author: CASANUEVA, Judge.

text:
    J.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-907.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

J.G. appeals an adjudication of delinquency after the trial court found that he had trespassed on property other than a structure or a conveyance after warning. We reverse, concluding that the State failed to establish a key element of the crime.

I. Facts

Around midnight on October 3, 2011, Tampa Police Officer John Miller encountered seventeen-year-old J.G. on the premises of the Robles Park Housing Project, a property owned by the City of Tampa that is managed by the Tampa Housing Authority. Officer Miller ran J.G.’s name through his on-board computer and determined that the previous June, J.G. had been “trespassed off the property,” meaning he had been given a warning to stay off the housing project property for a year unless he had valid permission to be there. Apparently J.G. could not provide this valid permission, so the officer arrested him for trespass after warning. The State then filed a delinquency petition against him for that charge.

At the adjudicatory hearing, both the officer who gave the initial trespass warning to J.G. in June, Officer Cooper, and the officer who arrested him in October, Officer Miller, testified. Officer Miller stated, “I know that we have a trespass affidavit on file with the Tampa Housing Authority.” Officer Cooper testified that he was an agent of the Robles Park Housing Project through an agreement or affidavit the project management had signed with the City of Tampa giving Tampa police officers authority to issue a trespass warning and arrest a violator of that warning; and this agreement was on file at his substation. Defense counsel made proper hearsay objections to both these statements. Importantly to this case, the Robles Park manager himself did not testify, nor did the State provide any sort of documentation that the project manager had granted Tampa police officers authority to issue trespass warnings pursuant to section 810.09, Florida Statutes (2011).

To substantiate the argument that the officers’ testimonies were inadequate to establish the provenance of their authority as agents of Robles Park, defense counsel cited Fox v. State, 580 So.2d 313 (Fla. 3d DCA 1991). Defense counsel argued by contrast, saying that the State in Fox had properly presented evidence to fulfill the elements of the same charged crime, particularly the authority of the arresting officer, through testimony of the manager of the premises. Defense counsel pointed out that because the State had not made a similar showing in J.G.’s case, the hearsay motion should be granted. After lengthy discussion, highlighted by the trial court’s discussion of agency law, the trial court denied the hearsay motion. At the close of the evidence, defense counsel moved for dismissal, arguing that without the inadmissible hearsay evidence from the officers about their authority to issue trespass warnings, there was no evidence that J.G. was lawfully excluded from the housing project. The trial court denied the motion to dismiss, adjudicated J.G. delinquent, and committed him to a moderate risk residential program followed by a year of probation.

II. Analysis

In order to be convicted of trespass after warning, the defendant must have been previously ordered not to be on the premises and subsequently violated that order. Subsection (2)(b) of section 810.09 makes such violation a misdemeanor of the first degree and provides that the offender commits the offense “[i]f the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person .... ” (Emphasis added.)

Both officers’ statements — that their authority came from the management of Robles Park who had signed a document of which they were aware — are examples of classic hearsay: “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2011). Such “statement” can be, as in this case, a written assertion. See § 90.801(l)(a)(l). The document the officers described allegedly gave Tampa police officers the authority to issue trespass warnings to persons without proper authorization to be on the premises. But the evidence the court accepted to substantiate the officers’ authority to arrest J.G. for trespass after warning was insufficient for this purpose as this court recently explained in the analogous case of I.M. v. State, 95 So.3d 918 (Fla. 2d DCA 2012).

In I.M., the juvenile defendant got on his bicycle and tried to flee from the deputy who was attempting to arrest him for trespass after warning on the premises of a public library. The State had to show, as an element of trespass, that the deputy had authorization from the proper authority, in this case the head librarian, to issue the initial warning and arrest for violation of that warning. Id. at 920. This court said:

“ ‘Common understanding1 dictates that the phrase ‘other authorized person’ is to be read in light of the preceding phrase ‘owner of the premises.’” State v. Dye, 346 So.2d 538, 541-42 (Fla.1977). Furthermore, “[o]n public premises, authorized personnel include[] those persons who have been given either express or implied authority from the chief executive.” Id. at 542 (concluding that with regard to a public school building, the school board was the chief executive). Here, on the morning of trial, the trial court granted defense counsel’s motion in limine to exclude any hearsay testimony by the off-duty deputy that the head librarian had given him authority to issue trespass warnings. The closest the State came to establishing such authority was asking the deputy, “As a Hills-borough County Sheriffs Deputy do you have the authority to issue trespass warnings?” The deputy responded, “We do.” This, however, is insufficient to establish that the deputy had “been given either express or implied authority from the chief executive” of the library. See Dye, 346 So.2d at 541-42; cf. Fox v. State, 580 So.2d 313, 314 (Fla. 3d DCA 1991) (finding sufficient evidence of authorization where, despite a lack of explicit testimony that chief executive gave police officer authority to issue trespass warnings, “[a]t trial both the [public housing] project manager and the arresting officer testified about the relationship between the Modello [Housing] Project and the police department with respect to efforts to control crime and the sale of drugs” and concluding that “[t]he project manager certainly has the authority to enlist the assistance of the police” (emphasis added)).
Here, the chief librarian did not testify, and the State was unable to establish the off-duty deputy’s authority. As such, the State failed to prove all the elements of trespass, and we therefore reverse the trial court’s disposition order as to that allegation. Furthermore, because the deputy was not executing a legal duty at the time I.M. attempted to ride away on his bike, we also reverse the disposition order as to the obstructing charge.

Id. at 920-21.

In I.M., the lack of evidence from the head librarian torpedoed the State’s case with respect to the source of the deputy’s authority. Similarly, the State in J.G.’s case had no evidence from the owner of the premises or other authorized person, such as the housing project’s manager, showing that he or she had given Tampa police officers authority to issue trespass warnings off these premises. Officer Cooper’s and Officer Miller’s testimonies that there was such document on file at the substation was inadmissible hearsay just as much as the librarian’s hearsay that the court in I.M. properly ruled inadmissible pursuant to a motion in limine. See 95 So.3d at 920 (“[0]n the morning of trial, the trial court granted defense counsel’s motion in limine to exclude any hearsay testimony by the off-duty deputy that the head librarian had given him authority to issue trespass warnings.”). J.G.’s counsel at trial also objected to the hearsay that the officers were offering but the trial court wrongly overruled the motion. The needed nonhearsay evidence could have come from live testimony as it did in Fox, 580 So.2d at 314 (noting that the project manager had testified about the relationship between the project and the police department respecting efforts to control crime and the sale of drugs on the project’s premises), or an exception to hearsay as in a properly authenticated business record pursuant to sections 90.803(6) and 90.902(11). But the State provided no such evidence in J.G.’s case.

III. Conclusion

I.M. is the precedent that controls the outcome of this case. Because the State provided insufficient evidence of Officer Miller’s authority to arrest J.G. for trespass after warning, J.G.’s adjudication of delinquency for such offense cannot stand.

Adjudication of delinquency reversed and disposition vacated with instructions to dismiss the charge against J.G.

KELLY and LaROSE, JJ., Concur.

      . § 810.09(l)(a), (2)(b), Fla. Stat. (2011).

      . This issue of the proper authorization to issue trespass warning and arrest for a violation of the trespass warning in I.M. was a threshold question before deciding whether the deputy was acting in his lawful duty to arrest the juvenile defendant for resisting, obstructing, or opposing the deputy. 95 So.3d at 920.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY, etc., Petitioner, v. Stacy EDGELL-GALLOWHUR, Respondent.
    No. 3D12-2313.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.

      Jason Helfant, for petitioner.
    Michael Catalano, for respondent.
    Before CORTIÑAS, ROTHENBERG and EMAS, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

EMAS, J.

Upon review of Respondent’s motion for rehearing and clarification, we deny the motion, but withdraw our previously-issued opinion and substitute the following in its place:

The State of Florida, Department of Highway Safety and Motor Vehicles (“the Department”), petitions this court for the issuance of a writ of certiorari, quashing a decision of the circuit court appellate division, which reversed the administrative suspension of Stacy Edgell-Gallowhur’s (“Edgell-Gallowhur”) driving privileges. Because we conclude that the circuit court departed from the essential requirements of law, we grant the petition and quash the order under review.

FACTS AND PROCEDURAL BACKGROUND

On February 24, 2009, at 2:50 a.m., Ed-gell-Gallowhur was stopped by the police for speeding. The police officer noticed a strong smell of alcohol emitting from Ed-gell-Gallowhur’s breath and person, bloodshot eyes, and slurred speech, so he requested Edgell-Gallowhur perform certain roadside exercises. Edgell-Gallowhur complied, and at the conclusion of the exercises, was placed under arrest for driving under the influence. At the station, Edgell-Gallowhur refused to submit to a breath or urine test, having signed an implied consent form indicating he was made aware his driver’s license would be suspended for his refusal to submit.

Thereafter, an administrative suspension of Edgell-Gallowhur’s driving privileges was imposed for twelve months. Edgell-Gallowhur requested a formal hearing, which was held April 1, 2009. No witnesses testified at the hearing, but the relevant documents were presented at the hearing, including the speeding citation, which read “unlawful speeding 60/40 mph posted. Pace speed unit # (123).” The hearing officer affirmed the order of suspension, concluding that the police officer had probable cause to believe Edgell-Gal-lowhur was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances, and that Ed-gell-Gallowhur refused to submit to tests after being told such refusal would result in suspension of his driver’s license for twelve months.

Edgell-Gallowhur petitioned for a writ of certiorari to the circuit court appellate division, asserting, inter alia, the administrative order departed from the essential requirements of law because the evidence was insufficient to establish the initial stop was lawful; and the findings of the hearing officer were not supported by the record.

The Department moved to stay the petition for writ of certiorari pending the outcome of two cases pending in the Florida Supreme Court on the issue of whether it was necessary for the hearing officer to determine the lawfulness of the arrest (including the initial stop) of Edgell-Gallow-hur. The motion was granted, and after the Florida Supreme Court ruled on the relevant case, Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011), the Department filed a motion in the circuit court, acknowledging the supreme court in Hernandez determined “the issue of whether refusal [to submit to a breath test] was incident to a lawful arrest is within the allowable scope of review” of the hearing officer. Id. at 1080. The circuit court remanded the case back to the Department for the hearing officer to make a determination of the legality of the arrest (and therefore the initial stop) and stayed the certiorari proceedings pending that hearing.

On remand, the hearing officer held a second formal hearing and considered the same documents and evidence relied upon at the first formal hearing:

— The notice of suspension;
— Traffic citation number 5160-FWM (the speeding citation);
— Edgell-Gallowhur’s driver’s license;
— Arrest Affidavit of the arresting officer;
— Breath Alcohol Test Affidavit;
— Refusal Affidavit;
— Alcohol Influence Report;
— Implied Consent Form;
— Miranda Warnings; and
— Transcript of Edgell-Gallowhur’s driving record.

At the second formal review, Edgell-Gallowhur again argued there was insufficient evidence to establish the lawfulness of the initial stop because the sworn arrest affidavit merely states Edgell-Gallowhur was “pulled over for speeding” and said nothing more about the manner in which the officer determined Edgell-Gallowhur was speeding. Further, Edgell-Gallowhur contended, the sworn arrest affidavit contained no reference to the speeding citation, so it was not incorporated into the allegations of the arrest affidavit. While Edgell-Gallowhur acknowledged a separate speeding citation had been issued and was before the hearing officer, he asserted that, because it was unsworn, it could not be considered competent evidence to determine the lawfulness of the initial stop.

The hearing officer issued an order finding, inter alia, that the initial stop of Ed-gell-Gallowhur (based upon the speeding citation) and his eventual arrest (for DUI) were lawful. The certiorari proceedings were then recommenced before the appellate division of the circuit court. At oral argument, Edgell-Gallowhur advanced the same arguments regarding the unsworn speeding citation and the failure to properly incorporate the speeding citation by reference into the sworn arrest affidavit. The circuit court issued a decision, reversing the administrative suspension of Ed-gell-Gallowhur’s driver’s license. The panel determined that the hearing officer’s decision to sustain Edgell-Gallowhur’s driver’s license suspension departed from the essential requirements of law because there was not sufficient competent evidence that the initial stop was lawful. The relevant portion of the circuit court’s opinion reads as follows:

In the present case, the Officer merely states that [Edgell-Gallowhur] was pulled over for speeding. The Officer makes no mention of how he determined [Edgell-Gallowhur’s] speed. The arrest affidavit refers to the DUI ticket and says nothing about the speeding ticket. Additionally, the speeding ticket on file does not say anything other than, “unlawful speeding, 60/40 mph posted. Pace speed unit # (123) Tag.” Here, the Officer merely reaches a conclusion that the Petitioner was speeding without providing any evidence in his report to support his conclusion.

This petition for writ of certiorari followed.

The Department contends that the circuit court appellate division conducted an unauthorized de novo review of the evidence, reweighed the evidence, and failed to apply the correct law, resulting in manifest injustice which is likely to be repeated in every driver’s license suspension where the officer pace clocks a vehicle to establish reasonable suspicion of speeding.

Edgell-Gallowhur asserts this court should decline to review this matter because the law is well-settled, and was followed by the circuit court appellate division.

STANDARD OF REVIEW

On a petition for second-tier cer-tiorari review, this court’s “ ‘inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,’ or, as otherwise stated, departed from the essential requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). We recognize that “[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.” Heggs, 658 So.2d at 530.

ANALYSIS

Because our scope of review is very limited, the question presented in this case is whether the circuit court appellate division, in reversing the administrative suspension affirmed by the hearing officer, departed from the essential requirements of law. If we find, for example, that “the circuit court appliefd] an improper standard of review, ‘this is tantamount to departing from the essential requirements of law.’” Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So.2d 607, 608 (Fla. 2d DCA 2005) (quoting Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So.2d 838, 845 (Fla.2001)).

The circuit court, in its appellate capacity, was limited in its review to determining (1) whether the agency accorded procedural due process; (2) whether the agency observed the essential requirements of the law; and (3) whether the administrative findings and judgment were supported by competent substantial evidence. Heggs, 658 So.2d at 530. Second-tier certiorari relief is also appropriate where the circuit court has failed to apply clearly-established law. Dep’t of Highway Safety & Motor Vehicles v. Saxlehner, 96 So.3d 1002 (Fla. 3d DCA 2012).

We conclude that the circuit court, in its decision reversing the administrative suspension, failed to apply the correct law by ignoring the speeding citation and its contents. In the singular paragraph explaining its decision, the circuit court panel determined:

— “[T]he Officer merely states that [Edgell-Gallowhur] was pulled over for speeding”;
— The officer “makes no mention of how he determined [Edgell-Gallow-hur’s] speed”;
— “The arrest affidavit refers to the DUI ticket and says nothing about the speeding ticket.”
— “[T]he speeding ticket on file does not say anything other than, ‘unlawful speeding, 60/40 mph posted. Pace speed unit # (123) Tag.’ ”
— “[T]he Officer merely reaches a conclusion that the Petitioner was speeding without providing any evidence in his report to support his conclusion.”

(Emphasis added.)

The circuit court fails to explain what appear to be contradictions within the above statements; however, a review of the arguments made below provides the answer. Edgell-Gallowhur contended, at the two formal hearings, as well as in his petition and oral argument before the circuit court, that the unsworn speeding citation was inadmissible evidence and could not properly be relied upon by the hearing officer because it was not under oath. The hearing officer did not accept this argument. However, it is evident that the circuit court did, given the court’s acknowledgment of the speeding citation, which specifically indicated “unlawful speeding, 60/40 mph posted. Pace speed unit # (123),” and the court’s subsequent conclusion that “the Officer merely states that [Edgell-Gallowhur] was pulled over for speeding”; the officer “makes no mention of how he determined [Edgell-Gallow-hur’s] speed”; and “[t]he arrest affidavit refers to the DUI ticket and says nothing about the speeding ticket.”

Edgell-Gallowhur argued below, and the circuit court agreed, that because the arrest affidavit failed to properly reference or incorporate the speeding citation, the speeding citation and its contents could not be considered as part of the sworn documents and, because the speeding citation itself was not sworn to, it was not competent evidence and should not have been considered at the formal hearing even though it was part of the documents submitted by the law enforcement officer for consideration at the formal hearing. This contention is simply incorrect and directly contradicts the statutory and administrative provisions governing formal review hearings.

Section 322.2615(2), Florida Statutes (2009), provides that the only documents required to be in affidavit form are:

— The officer’s statement of grounds for belief that the person was driving under the influence of alcoholic beverages or chemical or controlled substances; and, if applicable,
— An affidavit stating that the person refused to submit to a breath, blood or urine test.

The statute does not require that any other document submitted to the hearing officer — including the alcohol test report; the DUI Test Report (setting forth the officer’s description of the driver’s performance of any field sobriety exercises); the results of any breath or blood test; a crash report or videotape of the field sobriety exercises — be in affidavit form or under oath.

Section 322.2615(2) provides:

Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer.

Section 322.2615(11) provides:

The formal review hearing may be conducted upon a review of the reports of a law enforcement officer ... including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test.

Finally, section 322.2615(12), provides that the formal hearing is “exempt from the provisions of chapter 120. The department may adopt rules for the conduct of reviews under this section.” The Department has adopted rules for the formal hearing process. Chapter 15A-6.013(2) of the Florida Administrative Code specifically provides:

The hearing officer may consider any report or photocopies of such report submitted by a law enforcement or correctional agency relating to the suspension of the driver, the administration or analysis of a breath or blood test, the maintenance of a breath testing instrument, or a refusal to submit to a breath, blood, or urine test, which has been filed prior to or at the review. Any such reports submitted to the hearing officer shall be in the record for consideration by the hearing officer.
No extrinsic evidence of authenticity as a condition precedent to admissibility is required.

The circuit court, in determining that the speeding citation was improperly considered or relied upon by the hearing officer to establish reasonable suspicion for the initial stop, constitutes a failure to apply the clearly-established provisions of section 322.2615 of the Florida Statutes and Chapter 15A-6.013(2) of the Florida Administrative Code. This failure is a departure from the essential requirements of law. See Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 713 (Fla.2012) (holding that dlearly established law can come from a variety of legal sources, including statutes and rules of courts).

Having determined that the circuit court departed from the essential requirements of law, certiorari relief will not be warranted unless we further determine “the legal error is also ‘sufficiently egregious or fundamental to fall within the limited scope’ of our certiorari jurisdiction.” Nader, 87 So.3d at 723 (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003)). An important factor in this determination is the effect the error has had or may have on other cases. See Fla. Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141 (Fla. 2d DCA 2002). In announcing its decision, the circuit court issued a written opinion which has been published and is widely available both online and in hard copy. Edgell-Gallowhur v. Fla. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 792a (Fla. 11th Cir. Ct. June 28, 2012). The circuit court’s error established an incorrect legal principle that is binding precedent on all county court judges within the Eleventh Judicial Circuit of Florida, see Fieselman v. State, 566 So.2d 768 (Fla.1990), and is capable of repetition in future formal hearings, thereby continuing to deprive the Department of its ability to sustain a driver’s license suspension based upon evidence which is properly admitted under the existing statutes and administrative regulations. See Alliston, 813 So.2d at 145-46. We therefore conclude that this departure from the essential requirements of law is sufficiently egregious or fundamental to warrant cer-tiorari relief.

CONCLUSION

We therefore grant the petition, issue the writ, and quash the decision of the circuit court. We remand to the circuit court, appellate division, for proceedings consistent with this opinion.

      . Edgell-Gallowhur had the right to request the presence of a witness at the formal hearing and to seek enforcement of a subpoena issued for that witness. § 322.615(6)(b)-(c), Fla. Stat. (2009).

      . The term “pace clock” is a commonly-understood term: "When an officer ‘pace clocks' a motorist, the officer follows the motorist for a sufficient distance at the same speed and, using the speedometer on the police vehicle, judges the speed of the motorist.” Dep’t of Highway Safety & Motor Vehicles v. Roberts, 938 So.2d 513, 515 n. 1 (Fla. 5th DCA 2006).

      . Although the circuit court opinion mentions Department of Highway Safety & Motor Vehicles v. Roberts, 938 So.2d 513 (Fla. 5th DCA 2006), we conclude that the circuit court did not rely upon Roberts, a decision which in fact supported the hearing officer’s determination in the instant case. We of course do not (and cannot) determine whether there was substantial competent evidence presented at the formal hearing, as such determination would be outside our limited scope of review. See Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000). However, we point out that in Roberts, the Fifth District reviewed a petition for second-tier certiorari where the circuit court had determined the evidence before the hearing officer was insufficient to establish the officer had reasonable suspicion to stop the driver for speeding. In Roberts, however, the only evidence to establish speeding was the officer’s affidavit, which stated that he observed the driver "traveling at 71 mph in a 45 mph speed limit area. When I pulled up behind the defendant and attempted to pull him over he traveled for approximately another tenth of a mile before pulling over.” Roberts, 938 So.2d at 514. In denying the petition, Roberts pointed out that "the officer’s report provides little or no specifics about the officer's vantage point when he reached the conclusion that [Roberts] was speeding. Although he states that he followed [Robert] for one-tenth of a mile while attempting to 'pull him over,’ ... the officer does not assert that ... he pace-clocked [Roberts] during this interval.” Id. at 515. (emphasis added). The Roberts court concluded: "Absent speculation, there is no indication here that this officer employed this methodology.” Id.

      Here, by contrast, the very information Roberts found wanting (a document or report indicating that the officer pace-clocked the driver traveling in excess of the speed limit) was included in the speeding citation, in which the officer described that he used the speedometer in his vehicle (unit number 123) and pace-clocked Edgell-Gallowhur traveling at 60 m.p.h. in a 40 m.p.h. zone. We note the contrasting facts between Roberts and the instant case because it confirms our determination that the circuit court based its decision not upon an application of Roberts, but upon its erroneous determination that the speeding citation should not have been considered by the hearing officer as competent evidence.

      . In his arrest affidavit, the officer stated that "Def. was pulled over for speeding at above location (cit.315-XEJ).” In an apparent scrivener’s error, the officer referred to the DUI citation (citation number 315-XEJ) instead of the speeding citation (citation number 5160-FWM). As can be seen from our analysis, however, this scrivener’s error was immaterial to the propriety of the hearing officer’s determinations.

      . If the circuit court did believe the speeding citation and its contents were admissible and could be considered as competent evidence in determining the validity of the initial stop, then the court ignored or reweighed this evidence, and, in doing so, also departed from the essential requirements of the law. See e.g., Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm'rs, 794 So.2d 1270 (Fla.2001) (stating, on second-tier review, district court properly reviews circuit court’s decision to determine if it reweighed or ignored evidence which supported agency decision); Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So.2d 1247 (Fla. 2d DCA 2006) (holding that where the standard of a review is competent substantial evidence, a reviewing court which ignores competent evidence in support of the decision below engages in reweighing, which is a misapplication of the standard of review and a departure from the essential requirements of law); Dep’t of Highway Safety & Motor Vehicles v. Swegheimer, 847 So.2d 545 (Fla. 5th DCA 2003) (holding circuit court misapplied the law, warranting second-tier certiorari relief, when it ignored certain competent evidence which supported decision of hearing officer).


author: DAVIS, Judge.

text:
    Charles P. PISCIOTTA, Appellant, v. Laurie PISCIOTTA, Appellee.
    No. 2D12-678.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Stacy N. Beaulieu of Beaulieu Law Group, P.A., Delray Beach, for Appellant.
    Cecilia Eaton, Bradenton, for Appellee.
   DAVIS, Judge.

Charles P. Pisciotta, the Former Husband, challenges the trial court’s final judgment on his supplemental petition for termination of alimony and the order denying his motion for rehearing. We reverse the final judgment insofar as it awards an amount of alimony to the Former Wife that is beyond the Former Husband’s ability to pay.

The Former Husband’s motion to reduce the amount of alimony he was paying alleged that he had suffered a reduction in his income and that the Former Wife’s need had lessened as a result of her being in a supportive relationship with her boyfriend. Following an evidentiary hearing, the trial court found that the Former Wife is indeed in a supportive relationship and that such reduced her monthly need to $1000. The trial court also found that the Former Husband has a permanent reduction in income that is beyond his control. The trial court imputed minimum wage, or $1200 a month, to the Former Husband and ordered that he pay the Former Wife $1000 per month. The trial court, however, made no finding that the Former Husband has the ability to pay this amount.

Because this award leaves the Former Husband with $200 per month of imputed income on which to live, it amounts to an abuse of the trial court’s discretion. See Cook v. Cook, 574 So.2d 281, 282 (Fla. 2d DCA 1991) (concluding that support award which left former husband with $63 per week on which to support himself and no assets of his own upon which to draw was an abuse of discretion).

We note that the Former Wife argues that the Former Husband has a significant income source above minimum wage and that he is supported by a paramour. However, she has not appealed the amount of income imputed to the Former Husband or the determination that the Former Husband’s income was significantly reduced through no fault of his own. And because he is the former spouse ordered to pay alimony, the potential financial support of the Former Husband by his girlfriend is not a factor for the trial court’s consideration in setting the amount of the alimony award. See Morrell v. Morrell, 113 So.3d 857, 2012 WL 832729, *1 (Fla. 2d DCA 2012) (“[F]or purposes of the alimony statute, a supportive relationship refers only to a payee’s relationship not a payor’s.”).

Accordingly, we reverse the order and remand for the trial court to set an alimony amount in keeping with the Former Wife’s need and the Former Husband’s ability to pay and to include the necessary factual findings.

Reversed and remanded.

VELLANTI and SLEET, JJ., Concur.

      . The order on appeal sets forth no basis for the determination that the Former Wife’s need has been reduced to the amount of $1000 per month in alimony. On remand, it may be necessary for the trial court to make additional findings in this regard when recalculating the alimony award in light of the Former Husband's ability to pay.


author: SILBERMAN, Chief Judge.

text:
    John R. HATTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3216.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Thomas Matthew McLaughlin, Clear-water, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Chief Judge.

In this postconviction appeal, John R. Hatton seeks review of the orders summarily denying his claim of newly discovered evidence and denying two claims of ineffective assistance of counsel after an evidentiary hearing. The postconviction court’s determination that counsel’s decisions were strategic and its corresponding denial of relief on the two claims after a hearing were proper. Although the court correctly determined that the newly discovered evidence claim was facially insufficient, the court should have allowed Hat-ton an opportunity to amend. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). Thus, we reverse and remand the order summarily denying that claim with directions for the court to afford Hatton leave to amend within a reasonable time under Spera.

Affirmed in part, reversed in part, and remanded.

KELLY and MORRIS, JJ., Concur.


author: LaROSE, Judge.

text:
    Clenton MURPHY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4810.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Clenton Murphy, Jr., appeals his judgment and habitual felony offender (HFO) sentence of twenty years in prison followed by ten years on probation. A jury convicted Mr. Murphy of attempted kidnapping. The trial court sentenced him as both a prison releasee reoffender (PRR) and a HFO. Mr. Murphy argues that he did not qualify for HFO sentencing under the statute in effect at the time of his crime. The State agrees. We have jurisdiction. See Fla. R.App. P. 9.140(b)(1)(A). We affirm Mr. Murphy’s judgment and PRR sentence but reverse his HFO sentence.

At the sentencing hearing, the State argued that Mr. Murphy qualified as a HFO under Jeffries v. State, 610 So.2d 440, 441 (Fla.1992). The State argued that a release from prison “on parole or otherwise” allowed Mr. Murphy to be sentenced as a HFO because Mr. Murphy had escaped from prison. Indeed, Jeffries recites that “[cjrimes committed after an escape from prison, for example, would fall within that portion of the statute applicable to releases from prison ‘on parole or otherwise.’Id. Jeffries was decided pursuant to the statute in effect in 1988. See § 775.084(1)(a)(2), Fla. Stat. (Supp.1988).

However, in 1996, the legislature removed the “on parole or otherwise” term. See ch. 96-388, § 44, at 2330, Laws of Fla. The statute in effect at the time of Mr. Murphy’s 2011 offense stated as follows:

(1) As used in this act:
(a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(a), if it finds that:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentenced was committed:
a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or
b. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.

§ 775.084, Fla. Stat. (2010).

We have previously held that an escape is not a release. See Thomas v. State, 741 So.2d 1246, 1246 (Fla. 2d DCA 1999) (citing section 775.021(1), which provides that criminal statutes must “be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused”). The State concedes that the trial court’s reliance on Jeffries was error and that Mr. Murphy does not qualify for HFO sentencing.

We note that the applicable PRR statute defines escape status as a qualifier under its provisions. See § 775.082(9)(a)(2). Thus, we affirm the judgment and fifteen-year mandatory PRR sentence but must reverse the HFO sentence.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.


text:
    John GOODWIN, Appellant, v. Marcus SPHATT, an individual, and Buygone, Inc., a domestic corporation, and all assigns, and successors in interests, d/b/a Island Tree Service, Appellees.
    No. 2D11-4767.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Michael J.P. Baker of Mike Fink Trial Lawyers, P.A., Fort Myers, for Appellant.
    Stuart M. Pepper, Cape Coral, for Ap-pellees.
   SILBERMAN, Chief Judge.

John Goodwin seeks review of the order dismissing his four-count complaint against Marcus Sphatt and Buygone, Inc., based on the expiration of the statute of limitations. We reverse because the allegations in the complaint do not conclusively establish that the statute of limitations had run on any of Goodwin’s claims.

Goodwin’s complaint alleged that Goodwin, Sphatt, and Buygone, Inc., entered into a business venture that was memorialized in a shareholders’ agreement on November 7, 2005. The agreement was attached to the complaint. Sphatt managed the operation of Buygone, and Goodwin was to receive a portion of the profits, dividends, and other remuneration from the operation of Buygone once it became profitable. Over the next few years Sphatt kept telling Goodwin that Buygone was not profitable. But the complaint asserted that Buygone quickly became profitable, that Sphatt misrepresented the financial information of the business, and that Goodwin only became aware of Bu-ygone’s profitability when he was informed by the IRS that he owed taxes on income realized through the corporation. Goodwin asked Sphatt for an accounting, but Sphatt refused to provide one.

Goodwin filed the complaint against Sphatt and Buygone on January 3, 2011. The complaint asserted claims for breach of the shareholders’ agreement, breach of fiduciary duty, fraud, and a shareholders’ derivative action. Sphatt and Buygone moved to dismiss the complaint on the basis that the statute of limitations had run on all of Goodwin’s claims. The trial court granted the motion and dismissed the complaint with prejudice. This was error.

Ordinarily, the statute of limitations is raised as an affirmative defense. Ambrose v. Catholic Soc. Servs., Inc., 736 So.2d 146, 149 (Fla. 5th DCA 1999). But the statute of limitations may be raised in a motion to dismiss when the violation is evident from the face of the complaint and its attachments. Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080. (Fla. 2d DCA 2002). A motion to dismiss should only be granted “under extraordinary circumstances where the facts in the complaint, taken as true, conclusively show that the action is barred by the statute of limitations.” Ambrose, 736 So.2d at 149.

Goodwin’s claims for breach of the shareholders’ agreement and the shareholders’ derivative action are subject to the five-year statute of limitations for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument.” See § 95.11(2)(b), Fla. Stat. (2005). The statute of limitations for these causes of action begins to run at the time of the breach. Technical Packaging, Inc. v. Hanchett, 992 So.2d 309, 313 (Fla. 2d DCA 2008). Goodwin’s complaint does not set forth any specific dates to establish when Sphatt allegedly breached the shareholders’ agreement. Rather, it alleges multiple breaches over an unspecified period of time. Because the facts as alleged do not conclusively show that the claims are barred, the trial court erred in granting the motion to dismiss these claims.

Goodwin’s claim for breach of fiduciary duty is subject to the four-year statute of limitations for intentional torts. § 95.11(3)(o); Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994). The statute of limitations for such a breach begins to run after the breach and resulting damages. Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007). The complaint alleges various breaches of fiduciary duty, apparently over a period of years. As we previously stated, the complaint does not conclusively establish the dates of the breaches. And there is no specific allegation regarding the dates Goodwin suffered damages as a result of the claimed breaches. Thus, dismissal was not warranted. Furthermore, Goodwin asserts that this was a continuing tort and the statute of limitations would not begin running until the tortious conduct ended. See Halkey-Roberts, 641 So.2d at 447. This assertion presents a factual question that would also preclude dismissal of the complaint. See id.

The fraud claim is also subject to a four-year statute of limitations. See § 95.11(3)(j). The fraud statute of limitations begins to run when the plaintiff knew or should have known of the defendant’s misrepresentations. See § 95.0Sl(2)(a); Ambrose, 736 So.2d at 149. Again, dismissal was not warranted because the complaint does not specify when Goodwin knew or should have known of Sphatt’s misrepresentations. And as with the previous claim, Goodwin’s assertion that this was a continuing tort should have precluded dismissal. See Halkey-Roberts, 641 So.2d at 447.

Reversed and remanded.

KELLY and SLEET, JJ., Concur.


text:
    Annette Marcadis HARRIS, Appellant, v. Andrew M. HARRIS, Appellee.
    No. 2D11-1341.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Ronald J. Russo, Tampa, for Appellant.
    James P. Knox of James P. Knox, PLLC, Tampa, and Susan E. Johnson-Velez of Susan E. Johnson-Velez, P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

Annette Marcadis Harris, the Wife, filed this direct appeal of a final judgment dissolving her marriage to Andrew M. Harris, the Husband. We reverse the final judgment because it does not include a provision for health insurance for the minor children and it also does not include a provision addressing the cost of any non-covered medical, dental, and prescription medication expenses of the children. We remand for the trial court to address these two issues. The judgment dissolving the parties’ marriage is affirmed in all other respects.

Section 61.13(l)(b), Florida Statutes (2009), requires the trial court to include in its order “a provision for health insurance for the minor child when health insurance is reasonable in cost and accessible to the child.” This section also requires that the trial court “apportion the cost of health insurance, and any noneov-ered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6).” Id.; see also § 61.30(8) (“Health insurance costs resulting from coverage ordered pursuant to s. 61.13(l)(b), and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.”); Whittingham v. Whittingham, 67 So.3d 239, 240 (Fla. 2D DCA 2010) (reversing final judgment where trial' court did not address health care coverage for child and noncovered dental, medical, and prescription medication expenses).

In the present case, the final judgment mentions neither the children’s health insurance nor their out-of-pocket medical expenses. Although the child support guidelines worksheet notes what the Husband pays for the children’s health insurance, there is no language in the final judgment mandating that he continue to pay for their insurance. The Husband acknowledges that the final judgment does not contain a provision for the children’s health insurance but contends that any error is harmless because he does pay for their health insurance. We do not agree that the error is harmless because as this court stated in Butler v. Butler, 622 So.2d 73, 74 (Fla. 2d DCA 1993), “[ejven if the husband is providing insurance, this does not abrogate the requirement of making it a legal obligation pursuant to the final judgment.” We therefore remand the case for the trial court to include in the final judgment language stating that the Husband is required to pay for the health insurance for the minor children and to also apportion to the parties in the order for support the cost of any noncovered medical, dental, and prescription medication expenses of the children.

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

WALLACE and MORRIS, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Michael R. LONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5084.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robert Krauss, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Michael R. Long appeals amended sentences entered on October 4, 2011, in four cases. Mr. Long was originally sentenced in all four cases at a single sentencing hearing in 1998. Despite the court’s repeated efforts to impose lawful sentences in these cases, the State concedes that the sentences on appeal must be reversed.

The single sentencing hearing in 1993 concerned trial court case numbers 89-CF-3175, 92-CF-1906, 92-CF-5714, and 92-CF-5816. In case number 89-CF-3175, the sentence was imposed on the revocation of community control. The sentences imposed in case number 92-CF-1906 were based on a negotiated plea for concurrent habitual offender sentences. The remaining sentences were imposed following jury trials. At the time of the 1993 sentencing proceeding, there appear to have been nineteen convictions among the four cases.

Mr. Long appealed his convictions and sentences in case numbers 92-CF-5714 and 92-CF-5816. This court affirmed the convictions but reversed the sentences and remanded for resentencing. Long v. State, 652 So.2d 1222 (Fla. 2d DCA 1995).

When those two cases returned to the trial court for resentencing in 1996, the trial court not only entered amended sentences in case numbers 92-CF-5714 and 92-CF-5816, but also entered new concurrent habitual offender sentences in case number 92-CF-1906 “pursuant to mandate.” We have no transcript from this hearing and it is not clear why the court entered new sentences in case number 92-CF-1906. The new sentences, however, appear to be the same sentences that were imposed in 1993 except for provisions for credit for time served prior to resentenc-ing and the omission of a reference to a sentencing guidelines scoresheet. The longest habitual offender sentence imposed in case number 92-CF-1906 was forty years’ imprisonment. All of the sentences in each case were imposed concurrently, but the sentences in case number 92-CF-5714 were to run consecutive to the sentences in case number 92-CF-5816.

In 2009, Mr. Long filed two motions to correct illegal sentences. The first one was filed in case number 92-CF-1906, and it was denied. This court affirmed the denial of this motion. Long v. State, 61 So.3d 1124 (Fla. 2d DCA 2011). Thus, it appears that Mr. Long has been serving lawful sentences on the convictions in case number 92-CF-1906 since 1996, if not 1993.

The second motion to correct illegal sentence was filed in case number 92-CF-5714. The trial court granted this motion in that one case. For reasons that are not clear to this court, the trial court then resentenced Mr. Long in 2011 in all four of the cases. In case number 92-CF-1906, the trial court resentenced Mr. Long under the sentencing guidelines even though Mr. Long was already serving legal habitual offender sentences on those convictions. The 1991 scoresheet used by the trial court at this sentencing hearing thus included points for the convictions in case number 92-CF-1906. As a result, Mr. Long’s recommended sentence on the 1991 scoresheet relied upon in 2011 was life imprisonment. The trial court entered amended sentences in all four of the cases, imposing life sentences on several of the convictions in case numbers 92-CF-1906, 92-CF-5714, and 92-CF-5816. The amended sentences in the four cases were rendered on October 4, 2011, and this appeal ensued.

In this appeal, Mr. Long essentially argues that (1) the convictions in three of the cases, case numbers 89-CF-3175, 92-CF-5714 and 92-CF-5816, were to be resen-tenced as sentencing guidelines cases, (2) the convictions in case number 92-CF-1906 were supposed to be sentenced under habitual offender sentencing and could not be scored as additional offenses on the sentencing guidelines scoresheet, and (3) the trial court thus committed reversible error by resentencing him based on a guidelines scoresheet that included points for the offenses in case number 92-CF-1906. The State concedes error on these points. The State adds that the trial court also erred in resentencing Mr. Long under the guidelines rather than as a habitual felony offender for the convictions in case number 92-CF-1906.

We address each case in hopes that we can assist the trial court in achieving lawful sentences on remand.

Case Number 89-CF-317S

Mr. Long was originally sentenced to five years’ imprisonment on a revocation of community control in case number 89-CF-3175. This sentence had been fully served by the time the trial court entered the 2011 amended sentence. The 2011 amended sentence again imposed a five-year term of imprisonment. Although it was proper to score this offense on the score-sheet in order to resentence Mr. Long as he should have been sentenced in 1993, the sentence had expired and no new sentence should have been imposed in 2011 in this case. Accordingly, on remand, the amended sentence imposed in 2011 in case number 89-CF-3175 should be vacated.

Case Number 92-CF-1906

Although the State is correct that the trial court could not change the sentences in this case from habitual offender sentences to guideline sentences, we conclude that the error in this case is more basic. The sentences in ease number 92-CF-1906 have been proper sentences since at least 1996. Mr. Long has been serving these legal sentences. The trial court had no authority to change these sentences, much less to transform some of the sentences into life sentences. See Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). Accordingly, on remand, the trial court should vacate the amended sentences in case number 92-CF-1906 and reinstate the amended sentences that had been entered in 1996.

Case Numbers 92-CF-571U and 92-CF-5816

The State properly concedes that the trial court was not authorized to include points for the convictions in case number 92-CF-1906 on the 1991 sentencing guidelines scoresheet used to calculate the sentences in these two cases. See Eblin v. State, 677 So.2d 388, 389 (Fla. 2d DCA 1996) (“When a defendant is being sentenced as a habitual offender for some cases and under the guidelines for other cases at the same hearing, it is improper to score the crimes for which he receives habitual offender treatment as additional offenses in calculating the guidelines sentence.”). Accordingly, we reverse the amended sentences entered in case numbers 92-CF-5714 and 92-CF-5816, and we remand for resentencing. On remand, a new scoresheet must be prepared that excludes the points for the convictions in case number 92-CF-1906. In resentenc-ing Mr. Long, the trial court is authorized to reimpose life sentences on the life-eligible offenses in ease numbers 92-CF-5714 and 92-CF-5816 if it provides a proper reason, in writing, for upward departure sentences. See State v. Betancourt, 552 So.2d 1107 (Fla.1989); Roberts v. State, 547 So.2d 129 (Fla.1989).

Reversed and remanded with directions.

LaROSE and KHOUZAM, JJ., Concur.

      . The seal of the supreme court and of this court contains the motto: "Sat Cito Si Recte.” Roughly translated, it means that a decision is reached soon enough if it is reached rightly or correctly. Twenty years seems like a long time in which to make a sentencing decision, but hopefully it will be decided “recte” on the next attempt.

      . We note that the trial court entered an amended written judgment in 2011 that differs in several respects from the prior written judgments in case number 92-CF-5714. Significantly, it changes the descriptions of the offenses on several of the counts. It also dismisses count five, which had been included in the prior written judgments. On the record provided to this court, it appears that the dismissal of this count resulted from Mr. Long’s motion to correct illegal sentence in which he asserted a double jeopardy argument with respect to the dual convictions on count one, burglary of a dwelling with assault or battery with a dangerous weapon, and count five, aggravated assault with a firearm (as a lesser included to the charged offense). At the resentencing hearing, the State conceded that "[i]t merges and dismisses by function of law.” The propriety of the dismissal of this conviction is not before this court and we express no opinion in that regard. However, the 2011 resentencing hearing reflects a significant amount of confusion about the offenses and their count numbers, and it is not entirely clear that the 2011 written judgment in case number 92-CF-5714 is correct. On remand, the trial court should ensure that an amended judgment is entered that correctly describes the offenses for which Mr. Long now stands convicted.

      . The trial court is cautioned to consider Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and State v. Fleming, 61 So.3d 399 (Fla.2011), when addressing any reasons for imposing upward departure sentences in this case.


author: WETHERELL, J.

text:
    Kim KURNOW, individually, Kim Kurnow as Trustee of the Kim Kurnow Trust Dated June 30, 2007, and Kim’s Consulting & Real Estate Investments, Inc., Appellants/Cross-Appellees, v. Charles ABBOTT, Individually, Abbott Properties, Inc., Charles Abbott Real Estate Investment Group, Inc., Krystal Mitchell, Individually and as Vice President/Broker for Abbott Properties, Inc., Appellees/Cross-Appellants.
    No. 1D12-4621.
    District Court of Appeal of Florida, First District.
    June 13, 2013.

      Todd M. LaDouceur and Chris K. Rit-chie of Galloway, Johnson, Tompkins, Burr & Smith, Pensacola, for Appellants/Cross-Appellees.
    James J. Foster and Vincent F. Kilborn, IV, of James J. Foster P.A., Miramar Beach, for Appellees/Cross-Appellants.
   WETHERELL, J.

Kim Kurnow and her business entities (collectively “Kurnow”), the plaintiffs below, appeal the trial court’s order granting Charles Abbott’s motion for a new trial on the civil conspiracy count of Kurnow’s amended complaint. Abbott and his business entities cross-appeal 1) the denial of Abbott’s motion for judgment in accordance with his motion for a directed verdict (JNOV) on the conspiracy count, and 2) the denial of Abbott Properties’ and Krystal Mitchell’s motion for a new trial on the breach of contract count in Kur-now’s amended complaint. We agree with Abbott that the trial court erred in denying his motion for directed verdict on the conspiracy count, and accordingly reverse the denial of his motion for a JNOV on that count. This disposition renders moot Kurnow’s argument on appeal that the trial court erred in granting Abbott’s motion for a new trial on the conspiracy count. We find no merit in the second issue raised on cross-appeal and affirm the denial of the motion for new trial on the breach of contract count without further comment.

Kurnow sued Abbott, several of his business entities, and Abbott’s fiancée and employee, Mitchell, to recover damages Kur-now allegedly suffered as a result of a failed business relationship between her and Abbott. Kurnow’s amended complaint raised claims of breach of contract, civil conspiracy, tortious interference with a prospective business relationship, and defamation. The conspiracy count alleged that Abbott and Mitchell conspired to defraud Kurnow of real estate commissions by manipulating inventory and sales figures and statistics, and also by taking payment from Kurnow for a real estate business franchise and then not delivering the agreed upon franchise rights to her.

Abbott and Mitchell moved for a directed verdict on the civil conspiracy count at the close of Kurnow’s case, and the trial court took the motions under advisement. The motions were renewed at the close of the evidence, and after the trial court granted directed verdict in favor of Mitchell, Abbott argued that the court should also grant his motion for directed verdict because Mitchell was the only other alleged conspirator and, without her, a conspiracy could not legally exist. Kurnow responded that “there are more entities in here than simply Charles Abbott and Krystal Mitchell,” implying that the jury could find a conspiracy between Abbott and his business entities.

The trial court denied Abbott’s motion for directed verdict without explanation and allowed the civil conspiracy count to go to the jury. The jury was instructed that a conspiracy is an agreement by two or more persons to commit a wrongful act and that its verdict on the civil conspiracy count should be for Kurnow if the greater weight of the evidence shows that Abbott and his entities conspired to defraud Kurnow of real estate commissions or her interest in the franchise. The verdict form, however, omits any reference to Abbott’s entities and asked only whether Abbott conspired to defraud Kurnow. The jury returned a verdict in favor of Kurnow on the civil conspiracy count.

Abbott timely filed a motion for a JNOV or, alternatively, motion for a new trial, on the civil conspiracy count. The motion argued, among other things, that the verdict could not legally stand because a conspiracy requires more than one person and a directed verdict was entered in favor of the only other alleged conspirator, Mitchell. The trial court denied the motion for a JNOV, but granted a new trial on the conspiracy count because the verdict form did not include reference to Abbott’s business entities and “therefore because of the evidence at trial[,] the elements of civil conspiracy could not be fulfilled.”

Kurnow timely appealed the order granting a new trial on the civil conspiracy count. Abbott timely cross-appealed the denial of his motion for a JNOV on that count, as well as the denial of the motion for a new trial on the breach of contract count.

We review the order denying Abbott’s motion for a JNOV under the de novo standard of review, giving no deference to the trial court’s ruling. Sorel v. Koonce, 53 So.3d 1225, 1227 (Fla. 1st DCA 2011). However, we will not reverse the denial of a JNOV motion if any reasonable view of the evidence supports the verdict for the non-moving party. See Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009) (“[A]n appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.”); cf. Lindon v. Dalton Hotel Corp., 49 So.3d 299, 303 (Fla. 5th DCA 2010) (“A motion for directed verdict or JNOV should be granted only if no view of the evidence could support a verdict for the nonmoving party and the trial court therefore determines that no reasonable jury could render a verdict for that party.”)

Here, viewing all of the evidence presented at trial, no reasonable jury could have returned a verdict in Kurnow’s favor on the conspiracy claim. A conspiracy requires more than one party. See Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5th DCA 2006). The only conspirators that Kurnow alleged in her amended complaint were Abbott and Mitchell; Kurnow failed to allege (or prove) that Abbott conspired with any other individual or entity to defraud her. Once the trial court granted a directed verdict in favor of Mitchell, no conspiracy was possible because only one alleged conspirator, Abbott, remained. Accordingly, upon granting a directed verdict in favor of Mitchell on the conspiracy count, the trial court should have also granted a directed verdict in favor of Abbott on that count.

We have not overlooked Kurnow’s argument that denial of the motion for a JNOV was proper because she presented evidence that Abbott conspired with his business entities to defraud her. The record does not support this argument and, even if it did, the problem with this argument is that the amended complaint did not allege that Abbott conspired with his business entities and, moreover, an actionable conspiracy generally cannot exist between an entity and its officers, agents, or employees. See, e.g., Rivers v. Dillards Dept. Store, Inc., 698 So.2d 1328, 1333 (Fla. 1st DCA 1997); Hoon v. Pate Const. Co., 607 So.2d 423, 430 (Fla. 4th DCA 1992).

In sum, for the reasons stated above, the trial court erred in denying Abbott’s motion for directed verdict on the conspiracy count. Accordingly, we reverse the order denying Abbott’s motion for a JNOV and remand for entry of judgment in favor of Abbott on that count.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

ROWE and MARSTILLER, JJ., concur.

      . Although not entirely clear in the record, it appears that this language was added to the jury instructions after the argument on Abbott’s renewed motion for directed verdict because the proposed jury instructions prepared by Kurnow do not include any language regarding Abbott's entities and, instead, refer only to "Charles Abbott and Krystal Mitchell" conspiring against Kurnow.

      . The jury also returned a verdict in favor of Kurnow on the breach of contract and defamation counts. The trial court granted a directed verdict in favor of Abbott on the tor-tious interference count.

      .The motion also sought a new trial on the breach of contract count on behalf of Abbott Properties and Mitchell. The trial court denied that portion of the motion, but clarified that the judgment on the breach of contract count is only against Abbott Properties.

      . The elements of a civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy.

        Walters, 931 So.2d at 140 (emphasis added).


author: PER CURIAM.

text:
    Jeffrey E. ALLEN, Former Husband, Appellant, v. Ruth ALLEN, Wife, Appellee.
    No. 1D12-2825.
    District Court of Appeal of Florida, First District.
    June 13, 2013.

      Natalie A. Tuttle, Waynesville, Georgia, for Appellant.
    James P. Brunet of Law Office of James P. Brunet, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We reverse and remand the Second Amended Final Judgment of Dissolution of Marriage to the trial court to correct the following errors and inconsistencies in the judgment.

First, provisions in the paragraphs entitled “PRIVATE SCHOOL ” and “CHILD SUPPORT” are inconsistent with provisions in the paragraph entitled “CHILD-RELATED EXPENSES.” The specific provisions read as follows:

3. PRIVATE SCHOOL: ... The mother is to pay all costs but said costs shall be factored into the child support calculation, along with other statutorily permissible expenses related to the child (including but not limited to health insurance premiums and child care expenses).
CHILD SUPPORT: [I]n view of the timesharing, of the mother’s paying all of the tuition and the father’s voluntarily underemployment, neither party shall pay child support at this time....
4. CHILD-RELATED EXPENSES: “Child-related expenses” means associated fees, religious school tuition and associated fees, before and after school care, school field trip costs, summer camps, sports registration fees, and extracurricular activities fees. Said child related expenses shall be divided by the parties as follows: 60% to wife and 40% to husband. All other expenses shall be split between the parties....

In the above-quoted provisions, the trial court appears to distinguish between “child support” and “child-related expenses.” But as written, the provisions define “child support” to include “all [private school] costs” and “child care expenses,” and at the same time, define “child-related expenses” to include “associated fees, religious school tuition and associated fees, [and] before and after school care.” It is unclear what the stand-alone child-related expense item “associated fees” refers to, but it seems to mean fees associated with the child’s private school enrollment, which appear already to be included in “all [private school] costs”— and thus, a component of child support. In addition, insofar as the child attends a private Christian school, the child-related expense items “religious school tuition and associated fees” appear duplicative of the child support item private school “costs.” Further, it is not clear how the child-related expense item “before and after school care” differs from the child support item “child care expenses.” On remand, the trial court shall clarify which items fall within child support, and which items comprise child-related expenses.

Second, in the equitable distribution portion of the final judgment, the trial court incorrectly valued the wife’s Great West retirement account at $8,059.92. The evidence in the record establishes an account value of exactly twice that amount, or $16,119.84. Because this error cannot be corrected in isolation, on remand, the trial court shall reconsider the equitable distribution scheme. See Tilchin v. Tilchin, 51 So.3d 596, 597-98 (Fla. 2d DCA 2011).

Finally, the trial court erroneously awarded the wife attorney’s fees and costs, without articulating findings in the final judgment regarding the wife’s financial need and the husband’s ability to pay. See § 61.16(1), Fla. Stat. (2011); Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002). On remand, the trial court shall reconsider entitlement to attorney’s fees in light of the recalculated equitable distribution. See Crick v. Crick, 78 So.3d 696, 699 (Fla. 2d DCA 2012).

REVERSED and REMANDED with directions.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Roderick V. HAYGOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3952.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Roderick V. Haygood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the May 9, 2012, Order on Defendant’s Motion for Post-Conviction Relief Pursuant to Rule 3.850, in Baker County Circuit Court case number 02-2007-CF-000360-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

BENTON, C.J., THOMAS and CLARK, JJ., concur.


text:
    Yvelan PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4264.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Yvelan Pierre, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Yvelan Pierre, challenges the trial court’s order denying his motions for post-conviction relief. We affirm the denial of all but two of Appellant’s claims without further discussion. In his fourth and fifth claims for relief, Appellant alleged that his counsel was ineffective in failing to protect his speedy trial rights. The trial court denied these claims by finding that counsel made a strategic decision by refusing to demand speedy trial. However, a determination that an action is strategic generally requires an evidentiary hearing. Hamilton v. State, 979 So.2d 420, 422 (Fla. 2d DCA 2008). Here, these claims were not addressed at an evidentia-ry hearing and the court’s factual findings were not supported by record attachments. We, therefore, reverse the summary denial of claims four and five and remand with directions for the trial court to attach portions of the record that conclusively refute Appellant’s claims or, if such documents are not available, to conduct an evidentiary hearing to determine if counsel made a strategic decision by waiving Appellant’s right to a speedy trial.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    T.G., Father of K.G., A.L. and A.L., and the Florida Department of Children and Families, Appellants, v. K.L., Mother of K.G., A.L., and A.L., Appellee.
    No. 1D13-0307.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Wesley Cassano, Statewide Guardian ad Litem, Jacksonville; Maryanne Yeomans of Aguilar, Sieron & Yeomans, P.A., Orange Park; Susan Barber, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee; Ward L. Metzger, Children’s Legal Services, Department of Children and Families, Jacksonville, for Appellants.
    Jennifer Ironmonger, Guardian ad Li-tem, Jacksonville; David Elder, Assistant District Legal Counsel, Department of Children and Families, Orange Park; Gertrude Kehne, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Green Cove Springs; Kelley Schaeffer, Guardian ad Litem Program, Tavares, for Appellees.
   PER CURIAM.

Appellee’s Motion to Dismiss, filed on March 13, 2013, is granted and the appeal is dismissed.

BENTON, C. J., THOMAS and CLARK, JJ., concur.


text:
    Joseph PRESLEY, Appellant, v. Anisha WIMBISH, Appellee.
    No. 1D13-1517.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Joseph Presley, pro se, Appellant.
    Anisha Wimbish, pro se, Appellee.
   PER CURIAM.

The Court has determined that this appeal is premature as it was taken from a non-final order. T.H. v. Dep’t of Children & Families, 736 So.2d 126 (Fla. 1st DCA 1999) (holding order was non-final where order reserved jurisdiction to determine integrally-related visitation and child support issues). Accordingly, the appeal is dismissed without prejudice to appellant’s right to seek appellate review upon rendition of a final order that resolves all pending issues.

BENTON, C. J., THOMAS and CLARK, JJ., concur.


text:
    Amber Marie SWEAT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1540.
    District Court of Appeal of Florida, First District.
    June 13, 2013.
    Greg T. Forhan, Starke, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We find the motion to disqualify legally sufficient, but withhold issuing the writ, as we are confident that the judge will recuse himself in this case.

BENTON, C.J., THOMAS and CLARK, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Jonathan PACHECO, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1763.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.
    Ryan J. Sydejko of Loren Rhoton, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jonathan Pacheco pleaded no contest to burglary and kidnapping, but he moved to withdraw his plea shortly after sentencing. See Fla. R. Crim. P. 3.170(i). Among his several grounds were allegations that he was incompetent to enter the plea and that his counsel was ineffective in that regard. The circuit court summarily denied the grounds based on Pacheco’s alleged incompetency, finding that the transcript of the plea and sentencing hearing refuted the allegations. We reverse the summary denial of those issues and remand for the circuit court to hold an evidentiary hearing.

Pacheco’s competence to proceed was questioned months before he entered his plea. He was evaluated by two doctors, one in May 2009, the other in June. Both noted his long history of mental illness dating from early childhood. Each doctor found him incompetent to stand trial but posited that he could be returned to competency with the proper medication. Both agreed that he must be maintained on medication to insure his competency.

In September 2009, a psychologist found Pacheco competent to proceed. His report stated that Pacheco “has been taking his medications as prescribed, which have been instrumental in managing the symptoms of mental illness, which include auditory hallucinations, paranoia, irritability, and agitation, and mood stability.” The psychologist recommended that Pacheco “be followed by the jail psychiatrist ... in order to monitor mental status and be maintained on his current psychotropic regimen.”

The trial court found Pacheco competent to proceed on October 2, 2009. His plea and sentencing hearing was held in December 2009 before Judge Angela Cowden. At the hearing, Pacheco gave vague answers to some of the judge’s questions. For example, when the judge asked Pacheco if he understood a certain charge, he responded “[tjhat’s what you just said.” The judge replied “yes” and Pacheco stated “OK, yeah.” Then Judge Cowden asked if he was under the influence of any drugs, alcohol, or medicine, and Pacheco said “no.” She delved deeper into his answer:

Judge Cowden: Have you ever been diagnosed with a mental illness or an emotional disturbance?
Pacheco: Yeah.
Judge Cowden: Alright, Sir. Did they prescribe medicine for you?
Pacheco: Yes.
Judge Cowden: Does that affect your mind?
Pacheco: What? Like how?
Judge Cowden: Does it make it difficult for you to understand what’s going on or does it make you sleepy or woozy or something like that?
Pacheco: Yeah-yes
Judge Cowden: Is that why you didn’t take it today?
Pacheco: I haven’t been taking it.... Because I — because it’s making me feel different and I still hear the voices. I see the doctor Friday.
Judge Cowden: Okay, so the question here though, is do you know everything that’s going on in the courtroom today?
Pacheco: I guess.

When the allegations of a rule 3.170(£) motion are legally sufficient and not conclusively refuted by the record, the court must conduct an evidentiary hearing. See White v. State, 15 So.3d 833, 834 (Fla. 2d DCA 2009). Pacheco’s motion claimed that he was incompetent to enter into .the plea agreement, a legally sufficient basis for withdrawing a plea. Cf. Stokes v. State, 938 So.2d 644 (Fla. 2d DCA 2006). Moreover, the transcript of the plea and sentencing hearing did not refute Pacheco’s claim. Rather, considered with the record evidence of Pacheco’s earlier incompetency, along with the admonitions of the mental health evaluators that Pacheco’s continued competence required that he be maintained on medication, the transcript appears to cast doubt on his competence to enter the plea. Accordingly, Pacheco is entitled to an evidentiary hearing on his claims asserting incompetency. See White, 15 So.3d at 834.

It appears that Pacheco retained counsel to file his rule 3.170(0 motion. Because he alleged ineffective assistance of his original counsel connected to the competency issue, we note that if he is now indigent, the circuit court should appoint conflict-free counsel to represent him.

Reversed and remanded.

SILBERMAN, C.J., and MORRIS, J, Concur.


text:
    Christopher D. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1545.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Christopher D. Daniels appeals the revocation of his probation and the resulting forty-two-month sentence for sale or delivery of cocaine. The State concedes error as to Daniels’ single argument on appeal, that the circuit court erred in denying his motion to correct sentencing error. We affirm the revocation without further comment, but we reverse the sentence and remand for the circuit court to resentence Daniels based on a corrected scoresheet.

After Daniels admitted to violating his probation, the court held a “danger hearing” to determine whether Daniels posed a danger to the community. See § 948.06(8)(d), Fla. Stat. (2009). The hearing was required because Daniels previously had been convicted of murder in 1996. See § 948.06(8)(d)(l), (b)(2), (c)(2). The court concluded that Daniels did pose a danger to the community, but it also noted that this was “essentially a moot issue, because irrespective of whether I find him a danger or not, my resulting sentence would be the same.” The court revoked Daniels’ probation and sentenced him “to a prison sentence consistent with that recommended by the scoresheet.” The scoresheet prescribed a lowest permissible prison sentence of 41.85 months; the court sentenced Daniels to forty-two months in prison.

After filing his notice of appeal, Daniels filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). He pointed out that the “prior record” section of his scoresheet reflected a conviction for “second-degree murder,” a level 10 offense that added twenty-nine points to the scoresheet. See §§ 921.022(3)0), 922.024(l)(a), Fla. Stat. (2009). He argued, however, that his counsel had asserted at the danger hearing that the conviction was for second-degree felony murder, a level 9 offense that would add only twenty-three points to the score-sheet. See §§ 921.022(3)0), 922.024(l)(a). The circuit court summarily denied the motion, stating in its order that the “score-sheet reflects that the Defendant shows a prior conviction for second-degree murder.” The court concluded that “[b]ecause the sentence imposed could have been imposed irrespective of the calculation, the sentence is not illegal.”

Daniels correctly argues, and the State agrees, that the circuit court applied the wrong standard when it denied his motion. “When scoresheet error is presented [by motion under rule 3.800(b) ], any error is harmless if the record conclusively shows that the trial court would, have imposed the same sentence using a correct scoresheet.” Brooks v. State, 969 So.2d 238, 241 (Fla.2007). The record before us does not conclusively show that the circuit court would have imposed a sentence of forty-two months’ prison if the scoresheet had accurately reflected a prior conviction for second-degree felony murder. See Shorter v. State, 14 So.3d 1063 (Fla. 2d DCA 2009) (remanding for resen-tencing when the trial court had imposed the minimum sentence reflected on an erroneous scoresheet and the appellate court could not be certain whether the court would have imposed the same sentence on a scoresheet corrected to reflect a lower point value). To the contrary, the court’s remarks at the danger hearing, and the fact that the forty-two-month figure appears merely to be rounded up from the scoresheet minimum sentence of 41.85 months, evidence an intention to impose a sentence consistent with the scoresheet minimum. We therefore remand for the trial court to correct the scoresheet as necessary after reviewing Daniels’ 1996 judgment and to resentence him based on the corrected scoresheet.

Revocation affirmed; sentence reversed and remanded.

DAVIS and WALLACE, JJ., Concur.

      . The six-point difference between the level 9 and 10 values represents a 4.5-month difference in the lowest permissible sentence. See § 922.024(2).

      . At the danger hearing, the State presented a certified copy of Daniels’ 1996 judgment, but the original record in this appeal did not include a copy of that conviction. Additionally, Daniels did not attach a copy of the 1996 judgment to his rule 3.800(b) motion, and the circuit court apparently did not review the face of the judgment when resolving the motion. The State has supplemented our record with a copy of the 1996 judgment, which does reflect a conviction for second-degree felony murder. Still, the instructions included in this opinion require the circuit court to review its records afresh and correct the score-sheet accordingly.


author: WALLACE, Judge.

text:
    Joshua M. O’BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-415.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Joshua M. O’Berry appeals from an order denying his motion to withdraw his no contest plea after sentencing, filed in accordance with Florida Rule of Criminal Procedure 3.170(0- In his motion, Mr. O’Berry alleged that the State violated a plea agreement to recommend a sentence of forty years’ prison by urging the trial court to sentence him instead to life. Because we conclude that the State breached the plea agreement, we reverse the order under review and remand for resentencing before a different judge.

I. THE FACTS AND PROCEDURAL BACKGROUND

Mr. O’Berry pleaded no contest to the charge of burglary of a dwelling with an assault or battery, a first-degree felony punishable by life in prison. See § 810.02(2)(a), Fla. Stat. (2010). During the hearing on the change of plea, Mr. O’Berry’s counsel explained to the trial court: “It’s going to be an open plea to the Court. The State indicated that they would be recommending 40 years in prison but there is no cap and the Defense ... can argue for ... a lawful sentence.” Then, Mr. O’Berry’s counsel submitted a written acknowledgment and waiver of rights form that recited these terms. The assistant state attorney (the ASA) made no comment on defense counsel’s announcement of the terms of the plea agreement.

Two weeks later, at the sentencing hearing, the ASA — the same prosecutor who represented the State at the change of plea hearing — addressed the trial court as follows:

Well, [Y]our Honor, our original offer on this case was life. I discussed it with [defense counsel] for a plea offer at one point and we came down to 40 years for a negotiated plea. However, that never panned out. So we’re here in front of you on a sentencing hearing with no cap. The first charge ... is a burglary with a battery. That’s a first degree felony punishable by life. So the State is asking for the maximum in this case, [Y]our Honor.

(Emphasis added.) Mr. O’Berry’s counsel immediately protested that the State had promised to recommend forty years, to which the ASA responded, “We didn’t do a cap though.” Mr. O’Berry’s counsel replied, “Well, but that’s not part of the plea agreement.” Then the ASA explained: “We came down to a negotiated plea for 40 years. That wasn’t accepted.” After the presentation of evidence, the trial court asked the State what sentence it was recommending, and the ASA answered, ‘Well, we did propose I guess a recommended offer of 40 years.” The sentencing hearing concluded with the trial court sentencing Mr. O’Berry to fifty years in prison.

At a subsequent hearing on Mr. O’Berry’s motion to withdraw his plea, he argued that the State had violated the terms of the plea agreement because it did not honor its promise to recommend a forty-year sentence. Initially, the State maintained that its statements to the trial court at sentencing did not constitute a violation of the plea agreement, but it ultimately conceded that it had asked “for the maximum” during the sentencing hearing and had informed the sentencing judge that the “original offer was life.” In denying the motion, the trial court found that there had been an agreement to recommend a forty-year sentence but that the State “violated it quickly and quickly corrected it.” The trial court further explained that its sentencing decision was based on its own independent assessment and was not influenced by the State’s “somewhat reluctant acknowledgment” that it had agreed to recommend a forty-year sentence.

II. DISCUSSION

Mr. O’Berry filed his motion under rule 3.170(i), which provides, “A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in [rule] 9.140(b)(2)(A)(ii)(a)-(e)-” One of the grounds specified in rule 9.140(b)(2)(A)(ii) is a violation of a plea agreement by the State, and this is the ground upon which Mr. O’Berry based his motion. On appeal, the State argues, “Although the State had apparently agreed to recommend 40 years at the sentencing hearing, there was no agreement as to sentence.” Although the State’s assessment of the circumstances is accurate, we conclude that Mr. O’Berry is entitled to relief.

In explaining our decision to reverse, we highlight two similar but distinct provisions in the Florida Rules of Criminal Procedure pertaining to plea agreements that are frequently used in criminal cases. The more common scenario — at least insofar as is reflected in our appellate decisions— involves the “negotiated plea” or “plea deal,” where the State agrees to a specific sentence in exchange for the defendant’s plea of guilty or no contest. This type of agreement is described in subsection (iii) of Florida Rule of Criminal Procedure Rule 3.171(b)(1)(A). On the other hand, subsection (ii) of rule 3.171(b)(1)(A) provides that a prosecuting attorney may “make a recommendation, or agree not to oppose the defendant’s request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the trial judge.”

When a defendant has entered into an agreement with the State for a specified sentence in accordance with rule 3.171(b)(l)(A)(iii), if the State fulfills its promise but the trial court declines to honor the agreement, the defendant would be entitled to withdraw his plea. Goins v. State, 672 So.2d 30, 31 (Fla.1996) (“[W]hen there has been a firm agreement for a specified sentence and the judge determines to impose a greater sentence, the defendant has the right to withdraw the plea.”); Rodriguez v. State, 610 So.2d 476, 477 (Fla. 2d DCA 1992) (reversing the trial court’s denial of a motion to withdraw plea where the sentence imposed exceeded the sentence agreed to by the State). But where the State fulfills its promise to make a nonbinding recommendation under rule 3.171(b)(l)(A)(ii) and the trial court declines to sentence the defendant in accordance with that recommendation, the defendant would have no recourse under rule 3.170(£) because there is no breach of the plea agreement. State v. Adams, 342 So.2d 818, 820 (Fla.1977) (“The only bargain was that the state attorney would make a recommendation to the court. This was done. When the sentence was imposed, the judge was not bound by the recommendation of the state attorney or any negotiations which occurred between the state attorney and the defense counsel.”); J.A.N. v. State, 947 So.2d 1258, 1259 (Fla. 5th DCA 2007) (holding that where the trial court declined to follow a nonbinding recommendation made in accordance with the plea agreement, the defendant did not have a right to withdraw his plea).

On the other hand, when the State fails to honor a plea agreement, whether it involves a negotiated plea for a specified sentence or a promise to make a nonbinding recommendation, the violation of the agreement is akin to a breach of contract for which the defendant is entitled to seek a remedy. See Tillman v. State, 522 So.2d 14, 16 (Fla.1988) (“A defendant agrees to plead guilty based specifically on the agreement he or she has made with the state. Any breach of that agreement by the state renders the plea involuntary, as the plea is based on an agreement that was not fulfilled.”); Mehl v. State, 958 So.2d 465, 468 (Fla. 4th DCA 2007) (“[T]he mere appearance of a breach by the state is itself grounds for relief regardless of whether the breach affected the sentence.”); A.D.W. v. State, 777 So.2d 1101, 1104 (Fla. 2d DCA 2001) (observing that the rules of contract law apply to plea agreements).

In this case, although the record supports the State’s position that it offered a forty-year plea deal (a rule 3.171(b)(l)(A)(iii) agreement) that Mr. O’Berry rejected, it also supports Mr. O’Berry’s claim that the State had promised to recommend a forty-year sentence (a rule 3.171(b)(l)(A)(ii) agreement) and failed to uphold its end of the bargain. See Glover v. State, 469 So.2d 771, 774 (Fla. 1st DCA 1984) (“Implicit in any such plea bargain, which involves no obligation by the trial court to follow such recommendation, is that the prosecutor will make a reasonable effort in persuading the sentencing judge of the merit of such recommendation.”).

The outcome of this case is controlled by Tillman, 522 So.2d 14, which was itself controlled by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971):

Our decision in this case is controlled by the United States Supreme Court’s opinion in Santobello .... In that case, a New York prosecutor entered into a plea agreement with the defendant whereby the defendant would plead guilty to two misdemeanors, and the prosecutor would not make any sentence recommendation. In the interim between the plea agreement and the sentencing, the prosecutor who made the deal retired, and a new one was appointed to replace him. Unaware of the agreement, the new prosecutor recommended the maximum sentence, which the judge accepted.
As in this case, the judge in Santobel-lo informed the attorneys that he was not at all influenced by the improper recommendation. The United States Supreme Court held that “when a plea rests to any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262, 92 S.Ct. at 499. The Court noted that it was of no matter that the judge stated on the record that he would not be influenced by the inadvertent breach of the agreement. The mere breach of the agreement, regardless of the influence that breach would carry, or whether it was an intentional breach, was cause for remand.

Tillman, 522 So.2d at 15 (emphasis added). In this case, as in both Santobello and Tillman, the trial judge recognized that the State had violated the plea agreement but asserted that the improper recommendation did not influence his sentencing decision. We have no reason to doubt the trial judge’s statement. Nevertheless, the State broke the plea agreement, and Mr. O’Berry is entitled to relief. See Santobello, 404 U.S. at 262-63, 92 S.Ct. 495:

We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration .... We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.

III. THE APPROPRIATE REMEDY

In Santobello, the Court left the decision about the appropriate relief for the prosecution’s breach of the bargain to the state court:

The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.

404 U.S. at 263, 92 S.Ct. 495. In Tillman, the Supreme Court of Florida remanded for resentencing before a new judge, noting that the defendant in that case had not sought to withdraw his plea. This case is distinguishable from Tillman because Mr. O’Berry moved to withdraw his plea under rule 3.170(£). Thus the question before us is whether the circumstances of this case require remand for specific performance of the agreement or whether, on remand, Mr. O’Berry should be given the opportunity to withdraw his plea. Under the circumstances, we agree with the reasoning of the Fourth District in Mehl, 958 So.2d at 468:

We see no reason to disturb the refusal to vacate the plea in this case. Omitting any suggestion that the plea was otherwise involuntary, defendant argues the state breached its undertaking by presenting evidence and argument plainly barred by the agreement. We conclude that defendant’s consideration for the agreement can be fully satisfied by remanding for resentencing before a different judge. On resentencing the new judge shall not be made aware of the sentence imposed by the first judge.

See also Hunt v. State, 613 So.2d 893, 898 (Fla.1992) (holding that where the State breaches its agreement with the defendant, “specific performance is an adequate remedy”).

IY. CONCLUSION

Accordingly, we reverse the order denying Mr. ©’Berry’s motion and remand for resentencing before a different judge. As in Mehl, the new judge shall not be informed of the sentence imposed by the first judge. We caution Mr. O’Berry that on remand the trial court will have the option of sentencing him to life in prison, the maximum penalty.

Reversed and remanded for resentenc-ing before a different judge.

VILLANTI and MORRIS, JJ., Concur.

      . Mr. O'Berry also entered no-contest pleas to two third-degree felonies and a misdemeanor, but his motion to withdraw his plea pertains solely to the burglary-with-assault charge.