source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerry Joe DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3024.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2009.
    Rehearing Denied March 18, 2009.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson and Joel Arnold, Assistant Public Defenders, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Shelly A.R. Chichester, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jerry Joe Davis, challenges his conviction and sentence for second-degree murder. Because the trial court fundamentally erred in giving the standard jury instruction for manslaughter by act, we REVERSE Appellant’s conviction and sentence and REMAND for a new trial. Montgomery v. State, No. 1D07-4688, (Fla. 1st DCA Dec. 31, 2008).

HAWKES, C.J., WEBSTER and DAVIS, JJ., concur.


text:
    Richard Lowell BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-694.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.
    James S. Purdy, Public Defender, and James Wulchak and Craig Atack, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm without prejudice to raise the issue in a motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure.

AFFIRMED.

SAWAYA, ORFINGER, and EVANDER, JJ., concur.


author: WALLACE, Judge.

text:
    Lyle LARSON, Petitioner, v. STATE FARM FLORIDA INSURANCE COMPANY, Respondent.
    No. 2D13-2685.
    District Court of Appeal of Florida, Second District.
    March 19, 2014.
    George A. Yaka and Nancy A. Lauten of Vaka Law Group, Tampa; and Hans Peter B. Haahr of Haahr Law Group, P.L., St. Petersburg, for Petitioner.
    David W. Molhem of Molhem & Fraley, P.A., Tampa, for Respondent.
   WALLACE, Judge.

Lyle Larson petitions for review by cer-tiorari of a nonfinal order entered in his action for the alleged breach of his homeowners’ insurance policy written by State Farm Florida Insurance Company. The underlying action stems from sinkhole damage to Mr. Larson’s residence. The order under review rules that State Farm is not obligated to tender payment for the subsurface repairs to the residence under an appraisal award until Mr. Larson enters into a contract for the subsurface repairs. Because Mr. Larson has not demonstrated that the order under review causes material harm that cannot be remedied on appeal, we dismiss the petition.

I. THE FACTS AND PROCEDURAL HISTORY

Mr. Larson had a homeowner’s policy with State Farm effective from February 21, 2011, to February 21, 2012. The policy provided coverage for sinkhole damage, and Mr. Larson sustained sinkhole damage to his home on May 23, 2011. When Mr. Larson and State Farm could not agree on the amount of the loss, Mr. Larson filed the underlying action against State Farm.

Because this case comes to us as a petition for a writ of common law certiorari, we have only the appendices provided by the parties for a record. The appendices do not include the complaint filed by Mr. Larson or State Farm’s answer. We also do not know if State Farm pleaded a counterclaim or if Mr. Larson filed a reply. Thus we are left to guess about the claims asserted by the parties in the underlying action.

Mr. Larson moved for an order compelling an appraisal in accordance with the appraisal provisions in the policy. State Farm opposed the requested appraisal. Relying on the loss settlement provisions of the sinkhole endorsement to the policy, State Farm argued that Mr. Larson was not entitled to an appraisal until he had entered into a contract for the repair of the subsurface damage to the residence. The circuit court disagreed with State Farm’s argument and granted Mr. Larson’s motion to compel an appraisal.

The appraisers selected by the parties conducted the appraisal in accordance with the provisions of the policy. After the appraisers evaluated the claim at $187,238.01, State Farm filed a “motion to enforce insurance policy’s loss settlement provision.” By this motion, State Farm sought an order compelling Mr. Larson to enter into a contract for the subsurface repairs as a condition precedent to its obligation to tender payment for the subsurface repairs. It is the order resolving this motion for which State Farm seeks review by the petition for common law writ of certiorari. Mr. Larson filed a response to State Farm’s motion and a cross-motion seeking the confirmation of the appraisal award and the entry of final judgment in accordance with the appraisal.

The circuit court concluded that it could not compel Mr. Larson to enter into a contract for the subsurface repairs to the damaged residence. However, the circuit court also ruled that State Farm had no obligation to tender payment for the subsurface repairs until Mr. Larson entered into a contract for those repairs. In accordance with this ruling, the circuit court denied Mr. Larson’s cross-motion for confirmation of the appraisal award and for the entry of final judgment. Mr. Larson’s petition for certiorari followed.

II. THE STANDARD OF REVIEW

Before considering Mr. Larson’s petition and State Farm’s response, we note the applicable standard of review:

The standard by which a petition for writ of certiorari is reviewed is quite narrow. A petitioner seeking a writ of common law certiorari “must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Elements two and three constitute a jurisdictional test, and “[i]f the jurisdie-tional prongs of the standard three-part test are not fulfilled, then the petition should be dismissed rather than denied.” Id. at 649.

Rogan v. Oliver, 110 So.3d 980, 982 (Fla. 2d DCA 2013) (alteration in original).

III. FAILURE TO MEET THE JURISDICTIONAL TEST

Here, Mr. Larson argues that the subject order causes him material injury that cannot be remedied on postjudgment appeal because the order precludes him from obtaining a final, appealable order until he enters into a contract for the subsurface repairs. In Mr. Larson’s Anew, the order under review presents him with a “Catch-22.” Under the order, his only avenue for collection of the balance due under the appraisal award and the entry of a judgment against State Farm is to enter into a binding contract for the subsurface repairs. But to do so compels Mr. Larson to “comply Avith the very order he challenges as being a departure from the essential requirements of law.” As Mr. Larson sees it, “[hjaving to erroneously enter into what would be a binding and enforceable repair contract constitutes the required irreparable harm which cannot be undone or corrected by a postjudgment appeal.” We disagree.

Materials in the appendices suggest that Mr. Larson’s complaint includes a claim for breach of the insurance contract. If appropriate, Mr. Larson could amend his breach of contract claim to seek damages based on State Farm’s refusal to pay for the appraised cost of the subsurface repairs. Because the circuit court has determined that State Farm is not obligated to tender payment for that loss until Mr. Larson enters into a contract for the subsurface repairs, a potential final judgment would likely be adverse to Mr. Larson on that claim. Nevertheless, Mr. Larson could obtain a final, appealable order on his breach of contract claim rvithout being required to enter into a contract for subsurface repairs.

Another way of looking at the jurisdictional issue before us is to question whether State Farm’s motion was even authorized. If the motion is based on a counterclaim or a defense raised by State Farm, such a pleading is not included in the appendices. We might view State Farm’s motion as an attempt at a complaint for a declaratory judgment seeking a determination of the rights and responsibilities of the contracting parties following the completion of the appraisal. But the motion and the order ruling on the motion do not result in a final judgment or a nonfinal order subject to re-view in this court. Although we are in doubt about the issues remaining to be resolved in the trial court, the order under review would not appear to preclude either party from amending the pleadings to seek a declaratory judgment. We presume that such a judgment would be appealable. Although the resulting declaratory judgment may be adverse to Mr. Larson, he would not be required to enter into a contract for the subsurface repairs to appeal that judgment.

IV. CONCLUSION

For the forgoing reasons, Mr. Larson cannot demonstrate that the order under review causes him material harm that cannot be remedied on appeal. Accordingly, we are required to dismiss his petition.

Dismissed.

ALTENBERND and SLEET, JJ., Concur.

      . The appraisal award was as follows: ''Dwelling-Stabilization,” $140,515; "Dwelling-Cosmetic Repairs,” $40,104.73; and "Dwelling Extension-Cosmetic Repairs,” $6618.28.

      . Joseph Heller, Catch-22 (1961).

      . Our record does not reflect the reason or reasons behind Mr. Larson's objection to entering into a contract for the subsurface repairs to his sinkhole-damaged residence.

      .We do not reach the merits of the parties' arguments. However, the Fifth District’s recent decision in State Farm Florida Insurance Co. v. Phillips, 134 So.3d 505, 2014 WL 560853, 39 Fla. L. Weekly D361 (Fla. 5th DCA Feb. 14, 2014), addresses one of the substantive issues that the parties have argued.


text:
    Danny W. KING, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4192.
    District Court of Appeal of Florida, First District.
    March 21, 2014.
    Kerry Adkison, Chipley, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief. We affirm the denial of grounds two and four. However, for the reasons discussed below, we reverse and remand for the trial court to hold an evidentiary hearing on grounds one and three.

Following a plea, the appellant was convicted of trafficking in methamphetamine (more than 200 grams), unlawful possession of a listed chemical and possession of drug paraphernalia and was sentenced to concurrent terms totaling fifteen years’ imprisonment. The appellant was sentenced to a fifteen-year minimum mandatory term for trafficking in more than 200 grams. In his postconviction motion, which was filed more than two years after his judgment and sentence became final, he alleges a claim of newly discovered evidence and a Brady violation. The appellant alleges that his conviction for trafficking in methamphetamine was based on police discovering four containers believed to contain “a liquid which was consistent in appearance with methamphetamine oil... weighing 284, 14, 288 and 14 grams.” These samples were submitted to the FDLE for analysis on October 1, 2009. The FDLE analysis concluded that “No drugs per Florida Statute 893 were identified.” The appellant alleges that this report was never turned over to him or counsel during the discovery process. He also attached an affidavit from his trial attorney indicating that this report was never turned over to him during the discovery process and the State never informed him that mixture tested negative for the presence of methamphetamines. Appellant’s trial attorney further alleges that he advised the appellant to enter a plea based on the State’s verbal representations that the mixtures had tested positive for over 200 grams of methamphet-amines. Appellant’s trial attorney attests that “had [he] known the result of the FDLE Analysis Report was negative for the presence of drugs then he would not have advised the Defendant to enter the plea and accept the sentence the Defendant received.” The appellant alleges that neither he nor counsel became aware of the FDLE report until the appellant’s family received the report in February of 2013, following a public records request.

The trial court held that the claim was untimely as the report could have been discovered earlier through the exercise of due diligence. In response to a Toler order, the State asserts that the appellant was aware items had been handed over for testing and that a lab analyst was listed as a potential State witness. However, “a defendant’s knowledge of a discovery request does not mean that he or she did not act with due diligence once defendant actually became aware of the existence of exculpatory evidence.” See Polk v. State, 906 So.2d 1212 (Fla. 1st DCA 2005). Thus, a “defendant’s duty to exercise due diligence in reviewing Brady material applies only after the state discloses it.” Id. (citation omitted). Because the appellant in this case has alleged that the state never disclosed the results of the FDLE tests, and he has alleged that the tests are exculpatory, he has alleged facially sufficient grounds to excuse his failure to timely seek postconviction relief. On appeal, the State notes that according to the arrest report there was other evidence of methamphetamine and listed chemicals found during the search. However, we are unable to conclude from the record before this Court that such evidence was sufficient to sustain appellant’s conviction and minimum mandatory sentence for trafficking in over 200 grams of methamphetamine. Accordingly, we Reverse and Re-mand for the trial court to conduct an evidentiary hearing on grounds one and three. We affirm the denial of appellant’s remaining grounds without discussion.

Affirmed in part, reversed and remanded in part with directions.

BENTON, VAN NORTWICK, and THOMAS, JJ., concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . An order was entered pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), on October 16, 2013.

      . It is possible that the evidence was sufficient to sustain appellant's conviction, regardless of the lab analyst's conclusion that "no drugs per Florida Statute 893 were identified” in the tested materials. See § 893.135(l)(f)c., Fla. Stat. (2009) ("Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 14 grams or more of amphetamine, as described in s. 893.02(2)(c)2., or methamphetamine, as described in s. 893.03(2)(c)4., or of any mixture containing amphetamine or methamphetamine, or phenyl-acetone, phenylacetic acid, pseudoephedrine, or ephedrine in conjunction with other chemicals and equipment utilized in the manufacture of amphetamine or methamphetamine, commits a felony of the first degree, which felony shall be known as "trafficking in amphetamine....”) (emphasis added). We express no opinion as to the merits of appellant's claims that the state withheld evidence, that the lab report proves the evidence does not support appellant’s convictions, or that the appellant would not have entered his plea had he known of the report. We merely hold that the appellant has filed facially sufficient claims, and this Court cannot determine from the record before us whether they have merit.


author: PER curiam;.

text:
    George Anthony BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4868.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2014.
    Rehearing Denied Sept. 8, 2014.
    George A. Brown, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER curiam;.

George Anthony Brown timely appeals the denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Brown complains of twenty-two errors during trial that he argues constitute ineffective assistance of counsel and entitle him to reversal of his conviction: twelve of Brown’s claims concern counsel’s failure to object to statements made by the prosecutor during closing argument; four claims concern trial counsel’s failure to object to testimony elicited by the prosecutor from various witnesses; and six additional claims concern alleged miscellaneous failures on the part of defense counsel during trial. The trial court held an evidentiary hearing on three of Brown’s claims and summarily denied the remaining claims. After review, we reverse the summary denial of claims two, three, four, five, seven, ten, and twenty, and remand for attachment of portions of the record refuting those claims or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.”). In all other respects, we affirm.

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

PALMER, EVANDER and BERGER, JJ., concur.


author: SAWAYA, J.

text:
    Dale Vernon MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1201.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.

      Steven J. Guardiano, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

SAWAYA, J.

After we rendered our opinion in this ease, Dale Morgan filed a motion for rehearing contending that he had raised the issue of ineffective assistance of counsel in his brief. We ordered that the parties file supplemental briefs regarding this issue because we did not believe that it had been adequately discussed in the initial briefs. Having reviewed the arguments in the supplemental briefs, we grant the motion, withdraw our prior opinion, and substitute the following in its place.

It is a sad reality that there are too many cases involving parents who sexually abuse their own children. We are confronted with yet another. Morgan was convicted of three counts of sexual battery and sentenced to life in prison for each count. The victim is Morgan’s natural daughter, who was under the age of twelve when she was sexually battered by her father. The questions presented are whether Morgan was convicted of crimes he was not charged with committing and, if so, whether he invited the error by affirmatively agreeing to the jury instruction that became the catalyst for the verdict of guilty and his convictions. We also consider the issue of whether Morgan’s trial counsel rendered ineffective assistance requiring reversal of Morgan’s convictions and a new trial.

A detailed discussion of the facts and circumstances that led to Morgan’s convictions is not necessary to answer the questions just mentioned. The answers will largely depend on the allegations contained in the Amended Information, the jury instructions, the discussion of the jury instructions during the charge conference, and the verdict form. We will begin with the Amended Information.

The State filed an Amended Information charging Morgan with three counts of sexual battery. Each differed only in the time periods and age of the victim: count one alleged a time period between January 1, 1981, and June 30, 1984, and that the victim was under the age of eleven; count two alleged a time period between July 1, 1984, and February 7, 1986, and that the victim was under the age of eleven; and count three alleged a time period between February 8, 1986, and February 7, 1987, and that the victim was less than twelve years of age. Each count alleged a violation of section 794.011(2), Florida Statutes, and each count was identical in alleging that Morgan committed sexual battery “by penetrating or having union with [victim’s] mouth or vagina with his penis or by penetrating [victim’s] vagina with his finger(s).” Although contact of the defendant’s mouth with the victim’s vagina is also a violation of the statute, see Welsh v. State, 850 So.2d 467, 470 (Fla.2003), the State did not make that allegation in the Amended Information.

The trial proceeded with evidence elicited from various witnesses, including the victim and Morgan. After both parties rested, a charge conference was conducted and the jury instructions were reviewed by the attorneys and the trial court. We will discuss the charge conference in more detail a little later. The instructions were read to the jury without objection from Morgan. The jury instructions for each count of sexual battery specifically provided that Morgan could be found guilty if the State proved beyond a reasonable doubt that “Dale Morgan committed an act upon [victim] in which Dale Morgan’s mouth/ tongue penetrated or came in contact with [victim’s] sexual organ (vagina).”

The verdict form included separate sections for each count of the Amended Information. Each section required the jury to determine whether Morgan was guilty or not guilty of sexual battery and further required the jury to answer the following questions, which were identical for each count:

Did the Defendant’s penis penetrate [victim’s] mouth?
Yes_No_
Did the Defendant’s penis come into contact with [victim’s] mouth?
Yes_No_
Did the Defendant’s penis penetrate [victim’s] vagina?
Yes_No_
Did the Defendant’s penis come into contact with [victim’s] vagina?
Yes_No_
Did the Defendant’s tongue/mouth penetrate [victim’s] vagina?
Yes_No_
Did the Defendant’s mouth come into contact with [victim’s] vagina?
Yes_No_
Did the Defendant’s fingers penetrate [victim’s] vagina?
Yes_No_

The two questions concerning the uncharged offenses of Morgan placing his mouth in contact with the victim’s vagina or penetrating her vagina with his mouth or tongue were included at the request of the State. Morgan did not object to the verdict form.

During deliberations, the jury submitted a written query to the trial court asking whether it was required to answer each question unanimously. The trial court and the attorneys agreed to have the court instruct the jury to mark the questions it unanimously answered and to leave the rest blank. The reason the trial court gave that instruction (which is apparently the reason the questions were included on the verdict form) is because the trial court and the attorneys thought that these questions applied to calculate sentencing points under the guidelines. We find that rationale puzzling in light of the fact that at the time Morgan allegedly committed his offenses (the Amended Information alleges between 1981 and 1987), sexual battery on a child under the age of twelve in violation of section 794.011(2), Florida Statutes, was considered a capital crime (albeit not punishable by death) and was therefore not subject to the sentencing guidelines. Laster v. State, 486 So.2d 88, 88 (Fla. 5th DCA 1986) (holding sexual battery on a child under twelve years of age is a capital felony, which is not subject to guidelines sentence); see also § 921.001(4)(a), Fla. Stat. (1987) (excluding capital felonies from guidelines sentencing); Disinger v. State, 526 So.2d 213, 214 (Fla. 5th DCA 1988); Dailey v. State, 501 So.2d 15, 17 (Fla. 2d DCA 1986); Davis v. State, 493 So.2d 82, 83 (Fla. 1st DCA 1986).

Although the stated rationale for including the questions and answers on the verdict form makes no sense, value is derived from them because they specify the offense the jury says Morgan committed. The verdict states that Morgan is guilty as to each count of sexual battery and provides identical answers for the same two questions for each count. The jury answered “No” to the question of whether Morgan’s penis penetrated the victim’s vagina and ‘Tes” to whether Morgan’s mouth came into contact with the victim’s vagina. The rest of the questions were unanswered. Remarkably, the only question to which the jury unanimously answered ‘Tes” is the question regarding the uncharged allegation that Morgan’s mouth had contact with the victim’s vagina. We note parenthetically that the jury could not unanimously agree whether Morgan penetrated the victim’s vagina with his fingers, despite the fact that he confessed to doing so.

Directing our attention to the first question presented, Morgan claims that his convictions must be reversed because he was convicted of offenses he was not charged with committing. He casts blame on the trial court and the State for providing the jury with an instruction on the uncharged offense. He argues that it does not matter that he never objected to the jury instruction because the error is fundamental. The State disagrees, arguing that because the Amended Information cited the correct statute, Morgan was put on notice of the various ways that sexual battery could be committed, and he should not be heard to complain about the fact that the Amended Information did not charge the specific act he was found guilty of committing.

The premise of the State’s argument is correct that sexual battery in violation of section 794.011(2), Florida Statutes, may be committed in various ways. See § 794.011(l)(f), Fla. Stat. (1981) (defining “sexual battery” as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object”). We will not attempt to catalogue all of them here. Although the premise may be correct, the foundation upon which the argument rests is faulty.

Due process prohibits an individual from being convicted of an uncharged crime. Cole v. Arkansas, 383 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Jaimes v. State, 51 So.3d 445, 448 (Fla. 2010); Crain v. State, 894 So.2d 59, 69 (Fla.2004). Violation of this prohibition constitutes fundamental error. Jaimes; Ray v. State, 403 So.2d 956, 959-60 (Fla. 1981). As a corollary to this constitutional prohibition, it has been an established rule for quite some time that “[w]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged,” Long v. State, 92 So.2d 259, 260 (Fla.1957), and Florida courts have consistently applied this rule since its inception. Deleon v. State, 66 So.3d 391, 393 (Fla. 2d DCA 2011); Brown v. State, 41 So.3d 259, 262 (Fla. 4th DCA 2010); Diaz v. State, 38 So.3d 791, 792 (Fla. 4th DCA 2010); Trahan v. State, 913 So.2d 729, 730 (Fla. 5th DCA 2005); D.R. v. State, 790 So.2d 1242, 1244^45 (Fla. 5th DCA 2001); Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999). Consistent with this rule, a criminal defendant is entitled to a trial on the charges contained in the information and may not be prosecuted for uncharged offenses, even if they are of the same general character or constitute alternative ways of committing the charged offense. Trahan; D.R.; Zwick. Citation to the correct statute in an information that specifically alleges the ways the statute was violated to the exclusion of others does not cure the fundamental defect inherent in a verdict that finds the defendant guilty of violating the statute in the ways that were not charged. See Deleon, 66 So.3d at 394 (“We reject the State’s argument that because the information cited the applicable statute, section 812.133, Deleon was put on notice that he could be convicted of carjacking with deadly weapon”).

The precedent just discussed directs us to conclude that Morgan was convicted of uncharged offenses. In view of the compelling evidence the State presented to prove Morgan committed the offense of placing his mouth in contact with the victim’s vagina, its failure to charge that offense in the Amended Information is yet another puzzling aspect of this case. By its lassitude, the State has jeopardized the conviction it obtained, and we must now turn our attention to the second question presented to determine whether the error Morgan complains about was made at his invitation.

The invited error doctrine provides that fundamental error may be waived where defense counsel affirmatively agrees to an improper jury instruction. Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 65 (Fla.2012) (“Fundamental error is also waived where defense counsel affirmatively agrees to an improper instruction.” (citations omitted)); State v. Lucas, 645 So.2d 425, 427 (Fla.1994); Falwell v. State, 88 So.3d 970, 972 (Fla. 5th DCA 2012); see also Tindall v. State, 997 So.2d 1260, 1261-62 (Fla. 5th DCA 2009); Jimenez v. State, 994 So.2d 1141, 1143 (Fla. 3d DCA 2008); York v. State, 932 So.2d 413, 416 n. 2 (Fla. 2d DCA 2006); Abbamo v. State, 654 So.2d 225, 226 (Fla. 5th DCA 1995). The doctrine is founded on the principle that “‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Shef field, v. Superior Ins. Co., 800 So.2d 197, 202-08 (Fla.2001) (quoting Goodwin v. State, 751 So.2d 587, 544 n. 8 (Fla.1999)). In such instances, the error may not be addressed using a fundamental error analysis and “the matter cannot be raised on direct appeal.” Falwell, 88 So.3d at 973; see also Pickett v. State, 109 So.3d 841, 844 (Fla. 3d DCA 2013) (holding that if the error in the jury instruction constituted fundamental error, the defendant [Pickett] affirmatively agreed to the instruction and “[i]n doing so, Pickett waived his right to raise this issue on appeal”); Spicer v. State, 22 So.3d 706, 707 n. 1 (Fla. 5th DCA 2009) (“Because it was Spicer’s attorney who affirmatively requested the instruction in this case, however, we have not addressed the issue using a fundamental error analysis.”); Caldwell v. State, 920 So.2d 727, 732 (Fla. 5th DCA 2006) (“An instructional mistake does not rise to the level of fundamental error when defense counsel affirmatively requests the deletion or alteration of the jury instruction that subsequently forms the basis of the requested relief in the appellate court.” (footnote omitted)); Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992). We must look to the record to determine whether Morgan affirmatively agreed with the jury instruction regarding the uncharged offense.

The record reveals that after the evidence had been presented by both parties, the trial court thoroughly reviewed the jury instructions with the prosecutor and with Morgan’s attorney. During that charge conference, the prosecutor asked that the jury instruction for each sexual battery count include the instruction that Morgan may be found guilty of sexual battery if the jury finds that “Dale Morgan committed an act upon [victim] in which Dale Morgan’s mouth/tongue penetrated or came in contact with [victim’s] sexual organ (vagina).” The prosecutor specifically asked Morgan’s attorney, “Do you have any objection to that?” and she answered, “No.” The trial court ruled that the instruction would be revised as requested. When the revised instruction was prepared, the trial court again asked Morgan’s attorney about the instruction:

COURT: All right. So what’s your position, then, as to the changes that were just made to Count I, II, and III to the instructions? Does it look like— DEFENSE COUNSEL: They’re acceptable.
COURT: — to the attorneys the changes were made as we discussed?
DEFENSE COUNSEL: Yes, Your Honor.

After the instructions were read to the jury, the court asked the attorneys “if the instructions and the verdict form that I just read and went over with the jurors are those that were agreed upon by all of us at our conference.” Both agreed that they were.

The answer we derive from this record to the second question presented is that Morgan affirmatively agreed to the jury instruction containing the uncharged offenses and thus invited the error. Cases with similar facts confirm this answer is correct. See Pickett, 109 So.3d at 844 (“During the charge conference, when the court explained that it added the word ‘armed’ to the false imprisonment language of the tampering instruction, to determine the degree of the felony under investigation, defense counsel replied: ‘That’s fine.’ In doing so, Pickett waived his right to raise this issue on appeal.”); Falwell, 88 So.3d at 973 (concluding that when the flawed jury instruction regarding self-defense, which provided that the defendant had the burden of proof, was discussed with defendant’s attorney and he answered, “ ‘That’s correct,’ ” he affirmatively agreed to the instruction and waived any fundamental error argument).

We now come to the issue whether Morgan’s trial counsel rendered ineffective assistance. To warrant reversal and a new trial, Morgan must establish that: 1) counsel’s actions were deficient; and 2) the deficiency so affected the trial that confidence in the outcome is undermined. Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnston v. State, 70 So.3d 472, 477 (Fla. 2011). The second requirement bears the moniker “prejudice prong,” see Merck v. State, 124 So.3d 785, 796 (Fla.2013), and requires that Morgan establish that he was “deprived of a fair trial with a reliable result.” Johnston, 70 So.3d at 477. But Morgan is asking this court to consider this claim on the merits in his direct appeal, and it is a rare instance that appellate courts may do so. Robarás v. State, 112 So.3d 1256, 1267 (Fla.2013). Those rare instances occur when the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the claim be resolved by the trial court. Id.

We have discussed in detail the errors that are clearly apparent on the face of this record, and we will not repeat them here. Suffice it to say that we believe the deficiency requirement was established by trial counsel’s failure to object to the jury instructions that included offenses that were not charged in the Amended Information filed by the State. Not only did counsel fail to object, she agreed to the instructions, thereby inviting the error. The prejudice prong is clearly established because Morgan was deprived of a fair trial with a reliable result when he was convicted of offenses that he was not charged with committing.

We conclude that in light of all of the circumstances of this case, the identified deficient acts of Morgan’s trial counsel “were outside the wide range of professionally competent assistance,” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; Johnston, 70 So.3d at 477 (quoting Strickland), and that “there is a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Johnston, 70 So.3d at 477 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The ineffectiveness of Morgan’s trial counsel is readily apparent on the face of this record, and we believe that it would be a waste of judicial resources to require that the claim be resolved by the trial court. We reverse Morgan’s convictions and remand this case to the trial court for a new trial.

REVERSED and REMANDED.

EVANDER and BERGER, JJ., concur.

      . Morgan also raises the following issues that will not be discussed further: (1) the evidence was insufficient to prove that he committed the crime of capital sexual battery; (2) fundamental error occurred when he was convicted of two nonexistent crimes; and (3) the admission of evidence of uncharged collateral crimes constituted reversible error. These issues are rendered moot by virtue of the conclusion we reach regarding the ineffective assistance of counsel claim.


text:
    Peter ANTONACCI, Former Husband, Appellant, v. Juliana ANTONACCI, Former Wife, Appellee.
    No. 1D11-3669.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.
    Rehearing Denied Sept. 18, 2014.

      Lyman T. Fletcher, Michael R. Phillips, and Eric Friday of Fletcher & Phillips, Jacksonville, for Appellant.
    Michael Korn and Mary C. Coxe of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The trial court erred in failing to conform the written order on rehearing to its oral pronouncement at the hearing on the issue of the parties’ respective pensions. See Maggard v. Maggard, 844 So.2d 710 (Fla. 2d DCA 2003); Leonard v. Leonard, 613 So.2d 1339 (Fla. 3d DCA 1993); Gallardo v. Gallardo, 593 So.2d 522 (Fla. 3d DCA 1991). We therefore reverse those portions of the order on rehearing that address the parties’ pensions and we remand with directions to conform the written judgment to the court’s oral pronouncement that each party would be entitled to one half of the marital portion of the other party’s pension value at the time of retirement. Having found no merit to the appellant’s remaining arguments, we affirm the order in all other respects.

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


author: ALTENBERND, Judge.

text:
    Roger Louis SEXTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3912.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2014.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Roger Louis Sexton appeals an order entered in 2013 modifying his five-year term of probation to add completion of a batterers’ intervention program. The probation was the result of Mr. Sexton’s no contest plea in 2011 to the offense of “possession of a firearm by convicted felon,” which arose from events in May 2010. See § 790.23(1), Fla. Stat. (2009). He argues on appeal, as a matter of unpreserved error, that his 2011 judgment of conviction must be vacated in light of the First District’s decision in Weeks v. State, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013), motion for clarification filed, No. 1D12-3333 (Fla. 1st DCA 2013). That decision, which is still pending in the First District, held that “section 790.23 is unconstitutionally vague because the phrase ‘firearm’ as elsewhere defined does not give adequate notice of what type of firearm may be lawfully carried by a convicted felon and, because of the imprecision, may invite arbitrary and discriminatory enforcement.” Id. at D36-D37.

In Walker v. State, 137 So.3d 594, 595 (Fla. 2d DCA 2014), we explained that in Weeks the First District had “seemingly found” that the relevant statute was unconstitutional as applied. That explanation appears sound because the decision in Weeks was based on that court’s conclusion that the definition of “antique firearm,” which was incorporated into the definition of “firearm” and, thus, into this substantive offense, rendered section 790.23 unconstitutionally vague. See Weeks, 39 Fla. L. Weekly at D35-D36. Because the constitutional concern addressed in Weeks appears to arise only in cases involving firearms that arguably might be regarded as a replica of an antique firearm, the issue does not result in the facial unconstitutionality of section 790.23(1). Thus, in Walker, we concluded that the holding in Weeks was simply inapplicable to the facts in our case. In so doing, we implicitly rejected an argument that the decision in Weeks declares the statute facially unconstitutional. Walker, 137 So.3d at 595. To date, neither the First District nor this court has held that section 790.23(1) is facially unconstitutional.

In an appeal from an order entered on a violation of probation, our scope of review is generally limited to issues related to the revocation or modification of probation. Even if we can review the constitutionality of section 790.23(1) at this late stage of the proceedings, the law is clear that a party must preserve an as-applied constitutional challenge to a statute in the trial court. See Fla. Dep’t of Agrie. & Consumer Sens. v. Mendez, 98 So.3d 604, 608 (Fla. 4th DCA 2012). Because Mr. Sexton did not raise this issue in the trial court and obtain a ruling from that court, he is not entitled to raise it in this appeal.

Affirmed.

WALLACE and SLEET, JJ., Concur.

      . § 790.001(1), Fla. Stat. (2012).

      . § 790.001(6), Fla. Stat. (2012).


text:
    Isiah WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1093.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
   PER CURIAM.

Affirmed. See Toomer v. State, 895 So.2d 1256 (Fla. 1st DCA 2005); Teart v. State, 866 So.2d 145 (Fla. 1st DCA 2004); Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

KELLY, VILLANTI, and LaROSE, JJ., Concur.


author: FORST, J.

text:
    Martha JULIA, Appellant, v. Juan Carlos JULIA, Appellee.
    No. 4D13-3559.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2014.

      Troy William Klein, West Palm Beach, for appellant.
    Juan Carlos Julia, Miami, pro se.
   FORST, J.

Appellant Martha Julia (“the Wife”) appeals the final judgment of support and the final judgment of dissolution of marriage related to her second marriage to Appellee Juan Carlos Julia (“the Husband”). The Wife argues that the trial court’s judgments must be reversed in light of violations of her right to due process. We agree. Furthermore, we find six additional shortcomings with respect to the trial court’s decisions that must be addressed on remand. Accordingly, we reverse the final judgments for reasons stated below and remand for further proceedings.

Background

The parties were first married in October 1991, but they divorced in January 1993. They did not remain living separately for very long, however, and eventually remarried in October 1994. Four children were born to the marriage, three of whom are still minors as of the date of this opinion.

The parties separated in May 2010 and the Husband petitioned for dissolution of marriage that June. The Wife later counter-petitioned for dissolution. The parties engaged in back-and-forth contentious litigation until trial was finally set for July 2013.

At the beginning of the trial, the trial court noted that neither party had filed a witness list pursuant to a court order; thus, the court determined that only the parties would be allowed to appear as witnesses. As the petitioner, the Husband presented his case first, appearing pro se. He called the Wife as his first witness and spent an extensive amount of time questioning her about unimportant details and often avoided getting to the point on key issues. Recognizing this, the trial court repeatedly admonished the Husband and told him to “keep things moving.” At the same time, the trial court kept reassuring the Wife that she would get equal time to present her case. Even so, the Husband’s direct examination of the Wife continued throughout the morning and into the afternoon of the one-day trial.

At one point, the Husband asked if there would be closing arguments, to which the trial court replied, “No. I’m not taking the time for it, we don’t have time for it.”

Once it was time for the Wife’s counsel to cross-examine her as the Husband’s witness, the judge commented, “Feel free to expand your cross to cover anything that you want to cover in the nature of direct so you don’t have to call her back if you don’t want to.” Then, the trial court added, “You’re free to call her back in your case in chief, but let’s try and move it along.” The Wife’s counsel was able to cover some, but not all, of the issues before the court. During that time, the trial court continued to remind the parties of the limited time. The Husband was then allowed a redirect of the Wife, but the trial court did not allow the Wife’s counsel to have a redirect or re-cross of the Wife and commented, “You may call her in your own case in chief if we have time, I don’t know that we do.”

The Husband subsequently took the stand as his second witness very late in the afternoon. The court inquired of him on a variety of topics and then allowed the Wife’s counsel to cross-examine him. After the Wife’s counsel had barely begun his questioning, the following exchange occurred:

Court: Mr. Klein [the Wife’s counsel], your questioning will be finished at 5:15, so you’ll have to work everything in.
Klein: We haven’t been able to do our case in chief, and we would like an opportunity to—
Court: Okay, mistrial, we’ll reset this six months from now.
Husband: Your Honor, objection.
Court: I can do it today in 15 minutes if you can. If you cannot, then we’re done. I told you to expand your direct when your client was on the stand. Can you do it or not?
Klein: Apparently not, your Honor. Court: Give me five minutes. No, I’m ruling today. You have 15 minutes to complete your case. You have had more than enough time to put this case on. I told you to expand your questions through your client, and your client’s real good at running off the top with her answers. You may complete your questioning at 5:15 and I will rule at that time and they will know where they stand. It’s not fair to them to have to come back six months from now, but it is not fair to me to overrun the time like it is. I’ve got five cases that I have to prepare for tomorrow and that hasn’t even started yet. Get moving.

Before the Wife could complete her cross-examination of the Husband, the trial court abruptly stopped the questioning and said that it was ready to rule. The trial court, as it had earlier stated, did not allow either party to present closing arguments before ruling, and neither party objected.

After the oral ruling, the Wife expressed concern about the unequal time allocated between the parties. The trial court responded that the Wife should “take it up on appeal.” The trial court issued two final judgments. The final judgment of support awarded durational alimony and child support to the Wife. The final judgment of dissolution of marriage dissolved the parties’ marriage and distributed the parties’ assets and liabilities. The Wife now appeals both final judgments on substantive and due process grounds.

Due Process Violations

Because we find no error with the trial court’s denial of the Wife’s motion for a continuance before trial or its decision to exclude the witnesses that were not disclosed pursuant to the pretrial order, we will not discuss those issues but begin by addressing the Wife’s other arguments regarding due process violations.

We review a possible violation of due process de novo. See VMD Fin. Sens., Inc. v. CB Loan Purchase Assocs., LLC, 68 So.3d 997, 999 (Fla. 4th DCA 2011).

“Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party’s behalf ... and the denial of this right is fundamental error.” Minaban v. Husted, 27 So.3d 695, 698 (Fla. 4th DCA 2010) (quoting Pettry v. Pettry, 706 So.2d 107,108 (Fla. 5th DCA 1998)). The opportunity to be heard must be “full and fair, not merely colorable or illusive.” Pelle v. Diners Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974) (“[W]e find that the trial court erred in failing to grant the appellant an opportunity to present his case-in-chief and, therefore, he was denied the protection afforded by the constitutional guarantee of due process of law.”); see also Walker v. Edel, 727 So.2d 359, 360 (Fla. 5th DCA 1999) (finding a trial court’s refusal to hear a party’s defense was “clearly error which affected the issues before the court”).

The record clearly evidences a pattern of depriving the Wife of her opportunity to be heard and present her case throughout the trial. Although the trial court made statements that the parties would be given equal time and that the Wife would get the opportunity to present her case-in-chief, no such opportunity was presented. The Wife was not able to call any witnesses on her behalf or present argument of counsel at the end of the Husband’s case in violation of the guarantees of due process.

Additionally, this Court has recognized that justice cannot be “administered arbitrarily with a stopwatch,” yet that is what happened in the instant case. See Woodham v. Roy, 471 So.2d 132, 134 (Fla. 4th DCA 1985). Throughout the hearing, the trial court made it clear that it intended to complete the trial in one day without going much beyond 5:00 p.m. Although this goal is not inherently violative of due process, summarily shortening proceedings can give rise to a due process violation when they fail to afford a party a full, fair, and meaningful opportunity to be heard, such as in this case where the Wife was severely restricted in time to examine witnesses, to call any of her own witnesses, or to make any argument as to the evidence presented. See Slotnick v. Slotnick, 891 So.2d 1086, 1089 (Fla. 4th DCA 2004) (holding that due process is violated when a trial court summarily disposes of the issues without allowing either party to present evidence or cross-examine witnesses, even if the issues were informally discussed with the attorneys); Pelle, 287 So.2d at 738.

We note that neither party was given an opportunity to present closing arguments, although Appellant arguably did not preserve a challenge to this denial. In Pettry, the Fifth District stated that “due process [also] requires that a party be given the opportunity to present closing argument.” Pettry, 706 So.2d at 108; see also Minakan, 27 So.3d at 699 (“Even if [a party’s] evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony.”). Although a closing argument can be waived (or, perhaps replaced with written closing arguments), Pettry indicates that the opportunity to present one must at least be available to comply with due process. Pet-try, 706 So.2d at 108

The situation in the present case is not as egregious a violation as we observed in Slotnick; however, the record clearly reflects that the Wife was denied a full, fair, and meaningful opportunity to be heard in this final hearing before the judgment was entered. See Slotnick, 891 So.2d at 1089. Even if the trial court believed that recalling the witnesses would not make any further impression on the court, it was still required to allow the Wife to present her case fully, including argument at the conclusion of the evidence. See Minakan, 27 So.3d at 698-99; Pettry, 706 So.2d at 108; see also Cole v. Cole, — So.3d-, 2013 WL 5989825, 38 Fla. L. Weekly D2376 (Fla. 3d DCA Nov. 13, 2013) (“The failure to give a party the chance to present witnesses or testify violates [the] fundamental right” of “a full and fair opportunity to be heard in judicial proceedings.”).

Additional Grounds for Remand

The Wife makes a number of arguments on appeal, in addition to the due process argument discussed above. We find merit in six of these challenges to the trial court’s decision.

First, in awarding the four children exclusive use and possession of the marital home, with the parents rotating in at two week intervals, the trial court’s decision made no mention of “the best interests of the children” with respect to this ruling. This is a required factor for the court to consider when determining parental responsibility and distribution of assets. See §§ 61.075(l)(h), 61.13(2)(c), Fla. Stat. (2013).

Second, we find that the trial court failed to make required findings of fact regarding equitable distribution. In particular, the court’s decision did not include “specific written findings of fact” as to the individual valuation of significant marital assets. See § 61.075(3)(b), Fla. Stat. (2013); Lift v. Lift, 1 So.3d 259, 260 (Fla. 4th DCA 2009) (noting the failure to include “specific written findings of fact that identify, classify, value, and distribute the parties’ assets and liabilities” in a trial court order regarding equitable distribution “precludes meaningful appellate review”) (quoting and citing Pavese v. Pave se, 932 So.2d 1269, 1270 (Fla. 2d DCA 2006)).

Third, the court’s final judgment of dissolution does not adequately support its determination that $18,000 in debt should be allocated to the Wife. The trial court made no finding as to whether this liability was marital or non-marital, as required by section 61.075(3), Florida Statutes.

Fourth, the trial court must revisit the determination that the farm at issue in the dissolution is completely a non-marital asset. Marital assets include not only assets acquired by either spouse during the marriage, but also the “enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(6)(a)(l)(a)-(b), Fla. Stat. (2013); see also Barner v. Barner, 716 So.2d 795, 797 (Fla. 4th DCA 1998). In reaching its conclusion regarding the farm, the trial court failed to address the parties’ testimony regarding the Husband’s efforts expended on the farm during the marriage and the contribution of marital assets to the upkeep of the farm.

Fifth, in imputing income to the Wife in the amount of $45,000 per year, the trial court neglected to make any findings with respect to whether the Wife’s unemployment at the time of the hearing was “voluntary,” nor did the court address the Wife’s evidence that she has been making “diligent and bona fide efforts to find employment.” See Durand v. Durand, 16 So.3d 982, 985 (Fla. 4th DCA 2009) (quoting Leonard v. Leonard, 971 So.2d 263, 265 (Fla. 1st DCA 2008)). This court has determined that both inquiries are necessary in imputing income and that “[t]he spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available.” Id.

Sixth, the trial court failed to make the required findings to support its award of durational, rather than permanent, alimony. The trial court’s failure to make findings of fact relative to all the statutory factors for an alimony award is reversible error. See Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003). Although the trial court listed the statutory factors in the final judgment of support, it failed to list any factual findings relating to those factors or to the conclusion that the Wife has a need for alimony and the Husband has an ability to pay. This was an abuse of discretion that needs to be rectified on remand.

Conclusion

“While courts have broad authority to control their dockets, trial judges must use this authority to ‘manage their courtrooms so that the people’s business may be conducted fairly, efficiently, and expeditiously.’ ” Smith v. Smith, 964 So.2d 217, 218 (Fla. 2d DCA 2007) (quoting McCrae v. State, 908 So.2d 1095,1096 (Fla. 1st DCA 2005)). We recognize the difficulty of balancing the desire of parties to “have their day in court” with the necessity of the courts to keep to a schedule and accommodate the similar desire of other parties and that this becomes even more difficult when “day in court” unexpectedly becomes a “day and a half.” We further acknowledge that a judge’s work day does not necessarily end when the judge leaves the bench after a hearing or trial, as a great deal of time off of the bench is required to prepare for the next day’s hearings and to draft orders and decisions.

In the instant case, despite the trial court’s efforts to push the parties to complete the case within the scheduled time-frame, when 5:15 p.m. came, one party (the Wife) had not been afforded her “fair share of the court’s time.” Id. at 219. Moreover, as noted above, the court’s final judgment lacked several required findings. Accordingly, we are compelled to reverse the final judgment of dissolution of marriage as well as the final judgment of support and remand for a new trial consistent with this opinion.

Reversed and Remanded for a new trial.

STEVENSON and CONNER, JJ., concur.

      . We recognize that there is no per se right to an oral closing argument where written closing arguments remain an appropriate tool with the trial court. See, e.g., Weymouth v. Weymouth, 87 So.3d 30, 33 (Fla. 4th DCA 2012). However, the trial court presented no opportunity for either oral or written closing arguments in the instant case.


text:
    Raul IZQUIERDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2808.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2014.
    James S. Purdy, Public Defender, and Michael S, Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Leonard v. State, 760 So.2d 114 (Fla.2000).

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


text:
    Timothy THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4156.
    District Court of Appeal of Florida, Fifth District.
    Rehearing Denied Sept. 5, 2014.
    Aug. 8, 2014.
    Timothy T. Thomas, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
   PER CURIAM.

In 1996, Timothy Thomas was convicted and sentenced on charges of armed robbery (with a firearm or deadly weapon), aggravated battery, and armed carjacking (with a firearm or deadly weapon). The State sought to have Thomas sentenced as a habitual violent felony offender (“HVFO”) and the trial court orally pronounced that it was designating Thomas as an HVFO at sentencing. However, the sentencing documents erroneously stated that Thomas had been sentenced as an habitual felony offender (“HFO”). We previously addressed this issue, and remanded for correction of the sentencing documents to reflect the HVFO designation orally pronounced. Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001). On remand, however, the trial court retained the erroneous HFO designation. In 2013, Thomas again sought relief pursuant to Florida Rule of Criminal Procedure 3.800. On October 23, 2013, the trial court ordered the sentencing documents be corrected to reflect the HVFO designation but also added discretionary HVFO minimum mandatory sentences that had never before been imposed. Thomas correctly argues that this belated increase in his sentences violates double jeopardy principles. See, e.g., Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.”) (citations omitted).

Accordingly, we reverse the portion of the trial court’s order that added minimum mandatory terms to Thomas’ sentences, and remand with directions that the trial court strike the minimum mandatory sentences. We affirm in all other respects.

REVERSED IN PART, AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Bobby Lee SAVIORY, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-336.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    Bobby L. Saviory, Jr., Madison, pro se.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
   PER CURIAM.

Affirmed without prejudice to any right Bobby Lee Saviory may have to file a timely and facially sufficient motion under Florida Rule of Criminal Procedure 3.850, based on misadvice of counsel.

ORFINGER, EVANDER and LAMBERT, JJ., concur.


text:
    Joseph STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4115.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.

      Joseph Stewart, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse and remand the denial of grounds one and three of the motion. We otherwise affirm the order on appeal.

In 2010, following a jury trial, the appellant was convicted of DUI manslaughter, two counts of DUI with bodily injury and leaving the scene of an accident with property damage, and was sentenced to a total of 25 years’ imprisonment. He filed a postconviction motion alleging three grounds for relief. In ground one, the appellant asserted that counsel was ineffective for advising him to reject a favorable plea offer of 12-14 years’ imprisonment when counsel did not have a reasonable defense planned. In ground three, the appellant asserted the related claim that counsel was ineffective for conceding all the elements of the DUI manslaughter and DUI with bodily injury. Cf. Fla. Std. Jury Instr. 7.8 (the elements of DUI manslaughter are: (1) the defendant drove, (2) while intoxicated (more than .08 BAC), and (3) “as a result of operating the vehicle, (defendant) caused or contributed to the cause of the death of [the victim].”) (emphasis added).

The appellant argued that counsel conceded each element of DUI manslaughter and DUI with bodily injury, with the exception of the appellant causing or contributing to the accident. But even there, he argues that it was unreasonable to go to trial contesting that element while knowing that the defense expert would testify the appellant was traveling 65-70 miles per hour (25 mph more than the speed limit). In effect, his counsel conceded the “cause or contribute” element of the offense by introducing the speed evidence through the expert (which the expert later conceded on cross examination to have “contributed to the crash”). See Magaw v. State, 537 So.2d 564, 567 (Fla.1989) (“[T]he statute does not say that the operator of the vehicle must be the sole cause of the fatal accident.... [Rather] any deviation or lack of care on the part of a driver ... to which the fatal accident can be attributed will suffice.”) (emphasis added); Robitaille v. State, 942 So.2d 440 (Fla. 4th DCA 2006) (concluding that a defendant was not prejudiced by counsel’s failure to object to certain testimony in a DUI manslaughter case because other evidence showed that the defendant was under the influence, “was driving too fast,” and was “racing up the street.”). The State then highlighted the defense expert’s concession in its closing argument.

The record does not contain any documents refuting the appellant’s claim that counsel was deficient, or demonstrating that the appellant was not prejudiced as a result. Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing on grounds one and three of the appellant’s motion.

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

LEWIS, C.J., THOMAS, and OSTERHAUS, JJ., concur.


author: OSTERHAUS, J.

text:
    BAC HOME LOANS SERVICING L.P. f/k/a Countrywide Home Loans Servicing L.P., Appellant, v. Jeffrey Robert PARRISH a/k/a Jeffrey Parrish and Jessica Ann Parrish a/k/a Jessica A. Parrish a/k/a Jessica Parrish; et al., Appellees.
    No. 1D13-4150.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Kimberly Nolen Hopkins and Ronald M. Gaché of Shapiro, Fishman, & Gaché, LLP, Tampa, for Appellant.
    Jeffrey Robert Parrish and Jessica Ann Parrish, pro se, Appellees.
   OSTERHAUS, J.

Under review is a final order dismissing a foreclosure action without prejudice based on Appellant’s failure to appear on the trial date fixed by the court. We reverse because the notice fixing the trial date failed to comply with the thirty-day requirement set forth in Florida Rule of Civil Procedure 1.440(c) and because the trial court failed to determine whether Appellant’s failure to appear was willful.

I.

In November 2009, Appellant filed a complaint to foreclose on Appellee’s mortgage.' On March 14, 2013, the trial court rendered a sua, sponte “Order Setting Trial or Final Hearing” for April 11, 2013. The court’s order evidently was not served on Appellant’s counsel and no one appeared for Appellant on the scheduled trial date. As a consequence, the trial court dismissed the case. Upon learning of the dismissal, Appellant filed a timely motion for rehearing with evidence that counsel’s failure to appear was based not on willful disregard of the trial court’s order, but because the court failed to serve Appellant with the notice. But rehearing was summarily denied.

II.

We now reverse and remand for two reasons. First, the order setting trial violated the requirements of Florida Rule of Civil Procedure 1.440(c). Rule 1.440(c) requires that orders fixing trial dates “shall be set not less than 30 days from the service of the notice for trial.” Fla. R. Civ. P. 1.440(c). In this case, the order setting the trial was rendered on March 14, 2013, only twenty-eight days before the scheduled date for trial. This constitutes reversible error. Rivera v. Rivera, 562 So.2d 833, 834 (Fla. 1st DCA 1990); see also 4 Fla. Prac., Civil Procedure § 1.440:8 (“A court’s failure to give the minimum 30-day notice required by subdivision (c) of the rule similarly renders any judgment entered defective.”).

Second, the trial court’s order did not apply the requisite standards set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), for determining whether dismissal as a sanction was appropriate. See, e.g., BAC Home Loans Servicing, L.P. v. Ellison, 141 So.3d 1290 (Fla. 1st DCA 2014) (citing Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004); Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002); Crews v. Shadbume, 637 So.2d 979, 981 (Fla. 1st DCA 1994); Gaines v. Placilla, 634 So.2d 711 (Fla. 1st DCA 1994)). Just as in Ellison, before dismissing Appellant’s case, the trial court should have conducted an evidentiary hearing to determine whether counsel’s failure to appear was a willful violation of the court’s order.

III.

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

LEWIS, C.J., and THOMAS, J., concur.

      . Appellees have not contested the facts asserted by Appellant in this court or below.


text:
    Noe GUERRA, Appellant, v. C.A. LINDMAN, INC. and Argonaut Insurance Company, Appellees.
    No. 1D13-5988.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Brian C. Dowling of the Workers’ Compensation Trial Group, P.A., Orlando, for Appellees.
   ON MOTION FOR REHEARING/CLARIFICATION

PER CURIAM.

Appellant’s motion for rehearing/clarification, filed July 30, 2014, is granted. The court’s opinion filed July 21, 2014, is withdrawn, and the following clarified opinion is substituted.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) to the extent it denies Claimant’s claims for cervical surgery or, in the alternative, cervical facet injections, for temporary total disability (TTD) benefits, and for penalties, interest, costs, and attorney’s fees (PICA). We reverse because the JCC erroneously appointed and relied on an expert medical advisor (EMA).

Claimant suffered a compensable accident on August 31, 2010, and was diagnosed with a C5-6 herniated disk, resulting in the authorization of orthopedic spine specialist Dr. Schechter. Dr. Schechter did not think Claimant was a candidate for surgery. Claimant obtained a “one-time change” of physician, as he was entitled to do under the Workers’ Compensation Law, and orthopedic surgeon Dr. Greenberg was appointed. Dr. Greenberg diagnosed disk herniations at C3-4 and C5-6, and recommended a partial discectomy (surgery). Claimant then filed a petition for benefits seeking that surgery. In response, the Employer/Carrier (E/C) sought appointment of an expert medical advisor (EMA) to resolve the disagreement in medical opinions regarding Claimant’s need for the partial discectomy recommended by Dr. Greenberg.

Neurosurgeon Dr. Pagan was appointed to serve as an EMA, and he opined Claimant was not then a surgical candidate; he later testified that if Claimant’s condition worsened, surgery may be appropriate. After Dr. Pagan rendered his EMA report in June 2011, Claimant withdrew his petition, and proceeded with conservative care. Because Dr. Greenberg declined to see Claimant given the situation, the E/C authorized orthopedic surgeon Dr. Montesa-no. Eventually Dr. Montesano opined that Claimant’s condition was getting progressively worse. Dr. Montesano opined that Claimant requires a C5-6 anterior cervical discectomy and fusion “as soon as possible because he is developing nerve damage or neurological deficit,” that if the weakness “continues to get worse it may become irreversible,” and that if this curative surgery is not authorized, Claimant should have cervical facet injections.

Based on Dr. Montesano’s opinion, Claimant filed a new petition for benefits seeking, inter alia, the treatment recommended by Dr. Montesano, TTD benefits, and PICA. In defending the new claims, the E/C deposed Drs. Schechter and Pagan again. Both indicated that their opinions had not changed, but explained that they had not seen Claimant or reviewed any records past May 2011. Notably, Dr. Schechter expressly declined to opine on Claimant’s condition in 2012 or June 2013 for those reasons. Neither doctor expressed any disagreement with the medical opinions of Dr. Montesano that served as the foundation for the pending petition for surgery, nor was either doctor asked to address Dr. Montesano’s opinions.

During the hearing on the new petition for benefits, the JCC perceived a possible dispute in the medical opinions relating to Claimant’s need for cervical surgery, and raised the question of whether an EMA should be appointed. Both parties opposed the appointment of an EMA with respect to the new petition for benefits. Claimant argued (1) there was no disagreement in the medical opinions because the opinions of Drs. Schechter and Pagan were two years old (“stale”) and (2) Dr. Montesano’s opinion that Claimant’s condition had worsened and now required surgery was uncontroverted. The E/C argued that the question of whether Claimant requires surgery had already been addressed by Dr. Pagan, the EMA appointed to resolve the disagreement in medical opinion regarding the prior petition for benefits. Notwithstanding the parties’ objections to the appointment of an EMA, the JCC, without identifying a specific disagreement in the medical opinions, appointed an EMA, neurosurgeon Dr. Theo-filos. The JCC charged the EMA with answering three questions, including “[wjhether the anterior cervical discectomy and fusion surgery as recommended by Dr. Montesano is reasonable and medically necessary for the claimant.” The order appointing Dr. Theofilos as EMA was not challenged by appeal or petition for certio-rari review.

Dr. Theofilos opined that surgery was not medically necessary “due to the numerous Waddell’s signs he is exhibiting, [and] his lack of anatomic findings on examination that would correlate with a C5-6 disc pathology.” Claimant moved to strike the testimony from Dr. Theofilos, and objected to admission of Dr. Theofilos’s report into evidence. The JCC denied the motion and overruled the objection. The JCC relied in part on Dr. Theofilos’s opinions and, by order entered June 24, 2013, denied Claimant’s petition for benefits. This reliance was error.

Simply put, the JCC erred in failing to recognize that the legal dispute before him was Claimant’s current need for surgery pursuant to Dr. Montesano’s recommendation, based on Dr. Montesano’s uncontro-verted opinion that Claimant’s medical condition was materially worse than before. The E/C had an opportunity to counter this uncontroverted testimony in order to demonstrate some level of disagreement in medical opinions, but made the strategic decision to rely on Drs. Schechter and Pagan even though, by their own admission, these physicians were unaware of evidence regarding a worsening in Claimant’s condition. Because the opinions of Drs. Schechter and Pagan do not constitute evidence of a “disagreement in the opinions of the health care providers” regarding the legal issue in dispute, i.e., Claimant’s current need for discectomy and fusion given the unrefuted worsening of his injury, the JCC erred in appointing an EMA. See § 440.13(9)(c), Fla. Stat. (2010).

Thus, the JCC’s denial of the claims for the surgery (or facet injections), TTD, and PICA are REVERSED and this case is REMANDED for entry of an order, in light of this opinion, based on the evidence already before the JCC with the exception of evidence from Dr. Theofilos.

THOMAS, ROWE, and MAKAR, JJ. concur.

       An interlocutory order appointing an EMA may be reviewed on plenary appeal. See Taylor v. TGI Friday’s, Inc., 16 So.3d 312, 313 (Fla. 1st DCA 2009). Hence, there is no merit to the E/C's argument that Claimant waived the right to contest the appointment of an EMA by waiting for the entry of a final order.


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    Ismael MORENO, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD/F.A. Richard & Associates, Appellee.
    No. 1D14-1142.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale and Mitchell S. Shea of the Law Offices of Mitchell S. Shea, P.A., Plantation, for Appellant.
    Jerry K. McKim of Wyland & Tadros, LLP, West Palm Beach, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, Claimant contends that the Judge of Compensation Claims (JCC) erred in granting the Employer/Carrier’s (E/C’s) motion for summary final order based on application of Florida Administrative Code Rule 60Q-6.116(2), often called the “two-dismissal” rule. We agree the JCC improvidently granted the motion and write to explain our reasons.

I.

Claimant filed his first petition for benefits (PFB) claiming entitlement to permanent total disability (PTD) benefits on September 14, 2010, requesting payment effective March 1, 2008, and continuing. The relevant compensable injury involved the low back. At a January 6, 2011, mediation conference, Claimant agreed to dismiss the claim for PTD benefits without prejudice.

Claimant next filed a PFB on July 28, 2011, also seeking entitlement to PTD benefits, now asserting an effective date of June 29, 2011, and continuing. The com-pensable injury remained a low back injury. By notice served March 1, 2012, Claimant’s attorney voluntarily dismissed the July 28 PFB.

Claimant’s third PFB for PTD benefits was filed on November 12, 2013, and alleged both a low back injury and mental/psychiatric injuries. Claimant requested payment of PTD benefits beginning April 2, 2013, the date Claimant reached maximum medical improvement for his compensable psychiatric condition that had resulted in a permanent impairment.

The E/C filed a motion for summary final order, and, relying on this Court’s opinion in American Woodmark Co. v. Sipe, 117 So.3d 70 (Fla. 1st DCA 2013), argued that “two dismissals of a claim seeking payment of [PTD] benefits bars, by application of the doctrine of res judica-ta, any future claim seeking the payment of [PTD] benefits irrespective of the differences which might exist respecting the commencement date of the payment of those benefits between multiple Petitions.”

Claimant did not dispute he had filed, and voluntarily dismissed, two PFBs seeking entitlement to PTD benefits. Claimant argued, however, that the pending PFB was based on his compensable psychiatric condition. Thus, res judicata would not apply, he argued, because the current claim was based on different evidence than either of the two previously filed claims and came into existence only after both claims were dismissed.

II.

The JCC dismissed the pending PFB seeking entitlement to PTD benefits “with prejudice under the principles of res judi-cata.” In doing so, the JCC relied on the Sipe opinion, and concluded that “the Sipe Court justified its reversal ... as it pertained to res judicata, by succinctly instructing that the ‘two-dismissal’ rule set forth at F.A.C.R. 60Q — 6.116(2) absolutely bars a PTD claim under principles of res judicata where two prior voluntary dismissals of a PTD claim have been entered.”

III.

Our review of a summary final order is de novo. See Thomas v. Eckerd Drugs, 987 So.2d 1262, 1263 (Fla. 1st DCA 2008). Upon appellate review, all reasonable inferences will be drawn in favor of the non-moving party. Id. “Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. If the evidence is conflicting, will permit different reasonable inferences, or tends to prove the issues, it should be submitted to the trier of fact.” Id. This accords with the Legislature’s stated intent “that workers’ compensation cases shall be decided on their merits.” See § 440.015, Fla. Stat. (2001).

IV.

The JCC erred by focusing solely on the specific benefit claimed — PTD benefits— without giving due consideration to the general principles regarding res judicata. Because the two-dismissal rule is based on principles of res judicata, see Sipe, 117 So.3d at 71, guidance must be taken from case law addressing both res judicata and the two-dismissal rule.

In Caron v. Systematic Air Services, 576 So.2d 372 (Fla. 1st DCA 1991), this Court described how the long-standing principles behind the doctrine of res judi-cata should be applied in workers’ compensation matters. Res judicata applies only when all of its elements are present. Id. at 375. As explained by the Caron Court, a “determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.” Id. It is this factor that is the key to a determination of whether Claimant’s third PFB was barred by the two-dismissal rule and res judicata.

This Court has recognized that even where the class of benefit may be the same, the question remains whether the evidence is the same. See Brown v. Jerry Pybus Electric, 124 So.3d 436, 438-39 (Fla. 1st DCA 2013) (reversing JCC’s dismissal of PFB because it was unclear whether all PFBs requested re-authorization of Dr. Patel as opposed to psychotherapy pursuant to particular prescription). The burden was on the E/C, as the moving party, to prove that the claims were the same. Id. Here, the third PFB claimed entitlement to PTD benefits effective on a date subsequent to the filing date of the previously dismissed second PFB seeking PTD benefits. In addition, the third PFB alleged that a new condition required consideration: Claimant’s mental/psychiatric condition, one already accepted as compen-sable by the E/C. These allegations arguably represent a different set of facts than was present before; consequently, it was incumbent on the JCC to consider them and determine whether they differed from those facts integral to the previously filed PFBs.

V.

Because the facts as to whether the evidence was the same were not so crystallized as to leave nothing but a question of law, the JCC erred in granting the E/C’s motion for summary final order.

Accordingly, the order on appeal is REVERSED, and this matter is REMANDED for proceedings consistent with this opinion.

WOLF, ROWE, and OSTERHAUS, JJ., concur.


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    Ihab J. HAMMAD, Appellant, v. Thamina J. HAMMAD, Appellee.
    No. 5D14-577.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Bradley S. Sherman, Orange City, for Appellant.
    Ivan K. Clements, Jr., of Ivan K. Clements, Jr., P.A., DeLand, for Appellee.
   PER CURIAM.

Ihab Hammad (Former Husband) appeals a final judgment that dissolved his marriage to Thamina Hammad (Former Wife). On appeal, he argues that the trial court abused its discretion by awarding Former Wife durational alimony and ordering Former Husband to pay seventy-five percent of Former Wife’s attorney’s fees -without making the requisite findings of fact. Regarding the alimony award, Former Wife concedes error because the final judgment lacks the factual findings required under section 61.08(2), Florida Statutes (2013). See Roth v. Cortina, 59 So.3d 163, 165-66 (Fla. 3d DCA 2011). Likewise, Former Wife concedes error as to the award of attorney’s fees, again acknowledging that the final judgment is devoid of factual findings regarding Former Wife’s financial need and Former Husband’s ability to pay. See Allen v. Allen, 114 So.3d 1102, 1104 (Fla. 1st DCA 2013).

REVERSED and REMANDED.

EVANDER, COHEN and LAMBERT, JJ., concur.


author: WOLF, J.

text:
    STO CORP., a foreign corporation, Petitioner, v. GREENHUT CONSTRUCTION COMPANY, INC., a Florida corporation, and Gulf Coast Specialties, Inc., a Florida corporation; Fidelity And Deposit Company Of Maryland, a foreign corp., and USA Wood Doors, Inc., a Florida corporation, Respondents.
    No. 1D14-0637.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.

      Richard A. Sherman, Sr. and James W. Sherman of Richard A. Sherman, P.A., Ft. Lauderdale; Gary F. Baumann and Thomas B. Rogers, of Fulmer, LeRoy, Albee, Baumann, PC, Ft. Lauderdale, for Peti-. tioner.
    Bruce B. Partington and Kenneth B. Bell, of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Respondent Greenhut Construction Company, Inc.; and Robert C. Palmer, III, of Wade, Palmer & Shoemaker, P.A., Pensacola, for Respondent Gulf Coast Specialties, Inc.
   WOLF, J.

Petitioner seeks certiorari review of a discovery-violation sanction order issued pursuant to Florida Rule of Civil Procedure 1.380 deeming certain paragraphs of the complaint admitted after petitioner failed to fully comply with an order compelling production. As explained in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097,1099 (Fla.1987), super-ceded by statute on other grounds, § 768.72, Fla. Stat. (1989),

[a] non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances. The order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.

The Florida Supreme Court emphasized that this jurisdiction is very limited, noting that one of the few non-final discovery-related orders that an appellate court has jurisdiction to review on certiorari are orders compelling discovery, but only when such compulsion is in violation of certain rights and results in “eat-out-of-the-bag” scenarios. See, id. at 1100. In such situations, there is no “adequate redress by plenary appeal from a final judgment.” Id. at 1100. Even if the court’s action effectively enters default as to liability and “strikes” a petitioner’s affirmative defenses, such non-final orders can normally be adequately reviewed on appeal and thus are not subject to certiorari review. See e.g., Cohen v. DeYoung, 655 So.2d 1265 (Fla. 5th DCA 1995); Manatee County v. Estech Gen. Chems. Corp., 402 So.2d 75 (Fla. 2d DCA 1981).

This court noted in West Florida Regional Medical Center, Inc. v. See, 18 So.3d 676, 682 (Fla. 1st DCA 2009), that the irreparable harm element should be addressed first because it is an issue of jurisdiction. Here, while petitioner asserts that the trial court departed from the essential requirements of law by failing to fully comply with the requirements of Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the petitioner fails to demonstrate that any harm caused by the trial court’s sanction cannot be adequately redressed on appeal, i.e., that any material injury is irreparable.

Petitioner belatedly cites in its reply brief to Coconut Grove Playhouse, Inc. v. Knight-Ridder, Inc., 935 So.2d 597 (Fla. 3d DCA 2006), claiming that the Third District Court of Appeal accepted certiora-ri jurisdiction when the trial court issued a sanction order on a failure to produce documents which essentially entered a default against Coconut Grove, because the trial court departed from the essential requirements of law by failing to comply with Kozel. Petitioner claims here that the trial court’s failure to comply with Kozel also makes this case amenable to certiorari review.

Petitioner’s reliance on Coconut Grove is misplaced. That case involved a suit to compel public records from an entity which denied it was subject to Chapter 119, Florida Statutes. Id. at 598. The court had ordered Coconut Grove to produce the documents or show cause why it was not a public agency. Id. When Coconut Grove appeared at a hearing without the documents but arguing it was not a public agency, the court found it had failed to comply with the subpoena. Id. As a sanction, the court ordered the production of the documents requested in the complaint, “essentially entering a default.” Id. Because the order failed to comply with Ko-zel, the Third District granted the petition and remanded for the trial court to comply. Id. at 599. This was essentially a “cat-out-of-the-bag” scenario which would require Coconut Grove to respond to a public records request which it asserted did not apply. While the failure to comply with Kozel was a departure from the essential requirements of law, it was the requirement that Coconut Grove produce documents it may not otherwise have been required to produce which could not be remedied on appeal, thus giving the Third District jurisdiction to consider the petition.

Having failed to demonstrate how the injury could not be remedied on appeal or to even make anything more than a conclu-sory statement to that effect, petitioner has failed to properly invoke this court’s jurisdiction; therefore, the petition must be DISMISSED.

ROBERTS and ROWE, JJ., concur.


text:
    Jeffrey Dale SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1237.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.

      William R. Ponall, Snure & Ponall, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jeffrey Dale Smith appeals from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 and a separate order denying an amended motion that supplemented his original motion after the trial court had issued a final order. We affirm, without comment, the postconviction court’s denial of the Appellant’s second and third claims in his original rule 3.850 motion, as well as the denial of his amended rule 3.850 motion. However, as to the appellant’s first claim in his original rule 3.850 motion, we reverse.

A defendant states a facially sufficient claim of ineffective assistance of counsel where he alleges that his attorney misad-vised him as to his maximum possible sentencing exposure and that, but for this misadvice, he would not have pled guilty, but would have insisted on going to trial. Kasper v. State, 828 So.2d 1047, 1047-48 (Fla. 1st DCA 2002). A trial court may not summarily deny such a claim unless it is refuted by the record. Id. at 1048.

In the instant case, the appellant set out a facially sufficient claim. He alleged that his attorney erroneously advised him that he faced a total possible sentence of thirty-five years in prison, when the highest possible sentence he could have received was actually twenty-five years in prison. He further asserted that, but for this misad-vice, he would not have pled guilty, but would have insisted on going to trial. As the State conceded in its response to this Court’s Toler order, this claim was not refuted by the records attached to the trial court’s order denying relief.

Accordingly, we reverse the trial court’s denial of the first claim in the appellant’s original rule 3.850 motion. On remand, should the trial court again conclude that appellant’s claim lacks merit, it shall attach to its order the portions of the record conclusively refuting that claim. Otherwise, it shall hold an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

WOLF, ROWE, and OSTERHAUS, JJ„ concur.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    Jeffrey SEABURY, Appellant, v. STATE, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, o/b/o, Tiffany Denise SEABURY, Appellee.
    No. 1D14-1663.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.

      Candace A. Hawthorne of the Hawthorne Law Firm, P.A., Tavares, for Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the proceedings below cannot be transcribed and the parties report that they are unable to prepare a statement of the evidence or proceedings, the final administrative support order on appeal is vacated and this cause is remanded for a hearing de novo. See Arnold Lumber Co. v. Harris, 469 So.2d 786 (Fla. 1st DCA 1984).

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


text:
    HOPEWELL, LLC, Petitioner, v. CAUSSEAUX, HEWETT & WALPOLE, INC., a Florida corporation, Respondent.
    No. 1D14-1723.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Peter A. Robertson, Erin Rohan Smith, and William Douglas Stanford, Jr., of The Robertson Firm, St. Augustine, for Petitioner.
    Jay Donald O’Sullivan and Sally H. Seltzer of Quintairos, Prieto, Wood & Boyer, P.A., Miami, for Respondent.
   PER CURIAM.

Because petitioner has failed to show the trial court’s order caused petitioner irreparable harm that cannot be remedied on appeal, we dismiss the petition. See Riano v. Heritage Corp. of S. Fla., 665 So.2d 1142, 1144 (Fla. 3d DCA 1996); Patterson v. Whitehead, 360 So.2d 1136 (Fla. 1st DCA 1978).

PETITION DISMISSED.

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


text:
    Charles Edward STARLING, Appellant, v. Sonya Gallagher STARLING, Appellee.
    No. 1D14-2691.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Lucas J. Taylor, Sellers, Taylor & Morrison, P.A., Live Oak, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Court has determined that the Final Judgment of Dissolution of Marriage is not a final order. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002). Accordingly, the appeal dismissed as premature.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


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    Phillip BOATMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3218.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Bruce A. Miller, Public Defender, and David A. Dunkerley, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of prohibition, petitioner seeks review of the lower tribunal’s order denying his amended motion for disqualification. Upon review, we find that the motion for disqualification was legally sufficient. The petition for writ of prohibition is therefore granted and the trial judge is directed to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

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


author: HUGHES, J.,

text:
    George M. FRIERSON v. Heidi S. FRIERSON.
    No. 2014-CJ-1628.
    Supreme Court of Louisiana.
    Aug. 22, 2014.
   In re Frierson, Heidi Sinclair; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court, No. 2003-112481 to the Court of Appeal, Fourth Circuit, No. 2014-CA-0064.

| jDenied.

HUGHES, J., concurs with reasons.

HUGHES, J.,

concurring.

| Nlie moving party is entitled to rebuttal. If evidence is offered that is not proper on rebuttal, it can be objected to and ruled on by the trial court.


text:
    Robert H. GATTI, et al. v. STATE of Louisiana, through the OFFICE OF CONSERVATION, and James H. Welsh, Commissioner of Conservation, et al.
    No. 2014-C-0870.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re EOG Resources; Exco Operating L.P.; Forest Oil Permian Corporation; Goodrich Petroleum Company L.L.C.; JW Operating; Petro Hawk Operating Company; QEP Energy Company; SWEPI L.P.; XTO Energy Inc.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E., No. 589,-350; to the Court of Appeal, First Circuit, No. 2013 CA 0289.

Prior report: LaApp., 2014 WL 3517548.

| Writs granted. The court of appeal is reversed. The district court’s ruling, which granted the defendants’ exceptions of lack of subject matter jurisdiction, no cause of action, no right of action and prescription/peremption are reinstated. The plaintiffs’ claims are dismissed without prejudice, as originally ordered by the district court.

VICTORY, J., recused.

KNOLL, J., would deny.

HUGHES, J., would deny.


text:
    Robert H. GATTI, et al. v. STATE of Louisiana, through the OFFICE OF CONSERVATION, and James H. Welsh, Commissioner of Conservation, et al.
    No. 2014-C-880.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Encana Oil & Gas USA Inc.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 589,350; to the Court of Appeal, First Circuit, No. 2013 CA 0289.

Prior report: La.App., 2014 WL 3517548.

11 Writs granted. The court of appeal is reversed. The district court’s ruling, which granted the defendants’ exceptions of lack of subject matter jurisdiction, no cause of action, no right of action and prescription/peremption are reinstated. The plaintiffs’ claims are dismissed without prejudice, as originally ordered by the district court.

VICTORY, J., recused.

KNOLL, J., would deny.

HUGHES, J., would deny.


text:
    Robert H. GATTI, et al. v. STATE of Louisiana, through the OFFICE OF CONSERVATION, and James H. Welsh, Commissioner of Conservation, et al.
    No. 2014-C-885.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Coronado Energy E&P Company L.L.C.; El Paso E&P Company L.P.; EP Energy E&P Company L.L.C.; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 589,350; to the Court of Appeal, First Circuit, No. 2013 CA 0289.

Prior report: La.App., 2014 WL 3517548.

| ]Writs granted. The court of appeal is reversed. The district court’s ruling, which granted the defendants’ exceptions of lack of subject matter jurisdiction, no cause of action, no right of action and prescription/peremption are reinstated. The plaintiffs’ claims are dismissed without prejudice, as originally ordered by the district court.

VICTORY, J., recused.

KNOLL, J., would deny.

HUGHES, J., would deny.


text:
    Robert H. GATTI, et al. v. STATE of Louisiana, through the OFFICE OF CONSERVATION, and James H. Welsh, Commissioner of Conservation, et al.
    No. 2014-C-888.
    Supreme Court of Louisiana.
    Aug. 25, 2014.
   In re Louisiana Department of Conservation; — Defendant; applying For Writ of Certiorari and/or Review, parish of E. Baton Rouge, 19th Judicial District Court Div. E., No. 589,350; to the Court of Appeal, First Circuit, No. 2013 0289.

Prior report: La.App., 2014 WL 3517548.

|!Writs granted. The court of appeal is reversed. The district court’s ruling, which granted the defendants’ exceptions of lack of subject matter jurisdiction, no cause of action, no right of action and prescription/peremption are reinstated. The plaintiffs’ claims are dismissed without prejudice, as originally ordered by the district court.

VICTORY, J., recused.

KNOLL, J., would deny.

HUGHES, J., would deny.


text:
    STATE ex rel. Michael MAYBERRY v. STATE of Louisiana.
    No. 2013-KH-2663.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Mayberry, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 505-625; to the Court of Appeal, Fourth Circuit, No. 2013-K-1327.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Barry A. FERGUSON v. STATE of Louisiana.
    No. 2013-KH-2669.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Ferguson, Barry A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 440-908; to the Court of Appeal, Fourth Circuit, No. 2013-K-1385.

Denied.


author: HUGHES, J.

text:
    STATE ex rel. Samuel KELLY v. STATE of Louisiana.
    No. 2013-KH-2670.
    Supreme Court of Louisiana.
    July 31, 2014.
   HUGHES, J.

As the writ report acknowledges, the state’s “key witness” committed perjury on the stand, and the state dismissed a rule to revoke his probation, while the witness testified the state made him no promises. The defendant was convicted of murder primarily on the testimony of this one witness with no physical evidence. I would grant the writ to order an evidentiary hearing.


text:
    STATE ex rel. Dennis Weldon THOMPSON v. STATE of Louisiana.
    No. 2013-KH-2671.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Thompson, Dennis Weldon;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. 0, No. 68548; to the Court of Appeal, Third Circuit, No. 13-194.

Denied.


text:
    STATE ex rel. Ragan MAYO v. STATE of Louisiana.
    No. 2013-KH-2673.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Mayo, Ragan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div, No. 50271; to the Court of Appeal, Third Circuit, No. KH 13-00790.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Jarvis BALLARD v. STATE of Louisiana.
    No. 2013-KH-2675.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Ballard, Jarvis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 208-545; to the Court of Appeal, Fourth Circuit, No. 2013-K-1381.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Rhonda K. OLIVER v. STATE of Louisiana.
    No. 2013-KH-2682.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Oliver, Rhonda K.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 01-955; to the Court of Appeal, Fifth Circuit, No. 13-KH-754.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.