text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Gregory R. LANNING, Respondent.
    No. 1D14-2193.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.
    Rehearing Denied Feb. 20, 2015.
    Stephen D. Hurm, General Counsel, and Damaris Reynolds, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    L. Lee Lockett of Stone Lockett, PA, Jacksonville Beach, for Respondent.
   PER CURIAM.

The Department of Highway Safety and Motor Vehicles petitions this court to quash an order of the circuit court which overturned a hearing officer’s order suspending the driver’s license of respondent Gregory Lanning pursuant to section 322.2615, Florida Statutes. We find that the trial court improperly reweighed the evidence concerning substantial compliance with Rule 11D-8.007(3), Florida Administrative Code. By doing so, the circuit court applied the wrong law. See Dep’t of Highway Safety & Motor Vehicles v. Wiggins, 151 So.3d 457 (Fla. 1st DCA 2014). We, therefore, grant the petition and quash the circuit court’s order and remand with direction that the circuit court follow the correct law.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell Roy SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5644.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.
    Rehearing Denied Feb. 16, 2015.
    Russell Roy Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    Abderazak ELOFIR, Appellant, v. Wafa HAMANE, Appellee.
    Nos. 5D14-979, 5D14-1366.
    District Court of Appeal of Florida, Fifth District.
    Jan. 6, 2015.
    Rehearing Denied Feb. 4, 2015.
    Abderazak Elofir, Orlando, pro se.
    Jeffrey A. Conner, Winter Garden, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

ORFINGER, BERGER and EDWARDS, JJ., concur.


author: LOGUE, J.

text:
    Azadeh EMAMINEJAD, Appellant, v. OCWEN LOAN SERVICING, LLC, Appellee.
    No. 3D14-1736.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Rehearing Denied Feb. 19, 2015.

      Karen J. Barnet-B acker, Miami, for appellant.
    Morris, Laing, Evans, Brock & Kennedy, CHTD, and Khari E. Taustin, Jeremy W. Harris, Masimba M. Mutamba, and Angela Barbosa Wilborn, West Palm Beach, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Azadeh Emaminejad (Borrower) seeks review of the amended final judgment of foreclosure entered in favor of Ocwen Loan Servicing, LLC (Lender). The arguments raised by the Borrower on appeal are 1) the Lender lacked standing to file and maintain the foreclosure action against it; 2) the Lender never provided record evidence that it owned the mortgage and promissory note at the time it filed the complaint; 3) the Lender was unable to satisfy the requirements for a lost note claim; 4) the evidence which the trial court allowed the Lender to present in support of its lost note claim was inadmissible hearsay; and 5) the Lender failed to satisfy a condition precedent to filing suit.

The most difficult, and ultimately insurmountable, obstacle faced by the Borrower is the lack of a trial transcript. The Borrower’s assertions that the Lender lacked standing and did not prove the elements necessary for reestablishing a lost note contradict the trial court’s findings in the amended final judgment. Under Florida law, “[w]hen reviewing a judgment rendered after a nonjury trial, the trial court’s findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous.” Stone v. BankUnited, 115 So.3d 411, 412 (Fla. 2d DCA 2013) (citing Taylor v. Richards, 971 So.2d 127, 129 (Fla. 4th DCA 2007)). Here, the trial court found that “the allegations contained in the [Lender’s] Complaint have been proven by competent evidence and the equities in this case are with the [Lender].” Moreover, the trial court also found that although the Lender was not in possession of the original note at the time of trial, the Lender “was in possession of the original note and entitled to enforce it when the loss of possession occurred.” The trial court further determined that the loss of possession of the note was due to “inadvertent misplacement of the instruments while files were mailed to counsel for the servicer” and that loss of possession did not result from either a transfer by the Lender or a lawful seizure. Additionally, the amended final judgment provided that the Lender “made proof of the terms of the lost note” and “is the owner of said note.”

The Borrower has not, and given the record before this Court cannot, demonstrate that the trial court’s findings are clearly erroneous. For example, the copy of the note attached to the original verified complaint, as well as the amended verified complaint, contains an allonge that clearly makes the note payable to the Lender. Likewise, the record shows that the Lender’s amended answers to the Borrower’s first set of interrogatories attached a copy of the assignment of mortgage from the original mortgagee to the Lender. In light of these documents, and without any proof to the contrary from the trial, we cannot find any error in the amended final judgment warranting reversal.

With respect to the evidence regarding the satisfaction of a condition precedent by issuing a notice of default, absent a transcript, the Borrower cannot demonstrate that it was able to show at trial that the condition was not satisfied. The Borrower also goes on to challenge the trial court’s discretionary evidentiary rulings regarding the admission of evidence to establish the circumstances under which the note was lost. Absent a transcript, it is all but impossible for this Court to review what was presented to the trial court as evidence and what arguments were made against the admission of this evidence.

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

Shojaie v. Gables Court Prof'l Ctr., Inc., 974 So.2d 1140, 1142 (Fla. 3d DCA 2008) (quoting Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979)). All of the challenges made by the Borrower basically rest on this Court’s review of the evidence and arguments made at trial, neither of which can be done in the absence of a transcript. Based upon what is available in the record, and without proof of anything from the trial to. the contrary, we affirm.

Affirmed.


author: EMAS, J.

text:
    Mario CHALMERS, Appellant, v. Brittany BURROUGH, Appellee.
    No. 3D13-3203.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Rehearing Denied Feb. 2, 2015.
    Nancy A. Hass (Hallandale Beach), for appellant.
    Simon, Schindler & Sandberg, LLP and Roger J. Schindler, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

Appellant, Mario Chalmers appeals the trial court’s supplemental final judgment which modified child support and parental responsibility as to the parties’ minor child, Q.E.C.

We affirm the supplemental final judgment in all respects, with one exception. We reverse and remand for the trial court to clarify whether the supplemental final judgment maintained the parents’ shared parental responsibility (with Appellee given ultimate decision-making on medical, health and educational issues, or whether the supplemental final judgment modified the final judgment by awarding Appellee sole parental responsibility, requiring a determination that maintaining shared parental responsibility would be detrimental to the child. See § 61.13(2)(c)2., Fla. Stat. (2012); Hunter v. Hunter, 540 So.2d 235 (Fla. 3d DCA 1989).

We therefore reverse in part the supplemental final judgment and remand for further proceedings as may be necessary on this limited issue, and for entry of an amended supplemental final judgment. In all other respects, the supplemental final judgment is affirmed.

      . See § 61.13(2)(c)2.a., Fla. Stat. (2012).

      . Appellee conceded at oral argument that there was not competent substantial evidence to support a finding that shared parental responsibility would be detrimental to the child.


text:
    Curley N. BRAGGS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2538.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Rehearing Denied March 6, 2015.
    Curley N. Braggs, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

We affirm both the Trial Court’s order entered March 7, 2013 and its subsequent order of June 23, 2014, finding that defendant’s sentence is not illegal.


text:
    Robert E. BANKS, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D14-5719.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2015.
    Rehearing Denied March 6, 2015.
    Robert E. Banks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    Richard Hubert SNOW, et.al., Appellants, v. WELLS FARGO BANK, N.A., etc., Appellee.
    No. 3D14-1547.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2015.
    Rehearing Denied Feb. 19, 2015.

      John H. Ruiz and Karen J. Barnet-Backer and Christine M. Lugo, for appellants.
    Burr & Forman and John R. Chiles and Christine Irwin Parrish and Gennifer L. Bridges (Orlando), for appellee.
    Before SALTER, EMAS and SCALES, JJ.
   EMAS, J.

Richard and Nancy Snow (“the Snows”) appeal a final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A. (“Wells Fargo”). We affirm.

FACTS

The Snows executed a note and mortgage on real property in Miami, Florida on May 25, 2007. Pursuant to the terms of the mortgage, the lender had the option to accelerate the debt in the event of a default by the borrower:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise.) The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at is option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

The Snows failed to make the required monthly payment due on October 1, 2007. On December 6, 2007, Wells Fargo sent the Snows a notice of default, which provided in pertinent part:

You are hereby provided formal notice by the Servicer (EMC Mortgage Corporation), as authorized by the Creditor of the above-referenced home loan (hereinafter referred to as “the Debt”) that you are in default under the terms and conditions of the Note and Security Instrument (i.e. Deed of Trust, Mortgage, etc.) for failure to pay the required installments when due, and important data regarding that information is found in this document.
This letter serves as further notice that EMC Mortgage Corporation intends to enforce the provisions of the Note and Security Instrument. You must pay the full amount of the default on this loan by the thirty-fifth (35th) day from the date of this letter which is 01/10/2008 (or if said date falls on a Saturday, Sunday, or legal holiday, then on the first business day thereafter). If you do not pay the full amount of the default, we shall accelerate the entire sum of both principal and interest due and payable, and invoice any remedies provided for in the Note and Security Instrument, including but not limited to the foreclosure sale of the property....
You are hereby informed that you have the right to “cure” or reinstate the loan after acceleration and the right to assert in the foreclosure proceeding the nonexistence of a default or any other defense you may have to acceleration and sale.
As of 12/05/2007 the amount of the debt that we are seeking to collect is $6,872.72, which includes the sum of payments that have come due on or after the date of default....

Thereafter, Wells Fargo filed a foreclosure action against the Snows on March 12, 2008, alleging, inter alia:

There has been a default under the note and mortgage held by Plaintiff in that the payment due October 1, 2007 and all subsequent payments have not been made. Plaintiff declares the full amount due under the note and mortgage to be now due.
All conditions precedent to the filing of this action have been performed or have occurred.

On June 28, 2011, Wells Fargo voluntarily dismissed, without prejudice, the foreclosure action against the Snows. Thereafter, on March 5, 2013, Wells Fargo filed a second foreclosure action against the Snows. The Snows answered this complaint and alleged as an affirmative defense that the expiration of the five-year statute of limitations barred the second foreclosure action.

At trial, the Snows argued that the second foreclosure action was barred by the statute of limitations because the limitations period began to run on January 10, 2008 (the date by which the Snows were required, pursuant to the notice of default letter, to cure the default) and expired five years later (on January 10, 2018), three months prior to the filing date of the second foreclosure action. In other words, the Snows argued, because they failed to cure the default within the time period set forth in the default letter, the debt was automatically accelerated on January 10, 2008.

Wells Fargo contended that the date of acceleration was not January 10, 2008, but rather March 12, 2008, the date the complaint was filed in the first foreclosure action. Therefore, Wells Fargo argued, the five-year limitations period had not yet expired when Wells Fargo filed the second lawsuit on March 5, 2013. The December 7, 2007 letter, it argued, was a notice of default and a notice that Wells Fargo would take future action, including but not limited to acceleration of the debt and the filing of a foreclosure action, if the default was not cured.

The trial court determined that the debt was accelerated on the date Wells Fargo filed the lawsuit on March 12, 2008; that the statute of limitations commenced on that date; and that the second foreclosure action (filed on March 5, 2013) was accomplished prior to the expiration of the five-year limitations period. Final judgment of foreclosure was entered thereafter, and this appeal followed. We review this statute of limitations issue de novo. Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081 (Fla. 3d DCA 2014).

DISCUSSION

When an acceleration clause is absolute, the entire indebtedness becomes due immediately upon default. Such an acceleration is self-executing, requiring neither notice of default nor some further action to accelerate the debt. Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA 1963). By contrast, where the acceleration clause is optional (as it is in this case), it is not automatic or self-executing, but requires the lender to exercise this option and to give notice to the borrower that it has done so. See Campbell v. Werner, 232 So.2d 252, 254 n. 1 (Fla. 3d DCA 1970) (noting that the filing of a suit for foreclosure amounted to the exercise of the option to accelerate and operated as notice to the mortgagor of such election); Rones v. Charlisa, Inc., 948 So.2d 878, 879 (Fla. 4th DCA 2007) (quoting Central Home Trust Co. of Elizabeth v. Lippincott, 392 So.2d 931, 933 (Fla. 5th DCA 1980)) (holding acceleration option was exercised by filing of foreclosure complaint and noting that “to constitute an acceleration after default, where the holder has the option to accelerate, the holder or payee of the note must take some clear and unequivocal action indicating its intent to accelerate all payments under the note, and such action should apprise the maker of the fact that the option to accelerate has been exercised.”); Greene v. Bursey, 733 So.2d 1111, 1115 (Fla. 4th DCA 1999) (noting that in an installment contract with an optional acceleration clause, “the entire debt does not become due on the mere default of payment; rather, it become[s] due when the creditor takes affirmative action to alert the debtor that he has exercised his option to accelerate”).

The statute of limitations on a mortgage foreclosure action does not commence until a default in payment of the final installment, unless the mortgage contains an acceleration clause. Locke v. State Farm Fire and Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987); Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977).

When the borrower defaults on a payment under a note containing an optional acceleration clause, the lender can exercise its option to accelerate all future payments, making the entire debt immediately due and payable. A cause of action on an accelerated debt accrues, and the statute of limitation commences, when the lender exercises the acceleration option and notifies the borrower of this exercise. See Greene, 733 So.2d at 1115; Monte v. Tipton, 612 So.2d 714 (Fla. 2d DCA 1993)(holding that, in a mortgage containing an optional acceleration clause, the cause of action for foreclosure did not accrue, and the statute of limitations did not begin to run, until the lender exercised her option to accelerate and demanded the total balance of principal and interest).

We hold that the December 7, 2007 letter did not constitute an acceleration of the debt nor did it “apprise the maker of the fact that the option to accelerate has been exercised.” Central Home Trust, 392 So.2d at 933 (emphasis supplied). Rather, the December 7th letter served as a notice of default, notice of the Snows right to cure, and notice that Wells Fargo intended, at some unspecified future date, to accelerate the debt if the Snows failed to cure the default as set forth in the letter. The pertinent language of the December 7th letter provided:

This letter serves as further notice that EMC Mortgage Corporation intends to enforce the provisions of the Note and Security Instrument. You must pay the full amount of the default on this loan by the thirty-fifth (35th) day from the date of this letter which is 01/10/2008 (or if said date falls on a Saturday, Sunday, or legal holiday, then on the first business day thereafter). If you do not pay the full amount of the default, we shall accelerate the entire sum of both principal and interest due and payable, and invoke any remedies provided for in the Note and Security Instrument, including but not limited to the foreclosure sale of the property....

(Emphasis supplied.)

Absent from the letter is any declaration by Wells Fargo that the full amount of principal and interest is immediately due, or any demand for payment of the full amount of principal and interest. That is because, under the terms of the mortgage, a tender by the Snows of the default amount would cure the default and prevent Wells Fargo from accelerating the debt. Yelen v. Bankers Trust Co., 476 So.2d 767 (Fla. 3d DCA 1985). The payment demanded by the letter was merely the specific amount necessary to bring the loan current:

As of 12/05/2007 the amount of the debt that we are seeking to collect is $6,872.72, which includes the sum of payments that have come due' on or after the date of default....

The Snows’ argument focuses on one portion of the letter which reads: “If you do not pay the full amount of the default, we shall accelerate the entire sum of both principal and interest due and payable .... ” (Emphasis added.) We reject the Snows’ contention that the phrase “we shall accelerate” somehow converted the optional acceleration into a prospective, self-executing acceleration which was automatically triggered upon the failure of the Snows to cure the default. The December 7th letter did not indicate that Wells Fargo was exercising its option to accelerate, but only that Wells Fargo intended to exercise its option to accelerate in the future, should the Snows fail to cure the default. Therefore, the lapse of the 35-day grace period (without a cure of the default) did not automatically accelerate the debt or trigger the commencement of the five-year statute of limitations. Instead, the limitations period commenced when Wells Fargo filed the March 12, 2008 foreclosure complaint, expressing in clear and unequivocal language that it was exercising its option and accelerating the debt:

There has been a default under the note and mortgage held by Plaintiff in that the payment due October 1, 2007 and all subsequent payments have not been made. Plaintiff declares the full amount due under the note and mortgage to be now due.

(Emphasis supplied.)

Thus, the statute of limitations would have expired March 12, 2013, and because the second foreclosure action was filed March 5, 2013, it was not time-barred.

Affirmed.

      . The relevant statute of limitations is provided in section 95.11(2)(c), Florida Statutes (2008).

      . We find no merit in the other issues raised in this appeal. See Deutsche Bank Trust Co. Am. v. Beauvais, No. 3D14-575, — So.3d — , 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014).


text:
    Conraad L. HOEVER, Appellant, v. FLA. DEPT. OF CORRECTIONS, Appellee.
    No. 1D13-5007.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    Conraad L. Hoever, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Conraad Hoever appeals an order dismissing his petition for writ of mandamus as moot and for failure to properly exhaust his administrative remedies. We reverse.

Appellant filed a series of grievances challenging a disciplinary report he received for possession of contraband. One of his formal grievances was denied by the warden on October 28, 2011. Appellant appealed this denial to the Office of the Secretary of the Department of Corrections (DOC). He dated his grievance appeal form November 8, 2011, and signed it. However, the bottom portion of the grievance form, labeled “Receipt for Appeals Being Forwarded to Central Office,” was marked as submitted by appellant on November 15, 2011. The Office of the Secretary returned the grievance appeal without action, finding it was “received in noncompliance” with Florida Administrative Code Rule 33-103.014(1)©, which provides that a grievance appeal must be received in the office within fifteen calendar days of the response to the formal grievance.

Appellant then filed a petition for writ of mandamus in the circuit court. He alleged that he placed his grievance appeal in the “grievance box” on November 8, 2011, that the grievance department at his correctional facility was not properly responding to inmate grievances, and that he should not be subjected to an unattainable policy based on the institution’s deficiency. The circuit court dismissed the petition, finding that appellant had not properly exhausted his administrative remedies because he had not perfected his appeal at the Office of the Secretary. Moreover, the court found, the record clearly refuted appellant’s allegation that he timely filed his grievance appeal on November 8, because it demonstrated that appellant did not give the appeal to prison officials for mailing to the Office of the Secretary until November 15. The court found that appellant did not show that his grievance appeal was improperly handled, because he failed to overcome the presumption that public officials act properly in the performance of their duties, citing Purdy v. Mulkey, 228 So.2d 132, 136 (Fla. 3d DCA 1969). Finally, the court found that any challenge to the grievance process at appellant’s correctional facility was moot, as appellant had since been transferred to a new facility and was no longer subject to that grievance policy.

“An appeal from an order dismissing a petition for writ of mandamus is reviewed by this court de novo. ‘One seeking a writ of mandamus must establish the existence of “a clear legal right to the performance of a clear legal duty by a public officer and that ... no other legal remedies [are] available.” ’ ” Waters v. Dep’t of Corr., 144 So.3d 613, 615 (Fla. 1st DCA 2014) (citations omitted). “A petition for writ of mandamus filed in the circuit court is the correct manner for an inmate to challenge a determination that a grievance appeal is untimely.” Id. at 615 n. 3.

Under Florida Administrative Code Rule 33-103.007, an inmate may appeal the result of a formal grievance to the Office of the Secretary, and indeed, must take such an appeal to exhaust his administrative remedies. See, e.g., Jackson v. Parkhouse, 826 So.2d 478, 479 (Fla. 1st DCA 2002). Florida Administrative Code Rule 33-103.006(8) contains the mailing procedures for such inmate grievances:

(8) Mailing Procedures. The warden or person designated in Rule 33-103.002, F.A.C., shall establish a procedure in the institution or facility under his supervision for processing those grievances that require mailing. Inmates who are filing grievances that require mailing shall be required to utilize the procedure set forth in this rule when processing their grievances or appeals to the reviewing authority of community facilities or the Bureau of Policy Management and Inmate Appeals in central office. The institution or facility shall provide postage for grievances submitted through this process. Procedures implemented shall include, at a minimum, the following:
(a) The establishment of an office through which grievances shall be processed.
(b) The establishment of a logging and tracking system to record and document receipt and mailing of inmate grievances.
(c) A requirement that the staff person designated to accept the grievance to be mailed shall:
1. Complete the receipt portion of Form DC1-303 for appeals being forwarded to central office by entering a log/tracking number and date of receipt and sign as the recipient.
2. Record receipt of the grievance in the institutional log. The staff person shall not read or classify the grievance.
3. Place the grievance in the mail through the institution or facility mail service within one workday.
(d) The inmate shall have his grievance ready for mailing at the time he turns it over to staff for processing as described in paragraph (c) above. Once this process has been completed, the grievance will not be returned to the inmate. If the inmate desires his grievance to be forwarded in a sealed envelope, the inmate shall provide to the staff a properly addressed envelope so that onee the grievance is processed by staff, the grievance can be placed into the envelope and sealed for forwarding.
(e) If the inmate elects to mail'the grievance to central office directly and bypass the logging/tracking process, the inmate may submit his or her grievance in a sealed envelope to be placed in the institutional bulk mail that is to be mailed daily to central office.
(f) Upon receipt of a mailed grievance by the reviewing authority as defined in subsection 33-103.002(15), F.A.C., the following shall occur:
1. The decision of whether or not the grievance has been timely filed by the inmate shall be made based upon the following comparisons:
a. In the case of a formal grievance being filed, by comparing the receipt date on Form DC1-303 to the response date of the informal grievance.
b. In the case of a grievance being filed directly at the institutional levél, by comparing the receipt date on Form DC1-303 to the date of the incident or situation giving rise to the complaint.
2. The receiving office shall review the grievance and determine the classification of the grievance and enter the same on the receipt that is returned to the inmate.
3. The receiving office shall then process the grievance filed by the inmate in accord with the provisions set forth in Rule 33-103.006 or 33-103.007, F.A.C., as appropriate.

DOC argues in its brief that the process set out in this rule provides an inmate the opportunity to have his grievance receipted at the institution, so that the inmate’s grievance will be deemed filed on the date on which it is received. DOC argues that because the rule requires the receipting staff member to complete the receipt section upon receipt of the grievance, this section of the form is “dispositive of the fact that appellant did not hand over his grievance for mailing on November 8, 2011, as he claims.”

We disagree that the form clearly refutes appellant’s allegation that he timely submitted his grievance on November 8. In Crews v. Malara, 123 So.3d 144, 146 (Fla. 1st DCA 2013), this court found that because DOC had “established a procedure for tracking the date that legal mail changes hands for purposes of establishing jurisdictional timeframes in court proceedings ... DOC has a mechanism to rebut the presumption [established by] the inmate’s assertion that his pleading was actually placed in the hands of prison or jail officials on a particular date.” (Emphasis supplied.) Notably, the procedure for legal mail requires the prison staff member to date stamp outgoing legal mail in the inmate’s presence, and have the inmate initial the stamp and seal the envelope in the staff member’s presence. Id. (citing Florida Administrative Code Rule 33-210.102(8)(g)). In contrast, the procedure set out in Rule 33-103.006(8)(c) for receiving grievance appeals only requires the staff member to enter the date he or she received the grievance appeal. There is no initialing process to establish that the date of receipt is the same as the date the inmate places his appeal in the “grievance box.” Thus, in the case of mailed inmate grievance appeals, unlike the process for legal mail, DOC has no mechanism to rebut the presumption that appellant timely handed over his grievance appeal for processing and mailing. See Thompson v. State, 761 So.2d 324, 326 (Fla.2000) (“[H]enceforth we will presume that a legal document submitted by an inmate is timely filed if contains a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date.... This presumption will shift the burden to the state to prove that the document was not timely placed in prison officials’ hands for mailing.”).

The receipt initialed only by a prison staff member, outside of appellant’s presence, does not necessarily refute petitioner’s allegation that he submitted the grievance on November 8, but that prison officials did not mark it received until November 15. By simply offering the signed receipt, DOC did not rebut appellant’s claim that he timely submitted his grievance appeal on November 8. Accordingly, appellant had the right to a response to his timely grievance appeal challenging his disciplinary report. We therefore reverse the circuit court’s dismissal of the petition and remand for entry of the writ.

WOLF, CLARK, and SWANSON, JJ., concur.

      . The "mailbox rule” was extended to griev-anee appeals in Gonzalez v. State, 604 So.2d 874, 876 (Fla. 1st DCA 1992): "[W]here an appeal from a grievance procedure must be received by the Department within 15 calendar days of the date of the institutional response, under the mailbox rule the appeal is deemed ‘received’ by the Department 'at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state.’” (quoting Haag v. State, 591 So.2d 614, 617 (Fla.1992)).

      . We note that the record does not contain a copy of the institutional log provided for in Florida Administrative Code Rule 33-103.006(8)(c)2.


author: LAGOA, J.

text:
    Nivia LASCAIBAR, Appellant, v. Albert A. LASCAIBAR, Appellee.
    No. 3D13-1693.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Rehearing Denied Feb. 25, 2015.
    Robert I. Spiegelman, Miami, for appellant.
    Steven Grossbard, for appellee.
    Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.
   LAGOA, J.

Nivia Lascaibar (the “Mother”) appeals from an order of the trial court denying her Exceptions to the General Magistrate’s Report and Recommendations, which determined that she was not entitled to the accrual of interest on child support payments in arrears owed by Albert Lascaibar (the “Father”). Because the Mother was entitled to prejudgment interest in accordance with the trial court’s prior April 2010 order, we find that the trial court abused its discretion in denying the Mother’s exceptions and we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

The parties in this case have a long history before this Court. In 1995, this Court reversed the trial court’s order which improperly attributed incorrect annual incomes to both parties and remanded for a proper calculation of support payments. See Lascaibar v. Lascaibar, 658 So.2d 170 (Fla. 3d DCA 1995). After remand, the trial court entered a commitment and final judgment against the Father for the balance of unpaid child support plus interest, and adjudicated the Father in contempt. In 1998, this Court held that the trial court’s order of contempt, commitment, and final judgment failed to take sufficient action to support payment of the arrearages and remanded with instructions to issue a rule to show cause pursuant to Florida Rule of Criminal Procedure 3.840. See Lascaibar v. Lascaibar, 715 So.2d 1042 (Fla. 3d DCA 1998). The Father was subsequently acquitted of criminal contempt, and the Mother appealed the acquittal. This Court dismissed the appeal as “[a] judgment of acquittal, whether based on' a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed....” Lascaibar v. Lascaibar, 773 So.2d 1236, 1236 (Fla. 3d DCA 2000).

In March 2010, the Mother filed a petition for modification of child support and custody. The general magistrate recommended that the Father owed the Mother child support arrears totaling $82,845.98 as of March 8, 2010, and that “[p]re-judgment interest has and shall continue to accrue on any outstanding arrearage at the statutory rate.” The trial court subsequently ratified the general magistrate’s recommended order. No appeal was taken from the trial court’s order ratifying the general magistrate’s report and recommendations.

In November 2012, the Father filed a motion to terminate child support, arrear-age payments, and income deduction, to close the central depository account, and for an accounting of arrears. The Mother contended that the central depository failed to calculate, collect, and disburse the interest that was supposed to accrue on the arrearages pursuant to the 2010 trial court order. The general magistrate submitted a report and recommendations holding that: (1) the 2010 order made a specific finding that the Father owed $82,845.98 as of March 8, 2010; (2) the arrears had been fully paid off; and (3) the Father was entitled to have the account and case closed.

The Mother filed exceptions to the general magistrate’s report and recommendations, repeating her argument that the central depository failed to apply the interest on the support payments in arrears as mandated by the 2010 order. Although the Mother sought interest payments going back to the inception of the child support payment schedule, the trial court indicated that it was bound by the sum of $82,845.98 in arrears pursuant to the 2010 order, and that it would not consider anything prior to 2010. The trial court subsequently entered an order denying the Mother’s exceptions to the general magistrate’s report and recommendations, and this appeal ensued.

II. ANALYSIS

In April 2010, the hearing officer’s report and recommendations set the total amount of child support in arrears at $82,845.98. Significantly, the report stated that “[p]re-judgment interest has and shall continue to accrue on any outstanding ar-. rearage at the statutory rate.” (emphasis added). The trial court’s order ratifying this recommendation also stated that “the Court adopts each and every recommendation contained therein as this Court’s order.” Although the Mother argued she was entitled to the interest that accrued on the child support arrearage prior to the 2010 order, the trial court refused to consider this argument at the hearing on the exceptions taken, finding the issue had been waived.

We find that the trial court was correct in not considering arguments regarding interest that accrued on the ar-rearage prior to the 2010 order. A party may contest a general magistrate’s recommendation by filing an exception to the recommendation within ten (10) days from the date the recommendation is served. Fla. Fam. L. R. P. 12.490(f); Glaister v. Glaister, 137 So.3d 513, 517 (Fla. 4th DCA 2014); Calderon v. Calderon, 26 So.3d 688, 689 (Fla. 5th DCA 2010). Because the Mother did not file an exception to the general magistrate’s 2010 recommendation, the Mother can no longer claim entitlement to the interest accrued prior to 2010.

However, the Mother’s entitlement to interest that accrued on the arrearage after the 2010 order is a different issue. Indeed, at oral argument, the Father’s counsel conceded that the Mother is entitled to this interest. While a general magistrate’s findings of fact are presumed correct, a trial “court is duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether under the law and the facts the court is justified in entering the judgment recommended by the master.” Bell v. Bell, 307 So.2d 911, 914 (Fla. 3d DCA 1975); see also In re Drummond, 69 So.3d 1054, 1057 (Fla. 2d DCA 2011); Quincoces v. Quincoces, 10 So.3d 657, 659 (Fla. 3d DCA 2009) (quoting Bell). Furthermore, a trial court “should carefully determine whether the general master’s findings and determinations were supported by competent, substantial evidence or whether there was any other departure from the essential requirements of applicable law.” Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004). A trial court is not bound to accept findings which are clearly erroneous. Cerase v. Dewhurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006); Carls, 890 So.2d at 1138; Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999); De Clements v. De Clements, 662 So.2d 1276, 1282 (Fla. 3d DCA 1995) (en banc); Reichman v. Reichman, 450 So.2d 1188, 1189 (Fla. 3d DCA 1984).

We find that the general magistrate’s recommendations are clearly erroneous, as the Mother was entitled to prejudgment interest in accordance with the April 2010 order. The trial court therefore abused its discretion when it denied the Mother’s exceptions to the general magistrate’s January 2013 recommendations. Accordingly, we reverse the trial court’s Order Denying Exceptions to Report and Recommendations of General Magistrate/Hearing Officer and Order on Report of General Magistrate. On remand, the Mother should be permitted to present evidence as to the amount of interest that accrued only from April 2010 through August 2012 — the date the Father submitted the final lump-sum payment of $38,869.03 to the registry. See Applegate v. Applegate, 566 So.2d 865, 866 (Fla. 1st DCA 1990).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . We review a trial court’s decision to accept or reject a general magistrate's report and recommendations for an abuse of discretion. Burnstine v. Townley, 976 So.2d 624, 626 (Fla. 5th DCA 2008); Robinson v. Robinson, 928 So.2d 360, 362 (Fla. 3d DCA 2006); Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004).


author: ROTHENBERG, J.

text:
    Nelson Vladimir GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1872.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Rehearing Denied Feb. 16, 2015.

      Law Offices of Grey and Mourin, and Juan Mourin, Miami, and Lana Rapoport Cucchiella, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Nelson Vladimir Gonzalez, appeals from the revocation of his probation and the imposition of a fifteen-year prison sentence. We affirm.

On May 24, 2004, the defendant entered into a negotiated plea with the State wherein he agreed to plead guilty to second degree murder, resisting an officer with violence, three counts of aggravated assault on a police officer, driving with an unlawful blood alcohol level, and driving with a suspended license, and to be sentenced to ten years in prison followed by ten years of probation with several special conditions, including that the defendant not apply for early termination of his probation and that he not “apply for a driver’s license [at] any time.” Before accepting the defendant’s plea, the trial court specifically asked the defendant if he had been given a sufficient opportunity to discuss this plea offer with his attorney and whether he understood that he was agreeing to a lifetime driver’s license revocation as a special condition of his probation. The defendant answered both questions in the affirmative, and the trial court accepted the defendant’s plea and sentenced him as agreed. The record also reflects that after the defendant entered his plea, he signed an Orders of Supervision form (“orders of probation”) prepared by the in-court probation officer, which lists as a special condition of probation: “LIFETIME D.L. REVOCATION NOT TO APPLY FOR DL.”

Despite specifically agreeing to a lifetime revocation of his driver’s license and to not ever apply for a driver’s license, the defendant applied for and received a driver’s license soon after he was released from prison. When the defendant’s supervising probation officer discovered that the defendant had obtained a driver’s license, the supervising probation officer filed an affidavit, and a probation violation hearing was set by the trial court.

Prior to the commencement of the probation violation hearing, the State informed the trial court that the defendant’s scoresheet range was 25.375 years to life, but that the State and the defendant had entered into a negotiated plea of six years in prison. Based on the alleged violation and the seriousness of the offenses the defendant had committed: driving under the influence with another person in the vehicle; fleeing from the police; driving his pickup truck the wrong way into oncoming traffic; turning and aiming his truck directly at an officer and narrowly missing him; and ultimately causing the death of the passenger in his vehicle, the trial court rejected the State’s plea offer, and a probation violation hearing was conducted.

The primary issue at the probation violation hearing was whether the defendant, who speaks Spanish and possesses a limited understanding of the English language, was properly advised that, as a special condition of his probation, he had a lifetime driver’s license revocation and that he was never to apply for a driver’s license. After taking testimony from the in-court probation officer, the supervising probation officer, and the defendant, and also reviewing the plea transcript and the orders of probation signed by the defendant, the trial court found that the defendant had been properly advised of these special conditions, the defendant knew he was prohibited from obtaining a driver’s license, and his violation was substantial and willful.

The defendant raises three grounds for reversal on appeal: (1) the trial court abandoned its role of impartiality by rejecting the State’s plea offer; (2) there was insufficient evidence that the defendant willfully and substantially violated his probation; and (3) the fifteen-year sentence imposed was unlawful because the defendant’s original sentence was a split sentence, and thus, the sentence imposed upon a probation violation must be limited to the probationary period of the split sentence, which is ten years. We address each of these grounds in turn.

1. Whether the trial court abandoned its role of impartiality by rejecting the plea offer negotiated by the State

Florida Rule of Criminal Procedure 3.171(a) encourages the State and the defense to engage in plea discussions and to reach an agreement on a potential plea to resolve the case. However, rule 3.171(a) specifically provides that the “[ultimate responsibility for sentence determination rests with the trial judge,” and the trial court may inquire as to the reasons for the offered plea prior to deciding whether or not to accept the negotiated plea. Fla. R. Crim. P. 3.171(d). Rule 3.171(d) additionally provides that if the trial court declines to accept the negotiated plea, it shall advise the parties why it is rejecting the plea. See also Scott v. State, 909 So.2d 364, 368 (Fla. 5th DCA 2005) (stating that “a judge is not required to accept a plea negotiated by the parties”) (citing Fla. R. Crim. P. 3.171(d)); Jernigan v. State, 608 So.2d 569, 570 (Fla. 1st DCA 1992) (“A trial court is not obligated to accept a plea agreement which binds it to a specific sentence.”).

Although the trial court is not required to accept a negotiated plea, the trial court must remain neutral and impartial, and its decision cannot be based on bias or prejudice. See Carter v. State, 138 So.3d 536, 538 (Fla. 4th DCA 2014) (holding that the defendant’s motion to disqualify the trial court was legally sufficient to require disqualification where the defendant alleged that the trial court had prejudged him); Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994) (granting a writ of prohibition based on the trial court’s bias and prejudice where the trial court told defense counsel in an ex parte communication prior to the sentencing hearing that it planned on resentencing the defendant to the maximum under the guidelines regardless of any evidence in mitigation of punishment).

We have reviewed the transcripts of the probation violation hearing and the sentencing hearing, and we find no evidence that the trial judge abandoned her role as a neutral and impartial judicial officer during these hearings or that her decision to reject the State’s six-year plea was arbitrary or was influenced by any bias or prejudice against the defendant. Rather, the transcripts reflect that the trial court properly considered: (1) the defendant’s prior convictions; (2) the charges to which the defendant had pled guilty and the facts leadings to those charges; (3) that the lifetime revocation of the defendant’s driver’s license was an important aspect of the plea the defendant accepted in 2004; and (4) the short period of time that transpired between the defendant’s release from prison and the alleged violation of this special condition of probation. The record also demonstrates that the trial court did not prejudge the ease. On at least three occasions, the trial court expressed concern about the State’s proffered reasons for the offered plea, including potential proof problems and whether the defendant should accept the plea:

THE COURT: So you cannot prove he was ever instructed, that’s what I’m hearing you say, which begs the question of why should he admit to anything?
[THE PROSECUTOR]: I can prove that he was instructed because the probation officer instructed him and laid out the terms and has it written down that he instructed him, and he instructed—
THE COURT: In English?
[THE PROSECUTOR]: Correct, but he was instructed through an interpreter the day that the Court pled him.
THE COURT: Well, yes, but again, I mean, if that was the case we would only need colloquies and pleas for someone to be instructed on probation, but you know they have to be separately instructed by the officers.
[THE PROSECUTOR]: The date that he was placed on probation Officer Smith, who is present before Your Hon- or, went over the conditions of probation with him as well.
THE COURT: In English?
[THE PROSECUTOR]: No, I don’t— well, they were written down in English but I don’t believe that was done in English, but they were — it’s written out in English.
THE COURT: Okay. What do you mean don’t believe it was done in English?
[THE PROSECUTOR]: Because I believe it was done with the assistance of an interpreter.
THE COURT: A court interpreter?
[THE PROSECUTOR]: I believe that’s how it was done, yes.
THE COURT: Is that what you’re going to be able to prove?
[THE PROSECUTOR]: I’d have to check with her.
THE COURT: Okay. Well, it’s two o’clock, the hearing was set for 1:30, and we’ve known this for a long time, you want to maybe chat with her and find that out? Because if it’s a fact that he was never instructed, then I don’t know why he’d be admitting anything.
[THE PROSECUTOR]: But, Judge, he would also have to testify and Your Honor would have to take him under oath and consider his credibility level if he were to testy that, in fact, that he didn’t understand—
THE COURT: That’s what a hearing is all about, but I can tell you this, I’m not inclined on a condition this important in this plea to accept an eight year prison sentence.
[THE PROSECUTOR]: Six years, Judge.
THE COURT: Whatever, six, even worse. I’m not inclined to accept it. However, the State’s at it’s [sic] own peril about whether or not you think you can demonstrate to me that he violated his probation. So we’re here for a hearing, I’m going to give you about a minute to go talk to that probation officer and ask that question and then you tell me if you are still ready to go forward. Okay. And we will be in recess.

(emphasis added).

As these quoted passages clearly reflect, the trial court, contrary to the argument made on appeal, did not abandon its role of impartiality or prejudge the case. In fact, the transcript demonstrates the reverse— the trial court’s concern was that the State’s plea offer was motivated by its inability to prove its case and that the defendant could be admitting to a violation that the State could not prove. Thus, the pre-hearing discussions clarify that the trial court did not believe a six-year sentence was sufficient punishment for the alleged violation for the very serious charges the defendant was initially charged with and was additionally concerned that the defendant might be accepting a plea with a six-year prison sentence to a violation the State could not prove.

We also conclude that the pre-hearing questions asked by the trial court were for the purpose of assessing whether or not it should accept the defendant’s plea to the probation violation, and the questions asked during the hearing were to assist the trial court, as the factfinder, in its understanding and assessment of the evidence presented, both of which were appropriate in this case. See Amason v. State, 76 So.3d 374, 377 (Fla. 2d DCA 2011) (finding that the trial court may conduct probation revocation proceedings in an informal manner and it may question witnesses so long as the trial court does not assume the role of the prosecutor); McFadden v. State, 732 So.2d 1180, 1185 (Fla. 4th DCA 1999) (stating that “[t]he requisite of a neutral factfinder does not foreclose a judge from asking questions designed to make prior ambiguous testimony clear”).

2. Whether the evidence was sufficient to establish a willful probation violation

The defendant also contends the trial court’s finding that the defendant willfully and substantial violated his probation is not supported by competent substantial evidence. The gist of the defendant’s argument is that he did not willfully violate his probation by applying for a driver’s license because no one ever explained to him that he had a lifetime revocation of his driver’s license and could not apply for a driver’s license as a special condition of his probation.

The transcript of the plea colloquy reflects that the trial court and the State clearly and unambiguously informed the defendant of these special conditions of his probation, and that the trial court additionally questioned the defendant about whether he had discussed the plea offer with his attorney. The transcript reflects that the defendant was assisted by an official courtroom interpreter throughout these proceedings.

THE COURT: Are there special conditions?
[THE PROSECUTOR]: Conditions are complete time [sic] revocation. And he is not going to apply for a driver’s license any time....
THE COURT: All right. Mr. Gonzalez. I am told you wish to accept that offer. Is that correct, sir?
THE DEFENDANT: Yes.
THE COURT: Mr. Cobitz has been your lawyer, have you had enough opportunity to discuss this plea offer with him?
THE DEFENDANT: Yes.
THE COURT: ... I accept the plea of guilty. Find the defendant guilty. Adjudicate the defendant guilty. And sentence him as follows; on count One, felony murder, second decree I sentence the defendant to ten years State prison, followed by ten years reporting probation. Special condition that he submit to a life time driver’s license revocation. ...

The trial court also found that the defendant was alert and intelligent; he understood the nature and consequences of his plea; and he had entered into the plea knowingly, willingly, and voluntarily and with the advice of competent counsel. Thus, there is record evidence to support the trial court’s finding that when the defendant took his plea, he was advised in Spanish of all of the conditions of his probation, including that he had a lifetime driver’s license revocation and that he could never apply for a driver’s license.

In addition to the above evidence, both the in-court probation officer and the defendant’s supervising probation officer testified that they had advised the defendant of the conditions of his probation, including these special conditions, and both the in-court orders of probation and the subsequent orders of probation prepared by the defendant’s supervising probation officer, signed by the defendant and advising the defendant of these conditions of his probation, were introduced and considered by the trial court.

The in-court probation officer testified that although she had no independent recollection of this particular defendant, it was her duty as the in-court probation officer to instruct offenders being placed on probation of the conditions of their supervision, and if the offender did not speak English, to use an interpreter to explain these conditions with her. Thus, she could testify that because she signed the orders of probation, she went over the conditions and special conditions of probation -with the defendant, she used an interpreter to communicate with the defendant, and she instructed the defendant that he had a lifetime revocation of his driver’s license and he could not ever apply for a driver’s license or drive at all while on probation.

The defendant’s supervising probation officer also testified that he re-advised the defendant of these conditions of probation and used someone accompanying the defendant, who spoke both English and Spanish, to interpret for him. Although the defendant testified that he was never advised of this special condition in Spanish, the trial court found his testimony was not credible.

Because the trial court’s findings of fact, including that the defendant was not credible, are supported by competent substantial evidence, we affirm. See Henley v. State, 117 So.3d 1125, 1127 (Fla. 3d DCA 2012) (affirming order revoking the defendant’s probation where competent substantial evidence was adduced to establish that the defendant violated a condition of probation).

3. Whether the sentence imposed was legal

We also reject the defendant’s contention that the trial court erred by sentencing him to fifteen years in prison. As the defendant’s sentence is not a “true split sentence,” but rather a “probationary split sentence,” the fifteen year sentence is legal. See Gibson v. Fla. Dep’t of Corr., 885 So.2d 376, 381 (Fla.2004) (explaining that “[a] true split sentence is a prison term of a number of years with part of that prison term suspended, contingent upon completion on probation of the suspended term of years. When a defendant violates a true split sentence, the most severe sentence the trial court may impose on resentencing is to ‘unsuspend’ the previously suspended prison term. That is, the defendant is reincarcerated and must actually serve the previously suspended term of years in prison.... In [the probationary split sentence], if the defendant violates probation, the trial court may impose any sentence it might have originally imposed” (alterations in original) (quoting Eldridge v. Moore, 760 So.2d 888, 889 n. 1 (Fla.2000))). Accordingly, we affirm the revocation of the defendant’s probation and the imposition of the fifteen year sentence.

Affirmed.

      . The arrest affidavit reflects that a police officer attempted a traffic stop of the defendant’s pickup truck. The defendant fled in the pickup truck, and the officer pursued. Eventually, numerous officers from several law enforcement departments joined the pursuit, during which the defendant ran a red light, entered an expressway heading in the wrong direction, and drove erratically on the highway causing law enforcement to close entrance ramps on the expressway. The defendant exited the expressway and entered a warehouse cul-de-sac. Officers followed him into the cul-de-sac while other law enforcement officers blocked off the exit of the cul-de-sac. Police officers ordered the defendant to stop, but the defendant turned his pickup truck directly at the officers, driving at an accelerated speed. The officer that was directly in the path of the oncoming pickup truck shot at the pickup truck. When the pickup truck eventually stopped, officers found that both the defendant and the passenger sustained gunshot wounds. The passenger later died at a trauma center.


text:
    Arkady VAYGENSBERG, Appellant, v. Alexander BARASH, Appellee.
    No. 3D14-1017.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    William N. Norris, for appellant.
    Richard F. Watson, for appellee.
    Before WELLS, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari, seeking review of the trial court’s order granting a motion to compel discovery in aid of execution on a money judgment previously entered against Arkady Vaygensberg (“petitioner”) in favor of Alexander Barash (“respondent”). During his deposition, petitioner asserted his Fifth Amendment right to refuse to answer questions regarding his income and whether he filed federal income tax returns for the immediately-preceding six years. Petitioner also invoked his Fifth Amendment right in response to respondent’s request for the production of petitioner’s personal federal income tax returns for those same years. Respondent filed a motion to compel petitioner to answer the deposition questions and to produce the requested tax returns. The trial court conducted two hearings on the motion and thereafter entered an order granting the motion to compel.

In light of petitioner’s failure to provide transcripts of the hearings held below, and the absence of an evidentiary basis to support petitioner’s unadorned assertion of a Fifth Amendment claim, we deny the petition.

      . See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

      . There are circumstances in which a civil litigant may properly assert a Fifth Amendment privilege and refuse to answer deposition questions even though no criminal charges are pending against him. DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982). Ultimately, however, it is the duty of the trial judge, rather than the right of the litigant, to determine the propriety of such an invocation of the privilege. The litigant's assertion of the privilege must be supported by a showing sufficient for the trial court to determine that the litigant has “reasonable grounds to believe that direct answers to deposition ... questions would furnish a link in the chain of evidence needed to prove a crime against him.” Rainerman v. Eagle Nat’l Bank, 541 So.2d 740, 741 (Fla. 3d DCA 1989).


text:
    Jose Carlos VALLEJO, Appellant, v. Mariana GUBBINS, Appellee.
    No. 3D14-1432.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Paul Morris, for appellant.
    Hall, Lamb and Hall, P.A., and Andrew C. Hall and Adriana Pampanas, for appel-lee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Calvo v. Calvo, 469 So.2d 879, 879 (Fla. 3d DCA 1985) (holding that a beneficiary of a Florida dissolution of marriage judgment may seek to have that judgment enforced in Florida notwithstanding a forum non conveniens motion even when the parties are residents and citizens of Venezuela at the time).


author: SALTER, J.

text:
    Elijah JOHNSON, Petitioner, v. Marydell GUEVARA, Director, Miami-Dade County Corrections and Rehabilitation Department, and the State of Florida, Respondents.
    No. 3D14-2976.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Rehearing Denied March 3, 2015.

      Carlos J. Martinez, Public Defender, and Brian Ellison, Assistant Public Defender, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for Respondent, State of Florida.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   SALTER, J.

Elijah Johnson petitions for a writ of habeas corpus following the entry of a circuit court order granting the State’s motions to revoke bond and for pretrial detention. The petition raises several procedural issues under Florida Rules of Criminal Procedure 3.131 and 3.132 and section 907.041, Florida Statutes (2014). Although certain claims raised by the petitioner are well taken, ultimately we find that the trial court relied upon a legally sufficient record to warrant pretrial detention. Accordingly, we deny the petition.

Arrest and Release

Initially, the petitioner was arrested on August 8, 2014, for lewd and lascivious molestation of a victim twelve years of age or younger, under section 800.04(5)(b), Florida Statutes (2014). The State did not file formal charges against the petitioner by the 33rd day after arrest, and the petitioner was then released on his own recognizance pursuant to Florida Rule of Criminal Procedure 3.134(2) when such charges had not been filed by the 40th day.

The Information and State Motions

On October 7, 2014, the State filed an information charging the petitioner with the statutory molestation offense, a “motion to revoke bond,” and a “notice of intent to seek enhanced penalty pursuant to § 775.084, Fla. Stat.,” alleging that the petitioner had a history of failing to appear as ordered in other felony cases, that he had “an extensive history of both theft and violent crimes,” and that he was a flight risk. The State cited that portion of Rule 3.131(a) pertaining to offenses punishable by life imprisonment (as here) in which proof of guilt is evident and the presumption great.

The following day, the State filed a “motion for pretrial detention” under Rule 3.132 and section 907.041, Florida Statutes (2014), alleging a factual basis for pretrial detention under the criteria enumerated in section 903.046, Florida Statutes (2014). The trial court heard the motions on October 7, 8, 9, 22, and 30, 2014, and entered an order on November 12, 2014, granting both the motions to revoke bond and the motion for pretrial detention. The petition for habeas corpus followed.

Analysis

The petitioner’s legal bases for challenging the order are considered in turn. First, the petitioner maintains that the trial court could not revoke his bond under Rule 3.131 because the trial court did not make the requisite finding that “proof of guilt is evident or the presumption is great.” While the petitioner is correct that the trial court did not make those findings, the State maintains that article 1, section 14,.of the Florida Constitution and Rule 3.131(a) also contain an exception to the general right of pretrial release on reasonable conditions: “[i]f no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.” State v. Paul, 783 So.2d 1042, 1045 (Fla.2001) (quoting art. 1, § 14, Fla. Const.). We find no error in the trial court’s conclusion that the petitioner’s pre-information conditions of release were insufficient to protect the community and to assure his presence at trial.

Second, the petitioner alleges that further pretrial detention of the petitioner is impermissible because the State failed to introduce competent evidence to prove beyond a reasonable doubt the need for such detention, as provided in Rule 3.132(c)(1). The petitioner relies on the trial court’s consideration of a videotaped interview of the child victim by a forensic examiner. Although the interview may be admissible in evidence pursuant to section 90.803(23) of the Florida Evidence Code, the petitioner maintains that it is hearsay. Under Rule 3.132(c)(1), “[a] final order of pretrial detention shall not be based exclusively on hearsay evidence.”

The pretrial detention order under review is not based exclusively on hearsay evidence, however, as it also relies on numerous pieces of non-hearsay evidence relating to the petitioner’s prior convictions and court appearances — none of which were the subject of objection or dispute by the petitioner during the hearings. With respect to the child victim testimony, we conclude that such testimony may constitute admissible evidence rather than mere, excludible hearsay. The same analysis would apply, for example, to a defendant’s own admissions offered against the defendant and otherwise constituting hearsay (another exception to hearsay under section 90.803(18) of the Florida Evidence Code). To hold otherwise would essentially preclude pretrial detention in cases in which the critical evidence is a child victim’s interview regarding the alleged molestation (as here) or a defendant’s lawfully-obtained confession (as in the hypothetical above).

The primary case relied upon by the petitioner, Azadi v. Spears, 826 So.2d 1020 (Fla. 3d DCA 2001), is inapposite. In Azadi, the State’s sole evidence submitted in support of pretrial detention was the arrest affidavit, and that affidavit was hearsay. In that case, the State offered no exception to the Florida Evidence Code that might have allowed the admission of the affidavit into evidence at trial.

For these reasons, the petition for habe-as corpus is denied.


text:
    George LYONS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-3104.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Rehearing Denied Feb. 16, 2015.
    George Lyons, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

George Lyons (“Lyons”) petitions this Court for habeas corpus relief, alleging that the trial court erred by denying his petition wherein he alleged that the trial court illegally amended his sentence in November 1992, four, months after the judgment and sentence had originally been filed. Because Lyon’s petition seeks review of the trial court’s order denying him relief, we treat his petition before this Court as a timely filed appeal of the trial court’s order, and we affirm.

Lyons is an inmate currently serving the sentences imposed by the Monroe County Circuit Court on July 31, 1992, in case number 91-1983. The July 31, 1992, judgments and sentences reflect that Lyons was convicted after a jury trial for the crimes of robbery with a deadly weapon in counts I and II, and conspiracy to commit robbery with a deadly weapon in count Y. He was sentenced to concurrent thirty-year prison sentences as a habitual offender for counts I and II and to a consecutive two-year prison term as a habitual offender for count V. On July 20,1993, this Court affirmed both the convictions and the sentences imposed.

Subsequent to his direct appeal, Lyons filed several motions, including at least two motions to mitigate or to reduce his sentence, at least two rule 3.850 motions, and several motions to correct an illegal sentence pursuant to rule 3.800. In the motions filed pursuant to rule 3.800, Lyons asserted various grounds attacking the legality of the habitual sentences imposed on all three counts and the consecutive sentence imposed in count V.

In his current petition for habeas corpus relief, Lyons again attacks the habitualization of his sentences, but on new grounds, and raises a new claim wherein he alleges the trial court failed to award him credit for time served for count V. Essentially, Lyons now claims that the trial court illegally and without his knowledge amended the judgment and sentences in this case in November 1992, four months after the original judgment and sentences were entered and filed, adding the habitual offender designation and deleting the credit for time served originally awarded him for count V.

Lyons filed his habeas corpus petition in Okaloosa County seeking immediate release. Because the Okaloosa County Circuit Court correctly concluded that Lyons’ petition was an attack upon his sentence rather than his incarceration, it transferred the petition to Monroe County where the judgment and sentences had been imposed. The Monroe County Circuit Court denied Lyons’ petition on December 2, 2014, without explanation. We therefore address the Monroe County Circuit Court’s ruling on each issue raised in Lyons’ petition.

Lyons correctly notes that the trial court sentenced him in this case on July 31, 1992, and Lyons’ judgment and sentences were filed on or about that date. Lyons contends that on November 5, 1992, the trial court filed an amended judgment altering the sentences imposed by adding the habitual offender designations and omitting credit for time served on count V. The defendant is partially correct and partially incorrect. Although it appears that an amended judgment was filed, it was not filed on November 5, 1992, but on October 27, 1992. Additionally, the original judgment clearly reflects that Lyons was sentenced as a habitual offender for each count and that the July 31, 1992, judgment mirrored the oral pronouncement at the time the sentences were imposed. Thus, the trial court correctly denied Lyons’ petition regarding Lyons’ habitual offender sentences.

Lyons is correct regarding the trial court’s omission of the award of credit for time served on count V on the amended judgment because the original judgment and sentence filed on July 31, 1992, awarded credit for time served for that count, as well as counts I and II. However, the sentence for count V was ordered to run consecutive to the sentences imposed for counts I and II, and thus, it appears that the original judgment incorrectly awarded credit for time served on count V, and the amended judgment corrected that error.

Because Lyons attacks the legality of the trial court’s action amending the judgment to delete the award for credit time served on count V, we agree that the trial court also properly denied Lyons’ habeas corpus petition on that ground because habeas corpus is not the proper vehicle to attack the legality of the amended judgment. Baker v. State, 878 So.2d 1236, 1241-42 (Fla.2004); Branch v. State, 990 So.2d 585, 586 (Fla. 3d DCA 2008). We therefore affirm the trial court’s order denying Lyons’ habeas corpus petition without prejudice to Lyons to file a motion to correct an illegal sentence pursuant to rule 3.801 as to that claim. We express no opinion as to the timeliness or the merits of the defendant’s claim that he is entitled to correction of his sentence on count V to reflect credit for time served as to that count. We also caution Lyons that, because this Court has ruled on the merits of his current challenge to the habitual offender reclassification of his sentences, collateral estoppel bars relitigation of that issue on the grounds raised herein in any subsequently filed rule 3.800 motion to correct an illegal sentence. State v. McBride, 848 So.2d 287, 290-91 (Fla.2003) (holding that although res judicata does not prevent a defendant from filing successive 3.800 motions raising new issues, collateral es-toppel prevents a defendant from relitigat-ing issues previously presented and decided).

Affirmed.


text:
    Antwyan M. DORN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2950.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Antwyan M. Dorn, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Antwyan Dorn appeals from the trial court’s order denying his petition for writ of habeas corpus. In his petition, Dorn alleged his incarceration is illegal and that he is entitled to immediate release. The gravamen of his claim, however, is an attack on the validity of the underlying conviction, rather than the legality of his current incarceration. Although Dorn is currently incarcerated in a facility located in Miami-Dade County, the underlying prosecution, and the subsequent conviction and sentence, occurred in Volusia County. As we have previously explained:

The circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration, but not when the claims attack the validity of the judgment or sentence. Only the court in which the defendant was convicted and sentenced has jurisdiction to consider collateral attacks on a judgment or sentence, and such an attack must be brought pursuant to Rule 3.800 or 3.850, not by petition for writ of habeas corpus.

Broom v. State, 907 So.2d 1261, 1262 (Fla. 3d DCA 2005) (citations omitted).

The trial court correctly determined that it lacked jurisdiction to consider the claim raised in Dorn’s petition. Although the trial court denied (rather than dismissed) the petition, we affirm the denial for purposes of judicial economy. Richardson, 918 So.2d at 1004. In so doing, we note that the trial court’s order was not a merits determination, and our affirmance is without prejudice for Dorn to seek appropriate relief in the Circuit Court of the Seventh Judicial Circuit in and for Volusia County.

Affirmed without prejudice to petitioner seeking appropriate relief in the Circuit Court of the Seventh Judicial Circuit in and for Volusia County.

      . Because the trial court concluded it lacked jurisdiction to consider the petition and therefore did not reach the merits of Dorn’s claim, the court should have dismissed, rather than denied, the petition. See Richardson v. State, 918 So.2d 999, 1001 (Fla. 5th DCA 2006)


text:
    Anthony JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-3065.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2015.
    Anthony Jones, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. State v. Gutierrez, 10 So.3d 158 (Fla. 3d DCA 2009).


author: PALMER, J.

text:
    Gregory L. WILLIAMS, Appellant, v. DEPARTMENT OF CORRECTIONS etc., et al., Appellees.
    No. 5D13-3548.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2015.
    Rehearing Denied Feb. 16, 2015.

      Richard F. Meyers, of The Meyers Firm, P.A., Temple Terrace, for Appellant.
    Robert B. Buchanan and Paige A. Bitter, of Siboni & Buchanan, PLLC, Ocala, for Appellee.
   PALMER, J.

Gregory Williams appeals the final order, entered by the trial court dismissing, with prejudice, his claim against the Department of Corrections (DOC) for damages under Florida’s Civil Rights Act (FCRA) . Determining that Williams’ claim against DOC was time barred, we affirm.

Williams filed a complaint against DOC alleging a violation of FCRA. Specifically, Williams alleged that race was a factor in DOC’s decision to accuse him of misconduct in his official capacity as an assistant warden at a state prison, and to terminate his employment. DOC filed a motion to dismiss, alleging that Williams’ pleading, on its face, demonstrated that he had failed to timely exhaust his administrative remedies prior to filing his lawsuit and, therefore, the trial court lacked jurisdiction over the matter. The trial court dismissed Williams’ complaint, with prejudice.

Williams appeals, arguing that the trial court reversibly erred in dismissing his complaint. We reject this argument because Williams’ claim was time barred, as a matter of law.

Before seeking relief in the trial court, a state employee claiming discrimination in the workplace must first timely exhaust his administrative remedies. § 760.11, Fla. Stat (2011). For example, an employee must first file an administrative complaint (also known as a charge of discrimination) with either the Florida Commission on Human Relations (FCHR) or the Equal Employment Opportunity Commission (EEOC) within 365 days of an alleged violation. See Sunbeam Television Corp. v. Mitzel, 83 So.3d 865 (Fla. 3d DCA 2012); § 760.11, Fla. Stat. (2011).

The allegations in his complaint establish that Williams did not timely exhaust his administrative remedies before he filed suit since he did not file an administrative complaint within 365 days of his termination from employment. Instead, Williams filed an administrative complaint with the EEOC more than four years after the date of his firing and after he filed his lawsuit. Once filed, the EEOC summarily dismissed Williams’ administrative complaint on the ground that the filing was untimely. Williams thereafter continued to pursue his pending FCRA lawsuit. DOC sought dismissal of the lawsuit, arguing that the trial court lacked jurisdiction to review the claim because Williams failed to timely exhaust his administrative remedies before filing the lawsuit. The trial court agreed with DOC and dismissed Williams’ claim for lack of jurisdiction.

Williams argues, inter alia, that the trial court erred in dismissing his claim because the 365-day statutory deadline for filing an administrative complaint was equitably tolled during the time period when Florida’s Criminal Justice Standards and Training Commission (CJSTC) was investigating DOC’s charges against him. The charges alleged that Williams engaged in unlawful and inappropriate conduct in his official capacity as a prison employee. CJSTC’s investigation began in October 2008 (immediately following Williams’ firing) and was completed in May 2012. Williams maintains that his March 2013 filing of his administrative complaint with the EEOC was timely because it was within 365 days of the completion of CJSTC’s investigation in May 2012. We disagree.

The doctrine of equitable tolling can be applied to extend an administrative filing deadline. Watson v. Brevard Cnty. Clerk of Circuit Court, 937 So.2d 1264, 1265 (Fla. 5th DCA 2006).

The tolling doctrine is used in the interests of justice to accommodate both a defendant’s right not to be called upon to defend a stale claim and a plaintiffs right to assert a meritorious claim when equitable circumstances have prevented a timely filing.

Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988). “Generally, the tolling doctrine has been applied when the plaintiff has been mislead or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Nicks v. Dep’t of Bus. & Prof'l Regulation, 957 So.2d 65, 68 (Fla. 5th DCA 2007)(citing Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988)).

Williams’ complaint does not allege that Williams was misled or lulled into inaction by the DOC or that he timely asserted his rights mistakenly in the wrong forum. As such, the only basis for applying equitable tolling in this case would be a showing that Williams “ha[d] in some extraordinary way been prevented from asserting his rights”. Id.

In Williams v. Albertson’s Inc., 879 So.2d 657 (Fla. 5th DCA 2004), our court rejected an extraordinary circumstances claim raised by a plaintiff who filed her negligence complaint one day past the four-year statute of limitations, reasoning that equitable tolling was not applicable to extend the filing date since the plaintiffs lawyer made no attempt to file within the limitations period. See also Watson v. Brevard Cnty. Clerk of Circuit Court, 937 So.2d 1264 (Fla. 5th DCA 2006) (holding that the doctrine of equitable tolling did not apply to toll the 35-day deadline for filing a petition for an administrative hearing after an initial investigation of employment discrimination by the Commission on Human Relations, despite county employee’s claim that a Commission staff member instructed her to file her petition after the deadline; employee did not allege that the flawed advice lulled her into filing a late petition and employee was in receipt of a clear, written deadline in the Commission’s notice of determination).

Here, Williams alleged that the extraordinary way he was prevented from timely asserting his administrative rights was that, had he filed an administrative complaint prior to the completion of CJSTC’s investigation, he may have placed himself at risk of self-incrimination. The complaint does not affirmatively allege that Williams’ right to avoid self-incrimination would have been violated had he filed a timely administrative complaint, but instead, the complaint merely alleges the possibility of same. Such a tentative rights claim does not rise to an equitable circumstance that prevented Williams from filing a timely administrative complaint since Williams could have filed his administrative complaint timely and then moved to stay the proceedings if and when an actual self-incrimination issue arose. As such, we reject Williams’ equitable tolling claim. Cf. Middleton v. Silverman, 430 So.2d 981 (Fla. 3d DCA 1983).

In a related claim, Williams argues that the trial court erred by failing to apply the doctrine of equitable estoppel as a basis to rule his EEOC complaint was timely filed. The principle of equitable estoppel

presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct. The doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct. -

Major League Baseball v. Morsani, 790 So.2d 1071, 1077 (Fla.2001). Here, Williams’ complaint does not assert that DOC engaged in any active deception or misconduct that prevented Williams from timely filing an administrative complaint; therefore, the complaint failed to assert a cognizable claim for equitable estoppel. Accordingly, we also reject Williams’ equitable estoppel claim.

AFFIRMED.

ORFINGER, J., and FRIEDLAND, K, Associate Judge, concur.

      . Florida's Civil Rights Act is set forth in Chapter 760 of the Florida Statutes.