text:
    Luckner PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1366.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Rehearing Denied June 21, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

In this opinion, we discuss the law surrounding the concept known as “vindictive sentencing.” The state charged Luckner Pierre with two counts of sexual battery on a person twelve or older but less than eighteen by a person in a position of familial or custodial authority, and offered him seventeen years imprisonment in exchange for a guilty plea. Pierre ultimately rejected the offer, exercised his right to trial, and was found guilty. The trial court then imposed two twenty-five-year sentences, concurrent with each other, which Pierre claims amounts to a vindictive sentence. Because the totality of the circumstances reveals that the trial court did not impose a vindictive sentence, we affirm.

On April 6, 2010, the state charged Pierre with two counts of committing sexual activity with a child between August 1, 2009, and January 26, 2010.

On January 25, 2011, the trial court conducted a calendar call in which an assistant state attorney announced that, due to a problem obtaining a translation of Pierre’s confession, and Pierre’s decision to reject a plea offer, the state was not ready to proceed to trial and needed a week to obtain the translated confession. Pierre did not object to the postponement and the trial court agreed to it. The trial court then made the following inquiry regarding plea negotiations:

The court: What was the plea offer that is being rejected by Mr. Pierre?
Defense counsel: It was twenty years, judge.
The court: Twenty years in the Department of Corrections?
Mr. Pierre—
What is the — sexual activity with a child, two counts; what penalty does that crime carry?
The state: Thirty years apiece, Your Honor.
The court: All right. Mr. Pierre, do you understand that the State of Florida has made a plea offer to you of twenty years in this case?
Pierre: Yes.
The court: All right, and is it your decision to reject that and go to trial?
Pierre: Well, is there any way that I can get lower than twenty years, just something less?
The court: Well, this is a — you have three options; let’s talk about them together so you understand. Number one, you can go to trial and make the State of Florida prove your — the case against you to a jury, and if they find you guilty you face up to sixty years in the Department of Corrections; that’s option one. Option two, you can accept the state’s plea offer of twenty years and resolve your case. Option three, you can plead guilty to me without any promises from me as to what sentence I would give to you. I know nothing about you or this case; during the time period after I take your plea, I would investigate that and I would hear from both your attorney and you and your Mends and your family and then I would hear from the assistant state attorney, and they would all make recommendations to me and I will give you a sentence that I believe is fair and just. I don’t know what it would be; it — but that’s the three options.
Pierre: Well, earlier we talked about seventeen years; do you think that the twenty years could be lowered?
The court: Well, that’s between you and the State of Florida. If the State of Florida is willing to lower it to seventeen years, then that’s between you and them.
The state: If he wants to plea to seventeen years, I’ll give him five minutes to make that decision.
The court: All right, the State of Florida has offered you seventeen years; do it right now if you want to do it.
The state: It’s going to be a plea, Your Honor.
The court: All right, Mr. Pierre, [defense counsel] is going to assist you in drawing up the paperwork, and then I’ll take your plea, all right? That will resolve your case.

After a thirty-minute recess, the trial court engaged in a plea colloquy during which the following exchange occurred:

The court: Mr. Pierre, it’s been represented to me by your attorney ... who is standing right next to you here in court, that in case number 2010CF2859 you wish to change your previously entered plea of not guilty and enter a plea of guilty; is that right, sir?
Pierre: Yes, yes.
The court: Has anyone in this world forced you, pressured you, or threatened you in any way to get you to plead guilty?
Pierre: Well, the only threat is just that my family, you know, that has pretty much not believed anything that I had to say — so that’s the only threat that I can see.
The court: Well, is that — in other words, when I ask you that question here’s what I’m trying to find out; I’m trying to find out if anybody has forced you to enter this plea of guilty in any way. I want to make sure you’re doing this freely and voluntarily, your own free choice. Is this your free choice, to enter this plea of guilty, or is somebody in your family forcing you to do this?
Pierre: Well, it’s not my choice.
The court: This is not your choice, to plead guilty?
Pierre: No.
The court: All right, you want to go to trial then?
Pierre: Yes, I want to go to trial.
The court: Okay. All right. Well, then you can certainly go to trial but you’ve just told us that you wanted to take the seventeen-year plea offer that the state had given to you. In order to take seventeen years in prison, you have to plead guilty; you can’t maintain your innocence and take seventeen years in prison. Do you understand?
Pierre: I understand.
The court: So you want to go to trial?
Pierre: Yes.
The court: And you do not want to accept the seventeen years?
Pierre: No.
The court: Okay. All right, we’re back on the trial.

The matter proceeded to non-jury trial on February 3, 2011. The victim, eighteen at the time of the trial, testified that until recently she believed Pierre to be her father her entire life. She said she found out after Pierre raped her that he was not her father. In August of 2009, Pierre started making her have sex with him. She said that he hit her when she tried to resist and he forced her legs open. He forced her to have sex with him two or three more times, with the last time occurring in December of 2009. The victim testified that she was sixteen when the first rape occurred and seventeen during the last one.

Pierre’s recorded confession was played for the court. Pierre then testified that his confession was accurate and he did not lie to law enforcement. On cross-examination, he acknowledged that he thought of the victim as a daughter and he vaginally penetrated her when she was sixteen and seventeen.

After closing arguments, the trial court found Pierre guilty of both sexual battery counts.

The trial court held a sentencing hearing on April 1, 2011. The state requested that Pierre be sentenced to two twenty-year sentences to run consecutively for a total of forty years. The state argued that the crimes were some of the worst imaginable. Pierre told the court that he was not a bad person and denied beating the victim. Defense counsel asked for a sentence at the bottom of the guidelines range, just short of seventeen years, because Pierre had a clean record for forty-seven years until the current convictions. Pierre’s family members also offered brief testimony and requested probation for him. The trial court then made the following statement:

This is a rare circumstance as a trial judge, not only to preside as the fact finder but also to really not hear contested facts during the course of a trial. [The victim] testified and indicated— what I’ll cover in just a minute — that these really despicable crimes occurred, and then the defendant then testified and admitted to having sex with his stepdaughter. I mean it is not his natural daughter, it is his stepdaughter; that is not mitigating but it is a fact that must be recognized. Obviously based on that — those facts, he was found guilty.
Folks, and I say this to the Pierre family ..., this is a crime that is not deserving of probation. When someone who is in a position of trust violates that position of trust in a manner in which they have sex with a person who that — the child believes is her father, I can’t imagine ever under any circumstances believing that the appropriate sentence for that type of criminal conduct would be probation; it is just not probationary-type criminal activity.... It must be remembered at the time that the defendant forced himself on her she believed that he was her natural father, and if you can only imagine for a moment believing as you’re sitting there in your home, in a place that you feel safe and secure, that your father is raping you, there really cannot be any kind of worse factual scenario. Subsequently she found out that he in fact was a stepfather of hers, but that doesn’t mitigate the fact that he forced himself on her, that he forced her legs open, he penetrated her with his penis, he had sex with her on multiple occasions against her will. She didn’t know any better; what is her father doing to her? All of these times — it is something that is extremely, extremely disturbing. Nevertheless, the defendant admitted what he did, the defendant has no prior criminal record, and therefore I will take all of those things in fact in fashioning what I believe is a fair sentence for this defendant for this criminal conduct in this case.

The trial court then imposed two twenty-five-year sentences, to be served concurrently.

Claiming he received a vindictive sentence, Pierre appeals.

Whether the trial court imposed a vindictive sentence is a question of law which this court reviews de novo. Parker v. State, 977 So.2d 671, 672 (Fla. 4th DCA 2008). While Pierre never objected to the sentence at the time it was imposed, “imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal.” Mendez v. State, 28 So.3d 948, 950 (Fla. 2d DCA 2010) (citation omitted).

“When there is judicial participation in plea negotiations, followed by a harsher sentence, the supreme court has adopted a totality of the circumstances approach in determining whether a presumption of vindictiveness arises.” Mounds v. State, 849 So.2d 1170, 1171 (Fla. 4th DCA 2003) (citing Wilson v. State, 845 So.2d 142, 155 (Fla.2003)). The defendant has the burden to demonstrate vindictiveness, which, if met, creates a re-buttable presumption of vindictiveness, which the state must then rebut. Vardaman v. State, 63 So.3d 925, 927 (Fla. 4th DCA 2011).

“Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a ‘reasonable likelihood’ that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial.”

Id. (quoting Wilson, 845 So.2d at 156).

Other factors to consider are:

[W]hether the trial judge initiated the plea discussions with the defendant; whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; the disparity between the plea offer and the ultimate sentence imposed; and the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Mounds, 849 So.2d at 1171-72.

Judicial participation in plea negotiations often involves the trial court itself offering a specific sentence in exchange for a guilty plea. See Vardaman, 63 So.3d at 928-29 (judicial participation where the trial court offered a sentence in exchange for a plea); Mendez, 28 So.3d at 949 (same); Evans v. State, 979 So.2d 383, 384-86 (Fla. 5th DCA 2008) (same); Longley v. State, 902 So.2d 925, 926-27 (Fla. 5th DCA 2005) (same).

Judicial vindictiveness concerns, however, “may [also] arise where the trial [court] does not make the offer itself but, rather, becomes actively involved in an unsuccessful plea bargaining discussion between the State and the defendant.” Wilson, 845 So.2d at 154 (citing McDonald v. State, 751 So.2d 56 (Fla. 2d DCA 1999)). In the instant case, the trial court’s participation in plea discussions was minimal. The court’s actions can be reasonably described as a neutral effort to facilitate plea discussions between the state and Pierre.

Further, it appears that the trial court raised the topic of the state’s plea offer to ensure that Pierre understood what that offer meant (twenty years versus a maximum possible sixty years). The trial court did not urge Pierre to accept the state’s plea offer. In fact, when Pierre asked if there was any way to receive a prison sentence of less than twenty years, the trial court properly and neutrally explained Pierre’s three options (accept the negotiated plea offer from the state, go to trial, or enter an open plea to the court). The trial court admitted to knowing little about the case and stated that it would need to learn the specific details surrounding the charges against Pierre and hear from Pierre himself, Pierre’s attorney, defense witnesses and the state’s sentencing recommendation before making any sentencing decision. The trial court never offered Pierre a sentence in exchange for a plea and never advocated for the state’s plea offer at any point. We find that the record does not support a finding of vindictiveness.

Even assuming the trial court did actively participate in plea negotiations, the totality of the circumstances does not give rise to a presumption of a vindictive sentence. The state made a plea offer of seventeen years in open court and the trial court relayed this offer to Pierre which he initially accepted. At no point did the trial court suggest that any sentence it might impose, if given the opportunity following an open plea or trial, would be contingent upon whether Pierre exercised his right to trial. In fact, when Pierre decided to withdraw his plea and proceed to trial, the court made sure that Pierre understood that the state’s offer of seventeen years was no longer guaranteed if Pierre went to trial — an important point for Pierre to understand when rejecting the plea offer.

The disparity between the plea offer (seventeen years) and the sentence imposed (twenty-five years) is slightly less than a 50% increase, which does not appear to be particularly significant. Compare Mounds, 849 So.2d at 1172 (finding a 75% increase — -from sixty months to 105.25 months — to be “significant” but “not extreme”), with Vardaman, 63 So.3d at 929 (finding a “vast disparity” between the original offer of eight years and the sentence imposed of thirty years, or a 375% increase). Thus, the disparity between the plea offer and the sentence imposed does not support a finding of vindictiveness.

Finally, the record is replete with facts that support the trial court’s decision to impose a sentence greater than that offered by the state during the plea negotiations. The trial court acknowledged that it knew nothing about Pierre or his case during the plea discussion except for the charges against him. The trial proceedings, however, revealed many additional facts and disturbing details about the case unknown to the trial court at the earlier stage of plea negotiations: The trial court observed appalling testimony about the victim’s repeated rape by Pierre, whom she thought was her father. Simply put, the trial court personally heard many more facts and details underlying the crimes at the conclusion of the trial than during the plea discussions. The trial court explained how horrendous Pierre’s crimes were, describing them as “really despicable” and “extremely, extremely disturbing,” and observing that “there really cannot be any kind of worse factual scenario.” We believe that these comments accurately describe Pierre’s criminal conduct and provided a factual basis for the trial court’s decision to impose a sentence greater than that offered by the state during plea negotiations.

Therefore, because Pierre has not met his burden to demonstrate that the trial court imposed a vindictive sentence, we affirm.

Affirmed.

STEVENSON and GERBER, JJ., concur.

      . "The term vindictive — when used in the context of a claim of vindictive sentence — is a term of art which expresses the legal effect of a given course of action, viewed objectively, and does not imply any personal animosity between the court and the defendant." Mendez v. State, 28 So.3d 948, 950-51 (Fla. 2d DCA 2010) (citation and quotation marks omitted).

      . See § 794.01 l(8)(b), Fla. Stat. (2009).

      . Limited judicial participation in plea negotiations is permitted provided that certain safeguards are employed "to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” State v. Warner, 762 So.2d 507, 513 (Fla.2000) (citation and quotation marks omitted). The Florida Supreme Court has imposed several restrictions on judicial participation in plea negotiations.
      The first restriction placed on judicial participation is that a trial judge cannot initiate the plea dialogue. Id. However, the judge "may ... participate in such discussions upon request of a party” and "[o]nce involved, the court may actively discuss potential sentences and comment on proposed plea agreements.” Id. at 513-14. The question for the court’s consideration is: "Knowing what you know today, what do you think the sentence would be if the defendant pled guilty, as charged?” Id. at 514.
      Second, the supreme court made clear that the judge must "neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Id. Further, although the preliminary evaluation made by the judge is not binding, the defendant who pleads guilty or nolo contendere in reliance on that evaluation has the absolute right to withdraw the plea if the judge later determines that a greater sentence must be imposed. See id. Finally, the supreme court required that a record be made of all plea negotiations involving the trial judge. See id.

      It was with these restrictions and caveats that the supreme court sought to "accommodate! 1 the competing interests involved” and allow for the benefits of judicial participation while protecting the integrity of the judicial system and the rights of defendants. Id. at 512-13. The Warner court emphasized that although the delineated safeguards "apply in those cases where a trial court agrees to be an active participant in plea bargaining discussions, the court may decline to assume such a role.” Id. at 514.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    GREENSPOON MARDER, P.A., Appellant, v. Aura Teresa Gallardo MOSCOSO, Appellee.
    No. 3D12-1628.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Greenspoon Marder, P.A., and John H. Pelzer, Fort Lauderdale, for appellant.
    Colson Hicks Eidson, and Barbara A. Silverman and Curtis B. Miner, Coral Gables, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Greenspoon Marder, P.A. (“Greenspoon Marder”), the purchaser of the assets of Ruden, McClosky, Smith, Schuster & Russell, P.A. (“Ruden McClosky”) in bankruptcy, appeals from an amended order granting Aura Teresa Gallardo Moseoso’s (“Client”) Motion to Strike Purported Attorney’s Lien (“motion to strike attorney’s lien”) filed by Ruden McClosky. As we conclude the trial court erred by granting the Client’s motion to strike attorney’s lien, we reverse the order under review and remand for further proceedings.

In 2006, the Client retained Ruden McClosky to represent her in a lawsuit against Best Meridian Insurance Company (“Best Meridian”). The initial retainer agreement provided for hourly fees. However, after the Client fell behind on the payment of the hourly fees, in November 2009, Ruden McClosky and the Client entered into an amended retainer agreement that provided for a contingency fee for fees incurred after the execution of the amended retainer agreement, but also addressed the Client’s responsibility for the payment of unpaid hourly fees that were billed prior to the effective date of the amended retainer agreement.

In October 2010, Ruden McClosky withdrew as counsel because the particular attorneys representing the Client were no longer with Ruden McClosky, and Ruden McClosky did not employ “attorneys in Miami with the factual knowledge of the [Client’s] case to be able to provide services to the [Client] in this litigation in a mutually satisfactory manner.” Thereafter, Ruden McClosky filed its claim of attorney’s charging lien for the unpaid hourly fees.

Following Ruden McClosky’s withdrawal, the Client retained Colson Hicks Eid-son (“Colson Hicks”) on a contingency fee basis, and Colson Hicks, on behalf of the Client, filed a Motion to Strike Purported Attorney’s Lien (“motion to strike attorney’s lien”). Colson Hicks negotiated a settlement between Best Meridian and the Client in late November 2011, resulting in the dismissal with prejudice of the lawsuit.

In April 2012, the motion to strike attorney’s lien was heard. The Client argued that Ruden McClosky was not entitled to an attorney’s lien because it voluntarily withdrew without cause prior to the occurrence of the contingency and Ruden McClosky did not produce any positive judgment or contribute to the settlement. The trial court entered an order granting the Client’s motion to strike attorney’s lien. Greenspoon Marder, the purchaser of Ruden McClosky’s charging lien, appeals the trial court’s order granting the Client’s motion to strike attorney’s lien.

Greenspoon Marder contends that, even though Ruden McClosky withdrew without cause, the trial court erred by striking the charging lien filed by Ruden McClosky where the charging lien was for hourly fees billed prior to the execution of the amended retainer agreement, and where the amended retainer agreement provides that these previously billed, but unpaid, hourly fees were payable upon the conclusion of the litigation between the Client and Best Meridian. We agree.

As the issue presented in this appeal involves the interpretation of the amended retainer agreement entered into between the Client and Ruden McClosky, this Court’s standard of review is de novo. See Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 878, 876 n. 2 (Fla. 4th DCA 2002) (“The interpretation of a contract is a matter of law for the court, and is therefore a subject of de novo review.”). The amended retainer agreement provides, in pertinent part, as follows:

FEES. The Firm will represent the Client as of the Effective Date of this Amendment on contingency basis. The contingency will only apply to fees incurred after the execution of this Amendment.
The contingency will be as follows:
Client shall receive credit against the total amount of fees payable as set forth above for all attorney’s fees paid to the Firm to date.
All fees billed but unpaid prior to the Effective Date of this Amendment will be payable upon conclusion of the matter whether by final judgment that is not subject to any further appeal, by settlement, or at such time as the Firm’s representation of the Client with respect to this matter is terminated, whichever first occurs. They shall be payable at that time through the portion of funds received by the Client if the ease is successful, or from the return of the $278,000.00 premium refund if the case is unsuccessful. This is without limitation on Clients obligation to pay such amount regardless of collection of the premium refund or any other recovery in this matter.

(Emphasis added).

This Court’s interpretation of the amended retainer agreement is consistent with Greenspoon Marder’s argument. The amended retainer agreement specifically provides that “[t]he contingency will only apply to fees incurred after the execution of this Amendment.” Further, in the amended retainer agreement, the Client and Ruden McClosky acknowledge that there were unpaid hourly fees, and the amended retainer agreement sets forth that the Client was still responsible for the payment of the billed hourly fees that remained unpaid as of the effective date of the amended retainer agreement. The amended retainer agreement also set forth when these unpaid hourly fees were payable — “upon conclusion of the matter”— and from which funds they were payable— “the portion of funds received by the Client if the case is successful, or from the return of the $278,000.00 premium refund if the case is unsuccessful.” Therefore, contrary to the Client’s assertion, the attorney’s charging lien was not seeking the payment of a contingency fee, but rather was for unpaid hourly fees. Therefore, we reverse the trial court’s order granting the Client’s motion to strike the attorney’s lien.

      . The Client has primarily focused on cases in which the attorney representing the client pursuant to a contingency fee agreement withdrew without cause, and thereafter, the attorney nonetheless sought a portion of the contingency fee. As these facts are not presented in the instant case, the Client's reliance on cases involving that scenario is misplaced.

      . The Client argues that she signed two versions of the amended retainer agreement— one in English and the other in Spanish — and because there are significant differences between the two versions, this Court must interpret the Spanish version as it is more favorable to her position. This argument was not raised in the lower tribunal, and therefore, the issue was not developed in the record. For example, there is no translation of the Spanish version. See Diaz v. Bell MicroProducts-Future Tech, Inc., 43 So.3d 138 (Fla. 3d DCA 2010). As such, the Client cannot raise this issue on appeal.


author: FERNANDEZ, J.

text:
    MICCOSUKEE TRIBE OF INDIANS, etc., et. al., Petitioners, v. Dexter Wayne LEHTINEN, Respondent.
    No. 3D12-1950.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      Bernardo Roman, III, and Yesenia F. Rey, for petitioners.
    Joseph P. Klock, Jr., for respondent.
    Before FERNANDEZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

Miecosukee Tribe of Indians of Florida and Theresa Willie, individually and on behalf of the class, petition this Court to issue a writ of certiorari quashing the trial court’s order denying their motion to disqualify respondent’s attorney, Joseph P. Klock, Jr. Because we conclude that the unfair informational advantage standard does not apply where the same attorney represents adverse clients against the same party in cases that are not reasonably related, and that any claim that the respondent’s attorney has received confidential information is purely speculative at this time, we deny the petition.

In November 2011, petitioners filed a class action complaint against respondent, Dexter Wayne Lehtinen, alleging legal malpractice, breach of fiduciary duty, negligent misrepresentation, fraudulent misrepresentation, fraud, constructive fraud, and fraud in the inducement. In January 2012, respondent, represented by attorney Klock, filed his consolidated motion to dismiss and motion for summary judgment. Thereafter, petitioners filed their motion to disqualify attorney Klock, alleging that Klock represented clients in litigation against petitioners in other, unrelated matters and that Klock’s representation of respondent in the underlying case would give Klock access to confidential, attorney-client privileged information that he would then be able to use in those other unrelated cases. Petitioners claimed that attorney Klock would be privy to this confidential information because respondent was petitioners’ attorney for many years, and respondent possibly could divulge substantial, confidential information to Klock that would permit Klock to gain an unfair informational advantage against petitioners in the other, unrelated cases, in which Klock represents clients against petitioners.

In May 2012, the trial court conducted a hearing on the motion to disqualify attorney Klock. The court heard arguments that the respondent’s attorney gained an unfair informational advantage in other litigation against petitioners by representing the respondent, who had confidential knowledge of petitioners’ finances. The trial court denied the motion, finding that the unfair informational standard did not apply and cited a lack of proof that any confidential information had been divulged. Petitioners then filed this petition for writ of certiorari.

Certiorari is the proper method to obtain review of a trial court order disqualifying counsel. Event Firm, LLC v. Augustin, 985 So.2d 1174, 1175-76 (Fla. 3d DCA 2008). It is well-settled that disqualification of a party’s attorney is an extraordinary remedy to which courts should resort sparingly. Cont’l Cas. Co. v. Przewoznik, 55 So.3d 690, 692 (Fla. 3d DCA 2011). When considering a motion to disqualify counsel, a court “must consider the competing interests of maintaining professional standards and preserving client confidences [on the one hand], and on the other hand, permitting a party to hire their counsel of choice.” Kaplan v. Divosta Homes, L.P., 20 So.3d 459, 461-62 (Fla. 2d DCA 2009). A common law writ of certiorari is proper and will be granted when a trial court’s determination constitutes a clear departure from the essential requirements of the law resulting in material injury for the remainder of the ease that cannot be properly remedied on post-judgment appeal. Broin v. Phillip Morris Companies, Inc., 84 So.3d 1107 (Fla. 3d DCA 2012); Event Firm, LLC, 985 So.2d at 1175 (Fla. 3d DCA 2008). An order disqualifying counsel is reviewed on an abuse of discretion standard. Applied Digital Solutions, Inc. v. Vasa, 941 So.2d 404, 408 (Fla. 4th DCA 2006). “On motions to disqualify, this standard is especially difficult to meet because the disqualification of counsel is left to the sound discretion of the trial court, as long as such discretion is exercised within the confines of the applicable law and the trial court’s express or implied findings are supported by competent substantial evidence.” Moriber v. Dreiling, 95 So.3d 449, 458 (Fla. 3d DCA 2012).

Petitioners rely on four cases in support of their claim that Klock should be disqualified from representing respondent because in the course of such representation, Klock will gain an unfair informational advantage in his other cases against petitioners. Specifically, petitioners rely on: State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630 (Fla.1991); Frye v. Ironstone Bank, 69 So.3d 1046 (Fla. 2d DCA 2011); Adelman v. Adelman, 561 So.2d 671 (Fla. 3d DCA 1990); and Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986).

As the trial court found, these cases are not reasonably related. In each of these cases, the litigation was between related parties concerning related issues. In Fi-ye, Ironstone Bank retained counsel to file an action against Frye on a loan guarantee. Frye, 69 So.3d at 1047. Frye retained an attorney to represent him in a related action between Ironstone Bank and Frye. Id. at 1048. Frye subsequently discharged his attorney and filed a malpractice action against him. Id. The discharged attorney hired the same attorney to defend the malpractice action that Ironstone Bank had retained to pursue the action on the loan guarantee. Id. The district court held that the bank’s attorney had obtained an unfair informational advantage against Frye by virtue of his representation of Frye’s former counsel in the malpractice action. Id. at 1053.

In the underlying cause, it cannot be said, and no such allegation has been made, that Klock has obtained an unfair advantage in his representation of respondent in his defense of petitioners’ claims. Whether or not Klock obtains an unfair informational advantage in his representation of clients against respondent in other, unrelated matters is pure speculation at this time. Certainly, if petitioners believe at some point in the future that Klock has indeed obtained such unfair informational advantage in those cases, petitioners are free to seek Klock’s disqualification in the courts in whose jurisdiction the cases lie.

Furthermore, any claim that the respondent has disclosed confidential information to his own attorney that would breach Rule 4-1.6 of the Rules Regulating the Florida Bar is also unfounded. Rule 4-1.6, Rules of Professional Conduct, provides in pertinent part:

Rule 4-1.6 Confidentiality of Information
(a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.
(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(4) to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(e) Limitation on Amount of Disclosure. When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.

Here, petitioners waive their right to attorney confidentiality because they level a claim against their former attorney for legal malpractice. Respondent may disclose whichever confidential information that is necessary to defend himself or establish a claim against his former client to the extent that he discloses no more information than is required to meet the requirements of rule 4-1.6.

We thus conclude that the trial court correctly determined that respondent’s attorney received no informational advantage in his other cases against petitioners when he represented respondent. Furthermore, there is no violation of rule 4-1.6 at this time. Therefore, we deny the petition for writ of certiorari.

Petition denied.


author: SALTER, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. CONCRETE STRUCTURES, INC., etc., et al., Appellees.
    No. 3D12-2004.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      R.A. Cuevas, Jr., and Thomas H. Robertson, Miami, for appellant.
    Benson, Mucci & Weiss, and Brian M. Abelow and Mark Mucci, Coral Springs, for appellees.
    Before LAGOA, SALTER and EMAS, JJ.
   SALTER, J.

Miami-Dade County appeals a temporary injunction prohibiting the County from enforcing a notice of violation and orders for corrective action issued by the County’s Environmental Services unit, and from attempting to seek access to the ap-pellees’ commercial facility without their consent or a circuit court order. We vacate the order and injunction.

I. Fifteen Years of Litigation

The corporate appellee, Concrete Structures, Inc. (“CSI”), owns and operates a concrete casting facility located within the County’s Northwest Wellfield protection area. The individual appellee, Richard Sa-lonia, is the President of CSI. The Northwest Wellfield is protected by County environmental ordinances that include the “Potable Water Supply Well Protection Ordinance,” section 24-43, Miami-Dade County Code. That ordinance was enacted “to safeguard the public health, safety and welfare by providing scientifically established standards” for land uses in the area, “protecting public potable water supply wells from contamination.” Miami-Dade, Fla., Code § 24-43(1) (2008). CSI’s property and operations are also subject to the County’s zoning ordinances and permit requirements in Chapter 33, Miami-Dade County Code.

In 1998, the County commenced the underlying circuit court action, alleging that CSI and Mr. Salonia were in violation of the Northwest Wellfield protection ordinances and applicable zoning provisions. In 2000, the circuit court entered an injunction directing CSI to “immediately cease all concrete pouring operations at the site,” and to “remove or render free of pollutants all forms, concrete products and equipment at the site” within twenty days. CSI was also granted ninety days to obtain a permit to place clean fill in a protected freshwater wetland or (failing that) thirty days , within which to remove previously-deposited fill.

In November 2005, the County, CSI, and Mr. Salonia entered into a detailed settlement agreement. Days later, the circuit court approved the settlement and dismissed the underlying lawsuit with prejudice, retaining jurisdiction to enforce the settlement.

In June 2007, the County moved to enforce the settlement agreement, alleging that CSI had failed to legalize the uses of the property and failed to comply with provisions of the required fill permit. In May 2009, the County moved on an emergency basis for access to the CSI property. The County alleged that CSI had denied the County access to the property to inspect it during normal business hours and pursuant to the environmental permit issued to CSI. The County also alleged that CSI had begun lake excavation at the property without obtaining a required certificate of use or operating permit.

After an evidentiary hearing, the circuit court granted the County’s motion to enforce the settlement agreement and its motion for access to enter and inspect the property. The court directed CSI to pay the County “$500 per day starting from April 1, 2008 and continuing until the property is returned to the condition (in all respects) it was in at the time the November 1, 2005, settlement agreement was entered.” The County maintained that the $500.00 per day penalty should have commenced from June 1, 2007, and it appealed the circuit court’s order for that reason. We affirmed the circuit court’s order. Miami-Dade Cnty. v. Concrete Structures, Inc., 36 So.3d 762 (Fla. 3d DCA 2010).

In October 2009, the County’s Department of Environmental Resources Management (DERM) issued a “Notice of Violation and Orders for Corrective Action” to CSI. The notice reported that CSI had failed to complete work in accordance with the plans and specifications submitted to obtain its permit; that construction prohibited in protected wetlands had occurred; and that groundwater contaminant and pH levels exceeded permitted levels. In an administrative consent agreement signed by CSI in June 2010, CSI agreed to submit additional progress reports and other documentation to demonstrate zoning resolution and environmental permit compliance, failing which CSI would cease and desist the unauthorized uses, remove the related structures and personal property, remove unpermitted fill, and restore the impacted wetlands. Importantly, CSI agreed that “Entry of this Consent Agreement does not relieve [CSI] of their responsibility to comply with all applicable federal, state, or local laws, regulations and ordinances.”

But this fragile peace did not last long. In October 2011, DERM issued another “Notice of Violation and Orders for Corrective Action” to CSI with a litany of items of alleged non-compliance with the administrative consent agreement. The following month, CSI and Mr: Salonia filed their verified motion for temporary injunction in the 1998 circuit court action, complaining that “on numerous occasions the County has attempted to conduct unannounced inspections at the property during normal business hours without seeking pri- or consent of CSI or a warrant from [the trial court].” CSI alleged that “the County’s continued attempts to inspect [CSI’s] property either without seeking consent or a proper warrant from this Court shows a blatant disregard for the constitutional protections provided by the United States Constitution to [CSI].”

After a hearing, the circuit court issued the temporary injunction sought by CSI, waived the bond required under Florida Rule of Civil Procedure 1.610(b), and precluded the County from (a) enforcing its administrative notice of violation and corrective order and (b) attempting to seek access to CSI’s facility without CSI’s consent or a further court order. This appeal followed.

II. Analysis

To obtain the temporary injunction, CSI was obligated to establish irreparable harm, the unavailability of an adequate remedy at law, a substantial likelihood of prevailing on the merits, and that the injunction would serve the public interest. Sacred Family Invs. v. Doral Supermarket, 20 So.3d 412, 415 (Fla. 3d DCA 2009). Not one of these requirements was satisfied.

A. Irreparable Harm

The County issued notices of violation and sought to exercise rights of inspection pursuant to the conditions of CSI’s environmental and land use permits. As detailed below, CSI did not establish the likelihood of any imminent, “arbitrary invasions by governmental officials” or constitutional violations.

B. Adequate Remedy at Law

The notices of violation complained of by CSI afforded CSI rights to an administrative appeal to the Environmental Quality Control Board. Miami-Dade, Fla., Code § 24-11 (2008). Any decision by that Board could have been further appealed to the appellate division of the circuit court under section 24-18 of the Code. CSI’s failure to exhaust these remedies precluded its action in the circuit court. Frye v. Miami-Dade Cnty., 2 So.3d 1063 (Fla. 3d DCA2009).

C. Likelihood of Prevailing on the Merits

The County’s position on the merits is easily summarized. CSI was required by law to obtain certain land use and environmental permits to operate in an area of critical environmental concern (above the Biscayne Aquifer, the primary source of the County’s potable water). When the County sued for CSI’s failure to obtain those permits and land use resolutions, CSI entered into a settlement agreement confirming its obligations, reimbursing the County for enforcement costs, and agreeing to comply within a time certain or to cease and desist the prohibited uses. When CSI failed to comply with its written obligations in the settlement agreement, the County sued to enforce the agreement and to collect the agreed per diem penalties. When CSI finally sought and obtained permits, those permits included written agreements to allow access to CSI’s property for inspection and testing “at reasonable times” by County environmental staff “presenting credentials.” CSI’s authorizations in the permit applications did not include any requirement for the County to give prior written notice of an inspection or test, to obtain CSI’s prior consent, or to first procure any type of warrant or court order. Finally, CSI failed to exhaust its administrative remedies regarding the administrative actions by DERM, such that the matter was not ripe for consideration by the trial court.

CSI’s arguments are more complex. First, CSI argues that the County violated the May 2009 circuit court order granting the County’s motion to enforce the 2005 settlement agreement. Second, CSI asserts that the County’s demands for access and inspection constituted an “unauthorized, warrantless search of [CSI’s] property” in violation of the Fourth Amendment to the United States Constitution. Third, CSI asserts that the Florida statutes pertaining to “inspection warrants,” sections 933.20-933.30, Florida Statutes (2011), limit the County’s rights of access and inspection specified in the permit terms. Fourth and finally, CSI maintains that it is not bound by prior inconsistent positions it has taken in the underlying lawsuit. We address and reject these arguments in order.

1. The May 2009 Enforcement Order

The May 2009 order granted the County’s 2007 motion to enforce the settlement agreement and the County’s 2009 emergency motion for access following CSI’s denial of access to County staff for inspection purposes. The order: concluded that CSI violated the 2005 settlement agreement; directed CSI to immediately cease unauthorized activity until the necessary permits and certificates were obtained and “all necessary governmental operating requirements have been met;” and imposed a daily fine upon CSI pending restoration of the property. The order granted the County one opportunity to enter and inspect the property, with additional inspections or access to be “by consent of [CSI] or through further Order of the Court.” CSI maintains that the “one opportunity” limitation applied not only to the 2009 violations, but also to any future access and inspections.

CSI’s argument fails to address the fact that the 2011 violations — the matters which prompted renewed County action and CSI’s motion for the temporary injunction prohibiting such action — involved (a) occurrences which followed the 2009 order and (b) administrative actions based on CSI’s consent to inspections and access under permits issued after the 2009 order. Based on the new 2011 violations, the County sought access to the property during reasonable business hours and upon presentation of proper credentials. The 2011 notice of violation also followed the 2010 administrative consent agreement between CSI and the County whereby CSI agreed to cure matters identified in the 2009 notice of violation.

Neither the plain language of the May 2009 order nor logic supports CSI’s argument that the County limited itself to a single inspection for all time (absent CSI’s prior consent or a court order), regardless of subsequent occurrences or violations.

2. Fourth Amendment Issues

In the circuit court, CSI argued — and the court found — that the Fourth Amendment safeguards CSI’s privacy and security “against arbitrary invasions by governmental officials,” citing Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Camara vacated the conviction of a tenant who refused building inspectors access to his personal residence. The Supreme Court held that the warrantless inspections of a residence in that case violated the Fourth Amendment’s protection to be free from unreasonable government invasions of privacy. A case decided with Camara, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1741, 18 L.Ed.2d 930 (1967), reached the same result with respect to a fire inspector’s unannounced and warrantless inspection of a commercial warehouse. In See, however, the Supreme Court did not address “accepted regulatory techniques” such as licensing programs which require inspections prior to operating a business or marketing a product.

In the forty-plus years since Camara and See were decided, a comprehensive regulatory framework has evolved — federal, state, and local — to address environmental issues. And twenty years after Camara and See, the Supreme Court sharpened the standards applicable to war-rantless inspections for “closely regulated” businesses. New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), described a three-part assessment:

First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made.
Second, the warrantless inspections must be “necessary to further [the] regulatory scheme.” ...
Finally, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] pro-vid[e] a constitutionally adequate substitute for a warrant.” In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

Id. 482 U.S. at 702-03, 107 S.Ct. 2636 (citations omitted).

Applying the three tests to this record, environmental concerns relating to water quality and protected wetlands are unquestionably a “substantial” governmental interest, and those concerns are the basis for the County’s regulatory and permitting scheme in this case. Second, the County’s inspections to assure that contaminants are within appropriate bounds, and that wetlands are not being filled without compliance with the permit terms and the applicable ordinance, are necessary to further the regulatory scheme. And third, the ordinances and permit applications (not to mention the preceding thirteen years of litigation and enforcement) fairly notified CSI that the access and inspections were pursuant to law and had a properly defined scope. CSI’s written agreements to provide access and inspections limited the discretion of the County inspectors to the activities and uses described in the permits.

Nor does the record reflect that the access and inspections attempted by the County amounted to a “raid” or to any investigation by law enforcement officers. The DERM inspectors and code compliance officials sought only to test water and fill, and to inspect construction work in process in the protected wetlands area (during normal business hours, and after presenting credentials).

For all these reasons, we conclude that the warrantless access and inspections sought by the County are not, as argued by CSI, “arbitrary invasions by governmental officials” in violation of the Fourth Amendment. We would reach the same conclusion on other grounds. CSI’s knowing, intentional, and written consent to the County’s limited administrative rights of access and inspection — set forth in the applications for the subject permits — also disarms CSI’s constitutional complaint.

3. Inspection Warrants

Next, CSI argues that the County must exercise its rights of access and inspection by obtaining administrative “inspection warrants” as defined in section 933.20, Florida Statutes (2011). The procedure for the issuance and enforcement of an inspection warrant follows, in sections 933.21 through 933.30. The trial court found that “Fla. Stat. 933.26 specifically limits the forcible entry onto private property for purposes of conducting a warrant-less inspection to times only where reasonable suspicion exists that a violation of a state or local law or code presents an immediate threat to public health or safety.”

In this case, however, no forcible entry was sought by the County. The consequence of CSI’s refusal to comply with its agreements in the permit applications is not a misdemeanor of the second degree (as would attend a refusal to permit an inspection authorized by warrant, section 933.27), but rather the prospect for revocation of CSI’s permit and the imposition of an administrative fíne and enforcement costs. In addition, section 933.29 specifies that the inspection warrant statutes are not to be construed “to. restrict the powers granted by general law to an agency of the state, or to a unit of local government acting on behalf of such agency pursuant to a contract with the agency, to conduct inspections with or without warrant as authorized by general law.” The trial court and this Court are not addressing a motion to suppress evidence gathered in a criminal investigation, but rather an administrative permit holder’s alleged violations of certain conditions of the permit.

We thus conclude that the County’s exercise of the rights of access and inspection in furtherance of the permit conditions is not subject to a requirement to first obtain an inspection warrant under Chapter 933, Florida Statutes.

4. Estoppel

Before seeking and obtaining the temporary injunction, CSI moved to strike the County’s 2011 motion for further access and inspections at CSI’s property, and for sanctions against the County under section 57.105, Florida Statutes (2011). In those pleadings, CSI took the position that the 2005 settlement agreement had been fully performed, that the trial court should dismiss the lawsuit with prejudice, and that the County should bring its “new claims” “in the appropriate manner.” The County agreed with that assertion, acknowledging that the trial court lacked jurisdiction because the conditions in the settlement agreement had been performed. The County maintained that the 2011 notices of violation were administrative matters appropriate for resolution under the applicable ordinances rather than in the 1998 lawsuit.

In response, CSI maintains that it was not judicially estopped from seeking a temporary injunction in the very lawsuit it claimed had been concluded and as to which no further reservation of jurisdiction remained. We need not decide that question, however, because we agree with the parties that the undertakings in the 2005 settlement agreement were performed and that the circuit court lacked further jurisdiction to hear or determine CSI’s motion for temporary injunction in 2012. That court’s reservation of jurisdiction to enforce the settlement agreement— the case itself having been dismissed with prejudice in 2005- — ended when the parties fully performed. “When a trial court ap-proves a settlement agreement by order and retains jurisdiction to enforce its terms, the trial court’s continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of the agreement.” Sarhan v. H & H Investors, Inc., 88 So.3d 219, 220 (Fla. 3d DCA 2011).

D. The Public Interest

The public interest in assuring that wetlands and a protected aquifer are protected from contaminants is self-evident. CSI’s argument, and the trial court’s finding, that “unannounced inspections and intrusions onto [CSI’s] property pose a great risk to their business and to the persons inspecting because of the heavy machinery and liability” are not based on an eviden-tiary record or competent, substantial evidence.

III. Conclusion

On this record, CSI was not entitled to a temporary injunction. CSI had and has an adequate administrative remedy, and the County has shown a substantial and compelling government interest in its regulatory scheme. CSI knew, in applying for and obtaining the zoning resolution and permits for its property and business operations, that DERM would request access and perform inspections to assure compliance. Absent abuse or harassment by DERM’s engineers and staff in the conduct of those inspections, CSI and Mr. Salonia might do better to welcome the inspectors as a necessary feature of (a) casting concrete in an environmentally protected area atop the public’s water supply, and (b) complying with the conditions specified in CSI’s applications for its permits and land use resolution.

Reversed; temporary injunction of June 29, 2012, vacated.

      . Shortly after oral argument, we issued an order vacating the order and injunction. Our analysis and reasons for doing so are detailed in this opinion.

      . The settlement agreement included a payment of $140,000.00 by CSI and Mr. Salonia, jointly and severally, to pay for "any and all claimed damages, penalties, administrative costs, and attorney’s fees in this matter,” and it obligated them to comply with the pertinent Environmental Quality Control Board orders, the requisite permit terms, and the zoning resolutions. CSI and Mr. Salonia agreed to "legalize any and all uses of the property” within eighteen months and to pay the County a penalty in the amount of $500.00 per day for any failure to comply with any such obligations within the time periods specified in the agreement.

      . By this time, DERM had been renamed "Permitting, Environment and Regulatory Affairs” (PERA). For the sake of the acronym-abused reader,, we refer consistently to the agency in this opinion as "DERM.”

      . We would also vacate the temporary injunction for the failure to set a bond as required per Florida Rule of Civil Procedure 1.610(b). The finding that "the County will suffer no monetary harm from being enjoined” is contradicted by the record in the case. We dispense with a detailed review of that record because of our conclusion that CSI failed to establish any of the elements required for the temporary injunction.

      . The record contains no evidence that the County exceeded the scope of appropriate access and inspection relating to the issued permits-actions frequently and directly interfering with CSI’s business activities, or straying into other regulatory areas such as (for example) occupational safety, tax compliance, immigration, or disability act compliance.

      . As examples, the National Environmental Policy Act of 1969 became effective in 1970. The Clean Water Acts of 1972 and 1977 substantially amended the Federal Water Pollution Control Act of 1948 to regulate water quality at all levels of government.

      . See Bruce v. Beary, 498 F.3d 1232 (11th Cir.2007) (unannounced administrative inspection of an automobile body repair and salvage shop resembled a criminal raid).

      . It also bears repeating that the access and inspections at issue here were only "sought,” not obtained through unauthorized entry or use of force. When denied access and inspections incident to the permits, the County issued administrative notices of violation and sought judicial enforcement of the inspectors’ rights.

      . DERM acts for the County on behalf of the Florida Department of Environmental Protection, in conjunction with the South Florida Water Management District and the Florida Water Resources Monitoring Council, to protect area surface waters and groundwater. See, e.g., § 373.026(3), Fla. Stat. (2011).

      . CSI also commenced a new circuit court lawsuit against the County in 2011, just days before it filed the motion for temporary injunction, directed to the permit terms and the 2010 administrative consent agreement with DERM.

      . "Welcome,” in the same falsely enthusiastic spirit in which IRS auditors are welcomed to corporate offices with coffee and pastries, and bank regulators are encouraged to ask for anything they care to see.


author: EMAS, J.

text:
    Hannah M. KRUMHOLZ, Appellant, v. In re: GUARDIANSHIP OF H.K., Appellee.
    No. 3D12-2047.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      James R. Sloto, Jacqueline Augusto and Seth S. Diamond, Miami, for appellant.
    Cheryl Silverman, Coral Gables; Young, Berman, Karpf & Gonzalez and Andrew Berman, North Miami Beach, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   EMAS, J.

Hannah M. Krumholz appeals an order determining her totally incapacitated and appointing a plenary guardian to act on her behalf. For the reasons that follow, we reverse and remand with directions to hold a new adjudicatory hearing.

On May 24, 2011, Krumholz’s niece, Rhoda Rosen (“Rosen”), filed a petition to determine that Krumholz was incapacitated. The court appointed Rosen, and professional guardian Vicki Brail, as temporary co-guardians and entered an order summoning an examining committee to make recommendations regarding Krum-holz’s alleged incapacity.

An eight-hour adjudicatory hearing was held over the course of two days, at which twelve witnesses testified both in support of, and in opposition to, the petition. Following the presentation of the testimony and other evidence (which included thirty-nine exhibits), the trial court entered a three-page order determining Krumholz totally incapacitated. The order stated there were no reasonable alternatives to guardianship, and that no alternatives would sufficiently address her problems and needs, and appointed Brail as Krum-holz’s plenary guardian. The order was, by and large, a form order which provided a blank space to be filled in by the trial court. In that blank space, the court indicated that Krumholz suffered from inca-pacities of the following nature and scope: “Imminent danger that the physical or mental health or safety will be seriously impaired. She suffers from dementia, memory loss and amnestic cognitive impairment and delusions.” There were no other individualized findings of fact contained in the order. Krumholz appealed.

Following oral argument, this court entered an order relinquishing jurisdiction for ninety days to permit the trial court judge to make the requisite findings of fact pursuant to section 744.331(6)(c), Florida Statutes (2012), and directing the parties to provide a status report within sixty days.

The parties submitted status reports, indicating that Judge Arthur Rothenberg, the original trial judge who presided over the hearing and who rendered the order, has since retired from active judicial service. Further, Judge Rothenberg now serves as a private mediator, and in that capacity participates in all matters heard in the probate division of the Eleventh Judicial Circuit, including guardianships. Therefore, even if Judge Rothenberg was willing, on a volunteer basis, to prepare an order containing findings of facts as directed by this court in its order relinquishing jurisdiction, he would be prohibited from doing so under Florida’s Code of Judicial Conduct. See Canon 5F(2), Code of Judicial Conduct (2012) (providing in part that “[a] senior judge who provides mediation services shall not preside over the same type of case the judge mediates in the circuit where the mediation services are provided.... ”).

Because the order under review fails to contain sufficient findings of fact as required by section 774.331(6)(c), and the original trial judge is no longer available, or is otherwise precluded from preparing findings of fact in compliance with this Court’s order relinquishing jurisdiction, we are constrained to reverse the order below and remand this cause for a new adjudicatory hearing before a successor judge.

Reversed and remanded for further proceedings consistent with this opinion.

      . Section 744.33 l(6)(c), Florida Statutes (2012) provides: “In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property.”

      . Canon 5F(2) also provides that "[a]bsent express consent of all parties, a senior judge is prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years.... ” Appellee and Appellant appear to agree that Judge Rothenberg recently mediated an unrelated case involving Appellee’s counsel.

      . The trial court did not orally announce its decision, nor did it make any oral findings on the record at the conclusion of the two-day hearing. Instead, the court invited the parties to submit written closing arguments within thirty days, and entered its written order approximately 110 days after the conclusion of the hearing. In the absence of oral findings of fact, therefore, the entry of a written order in the instant case would not constitute a ministerial act of reflecting that which was already orally pronounced. See Plaza v. Plaza, 21 So.3d 181, 182 (Fla. 3d DCA 2009) and cases cited.

      .Given that the trial court, in reaching its decision, would be required to assess the credibility of the witnesses and to evaluate and determine the relative weight to be accorded to the conflicting evidence, we cannot agree that the preparation of an order making the requisite findings of facts is a "ministerial act” that could be performed by a successor judge merely upon a review of the hearing transcripts. See Alvord v. Alvord, 572 So.2d 925, 926 (Fla. 3d DCA 1990); Moore v. Dep't of Health & Rehab. Servs., 664 So.2d 1137, 1139 (Fla. 5th DCA 1995). Absent the parties’ stipulation to such a procedure, a new trial is required. Alvord; Moore.


author: WELLS, Chief Judge.

text:
    The STATE of Florida, Appellant, v. T.S., a juvenile, Appellee.
    No. 3D12-2373.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Brent J. Kelleher, Assistant Attorney General, Miami, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Stephanie Michel and Daniel-la Piñeros, Certified Legal Interns, Miami, for appellee.
    Before WELLS, C.J, and SHEPHERD and SUAREZ, JJ.
   WELLS, Chief Judge.

The State of Florida appeals from an order suppressing physical evidence obtained during an investigatory stop. Because we find reasonable suspicion existed to support the stop, we reverse.

Officer Timothy Jackson, the arresting officer, was the sole witness to testify at the suppression hearing below. According to Officer Jackson, he was off duty and out of uniform when, on February 12, 2012, he pulled his marked police car into a McDonald’s parking lot. As he neared the restaurant, he was approached by an individual, described as a Latin male, who stepped in front of Officer Jackson’s moving car forcing Officer Jackson to stop. This individual, who was talking on a cell phone when he stepped before Officer Jackson’s police car, appeared to Officer Jackson to be “agitated and excited.” As soon as Jackson stopped his car, the man told Jackson that “somebody [had] pulled a gun on [him] in the bathroom at McDonald’s.”

Fearing a hoax, Officer Jackson demanded to know to whom this individual was speaking and upon being told that it was “the [911] dispatcher,” Officer Jackson took possession of the phone and confirmed that dispatch was on the line taking a robbery report. At this juncture, Officer Jackson took over the investigation and was told by the individual who flagged him down, that a black man wearing a black hoodie and red shorts, accompanied by another black man wearing a white t-shirt and blue jeans, had pulled a gun on him in the McDonald’s restaurant. The entire conversation between the officer and the individual lasted “at least two minutes.”

Upon learning that these events had occurred only a few minutes before, and finding the individual to be credible, Officer Jackson decided to leave at once in an attempt to locate the assailants. Officer Jackson made no attempt to obtain the name and address of the man making the report, asking only that he remain at the McDonald’s while Officer Jackson went in pursuit.

After searching for only a few minutes, Officer Jackson spotted two individuals just a few hundred yards from the McDonald’s who matched the descriptions given to him. Jackson parked and got out of his vehicle, and based on the report that at least one of the assailants was armed, approached with his gun drawn. On reaching the two, Officer Jackson told one of them (T.S.), that he did not “know whether or not you’re the actual person or not, but someone just claimed that somebody pulled a gun and you meet the description. For your safety and for my safety let me see your hands.” T.S. did not respond. Officer Jackson then asked T.S. at least three more times to show his hands and received no response. Officer Jackson finally asked, “Do you speak English, do you speak Spanish, do you speak Creole, are you deaf, are you dumb[?]” Other than “swaying his body and walking] back and forth,” T.S. made no response to any of these demands. Finally, Officer Jackson told T.S., “I’m going to tell you one more time if you do not comply I’m going to blow your head off.” This time T.S. took his hands out of his pockets and put them in the air. T.S. then acknowledged that he spoke English and stated that he had a handgun in his pocket. At this point, Officer Jackson retrieved a .38 snub nose pistol with the hammer cocked from T.S.’s pocket and called for backup.

Officer Jackson estimated that approximately thirty to thirty-five minutes had elapsed from the time he first interacted with the informant and when he returned to the McDonald’s restaurant. But, by the time he returned, the individual who had reported the attempted robbery had left.

The State charged T.S. with carrying a concealed firearm and with possession of a firearm by a minor. Relying primarily on Baptiste v. State, 995 So.2d 285 (Fla.2008), T.S. moved to suppress the firearm claiming that the stop during which the gun was seized was illegal because it was based solely on an unreliable anonymous tip. The trial court agreed and ordered the evidence suppressed. Because the individual who flagged Officer Jackson down at the McDonald’s restaurant was a citizen informant whose information was sufficiently reliable to support the investigatory stop conducted by Officer Jackson, we reverse. See Williams v. State, 721 So.2d 1192, 1193 (Fla. 1st DCA 1998) (confirming that review of a trial court’s application of the law to the facts is de novo).

“Generally, ‘the Fourth Amendment to the United States Constitution prohibits state actors from making searches or seizures of the person in the absence of probable cause.’ ” United States v. Heard, 367 F.3d 1275, 1278 (11th Cir.2004) (quoting United States v. Dunn, 345 F.3d 1285, 1288 (11th Cir.2003), cert. denied, 542 U.S. 906, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004)). However, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized an exception to the probable cause requirement where a minimally intrusive search and seizure — an investigatory stop — is involved. These minimally intrusive searches and seizures need not be based on probable cause, but may be based instead only on an officer’s reasonable, articulable suspicion that criminal activity is afoot. Id. at 30, 88 S.Ct. 1868; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (stating that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause”); see also Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (confirming that under Terry, “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot”).

Reasonable suspicion, a less demanding standard than probable cause, may “be established with information that is different in quantity or content than that required to establish probable cause, [and] ... can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In Baptiste, the Florida Supreme Court addressed whether an anonymous report, a tip, of criminal activity, uncorroborated by any evidence of illegal activity, was legally sufficient (that is rehable enough to give rise to the reasonable suspicion necessary) to support an investigatory stop. In determining that it was not, the court acknowledged that while information provided to law enforcement from some sources about criminal activity may be sufficiently reliable to establish the quantum of suspicion necessary to support an investigatory stop, information from other sources may not. Baptiste, 995 So.2d at 291. More specifically, the court noted that “the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a ‘citizen informant’ who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale.” Id.

This “hierarchy” or sliding scale of reliability depends, as the Supreme Court further confirmed, on a number of factors relating to the ability to assess the motivation, credibility and potential accountability of the person making the report:

First, a citizen informant may be motivated not by pecuniary gain, but by the desire to further justice. Second, unlike an anonymous tipster, a witness who directly approaches a police officer may be held accountable for false statements. Third, a face-to-face tip may be viewed as more reliable because the officers who receive the tip have the opportunity to observe the demeanor and evaluate the credibility of the person offering the information. Fourth, a witness who approaches the police in person may subject himself or herself to potential reprisal from the defendant, thereby rendering the tip more reliable than an anonymous tip.
On the other hand, a truly anonymous tip has been consistently held to fall on the low end of the reliability scale, primarily because the veracity and reliability of the tipster is unknown.

Id. at 291-292.

The information provided in this case did not come from a truly anonymous telephone tip but came during a face-to-face interaction between a citizen and the authorities. First, and as T.S. acknowledges here, the circumstances surrounding the informant’s actions do not suggest that he was motivated by pecuniary gain. Second, while the police officer involved in this interaction failed to secure the informant’s identifying information, at no point did the informant indicate a desire to remain anonymous so as to remain unaccountable for any false statements. Rather, the informant’s actions in reporting the robbery attempt to both the 911 dispatcher and Officer Jackson confirm his willingness to be held accountable for making not just one, but two, reports. Third, T.S. does not question the fact that the arresting officer had ample opportunity to observe the informant’s demeanor during their two minute conversation to assess his credibility. Indeed, the officer’s ability to independently confirm the informant’s representation that he was attempting to make a police report of the criminal activity which he stated had occurred, combined with the fact that the officer was quickly able to locate the described assailants nearby and at a location generally suggested by the informant, confirmed the informant’s credibility and the reliability of the information provided. Thus, while Officer Jackson did not secure identifying information from the informant, the informant was not truly an anonymous tipster but a citizen informant instead. See generally Wallace v. State, 964 So.2d 722, 728 (Fla. 2d DCA 2007) (recognizing that when considering whether a tipster should be treated as a citizen informant, a deficiency in one factor may be compensated for by a strong showing as to another indicia of reliability); see also A.M. v. State, 24 So.3d 731, 733 (Fla. 3d DCA 2009) (finding a tipster to be a citizen informant where the tipster’s anonymous call to the police was followed by a face-to-face encounter between the tipster and the police prior to an investigatory stop); J.P.N. v. State, 931 So.2d 1066, 1069 (Fla. 4th DCA 2006) (recognizing that an anonymous face-to-face tip is presumed to be inherently more reliable than an anonymous telephone tip, and finding a tipster to be a citizen informant, in part because the officer conversed with the informant “for sixty .to ninety seconds face-to-face and had an opportunity to assess his credibility”); compare McKelvin v. State, 53 So.3d 401, 405 (Fla. 4th DCA 2011) (distinguishing J.P.N. and finding a face-to-face tip not reliable because there was “no evidence regarding the length of the officers’ encounter with the informant” during which the officer could judge the informant’s credibility).

Because the informant in this case was a citizen informant, reasonable suspicion existed to conduct an investigatory stop and the subsequent search of T.S. was legal. Accordingly, we reverse the order under review and remand for further proceedings.

      . In coming to this conclusion, we reject the argument made below that this case is similar to A.W. v. State, 82 So.3d 1136 (Fla. 4th DCA 2012), McKelvin v. State, 53 So.3d 401 (Fla. 4th DCA 2011), and State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998). As the opinion in A.W. notes, the informants who both called the police and met with them face-to-face left the area after identifying the defendant "[wjishing to remain anonymous.” A.W., 82 So.3d at 1137. Similarly, in McKelvin, the informant ‘‘wanted to remain anonymous.” McKelvin, 53 So.3d at 403. And in Rewis, the totality of the circumstances reported in the opinion demonstrate no basis on which the face-to-face information provided could have been determined to be reliable. Rewis, 722 So.2d at 864.


author: SCHWARTZ, Senior Judge.

text:
    WATERFRONT INVESTMENT REAL ESTATE, LLC, Appellant, v. The BENTLEY BAY CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D12-1833.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      Casanova & Kucera and Tomas Kucera, Miami, for appellant.
    Blaxberg, Grayson, Kukoff & Twombly and Robert Twombly, Miami, for appellee.
    Before LAGOA and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The judgment below is reversed and the cause is remanded for further proceedings on the authority of the later-decided, contrary cases of Aventura Management, LLC v. Spiaggia Ocean Condominium Ass’n, 105 So.3d 637 (Fla. 3d DCA 2013), and Barnes v. Castle Beach Club Condominium Ass’n, 106 So.3d 86 (Fla. 3d DCA 2013).

Reversed and remanded.


text:
    METROPCS COMMUNICATIONS, INC., et al., Appellant, v. Jorge PORTER, Appellee.
    No. 3D12-3077.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Carlton Fields and Aaron S. Weiss and David L. Luck; Drinker Biddle & Reath LLP and Michael J. Stortz, California, pro hac vice, Miami, for appellant.
    Gonzalo R. Dorta and Christian W. Waugh, Ocala, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The order under review denying arbitration is reversed for a determination after an evidentiary hearing of the threshold issue of whether the arbitration clause was contained in a binding agreement between the parties. See Travelers Ins. Co. v. Irby Constr. Co. 816 So.2d 829, 830 (Fla. 3d DCA 2002); Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 129 (Fla. 4th DCA 1982); Krutchik v. Chase Bank USA N.A., 531 F.Supp.2d 1359, 1365 (S.D.Fla.2008). We express no view as to the result of any other issue which may arise from that ruling. See McKenzie Check Advance of Fla., LLC v. Betts, 112 So.3d 1176 (Fla.2013); Hancock v. AT & T, Inc., 701 F.3d 1248 (10th Cir.2012); Rampersad v. Primeco Personal Commc’ns, L.P., 2001 WL 34872572 (S.D.Fla.2001); Schafer v. AT & T Wireless Servs., Inc., 2005 WL 850459 (S.D.Ill. 2005); Briceno v. Sprint Spectrum, L.P., 911 So.2d 176, 178 (Fla. 3d DCA 2005).

Reversed and remanded.


text:
    The STATE of Florida, Appellant, v. Raydel RODRIGUEZ, Appellee.
    No. 3D07-2451.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    George T. Pallas, for appellee.
    Before WELLS, C.J., and SHEPHERD, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In State v. Rodriguez, 997 So.2d 1210 (Fla. 3d DCA 2008), we reversed an order of suppression stemming from a dog sniff of a marijuana enterprise located in Miami-Dade County, on the authority of our previous decision in State v. Jardines, 9 So.3d 1 (Fla. 3d DCA 2008). The case is again before us pursuant to an order of the Florida Supreme Court remanding it for reconsideration in the light of its reversal of that decision in Jardines v. State, 73 So.3d 34 (Fla.2011). Upon consideration, we now affirm the order below on the authority of Jardines v. State, 73 So.3d 34 (Fla.2011), cert. granted in part, — U.S. -, 132 S.Ct. 995, 181 L.Ed.2d 726 (U.S. 2012), aff'd, - U.S. -, 133 S.Ct. 1409, 185 L.Ed.2d 495 (U.S.2013).

Affirmed.


author: PER CURIAM.

text:
    Joseph MORELAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-895.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Joseph Moreland appeals from an order denying his motion to mitigate filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Because an order denying a Rule 3.800(c) motion is not an appealable order, we dismiss the appeal for lack of jurisdiction. See, e.g., Martinez v. State, 77 So.3d 706 (Fla. 3d DCA 2011).


author: SUAREZ, J.

text:
    Walter CURRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-832.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.

      Walter Curry, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

This appeal is hereby dismissed as untimely. This dismissal is without prejudice to the appellant to file a petition seeking belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).


text:
    Dion R. WAYE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-731.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Dion R. Waye, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   CORRECTED OPINION

PER CURIAM.

On the court’s own motion, we withdraw the earlier opinion issued April 24, 2013, and substitute the following corrected opinion in its place.

Appellant Dion Waye appeals from an order summarily denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking an award of 1249 days of credit for time served prior to sentencing. The trial court summarily denied the motion, stating in its order that the defendant expressly agreed that, as part of a negotiated plea, he would receive only 925 days of credit. Although the trial court’s order makes reference to the minutes of the court file which purport to indicate the award of 925 days’ credit, neither that portion of the court file, nor the relevant portions of the plea colloquy, were attached to the order.

We therefore reverse and remand for the trial court to either enter an order attaching that portion of the record which shows conclusively that Appellant is entitled to no relief, see Fla. R. App. P. 9.141(b)(2)(D) (providing “[o]n appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief’), or for further appropriate proceedings on the motion.

Reversed and remanded for proceedings consistent with this opinion.


text:
    Derrick J. KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2185.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Derrick J. Knight, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

Affirmed. See O’Neal v. State, 54 Fla. 96, 98, 44 So. 940 (Fla.1907) (noting that “mere inaccuracies of expression” will not render verdict void where manifest intent is clear when viewing record as a whole). See also Ashley v. State, 850 So.2d 1265, 1268 n. 8 (Fla.2003) (defining scrivener’s error as clerical error distinct from erroneous judicial determination).


text:
    The STATE of Florida, Appellant, v. I.M., a juvenile, Appellee.
    No. 3D12-2409.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Sabrina Velarde and Victoria Llerena, Certified Legal Interns, for appellee.
    Before LAGOA, SALTER, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See § 775.021(1), Fla. Stat. (2012) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”); see also State v. Byars, 823 So.2d 740, 742 (Fla.2002) (“One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter. Therefore, any ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.”) (citations and quotation omitted).


text:
    Carlos RODRIGUEZ and Barbara Aloy, Appellants, v. STATE FARM FLORIDA INSURANCE CO., etc., Appellee.
    No. 3D12-187.
    District Court of Appeal of Florida, Third District.
    May 15, 2013.
    Marlene S. Reiss, Miami, for appellants.
    Methe & Rockenbach and Kara Berard Rockenbach, West Palm Beach, for appel-lee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See 1500 Coral Towers Condo. Ass’n v. Citizens Prop. Ins. Corp., 112 So.3d 541 (Fla. 3d DCA 2013).


author: DAMOORGIAN, J.

text:
    Jerome SAVER and Bea Saver, Appellants, v. JP MORGAN CHASE BANK, National Association as Acquirer of Certain Assets and Liabilities of Washington Mutual Bank from The Federal Receiver, Appellee.
    No. 4D12-2069.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.

      Jerome Saver, Boca Raton, pro se.
    No appearance for appellee.
   DAMOORGIAN, J.

Appellants, Jerome and Bea Saver, pro se, appeal the trial court’s order granting final judgment of foreclosure in favor of Appellee, JP Morgan Chase Bank, National Association, as Acquirer of Certain Assets and Liabilities of Washington Mutual Bank From the Federal Deposit Insurance Corporation, Acting as Receiver (“JP Morgan”). We reverse.

The underlying cause is a foreclosure action. After being served with the foreclosure complaint, Appellants moved to dismiss the case for lack of standing. Appellants asserted in their motion that the complaint did not “allege or indicate that [JP Morgan] owns the note and mortgage which are the subjects of the [JP Morgan’s] Complaint.” JP Morgan moved for summary judgment, without establishing when it became the holder or owner of the note. On the day of the hearing on the motion for summary judgment, Appellants filed a response in which they again raised lack of standing. Nothing in-the record suggests that the trial court had the benefit of the response. The trial court entered summary judgment in favor of JP Morgan. Appellants moved for rehearing asserting that there were issues of material fact regarding JP Morgan’s standing to bring the cause of action. The trial court summarily denied the motion. This appeal follows.

A plaintiff seeking foreclosure in a mortgage proceeding must establish that it had standing to foreclose at the time it filed suit. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). A foreclosure plaintiff has standing so long as it was the holder of the mortgage at the time it filed suit. Id. If the plaintiffs name is not on the mortgage, it can establish standing by proving that the mortgage was either assigned or equitably transferred prior to the date it filed the complaint. Id. The following evidence is sufficient to establish standing in such a scenario: 1) a special endorsement on the note in favor of the plaintiff or a blank endorsement, 2) evidence of an assignment from the payee to the plaintiff, or 3) an affidavit of ownership. Id. at 174.

Here, JP Morgan’s affidavits were executed after it filed suit.-. Additionally, they did not state when JP Morgan became the owner of the note nor did they indicate that JP Morgan was the owner of the note before it filed suit. Thus, JP Morgan failed to submit evidence that it held the mortgage at the time it filed suit, and the trial court erred in granting summary judgment in its favor.

Reversed and Remanded.

STEVENSON and CONNER, JJ., concur.


text:
    Authneil GAVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-300.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ford v. State, 801 So.2d 318, 321 (Fla. 1st DCA 2001) (“ ‘[A]n inference may arise of a consciousness of guilt where a suspected criminal uses a false name to conceal his true identity and this is so as to all crimes which that individual is suspected of having committed.’ ” (quoting Wright v. State, 312 Md. 648, 541 A.2d 988, 992 (1988))).

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


text:
    Raonel Hernandez PALACIOS a/k/a Raonel M. Palacios, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-3184, 4D11-3185.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Porter v. State, 110 So.3d 962 (Fla. 4th DCA 2013).

WARNER, GROSS and LEVINE, JJ., concur.


author: WARNER, J.

text:
    Chad Lament TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4007.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s conviction and sentence for robbery with a weapon. He claims fundamental error where the trial court failed to give an afterthought instruction, as the theft upon which the robbery was based occurred after the battery of the victim. See Perkins v. State, 814 So.2d 1177, 1179 (Fla. 4th DCA 2002). His defense at trial, however, was one of misidentification. Claiming that the theft was an afterthought was inconsistent with that defense. See Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (“Inconsistencies in defenses are permitted so long as the proof of one does not necessarily disprove the other.”). Moreover, appellant never requested an afterthought instruction. Thus, it cannot be a fundamental error to fail to give an unrequested instruction inconsistent with his defense at trial.

As to appellant’s PRR sentence, we affirm based upon Louzon v. State, 78 So.3d 678 (Fla. 5th DCA 2012), the reasoning of which we adopt. Here, appellant qualified as a PRR, because he committed the present offense within three years after his release from a federal correctional facility. Appellant was still in federal custody, even though housed in a Palm Beach County jail in order to perform substantial assistance. His release from federal custody while housed at the county jail still constitutes constructive release from a federal correctional facility for purposes of section 775.082(9)(a)(l) , Florida Statutes. As pointed out in Louzon,

To accept [the defendant’s] argument would place form over substance and would be inconsistent with the Legislature’s clear intent to provide for a greater sentence for individuals who commit a qualifying offense within three years of completion of a previously imposed prison sentence. To accept [his] argument would also mean that in order for the State to ensure that a defendant [in the defendant’s] situation was eligible for subsequent PRR sentencing, it would have to physically transfer an individual from jail to a Department of Corrections facility [or a federal correctional institution] — where the individual would then be entitled to an immediate release. Courts should not, construe a statute so as to achieve an absurd result.

78 So.3d at 681.

Affirmed.

GROSS and LEVINE, JJ., concur.

      . Section 775.082(9)(a)(l), Florida Statutes (2010), provides that any defendant is a prison release reoffender who commits an enumerated felony (including robbery) "within 3 years after being released from a state correctional facility operated by the Department of Corrections ... or within 3 years after being released from a correctional institution of ... the United States, ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.”


text:
    Stephen DOWNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4245.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2013.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Stephen Downey, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Based upon our independent review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm Downey’s convictions and sentences. We remand for correction of two scriveners’ errors in the judgment for aggravated assault upon a law enforcement officer. First, the term “firearm” should be stricken from the judgment as no firearm was used in this offense. Second, the judgment should reflect that a three year minimum mandatory term was imposed pursuant to section 784.07(2)(c), Florida Statutes, instead of section 775.087, Florida Statutes.

Finally, Downey’s pro se claims of ineffective assistance of appellate counsel are premature on direct appeal and should be raised in a petition pursuant to Florida Rule of Appellate Procedure 9.141(d).

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENERS’ ERRORS.

SAWAYA, LAWSON and COHEN, JJ., concur.