author: PER CURIAM. CANADY, J.,

text:
    John N. PARKER, etc., Petitioner, v. The BOARD OF TRUSTEES OF the CITY PENSION FUND FOR FIREFIGHTERS & POLICE OFFICERS IN the CITY OF TAMPA, Respondent.
    No. SC13-890.
    Supreme Court of Florida.
    Oct. 23, 2014.

      Katherine Eastmoore Giddings and Kristen Marie Fiore of Akerman Senter-fitt, Tallahassee, FL, and Gerald Barnette Cope, Jr. of Akerman Senterfitt, Miami, FL, and Wayne Lee Thomas of Akerman Senterfitt, Tampa, FL, for Petitioner.
    Patrick H. Gonyea of the Law Offices of Patrick H. Gonyea, P.A., Davie, FL, and Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

In this case, we consider whether the prevailing party attorney’s fees provisions in sections 175.061(5) and 185.05(5), Florida Statutes (2004), apply to lawsuits brought to obtain benefits under a firefighter and police officer pension plan established by local law. In Board of Trustees of the City Pension Fund for Firefighters & Police Officers in the City of Tampa v. Parker, 113 So.3d 64, 67 (Fla. 2d DCA 2013), the Second District Court of Appeal rejected the claim of the petitioner here that he and others similarly situated were entitled to prevailing party attorney’s fees under those statutory attorney’s fees provisions as prevailing parties in a lawsuit to obtain benefits claimed by them under their local law pension plan. The court concluded that the local law plan “is not part of the general statutory construct of chapters 175 and 185,” and consequently, the petitioner’s attorney’s fees were to be paid from the settlement proceeds. Bd. of Trustees, 113 So.3d at 67-68. The Second District certified the following question on which it passed as one of great public importance:

ARE THE PREVAILING PARTY ATTORNEY’S FEES PROVISIONS OF SECTIONS 175.061(5) AND 185.05(5), FLORIDA STATUTES, APPLICABLE TO JUDICIAL PROCEEDINGS TO ENFORCE CLAIMS UNDER LOCAL LAW[ ] PLANS OR SPECIAL ACTS?

Id. at 70. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We restate the certified question as follows because a firefighter or police officer pension plan enacted by special act is a local law plan.

ARE THE PREVAILING PARTY ATTORNEY’S FEES PROVISIONS OF SECTIONS 175.061(5) AND 185.05(5), FLORIDA STATUTES, APPLICABLE TO JUDICIAL PROCEEDINGS TO ENFORCE CLAIMS UNDER LOCAL LAW PLANS?

For the reasons we explain, we answer the restated certified question in the affirmative, quash the Second District’s decision, and remand this case for proceedings consistent with this opinion.

I. BACKGROUND

Chapters 175 and 185 respectively establish minimum benefits and minimum standards for firefighter pensions and municipal police pensions. Both chapters also specifically contemplate and authorize local law pension plans — whether enacted by local ordinance or by special act of the Legislature — that provide greater benefits for pensions than those required by the statutory provisions.

The City of Tampa opted for a local law pension plan for its firefighters and police officers, which was adopted by a special act of the Legislature and provides greater benefits than the minimum benefits required by chapters 175 and 185. See ch.2001-288, Laws of Fla. Under the City of Tampa’s pension plan in effect in 2004, certain retired firefighters and police officers were entitled to benefits under the plan’s “13th Check Program.” Id. at § 27.

John Parker, a retired City of Tampa firefighter, filed a class action complaint against the Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa (Board) in the Circuit Court of the Thirteenth Judicial Circuit, claiming that the Board had failed to pay eligible beneficiaries their 13th check benefit for the fiscal year ending September 30, 2004. Parker’s complaint included a request for attorney’s fees. '

Upon further review, the Board concluded that it erroneously failed to pay the 13th check benefit for the fiscal year ending September 30, 2004. Following its review, the Board paid eligible retirees $5700 and eligible surviving spouses $2850 under the 13th Check Program. Parker and the Board subsequently agreed to a settlement in which class members received the remaining outstanding principal payments that they were entitled to under the 13th Check Program and interest on the amounts not timely paid. The trial court approved the class action settlement and specifically determined that the Board’s failure to pay the 13th check benefit was a result of its erroneous interpretation of the pension contract and applicable law.

The trial court determined that Parker and others similarly situated are “entitled to recover from the defendant Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa [their] taxable costs and reasonable attorneys’ fees, because this case was brought ‘under or pursuant to the provisions of Chapters 175 and 185, Florida Statutes.” Parker v. Bd. of Trustees of the City Pension Fund for Firefighters & Police Officers in the City of Tampa, No. 07-007198 (Fla. 13th Cir. Ct. order filed Mar. 4, 2010). Alternatively, the court also found that Parker and others similarly situated are entitled to recover their taxable costs and reasonable attorney’s fees from the Board under the “substantial benefit” doctrine because the “action was of benefit to both the plaintiff class and defendant in that it corrected a misinterpretation of the pension plan and caused the distribution of benefits which had been erroneously withheld contrary to the terms of the plan.” Id. Following an evidentiary hearing, the trial court determined that Parker is entitled to recover from the Board attorney’s fees in the amount of $1,026,610. Parker v. Bd. of Trustees of the City Pension Fund for Firefighters & Police Officers in the City of Tampa, No. 07-007198 (Fla. 13th Cir. Ct. order filed Sept. 2, 2011).

The Board appealed the trial court’s decision to the Second District, challenging Parker’s entitlement to attorney’s fees as well as the amount of the fees. The Second District upheld the amount of attorney’s fees awarded by the trial court, but it reversed the trial court’s decision to require the payment of the fees by the Board. Bd. of Trustees, 113 So.3d at 66. The Second District concluded that chapters 175 and 185 do not apply to the attorney’s fees award in this case “because this litigation challenges the Board’s payments under the Special Law’s 13th check program, which is unique to the City of Tampa.” Id. at 67. The district court reasoned that “[t]he Special Law is not part of the general statutory construct of chapters 175 and 185.” Id. The court explained that it was “not persuaded that the Florida Legislature intended that a unique program, established solely by a special law specific to one jurisdiction, be controlled by an attorney’s fee provision found in a regimen governing pension funds statewide.” Id. The Second District also concluded that the trial court erred when it awarded Parker attorney’s fees under the substantial benefit doctrine. Id. at 68. Instead, the Second District concluded that the common fund doctrine applied— resulting in Parker’s attorney’s fees being paid out of the settlement proceeds — because “[b]oth elements that implicate use of the common fund doctrine are met in this case: the presence of a fund and a pecuniary benefit to a party.” Id. at 69.

In the analysis that follows, we examine the governing statutory provisions and answer the restated certified question in the affirmative. We also address the Board’s claim that Parker failed to sufficiently plead his entitlement to attorney’s fees.

II. ANALYSIS

Whether a party is entitled to statutory attorney’s fees is a matter of statutory interpretation, which this Court reviews de novo. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013). In Diamond Aircraft, this Court explained that:

Legislative intent is the polestar that guides our analysis regarding the construction and application of the statute. See Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). Our statutory analysis begins with the plain meaning of the actual language of the statute, as we discern legislative intent primarily from the text of the statute. See Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007). If statutory language is “clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141,137 So. 157,159 (1931)).... It is also well-established in Florida that a statute that awards attorney’s fees is in derogation of the common law rule that each party pay its own attorney’s fees and must be strictly construed. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). ■

107 So.3d at 367.

Although the pension plan at issue here is a local law plan created by special act of the Legislature, that plan exists within and is subject to the framework for local law plans established in chapters 175 and 185. The prevailing party attorney’s fees provisions of sections 175.061(5) and 185.05(5) are an integral part of that statutory framework.

Section 175.061, Florida Statutes (2004), provides with respect to firefighter pensions:

For any municipality, special fire control district, chapter plan, local law municipality, local law special fire control district, or local law plan under this chapter:
(4) Each board of trustees shall be a legal entity with, in addition to other powers and responsibilities contained herein, the power to bring and defend lawsuits of every kind, nature, and description.
(5) In any judicial proceeding or administrative proceeding under chapter 120 brought under or pursuant to the provisions of this chapter, the prevailing party, shall be entitled to recover the costs thereof, together with reasonable attorney’s fees.
(6) The provisions of this section may not be altered by a participating municipality or special fire control district operating a chapter plan or local law plan under this chapter.

Section 185.05, Florida Statutes (2004), sets out substantively identical provisions regarding municipal police pensions.

With respect to firefighter pensions, section 175.032(11), Florida Statutes (2004), defines “[ljocal law plan” as

a defined benefit pension plan for firefighters, or for firefighters or police officers where included, as described in s. 175.351, established by municipal ordinance, special district resolution, or special act of the Legislature, which enactment sets forth all plan provisions. Local law plan provisions may vary from the provisions of this chapter, provided that required minimum benefits and minimum standards are met. Any . such' variance shall provide a greater benefit for firefighters. Actuarial valuations of local law plans shall be conducted by an enrolled actuary as provided in s. 175.261(2).

Section 185.02(10), Florida Statutes (2004), contains a substantively identical definition of “local law plan” for municipal police pensions.

Sections 175.032(11) and 185.02(10) authorize the establishment of local law plans by local ordinance or by special act of the Legislature and provide that such local law plans may not grant lesser pension benefits than the minimum benefits required by chapters 175 and 185, respectively. Section 175.061(5) and 185.05(5) state that the prevailing party is entitled to attorney’s fees in “any judicial proceeding ... brought under or pursuant to the provisions of’ chapters 175 and 185, respectively-

Section 175.061(6) and section 185.05(7) contain prohibitions on the alteration of any of the general governance provisions in those statutory sections. Among those provisions that are subject to the prohibition on alteration are the prevailing party attorney’s fees provisions of sections 175.061(5) and 185.05(5). Those fees provisions thus are integral to the overall framework established by the Legislature. Sections 175.061(5) and 185.05(7) point to a legislative design to ensure the availability of the prevailing party attorney’s fees.

Parker sued the Board when it failed to pay benefits under the plan’s 13th Check Program. Parker claimed that the Board, which is statutorily created and has exclusive responsibility for administering the pension plan, breached the pension contract and violated chapter 2001-288, Laws of Florida, a law enacted by special act of the Legislature as authorized by chapters 175 and 185. The Board ultimately settled Parker’s class action complaint by paying the 13th check benefit along with interest.

The Board asserts that since the 13th check benefit is not a benefit specifically required by chapters 175 and 185, Parker’s claim cannot be considered a claim brought “under or pursuant to the provisions of’ chapters 175 and 185. The Board’s argument is based on an interpretation of the statutory attorney’s fees provisions that is unreasonably narrow. The Board reads the attorney’s fees provisions as though they cover only claims brought for violations of the provisions of chapters 175 and 185. But the Legislature chose broader language.

Pursuant to means “(1) in accordance with; (2) under; (3) as authorized by; or (4) carrying out.” Bryan A. Garner, A Dictionary of Modem Legal Usage 721 (2d ed. 1995). We conclude that in this context — given that the local plans exist and operate within the framework established by chapters 175 and 185 — Parker’s claim regarding the 13th check benefit was a claim “pursuant to the provisions of’ chapters 175 and 185.

We reject the Board’s argument that Parker’s .complaint failed to sufficiently plead a claim for attorney’s fees.

Parker’s complaint pleaded a claim for “plaintiffs costs and attorney’s fees.” In Caufield v. Cántele, this Court held “that the specific statutory or contractual basis for a claim for attorney’s fees need not be specifically pled, and that failure to plead the basis of such a claim will not result in waiver of the claim.” 837 So.2d 371, 378 (Fla.2002). The Court explained “that merely pleading a claim for attorney’s fees is sufficient to notify the opposing party and allow it to consider the claim in a decision on whether to proceed.” Id. at 377-78 (citing Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991)). Therefore, Parker was not required to specify that he was seeking attorney’s fees under sections 175.061(5) and 185.05(5), and his complaint pleaded a claim for attorney’s fees with sufficient specificity.

III. CONCLUSION

We therefore conclude that Parker is entitled to prevailing party attorney’s fees under sections 175.061(5) and 185.05(5). We answer the restated certified question in the affirmative, quash the decision of the Second District Court of Appeal, and remand this case for proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion.

CANADY, J.,

dissenting.

I agree with the Second District Court of Appeal’s conclusion that the statutory prevailing party attorney’s fees provisions are not applicable to proceedings brought to enforce a claim for local pension plan benefits that are not required benefits under chapters 175 and 185, Florida Statutes (2004). Accordingly, I dissent.

To reflect the facts presented by this case, I would rephrase the certified .question as follows:

ARE THE PREVAILING PARTY ATTORNEY’S FEES PROVISIONS OF SECTIONS 175.061(5) AND 185.05(5), FLORIDA STATUTES, APPLICABLE TO JUDICIAL PROCEEDINGS TO ENFORCE CLAIMS FOR BENEFITS UNDER A LOCAL LAW PLAN THAT ARE NOT REQUIRED BENEFITS UNDER CHAPTERS 175 AND 185, FLORIDA STATUTES?

I would answer this rephrased question in the negative and approve the decision reached by the Second District.

The prevailing party attorney’s fee provisions in section 175.061(5), Florida Statutes (2004), and section 185.05(5), Florida Statutes (2004), cover only proceedings “brought under or pursuant to the provisions of’ chapters 175 and 185. The claim at issue here — a claim exclusively based on the “13th Check Program” provided for in Tampa’s local law plan — is not a claim “brought under or pursuant to the provisions of’ chapters 175 and 185. Benefits under the 13th Check Program are not benefits required under any provision of chapters 175 and 185. Entitlement to benefits under the 13th Check Program is not dependent upon any provision in chapters 175 and 185. It cannot reasonably be said that a claim is “brought under or pursuant to” particular statutory provisions if the establishment of the claim does not require reference to those statutory provisions.

It is true that Tampa’s local law plan— like any other local law plan — exists within the framework established by chapters 175 and 185. But that does not settle the question at issue here. Although the local law plan may exist “under or pursuant to” chapters 175 and 185, it does not follow that all claims regarding benefits under the local law plan are claims “brought under or pursuant to the provisions of’ chapters 175 and 185. A particular provision of law may come into existence by authorization of a higher law, but claims to enforce the particular provision are not said to be claims brought “under or pursuant to” the higher law. The phrase “under or pursuant to” requires a direct connection between the claim brought and the specific legal basis for establishing the claim.

The Legislature could very well have provided that prevailing party attorney’s fees would be available in all proceedings brought regarding benefits under firefighter and police officer pension plans. Instead, the Legislature adopted the more narrowly focused fee provisions of sections 175.061(5) and 185.05(5). It is not the province of the courts to expand the scope of these statutory provisions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mattie LOMAX, Petitioner, v. Alan A. TAYLOR, Respondent.
    No. SC13-1415.
    Supreme Court of Florida.
    Oct. 30, 2014.

      Mattie Lomax, pro se, Detroit, MI, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

This case came before the Court on the petition of Mattie Lomax for a writ of mandamus. In an order dated April 29, 2014, the Court dismissed the petition pursuant to Pettway v. State, 776 So.2d 930 (Fla.2000), but expressly retained jurisdiction to pursue any possible sanctions against petitioner based upon the volume of her meritless and inappropriate filings. Lomax v. Taylor, No. SC13-1415, 2014 WL 1778010 (Fla. Apr. 29, 2014) (unpublished); see Fla. R.App. P. 9.410(a) (Sanctions; Court’s Motion). Petitioner was directed to show cause why she should not be barred from filing in this Court ahy future pro se pleadings, motions, or other requests for relief. Petitioner did not respond to this Court’s order. We now impose such sanctions upon petitioner.

Since 2004, petitioner has initiated forty-three other cases in this Court that have either been denied, transferred or dismissed. This Court has chosen to sanction pro se petitioners who have abused the judicial process and otherwise misused this Court’s limited judicial resources by-filing frivolous, non-meritorious, or otherwise inappropriate filings. Such petitioners have been barred from initiating further proceedings in this Court unless their pleadings, motions, or other requests for relief were filed under the signature of a member of The Florida Bar in good standing. See, e.g., Johnson v. Bank of New York Mellon Trust Co., 136 So.3d 507 (Fla.2014); Riethmiller v. Riethmiller, 133 So.3d 926 (Fla.2013); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008). Petitioner has failed to show cause why she should not be so sanctioned.

Accordingly, the Clerk of this Court is hereby instructed to reject any future

pleadings, petitions, motions, documents, or other filings submitted by Mattie Lo-max a/k/a Tama Twynette, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Lomax’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999) (stating that a court must first provide notice and an opportunity to respond before sanctioning a litigant and prohibiting litigant from future pro se filings).

      . See Lomax v. Capital Rental Agency, Inc., No. SC04-216 (Fla. Aug. 16, 2004) (petition for writ of mandamus transferred); Lomax v. Capital Rental Agency, Inc., 907 So.2d 1171 (Fla.2005) (table) (petition for review dismissed); Lomax v. Procacci Dev. Corp., 945 So.2d 1290 (Fla.2006) (table) (petition for review dismissed); Lomax v. Capital Rental Agency, 957 So.2d 636' (Fla.2007) (table) (mandamus denied); Lomax v. State, No. SC11-11 (Fla. Jan. 7, 2011) (notice of appeal transferred); Lomax v. Bayview Loan Servicing, LLC, 79 So.3d 745 (Fla.2012) (table) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC, 91 So.3d 132 (Fla.2012) (table) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC, 107 So.3d 405 (Fla.2012) (table) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC, 116 So.3d 1261 (Fla.2012) (table) (petition for review dismissed); Lomax v. City of Hialeah Gardens, No. SC12-2695 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. Taylor, No. SC12-2707 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. Ruvin, No. SC12-2709 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. City of Hialeah Gardens, No. SC12-2715 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. City of Hialeah Gardens, No. SC12-2718 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. Miami-Dade State Attorney’s Office, No. SC12-2720 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. Miami-Dade State Attorney's Office, No. SC12-2721 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. City of Miami Police Dep’t, No. SC13-11 (Fla. Jan. 28, 2013) (notice of appeal transferred); Lomax v. Publix Supermarkets, Inc., 110 So.3d 441 (Fla.2013) (table) (petition for review dismissed); Twynette v. Jays Real Estate Venture, 114 So.3d 181 (Fla.2013) (table) (petition for review dismissed); Twynette v. Dri-Velt, Inc., 130 So.3d 694 (Fla.2013) (table) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC., No. SC13-333 (Fla. Mar. 8, 2013) (notice of appeal transferred); Lomax v. City of Miami Police Dep't, 115 So.3d 1001 (Fla.2013) (table) (petition for review dismissed); Lomax v. State, 115 So.3d 1001 (Fla.2013) (table) (petition for review dismissed); Lomax v. Reynolds, No. SC12-2719 (Fla. Apr. 26, 2013) (notice of appeal transferred); Lomax v. Bayview Loan Servicing, LLC, 130 So.3d 693 (Fla.2013) (table) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC, 116 So.3d 1261 (Fla.2013) (table) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC, 118 So.3d 221 (Fla.2013) (table) (mandamus petition dismissed); Lomax v. Capital Rental Agency, Inc., No. SC12-2751 (Fla. Aug. 1, 2013) (notice of appeal transferred); Twynette v. Ivory, No. SC13-981 (Fla. Aug. 19, 2013) (notice of appeal transferred); Lomax v. Miami-Dade Cnty., 126 So.3d 1057 (Fla.2013) (table) (petition for review dismissed); Lomax v. Ruvin, 129 So.3d 1068 (Fla.2013) (table) (mandamus dismissed); Lomax v. James, No. SC13-1985 (Fla. Nov. 7, 2013) (notice of appeal transferred); Lomax v. Citrus Health Network, Inc., 131 So.3d 789 (Fla.2013) (table) (mandamus denied); Lomax v. The City of Hialeah Gardens, 133 So.3d 527 (Fla.2014) (table) (petition for review dismissed); Lomax v. City of Hialeah Gardens, 133 So.3d 527 (Fla.2014) (table) (petition for review dismissed); Lomax v. Capital Rental Agency, Inc., 134 So.3d 448 (Fla.2014) (table) (petition for review dismissed); Lomax v. 50 State Security Services, Inc., 135 So.3d 288 (Fla.2014) (table) (mandamus dismissed); Lomax v. Officer Reynolds, 135 So.3d 288 (Fla.2014) (table) (notice of appeal dismissed); Lomax v. Reynolds, 135 So.3d 288 (Fla.2014) (table) (all writs petition dismissed); Lomax v. Reynolds, 135 So.3d 288 (Fla.2014) (table) (all writs petition dismissed); Lomax v. Capital Rental Agency, Inc., No. SC13-2085 (Fla. Feb. 17, 2014) (petition for review dismissed); Lomax v. Ivory, No. SC13-2087 (Fla. Feb. 17, 2014) (petition for review dismissed); Lomax v. Bayview Loan Servicing, LLC, No. SC13-975 (Fla. Mar. 24, 2014) (mandamus dismissed).


author: MAKAR, J. MAKAR, J.

text:
    Daniel ROMBOLA and Maria Hernandez, Appellant, v. Michelle BOTCHEY, Appellee.
    No. 1D13-2169.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Rehearing Denied March 27, 2014.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for Appellant.
    John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, for Ap-pellee.
    John S. Kalil, Jacksonville, for Appellee (opinion on rehearing).
   MAKAR, J.

Changing horses in midstream, cautioned President Lincoln, is a bad idea. Switching clients in midstream is equally ill-advised, resulting in attorney disqualification. The only question we address is whether the order at issue erred by limiting the scope of disqualification to only “further issues at the trial level regarding the trial in this case” versus the entire case.

I.

An auto accident in Jacksonville, Florida, between Michelle Botchey and Daniel Rombola, spawned this litigation. Rombo-la was driving a vehicle owned by his mother, Maria Hernandez (for convenience, we refer to them collectively as Rombola). In the personal injury lawsuit that resulted, Botchey as plaintiff was represented by Eric Block of the Law Offices of Eric S. Block, P.A. Rombola was represented by Chelsea Winieki and Fraz Ahmed of the law firm Kubicki Draper, P.A. Both Winieki and Ahmed actively participated on behalf of Rombola throughout the defense of the case and at trial. The jury ultimately returned a verdict of about $1.2 million in Botchey’s favor.

On November 19, 2012, Rombola filed a post-trial motion seeking a new trial and remittitur. Attorneys Winieki and Ahmed were listed on the signature block; Win-icki signed the motion. Two months later, things markedly changed. On January 25, 2013, Ahmed resigned from Kubicki Draper and, within the week, began working for the Block firm, the same firm representing Botchey. Though not entirely clear from the’record, it appears that Ahmed was the only attorney (other than Block) working for the Block firm at that time.

Despite the obvious conflict of interest that Ahmed’s new employment had caused, the’Block firm undertook no steps to ameliorate the problem, such as getting a waiver from Rombola or instituting safeguards to prevent the use or sharing of confidential information gleaned from Ahmed’s representation of Rombola in the same case. As a result, on March 7, 2013, Rom-bola filed a motion to disqualify the Block firm from any further representation of Botchey in the matter. The motion was accompanied by an affidavit of Winieki that detailed the substantial degree of Ahmed’s involvement on Rombola’s behalf and his access to confidential information before Ahmed switched firms.

The Block firm did not respond to the disqualification motion. Instead, on March 21, 2013, it filed a response in opposition to Rombola’s pending motion for new trial/re-mittitur on behalf of Botchey. The response, which contained twelve pages of content, listed Ahmed as an attorney of record for Botchey on its signature block; Block, also listed, signed the motion. The filing created the anomaly of Ahmed now being counsel of record for both sides in the litigation, his name appearing on both the defense’s post-trial motions and the plaintiffs post-trial response.

On that same day, the trial court issued a show cause order, requiring a response from the Block firm on the disqualification issue. In response, the Block firm sent a letter to the trial court stating it did not want to contest the motion; contrarily, it asserted in its formal response filed with the court that even if Ahmed had privileged information regarding the trial, it was “irrelevant and immaterial,” as the trial was over and the pending motions were to be decided based upon the trial record. Both law firms submitted proposed orders: Rombola’s proposed order would disqualify the Block firm from any further representation of Botchey in the entire matter; the Block firm submitted a proposed order that, in pertinent part, stated:

Eric S. Block and the Law Offices of Eric S. Block, P.A., as well as its employees, are hereby disqualified from any further representation of this Plaintiff, regarding any further issues at the trial level regarding the trial of this case.

On April 9, 2013, the trial court entered the order submitted by the Block firm. This petition for writ of certiorari followed.

II.

The issue we address is whether the trial court erred in limiting disqualification of Ahmed and the Block firm to only “any further issues at the trial level regarding the trial of this case” rather than to the case as a whole. Because review of the disqualification order is by certiorari, Rombola “must not only show the trial judge ‘departed from the essential requirements of law' but also that the harm resulting from the erroneous order is material and cannot be remedied on appeal from the final judgment or order.” Zarco Supply Co. v. Bonnell, 658 So.2d 151, 153 (Fla. 1st DCA 1995) (citation omitted); Kenn Air Corp. v. Gainesville-Alachua Cnty. Reg’l Airport Auth., 593 So.2d 1219, 1223 (Fla. 1st DCA 1992). Both requirements are met.

A.

We begin by noting that review of disqualification orders by certiorari is an accepted means of protecting clients against ongoing violations of ethical rules, particularly those involving the potential disclosure or use of confidences or information related to prior representations. See Kenn Air Corp., 593 So.2d at 1223 (granting relief via certiorari due to a potential for use/misuse of client information and an appearance of impropriety by switching sides); see also State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633-34 (Fla.1991) (reversing the district court’s denial of certiorari relief because the conflict created the potential that attorney could disclose client confidences). Absent review via certiorari, the protection of clients from potential breaches of ethical rules in ongoing litigation would be unavailable.

Turning to the case at hand, the disqualification order is fundamentally erroneous because of the way it limits the ongoing ethical obligations of Rombola’s former lawyer, Ahmed, and his new firm. The lawsuit Botchey filed against Rombola is a single, indivisible case to which the ethical obligations of rules 4-1.9 and 4-1.10 continually attach. See, e.g., The Florida Bar v. Dunagan, 731 So.2d 1237, 1240 (Fla.1999) (rejecting argument that no conflict of interest exists where an attorney represented a couple in their business matters, including the ownership issues, and then later represented only the husband in a dissolution of marriage action in which ownership of the business was an issue). Ethical responsibilities of fidelity and protection of client confidences do not change or become divisible as a case moves from pre-lawsuit discussions, to a lawsuit’s filing, through pre-trial activities and trial, and on to post-judgment and appeals; they remain inviolate absent client consent or such other lawful basis for waiver. The reason is that the solemn duties of fidelity and protecting confidences begin when the attorney-client relationship is first formed and they continue to the end of the case ... and sometimes even beyond. As this Court said long ago:

Rule 4-1.9 also prohibits the attorney from using information relating to the representation of a former client to the disadvantage of the former client. This rule is aimed at the problem of attorneys ‘switching sides,’ and arises because the duty of confidentiality under rule 4-1.6 protects all confidences and information obtained during representation of a client, and because this duty continues even after the attorney-client relationship is terminated.

Kenn Air Corp. v. Gainesville-Alachua Ctny. Reg’l Airport Auth, 593 So.2d 1219, 1222 (Fla. 1st DCA 1992) (emphasis added); see also Elkind v. Bennett, 958 So.2d 1088, 1090-91 (Fla. 4th DCA 2007) (attorney “had a continuing duty to his client not to disclose confidences. See R. Regulating Fla. Bar 4-1.6 & 4-1.9(b). This duty continued even past the termination of the matter for which representation was sought.”) (emphasis added). Ongoing ethical duties obligate ongoing judicial protection of the former client’s interests; if counsel is disqualified in an ongoing case, it must be for the entire case, or else the client’s interests are not protected.

Botchey justifies the limited scope of the disqualification order by arguing that Rombola may pursue another disqualification motion if Ahmed or the Block firm file an appearance if an appeal is taken. Carving out the “trial” portion of the litigation for protection, however, leaves the ongoing post-trial period unprotected. Yet the post-trial period is precisely when much appellate-related work is done and prospective litigation strategy discussed. The disqualification order entirely fails to protect Rombola’s interests during this time and thereafter.

Moreover, limiting the scope of disqualification to only certain narrowly-defined “trial” issues overlooks that every stage of an ongoing lawsuit is tautologically a “substantially related” component of the overall proceeding to which ethical obligations continually adhere. Whittling down and splitting ethical obligations, as was done here, creates a sieve through which confidential information and protected litigation strategy may seep via an order’s temporal and interpretive cracks.

The language of the disqualification order — prepared by Botchey and approved unchanged by the trial court — demonstrates this point by leaving much room for interpretive mischief about its scope. Consider the following highlighted portions of the order, which disallows “any further representation of this Plaintiff, regarding any further issues at the trial level regarding the trial of this case.” These highlighted limitations, individually and collectively, create interpretive gaps that can be exploited, but which could not if full disqualification were ordered. By limiting its prohibition to “further representation ” of Botchey the order does not facially preclude informal consultative-type relationships that fall short of the formal type of representation of Botchey that the Block firm and Ahmed already provided. Similarly, by only prohibiting “further representation” as to “any further issues at the trial level” the order can be read to allow representation on existing issues, such as the ones in the post-trial filings. Likewise, limiting “any further issues at the trial level” to only those “regarding the trial of this case” does not limit consultation about appellate strategy and representation, which has expanded to include many aspects of trial proceedings including the post-trial phase; a creative, non-frivolous interpretation of the order potentially would allow “appellate-type” representation or consultation prior to (or beyond) the filing of a notice of appeal. An attorney subject to the order could plausibly say “I am providing appellate consultation regarding a possible appeal of the case on existing issues; I am not providing trial representation on any further issues at the trial level that may arise regarding the trial of the case.” That is the danger, and material harm, of an order that narrows and subdivides an indivisible ethical obligation.

Simply said, the ethical duties at issue in this case are indivisible within an ongoing litigation matter where a client has not consented or objects. At this most fundamental level of analysis, the order — by purporting to limit disqualification to less than the entire case — departed from the essential requirements of law, resulting in a gross injustice to Rombola, whose ongoing interests against misuse of confidential information and litigation strategy were left defenseless. Rombola was entitled to broad protection from his former attorney, who — to paraphrase another court — had literally gone from Rombola’s “champion” to his “nemesis.” Hoggard v. Snodgrass, 770 S.W.2d 577, 583-84 (Tex.App.1989) (former attorney’s “conflict of interest is obvious; within the same action, [former attorney] has literally gone from [his client’s] champion to her nemesis. The appearance of impropriety is manifest.”). Given that the “public’s perception of the integrity of the bar” plays an important role in disqualification matters, including the “appearance of impropriety that arises in situations in which an attorney switches sides,” we conclude that the trial court departed from the essential requirements of law by failing to accord Rombola full relief under the circumstances. Kenn Air Corp., 593 So.2d at 1223.

B.

Botchey claims Rombola can show no material injury or prejudice because the trial is over and, so it seems, Ahmed and the Block firm will have no further involvement in the matter including on appeal, if one is taken. He points out that the record is complete, and although Ahmed switched sides and filed a competing (and unauthorized) legal memo against his former client, Ahmed and the Block firm are now disqualified making harm to Rombo-la’s interests speculative.

But this is a real case, with real clients, not a moot court competition. As Rombo-la points out, the harm that was caused in this case — and that continues without a full disqualification order — is material because “the obligation of an attorney to preserve the confidences and secrets of a client lies at the very foundation of the attorney-client relationship” that is universally recognized in American jurisprudence. Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051, 1053 (Fla. 5th DCA 1979). As the Fifth District has noted, an “attorney is forbidden to use a confidence or secret of a client to the client’s disadvantage or to use a confidence or secret, absent informed consent by the client, for the attorney’s own benefit or the benefit of a third person.” Stansbury, 374 So.2d at 1053. Moreover, the Florida Supreme Court has held that “actual proof of prejudice” is not a “prerequisite to disqualification” where an attorney “may be disclosing confidences” in an ongoing case. K.AW., 575 So.2d at 634. Irreparable harm exists because there is no adequate remedy on appeal to undo the ongoing injury to a former client’s interest in safeguarding confidential information or preventing the disclosure or misuse of information obtained from the client to its disadvantage. See Zarco Supply Co., 658 So.2d at 154-55 (“For interlocutory review by certiorari, it is not necessary to demonstrate actual prejudice in order to justify disqualification of opposing counsel.”); Kenn Air Corp., 593 So.2d at 1223 (“We also conclude that any remedy available to Kenn Air from an appeal of a final adverse order would be inadequate due to the fact that Ireland’s informational advantage, obtained through his earlier representation of Charter, could cause material injuries to Kenn Air at any subsequent proceedings.”) (emphasis added). The disqualification order at issue does nothing to address these ongoing problems of potential disclosure of client confidences.

In the context of this case, the potential for misuse of client confidences and litigation strategy is no mere theoretical concern. The record reflects that Ahmed actually acquired confidential information from his representation of Rombola. The uneontested affidavit of Winicki says that Ahmed was involved in litigation strategy and trial preparations including speaking with Rombola and his mother “on several occasions” and preparing for and conducting depositions. He worked as co-counsel on a daily basis during trial and he “acquired confidential information regarding this case.” He delivered the opening statement at trial, arguing in defense of Rombola. Given this intimate degree of attorney involvement, switching sides and turning against a former client in the same ongoing case without client consent presents one of the most compelling cases for broad prophylactic judicial action.

As the Florida Supreme Court has held, the presumption that clients’ confidences are shared with their attorneys exists because of the “difficulty of proving that confidential information useful to the attorney’s current client was given to the attorney.” State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633-34 (Fla.1991). This same difficulty exists in this case. As Rombola points out, only if Ahmed or the Block firm take some public act, such as filing a formal notice of appearance in an appeal of the judgment, would he even know they continued to have involvement in the matter. His concern is heightened because his former lawyers regard any confidential information received as “irrelevant and immaterial” and their ethical obligations fully alleviated because the record on appeal is fixed for purposes of post-trial motions and an appeal. But oftentimes it is what is not in the record that is critical in making strategic decisions. Information shared in confidential after-hours trial preparation sessions — that unveil litigation strategies and test their strengths and weaknesses — is oftentimes far more potentially harmful if disclosed to adversaries (or used against ' a former client) than what is in the record. The disqualification order does nothing to quell these concerns, which cannot be effectively remedied, even if discovered, at the appellate end of a lawsuit.,

Rombola had good reason to insist upon a full disqualification order. His lawyer switched sides without his consent and ignored Rombola’s protests to disqualify himself (and his new firm) from the matter. Rombola filed a formal motion for disqualification, yet it was ignored. Instead of immediately ceasing any involvement in the case, Ahmed and the Block firm forged ahead by preparing and filing a legal memorandum in opposition to the pending motions of Rombola upon which Ahmed’s name appeared. This was done at a time after Ahmed had been privy to confidential information and Rombola’s litigation strategy, each acquired while on the defense’s payroll. Whether the confidential information proved useful in the legal memorandum filed in opposition to Rom-bola is an impertinent question; what matters is that the change in representation was nonconsensual and that confidential information was in immediate need of ongoing protection. As our supreme court has noted, the purposes for maintaining client confidences are (at least) twofold. The first is to develop the trust that is “essential to an attorney-client relationship” including “a free flow of information” between clients and their lawyers. The second purpose for protecting client confidences, which is “fundamental to a fair adversary system,” is that “[o]ur legal system' cannot function fairly or effectively if an attorney has an informational advantage in the form of confidences gained during a former representation of his client’s current opponent.” K.A.W., 575 So.2d at 632. Neither interest is served by judicial orders that fail to protect former clients from side-switching lawyers; indeed, the readiness of lawyers to cast aside loyalties and switch sides fuels lawyer jokes that cast a disparaging shadow on the justice system. See Marc Galanter, “Lowering the Bar:. Lawyer Jokes and Judicial Culture,” 238 (2005).

Finally, we simply cannot agree, as Bot-chey suggests, that Rombola’s remedy is to file a new motion to disqualify if either Ahmed or the Block firm makes an appearance in this case on plenary appeal; it would be an illusory remedy at best. And, as Rombola points out, it would likely be claimed that he sat on, and thereby waived, his rights by waiting for such an unlikely event to occur. In short, the disclosure or misuse of confidential information presents an ongoing and unacceptable risk of harm to Rombola that only a full disqualification order could prevent, and for which relief via certiorari is appropriate.

HI.

Obtaining confidential client information, switching sides in an ongoing lawsuit, and then filing a legal response against the former client over its objections, is worthy of the strongest protection of the abandoned client’s interests. It was incumbent on the trial court to disqualify the attorney and his new law firm from the entire lawsuit.

PETITION GRANTED.

SWANSON, J., concurs; ROWE, J., concurs in result only.

On Motion for Rehearing

MAKAR, J.

In her rehearing motion, Ms. Botchey seeks to modify our opinion to “remove all statements or implications that Mr. Ahmed ever disclosed any confidences or that Mr. Block or his law firm did not take safeguards to ensure that no confidences were or could be disclosed.” Accompanying her motion are three post-opinion affidavits: one from Mr. Block saying he had an ethical wall in place to prevent disclosure of confidential information from Mr. Ahmed, one from his firm’s paralegal saying she erred by including Mr. Ahmed’s signature on a post-trial response, and one from Mr. Ahmed saying he didn’t know anything about this appellate proceeding or that his name on the signature block played a role until our decision was released.

The appropriate time to have asserted the type of factual matters in these affidavits was when a response to Mr. Rombo-la’s disqualification motion was due in the trial court. Injecting new facts and legal arguments in a rehearing motion is not looked upon favorably. See Fla. R.App. P. 9.330(a); Begyn v. State Bus. & Prof'l Reg., 849 So.2d 336 (Fla. 1st DCA 2003). It muddles the orderly process by which trial and appellate courts operate; it raises costs to the parties and the system; it creates delays and diverts resources from other productive uses. Because the motion claims our opinion is based on “mistaken factual assertions that are unsupported by the record” that “calls” the “reputations [of Messrs. Block and Ahmed] into question,” however, we choose to address the motion’s merits.

First, the opinion does not say that Mr. Ahmed actually disclosed confidential information or imply that he did so. Instead, the opinion is undergirded by the legal principle that protecting former clients from the potential disclosure or misuse of confidential information requires broad legal protection, a potential that need not be realized to warrant judicial relief. Beyond that, the record establishes an appearance of indifference to confidentiality of client information. In response to the disqualification motion, Ms. Bot-chey’s attorneys downplayed its ethical implications, claiming that “even if Mr. Ahmed had privileged information regarding this trial, that is now irrelevant and immaterial” and “is rendered completely and totally moot” because the trial was over; an inference to be drawn is that an ethical screen is unnecessary. This poten tial and this appearance are enough to sustain our opinion without any finding or implication that Mr. Ahmed himself acted wrongfully.

Second, had Ms. Botchey’s counsel filed the three affidavits at issue in response to Mr. Rombola’s disqualification motion, the complexion of this matter may well have changed markedly by signaling to the trial court, and — more importantly — to the former client, that ethical safeguards were being taken seriously and would be immediately implemented thereby reducing the appearance of impropriety and maximizing the protection of the former client interests; much litigation and expense could have been avoided. That did not occur because, as Ms. Botchey now claims, her “position then and now is that Mr. Block and his law firm are clearly disqualified from this case.” But that is inaccurate and contrary to her position below; indeed, the only dispute in this case was whether disqualification should have been from the case or just the trial portion. Given Ms. Botchey’s litigation position below, and her failure to file affidavits alleviating the ethical issues raised, we are in no position to revive the matter factually at this point.

All this said, we are not unsympathetic to the plight of Mr. Ahmed, who — crediting his affidavit on appeal — relied exclusively on a senior partner, Mr. Block, to handle the disqualification matter and make decisions affecting Mr. Ahmed’s interests. Young attorneys such as Mr. Ahmed can be swept into situations beyond their control when they rely on their superiors to handle such matters, which is borne out in this case. In his appellate affidavit, Mr. Block admits he mistakenly signed the response with Mr. Ahmed’s name on it and made all the decisions that resulted in the controversies in this appeal. It was thereby on Mr. Block’s shoulders, not Mr. Ahmed’s, that the burden of this case rested.

DENIED.

ROWE and SWANSON, JJ„ concur.

      . See William Safire, Safire’s Political Dictionary (2008).
      The figure of speech was Lincoln's, spoken at the Republican convention of 1864 to a delegation from the Union League Club, which had hailed the action of the convention in nominating Lincoln.... he did not allow himself to suppose that either the Convention or the League had concluded that he was either the greatest or the best man in America, but rather that they had decided it was best not to ‘swap horses while crossing the river.'

        Id. at 193.

        , Rule 4-1.9, Rules Regulating the Florida Bar, provides that a lawyer who has formerly represented a client in a matter shall not thereafter:
      (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent;
      (b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or
      (c) reveal information relating to the representation except as these rules would permit or require with respect to a client.
      R. Regulating Fla. Bar 4-1.9 (2013). Rule 4-1.10, in pertinent part, provides:
      (b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.
      (d) Waiver of Conflict. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7.

      . The court stated that "[w]hether two legal matters are substantially related depends upon the specific facts of each particular situation or transaction. Further, the comment to rule 4-1.9 states that when a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited.” Dunagan, 731 So.2d at 1240 (internal quotations omitted).

      . Rule 4-1.6, entitled "Confidentiality of Information,” provides that consent is required to reveal information relating to representation of a client, absent an exception. R. Regulating Fla. Bar 4-1.6(a) (2013) ("Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.”). None of the exceptions applies in this case.

      . The range of possible matters include: consultation on an appellate strategy and timetable; preparing appellate record, notice of appeal, and drafts of appellate briefs/motions; consult on appellate bond and other procedural issues. See generally Raymond T. Elli-gett, Jr., You Should Have Called Me Sooner, Fla. B.J., Aug. 1999 (discussing how appellate practice includes consultation before, during and after trial phases.).


author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant, v. Jarvis Gerrard GREEN, Appellee.
    No. 2D12-4828.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee.
   CRENSHAW, Judge.

The State of Florida appeals an order granting Jarvis Green’s motion for judgment of acquittal after jury trial. Pursuant to the motion, the circuit court reduced Green’s conviction from burglary of an unoccupied dwelling to trespass. We have jurisdiction. Because the court erred in reducing the charge rather than ordering a new trial, we reverse the judgment and order a new trial. We also certify a question of great public importance.

Green was charged in 2012 with burglary of an unoccupied dwelling and petit theft; he was not charged with trespass. He was acquitted by a jury of the petit theft charge and convicted of the burglary. Before sentencing, Green filed an omnibus posttrial motion seeking a new trial, judgment of acquittal, or arrest of judgment but did not seek relief pursuant to Florida Rule of Criminal Procedure 3.620. The merits of the motion were that a 911 call containing inadmissible hearsay was admitted into evidence and became a feature of the trial. The court agreed that admission of the call was error and prejudiced Green; the State disagreed. Though the court determined that the burglary conviction could not stand without the 911 call, it concluded that there was sufficient evidence to convict Green of trespass. In accordance -with that determination the burglary conviction was reduced to a conviction for trespass and the State appealed. We reverse the judgment and explain the remedy the court should have used below.

Why a Judgment of Acquittal Could Not Be Granted

While it is appropriate to grant a judgment of acquittal of a greater charge where the evidence only supports a lesser charge, such is not the case here. The court below “acquitted [burglary] down to trespass.” After the motion was granted, Green was convicted of trespass but not burglary; trespass was not charged in the information. Because trespass was not charged and Green did not stipulate to an amendment of the charging document he could not be convicted of that offense unless trespass were a necessarily lesser-included offense. See Johnson v. State, 981 So.2d 680, 681 (Fla. 2d DCA 2008) (“ ‘[D]ue process prohibits a defendant from being convicted of a crime not charged in the information or indictment.’ ” (quoting Crain v. State, 894 So.2d 59, 69 (Fla.2004))). However, trespass is not a necessarily lesser-included offense of burglary. See Fla. Std. Jury Instr. (Crim.) 18.1; see also § 810.02, Fla. Stat. (2012) (defining and criminalizing burglary). Rather, it is a category two, or permissive, lesser-included offense of burglary of a dwelling. Fla. Std. Jury Instr. (Crim.) 13.1; see Hannah v. State, 42 So.3d 951, 953 (Fla. 4th DCA 2010) (“ ‘Trespass is a permissive or category 2 lesser-included offense of burglary of a conveyance.’” (quoting Thomas v. State, 591 So.2d 259, 260 (Fla. 4th DCA 1991))). Because an “acquittal down” can only be done when the lesser charge is necessarily a lesser-charged offense and burglary does not necessarily include trespass, a judgment of acquittal was improper on this ground. See Hannah, 42 So.3d at 953; cfi Sellers v. State, 838 So.2d 661 (Fla. 1st DCA 2003) (holding that trial court erred in denying a motion for judgment of acquittal as to grand theft where there was insufficient evidence of value and ordering reduction to necessarily lesser-included offense of petit theft.)

New Trial Was the Appropriate Relief in this Case

This brings us to the question of the proper remedy. Green sought three types of relief — new trial, judgment of acquittal, and arrest of judgment. We have already discussed why a judgment of acquittal was not the appropriate relief in this case. As to a motion for an arrest of judgment, in this case the motion is inap-posite and lacks merit. See Fla. R. Crim. P. 3.610. On the other hand, a criminal court is empowered to grant a new trial, among other circumstances not relevant here, where “[t]he verdict is contrary to law or the weight of the evidence” or “[t]he court erred in the decision of any matter of law arising during the course of the trial,” in the latter case so long as prejudice is established. Fla. R. Crim. P. 3.600(a)(2), (b)(6); see Fla. R. Crim. P. 3.580. Thus, upon proper motion, once the trial judge properly determines that prejudicial information was erroneously admitted during trial and where it cannot grant a motion for judgment of acquittal nor arrest the judgment, it must grant a new trial. Accordingly, in this case the court could only issue one form of relief, and that is a new trial.

Florida Rule of Criminal Procedure 3.620 is Inapposite

Green seeks dismissal of this appeal arguing that we do not have jurisdiction over orders granting relief pursuant to Florida Rule of Criminal Procedure 3.620. See Exposito v. State, 891 So.2d 525, 529-31 (Fla.2004). The court did not grant relief under the rule. Moreover, rule 3.620 is inapposite to this case.

Rule 3.620 reads in full, with emphasis added:

When the offense is divided into degrees or necessarily includes lesser offenses and the court, on a motion for new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.

“ ‘When a rule is clear and unambiguous, courts will not look behind the rule’s plain language or resort to rules of construction to ascertain intent.’ ” Kidder v. State, 117 So.3d 1166, 1170-71 (Fla. 2d DCA 2013) (quoting Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370, 375 (Fla. 4th DCA 2011)). Because burglary of an unoccupied dwelling is not an offense that necessarily includes trespass, and Green’s charge was not divided into degrees, rule 3.620 is inapplicable.

Green points out that in Expósito the court explicitly approved State v. Richars, 792 So.2d 570 (Fla. 4th DCA 2001). See Expósito, 891 So.2d at 531. In Richars, the Fourth District dismissed an appeal from the grant of relief under rule 3.620 as concluding that it lacked jurisdiction. Ric-hars, 792 So.2d at 571. Richars, like this case, resulted from an “acquittal down” in the context of permissive lesser offenses. Id. Specifically, Richars dealt with robbery and its permissive lesser offense of resisting a merchant. See Fla. Std. Jury Instr. (Crim.) Robbery. Neither the Richars court nor the Expósito court noted the discrepancy between the facts of Richars and rule 3.620’s text we discuss above. Although we adhere to the letter of the rule, we certify the following question as one of great public importance:

DOES FLORIDA RULE OF CRIMINAL PROCEDURE 3.620 APPLY IN CASES WHERE NO OFFENSE DIVIDED INTO DEGREES IS CHARGED AND THE DEFENDANT SEEKS REDUCTION OF HIS CONVICTION TO A PERMISSIVE LESSER-INCLUDED OFFENSE?

Conclusion

We recognize the court’s need to grant relief based on its determination that prejudicial, inadmissible evidence was adduced at trial, but rule 3.620 is inapposite and a motion for judgment of acquittal could not be granted in this case. However, a new trial could have, and should have, been granted.

Reversed and remanded for new trial; question of great public importance certified.

CASANUEVA and BLACK, JJ., Concur.

      . See art. V, § 4(b)(1), Fla. Const, (providing authority of district courts of appeal to hear appeals of right from final judgments or orders); § 924.07(l)(j), Fla. Stat. (2012) (creating the State’s substantive right to appeal from a judgment of acquittal after jury trial); Fla. R. App. P. 9.140(c)(1)(E) (effectuating by procedural rule the State’s right to appeal a judgment of acquittal after jury trial).


text:
    Darryl A. CRAWFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4093.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2014.
    Rehearing Denied Nov. 6, 2014.
    Darryl A. Crawford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1286 (Fla.2004).

ROWE, MARSTILLER, and MAKAR, JJ., concur.


text:
    Jessie JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1424.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Reconsideration Denied Nov. 17, 2014.
    Carey Haughwout, Public Defender, and Gregory J. Morse, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See D’Oleo-Valdez v. State, 531 So.2d 1347, 1348 (Fla.1988) (“[T]he failure to appoint a second expert to examine the defendant’s mental competency to stand trial is not fundamental error. It is procedural in nature and does not go to the foundation of the case or to the merits of the cause of action”).

GROSS, TAYLOR and GERBER, JJ., concur.


text:
    Ricardo VINCENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-658.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Rehearing Denied Nov. 18, 2014.
    Ricardo Vincent, Crawfordville, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Prior to the effective date of rule 3.801, the appellant filed an insufficient rule 3.800(a) motion seeking additional jail time credit. The trial court summarily denied it based on the state’s response, which explained that appellant had received all the credit to which he was entitled. The state did not attach any portions of the record to its response, and the trial court did not attach any to its order. See Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011) (explaining trial court need not attach documents to refute a rule 3.800(a) claim). The appellant appealed, seeking the portions of the record that refuted his claim pursuant to new rule 3.801. However, his motion did not comply with that rule; it was not sworn and did not contain the contents required by rule 3.801(c).

Rule 3.801 became effective on July 1, 2013, while the appellant’s motion was pending in the trial court. The time to file a rule 3.801 motion as to sentences imposed before July 1, 2013, expired on July 1, 2014, while his appeal was pending in this Court. Under the circumstances, we affirm without prejudice to his filing a facially sufficient rule 3.801 motion within thirty days of the issuance of this court’s mandate. A motion filed within this time will not be deemed untimely or successive.

Affirmed without prejudice.

DAMOORGIAN, C.J., TAYLOR and GERBER, JJ., concur.

      . Rule 3.801 incorporates rule 3.850(f). Fla. R. Crim. P. 3.801(e). Rule 3.850(f)(5) provides in part, "if the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”


author: CONNER, J.

text:
    Eduardo JULIAO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2873.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2014.
    Rehearing Denied Nov. 21, 2014.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Eduardo Juliao appeals his conviction of aggravated battery, false imprisonment, felony battery, tampering with a witness, and two counts of battery. Juliao raises five issues on appeal, two of which argue double jeopardy violations. We reverse on the two issues raising double jeopardy violations. We affirm without discussion the trial court rulings on the three other issues raised.

The State charged Juliao with aggravated battery (deadly weapon), domestic battery by strangulation, false imprisonment, felony battery (great bodily harm), tampering with a witness, and domestic battery. His wife was the victim of all the crimes charged. All of the offenses charged against Juliao occurred in the apartment he shared with his wife and during a single criminal episode. The jury found him guilty as charged on all counts except domestic battery by strangulation, in which the jury found him guilty of the lesser-included offense of battery.' The trial court sentenced him on each charge.

The defendant raised no double jeopardy issues before the trial court. However, “a violation of double jeopardy is. a fundamental error which can be raised for the first time on appeal.” Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003). Whether double jeopardy is violated is a legal determination, reviewed de novo. State v. Paul, 934 So.2d 1167, 1171 (Fla.2006) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).

Section 775.021(4)(a), Florida Statutes (2009), requires the use of the Bloekbwrger “same elements” test in determining if multiple convictions and punishments are allowed for crimes committed during the same criminal episode. Ramirez v. State, 113 So.3d 105, 107 (Fla. 5th DCA 2013). If each offense “has an element that the other does not, the court must then determine if one of the exceptions set forth in section 775.021(4)(b) applies.” Id. (citing Valdes v. State, 3 So.3d 1067,1070 (Fla.2009)).

Those exceptions are: (1) offenses which require identical elements of proof; (2) offenses which are degrees of the same offense as provided by statute; and (3) offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Id.

The State concedes in this case that the felony battery conviction must be vacated because all of the elements of felony battery (great bodily harm) are subsumed in the elements of aggravated battery (deadly weapon), and felony battery is a category one necessarily included offense of aggravated battery. See §§ 784.041, 784.045, Fla. Stat. (2009); see also Fla. Std. Jury Instr. (Crim.) 8.4, 8.5. The State also concedes that the convictions for battery under counts two and six are based on the same conduct, requiring identical elements of proof. Therefore, the conviction and sentence for one of those counts must be vacated.

We affirm Juliao’s convictions and sentences for aggravated battery, false imprisonment, tampering with a witness, and one count of battery. We reverse Juliao’s convictions and sentences for felony battery and the other count of battery and remand the case for the trial court to vacate those convictions and sentences.

Affirmed in part and reversed in part, and remanded for further proceedings.

TAYLOR and KLINGENSMITH, JJ„ concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    Darrius Laralle WIMBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1245.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm and note that any concerns regarding the legality of any portion of appellant’s sentence were not properly preserved for appeal.

AFFIRMED.

WOLF, ROWE, and OSTERHAUS, JJ„ concur.


text:
    Ivan GONZALEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1901.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Ivan Gonzalez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel the circuit court to rule on a pending motion for postconviction relief. The state has filed a status report showing that the circuit court has scheduled an ■ evidentiary hearing on the pending motion. Accordingly, we are satisfied that reasonable measures are being taken to ensure that petitioner’s motion will be disposed of as promptly as circumstances permit. Accordingly, while we encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below, we deny the petition for writ of mandamus. Wilson v. State, 775 So.2d 1003 (Fla. 1st DCA 2001).

WOLF, BENTON, and MAKAR, JJ., concur.


text:
    Lavander BARKLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2437.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.

      Lavander Barkley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is dismissed as moot.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Germaine R. RUDDICK, Appellant, v. FLORIDA State Prison, Appellee.
    No. 1D14-3371.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Germaine R. Ruddick, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant seeks review of a final order dismissing his petition for writ of habeas corpus. Because jurisdiction of this court was not invoked within thirty days of rendition of the order to be reviewed, we dismiss the appeal as untimely. See Fla. R. App. P. 9.110(b). To the extent appellant seeks to invoke the original jurisdiction of this court to obtain a writ of habeas corpus, the petition is properly filed in the circuit court. See, e.g., Harvard v. Singletary, 733 So.2d 1020, 1022 (Fla.1999) (writ petitions that could require resolution of disputed issues of fact should be handled by the circuit courts).

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Zaynus C. CRAWFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4363.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Zaynus C. Crawford, 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.

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


text:
    Sue Ann COLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3577.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Sue Ann Cole, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is dismissed.

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


text:
    Lonnie D. WACTOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4051.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Lonnie D. Wactor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Powell v. Fla. Dep't of Corr., 727 So.2d 1108 (Fla. 1st DCA 1999).

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


text:
    Jessica D. STEPONIK, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3789.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2014.
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

. Jessica D. Steponik appeals the order revoking her probation. We affirm the revocation and her amended sentence in all respects. We write only to note that the trial court entered the amended sentence prior to the trial court clerk’s issuance of the commitment package for the Department of Corrections, but the commitment package that is contained in our appellate record does not include the amended sentencing document. The amended sentence substantially increased Ms. Steponik’s credit for time served. The sentencing document contained in the commitment package in our record was signed on July 23, 2013, and it reflected an award of 230 days of credit for time Ms. Steponik was incarcerated before imposition of the sentence. The amended sentence was signed on July 25, 2013, and it reflected an award of 319 days of credit for time incarcerated before imposition of the sentence. Thus, the Department should calculate Ms. Step-onik’s release date based on the amended sentence if it has not already done so.

Affirmed.

ALTENBERND, CASANUEVA, and BLACK, JJ., Concur.


author: STEVENSON, J.

text:
    Gregory Angelo FERRARO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-672.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Gregory Angelo Ferraro (“Defendant”) appeals from a final judgment adjudicating him guilty of first degree murder with a firearm and attempted first degree murder with a firearm. Defendant argues the trial court erred in denying his motion for judgment of acquittal on the grounds that the State presented insufficient evidence to support premeditation. A de novo standard of review applies when reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (FIa.2002). “A motion for judgment of acquittal should be granted in a circum- , stantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” State v. Law, 559 So.2d 187, 188 (Fla.1989). Applying that heightened standard here, we find the State met its burden and we affirm.

On the night of the incident, Defendant and others were gathered at a friend’s house for a party. Towards the end of the night, Defendant started arguing with one of the other men at the party. The fight was broken up, and Defendant drove away with a handful of other party-goers. Apparently still disturbed by the incident, Defendant obtained a gun and returned to the house approximately two to three hours later. Hearing someone outside the house, Casey Jackson and Daniel White walked out onto the porch. Both men leaned out from behind a wall, whereupon Daniel White was shot and killed by Defendant. Defendant also shot at Casey Jackson. Defendant claimed that he did not see anyone but heard a gun cock, and he fired his weapon. only in an attempt to scare anyone outside into returning inside the house so that he could run away.

Defendant argues his motion for judgment of acquittal should have been granted because there was insufficient evidence to prove premeditation. We disagree. The State presented sufficient evidence that showed Defendant had formed the requisite premeditation, including evidence that he arranged to pick up some “big artillery” shortly before the shootings and his remarks that he intended on “bringing] ... fire.” Cf. Kirkland v. State, 684 So.2d 732, 735 (Fla.1996) (holding there was not sufficient evidence of premeditation when, in part, the defendant did not make “special arrangements to obtain a murder weapon in advance of the homicide”). Additionally, despite Defendant’s testimony that he heard someone walk- outside the house and cock a gun, Defendant still elected to shoot straight and not up into the air or towards the ground. This evidence negates Defendant’s suggestion that he intended only to scare the victims. There was also some evidence that the front lawn was illuminated, which refuted Defendant’s claim that he was unable to see anyone because it was dark outside. Based on these reasons, and other evidence presented at trial, we affirm the final judgment.

Affirmed.

MAY and LEVINE, JJ., concur.


text:
    Johnathan Kenneth Ray DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-0815.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach.
    Pamela Jo Bondi, Attorney General, Tallahassee and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Davis appeals his convictions and sentence for three counts of attempted first degree murder with a firearm. We affirm his convictions without discussion, but vacate his sentence and remand for resen-tencing before a different judge because the trial court improperly considered Davis’s lack of remorse in sentencing him.

At the sentencing hearing, the State asked the court to sentence Davis to the lowest permissible sentence, a twenty-five year mandatory minimum to run concurrently on all cases. However, at the conclusion of the hearing, the trial court stated:

THE COURT: I heard the evidence and I heard the jury speak. I also heard the recommendation of your lawyer. I’ve heard the recommendation by the state. I am going to give you as much of a break as I can. What I didn’t hear was your responsibility. What I didn’t hear was an apology to the family of the victims and to the victims. What I didn’t hear was you taking ownership of your actions and that bothers me.

(emphasis added). The trial court then sentenced Davis to concurrent terms of thirty years in prison with a twenty-five year mandatory minimum sentence and credit for time served.

On appeal, Davis argues that the trial court improperly considered his lack of remorse as an aggravating factor in the sentencing decision. He asserts that the trial court specifically referenced his lack of remorse when it announced his sentence, and that he is therefore entitled to resentencing before a different judge. We agree.

A defendant’s due process rights are violated where the trial court relies on constitutionally impermissible factors in imposing a sentence. Norvil v. State, — So.3d —, 2014 WL 940724, 39 Fla. L. Weekly D520 (Fla.- 4th DCA Mar. 12, 2014). It is well established that “[w]hen a court predicates the length of a sentence on the defendant’s failure to show any inclination toward repentance, the court violates the defendant’s right not to be required to incriminate himself.” Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006); see also Donaldson v. State, 16 So.3d 314 (Fla. 4th DCA 2009); Soto v. State, 874 So.2d 1215 (Fla. 3rd DCA 2004) (stating that although defendant’s lack of remorse and unwillingness to admit guilt were not the only factors in the trial court’s sentencing decision, where the judge’s own statements showed that the defendant’s unwillingness to admit guilt was one of the factors considered by the judge, reversal and resentencing before another judge were required). A trial court’s consideration of a defendant’s lack of remorse in imposing its sentence is fundamental error. See Whitmore v. State, 27 So.3d 168, 172 (Fla. 4th DCA 2010) (vacating the sentence and directing that the defendant be resentenced before a different judge).

Likewise, here, the trial court’s consideration of Davis’s lack of remorse and failure to take ownership of his actions or apologize to the victims’ families constituted fundamental error. Therefore, we reverse the case for resentencing before another judge.

Affirmed in part, reversed in part, and remanded.

WARNER, LEVINE and CONNER, JJ., concur.


text:
    Johnny Duriel HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-125. .
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2014.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant Johnny Duriel Harris (“Defendant”) appeals his convictions for possession of cocaine (“Count One”), and possession of cannabis (“Count Two”), both with intent to sell or deliver within 1,000 feet of a park, community center, or recreational facility pursuant to section 893.13(l)(c), Florida Statutes (2011). Defendant contends, and the State concedes, that his convictions on these two counts were error when the only testimony presented showed that these offenses happened “near” a park, but did not establish the actual distance involved. Defendant asks that these convictions be reversed outright, while the State argues that this court should order the convictions reduced to lesser included offenses. We agree with the State, and reverse and remand for entry of a judgment of conviction and re-sentencing on the lesser included offenses of possession with intent to sell or deliver for both Count One and Count Two. We find Defendant’s other arguments on appeal to be without merit, and affirm his convictions on all other charges.

In the course of a narcotics investigation, police completed two controlled purchases of cocaine from Defendant and observed multiple individuals purchasing narcotics from him in “hand to hand” transactions at his residence. Officers executed a search warrant on the residence and recovered cocaine, marijuana, a digital scale, and other drug-related paraphernalia. The arresting officer noted in the arrest affidavit that a park was located approximately 400 feet from the residence, causing Defendant to be charged with possession of both cocaine and marijuana with intent to sell, manufacture, or deliver within 1,000 feet of a park.

The State concedes that there was insufficient evidence presented at trial concerning the proximity of the Defendant’s residence to the park, one of the elements for the charge in both Count One and Count Two. Since no error is alleged relating to the jury’s finding that Defendant was in possession of cocaine and cannabis with the intent to sell, we must consider the appropriate remedy to be applied when one element of the original charge fails, yet there is sufficient proof of the other elements to support a conviction for a lesser included offense.

Necessary lesser included offenses are defined as “those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense.” Sanders v. State, 944 So.2d 203, 206 (Fla.2006) (citing State v. Paul, 934 So.2d 1167, 1176 (Fla.2006)). In other words, a necessary lesser included offense is one that “a defendant cannot possibly avoid committing ... when the [charged offense] is perpetrated.” State v. Weller, 590 So.2d 923, 925 (Fla.1991). Trial judges are required to instruct the jury regarding a necessary lesser included offense. State v. Wimberly, 498 So.2d 929, 933 (Fla.1986). Because Defendant could not have committed the charged offenses under section 893.13(l)(c) in Counts One and Two without committing the lesser included offenses of possession with intent to sell or deliver, they are considered necessary lesser included offenses.

A criminal defendant is entitled to a jury trial and a finding of guilt' beyond a reasonable doubt as to every element of the crime charged. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Florida Statutes permit appellate courts to direct a trial court to enter a judgment for a lesser included offense if the jury’s verdict includes a finding of guilt for each element of that lesser included offense. § 924.34, Fla. Stat. (2011). Section 924.34 states:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

§ 924.34, Fla. Stat. (2011); see also Cornejo v. State, 892 So.2d 1160, 1162 (Fla. 4th DCA 2005) (stating that an appellate court can remand for entry of a conviction of a lesser included offence only if the jury’s verdict includes a finding of guilt beyond a reasonable doubt for each element of the lesser included offense).

In examining the elements of these charged offenses, it is clear that the crimes alleged in the charging document sufficiently alleged the lesser included offenses of possession of controlled substances with intent to sell under section 893.13(l)(a), and the evidence at trial supports convictions under that statute. See Henderson v. State, 952 So.2d 1269,1270 (Fla. 2d DCA 2007). There is also sufficient evidence in the record that every element of those lesser included offenses was proved to the jury beyond a reasonable doubt. As a result, entry of judgment for the lesser included offenses of possession of the drugs with intent to sell on both Count One and Count Two is proper pursuant to section 924.34.

We hereby reverse Defendant’s convictions on Count One and Count Two, but remand this case back to the trial court with instructions to enter judgments of conviction against the Defendant under section 893.13(l)(a) for possession of cocaine with intent to sell on Count One, and for possession of cannabis with intent to sell on Count Two, as well as for resen-tencing on these convictions.

Affirmed in part, Reversed in part, and Remanded with instructions.

STEVENSON, MAY and KLINGENSMITH, JJ., concur.


text:
    Freddie LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5083.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2014.
    Freddie Lawrence, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Freddie Lawrence, appeals an order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and challenges the denial of relief as to Grounds 4 and 11. We agree with the State’s concession that reversal is warranted as to Ground 4 given that the record attachments do not conclusively refute Appellant’s allegation that trial counsel told him the night before trial that she rejected the State’s plea offer because she was ready to proceed to trial. See Wainwright v. State, 896 So.2d 695, 698 (Fla.2004) (noting that a defendant is entitled to an evi-dentiary hearing on a postconviction relief claim unless the motion and record conclusively show that he or she is entitled to no relief or where the claim is legally insufficient). As such, we reverse the order as to Ground 4 and remand with instructions that the trial court hold an evidentiary hearing on the claim or attach portions of the record conclusively refuting the claim.

As for Ground 11, in which Appellant claimed that, pursuant to Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), the trial court committed fundamental error during his trial by giving an erroneous manslaughter by act jury instruction, we agree with the State’s contention that the claim was untimely and that none of the exceptions to the two-year time limitation in rule 3.850 are applicable to this claim. See Fla. R. Crim. P. 3.850(b) (providing for a two-year time limitation in which to file a postconviction claim); see also Surinach v. State, 110 So.3d 95, 95 (Fla. 2d DCA 2013) (“Amended motions for postconviction relief are subject to the two-year time limit for filing rule 3.850 motions unless they merely enlarge an issue or issues raised in the original motion.”). To the extent that Appellant argues in this proceeding that his appellate counsel was ineffective in failing to raise the erroneous jury instruction issue in his direct appeal, we dismissed Appellant’s habeas corpus petition raising that argument because it too was untimely. See Lawrence v. State, 92 So.3d 855 (Fla. 1st DCA 2012).

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

LEWIS, C.J., BENTON and RAY, JJ., concur.

      . Appellant's direct appeal was pending when we issued our decision in Montgomery, holding that intent to kill is not an element of manslaughter by act and that it was fundamental error to give an instruction suggesting that the State was required to prove intent to kill to prove the crime of manslaughter. See 70 So.3d at 604-07.


author: CLARK, J.

text:
    Damanta Jamar MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5652.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2014.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General and Julian E. Markham and Jay Kubiea, Assistant Attorneys General, Tallahassee, for Appellee.
   CLARK, J.

Damanta Murphy appeals his judgment and sentence, entered after the circuit court’s denial of his motion to suppress and his subsequent plea of no contest to numerous felony charges. During the plea hearing, defense counsel stated that Mr. Murphy entered the plea with the reservation of his right to appeal the denial of his motion to suppress written and oral statements to the police. The circuit court acknowledged the reservation and the written plea agreement contained the notation “[rjeserve the right to appeal the issue of suppression.”- However, the State never stipulated, and the court never made a determination, that the motion to suppress was legally dispositive as contemplated under rule 3.170(£), Florida Rules of Criminal Procedure and rule 9.140(b)(2)(A)(i), Florida Rules of Appellate Procedure. See also § 924.051(4), Fla. Stat. No motion to withdraw the plea, pursuant to rule 3.170(Z), is contained in the record.

Under these circumstances and upon the record before us, we are constrained to affirm the conviction and sentence; Leonard v. State, 760 So.2d 114 (Fla.2000). However, the mistaken assurances of defense counsel and the trial court that Mr. Murphy’s plea reserved his ability to appeal the denial of the motion to suppress bring into question the “voluntary and intelligent” nature of Appellant’s plea. See Holden v. State, 90 So.3d 902, 904 (Fla. 1st DCA 2012) (Benton, C.J., concurring).

At this point in time, it is too late for Mr. Murphy to file a motion to withdraw his plea pursuant to rule 3.170(í) and thus too late to preserve the issue for appeal as otherwise allowed under rule 9.140(b)(2)(A)(ii). Even if we remanded this case for a determination of whether the motion to suppress was dispositive, as the appellate court did in Bonfiglio v. State, 57 So.3d 990 (Fla. 2d DCA 2011), the time limitations governing motions to withdraw could not be met. As noted in Williams v. State, 134 So.3d 975, 977-78 (Fla. 1st DCA 2012): “Even if Florida Rule of Criminal Procedure 3.170 is no longer available to appellant on remand, Florida Rule of Criminal Procedure 3.850 contemplates collateral relief from convictions predicated on pleas that are not voluntary and intelligent. Fla. R. Crim. P. 3.850(a)(1) and (5).” See also Holden, 90 So.3d at 904 (Benton, C.J., concurring). Appointment of counsel to assist Mr. Murphy in determining whether pursuit of such collateral relief is in his best interest would be appropriate upon his motion requesting such appointment.

The judgment and sentence are affirmed.

VAN NORTWICK and SWANSON, JJ., concur.


text:
    In the Interest of J.E. and C.E., children. M.K., Appellant/Cross-Appellee, v. Department of Children & Families and Guardian Ad Litem Program, Appellees/Cross-Appellants.
    No. 2D14-1404.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2014.

      Ita M. Neymotin, Regional Counsel, and Joseph Thye Sexton, Assistant Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appel-lanVCross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Meredith Hall, Assistant Attorney General, Tampa, for Appel-lee/Cross-Appellant Department of Children & Families.
    Jennifer S. Paullin of Statewide Guardian ad Litem Office, Sanford, for Appel-lee/Cross-Appellant Guardian ad Litem Program.
   PER CURIAM.

We affirm the appeal and the cross-appeal. See § 39.806(l)(e)(l), Fla.' Stat. (2013).

ALTENBERND, NORTHCUTT, and KELLY, JJ., Concur.