author: POLEN, J.

text:
    Albert Joseph VITRO, Appellant, v. Mary B. VITRO, Appellee.
    No. 4D10-2189.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Chad R. Laing of Laing & Weicholz, P.L., Boca Raton, for appellant.
    Heather L. Apicella of Gladstone & Weissman, P.A., and H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant, Albert Joseph Vitro (“Former Husband”), appeals the trial court’s final judgment of dissolution of marriage, arguing specifically that the trial court erred in determining amounts and property owed to Mary Vitro (“Former Wife”). For the following reasons we agree in part with Former Husband that the trial court erred in regards to the amount of alimony and the equitable distribution of the former spouses’ property. As such, we reverse and remand to the trial court for reconsideration and clarification of its findings in the final judgment.

Former Husband and Former Wife were married on July 25, 1987. Former Wife filed for dissolution of marriage almost twenty-two years later, in February of 2009. During the marriage, the family lived in a 3000 square foot home on a lake and golf course in Coral Springs, Florida. The home was furnished with approximately $90,000 worth of furniture. The couple’s two children dressed in designer clothing and attended a private school that cost approximately $20,000 per year. The family took trips out of state and out of the country. The parties exchanged expensive gifts, drove expensive cars, held season tickets to sporting events, and purchased their children a luxury vehicle. Under an agreed order, Former Wife vacated the home the couple shared. The court ordered that the parties were to have fifty/fifty timesharing of their minor child.

Former Husband was employed as a tax accountant until he suffered from post-traumatic stress disorder, depression, anxiety, and sleep disorder and was deemed disabled. As a result, Former Husband received private and social security disability compensation. The private disability was $6742 per month, while the social security disability was $1898 per month. An additional $997 was paid by the social security administration on a monthly basis for child support, and that amount was deducted from Former Husband’s obligation. Former Wife was working as an administrative assistant in the real estate market from 2005 to 2009, making $30,000 per year, with promotions and pay raises, increasing her salary to approximately $60,000. Former Wife maintained that job for five years before she was laid off with a $6000 severance package and ninety days of COBRA. At the end of the trial, Former Wife found a job that paid $15 per hour with no overtime available, and there was a ninety-day probationary period before insurance and 401k opportunities would arise. The court computed Former Wife’s income at $80,000 per year. The court found that Former Wife did everything in her abilities to find a job. Former Wife sent out resumes, received very few phone calls expressing interest, and interviewed for positions for which she was not hired.

In its final judgment of dissolution of marriage, Former Husband was ordered to pay Former Wife “permanent periodic alimony in the amount of $2500 per month which he has the present ability to pay.” Former Husband owed $42,500 in arrears, to be paid in installments of $500 per month. Former Husband’s child support obligations were up-to-date and he was ordered to pay insurance for the minor child. This appeal followed.

Imputation of Income

An appellate court reviews the imputation of income for competent, substantial evidence. Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005). Testimony showed that Former Wife worked as a receptionist for several years, making less than $30,000. When the Vitros moved to Coral Springs, Former Wife was hired as an administrative assistant, making $30,000. From 2005 until the time in 2009 that Former Wife was laid off, she received promotions and raises, eventually reaching $60,000 as her maximum salary. Former Husband argues that Former Wife’s income should have been imputed at $45,000 by the trial court, rather than $30,000, because Former Wife was voluntarily underemployed.

“A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his best efforts.” Schram, 932 So.2d at 249. In determining how to impute income, the trial court must consider two things. See Zarycki-Weig v. Weig, 25 So.3d 573, 575 (Fla. 4th DCA 2009). First, the trial court must determine whether employment was terminated voluntarily. Id. Next, the trial court must determine if unemployment is a result of the spouse’s failure to diligently find employment that is equivalent in income to the former position. Id. “The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on work history, qualifications, and prevailing wages in the community.” Id. Voluntary underemployment occurs when a spouse does not put forth a good faith effort to find a position that is comparable to previous employment which was terminated. Vazquez v. Vazquez, 922 So.2d 368, 371 (Fla. 4th DCA 2006).

Here, Former Husband contends that the trial court failed to consider Former Wife’s actual income and job responsibilities during her time as an administrative assistant. As such, Former Husband argues that Former Wife should have been considering managerial roles, making anywhere from $38,500.80 per year to $46,092.80 per year. The trial court, in reliance on the record evidence, determined that Former Wife’s imputed income was $30,000. Because the trial court is in the best position to weigh the evidence and it is outside of our purview to disrupt its findings without holding that there was not competent, substantial evidence in support thereof, we affirm the trial court’s imputation of Former Wife’s income at $30,000.

Retroactive Alimony

“[A]n appellate court will not disturb the trial court’s” award of retroactive alimony unless there is an abuse of discretion. Cleary v. Cleary, 872 So.2d 299, 303 (Fla. 2d DCA 2004). Former Husband argues that the retroactive alimony calculation is erroneous because it was calculated from late 2008 when the petition was not filed until February 27, 2009. Further, Former Husband argues that Former Wife received money before and after she vacated the residence and that Former Husband also maintained certain joint expenses during the period of the trial. Former Wife argues that the trial court properly assessed the retroactive alimony because Former Husband had the present ability to pay, while Former Wife was unemployed and had to borrow money from her sister. However, Former Wife does concede that this issue should be remanded solely for the recalculation of the arrearages.

The final judgment of dissolution of marriage stated that the Vitros separated in late 2008 and the petition for marriage was filed on February 27, 2009. Former Husband hypothesizes that the $42,500 retroactive amount must have included the time from late 2008 because the court ordered $2500 per month in permanent periodic alimony. Because the court failed to explain where it reached the $42,500 retroactive amount, the only logical conclusion is that it multiplied the monthly alimony times the number of months Former Husband was in arrears. Dividing the total retroactive amount by the court-ordered monthly amount, it would appear that Former Husband owed alimony arrearages for a total of seventeen months. Working backward from the date of the final judgment, seventeen months earlier is November 2008.

“[A]n award of retroactive alimony must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay.” Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010). In Alpert v. Alpert, 886 So.2d 999 (Fla. 2d DCA 2004), the appellate court reversed as to the award of retroactive alimony because the record did not support the findings that the Husband had the ability to pay the amount awarded. Id. at 1002. “The absence of such findings precludes meaningful appellate review.” Id. Here, the record does not support the trial court’s findings that retroactive alimony should relate back to late 2008 where the petition for dissolution of marriage was not even filed until February 27, 2009.

As such, we reverse the retroactive alimony in the amount of $42,500 and remand for a reassessment of the amount owed by Former Husband to Former Wife, specifically considering the date to which alimony should relate back.

Equitable Distribution

An appellate court reviews a trial court’s determination of equitable distribution for an abuse of discretion. Bell v. Bell, 68 So.3d 321, 328 (Fla. 4th DCA 2011). Former Husband argues that the trial court incorrectly stated in its final judgment that he agreed to pay the parties’ credit card debt. Former Husband also argues that the trial court incorrectly stated that he did not seek equalization of the equitable distribution. Former Wife contends that Former Husband asked for unequal distribution, had that request granted, and is now appealing the distribution that he requested.

The record here demonstrates that Former Husband requested to keep the family home, the furnishings therein, and the several hundred thousand dollars debt associated with the house. Former Husband agreed that Former Wife would not pay him an amount she owed him toward the home’s debt and that, instead, that amount could be credited toward unequal distribution and alimony credit. Former Husband maintained the parties’ credit, the house, and the expenses for the children up until the date of trial to maintain the lifestyle the parties had during the marriage. However, there is no support in the record for Former Wife’s contention that Former Husband agreed to continue paying the parties’ marital credit card.

Where there is no stipulation between parties, “[t]he distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to” the ownership interests of nonmarital property, value of marital property and to which spouse it is designated, designation of identified marital liabilities, and all other relevant findings. § 61.075(3)(a-d), Fla. Stat. (2011). Failure by the trial court to include the statutory requirements must result in reversal. Witt v. Witt, 74 So.3d 1127, 1128 (Fla. 2d DCA 2011). Here, the trial court final judgment states that the parties made several agreements, including Former Husband’s payment of the marital credit card debt. The record does not reflect that finding and, instead, reflects a request by Former Husband for Former Wife to either fully or partially accept responsibility for the $25,000 credit card debt. Therefore, the credit card payment was not stipulated to and the trial court had to have made specific written findings of fact as to the credit card debt which comport with section 61.075 in the final judgment. See Witt, 74 So.3d at 1128. Thus, we hold that the trial court erred in allocating the credit card debt in its entirety to Former Husband and remand for the trial court to make specific findings.

Other Expenses

Former Husband also seeks clarification from the trial court regarding other expenses. Former Husband argues that the trial court failed to address who is responsible for making the remaining payments to the prepaid college fund for the Vitros’ daughters, and further contends that the final judgment was silent as to the parties’ automobile leases and the expenses associated therewith. The final judgment states that “[t]he Florida Pre Paid College Fund is to be utilized for the child’s college. If the child does not elect to go to college, the parties will equally divide the proceeds.” Former Husband argues that, while the final judgment orders an equal division of unused proceeds, it does not include provisions for remaining payments that must be made to the college fund.

As discussed above, pursuant to section 61.075, Florida Statutes, absent an agreement between the parties, the trial court must identify marital liabilities and make specific findings in regard to those liabilities. § 61.075(3)(c). Here, there was no agreement made as to the college fund, thus the trial court must have complied with the requirements set forth in section 61.075. Failure to do so requires reversal. Therefore, we remand the issue of the Florida Prepaid College Fund outstanding payments to the trial court for determination of who is responsible for the remaining payments to the fund.

As to the family’s vehicles, the final judgment simply stated “[t]he parties are to keep the cars that they are driving until the leases expire.” The parties did stipulate at trial that until the parties decided whether they were going to switch cars with one another, each side was going to pay their own car payment. The final judgment does not include determinations as to who is responsible for the insurance on the vehicles, nor the other expenses associated with their leases. If the parties did not stipulate as to a particular marital asset or liability, the trial court must set forth specific written findings. The vehicle insurance and other expenses associated with the parties’ leases are not mentioned in the final judgment and, as such, no specific findings of fact regarding these items were made. We also remand the issue of car insurance and lease expenses, other than monthly car payments, to the trial court for further findings and clarification as to the responsibilities of the parties.

Amount of Alimony

‘“The trial court’s award of alimony is subject to an abuse of discretion standard of review, and where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse the award.’ ” Wabeke v. Wabeke, 31 So.3d 793, 795 (Fla. 2d DCA 2009). Former Husband argues that the trial court did not consider Former Wife’s actual needs, lifestyle of the parties .based upon debt, income of the parties, and the unequal distribution of marital debt in making its alimony- determination. Former-Husband also argues that the trial court made improper calculations using the child support guidelines worksheet because the court did not consider that Former Wife could claim the children as two dependents. Adding the deductions she would receive for the two dependents, Former Wife’s income is higher than the court computed. With these deductions, Former Wife makes $31,393.20 taxable income per year, plus $30,000 alimony, plus receives $997 per month for social security, equaling an annual income of approximately $73,357.20. Additionally, Former Husband pays monthly child support, COBRA payments, monthly Medicare payments, and monthly co-pays to doctors; none of which the trial court awarded credit for or considered otherwise.

While alimony can be considered as part of the former spouse’s income, a child support obligation is not considered income. Price v. Price, 951 So.2d 55, 58 (Fla. 5th DCA 2007). As such, the $947.87 for monthly child support cannot be considered as part of Former Wife’s annual income. This court held that, excluding child support payments, “a court may consider all sources of income available to either party in computing alimony. In-comé includes ‘annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments made by any person [or] private entity.’ ” Rosecan v. Springer, 985 So.2d 607, 609 (Fla. 4th DCA 2008) (emphasis added). Thus, it is within the trial court’s discretion to calculate income as it deems equitable. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Id.

Former Husband also argues that the trial court failed to consider “that the parties’ finances were at a critical breaking point and they had exhausted all forms of credit available to them” when it analyzed the parties’ lifestyle during the marriage. Former Wife contends that the parties lived an opulent lifestyle and that the alimony was properly calculated in light of that lifestyle. The record shows that the parties received an equity line on their marital home of $225,000 which was exhausted on private school tuition, a computer, books and uniforms for the children, furniture, a motorcycle, credit card and other debt. The parties’ bank accounts were all low and could not be drawn from to fulfill financial obligations, and it was necessary for family members to help cover costs during the litigation.

This court, in Jaffy v. Jaffy, 965 So.2d 825 (Fla. 4th DCA 2007), held that “the standard of living during the marriage is of little practical value in deciding the alimony question” where “the parties could not continue their marital lifestyle on [the] current income.” Id. at 827; see also Donoff v. Donoff 940 So.2d 1221, 1225 (Fla. 4th DCA 2006) (“The standard-of-living is not a super-factor in setting the amount of alimony-trumping all others. It has only a case specific and quite limited purpose.”). Here, the trial court considered the debt that the parties incurred and the financial status of their home, yet when it calculated alimony, the court still determined that $2500 per month permanent periodic alimony was sufficient. The record does not demonstrate that the trial court placed too much weight on the standard of living that the parties enjoyed during their marriage, and instead, demonstrated that it took into consideration all relevant factors, including the current state of the parties’ finances.

For the foregoing reasons, we remand this case so the trial court can exercise its discretion and determine whether it should attempt to resolve these issues based on the existing record or choose to take additional evidence in making these resolutions. Any changes the trial court makes to the equitable distribution would affect the alimony amount; thus, if any changes are made, we direct the trial court to revisit the alimony issue in accordance with those changes.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.

      . The home was worth $1,000,000 and the mortgage was $500,000 at the time the parties took out the equity line.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Martin IOSELLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1449.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Opinion on Rehearing Feb. 20, 2013.

      Brian Balaguera, West Palm Beach, for appellant.
    No appearance required for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing, withdraw our previous opinion, and substitute the following opinion in its place.

On July 1, 2009, appellant, a citizen of Argentina, entered a negotiated guilty plea to possession of oxycodone and possession of a Schedule IV controlled substance. In August 2011, he filed a timely motion for postconviction relief claiming, among other things, that the court did not advise him about the deportation consequences of his plea and that, pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), counsel was ineffective in failing to advise him about deportation.

The trial court denied the motion after an evidentiary hearing. The court found that the plea colloquy was sufficient and that the plea was voluntarily entered. The trial court did not, however, address appellant’s Padilla claim in its order.

We affirm the denial of appellant’s motion. We agree with the trial court that appellant’s claim that he was not advised about the possibility of deportation is refuted by the record and without merit. Appellant signed and initialed a plea form that advised him about the possibility of deportation. See Fla. R.Crim. P. 3.172(c)(8). During the plea colloquy, appellant, who has no difficulty with the English language, acknowledged under oath that he had read and understood the plea form. Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999).

It is unnecessary for us to decide whether Padilla applies in this case because appellant was illegally in this country prior to his arrest. At the evidentiary hearing, appellant’s immigration attorney testified that appellant entered the United States in May 2000 under a visa waiver that permitted him to remain in the country for ninety days. Appellant overstayed and illegally remained in the United States. In 2010, he married a United States citizen and later attempted to obtain an adjustment in his immigration status to that of lawful permanent resident. Immigration authorities denied his request and advised him that he was in the country illegally and must depart. According to his counsel on appeal, appellant has returned to Argentina.

Thus, at the time he entered his plea, appellant was removable because he overstayed his visa waiver for nearly a decade. He has not shown that his guilty plea to the drug offenses is the only basis for his removal. Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008). Appellant has not demonstrated that, at the time he entered his plea, he had a legitimate expectation that he would be allowed to remain in this country. Accordingly, appellant is not entitled to postconviction relief based on insufficient advice about the deportation, consequences of the plea.

Affirmed.

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

      . Appellant's amended motion also contended that he was entitled to relief under Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), rev’d, 691 F.3d 1348 (11th Cir.2012), because Florida’s controlled substance law was unconstitutional. This claim is without merit and has not been argued on appeal. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).


author: TAYLOR, J.

text:
    Peter B. NEWTON, Appellant, v. Delbert TENNEY, Anthony G. Kehle, III, Robert B. Cook, Lion Life, L.L.C., a Florida limited liability company, Lion Life, N.V., a Netherlands Antilles company, Orient Holdings, N.V. d/b/a Lion Life, a Netherlands Antilles company, Appellees.
    No. 4D12-1112.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Dave K. Roy of Roy & Associates, P.A., West Palm Beach, for appellant.
    Peter A. Sachs and Ashlee A. Richman of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellees.
   TAYLOR, J.

Peter Newton, a defendant in a proceeding to enforce a settlement agreement, appeals a final order denying his motion for entitlement to attorney’s fees. Because we conclude that Newton was the prevailing party, we reverse.

This appeal has its genesis in an underlying securities lawsuit that the plain-tiffiappellee, Delbert Tenney, brought against multiple defendants, including Newton and certain entities known as the Lion Life defendants.

In November 2008, Tenney entered into a settlement agreement with Newton and the other defendants. Under the terms of the settlement agreement, Tenney was entitled to receive a total of $1.6 million, payable in eight separate payments of $200,000. The agreement provided that the defendants would make the first payment of $200,000. The remaining seven payments of $200,000 were to be paid by the Lion Life defendants only. The settlement agreement further provided that if any payment was not made in a timely fashion, the defendants agreed to a judgment against the Lion Life defendants. The settlement agreement also included a prevailing party attorney’s fees provision.

When the defendants failed to timely deliver the first payment, Tenney filed a motion to enforce the settlement agreement.' In relevant part, Tenney’s motion requested that the court order Newton to pay Tenney $50,000, representing Newton’s proportional unpaid share of the first required payment of $200,000.

Newton contested the enforceability of the settlement agreement on multiple grounds, but also argued that he was not personally obligated to make any payments to Tenney under the terms of the settlement agreement. The other defendants withdrew their opposition to the enforceability of the settlement agreement, leaving Newton as the lone defendant challenging it.

Following several evidentiary hearings, the trial court partially granted and partially denied Tenney’s motion to enforce the settlement agreement. The trial court found that the settlement agreement was valid and enforceable. The trial court specifically rejected all of Newton’s defenses to the enforceability of the settlement agreement, including coercion and duress. However, the trial court found that Newton was not obligated to make any pay-merits to Tenney under the settlement agreement. The trial court reasoned that under the terms of the settlement agreement, Tenney’s exclusive remedy for any failure of the defendants to make a payment was a monetary judgment against the Lion Life defendants, but not against Newton individually.

Newton later moved for attorney’s fees, asserting that he was the prevailing party in the litigation over the settlement agreement because he avoided the $50,000 money judgment that Tenney sought. Tenney then countered with his own fees motion, claiming that he was the prevailing party because the trial court found the settlement agreement enforceable.

The trial court denied both parties’ fees motions, finding that the result in the case was “a bona fide tie” and that there were compelling circumstances warranting a finding that the parties had equally prevailed to some degree. From this order, Newton appeals.

The standard of review for a trial court’s ruling on the issue of prevailing party attorney’s fees is abuse of discretion. Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204, 213 (Fla.2012). “[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992).

Our court has broadly stated that “[i]n a breach of contract action, one party must prevail.” Lucite Ctr., Inc. v. Mercede, 606 So.2d 492, 493 (Fla. 4th DCA 1992); see also Port-A-Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So.2d 564, 569 (Fla. 4th DCA 2008) (“Although some districts recognize that cases can sometimes effectively be ‘ties,’ such that the parties can both be viewed as winners or losers, we have maintained that ‘[i]n a breach of contract action, one party must prevail.’ ”) (citation omitted); Animal Wrappers & Doggie Wrappers, Inc. v. Courtyard Distribution Ctr., Inc., 73 So.3d 354, 356 (Fla. 4th DCA 2011) (same). However, while we have sometimes stated this rule in categorical terms, we have also suggested that there may be compelling circumstances in which a trial court determines that neither party prevailed in a breach of contract action. See Hutchinson v. Hutchinson, 687 So.2d 912, 913 (Fla. 4th DCA 1997); see also M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So.2d 1288, 1289 (Fla. 4th DCA 2008).

Here, we conclude that the significant issue in the litigation was whether Newton was required to pay Tenney $50,000. Newton prevailed on that issue. Even though Newton’s challenges to the enforceability of the settlement agreement failed, these were simply alternative arguments for avoiding the money judgment. Based on the trial court’s interpretation of the settlement agreement, Newton ultimately succeeded in not having a $50,000 judgment entered against him. Furthermore, while Tenney was able to enforce the non-monetary terms of the settlement agreement, we do not view that as a sufficiently compelling reason to deviate from the general rule that one party must prevail in a breach of contract action.

Based on the foregoing, we find that the trial court abused its discretion in denying Newton’s motion for entitlement to attorney’s fees. We therefore reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.


author: FERNANDEZ, J.

text:
    Juan Carlos CARVAJAL, Appellant, v. BANC OF AMERICA INVESTMENT SERV., INC., Appellee.
    No. 3D12-2283.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Carlson & Lewittes, and Curtis Carlson, Miami, for appellant.
    Rubin, Fortunato & Harbison, P.C., Paoli, PA, and Peter R. Rosenzweig; Rich-man Greer, and Lyle E. Shapiro, Miami, for appellee.
    Before CORTINAS, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Juan Carlos Carvajal appeals the trial court’s order denying his petition to vacate or modify a portion of an arbitration award and denying his motion to award attorney’s fees. Because Carvajal did not expressly waive his statutory right to have a court hear attorney’s fees issues pursuant to section 682.11, Florida Statutes (2012), we reverse and remand for the trial court to vacate the portion of the arbitration award that determined entitlement to attorney’s fees. On remand, the trial court shall determine entitlement to attorney’s fees.

Carvajal is a former financial advisor of Banc of America Investment Services (“BAIS”). After BAIS terminated Carva-jal, BAIS submitted a standard form to the Central Registration Depository (“CRD”), in which it cited the reason for termination as “management’s loss of confidence.” The CRD’s records are available to federal and state regulators, brokers and dealers, and the public via the internet.

Carvajal subsequently filed an arbitration proceeding against BAIS pursuant to accepted industry rules. Carvajal believed that the CRD’s form was defamatory and would prevent him from re-employment. He sought damages for his termination, arbitration costs including forum fees and arbitrators’ fees, attorney’s fees, and ex-pungement of the CRD form. BAIS filed a counterclaim for enforcement of a promissory note and also requested attorney’s fees.

The two parties proceeded to a four-day evidentiary hearing. After all witnesses on substantive issues testified, BAIS sought to introduce a witness to testify on the amount of attorney’s fees BAIS incurred. Carvajal stated to the panel that a court of competent jurisdiction, not the arbitrators, should determine the amount of attorney’s fees. BAIS disagreed, contending that the arbitrators had authority to rule on attorney’s fees. The arbitration panel reserved judgment until it could determine whether it actually had authority on the matter.

The arbitrators ultimately awarded Car-vajal $90,000 in compensatory damages, $875 in forum fees, and ordered expungement of the defamatory form on record •with the CRD. The panel also denied BAIS’ counterclaims and determined that neither side was entitled to attorney’s fees.

Carvajal then petitioned the circuit court to vacate or modify the portion of the award that ruled on attorney’s fees, but otherwise to confirm the award. He argued that he was entitled to attorney’s fees, pursuant to section 448.08, Florida Statutes (2012), because he was a successful litigant in an action for unpaid wages. Carvajal also claimed that because he prevailed on BAIS’ counterclaim for enforcement of a promissory note, he should also be entitled to attorney’s fees pursuant to section 57.105(7), Florida Statutes (2012). BAIS asserted that Carvajal expressly waived his right to have a court of competent jurisdiction hear the question of attorney’s fees because his statement of claim contained a request for attorney’s fees. The trial court denied Carvajal’s petition, finding that: 1) the request for attorney’s fees in the ai'bitration statement of claim expressly waived Carvajal’s right for a court of competent jurisdiction to decide the issue of attorney’s fees; 2) by requesting attorney’s fees at arbitration, Carvajal expressly placed that issue with the arbitrators; 3) his belated objection at the end of the arbitration to the arbitrator’s consideration of attorney’s fees did not vitiate Carvajal’s waiver for a court to decide the issue of attorney’s fees; 4) the arbitrators decided the issue of attorney’s fees after consideration of all of the evidence, arguments, and objections; and 5) the arbitrators were in the best position to decide the attorney’s fee issue. The trial court also affirmed the arbitration award.

On a petition to vacate or modify an arbitration award, this Court reviews findings of fact under the competent and substantial evidence standard, and questions of law de novo. RDC Golf of Fla. I, Inc. v. Apostolicas, 925 So.2d 1082, 1091 (Fla. 5th DCA 2006). The Florida Arbitration Code confers on parties a statutory right to have a court determine entitlement to attorney’s fees. Section 682.11 provides that “[u]nless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of arbitration, shall be paid as provided in the award.” § 682. 11, Fla. Stat. (2012) (emphasis added).

The Florida Supreme Court has held that under section 682.11, an arbitrator “has no authority to award [attorney’s] fees absent an express waiver of this statutory right.” Turnberry Assocs. v. Serv. Station Aid, Inc., 651 So.2d 1173, 1175 (Fla.1995) (emphasis added). As we stated in GCA, Inc. v. 90 S.W. 8th St. Enters., Inc., 696 So.2d 1230 (Fla. 3d DCA 1997), “in order for an express waiver to be found, there must be either a stipulation during the course of arbitration or a specific finding based on substantial, competent evidence that the parties agreed to submit the attorney’s fees issue to the arbitrator.” Id. at 1233.

BAIS argues that the record, viewed in totality, contains competent, substantial evidence to support the trial court’s finding of an express waiver. We disagree. In finding that the parties agreed to submit the issue of attorney’s fees to the arbitrator, the trial court relied on Carvajal’s request for attorney’s fees in his initial arbitration statement of claim. However, requests for attorney’s fees in arbitration pleadings are not sufficient evidence of an express waiver. Appelbaum v. Fayerman, 937 So.2d 282, 284 (Fla. 4th DCA 2006); Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1021 (Fla. 4th DCA 1999); D.H. Blair & Co., Inc. v. Johnson, 697 So.2d 912, 914 (Fla. 4th DCA 1997). In Appelbaum, as here, there was no on-the-record stipulation that the arbitrators would determine the issue of attorney’s fees — the only record evidence of an express waiver was the parties’ requests for attorney’s fees in their arbitration pleadings. As the Appelbaum court noted, such evidence cannot constitute substantial, competent evidence of an express waiver.

Because the arbitration panel ruled on entitlement to attorney’s fees without Car-vajal’s express waiver, it exceeded its powers. See Turnberry, 651 So.2d at 1175. When “[t]he arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers,” the court is to vacate the award. § 682.13(l)(c), Fla. Stat. (2012). Accordingly, we reverse the trial court’s order denying Carvajal’s motion to vacate and remand with instructions to vacate that portion of the arbitration award that determined entitlement to attorney’s fees. On remand, the trial court shall determine entitlement to attorney’s fees.

Reversed and remanded with instructions.


author: CIKLIN, J.

text:
    Raoul PREDVIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4334.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   CIKLIN, J.

The state charged Raoul Predvil with trafficking in cocaine, conspiracy to traffic in cocaine, and possession of less than twenty grams of cannabis. After a trial in 2009, a jury acquitted Predvil of both the trafficking and possession charges, but convicted him of conspiracy. Predvil appeals this conviction, arguing that there was no evidence that he actually participated in a conspiracy. We agree and reverse Predvil’s conviction and remand with instructions for the trial court to enter a judgment of acquittal.

Our decision to reverse the conspiracy conviction is based upon the following legal principles:

[O]nly where ... the defendant’s involvement in the enterprise appears to be minimal at best, evincing no prear-rangements with the other defendants, or where ... the defendant has been acquitted of an accompanying drug trafficking charge, thereby discrediting much, if not all of the evidence against the defendant, have Florida courts been inclined to reverse such conspiracy convictions. Indeed, the typical drug trafficking transaction involving a series of clandestine meetings between several defendants and an undercover police officer which eventually leads to a sale or purchase of illegal drugs ... presents the classic example of a criminal conspiracy; by definition, such a scenario inferentially establishes, as a general rule, a prior agreement among the defendants to effect a sale or purchase of illegal drugs, else such a sale or purchase with its complicated arrangements would never have taken place.

Dieujuste v. State, 86 So.3d 1209, 1212-13 (Fla. 4th DCA 2012) (quoting Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991)).

In the instant case, the jury acquitted Predvil of the accompanying trafficking charge; thus we are required to discredit “much, if not all of the evidence” against him for the conspiracy charge. Further, we have thoroughly reviewed the record and find that, while it may be possible that Predvil aided and abetted in the sale of cocaine during a single transaction, there was no evidence that Predvil actually entered into a conspiracy to traffic cocaine. Just as in Dieujuste, the state’s evidence was “insufficient to establish [Predvil’s] participation in a conspiracy, since there was no evidence of any meetings, conversations, or pre-arrangements between [Predvil and the alleged co-conspirator] from which the jury could infer the existence of an agreement.” Id. at 1213.

Therefore, we reverse Predvil’s conviction and remand for the trial court to enter a judgment of acquittal.

Reversed and remanded with instructions.

DAMOORGIAN, C.J., and CONNER, J., concur.


text:
    Aguillar FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1032.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.
    Samuel R. Halpern, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149(2013); Hernandez v. State, 124 So.3d 757 (Fla.2012).

GROSS, LEVINE and CONNER, JJ., concur.


text:
    Yuliet Mendez MEDEROS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-662.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.
    Rehearing Denied Sept. 18, 2013.
    Beresford A. Landers, Jr., North Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 185 L.Ed.2d 149(2013); Hernandez v. State, 124 So.3d 757 (Fla.2012).

CIKLIN, GERBER and CONNER, JJ., concur.


text:
    Janice PALMER, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Kings Ridge Golf Club, LLC, Appellees.
    No. 1D13-3001.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2013.
    Rehearing Denied Oct. 4, 2013.
    Janice Palmer, pro se, Appellant.

      Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998) (dismissing untimely appeal without prejudice to appellant’s right to petition agency for relief); Johnson v. Terry Hunt Const. Co., 878 So.2d 1282 (Fla. 1st DCA 2004) (reversing administrative order denying relief where administrative final order had not been mailed to the correct address).

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


author: ALTENBERND, Judge.

text:
    US BANK NATIONAL ASSOCIATION, as Trustee for Citigroup Mortgage Loan Trust, Inc., 2007-AHL1, Asset-Backed Pass-Through Certificates Series 2007-AHL1, Appellant, v. Leroy MARION; Lue Rita Marion Unknown Tenant 1; Unknown Tenant 2; and All Unknown Parties Claiming by, Through, Under or Against the Above Named Defendant(s), Who (is/are) Not Known to be Dead or Alive, Whether Said Unknown Parties Claim as Heirs, Devisees, Grantees, Assignees, Lienors, Creditors, Trustees, Spouses, or Other Claimants, Appellees.
    No. 2D12-2258.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 2013.
    Joseph Hagedorn Lang, Jr., and Michael K. Winston of Carlton Fields, P.A., Tampa, for Appellant.
    D. Rand Peacock, Jr., of Rand Peacock P.A., St. Petersburg, for Appellees Leroy Marion and Lue Rita Marion.
    No appearance for remaining Appellees.
   ALTENBERND, Judge.

US Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc.2007-AHL1, Asset-Backed Pass-Through Certificates Series 2007-AHL1, appeals an order dismissing its foreclosure action against Leroy Marion, Lue Rita Marion, and other unknown parties. The trial court dismissed this action because the complaint was verified by an employee of the servicing agent, Wells Fargo Bank, N.A., and not by an employee of U.S. Bank. This court recently granted relief in a certiorari proceeding that involved similar circumstances. Deutsche Bank Nat’l Trust Co. v. Prevratil, 120 So.3d 578 (Fla. 2d DCA May 22, 2013). We likewise reverse this order and remand for further proceedings.

In reversing this order, we note that Florida Rule of Civil Procedure 1.110(b) requires verification of a complaint that is filed in an action for foreclosure on residential real property. With respect to the required verification, the rule specifically states:

When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

A problem with the required verification arises from the fact that an entity like U.S. Bank cannot sign a verification or an affidavit as “I.” Most foreclosure actions are filed by commercial entities with numerous employees, agents, or independent contractors. As a result, some human being must sign the verification stating “I declare .... ”

The circuit courts are understandably concerned about complaints filed by an entity like U.S. Bank and verified by an unidentified person. In this case, the initial complaint was verified by a woman whose title was “legal process specialist.” An amended complaint was verified by a man who is identified as “vice president loan documentation,” signing as a representative of “Wells Fargo Bank, N.A. as contractual servicer for U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc. 2007-AHL1, Asset-Backed Pass-Through Certificates Series 2007-AHL1.” It is not clear whether either of the verifiers would be subject to the jurisdiction of the court if their verifications proved to be false.

Thus, although we reverse this order, we are not holding that a trial court lacks the authority to require a plaintiff in a foreclosure action to provide additional information concerning the person signing the verification. Likewise, we do not decide whether the trial court may require that the person signing the verification be within or otherwise submit to the jurisdiction of the court.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.


text:
    Bruce ALPERSTEIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3689.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2013.
    Rehearing Denied Oct. 9, 2013.
    Bruce Alperstein, 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.

VAN NORTWICK, SWANSON, and OSTERHAUS, JJ., concur.


text:
    William WALLACE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3494.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    Rehearing Denied Oct. 4, 2013.
    William Wallace, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Pettway v. State, 776 So.2d 930 (Fla.2000) (holding that when a party has been banned from appearing pro se in a particular tribunal, he or she cannot go to another tribunal to avoid the consequences of the sanction).

WOLF, CLARK, and RAY, JJ., concur.


author: GROSS, J.

text:
    Steven L. BARNETT, Appellant, v. Peter ANTONACCI, State Attorney for the Fifteenth Judicial Circuit of Florida, Appellee.
    No. 4D12-2939.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied Oct. 3, 2013.

      Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    David Aronberg, State Attorney, and Leigh Lassiter Miller, Assistant State Attorney, West Palm Beach, for appellee.
   GROSS, J.

Stephen L. Barnett appeals the dismissal of his verified petition for writ of mandamus, quo warranto, and/or all writs. The petition sought the abatement of a nolle prosse entered by the State Attorney for the Fifteenth Judicial Circuit, Peter Antonacci. We affirm because there is no legal basis to issue the writs.

In early 2012, Bruce Colton, the State Attorney for the Nineteenth Judicial Circuit, charged William Chris Blane, Jr., by information with three counts of fraudulent transactions and one count of second degree grand theft between $20,000 and $100,000. The information named Barnett as the victim of the crimes charged.

After filing the information, State Attorney Colton advised the Governor “that the victim [Barnett] and his wife are close friends of State Attorney Colton and his family[.]” Consequently, the Governor reassigned the criminal prosecution to the State Attorney for the Fifteenth Judicial Circuit.

There was limited docket activity in the criminal case after it was transferred to the Fifteenth Circuit. Blane’s defense counsel moved to dismiss three of the four counts for failure to comply with the statute of limitations. Thereafter, the parties stipulated to a docket call which was set for May 24, 2012.

On May 11, 2012, an assistant state attorney, acting on behalf of State Attorney Antonacci, filed a nolle prosse with the clerk of the circuit court that dismissed all four counts against Blane. The nolle prosse stated, “Although there was probable cause for arrest and charge of the Defendant(s), the State has entered a Nolle Prosse in this case.”

In his lawsuit, Barnett alleged that he “did not receive any notice from anyone of the decision to file the nolle prosse, nor was he informed of the fact that such an action was being considered.” Four days after the entry of the nolle prosse, however, assistant state attorneys from Antonac-ci’s office met with Barnett in West Palm Beach and confirmed that the nolle prosse had been entered.

On June 7, 2012, Barnett filed a petition for writ of mandamus, quo warranto and/or all writs relief in the Florida Supreme Court. The petition sought an order “abating” the nolle prosse and, if necessary, an order compelling the Governor to appoint another state attorney to handle the prosecution. The Supreme Court transferred the case to the Nineteenth Judicial Circuit which entered the order dismissing the petition that is the subject of this appeal.

“[T]he de novo standard of review is applied when considering an order granting a motion to dismiss,” including the review of an order dismissing a petition for writ of mandamus. Walker v. Ellis, 989 So.2d 1250, 1251 (Fla. 1st DCA 2008); see also Mazer v. Orange Cnty., 811 So.2d 857, 858-59 (Fla. 5th DCA 2002) (stating that appellate courts generally review orders dismissing petitions for writ of mandamus de novo).

Barnett argues that Antonacci violated his constitutional right under Article I, section 16(b) of the Florida Constitution to, as he states, “notice and an opportunity for a victim to be heard vis a vis the dismissal of an information by a State Attorney.” Article I, section 16(b) provides,

Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

(Emphasis added).

Based on this provision, Barnett contends that “the Florida Constitution prohibits disposition of [a] criminal case without notifying the victimf.]”

Harmonizing Article I, section 16(b) with the separation of powers provision of the Florida Constitution, we conclude that a prosecutor’s decision to file charges or to discontinue prosecution is not a “stage” of a criminal proceeding within the meaning of Section 16(b). See Fla. Const, art. II, § 3 (separation of powers provision).

be entitled to mandamus relief, ‘the petitioner must have a clear legal right to the requested relief, the respon-responmust have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.’ ” Pleus v. Crist, 14 So.3d 941, 945 (Fla.2009) (quoting Huff-Huffv. State, 813 So.2d 10, 11 (Fla.2000)).

When reviewing constitutional provisions, a court “ ‘follows principles parallel to those of statutory interpretation.’ ” Lewis v. Leon Cnty., 73 So.3d 151, 153 (Fla.2011) (quoting Zingale v. Powell, 885 So.2d 277, 282 (Fla.2004)). First, Florida courts “must examine the actual language used in the constitution.” Id. (citing Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So.2d 134, 140 (Fla.2008); Fla. Dep’t of Rev. v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005)). “If the constitutional language is clear, unambiguous, and addresses the matter at issue, it must be enforced as written, and courts do not turn to rules of constitutional construction.” Ford v. Browning, 992 So.2d 132, 136 (Fla.2008) (citing Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986)).

“If the explicit language is ambiguous or does not address the exact issue before the court, the court must endeavor to construe the constitutional provision in a manner consistent with the intent of the framers and the voters.” Id. (citing Crist, 978 So.2d at 140). “It is a fundamental rule of construction that, if possible, amendments to the Constitution should be construed so as to harmonize with other constitutional provisions.... ” State v. Div. of Bond Fin. of Dep’t of Gen. Servs., 278 So.2d 614, 617 (Fla.1973).

A bedrock of the Florida Constitution is the separation of powers doctrine, which provides that “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided” in the Constitution. Art. II § 3, Fla. Const. “In construing our constitution, [Florida courts] have ‘traditionally applied a strict separation of powers doctrine.’ ” Fla. House of Reps. v. Crist, 999 So.2d 601, 611 (Fla.2008) (quoting Bush v. Schiavo, 885 So.2d 321, 329 (Fla.2004)). The separation of powers doctrine encompasses two fundamental prohibitions, the first being “that no branch may encroach upon the powers of another.” Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 264 (Fla.1991). The doctrine “is directed only to those powers which belong exclusively to a single branch of government.... Thus, a branch of government is prohibited from exercising a power only when that power has been constitutionally assigned exclusively to another braneh[.]” State v. Palmer, 791 So.2d 1181, 1183 (Fla. 1st DCA 2001) (citing Simms v. State Dep’t of Health & Rehab. Servs., 641 So.2d 957, 960 (Fla. 3d DCA 1994); State v. Johnson, 345 So.2d 1069 (Fla.1977); Dep’t of Health & Rehab. Servs. v. Hollis, 439 So.2d 947 (Fla. 1st DCA 1983)) (citation omitted).

Due to the separation of powers doctrine, courts have long recognized that a prosecutor, as a member of the executive branch, has the sole responsibility to enforce criminal laws of the state. “[T]he discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal justice.” State v. Cain, 381 So.2d 1361, 1367 (Fla.1980) (footnote omitted); see also United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (observing that “as an incident of the constitutional separation of powers, ... the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions”). As the Florida Supreme Court has explained,

[T]here is considerable authority for the proposition that prosecutorial discretion is itself an incident of the constitutional separation of powers, and that as a re-suit the courts are not to interfere with the free exercise of the discretionary powers of the prosecutor in his control over criminal prosecutions.

Cain, 381 So.2d at 1367 n. 8.

Under Article II, Section 3, a prosecutor has the exclusive discretion to decide whether to file charges or to continue with a prosecution. See State v. Brosky, 79 So.3d 134, 135 (Fla. 3d DCA 2012) (“Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or to dismiss charges is a determination to be made by solely the State.” (Citations omitted)). As an extension of this provision, a state attorney has the unilateral discretion to enter a nolle prosse. See State v. R.J., 763 So.2d 370, 371 (Fla. 4th DCA 1998) (“It is axiomatic that the decision to file a nolle prosse is vested solely in the discretion of the state.”) (footnote omitted); Wilkins v. State, 90 So.3d 305, 306 (Fla. 1st DCA 2012) (“[T]he decision to nolle prose a cause is within the sole discretion of the State ....”) (citing State v. Kahmke, 468 So.2d 284, 285 (Fla. 1st DCA 1985)). The discretionary power of a prosecutor “in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause.” Cox, 342 F.2d at 171 (footnote omitted).

Harmonizing Article I, Section 16(b) with the separation of powers mandated by Article II, Section 3 leads to the conclusion that a prosecutor’s decision to file charges or to discontinue prosecution with a nolle prosse is not a “stage” of a criminal proceeding contemplated by section 16(b). Rather, section 16(b) contemplates in-court hearings before a judge as the forum for exercising the rights provided in that section; along with the prosecution and defendant, a victim has a right to be “informed” of, to be “present ,” and to be “heard” at court hearings pertaining to a criminal case.

To interpret the section as urged by Barnett would lead to an absurd result; a victim would have the right to be “present” for the prosecutor’s in-office decision not to file charges or when a prosecutor discontinues prosecution by filing a nolle prosse with the clerk of the court. The right to be heard protected under section 16(b) is not the right to be heard by the prosecutor, but the right to be heard by a judge. A judge has no supervisory control over a prosecutor’s decision not to prosecute. A prosecutor unilaterally may file new charges or nolle prosse a case without the approval of a court.

This interpretation that section 16(b) pertains to in-court hearings is supported by section 960.001(l)(e), Florida Statutes (2012), which provides that a “victim ... shall receive ... prompt advance notification[ ] of judicial and post judicial proceedings relating to his or her case.” “Judicial proceedings” are hearings before a judge that culminate in a ruling by the court. Through mandamus or other writs, a court’s interference in a prosecutor’s decision of whether to prosecute would transgress the principle of separation of powers.

In sum, under Article I, Section 16(b) victims of crimes are entitled to the “right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings.” A prosecutor’s decision whether to file charges or to discontinue prosecution is not a “stage” of a criminal proceeding within the meaning of Section 16(b).

Barnett conceded at oral argument that a victim has no right under section 16(b) to confront a prosecutor before a charging decision is made. Here, the first prosecutor abandoned the case after filing charges due to his close relationship with the victim. This conduct placed the second prosecutor in the same situation as the first. In that context, the second prosecutor was entitled to make an independent evaluation of whether a prosecution should proceed, a decision akin to the initial filing decision that Barnett concedes is not subject to section 16(b) or section 960.001(e).

The circuit court properly dismissed the petition for writ of mandamus because Barnett failed to show that the State Attorney violated a “clear legal right.” In addition, “ ‘[mjandamus is an appropriate remedy to compel the performance of a ministerial act’ ” which is “where there is no room for the exercise of discretion, and the performance being required is directed by law.” Wright v. Frankel, 965 So.2d 365, 370 (Fla. 4th DCA 2007) (quoting Shulmister v. City of Pompano Beach, 798 So.2d 799, 802 (Fla. 4th DCA 2001)). Here, no such “ministerial act” is implicated.

Finally, the writ of quo war-ranto and the all writs provisions of the Florida Constitution are not applicable to this case. A writ of quo warranto “historically has been used to determine whether a state officer or agency has improperly exercised a power or right derived from the State.” Fla. House of Reps., 999 So.2d at 607. Since a state attorney unquestionably has the power to nolle prosse a criminal case under his jurisdiction, a writ of quo warranto has no application here.

Likewise, the all writs provision is equally unavailing. The Florida Constitution provides that “[t]he supreme court ... [m]ay issue writs of prohibition to courts and all writs necessary to the complete exercise of its jurisdiction.” Art. V, § 3(b)(7), Fla. Const. “[T]he all writs provision does not constitute a separate source of original or appellate jurisdiction but rather operates in furtherance of the Court’s ‘ultimate jurisdiction,’ conferred elsewhere in the constitution.” Williams v. State, 913 So.2d 541, 543 (Fla.2005).

Affirmed.

MAY, J., and JOHNSON, LAURA, Associate Judge, concur.

      . See §§ 517.301 (l)(a)2. & 517.302(1), Fla. Stat. (2012).

      . See § 812.014(2)(b)l„ Fla. Stat. (2012).

      . At the time the Governor issued the executive order, Michael McAuliffe served as the State Attorney for the Fifteenth Judicial Circuit. Shortly thereafter, McAuliffe resigned and the Governor appointed Peter Antonacci to serve as the State Attorney for the remainder of the term.


text:
    Jerry LUCANTE, Individually and as Personal Representative of the Estate of Marilyn Lucante, Deceased, Appellant, v. James S. KYKER, M.D.; Brian J. Roake, M.D.; and Panhandle Anesthesiologists, Appellees.
    No. 1D12-3869.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.
    Rehearing Denied Oct. 3, 2013.
    Stephen H. Echsner of Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola; and Harry Rein, Longwood, for Appellant.
    John M. Fite of Barron & Redding, P.A., Panama City; Jesse F. Súber, Laura Beth Faragasso, and E. Victoria Penny of Henry, Buchanan, Hudson, Súber & Carter, Tallahassee, for Appellees.
   PER CURIAM.

The appellant, Jerry Lucante, raises two issues on appeal. First, the appellant argues that its experts’ affidavits fulfilled the “similar specialty” presuit compliance requirement of section 766.102(5), Florida Statutes. Second, the appellant argues that the appellees waived any issue regarding presuit compliance because the appellees failed to specifically plead these issues. Because the issue regarding waiver is dispositive, this Court declines to address the meaning of the phrase “similar specialty” found in section 766.102(5). We reverse the trial court’s final judgment.

“Compliance with the statutory presuit requirements is a condition precedent for the filing of a medical malpractice action.” Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So.3d 873, 875 (Fla. 2d DCA 2010) (citing to Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991)). If a defendant wishes to deny that the plaintiff has fulfilled a condition precedent, he or she must do so “specifically and with particularity.” Fla. R. Civ. P. 1.120(c); see also Ingersoll, 589 So.2d at 224 (finding that a general denial is not sufficient to specifically deny a plaintiffs assertion that all conditions were met). Failure to do so results in the defendant waiving the argument that the plaintiff did not meet the condition precedent. Ingersoll, 589 So.2d at 223; see also Buck Lake Alliance, Inc. v. Bd. of Cnty. Comm’rs of Leon Cnty., 765 So.2d 124, 128 (Fla. 1st DCA 2000).

Here, the appellees failed to specifically deny the contention that the appellant had met all conditions precedent to filing the lawsuit. While they did state they had no knowledge of whether these conditions were fulfilled, this does not qualify as a specific denial. Because the appellees failed to deny the satisfaction of preconditions specifically and with particularity, the appellees could not later assert that a condition precedent had not been met. See Ingersoll, 589 So.2d at 225; see also Fla. Hosp. Waterman v. Stoll, 855 So.2d 271, 277 (Fla. 5th DCA 2003) (finding the adequacy of corroborating expert reports in a medical negligence claim is waived if the answer does not specifically argue adequacy and is not later amended). As a result, the appellees’ argument regarding presuit compliance was waived. Accordingly, we reverse the trial court’s final judgment entered pursuant to the order granting the motions to dismiss and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WOLF, ROBERTS, and RAY, JJ., concur.


author: FORST, J.

text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. Pamela HAYES, as personal representative of the Estate of Robert Elmore, and Road Rock, Inc., Appellees.
    No. 4D11-3802.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      Robert I. Scanlan of Florida Power & Light Company, Juno Beach, and Raoul G. Cantero and Moneyede M. Martin of White & Case LLP, Miami, for appellant.
    Robert J. Marzulla and Nancie G. Mar-zulla of Marzulla Law, LLC, Washington, DC; Stephen J. Simmons of Murray & Simmons, LLP, Fort Lauderdale; and Lauri Waldman Ross and Theresa L. Gir-ten of Ross & Girten, Miami, for appellees.
   FORST, J.

In this breach of contract case, the trial court granted summary judgment against Florida Power & Light Company (FP & L) regarding its liability and, after initially entering a judgment awarding the plaintiffs $20,463,910 in damages, the court vacated that portion of its order with respect to damages and granted a new trial as to damages only. FP & L now appeals the court’s order. Road Rock, Inc. and Pamela Hayes, as personal representative of the estate of Robert Elmore (plaintiffs), cross-appeal the same order to the extent that it dictates a new trial with respect to damages. We have jurisdiction. See Fla. R.App. P. 9.130(a)(4); Franklin Life Ins. Co. v. Davy, 753 So.2d 581 (Fla. 1st DCA 1999) (finding that appellant, who moved for new trial on liability and damages, was aggrieved by the order which limited the new trial to damages, and thus the court had jurisdiction under Rule 9.130(a)(4)). For reasons discussed below, we find that the trial court erred in granting summary judgment on the issue of liability and we further find that the trial court did not abuse its discretion in granting a new trial on damages.

History of the Contracts Related to the Lake

Long before they were adversaries, FP & L and Elmore entered into two contracts reciting their rights to land initially owned by Elmore adjacent to FP & L’s plant in Broward County. FP & L wished to create a lake on the land to use in cooling water being transferred from the plant. Elmore owned a rock quarry business and wanted to excavate rock from the lake to use in construction. The parties agreed to create a 150-acre lake (as well as a smaller lake), in order to each achieve their goals. The first contract, entered into in 1955, provided the following in relevant part:

3.... In the dredging of the lake, strips 50 feet wide are to be left undisturbed and intact to enable Elmore to carry on his rock-quarrying operations throughout the lake area ... All of such strips shall be removed by Elmore, to the full depth of the lake, at his own cost and expense upon completion of his quarrying operation.
4. Title to all rock within the area of said lake ... shall be reserved by El-more under the provisions of the instrument of conveyance....

In a 1984 contract, after the lake had been created, Elmore conveyed the property to FP & L but continued to hold title to the “rock, stabilizer and sand lying within the lake presently established on the Property, and will continue to have the right to remove said rock, stabilizer and sand” (emphasis added) as provided in the 1955 contract and supplemented by a 1958 contract.

Breach of Contract Litigation

In 2004, Elmore filed paperwork with the Broward County Department of Planning and Environmental Protection (“BCDPEP”) for the purpose of obtaining the necessary permits to dredge the lake. In March 2004, BCDPEP issued Elmore a renewal permit. Subsequently, FP & L filed formal objections with the BCDPEP and succeeded in having that entity rescind the permit that had been issued to plaintiffs. Elmore then sued FP & L for breach of contract (for challenging the 2004 permit), conversion, and unjust enrichment, and requested monetary damages. FP & L responded to the complaint and raised numerous affirmative defenses. The parties filed cross-motions for summary judgment on liability, each relying on the language in the contracts. Elmore’s motion did not address the affirmative defenses. The trial court denied FP & L’s motion for summary judgment, but granted Elmore’s motion. The court found that after the parties entered into the first contract, Elmore removed material from the lake, including rock, sand and stabilizer from several strips which he completely removed from the lake. The court also wrote the following:

Uncontested diagrams ... clearly show that there is no discernable difference between the four barriers already removed by Elmore (without objection by FPL) and remaining two (the subjects of this action). The barriers are long peninsulas which protrude into the lake. If one were standing on one of these barriers, he would be surrounded by water, except for the narrow strip of the barrier, similar to a jetty. The individual would surely be within the lake even though his feet would be dry.

After a bench trial with respect to the issue of damages, the court awarded the plaintiffs more than $20 million as damages. FP & L moved for rehearing on liability and damages, and the court denied rehearing on liability but granted rehearing on damages, based on numerous grounds. The court did not address all of FP & L’s affirmative defenses in rendering its decision.

FP & L appeals the trial court’s ruling on liability. Plaintiffs filed a cross-appeal, seeking reinstatement of the trial court’s initial award of damages. On appeal, FP & L argues that the court erred in limiting the new trial to damages, maintaining the finding of liability was based on a summary judgment which should not have been entered. According to FP & L, summary judgment in the plaintiffs’ favor was improper for the following reasons: 1) the contract language was either unambiguous and supported FP & L’s position, or it was ambiguous and required extrinsic evidence to determine its meaning; 2) issues of fact remain concerning (a) Elmore’s fulfillment of a condition precedent and (b) when the breach occurred and started the statute of limitations running; and 3) the plaintiffs failed to sufficiently address FP & L’s affirmative defenses.

Standard of Review

The standard of review of a summary judgment is de novo. Lopes v. Sappington, 958 So.2d 483, 485 (Fla. 4th DCA 2007). A trial court’s ruling on a motion for rehearing is reviewed for abuse of discretion, but where the motion is directed to a summary judgment, “the discretion not to grant is narrowed and every disposition should be indulged in favor of granting the motion.” Holl v. Talcott, 191 So.2d 40, 46-47 (Fla.1966). With regard to interpretation of contract language, this court has written:

Construction of a contract is a question of law which an appellate court may consider de novo provided that the language is clear and unambiguous and free of conflicting inferences. However, where the contract is susceptible to two different interpretations, each one of which is reasonably inferred from the terms of the contract, the agreement is ambiguous.

Miller v. Kase, 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001) (internal citations omitted). If contract language is ambiguous, summary judgment is generally improper. Berkowitz v. Delaire Country Club, Inc., — So.3d -, 2012 WL 5232251, 37 Fla. L. Weekly D2512 (Fla. 4th DCA Oct.24, 2012) (citation omitted). “However, if a party moving for summary judgment presents competent evidence to support its position, which the nonmoving party does not counter, then summary judgment may be granted.” Id. (citation omitted).

Analysis and Disposition

As in Ease, each side here contends the contract language is unambiguous, but they come to different conclusions with respect to its meaning. FP & L believes “lying within the lake” means material that is completely underwater, while Elmore contends it includes unsubmerged/above-water material within the boundaries of the lake. The contract language here is “susceptible to two different interpretations, each one of which is reasonably inferred from the terms of the contract.... ” Kase, 789 So.2d at 1097-98 (citations omitted). This is borne out by the trial court’s statement that the barriers at issue “are long peninsulas which protrude into the lake,” followed by likening these strips “to a jetty.” A peninsula is defined as “[a]n area of land almost completely surrounded by water except for an isthmus connecting it with the mainland....” A jetty is a structure extended into a sea, lake, or river to influence the current or tide or to protect a harbor; “a pier or structure of stones, piles, or the like, projecting into the sea or other body of water to protect a harbor, deflect the current,” or a wharf or landing pier.

Summary judgment should be denied if “different inferences can be reasonably drawn from the uncontroverted facts.” Inphynet Contracting Servs. v. Soria, 77 So.3d 776, 780 (Fla. 4th DCA 2011). As neither side presented undisputed evidence supporting its interpretation of the language, summary judgment based on the language was improper.

Because we reverse for trial on liability, the issue of whether the court erred in entering summary judgment without addressing all of the affirmative defenses is moot. As for the other arguments that were raised by FP & L on appeal and not addressed herein, including the statute of limitations argument, we find they either do not have merit or were not preserved.

In their cross-appeal, the plaintiffs argue that for numerous reasons, the trial court erred in granting new trial on damages. The standard of review is abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). “Moreover, a stronger showing has usually been required to reverse an order allowing a new trial than to reverse an order denying a motion for new trial.” Thigpen v. United Parcel Servs., 990 So.2d 639, 645 (Fla. 4th DCA 2008) (citation omitted). Upon review, we find that the plaintiffs did not establish that the court abused its discretion in granting a new trial on damages.

For the reasons set forth above, we affirm the grant of new trial on damages, and reverse the denial of trial on liability.

Affirmed in part, Reversed in part, and Remanded for further proceedings.

LEVINE and KLINGENSMITH, JJ., concur.

      . The conversion count was dismissed by the trial court in 2007 and is not a subject of the instant appeal.

      . Peninsula Definition, Dictionary.com, http:// dictionary-reference. com/browse/Peninsula?&path=/ (last visited July 18, 2013).

      . Jetty Definition, Merriam-Webster Online http://www.merriam-webster._com/dictio-nary/jetty (last visited July 18, 2013).

        .Jetty Definition, Dictionary.com, http:// dictionary.reference.com/_browse/Jetty?s=t&path=/ (last visited July 18, 2013).


author: WARNER, J.

text:
    Ramon ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4032.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      Antony P. Ryan, Regional Counsel, and Jennifer Workman Jesness, Assistant.Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, a juvenile charged as an adult, appeals his sentence to 270 years in prison following his guilty pleas to fifteen separate charges. He claims his sentence violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We have recently held that Graham does not apply to sentences for terms of years. Guzman v. State, 110 So.3d 480, 481 (Fla. 4th DCA 2013). Because of Guzman, we affirm but certify the same questions we certified in Guzman.

The state charged appellant with fifteen counts: count 1 — racketeering; count 2— conspiracy to commit racketeering; count 3 — home invasion robbery with a firearm; count 4 — kidnapping with a firearm; count 5 — home invasion robbery with a firearm; count 6 — kidnapping with a firearm; count 7 — conspiracy to commit home invasion robbery with a firearm; count 8 — attempt to commit home invasion robbery with a firearm; count 9 — home invasion robbery with a firearm; count 10 — kidnapping with a firearm; count 11 — discharging a firearm in public; count 12 — conspiracy to commit home invasion robbery with a firearm; count 13 — aggravated assault with a firearm on a police officer; count 14— grand theft (motor vehicle); and count 15 — possession of a firearm by a convicted felon. All of the charges arose between May 19, 2010, and June 8, 2010. Appellant was seventeen at the time of all of the alleged crimes.

Appellant pleaded guilty to all of the above charges, as well as nine separate violation of probation charges. The plea agreement included an agreement to testify truthfully concerning several cases as well as providing truthful statements to the state attorney regarding other persons specifically named in the agreement. The state in its discretion could suggest a sentence to the court, but appellant did not bargain for a specific sentence. His failure to truthfully testify or his refusal to testify at all would constitute “a substantial non-compliance with the specific terms of this plea agreement,” and if this were to happen, appellant could be sentenced in accordance with the Criminal Punishment Code.

At the plea hearing, appellant indicated that he understood that his cooperation in future cases would be a factor at sentencing. The court noted that the plea agreement did not contain an “upfront promise recommended sentence.” Appellant confirmed under oath that his testimony in several prior depositions and statements was truthful. The state indicated that “any deviation from those statements also would constitute a substantial noncompliance.” The court accepted the plea and adjudicated appellant guilty.

Subsequently, appellant changed his testimony from a prior deposition and testified that two of the individuals named in the plea agreement, about whom he was to give truthful statements, were not involved in robberies, although he had previously testified they were involved. Later, the court held a sentencing hearing. After explaining that appellant’s deviation from his sworn testimony jeopardized several prosecutions of his cohorts, the state requested life in prison but recognized that pursuant to Graham the state had to ask for a term-of-years and not life. The state requested the maximum sentence on every count. The state explained that the crimes arose from six separate episodes. It noted that “the defendant has made it clear that he is not cooperating and his behavior is severe, significant, reprehensible, violent,” and that “[h]e placed many people at great risk of physical harm.”

Finding that appellant had materially breached the plea agreement, the court sentenced him to lengthy sentences for each charge and then made the sentences for each criminal episode consecutive to each other. The net result was a total sentence of 270 years.

Appellant timely filed his notice of appeal. He also filed a motion to correct an illegal sentence pursuant to Graham, contending that the 270-year prison term was the functional equivalent of life in prison which would violate Graham, as appellant was still a juvenile when the various crimes were committed. The court denied the motion, finding that Graham did not prohibit juveniles from being sentenced to a term of years. The court explained that a “life sentence” was a term of art, and a term-of-years sentence was not a life sentence. From these orders, appellant has appealed.

In Graham, the Supreme Court held that a sentence of life without parole for a juvenile who committed a non-homicide offense is a violation of the Eighth Amendment’s protections against cruel and unusual punishment. The Court explained:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.... It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life.

130 S.Ct. at 2030. The Court noted that “[c]ategorical rules tend to be imperfect, but one is necessary here.” Id.

In Guzman, we have already addressed the question of whether a term-of-years sentence could constitute a violation of the prohibition of Graham. Noting that Graham prohibited only an actual life sentence without parole for a juvenile, we agreed with the Fifth District that Graham is limited to life sentences and that a term of years sentence, regardless of how long, does not violate Graham. We acknowledged the difficulty of determining which term-of-years sentences could be considered life sentences and which would not:

While we understand the temptation to acknowledge that certain term-of-years sentences might constitute “de facto” life sentences, we are compelled to apply Graham as it is expressly worded, which applies only to actual life sentences without parole. Without further guidance from our supreme court or the United States Supreme Court, it is logistically impossible to determine what might or might not constitute a de facto life sentence — assuming such a concept is to be considered in the first instance.

Guzman, 110 So.3d at 483 (emphasis supplied). The sentence in Guzman amounted to sixty years, nowhere near the sentence of 270 years involved in this case. Here, there is no doubt that the sentence, although a term of years, will incarcerate appellant, a juvenile, for the rest of his life. The trial court accomplished this by making the sentences consecutive, as each sentence could have provided the appellant with at least the possibility that he would not serve the rest of his life in prison.

There is no possibility of parole, and Florida has a statutory requirement that a prisoner serve at least eighty-five percent of his sentence. See § 944.275(4)(b)3., Fla. Stat. (2010). Eighty-five percent of 270 years is still well over the natural life of any person. Thus, although this is a term-of-years sentence, it is an actual life sentence. It provides no opportunity for release based upon maturity and rehabilitation. ⅝

Nevertheless, based upon Guzman, we apply Graham as it is worded and limit it to the life sentences without parole, not to a term of years. While we are certain that as a practical matter the sentence imposed constitutes incarceration of the appellant for life, without guidance from the United States Supreme Court or the Florida Supreme Court, we cannot provide direction to the trial court as to how long a sentence the court may impose on appellant without violating Graham. We thus affirm and certify the same questions as were certified in Guzman:

1. DOES Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?

2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

STEVENSON and TAYLOR, JJ., concur.


text:
    Jimmy Jones SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1232.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Jimmy Jones Scott, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

We find the trial court’s order denying postconviction relief was proper, since neither the affidavit asserted to be newly discovered evidence nor appellant’s motion for post-conviction relief stated the factual basis for the affiant’s discovery as a witness. Appellant has not shown either the timeliness of the motion (two years from the date of discovery of the “new evidence”) or that the defense in his case exercised due diligence in finding this evidence. Burns v. State, 110 So.3d 96, 97 (Fla. 2d DCA 2013). However, the denial should have been without prejudice in order to allow appellant a reasonable period of time to file an amended motion, if he can do so in good faith. Id. Appellant shall be granted sixty days from the date of this opinion to submit an amended motion in the trial court.

Affirmed without prejudice.

DAMOORGIAN, C.J., STEVENSON and LEVINE, JJ., concur.


text:
    Humberto VALSIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1718.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Humberto Valsien, MacClenny, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, 124 So.3d 757 (Fla.2012).

DAMOORGIAN, C.J., GROSS and CONNER, JJ., concur.


text:
    Douglas Lee JERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2639.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Douglas Lee Jerkins, Belle Glade, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Douglas Jerkins seeks review of an order that summarily denied his multi-issue Florida Rule of Criminal Procedure 3.850 motion. We affirm in part and reverse and remand for further review of one claim. As to that claim, Jerkins alleges that he was deprived of his right to testify because of his attorney’s misadvice that the state could impeach him with the facts and nature of his prior convictions. See Ferrer v. State, 2 So.3d 1111, 1112 (Fla. 4th DCA 2009); Hope v. State, 960 So.2d 912, 913 (Fla. 4th DCA 2007); Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001). We conclude that Jerkins’ motion is legally sufficient to state a claim on this ground on both the deficient performance and prejudice prongs of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Oisorio v. State, 676 So.2d 1363 (Fla.1996). We reverse for the trial court to conduct an evidentiary hearing on the issue or attach portions of the record conclusively refuting this claim.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR, LEVINE, CONNER, JJ., concur.


text:
    Jimmy Lee GRACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-842.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his conviction for robbery with a firearm and sentence to life in prison as a prison releasee reoffender. Appellant raises two issues. First, he claims fundamental error requires reversal of his robbery conviction because the defense of self-help — a defense he did not raise below — negates the elements of the offense. We find this issue to be clearly without merit. Second, appellant claims the trial court erred in allowing the state to introduce collateral crime evidence without providing ten days’ notice under section 90.404(2)(d)l., Florida Statutes (2012). The collateral crime evidence consisted of appellant shooting the robbery victim the night before the originally scheduled trial. The trial court properly admitted this evidence as relevant evidence under section 90.402, Florida Statutes (2012), to show consciousness of guilt. See Heath v. State, 648 So.2d 660, 664 (Fla.1994); King v. State, 988 So.2d 111, 113 (Fla. 4th DCA 2008). The notice requirement of section 90.404(2)(d)l. did not apply, and even if it did, any error was harmless because defense counsel had prior knowledge of the collateral crime evidence. See Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013); Miller v. State, 632 So.2d 243, 243 (Fla. 3d DCA 1994).

Affirmed.

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.