text:
    Darnell RHEA, Appellant, v. The DISTRICT BOARD OF TRUSTEES OF SANTA FE COLLEGE, Florida, Appellee.
    No. 1D11-3049.
    District Court of Appeal of Florida, First District.
    March 13, 2013.

      Darnell Rhea, pro se, Appellant.
    Lisa J. Augspurger and Maria Dawson Torsney, of Bush & Augspurger, P.A., Orlando; Sylvia H. Walbolt, of Carlton Fields, P.A., Tampa; Christine Davis Graves, of Carlton Fields, P.A., Tallahassee, for Appellee.
    Andy Bardos and Allen Winsor, of Gray-Robinson, P.A., Tallahassee, for Florida Atlantic University, et al., Amici Curiae.
   ON APPELLEE’S MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION OF A QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

The District Board of Trustees of Santa Fe College, Florida (the College), Appel-lee, has moved for rehearing, rehearing en banc, and certification of a question of great public importance. We grant the motion for rehearing to affirm the trial court’s dismissal of Count One; the motions for rehearing en banc and certification are denied. We withdraw our prior opinion and substitute the following opinion in its place.

Darnell Rhea appeals an order dismissing his second amended complaint, with prejudice, in his lawsuit against the College. Rhea’s pleading comprised a petition for writ of mandamus alleging a violation of Florida’s public records laws (Count One) and a petition for declaratory judgment alleging a violation of a college rule (Count Two). Concluding, as the trial court did, that Rhea has not stated a cause of action in either count, we affirm the dismissal order.

I. Pleadings and Procedural History

The second amended complaint alleged two claims. Count One, titled “Petition for Writ of Mandamus Violation of the Public Records Act,” alleged that from August to December 2009, Rhea was an adjunct associate professor under the supervision of the Chairman of the Academic Foundations Department (the Chair) at the College, a state college created and operated under chapter 1001, Florida Statutes. On September 28, 2009, Rhea asked the Chair for a complete copy of a certain e-mail received in the normal course of the Chair’s employment with the College. Rhea had previously received a copy of the e-mail with the name of the student author redacted. The Chair refused to comply with Rhea’s repeated requests to disclose the author’s name, on the ground that the student’s identity is protected from disclosure under the protection provided for education records in the Family Educational Rights & Privacy Act (FERPA), 20 U.S.C. section 1232g (2009). The student gave no written consent to disclosure of his or her name. Count One alleged the e-mail, including the student’s name, is a public record and, by refusing to disclose the complete, unredacted public record to Rhea, the College violated the law.

The e-mail in question complains of Rhea’s inappropriate classroom behavior, his humiliating remarks to the students, and his unorthodox teaching methodologies. Rhea denied all of the negative email allegations. He alleged, however, that he was effectively prevented from defending himself by demonstrating that the unnamed student was not in a position to comment fairly and accurately on his teaching methods and classroom conduct. Rhea asserted that neither the Florida statutes nor FERPA protects from disclosure the name of a student who writes an e-mail like the one in question. Rhea argued that pursuant to FERPA, a student’s complaint about the teaching methods and classroom behavior of a public, postsecond-ary school employee who is not a student at the school is not an education record because it relates only tangentially, not directly, to the student. It is, instead, solely a teacher record and thus is not protected from disclosure under FERPA.

Count One alleged further that as a result of the Chair’s unlawful refusal to give Rhea the unredaeted e-mail, the College did not rehire Rhea, and he suffered damages. Count One requested a jury trial, damages, and attorney’s fees and costs. This count also asserted Rhea’s right to a writ of mandamus requiring the College to give him the complete record of all complaints from any student that Rhea’s supervisors at the College have received.

Count Two is titled “Petition for Declaratory Judgment Violation of Agency Rules.” Rhea alleged that while the College is authorized to make rules that have the force of law, it has a corresponding duty to abide by its own rules. He sought a declaration of his rights under the College’s rule 7.36 of the “Student Complaint Procedure: Students and Administration,” which sets out procedures for students who wish to register a complaint against any employee of the College. The second count alleged that Rhea had a right under rule 7.36 to discuss any complaint from a student and to seek resolution of the complaint, before Rhea’s supervisor heard of or saw the student’s concern or complaint. The pleading asserted that the College had violated rule 7.36 and its duty to follow its own rules, as a result of which Rhea was not rehired and suffered personal harm. In addition to the request for declaratory relief, Count Two requested a jury trial, damages, and attorney’s fees and costs.

The College moved to dismiss both counts of the second amended complaint with prejudice and to strike Rhea’s claims for attorney’s fees and damages. After a hearing on the motions to dismiss and to strike, the trial court concluded, on Count One, that state and federal law do not require the College to provide Rhea with an unredacted copy of the e-mail. According to the court, the College is bound by state and federal law proscribing the College’s disclosure of an unredacted copy containing the student author’s name. On Count Two, the court found no justiciable issue as to the existence of any right Rhea may have under rule 7.36, nor did the court find a bona-fide, actual, and present need for a declaration. Because the second amended complaint represented Rhea’s third attempt to file a legally sufficient claim, and it was deemed inadequate, the trial court exercised its discretion to dismiss the latest pleading with prejudice. Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005). In light of the dismissal with prejudice, the court ruled the motions to strike were moot. This appeal followed.

II. Analysis

A motion to dismiss raises a question of law as to whether the facts alleged in the complaint are sufficient to state a cause of action. Meyers v. City of Jacksonville, 754 So.2d 198, 202 (Fla. 1st DCA 2000). In considering the legal sufficiency of a complaint, the trial court’s view is limited to the four corners of the complaint, the factual allegations of which are to be accepted as true. Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956). In doing so, the trial court must resolve all reasonable conclusions or inferences in favor of the plaintiff, as the non-moving party. Weaver v. Leon Cnty. Classroom Teachers Ass’n, 680 So.2d 478, 481 (Fla. 1st DCA 1996). It is well established that dismissal of a complaint with prejudice is a very severe sanction, to be invoked only when the pleader has failed to state a cause of action and it is conclusively shown the complaint cannot be amended in such a way as to state a claim. Meyers, 754 So.2d at 202. The standard of review for an order dismissing a complaint for failure to state a cause of action is de novo. Hernandez v. Tallahassee Med. Ctr., Inc., 896 So.2d 839, 841 (Fla. 1st DCA 2005); Landrum v. John Doe Pit Digger, 696 So.2d 926, 928 (Fla. 2d DCA 1997) (stating that the district court’s review of the trial court’s dismissal order is limited to determining whether the complaint stated a cause of action).

A. Count One: “Petition for Writ of Mandamus Violation of the Public Records Act”

To be entitled to a writ of mandamus, Rhea must establish that “he has a clear legal right to the performance of a clear legal duty by a public officer and that he has no other legal remedies available to him.” Hatten v. State, 561 So.2d 562, 563 (Fla.1990); see Plymel v. Moore, 770 So.2d 242, 246 (Fla. 1st DCA 2000). Mandamus has been described as “a remedy to command performance of a ministerial act that the person deprived has a right to demand, or a remedy where public officials or agencies may be coerced to perform ministerial duties that they have a clear legal duty to perform.” Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996). For purposes of mandamus relief, a duty or act is ministerial when no room exists for the exercise of discretion and the law directs the required performance. Shea v. Cochran, 680 So.2d 628, 629 (Fla. 4th DCA 1996). Applied to the instant case, the law of mandamus required the trial court to determine whether Rhea alleged sufficient facts to state a claim that he has a clear legal right to the unredacted copy of the e-mail and that the College has a clear legal duty to provide it to him.

On the question of whether Count One states a cause of action, we look first to Florida public records law. Where purely legal issues of whether a document is a public record and subject to disclosure are involved, we have de novo review. State v. City of Clearwater, 863 So.2d 149, 151 (Fla.2003); Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008, 1013 (Fla.2003).

A citizen’s access to public records is a fundamental constitutional right in Florida. Article I, section 24(a) of the Florida Constitution (the “Sunshine Amendment”) grants [e]very person ... the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf.” This “self-executing” right to open records is enforced through the Public Records Law, chapter 119 of the Florida Statutes. It is the duty of each agency to provide access to such records. § 119.01(1), Fla. Stat. (2009).

The Florida Supreme Court has construed the definition of public records to encompass all materials made or received by an agency, in connection with official business, which are used to “perpetuate, communicate or formalize knowledge of some type.” Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633, 640 (Fla.1980). The physical format of the record is irrelevant; electronic communications, such as e-mail, are covered just like communications on paper. See § 119.01 (2)(a), Fla. Stat. (2009) (“[a]u-tomation of public records must not erode the right of access to those records”); Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1207 (Fla. 1st DCA 2009) (observing that “public records law is not limited to paper documents but that it applies, as well, to documents that exist only in digital form”). Because Rhea alleged that the e-mail at issue is a com-munieation that was sent to, and received by, the College in connection with the transaction of its official business, he has sufficiently pled that it is a Florida public record subject to disclosure in the absence of a statutory exemption.

An exemption to Florida’s Public Records Law exists for a student’s “education records.” This exemption provides that “[a] public postsecondary educational institution may not release a student’s education records without the written consent of the student to any individual ..., except in accordance with and as permitted by the FERPA.” § 1006.52(2), Fla. Stat. (2009). The Legislature has adopted FERPA’s definition of “education records.” § 1002.225(1), Fla. Stat. (2009). Thus, it was incumbent upon the trial court to look to FERPA, 20 U.S.C. section 1232g, to determine whether Rhea stated a cause of action that the unredacted e-mail must be disclosed, i.e., that the College must reveal the student’s name.

FERPA protects “education records” (and personally identifiable information contained therein) from improper disclosure. Such records generally include “those records, files, documents, and other materials which ... (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A)(i)-(ii) (emphasis added). “Education records” do not include,

in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person’s capacity as an employee and are not available for use for any other purpose.

20 U.S.C. § 1232g(a)(4)(B)(iii).

Rhea contends that the e-mail at issue does not directly relate to its student author, and for this reason is not an “education record” within the meaning of FER-PA. For support, Rhea relies on Ellis v. Cleveland Municipal School District, 309 F.Supp.2d 1019 (N.D.Ohio 2004), and other cases adopting its rationale. The Ellis line of cases differentiates records that contain information “directly related to a student,” on the one hand, from records that are directly related to a teacher or other school employee and are only peripherally or tangentially related to a student, on the other. According to these federal authorities, the former are “education records” by definition; the latter are not. See, e.g., Ellis, 309 F.Supp.2d at 1022-23.

The issue in Ellis was whether FERPA covered incident reports related to physical altercations between substitute teachers and students, student and employee witness statements related to these incidents, and information related to subsequent discipline, if any, imposed on the teachers. Id. at 1021. Addressing “teacher discipline information,” the court explained:

In her document requests, plaintiff seeks records involving allegations of physical altercations engaged in by substitute teachers as well as student and employee witness statements related to those altercations.... Such records do not implicate FERPA because they do not contain information “directly related to a student.” While these records dearly involve students as alleged victims and witnesses, the records themselves are directly related to the activities and behaviors of the teachers themselves and are therefore not governed by FERPA.

Id. at 1022-23 (internal citations and quotation marks omitted) (emphasis added). Ellis stands for the proposition that “FERPA applies to the disclosure of student records, not teacher records.” Id. at 1022.

The federal district court in Wallace v. Cranbrook Educational Community, No. 05-73446, 2006 WL 2796135 (E.D.Mich. Sept. 27, 2006), drew a similar distinction between employee records and student records in its review of a magistrate judge’s order compelling discovery. Cran-brook Educational Community (Cran-brook), relying primarily on students’ statements alleging inappropriate employee behavior, terminated Wallace’s employment as a school maintenance person and equipment mover. 2006 WL 2796135 at *1. After Wallace filed a complaint alleging improper termination, Cranbrook provided him with copies of the students’ statements, with their names and addresses redacted. Id. Wallace moved to compel disclosure of the students’ identities, and a magistrate judge ordered the relief Wallace sought. Id. Cranbrook objected to the magistrate judge’s disclosure order, citing FERPA and other confidentiality and privacy concerns. Id.

Relying on Ellis, the Wallace court concluded that the student statements did not “directly relate to students” and were therefore not “education records” under FERPA. Id. at *4. The court noted that the statements were not education records for the additional reason that they related to Wallace in his capacity as an employee and thus qualified as an exception pursuant to 20 U.S.C. section 1232g(a)(4)(B)(iii). Because the records were not education records, the court found “no reason to redact the statements as they are not protected from disclosure by FERPA.” 2006 WL 2796135 at *6. Accordingly, the district court judge affirmed the disclosure order. Id. at *5-6, *8.

Like the courts in Ellis and Wallace, we believe the plain language of FERPA supports the distinction between information that is directly related to a student and that which is related to a student only tangentially or indirectly. By including the qualifier “directly” before “related,” Congress excluded by inference any information relating only indirectly to a student from the purview of the information covered under the “education records” definition. See Gay v. Singletary, 700 So.2d 1220, 1221 (Fla.1997) (explaining doctrine of inclusio unius est exclusio alterius); Smith v. State, 982 So.2d 69, 70 & n. 1 (Fla. 1st DCA 2008) (noting that the express inclusion of one thing in a statute implies the exclusion of its opposite).

The scope of the words “directly related” is still, however, quite broad. See United States v. Miami Univ., 294 F.3d 797, 812 (6th Cir.2001). Information is directly related to a student if it has a close connection to that student. See Merriam-Webster’s Collegiate Dictionary 353-54 (11th ed. 2004) (defining “direct” in relevant part as “characterized by close, logical, causal, or consequential relationship”; defining “directly” as “in a direct manner”). Because “directly related” encompasses far more information than might be accorded privacy in most other contexts, Rhea’s invitation to limit its scope is compelling. Further, Ellis lends support for this position. But to the extent that Ellis converts the “directly related” inquiry into a “primarily related” test, we disagree with its approach, despite its acceptance by other courts. A plain-language interpretation of FERPA requires us to depart from the Ellis reasoning as applied to the factual allegations of this case.

According to the allegations in Rhea’s complaint, the unredacted e-mail he seeks to obtain identifies the student and the student’s enrollment in his class. Further, the e-mail describes that student’s personal impressions of the classroom educational atmosphere in the context of Rhea’s teaching and methodology. The student’s knowledge of, and connection to, the information conveyed in the e-mail is not merely peripheral or tangential. As a member of the class, the student claimed to have experienced the treatment described in the e-mail, and the e-mail is the student’s own words. Although Rhea may be the primary subject of the e-mail, the e-mail also directly relates to its student author.

We reject any suggestion advanced by Rhea that a record cannot relate directly both to a student and to a teacher. If a record contains information directly related to a student, then it is irrelevant under the plain language in FERPA that the record may also contain information directly related to a teacher or another person. While FERPA makes clear that certain employee records are not included within the definition of “education record,” to be removed from the ambit of the “education record” definition, those employee records must relate exclusively to the employee in his or her capacity as an employee. 20 U.S.C. § 1232g(a)(4)(B)(iii). The allegations in Rhea’s complaint do not support the application of this narrow language.

In dismissing Count One with prejudice, the trial court concluded that, having been given several opportunities to amend his pleading, Rhea failed to state a claim that the unredacted e-mail is not directly related to a student for purposes of FERPA. Because the plain, unambiguous language of section 1232g(a)(4)(A)(i) compels the trial court’s ruling, we affirm the dismissal with prejudice.

B. Count Two: “Petition for Declaratory Relief Violation of Agency Rules”

Rhea’s second count sought declaratory relief. Circuit courts have jurisdiction “to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” § 86.011, Fla. Stat. (2009). As the party seeking a declaration of rights, Rhea has the burden to demonstrate entitlement. Groover v. Adiv Holding Co., 202 So.2d 103, 104 (Fla. 3d DCA 1967).

To be entitled to a declaratory judgment, Rhea must demonstrate that (1) a good-faith dispute exists between the parties; (2) he presently has a justiciable question concerning the existence or nonexistence of a right or status, or some fact on which such right or status may depend; (3) he is in doubt regarding his right or status under the College’s rule 7.36; and (4) a bona-fide, actual, present, and practical need for the declaration exists. May v. Holley, 59 So.2d 636, 639 (Fla.1952); State Farm Mut. Auto. Ins. Co. v. Wallace, 209 So.2d 719, 721 (Fla. 2d DCA 1968). The sufficiency of Rhea’s allegations depends not on whether the pleading demonstrates he will succeed in getting a declaration of rights under his assertions, but on whether the law even entitles him to a declaration of rights. Rosenhouse v.1950 Spring Term Grand Jury, 56 So.2d 445, 448 (Fla.1952).

Rhea sought a declaration of his rights under the College’s rule 7.36. For students who want to register a complaint against any employee of the College, the rule’s procedures require the student, first, to “[sjtate the complaint to the College employee involved and attempt to resolve the problem.” Only if the problem remains unresolved is the student to proceed to the next step, contacting the College employee’s immediate supervisor or a counselor for assistance. The rule also dictates the procedure the administration is required to take upon receipt of a complaint or concern.

Defending against Count Two, the College argued that the student’s e-mail did not rise to the level of a complaint and never triggered the mandatory procedures in rule 7.36. Specifically, the College characterized the e-mail as an informal student comment or concern, rather than a filed, formal complaint.

We need not determine what right Rhea may have had to a declaration under rule 7.36 when he discovered the student author of the e-mail had proceeded directly to the administration without attempting first to resolve the issues with Rhea. A petition for declaratory relief must show “some useful purpose will be served” by the relief sought. Kendrick v. Everheart, 390 So.2d 53, 59 (Fla.1980). Because declaratory relief generally is not appropriate where the alleged controversy is moot, Ashe v. City of Boca Raton, 133 So.2d 122, 124 (Fla. 2d DCA 1961), a trial court must ensure that the controversy between the parties is “definite and concrete.” Green Party of Alaska v. State, Div. of Elections, 147 P.3d 728, 732-33 (Alaska 2006). Rhea is no longer an employee of the College, and the student author of the e-mail is no longer a student at the College. The trial court correctly ruled that Rhea failed to make a prima facie showing that any present, justiciable question exists regarding his rights and a good-faith, actual, present, and practical need for a declaration exists. Given Rhea’s failure to state a cause of action in Count Two, the trial court properly dismissed the count with prejudice.

We AFFIRM the dismissal of Counts One and Two with prejudice.

LEWIS, ROBERTS, and RAY, JJ., concur.

      . Appellee, which is part of the state system of community colleges established and governed by chapter 1001, Part III, Florida Statutes (2009), is a state agency. § 119.011(2), Fla. Stat. (2009) (defining agency as "any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law ... and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency”).

      . FERPA, commonly known as the “Buckley Amendment,” does not prohibit disclosure of education records. Rather, it provides for the withholding of federal funds from educational institutions that have a policy or practice of permitting the release of such records. 20 U.S.C. § 1232g(b)(l).

      . See, e.g., Briggs v. Bd. of Trs. Columbus State Cmty. Coll., No. 2:08-CV-644, 2009 WL 2047899, at *5 (S.D.Ohio July 8, 2009) (concluding that student complaints about a professor did not directly relate to students and thus were not "education records”); Wallace v. Cranbrook Educ. Cmty., No. 05-73446, 2006 WL 2796135, at **3-6 (E.D.Mich. Sept. 27, 2006) (holding that "student statements provided in relation to an investigation into a school employee’s alleged misconduct” are not directly related to the students); Hampton Bays Union Free Sch. Dist. v. Pub. Emp’t Relations Bd., 62 A.D.3d 1066, 878 N.Y.S.2d 485, 488-89 (N.Y.App.Div.2009) (affirming a ruling that documentation relating to a probationary teacher’s early termination based on misconduct was subject to disclosure and was not an education record protected from release under FERPA).

      . Although this Court relied on the Ellis court’s distinction between directly and tangentially related information to require the disclosure of certain documents in National Collegiate Athletic Association v. Associated Press, 18 So.3d 1201, 1210-11 (Fla. 1st DCA 2009), we expressly limited our holding to the disclosure of versions of the documents with the students' names redacted.

      . Rhea did not assert any due-process right to know the student author’s identity in the context of a college formal disciplinary proceeding. The narrow issue presented by Rhea on appeal in this count is whether the e-mail contains information "directly related” to a student, triggering FERPA protections and exempting this record from Florida’s chapter 119 requirements. We express no opinion as to whether the requirements of due process could, in some instances, supersede FERPA.

      . Given that the trial court’s dismissal order addressed only Rhea’s request for disclosure of "the e-mail in question” and the court did not rule on the broader request for disclosure of any other student complaints made about Rhea, we confine our discussion to the redacted student e-mail addressed in the trial court.
        Miller v. Miller, 709 So.2d 644, 645 (Fla. 2d DCA 1998).


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY and Florida Farm Bureau General Insurance Company, Appellants, v. STATE of Florida, OFFICE OF INSURANCE REGULATION, Appellee.
    No. 1D12-2265.
    District Court of Appeal of Florida, First District.
    March 13, 2013.
    Wes Strickland and James A. McKee of Foley & Lardner, LLP., Tallahassee, for Appellants.
    Elenita Gomez, Tallahassee, for Appel-lee.
   MARSTILLER, J.

Appellants (collectively, “Farm Bureau”) seek review of an order issued by the Office of Insurance Regulation (“Office”) disapproving their amended sinkhole loss coverage endorsement.

Farm Bureau provides property and casualty insurance in Florida pursuant to certificates of authority issued by the Office. Section 627.706(1), Florida Statutes (2011), requires Farm Bureau and other property insurers to provide coverage for catastrophic ground cover collapse in their residential property insurance policies, and to make available optional coverage for sinkhole losses.

Farm Bureau sought the Office’s approval of a proposed amendment to its endorsement form limiting sinkhole loss coverage to 25 percent of the overall coverage amount for the insured dwelling. The Office concluded that section 627.706(1) requires insurers to offer sinkhole loss coverage in an amount equal to the dwelling coverage limit, and thus, it disapproved Farm Bureau’s amended endorsement. Farm Bureau argues that the Office’s statutory interpretation is clearly erroneous. We disagree, and affirm the order.

“An agency’s interpretation of a statute which it administers will be upheld unless it is clearly erroneous.” Bain v. Agency for Persons With Disabilities, 98 So.3d 642, 644 (Fla. 1st DCA 2012). The agency’s construction of the statute receives judicial deference if it falls within the permissible range of interpretations, and does not conflict with the plain and ordinary intent of the law. See Colbert v. Dep’t of Health, 890 So.2d 1165, 1166 (Fla. 1st DCA 2004).

Under section 627.706, “[e]very insurer authorized to transact property insurance in this state must provide coverage for a catastrophic ground cover collapse.” § 627.706(l)(a), Fla. Stat. (2011). In addition,

The insurer shall make available, for an appropriate additional premium, coverage for sinkhole losses on any structure ... to the extent provided in the form to which the coverage attaches .... A policy for residential property insurance may include a deductible amount applicable to sinkhole losses equal to 1 percent, 2 percent, 5 percent, or 10 .percent of the policy dwelling limits, with appropriate premium discounts offered with each deductible amount.

§ 627.706(l)(b), Fla. Stat. (2011) (emphasis added).

Farm Bureau and the Office are at odds over the meaning of the phrase “to the extent provided in the form to which the coverage attaches.” Farm Bureau contends that the form to which sinkhole loss coverage attaches is the policy endorsement setting out the extent (limit) of such coverage, which, according to Farm Bureau, lies solely within the discretion of the insurer. Here, Farm Bureau’s proposed sinkhole loss endorsement limited coverage to 25 percent of the amount of coverage on the insured dwelling. The Office posits that the form to which sinkhole loss coverage attaches is the base property insurance policy. Consequently, under the Office’s interpretation, an insurer must offer optional sinkhole loss coverage on an insured structure to the extent provided in the base policy.

The term “form” is not defined in either section 627.706 or elsewhere in the Insurance Code. However, under section 627.410(1), Florida Statutes, which requires insurers to submit all insurance forms to the Office for approval, a “form” can be a “basic insurance policy,” or a policy “endorsement,” or one of several other policy-related documents. See § 627.410(1), Fla. Stat. (2011); see also DuFresne v. State, 826 So.2d 272, 275 (Fla.2002) (“... in cases where the exact meaning of a term was not defined in a statute itself, we have ascertained its meaning by reference to other statutory provisions _”). Reading section 627.706(l)(b) as a whole, we conclude that defining the term “form” to mean the base policy is within the permissible range of interpretations. Subsection (l)(b) provides for sinkhole loss deductibles of 1 percent, 2 percent, 5 . percent, and 10 percent of “the policy dwelling limits.” Because the deductibles are tied to casualty coverage limits in the base policy, it is reasonable to conclude that the amount of sinkhole loss coverage is intended to be the same as the amount of casualty coverage provided for in the base policy. See Anderson v. State, 87 So.3d 774, 777 (Fla.2012) (“[A] statute is to be read as a consistent whole, and a court should accord meaning and harmony to all its parts, with effect given to every clause and related provision.”). Moreover, the existence, in the statute, of specific deductible amounts tends to support the Office’s argument that its interpretation ensures property owners have available to them meaningful sinkhole loss coverage, while Farm Bureau’s interpretation would permit insurers to offer so little sinkhole insurance as to make the optional coverage valueless.

Farm Bureau seeks to amend its sinkhole coverage endorsement, contending that amendments to section 627.706 enacted in 2011 gave property insurers the discretion to set their own coverage limits as a way to address legislative concerns about dramatic increases in sinkhole loss claims. See ch. 2011-39, § 21, Laws of Fla. Implicit in this argument is an acknowledgment that Farm Bureau agreed with the Office’s interpretation before the amendments took effect.

We can find no new statutory language to support Farm Bureau’s current position. The amendments to 627.706 through 627.7074 primarily clarified and added technical or scientific provisions to “reduce the number and cost of disputes relating to sinkhole claims, and ensure that repairs are made commensurate with the scientific and technical determinations and insurance claims payments.” Ch. 2011-39, § 21 at 58, Laws of Fla. The only new provision in section 627.706 limiting sinkhole coverage provides, “The insurer may restrict catastrophic ground cover collapse and sinkhole loss coverage to the principal building, as defined in the applicable policy.” § 627.706(l)(c), Fla. Stat. (2011); see ch. 2011-39, § 22 at 58, Laws of Fla.

The provision at issue in this case— requiring insurers to provide sinkhole loss coverage “to the extent provided in the form to which the coverage attaches” — is not new to section 627.706(1), but predates the 2011 amendments. In fact, this language has appeared unchanged in section 627.706 since 2007, when the Legislature amended the statute to mandate catastrophic ground cover collapse coverage in addition to optional sinkhole loss coverage. See § 627.706(1), Fla. Stat. (2007); ch. 2007-1, § 30, Laws of Fla.

As explained above, we conclude that the Office’s construction of section 627.706(l)(b) is within the range of permissible interpretations, and therefore, is not clearly erroneous. Accordingly, we AFFIRM the final order on appeal.

THOMAS, and WETHERELL, JJ., concur.


author: PER CURIAM.

text:
    Maxine LAMPERT-SACHER, Former Wife, Appellant, v. Mark SACHER, Appellee.
    No. 1D12-5609.
    District Court of Appeal of Florida, First District.
    March 13, 2013.

      Kelly L. Rooth and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Dock A. Blanchard and Kelly McNeal of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   PER CURIAM.

Former wife appeals two orders of the circuit court dated October 17, 2012. The first establishes a temporary timesharing schedule for the parties regarding the parties’ minor children. The second order found former wife in contempt, imposed sanctions, and awarded attorney’s fees to former husband. Former wife argues on appeal that the trial court committed reversible error in failing to allow her sufficient time to present her case. She also argues that the order of contempt is erroneous as a matter of law on its face. Former husband confesses error. We find such confession to be proper in the circumstances and accordingly reverse the orders on appeal and remand to the trial court for further proceedings.

REVERSED.

BENTON, C.J., WOLF and SWANSON, JJ., concur.


text:
    John Joseph LAMBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3416.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    John Joseph Lambert, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005) (holding that defendant can waive credit for time served as part of a plea agreement when the record clearly shows such waiver).


text:
    Rudy VILLALONA, a/k/a Ruddy Villalona, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-73.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Rudy Villalona a/k/a Ruddy Villalona, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion filed under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Michael WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-130.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Michael Wilson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   PER CURIAM.

We treat the petition for writ of error coram nobis filed in this Court as both a notice of appeal of the trial court’s order denying defendant’s petition for writ of error coram nobis and as the defendant’s brief. We find that the trial court properly treated the petition filed below as a motion seeking relief under Rule 3.850, see Wood v. State, 750 So.2d 592 (Fla.1999), and summarily denied it pursuant to Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), approved, — So.3d-(Fla.2012). See Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 185 L.Ed.2d 149 (U.S. 2013).

Affirmed.


text:
    Carrasco Alain FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-162.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.

      Carrasco Alain Fernandez, in proper person.
    Pamela Jo Bondi, Attorney General, and for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion filed under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Matthew R. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-251.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Matthew R. Hernandez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   PER CURIAM.

Matthew Hernandez appeals an order denying his motion to modify or reduce his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). As an order denying a motion to reduce or mitigate a sentence is not appealable, see, e.g., Diaz v. State, 931 So.2d 1002, 1004 (Fla. 3d DCA 2006), we treat the appeal as a petition for writ of certiorari, see Iglesias v. State, 76 So.3d 370 (Fla. 3d DCA 2011), and deny the petition.

Rule 3.800(c) allows for a reduction or modification of “a legal sentence imposed by [the court] within 60 days after the imposition....” Fla. R.Crim. P. 3.800(c).

Hernandez was sentenced on January 10, 2012. No appeal was taken from the judgment or sentence. Hernandez filed the instant motion to modify his sentence on August 21, 2012. The trial court properly denied Hernandez’s motion as untimely because it was filed more than sixty days from the date his sentence was imposed and the sixty-day requirement of Rule 3.800(c) is jurisdictional. E.g., State v. Woodard, 866 So.2d 120, 121 (Fla. 4th DCA 2004).

Petition denied.


author: EMAS, J.

text:
    Andrew SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2434.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   EMAS, J.

We affirm without discussion the defendant’s conviction for second-degree murder, but reverse the life sentence and remand for resentencing. The State properly conceded that the trial court erred in imposing a written sentence that conflicts with the oral pronouncement. The written sentence designated the defendant both a prison releasee reoffender and a habitual felony offender. The oral pronouncement, however, reflects that the trial court designated the defendant a prison releasee reoffender only. The oral pronouncement of sentence prevails over a subsequent and conflicting written sentencing order. Justice v. State, 674 So.2d 123 (Fla.1996).

Conviction affirmed. Sentence reversed and remanded to enter a corrected sentencing order reflecting defendant’s designation as a prison releasee reoffender and removing the designation as a habitual felony offender.

      . Because second-degree murder is a first-degree felony punishable by life, see section 782.04(2), Florida Statutes (2007), Scott’s status as a prison releasee reoffender requires imposition of a mandatory life sentence. See § 775.082(9)(a)3.a„ Fla. Stat. (2007) (mandating that a prison releasee reoffender convicted of "a felony punishable by life” must be sentenced to "a term of imprisonment for life”); State v. Garcia, 923 So.2d 1186 (Fla. 3d DCA 2006) (holding imposition of a sentence under prison releasee reoffender act is mandatory, and trial court has no discretion to impose a lesser sentence). The correction of the sentencing order to remove the habitual felony offender designation is a ministerial act that does not (and cannot) have any effect on the corrected sentence. The defendant therefore need not be present for this purpose. See Catalan v. State, 911 So.2d 203 (Fla. 3d DCA 2005).


author: FERNANDEZ, J.

text:
    Mickey WOODSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2939.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG and FERNANDEZ, JJ.
   FERNANDEZ, J.

Mickey Woodson appeals his conviction and six-month sentence for direct criminal contempt based on the trial court’s failure to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.830. We reverse.

It is clear from the record that Wood-son’s conduct was contemptuous, as he showed substantial disrespect for the court and continued to use expletives in defiance of the court’s instruction to calm down so that the court could explain the circumstances that led to revocation of his pretrial release. However, as the State graciously concedes, the court failed to adhere to the strict requirements of rule 3.830 when it conducted the contempt proceeding and pronounced sentence.

We outlined the steps that must be taken to comply with the requirements of rule 3.830 in Castaneda v. State, 77 So.3d 862 (Fla. 3d DCA 2012). The procedural requirements are as follows:

1. Direct criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.
2. The judgment of guilt for contempt shall include a recital of those facts upon which the adjudication of guilt is based.
3. Prior to the adjudication of guilt, the judge shall inform the defendant of the accusation against him or her and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor.
4. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances [before sentencing],
5. The judgment shall be signed by the judge and entered of record.
6. The sentence shall be pronounced in open court.

Id. at 862-63. Failure to strictly comply with the requirements of the rule constitutes fundamental error. Bonet v. State, 937 So.2d 209, 210 (Fla. 3d DCA 2006); Hibbert v. State, 929 So.2d 622-23 (Fla. 3d DCA 2006); Garrett v. State, 876 So.2d 24, 25 (Fla. 1st DCA 2004). Because the court did not provide Woodson with an opportunity to present evidence of excusing or mitigating circumstances, the judgment of guilt for direct criminal contempt must therefore be reversed.

Reversed and remanded for further proceedings.


author: SUAREZ, J.

text:
    Rafael Ramos De La ROSA, Appellant, v. Thomas Andres Vasquez ESTRELLA, Appellee.
    No. 3B12-1775.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Gonzalez & Wermuth, and J. Michael Wermuth and Osnat N. Dorot, Miami, for appellant.
    Daniel Forman and Adele Bagley; Williams & Connolly, and Peter J. Kahn and Jonathan M. Landy, Miami, for appel-lee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   SUAREZ, J.

Rafael Ramos De La Rosa appeals from a denial of his motion to dismiss the Complaint. We dismiss that portion of the appeal based on lack of standing, as this is not an appealable non-final order. Fla. R.App. P. 9.130. In all other respects, we affirm the order on appeal. Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979).

Dismissed in part, affirmed in part.


text:
    Gary AVILA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2955.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Gary Avila, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the Appellee’s motion for rehearing, -withdraw our original opinion filed January 2, 2013, and issue the following opinion in its place.

We affirm the trial court’s denial of the defendant’s petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a), but without prejudice for the defendant, Gary Avila, to file a post-conviction petition in the trial court that facially demonstrates entitlement to the relief he seeks. See Johnson v. State, 60 So.3d 1045, 1051 n. 2 (Fla.2011).

Affirmed.


author: ROTHENBERG, J.

text:
    Steven Lane SHELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2958.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.

      Steven Lane Shelton, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   ROTHENBERG, J.

Steven Lane Shelton (“Shelton”) appeals the trial court’s denial of his petition for writ of habeas corpus, which was denied based on the trial court’s conclusion that the petition had been previously ruled on and transferred to the Nineteenth Circuit. We reverse. Although the record reflects that the Miami-Dade circuit court did transfer Shelton’s petition to the Nineteenth Circuit, believing jurisdiction was where Shelton was incarcerated, the Nineteenth Circuit correctly determined that because Shelton was challenging the sentence originally imposed in Miami-Dade County, not the propriety of the revocation of his conditional release, jurisdiction lies in the Eleventh Circuit. See Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996) (holding that the only court that has jurisdiction to hear a challenge as to the legality of a conviction or sentence is the court where he was convicted and sentenced). Thus, the Nineteenth Circuit transferred the petition back to Miami-Dade County. Because the Eleventh Judicial Circuit Court has not ruled on the merits of Shelton’s claim, and we are unable, based on the incomplete record provided, to resolve the claim, we reverse and remand for a determination by the trial court.

In 1995, Shelton was tried and convicted for the offense of possession of a firearm by a convicted felon, a second degree felony, in violation of section 790.23(1)(a), Florida Statutes (1995). Based on the State’s notice to seek an enhanced sentence, and the subsequent sentencing hearing where Shelton’s prior convictions were considered by the trial court, Shelton was sentenced to twenty years of incarceration, with a minimum mandatory sentence of ten years as a habitual violent felony offender pursuant to section 775.084(l)(b), Florida Statutes (1995). The conviction and sentence were affirmed on direct appeal. Shelton v. State, 706 So.2d 1382 (Fla. 3d DCA 1998).

On April 1, 2008, Shelton was released from prison on conditional release. After he violated the conditions of his release, Shelton was rearrested and incarcerated to complete the original sentence imposed in 1995. Thereafter, Shelton filed the instant petition challenging the legality of his original habitual violent felony offender sentence. The trial judge assigned to the division that imposed the sentence incorrectly transferred the petition to the Nineteenth Circuit, where Shelton was incarcerated. When the Nineteenth Circuit transferred the petition back to the Eleventh Judicial Circuit Court, it was assigned to the current judge presiding over that division.

Shelton claims his sentence and continued- incarceration are illegal because he lacked the requisite felony convictions to enable the trial court to impose a habitual violent felony offender sentence. Because the record provided to this Court does not conclusively refute Shelton’s claim, we remand the trial court to rule on the petition.

Reversed and remanded.

      . Several unsuccessful postconviction challenges were additionally made, but they are not relevant herein.


text:
    STEINER TRANSOCEAN LIMITED, Appellant, v. Milena EFREMOVA, Appellee.
    No. 3D12-2390.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.

      McIntosh, Sawran & Cartaya and Kimberly J. Kanoff and Carmen Y. Cartaya, for appellant.
    Lipcon, Margulies, Alsina & Winkleman and Carlos Felipe Llinás Negret and Jason R. Margulies, for appellee.
    Before ROTHENBERG, SALTER and EMAS, JJ.
   EMAS, J.

Steiner Transocean Limited (“Steiner”) appeals an order denying its motion to dismiss the second amended complaint. Steiner asserted in its motion that dismissal was required based on a mandatory forum selection clause in its employment contract with appellee, Milena Efremova (“Efremova”). We reverse because the trial court incorrectly concluded that it was limited to the four corners of the complaint in determining the merits of the motion to dismiss.

Efremova was injured while employed as a hairstylist aboard a Carnival cruise ship on December 8, 2008. She filed suit in Miami-Dade circuit court against Carnival Corporation, Steiner Transocean Ltd., Steiner Leisure Ltd., and Steiner Trans-ocean U.S. Inc. The complaint alleged Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, failure to treat, and a count for wages and penalties. Efremova alleged she was employed by all four defendants, but did not attach an employment contract to her complaint.

On January 18, 2012, Steiner moved to dismiss the second amended complaint, contending that a mandatory forum selection clause in Efremova’s employment contract required her to file the action in federal court. In support of its motion to dismiss, Steiner attached a copy of Efremova’s employment contract. The contract, dated September 11, 2008, is between Efremova and “Steiner Trans-ocean,” and provides in pertinent part:

It is agreed by and between Company and Employee that all disputes and matters whatsoever arising under, in connection with or incident to this Agreement shall be litigated, if at all, in and before the United States District Court for the Southern District of Florida, Miami Division, which will have exclusive jurisdiction to hear all disputes herein, to the exclusion of all other courts of any other state, territory or country. Employee hereby waives any objection to jurisdiction or venue or any other objection that he/she may have to any such action or proceeding being brought in the United States District Court for the Southern District of Florida, Miami Division. The Company and Employee agree that this agreement shall be governed by the laws of the United States.

At the non-evidentiary hearing on the motion to dismiss, Efremova argued that dismissal was not appropriate because the employment contract was not attached to her complaint, and the court was not permitted to look beyond the four corners of the complaint in deciding the merits of the motion to dismiss.

The trial court denied the motion to dismiss, doing so (at least in part) on its determination that it was precluded from looking beyond the four corners of the complaint to determine whether a valid contractual forum selection clause applied to this cause of action. In doing so, the trial court erred.

As a general rule, when considering a motion to dismiss, a trial court is limited to the allegations within the four corners of the complaint and any attachments. However, there are several exceptions to this general rule. For example, a court is permitted to consider evidence outside the four corners of the complaint where the motion to dismiss challenges subject matter jurisdiction or personal jurisdiction, or where the motion to dismiss is based upon forum non conveniens or improper venue. A motion to dismiss based on a contractual forum selection clause is similar, in many respects, to a motion to dismiss for improper venue. We can discern no reason for treating them differently for purposes of applying the exception to the “four corners” rule. This is especially so because, in Florida, forum selection clauses are presumptively valid and it is the burden of the party seeking to avoid that contractual agreement to establish “that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Corsec, S.L. v. VMC Intern. Franchising, LLC, 909 So.2d 945, 947 (Fla. 3d DCA 2005) (quoting Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986)). Accordingly, we reverse the trial court’s order denying Steiner’s motion to dismiss, and remand for proceedings consistent with this opinion.

      . The second amended complaint is the operative complaint for purposes of this appeal.

      . See e.g., Minor v. Brunetti, 43 So.3d 178 (Fla. 3d DCA 2010).

      . See, e.g., Seminole Tribe of Fla. v. McCor, 903 So.2d 353 (Fla. 2d DCA 2005); Barnes v. Ostrander, 450 So.2d 1253 (Fla. 2d DCA 1984).

      . See, e.g., Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

      . Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996); Fla. R. App. P. 1.061.

      . See, e.g., Barclays Bank, PLC v. Munoz, 890 So.2d 1252 (Fla. 3d DCA 2005); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Bank of Melbourne & Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970).

      .In fact, federal courts treat a motion to dismiss based on a forum selection clause as a question of proper venue and, under Federal Rule of Civil Procedure 12(b)(3), the trial court may look beyond the allegations of the complaint to determine whether dismissal is proper. See, e.g., Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233 (11th Cir.2012). The reason for this exception to the general rule is that otherwise, "the court would be unable to discern the actual basis, in fact, of a party's challenge to the bare allegation in the complaint that venue is proper to that court.” Horberg v. Kerzner Inter. Hotels Ltd., 744 F.Supp.2d 1284, 1288 (S.D.Fla.2007). See also Lobo v. Celebrity Cruises, Inc., 426 F.Supp.2d 1296 (S.D.Fla.2006).

      . Efremova also argued below that the trial court should deny the motion to dismiss because the signatory to the employment contract was "Steiner Limited” (a non-party to the action) and not Steiner Transocean Limited. We do not reach this issue because that issue, like the determination regarding the forum selection clause, may well require an evidentiary hearing.


author: VAN NORTWICK, J.

text:
    Timothy Ryan O’LEARY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0975.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

We have for review the trial court’s denial of Timothy Ryan O’Leary’s motion to dismiss the two counts of sending written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2011). Appellant argues that, because the threats at issue were simply posted on his personal Facebook page, the threats were not “sent” to the alleged victims as required by the statute. Thus, he asserts, he did not violate the statute. Because we hold that, under the circumstances of this case, appellant violated section 836.10 by posting the threats on his Facebook page, we affirm.

Appellant composed and posted a statement on his personal Facebook page which threatened death or serious bodily injury. The objects of the threat were a relative of the appellant and her partner. Michael O’Leary, appellant’s cousin, was a Face-book friend of appellant. As such, Michael viewed the posts on appellant’s Facebook page, although it is undisputed that appellant never expressly asked Michael to view the Facebook page or the threatening post. Nevertheless, as a Facebook friend, Michael viewed the post directed towards his relative and her partner. Michael, on his own initiative, showed appellant’s threatening post to his uncle. The uncle, on his own accord, informed the victims about appellant’s Facebook posting.

Appellant was charged with two counts of making written threats to kill or do great bodily harm in violation of section 836.10, Florida Statutes. Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), appellant filed a motion to dismiss, arguing that the facts failed to establish a prima facie case against him under the statute. Specifically, appellant asserted that the uncontested facts established that he never sent or procured another to send any threatening message to either victim. The State filed a traverse and demurrer in response to appellant’s motion to dismiss. While agreeing with nearly all of appellant’s recitation of the facts of the case, the State contended that appellant’s Facebook post constituted a “sending” under Florida law.

The trial court heard argument from both parties on the motion to dismiss. The trial court found that appellant’s posting constituted a “sending” under section 836.10. The trial court provided two bases for the finding. First, the trial court noted that, at the time Michael viewed the posting, it was accessible by any member of the public who wanted to view appellant’s Facebook page. Second, the trial court found that, even if it considered the Face-book posting to have been sent only to Michael, the facts still presented a prima facie violation of the statute. The trial court observed that the posting was an electronic communication, sent to Michael (the recipient), which threatened to kill or do serious bodily harm to a member of the recipient’s family.

Following the trial court’s denial of his motion to dismiss, appellant entered a plea of no contest to one count of making written threats to kill or do serious bodily harm. Appellant specifically reserved the right to appeal the trial court’s denial of his motion to dismiss. The trial court accepted appellant’s plea and subsequently imposed a sentence of ten years’ imprisonment followed by five years of community control. This appeal of the trial court’s denial of the dispositive motion to dismiss followed.

We review a trial court’s denial of a motion to dismiss under a de novo standard of review. Gresham v. State, 908 So.2d 1114, 1115 (Fla. 1st DCA 2005). As we have previously explained, “[t]he purpose of a motion to dismiss an information pursuant to rule 3.190(c)(4) is to ‘ascertain whether the undisputed facts which the State will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged.’ ” Bonge v. State, 53 So.3d 1231, 1233 (Fla. 1st DCA 2011) (citation omitted).

Section 836.10, Florida Statutes (2011), provides:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree.

The Second District Court of Appeal has held that section 836.10 is violated when: “(1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family.” State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995). At least two other district courts of appeal have adopted the Wise court’s three-element framework for analyzing section 836.10 violations. See Saidi v. State, 845 So.2d 1022, 1027 (Fla. 5th DCA 2003); Suggs v. State, 72 So.3d 145, 147 (Fla. 4th DCA 2011). Although Wise, Sai-di and Suggs each involved a letter or letters as the form of communication, in 2010 the legislature amended section 836.10 to include “electronic communication.” Ch. 2010-51, § 1, Laws of Fla.

The Wise court defined “sending” as “the depositing of the communication in the mail or through some other form of delivery” and “receipt of the communication by the person being threatened.” Wise, 664 So.2d at 1030. While the Wise court dealt with a defendant who had sent a threatening letter directly to the object of his threat, under a plain reading of the statute, receipt of a threatening communication by a family member of the person threatened, which is what occurred in th'e present case, would also fulfill the second prong of Wise’s two-part definition of “sending.”

Our research has failed to uncover any Florida case discussing whether posting a message on one’s personal Facebook page can constitute a “sending” for purposes of section 836.10. The existing Florida case law defining “sending” under the statute, however, is applicable to the instant appeal even though the communication here involves a form of electronic communication. As noted above, the statute expressly applies to “electronic communication.” Here, appellant composed a threat to kill or do serious bodily injury to the victims. Consequently, resolution of this appeal turns on the question of whether appellant “sent” the threatening message by posting it on his personal Face-book page.

Appellant argues that, by posting his message on his personal Facebook page, he, at most, published the message, which is not a violation of the statute. Appellant contends that he “sent” nothing because he neither asked anyone to view the posting on his personal Facebook page, nor addressed the posting to anyone, as would be the case with a letter or email. However, a common sense review of the facts suggests that appellant has done more than he contends.

When a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step in the Wise court’s definition of “sending.” When the threatened individual, or a family member of the threatened individual, views and receives the thoughts made available by the composer, the second step in the Wise definition is completed. At that point, the statement is “sent” for purposes of section 836.10. Further, Internet technologies “generally do not involve communications sent directly to another. Rather, communications are posted for the whole world to see, or, in a closed network for a particular community to see, such as a community of ‘Facebook friends.’ ” Jacqueline D. Lipton, Combating Cyber-Victimization, 26 Berkeley Tech. L.J. 1103, 1127-28 (2011) (footnote omitted).

Here, appellant reduced his thoughts to writing and placed this written composition onto his personal Facebook page. In so doing, the posting was available for viewing to all of appellant’s Facebook “friends.” With respect to the posting in question, appellant had requested Michael O’Leary to be appellant’s Facebook friend, a request that Michael accepted. By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume that appellant wished to communicate that information to all of his Facebook friends. Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Fa-cebook users. Had appellant desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant “sent” the threatening statements to all of his Fa-cebook friends, including Michael. Michael received the composition by viewing it. As the trial court correctly ruled, at that point appellant’s violation of section 836.10 was complete, because the target of the threatening composition was a relative of the recipient.

In summary, we hold that the State made out a prima facie case against appellant by submitting facts showing that appellant composed a threat to kill or do serious bodily injury, sent that communication to another, in this case Michael O’Leary, and the communication threatened a member of the recipient’s family. See Wise, 664 So.2d at 1030. Accordingly, we AFFIRM the trial court’s denial of appellant’s motion to dismiss.

LEWIS and SWANSON, JJ., concur.

      . Facebook is a social networking service and website whose mission is “to give people the power to share and make the world more open and connected.” Users who register for an account at the site obtain a Facebook "page” on which they can create a personal "profile” with photographs, a list of interests, and birthday, contact, and other personal information. Users can then invite other Face-book users to become their Facebook "friends,” people who are then part of the user’s own social network. Jason Mazzone, Facebook's Afterlife, 90 N.C. Law Rev. 16431645-46 (2012) (quoting Facebook: About, Facebook, https://www.facebook.com/ facebook?sk=info (last visited Feb. 25, 2013)).

      . In pertinent part, the posting identified the relative and her partner by name and stated that "FUCK my [relative] for choosin to be a lesbian and fuck [the partner] cuz you’re an ugly ass bitch ... if you ever talk to me like you got a set of nuts between your legs again ... I'm gonna fuck you up and bury your bitch ass. U wanna act like a man. I'll tear the concrete up with your face and drag you back to your doorstep. U better watch how the fuck you talk to people. You were born a woman and you better stay one.”

      . The State dropped the second count.

      . After sentencing, appellant filed a motion to correct sentence. The trial court granted the motion and lowered the length of the community control portion of the sentence from five years to two years.

      .Other jurisdictions have applied statutes similar to section 836.10 to electronic communications posted on a social networking website. See Holcomb v. Commonwealth, 58 Va.App. 339, 709 S.E.2d 711, 714-16 (2011) (affirming Holcomb's conviction for knowingly communicating a written threat in violation of section 18.2-60(A)(1), Va. Code, by posting the threat on his MySpace profile).


text:
    Maggie Jo HILLIARD, Esq. and the Law Office of Maggie Jo Hilliard, P.A., Petitioners, v. STATE of Florida, Respondent.
    No. 1D13-0217.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Maggie Hilliard, Esquire of Maggie Jo Hilliard, P.A., Atlantic Beach, for Petitioners.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of an order denying her motion to disqualify the trial judge. Her sole basis for relief is her assertion that the order was untimely because it was issued beyond the 30-day time period specified in Rule 2.330(j), Florida Rules of Judicial Administration. The merits of the disqualification motion itself are not at issue.

Petitioner served her motion on the trial judge on November 21, 2012, seeking disqualification under Rule 2.330(j), which provides:

The [trial] judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Fla. R. Jud. Admin. 2.330(j). After more than 30 days had passed, petitioner filed a motion for case reassignment on December 27, 2012. On January 2, 2013, the trial judge denied both the motion for case reassignment and the motion for disqualification.

The Florida Supreme Court and other district courts have applied the 30 days rule strictly. If a trial judge does not rule on a motion to disqualify within the requisite 30 days, the motion “shall be deemed granted” by operation of Rule 2.330(j) thereby entitling the movant to seek reassignment of the case. See Tableau Fine Art Group, Inc. v. Jacoboni 853 So.2d 299, 302-03 (Fla.2003) (holding that “a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 [now Rule 2.330] must be ruled on within thirty days following its presentation to the court.”); Schisler v. State, 958 So.2d 503, 505 (Fla. 3d DCA 2007) (“The trial court’s failure to rule on [movant’s] motion within 30 days of its service therefore entitles [movant] to an order directing the clerk of the court to reassign this case.”). The strictness of the 30-day limit in Rule 2.330(j) is reflected in Schisler, where the trial court’s order issued just one day late. 958 So.2d at 504. Nonetheless, it was deemed untimely. Of Lightsey v. State, 53 So.3d 1093, 1093 (Fla. 1st DCA 2011) (order issued “several months” late). In addition, courts have noted that the “burden is on the court, not the litigants, to assure a determination” within that time period. Id.; see Tableau Fine Art Group, 853 So.2d at 302-03. As an example, in Schisler the Third District granted relief under the rule even though the movant’s counsel had “acquiesced in having the motion set for hearing outside the 30 day time frame.” 958 So.2d at 504 (footnote omitted).

Because petitioner’s disqualification motion was not ruled upon •within the requisite 30 days it is deemed to have been granted under Rule 2.330(j) thereby warranting mandamus relief. The order under review is quashed and this matter is remanded for entry of an order directing that this case be reassigned.

PETITION GRANTED.

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


author: SHEPHERD, J.

text:
    SOUTH BEACH MORTGAGE AND INVESTMENT CORPORATION, etc., Appellant, v. Alan W. LEVINE, et al., and ANV Investment Group, LLC, Appellees.
    No. 3D11-3207.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.

      Arthur J. Morburger; Wendi R. Rosen, for appellant.
    Stanley Jay Bartel (The Villages), for appellee, ANV Investment Group.
    Before SHEPHERD and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This appeal concerns a dispute over $21,000, which was deposited with the clerk of the court to stay the disbursal of proceeds from a judicial sale pending resolution of objections to the sale. We reverse and remand with instructions.

ANV Investment Group, LLC was the highest bidder at a judicial sale held pursuant to a foreclosure judgment in favor of South Beach Mortgage and Investment Corp. Before the clerk could issue the certificate of title and disburse the proceeds to the judgment creditor, ANV Investment objected to the sale. Subsequently, ANV Investment also moved to vacate the underlying foreclosure judgment. The trial court ordered ANV Investment to post a bond of $21,000 to stay disbursal of the sales proceeds, and ANV Investment deposited that amount with the clerk on September 9, 2009.

ANV Investment initially appealed from the trial court’s March 18, 2009, order overruling its objections to the sale, and this court dismissed the appeal. The trial court then heard and denied ANV Investment’s motion to vacate the foreclosure judgment on September 24, 2009. On October 9, 2009, the trial court ordered the clerk of the court to immediately issue a certificate of title and disburse the sale proceeds to South Beach Mortgage. The trial court’s order directed that South Beach Mortgage be paid the sales proceeds, together “with interest from the date of the sale through the date of payment at the statutory rate.” On October 16, 2009, a few weeks before ANV Investment filed its second notice of appeal, this time from the order denying the motion to vacate, the clerk paid South Beach Mortgage the sales proceeds. The clerk, however, retained the $21,000.

This court ultimately affirmed the trial court’s denial of the motion to vacate, and, upon remand, both ANV Investment and South Beach Mortgage claimed entitlement to the $21,000. ANV Investment argued the funds represented a cash su-persedeas bond, which must be returned in full because the sales proceeds were disbursed to South Beach Mortgage before the appeal was completed. South Beach Mortgage, on the other hand, contended it is entitled to disbursal from these funds of the interest awarded in the October 9, 2009, order. The trial court agreed with ANV Investment, ordering the clerk to pay the full amount to ANV Investment. For the following reasons, we conclude South Beach Mortgage is entitled to disbursal from the $21,000 of interest for the delay occasioned by ANV Investment’s motion to vacate the judgment, but not for resolving the objections.

In deciding this case, we must consider Section 45.031, Florida Statutes (2009), which governs judicial sales, and Florida Rule of Appellate Procedure 9.310, which addresses supersedeas bonds. Section 45.031(8) states in pertinent part: “Any party may serve an objection to the amount of the bid within 10 days after the clerk files the certificate of sale. If timely objections to the bid are served, the objections shall be heard by the court.” See also Nelson v. Santoro, 570 So.2d 1374 (Fla. 1st DCA 1990). The statute does not require payment of interest to reimburse the judgment creditor for any delay in disbursing the sales proceeds while the court considers the objections.

Rule 9.310, on the other hand, provides for posting of “a good and sufficient bond” to stay execution of an order pending appeal. This bond is intended to ensure the appellant pays or complies with the order in full, including interest and damages for delay if the review is dismissed or the order affirmed. See Wilson v. Woodward, 602 So.2d 545 (Fla. 2d DCA 1991).

Accordingly, South Beach Mortgage would not be entitled to interest for the time the funds were held while the trial court ruled on ANV Investment’s objections to the sale. South Beach Mortgage, however, would be entitled to interest for the time the funds were held during appellate review of ANV Investment’s motion to vacate the judgment, regardless of when the stay bond was posted. Thus, South Beach Mortgage is entitled to interest from March 17, 2009, when the trial court overruled ANV Investment’s objections to the sale, to October 16, 2009, when the clerk disbursed the sales proceeds to South Beach Mortgage. On remand, the trial court should calculate the interest for this period, and direct this amount to be disbursed from the $21,000 bond to South Beach Mortgage, with the remainder refunded to ANV Investment.

Reversed and remanded with instructions.

      . ANV Investment was joined by a tenant, who is not a party to this appeal.


text:
    Jumaine JONES, Appellant, v. MASSIMO RIZZO, L.L.C, etc., Appellee.
    No. 3D12-495.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Wolfe Law Miami, and Richard C. Wolfe and Darren A. Heitner, Miami, for appellant.
    Antonio G. Hernandez, Coral Gables, for appellee.

      Before SHEPHERD, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

In contravention of the well-settled requirement for asserting excusable neglect, Appellant’s motion to set aside the final judgment in this case was unsupported by sworn statements or affidavits. See Chase Home Loans, LLC, v. Sosa, 104 So.3d 1240, 1240 (Fla. 3d DCA 2012) (“[A]s we often have said, unsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.”); see also Lederman v. Shore, 707 So.2d 1134, 1135 (Fla. 4th DCA 1998) (rejecting affidavits not made under oath). For this reason, we affirm.

Affirmed.

FERNANDEZ, J., concurs in result only.


text:
    Clinton MOBLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-856.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Carlos J. Martinez, Public Defender, and Michael Mayer, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Public Defender, for appellee.
    Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. State, — So.3d-(Fla.2013); Taylor v. State, 444 So.2d 931 (Fla.1983).


text:
    Jevon Junior RIVERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-107.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Jevon Junior Rivers, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (holding that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively); Hernandez v. State, — So.3d -(Fla.2012) (same).


text:
    Welbin Ramon HURTADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-192.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Welbin Ramon Hurtado, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (holding that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively); Hernandez v. State, — So.3d -(Fla.2012) (same).


author: WELLS, Chief Judge.

text:
    Efrain GALVEZ and Nancy Martin, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 3D12-2345.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Efrain Galvez and Nancy Martin, in proper person.
    Bradley Arant Boult Cummings LLP, Marc James Ayers and Mary Ann Couch, for appellee.
    Before WELLS, C.J., and SUAREZ and EMAS, JJ.
   WELLS, Chief Judge.

Efrain Galvez and Nancy Martin appeal the order dismissing with prejudice their action which alleged a fraudulent foreclosure occurring some four years earlier. We treat the instant appeal as a denial of relief under Florida Rule of Civil procedure 1.540(b), and affirm. See Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010).

Affirmed.

      . In fact, appellants' Second Amended Complaint specifically states that it is filed under Florida Rule of Civil Procedure 1.540(b).


text:
    STATE of Florida, Appellant, v. Shanna Marie HOLBROOK, Appellee.
    No. 5D12-2210.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State of Florida appeals the sentence imposed on Shanna Marie Holbrook, contending that the sentence is illegal because it failed to include any statutorily required sanctions for a first Driving Under the Influence with Alcohol Level.15 or Higher offense. Holbrook concedes that the sentence is in error. Accordingly, we reverse and remand for resentencing.

REVERSED and REMANDED.

SAWAYA, PALMER and EVANDER, JJ., concur.

      . See § 316.193(4), Fla. Stat. (2012).


text:
    Algie SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4129.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    Algie Scott, Sneads, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying Petitioner’s motion for post conviction relief, filed June 18, 2012, in Case Number 2008-307-CF-52, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, TORPY and JACOBUS, JJ., concur.


text:
    Robert E. DONNELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-413.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    Julian T. Kemp, Longwood, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence resulting from the violation of the appellant’s probation, in case no. 2011-CF-000183-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Jarbis Cardell McCLURKIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-496.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    Jarbis Cardell McClurkin, Crawford-ville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying his motion for post conviction relief in Case No.2010-30927-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and JACOBUS, JJ., concur.


author: GRIFFIN, J.

text:
    Demetric McMILLON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4410.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

On May 12, 2011, the State charged Demetric McMillon [“McMillon”] with delivery of cocaine in violation of Florida Statutes section 893.03(2)(a)(4) (2011). After a trial, a jury found him guilty as charged, and the court sentenced him to ten years in the Department of Corrections [“DOC”].

Prior to trial, McMillon filed a motion to compel the identity of the State’s confidential informant, who allegedly purchased cocaine from him. During trial, McMillon relied on misidentification as his theory of defense. The confidential informant testified and described the events of the buy to the jury. In a photo lineup shown to the informant immediately after the transaction, he identified McMillon as the person who sold the cocaine.

The jury found McMillon guilty of delivery of cocaine. The court proceeded immediately to sentencing. McMillon’s attorney argued for a sentence at the bottom range of the guidelines, arguing, essentially, that this was not an “egregious” drug case. The court replied:

Well, other than you’ve exposed a confidential informant’s identity and now he’s at risk. He lives here in Kissimmee. I mean, that — that’s huge. That now that person is walking around has testified against this convicted felon. So I — understand that, but I know everyone’s entitled to a trial, but when you — when a person has to — is now at risk because they’re a confidential informant that— that definitely makes it a little more egregious than the standard sale and delivery that we see in this courtroom.

The court then sentenced McMillon to ten years in the DOC. The sentence was well within the range allowed in the punishment code. The scoresheet provided for a sentencing range of 29.25 months imprisonment to 15 years imprisonment. In asking for a ten-year sentence, the prosecutor described McMillon’s criminal history as “horrendous.” He had done nine years in prison for manslaughter and had multiple sale and delivery of cocaine convictions. He had never successfully completed a term of probation.

McMillon contends on appeal that it is improper for a trial court to enhance a defendant’s sentence because he exercised the right to have a confidential informant identified. We agree with this proposition. A defendant has a right to confront the witnesses against him, and he cannot be penalized for exercising his right to a trial to determine his guilt or innocence. The trial court judge’s statement in this case was a response to McMillon’s contention that there was nothing “egregious” about the case. Nothing in this record, however, suggests that the trial court’s sentencing decision was affected by McMillon’s exercise of his rights.

AFFIRMED.

COHEN and BERGER, JJ„ concur.


text:
    Mark Eric OSTERBACK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3568.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    Mark E. Osterback, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

After affirming the order dismissing Mark Eric Osterback’s latest rule 3.850 motion for postconviction relief based on newly discovered evidence, this court issued an order directing Osterback to show cause why he should not be barred from further pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Osterback filed a response and a motion for rehearing, asserting that his latest appeal possessed merit and that this court overlooked or misapprehended several issues. However, as this is Osterback’s fifth meritless pro se postconviction appeal in this court attacking his judgment or sentence in Seminole County Case No. 88-3408-CFA, we conclude that Osterback is abusing the judicial process and should be barred from further pro se filings.

We now prohibit Mark Eric Osterback from filing with this court any more pro se petitions or appeals concerning Seminole County Case No. 88-3408-CFA. The clerk of this court is directed not to accept any further pro se papers from Osterback that violate this prohibition. Any additional petitions or notices of appeal regarding this case will be accepted only if signed by a member in good standing of The Florida Bar. See Floyd v. State, 62 So.3d 1228 (Fla. 5th DCA 2011).

Future pro se filings PROHIBITED; CERTIFIED opinion forwarded to Department of Corrections.

PALMER, LAWSON and EVANDER, JJ., concur.


text:
    Robert D. DIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0021.
    District Court of Appeal of Florida, First District.
    March 27, 2013.
    Robert D. Dixon, 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.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Michael KENNEDY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1163.
    District Court of Appeal of Florida, First District.
    March 27, 2013.
    Michael Kennedy, 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.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Kevin CANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1127.
    District Court of Appeal of Florida, First District.
    March 27, 2013.
    Kevin Candler, 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.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    John O. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1117.
    District Court of Appeal of Florida, First District.
    March 27, 2013.
    John 0. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Tyrone WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1008.
    District Court of Appeal of Florida, First District.
    March 27, 2013.
    Tyrone Williams, 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.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Mario Emilio FERNANDEZ-BALART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-506.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.
    Mario Emilio Fernandez-Balart, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before WELLS, C.J. and SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), approved, — So.3d - (Fla. 2012); see also Chaidez v. U.S., 133 S.Ct. 1103 (2013) (confirming that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively).


text:
    The STATE of Florida, Appellant, v. Daniel RODRIGUEZ, Appellee.
    No. 3D12-808.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellee.
    Before WELLS, C.J., and LAGOA and LOGUE, JJ.
   PER CURIAM.

Affirmed. See State v. Calvert, 15 So.3d 946 (Fla. 4th DCA 2009).