author: PER CURIAM. GROSS, J.,

text:
    METNICK & LEVY, P.A., Appellant, v. Barbara SEULING and Law Offices of Anthony J. Pirrotti, P.C., Appellees.
    No. 4D12-3055.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.
    Rehearing Denied Nov. 12, 2013.

      Peter A. Dyson of Metnick, Levy & Dyson, Delray Beach, for appellant.
    Anthony J. Pirrotti of Law Offices of Anthony J. Pirrotti, P.C., Ardsley, New York for appellee, Law Offices of Anthony J. Pirrotti, P.C.
   PER CURIAM.

The primary question in this case is one of personal jurisdiction. The circuit court dismissed the case against two defendants. We reverse as to one defendant, holding that the record reflects adequate long-arm jurisdiction over a breach of contract claim; we affirm as to a second defendant who was sued for tortious interference with a contract, because the complaint below failed to demonstrate the existence of long-arm jurisdiction.

Barbara Seuling, a New York resident, was seriously injured in an automobile accident in Vermont by a Vermont resident who was driving while intoxicated. Based on a referral from her niece, Seuling retained appellant, a law firm, to represent her; a member of the law firm is admitted to the New York bar. After Seuling made telephone contact with the law firm, a paralegal from the firm sent her a retainer agreement, which she signed and returned to appellant’s office in Delray Beach, Florida.

The law firm negotiated with Liberty Mutual Fire Insurance Company and the company agreed to settle the case at its policy limit of $100,000. Since Seuling was unhappy that her recovery would be reduced by the law firm’s fee and costs, and a Medicare lien, she refused to sign the law firm’s release and instead hired New York attorney Anthony J. Pirrotti; Pirrot-ti, in turn, told the law firm that it had been discharged from Seuling’s case and that it would be entitled to “quantum me-ruit” for services performed. Seuling then settled the case with Liberty Mutual and promised that she “would hold Liberty Mutual harmless for any fees owed to” the law firm.

In Florida, the law firm sued Seul-ing for breach of contract and Pirrotti for tortious interference with a contract. Seuling and Pirrotti moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and failure to state a cause of action. At a hearing on the motions, Pirrotti appeared by telephone and argued that Seuling lacked sufficient minimum contacts with Florida to support personal jurisdiction over her; in response, the circuit judge then discussed this issue with the lawyers. Later, in a handwritten portion of an order on the motions, the court dismissed the case for “improper venue.”

Although the court’s order refers to “venue,” we believe that the primary basis for the court’s ruling was a lack of personal jurisdiction, an issue argued at the hearing and briefed on appeal.

If the court had personal jurisdiction over the defendants, then venue would have been proper. “Venue refers to the geographical area, that is, the county or district, wherein a cause may be heard or tried.” Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314, 315 (Fla. 1st DCA 1974). Where a defendant is a Florida resident, section 47.011, Florida Statutes (2012), dictates that a cause of action may be brought in a county “where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” However, section 47.011’s mandate does not apply to nonresidents. See id. (“This section shall not apply to actions against nonresidents.” (emphasis added)). As a result, “[b]y removing nonresidents from the scope of the legislatively created venue privilege, a nonresident over whom personal jurisdiction can be obtained consistent with constitutional considerations can, at a plaintiffs election, be sued in any county in this state, subject only to the doctrine of forum non conve-niens.” Holton v. Prosperity Bank of St. Augustine, 602 So.2d 659, 662 n. 2 (Fla. 5th DCA 1992). Thus, if the circuit court had personal jurisdiction over Seuling and Pirrotti, venue would have been proper in Palm Beach County, where the suit was filed.

Turning to the jurisdictional inquiry, in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), the Supreme Court established a two-step inquiry for determining whether a Florida court has personal jurisdiction over a nonresident. Under this procedure,

[a] court must first determine whether sufficient facts have been alleged to bring the action within the ambit of Florida’s long-arm statute. If the statute applies, the court must then determine whether there are sufficient “minimum contacts” on the part of the defendant to satisfy due process requirements.

Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011) (footnote omitted). The “minimum contacts” inquiry ensures compliance with due process requirements so that “maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) (internal quotations omitted).

Stated another way, to satisfy the minimum contacts requirement for purposes of personal jurisdiction a defendant’s contacts (1) must be related to the plaintiffs cause of action or have given rise to it, (2) must involve some act by which the defendant has purposefully availed itself of the privilege of conducting activities within the forum, and (3) the defendant’s contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there.

Corporacion Aero Angeles, S.A. v. Fernandez, 69 So.3d 295, 299 (Fla. 4th DCA 2011).

With respect to Seuling, the allegations of the complaint were sufficient to bring the case within the ambit of the long-arm statute. Under section 48.193(l)(g), Florida Statutes (2012), “a person submits himself to the jurisdiction of this state by ‘[b]reaching a contract in this state by failing to perform acts required by the contract to be performed in this state.’ ” Hartcourt Cos. v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th DCA 2002) (quoting § 48.193(l)(g), Fla. Stat. (1999)). “Failure to pay a contractual debt where payment is due to be made in Florida is sufficient to satisfy Florida’s long-arm provision that refers to contractual acts ‘required’ to be performed in Florida.” Global Satellite Commc’n Co. v. Sudline, 849 So.2d 466, 468 (Fla. 4th DCA 2003). “[W]hen a written contract fails to specify the place where payments are to be made, a cause of action for failure to pay is properly brought in the county where the plaintiff has its principal place of business.” Sunshine Yacht Sales, Inc. v. Bob Anslow Yacht Sales, Inc., 669 So.2d 342, 344 (Fla. 3d DCA 1996) (quoting Ryan v. Mobile Commc’ns Enters., Inc., 594 So.2d 845, 846 (Fla. 2d DCA 1992)).

Here, “[s]ince no place of payment was specifically designated, the effect of the contract [i]s that the place of payment [i]s the Florida office” of the law firm, placing Seuling within the ambit of Florida’s long-arm statute. Armaly v. Practice Mgmt. Assocs., Inc., 533 So.2d 920, 921 (Fla. 2d DCA 1988); see, e.g., Michael Schiffrin & Assocs., P.A. v. Koraly, 957 So.2d 655, 658 (Fla. 3d DCA 2007) (holding that where defendant/client failed to pay a contingency fee, and the agreement does not specify the location of payment, venue is proper at the plaintiff/law firm’s principal place of business).

Having concluded that, as to Seuling, the complaint alleged sufficient facts to bring the action within the ambit of the long-arm statute, we turn next to the minimum contacts aspect of the Venetian Salami analysis. “Even where there is facial jurisdiction under the Florida long arm statute, the party over which jurisdiction is asserted must have had sufficient minimum contacts with Florida to satisfy due process requirements.” Lakewood, Pipe of Texas, Inc. v. Rubaii, 379 So.2d 475, 477 (Fla. 2d DCA 1979) (citing Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir.1975); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977)). “It is not enough that a foreign defendant merely contract with a Florida resident.” Wash. Capital Corp. v. Milandco, Ltd., 695 So.2d 838, 841 (Fla. 4th DCA 1997); see, e.g., Osborn v. Univ. Soc’y, Inc., 378 So.2d 873, 874 (Fla. 2d DCA 1979) (contract with Florida resident to furnish consulting services in an unspecified location insufficient to establish personal jurisdiction). Rather, the plaintiff must demonstrate that the “defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida’s courts.” Hilltopper Holding Corp. v. Estate of Cutchin, 955 So.2d 598, 601 (Fla. 2d DCA 2007) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1141 (Fla. 2d DCA 2006)).

While the mere act of contracting in the forum state is insufficient to satisfy due process, Aluminator Trailers, L.L.C. v. Loadmaster Aluminum Boat Trailers, Inc., 832 So.2d 822, 823 (Fla. 2d DCA 2002), “the exercise of jurisdiction may be proper where [the] out-of-state defendant enters into a contract with a forum-state party ‘for substantial services to be performed in Florida.’ ” EOS Transport Inc. v. Agri-Source Fuels LLC, 37 So.3d 349, 354 (Fla. 1st DCA 2010) (quoting Bohlander v. Robert Dean Assocs. Yacht Brokerage, Inc., 920 So.2d 1226, 1228 (Fla. 3d DCA 2006)).

For example, in Tallmadge v. Mortgage Finance Group, Inc., 625 So.2d 1313 (Fla. 4th DCA 1993), this Court found a California resident to have exhibited sufficient “minimum contacts” to satisfy due process after he contracted with a Florida mortgage broker to obtain refinancing of a mortgage on his California property, and then sent a loan application, check, and brokerage contract to the plaintiffs Florida office. Upon this backdrop, we held that “[requiring [the defendant] to answer [the plaintiffs] claims d[id] not offend traditional notions of fair play and substantial justice” since it was “reasonable to conclude that a party hiring an agent under these circumstances would expect to be haled into court in this state on a breach of contract claim for nonpayment.” Id. at 1314; cf. Offer v. Arison, 671 So.2d 193, 193-94 (Fla. 4th DCA 1996) (due process satisfied where Georgia resident initiated contact with a Florida broker “to inquire about purchasing a yacht located in Florida”); Stomar, Inc. v. Lucky Seven Riverboat Co., 821 So.2d 1183, 1187 (Fla. 4th DCA 2002) (sufficient minimum contacts where the defendant was not only obligated to make payment in Florida but also “hired plaintiff to perform brokerage services on its behalf in Florida” for the purpose of selling the defendant’s vessel in Florida).

Applying Tallmadge, Offer, and Stomar, Seuling had sufficient minimum contacts with Florida because she voluntarily contracted with a law firm in this state to perform services on her behalf. The retention of the law firm’s services to represent her on an out-of-state automobile accident is akin to the contract in Tallmadge, where a Florida mortgage broker was retained to secure a mortgage for California property.

As to the lawyer, Pirrotti, under the first step in the Venetian Salami analysis, there was no basis for long-arm jurisdiction because the complaint did not sufficiently allege that he committed a tortious act within Florida.

Under section 48.193(l)(b), Florida Statutes (2012), long-arm jurisdiction may be exercised where the “cause of action aris[es] from ... [committing a tortious act within this state.” See Arch Aluminum & Glass Co. v. Haney, 964 So.2d 228, 236 (Fla. 4th DCA 2007). “For purposes of this subsection, a defendant need not be physically present in Florida in order to ‘commit a tortious act’ in the state.” Telesur v. DOT (SR), Inc., 100 So.3d 1232, 1235 (Fla. 2d DCA 2012) (citing Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002)). Indeed, jurisdiction may be conferred “through the nonresident defendant’s telephonic, electronic, or written communications into Florida” so long as “the cause of action ... arise[s] from the communications.” Wendt, 822 So.2d at 1260.

The wording of section 48.193(l)(b) links jurisdiction to the “arising” of a cause of action from a defendant’s commission of tortious acts in Florida. This language necessarily focuses analysis not on where a plaintiff ultimately felt damages, but where a defendant’s tortious conduct occurred. Here, the actions giving rise to the tortious interference claim occurred in New York, where Pirrotti allegedly convinced Seuling to breach her contract.

This conclusion finds support in Freedom Savings & Loan Ass’n v. Ormandy & Associates, Inc., 479 So.2d 316, 317 (Fla. 5th DCA 1985), which held that a defendant’s conduct in Pennsylvania did not confer jurisdiction over the defendant for tortious interference with a Florida business relationship. In Ormandy, the defendant, a Pennsylvania resident, assisted the plaintiff in obtaining a loan from a Florida bank by guaranteeing a letter of credit issued by a Pennsylvania bank to the Florida bank. Id. at 316. After the defendant later “told the Pennsylvania bank to withdraw” the letter of credit, the plaintiff sued the defendant for tortiously interfering with its business relationship with the Florida bank. Id. at 317. Given these circumstances, the fifth district held that there was no jurisdiction under section 48.193(l)(b) because the revocation of the letter of credit, “[t]he only act which might be deemed tortious[,] ... occurred in Pennsylvania, not Florida.” Id.; see also Telesur, 100 So.3d at 1236 (holding that, for a claim of tortious interference with a business relationship, the plaintiff Florida corporation failed to establish long-arm jurisdiction where it did not allege “that the business relationships with which [the defendant] allegedly interfered were based in Florida”); PK Computers, Inc. v. Indep. Travel Agencies of Am., Inc., 656 So.2d 254, 255 (Fla. 4th DCA 1995) (recognizing that for there to be jurisdiction over a tortious interference claim under section 48.193(b), the interference must occur within the state or arise from oral statements directed at listeners within the state); Hunt v. Cornerstone Golf, Inc., 949 So.2d 228, 230 (Fla. 4th DCA 2007) (holding that under section 48.193(l)(b) a tortious interference claim arose not in Florida, but in Washington, D.C. and Tennessee, where the defendant sent correspondence pertaining to an existing business relationship).

As alleged in the complaint, the acts giving rise to the tortious interference claim arose in New York, where Pirrotti convinced Seuling to breach her contract. That such action resulted in the breach of a Florida contract, and the loss of income to a Florida firm, is immaterial for the purpose of determining jurisdiction. Thus, since the complaint fails to allege acts that fall within the long-arm statute, the trial court properly dismissed the case against Pirrotti.

For these reasons we reverse the trial court’s dismissal of Seuling and remand for further proceedings. We affirm the dismissal of the Pirrotti law firm from the lawsuit.

Affirmed in part and reversed in part.

MAY and FORST, JJ., concur.

GROSS, J., concurs in part and dissents in part, with opinion.

GROSS, J.,

concurring in part and dissenting in part.

I concur in the affirmance of the dismissal against the Pirrotti law firm. However, I dissent in the reversal of the case against Barbara Seuling because the record fails to disclose that the law firm performed sufficient services in Florida to satisfy the minimum contacts requirement of personal jurisdiction.

The accident for which Seuling retained the law firm had nothing to do with Florida. The collision with a Vermont resident occurred in Vermont. Seuling is a New York resident. Her medical care occurred in New York. A member of the law firm is licensed to practice in New York. The law firm’s in-Florida work on her behalf was limited to telephone calls and correspondence. Under the circumstances presented, the law firm owed a “unique fiduciary duty” to its clients. Florida Bar v. Ward, 599 So.2d 650, 652 (Fla.1992). “The very nature of the practice of law requires that clients place their lives, their money, and their causes in the hands of their lawyers with a degree of blind trust that is paralleled in very few other economic relationships.” Florida Bar v. Dancu, 490 So.2d 40, 41 (Fla.1986). Applying these principles, Seuling should not reasonably have anticipated being haled into a Florida court to resolve a dispute with the law firm over its engagement; for her, Florida was a distant, difficult forum, advantageous only to the law firm, with no connection to the underlying facts of the case. Rather, under these circumstances, it would have been reasonable for the client to expect to litigate in her state of residence or in the forum where the underlying lawsuit might have been brought.

      . The law firm also sued Liberty Mutual for breach of a settlement agreement, but voluntarily dismissed that claim.

      . We reject the contention that we are without jurisdiction because the law firm’s appeal was untimely filed. The appeal was filed well after the dismissal of the complaint, but within 30 days of the denial of the law firm’s motion for rehearing. Because the order had the effect of dismissing the complaint for improper venue, the order may be characterized as a final order for which a motion for rehearing is authorized, thereby extending the date of rendition. See Bd. of Cnty. Comm’rs v. Grice, 438 So.2d 392, 393-94 (Fla.1983); Phillip J. Padovano, Florida Appellate Practice § 23.4, at 486 n. 11 (2010 ed.).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Felix A. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-685.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.
    Felix A. Smith, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Concerning the conversion of appellant’s drug offender probation to regular probation with special conditions, see Smith v. State, 71 So.3d 246 (Fla. 4th DCA 2011), the trial court’s order on remand reflects it already has undertaken to order a resentencing hearing, but appellant argues the hearing has not yet been set. As to that ground, his remedy is to bring the matter to the trial court’s attention, requesting a setting of the hearing, and then, if the trial court unreasonably delays thereafter, to file a petition for writ of mandamus with this court. See generally Clark v. State, 908 So.2d 597 (Fla. 4th DCA 2005).

GROSS, TAYLOR and LEVINE, JJ., concur.


text:
    Lunick JANVIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1695.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.
    Lunick Janvier, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Lunick Janvier appeals the summary denial of his Rule 3.800(a) motion to correct illegal sentence. In his motion, Janvier challenged the constitutionality of his sentence of life without parole for the first degree murder he committed when he was 19 years old on the strength of Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We affirm.

The holding of Graham is inapplicable to this case as Janvier was not sentenced to life without parole for a non-homicide offense. Further, both Graham and Miller apply only to juvenile offenders, that is, those who were under the age of 18 at the time they committed the offense. Miller, 132 S.Ct. at 2460 (“We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’ ”); Graham, 130 S.Ct. at 2030 (“Because ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,’ those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime.”) (quoting Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)).

Article I, section 17, of the Florida Constitution provides:

The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United
States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution.

The trial court correctly concluded that the holdings of Graham and Miller do not apply in this case. To the extent Janvier asks this Court to expand these holdings to other “youthful offenders” under the age of 21, this Court is bound by the pronouncements of the Supreme Court of the United States.

Affirmed.

WARNER, GROSS and FORST, JJ., concur.


text:
    Elroy PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-1497, 4D13-1499, 4D13-1501.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.
    Elroy Phillips, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013); Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012); Perie v. State, 125 So.3d 973 (Fla. 2d DCA June 14, 2013).

STEVENSON, TAYLOR and CONNER, JJ., concur.


text:
    Hernando CAMERO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-1790.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.

      Hernando Camero, Indiantown, pro se.
    No response required for respondent.
   PER CURIAM.

We deny the petition for writ of habeas corpus filed by petitioner alleging appellate counsel was ineffective in prosecuting the appeal in Camero v. State, 103 So.3d 170 (Fla. 4th DCA 2012), because all five grounds raised here by petitioner lack merit, rendering counsel’s decision to reject these claims as proper for direct appeal effective assistance. See Barwick v. State, 88 So.3d 85, 108 (Fla.2011); Joseph v. State, 125 So.3d 1020 (Fla. 4th DCA 2013); Lamb v. McNeil, 41 So.3d 964, 965 (Fla. 4th DCA 2010), review denied, 55 So.3d 1287 (Fla.2011).

Petition Denied.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Laurie F. KONIECZKO, Appellant, v. Joseph W. VAUGHAN, III, et al., Appellee.
    No. 5D13-110.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2013.
    Rehearing Denied Nov. 12, 2013.
    Laurie Konieczko, Altamonte Springs, pro se.
    Diane H. Tutt of Conroy, Simberg, Ga-non, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee, Joseph Kirven, D.V.M.
    Vanessa J. Skinner of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park for Appellee, Veterinary Emergency Clinic of Central Florida, LLC.
    Brian D. Degailler of Quintairos, Prieto, Wood & Boyer, P.A., Orlando for Appel-lees, Joseph W. Vaughan, III, D.V.M., John E. Dyer, D.V.M. and Lake Mary Veterinary Clinic.
    Charles J.F. Schreiber, Jr. and Matthew G. Hawk of McConnaughhay, Duffy, Coon-rod, Pope & Weaver, P.A., Tallahassee, for Appellees, Daniel Hill, Daniel A. Hill, Daniel A. Hill, D.V.M., Daniel A. Hill, D.V.M., P.A., Underhill Animal Hospital and Un-derhill Animal Clinic.
    Betty D. Marion of Kubicki Draper, P.A., Ocala, for Appellee, Animal Emergency Center, Inc.
    Bryan W. Reynolds of Reynolds Parrino Spano, P.A., St. Petersburg, for Appellee, Kristin Mariash, D.V.M.
    Dina M. Contri of Sellars, Marion & Bachi, P.A., West Palm Beach, for Appel-lee, Susan Skelding, D.V.M.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.


author: GERBER, J.

text:
    REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, d/b/a All Service Refuse a foreign limited partnership, Appellant, v. WORKERS TEMPORARY STAFFING INC., a Florida corporation, Appellee.
    No. 4D12-3384.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Bart Cozad of Derrevere, Hawkes, Black & Cozad, West Palm Beach, for appellant.
    No appearance filed for appellee.
   GERBER, J.

The plaintiff appeals from a final order dismissing with prejudice its fifth amended complaint for breach of an indemnification contract. The plaintiff argues that its fifth amended complaint alleged sufficient ultimate facts to state a cause of action. We agree with the plaintiff. We reverse and remand for reinstatement of the fifth amended complaint.

We state the material facts as pled in the four corners of the fifth amended complaint and its attachment. See Edwards v. Landsman, 51 So.3d 1208, 1218 (Fla. 4th DCA 2011) (“In reviewing an order granting a motion to dismiss ... [a] court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.”) (internal quotations and citations omitted).

3. Plaintiff, REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, d/b/a ALL SERVICE REFUSE, is a subsidiary of Republic Services, Inc.
6. ... [The plaintiff] entered into a Staffing Services Agreement (“Staffing Agreement”) with [the defendant]. A copy of the aforementioned Staffing Agreement is attached hereto as Exhibit “A”.
7. The Staffing Agreement makes mention of an Employee List attached thereto ... [;] however ... the document attached to the Staffing Agreement as “Schedule B” ... was never used in the normal course of business between [the plaintiff] and [the defendant]. To the contrary, it was the customary practice of the parties to use an on-site vendor from [the defendant] to supply employees to [the plaintiff] subject to the terms of the Staffing Agreement. ...
8. ... [A] temporary employee provided by [the defendant], working as a helper on a truck operated by ... a full-time employee of [the plaintiff], illegally took control of [the plaintiffs] vehicle which thereafter caused significant injuries to [the plaintiffs] employee.
9. A claim was made against [the plaintiff] for the injuries incurred by [the plaintiffs] employee.
10. Pursuant to the terms of the Staffing Agreement, [the defendant] agreed to defend, indemnify and hold harmless [the plaintiff] for any claims made against [the plaintiff] which were caused by [the defendant’s] employees. See Exhibit “A”.
11. In accordance with the Staffing Agreement, [the plaintiff] tendered the claim made by its injured employee as well as the defense and a request for indemnity to [the defendant]. In response, [the defendant] refused to ... indemnify and hold [the plaintiff] harmless which caused and continues to cause [the plaintiff] significant damages.
12. At all times material, [the defendant] had full notice and an opportunity to defend [the plaintiff] and to participate in the claims brought and continued to be brought by [the plaintiffs] employee.
15. All of the conditions precedent to bringing this action have been performed or have otherwise been waived by the parties.
23. As a proximate result of [the defendant’s] breach of the Staffing Agreement, [the plaintiff! incurred and continues to incur significant damages.

The Staffing Agreement attached as Exhibit “A” to the fifth amended complaint provides, in pertinent part, as follows:

THIS AGREEMENT is made between [the defendant] and REPUBLIC SERVICES, INC .... or the subsidiary of Republic Services, Inc. identified on the signature page attached hereto (hereinafter referred to, collectively, as “Republic”).
2. [The defendant] agrees to employ those persons whose job descriptions are listed on Schedule [B] (“Employees”) and who are designated by [the defendant] and [the plaintiff] as being subject to the terms of this Agreement for [the defendant] and Republic.
9. Republic hereby agrees to pay [the defendant] a fee ... for services performed.... Said fee and the payment terms thereof are specified in the Fee Schedule A attached hereto, which is hereby made a part of this Agreement.
10. [The defendant] agrees to defend and indemnify [the plaintiff] and hold Republic harmless from any claims of whatever kind or nature made by the [defendant’s] Employees, third parties or anyone whomsoever resulting from any act, failure to act, conduct, or default of [the defendant’s] Employees, including, specifically and without limiting the generality of the foregoing, any and all claims, wages, benefits, penalties, attorneys fees, or other charges or expenses that may result or arise from [the defendant’s] default of any duties, obligations or responsibilities of [the defendant] under this Agreement.... [The defendant] agrees that if any claims are made against Republic by a person or such person’s beneficiaries or anyone otherwise entitled to recover damages or benefits from injuries ... arising out of and in the course of employment for any employee of [the defendant], that [the defendant] will indemnify, defend and hold Republic harmless from such claim or claims.
17. This Agreement shall be binding upon and inure to the benefit of Republic and [the defendant] and their respective successors, heirs, devisees, transferees, and assigns.
REPUBLIC SERVICES, INC.
For All Service Refuse — Broward Only
By: [s/General Manager]
[Defendant]
By: [s/ VP of Operations]

(italics added). Attached to the Staffing Agreement was a “Schedule A” entitled “FEE SCHEDULE [-] PAYMENT RATES AND PAYMENT TERMS.” The table underneath the title was blank. Also attached to the Staffing Agreement was a “Schedule B” entitled “NAMES OF CLIENT EMPLOYEES.” The table underneath that title also was blank.

The defendant filed a motion to dismiss the plaintiffs fifth amended complaint for failure to state a cause of action for breach of contract. The defendant, incorporating its prior motions to dismiss, raised two primary arguments: (1) the Staffing Agreement attached as Exhibit “A” to the fifth amended complaint is not a contract with the plaintiff “Republic Services of Florida Limited Partnership, d/b/a All Service Refuse,” but instead was a contract with “Republic Services, Inc.”; and (2) to the extent a contract existed with the plaintiff, the contract would apply only to the named employees listed on Schedule “B” to the contract, and no employees were named on Schedule “B” to the contract.

The court entered a final order granting the defendant’s motion to dismiss plaintiffs fifth amended complaint with prejudice.

This appeal ensued. The plaintiff argues that its fifth amended complaint overcame the primary arguments raised in the defendant’s motion to dismiss by alleging as follows:

3. Plaintiff, REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, d/b/a ALL SERVICE REFUSE, is a subsidiary of Republic Services, Inc.
7. The Staffing Agreement makes mention of an Employee List attached thereto ... [;] however ... the document attached to the Staffing Agreement as “Schedule B” ... was never used in the normal course of business between [the plaintiff] and [the defendant]. To the contrary, it was the customary practice of the parties to use an on-site vendor from [the defendant] to supply employees to [the plaintiff] subject to the terms of the Staffing Agreement. ...

Our review is de novo. See Newbold-Ferguson v. AMISUB (N. Ridge Hosp.), Inc., 85 So.3d 502, 504 (Fla. 4th DCA 2012) (“The issue of whether a complaint states a cause of action is an issue of law, reviewed de novo.”) (citation omitted). We must assume all allegations of the complaint are true and must draw all reasonable inferences arising therefrom in the plaintiff’s favor. See Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla.2009) (“For ... purposes of a motion to dismiss for failure to state a cause of action, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.”) (emphasis, citations, and quotations omitted).

We agree with the plaintiffs argument. First, while the attached contract shows an agreement between the defendant and a company called “Republic Services, Inc.,” it also extends coverage to Republic Services, Inc.’s subsidiary, referred to on the contract’s signature page as the plaintiff. Additionally, the fifth amended complaint alleged that the plaintiff was Republic Services, Inc.’s subsidiary, and that the plaintiff contracted with the defendant for temporary employment services. Thus, accepting the alleged facts as true, the plaintiff adequately pled that the defendant contracted with the plaintiff for temporary employment services.

Second, although Schedule “B” to the contract did not list the defendant’s employee who caused the injury (or any of the defendant’s employees), the contract requires the defendant to indemnify the plaintiff for claims which are caused by the defendant’s employees in general. Accepting the alleged facts as true, the defendant’s employee who caused the injury was subject to the contract’s terms. Thus, the plaintiff adequately pled that the defendant breached the contract by refusing to indemnify the plaintiff for the claim caused by the defendant’s employee.

Based on the foregoing, we reverse the circuit court’s final order dismissing with prejudice the plaintiffs fifth amended complaint. We remand for reinstatement of the fifth amended complaint and further proceedings consistent therewith.

Reversed and remanded.

WARNER and CIKLIN, JJ„ concur.


text:
    Tavaris D. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4751.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See McDuffie v. State, 970 So.2d 312, 323 n. 2 (Fla.2007); Cooper v. State, 45 So.3d 490, 494 (Fla. 4th DCA 2010) (affirming trial court’s exclusion of reverse Williams rule evidence where the “similar fact evidence” “was overly general and did not meet the ‘close similarity of facts, a unique or fingerprint type of information’ test for relevancy”); Neals v. State, 972 So.2d 1047, 1048 (Fla. 3d DCA 2008).

GROSS, MAY and FORST, JJ„ concur.


text:
    Brian BRAGDON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-3057.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for petitioner.
    No response required for respondent.
   PER CURIAM.

The petition for writ of prohibition or certiorari is denied based on State v. Hill, 95 So.3d 434, 435 (Fla. 4th DCA 2012), which holds that “the defendant’s crime of possession of a firearm by a convicted felon precludes him from seeking immunity under the Stand Your Ground law.” We certify that this decision expressly conflicts with Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013), on the issue of whether a defendant engaged in “unlawful activity” is precluded from claiming self defense immunity from prosecution.

Petition denied. Conflict certified.

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


text:
    Samuel SAPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2955.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Samuel Sapp, Century, pro se.
    No appearance for appellee.
   PER CURIAM.

Samuel Sapp has filed this petition for writ of certiorari timely challenging the trial court’s order summarily denying his latest motion for post-conviction relief. We have re-designated this to be an appeal of that order, and summarily affirm.

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


text:
    Mark FORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-866.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Mark Ford, Live Oak, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Because this is an appeal from appellant’s fourth motion to correct illegal sentence, and the motion raised many of the same sentencing challenges previously raised and rejected by the trial court, appellant is cautioned against filing future frivolous appeals or petitions in this court which collaterally challenge his sentences in these cases. Such conduct could result in sanctions from this court, including an order barring pro se pleadings or other filings under State v. Spencer, 751 So.2d 47 (Fla.1999), and/or referral to prison officials for consideration of disciplinary procedures which may include loss of gain time. See §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2012). See also Hudson v. State, 95 So.3d 413 (Fla. 4th DCA 2012).

TAYLOR, CONNER and FORST, JJ., concur.


text:
    Senaida ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-425.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirm. See Robinson v. State, 738 So.2d 898 (Fla.1979).

STEVENSON, MAY and GERBER, JJ., concur.


author: SILBERMAN, Judge.

text:
    Shawn Michael SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1794.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2013.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Shawn Michael Smith seeks review of his judgment and sentence for possession of a controlled substance and possession of paraphernalia. Smith argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence to establish his constructive possession of the controlled substance and paraphernalia. Smith also raises a challenge to the constitutionality of section 893.13, Florida Statutes (2010). We affirm in part and reverse in part.

The evidence presented at trial established that an officer conducted a traffic stop of a truck Smith was driving based on an expired tag. Smith was accompanied by a female passenger who was riding in the front seat. The officer approached the vehicle, explained the reason for the stop, and asked for Smith’s license and registration. Smith appeared nervous and began fumbling behind the visor that was located above his seat. The officer removed Smith and the passenger from the vehicle and placed Smith under arrest.

The officer then conducted an inventory search of Smith’s truck, which was littered with trash, and found contraband in three locations. The officer found a round blue pill on the driver’s side floorboard between the seat and the gas pedal. He found a second round blue pill on the floorboard of the center console. The pills were tested and identified as oxycodone, a controlled substance. And the officer found an eyeglass case containing syringes and a residue-covered spoon behind the driver’s visor. The residue was not tested or identified.

This court reviews the denial of Smith’s motion for judgment of acquittal de novo while viewing the facts in the light most favorable to the State. See Gizaw v. State, 71 So.3d 214, 217 (Fla. 2d DCA 2011). Because Smith was not in actual possession of the controlled substance or paraphernalia, the State was required to prove his constructive possession of these items. And to establish constructive possession, the State was required to prove that Smith had knowledge of the contraband and dominion and control over it. Id.

If the area where the contraband was found was in Smith’s exclusive possession, then we could infer knowledge and control. See id. In this case, however, Smith was traveling with a female passenger. Thus, knowledge and control over the areas accessible to the passenger cannot be inferred but must be proven by independent proof. Mere proximity to the contraband is insufficient in itself to meet this burden. Id. at 218.

Smith’s repeated fumbling with the items behind the visor and his nervous appearance provide independent proof of Smith’s knowledge and control over the paraphernalia. See Meme v. State, 72 So.3d 254, 256-57 (Fla. 4th DCA 2011) (holding that, whether considered as an actual or constructive possession case, the State presented sufficient evidence of the defendant’s possession of cocaine in a jointly-occupied vehicle because it was found in a container under the front seat where the defendant, who was acting nervous, had been reaching prior to the stop). Accordingly, the State established Smith’s constructive possession of the paraphernalia, and we affirm that conviction.

As for the oxycodone pills, the fact that the pills were in plain view on the floor of the vehicle near Smith’s feet, even among the litter in the vehicle, established Smith’s knowledge. See Jiles v. State, 984 So.2d 622, 628 (Fla. 2d DCA 2008) (“[T]he location of contraband in plain view of the defendant is sufficient to establish the knowledge element of constructive possession.”). However, the concept of dominion and control is separate from that of knowledge. Martoral v. State, 946 So.2d 1240, 1248 (Fla. 4th DCA 2007). And it requires “more than the mere ability of the defendant to reach out and touch the item of contraband.” Id.

The only evidence suggestive of Smith’s dominion and control over the oxycodone pills was his nervousness upon being stopped. However, nervousness itself does not provide legally sufficient evidence of dominion or control because it could be attributed to the fact that Smith’s vehicle had been stopped or that he was in possession of the paraphernalia. See Hill v. State, 736 So.2d 133, 134 (Fla. 1st DCA 1999). Accordingly, there was insufficient evidence to sustain Smith’s conviction for possession of a controlled substance. See Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006) (holding that the State did not prove the driver’s constructive possession of a pipe found on the driver’s floorboard of his jointly-occupied vehicle because there was no evidence of dominion and control aside from the driver’s mere proximity to the pipe); Cruz v. State, 744 So.2d 568, 569 (Fla. 2d DCA 1999) (same).

As for Smith’s constitutionality challenge to section 893.13, this argument has been rejected by the supreme court in State v. Adkins, 96 So.3d 412 (Fla.2012), and the Eleventh Circuit Court of Appeals in Shelton v. Secretary, Department of Corrections, 691 F.3d 1348 (11th Cir.2012), cert. denied sub nom, Shelton v. Crews, — U.S. -, 133 S.Ct. 1856, 185 L.Ed.2d 822 (2013). We therefore affirm Smith’s conviction for possession of paraphernalia and reverse Smith’s conviction for possession of a controlled substance.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, JJ., Concur.

      . Although not addressed at trial, the record reflects that the officer arrested Smith for driving while license suspended.

      . The State does not specifically argue that Smith had actual possession of the paraphernalia though it suggests that the paraphernalia was within Smith’s "zone.” In light of our disposition upholding the paraphernalia conviction, we limit our analysis to constructive possession.


author: MORRIS, Judge.

text:
    Edison Lewis ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5414.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2013.
    Edison Lewis Adams, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Edison Lewis Adams appeals the post-conviction court’s order denying his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We reverse because the record demonstrates that Adams did not meet the criteria for sexual predator designation under section 775.21, Florida Statutes (2007). The State concedes error.

Adams was convicted of two counts of unlawful sexual activity with a minor, a second-degree felony under section 794.05, Florida Statutes (2007). A defendant must be designated a sexual predator if he was either convicted of an enumerated capital, life, or first-degree felony, § 775.21(4)(a)(l)(a), or if he was convicted of an enumerated offense and was previously convicted of or pleaded guilty or no contest to (regardless of adjudication) an enumerated offense, § 775.21(4)(a)(l)(b). Unlawful sexual activity with a minor is an enumerated offense under section 775.21(4)(a)(l)(b). To qualify as a prior felony under this section,

the felony must have resulted in a conviction sentenced separatelyü or an adjudication of delinquency entered separately!] prior to the current offense and sentenced or adjudicated separately from any other felony conviction that is to be counted as a prior felony regardless of the date of offense of the prior felony.

§ 775.21(4)(b).

Adams does not meet the requirements to be designated a sexual predator because he was convicted of a second-degree felony and he has not previously pleaded to or been convicted of an enumerated offense.

Accordingly, we reverse the postconviction court’s order denying Adams’ motion to correct an illegal sentence and remand with directions for the court to vacate its order designating him a sexual predator.

Reversed and remanded with instructions.

VILLANTI and KHOUZAM, JJ., Concur.


text:
    G.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3585.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2013.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

G.B. appeals the order withholding adjudication of delinquency and placing him on juvenile probation for the offense of first-degree petit theft. He contends that because the State failed to prove the value of the stolen property the offense should be reduced to second-degree petit theft. Based on Marrero v. State, 71 So.3d 881 (Fla.2011), we must reverse the order and remand for the trial court to reduce the offense to second-degree petit theft.

The delinquency petition alleged that G.B. committed grand theft of property valued at $300 or more but less than $5000. See § 812.014(2)(c)(l), Fla. Stat. (2010). At the adjudicatory hearing, the State established that G.B. stole two laptop computers that were assigned to teachers at his middle school. The school principal testified that Hillsborough County purchased the laptops for between $1100 to $1500. Later she stated that the cost was between $800 and $1500. She believed that the stolen laptops were “[p]rob-ably no more than two-to-three years old at the most,” but she then added that they could have been older. The principal considered the laptops to be in good condition because they were used exclusively by teachers and not by students, but she did not appear to know the condition of the specific two stolen laptops. The school does not calculate a depreciation value on its computers.

In his motion for judgment of dismissal, G.B. argued that the State failed to prove that the value of the laptops was over $300. The trial court granted the motion for judgment of dismissal as to grand theft and found that the State had presented evidence for a first-degree petit theft which requires that the value of the property be $100 or more, but less than $300. See § 812.014(2)(e). The trial court stated its belief that reasonable persons could not differ on that and noted that it had “never seen a laptop, even [a] used laptop go for less than a hundred dollars ever.”

In closing argument, defense counsel asserted that there was no proof beyond a reasonable doubt that the laptops, even combined, were worth a total of $100. The trial court stated that “even two used laptops that are three years old are going to be worth at least more than a hundred dollar[s]” and that it did not “think reasonable persons could differ on that.” Thus, the trial court found G.B. delinquent as to petit theft in the first degree.

On appeal, G.B. argues that the trial court erred in reducing the offense to first-degree petit theft instead of second-degree petit theft because the State failed to prove the value of the laptop computers. Petit theft of the second degree does not require proof of the value of the property. See § 812.014(3)(a).

Under the theft statute, the State must prove value by “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). Section 812.012(10)(b) provides that “[i]f the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.”

In Marrero the Florida Supreme Court determined that a trier of fact “is only allowed to determine a minimum value instead of an actual value if the value of the property cannot be ascertained.” 71 So.3d at 888-89. The value must be “impossible to ascertain” and not just a situation “of the State’s failure to present evidence of value (although capable of valuation).” Id. at 889. Absent impossibility, a “life experience” exception to determine value does not apply. Id.

As in Colletti v. State, 74 So.3d 497, 499 (Fla. 2d DCA 2011), the State failed to establish and the record does not show that it was impossible to determine the value of the stolen property. Thus, the trier of fact could not determine a “minimum value” because valuation was not impossible. See id. at 500. Without evidence of value, the trial court should have reduced the offense to second-degree petit theft. See Olivera v. State, 117 So.3d 433, 434 (Fla. 4th DCA 2013) (reversing grand theft of a dwelling conviction and directing entry of a judgment for second-degree pet-it theft when the stolen property consisted of a two-year-old laptop that was purchased for $1400 to $1500 and a less than six-month-old camera and iPod).

Accordingly, we reverse the disposition order and remand for the trial court to enter a disposition order with a finding that G.B. committed second-degree petit theft.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.


text:
    Roosevelt KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-176.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.

      Roosevelt King, Monticello, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the denial of appellant’s Rule 3.800(a) motion to correct illegal sentence. The sentencing documents reflect that the court imposed thirty-year sentences for unarmed robbery counts, which exceed the fifteen-year statutory maximum for a second degree felony. The sentencing order does not designate appellant as a habitual offender. The state concedes that the sentences require correction, as they exceed that statutory maximum. We remand for the trial court to correct these sentences for strong arm robbery in Case Nos. 01-4344, 01-3524, 01-3092, and 01-3089.

Reversed and remanded to correct sentence.

WARNER, GROSS and MAY, JJ„ concur.


text:
    Kevin P. BLAKELY, Appellant, v. Cynthia BLAKELY, Appellee.
    No. 4D12-3079.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Rocco G. Marucci of Rocco G. Marucci, P.A., Fort Lauderdale, for appellant.
    Bruce H. Little of Bruce H. Little, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This appeal is from an order entered prior to a final judgment of dissolution providing that the parties’ minor child would attend his first year of high school at an out-of-state private school. We reject Appellant’s assertion that the order is one for relocation under section 61.13001, Florida Statutes (2012), and hold that it is merely an order regarding an educational decision for the child. We find support in the trial court’s own statement that its ruling was limited to what school the child would attend for his freshman year of high school. See Young v. Hector, 833 So.2d 793, 794 (Fla. 3d DCA 2002) (holding that a court’s decision to allow a child to attend an out-of-state boarding school was not a relocation, but an educational decision). Thus, the order is not one of the appeal-able non-final orders found in Florida Rule of Appellate Procedure 9.130(a)(3), and is not otherwise appealable. Nor do we find a writ of certiorari to be appropriate were we to treat this appeal as a petition for one. Therefore, we dismiss this appeal for lack of jurisdiction.

Dismissed.

DAMOORGIAN, C.J., MAY and FORST, JJ., concur.


text:
    Alan J. WEISBERG, Appellant, v. Todd H. ALBERT, Appellee.
    No. 4D12-2723.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Matthew S. Nugent and Adam M. Zbo-rowski of Nugent Zborowski & Bruce, North Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Alan J. Weisberg appeals from a Final Judgment of Injunction for Protection Against Domestic Violence Without Minor Children. The injunction was sought against him by his former son-in-law, Todd H. Albert. We reverse because Mr. Albert neither proved that he was the victim of domestic violence nor that he had reasonable cause to believe he was in imminent danger of becoming a victim of domestic violence.

The standard of review for an order imposing a permanent injunction is abuse of discretion. Malchan v. Howard, 29 So.3d 458, 454 (Fla. 4th DCA 2010) (citing Reiss v. Reiss, 17 So.3d 849, 850 (Fla. 3d DCA 2009)).

A trial court may issue an injunction when the petitioner has established that he or she is “either the victim of domestic violence or ‘has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.’ ” Id. (citing Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting section 741.30(l)(a), Fla. Stat. (2007))). “Domestic violence” is defined as “any assault, aggravated assault, battery ... or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2012). “In determining whether the [petitioner’s] fear is reasonable, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Malchan, 29 So.3d at 454 (quoting Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001)).

Here, Mr. Albert failed to present sufficient evidence that he was in imminent danger of becoming a victim of domestic violence. His basis for requesting the injunction was one isolated incident wherein Mr. Weisberg confronted him at his child’s school awards ceremony. After Mr. Albert had argued loudly with his former wife (Mr. Weisberg’s daughter), Mr. Weis-berg threatened, “If you ever try that again, you will be dead.” During this brief encounter, Mr. Weisberg neither physically touched Mr. Albert nor committed any other overt act indicative of an ability to carry out the threat or to justify a reasonable belief that violence was imminent. See Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction. Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.”) (citations omitted); Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004) (holding that one man’s threat to “f ’ up and kill another man was insufficient to support an injunction where there is no overt act indicating an ability to carry out the threat). Moreover, both men testified and the trial court noted that they had enjoyed a “good relationship” up until that isolated incident.

Based on the foregoing, we conclude that the trial court abused its discretion in entering an injunction against Mr. Weis-berg, because Mr. Albert failed to establish that he was either the victim of domestic violence or that he had reasonable cause to believe he was in imminent danger of becoming a victim of domestic violence. We therefore reverse and remand for the trial court to vacate the injunction.

Reversed and Remanded.

GROSS, TAYLOR and FORST, JJ„ concur.

      . Mr. Albert did not file an answer brief.

      . An "assault” is defined as an "intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2012).


text:
    Michael BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2702.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Michael Barrett, Chipley, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Barrett filed a petition for writ of habeas corpus with two claims. The petition was summarily denied. On appeal, he argues that the trial court should have treated his petition as a motion filed under Rule 3.800. We agree in part.

The first issue raised in the petition alleged trial court error in the jury instruction. Because this issue could have been raised on appeal, the claim was not cognizable in a postconviction motion. See Waterfield v. State, 1 So.3d 235, 237 (Fla. 4th DCA 2008). The second issue, however, alleged a discrepancy between the written sentence and the sentence that was orally imposed. In particular, Barrett alleged that the court never orally imposed a habitual felony offender (HFO) designation. Because this type of discrepancy can be challenged in a Rule 3.800(a) motion, we i’everse and remand with direction to treat the claim as such. See State v. Akins, 69 So.3d 261, 268 (Fla.2011) (holding that modification of judgment and sentence to reflect an HFO designation that was not orally pronounced at sentencing violated double jeopardy and constituted an illegal sentence).

Affirmed in part; Reversed in part and Remanded.

GROSS, TAYLOR and LEVINE, JJ., concur.


text:
    Oscar HERRERA, Appellant, v. LIST INDUSTRIES, INC., a Florida corporation, Appellee.
    No. 4D12-1319.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.

      Ronald D. Rodman of Friedman, Rod-man & Frank, P.A., Miami, and Pamela Beckham of Beckham & Beckham, P.A., Miami, for appellant.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Boston ex rel. Estate of Jackson v. Publix Super Markets, Inc., 112 So.3d 654 (Fla. 4th DCA 2013); List Indus. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013).

WARNER, STEVENSON and GERBER, JJ., concur.


author: PER CURIAM. EMAS, J.,

text:
    Jerdy MACKLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2285.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2013.
    Jerdy Macklin, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), reh’g denied, 115 So.3d 385 (Fla. 3d DCA 2013); Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013), review granted, No. SC13-865 (Fla.2013).

SUAREZ and SALTER, JJ., concur.

EMAS, J.,

dissenting.

For the reasons expressed in my dissent to the denial of motion to rehearing en banc in Geter v. State, 115 So.3d 385 (Fla. 3d DCA 2013), I respectfully dissent.


text:
    Leon D. HANKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-941.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.

      Leon D. Hankins, Mayo, pro se.
    Pamela Jo Bondi, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Leon D. Hankins seeks another appeal, alleging ineffective assistance of appellate counsel for counsel’s failure to argue that Hankins’ convictions and sentences violate double jeopardy. See generally Fla. R. App. P. 9.141(d). In his previous appeal, we affirmed Hankins’ convictions of: attempted first-degree murder with a firearm (“Count 1”); burglary of a dwelling with an assault or battery while armed with a firearm (“Count 2”); arson of a dwelling (“Count 3”); aggravated battery with a firearm (“Count 4”); and aggravated assault with a firearm (“Count 5”). Hankins was sentenced to two terms of life imprisonment for Count 1 and Count 2. He received lesser sentences for the other convictions. For the reasons that follow, we grant Hankins’ request for a new appeal.

The evidence at trial showed that Han-kins set a fire outside of his ex-girlfriend’s house, injured the ex-girlfriend by firing shots through the front door of her house, entered the residence without permission by kicking in the front door, threatened the ex-girlfriend with a firearm while following her through the house, and struck the ex-girlfriend on her forehead with the firearm. Hankins claims that appellate counsel was ineffective for failing to challenge on direct appeal as fundamental error his multiple convictions for Counts 2, 4, and 5 (the armed burglary with an assault or battery, the aggravated battery, and the aggravated assault), which he asserts violate the constitutional prohibition against double jeopardy.

The Florida Supreme Court articulated the standard with which we evaluate the petition in the present case, as follows:

A person convicted of a crime, whose conviction has been affirmed on appeal and who seeks relief from the conviction or sentence on the ground of ineffectiveness of counsel on appeal must show, first, that there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside the range of professionally acceptable performance; and second, that the failure or deficiency caused prejudicial impact on the appellant by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision.

Johnson v. Wainwright, 463 So.2d 207, 209 (Fla.1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 457 So.2d 1380 (Fla.1984)). Prior appellate counsel’s failure to raise double jeopardy as an issue deviated from the norm. A double jeopardy violation is fundamental error and can be raised for the first time on appeal. Bell v. State, 114 So.3d 229 (Fla. 5th DCA 2013). When separate convictions are challenged on double jeopardy grounds, the essential elements of both statutory offenses are compared to determine if they are the same offense for double jeopardy purposes. This comparison test focuses on whether each separate statutory offense requires proof of an essential element that the other does not. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This test is only determinative if a single factual act supports both convictions.

In Estremera v. State, 107 So.3d 511, 512 (Fla. 5th DCA 2013), Estremera was convicted of burglary of a structure with an assault while armed with a firearm, robbery with a firearm, petit theft, and three counts of aggravated assault with a firearm. On appeal, we found that the dual convictions for burglary with an assault while armed with a firearm and aggravated assault with a firearm violated double jeopardy. Id. Relying on White v. State, 753 So.2d 668 (Fla. 1st DCA 2000), and the State’s concession of error, we stated that all of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with an assault while armed with a firearm. Estremera, 107 So.3d at 512. In Estremera, though, there were three victims and three separate counts of aggravated assault. Id. Therefore, we held that one of the aggravated assault convictions must be vacated as it was subsumed into the burglary with an assault while armed with a firearm conviction. Id. Because White was available at the time of the appeal in the present case, appellate counsel should have cited it and argued that one of Hankins’ convictions for either aggravated battery or aggravated assault should be reversed and the sentence on that conviction vacated.

Here, the State asserts that there were three separate factual acts which could support separate convictions for armed burglary with an assault or battery, aggravated assault with a firearm, and aggravated battery with a firearm. However, from our review of the record, it appears that the aggravated assault and aggravated battery offenses charged in Counts 4 and 5 were the only assault and battery offenses committed while the armed burglary was in progress. Although shots were fired by Hankins while he was outside the house before the burglary was committed, those shots formed the basis for the attempted first-degree murder with a firearm charge, which was alleged in Count 1.

Regarding the second prong, a double jeopardy violation is fundamental error, which is per se harmful and can be corrected without a showing of prejudice. Johnson v. State, 460 So.2d 954, 958 (Fla. 5th DCA 1984), approved, 483 So.2d 420 (Fla.1986). In response to the petition, the State argues that there is no prejudice from this double jeopardy violation because Hankins received life sentences for the attempted first-degree murder and armed burglary convictions. Appellate counsel should raise on appeal all double jeopardy violations that result in improper convictions, even if they do not result in a reduction of the overall sentence. The failure of appellate counsel to raise this double jeopardy issue undermines confidence in the correctness of the result on appeal. See Johnson v. Wainwright, 463 So.2d 207 (Fla.1985).

Because a double jeopardy analysis involves both a statutory analysis as well as a factual review of the record, we will allow Hankins another appeal, so this double jeopardy issue can be fully briefed by appellate counsel. We grant the petition and instruct the trial court to appoint, within thirty days from the issuance of the mandate, appellate counsel to file a brief limited to the double jeopardy issue outlined above. Within thirty days from the date of the appointment, appellate counsel shall file a new notice of appeal and reference this opinion in the notice of appeal.

PETITION GRANTED with Instructions.

PALMER, BERGER, and WALLIS, JJ., concur.

      . Hankins v. State, 70 So.3d 601 (Fla. 5th DCA2011).


text:
    Shanise CLIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2581.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.

      Shanise Climpson, Ocala, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Shanise Climpson appeals from the trial court’s order denying her Florida Rule of Criminal Procedure 3.800(c) motion to mitigate her sentence. Because an order denying a motion to mitigate sentence is not appealable, we lack jurisdiction. See Simms v. State, 16 So.3d 229, 229 (Fla. 5th DCA 2009) (holding that court lacked jurisdiction to consider appeal of order denying rule 3.800(c) motion). Accordingly, we dismiss Climpson’s appeal. See Jackson v. State, 936 So.2d 775, 775 (Fla. 5th DCA 2006) (dismissing appeal of order denying motion to mitigate sentence).

DISMISSED.

COHEN, BERGER and WALLIS, JJ., concur.


author: COHEN, J.

text:
    Jose G. PADRO-GUERRERO, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1389.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.
    Jose G. Padro-Guerrero, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Jose Padro-Guerrero appeals from the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 2011, Padro-Guerrero was found guilty of trafficking in twenty-eight grams or more of methamphetamine. This Court affirmed his conviction on direct appeal. Pa-dro-Guerrero subsequently filed a timely motion for postconviction relief pursuant to rule 3.850. Initially, the trial court rejected three of the six alleged grounds for relief and ordered the State to file a response to the remaining three grounds. Following receipt of that response, the trial court summarily denied the remaining three grounds. While the original motion was pending, Padro-Guerrero filed a supplemental rule 3.850 motion asserting two additional grounds for relief. The trial court did not rule on the supplemental motion.

We affirm the trial court’s summary denial of the original motion for post-conviction relief without comment. The more problematic issue, however, is the trial court’s failure to rule on Padro-Guerrero’s supplemental motion. Generally, a defendant may file a rule 3.850 motion within two years of the date that the judgment and sentence become final. Fla. R. Crim. P. 3.850(b). As long as the two-year limitation period has not expired, the trial court must consider any additional claims raised prior to the court’s final order on a rule 3.850 motion. See Gaskin v. State, 737 So.2d 509 (Fla.1999) (holding that trial court erred in denying defendant’s amended rule 3.850 motion, which was filed within statutory time limit and before trial court ruled on original rule 3.850 motion, on the ground that new claims set forth in amended motion were procedurally barred), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004); McAbee v. State, 873 So.2d 545 (Fla. 2d DCA 2004) (remanding for consideration of two supplemental issues that trial court failed to rule on in final order denying postconviction relief).

It appears that Padro-Guerrero’s supplemental motion fell through the cracks and the trial court was not aware of its existence. It would seem that upon receipt of the order denying the original motion, it should have been clear to Pa-dro-Guerrero that the trial court had failed to consider his supplemental motion. The better course would have been for Padro-Guerrero to bring this oversight to the trial court’s attention in the form of a motion for rehearing. However, since the supplemental motion was timely filed and pending before the final order denying the original petition was entered, we must remand this ease for consideration of the two grounds raised in that motion.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

TORPY, C.J., and GRIFFIN, J„ concur.


text:
    Willie WADDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4730.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.
    Willie Waddy, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm, without comment, the trial court’s order denying Willie Wadd/s motions to withdraw his plea and correct sentencing error. We note, however, that it is clear from the record that the court sentenced Mr. Waddy to 8.5 years in prison. Nonetheless, the sentencing documents indicate 8.6 years. On remand, the trial court shall correct the sentencing documents and provide a copy to the Department of Corrections. Mr. Waddy need not be present for this correction.

AFFIRMED and REMANDED.

ORFINGER, BERGER and WALLIS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Maurice MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1376.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Maurice Moore appeals his judgments and sentences, which were entered after the trial court denied his dispositive motion to suppress. Because the trial court relied upon outdated law at the suppression hearing and the proper outcome of that hearing cannot be determined from this record under current law, we reverse and remand for further proceedings.

A Tampa police officer stopped Mr. Moore on June 19, 2011, while he was driving his car. As a result of this stop, the officer discovered and seized marijuana, paraphernalia, and an unlawful police radio. After the State filed an information charging Mr. Moore with offenses related to the seized items, he filed a motion to suppress claiming that the stop had been unlawful.

The evidence establishes that the officer stopped Mr. Moore exclusively because when he ran Mr. Moore’s tag on his in-vehicle computer, the information he received from the Department of Highway Safety and Motor Vehicles (the “DHSMV”) confirmed that the tag was registered to Mr. Moore, but it indicated that the tag was not assigned to the vehicle Mr. Moore was driving. It is undisputed that this information was incorrect and that the data had not been correctly entered into the computer system by the DHSMV. If the DHSMV had properly entered the correct data, Mr. Moore would not have been stopped by the officer. At the time of Mr. Moore’s arrest, the DHSMV consisted of three divisions: (1) Division of the Florida Highway Patrol, (2) Division of Driver Licenses, and (3) Division of Motor Vehicles. See § 20.24(2), Fla. Stat. (2010). Based on our record, we are unable to ascertain which specific division was responsible for this error, but it most likely was the Division of Driver Licenses or the Division of Motor Vehicles.

Mr. Moore’s attorney filed a motion to suppress, challenging the legality of the stop. That motion did not contain citations to case law specific to the issue. Both Mr. Moore’s attorney and the assistant state attorney came to the suppression hearing without conducting adequate research to assist the trial court. From the bench, the trial court located State v. Shadler, 714 So.2d 662 (Fla. 5th DCA 1998) (Shadier I). Shadier I was seemingly on point and held that such errors by the Division of Driver Licenses were not errors by a “law enforcement agency” and, thus, did not render a stop based on such mistaken information unconstitutional. Id. at 663. Shadier I did note, however, that the Division of Highway Patrol would be considered “a law enforcement agency.” Id. Relying on Shadier I, the trial court denied the motion to suppress on January 11, 2012. Mr. Moore then pleaded to these offenses on January 30, 2012, reserving the issue for appeal. Both Mr. Moore’s attorney and the assistant state attorney apparently never bothered to read Shadier I.

In 2000, the Florida Supreme Court reversed Shadier I in Shadler v. State, 761 So.2d 279 (Fla.), cert. denied, 531 U.S. 924, 121 S.Ct. 298, 148 L.Ed.2d 240 (2000) (Shadier II). In Shadier II, the supreme court reviewed the functions of the DHSMV and determined that the DHSMV, including all of its divisions, was considered a “law enforcement agency” for purposes of interpreting the Fourth Amendment. Id. at 284. Thus, Shadier II squarely supported the motion to suppress. Had the trial court found Shadier II when it was performing the research the lawyers should have performed, it undoubtedly would have granted the motion to suppress.

On appeal, the State recognizes that Shadier I was reversed by Shadier II. It points out, however, that following Shadier II, the legislature enacted section 822.202(1), Florida Statutes (2002). See ch. 2002-215, § 1, at 1502-03, Laws of Fla. At the time of Mr. Moore’s arrest, the statute expressly stated that “the Division of Driver Licenses and the Division of Motor Vehicles of the [DHSMV] are not law enforcement agencies.” See § 322.202(1). We note that the statutory amendment does not appear to have altered any function of the DHSMV or its divisions; the amendment merely disagrees with the legal conclusion reached by the supreme court in Shadier II that each division of the DHSMV is a law enforcement agency for purposes of the Fourth Amendment. We have found no case law that has decided any motion to suppress based on this statutory amendment. Whether the legislature can pass a statute that merely disagrees with a supreme court opinion applying the Fourth Amendment to a particular set of facts is an interesting issue that was not resolved in the trial court and has not been argued in this court.

Shadier II was based on the United States Supreme Court’s decision in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). In Evans, the Court considered a case in which the police had performed an arrest based on a warrant. A short time prior to the arrest, the warrant had been quashed by a court. Id. at 3-4, 115 S.Ct. 1185. The court clerk had not informed the local sheriff of this judicial action and, thus, the warrant appeared to be valid and outstanding in the records relied upon by law enforcement. Id. at 5, 115 S.Ct. 1185. Because the matter involved a warrant, the Court relied on the good faith exception to prevent exclusion of the evidence. Id. at 14-16, 115 S.Ct. 1185. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

After the Florida Supreme Court issued Shadier II, the United States Supreme Court ruled, in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), that the Fourth Amendment does not compel the use of the exclusionary rule in every instance of a violation of the knock-and-announce rule. Then, in 2009, the United States Supreme Court, in Herring v. United States, 555 U.S. 135, 146, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), extended the holding in Evans to other “recordkeeping errors by the police” and further discussed the limits of the exclusionary rule. As a result, we are not confident as a matter of law whether Shadier II or the new statute is applicable and controlling in this case.

In this unusual context, we conclude that the issue of whether Shadier II, the statutory amendment, or newer case law controls the outcome of the motion to suppress should first be argued to and resolved by the trial court before it is considered by this court. That court may consider any additional evidence that the parties consider relevant to this issue. Accordingly, we reverse the judgments and sentences and remand for a new hearing on the motion to suppress.

Reversed and remanded.

CASANUEVA and BLACK, JJ., Concur.

      . In 2011 the Florida Legislature revised these divisions for the purpose of consolidating the Division of Driver Licenses and the Division of Motor Vehicles into the newly added "Division of Motorist Services." See ch. 2011-66, § 2, at 966-67, Laws of Fla.; § 20.24, Fla. Stat. (2011); Fla. S. Comm, on Budget, SB 2160 (2011) Staff Analysis 1 (Apr. 1, 2011) (on file with comm.), available at http://www. flsenate.gov/Session/Bill/2011/2160/Analyses/ aWy348RZCc DPzCFScrKI36KSFPo=@7/Public/Bills/ 2100-2199/2160/ Analysis/201 ls2160.bc.PDF.

      . U.S. Const. Amend. IV.

      . This section was originally designated by the legislature as section 90.959, but was re-designated as section 322.202 prior to codification. See ch. 2002-215, § 1; Table of Section Changes by 2002 Legislative Sessions, C-2, Fla. Stat. Index (2002). The legislature’s initial purpose was to "amend[] the evidence code” to prohibit application of the exclusionary rule in situations similar to that in Shadier II. See S. Comm. Judiciary, SB 196 (2002) Staff Analysis 1 (Dec. 5, 2001) (on file with comm.), available at http://arch ive.flsenate.gov/data/session/2002/Senate/bilIs/ana-lysis/pdf/ 2002s0196.ju.pdf. Redesignation as section 322.202 apparently came following the Florida Bar's successful objection to adding this provision to the evidence code. See Robert F. Tacher, Annual Reports of Committees of the Florida Bar: Code and Rules of Evidence, Fla. B.J., June 2003, available at http://www.floridabar.org/divcom/jn/jnjournal Ol.nsf/ c0d731e03de9828d852574580042ae7a/ 4ceb9e8d2b6f6fb485256d33004b e8f4!Open-Document & Highlight=0,discrimination*.


author: DAVIS, Chief Judge.

text:
    AG BEAUMONT 1, LLC, a Delaware limited liability company; AG Beaumont 2, LLC, a Delaware limited liability company; AG Beaumont 3, LLC, a Delaware limited liability company; AG Beaumont 4, LLC, a Delaware limited liability company; AG Beaumont 5, LLC, a Delaware limited liability company; AG Beaumont 6, LLC, a Delaware limited liability company; AG Beaumont 7, LLC, a Delaware limited liability company; AG Beaumont 8, LLC, a Delaware limited liability company; AG Beaumont 9, LLC, a Delaware limited liability company; AG Beaumont 10, LLC, a Delaware limited liability company; AG Beaumont 11, LLC, a Delaware limited liability company; AG Beaumont 12, LLC, a Delaware limited liability company; AG Beaumont 13, LLC, a Delaware limited liability company; AG Beaumont 14, LLC, a Delaware limited liability company; AG Beaumont 15, LLC, a Delaware limited liability company; AG Beaumont 16, LLC, a Delaware limited liability company; AG Beaumont 17, LLC, a Delaware limited liability company; AG Beaumont 18, LLC, a Delaware limited liability company; AG Beaumont 19, LLC, a Delaware limited liability company; AG Beaumont 20, LLC, a Delaware limited liability company; AG Beaumont 21, LLC, a Delaware limited liability company; AG Beaumont 22, LLC, a Delaware limited liability company; AG Beaumont 23, LLC, a Delaware limited liability company; AG Beaumont 24, LLC, a Delaware limited liability company; AG Beaumont 26, LLC, a Delaware limited liability company, Appellants, v. LSREF2 OREO (DIRECT), a Delaware limited liability company, Appellee.
    No. 2D12-5873.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.

      Richard A. Schlosser, Jon P. Tasso, and Michael R. Rocha of Bricklemyer Smolker, P.A., Tampa, for Appellants.
    Lee D. Mackson, Stephen T. Maher, and Michelle G. Hendler of Shutts & Bowen, LLC, Miami, for Appellee.
   DAVIS, Chief Judge.

The several Beaumont LLCs collectively challenge the final summary judgment of foreclosure entered by the trial court in favor of LSREF2 Oreo (Direct), LLC (herein referred to as “the Bank”). Because there remains a disputed issue of material fact, we reverse the final summary judgment and remand for further proceedings.

On February 12, 2004, Bank of America made a loan to Adler Group Beaumont Investors, LLC, in the amount of $16.8 million. The proceeds were used to secure a commercial complex consisting of eleven office buildings. Adler executed a mortgage on the complex in favor of the bank as security for the loan. Adler later sold the complex to the occupying tenants, the several individual Beaumont LLCs. As a part of the purchase of the business units, the Beaumont LLCs assumed the indebtedness on the buildings.

Bank of America subsequently assigned its interest in the note and mortgage to LaSalle Bank National Association as trustee for Banc of America Commercial Mortgage, Inc. The loan documents were subsequently assigned to Wells Fargo, which initiated the underlying foreclosure action.

In the initial complaint and the amended complaint, the Bank alleged that the Beaumont LLCs were in default because the note matured on March 1, 2011, and the Beaumont LLCs had failed to pay the balance of the note due on that date. The Beaumont LLCs answered the complaint by denying that the note matured on March 1, 2011, and alleging as an affirmative defense that the maturity date of the original note was actually March 1, 2012.

In October 2012, the trial court held a hearing on the Bank’s motion for summary judgment. Prior to the hearing, the Bank filed with the trial court what it alleged to be the “original” note which clearly stated on the first page that the maturity date was March 1, 2011. However, in their sworn answers to interrogatories, the Beaumont LLCs asserted that the original note actually contained a maturity date of March 1, 2012, and that the note the Bank filed as the original note was an altered note. Attached to their answers to interrogatories was a copy of what the Beaumont LLCs argue is the original note. Also, in response to the motion for summary judgment, the Beaumont LLCs filed a memorandum in opposition to summary judgment with the same explanation, and they attempted to make the argument at the summary judgment hearing.

The Beaumont LLCs also submitted two affidavits from individuals who were members of two of the LLCs. A copy of the note the members alleged they received when they purchased their unit and assumed the debt was attached to each affidavit. These copies show a maturity date of March 1, 2012. The affidavits also included language stating that the affiant “believed” the maturity date was March 1, 2012, based on the information provided by the seller of the property at the time of purchase. The trial court struck the affidavits, concluding that the “believed” language was not relevant evidence of the actual maturity date.

The trial court also determined that because the note submitted by the Bank was not visibly altered on its face, there was no factual issue as to the validity of that note. Accordingly, the trial court found the Beaumont LLCs in default and granted final summary judgment in favor of the Bank.

On appeal, we review the granting of a final summary judgment de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). To grant summary judgment, the trial court must determine that there are no material issues of fact remaining to be resolved and that the mov-ant is entitled to a judgment as a matter of law. Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979).

On appeal, the Beaumont LLCs argue that there is a remaining issue of fact as to the maturity date of the original note. We agree. The original note filed by the Bank in support of its foreclosure complaint is a document that consists of thirteen pages. The only handwriting on any of the pages is the signature of the borrower and the signatures of the two witnesses on the last page (signature page). As the Beaumont LLCs point out, the first twelve pages each bear a typewritten scrivener’s word processing identifier number NCLIB1 203080.4 in the lower left corner. However, the number printed on the signature page is NCLIB1 203080.3.

The copy of the note that the Beaumont LLCs allege they received upon assumption of the debt also consists of thirteen pages, but all of the pages bear the identifier number NLCIB1 203080.3. That is, the twelve pages of the note that contain the terms bear the same identifier number as the signature page, and the maturity date contained in the terms is the March 1, 2012, date.

Arguably, these facts might be explained by several different theories. However, one reasonable inference that may be drawn from these facts, as argued by the Beaumont LLCs below, is that the true original note is the note in which all the pages bear the identifier number NLCIB1 203080.3 and that the note submitted by the Bank as the original note is actually a subsequently created note — one that consists of newly typed pages one through twelve, indicating the March 1, 2011, maturity date, attached to the original signature page. As noted, there may be other explanations as to how this occurred, and the inference may be rebutted by other documents showing the maturity date to be March 1, 2011. However, because the inference put forth by the Beaumont LLCs is a reasonable one, a factual issue was presented and summary judgment was improper. See Reed v. Schutz Litig. LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013) (“ ‘[I]f material facts are conflicting, i.e., if facts permit different reasonable inferences to be drawn, ... then summary judgment may not be granted.’ ” (quoting Hodge v. Cichon, 78 So.3d 719, 722 (Fla. 5th DCA 2012))). We therefore reverse the final judgment and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . The final judgment was entered in favor of foreclosure plaintiff Wells Fargo Bank, but during the pendency of this appeal, Wells Fargo sold its interest in the foreclosed property, loan documents, foreclosure judgment, and this appeal to LSREF2 Oreo (Direct), LLC. As such, we will refer to the appellee in this proceeding as "the Bank” no matter whether the action specifically being referred to was taken by LSREF2 Oreo (Direct) or Wells Fargo.


author: KELLY, Judge.

text:
    Curtis PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6389.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.
    Curtis Perkins, pro se.
   KELLY, Judge.

Curtis Perkins appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The State appropriately concedes error. We reverse and remand for resentencing.

Perkins entered guilty pleas to the third-degree felonies of petit theft (two counts), possession of cocaine, and failure to appear in exchange for concurrent sentences of 80.3 months’ imprisonment and the State’s agreement to drop another failure to appear charge. After his unsuccessful attempt to argue that his trial counsel was ineffective for failing to ensure that his scoresheet was correctly calculated, Perkins filed a motion to correct illegal sentence. Referring to attachments to his motion, he argued that his scoresheet erroneously scored a burglary for which he had been acquitted. Perkins asserted that without the scoring of that burglary, his lowest permissible sentence would have been 69.8 months rather than 80.3 months. He requested resentencing with a corrected scoresheet.

The postconviction court ordered the State to respond, and the State conceded, as it does in this court, that Perkins should be resentenced to 69.8 months’ imprisonment. Indeed, as the State correctly notes, when the lowest permissible sentence under the criminal punishment code exceeds the statutory maximum, the former becomes the maximum sentence a court can impose. See Butler v. State, 838 So.2d 554, 556 (Fla.2003). “Trial courts are not permitted to impose illegal sentences, even pursuant to a negotiated plea agreement.” Costin v. State, 46 So.3d 96, 97 (Fla. 1st DCA 2010). Because Perkins’ scoresheet was incorrectly scored and he was not sentenced to the lowest permissible sentence, his sentence is illegal.

Accordingly, we reverse the order denying Perkins’ motion to correct illegal sentence and remand with directions for the postconviction court to resentence Perkins to 69.8 months’ imprisonment under a corrected scoresheet as agreed to by the State.

NORTHCUTT and SLEET, JJ., Concur.


text:
    William MARSHALL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3122.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.
    William Marshall, Titusville, pro se.
    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 in Case No. 05-2012-CF-54755, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, EVANDER and BERGER, JJ., concur.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Donald E. ROBINSON, Appellee/Cross-Appellant.
    Nos. 5D12-178, 5D12-536.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, Lori N. Hagan and Pamela J. Roller, Assistant Attorneys General, Day-tona Beach, for Appellant/Cross-Appellee.
    Terrence E. Kehoe of Law Office of Terrence E. Kehoe, Orlando, for Appel-lee/Cross-Appellant.
   PER CURIAM.

The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm. Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental error, necessitating a new trial. We agree with Appel-lee and reverse and remand for a new trial.

The aggravated assault instruction was fundamentally erroneous because it was based on a theory not charged in the information. Grau v. State, 101 So.3d 922 (Fla. 5th DCA 2012); Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999). Because of our conclusion on this issue, it is not necessary to address the State’s argument that Appellee invited error in the self-defense instruction.

REVERSED AND REMANDED.

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.


author: PALMER, J.

text:
    David FIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4221.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

David Figgs (defendant) timely appeals his sentences for carjacking with a firearm, aggravated assault, and armed robbery. He contends that the trial court committed fundamental error in adjudicating him guilty and sentencing him on both the armed robbery and the carjacking with a firearm charges because the only item he took from the victim was the key to the car that he carjacked. The State properly concedes that the defendant’s dual convictions violate double jeopardy. See Hanfield v. State, 40 So.3d 905 (Fla. 4th DCA 2010); Price v. State, 816 So.2d 738 (Fla. 3d DCA 2002). Therefore, we reverse the defendant’s conviction for carjacking with a firearm and direct the trial court to vacate that conviction and sentence. We affirm the defendant’s other convictions and sentences.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER and BERGER, JJ., concur.

      . § 812.133, Fla. Stat. (2013).

      . § 784.021, Fla. Stat. (2013).

      .§ 812.13(l)-(2)(a), Fla. Stat. (2013).