author: WOODALL, Justice.

text:
    Ex parte Melvin Gene HODGES. (In re Melvin Gene Hodges v. State of Alabama).
    1100112.
    Supreme Court of Alabama.
    Aug. 26, 2011.

      Robert D. Segall and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Robert L. Aldisert and Nathan Christensen of Perkins Coie LLP, Portland, Oregon, for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, Jr., and Prim F. Escalona, deputy attys. gen., for respondent.
   WOODALL, Justice.

Melvin Gene Hodges petitioned this Court for a writ of certiorari, which we granted for the limited purpose of determining whether the Court of Criminal Appeals’ judgment, insofar as it affirmed the trial court’s summary denial of Hodges’s petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., alleging juror misconduct during the voir dire examination, conflicts with this Court’s decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). We hold that it does, and we reverse and remand.

I. Factual and Procedural History

Hodges was convicted of the capital offense of murdering Beth Seaton during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a vote of 8-4, recommended that Hodges be sentenced to life imprisonment without the possibility of parole. The trial court, however, sentenced Hodges to death. The Court of Criminal Appeals affirmed Hodges’s conviction and sentence. Hodges v. State, 856 So.2d 875 (Ala.Crim.App.2001). This Court affirmed that judgment. Ex parte Hodges, 856 So.2d 936 (Ala.2003), and the United States Supreme Court denied cer-tiorari review. Hodges v. Alabama, 540 U.S. 986, 124 S.Ct. 465, 157 L.Ed.2d 379 (2003).

Hodges filed a Rule 32, Ala. R.Crim. P., petition for postconviction relief. In his petition, he alleged, among other things, that his “right to a fair trial by an impartial jury was denied by juror misconduct, in violation of Article I, §§ 6 and 11 of the Alabama Constitution, and the Sixth and Fourteenth Amendments to the Constitution of the United States.” More specifically, he alleged that his “right to a fair and impartial jury was violated due to the failure of six jurors to respond truthfully to voir dire questions.” According to Hodges’s petition, the six jurors failed to respond truthfully to direct-questions regarding “a prior criminal conviction, prior treatment for alcohol abuse, prior jury service in a murder trial, prior military service, knowledge of the case, knowledge of the defendant and a prosecution witness, and a spouse with law enforcement experience.”

The State filed a “motion for summary dismissal” of this and other claims in Hodges’s Rule 32 petition, arguing that the claims were “procedurally barred from review.” In response, Hodges filed a “memorandum regarding State’s response to first amended petition,” asserting, among other things, that “trial counsel could not have raised these claims at trial or on appeal” because “[tjrial counsel could not have had any information about this misconduct.” The trial court summarily denied Hodges’s petition.

The Court of Criminal Appeals held that the juror-misconduct claim was “procedurally barred by Rule 32.2(a)(5), Ala. R.Crim. P., because [it] could have been, but [was] not, raised on appeal.” Hodges v. State, 147 So.3d 916, 932 (Ala.Crim.App.2007). The court also stated: “Hodges did not allege in his petition that his allegations of juror misconduct could not have been raised at trial or on appeal.” 147 So.3d at 932 n. 4.

After the Court of Criminal Appeals released its opinion in Hodges, this Court decided Ex parte Burgess, supra, in which we reversed a judgment of the Court of Criminal Appeals and remanded the case for remand to the trial court to hold an evidentiary hearing on the merits of a Rule 32 petitioner’s claim that jurors in the trial of his case had failed to answer voir dire questions accurately. Hodges sought cer-tiorari review, and we granted his petition to examine this case in light of the rule set forth in Burgess.

II. Discussion

The rule of Burgess is that a petitioner seeking relief under Rule 32 for the alleged failure of jurors to respond accurately or truthfully to voir dire questioning is entitled to an evidentiary hearing on his claim, unless it appears on the face of the record that he knew or reasonably should have known of the inaccuracy in time to raise it on appeal. In setting forth that rule, we explained:

“Burgess reasonably expected that potential jurors answered accurately the questions posed to them during the voir dire examination. It is unreasonable to hold that a defendant must uncover any and all juror misconduct in the form of inaccurate responses to voir dire examination in time to raise such claims in a motion for a new trial or on appeal. Requiring a defendant to raise such claims of juror misconduct during the interval between the voir dire examination and the filing of posttrial motions places an impracticable burden on defendants.”

21 So.Bd at 754. See also Ex parte Harrison, 61 So.3d 986, 991 (Ala.2010) (Rule 32 petitioner’s claims that “two jurors failed to answer accurately questions posed to them during the voir dire examination [were] not precluded,” where, “[a]s in Burgess, there [was] no evidence in the record indicating that [the petitioner] should have been aware before he filed his motion for a new trial or his direct appeal that some jurors had provided untruthful or inaccurate answers”).

In this case, the record does not indicate that Hodges knew or reasonably should have known of the jurors’ alleged untruthfulness in time to raise the issue on direct appeal. Indeed, the State concedes that the “record is devoid of information” relating to the alleged juror misconduct. However, the State contends that Hodges’s claim is procedurally barred because, the State says, he failed “to establish by a preponderance of the evidence that the claims were either (A) not actually known or (B) could not have reasonably been discovered in time to be raised at trial or on direct appeal.” State’s brief, at 1 (emphasis added). “As with all other procedural bars,” the State continues, “the petitioner bears the burden of establishing both prongs of the test ‘by a preponderance of the evidence.’ Ala. R.Crim. P. 32.3....” Essentially, the State asserts that Hodges has failed to satisfy his ultimate evidentiary burden under Rule 32.3 at the pleading stage of these proceedings.

In that connection, Rule 32.3 states:

“The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”

(Emphasis added.) Preclusion is an affirmative defense to be pleaded by the State. Ex parte James, 61 So.3d 352, 356 (Ala.2009). As the Court of Criminal Appeals has explained in an earlier case:

“Initially, it is important to distinguish between a petitioner’s burden to plead and a petitioner’s burden to prove.
‘“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must only provide “a clear and specific, statement of the grounds upon which relief is sought.” Rule 32.6(b), Ala. R.Crim. P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R.Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.’
“Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001). A claim may not be summarily dismissed because the petitioner failed to meet his burden of proof at the initial pleading stage, a stage at which the petitioner has only a burden to plead. See Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991) (“When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true. Chav-erst v. State, 517 So.2d 643, 644 (Ala. Crim.App.1987). Further, when a petition contains matters which, if true, would entitle the petitioner to relief, an evidentiary hearing must be held. Ex parte Boatwright, 471 So.2d 1257, 1258 (AIa.1985).’).” Johnson v. State, 835 So.2d 1077, 1079-80 (Ala.Crim.App.2001).

The State’s argument confuses and conflates the requirements of pleading and proof. In his Rule 32 petition Hodges asserted the manner in which the answers of six potential jurors allegedly were non-responsive to specific voir dire questions. When the State sought a summary dismissal of the claim, Hodges replied that his counsel could not have known about the alleged juror misconduct in time to raise the issue at trial or on appeal. Nothing to the contrary appears on the record. Indeed, it is somewhat disingenuous for the State to fault Hodges for providing no evidence in support of his allegations when it was the State that successfully persuaded the trial court to forgo a hearing at which such evidence could have been presented.

In short, Hodges has met his initial burden of pleading a claim of juror misconduct, and the State has met its burden of asserting a preclusion. There being no evidence on the record that Hodges knew or reasonably should have known of the jurors’ alleged lack of candor in time to raise the issue on appeal, Hodges is entitled to an evidentiary hearing on his claim.

III. Conclusion

As we did in Burgess and Harrison, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court, in turn, to remand it to the trial court for an evidentiary hearing on the merits of Hodges’s claim that some of the jurors’ answers during voir dire were untruthful.

REVERSED AND REMANDED.

MALONE, C.J., and STUART, BOLIN, PARKER, and MURDOCK, JJ., concur.

SHAW, MAIN, and WISE, JJ., recuse themselves.*

      . Hodges filed his Rule 32 petition on March 30, 2004; on August 6, 2004, he filed an amended petition.

      . Contrary to the State's argument, there is no such evidence as to juror W.B., who, the Rule 32 petition alleged, failed to disclose that "he lived near [Hodges], that he knew who [Hodges] was from around the neighborhood, and that he had met and spoken with [Hodges's] wife when he was at [Hodges's] home fixing his air conditioner.” Even if true, none of these facts demonstrate that Hodges knew W.B., or that Hodges knew of W.B.’s acquaintance with his wife in time to raise the issue at the trial or on appeal.

       Justice Shaw, Justice Main, and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.


source: Caselaw Access Project

author: WELCH, Presiding Judge.

license: Public Domain

text:
    Melvin Gene HODGES v. STATE of Alabama.
    CR-04-1226.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Certiorari Denied Oct. 18, 2013 Alabama Supreme Court 1121152.
    Robert L. Aldisert, Jeffrey C. Dobbins, and George K. Fogg, Portland, Oregon; Banurekha Ramachandran, Portland, Oregon; and James David Martin and Robert D. Segall, Montgomery, for appellant.
    Troy King, atty. gen., and Jeremy W. Mclntire, James R. Houts, J. Clayton Crenshaw, Jasper B. Roberts, Jr., Tina M.

      Coker, and Joshua Bearden, asst, attys. gen., for appellee.
   After Remand from the Alabama Supreme Court

WELCH, Presiding Judge.

On July 28, 2010, this Court affirmed the circuit court’s summary denial of the Rule 32, Ala. R.Crim. P., petition for postconviction relief filed by Melvin Gene Hodges. See Hodges v. State, 147 So.3d 916, 973 (Ala.Crim.App.2007). The Alabama Supreme Court reversed this Court’s judgment and remanded the cause for this Court, in turn, to remand the cause to the circuit court for “an evidentiary hearing on the merits of Hodges’s claim that some of the jurors’ answers during voir dire were untruthful.” Ex parte Hodges, 147 So.3d 973 (Ala.2011). Accordingly, we remand this cause to the Lee Circuit Court for proceedings consistent with the Alabama Supreme Court’s opinion.

On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 77 days from the date of this opinion.

REMANDED WITH DIRECTIONS.*

KELLUM, BURKE, and JOINER, JJ., concur. WINDOM, J., recuses herself.

       Note from the reporter of decisions: On March 22, 2013, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On June 28, 2013, that court denied rehearing, without opinion.


author:
JOINER, Judge.
      BURKE, Judge,

text:
    Courtney Deangelo MORRISSETTE, Brandon Lane, and Milton Holmes v. STATE of Alabama.
    CR-11-0251.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.
    Rehearing Applications Denied Oct. 19, 2012.
    Walter Travis Grant, Mobile, for appellant Courtney Deangelo Morrissette.
    Joseph S. Dennis, Mobile, for appellant Brandon Lane.
    Kyle J. Henderson, Fairhope, for appellant Milton Holmes.
    Luther Strange, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for ap-pellee.
   JOINER, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, P.J., and WELCH and KELLUM, JJ., concur. BURKE, J., concurs specially.

BURKE, Judge,

concurring specially.

I write specially in this case because of the inherent constitutional problems that result from recalling a juror after he or she has been discharged and the principal jurors have retired to deliberate. Rule 18.4(g)(1), Ala.R.Crim.P., provides in part that “[a]n alternate juror who does not replace a principal juror shall be discharged at the time the jury retires to consider its verdict.” The rule does not say that an alternate juror shall be discharged subject to recall. Thus, the plain language of Rule 18.4(g) prohibits a mid-deliberation substitution. As Judge Joiner noted in his special writing in Peak v. State, 106 So.3d 906 (Ala.Crim.App.2012) (Joiner, J., concurring specially), the Federal Rules of Criminal Procedure contain a provision whereby a judge may retain alternate jurors after the principal jurors have retired to deliberate. See Rule 24(c)(3), Fed.R.Crim.P. The Alabama Rule regarding alternate jurors contains no such provision. Therefore, I believe that Rule 18.4(g), as it is currently written, expresses Alabama’s policy that a discharged juror should not be recalled after the principal jurors have retired to deliberate.

Two grave problems with the potential to undermine the constitutional guarantee to a fair trial arise when an alternate juror is allowed to replace a principal juror after a jury’s deliberations have begun. First, there is the concern that an alternate juror could, after being discharged and before being recalled, become tainted by unguarded contact with the public. When jurors are sent home overnight during longer trials or during deliberations, the court admonishes them not to discuss the case with anyone and to avoid reading or watching any news reports relating to the case. This type of admonition, I believe, heightens a juror’s awareness of potential outside influences and puts the jurors on guard for improper influences. Without such an admonition, that heightened awareness vanishes, and it becomes easier for a juror to become tainted by improper influences.

In Peak, the trial court had discharged the alternate juror but nevertheless instructed her not to discuss the case with anyone until the middle of the next morning. Although there is no reason in this case to doubt juror M.N.’s assertion that she did not discuss the case with anyone during the short time she was discharged, I feel that allowing such substitutions without giving the discharged juror the usual admonitions could compromise the integrity of the jury-deliberation process. Allowing a mid-deliberation juror substitution erodes the purpose behind Rule 18.4(g). My concurrence in Peak was based in part on the fact that the trial court admonished the alternate juror not to discuss the case with anyone until the following afternoon. In the present case, the court did not so admonish juror M.N. before she was discharged but relied on her assertion when she was recalled that she did not discuss the case with anyone during the time she was discharged. Therefore, the holding in this case goes a step beyond the holding in Peak.

The second concern is based on the unique dynamic of the jury-deliberation process. In moving for a mistrial in the present case, Holmes’s attorney argued:

“And as a practical matter, I don’t know how two hours of deliberation that you unring the bell with these folks, you know, that they clearly had formed some opinions by that time, and then you have this new juror coming in, and I’m not sure how fair it is to that person, you know, to put her in a position where she is undoubtedly going to know that they had a juror who was refusing to participate and, as a practical matter, how they start from No. 1, you know, from the start again. I don’t know that that’s entirely possible, and it certainly is prejudicial to Holmes and the rest of the defendants....”

(R. 639.) Although it is a well-settled principle that jurors are presumed to follow the trial court’s instructions, beginning deliberations anew spurs problems that are not always solvable by judicial instructions. Everything a jury does in deliberations, from recounting the evidence to applying it to the given law, is done as a group. To replace a member of that group after deliberations have begun necessarily changes that entire dynamic. It is impossible for jurors to completely erase from their minds a decision-making process that has already occurred and to begin anew as if they had never discussed the matter. Further the new juror may feel the pressure of believing that the other jurors have already formed their decision in opposition to the removed juror.

However, as the majority points out, the appellants’ argument is not preserved for review under Lloyd Noland Hospital v. Durham, 906 So.2d 157 (Ala.2005). Therefore, I concur specially.


author: CRENSHAW, Judge.

text:
    AGILE ASSURANCE GROUP, LIMITED, a Hong Kong limited company, and Agile Assurance, (USA), LLC, a Florida limited liability company, Appellants, v. Charles H. PALMER, Appellee.
    No. 2D13-5470.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.
    Otto W. Immel and Kelly L. Davis of Quarles & Brady, LLP, Naples, for Appellants.
    Mary Fabre Levine and Matthew D. Westerman of Blalock Walters Held & Johnson, P.A., Bradenton, for Appellee.
   CRENSHAW, Judge.

Charles H. Palmer was an employee of Agile Assurance Group, Limited. The parties’ employment agreement states that an action arising from the employment agreement “may be instituted exclusively in the courts of Makati City” in the Philippines. Subsequent to his termination at Agile Assurance, Palmer sued the company in Hillsborough County, Florida. Agile Assurance moved to dismiss for improper venue, arguing that the case had to be brought in Makati City. The court denied the motion, ruling that the forum selection clause was permissive, rather than mandatory. The court, in part, relied on the rule of construction against the drafter. Because the court erred in concluding the forum selection clause is permissive, we reverse.

Our review of a contractual forum selection clause is de novo. TECO Barge Line, Inc. v. Hagan, 15 So.3d 868, 865 (Fla. 2d DCA 2009) (citing Am. Boxing & Athletic Ass’n v. Young, 911 So.2d 862 (Fla. 2d DCA 2005)). The problem in this ease is that the relevant language contains both permissive and mandatory language in its use of the phrase “may be instituted exclusively.” We must endeavor to give every term meaning and effect. Freeburg Enters., Inc. v. Transp. Cas. Ins. Co., 993 So.2d 1104, 1106 (Fla. 2d DCA 2008) (citing Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla.1979)).

Generally, use of the word may deems relevant language permissive. Leghorn v. Wieland, 289 So.2d 745, 747 (Fla. 2d DCA 1974). On the other hand, “ ‘[f]o-rum selection clauses which state or clearly indicate that any litigation must or shall be initiated in a specified forum are mandatory.’” S & S Directional Boring & Cable Contractors, Inc. v. Am. Nat’l Bank of Minn., 961 So.2d 1046, 1047 (Fla. 2d DCA 2007) (quoting Shoppes Ltd. P’ship v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002)). Turning to language more similar to that in this case, the Fifth District has held that the term “the exclusive jurisdiction” “ ‘contains words of exclusivity[ ] and that [such a] clause is mandatory, not permissive.’ ”• Travel Express Inv. Inc. v. AT & T Corp., 14 So.3d 1224, 1227 (Fla. 5th DCA 2009) (quoting Weisser v. PNC Bank, N.A., 967 So.2d 327, 331-32 (Fla. 3d DCA 2007)). In this case, we must choose to either read may as the mandatory shall and effectuate the word exclusively or read the term exclusively at the expense of may. The former gives meaning to both words, because while may is usually permissive, it is not always read so. Black’s Law Dictionary 1068 (9th ed. 2009) (defining may as “is required to; shall; must.... In dozens of cases, courts have held may to be synonymous with shall or must, usu. in an effort to effectuate legislative intent.”); see also Celistics, LLC v. Gonzalez, 22 So.3d 824, 826 (Fla. 3d DCA 2009). Thus, reading the language to be mandatory gives effect to both terms.

On the other hand, reading the phrase to be permissive does not give meaning to all the terms in the same way. If we read the term permissively, exclusively has lost its meaning for it means, as relevant here, only “sole.” The Merrianu-Webster Dictionary 249 (new ed., 2004); Merriam-Webster Online Exclusively, http://www. merriam-webster.com/dictionary/ exclusively (last visited Apr. 23, 2014). Although other meanings may be conceived for the term we review, those others are less plain. Thus, we are compelled to interpret the phrase to be exclusive which renders the forum-selection clause mandatory rather than permissive.

We also note that the court erred in applying the well-settled rule of construction requiring that ambiguities in contracts must be construed against the drafter in this case. See Young, 911 So.2d at 866 (citing Sauder v. Rayman, 800 So.2d 355, 358-59 (Fla. 4th DCA 2001)). The plain language of the contract in this case, in section 12(a), repudiates resort to the canon of construction against the drafter; therefore resort to the canon is inappropriate. See TECO Barge Line, 15 So.3d at 865 (“[W]e begin with the principles that ‘[t]he polestar guiding the court in the construction of a written contract is the intent of the parties[ ]’ ” and where “ ‘the language used is clear and unambiguous the parties’ intent must be garnered from that language (quoting Bombardier Capital, Inc. v. Progressive Mktg. Grp., Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001) (second alteration in original))). Thus, the court erred in applying this principle to the terms of this contract, where the contract itself precluded such reliance.

Accordingly, we reverse the order denying the motion to dismiss for improper venue.

Reversed.

SILBERMAN and MORRIS, JJ., Concur.

      . The relevant provision reads in pertinent part,
      Any legal suit, action, claim, proceeding[,] or investigation arising out of or relating to this Agreement may be instituted exclusively in the courts of Makati City and Employee waives any objections which he may now or hereafter have to such venue of any such suit ... and irrevocably submits to the personal and subject matter jurisdiction of any such court.

      . The caselaw has primarily focused on language such as "shall" or "must” rather than the term "exclusively.”

      . The language of the contract, in pertinent part, states: "(a) Controlling Law. ... This Agreement shall be interpreted without the aid of any canon, custom[,] or rule of law requiring construction against the draftsman.”


author: ALTENBERND, Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, a Florida government entity, Petitioner, v. Marilyn Aguiar BELLAS, Respondent.
    No. 2D13-5841.
    District Court of Appeal of Florida, Second District.
    May 30, 2014.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach; and R. Gavin Mackinnon of Kelley, Kronen-berg P.A., Orlando, for Petitioner.
    Nancy A. Lauten and George A. Vaka of Vaka Law Group, Tampa; and Joshua E. Burnett and Marshall Thomas Burnett, Tampa, for Respondent.
   ALTENBERND, Judge.

Citizens Property Insurance Corporation seeks certiorari review of the trial court’s order that denied Citizens a stay of action based upon the court’s finding that Citizens waived its right to neutral evaluation of the sinkhole claim upon which Marilyn Aguiar Bellas’s lawsuit was based. Citizens argues that the amended stay provision of the neutral evaluation statute that is set forth in section 627.7074(10), Florida Statutes (2011), mandates an automatic litigation stay; that the trial court erroneously concluded that Citizens’ participation in litigation constituted a waiver of its right to a stay; that the trial court departed from the essential requirements of the law; and that the order causes it irreparable injury not remediable on plenary appeal.

For the reasons expressed in Citizens Property Insurance Corp. v. Trapeo, 136 So.3d 670, 39 Fla. L. Weekly D245 (Fla. 2d DCA 2014), we (1) grant the petition for writ of certiorari, in part, and quash the trial court’s order to the extent that it prohibits Citizens from invoking the neutral evaluation process and (2) convert the petition for writ of certiorari, in part, to a petition for writ of mandamus, grant mandamus, and direct the circuit court to stay the underlying proceedings pending the completion of the neutral evaluation process. See also Citizens Prop. Ins. Corp. v. Hanos, — So.3d — (Fla. 2d DCA 2014); Citizens Prop. Ins. Corp. v. Finley, — So.3d—(Fla. 2d DCA 2014).

Certiorari petition granted; order quashed; mandamus petition granted with directions.

NORTHCUTT and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    Randy SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1132.
    District Court of Appeal of Florida, First District.
    June 11, 2014.
    Randy Spencer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Given the absence of a properly rendered written order for which review is sought, the petition for writ of certiorari is DISMISSED for lack of jurisdiction.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


author: LaROSE, Judge.

text:
    Brandon L. GAGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5769.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Rehearing Denied Oct. 2, 2014.

      Anthony W. Surber, Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Brandon Gage appeals his conviction and forty-year prison sentence for battery and sexual battery. See §§ 784.03, 794.011, Fla. Stat. (2010). The trial court improperly allowed the State to impeach Mr. Gage and his mother with a previously undisclosed recorded statement without conducting a Richardson hearing to determine whether a discovery violation occurred and, if so, whether it procedurally prejudiced Mr. Gage. The State failed to meet its burden to prove beyond a reasonable doubt that the discovery violation did not procedurally prejudice Mr. Gage. We must reverse and remand for a new trial.

At trial, Mr. Gage testified in his own defense. His mother also testified. The next day, the State announced its intention to play for the jury a recording of a Polk County jail phone call between Mr. Gage and his mother that contradicted their earlier trial testimony. The State had not disclosed the recording to the defense as required by Florida Rule of Criminal Procedure 3.220(b)(1)(C). Defense counsel objected, noting that the nondisclosure was “a willful Richardson violation that [wa]s material.” Counsel claimed that had he known about the recording, he would have changed his case in chief. He may have changed whom he called as witnesses and may have changed his recommendation that Mr. Gage take the stand. He declined to reveal more so as not to disclose privileged attorney-client communications.

Discovery rules are intended to prevent surprise and “trial by ambush.” Scipio v. State, 928 So.2d 1138, 1145 (Fla.2006): see also Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981). Failure to conduct a Richardson hearing is deemed harmless error only when the State can demonstrate beyond a reasonable doubt that the discovery violation did not procedurally prejudice the defense. Ibarra v. State, 56 So.3d 70, 72 (Fla. 2d DCA 2011); see also Scipio, 928 So.2d at 1150. ‘“As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.’ ” Ibarra, 56 So.3d at 72 (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)); see also Moorer v. State, 133 So.3d 1242, 1242 (Fla. 4th DCA 2014); Lynch v. State, 925 So.2d 444, 447 (Fla. 5th DCA 2006); cf. Lewis v. State, 22 So.3d 753, 758 (Fla. 4th DCA 2009) (examining changes defendant claimed he would have made in trial preparation and finding beyond reasonable doubt no procedural prejudice because undisclosed information did not affect his chosen defense); Lasiak v. State, 966 So.2d 983, 984 (Fla. 5th DCA 2007) (holding no procedural prejudice because record reflected absence of any materially different trial strategy).

We carefully reviewed the record. The State has not demonstrated beyond a reasonable doubt that the defense was not procedurally prejudiced by the State’s surprise use of the recorded statements. We reverse and remand for a new trial.

Mr. Gage also challenges his sentence. Three of the factors the trial court considered in deciding to impose the statutory maximum sentence were impermissible. The trial court erred in considering Mr. Gage’s lack of remorse and his assertions of innocence and failure to accept responsibility. See Brown v. State, 27 So.3d 181, 183 (Fla. 2d DCA 2010) (“ ‘Reliance on these impermissible factors violates the defendant’s due process rights.’ ” (quoting Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004))). The trial court also erred in considering Mr. Gage’s alleged untruthfulness at trial. See Smith v. State, 62 So.3d 698, 700 (Fla. 2d DCA 2011); Hannum v. State, 13 So.3d 132,136 (Fla. 2d DCA 2009). Because the trial court relied on improper factors, Mr. Gage was denied due process. See Smith, 62 So.3d at 700; Bracero v. State, 10 So.3d 664, 666 (Fla. 2d DCA 2009). Reliance upon improper sentencing factors is fundamental error. See Smith, 62 So.3d at 700; Hannum, 13 So.3d at 136. However, because we reverse and remand for a new trial on the Richardson issue, any sentencing issue is moot.

Also moot is Mr. Gage’s argument that his forty-year sentence violates the Eighth Amendment under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Graham held that life sentences -without the possibility of parole are unconstitutional for juveniles who committed nonhomicide offenses. Id. at 82, 130 S.Ct. 2011. Mr. Gage contends that a forty-year sentence is a de facto life sentence. He acknowledges that we have held that a term-of-years sentence does not violate Graham. See Young v. State, 110 So.3d 931, 935-36 (Fla. 2d DCA 2013); Walle v. State, 99 So.3d 967, 973 (Fla. 2d DCA 2012). However, because the First District has held that a term-of-years sentence that results in a de facto life sentence is illegal, Adams v. State, — So.3d —, 2012 WL 3193932, 37 Fla. L. Weekly D1865 (Fla. 1st DCA Aug. 8, 2012) (certifying question), Mr. Gage wished to preserve the issue for further review.

We reverse for the trial court’s failure to conduct a proper Richardson hearing and remand for a new trial.

Reversed and remanded.

DAVIS, C.J., and KELLY, J., Concur.

      . See Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . Mr. Gage’s scoresheet shows that the lowest permissible sentence was 10.9 years (130.8 months).


author: BLACK, Judge.

text:
    Matthew K. MILLS, Appellant, v. Tracey K. JOHNSON f/k/a Tracey K. Mills, Appellee.
    No. 2D13-3100.
    District Court of Appeal of Florida, Second District.
    July 25, 2014.

      Matthew P. Irwin and Sam R. Assini of Men’s Rights Law Firm, Cape Coral, for Appellant.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellee.
   BLACK, Judge.

Matthew Mills (Former Husband) appeals the final judgment of dissolution of marriage and order adopting the magistrate’s amended report. The Former Husband contends that the trial court failed to properly impute income to Tracey Johnson (Former Wife) when calculating the child support award, that there was not competent, substantial evidence of the Former Wife’s need for alimony and the Former Husband’s ability to pay the alimony award, and that the time-sharing schedule is not in the best interests of the minor children and is otherwise flawed because it does not include holiday time-sharing. We reverse and remand as to the alimony award and the failure to set a holiday time-sharing schedule; we affirm the remaining issues without comment.

We review a trial court’s decision to accept or reject a magistrate’s recommendations for an abuse of discretion. Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004). “In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” § 61.08(2), Fla. Stat. (2011); accord Payne v. Payne, 88 So.3d 1016, 1017 (Fla. 2d DCA 2012). The magistrate failed to make said specific factual findings, instead stating without any support that the Former Husband has the ability to pay.

Pursuant to the Former Husband’s financial affidavit and his gross income as determined by the magistrate, the Former Husband has a monthly deficit even without considering alimony or child support. Thus, even if the Former Wife established need, the trial court abused its discretion in accepting and adopting the magistrate’s recommended order because there is no competent, substantial evidence to support the magistrate’s determination that the Former Husband has the ability to pay. See Kearley v. Kearley, 745 So.2d 987, 988 (Fla. 2d DCA 1999) (“We conclude that the trial court abused its discretion in awarding the appellee $1400 per month in alimony. According to the financial affidavit, appellant’s monthly net income is $3,380.41. After deducting his average monthly expenses from his net income, including the $1400 alimony, appellant is left with a deficiency of $818.59 per month.”); see also McCann v. Crumblish-McCann, 21 So.3d 170, 172 (Fla. 2d DCA 2009) (holding that the trial court abused its discretion in ordering temporary alimony that exceeded the husband’s ability to pay); Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007) (same).

Additionally, the magistrate based the alimony award primarily on the fact that there is a disparity in the parties’ income. However, “[a] trial court in a divorce proceeding is not required to equalize the financial position of the parties.” Payne, 88 So.3d at 1017 (citing Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980)). Unfortunately the parties lived well beyond their means during the marriage and as a result incurred large debts. It is also clear “that both parties remain in a situation where their income cannot cover expenses. Nonetheless, placing [the Former Husband] in a greater income deficiency will not solve either party’s financial difficulties.” Kearley, 745 So.2d at 988.

Furthermore, the trial court erred in accepting and adopting a time-sharing schedule that did not address holiday time-sharing. It is undisputed that the Former Husband failed to raise this issue in his exceptions to the magistrate’s report. Nonetheless, if the errors in the magistrate’s report are clear on its face, the trial court errs in adopting the report. See Torres v. Torres, 98 So.3d 1171, 1171-72 (Fla. 2d DCA 2011). Such is the case here. Cf Crittenden v. Davis, 89 So.3d 1098, 1101 (Fla. 4th DCA 2012) (“ ‘[W]here visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision.’ ” (quoting Todd v. Guillaume-Todd, 972 So.2d 1003,1006 (Fla. 4th DCA 2008))); Schumaker v. Schumaker, 931 So.2d 271, 274 (Fla. 5th DCA 2006) (holding that the trial court erred in failing to address holiday visitation). In light of the fact that the magistrate determined that the parties have a “contentious parenting relationship,” it seems particularly imperative for the magistrate to recommend a holiday time-sharing schedule. See Blackburn v. Blackburn, 103 So.3d 941, 942 (Fla. 2d DCA 2012) (“[T]he magistrate erroneously declined to set a holiday time-sharing schedule as requested. As a result, the parties who already have exhibited animosity toward one another are left with the responsibility of setting a schedule by which they can share time with the children on major holidays.”).

Therefore, we reverse the trial court’s award of alimony and direct the trial court to revisit the issue on remand. We also reverse the time-sharing schedule to the extent that it does not address holiday time-sharing and remand for the trial court to set a holiday time-sharing schedule. .

Affirmed in part; reversed and remanded in part.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . The magistrate also emphasized that the Former Husband agreed to assume a greater share of the marital debt. This consisted of over $11,000 of credit card debt incurred jointly by the parties during the marriage. This is not exemplary, as the magistrate has implied, of a situation in which the Former Husband voluntarily assumed large debts to avoid alimony.


text:
    Donald K. McCLURE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3103.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2014.
    Rehearing Denied Oct. 8, 2014.
    Donald K. McClure, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236, 1245 (Fla.2004) (“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.”).

VAN NORTWICK, CLARK, and SWANSON, JJ„ concur.


author: SLEET, Judge.

text:
    SCHOOL BOARD OF POLK COUNTY FLORIDA, Appellant/Cross-Appellee, v. RENAISSANCE CHARTER SCHOOL, INC., and Renaissance Charter School at Polk, Appellees/Cross-Appellants.
    No. 2D12-3139.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2014.
    Frederick J. Murphy, Jr., of Boswell & Dunlap LLP, Bartow, for Appellant/Cross-Appellee.
    Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauder-dale, for Appellees/Cross-Appellants..
   SLEET, Judge.

The School Board of Polk County, Florida (the School Board) timely appeals an order of the Board of Education (the State Board) which allows Renaissance Charter School, Inc. (Renaissance) to operate a charter school in Polk County over the objections of the School Board. The-School Board argues that the proposed charter school’s educational program did not “substantially replicate” that of the high-performing charter school being replicated. See § 1002.331(3)(a), Fla. Stat. (2011). We agree and reverse.

The facts of this case are substantially similar to those articulated in School Board of Seminole County v. Renaissance Charter School, Inc., 113 So.3d 72 (Fla. 5th DCA 2013). Here, Renaissance filed a high-performing charter school application pursuant to section 1002.331, for Renaissance Charter School at Polk, a K through 8 charter school. It submitted a high-performing charter middle school, Renaissance Charter Middle School. (RCMS), which serves grades 6 through 8, as its replica school. Renaissance’s planned charter school would serve grades K through 6 in its first year, grades K through 7 in its second year, and grades K through 8 in its third year. At the time of the application, RCMS in Dade County had a little over 200 students. Renaissance proposed that Renaissance Charter School at Polk would open with 862 students and would grow to 1,415 students by its fifth year.

After reviewing the application, the School Board concluded that the educational program set forth in the application did not substantially replicate that of RCMS. Additionally, the ten-page letter from the School Board’s attorney listed ninety-one reasons why the application did not meet statutory requirements for student performance, assessment and evaluation, education service providers, employment, transportation services, budget, action plan, mission and guiding principles, exceptional students, school discipline, student recruitment, and financial management and oversight.

In Seminole, Renaissance submitted a high-performing charter school application for a similar K through 8 grade charter school in Seminole County. The replica school submitted by Renaissance was a 6 through 8 grade charter middle school in Broward County. Id. at 73. After review, the School Board of Seminole County denied the application based upon several of the same objections lodged by the School Board in this case. Id. The Seminole County School Board concluded there was no way the proposed K through 8 grade charter school could substantially replicate the Broward County charter middle school. Id. The Fifth District cogently analyzed the statute and agreed with the Seminole County School Board. It held that: “[T]o be ‘substantially similar’ within the meaning of the Florida Statutes, a charter school must have the same characteristics and be alike in substance or essentials to the school it is replicating. Common sense dictates that a middle school, which covers only grades 6 through 8, is materially different from a K through 8 school.” Id. at 75.

Here, the School Board articulated specific objections to the application in a forty-seven-page Charter Review Committee report. Renaissance was given several opportunities during a work session, interview session, and a public hearing to respond to the School Board’s objections. When asked by the School Board how the proposed K through 8 school could replicate an existing middle school, Renaissance’s attorney stated: “It is not the same school because the K — the grade levels are different. We were replicating our method and model, pursuant to the statute.”

During the appeal hearing before the State Board, Renaissance argued that the material issue was not substantial replication, but instead whether the proposed charter school would be a high-performing school. The School Board countered that section 1002.331 required substantial replication. The State Board’s half-page order stated that “the School Board failed to show by clear and convincing evidence that the Charter Applicant’s application did not materially comply with the requirements of section 1002.33(6)(c)3.b., Florida Statutes.” The order did not include any findings of fact.

It is the School Board’s burden to prove by clear and convincing evidence that the high-performing charter school application does not comply with the statutory requirements, including substantial replication. Section 1002.33(6)(b)(3)(b)(III) provides that the School Board may deny the charter application if “[t]he proposed charter school’s educational program does not substantially replicate that of the applicant or one of the applicant’s high-performing charter schools.”

We agree with the School Board that Renaissance’s proposed charter school’s educational program did not substantially replicate that of ROMS. The proposed school, composed mostly of kindergarten and elementary grade students, and the middle school on which the application was based neither share the same characteristics, nor are they alike in substance or essentials. Furthermore, nowhere in the record did any representative of Renaissance articulate how the educational program of the high-performing middle school would be replicated so as to serve the students of different age and grade levels.

As in Seminole, Renaissance argues that this court should consider ROMS and Renaissance Charter Elementary School as one school for purposes of their application because they share a campus and a website. See Seminole, 113 So.3d at 76. We decline. Renaissance did not include any information regarding this elementary school in its written application, work session presentation, interview responses, and written responses to the Charter Review Committee. See Thomber v. City of Fort Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988) (“That an appellate court may not consider matters outside the record is so elemental there is no excuse for an attorney to attempt to bring such matters before the court.”). Moreover, section 1002.331(3)(b) limits a high-performing charter school to one application for a charter school per year. Renaissance Charter Elementary School was used as a replica to support an application seeking a high-performing charter school in Leon County at the same time that Renaissance filed the instant application. If the legislature intended to allow Renaissance to replicate any of its high-performing charter schools more than once per year, it would not have expressly limited the number of charter school applications.

Renaissance filed a cross appeal and contends that it was denied procedural due process because the School Board did not conduct a “substantive hearing and take evidence” before denying the high-performing charter application. Because the Administrative Procedure Act does not apply to proceedings before the State Board and Renaissance did not request a formal hearing, there was no due process violation. See Seminole, 113 So.3d at 77. The record demonstrates that Renaissance was afforded due process within the parameters of the charter school statute.

We agree with the Fifth District’s determination that there are certain deficiencies in the charter school statute. Id. at 76. First, the statute does not expressly provide in what type of forum the sponsor or school board is to present “clear and convincing evidence” sufficient to deny the application. Nor does the statute provide for any form of evidentiary hearing or review. The brevity of the State Board’s final order frustrates appellate review; however, the statute does not expressly require the State Board to provide findings of fact and conclusions of law.

Despite the statutory deficiencies, the record is sufficient to demonstrate that the School Board’s decision to deny Renaissance’s charter application is supported by clear and convincing evidence. See § 1002.33(6)(b)(3)(b); see also Seminole, 113 So.3d at 76. Accordingly, we reverse the order of the State Board approving Renaissance’s application.

Reversed.

NORTHCUTT, and KELLY, JJ., Concur.


author: VILLANTI, Judge.

text:
    Andre Tremayne HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5624.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2014.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Pubic Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Andre Tremayne Hodge seeks review of his convictions and sentences in seven separate circuit court cases, all of which arose out of a crime spree that occurred in January 2012. Having considered the entire record and the State’s partial concession of error, we affirm in part, reverse in part, and remand for further proceedings.

Hodge initially entered pleas of not guilty to all of the charges in all seven of the cases. However, after the trial court denied Hodge’s motions to suppress his statements and certain physical evidence, Hodge reached a plea agreement with the State that involved him changing his pleas to no contest in exchange for the State’s waiving certain sentencing enhancements. The trial court subsequently held a change of plea hearing, during which it addressed all of the charges in all of the cases except one — circuit court case number 12-CF-003535. In that single case, the trial court never held a plea colloquy with Hodge and never received a change of his plea. Nevertheless, the trial court sentenced Hodge for the three offenses charged in that case, and a written judgment and sentence were later rendered based on a no contest plea that was never actually entered.

Florida Rule of Criminal Procedure 3.170(k) requires the trial court to determine in open court that a guilty or nolo contendere plea is voluntarily entered and that there is a factual basis for such plea. Here, Hodge never formally changed his plea of not guilty in circuit court case number 12-CF-003535, and no trial was ever held on the charges in that case. Hence, the legal requirements of rule 3.170(k) were clearly not fulfilled, and the trial court erred in convicting and sentencing Hodge in that case. Because we are unable to correct this inadvertency by appellate mandate, we must reverse Hodge’s conviction and sentences in case number 12-CF-003535 and remand for further proceedings. And because it appears that this error was simply an oversight on the part of all involved, we encourage the State to work with Hodge to effectuate the intent of his original plea agreement. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings.

DAVIS, C.J., and BLACK, J., Concur.


text:
    Joseph FERREI, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D13-5378.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.
    Anne Morris of Isaak Law, PLLC, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel and Richard M. Coin, Assistant General Counsel of Department of Highway Safety & Motor Vehicles, Orlando, for Respondent.
   LaROSE, Judge.

Joseph Ferrei seeks certiorari review of a circuit court order denying his motion for clarification. We have jurisdiction, see Fla. R. App. P. 9.030(b)(2)(B), and grant the petition.

’ In Ferrei v. Department of Highway Safety & Motor Vehicles, 91 So.3d 920 (Fla. 2d DCA 2012), we quashed a circuit court order that denied Mr. Ferrei certio-rari relief from an administrative decision upholding the suspension of his driver’s license. See §§ 322.2615(1), (6), (14), .31, Fla. Stat. (2008). We directed the circuit court to consider whether an adequate mechanism existed for Mr. Ferrei to challenge the lawfulness of the underlying traffic stop. Ferrei 91 So.3d at 921. The circuit court then reconsidered Mr. Fer-rei’s certiorari petition, quashed the Department’s final order upholding his license suspension, and remanded the cause to the Department for further proceedings.

Mr. Ferrei’s license suspension period expired during the review period. In light of our holding in McLaughlin v. Department of Highway Safety & Motor Vehicles, 128 So.Bd 815 (Fla. 2d DCA 2012), he moved for clarification of the order in the circuit court. When the circuit court denied his motion, he petitioned this court for second-tier certiorari review to determine whether the circuit court afforded due process and applied the correct law. See Forth v. Dep’t of Highway Safety & Motor Vehicles, — So.3d—, 39 Fla. L. Weekly D1352 (Fla. 2d DCA 2014) (citations omitted). Under McLaughlin, 128 So.3d at 815, and Forth, — So.3d-, at *1, we held that when the Department administratively suspends a driver’s license, and the suspension period expires while a matter is under review but the department seeks further formal administrative hearings, the circuit court should quash the administrative order, rather than quash and remand for further proceedings. “[N]o further proceedings are necessary on remand because the issue of the validity of the suspension of [the] driver’s license is moot.” McLaughlin, 128 So.3d at 815. The circuit court failed to apply the correct law when it remanded the moot issue to the administrative tribunal. Forth, — So.3d-, at *1.

Petition granted; order quashed insofar as it remanded the case.

ALTENBERND and KELLY, JJ„ Concur.


text:
    Emmy PANKAU, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D13-5373.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.
    Anne Morris of Isaak Law, PLLC, for Petitioner.
    Stephen D. Hurm, General Counsel and Kimberly A. Gibbs, Assistant General Counsel of Department of Highway Safety and Motor Vehicles, Orlando, for Respondent.
   LaROSE, Judge.

Emmy Pankau seeks certiorari review of a circuit court order denying her motion for clarification. We have jurisdiction, see Fla. R. App. P. 9.030(b)(2)(B), and grant the petition.

In Pankau v. Department of Highway Safety & Motor Vehicles, 91 So.3d 923 (Fla. 2d DCA 2012), cause dismissed, 100 So.3d 1149 (Fla.2012), we quashed a circuit court order that denied Ms. Pankau certio-rari relief from an administrative decision upholding the suspension of her driver’s license. See §§ 322.2615(1), (6), (14), .31, Fla. Stat. (2010). We directed the circuit court to consider whether an adequate mechanism existed for Ms. Pankau to challenge the lawfulness of the underlying traffic stop. Pankau, 91 So.3d at 923-24. The circuit court then reconsidered Ms. Pankau’s certiorari petition, quashed the Department’s final order upholding Ms. Pankau’s license suspension, and remanded the cause to the Department for further proceedings.

In light of our holding in McLaughlin v. Department of Highway Safety & Motor Vehicles, 128 So.3d 815 (Fla. 2d DCA 2012), and because Ms. Pankau’s license suspension period expired during the review period, Ms. Pankau moved for clarification. The circuit court denied her motion and she petitioned this court for second-tier certiorari review to determine whether the circuit court afforded due process and applied the correct law. See Forth v. Dep’t of Highway Safety & Motor Vehicles, — So.3d —, 39 Fla. L. Weekly D1352 (Fla. 2d DCA 2014). Under McLaughlin, 128 So.3d at 815, and Forth, — So.3d -, at *1, we held that when the Department administratively suspends a driver’s license, and the suspension period expires while a matter is under review but the department seeks further formal administrative hearings, the circuit court should quash the administrative order, rather than quash and remand for further proceedings. “No further proceedings are necessary on remand because the issue of the validity of the suspension of [the] driver’s license is moot.” McLaughlin, 128 So.3d at 815. The circuit court in this case failed to apply the correct law when it remanded the moot issue to the administrative tribunal. Forth, — So.3d -, at *1.

Petition granted; order quashed to the extent that it remanded the case.

ALTENBERND and KELLY, JJ„ Concur.


text:
    Douglas Duan ANDRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-0668.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Villanueva v. State, 917 So.2d 968 (Fla. 3d DCA 2005).

LEVINE, CONNER and KLINGENSMITH, JJ., concur.


text:
    John WATKINS, Appellant, v. Cynthia WATKINS, Appellee.
    No. 2D13-5485.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2014.

      Amanda M. Salcido of Law Office of Amanda Salcido, Lakeland, for Appellant.
    Arthur C. Fulmer, Jr., of Fulmer & Fulmer, P.A., Lakeland, for Appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979); Macarty v. Macarty, 29 So.3d 434 (Fla. 2d DCA 2010).

DAVIS, C.J., and NORTHCUTT and CASANUEVA, JJ., Concur.


text:
    Shane Corey GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3410.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Rehearing Denied Oct. 8, 2014.
    Shane Corey Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: MARSTILLER, J. WOLF, J.,

text:
    Markel Latrae BASS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3284.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2014.
    Rehearing Denied Oct. 6, 2014.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Markel Latrae Bass (“Appellant”) challenges his convictions and sentences for second-degree murder and armed robbery, raising three issues on appeal. We affirm on all issues, but discuss only Appellant’s claim that the trial court reversibly erred in permitting the State to play a recorded jailhouse phone call between him and his mother during which he purportedly made statements related to plea negotiations.

Appellant’s charges stemmed from the robbery and murder of a drug dealer. Prior to trial, the State filed a motion in limine seeking to admit a portion of the conversation, recorded on April 4, 2012, at the Bay County jail. Attached to the motion was the following transcribed exchange between Appellant and his mother:

Mother: So how man... You expect to walk out of this with no years? Nothing.
Appellant: No, no.
Mother: Okay.
Appellant: I will ... I will take some, but I’m not going to take no 20 years.
Mother: What you willing to take?
Appellant: I ... I would take like 15 ... like I told her, I say, if you will give me 15 or 16 years. She say they not going to go off of 20 years.

The State posited that Appellant’s statements evinced consciousness of guilt and were not protected plea negotiations because Appellant was not speaking to a prosecutor or police officer.

At the motion hearing, defense counsel explained she had received a 20-year plea offer from the State on March 30, and that she discussed the offer with Appellant at the jail on April 3. Appellant wanted to speak with his family about the offer, but the jail apparently would not allow him to make the call. He was eventually able to speak with his mother on April 4, at which time the recording at issue was made. Appellant declined the State’s offer on April 5. Defense counsel argued the phone discussion was in connection with a plea offer because there was a specific offer on the table and this offer was the subject of the phone call. The prosecutor responded, “If the conversation was with me or with law enforcement, I’d agree with all of that, but not with his mama at the jail on a phone call.” The trial court granted the motion in limine, and the recorded excerpt was played for the jury during the State’s case in chief and during closing arguments. The excerpt the jury heard ended with:

Mother: You say you will take 16 mandatory.
Appellant: Yeah.

We review the trial court’s ruling on the motion in limine for abuse of discretion. See Patrick v. State, 104 So.3d 1046, 1056 (Fla.2012). ‘“[A] trial court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’” Id. (quoting McDuffie v. State, 970 So.2d 312, 326 (Fla.2007)).

As to statements concerning plea negotiations, the Florida Evidence Code provides:

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

§ 90.410, Fla. Stat. (2011) (emphasis added). Similarly, Florida Rule of Criminal Procedure 3.172Q) states:

Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

In determining whether a defendant’s statements were made in connection with plea negotiations, “courts should first apply the plain meaning of the statute and rule[.]” Calabro v. State, 995 So.2d 307, 314 (Fla.2008). If the answer remains unclear, courts should then apply the totality-of-the-circumstances analysis in United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978), which requires consideration of two factors: whether the defendant had a subjective expectation of engaging in plea negotiations when the statements were made, and, if so, whether the expectation was objectively reasonable. See Schoenwetter v. State, 46 So.3d 535, 546-47 (Fla.2010); Calabro, 995 So.2d at 314; Richardson v. State, 706 So.2d 1349, 1352-53 (Fla.1998).

We conclude that under either analysis, the trial court did not abuse its discretion by granting the State’s motion in limine and playing for the jury Appellant’s statements to his mother. Although, according to defense counsel’s representations to the trial court, an offer from the State was pending, Appellant was simply responding to his mother’s query about how long a sentence he would be “willing to take.” (“I’ll take some, but I’m not going to take no 20 years.... I’ll take like 15.”) And even if, as defense counsel argued to the trial court, the conversation was about the pending offer, nothing Appellant said to his mother about accepting “15 or 16 years” was previously, or subsequently, communicated to the State in response to its offer. Therefore, Appellant’s statements were not made “in connection with” an offer to plead, as contemplated by section 90.410 and rule 3.172(i).

Moreover, it is apparent from the context of the recorded conversation — and from the time line defense counsel gave at the motion hearing — that Appellant was relating to his mother the discussion he had had with his attorney, not statements conveyed to the State in furtherance of plea negotiations. At best, Appellant’s statements expressed what he had hoped to get from the State, but no counter-offer had been communicated at that point; nor, it appears, was one forthcoming. (“She say they not going to go off 20 years.”) Indeed, the day after the telephone conversation, Appellant rejected the State’s offer and proceeded to trial. Thus, for purposes of determining whether the statements were admissible, it cannot be said Appellant had a subjective expectation of engaging in plea negotiations when he was talking to his mother. Consequently, the first Robertson factor was not met, and there was no bar to admitting Appellant’s statements at trial.

AFFIRMED.

VAN NORTWICK, J., concurs; WOLF, J., concurs with opinion.

WOLF, J.,

concurring.

The issue before the court is whether a defendant’s discussion with his mother directly related to whether the defendant should accept an outstanding plea offer is inadmissible pursuant to section 90.410, Florida Statutes. Because existing case law excluding statements pursuant to this and similar statutes has involved statements made either to prosecuting authorities or to the court, I concur that the discussion is admissible. I write to note, however, that the value of admitting a discussion concerning the willingness to accept a plea which does not contain a specific admission of guilt may be outweighed by the public policy of allowing a criminal defendant to have discussions with his family concerning an outstanding plea offer.

Section 90.410 reads:

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

Section 90.410 was “ ‘adopted to promote plea bargaining by allowing a defendant to negotiate without waiving fifth amendment protection.’” Calabro v. State, 995 So.2d 307, 313 (Fla.2008) (quoting Groover v. State, 458 So.2d 226, 228 (Fla.1984)). A defendant’s statements, such as here, that he would accept 16 years rather than 20 may be an inference of guilt, but it is not a direct admission. Where a defendant does not expressly admit guilt, but where he is merely discussing a plea offer -with a family member, it is consistent with the public policy of encouraging plea negotiations to exclude such statements from evidence.

I can find no authority, however, that has interpreted statutes similar to Florida’s to exclude statements made to parties not officially part of the plea process. Such an expansion involves policy considerations and potential pitfalls which are more properly considered by the legislative branch.


author: DAVIS, Chief Judge.

text:
    Roberto TULIER, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D13-2098.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    Kepler B. Funk, Keith F. Szachacz, and Alan S. Diamond of Funk, Szachacz & Diamond, LLC, Melbourne, for Appel-lantyCross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appel-lee/Cross-Appellant.
   DAVIS, Chief Judge.

Roberto Tulier challenges his convictions and sentences for aggravated assault and attempted sexual activity with a minor. He was convicted by a jury, and the trial court sentenced him to 180 days’ county jail to be followed by four years’ sex offender probation. The State cross-appeals, arguing that the trial court improperly included a jury instruction for an offense that was not charged in the information and was not a lesser-included offense. The State also argues on cross-appeal that the trial court erred in sentencing Tulier to a nonstate prison sanction because it would not allow the State to score the attempted sexual activity with a minor count as the primary offense. We affirm Tulier’s conviction for aggravated assault without further comment. However, we must reverse his conviction for attempted sexual activity with a minor. And based on that reversal, we dismiss the State’s cross-appeal as moot.

The charges against Tulier stem from his encounter with a sixteen-year-old boy. While driving an SUV, Tulier stopped at a stop sign. The victim was on his bicycle in the crosswalk in front of Tulier. As the victim passed, Tulier. called out to him through his open passenger-side window. The victim approached the passenger side of the vehicle walking but still astride his bicycle. Tulier asked him through the open SUV -window what his name was and how old he was. The victim said his name and said that he was seventeen, although he was still sixteen at the time. Tulier then asked the victim if he wanted to make $400, to which the victim asked how. Tulier said, “Blow me.” The victim immediately called his father on his cell phone, and his father told him to get the SUV’s tag number. While continuing to talk to his father on the phone, the victim moved to the back of the vehicle, still straddling his bike. At that point, the victim “heard the car click into reverse, and the vehicle began coming towards me. I jumped off my bike into the curb, stepped back into the grass. He hit the bike. Dragged it for a foot or so.” The victim inquired, “What the f_?” Tulier responded, “I’m sorry.” Tulier then drove forward five or six feet, put the vehicle back in reverse, and floored it, completely running over the bike. He then put the car back into drive and left the scene.

On appeal, Tulier argues that the trial court erred in failing to grant his motions for judgment of acquittal and new trial on the attempted sexual activity with a minor count. Tulier maintains that his offering the victim $400 in exchange for oral sex was not sufficient to amount to an act toward the commission of sexual activity with a minor but rather merely amounts to solicitation. We agree.

Section 794.05(1), Florida Statutes (2011), provides as follows:

A person [twenty-four] years of age or older who engages in sexual activity with a person [sixteen] or [seventeen] years of age commits a felony of the second degree_As used in this section, ‘sexual activity’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another ....

Section 777.04(1), Florida Statutes (2011), provides that “[a] person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the' perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” (Emphasis added.)

In moving for judgment of acquittal, counsel for Tulier argued that Tulier’s actions amounted to nothing more than mere preparation to commit a crime and that to be an attempt, the actions need to go beyond mere preparation. In denying judgment of acquittal, the trial court determined that the overt act in furtherance of the commission of the crime was Tulier’s calling the victim over to him, asking for oral sex, and offering money in exchange for oral sex. The trial court therefore denied the motion and later denied a motion for new trial raising the same argument. This was error.

In Pittman v. State, 47 So.2d 691 (Fla.1950), a case analogous to the instant case, the Florida Supreme Court considered the offense of attempted sexual intercourse with an unmarried female of previous chaste character under the age of eighteen years (statutory rape). In doing so, the court recognized that

“[i]n an assault with intent to have unlawful carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years the intent to then and there have sexual intercourse with the female is the gravamen, and .... there must be some overt act directed to the consummation of the unlawful intent.”

Id. at 692 (underlined emphasis added) (quoting State v. Bowden, 154 Fla. 511, 18 So.2d 478, 480 (1944)). The court went on to state that

[w]here an attempt is charged the overt act need not be of such force and violence as to constitute a legal assault. In fact, considering that consent is no defense against a charge of statutory rape, we can envisage many acts which would amount to attempts to perpetrate the crime under consideration. Be that as it may, to constitute an attempt there must be some overt act amounting to more than mere preparation.

Id. Specifically addressing the issue of an overt act versus mere preparation, the court considered the particular facts of the Pittman case. There, the information charged that

Pittman[ ] did say in the presence of and directly to the [victim] words in substance and in effect ... to wit: I want to take you [to] a dance; I want to take you to the movies and invited her to go [to] a dance, or the movies or on [sic] a party with him ... and called her endearing names, and upon such invitations being refused by the [victim] he ... then asked and invited the [victim] to go out of the building in which they were both then working into adjoining woods for the purpose of having sexual intercourse with each other in said woods, or with the intent ... to have unlawful carnal intercourse ....

Id. at 691. Essentially, Pittman asked the victim to go in the woods and have sex with him. And the Florida Supreme Court concluded that “[t]he facts alleged and established in this case constitute, at most, only solicitation — a mere preparation.” Id. at 692. Therefore, the court concluded that “[although the conduct of the appellant as shown by the record was indeed reprehensible, there was no allegation in the information, nor was any proof adduced, of an overt act sufficient to establish a criminal attempt.” Id.

The same is true in the instant case. Tulier essentially asked the victim for oral sex in exchange for $400. And while the trial court made much of the fact that he called the victim over in order to ask the question, such only amounts to preparation. The evidence does not support a conviction for attempted sexual activity with a minor. We therefore must reverse Tulier’s conviction on that count.

Affirmed in part; reversed in part; cross-appeal dismissed as moot.

KELLY and LaROSE, JJ., Concur.

      . Tulier also argues on appeal that the trial court erred in denying his motion for statement of particulars as to this count. However, in response to Tulier’s request, the State did inform him of the factual basis for the allegation that he had committed attempted sexual activity with a minor. At that time, Tulier did not object or seek further clarification.


text:
    Larry L. BLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3266.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2014.
    Larry L. Bland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Pettway v. State, 776 So.2d 980, 931 (Fla.2000) (stating that courts generally will not consider repetitive petitions of persons who have abused the judicial processes of the lower courts such that they have been barred from filing certain actions there).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


text:
    David Morris HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2091.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.
    Rehearing Denied Oct. 7, 2014.

      Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   MARSTILLER, J.

David Morris Howard was convicted by a jury of carjacking and sentenced to 43 years in prison. He represented himself at trial and during sentencing. On appeal, Howard does not challenge the conviction, but seeks reversal of the sentence and a new hearing on his motion for new trial, arguing that the trial court failed to conduct a Faretta inquiry at the outset of the sentencing phase of the proceedings, during which the court also considered and denied the new trial motion. Because a hearing on a new trial motion and sentencing are critical stages in a criminal proceeding, the trial court was required to renew the offer of counsel and perform another Faretta inquiry before letting Howard continue representing himself. Failure to do so is per se reversible error.

Howard initially moved to represent himself on October 2, 2012, several months before trial. At the hearing on his motion, the trial court conducted a full Faretta inquiry. Among other things, the court advised Howard he was facing a prison sentence of 30 years mandatory minimum, if found to be a prison releasee reoffender (“PRR”), to life in prison, if deemed a habitual felony offender (“HFO”). The court found Howard had knowingly, intelligently and voluntarily waived his right to counsel. The court also appointed standby counsel after Howard said he would have no objection to the court’s doing so.

On February 11, 2013, prior to jury selection in the criminal trial, Howard indicated he wanted to continue representing himself. The trial court conducted another full Faretta inquiry, again advising Howard of the dangers of self-representation and the 30 years-to-life sentencing range, and found, as before, knowing and intelligent waiver of counsel. Howard thereafter proceeded pro se, with the assistance of standby counsel. The jury rendered its verdict against Howard on February 13, 2013.

Howard filed a timely pro se motion for new trial based on asserted “partiality” shown by the trial judge throughout the proceedings. On February 21, 2013, the trial court held a hearing to conduct “Phase I” of sentencing. Standby counsel attended. The trial court considered and orally denied Howard’s motion for new trial, then set a second hearing when Howard requested a pre-sentence investigation, which he previously had waived, and because the State did not have the necessary evidence to establish a foundation for PRR sentencing. Before concluding the hearing, the trial court asked:

THE COURT: By the way, Mr. Howard, I did mean to ask this: Do you still want to represent yourself, sir, or do you want—
THE DEFENDANT: I wanted to talk to my standby counsel.
THE COURT: All right.... [I]f you want to turn it back over to your standby counselor, all you have to do is tell them that, and the next time we come back, they can represent you for the rest of resentencing.

Howard deferred his answer to the next hearing, which took place approximately one month later, on March 26, 2013.

At the outset of the subsequent hearing, the trial court offered to “turn this over to Mr. Murphy to conclude your sentencing.” Howard declined the offer, stating “I want to continue to represent myself, sir.” The hearing then proceeded with standby counsel present, and the State presented evidence of Howard’s most recent prison release date to support PRR sentencing. At Howard’s request, the trial court postponed final sentencing to give him time to secure witnesses to speak on his behalf. The court admonished him to ensure the witnesses’ availability the week of April 8.

In the interim, the trial court held a proceeding on April 4, 2013, for the State to provide conclusive evidence identifying Howard as the subject of the previously-entered conviction and prison release records. As before, at the beginning of the proceeding, the trial court asked Howard whether he still wanted to continue representing himself, or be represented by the Public Defender. Howard again declined the offer of appointed counsel. Standby counsel was present throughout the hearing.

On April 11, 2013, the trial court convened what was supposed to be the final sentencing hearing. However, when Howard advised the court his witnesses were not present, the court passed sentencing to the following day.

The court opened the hearing on April 12, 2013, by asking Howard if he wanted to continue representing himself and, upon Howard’s affirmative answer, the court conducted a Faretta inquiry, expressly acknowledging the critical stage of the proceedings. The court found that Howard “again, passed the Faretta inquiry,” appointed the Public Defender for purposes of appeal, and, with standby counsel present, considered and denied Howard’s “supplementary” motion for new trial filed on April 4, 2013, and took testimony from Howard’s step-mother about his character. Ultimately, the trial court adjudicated Howard a HFO, found that he qualified as a PRR, and sentenced him to a prison term of 43 years, with a 30-year PRR mandatory minimum.

Howard argues on appeal that the trial court committed per se reversible error when, before proceeding with sentencing, it failed to conduct a second Far-etta inquiry and failed to offer to reappoint counsel. “Under Faretta and [Florida Supreme Court] precedent, once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Tennis v. State, 997 So.2d 375, 378 (Fla.2008). The failure to conduct such an inquiry is per se reversible error. Id. at 379. Further, “[o]nce a defendant waives the right to counsel in a criminal case, the court must renew the offer of counsel at each subsequent critical stage of the proceedings, one of which is sentencing.” Serrano v. State, 113 So.3d 895, 896 (Fla. 2d DCA 2012); see also Fla. R. Grim. P. 3.111(d)(5). The hearing on a defendant’s motion for new trial is also a critical stage. See Harper v. State, 201 So.2d 65, 66 (Fla.1967); Miller v. State, 8 So.3d 451, 453 (Fla. 1st DCA 2009). Failure to renew the offer of counsel at a critical stage and conduct a Faretta inquiry if the defendant rejects the renewed offer is per se reversible error. See Cuyler v. State, 131 So.3d 827, 828 (Fla. 1st DCA 2014); Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007); Wilson v. State, 947 So.2d 1225, 1226-27 (Fla. 1st DCA 2007).

Here, although the trial court repeatedly renewed the offer of counsel at the hearings leading up to final sentencing, it did not do a Faretta inquiry until just prior to imposing sentence. The “Phase I” hearings were part of the sentencing process, and thus, constituted a critical stage. See Traylor v. State, 596 So.2d 957, 968 (Fla.1992) (holding that a critical stage is “any stage that may significantly affect the outcome of the proceedings”). Moreover, the court considered and ruled on Howard’s pro se motion for new trial — also a critical stage — at the first sentencing hearing. It therefore was incumbent on the court, at that hearing, to ensure Howard was knowingly, intelligently and voluntarily rejecting the renewed offer of counsel. The eleventh-hour inquiry nearly two months after the sentencing phase began came, in our view, too late to cure the earlier omission. Even if it could be argued that the trial court was sufficiently familiar with Howard to determine, without a formal inquiry, that he understood the dangers and consequences of representing himself at sentencing, “Faretta and [rule 3.111] require that the trial court make a sufficient record indicating ‘how the defendant’s background, including his age, mental status, and education, affects his competency to waive his right to counsel.’ ” McGee v. State, 983 So.2d 1212, 1215 (Fla. 5th DCA 2008) (quoting Flowers v. State, 976 So.2d 665, 666 (Fla. 1st DCA 2008)). The court put no such findings on the record.’

The circumstances in this case are decidedly different from those in Neal v. State, 142 So.3d 883 (Fla. 1st DCA 2014), on which the dissent relies. In Neal, which came to this Court as an Anders appeal, we found no error by the trial court in failing to renew the offer of counsel before the defendant entered his plea where (1) the court had conducted a pretrial Faretta hearing, (2) the defendant accepted standby counsel for trial, and (3) the defendant entered a nolo contendere plea mid-trial after consulting with standby counsel. Neal, 142 So.3d at 888. Furthermore, there is no indication in Neal that at sentencing, the court took up any other matters, e.g., a motion for new trial, as in this case, or that the sentencing phase took several months and multiple hearings to complete, as in this case. Rather, the defendant in Neal simply stipulated to the prior convictions qualifying him for HFO status and presented argument to the court regarding sentencing. Id. at 889.

In reaching our conclusion in Neal, we relied on Knight v. State, 770 So.2d 663 (Fla.2000), whose facts also are markedly different from those in the instant case. The defendant in Knight complained that the trial court failed to renew the offer of court-appointed counsel at the beginning of the trial, after the defendant had represented himself pre-trial. The supreme court rejected the claim of error first because the defendant’s pre-trial waiver of counsel was for the guilt phase, and the trial did not constitute a subsequent stage of the proceeding. 770 So.2d at 670-71. Secondarily, the supreme court observed that the defendant had and relied on standby counsel throughout the guilt phase, including pre-trial proceedings. Id. at 671.

Neither Neal nor Knight dictates a similar result here. And to be sure, neither should be read to hold that a renewed offer of counsel is not necessary so long as a defendant has, and frequently consults with, standby counsel throughout the various critical stages in a criminal proceeding. Under the circumstances in this case, the trial court was obliged to timely perform a Faretta inquiry or otherwise determine on the record that Howard’s post-trial-phase waiver of counsel was knowing, intelligent and voluntary. Because the inquiry was not performed, we must reverse the sentence imposed and remand for a new sentencing hearing. We further vacate the order denying the motion for new trial and remand for a new hearing on that, as well.

REVERSED and REMANDED.

VAN NORTWICK, J., concurs; WOLF, J. dissents with opinion.

WOLF, J.,

dissenting.

The issue before the court is whether a defendant who has been subject to a number of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), inquiries, including one during sentencing, is asked numerous times whether he is sure that he wants to continue to represent himself, and is appointed standby counsel that he has numerous opportunities to converse with concerning representation, is entitled to reversal based on the trial court’s failure to conduct an additional Faretta inquiry at the beginning of sentencing.

I would determine that he is not and would affirm based on Neal v. State, 142 So.3d 883 (Fla. 1st DCA 2014).

In the instant case, the trial court conducted three separate full Faretta inquiries, two of which occurred prior to sentencing and one which occurred during the sentencing process. The first inquiry extensively went through each stage of the criminal proceedings. The inquiry included the following:

The Court: Do you understand that if you are convicted that a lawyer’s assistance may — now do you understand that once the trial is over, if you are convicted, a lawyer’s assistance may be useful in preparing for sentencing, sir? Appellant: Yes, sir.
The Court: Do you understand that a lawyer’s assistance may be useful in ensuring that favorable facts are brought out, are brought to the attention of the court for you[r] sentencing, sir? Appellant: Yes, sir.
The Court: Do you understand that a lawyer’s assistance may ensure that the Court is advised of all legally favorable dispositions and ensuring that the sentence is lawfully imposed, sir?
Appellant: Yes, sir.

The court’s inquiry specifically included questions concerning the knowing and intelligent waiver of counsel. The court asked him numerous times throughout the proceedings whether he wished to continue to represent himself, including at all critical stages. The court, -without objection, appointed standby counsel who was present throughout the entire proceedings. The record reflects consultations and opportunities for consultation between the defendant and standby counsel, including when the court asked at the initial sentencing whether he wished to continue to represent himself.

At the initial sentencing phase, where no Faretta inquiry was conducted, essentially all that transpired was the admission of appellant’s prior convictions and release date as well as the ordering of a PSI.

The sentencing was then continued at least two times at the defendant’s request. At the proceeding where the defendant had an opportunity to present evidence and at which the sentence was pronounced, another Faretta inquiry was performed. Defendant was again given the opportunity to consult with standby counsel.

Under these circumstances, reversal would do little to preserve the constitutional rights of an accused. Appellant was fully informed, and the trial court adequately assured that a knowing waiver had occurred.

In Neal, we stated,
[T]he trial court’s failure to reiterate an offer of appointed counsel to Appellant at the beginning of the sentencing hearing does not require reversal of the judgment and sentence due to the presence of standby counsel and Appellant’s frequent consultation with her during the proceedings. Knight [v. State], 770 So.2d [663, 670 (Fla.2000)]; Brown [v. State], 113 So.3d [134,142 (Fla. 1st DCA 2013) ].

Neal, 142 So.3d at 889 (emphasis added).

While the majority correctly asserts the circumstances in Neal are somewhat different, the overriding principle is that the failure to follow the strict dictates concerning repeated, Faretta inquiries will not necessarily require reversal where the defendant has ample opportunity to confer with standby counsel and has had several extensive Faretta inquiries conducted.

This case should be affirmed.

        .Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding a defendant has a constitutional right to self-representation, but the trial court must first conduct an inquiry to determine if the waiver of counsel is made knowingly and intelligently).

      . See § 775.082(9)(a)3.b„ Fla. Stat. (2011).

      . See § 775.084(4)(a)l„ Fla. Stat. (2011).

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . I would reach a similar conclusion regarding the motion for new trial.


author: KHOUZAM, Judge.

text:
    Cornelius J. DEVER and Assunta A. Dever, Appellants, v. WELLS FARGO BANK NATIONAL ASSOCIATION, As Successor by Merger to Wachovia Bank National Association; Fifth Third Mortgage Company; and RBC Bank (USA), Appellees.
    No. 2D13-5830.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2014.

      Richard E. Stadler of Darby Peele Crapps Green & Stadler, LLP, Lake City, for Appellants.
    Todd A. Armbruster of Moskowitz, Man-dell, Salim & Simowitz, P.A., Fort Lauder-dale, for Appellee Wells Fargo Bank National Association, as Successor by Merger to Wachovia Bank National Association.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

This appeal arises from a dispute over the disbursement of surplus proceeds from a foreclosure sale. Cornelius and Assunta Dever (the record property owners) as well as Wells Fargo Bank (the holder of an unsatisfied mortgage) claimed that they were entitled to the surplus proceeds. The circuit court ordered the surplus to be disbursed to Wells Fargo, and the Devers appealed. We reverse and remand for the circuit court to order the surplus disbursed to the Devers.

Fifth Third Mortgage Company filed a foreclosure suit against the Devers in April 2011. In the complaint, Fifth Third asserted that Wells Fargo was a junior lien-holder. Wells Fargo filed an answer, admitting that it was a junior lienholder and stating that it would be entitled to any and all surplus funds generated by a foreclosure sale in this case up to the full amount of indebtedness. The Devers owed Wells Fargo $134,578.17.

A default judgment was entered against the Devers on March 23, 2012. The final judgment of foreclosure included the following language, as required by section 45.031(1), Florida Statutes (2011):

IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF.

A foreclosure sale was held on April 25, 2012, and resulted in a surplus of $85,899.06, which was placed in the court registry. The certificate of disbursements was filed on May 8, 2012, and included the following language as required by section 45.081(7)(b):

If you are a person claiming a right to funds remaining after the sale, you must file a claim with the clerk no later than 60 days after the sale. If you fail to file a claim, you will not be entitled to any remaining funds. After 60 days, only the owner of record as of the date of the lis pendens may claim the surplus.

No claims to the surplus were filed during this sixty-day period.

In November 2012, the Devers filed a motion to disburse surplus sale proceeds. In the motion, the Devers acknowledged that Wells Fargo, as a subordinate lien-holder, may at one point have had a claim to the surplus funds. But the Devers argued that Wells Fargo was barred from claiming the surplus because it had failed to file a claim for the funds within the sixty days following the sale. Wells Fargo responded in March 2013 by filing its own motion to disburse surplus funds and memorandum of law opposing the Devers’ motion. Relying on Citibank v. PNC Mortgage Corp. of America, 718 So.2d 300 (Fla. 2d DCA 1998), Wells Fargo argued that it had timely raised a claim to the surplus in its answer. The circuit court granted Wells Fargo’s motion, denied the Devers’ motion, and ordered the funds to be disbursed to Wells Fargo.

We hold that the circuit court erred in ordering the funds to be disbursed to Wells Fargo. Wells Fargo is barred from claiming any interest in the surplus funds because it failed to file a claim for the surplus within the sixty days after the sale. This court recently addressed this exact issue in Mathews v. Branch Banking & Trust Co., 139 So.3d 498 (Fla. 2d DCA 2014). In Mathews, this court held that the language in section 45.031(7)(b) is clear and unambiguous: any person claiming a right to the surplus funds must file a claim with the clerk no later than sixty days after the sale. And section 45.031(l)(a) specifically warns that if a subordinate lienholder fails to file a claim, it will not be entitled to any remaining funds. Subsection (7)(b) reiterates this requirement. Further, section 45.032(2) establishes a rebuttable presumption that the owner of record is entitled to the surplus after any subordinate lienholders who timely filed claims have been paid. Accordingly, we must reverse and remand for the circuit court to order the surplus disbursed to the Devers.

We also note that Citibank, on which both Wells Fargo and the circuit court relied, does not apply here. In Mathews, this court specifically held that the circuit court⅛ reliance on Citibank was misplaced because it was decided before chapter 45 was amended to include the sixty-day time limit to file a claim for surplus funds. 139 So.3d at 501. The time limit was not added until 2006 and did not take effect until July of that year. Ch. 06-175, §§ 1-2, at 1810-17, Laws of. Fla. We similarly conclude that U.S. v. Sneed, 620 So.2d 1093 (Fla. 1st DCA 1993); JP Morgan Chase Bank v. U.S. Bank National Ass’n, 929 So.2d 651 (Fla. 4th DCA 2006); and other cases that were decided before the effective date of the amendment are inapplicable here for the same reason.

We disagree with Wells Fargo’s argument that the language found in section 45.082(3)(b) undermines the clear language in section 45.081(7)(b). Section 45.032(3)(b) provides in relevant part:

If any person other than the owner of record claims an interest in the proceeds during the 60-day period or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus.

(emphasis added). Wells Fargo argues that this section sets up two possible scenarios where a hearing would be needed— one where a claim has been filed within the sixty-day period and another where the owner has acknowledged at any time that there is a subordinate lienholder that may be entitled to funds. But Wells Fargo has taken this statutory language out of context.

Section 45.031 sets out the procedure for judicial sales and establishes the sixty-day deadline for claims to any surplus, see §§ 45.031(l)(a), (2)(f), (7)(b). Section 45.032 then provides the procedure for the disbursement of surplus funds after a judicial sale and establishes “a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim,” see § 45.032(2) (emphasis added). Section 45.032(3) provides that the clerk shall hold the surplus for sixty days after the certificate of disbursements is issued, pending a court order. If the owner claims the surplus during the sixty-day period, the owner should acknowledge if there are any subordinate lienholders who may have a right to the funds. § 45.032(3)(a). So section 45.032(3)(b), read in the context of the surrounding statutory sections, clearly indicates that a hearing must be held where any subordinate lienholders have been brought to the clerk’s attention during the sixty-day period — either where the subordinate lienholder files its own claim or the owner files a claim but acknowledges the existence of the subordinate lienholder. Thus, section 45.032, considered in its entirety and read in conjunction with section 45.031, undoubtedly contemplates that all claims to the surplus be filed within the sixty days following the sale and that if no claims are filed during that period the owner is presumed to be entitled to the surplus.

Reversed and remanded with directions.

WALLACE, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.