author: HAZOURI, J.

text:
    Daniel SALOMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4504.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Daniel Salomon appeals his conviction of first degree felony murder, burglary with a battery, and two counts of robbery. In challenging these ' convictions Salomon raises three issues: 1) the trial court abused its discretion in denying Salomon’s pretrial motion for continuance; 2) the trial court abused its discretion in admitting evidence of Salomon’s prior convictions; and 3) the trial court committed error in overruling Salomon’s objections to the state’s special jury instruction on willful blindness that he contends negated his defense at trial. The facts of the crimes of which Salomon was convicted are outlined in detail- in this court’s opinion of Lopez v. State, 97 So.3d 301 (Fla. 4th DCA 2012). We affirm on all points raised but address only point three.

As noted in that prior opinion, Salomon was the driver of a “getaway car.” As the burglary and robbery were taking place, Salomon heard shots fired and instead of waiting for his co-perpetrators to return to the vehicle he left the scene and was later apprehended. At the close of the evidence and prior to final argument, Salomon requested jury instructions on the defenses of independent act and abandonment, which the trial court granted. The state then requested in response a jury instruction on willful blindness to balance it out. The trial court agreed. The defense objected. The independent act and abandonment instructions read as follows:

If you find that the crime alleged was committed, an issue in this case is whether the crimes of first degree felony murder, robbery with a deadly weapon, and burglary of a dwelling with an assault or battery were an independent act of a person other than the defendant. An independent act occurs when the person other than the defendant commits or attempts to commit a crime, One, which the defendant did not intend to occur, and Two, in which the defendant did not participate, and Three, which was outside of and not a reason-, ably foreseeable consequence of the common design or unlawful act contemplated by the defendant.
If you find the defendant was not present when the crimes of first degree felony murder, robbery with a deadly weapon, and burglary of a dwelling with an assault or battery occurred, that in and of itself does not establish that the crimes were an independent act of another.
If you find the crimes of first degree felony murder, robbery with a deadly weapon, and burglary of a dwelling with an assault or battery were an independent act of Brad Boswell, Hugo Lopez Martinez or both, you should find Daniel Salomon not guilty of the crimes charged.
Now abandonment is a defense to the crime charged. Abandonment occurs under circumstances that indicate a complete and voluntary renunciation of Daniel Salomon’s criminal purpose. The defense of abandonment does not apply under the following two circumstances. Number one, if Daniel Salomon failed because of unanticipated difficulties in carrying out the criminal plan at the precise time and place intended, and then decides not to pursue the victim under these less advantageous circumstances, or
Number two, Daniel Salomon withdrew his involvement in these crimes because of a belief that the intended victim has become aware of his plans, or because he thinks that his scheme has been discovered, or would be thwarted by police observed in the area of the intended crime.

The following willful blindness instruction was read immediately thereafter:

Now if you find from all the evidence that the defendant had his suspicions aroused but then deliberated [sic] omits to make further inquiries because he wishes to remain in ignorance, he is deemed to have knowledge.

Salomon argues that the willful blindness instruction given in this murder case provided the state with an improper method to prove knowledge on Salomon’s part that the crimes were going to take place. He also submits that this doctrine is applicable only to theft and drug cases and does not apply to first degree felony murder prosecutions.

“The willful blindness doctrine is ‘that if a party has his suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.’ ” Hallman v. State, 633 So.2d 1116, 1117 (Fla. 3d DCA 1994) (quoting United States v. Jewell, 532 F.2d 697, 700 (9th Cir.1976), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976)).

In Desilien v. State, 595 So.2d 1046 (Fla. 4th DCA 1992), this court held:

A Jewell instruction “should not be given in every case in which a defendant claims a lack of knowledge, ‘but only in those comparatively rare cases where ... there are facts that point in the direction of deliberate ignorance.’ ”
The instruction should not be given unless evidence is admitted supporting the inference that the defendant “purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.” Further, a Jewell instruction should not be given when the evidence admitted at trial is “consistent only with a theory supporting the defendants’ actual knowledge, rather than conscious avoidance on their part.”

Id. at 1047-48 (citations omitted).

As to the propriety of giving the willful blindness instruction in this case, the trial court appears to have abused its discretion. There does not appear to be any evidence of Salomon’s conscious avoidance of learning the truth of what Boswell and Lopez were going to do when Salomon agreed to drive them to Dewberry Gardens. The evidence, however, supports the theory that Salomon had actual knowledge that he was participating in a robbery with a firearm.

Salomon argues that the willful blindness instruction cancelled out his defense of independent act. However, the evidence itself indicates this was not an independent act. In Ray v. State, 755 So.2d 604 (Fla.2000), the supreme court stated:

The “independent act” doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, “which fall outside of, and are foreign to, the common design of the original collaboration.” Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act.

Id. at 609 (citations omitted).

Under the facts of this case, the only possible “independent act” that fell outside of the original plan was the theft of the victim’s vehicle which occurred because Salomon left with the cofelons’ transportation away from the robbery. Salomon was not charged with that grand theft. The shooting of the victim was contemplated in the robbery plan because Boswell and Lopez carried a gun with them that Salomon saw and for which he provided bullets.

Although the trial court abused its discretion in giving the willful blindness instruction, we find it harmless because the evidence showed Salomon had actual knowledge of what was going to happen and he assisted Boswell and Lopez in their actions.

Affirmed.

WARNER and CIKLIN, JJ., concur.

      . The housing development where the victims resided.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rose Claydi PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4369.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

HAZOURI, DAMOORGIAN and CIKLIN, JJ„ concur.


text:
    Julius Hatari HATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1322.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Julius Hatari Hatcher, Perry, pro se.
    No brief required for appellee.
   PER CURIAM.

Affirmed. See Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010).

WARNER, POLEN and GROSS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Harry Nathaniel HIGHSMITH, Appellee.
    No. 4D11-2451.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Knipp v. State, 67 So.3d 376, 379-80 (Fla. 4th DCA 2011); see also Wagner v. State, 88 So.3d 250, 253 (Fla. 4th DCA 2012); Gonzalez v. State, 84 So.3d 362, 363 (Fla. 4th DCA 2012).

WARNER, TAYLOR and CONNER, JJ., concur.


text:
    Rene GUTIERREZ a/k/a Frank H. Gutierrez, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2482.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Ira D. Karmelin, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011); Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012); Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

STEVENSON, TAYLOR and GERBER, JJ., concur.


author: WARNER, J.

text:
    Walter RUBIN and Lucille Rubin, Appellants, v. ADDISON RESERVE COUNTRY CLUB, INC., Appellee.
    No. 4D11-3103.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Ronald E. D’Anna of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellants.
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellee.
   WARNER, J.

We dismiss this appeal of the denial of a temporary injunction as moot. Appellants sued to prevent modification of common area property in their development. In their verified motion for temporary injunction, they stated that the work on the modification had already commenced, and they sought an immediate order staying further construction. At the hearing on the temporary injunction, however, the ap-pellee’s representative testified without objection that the modifications were complete. Therefore, with no construction to enjoin, the relief requested by the temporary injunction was moot. See Solares v. City of Miami, 23 So.3d 227, 228 (Fla. 3d DCA 2009). While appellants cite to Velickovich v. Ricci, 391 So.2d 258, 259 (Fla. 4th DCA 1980), as authority for the court order for the removal of the construction, Velickovich involved a final, mandatory injunction, not a temporary injunction, and the completion of construction in that case occurred after the hearing on the temporary injunction. We express no opinion as to the relief which may be authorized should the appellants prove entitlement to a permanent injunction.

POLEN and DAMOORGIAN, JJ., concur.


text:
    Tommie DEUTSCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4248.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    Archibald WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4318.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Archibald Wood, South Orange, CA, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Miakkar L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4513.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.

      Miakkar L. Brown, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. SeeMiles v. State, 839 So.2d 814, 818-19 (Fla. 4th DCA 2003); Presley v. State, 839 So.2d 813 (Fla. 4th DCA 2003).

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


text:
    Carlos BARROETABENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4526.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Grisel Ybarra of Grisel Ybarra, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

POLEN, STEVENSON and CONNER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Roceny CEANT, Appellee.
    No. 4D11-4609.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Kelly v. State, 77 So.3d 818 (Fla. 4th DCA 2012).

POLEN, STEVENSON, JJ., and BONAVTTA, AUGUST, Associate Judge, concur.


text:
    Keith T. BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-4631, 4D11-4632.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.

      Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Allen v. State, 666 So.2d 259 (Fla. 4th DCA 1996).

POLEN, STEVENSON, JJ., and BONAVITA, AUGUST, Associate Judge, concur.


text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and the Florida Commissioner of Agriculture, Appellants, v. David MENDEZ, Lillian Mendez, Toby Bogorff, Robert Bogorff, Beth Garcia, Ronald Garcia, Robert Pearce, Barbara Pearce, and Timothy Donald Farley, on behalf of themselves and the certified Class of Broward County homeowners, Appellees.
    Nos. 4D11-4644, 4D12-196.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Wesley R. Parsons and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for appellants.
    Jamie Alan Cole of Weiss Serota Helf-man Pastoriza Cole & Boniske, P.A., Fort Lauderdale, and Robert C. Gilbert of Grossman Roth, P.A., Coral Gables, for appellees.
    Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, for Amicus Curiae State of Florida.
   CERTIFYING QUESTION

PER CURIAM.

Pursuant to Florida Rule of Appellate Procedure 9.125, we certify the following question to be of great public importance:

Are property owners who have recovered final judgments against the State of Florida in inverse condemnation proceedings constitutionally entitled to invoke the remedies provided in section 74.091, Florida Statutes, without first petitioning the Legislature to appropriate such funds pursuant to section 11.066, Florida Statutes?

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    Raul A. MIRANDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4678.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Grisel Ybarra of Grisel Ybarra, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

GROSS, TAYLOR and HAZOURI, JJ., concur.


text:
    Ernest James PRYOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4850.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Ernest James Pryor, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, GERBER and LEVINE, JJ., concur.


text:
    Marlow McKAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4905.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    Nicholas Richard KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-272.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Joel DOMINGUEZ-RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-609.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Antonio RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4304.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    J. (Jimmy) Benincasa, Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011); Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

HAZOURI, GERBER and CONNER, JJ., concur.


text:
    Jeremy Allen NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1441.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Jeremy Allen Nelson, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Nelson, challenges the summary denial of his motion for postconviction relief. While the trial court found that his counsel’s performance may have been deficient, it concluded that appellant suffered no prejudice. We reverse, because the record before us does not conclusively refute the allegations of ineffectiveness or prejudice.

Nelson was convicted of home invasion robbery after a jury trial in which the victim and the co-defendant testified against him. From the testimony of the victim, the jury learned that Nelson went to the victim’s house to borrow a movie. Nelson took the movie and left the victim’s house, but returned forty-five minutes later to “hang out.” Shortly thereafter, Joshua Sorrell, the co-defendant, knocked on the door. When the victim opened the door, Sorrell entered and brandished a gun. Nelson ran into the victim’s bedroom screaming that Sorrell would kill him. In his trial testimony the victim noted that Nelson did not close the door all the way, which the victim thought was odd. Sorrell got Nelson to come back to the living room and then threatened him. Sorrell reached into Nelson’s pocket and took his money. After robbing Nelson, Sorrell followed the victim into the victim’s bedroom and forced him to give up all of his money. Sorrell then left the apartment, and Nelson departed a few minutes later. A police report of the incident states that Nelson told the victim to call 911 after Sorrell left, but the victim would not call, because he didn’t want to get in trouble with his mother. Defense counsel never asked the victim about whether Nelson encouraged him to call the police right after the incident. Defense counsel also failed to question the victim on his testimony that Nelson did not close the door when he ran into the bedroom. It was this action by Nelson that the victim found suspicious and made him think that Nelson might be involved in the entire incident. However, the victim had made a statement to the police that Nelson had closed the door to the room.

The police developed Sorrell as a suspect. When they picked him up, he claimed that Nelson planned the incident and was involved. At trial, Sorrell testified that Nelson was the mastermind of the entire incident. He admitted going into the victim’s house with a gun and robbing both Nelson and the victim. He also told the two that he would kill them if they called the police. In cross-examination, defense counsel attempted to question Sorrell regarding Nelson’s relationship with Sorrell’s sister. Sorrell denied any relationship. Defense counsel also brought out the plea agreement that Sor-rell made with the state in which he would cooperate with the prosecutor’s office in Nelson’s case, for which he received a sentence of three years in prison and three years of probation. The state played Sor-rell’s statement given three days after the incident. Although basically the same, his trial testimony was not entirely consistent with the facts he relayed in the statement. The defense rested without presenting any evidence. Nelson was convicted and sentenced to twenty years in prison. He appealed his conviction, but this court affirmed.

In his motion for postconviction relief, he raised several issues, only two of which we find merit discussion. First, he claimed that his counsel provided ineffective assistance by misadvising him regarding his right to testify. He claimed that his counsel informed him that the jury would be advised that his juvenile dispositions could be used against him if he were to testify. Based upon this misadvice, he decided not to testify. Had he testified, he would have told the jury that Sorrell had animosity against him because of his relationship with Sorrell’s sister, which would cast doubt on Sorrell’s testimony. Second, counsel also performed deficiently in failing to impeach the victim with prior inconsistent statements regarding whether Nelson closed the door when he ran into the bedroom and whether Nelson had told the victim to call the police. Nelson contended in his motion that, given the evidence in the case, had Nelson testified and had counsel impeached the victim, the result would have been different.

The trial court summarily denied the motion. As to each of the issues above, the trial court found that even if there were deficient performance, Nelson could not show prejudice pursuant to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With this conclusion, we disagree that the record conclusively refutes Nelson’s assertions.

The test for relief for ineffective assistance of counsel enunciated in Strickland is well-established:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. 2052. Explaining these two criteria, our supreme court has stated:

To establish the first prong under Strickland, the defendant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. To establish the second prong under Strickland, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. When reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance claim, this Court gives deference to the trial court’s factual findings to the extent they are supported by competent, substantial evidence, but reviews de novo the trial court’s determinations of deficiency and prejudice, which are mixed questions of fact and law. See Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005).

Morris v. State, 931 So.2d 821, 828 (Fla.2006).

As we noted in Visger v. State, 953 So.2d 741, 745 (Fla. 4th DCA 2007):

Strickland teaches us that:
The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.
466 U.S. at 695, 104 S.Ct. 2052. The Court thus expressly rejected a “more likely than not” standard for evaluating whether counsel’s deficient performance altered the outcome of the case. Instead, as noted by the Fourth Circuit:
With respect to the prejudice requirement, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The level of certainty is something less than a preponderance; it need not be proved that counsel’s performance more likely than not affected the outcome. Instead, the petitioner need only demonstrate “a probability sufficient to undermine confidence in the outcome.”
Young v. Catoe, 205 F.3d 750, 759 (4th Cir.2000) (citations omitted).

On the first issue, the trial court correctly noted that misadvice regarding the right to testify can be a ground for relief if it wrongly prevents the defendant from testifying. See Hicks v. State, 666 So.2d 1021, 1022-23 (Fla. 4th DCA 1996). Nelson alleges in his motion that his attorney misadvised that he could be interrogated on his juvenile adjudications should he testify. Section 90.610(1)(b), Florida Statutes, specifically excludes using such adjudications to attack the credibility of the witness. Thus, if the only prior criminal proceedings against Nelson were juvenile proceedings, then the prosecutor could not have impeached him on prior criminal acts. Although the tidal court questioned Nelson on his decision not to testify, the court did not dispel counsel’s misadvice regarding the ability of the state to use his juvenile convictions to impeach him. Nelson’s claim of ineffective assistance on this issue was not conclusively refuted by the record.

Similarly, on the second issue, counsel did not impeach the victim’s testimony on key points. At trial the victim pointed to Nelson’s failure to close the bedroom door as grounds upon which the victim found his behavior suspicious and led him to believe that Nelson may have been involved. Yet he made a prior statement to police that Nelson had shut the door. Further, he made an earlier statement that Nelson had told him to call the police. Counsel may have simply forgotten to cover this point, because he mentioned in opening statement and then tried to refer to it in closing argument. However, the trial court sustained the state’s objection to this argument and instructed the jury to rely upon their recollection of the evidence, of which there was none, regarding Nelson’s exhortation to the victim to call the police. Therefore, the juiy did not have this important fact in assessing the credibility of the state’s case.

We cannot conceive that either the mis-advice or the failure to impeach the victim, if proven, amounted to trial strategy. In particular, the failure to bring out Nelson’s suggestion to call the police was not trial strategy, because counsel thought that he had brought it out when he had not. We conclude that Nelson identified issues of ineffective assistance which are not conclusively refuted by the record.

The trial court determined that even if counsel had provided ineffective assistance on these issues, they did not prejudice Nelson because there would be no reasonable probability of a different result. Where the trial court has summarily denied the motion on this basis, we review the question of prejudice to determine whether the record conclusively refutes the allegations of the motion. As to the misadvice preventing Nelson from testifying and providing an explanation as to why Sorrell may have implicated him, the court found that even if he had testified, his testimony regarding his relationship with Sorrell was insignificant, because Sor-rell offered statements implicating Nelson immediately after being questioned by the police. Moreover, the court found that Nelson’s testimony also would not change the victim’s evidence regarding Nelson’s involvement. We find this explanation insufficient. Sorrell was not questioned until days after the incident and could have concocted his story in order to secure favor from the police in his own case. Secondly, while the victim did tend to implicate Nelson, it was based upon suspicion and testimony which should have been impeached and cross-examined by defense counsel.

Impeachment of the victim with his pri- or statements would have significantly impacted the credibility of the victim’s version of events. The victim testified he was suspicious of Nelson because he didn’t close the bedroom door when he ran into it. Had the jury known that the victim had previously told the police that Nelson did close the door, this would have called his suspicions into question. It also would have discredited Sorrell, who testified that Nelson did not close the door to the bedroom as part of the pre-arranged plan. Secondly, a jury could well have developed a reasonable doubt as to Nelson’s guilt if defense counsel had brought out the fact that Nelson himself had told the victim to call the police. A jury could rightfully conclude that Nelson would not want the police called if he had set up the entire robbery.

On this record, the state has not conclusively refuted the motion on these issues, in that it appears there is at least a reasonable probability that the jury could have entertained a reasonable doubt as to Nelson’s guilt. We therefore reverse for an evidentiary hearing on these two issues. We affirm as to the other issues raised on the motion for postconviction relief.

POLEN and GROSS, JJ., concur.


author:
LEVINE, J.
      CIKLIN, J.,

text:
    Latroy COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-888.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.

      Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his convictions for two counts of lewd and lascivious battery on a person twelve years of age or older but less than sixteen years of age. Appellant bases his appeal on two issues: whether the trial court erred in admitting collateral crime evidence of another victim who testified to being assaulted by appellant, and whether the statements by the prosecution in closing argument constituted fundamental error. We find that neither issue constitutes reversible error, and as such, we affirm.

Appellant was charged with having sexual activity with the victim in 2008. The state filed a motion to allow similar fact evidence of “other acts involving child molestation” pursuant to section 90.404(2)(b)l., Florida Statutes (2008). During the Williams rule hearing, the victim testified to three incidents of sexual activity in 2008 when she was fourteen years old. In the first incident (count I), the victim, appellant, and a mutual friend were hanging out near an apartment building. Appellant asked the victim to have sex with him, and she refused. He then walked her over to a van, unbuttoned her pants, and inserted his penis into her vagina. The second incident (count II) occurred when the victim, appellant, and a mutual friend were hanging out at the friend’s house. After the friend left the room, appellant pinned the victim down on the bed with her arms over her head. Appellant unbuttoned her pants, pulled them down, and put his penis in her vagina. The third incident (count III) occurred when appellant and the victim were on the bleachers with a mutual friend. When the friend left, appellant pushed the victim’s shorts to the side and put his penis in her vagina. The victim opposed appellant’s advances during each of the three incidents. During all three incidents, appellant did not say anything or wear a condom.

The Williams rale victim testified that appellant had sexual intercourse with her without her permission in 2007 or 2008. She was hanging out with appellant, a mutual friend, and some other individuals when appellant picked her up, carried her into the friend’s bedroom, and placed her on the bed. He held her hands over her head with one hand, and unzipped her pants with his other hand. He penetrated her with his fingers and then put his penis in her vagina. During the incident, he did not say anything or wear a condom.

Appellant objected to the admission of the Williams rale evidence, arguing that it differed from the testimony of the victim in the substantive case. The trial court allowed the Williams rule evidence, determining that the testimony of the Williams rule victim and the victim in the present case had “similarities, from the facts and circumstances” and that the circumstances were “almost exact, for a lack of a better word.” In a written order, the trial court determined that the Williams rule evidence was admissible as similar fact evidence under section 90.404(2)(a) and as child molestation evidence under section 90.404(2)(b)l. and McLean v. State, 934 So.2d 1248 (Fla.2006). The trial court identified nine points of similarity between the two incidents. As to the victim in this case, the court found:

A. She was previously involved in a romantic relationship with the Defendant.
B. The romantic relationship with the Defendant lasted a short period of time and each were not involved, with the other, at the time of the sexual act which is the subject of this case.
C. She and the Defendant were in the company of mutual friends just prior to the sexual act which is the subject of this case.
D. The Defendant forced himself upon her by pinning her down with her hands over her head, getting on top of her, and preventing her from leaving.
E. She told the Defendant “No” meaning she did not want to have sex with the Defendant.
F. The Defendant, while she was pinned down and prevented from leaving, removed her pants.
G. The Defendant put his penis in her vagina against her will.
H. The Defendant did not say anything to her while he was having sex with her.
I. After the sexual attack the Defendant appeared scared and left the area.

The trial court made nearly identical findings with respect to the Williams rule victim. The trial court concluded that the Williams rule victim was credible, the evidence was relevant to corroborate the victim’s testimony in the instant case, and finally, the probative value of the Williams rule victim’s testimony outweighed the prejudicial effect. Appellant was convicted at trial of counts I and II. This appeal ensues.

We review the admission of Williams rule evidence under the standard of abuse of discretion. Tripoli v. State, 50 So.3d 776, 779 (Fla. 4th DCA 2010). The trial court’s discretion, however, “is restricted by the rules of evidence.” Trapp v. State, 57 So.3d 269, 272 (Fla. 4th DCA 2011).

The trial court relied on section 90.404(2)(a) and (b), Florida Statutes (2008), to justify admission of the collateral victim’s testimony. Section 90.404(2)(a) and (b) state the following:

(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
(b)l. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
2. For the purposes of this paragraph, the term “child molestation” means conduct proscribed by s. 794.011, s. 800.04, or s. 847.0135(5) when committed against a person 16 years of age or younger.

Appellant contends that the Williams rule evidence was not sufficiently similar to the charged offense under section 90.404(2)(b) as to make it more probative than prejudicial. “Section 90.404(2)(b) broadly provides that evidence of the defendant’s commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity.” McLean, 934 So.2d at 1259. Similarity of the prior act and the charged offense remains part of the analysis to the extent of determining relevancy and applying the section 90.403 balancing test. As the McLean court explained:

the similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403.

Id. The McLean court further stated:

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Id. at 1262.

We find that the collateral act was admissible only under section 90.404(2)(b). We further find that the trial court did not abuse its discretion in finding that the acts were sufficiently similar so that the probative value outweighed any possible prejudice to appellant. See McLean, 934 So.2d at 1262. Of the nine points of similarity identified by the trial court, we especially note the fact that both victims had been in a relationship with appellant and both were in the company of mutual friends immediately prior to the act. We recognize that there appears to be an issue with whether the Williams rule victim qualified as a child under section 90.404(2)(b). However, we are constrained by the fact that appellant did not raise this argument below or on appeal and therefore it is waived. Based on the arguments raised, we are compelled to affirm.

Finally, as to the closing argument, appellant points to several comments made by the prosecution, claiming that they constitute fundamental error, since there were no objections made. Fundamental error “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Thompson v. State, 88 So.3d 322, 324 (Fla. 4th DCA 2012) (quoting Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)). We find that the various statements by the prosecution do not constitute fundamental error, and as such, we are also compelled to affirm.

Affirmed.

GERBER, J., concurs.

CIKLIN, J., concurs specially with opinion.

CIKLIN, J.,

concurring specially.

I concur with the majority but write separately to address the prosecutor’s closing argument. While many of the prosecutor’s statements at issue here may be fairly classified as legitimate rebuttal, ad hominem attacks on one’s opposing counsel are anathema to the profession of lawyering.

“Resorting to personal attacks on defense counsel is an improper trial tactic which can poison the mind of the jury.” Wicklow v. State, 43 So.3d 85, 87-88 (Fla. 4th DCA 2010). Justice is not served when an officer of the court employs verbal tactics more appropriately found in reality television. We could not have been clearer when we previously warned that “it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury.” Id. at 88.

While the majority has concluded, and I agree, that the personal attacks uttered by the prosecutor do not rise to fundamental error in this case, I believe that they are dangerously close to crossing that line. “Claims of manipulation and deception by opposing counsel have no place in a closing argument.” Wicklow, 43 So.3d at 87. This type of offensive argument demeans the legal profession and derides the concept of justice. For many Americans, the only actual exposure they have to the criminal justice system is jury service and therefore, trial attorneys must be particularly mindful about the lasting image their courtroom advocacy creates.

As Judge Blue succinctly stated, “Many of these cases result in an affirmance because of a failure to preserve the claim of error or we conclude ... the error is harmless. Neither of these reasons converts improper argument into proper.” Palazon v. State, 711 So.2d 1176, 1178 (Fla. 2d DCA 1998) (Blue, J., concurring specially).

      . During the hearing, the Williams rule victim indicated that she was seventeen or eighteen years old at the time of the incident. At trial, the Williams rule victim testified that she was sixteen or seventeen when this occurred.


text:
    Jacob B. ANNEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-389.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Jacob B. Annee, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., TAYLOR and LEVINE, JJ, concur.


text:
    Antonio WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4064.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Antonio Wright, Raiford, pro se.
    No brief required for appellee.
   PER CURIAM.

Appellant challenges the denial of his motion to correct an illegal sentence, attacking the evidentiary basis of the reasons the trial court gave for an upward departure. We affirm. Challenges to the validity of the factors the trial court used to depart upward in sentencing, if preserved, can be raised in direct appeal from sentencing, but they are not claims of illegal sentence cognizable in a rule 3.800 or rule 3.850 motion. See Austin v. State, 874 So.2d 47, 48 (Fla. 4th DCA 2004) (rule 3.800 motion); Pula v. State, 652 So.2d 981, 982 (Fla. 5th DCA 1995) (rule 3.850 motion). Here, appellant did file a direct appeal from his conviction and sentence, which this court summarily affirmed. See Wright v. State, 663 So.2d 639 (Fla. 4th DCA 1995). Thus, he had the opportunity to raise this issue. As such, the validity of the reasons has become the “ ‘law of the case.’ ” Pula, 652 So.2d at 982 (quoting Sanders v. State, 621 So.2d 723 (Fla. 5th DCA 1993)); see also Wood v. State, 867 So.2d 590, 592 (Fla. 5th DCA 2004).

Affirmed.

WARNER, HAZOURI and LEVINE, JJ., concur.


text:
    Tierre D. HEARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4173.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, TAYLOR and CONNER, JJ., concur.


text:
    Raymond SWEETENBURG, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4749.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Raymond Sweetenburg, Atlanta, Georgia, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

HAZOURI, GERBER and CONNER, JJ., concur.


text:
    James BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4768.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    James Barber, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS and CIKLIN, JJ., concur.


text:
    Randy MALDONADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4864.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Randy Maldonado, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    Ricky DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4876.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Ricky Dixon, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    David AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-56.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    David Austin, Coleman, Pro Se.
    No response required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, POLEN and GERBER, JJ., concur.


text:
    Norbert FLEMING, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-81, 4D12-83, 4D12-84.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Norbert Fleming, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, CIKLIN and CONNER, JJ., concur.


text:
    Derrick S. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-375.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Derrick S. Smith, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)).

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


text:
    Marvin Michael BERNARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-378.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Marvin Michael Bernard, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Griagal BARR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-623.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Griagal Barr, Crestview, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., WARNER and GROSS, JJ., concur.


text:
    Jonas AUGUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-664.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Jonas Augustin, Raiford, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Mohmmud ALAYYAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-667.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Alayyan Mohmmud, Cárrabelle, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla. 2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., LEVINE and CONNER, JJ., concur.


text:
    Walter PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-668.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Walter Parks, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Terry FERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-670.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Terry Ferrell, Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., POLEN and GROSS; JJ., concur.


text:
    Jermaine ATTERBURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-675.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Jermaine Atterbury, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS and HAZOURI, JJ., concur.


text:
    Carlos MORENO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-681.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Bruce A. Rosenthal of Bruce A. Rosen-thal Law Offices, P.L., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Sammie L. SCALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-689.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Sammie L. Scales, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, TAYLOR and HAZOURI, JJ., concur.


text:
    Charles M. CONYERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-695.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Charles M. Conyers, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2012).

TAYLOR, LEVINE and CONNER, JJ., concur.


text:
    Tevis COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-699.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.

      Tevis Cooper, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

GROSS, DAMOORGIAN and CONNER, JJ., concur.


text:
    Caswell FENTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-707.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Caswell Fenton, Arcadia, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Aaron Alexander HOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-719.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.
    Aaron Alexander Hough, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Gregory JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-724.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2012.

      Gregory Jones, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    A.J., the Father, and L.J., the Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    Nos. 4D12-462, 4D12-660.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.
    See also, A.J. v. DCF, 97 So.3d 985.

      Kenneth M. Kaplan, Miami, for appellant A.J., the Father.
    Lori D. Shelby, Fort Lauderdale, for appellant L.J., the Mother.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, West Palm Beach, for appellee Department of Children and Families.
    Hillary S. Kambour, Tavares, for appel-lee Guardian ad Litem Program.
   PER CURIAM.

This case arises out of a termination of parental rights and dependency proceeding involving nine children, three fathers, and two mothers. The appellants, A.J. and L.J., are the father and mother, respectively, of two boys, J.J., born in 2004, and J.L.J., born in 2005. The mother also has two sons with other fathers. These sons are M.D., born in 1996, and G.D., born in 2003. Five children the father had with his first wife were the subject of another appeal. See A.J. v. DCF, 97 So.3d 985 (Fla. 4th DCA 2012).

In September of 2010, the Department of Children and Families (DCF) filed a shelter petition followed by a dependency petition regarding all nine children, based on the father’s alleged sexual abuse of two of his daughters (the current children’s half-siblings) and the mother’s participation in the abuse and/or failure to protect her stepdaughters. About a month later, DCF filed a Petition for Termination of Parental Rights (TPR), as to J.J. and J.L.J. against the mother and the father. As to the mother, the petition relied on section 39.806(l)(f), Florida Statutes (2010), which provides for termination of parental rights based on egregious conduct to a child or a child’s sibling. As to the father, the petition relied on section 39.806(l)(g), Florida Statutes (2010), and alleged that the father sexually abused two of his daughters. DCF also filed a TPR petition against the mother as to M.D. and G.D. This petition was also based on section 39.806(l)(f). After an adjudicatory hearing, the court terminated the father’s parental rights to J.J. and J.L.J., and terminated the mother’s parental rights to all four boys. The parents appeal the order and the appeals have been consolidated.

The parents present the same issues on appeal: whether there was eompe-tent substantial evidence to support the court’s finding that the sexual abuse occurred, and whether DCF demonstrated a substantial risk of significant harm to J.J., J.L.J., M.D., and G.D., based on abuse of their half-siblings, such that termination was the least restrictive means of protecting the children. The mother also raises issues regarding evidentiary rulings. We have reviewed the record and find that there was sufficient evidence that sexual abuse, as defined in section 39.01(67), Florida Statutes (2010), occurred. However, we agree with the parents that DCF did not present sufficient evidence that under the totality of the circumstances, the boys involved in the instant case were harmed or at risk of harm. Accordingly, we reverse.

In termination of parental rights cases, the trial court “must find by clear and convincing evidence that one of the grounds set forth in 39.806, Florida Statutes, has been proven.” D.G. v. Dep’t of Children and Families, 77 So.3d 201, 206 (Fla. 4th DCA 2011) (citations omitted). Further, “the court must determine what outcome is in the manifest best interest of the children.” Id. DCF must also demonstrate that termination is the least restrictive means of protecting the child from harm.” Id. On appeal, if “ ‘upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights’ ”, this court must affirm. Id. at 207 (citation omitted). Termination of parental rights to one child based on abuse of another child must be based “on the totality of the circumstances surrounding the current petition.” Fla. Dep’t of Children and Families v. F.L., 880 So.2d 602, 611 (Fla.2004) (citing Padgett v. Dep’t of Health and Rehab. Servs., 577 So.2d 565 (Fla.1991)). See also In re M.F., 770 So.2d 1189 (Fla.2000) (holding that finding of dependency may not be based solely on parent’s sex act on sibling, and that court must consider all circumstances surrounding the current petition); J.J. v. Dep’t of Children and Families, 994 So.2d 496 (Fla. 4th DCA 2008) (noting that in order to terminate parental rights based on egregious abuse of a sibling, DCF must show the current child is at substantial risk of significant harm if reunited with the parent).

In the instant case, the evidence did not reflect that any of the boys had been abused, had witnessed the abuse, or had spoken about the abuse. Of the four boys involved in these appeals, only M.D. testified, and he stated that he was never mistreated or sexually abused, and that he never witnessed or knew about any inappropriate touching in the home. The evidence revealed that the younger boys had behavioral issues, but DCF did not demonstrate that the issues had anything to do with the abuse of the siblings. Instead, the testimony at trial indicated the issues may have existed prior to the abuse of the siblings, that the mother sought therapy for the children, and that some of the issues may have arisen in response to the boys being removed from their home and then moved from a caregiver to a foster home. During questioning of the therapist, the mother’s attorney attempted to shed light on the circumstances surrounding the boys’ referral to therapy by their mother, but the court inexplicably found the questioning irrelevant. Further, the court erroneously relied in large part on hearsay accounts regarding one of the younger boys and one of the father’s daughters acting out sexually. See M.S. v. Dep’t of Children and Families, 6 So.3d 102 (Fla. 4th DCA 2009) (reversing adjudication of dependency where trial court relied heavily on inadmissible evidence, including out of state child welfare records containing hearsay statements which did not meet business records exception).

We find that on this record, there was not competent substantial evidence supporting the court’s finding that there was clear and convincing evidence of substantial risk of significant harm to the boys. We are also troubled by the court’s findings that the parents could not provide the children with necessities. There was no testimony establishing the parents’ financial situation, and there was no evidence that the parents could not in fact provide for their children. Finally, we note that the court based its order in part on the parents’ refusal to admit to the allegations. This was improper. See J.J. v. Dep’t of Children & Families, 994 So.2d at 502 (citation omitted).

Because DCF did not establish that under the totality of the circumstances, the boys were harmed or were at a risk of harm based on the abuse of their siblings, the court also erred in finding that termination was the least restrictive means of protecting the boys. We reverse and remand for further dependency proceedings. See J.J. v. Dep’t of Children and Families, 994 So.2d 496 (Fla. 4th DCA 2008) (reversing order of termination and remanding for continuation of children’s dependency status, development of case plan, and further proceedings).

Reversed and remanded for further proceedings.

HAZOURI, DAMOORGIAN and CIKLIN, JJ., concur.

      . The order also terminated the father’s parental rights to his five children with his first wife; the father’s appeal of that portion of the order was not consolidated with these appeals. This court affirmed the termination of rights as to the daughters, but reversed as to the sons. See A.J. v. DCF, 97 So.3d 985 (Fla. 4th DCA 2012).

      . DCF is not required to offer a case plan with the goal of reunification in termination cases. See § 39.802(5), Fla. Stat. (2010). Further, "[rjeasonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (l)(e)-(Z) have occurred.” § 39.806(2), Fla. Stat. (2010). However, in prospective abuse cases, "DCF must still present clear and convincing evidence that termination is the least restrictive means to protect the child from harm.” D.O. v. S.M., 981 So.2d 11, 18 (Fla. 4th DCA 2007). "In determining whether termination of a parent’s rights is the least restrictive means of protecting the. child, the trial court must consider the totality of the circumstances.” Id. at 19. In some termination cases, a case plan is the least restrictive means to protect the children. See e.g. J.J. v. Dep’t of Children and Families, 994 So.2d 496 (Fla. 4th DCA 2008) (where five years had passed since mother’s rights to siblings had been terminated based on egregious conduct/physical abuse, and mother had since voluntarily sought services, it was error for court to terminate mother’s rights to infant twins where DCF failed to offer mother opportunity to prove her capacity to care for the children by offering a case plan or obtaining a psychological evaluation).


author: WALSH, LISA S., Associate Judge.

text:
    Stuart BERKOWITZ, Appellant, v. DELAIRE COUNTRY CLUB, INC., Appellee.
    No. 4D11-3858.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.

      Stephen J. Padula and Joshua Widlan-sky of Padula Hodkin, PLLC, Boca Raton, for appellant.
    John S. Penton, Jr. of Cole, Scott & Kissane, P.A., West Palm Beach, for appel-lee.
   WALSH, LISA S., Associate Judge.

Stuart Berkowitz appeals from the trial court’s order granting final summary judgment in favor of Delaire Country Club, Inc. (the “Club”). Mr. Berkowitz, a Club member, proposed 17 amendments to the Club’s articles of incorporation and requested that the Club mail a 52-page packet to all Club members. The packet contained Mr. Berkowitz’s proposed amendments, commentary, photographs, graphs, draft ballot language, and arguments. The Club complained that the material was too lengthy and difficult to understand. It requested that Mr. Ber-kowitz resubmit a single page addressing each proposed amendment, excluding commentary, supporting materials, and draft ballot language. Mr. Berkowitz refused, and resubmitted much of the same packet with a color-coded legend separating its materials. The Club rejected the resubmitted packet as vague, confusing, subject to multiple interpretations, and exceeding the Club’s one-page limitation on length.

Mr. Berkowitz filed a complaint for declaratory and injunctive relief, arguing that the Club failed to follow its required procedure under the Club’s articles of incorporation and by-laws. After a hearing, the trial court entered a final order granting the Club’s motion for summary judgment. The trial court concluded: (1) that a latent ambiguity existed in the articles of incorporation and by-laws as to the format required for amendments; (2) that a member is required to limit a proposed amendment in a one-page “suitable ballot” form; and (3) that the Club secretary had the discretion to determine the suitability of a member-submitted ballot relating to proposed amendments.

We find no error in the trial court’s conclusion that a latent ambiguity existed as to the format required for members to submit proposed amendments. However, we reverse the final summary judgment for three reasons. First, the trial court improperly considered unauthenticated evidence to resolve the latent ambiguity. Second, the trial court erroneously conflated the term “proposed amendment” with the term “suitable ballot.” Finally, the trial court erroneously placed the burden on the member, rather than the Club secretary, to prepare a “suitable ballot” for submission to the membership for a vote.

A trial court’s order granting summary judgment is reviewed de novo. Sunshine State Ins. Co. v. Jones, 77 So.3d 254, 257 (Fla. 4th DCA 2012). “ ‘Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). “ ‘If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’ ” McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011) (quoting Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010)).

Articles of incorporation and corporate bylaws are construed applying principles of contract interpretation. See Naples Cmty. Hosp., Inc. v. Hussey, 918 So.2d 323, 325 (Fla. 2d DCA 2005). A trial court’s interpretation of a contract is reviewed de novo. Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007).

The Club’s Articles of Incorporation provide, in pertinent part:

ARTICLE X
AMENDMENT OF BY-LAWS
... At least thirty (30) days in advance of such [annual or special] meeting, the Club will mail to each member copies of any proposed changes together with a proxy-ballot for the member’s execution in affirming or rejecting the proposed changes.
An amendment may be proposed by ... any member ... of the Club. An amendment proposed by a member ... of the Club shall be submitted in writing to the Board of Governors along with a request that the proposed amendment be presented to the membership for vote at an annual or special meeting. The proposed amendment shall be submitted to the Board of Governors at least sixty (60) days prior to the annual or special meeting at which it is to be considered. Thereafter, the Board of Governors shall submit the proposed amendment to the members at an annual or special meeting in accordance with the written request and the provisions of the restated By-Laws. The notices of said meeting shall contain a statement that [the] Board of Governors either approves or disapproves of the proposed amendment.

The Club’s By-Laws provide, in pertinent part:

Article III
Members Meeting
8. Voting Procedures.
a. All voting in elections or involving amendments and other major actions as defined in the Articles of Incorporation shall be by closed ballot. Voting shall be by mail ballot.
b. The Secretary shall prepare and mail to each member a suitable Ballot and also a Ballot envelope. Members shall vote by completing and returning the Ballot to the Club office in the Ballot envelope.... The signed Ballot envelopes will be opened by the Inspectors of Election on the day of the meeting where such Ballots shall be cast.

Latent Ambiguity in Articles of Incorporation and By-Laws

The Club’s Articles of Incorporation and By-Laws permit a member to submit a “proposed change” or an “amendment” to the Club, which the Club is then required to submit, along with a “suitable ballot,” to the Club membership. Here, the member submitted not only 17 proposed changes but an accompanying 52-page packet including commentaries, graphs, arguments, photographs, and other materials. The Articles of Incorporation and the By-laws neither permit nor forbid a member from submitting non-amending, additional materials with their proposed amendments. Nor do the Articles of Incorporation or the By-laws set forth the form which an amendment must take. The Articles and By-laws are thus silent on these issues.

Although there is nothing ambiguous about the terms “amendment” or “proposed change,” the Club argues that the silence on the issue of the format of an amendment created a latent ambiguity which required extrinsic evidence to clarify-

There are two types of contractual ambiguity, latent and patent. Prime Homes, Inc. v. Pine Lake, LLC, 84 So.3d 1147, 1151 (Fla. 4th DCA 2012). “Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways.” Id. at 1151-52 (citation omitted). “A latent ambiguity is said to exist where a contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings.” Kirsch v. Kirsch, 933 So.2d 623, 626 (Fla. 4th DCA 2006) (citation and quotation omitted).

The trial court concluded that the failure of the Articles of Incorporation and By-laws to address the scope and format of the materials which a member could submit created a latent ambiguity in the documents. We find no error. See Riera v. Riera, 86 So.3d 1163, 1166-67 (Fla. 3d DCA 2012) (silence in marital settlement agreement on issue of payment of college expenses where contract provided that parties shall pay equally for all costs related to education of child created latent ambiguity); Prime Homes, Inc., 84 So.3d at 1152 (failure of real estate contract to specify lot size created ambiguity in contract which extrinsic evidence was required to clarify). Here, a latent ambiguity arose for which extrinsic evidence was properly required to clarify the format and scope of a member-submitted amendment.

Summary Judgment Improper Where Based Upon Unauthenticated Evidence

Normally, when a contract is ambiguous, summary judgment is improper. See Talbott v. First Bank Fla., FSB, 59 So.3d 243, 245 (Fla. 4th DCA 2011) (“When a contract is ambiguous, an issue of fact is created that cannot be resolved by summary judgment.” (citation omitted). However, if a party moving for summary judgment presents competent evidence to support its position, which the nonmoving party does not counter, then summary judgment may be granted. See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (“But once [the party moving for summary judgment] tenders competent evidence to support his [or her] motion, the opposing party must come forward with counterevi-dence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.” (citation omitted)).

The Club argued that it had a longstanding practice of requiring members to restrict proposed amendments to a single page in length. In support, the Club simply attached unauthenticated documents which purported to be past ballots submitted by other Club members. No affidavit or other evidence established that the attachments were what they purported to be.

Because the Club’s attached documents were unauthenticated, they were not competent evidence, and the trial judge erred in considering them. See Ciolli v. City of Palm Bay, 59 So.3d 295, 297 (Fla. 5th DCA 2011) (an unauthenticated document attached to a memorandum of law is not permitted under Rule 1.510(c), Florida Rules of Civil Procedure, and does not constitute competent substantial evidence). “A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the [ ] document, if properly authenticated, may have been dispositive.” Booker v. Sarasota, Inc., 707 So.2d 886, 889 (Fla. 1st DCA 1998) (citation omitted). Accordingly, the trial court erred in considering the unauthenticated attachments to resolve the contractual ambiguity.

Trial Court Improperly Assigned Duties of Club Secretary to the Member and Conflated Terms “Ballot” with “Amendment”-

The trial court order states:

The suitable ballot format is to ensure Club members will understand what exact sections of the Club’s governing documents may be altered or revised if the amendment is passed. [Mr. Berkow-itz’s] proposed amendments are vague and/or ambiguous.
[Mr. Berkowitz] must conform the format of each of his proposed amendments to the single-page suitable format substantially similar to the format used in the past.
It is this Court’s opinion that Article III, Section 8 of the Club’s By-Laws, provides the Secretary of the Club with reasonable discretion to determine the suitability of a proposed ballot submitted by a member relating to proposed amendments to the Club’s governing documents.

Mr. Berkowitz argues that the trial court incorrectly equated the Articles of Incorporation’s term “proposed amendment” with the By-laws’s term “ballot.” He further argues that the court’s interpretation improperly assigned the Bylaws’s balloting process to the member and improperly relegated the duties of the Club secretary to the member to prepare a “suitable ballot.” Mr. Berkowitz is correct on both points.

“Where an agreement comprises more than one document, the documents should be considered together in interpreting the parties’ agreement.” Philips Lake Worth, L.P. v. BankAtlantic, 85 So.3d 1221, 1225 (Fla. 4th DCA 2012) (citing J.G. Wentworth, S.S.C., L.P. v. Safeco Life Ins. Co., 755 So.2d 138, 138 (Fla. 4th DCA 1999)). Further, Article XIX of the Articles of Incorporation states that in the event a conflict exists between the Articles of Incorporation and the By-laws, the Articles of Incorporation shall prevail.

Article X of the Articles of Incorporation states that any member may submit an amendment “in writing to the Board of Directors along with a request that the proposed amendment be presented to the membership for vote.... ” Article III, Section (8)(b) of the By-laws states, “[t]he Secretary shall prepare and mail to each member a suitable ballot and also a Ballot envelope,” which each voting member then completes and returns to the Club office.

Reading the Articles of Incorporation together with the By-Laws, it is clear that a two-step process is required. First, pursuant to the Articles of Incorporation, the member may submit a proposed amendment to the Board of Directors. The Board is required to submit the proposed amendment to the membership. Next, pursuant to the By-laws, the Secretary “shall prepare and mail to each member a suitable ballot....” Equating the term “amendment” with the term “suitable ballot” is error. Requiring the member to prepare a “suitable ballot” is similarly erroneous. A member may submit a proposed amendment to the Board. Thereafter, under the By-laws’s clear language, it is the Club secretary, and not the member, who must prepare and mail a “suitable ballot” to the Club membership.

Accordingly, we reverse.

Reversed and remanded.

STEVENSON and CIKLIN, JJ. concur.


text:
    Vladimir PLAKHOV, Appellant, v. Tatiana SEROVA, Appellee.
    No. 4D11-3280.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.

      Avraham A. Spivak, Hallandale Beach, for appellant.
    Neil Rubin of Rubin & Bickman, PLLC, Miami Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment entered after a non-jury trial that awarded damages to a residential landlord for unpaid rent. We affirm.

Landlord Tatiana Serova entered into a one year residential lease of a condominium unit with tenant Vladimir Plakhov. The unit was the only real estate which the Landlord owned in Florida. The lease called for $2200 per month rent. At the inception of the lease in November 2008, the Tenant paid $6600 — $4400 for the first and last month’s rent and $2200 as a security deposit. The lease did not limit the type of damages to which the security deposit could be applied. The Landlord deposited the security deposit in an account with her real estate management company. The Tenant paid $2200 rent for December and $900 rent for January. The Tenant stopped paying rent because he became worried after he was served as a defendant in a foreclosure lawsuit brought by the Landlord’s lender; also, the Tenant received notice from the condominium association that the Landlord had not paid certain association fees. At the time, the Landlord was involved in discussions with her lender about modifying her mortgage and she entered into several payment plans with the lender in 2009; the foreclosure case was dismissed in 2011. Although the Landlord had missed a payment to the condominium association, she brought her payments current in February 2009. The Tenant moved out of the unit in April 2009. The Landlord immediately listed the unit for rent with a real estate agency, but was unable to obtain a tenant until November 2009, due to market conditions.

In his answer to the complaint, the Tenant admitted that he and the Landlord had entered into the lease attached to the complaint. By his response to the Landlord’s request for admissions, the Tenant also admitted these facts:

On or about April 28, 2009, the [Landlord] dispatched her “Notice of Intention to Impose Claim against Security Deposit to the [Tenant], in care of the Law Offices of [Tenant’s attorney] via certified mail, return receipt requested.
The [Tenant] did not object to the [Landlord’s] imposition of a claim against the security deposit ... within fifteen (15) days from the date that the [Tenant’s attorney] received notification of the claim on April 29, 2009.

A pretrial stipulation identified three issues for trial: (1) whether the lender’s filing of a foreclosure action “entitled the [Tenant] to breach the Lease agreement, to discontinue tendering rental payments to the [Landlord]”; (2) whether the Landlord’s delinquency in satisfying condominium common area expenses “entitled the [Tenant] to breach the lease agreement”; and (3) whether the Landlord properly mitigated her damages after retaking possession of the unit.

The trial judge entered a final judgment for the Landlord for $16,700, computed as follows: $26,400 rent owed-$7500 rental payments-$2200 security deposit.

On appeal, the Tenant raises a number of issues, none of which have merit.

The Tenant first argues that he was entitled to a “directed verdict” because the Landlord did not offer a copy of the written lease into evidence. However, in his answer, he admitted the validity of the written lease attached to the complaint and he failed to identify any problem with the lease in the pretrial stipulation.

The Tenant next contends that the lease was “void or voidable at its inception” because the Landlord violated a rider to the mortgage which provided that the property subject to the mortgage was to be used as the “borrower’s second home.” However, the mortgage did not vest any rights in the Tenant because the Tenant was not an intended third party beneficiary of it. Esposito v. True Color Enters. Constr., Inc., 45 So.3d 554, 555 (Fla. 4th DCA 2010). “A party is an intended beneficiary only if [both-jparties to the contract clearly express ... an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong.” Id. at 555 (alteration in original) (quoting Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994)). The Tenant was not entitled to use the rider to attack the validity of his lease with the Landlord.

Next, the Tenant asserts that the Landlord failed to comply with section 83.49(2), Florida Statutes (2008), by failing to provide written notice to the Tenant “of the manner in which the landlord is holding the advance rent or security deposit.” However, that subsection “does not apply to any landlord who rents fewer than five individual dwelling units.” § 83.49(2)(c), Fla. Stat. (2008). The Landlord owned but one rental unit in Florida, so she was excused from the subsection’s notice requirements. In any event, the statute provides that “[fjailure to provide this [section 83.49(2) ] notice shall not be a defense to the payment of rent when due.” Id.

The Tenant further argues that he is entitled to the return of his security deposit because the Landlord failed to comply with the notice requirement of section 83.49(3)(a), Florida Statutes (2009). This argument fails for two reasons. First, this defense was neither raised in his answer nor identified in the pretrial stipulation. Second, the Landlord’s obligation to provide this notice was excused by the Tenant’s failure to give the seven-day notice implicated when a “tenant ... vacates or abandons the premises prior to the expiration of the term specified in the written lease.” § 83.49(5), Fla. Stat. (2009). The failure of the tenant to give this notice “shall relieve the landlord of the notice requirement of [section 83.49(3)(a) ].” Id. In this situation, the Landlord and the Tenant are free to litigate over their entitlement to the security deposit without leaping any procedural hurdles. The Landlord established damages (unpaid rent) far in excess of the security deposit. The lease did not limit how the security deposit could be applied, so the trial judge properly applied it to reduce the amount of damages owed by the Tenant. The Tenant thus had an opportunity to establish his “right” to the security deposit within the meaning of section 83.49(5), but was unable to do so. The Tenant’s reliance on Durene v. Alcime, 448 So.2d 1208 (Fla. 3d DCA 1984), is unavailing, since that case involved a situation where the landlord’s obligation to give the section 83.49(3)(a) notice was not excused by the Tenant’s failure to give the notice required by section 83.49(5).

Next, the Tenant contends that he was constructively evicted by the Landlord’s dealings with her mortgagee. The supreme court recognized and defined the constructive eviction defense in Hankins v. Smith, 103 Fla. 892, 138 So. 494, 495-96 (1931):

A ‘constructive eviction’ is an act which, although not amounting to an actual eviction, is done with the express or implied intention, and has the effect, of essentially interfering with the tenant’s beneficial enjoyment of the leased premises. It may constitute a constructive eviction if the landlord does any wrongful act or is guilty of any default or neglect whereby the leased premises are rendered unsafe, unfit, or unsuitable for occupancy in whole, or in substantial part, for the purposes for which they were leased.

(citation omitted). Whether a constructive eviction has occurred is a “question!] of fact determinable by the trier of fact in light of the appropriate principles of law.” Richards v. Dodge, 150 So.2d 477, 480 (Fla. 2d DCA 1963). Whatever inconvenience the Tenant experienced by being served in the foreclosure action did not rise to the level of constructive eviction because the unit was not “rendered unsafe, unfit, or unsuitable for occupancy in whole, or in substantial part.” Hankins, 138 So. at 496. Moreover, the Tenant never gave the Landlord the notice to cure required by section 83.56(1) which is a precondition to the tenant’s ability to terminate the rental agreement for the failure of the landlord to comply “with s. 83.51(1) or material provisions of the rental agreement.” § 83.56(1), Fla. Stat. (2009).

Affirmed.

CIKLIN, GERBER and LEVINE, JJ„ concur.

      . We do not reach the issue of a tenant’s remedy where the landlord fails to comply with section 83.49(2), Florida Statutes (2008). See § 83.49(8), Fla. Stat. (2008) (providing that ”[a]ny person licensed under the provisions of s. 509.241, unless excluded by the provisions of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his or her license by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation”).