author: SILBERMAN, Judge.

text:
    Marie Ann McLAUGHLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2414.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Marie Ann McLaughlin appeals the order withholding adjudication and imposing only court costs as her sentence for grand theft motor vehicle and battery on a law enforcement officer. The trial court should have granted McLaughlin’s motion to dismiss because the State had not commenced the prosecution within the statute of limitations. Thus, we reverse the trial court’s order withholding adjudication and imposing court costs and remand for the trial court to dismiss the charges.

McLaughlin was arrested for the third-degree felonies of grand theft motor vehicle and battery on a law enforcement officer on March 9, 1996. The crimes allegedly occurred on or between March 7, 1996, and March 9, 1996. Our record is sparse, and many of the facts must be gleaned from the trial court case progress notes. An assistant public defender was appointed for McLaughlin on March 10, 1996, appax*ently for the first appearance. On March 10, 1996, counsel filed a Notice of Defendant’s Invocation of Right to Counsel. On March 15, 1996, counsel filed a motion to reduce bail or release McLaughlin on her own recognizance which was denied on March 19, 1996. McLaughlin was released from jail on March 29, 1996.

On May 2, 1996, the State filed its information charging McLaughlin with grand theft motor vehicle and battery on a law enforcement officer. On May 8, 1996, the case was set for arraignment on May 21, 1996. Notice was sent to McLaughlin on May 9, 1996, although the case progress notes do not reflect the address to which the notice was sent. Notice was also sent to Paul Ortelli, the bail bondsman. Nothing in the case progress notes reflects that defense counsel was provided notice of the arraignment. On May 14, 1996, an entry reflects that the notice to the defendant was returned.

On the date set for arraignment, May 21, 1996, a capias was requested. The capias issued on May 28, 1996. The parties suggest that defense counsel filed a motion for extension of time that was granted on July 23, 1996. Our review of the case progress notes seems to indicate that it was the bail bondsman’s attorney who filed the motion for extension of time, apparently regarding the forfeiture of the bond. The case progress notes reflect that the motion for extension of time was granted and that the bail bondsman’s attorney, W. Dale Gabbard, was present at the hearing on July 23, 1996. Other than further proceedings regarding the bond, no other action was taken in the case until a warrant was served on McLaughlin on these charges on April 29, 2008, after she was extradited to Florida from New York.

On May 7, 2008, McLaughlin filed a motion to dismiss based on the statute of limitations. During the hearing on the motion, the trial court asked, “She had knowledge of the charges and voluntarily elected to remove herself from the jurisdiction of the court?” The prosecutor replied, “That would be the State’s position on this.” No evidence was presented at the hearing. In denying the motion, the trial court stated, “She secreted herself. She got arrested in another state, got extradited down here. Deny your request.” McLaughlin entered a no contest plea, reserving for appeal the dispositive issue of her motion to dismiss.

The State is generally required to commence prosecution for third-degree felonies within three years after the crimes were committed. See § 775.15(2)(b), Fla. Stat. (1995). However, section 812.035(10), Florida Statutes (1995), provides that “[n]otwithstanding any other provision of law,” an action for grand theft under section 812.014 “may be commenced at any time within 5 years after the cause of action accrues.” Thus, the statute of limitations is five years on the grand theft charge and three years on the battery of a law enforcement officer charge. With respect to when prosecution is commenced, section 775.15(5) provides, in pertinent part, as follows:

(5) A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

(Emphasis added.) With respect to the defendant’s absence from the state, section 775.15(6) provides as follows:

(6) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

Section 812.035(10) provides that, for the grand theft charge, the defendant’s absence from the state shall not “extend the period of limitation otherwise applicable by more than 1 year.”

In 1997, section 775.15 was amended to excuse the State for not extraditing or actively pursuing suspects who had been timely charged by indictment or information and been continuously absent from the State. See § 775.15(6), Fla. Stat. (1997). This amendment became effective July 1, 1997. See ch. 97-90, §§ 1, 7, at 514, 521, Laws of Fla. The parties agree that the amendment does not apply to McLaughlin’s crimes allegedly committed in March 1996 because the applicable version of the statute of limitations is the one in effect when the alleged crimes were committed. See State v. White, 794 So.2d 682, 682 n. 1 (Fla. 2d DCA 2001).

On appeal, the State does not contend that it was excused from timely commencing the prosecution. Rather, the State contends that by May 21, 1996, the date the capias was requested, the prosecution had commenced because the information was filed and “other process” issued. In making its argument that other process issued, the State analogizes this case to cases such as White, 794 So.2d 682, and State v. Martinez, 790 So.2d 520 (Fla. 2d DCA 2001). In White, this court stated that “where the defendant is represented, files a plea and is arraigned, ‘other process’ sufficient to commence prosecution under section 775.15(5) has occurred.” 794 So.2d at 683. The court further explained, “Even if White did not have personal knowledge that the information was filed, arraignment conducted and pretrial scheduled, his attorney did, and the attorney’s knowledge is imputed to his client.” Id.

In Martinez, the public defender’s office was appointed to represent Martinez after he was arrested. Counsel filed a written plea of not guilty, a notice of discovery, and a demand for jury trial. Martinez was still in custody when the State filed its information. Counsel “either appeared at the arraignment on Martinez’s behalf or waived formal arraignment.” 790 So.2d at 522. The case was set for pretrial, and Martinez failed to show up at the pretrial. A capias was issued, and Martinez was not arrested until more than nine years later.

In determining that the prosecution had commenced no later than the date of arraignment, this court explained as follows:

Martinez, either personally or through his counsel, knew that an information had been filed against him and that his prosecution was going forward in the usual way. In fact, counsel had filed a notice to participate in discovery. The only reason that this prosecution did not proceed in a timely manner was that Martinez chose not to attend his pretrial conference.

Id.; see also State v. Ramos, 975 So.2d 638, 639 (Fla. 4th DCA 2008) (“After the information was filed, Ramos received ‘other process’ in the form of the notice to appear at the arraignment.”); Starling v. State, 799 So.2d 425, 428 (Fla. 5th DCA 2001) (determining that notice of the trial and pretrial conference dates sent to defense counsel after the information was filed constituted “other process” to commence prosecution).

In State v. Watkins, 685 So.2d 1322, 1323-24 (Fla. 2d DCA 1996), this court affirmed the trial court’s order dismissing charges against Watkins because the State failed to commence prosecution against him “by filing an information or indictment and executing a capias without unreasonable deláy[.]” Judge Altenbernd expressed uncertainty as to “what ‘other process’ should be issued to a person who has been released on bail after first appearance.” Id. at 1324 (Altenbernd, J., specially concurring). Judge Altenbernd suggested, “If a letter were sent to the address provided by the defendant at the time of his arrest, notifying him or her of the filing of the information and the date and time of arraignment, I would regard that as sufficient ‘other process’ under these circumstances.” Id. Judge Alten-bernd noted that the record contained “no proof that such a letter was sent or received.” Id. at 1324, n. 2. He also recognized that the State carried the burden of proof. Id. at 1325.

Here, the public defender’s office was initially appointed for the first appearance held on March 10, 1996. The State contends in its brief that McLaughlin’s “counsel filed a written plea of not guilty, and either appeared at the arraignment on [McLaughlin’s] behalf or waived formal arraignment. Therefore, even if [McLaughlin] did not personally know the information had been filed, arraignment conducted, and pretrial scheduled, her counsel did.” The record does not support the State’s factual assertions. Nothing in the record shows that counsel filed a written plea of not guilty. The document to which the State refers is the Notice of Defendant’s Invocation of Right to Counsel, filed on the date of the first appearance, March 10, 1996, well before the information was filed on May 2, 1996. It is clear that the invocation of right to counsel is not a plea.

Although the case progress notes reflect that arraignment was set for May 21, 1996, they do not reflect that notice was sent to counsel, that counsel appeared at arraignment, or that counsel formally waived arraignment. Rather, the case progress notes show that a capias was requested on May 21, 1996, no doubt because McLaughlin did not show up at the arraignment. Furthermore, although the case progress notes reflect that notice was sent to McLaughlin, they do not indicate to what address the notice was sent and, in fact, indicate that the notice to McLaughlin was returned. The record also does not support the State’s assertion that McLaughlin’s counsel knew that preti'ial had been scheduled. Nothing reflects that a pretrial had been scheduled in 1996 on the charges against McLaughlin. The record does show that a motion for extension of time was filed on June 24, 1996, but the case progress notes seem to indicate that the motion was filed by the bail bondsman’s counsel regarding forfeiture of the bond.

Our record evidence is simply insufficient to prove that “other process” issued after the information was filed. McLaughlin was released from jail in March 1996, the information was filed in May 1996, and notice to McLaughlin of the arraignment date was returned. Nothing shows that counsel was notified of McLaughlin’s arraignment or that counsel appeared on McLaughlin’s behalf at arraignment. Nothing reflects that McLaughlin or any counsel “knew that an information had been filed against [her] and that [her] prosecution was going forward in the usual way.” Martinez, 790 So.2d at 522. Based on the circumstances here, we conclude that the prosecution did not commence within the applicable statute of limitations. Therefore, we reverse the order withholding adjudication and imposing court costs and remand for the trial court to dismiss the charges.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . The 1997 amendment also provides, "Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by .the filing of an indictment, information, or other charging document.” § 775.15(5)(a), Fla. Stat. (1997). Thus, if the 1997 amendment were applicable, our result would be different because the prosecution would have been timely commenced by the filing of the information after McLaughlin was arrested in 1996.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Malika PREURE, Appellant, v. Raouf BENHADJ-DJILLALI, Appellee.
    No. 5D08-1967.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.
    Rehearing Denied Aug. 20, 2009.
    Sherri K. DeWitt and Andrew T. Win-dle, of DeWitt Law Firm, P.A., Orlando, for Appellant.
    Raouf Benhadj-Djillali, Orlando, Pro Se.
   ORFINGER, J.

Malika Preure appeals from a final judgment in this domestic relations proceeding. We affirm the trial court’s resolution of the core issue in this appeal that the parties’ religious wedding ceremony in Oregon was not a legally valid marriage. However, we reverse as to several other aspects of the amended final judgment.

Whether the parties’ 2003 Oregon religious ceremony amounted to a valid marriage, with its attendant legal consequences, is determined in accordance with the law of the place where the marriage occurred. Goldman v. Dithrich, 131 Fla. 408, 179 So. 715 (1938). In 2003, Ms. Preure and Mr. Raouf Benhadj-Djillali participated in a religious marriage ceremony in Oregon, and subsequently relocated to Orange County, Florida. They never applied for or obtained a government issued marriage license. They also never paid a government fee to get civilly married, never supplied their vital statistics to the government, never received a marriage certificate, and never recorded their marriage in Oregon’s public records, which are all required by Oregon law. Still, while Ms. Preure expressed a desire to legally marry Mr. Benhadj-Djillali on several occasions after the 2003 religious ceremony, she claimed in the Orange County proceedings that a valid marriage had been effected. Mr. Benhadj-Djillali disagrees.

Ms. Preure admits that as a general rule, a marriage license is required in Oregon for a lawful marriage to occur. Or.Rev.Stat. § 106.041(1) (2003); see In re Wilmarth’s Estate, 27 Or.App. 303, 556 P.2d 990, 992 (1976). Nevertheless, she relies on section 106.150(2) of the Oregon Revised Statutes, a general savings clause, to validate the marriage. That statute provides:

All marriages, to which there are no legal impediments, solemnized before or in any religious organization or congregation according to the established ritual or form commonly practiced therein, are valid. In stick case, the person presiding or officiating in the religious organization or congregation shall deliver to the county clerk who issued the marriage license the application, license and record of marriage in accordance with ORS 106.170.

Or.Rev.Stat. § 106.150(2) (2003) (emphasis added). We conclude this savings clause is inapplicable because it presupposes the existence of a marriage license issued by the appropriate county clerk. The lack of a marriage license in this case was a legal impediment because the parties neither sought nor obtained an Oregon marriage license in connection with the 2003 religious ceremony. By referencing delivery of the marriage license to the appropriate county clerk, this statute ascribes legal significance to the existence of such license, which itself evidences the intent of the parties to enter into a legal marriage.

Additionally, Oregon decisional law indicates that a lawful marriage presumes that the parties at least undertook efforts to satisfy the state’s requirements for a valid marriage, one of which is to obtain a marriage license. Or.Rev.Stat. § 106.041(1) (2003). See, e.g., Johnson v. Baker, 142 Or. 404, 20 P.2d 407 (1933); In re Wilmarth’s Estate, 556 P.2d at 992. Consequently, the trial court did not err in concluding that a valid marriage did not occur under Oregon law, given the evidence that the parties intended a purely religious ceremony and that a legal marriage would occur later, and took no steps to obtain a marriage license, which enjoys particular significance where Oregon’s general savings clause is sought to be invoked. For this reason, Ms. Preure’s attempt to utilize New York decisional law to support her proposition that a legal marriage can be found from a purely religious ceremony despite the absence of a marriage license lacks merit. New York law, unlike Oregon, expressly provides that a party’s failure to obtain a marriage license does not render a marriage void. See N.Y. Dom. Rel. Law § 25 (McKinney 2003). As a result, we find New York law inapposite.

However, as Ms. Preure contends, the trial court did err in failing to incorporate into the final judgment Mr. Benhadj-Djillali’s trial stipulations that he would not take the couple’s two children outside of the United States without the court’s permission or seek passports for the children without a court order. Likewise, the trial court erred in assessing Mr. Benhadj-Djillali’s monthly child support obligation without making an express finding relating to the parties’ incomes and without referencing the child support guidelines. See Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005).

We reverse and remand the amended final judgment for correction and clarification of these two matters. Finding no merit in any of the other challenges raised by Ms. Preure, the amended final judgment is otherwise affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO, C.J., and GRIFFIN, J., concur.


author: PER CURIAM.

text:
    Milton HAYES, Appellant, v. Steven G. ROGERS, County Court Judge, Appellee.
    No. 5D08-4186.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.
    Rehearing Denied Aug. 27, 2009.
    Milton Hayes, Lowell, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (holding that in appellate proceedings, trial court’s decision carries presumption of correctness and appellant has burden to bring forth adequate record to demonstrate error).

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


author: LAWSON, J.

text:
    William Cecil BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3965.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.
    William C. Baxter, Carabelle, pro se.
    No Appearance for Appellee.
   LAWSON, J.

William Cecil Baxter appeals from the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial order in all respects except one. Baxter’s seventeen-year sentence on the charge of possession of a firearm while engaged in a criminal offense appears to exceed the maximum penalty allowed by law for this charge. The offense is a second degree felony. See § 790.07(2), Fla. Stat. (2006). As such, the penalty should not exceed fifteen years. See § 775.082(3)(c), Fla. Stat. (2006). Even though Baxter signed a plea agreement indicating that he would be sentenced on this charge as if it was a first degree felony, he could not legally agree to this sentence unless the charge was somehow enhanced or reclassified to a first degree felony, which does not appear to be the case on this limited record. See, e.g., Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982).

Accordingly, we reverse that portion of the order on appeal addressing Baxter’s seventeen-year sentence for a violation of section 790.07(2), Florida Statutes, and remand with directions that the trial court either resentence Baxter on this charge or attach portions of the record demonstrating how the charge was legally enhanced or reclassified to a first degree felony. In all other respects, the trial court’s order is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

GRIFFIN and ORFINGER, JJ., concur.

      . See § 790.07(2), Fla. Stat. (2006).


author: ALTENBERND, Judge.

text:
    Frazier BROWN, III, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-538.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.
    Frazier Brown, III, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Respondent.
   ORDER ON “REQUEST FOR CONFIDENTIAL COMMUNICATION DUE TO ADMINISTRATIVE RULE CHANGE”

ALTENBERND, Judge.

Frazier Brown, III, has a pending petition alleging ineffective assistance of appellate counsel. In this proceeding, he has filed a request that this court place either “open in presence of addressee only” or “confidential” on the envelope in which we deliver any court order, decision, or other court communication. He maintains that such language is required on the exterior of the envelope in order to prevent the Department of Corrections from opening his legal mail.

His request is one of many that this court has recently received from prisoners. These requests all explain that the Department of Corrections recently revised Florida Administrative Code Rule 33-210.102, effective April 23, 2009, and claim that mail is now treated as routine, nonprivi-leged communication even if it is marked as “legal.”

It is true that rule 33-210.102 was recently amended, although the effect of these amendments may not affect the rights of prisoners to the extent that they claim. In pertinent part, the rule states:

(d) The sender of incoming legal mail shall mark the outside of the envelope “legal-confidential,” “legal-open only in the presence of the addressee,” or similar language which would put the reader on notice that the mail is legal mail of a confidential nature. Mail from courts that is subject to public inspection under Chapter 119. F.S., need not be marked as legal mail. Incoming mail which does not include a marking on the outside of the envelope requesting that it be treated as confidential legal mail shall be treated as routine mail and shall be opened and examined, and is subject to being read by a designated employee outside the presence of the inmate.
(e) All incoming legal mail will be-opened in the presence of the inmate to determine that the correspondence is legal mail and that it contains no unauthorized items. Only the signature and letterhead may be read.
(f) If legal mail is written in a foreign language the signature and letterhead . shall be translated to confirm that it is legal mail. If the signature and letterhead indicate that it is legal mail, the mail shall be provided to the inmate. If the letterhead and signature cannot be translated by an employee at the facility, the envelope, letterhead, and signature of the correspondence may be photocopied and sent to another institution or the central office for translation.

Without evaluating the merits of this rule change, we deny the request to place “confidential” on the envelopes in which we deliver orders, opinions, and other court communications m all cases m which our files are open to the public. Our communications in those cases may be “legal” in nature, but they are not privileged in any way. We see no basis by which we could prohibit the Department of Corrections from viewing our communications to prisoners that contain only public record documents.

We emphasize that our denial of this request is limited to cases in which the court file is open to the public. We have not resolved whether such a request would be warranted in a proceeding where our files are restricted, such as an appeal from an order in a dependency proceeding or in a proceeding to terminate parental rights.

CASANUEVA, C.J., and FULMER, J., Concur.


text:
    ST. LUKE’S HOSPITAL ASSOCIATION, a Florida Corporation, Petitioner, v. Vincent STROLLO and Karen Strollo, his wife, Respondents.
    No. 1D09-1704.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Rehearing Denied Aug. 31, 2009.
    Katherine E. Giddings and Thomas A. Range, Ackerman Senterfitt, Tallahassee, Earl E. Googe, Jr., Smith, Hulsey and Busey, Jacksonville, and Marjorie C. Allen, Mayo Clinic, Jacksonville, for Petitioner.
    Rodney S. Margol and C. Rufus Pennington, III, Margol & Pennington, P.A., Jacksonville, and William A. Bald, Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Respondents.
   PER CURIAM.

Because we conclude that the outcome of this petition seeking a writ of certiorari is controlled by Amente v. Newman, 653 So.2d 1030 (Fla.1995), which we are constrained to follow, we deny the petition. We note that, at oral argument, counsel for respondents acknowledged that they are willing to bear the cost to have petitioner redact confidential patient information in accordance with the federal Health Insurance Portability and Accountability Act of 1996 and the applicable provisions of the Code of Federal Regulations, and that they agree the redacted patient records shall be viewed only by counsel for the parties and their retained experts unless and until the trial court concludes that some or all of those records are properly admissible in evidence at trial.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

WOLF, WEBSTER and CLARK, JJ., concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. WELLS FARGO BANK, N.A., successor by merger to Wells Fargo Home Mortgage, Inc.; Allen Marquess, If Living, and if Dead, The Unknown Spouse, Heirs, Devisees, Grantees, Assignees, Lienors, Creditors, Trustees and all Other Parties Claiming an Interest by, Through, Under and Against Allen Marquess; Unknown Spouse of Allen Marquess, If Any; Sweetwater Creek South Homeowners Association, Inc.; Citifinancial Equity Services, Inc.; Citibank South Dakota, N.A.; Dodge Enterprises, Inc.; Sherman Acquisition, LP; Asset Acceptance, LLC; Unifund CCR Partners; Hudson & Keyse, LLC; CACV of Colorado, LLC; John Doe and Jane Doe as Unknown Tenants in Possession, Appellees.
    No. 1D09-0256.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos, Mortellaro & Sinadi-nos, PLLC, Tampa, for Appellant.
    David J. Stern, Plantation; Justin D. Jacobson, Plantation, for Appellees.
   PER CURIAM.

DISMISSED. See Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans, Servicing LP, et al., 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ., concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. CITIMORTGAGE, INC., Stephen W. Edwall; Cheryl L. Edwall; Clerk, Circuit Court, Duval County; State Farm Mutual Automobile Insurance Company Ans Subrogee of Karen Vangalder; Karen Vangalder and _; and Unknown Person in Possession of the Subject Property, Appellees.
    No. 1D09-0252.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos, Mortellaro & Sinadi-nos, PLLC, Tampa, for Appellant.
    Thomas M. Beverly, Assistant General Counsel, Jacksonville; Bruce D. Page, Assistant General Counsel for Clerk, Circuit Court, Jacksonville, for Appellees.
   PER CURIAM.

DISMISSED. See Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans, Servicing LP, et al., 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ., concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. WACHOVIA BANK, N.A. f/k/a First Union National Bank; Lorena D. Trejo; Beneficial Florida, Inc.; Unknown Parties in Possession # 1; Unknown Parties in Possession #2; In Living, and All Unknown Parties Claiming by, Through, Under and Against the Above Named Defendants(s) who are not known to be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    No. 1D09-0249.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos, Mortellaro & Sinadi-nos, PLLC, Tampa, pro se, Appellant.
    Enrico G. Gonzalez, Temple Terrace, for Appellees.
   PER CURIAM.

DISMISSED. See Mortellaro efe Sina-dinos, PLLC v. Countrywide Home Loans, Servicing LP, et ai, 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ., concur.


text:
    Althea GALLOWAY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D08-3948.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.
    Rehearing Denied Aug. 21, 2009.
    Althea Galloway, Greensboro, N.C., Pro Se.
    John D. Maher, Tallahassee, for Appel-lee.
   PER CURIAM.

Althea Galloway appeals an order of the Unemployment Appeals Commission affirming the appeal referee’s finding that Ms. Galloway voluntarily left her employment without good cause. As a result, she was denied unemployment benefits. We affirm.

The determination that an employee left employment voluntarily and whether she did so without good cause are questions of fact. Brown v. Unemployment Appeals Comm’n, 820 So.2d 457 (Fla. 5th DCA 2002). An appeal referee’s factual determinations are ordinarily presumed to be correct. Smith v. Unemployment Appeals Comm’n, 823 So.2d 873 (Fla. 5th DCA 2002). Thus, if there is substantial competent evidence in the record to support the appeal referee’s findings, and in particular the finding that Ms. Galloway voluntarily resigned from her employment without good cause, this Court must affirm. Brown, 820 So.2d at 458. The record before us fully supports the finding of the referee that Ms. Galloway voluntarily resigned from her employment without good cause. We cannot reweigh the evidence. Accordingly, we affirm.

AFFIRMED.

MONACO, C.J., PALMER and ORFINGER, JJ„ concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of Ameriquest Mortgage Securities, Inc. Asset Backed Pass Through Certificates, Series 2005-R2 Under the Pooling and Servicing Agreement dated as of March 1, 2005, Without Recourse; James Steven Mahood; Mary E. Mahood; Unknown Tenant 1; Unknown Tenant II; American General Home Equity, Inc., and any Unknown Heirs, Devisees, Grantees, Creditors, and other Unknown Persons or Unknown Spouses Claiming by, through, and under any of the Above-Named Defendants, Appellees.
    No. 1D09-0244.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos, Mortellaro & Sinadi-nos, PLLC, pro se, Appellant.
    Frank A. Reder, Butler & Hosch, P.A., Orlando, for Appellees.
   PER CURIAM.

DISMISSED. See Mortellaro & Sinadivos, PLLC v. Countrywide Home Loans, Servicing LP, et al., 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ„ concur.


author: WHATLEY, Judge.

text:
    TERRA FIRMA HOLDINGS, a Florida limited liability company, Appellant, v. FAIRWINDS CREDIT UNION, a Florida chartered credit union, Appellee.
    No. 2D08-3440.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2009.
    Stanford R. Solomon of the Solomon Law Group, P.A., Tampa, for Appellant.

      Samuel M. Nelson and Lisa J. Geiger of Burr and Foreman LLP, Winter Park, for Appellee.
   WHATLEY, Judge.

Terra Firma Holdings appeals a summary final judgment of foreclosure entered in favor of Fairwinds Credit Union. We reverse.

The sole basis pleaded by Fair-winds in the mortgage foreclosure complaint, which was filed on August 17, 2007, was that Terra Firma defaulted by failing to make a June 15, 2007, payment. Based on that asserted default, Fairwinds elected to accelerate the balance of the payments due under the mortgage and a promissory note. However, in seeking summary judgment, Fairwinds did not conclusively establish that the June 15, 2007, payment was not made. To the contrary, the record contains evidence that this monthly payment was made in accordance with an agreement reached by the parties.

On appeal, Fairwinds argues that, even if the June 15, 2007, payment was made, Terra Firma defaulted because it failed to pay the balance of the loan on the maturity date, August 15, 2007. However, maturity as a basis of default was not pleaded. Notably, a modification was entered into in July 2007, extending the maturity date to August 15, 2007. Fairwinds never mentioned this modification to the trial court.

Fairwinds could have asserted in its complaint filed August 17, 2007, that the obligation had matured, but it did not. Further, Fairwinds could have moved to amend its complaint pursuant to Florida Rule of Civil Procedure 1.190, asserting that the obligation had matured and that Terra Firma defaulted by not paying the balance of the loan. This also was not done.

“[Ijssues in a cause are made solely by the pleadings.... ” Hart Props., Inc. v. Slack, 159 So.2d 236, 239 (Fla.1963). “[T]he only instance in which legal issues not raised in the pleadings may be tried and decided is where the issue, although not pled, is tried by consent of the parties.” Id. In the present case, issues involving the maturity of the loan were not tried by consent.

Because the pleaded basis asserted for the default was not proven, and because default as a result of failing to pay the matured obligation was not pleaded, we are compelled to reverse the final summary judgment.

Reversed.

WALLACE and KHOUZAM, JJ„ Concur.


author: GERBER, J.

text:
    Jawara FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4142.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.

      Kayo E. Morgan, of Kayo E. Morgan, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

Jawara Flowers appeals the circuit court’s denial of his motion to suppress. Following the denial, Flowers entered a no contest plea to attempted trafficking in cocaine, felony possession of cannabis, and possession of drug paraphernalia, while reserving his right to appeal. Finding no error, we affirm.

A person whom the police arrested informed them that Flowers was selling drugs from his apartment. The police had no prior dealings with this informant. However, the informant said Flowers sold him drugs six times over the past two years, the last occasion being three months before when Flowers sold him two ounces of cocaine. The informant described Flowers’ apartment as “probably a two bedroom,” with Flowers going into one particular room to get the drugs. The informant also recalled seeing marijuana in the refrigerator one time.

The informant took the police to what he represented to be Flowers’ apartment. The police did not surveil the apartment or observe Flowers enter or exit. Two vehicles which the informant described as Flowers’ were not at the apartment. However, the police confirmed that the apartment’s address matched Flowers’ driver’s license, and that two vehicles fitting the informant’s description were registered to Flowers.

The police decided to set up a controlled buy. The informant made a series of phone calls to Flowers. During the first three calls, which the police recorded, Flowers told the informant he probably could meet the next day. During a fourth call, which the police did not record or monitor, the informant allegedly arranged to buy two ounces of cocaine from Flowers for what the informant assumed would be $2,000 based on the last buy. Flowers allegedly told the informant that he would be leaving town the next day and there would be only a few minutes for them to meet.

The next day, during a call which the police recorded, the informant told Flowers to meet him at a grocery store parking lot near Flowers’ apartment. At the designated time, Flowers arrived at the parking lot in a vehicle which the informant had identified. During another call which the police recorded, the informant told Flowers that he was inside the grocery store and would come out shortly. Flowers replied that he had to go to the ATM anyway. After Flowers parked and exited his vehicle, the police seized him. The police then brought over a K-9 which alerted on the vehicle. The police found eighty-seven grams of cocaine in the center console.

The police then took the K-9 to Flowers’ apartment and ran it through the hallway. The K-9 alerted on Flowers’ door. The police applied for a search warrant for the apartment based upon an affidavit documenting the informant’s contacts with Flowers, the results of the vehicle search, and the K-9’s alert in the hallway. The circuit court signed the warrant. When the police executed the warrant, they found cannabis and drug paraphernalia in the apartment.

The State charged Flowers with attempted trafficking in cocaine, felony possession of cannabis, and possession of drug paraphernalia. Flowers moved to suppress the cocaine. He contended that the police did not have reasonable suspicion or probable cause to seize him because they did not record or corroborate the first-time informant’s alleged conversation setting up the transaction. He further argued that the information was stale because the informant’s most recent interaction with him was three months prior. Flowers also moved to suppress the cannabis and paraphernalia. He contended that the affidavit which the police submitted to obtain the search warrant did not inform the circuit court that they based their arrest and vehicle search upon a first-time informant’s unrecorded and uncorroborated conversation with Flowers. He also argued that the affidavit contained a false statement that the phone call during which the informant arranged the buy was controlled. He further alleged that the affidavit did not establish a nexus between the cocaine found in his vehicle and a search of his apartment because the police never obsexwed the vehicle at the apartment.

After making very detailed findings of fact, the circuit court denied the motion. The circuit court concluded that the totality of the circumstances justified the search of Flowers’ vehicle. The circuit court reasoned that, despite the police’s lack of experience with the informant, the allegations were not stale and were corroborated. The circuit court further concluded that, based on the informant’s allegations, a sufficient nexus existed between Flowers’ vehicle and the apartment. The circuit court also noted that, even if the affidavit contained a false statement, and even if the K-9 sniff outside Flowers’ apartment was unlawful, the other allegations in the affidavit provided probable cause for the search warrant.

Flowers entered a no contest plea to the charges while reserving his right to appeal the denial of the motion to suppress. This appeal followed. “In reviewing a trial court’s ruling on a motion to suppress, we are governed by the standard that ‘mixed questions of law and fact that ultimately determine constitutional rights should be reviewed ... using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.’ ” State v. Bartling, 989 So.2d 757, 759 (Fla. 4th DCA 2008) (citation omitted). “As to issues involving conflicts in testimony as to the facts surrounding a search, we defer to the trial court as to the credibility and reasonable inferences and deductions derived from those facts.” Id. at 760 (citation omitted).

The circuit court correctly denied Flowers’ motion to suppress the cocaine. The “totality of the circumstances” test determines whether information from a confidential informant gives rise to probable cause and, under this test, the informant’s reliability and basis of knowledge are merely “relevant considerations.” Roman v. State, 786 So.2d 1220, 1221-22 (Fla. 4th DCA 2001) (citing State v. Butler, 655 So.2d 1123, 1128 (Fla.1995) and Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Here, the police confirmed the informant’s reliability by matching the apartment address and vehicles which the informant identified to Flowers’ driver’s license and vehicle registration. The police further confirmed the informant’s reliability by observing Flowers arrive at the specific time and place at which Flowers told the informant he would arrive for another drug buy. These circumstances, coupled with the informant’s statements that he repeatedly bought drugs at Flowers’ apartment in the recent past, gave the police probable cause to seize Flowers when he arrived at the parking lot. See Roman, 786 So.2d at 1222 (quoting Butler, 655 So.2d at 1126) (“[A] basis of knowledge could be established from the wealth of detail provided in the tip.”); State v. Clark, 986 So.2d 625, 630 (Fla. 2d DCA 2008) (police had probable cause to arrest defendant as soon as he stepped out of his vehicle because they had verified all the details “except for the final one of the commission of the crime.”) (citation omitted). Upon the K-9’s alert to Flowers’ vehicle, the police had further cause to search the vehicle, whereupon the police found eighty-seven grams of cocaine.

The circuit court also correctly denied Flowers’ motion to suppress the marijuana and paraphernalia based on the alleged insufficiency of the affidavit supporting the search warrant. “[W]here the issuance of a search warrant based on a probable cause affidavit is at issue, the standard of review is not de novo, but rather a standard of ‘great deference.’ ” State v. Rabb, 920 So.2d 1175, 1180 (Fla. 4th DCA 2006) (citation omitted). This standard of “great deference” is defined as follows:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the . circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of reviewing courts is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.

Id. (quoting DeLaPaz v. State, 453 So.2d 445, 446 (Fla. 4th DCA 1984) and Gates, 462 U.S. at 238-39, 103 S.Ct. 2317).

Here, the circuit court had a substantial basis for concluding that probable cause existed. The affidavit the police submitted to obtain the search warrant for Flowers’ apartment documented the informant’s contacts with Flowers and the results of the vehicle search. Even without the false statement that the phone call setting up the buy was controlled, the affidavit’s other allegations provided the circuit court with a fair probability that the police would find contraband in Flowers’ apartment.

Flowers maintains that the circuit court’s decision to issue the search warrant depended upon the K-9’s alert to his apartment door, and that such police action constitutes an unreasonable search under Rabb. In Rabb, this court found that a K-9 sniff at the exterior door of a house violated the Fourth Amendment. 920 So.2d at 1182-92. However, it is not necessary for us to determine whether Rabb applies here. We must consider “whether any independent and lawfully obtained evidence establishes a substantial basis for concluding that probable cause existed to support the issuance of a search war-rant_” Id. at 1187. Given the informant’s corroborated knowledge and the results of the vehicle search as contained in the affidavit, probable cause existed to support the circuit court’s issuance of a search warrant for Flowers’ apartment, regardless of the K-9 alert.

Affvnned.

GROSS, C.J., and DAMOORGIAN, J., concur.


text:
    Kesner ETIENNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3752.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Rehearing Denied Sept. 9, 2009.

      Philip J. Massa, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, and Cynthia L. Comras, Assistant Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

Kesner Etienne appeals his judgment and sentences on two counts of attempted first degree murder with a firearm, one count of burglary of an occupied dwelling with a firearm, and one count of attempted robbery with a firearm. Etienne argues that the trial court should have granted his motions for judgment of acquittal on the attempted first degree murder charges, and that the sentences were illegal. Finding no error in either the judgment or the sentences, we affirm.

In the early morning hours of January 19, 2005, Etienne suggested to his friend Lopez that they rob a nearby house. Four brothers — Bernardo, David, Braulio, and Jose — -lived there with three of the brothers’ wives and six children. At around 6:30 a.m., while Bernardo’s wife Evangelina was preparing breakfast, she heard a knock on the door. She looked out the window and saw Lopez, whom she did not know. Lopez pushed in the front door, and Evangelina ran into the nearest bedroom, occupied by David and his wife and child. David came out to see what was happening. He saw Etienne holding a gun. David told the men there was no money in the house and that they should leave. Etienne hit David’s forehead with the gun, causing David to fall to the floor bleeding. Etienne began kicking David.

Bernardo came out of his room next. Seeing Etienne beating David, Bernardo tried to push Etienne away. Etienne pointed the gun at Bernardo’s face and demanded money. Braulio then came out of his room with a baseball bat. Bernardo told Braulio to put the bat down because Etienne had a gun. Braulio put the bat down.

While Etienne focused on Bernardo and Braulio, David managed to get to the bathroom to wipe the blood from his face. When he came out, he saw Etienne aiming the gun at Bernardo’s head. David grabbed a mop, went towards Etienne, tried to hit him, but was not able to. Etienne shot David in the throat, paralyzing him from the chest down.

Etienne ran out of the house. However, Bernardo grabbed Lopez. Etienne went back inside, pointed the gun at Bernardo and Braulio, and yelled to let Lopez go. When Braulio moved, Etienne shot Braulio in the head. The bullet fractured, but did not penetrate, Braulio’s skull. Etienne picked up the bat and hit Bernardo in the leg. When Braulio tried to get up, Eti-enne hit Braulio on the face. Etienne then threw the bat and ran out of the house with Lopez. The police later arrested Eti-enne and Lopez.

At trial, after the State rested, Etienne’s counsel moved for a judgment of acquittal, stating, “[Ljooking in the evidence most favorable to the State, Mr. Etienne feels that the State has not formulated a prima facie case against him for the charges that have been formulated by the State against him in the information.” The trial court denied the motion. After the defense rested, Etienne’s counsel renewed his motion for judgment of acquittal, stating, “[A]t this point looking at the evidence in the light most favorable to the defense after the defense has closed on behalf of Mr. Etienne, I would ask for a motion for judgment of acquittal.” The trial court corrected counsel on the evidence standard and denied the motion.

The jury found Etienne guilty on all charges. For the attempted first degree murder with a firearm upon David (count one), the trial court sentenced Etienne to life in prison with a mandatory minimum twenty-five years. For the attempted first degree murder with a firearm upon Brau-lio (count two), the sentence was life in prison with a mandatory minimum twenty-five years to run consecutively to count one. For the burglary of an occupied dwelling with a firearm (count three), the sentence was life in prison with a mandatory minimum twenty-five years to run concurrently to count two. For the attempted robbery with a firearm (count four), the sentence was life in prison with a mandatory minimum twenty-five years to run consecutively to count two. This appeal followed.

Etienne raises three arguments, which we address in turn. First, Etienne contends that the trial court erred in denying his motions for judgment of acquittal on the attempted first degree murder charges because, in his view, the State failed to prove that he intended to cause the death of David or Braulio with a premeditated design. Etienne alleges that the evidence instead shows he fired the gun defensively in response to both men approaching him, one with a potentially deadly weapon. Our review of this argument is de novo. See Petion v. State, 4 So.3d 83, 85 (Fla. 4th DCA 2009) (“The standard of review of a trial court’s ruling on a motion for judgment of acquittal is de novo.”).

Etienne’s first argument lacks merit for two reasons. Procedurally, Eti-enne’s motion was insufficient because it did not “fully set forth the grounds on which it [was] based.” Fla. R.Crim. P. 3.380(b); see also Carranza v. State, 985 So.2d 1199, 1202 (Fla. 4th DCA 2008) (quoting Woods v. State, 733 So.2d 980, 984 (Fla.1999)) (“To preserve an argument for appeal, it must be asserted as the legal ground for the objection, exception or motion below.”). Even if Etienne had preserved the argument, the trial court correctly denied the motion. “A trial court should not grant a motion for judgment of acquittal unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.” Pearce v. State, 880 So.2d 561, 571 (Fla.2004). Here, the jury could have found that Etienne consciously was prepared to kill David and Braulio before either approached him because Etienne pointed the gun at the brothers from the outset. Id. at 572 (“Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act about to be committed and the probable result of that act.”).

Second, Etienne contends that the trial court erred in imposing consecutive mandatory minimum sentences on counts one, two, and four because, in his opinion, those crimes arose from a single episode. Etienne relies on several cases which hold that it is error to impose consecutive mandatory minimum sentences for the use of a firearm during a single criminal episode where the episode occurred without interruption in time and location. See, e.g., Weatherspoon v. State, 624 So.2d 405, 407 (Fla. 2d DCA 1993). Our review of this argument is de novo. See Jackson v. State, 925 So.2d 1168, 1170 n. 1 (Fla. 4th DCA 2006) (“[A] sentencing error constituting an illegal sentence would be reviewed de novo.”).

Etienne’s second argument is unconvincing for two reasons. Factually, this case involved two separate criminal episodes. In the initial criminal episode, Etienne attempted to rob the family (count four) and attempted to murder David (count one). That episode ended when Etienne ran out of the house. A new criminal episode began when Etienne returned and attempted to murder Braulio (count two). Because counts one and two arose during separate episodes, the trial court did not err in imposing consecutive sentences on those counts. Similarly, because counts two and four arose during separate episodes, the trial court did not err in imposing consecutive sentences on those counts either. Cf. Castro v. State, 472 So.2d 796, 798 (Fla. 3d DCA 1985) (“It is clear from the record that the robbery and burglary occurred inside the home, and the attempted murder of the police officer took place outside the house. Thus, the criminal activities involved two separate incidents, and consecutive mandatory sentences are permissible.”).

Even if this case involved only one episode, the trial court’s sentences still were legal. The cases upon which Etienne relies all pre-date the Legislature’s 1999 amendment of section 775.087(2)(d), Florida Statutes, which added subsection (2)(d) as follows:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (2004) (emphasis added); see also State v. Sousa, 903 So.2d 923, 926 (Fla.2005) (“[Cjonsecutive mandatory minimum sentences are permissible when a defendant shoots at multiple victims.”) (citation omitted).

Third, Etienne contends that the trial court erred in sentencing him to life in prison on count three, burglary of an occupied dwelling with a firearm, based on his presumption that the trial court reclassified that charge from a first degree felony to a life felony. Etienne relies upon section 775.087(l)(a), Florida Statutes (2004), which provides, in pertinent part, that a trial court shall reclassify a first degree felony to a life felony if, during the felony, the defendant uses a firearm, “except a felony in which the use of a ... firearm is an essential element.” Here, Etienne argues that the use of a firearm is an essential element of burglary of an occupied dwelling with a firearm and, therefore, the trial court could not reclassify that first degree felony as a life felony. Our review of this argument, too, is de novo. Jackson, 925 So.2d at 1170 n. 1.

Etienne’s third argument is mistaken. The trial court did not enhance count three to a life felony. Count three already was a first degree felony punishable by life imprisonment. See § 810.02(2)(b), Fla. Stat. (2004) (“Burglary is a felony of the first degree, •punishable by imprisonment for a term of years not exceeding life imprisonment ... if, in the course of committing the offense, the offender ... [i]s or becomes armed within the dwelling ....”) (emphasis added). Both Etienne’s judgment and scoresheet identify count three as a first degree felony punishable by life, which is exactly how the trial court sentenced him on that count.

Ajfmned.

GROSS, C.J., and DAMOORGIAN, J., concur.


author: SUAREZ, J.

text:
    David CHIN, Appellant, v. The ESTATE OF Adolph E. CHIN, Appellee.
    No. 3D08-1962.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.
    DeLancyhill and Michelle A. Delaney, for appellant.
    De Leon & De Leon and Kirk D. De Leon, for appellee.

      Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

David Chin appeals an order from the trial court granting a life estate to Mary Chin. We affirm as the unambiguous language of the Will of Adolph Chin granted to Mary Chin a life estate in the property at issue.

On April 12,1989, Adolph Chin drafted a Will in Jamaica. When he died in 1997, he co-owned property in Miami-Dade County as tenants in common with his sister, Mary Chin. Adolph and Mary both lived on this property. David Chin, Adolph’s son, was named personal representative of Adolph’s estate.

On February 13, 2002, the lower court entered an Order of Summary Administration that transferred to David an immediate half interest in the Dade County property. Subsequently, David filed suit against Mary Chin to partition the subject property and force its sale.

The trial court ordered the partition action stayed to provide Mary with an opportunity to re-open Administration and have her rights to the subject property recognized. The lower court found that David, as the personal representative, failed to comply with Florida Statutes, section 733.212(l)(b)(2008), where David neglected to provide Mary with notice of the original Order of Summary Administration or with notice that she was a beneficiary under Adolph’s Will. After hearing all the facts and considering the applicable law, the probate judge concluded that pursuant to paragraph seven of the Will, Mary Chin was given a life estate in the subject property by her deceased brother, Adolph, and entered an Amended Order of Summary Administration. David Chin appealed.

Paragraph seven of the Will states:

I direct that property held by me in co-ownership with my brother the said Earl Anthony Chin and with my sister, Mary Victoria Chin, shall not be sold as long as my said brother or sister desires to occupy same.

David Chin argues that paragraph seven only applies to property which was co-owned by Adolph, Earl, and Mary concurrently. Mary argues that Adolph devised a life estate to each sibling with whom he co-owned property. If a court finds the language of a will ambiguous, “[t]he Testator’s intent is the guiding and dominating factor in the construction of a Will.” See In re Roger’s Estate, 180 So.2d 167, 170 (1965). When interpreting ambiguous provisions of a will, courts may look upon the situation of the parties, such as ties and affection between the testator and his or her legatees. Id.

On de novo review, we agree with the trial court’s finding that paragraph seven grants a life estate to Mary Chin. Adolph shared a separate residence with each sibling. The trial court found this to be strong evidence that he did not have the intent to dispossess his siblings of their homes after his death. Additionally, to construe paragraph seven to apply only if there were co-ownership of property by all three individuals asks the Court to adopt the notion that Adolph Chin inserted a restriction into his Will with full knowledge that it had no meaning. This Court simply cannot adopt this explanation.

Thus, we agree with the lower court that Mary Chin has a life estate in the property and we affirm the lower court’s Amended Order of Summary Administration.

Affirmed.


author: COPE, J. CORTIÑAS, J.

text:
    Jorge SALINAS, Petitioner, v. Orlando MEDINA, Jr., Orlando Medina, Sr., and Maria Medina, Respondents.
    No. 3D08-1698.
    District Court of Appeal of Florida, Third Distinct.
    Aug. 5, 2009.
    Ignacio J. Seguróla, Coi'al Gables, and Denise M. Scanziani, for petitioner.
    Carrei'a & Amador and Juan M. Catr-era, for respondent.
    Before COPE, WELLS, and CORTINAS, JJ.
   COPE, J.

This is an appeal from an order denying a motion titled “Motion for Relief from Purported Voluntary Dismissal.”

The suit involved an action against the defendants for damages arising from a breach of a construction contract. According to the plaintiff, the defendants failed to perform certain construction work at his home. The plaintiff also claimed the contractor was unlicensed and therefore was liable for damages pursuant to section 768.0425, Florida Statutes (2005).

The parties appeared for trial. Before a jury was selected, the parties met with the trial judge to discuss procedural issues. According to the plaintiff, an issue arose as to whether the plaintiff had properly pled his claim for treble damages pursuant to section 768.0425. The plaintiff interpreted the court’s remarks as meaning that his damages claim would be stricken by the court.

At that point, the plaintiffs counsel requested leave to confer with his client about whether to voluntarily dismiss the action. Upon returning to the healing, the plaintiffs attorney stated “The plaintiff will — or I guess through this act is filing a voluntary dismissal without prejudice.”' Then, in response to a question from defense counsel, the plaintiffs counsel said “[a]nd I’ll file a pleading to this effect.” The proceedings terminated at that point.

Thereafter, the defendants filed a motion for attorneys’ fees and costs. Upon receiving the motion, rather than filing the notice of voluntary dismissal as promised to the court and to counsel, the plaintiff filed his “Motion for Relief from Purported Voluntary Dismissal.” The plaintiff argued that his dismissal in open court was ineffective, that he did not fílé a written notice of voluntary dismissal, and therefore he should be relieved of any dismissal of the action. The court declined to grant relief from the voluntary dismissal and the plaintiff has appealed.

First, we agree with the plaintiff that the oral dismissal was ineffective. That is so because Florida Rule of Civil Procedure 1.420(a)(1) states “[A]n action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record a notice of dismissal.... ” The Florida Supreme Court has said that trial begins when a jury is selected. See State v. Melendez, 244 So.2d 137 (Fla.1971). The parties here agree that jury selection had not commenced. So, the verbal announcement of dismissal was legally insufficient to dismiss the case. This means that the case remains pending in the trial court.

Second, we must consider our jurisdiction. Because the lawsuit remains pending in the trial court, the order now before us is a nonfinal nonappealable order. We therefore treat the notice of appeal as a petition for writ of certiorari. See Johnson v. Citizens State Bank, 537 So.2d 96, 97-98 (Fla.1989).

Third, we find no departure from the essential requirements of law. In this case, defense counsel specifically asked plaintiffs counsel if he would file a pleading voluntarily dismissing his action and plaintiffs counsel stated that he would. That representation was made on the record both to opposing counsel and the court. The assurance was given after plaintiffs counsel had obtained his client’s consent. We conclude that the plaintiff is bound thereby. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1338 (Fla. 3d DCA 1979); cf. Sayih v. Perlmutter, 561 So.2d 309, 311 (Fla. 3d DCA 1990) (counsel had duty to make accurate representations to the court).

At oral argument, there was a contention that to enforce the voluntary dismissal would amount to re-writing Florida Rule of Civil Procedure 1.420(a)(1) so that a pretrial oral voluntary dismissal would be enforceable even though under Rule 1.420(a)(1) an oral announcement is effective only if trial has begun. If this case only involved an oral pretrial announcement, then we would have a different issue. Here, however, not only did plaintiffs counsel make an oral announcement, he also specifically promised to file a written voluntary dismissal. Plaintiff cannot obtain the benefit he sought — a postponement of trial' — while failing to file the required document he assured opposing counsel and the court he would file.

We deny certiorari and remand the matter to the trial court for the plaintiff to file the voluntary dismissal, failing which the court may dismiss the case without prejudice under Florida Rule of Civil Procedure 1.420(b).

Certiorari denied.

WELLS, J., concurs.

CORTIÑAS, J.

(dissenting).

This is an appeal from a non-final and non-appealable order, which should have been dismissed for lack of jurisdiction.

Nevertheless, despite the clear lack of jurisdiction, the majority declines to dismiss the case and, instead, issues an advisory opinion which effectively re-writes Florida Rule of Civil Procedure 1.420(a)(1) to create an estoppel exception where 1) there is an oral dismissal, 2) trial has not commenced, and 3) there is a promise to file a voluntary dismissal.

Because no estoppel exception is apparent in Rule 1.420(a)(1) and I am not empowered to re-write this Rule, I must respectfully dissent.

I would have simply dismissed this case for lack of jurisdiction.

      . Jorge Salinas.

      . Orlando Medina, Jr., Orlando Medina, Sr., and Maria Medina.

      . The plaintiff did not file a complete transcript of this hearing.

      . An excerpt of this portion of the hearing was filed below.


text:
    Bryan COLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-557.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Bryan Colbert, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

With respect to appellant’s claim to be entitled to a sentence of not more than six years, only if a violation is technical or non substantive is a sentence on revocation of supervision limited to six years. See § 958.14, Fla. Stat. (2004) (stating “no youthful offender shall ■ be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated”) (emphasis added).

With respect to his claim to be entitled to be sentenced to not more than 364 days, because appellant was placed in a boot camp run by the Broward Sheriffs Office, and not the Department of Corrections, the circuit court's sentencing authority was not limited by section 958.045(5)(c). See Lee v. State, 884 So.2d 460, 461-62 (Fla. 4th DCA 2004) (holding that because appellant had been placed in sheriffs boot camp facility rather than that of Florida Department of Corrections, the trial court’s sentencing authority was not limited by section 958.045(5)(c)).

With respect to his claim that most of the charges pending for sentencing on revocation of probation should have been scored as prior record rather than as additional offenses, see State v. Alberto, 847 So.2d 1091 (Fla. 4th DCA 2003) (holding that, where offenses are pending for sentencing at the same time as the primary offense, those offenses are considered “additional” offenses even if they also meet the definition of “prior record” under rule 3.704(d)); and Moses v. State, 13 So.3d 490 (Fla. 4th DCA 2009) (holding that a violation of probation offense which is sentenced at the same time as the primary offense should be scored as an additional offense, not as prior record).

Affirmed.

GROSS, C.J., MAY and CIKLIN, JJ„ concur.


author: PER CURIAM. GROSS, C.J.,

text:
    Antonio Antwan SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1981.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DAMOORGIAN and GERBER, JJ., concur.

GROSS, C.J.,

specially concurring.

Appellant was convicted of violating section 782.071(l)(b), Florida Statutes (2008), a vehicular homicide aggravated by leaving the scene of the accident, so that the crime was a first degree felony. This was a close case on the issue of appellant’s recklessness, a necessary element of the crime. On that issue, we are bound by McCreary v. State, 371 So.2d 1024 (Fla.1979), a case involving slightly less egregious facts than those in this case. I also note that appellant might well have been charged under section 316.027(l)(b), Florida Statutes (2008), also a first degree felony, which does not require proof of recklessness.


text:
    Eli GREENBERG and Cynthia Levy, Appellants, v. BIG CYPRESS REALTY, INC., and Lilach Ditcher, Appellees.
    No. 4D08-304.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Richard F. Hussey of Richard F. Hus-sey, P.A., Fort Lauderdale, for appellants.
    Cara C. Morris of Hoffman & Morris, P.L., Singer Island, for appellees.
   PER CURIAM.

In this case, appellants sued a number of entities and individuals over a condominium purchase transaction. Two counts involved appellees as real estate brokers or agents of the seller. These counts attempted to state a claim for fraudulent concealment under Johnson v. Davis, 480 So.2d 625 (Fla.1985). The “duty of disclosure announced in Johnson v. Davis extends to a seller’s real estate broker.” Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003); Revitz v. Terrell, 572 So.2d 996, 998 n. 5 (Fla. 3d DCA 1990). Also, Johnson’s application is “limited to non-commercial real property transactions.” Solorzano v. First Union Mortg. Corp., 896 So.2d 847, 849 (Fla. 4th DCA 2005). The operative complaint states the elements of a Johnson claim, except it does not explicitly say that this was a non-commercial transaction. We reverse the trial court’s dismissal of this case for failure to state a cause of action against appellees. On remand, appellant shall be given leave to file an amended complaint.

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


text:
    Manuel HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-798.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The Appellant appeals his conviction and sentence on two counts of lewd and lascivious molestation. He argues the trial court erred in allowing Williams rule evidence to become a feature of the trial and in denying his motion for mistrial. We disagree and affirm.

Appellant did not object to the admission of Williams rule evidence in this appeal. Rather, he objected only on the ground that the otherwise properly admitted Williams rule evidence became a centerpiece or feature of the trial.

We have reviewed the record and find that the otherwise properly admitted evidence did not become an improper feature of the trial. Additionally, the trial court gave cautionary instructions to the jury to prevent it from becoming a “feature.” See McLean v. State, 934 So.2d 1248, 1263 (Fla.2006). We find no merit in the argument concerning the motion for mistrial.

Affirmed.

STEVENSON, MAY and LEVINE, JJ„ concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Luis SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1438.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.

      Luis Sanchez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

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

In Sanchez’s rule 3.800 motion, his only claim is that the written sentence does not comport with the oral pronouncement at sentencing. There is nothing in the attached records, however, to indicate that he has ever raised this issue before. The motion is therefore not successive, should not have been denied as such, and the trial court should have attached those portions of the record to address and clarify the issue, i.e., the transcript of sentencing (not the plea colloquy) and the written judgment. Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts, including the August 22, 1996 sentencing transcript and the written judgment, conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Wesley DUPIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1514.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.
    Wesley Dupin, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before RAMIREZ, C.J., COPE and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order denying defendant Wesley Dupin’s motion for relief under Florida Rule of Criminal Procedure 3.800, claiming entitlement to additional credit for time served in county jail. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

On May 9, 2007, the defendant was sentenced to fifteen years in state prison, with a minimum mandatory sentence of ten years, in cases F01-31537, F01-31538, and F05-50645B. The sentences were to run concurrent but not coterminous.

The defendant filed a 3.800 motion for credit for all county jail time served, requesting a total of 1278 days to be applied to all of his cases. He requested the following: (1) credit for the time that he was incarcerated in the two 2001 cases to be applied to the 2005 case; (2) credit for the time he spent on pre-trial release on electronic monitoring; and (3) credit for the time he spent on probation.

The trial court denied the defendant’s motion for credit for all his county jail time served, stating that the defendant is not entitled to “stack” the time he was incarcerated to be applied as credit for time served. The trial court further stated:

6. Defendant is not entitled to the relief he is requesting. On the 2005 case, he was not in custody in 2001. He is also not entitled to apply the time he spent on electronic monitoring (pre trial release) to be applied as incarcerated time. Even if the time he spent on probation was applied to his sentence it would not make a difference on the 2005 case. He was never on probation on the 2005 case.

A review of the record indicates that the trial court failed to do a complete analysis. With regard to whether the defendant is entitled to additional credit for time served in the two 2001 cases, the defendant claims that his initial incarceration was from September 16, 2001, to November 30, 2001. The trial court does not address the defendant’s claim that he is owed credit for time served for this period in the two 2001 cases. Accordingly, we reverse in part and remand on this issue for a determination of whether the defendant is entitled to credit for time served during September 16, 2001, to November 30, 2001. With regard to the defendant’s remaining claims, we affirm.

Affirmed in part; reversed in part, and remanded for further proceedings consistent with this opinion.


author: WELLS, Judge.

text:
    Melvin MALONE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1628.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.

      Melvin Malone, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   WELLS, Judge.

Melvin Malone appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, wherein Malone asserted two grounds. The trial court concluded that Malone’s claims should have been raised on direct appeal and denied the motion on that basis. We reverse.

First, Malone ai'gued that trial counsel was ineffective for failing to object to a “flawed jury instruction.” This was a claim that could be raised in a 3.850 motion. See Perera v. State, 6 So.3d 1253, 1253-54 (Fla. 3d DCA 2009) (addressing the claim of an erroneous jury instruction and concluding “[a]t the 3.850 hearing, the trial court did not reach the mei'its of this issue as the trial court found that the issue was proeedurally barred because it could have been raised on direct appeal. We disagree with the trial court, as this type of error can be raised in a 3.850 petition and not just on direct appeal.”).

Second, Malone argued that his counsel was ineffective for failing to question the testifying officer about an incident report which Malone maintained may have supported his claim of self-defense; also, he argued, neither a 911 call nor police communications were investigated. Again, this was a claim that could be raised in a 3.850 motion. See Bailey v. State, 768 So.2d 508, 509 (Fla. 2d DCA 2000) (citing Porter v. State, 670 So.2d 1126 (Fla. 2d DCA 1996), and determining “a claim of ineffective assistance of counsel for failure to discover certain police reports to be facially sufficient”).

Accordingly, the trial court erred in rejecting Malone’s claims outright. The case is reversed and remanded for the trial court to consider whether either or both of the points raised merit relief under Rule 3.850.


text:
    Dwon KIMBLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1767.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.
    Dwon Kimble, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Affirmed. §§ 784.084(l)(d)l.a., 776.08, Fla. Stat. (2001); Rodriguez v. State, 826 So.2d 464, 465 (Fla. 3d DCA 2002).


text:
    Sherry A. FROST and Jerry Frost, Appellants, v. REGIONS BANK, successor by merger to Union Planters Bank, N.A., successor by merger with Union Planters Mortgage, Inc., Appellee.
    No. 4D08-3168.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Ronald E. D’Anna of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellants.
    Les C. Shields of Ben-Ezra & Katz, P.A., Fort Lauderdale, for appellee.
   GERBER, J.

The circuit court entered a final summary judgment of foreclosure against the defendants below, Sherry and Jerry Frost. The Frosts appeal, arguing the plaintiff, Regions Bank, did not negate the Frosts’ affirmative defense that the bank did not provide notice of the alleged default and a reasonable opportunity to cure. We agree and reverse.

The bank filed a mortgage foreclosure action against the Frosts. The Frosts’ answer asserted, among other defenses, that the bank failed to satisfy the condition precedent of providing notice of the alleged default and a reasonable opportunity to cure. For that defense, the Frosts did not refer to any language from the mortgage. However, the bank attached the mortgage to its complaint, and the mortgage states, in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument ... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

The bank filed a motion for summary judgment, along with an affidavit of indebtedness, an attorney’s fee affidavit, and the original note. The Frosts did not file any papers or affidavits in opposition to the motion. Instead, at the hearing on the motion, the Frosts argued that the bank failed to address them affirmative defenses. The circuit court discussed with the parties some of the defenses, but not the lack of notice and opportunity to cure defense. The circuit court then granted the bank’s motion for summary judgment and entered a written final judgment of foreclosure. This appeal followed.

The standard of review of an order granting summary judgment is de novo. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (citation omitted). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Id. Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. (citing Fla. R. Civ. P. 1.510(c)). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Allenby, 8 So.3d at 1213 (citation omitted). “Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995) (citation omitted).

Here, the bank did not factually refute the Frosts’ lack of notice and opportunity to cure defense. Nothing in the bank’s complaint, motion for summary judgment, or affidavits indicate that the bank gave the Frosts the notice which the mortgage required. The bank also did not establish that the Frosts’ lack of notice and opportunity to cure defense was legally insufficient. Although the bank argues that the defense did not refer to any language from the mortgage, the bank cites no authority which requires the defense to contain such a reference.

Because the bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to cure defense, the bank is not entitled to final summary judgment of foreclosure. The Frosts’ other arguments are without merit and it is not necessary to address them.

Reversed mid remanded.

GROSS, C.J., and DAMOORGIAN, J., concur.


text:
    E.R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3650.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Following a disposition hearing, the trial judge adjudicated E.R. for her commission of the offense of battery. The Department of Juvenile Justice (“DJJ”) prepared a Pre-Disposition Report in which it recommended that E.R. be placed on juvenile probation and participate in the “Re-directions program.”

The trial court departed from DJJ’s recommendation and instead placed E.R. in a low risk level 2 commitment program. Because the trial court’s explanation for its departure from DJJ’s assessment and recommendation is not in accordance with the required analysis set forth by the Florida Supreme Court in E.A.R. v. State, 4 So.3d 614 (Fla.2009), we must reverse the order appealed and remand the matter to the trial court so that it can either impose the probation recommended by DJJ or depart from DJJ’s recommendation in accordance with E.A.R.

Reversed and remanded.

FARMER, HAZOURI and CIKLIN, JJ., concur.


author: COPE, J.

text:
    Leonard TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2674.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.
    Leonard Taylor, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE, and SUAREZ, JJ.
   COPE, J.

This is an appeal of an order denying a motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. We agree with the State that the motion filed by defendant-appellant Leonard Taylor does not adequately explain “how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the mov-ant for that crime[.]” Fla. R.Crim. P. 3.853(b)(3). See Helton v. State, 947 So.2d 495, 497-98 (Fla. 3d DCA 2006); Peterson v. State, 919 So.2d 573, 574 (Fla. 3d DCA 2006); Fuentes v. State, 907 So.2d 609, 611 (Fla. 3d DCA 2005); Saffold v. State, 850 So.2d 574 (Fla. 2d DCA 2003); see also Lott v. State, 931 So.2d 807, 820-21 (Fla.2006); Hitchcock v. State, 866 So.2d 23, 27-28 (Fla.2004).

The trial court summarily denied the defendant’s claim without making the findings required by Rule 3.853(c)(5). Under the circumstances of this case, however, we decline to remand the matter for further findings. That is so because the defendant’s motion was filed under the mailbox rule on April 26, 2006. The defendant maintains that he filed an amended motion on May 31, 2006. This was prior to the issuance of the trial court’s order. However, the trial court docket does not reflect that the amended motion was ever received by the trial court.

We therefore affirm the denial of the April 2006 motion, without prejudice to the defendant to file an amended motion, which he unsuccessfully previously attempted to do. In any amended motion the defendant must address with particularity how the proposed DNA testing will exonerate the movant or mitigate the sentence. See Fla. R.Crim. P. 3.853(b)(3). The defendant must file his amended motion within sixty days of fche issuance of our mandate. See Peterson, 919 So.2d at 574; Saffold, 850 So.2d at 577-78.

Affirmed.