secretary, would be arbitrary and cannot constitute a duty that can be compelled by mandamus. Deciding the election versus appointment question on the duration of the vacancy created rather than on the interplay between the vacancy and the commencement of the election process would result in inconsistent and confusing precedent. Cf Advisory Opinion to the Governor re Appointment or Election of Judges, 983 So.2d 526, 530 (Fla.2008) (“The determination of constitutional provisions should not vary based upon fluctuations of the individual ‘election process’ for a given year.”). Of further note, Advisory Opinion to the Governor re Appointment or Election of Judges answered the question of whether a judicial seat vacated by an involuntary retirement during the qualifying period should be filled by appointment, which would result in a vacancy of no more than 30 to 60 days, or by election, which would leave the seat unoccupied for more than eight months. Id. at 527-28. The Florida Supreme Court held that because the vacancy occurred during the qualifying period, the vacancy was to be filled by election. Id. at 529. The supreme court focused on the fact that the election process had commenced without regard for the void that would occur in the office. Id.

Here, the vacancy created by Judge Moran’s resignation occurred before the qualifying period, and a physical vacancy will occur during his term such that the vacancy must be filled by gubernatorial appointment. While the dissent may eschew a bright-line test, we cannot engage in a determination of what does or does not constitute an unreasonable vacancy warranting an appointment. If we were to interpret the case law as the dissent suggests and find that an election was required here when the election process had not yet begun, we would be nullifying the Governor’s power of appointment in Article V, section 11(b), of the Constitution in post-election process resignations and pre-election process resignations. Stated otherwise, we would be allowing the limited exception created by Spector to swallow Article V, section 11(b), of the Constitution.

The circuit court appropriately denied the petition for writ of mandamus because there is no clear right to qualify for candidacy for a seat that is required to be filled by gubernatorial appointment.

AFFIRMED.

SWANSON, J., concurs.

PADOVANO, J., dissents with opinion.

PADOVANO, J.,

dissenting.

The majority has concluded that a judicial vacancy created by a resignation tendered before the qualifying period for a general election but with an effective date one day before the end of the judge’s term must be filled by a gubernatorial appointment. With respect for my colleagues in the majority, I believe that this decision is contrary to the applicable case law and the controlling provisions of the Florida Constitution. Moreover, I believe that the precedent the court has set here is one that will have a high potential for abuse. The. effect of the court’s decision is to bestow upon an individual judge the power to block an election by resigning just short of the end of his or her term in office. I do not think this decision is required as a matter of -law, nor do I think that it is wise. For these reasons, I dissent.

The rationale of the majority’s decision is that an appointment is required because the resignation at issue was accepted before the start of the qualifying period. On this point, I believe that majority has misconstrued the requirements of Article X, section 3 and Article V, section 11(b) of the Florida Constitution. The fallacy of the majority’s reasoning is that it fails to account for the fact that the resignation was to take place at a distant point in the future. I acknowledge that the Governor would have had a right under these constitutional provisions to appoint Judge Moran’s successor had the resignation become effective immediately or even if it had been scheduled to take place several months after the date of the resignation letter, as it ordinarily the case. But the problem here is that Judge Moran continues to occupy the office even to this day. His resignation was to take effect approximately eight months after the date of his resignation letter. The qualifying period for the 2014 general election occurred in the interim, and the election itself will have taken place in the interim.

It is true that the existence of a vacancy as defined in Article X, section 3 could trigger the need for a gubernatorial appointment, but that is not necessarily the case if the vacancy is created by a resignation that is to take place in the future. The Supreme Court’s decision in Spector v. Glisson, 305 So.2d 777 (Fla.1974) serves as a good example. In that case, a justice who was ineligible to run for another term in office sent a letter of resignation to the governor prior to the start of the qualifying period for the next general election. The resignation was to take effect at midnight on the last day of the incumbent justice’s term. A lawyer attempted to qualify for election to the office during the qualifying period, but the secretary of state refused to accept his qualifying papers, concluding that the seat was to be filled by an appointment. The lawyer then filed a petition for writ of mandamus seeking to compel the secretary to accept his qualifying papers. The Supreme Court granted the petition and directed that the seat be filled by an election.

The resignation in the Spector case did not create a right on the part of the governor to fill the vacancy by an appointment, because there was an intervening qualifying period and an intervening general election. The Supreme Court made it clear that the appointment process is to be used only when necessary to fill a seat that will be unoccupied. As the court stated, “the only excuse for the appointment of any officer made elective under the law is founded on the emergency of the public business.” Id. at 781 (citations omitted). The court expanded on this theme by stating in no uncertain terms that there is a strong preference for elections in Florida:

We feel that it necessarily follows from this consistent view and steadfast public policy of this State as expressed above, that if the elective process is available, and if it is not expressly precluded by the applicable language, it should be utilized to fill any available office by vote of the people at the earliest possible date. Thus the elective process retains that primacy which has historically been accorded to it consistent with the retention of all powers in the people, either directly or through their elected representatives in their Legislature, which are not delegated, and also consistent with the priority of the elective process over appointive powers except where explicitly otherwise provided. We thereby continue the basic premise of our democratic form of government, that it is a ‘government of the people, by the people and for the people.’

Id. at 782. Because judges are elected in Florida and because the vacancy at issue could have been filled by a candidate elected by the people in a general election, the court concluded that the governor was not entitled to make an appointment.

The only difference between this case and the Spector case is that the effective date of the resignation in this case was one day before the end of the term and not on the last day. The question we should be asking ourselves is whether this is the kind of difference that should compel an exception to the rule in Spector, I think that it is not. In both cases, the judges communicated an intention not to run for another term. The fact that one of them planned to leave office a day early is not, in my view, a valid reason to reach a different result. Thus, I believe that the majority has misapplied the Spector decision by relying on a distinction without a difference.

The majority contends that the Spector decision is not controlling here because it is limited to situations in which there will be no actual vacancy in the office. However, I think it is incorrect to say that any actual vacancy, regardless of its duration, triggers an exception to the rule in Spec-tor. The cases the majority of this court relies on are all distinguishable in that they involve situations in which an appointment was necessary to avoid a substantial period in which the office would remain unoccupied.

For example, in Advisory Opinion to the Governor, 600 So.2d 460 (Fla.1992) the judge sent a letter to the governor in March resigning effective the following July. That case differs substantially from Spector and this case, in that the office would have remained unoccupied for five months, irrespective of the intervening election. The same is true of all of the other cases. See Advisory Opinion to the Governor re Sheriff & Judicial Vacancies Due to Resignations, 928 So.2d 1218 (Fla.2006) (the judge resigned in April effective the following May, thus leaving the office unoccupied for seven months, regardless of the scheduled election that year); Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation, 42 So.3d 795 (Fla.2010) (the resignation created an actual vacancy of seven months); Pincket v. Harris, 765 So.2d 284 (Fla. 1st DCA 2000) (the judge resigned on June 19th effective the next day, leaving an actual vacancy in the office for a period of six months).

The common feature of the cases is that they all involve situations in which the courts distinguished the holding in Spec-tor, for the purpose of solving a problem: to avoid a lengthy gap in judicial service. But there is no such problem in this case. Here, as in Spector, there is no reason why the seat could not be filled by an election. Judge Moran resigned before the start of the qualifying period for the 2014 general election, and the effective date of his resignation is after the date of the election itself. The rationale of the Spector decision, that elective offices should be filled by elections whenever that is possible, is as compelling in this case as it was forty years ago when the decision was made.

The majority has concluded that the duration of the actual vacancy is immaterial, but in my view that is incorrect. Although there are cases holding that an actual vacancy of six months requires an appointment, as I have pointed out, it does not follow from the principle established in these cases that an actual vacancy of one day requires an appointment. I am not aware of any case that stands for the proposition that any actual vacancy, no matter how brief it may be, requires an appointment. And I am confident that there is no authority for the proposition that the rights of voters can be overcome by a manufactured vacancy like the one we have before us in this case.

The reason given by the majority for holding that the duration of the actual vacancy is immaterial is that the task of deciding whether the vacancy in a particular case is too long or too short would lead to arbitrary results. There is some merit to that point, but I think that judges are well-equipped to make decisions like those — one could argue that is precisely what we are here to do — and that there is a greater danger in following an inflexible rule, no matter how unfair the result may be, simply for the sake of following the rule. I think it would be far better to apply judgment and reason to resolve the issue on the facts presented in the case.

Finally, I fear that the precedent the court has set here, although well intended, will be abused by those who would manipulate the election process to suit their own political or philosophical objectives. Suppose, for example, that two judges in the same judicial circuit are retiring at the end of their respective terms in office. One of them likes the governor very much and the other strongly opposes the governor. The first judge could bestow the power of an appointment on the governor simply by resigning before the qualifying period but with an effective date the day before the last day of his or her term. In contrast, the second judge could block a gubernatorial appointment simply by notifying members of the local bar that he or she does not intend to stand for re-election. Both judges would have chosen not to seek another term in office, yet one of them would have made the choice appear as though it were resignation before the end of the term. I see no reason why the court should allow the election process to be circumvented in this way.

For these reasons, I respectfully dissent.

      . Appellee Bruce Anderson, Jr., intervened in the case below. His relief requested on appeal is moot in light of our disposition of the case.

      . Form DS-DE 9 must be filed before a candidate may raise or spend campaign funds, which can occur up to almost two years prior to the qualifying period for the office sought. § 106.021 (l)(a), Fla. Stat. (2014).

      . The appellant's petition was originally filed with the Florida Supreme Court, who transferred the petition to the Leon County Circuit Court via order of June 2, 2014.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Enrique PAJARO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3892.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2014.
    Enrique Pajaro, 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.

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


author: ROTHENBERG, J.

text:
    Mary HANDEL, Appellant, v. Sam NEVEL, James Pollack, and Leopoldo Bellon, Appellees.
    No. 3D13-2708.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.
    Conrad & Scherer, LLP, and Daniel S. Weinger, Matthew Seth Sarelson, Miami, and Michael E. Dutko, Jr., Fort Lauder-dale, for appellant.
    Cole, Scott & Kissane, P.A., and Scott A. Cole, Miami, and Kathryn L. Smith, for appellee James Pollack.
    Leopoldo Bellon, in proper person.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

The plaintiff below, Mary Handel (“Handel”), appeals the trial court’s order denying her motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). Because we conclude that the trial court did not abuse its discretion when it denied Handel’s rule 1.540 motion, we affirm.

FACTUAL BACKGROUND

Handel filed a complaint alleging claims against several defendants for breach of contract, unjust enrichment, various securities violations under Chapter 517 of the Florida Statutes, fraud in the inducement, and civil conspiracy. Some of the defendants filed motions to dismiss the causes of action against them, and the trial court conducted a hearing on those motions on March 30, 2012. At that hearing, the trial court orally dismissed Count II of the complaint for alleged breach of personal guaranty against defendants Leopoldo Bel-lon (“Bellon”), Allen R. Greenwald (“Greenwald”), and Sam B. Nevel (“Nev-el”) and dismissed Count V of the complaint for an alleged breach of fiduciary duty against defendant James Pollack (“Pollack”). Count II was the only cause of action alleged against Bellon, Green-wald, and Nevel, and Count V was the only cause of action alleged against Pollack. The trial court specifically stated that the dismissal would be with prejudice for the reasons indicated on the record. Pollack’s attorney, Joshua Goldstein (“Goldstein”), indicated to all parties present that he would draft the proposed dismissal order.

On April 29, 2012, Goldstein sent a draft of the order to all of the dismissed defendants’ counsel via email. After some recommendations and revisions, Goldstein sent out a second draft of the proposed order to all the parties on May 11, 2012. Handel’s trial counsel, Matthew Sarelson (“Sarelson”), responded by email to the second draft of the order and told Gold-stein, “I think [the order] should say that the motions are granted for the reasons stated on the record and nothing else.” The other defendants’ counsel echoed this sentiment. Goldstein sent out a third draft of the order on May 25, 2012. The text in the body of that email stated: “In order to avoid any further debate, the order simply states that Counts II and V are dismissed with prejudice.” In addition to stating that Counts II and V were dismissed with prejudice, the attached order included a paragraph stating:

Plaintiff, MARY HANDEL, takes nothing by this action from the Defendants, James Poliak, Leopoldo Bellon, Allen R. Greenwald and Sam B. Nevel, and that the Defendants, James Pollack, Leopoldo Bellon, Allen R. Greenwald and Sam B. Nevel, shall go hence without day. The Court reserves ruling on the issue of costs and attorneys’ fees.

Sarelson received the email containing the third draft of the order and read the text in the body of the email, but did not open and read the proposed order itself, which was attached as a PDF file. Sarelson responded to Goldstein’s email containing the attached order by simply saying “ok.” Goldstein then sent the proposed order to the trial court, and the trial court entered the order as drafted on May 29, 2012 (“the May 29 Order”). The parties agree that the May 29 Order constituted a partial final judgment in favor of the named defendants.

Handel did not timely appeal the partial final judgment. Instead, on June 18, 2012, Handel filed a “Motion for Entry of a Partial Final Judgment” (“PFJ Motion”), which requested that the trial court finalize what Handel believed to be a “garden variety dismissal order” so that she could appeal from the dismissal of her claims. Pollack was expressly excluded from the PFJ Motion. With respect to Pollack, Handel filed a Motion for Leave to Amend to Allege Additional Counts Against Pollack (“Motion to Amend”). The trial court heard argument on Handel’s PFJ Motion and Motion to Amend on August 9, 2012, and denied both motions, finding that it had no jurisdiction because no timely motion for rehearing was filed after the May 29 Order was entered.

Handel filed a petition for writ of mandamus or certiorari in this Court and a rule 1.540 motion with the trial court seeking relief from the trial court’s May 29 Order. This Court summarily denied the petition, Handel v. Sebastian River Park 160 LLC, 108 So.3d 1101 (Fla. 3d DCA 2013) (Table), and the trial court denied Handel’s rule 1.540 motion after conducting an evidentiary hearing. Specifically, the trial court found as follows:

All right. Based on the testimony, I don’t find that there’s a prima facie case of fraud, misrepresentation, or misconduct. The Court accepts and credits the testimony of Mr. Goldstein, that he thought Mr. Sarelson was going to read the order. Similarly, the Court accepts and credits the testimony of Mr. Sarel-son, that he thought there was nothing new in the order. So perhaps we have a mutual mistake as to the order.
Irrespective of what was submitted to the Court, Courts are presumed to intend the language of the orders they enter when they sign the order, irrespective of what is submitted by the parties. I’ve reviewed the transcript that you all passed up of the August 9th hearing and this issue came up before Judge Langer. It’s also undisputed that this issue of this May [29] order has gone to the Third DCA already.
So all things considered, at this point, the motion to vacate is denied. So you can just assemble a blank order on that. Okay?

This appeal followed.

ANALYSIS

Florida Rule of Civil Procedure 1.540 provides a mechanism through which trial courts may set aside final judgments, decrees, or orders for certain enumerated reasons. Subsection 1.540(b) is the only relevant provision of the rule asserted in this case, and it allows a trial court the option to set aside a final judgment for:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

We review a trial court’s ruling on a rule 1.540(b) motion to vacate for an abuse of discretion, Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011), and we will not disturb that ruling unless no reasonable judge would have reached the same decision. See Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 3d DCA 1978) (“The discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.”).

Handel contends that she is entitled to relief from judgment in this case under subsections 1.540(b)(1) and 1.540(b)(3). Specifically, she argues that her failure to closely read the proposed order and take an appeal therefrom was due to Sarelson’s mistake or excusable neglect, or alternatively, that the partial final judgment itself was procured by. fraud or misconduct perpetrated by Goldstein because the body of the email belied the actual contents of the attached proposed order. The trial court, however, found that the May 29 Order was not the product of fraud or misconduct, and while we believe the issue of mistake or neglect is a close one, we cannot say that the trial court abused its discretion in finding that it was not.

There is record evidence that supports the trial court’s finding that the May 29 Order was not procured by fraud or misconduct. Goldstein discussed the substance of the order with counsel for all of the parties, including Handel, via email on many occasions. He also attached the proposed order to the email for everyone’s review and copied all counsel on the transmittal email to the trial court. Even if the paragraph Goldstein added changed the substance of the order, nothing about his actions indicates malicious or fraudulent intent. Because the trial court’s factual finding that Goldstein’s actions were in good faith is supported by competent substantial evidence, we are bound by that finding. Siewert v. Casey, 80 So.Bd 1114, 1116 (Fla. 4th DCA 2012).

Whether the May 29 Order is a result of excusable neglect or mistake on Sarelson’s part is a closer question, and our ruling is based largely out of deference to the trial court. The only identifiable excusable neglect or mistake is Sarelson’s failure to review the proposed order on two occasions and to read the May 29 Order itself when it was entered by the trial court, as well as his failure to appeal that order because he did not believe it to be a final appealable order. Had Sarelson noticed the additional language, it would have been clear that the May 29 Order was a final appealable order. However, “[t]he law is well settled that unilateral mistakes of law such as this and misunderstanding of possible results of judicial decrees and judgments are not grounds for relief [under rule 1.540(b) ].” Skinner v. Skinner, 579 So.2d 358, 359 (Fla. 4th DCA 1991). Additionally, to the extent that Handel’s decision to seek leave to amend her complaint or have the trial court enter a partial final judgment rather than filing a motion for rehearing or reconsideration was a tactical one, rule 1.540 does not provide relief for that type of mistake either. Hermitage Ins. Co. v. Oxygen in the Grove, 30 So.3d 549, 551 (Fla. 3d DCA 2010). Accordingly, we do not find that the trial court abused its discretion by denying Handel’s rule 1.540 motion.

Affirmed.

      . Subsection 1.540(a) allows for the correction of simple clerical mistakes in a judgment. This simpler process is much simpler and less rigorous, but it is not at issue in the case before us.

      . Incidentally, it is entirely possible that the paragraph added by Goldstein had no effect on the finality or appealability of the order, and that the mere dismissal with prejudice to which Sarelson agreed would have operated as a partial final judgment subject to immediate appeal. See Fla. R. App. P. 9.110(k) ("If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.”). However, whether a dismissal with prejudice operates as a partial final judgment is a complicated question. An order merely granting a motion to dismiss clearly is not a final appealable order, Gries Inv. Co. v. Chelton, 388 So.2d 1281, 1282 (Fla. 3d DCA 1980) ("An order granting a motion to dismiss [with prejudice] is not final and not appealable.”), while an order expressly dismissing the entire complaint clearly is a final appealable order. Bd. of Cnty. Comm’rs of Madison Cnty. v. Grice, 438 So.2d 392, 394 (Fla.1983) (“An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is.”). Many orders, including the order at issue in this case (sans the additional paragraph), do not fall neatly into these two categories, instead creating a type of “hybrid order” that may or may not be a final appealable order depending on the precise language and circumstances in the case. Hayward & Assocs. v. Hoffman, 793 So.2d 89, 90 (Fla. 2d DCA 2001) ("The order [dismissing all counts of the complaint with prejudice] is a textbook example of a hybrid order, mixing concepts of finality and nonfinality.”); see also Carol A. Gart, Orders on Motions to Dismiss for Failure to State a Cause of Action — When are they Final for Purposes of Filing Notice of Appeal?, 87-OCT Fla. BJ. 24 (2013) (explaining that the determination of whether a dismissal order is a final appealable order is a complex one). In this case, a finding that the order as written — prior to Goldstein’s addition of the last paragraph conclusively making it a final order — would have been a final order would preclude Handel from relief. We do not reach that complicated question in this case, as we find that the trial court did not abuse its discretion regardless of whether the order would have been final without Goldstein’s added words of finality.


text:
    Valation Curtis ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1899.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.
    Valation Curtis Ellis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

This is an appeal from an order summarily denying a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 which, however, should be treated as filed pursuant to rule 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record 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.


author: WALLIS, J.

text:
    D.L., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3228.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2014.

      Katherine Puzone, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Respondent.
   WALLIS, J.

Petitioner, D.L., a child, requests a writ of habeas corpus, challenging his continued secure pretrial detention. D.L. alleges that the trial court improperly scored his Risk Assessment Instrument (“RAI”) by double-scoring his possession of a firearm and by failing to address whether an unrelated felony charge was currently pending against him. We grant D.L.’s petition as to the double-scoring and remand to the trial court for further proceedings to determine whether the unrelated felony charge is currently pending.

D.L. was charged with aggravated assault with a deadly weapon in violation of section 784.021(l)(a), Florida Statutes (2014). He received 16 points — which mandated that he be placed in secure detention — on the RAI, as follows: ten points for the aggravated assault charge, a “third-degree felony involving the use or possession of a firearm”; two points for an unrelated pending felony charge, the grand theft of a motor vehicle; one point for a prior felony adjudication; and three points for a “Mandatory Aggravating Circumstance: illegal possession of a firearm” arising from the aggravated assault charge. At a hearing, D.L. argued that the RAI improperly double-scored his possession of a firearm by adding three points for the aggravating circumstance in addition to ten points for the third-degree felony charge. D.L. also argued that the two points for the grand theft charge were improper because he was never arrested or charged with that offense and because the alleged victim, D.L.’s mother, filed a declination of prosecution.

The trial court ruled that the three points added for D.L.’s illegal possession of a firearm were appropriate by attempting to distinguish this court’s opinion in D.P. v. State, 8 So.3d 1208 (Fla. 5th DCA 2009). D.P. involved a minor who received ten points on his RAI for a third-degree felony involving the use and possession of a firearm, to wit, carrying a concealed firearm, and three points for the aggravating circumstance of illegally possessing a firearm. Id. at 1203. In D.P., this court held that firearm possession, which was factored into an RAI under the “third-degree felony involving the use and possession of a firearm” category, “could not be used again without impermissibly double scoring the same conduct already accounted for in the RAI.” Id. at 1204. The trial court noted that firearm possession was integral to the charge against D.P. In the attempt to distinguish the present case from D.P., the trial court reasoned that “you can have an aggravated assault with a deadly weapon that is not a firearm,” a distinction that we find unpersuasive. D.L. received ten points for the charge of a third-degree felony involving the use or possession of a firearm. Aggravated assault with a deadly weapon without intent to kill is a third-degree felony. § 784.021, Fla. Stat. Under the RAI, D.L. could only receive ten points for the third-degree felony if it involved the use or possession of a firearm. As we explained in D.P., it is improper to include three additional points for “possession of a firearm” where the possession is already accounted for in the ten point third-degree felony charge. 8 So.3d at 1204; see also M.W. v. Dep’t of Juv. Just., 15 So.3d 782, 783-84 (Fla. 1st DCA 2009).

After its ruling on the aggravating circumstances points, the trial court declined to address D.L.’s argument about the grand theft charge because the requested removal of two points would only drop the RAI score to 14, ultimately requiring the identical result of placing D.L. in secure detention. D.L.’s mother’s refusal to pursue the grand theft charge is immaterial to the pendency of that offense. State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999) (“[T]he decision to prosecute does not lie with the victim of a crime.”). Because the trial court declined to address D.L.’s argument about the grand theft charge, we remand for the trial court to determine whether the grand theft charge is currently pending against him and whether his continued detention is appropriate. See T.KG. v. Vurro, 31 So.3d 788 (Fla. 2d DCA 2010).

Accordingly, we grant D.L.’s petition as to the inclusion of three points for aggravating circumstances. D.L. shall be brought before the trial court immediately for an expedited detention hearing to determine whether the grand theft charge is currently pending against him, and an amended RAI shall be completed that does not assess “Mandatory Aggravating Circumstance” points for D.L.’s possession of a firearm during the aggravated assault.

Petition GRANTED in part, REMANDED for further proceedings.

LAWSON and EVANDER, JJ„ concur.


text:
    Donald CLARK, Appellant, v. Chrystal CLARK, Appellee.
    No. 5D13-1464.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.

      Theodore R. Doran, and Carol A. Yoon, of Doran, Sims, Wolfe, Kundid, Ciocchetti & Wagner, Daytona Beach, for Appellant.
    Jonathan D. Kaney, III, of Kaney & Olivari, P.L., Ormond Beach, for Appellee.
   PER CURIAM.

Donald Clark (“Husband”) appeals a final judgment dissolving his sixteen-year marriage with Chrystal Clark (‘Wife”), arguing that the trial court erred by (1) adopting Wife’s proposed final judgment verbatim; (2) awarding Wife relief that she did not seek in her petition for dissolution of marriage; (3) awarding Wife sole parental responsibility of the parties’ minor children without giving Husband the opportunity to testify; (4) ordering an equitable distribution of marital assets unsupported by substantial, competent evidence; (5) failing to make specific findings to support the awards of alimony and child support; and (6) awarding Wife attorney’s fees without regard to the reasonableness of the fees or his ability to pay. We affirm the dissolution, the time sharing arrangement, and the entitlement to child support. We reverse and remand the amount of child support and equitable distribution for further consideration.

In her petition for dissolution of marriage, Wife requested: (1) an order dissolving the marriage; (2) a parenting plan with a time sharing schedule; (3) the distribution of assets and liabilities; and (4) child support. Wife’s petition neither sought nor alleged entitlement to alimony or a need for attorney’s fees. In his answer, Husband generally admitted Wife’s allegations, except regarding the marital home’s address, his ability to provide life insurance, and his alleged alcoholism. He specifically admitted reasonable child support was appropriate. The notice of hearing of the dissolution was sent to Husband’s correct address, but he failed to appear, and the court conducted the hearing without him.

After testimony, the court awarded attorney’s fees and made the following findings:

THE COURT: All right. Then having considered the testimony and again noting that it is now 9:15 and we still don’t have an appearance from Mr. Clark, I will enter an order dissolving the marriage, find that it is irretrievably broken, adopt the parenting plan as proposed, giving Mrs. Clark sole parental responsibility with the time sharing with the father at her discretion and subject to his sobriety. Child support — is there a guideline worksheet in the file, Mr. Kneller?
MR. KNELLER: After I have the alimony computation—
THE COURT: Okay.
MR. KNELLER: I’ll prepare one and tender it with the Final Judgment.
THE COURT: I will order permanent periodic alimony, as requested, child support according to the guidelines, equitable distribution as requested to be paid for as requested on a monthly basis. The property and debts to be distributed.

Wife proffered a five-page, single-spaced final judgment containing matters not mentioned by the court. Specifically, the court did not determine the value of the home and the mortgage, the amount of time spent on the case by the attorney, or the attorney’s hourly rate. The proposed judgment also ruled on matters not requested by Wife in her complaint, notably, alimony and attorney’s fees. The court signed this judgment. However, there was no child support guideline worksheet in the file for the court to consider at the time.he referred the matter to the Wife’s attorney.

In Perlow v. Berg-Perlow, the Florida Supreme Court stated:

We understand and appreciate the fact that a trial judge in these often complex and multi-issue dissolution cases can benefit from proposed findings and conclusions prepared by the parties. Such proposals can serve as a starting point and reminder of the facts and issues that should be considered and weighed by the judge in his or her own evaluation. However, such submissions cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge. When the trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objects by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.

875 So.2d 383, 389-90 (Fla.2004) On appeal, Husband claims that the court permitted wife’s proposed final judgment submitted to substitute for a thoughtful and independent analysis of the facts, issues and law by the trial judge. We agree.

In a dissolution action, an issue is properly before the court when it is raised in the pleadings or when it is raised and considered by the court without objection. Sugrim v. Sugrim, 649 So.2d 936, 938 (Fla. 5th DCA 1995). Wife contends that the issues of alimony and attorney’s fees were listed in her pre-trial compliance putting Husband on notice. However, this document is not a substitute for amending the complaint. See Savage v. Savage, 955 So.2d 1196, 1197 (Fla. 5th DCA 2007) (“[T]rial courts are not permitted to enter awards of attorney’s fees when a request for same has not been properly pled.”). This case is similar to' Kratzer v. Reimiller, 552 So.2d 1188, 1189 (Fla. 5th DCA 1989). In Kratzer, after failing to respond to a petition for dissolution, a default was entered against the husband. 552 So.2d at 1188. The wife’s petition did not allege entitlement to alimony or the need for attorney’s fees. Id. The husband then appeared at the final hearing, but due to the default, he was not permitted to participate. Id. This Court did not find consent to amend the complaint, nor did we find the pretrial compliance was a proper substitution for a pleading. Id. at 1189. Thus, we reversed the judgment awarding alimony and attorney’s fees. Id.

When a pleading fails to make a specific demand, courts will accept the issue as being “tried by implied consent” where a pre-trial statement raises the issue and the other party fails to object at the hearing. See Hemraj v. Hemraj, 620 So.2d 1300, 1301 (Fla. 4th DCA 1993) (finding implied consent to alimony where one party objected to some, but not all, of the statements in opposing party’s pretrial statement); DeLoach v. DeLoach, 552 So.2d 324, 325 (Fla. 1st DCA 1989) (holding when an issue regarding equitable distribution is raised and considered without objection, it is appropriate to regard the issue as if it had been pled).

Wife suggests that Husband’s failure to attend the hearing is tantamount to consenting to amending the complaint in any way but offers no authority for this proposition. Unpled issues tried when a party does not appear are not tried by consent, but in absentia.

By blindly approving Wife’s proposed final judgment, which covered matters not pled and include matters not orally resolved by the trial court, this final judgment acted as a “substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge.” Perlow, 875 So.2d at 389-90.

We affirm the dissolution, time sharing arrangement and the entitlement to child support. We reverse the alimony and attorney’s fee awards. We reverse and remand for further consideration the amount of child support and equitable distribution.

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY, C.J., PALMER, J„ and HARRIS, C.M., Senior Judge, concur.


text:
    STATE of Florida, Appellant, v. Corey Lamar FLOWERS, Appellee.
    No. 5D13-2033.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State of Florida appeals the trial court’s order granting Corey Lamar Flowers’ motion to suppress a firearm. Because the record in this case clearly establishes that Flowers was not “seized” within the meaning of the Fourth Amendment prior to him discarding the firearm, we reverse and remand for entry of an order denying the motion to suppress. See California v. Hodari D., 499 U.S. 621, 626, 629, 111 S.Ct. 1547,113 L.Ed.2d 690 (1991) (finding that cocaine abandoned while Ho-dari was running from police was not the fruit of a seizure; and holding that for a seizure to have occurred, either the person must be physically subdued by the officer or the person must submit to the officer’s show of authority); Perez v. State, 620 So.2d 1256, 1258 (Fla.1993) (holding that the call for Perez to halt and the subsequent chase did not constitute a seizure until he was caught; and thus, recovery of the firearm abandoned in the meantime was not the result of an illegal seizure); State v. Leonard, 103 So.3d 998, 1000 (Fla. 3d DCA 2012) (holding that defendant was not seized within the meaning of the Fourth Amendment prior to abandoning the cocaine, where defendant did not acquiesce to the police officer’s show of authority and the officers had not physically restrained the defendant); State v. Green, 601 So.2d 617, 618 (Fla. 3d DCA 1992) (“[S]ince defendant was fleeing from the officer when he abandoned the gun, the gun is not considered a fruit of an unlawful seizure, and therefore, should not have been suppressed.”).

REVERSED and REMANDED.

COHEN, BERGER and WALLIS, JJ„ concur.

      . We are bound to follow the United States Supreme Court’s interpretations of the Fourth Amendment, see Art. I, § 12, Fla. Const., and to afford no greater protection than those interpretations provide. Perez v. State, 620 So.2d 1256, 1258 (Fla.1993).


text:
    Michael J. HEYLIN, Appellant, v. GULFSTREAM PROPERTY AND CASUALTY INSURANCE, CO., et al., Appellees.
    No. 5D13-82.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.

      Patrick J. Deese of Patrick J. Deese, P.A., Melbourne, Philip M. Burlington and
    Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Hinda Klein and Scott James Edwards of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   WALLIS, J.

Michael Heylin (“Heylin”) appeals a final summary judgment entered in favor of Gulfstream Property and Casualty Insurance, Co. (“Gulfstream”). Heylin argues the trial court erred in interpreting a homeowners’ insurance policy as not providing personal liability coverage for a negligent supervision claim for an underlying intentional tort. Because we previously held in Premier Insurance Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994), that a substantially identical sever-ability provision rendered an insurance policy ambiguous, resulting in a construction in favor of coverage for the homeowner, we reverse and remand for the trial court to enter summary judgment in favor of Heylin.

Gulfstream filed a declaratory judgment action during a pending lawsuit where Heylin filed a personal injury action against Benjamin Mutters, a 17-year-old, for battery. Heylin included counts against Benjamin’s parents for negligent supervision. In the declaratory judgment action, Gulfstream sought summary judgment, arguing the policy precluded personal liability coverage for all insureds because the alleged battery was an intentional act. The policy contains an intentional-act exclusion, which provides, as follows:

“Bodily injury” or “property damage” which is expected or intended by an “insured” even if the resulting “bodily injury” or “property damage”:
a. Is of a different kind, quality or degree than initially expected or intended; or
b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.

On appeal, Heylin argues only that the policy requires coverage for the negligent supervision because the policy is ambiguous due to the presence of a severability clause, which provides:

This insurance applies separately to each “insured”. This condition will not increase our limit of liability for any one occurrence.

The trial court granted summary judgment, holding that the Mutterses’ insurance policy did not cover the Mutterses for either count, citing without explanation to Hrynkiw v. Allstate Floridian Insurance Co., 844 So.2d 739, 740 (Fla. 5th DCA 2008).

“The standard of review governing the ruling of a trial court on a motion for summary judgment posing a pure question of law is de novo.” Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 321 (Fla. 5th DCA 2013) (citing Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 697 (Fla. 5th DCA 2006)). Furthermore, this court reviews a trial court’s interpretation of a contract de novo. State Farm Fla. Ins. Co. v. Phillips, 134 So.3d 505, 507 (Fla. 5th DCA 2014) (citations omitted).

In Adams, we addressed this same issue. 632 So.2d at 1055. There, a homeowners’ insurance carrier filed a declaratory judgment action after the Adamses’ son sexually abused another child. Id. This court analyzed the language of the homeowners’ insurance policy and determined the language was ambiguous. Id. Like this case, the insurance policy in Adams contained both an intentional-act exception and a severability clause. Id. at 1056. The Adams precedent controls our analysis in the case at bar.

We reject Gulfstream’s argument that Hrynkiw controls. In Hrynkiw, like Adams, this court addressed whether a homeowners’ insurance policy required an insurance carrier to defend or indemnify the policy holders or their minor son in a personal injury action after the son allegedly committed a battery by shooting. Hrynkiw, 844 So.2d at 741. Unlike Adams, however, this court in Hrynkiw held that the contract did not require the insurance carrier to defend or indemnify the policy holders because the policy contained a joint-obligations clause, which instead of providing each insured his or her own policy, “forged the various parties insured by a policy into a joint and inseparable legal entity.” Id. at 742-43 (quoting Allstate Ins. Co. v. Raynor, 143 Wash.2d 469, 21 P.3d 707, 713 (2001)). As a result, “when the conduct of one insured defeats liability protection for a given loss, the policy deprives all other insureds of liability protection for that loss, even if the loss was also proximately caused by one of those parties.” Id. (quoting Raynor, 21 P.3d at 713). The presence of the joint-obligations clause eliminates Hrynkiw from any meaningful application to the present case.

Consistent with Adams, we hold that the severability clause and the intentional-act exclusion create an ambiguity that we resolve in the insureds’ favor. Adams is directly on-point and compels reversal. On remand, we direct the trial court to enter summary judgment in favor of Hey-lin on Gulfstream’s duties to defend and to provide liability coverage for the negligence count. See R & L Constr., Inc. v. Cullen, 557 So.2d 931, 982 (Fla. 5th DCA 1990) (noting that a trial court may grant summary judgment for a non-moving party if there is no genuine issue of material fact and judgment is appropriate as a matter of law).

REVERSED in part and REMANDED.

TORPY, C.J., and PALMER, J„ concur.

      . Gulfstream argues that this issue is not preserved for review because Heylin did not file a transcript as part of the record on appeal. Because Heylin filed the controlling case with the trial court before the summary-judgment hearing and Gulfstream admitted in response to the motion for reconsideration that this issue was briefed, argued, and ruled upon by the trial court, we find the issue preserved for appellate review.

      . Gulfstream is not a party to the underlying battery and negligence action.


text:
    Deodat SATYANAND, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-222.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Wayne C. Golding, Sr., The Golding Law Group, PLC, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Deodat Satyanand filed a petition for a writ of mandamus, seeking to compel the trial court to conduct a pretrial evidentiary hearing on his motion to dismiss the charges based on immunity from prosecution under section 776.032, Florida Statutes (2012) (justifiable use of force). Because Satyanand is entitled to receive a pretrial evidentiary hearing on this issue, we grant the petition.

Satyanand was charged with aggravated battery with great bodily harm. He filed a motion seeking dismissal of the charges, claiming immunity from prosecution under section 776.032, Florida Statutes (2012). A hearing on the motion was scheduled, but was continued at the request of the defense. Since the initial scheduling, numerous hearings to address the motion to dismiss were scheduled, but were either cancelled or continued because of good faith scheduling conflicts between the State, the trial court, and the defense. The trial court has now scheduled the case for trial and has verbally stated that it would address Satyanand’s motion to dismiss during the trial and not at a pretrial evidentiary hearing.

Given this pronouncement, Satyanand filed this petition for a writ of mandamus seeking to require the trial court to hold a pretrial evidentiary hearing on his motion. We issued an order to show cause for the State to respond. The State responded and conceded that “case law holds that the trial court should conduct a hearing”, but argued that Satyanand had not met his burden of demonstrating that he is entitled to receive mandamus relief and that most of the continuances in the trial court below were at the defense’s request.

Case law supports Satyanand’s argument that the trial court is required to conduct a pretrial evidentiary hearing on motions to dismiss based on a claim of immunity under section 776.032. Specifically, in Dennis v. State, 51 So.3d 456, 461-64 (Fla.2010), the Florida Supreme Court expressly held that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should conduct a pretrial evidentiary hearing and decide the factual question of the applicability of statutory immunity. In so holding, the Court explained that “section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial[,]” and expressly approved the First District’s ruling in Peterson v. State, 983 So.2d 27, 29-30 (Fla. 1st DCA 2008), which concluded that a trial court must conduct a pretrial evidentiary hearing to determine whether immunity attaches. Dennis, 51 So.3d at 462, 464; see also Prof 'l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524 (Fla. 3d DCA 2014) (explaining that a pretrial hearing is the appropriate forum for addressing Stand Your Ground immunity claims); Wonder v. State, 69 So.3d 371 (Fla. 4th DCA 2011) (holding that, based on the decision in Dennis, the defendant was entitled to receive a pretrial evidentiary hearing on the immunity issue); Legene v. State, 60 So.3d 1154 (Fla. 5th DCA 2011) (holding that defendant was entitled to receive mandamus relief and ordering the trial court to conduct a hearing on his motion to dismiss, claiming immunity from prosecution); Martinez v. State, 44 So.3d 1219 (Fla. 1st DCA 2010) (holding that the defendant was entitled to receive mandamus relief because he had a legal right to receive a pretrial evidentiary hearing on his immunity claim).

Accordingly, we grant the mandamus relief requested.

PETITION GRANTED; CAUSE REMANDED.

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


text:
    Raffaele MOSCA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4773.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.

      James S. Purdy, Public Defender, and John M. Selden, 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.

Based on the State’s concession of error, we reverse and remand for the trial court to reimpose the sentences for Counts I, III, and IV, that were originally orally pronounced.

REVERSED and REMANDED.

PALMER, EVANDER and LAMBERT, JJ., concur.

      . The defendant does not need to be present for resentencing.


text:
    STATE of Florida, Appellant, v. Hernando Pelecio CLARKE, Appellee.
    No. 5D13-1034.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order granting Hernando Pelecio Clarke’s motion to suppress. Because the trial court erred when it concluded that the law enforcement officer did not have probable cause to stop Clarke, an issue not contested below, we reverse and remand for consideration of the actual issues raised by the parties. See State v. Johns, 920 So.2d 1156, 1158 (Fla. 2d DCA 2006) (reversing order granting motion to suppress, but remanding for further consideration because the trial court did not address whether the defendant’s consent was voluntary).

REVERSED and REMANDED.

ORFINGER, BERGER and WALLIS, JJ., concur.

      . The trial court's ruling that the initial stop was not warranted is erroneous as a matter of law, and not supported by its own findings of fact. See State v. Lee, 957 So.2d 76, 79 (Fla. 5th DCA 2007) ("[T]he decision to stop an automobile is reasonable for purposes of the Fourth Amendment where the police have probable cause to believe that a traffic violation has occurred." (citing Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and Holland v. State, 696 So.2d 757, 759 (Fla.1997))); see also State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5th DCA 2005) (“A stop may be justified even in the absence of a traffic infraction when the vehicle is being operated in an unusual manner.”).


text:
    Lluther McKIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1364.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Luther McKiver, Cross City, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the trial court’s January 8, 2013 order denying postconviction relief, in case no. 2008-CF-1392, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

TORPY, CJ., PALMER and EVANDER JJ., concur.


author: PER CURIAM. COHEN, J.,

text:
    Doloretine PIPPINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-2216.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Doloretine Pippins, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, Kaylee D. Tatman and Anthony J. Golden, Assistant Attorney Generals, Daytona Beach, for Appellee.
   PER CURIAM.

Doloretine Pippins appeals the summary denial of her Florida Rule of Criminal Procedure 3.801 motion for jail time credit. See Fla. R. Crim. P. 3.801. She argues that the trial court erred in relying on the written plea form to deny her motion in the absence of a separate provision in the agreement explicitly waiving the additional credit that she seeks. We agree and reverse.

“Jail credit may be waived, but the waiver must be specific, voluntary and clear from the face of the record.” White v. State, 995 So.2d 1172, 1173 (Fla. 4th DCA 2008). Because the written plea form in the instant case does not expressly provide that Pippins waived additional jail credit, and because Pippins specifically alleged in her motion that she had not waived the additional credit, a factual dispute exists regarding the issue of waiver that may require a hearing. See Fla. R. Crim. P. 3.801(e). Accordingly, we reverse the order of the trial court and remand for an evidentiary hearing or attachment of additional portions of the record specifically refuting the claim. See id.; Louis v. State, 143 So.Sd 452, 458 (Fla. 5th DCA 2014) (“When, as in this case, a factual dispute exists, and the files and records do not conclusively show appellant is entitled to no relief, an evidentiary hearing is generally required.”).

REVERSED and REMANDED with instructions.

BERGER and WALLIS, JJ., concur.

COHEN, J., concurs specially, with opinion.

COHEN, J.,

concurring.

Ms. Pippins entered into a written plea agreement in which she accepted an eighteen-month sentence with an eighteen-day credit for time served. Four months later, Ms. Pippins filed a sworn motion pursuant to Florida Rule of Criminal Procedure 3.801, asserting that she was entitled to an additional 116 days’ credit for time served and that she had not waived her entitlement to the credit. The trial court denied the motion, finding that the plea agreement “constituted a valid waiver of any additional credit” because it stated the amount of credit she was to receive.

On appeal, the issue is whether the term in the plea agreement that specified the number of days Ms. Pippins was to receive for time served is, on its face, sufficient to overcome her sworn allegation that she did not waive her entitlement to credit. I believe this to be a close call.

Rule 3.801 allows for the correction of a sentence if it does not adequately provide the defendant credit for his or her time served. See Fla. R. Crim. P. 3.801(a). The rule was enacted in 2013, and it encompasses motions that defendants formerly filed under either rule 3.800(a) or 3.850. See generally In re Amendments to the Fla. Rules of Criminal Procedure & Fla. Rules of Appellate Procedure, 132 So.3d 734 (Fla.2013).

Determining whether a defendant is entitled to a sentencing correction implicates competing principles. On the one hand, a defendant may waive jail credit during plea negotiations only if the waiver is knowing and voluntary. See, e.g., McLeod v. State, 58 So.3d 931, 932-33 (Fla. 5th DCA 2011) (citing Davis v. State, 968 So.2d 1051, 1052 (Fla. 5th DCA 2007)). Furthermore, an involuntary waiver can be a basis to set aside the plea. See Johnson v. State, 60 So.3d 1045, 1052 (Fla.2011). However, a defendant cannot unilaterally alter the terms of a previously negotiated plea agreement because this would deprive the State of a portion of its bargained-for exchange. See id.

The inclusion of a specific number of days of jail credit in a plea agreement does not conclusively refute a defendant’s allegation in a sworn motion that she did not waive additional credit for time served. A number of explanations may exist for its inclusion other than evincing an intent to waive additional time served to which the defendant would otherwise be entitled. Here, the plea agreement did not contain precise language expressly waiving Ms. Pippins’ entitlement to jail credit, nor do we have a transcript of a plea colloquy that reflects a waiver of additional time served. As we stated in Louis v. State, “When, as in this case, a factual dispute exists, and the files and records do not conclusively show [that] appellant is entitled to no relief, an evidentiary hearing is generally required.” 143 So.3d 452, 453 (Fla. 5th DCA 2014) (citing Fla. R. Crim. P. 3.850(f)).

On remand, the inclusion of the plea colloquy may or may not be sufficient to overcome Ms. Pippins’ sworn allegation in the rule 3.801 motion. If the colloquy is not sufficient, Ms. Pippins will be entitled to an evidentiary hearing under rule 3.801.

      . Rule 3.850(f) was explicitly incorporated into rule 3.801. See Fla. R. Crim. P. 3.801(e).


author: PER CURIAM. '

text:
    Frederick D. WOOD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2461.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Frederick D. Wood, Jr., Lake City, 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 be treated as the notice of appeal from the petitioner’s May 15, 2014 judgment and sentence imposed in Case No. 42-2013-CF-002198, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PALMER, LAWSON, and BERGER, JJ., concur.


text:
    Johnathan DOMINGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2492.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Johnathan Dominguez, Crestview, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee Tatum, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 30, 2013 order denying motion for postconviction relief, filed in Case No. 2008-CF-14660, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

LAWSON, EVANDER and BERGER, JJ., concur.


text:
    Kalin HALCHAK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2639.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Kalin Halchak, Lowell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee Tatum, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the March 25, 2011, judgments and sentences imposed in Case Nos. 2006-CF-1943, 2010-CF-4286 and 2010-CF-4627, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

ORFINGER, WALLIS, and LAMBERT, JJ., concur.


text:
    Jarrel BROTHERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2780.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Jarrel Brothers, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgments and sentences imposed in Case Nos. 2008-CF-27829 and 2011-CF-59028, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

SAWAYA, ORFINGER and BERGER, JJ., concur.


text:
    Aljarreau WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2788.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Aljarreau Williams, Lake City, 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 be treated as the notice of appeal from the March 7, 2014 judgment and sentence imposed in Case No. 2013-CF-2778, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PALMER, EVANDER and WALLIS, JJ., concur.


text:
    Naomi RIVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2809.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Felix Felieier, Felix Law Center, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. CF13-1906-C-OS, in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, CJ., SAWAYA and BERGER, JJ., concur.


text:
    Frederick James VAN AUKEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-405.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.

      Frederick James Van Auken, Crawford-ville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, Wesley Heidt andMarjorie Vincent-Tripp, Assistant Attorneys General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 2012 order dismissing motion for posteonviction relief, filed in Case No. 2003-CF-001427, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

ORFINGER, LAWSON, and COHEN, JJ., concur.


text:
    Marshall Allen JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-954.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant
    Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Based on the State’s concession that the judgment below must be corrected, we reverse and remand for the following corrections to the judgment and sentence:

1. $50 of the public defender’s fee shall be removed.
2. The violations of probation shall be removed from the judgment as additional counts.
3. The judgment shall be corrected to show that appellant did not plead guilty to the violation.

Finally, although the issue may not have been properly preserved, it is suggested that the court enter a written order designating the reason for the finding of violation of probation.

REVERSED AND REMANDED

PALMER, LAWSON, JJ., and HARRIS, C. M., Senior Judge, concur.


text:
    Juan E. RIVAS, Appellant, v. OASIS OUTSOURCING, INC. and Sedgwick Claims Management Services, Appellees.
    No. 1D14-1440.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.

      Paul S. Rosenberg of Rosenberg & Rosenberg, P.A., Hollywood, and Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Rene Lopez, Miramar, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant argues that the Judge of Compensation Claims (JCC) erred in failing to approve a stipulation whereby the Employer/Carrier (E/C) would pay Claimant’s attorney a $1,500 attorney’s fee, under section 440.34(3)(a) and (7), Florida Statutes (2013), and reimburse costs in the amount of $275. Because it appears the JCC overlooked or ignored facts in rejecting the stipulation, we reverse and remand for further proceedings.

Claimant injured his low back and knee in the course and scope of his employment on July 29, 2013. With the assistance of his attorney, Claimant filed a petition for benefits (PFB) on September 10, 2013, requesting authorization for a primary care provider and managed care coordinator as well as orthopedic care. The E/C filed a response on September 12, 2013, asserting that Claimant was under the care of an authorized treating orthopedic physician, Dr. Garcia. By notice filed with the JCC on September 19, the parties agreed to privately mediate the case and scheduled the mediation for December 13, 2013.

Nonetheless, Claimant filed a second PFB on November 22, 2013, requesting authorization of Dr. Weinberg, D.C., as Claimant’s managed care coordinator/primary care provider. On November 30, 2013, the E/C filed a response, advising that it would not authorize Dr. Weinberg as Claimant’s managed care coordinator/primary care physician; that Claimant has such a provider in Dr. Garcia; that there is a limit on chiropractic care under Florida’s workers’ compensation law; and that if Claimant was referred for chiropractic care, such care would be authorized.

A third PFB was filed on the day of the mediation, December 13, 2013, seeking authorization of an MRI as recommended by Dr. Weinberg in his November 23, 2013, report as well as payment of his bill in the amount of $225 for that date of service. At the mediation the parties reached an agreement to resolve all of the issues by settling the case for $10,000, from which Claimant would pay his attorney a fee of $1,750 and reimburse costs in the amount of $250. In addition, the E/C agreed to reimburse Claimant $225, the cost of the evaluation with Dr. Weinberg, and to pay Claimant’s attorney a fee of $1,500 and costs totaling $275.

The JCC approved the $1,750 Claimant-paid attorney’s fee associated with the settlement, but denied approval of the $1,500 E/C-paid fee. See § 440.105(3)(c), Fla. Stat. (2013) (requiring JCC approve all attorney’s fees paid “on account of services rendered for a person in connection with any proceedings arising under this chapter”). In the order, the JCC stated he based his findings on a review of “the stipulation and taking judicial notice of the appropriate relevant pleadings in the tribunal’s computer fide, otherwise known as the ‘docket.’ ” The JCC found that the agreed-upon fee was based on a resolution of a claim raised in the PFB filed on December 13, the day of the mediation; thus, he concluded, there was no evidence the fee was “earned.” The JCC did advise the parties that they could seek reconsideration or modification of this denial by timely motion for rehearing, pursuant to Rule 60Q-6.112, Fla. Admin. Code, and accompanied with appropriate documentation or explanation addressing the above deficiencies. If any party seeks a telephonic re-hearing on the issue, they may express their request in the motion and the extraordinary circumstances which support the request for a telephonic re-hearing.

The parties thereafter jointly filed a motion for approval of the E/C-paid fee and attached copies of the September and November PFBs and responses to the PFBs. The parties advised the JCC that the basis for entitlement to the medical-only fee was not the December PFB; rather, it was the earlier-filed petitions. The parties again requested the JCC approve the fee, or, in the alternative, schedule a telephonic hearing should the JCC need further clarification or information.

In the order rendered in response to the joint motion, the JCC found there were “no exceptional circumstances or good cause shown in the motion or the docket necessitating a hearing on the motion.” Further, the JCC concluded that “counsel for the parties have presented no additional evidence or credible arguments for the approval of a carrier-paid attorney fee of $1,500.00.” The JCC once again denied approval of the $1,500 E/C-paid attorney’s fee.

A JCC’s finding of facts will be upheld on appeal if it is supported by the record and if it appears that the JCC did not overlook or ignore any facts. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071, 1078-79 (Fla. 1st DCA 2003). Section 440.34(3)(a) provides for the payment of an E/C-paid fee if a claimant successfully asserts a PFB for medical benefits only and has not filed, nor is entitled to file, a claim for indemnity benefits at that point in time. Section 440.34(7) provides that “[i]f an attorney’s fee is owed under paragraph (3)(a), the [JCC] may approve an alternative attorney’s fee not to exceed $1,500 only once per accident, based on a maximum hourly rate of $150 per hour.” Here, both parties allege there were two PFBs filed prior to the December PFB which, like the December PFB, also requested only medical benefits and both parties requested the JCC to consider those two PFBs in determining the appropriateness of the $1,500 E/C-paid fee. Because the JCC made no mention of those PFBs in his second order, we can only conclude that the JCC overlooked or ignored those PFBs. Accordingly, it is appropriate that we reverse and remand this matter to the JCC for consideration of those PFBs.

Based on the foregoing, we REVERSE and REMAND this matter for proceedings consistent with this opinion.

WOLF, ROWE, and OSTERHAUS, JJ„ concur.


author: STEVENSON, J.

text:
    Paul David WILDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1865.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2014.
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion For Rehearing

STEVENSON, J.

We grant defendant’s motion for rehearing of this court’s July 30, 2014 opinion and substitute the following in its place.

Paul David Wilder and Neil J. Lemaster were jointly tried for the sale of oxycodone within 1,000 feet of a church and possession of oxycodone. Both were found guilty as charged. In this appeal, defendant Wilder challenges his convictions. While defendant raises two issues on appeal, we find merit in only one: his claim that the evidence was insufficient to support his conviction for sale of oxycodone within 1,000 feet of a church. We write solely to address this issue.

Section 898.13(l)(e)l., Florida Statutes (2011), makes it a first degree felony to “sell ... or possess with intent to sell ... [specified controlled substances, including oxycodone] ... in, on, or within 1,000 feet of a physical place for worship at which a church or religious organization regularly conducts religious services.” Thus, to convict a defendant of such offense, the State must present evidence establishing that, during the timeframe when the offense occurred, religious services were regularly being conducted. See Moore v. State, 18 So.3d 715 (Fla. 2d DCA 2009) (holding evidence insufficient to convict defendant of possession of cocaine with intent to sell within 1,000 feet of a church, where officer testified he had seen people coming and going from the church on Sundays, but officer last observed the activity nearly a year before the crime); cf. Cox v. State, 764 So.2d 711 (Fla. 1st DCA 2000) (holding the State was required to prove the site of the drug sale was a school when the offense took place and evidence that it was a school two years earlier was insufficient).

In the instant case, the State offered evidence that Ryanwood Fellowship Church was located within 1,000 feet of the drug sale at issue. The State, however, failed to offer evidence from which a jury could find that church services were being regularly conducted at the time of the November 2011 crime. At the March 2013 trial, the church pastor testified that the church has regular fellowship meetings on Sundays, Wednesdays, and Thursdays. The pastor was shown a photograph of the church, taken in September of 2012, and testified it was a fair and accurate depiction of how the church looks. Additionally, one of the officers who conducted surveillance at the time of the undercover drug buy, testified that, at the time of the drug sale, the church was in substantially the same condition as it was in the September 2012 photographs. None of this evidence, though, established that church services were being regularly conducted at the time of the November 2011 crime. The pastor’s testimony served to establish that services were being regularly conducted at the time of the 2013 trial, not at the time of the 2011 crimes. And, the photographs established that the church looked the same at the time of trial as it did at the time of the 2011 crime, but not that services were being conducted at the time of the 2011 crime.

In the absence of such evidence, we are compelled to reverse defendant’s conviction for sale of oxycodone within 1,000 feet of a church. On remand, the trial court is directed to enter a judgment of conviction for sale of oxycodone. See Wallace v. State, 814 So.2d 1255,1257 (Fla. 5th DCA 2002) (finding evidence insufficient to prove sale and delivery of cocaine within-1,000 feet of a place of worship and remanding with instructions for entry of a judgment of conviction for sale and delivery of cocaine). The conviction for sale of oxycodone within 1,000 feet of a church, which is a first degree felony, was the primary offense on defendant’s scoresheet. On remand, defendant is entitled to be resentenced, using a corrected scoresheet, for the newly-entered judgment of conviction for sale of oxycodone, which is a second degree felony, as well as the possession of oxycodone. See, e.g., Morris v. State, 88 So.3d 1045, 1047 (Fla. 4th DCA 2012) (holding reversal of conviction scored as the primary offense on the scoresheet entitled defendant to be resentenced on all counts using a corrected scoresheet) (citing Vroom v. State, 48 So.Sd 82, 84 (Fla. 2d DCA 2010)).

Affirmed in part; Reversed in Part; and Remanded.

CIKLIN and FORST, JJ., concur.


author: SCALES, J.

text:
    Gary SHTEYN and Natalya Shteyn, Petitioner, v. GRANDVIEW PALACE CONDO ASSN., etc., et al., Respondents.
    No. 3D14-1910.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Ellsworth Law Firm, P.A., and Sean M. Ellsworth, Miami Beach, for petitioner.
    Conde & Cohen, P.L., and Aaron R. Cohen, Ft. Lauderdale, for respondents.

      Before ROTHENBERG, LOGUE and SCALES, JJ.
   SCALES, J.

Petitioners, former tenants in a residential condominium, seek a writ of prohibition, prohibiting the circuit court from proceeding to adjudicate the plaintiff condominium association’s claim seeking in-junctive relief against petitioners. Because the plaintiff may be entitled to the injunctive relief it seeks against the petitioners, we deny the petition.

I. FACTS

The plaintiff condominium association filed a three-count complaint against petitioners and their landlord, the unit owner. The complaint sought: (i) to enjoin the defendants from violating the association’s rules and regulations; (ii) eviction; and (iii) ejectment.

Several months after the complaint was filed, the tenants (petitioners here) moved out of the subject condominium unit.

The petitioners then obtained a summary judgment on the eviction and ejectment counts, as those counts were rendered moot by petitioners’ vacating the subject unit.

However, the trial court denied the petitioners’ motion for summary judgment with regard to the injunction count.

The petitioners then filed the instant petition seeking this court to enter a writ prohibiting the circuit court from continuing to exercise jurisdiction over the case.

II. ANALYSIS

Prohibition is an extraordinary remedy used to restrain the unlawful exercise of jurisdiction by the lower tribunal. See Bd. of Cnty. Comm’rs v. Wood, 662 So.2d 417, 418 (Fla. 3d DCA 1995). It is a preventative remedy granted only to prohibit the circuit court from acting in excess of its jurisdiction. Symons v. Symons, 7 So.3d 546, 547 (Fla. 3d DCA 2008).

The Florida Legislature has expressly vested Florida’s circuit courts with jurisdiction to grant injunctive relief to condominium associations against unit owners and tenants.

Section 718.303(l)(b),(e), Florida Statutes (2013), reads in relevant part, as follows: “Actions for ... injunctive relief ... may be brought by the association ... against ... (b) [a] unit owner ... (e) [a]ny tenant leasing a unit, and any other invitee occupying a unit.” (emphasis added).

Petitioners argue, however, that, since they moved out of the subject unit several months after the lawsuit was filed, they are no longer a “tenant leasing a unit” as contemplated in Section 718.303(l)(e), and the circuit court is thus divested of subject matter jurisdiction over the plaintiffs injunction claim against them.

Petitioners, though, concede that, at the time the lawsuit was “brought” by the association, they were, indeed, occupying the unit. Hence, pursuant to the unambiguous language of the subject statute, the circuit court plainly had subject matter jurisdiction at the time the action was brought. The defendants’ act of moving out of the unit after the lawsuit was filed in no way divested the circuit court of such jurisdiction. See, e.g., Atheists of Fla., Inc. v. City of Lakeland, 713 F.3d 577, 594 (11th Cir.2013) (“[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.”) (citation omitted).

Further, the plaintiff seeks an order from the circuit court “permanently enjoining [the petitioners] from residing in any condominium unit” governed by the subject association.

While it would obviously be premature for us to opine whether the plaintiff would be entitled to such relief, the circuit court surely has the subject matter jurisdiction to adjudicate the association’s claim for the requested relief.

Petition denied.


text:
    Israel JEAN-BAPTISTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-754.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Carlos J. Martinez, Public Defender, and Shannon M. Healy, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   PER CURIAM.

Affirmed. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Sweeney v. State, 633 So.2d 66, 68 (Fla. 4th DCA 1994).


text:
    S.P., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D14-1097.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, for appellant.
    Karla Perkins, for appellee.
    Before SUAREZ, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Dep’t of Health v. M.B., 701 So.2d 1155, 1158 (Fla.1997); C.T. v. Dep’t of Children and Family Servs., 22 So.3d 852 (Fla. 3d DCA 2009); T.P. v. Dep’t of Children and Family Servs., 935 So.2d 621, 625 (Fla. 3d DCA 2006).


text:
    Raymond Ashley OSTEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-6007.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2014.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant, Raymond Ashley Osteen, was placed on community control/probation in September 2011 in three underlying cases. His probation was subsequently revoked in November 2013. Following a timely appeal, the Appellant’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla.1991). After reviewing briefs submitted by the State and the Appellant’s counsel following issuance of a Causey order, we find that the probation revocation and sentence must be reversed and remanded.

In May 2013, an affidavit of violation of probation (VOP) was filed, which included the new law violation of soliciting a prostitute. In November 2013, the trial court held a hearing on the VOP. At the hearing, the State sought to orally amend the affidavit of VOP to drop the prostitution charge and substitute five new law violations including: (1) burglary of an unoccupied dwelling, (2) possession of a controlled substance, (3) possession of burglary tools, (4) possession of drug paraphernalia, and (5) petit theft. The trial court decided to hear testimony before orally amending the affidavit of VOP. After hearing testimony, the trial court seemingly accepted the amendment and found there was a preponderance of the evidence to show that the Appellant committed the five new law violations and revoked the Appellant’s probation.

It is well settled that the revocation of probation based upon a violation not alleged in the charging document is a deprivation of the right to due process of law. See Perkins v. State, 842 So.2d 275, 276 (Fla. 1st DCA 2003) (“A trial court is not permitted to revoke probation on conduct not charged in the affidavit.”); N.L. v. State, 825 So.2d 509, 510 (Fla. 1st DCA 2002); Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000). Here, the State sought to prevent a due process violation by orally amending the affidavit of VOP during the revocation hearing. However, the State can only amend its charging document during trial or hearing if there is no showing of prejudice to the substantial rights of the defendant. Rosser v. State, 658 So.2d 175, 176 (Fla. 3d DCA 1995). Technical amendments that do not affect the substantive allegations in the affidavit of probation violation are generally permitted. Id. (finding there was no error when the trial court permitted the State to amend the affidavit to reflect the correct date that appellant was placed on probation); see also State v. Garcia, 692 So.2d 984, 985 (Fla. 3d DCA 1997) (finding no prejudice where the State sought to amend the information to reflect the correct date of the charge).

Here, the amendment affected the substantive allegations in the affidavit of VOP. The State dropped the new law violation of prostitution and substituted new law violations for burglary, possession of burglary tools, possession of drug paraphernalia, petit theft, and possession of a controlled substance. This was not a technical amendment akin to changing the date of the alleged 'violation. The addition of this amendment prejudiced the substantive rights of the Appellant. As such, this Court reverses the trial court’s revocation of the Appellant’s probation without prejudice as to the right of the State to refile an appropriate affidavit in this case. See Perkins, 842 So.2d at 276.

REVERSED and REMANDED with instructions.

ROBERTS, RAY, and SWANSON, JJ., concur.

      . State v. Causey, 503 So.2d 321 (Fla.1987).


text:
    Edward WYANT, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D14-1306.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2014.

      Edward Wyant, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appel-lee.
   PER CURIAM.

Upon consideration of the matters shown in appellee’s motion to relinquish jurisdiction, the order on appeal is REVERSED and the matter is REMANDED to the Reemployment Assistance Appeals Commission for further proceedings.

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


text:
    L.V., a juvenile, Petitioner, v. The STATE of Florida, et al., Respondent.
    No. 3D14-2444.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2014.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for respondent.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

In light of the State’s concession, we grant L.V.’s emergency petition for writ of habeas corpus, and order that L.V. be released from secure detention and returned to the custody of the Department of Children and Families. See Michaels v. Loftus, 139 So.3d 324, 327 (Fla. 3d DCA 2014) (“The law requires a charge of direct criminal contempt to be proven beyond a reasonable doubt.”).

This relief is granted without prejudice to further proceedings permitting the trial court to make additional findings that would support its conclusion. See, e.g., Woods v. State, 987 So.2d 669, 677 (Fla. 2d DCA 2007) (reversing and remanding an order of criminal contempt because “[t]he trial court had to establish that Mr. Woods’ statement, coupled with his actions, were intended to constitute an imminent threat to the administration of justice.”).

Petition granted without prejudice.


author: KNOLL, J.,

text:
    STATE of Louisiana in the Interest of T.H.
    No. 2014-CK-1462.
    Supreme Court of Louisiana.
    July 18, 2014.
   In re H., T.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2013-JC-924; to the Court of Appeal, Third Circuit, No. 14-179.

Prior report: La.App., 140 So.3d 911.

| ¡Denied.

12JOHNSON, C.J., would grant for the reasons assigned by Justice KNOLL.

KNOLL, J., would grant and assigns reasons.

HUGHES, J., would grant.

KNOLL, J.,

would grant.

|SI would grant and vacate Defendant’s delinquency adjudication on the charge of theft (La.Rev.Stat. § 14:67) because there was not sufficient evidence to support the adjudication.