text:
    Jacob Allen THOMAS v. Leeann G. THOMAS.
    2110223.
    Court of Civil Appeals of Alabama.
    Oct. 19, 2012.

      Stephen R. Arnold and William M. Bowen, Jr., of White Arnold & Dowd, P.C., Birmingham, for appellant.
    Kathryn Crawford Gentle and Rachel L. Goodson of Crawford-Gentle & Associates, L.L.C., Birmingham, for appellee.
   PITTMAN, Judge.

This appeal arises from divorce proceedings involving Jacob Allen Thomas (“the husband”) and Leeann G. Thomas (“the wife”), who married in 2000 and who are the parents of four minor children. The wife filed a divorce complaint in the Jefferson Circuit Court in August 2010 alleging an irretrievable breakdown of the marriage and seeking, among other things, custody of the children, an award of child support, an award of alimony, and a division of the marital property; the husband answered and counterclaimed for a custody award in his favor or, in the alternative, for an award of shared custody. The wife filed two motions, and the husband filed one motion, seeking pendente lite relief; pursuant to an agreement between the parties, the trial court, in April 2011, entered an order (hereinafter “the pendente lite order”) that, among other things, awarded the wife custody pendente lite and directed the husband to pay $800 each month as child support and $365 each month toward the deductible amounts of the children’s health-insurance coverage from April 1, 2011, through the entry of a final judgment.

On May 4, 2011, eight days before trial, the wife sought contempt sanctions against the husband based upon his alleged failure to make the support and insurance-deductible payments required in the pendente lite order. The trial court directed that that matter would be heard at the time of trial. The trial court received testimony at trial from both parties and evidentiary exhibits introduced by the wife. Subsequently, on June 22, 2011, an order was entered divorcing the parties, awarding the wife primary physical custody of the children, setting the husband’s prospective monthly child-support obligation at $1,767.18, directing the husband to pay monthly rehabilitative alimony of $1,500 for three years, and deeming certain retirement funds or accounts that had been established for the husband’s benefit by three particular alleged business entities controlled by the husband to be an artifice designed to shield marital funds from the wife so as to be subject to a later division proceeding. Additionally, the trial court found the husband to be in criminal contempt for purportedly having failed to make the child-support payment for the month of April 2011 and the insurance-deductible payments for the months of April 2011 and May 2011 and sentenced him to 15 days of incarceration (with 10 days being suspended) to begin on June 24, 2011. When the husband did not appear to serve his sentence, the wife sought a further contempt finding as to that failure and as to his alleged nonpayment of the required monthly child support for June; the trial court then imposed the full 15-day sentence first imposed in the June 22, 2011, order. The husband then filed a motion challenging various aspects of that order, especially those pertaining to contempt and the divisibility of the retirement plans or accounts, and sought a stay of enforcement of the order. The trial court, on August 25, 2011, denied the husband’s motions but reduced his incarceration to five days.

On October 17, 2011, the wife filed another motion seeking a finding of contempt as to the husband, asserting that he had failed to comply with a number of obligations set forth in the June 22, 2011, order. The husband moved to direct the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. After a hearing on October 19, 2011, the trial court entered (a) an October 27, 2011, order again finding the husband in contempt and sentencing him to incarceration for 15 days and (b) a November 4, 2011, order denying the husband’s motion seeking a direction for the entry of a final judgment but vacating that portion of the June 22, 2011, order reserving jurisdiction to divide alleged retirement accounts and substituting a new provision effecting a division thereof; in the latter order, the trial court stated that it “considerfed the] cause to be final and closed.” The husband timely appealed from the judgment as finalized, raising four issues on appeal: one issue pertains to the contempt finding in the judgment and three issues concern the property-division and child-support aspects of the judgment.

The husband’s first issue concerns the correctness of the trial court’s judgment finding the husband in contempt. A review of the June 22, 2011, order and the trial court’s subsequent orders indicates that the stated underlying basis for the trial court’s initial contempt determination was the husband’s failure to satisfy his pendente lite support-payment obligations, as specified in the June 22, 2011, order; each subsequent trial-court order finding the husband in contempt refers to the husband’s having failed to report for a sentence of incarceration to be served that stemmed from that underlying substantive determination. The husband correctly points out, however, that the recorded testimony at trial uniformly tended to show that the husband, rather than having failed to make the support payments as required in the April 2011 pendente lite order, actually had complied with that order; the husband testified that he had made all payments required for April and May 2011, and the wife admitted that the husband had paid $800 in monthly child support beginning in March 2011. Thus, to the extent that the trial court’s judgment as finalized has attempted to sanction, pursuant to that court’s contempt jurisdiction, the husband for noncompliance with the April 2011 pendente lite order without evidence thereof, that judgment is due to be reversed because it is “‘unsupported by the evidence so as to be plainly and palpably wrong.’ ” Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)).

We now turn to what the husband labels, in his summary of his arguments on appeal, “[t]he second major issue,” i.e., whether the trial court “totally disregarded ... undisputed evidence that the [h]usband’s retirement ] funds were legitimate.” The record reflects that the husband, during the 10 years between his college graduation and the trial in this cause, worked at several jobs in the health-care industry, including work as a physical-therapy liaison, service as a pharmaceutical-sales representative, labor for a medical-device manufacturer, work for an orthopedic-device concern, and ultimately employment with a corporation known as “Organogenesis” as a consultant/specialist paying more than $150,000 in 2010. However, the record also reflects that after 2008 — during which year, the wife testified, she had first indicated to the husband that she was contemplating a divorce — the husband opened separate checking accounts in the names of three business entities (“Live Free, LLC”; “MedLabs, LLC”; and “Pioneer, LLC”). The wife showed at trial that those entities had never been registered to conduct business in Alabama, and she focused the bulk of her questioning of the husband upon the financial activities of the husband regarding those accounts and various retirement and investment accounts that took place during the period leading up to the filing of the wife’s divorce complaint in August 2010.

The husband admitted in his trial testimony that the “Live Free” entity existed solely as an “entity for retirement accounts,” and exhibits admitted into evidence at trial indicated not only that that entity was the source of the majority of the funds in an account with T. Rowe Price Investments denominated “Live Free LLP Individual 401k” into which $16,500 had been deposited in 2009, but also that the sum of $28,800 had been transferred from that entity’s bank account to an American Century Investments account in the name of “Livefree Roth 401k Plan Trust — Jacob A. Thomas” during June 2010 and July 2010, the two months immediately preceding the initiation of the divorce action. The record further reflects that funds from the bank account opened in the name of “Pioneer, LLC” (which the husband identified as being an entity he created to handle transactions involving certain consulting work he had done for a particular physician) had also been directed to the “Live Free” entity and to a retirement account held by the husband at Vanguard Investments (the latter having received a $16,285.62 deposit in January 2010). Similarly, the wife adduced evidence tending to show that $26,000 from the bank account for “MedLabs, LLC” had been directed to two investment accounts between January and May 2010, one with Vanguard Investments in the name of “VFTC TR Livefree LLP Individual Roth 401 (k)” and one with E*TRADE Securities LLC (“E*TRADE”) in the husband’s individual name. Finally, when the husband was asked at trial whether he had made any deposits to a particular individual-retirement-arrangement account with Zecco Trading that had been opened in his name in February 2009 and had held cash and securities worth approximately $7,720, the husband responded “[mjaybe, maybe early last year,” ie., during 2010.

The trial court, in its November 4, 2011, order finalizing its property division, expressly determined that the “Live-Free” entity, “MedLabs, LLC” and “Pioneer, LLC” had each been “invented to shield marital funds from the” wife, and it awarded the wife 50% of the husband’s holdings in the American Century Investments account, the Vanguard Investments accounts, the T. Rowe Price account, and the Zecco account. Although the husband correctly points out that those accounts, being in the nature of individual-retirement arrangements, may well have fallen within the definition of “retirement benefits” whose inclusion in divisible marital property is statutorily conditioned upon the parties’ “hav[ingj been married for a period of 10 years during which the retirement was being accumulated,” see Ala. Code 1975, § 30 — 2—51(b)(1), Alabama law simultaneously recognizes both that “a transfer of property made to defeat a spouse’s rights in marital property is voidable” and that “[wjhether a transfer is made to defeat a spouse’s property rights is a question of fact” (Pattillo v. Pattillo, 414 So.2d 915, 916 (Ala.1982)); further, as this court has previously noted, “[a] court of equity in a divorce case has power to use any reasonable means to effect a just property settlement and adjust the equities of the parties.” Jernigan v. Jernigan, 344 So.2d 778, 780-81 (Ala.Civ.App.1977). From the evidence of record, the trial court could properly have determined, as it did, that the husband’s having shifted over $90,000 of marital assets from bank accounts titled in the names of dubious corporate entities to various “retirement” accounts after having had notice of the wife’s dissatisfaction with the marriage was an effort to hinder an equitable property settlement upon dissolution of the marriage, and we affirm the trial court’s treatment of those accounts.

The husband also contends that the trial court erred in imputing a monthly income to him of $9,000 with respect to calculating his child-support obligation. We note that, in setting child support, the trial court is afforded the discretion to impute income to a parent when a parent is voluntarily unemployed or underemployed — a determination that, in turn, is to be made from the evidence presented. See Bittinger v. Byrom, 65 So.3d 927, 934 (Ala.Civ.App.2010).

Although the husband correctly notes that the trial court’s judgment refers to the existence of the “sham” business entities as indications of the voluntariness of the husband’s unemployment, there is substantial evidence indicating that the husband is voluntarily unemployed without reference to those entities. The husband testified that his employment with Organo-genesis was terminated by that company in February 2011 based upon salary considerations, but he denied having sought to keep his job at a reduced salary. Also, evidence regarding his subsequent job-search efforts was by no means clear and unequivocal. Although the husband testified that he was “exhaustively” working with 20 of the “best recruiters in the business” of medical consulting “trying to find good employment” and that he spent time daily “networking,” he admitted that he had submitted job applications only through such recruiters rather than making any such applications on his own behalf. In a motion to continue in the cause, the husband represented to the trial court, through counsel, that he would not be able to attend a scheduled April 11, 2011, hearing because of “an appointment out of state involving possibilities of new employment,” yet he later admitted at trial that, during that month, he had actually left Alabama simply to enjoy a free trip to California that a male friend of his had won.

Under Rule 32(B)(5), Ala. R. Jud. Admin., a trial court, in “determining the amount of income to be imputed to a parent who is unemployed or underemployed,” is directed to “determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.” In this case, the husband had earned $9,000 per month until three months before trial; he had 10 years of work experience in the health-care field following his college graduation; and the husband himself testified that he was “[v]ery” optimistic about gaming employment at the same approximate income he had previously earned. Acting within its discretion, the trial court, from the evidence we have summarized, could properly have determined that the husband had the ability to earn as much as he had earned previously if he were to make a concerted effort to obtain employment; because the trial court’s determination was not “plainly or palpably wrong,” Bittinger, 65 So.3d at 934, its judgment is due to be affirmed as to the child-support issue.

Finally, we turn to the husband’s final issue, in which he assails the property division as a whole as being “inequitable and unjust” because, he says, the trial court “ignored the undisputed evidence of the legitimacy of the [hjusband’s retirement accounts and imputed nonexistent income to the [h]usband.” The underlying premise of the husband’s argument as to that issue, however, presupposes that the retirement accounts were, in fact, legitimate and that income was, in fact, improperly imputed; our conclusions to the contrary in our consideration of the husband’s second and third issues render that premise unsound. The trial court, in exercising its discretion to divide the marital property, was free to consider factors other than the husband’s claim that the wife was at fault in precipitating the divorce; notably, the trial court could properly have deemed significant the wife’s questionable future prospects given her lack of a college diploma and her primary custody of the parties’ four young children. See Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996) (outlining numerous factors considered in dividing property incident to a divorce). Thus, to the extent that the trial court’s property division may have favored the wife, we cannot conclude that it is inequitable so as to be plainly and palpably wrong. Golden, 681 So.2d at 608.

Based upon the foregoing facts and authorities, we affirm the trial court’s judgment in its entirety except for that portion finding the husband to be in contempt based upon his purported noncompliance with the April 2011 pendente lite order; as to that component alone, we reverse the judgment, and we remand the cause to the trial court for vacation of that portion of the judgment. The wife’s request for an award of an attorney’s fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BRYAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . There is no indication in the record that the "Live Free" entity was actually operated or was intended to be operated as a limited-liability company so as to warrant the use of the identifier "LLC” or as a limited-liability partnership so as to warrant the use of the identifier "LLP."

      . Although the husband avers that the trial court improperly mandated that the transfer of the wife’s portion of those accounts be "non-taxable,” he cites no authority tending to show that a "Qualified Domestic Relations Order” could not issue to the various plan administrators directing recognition of the wife's rights under the judgment. Cf. Stamm v. Stamm, 922 So.2d 920, 922-23 (Ala.Civ.App.2004) (discussing such orders).

      . The trial court also imputed a federal-minimum-wage income to the wife, who lacks a college degree and did not work outside the home during the parties’ marriage.

      . The husband, in a tabular rendering of the property division contained in his brief on appeal, incorporates his position that he will suffer tax liabilities as a necessary component of implementing the trial court’s division of the retirement accounts stemming from its determination that the husband had secreted assets. That position is, however, unsupported. See note 2, supra.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Sean G. CASEY v. Jonice Dorriety CASEY.
    2110324.
    Court of Civil Appeals of Alabama.
    Oct. 19, 2012.

      John L. Jernigan III of Jernigan Law Firm, P.C., Brewton, for appellant.
    William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for appellee. (Per Pittman, J., with four Judges concurring in the result.)
   PITTMAN, Judge.

Sean G. Casey (“the former husband”) appeals from an order of the Escambia Circuit Court purporting to deny his motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from a default judgment that had been entered against him by that court in postdivorce proceedings involving him and Jonice Dorriety Casey (“the former wife”). Because we conclude that the former husband’s appeal has been taken from a void order, we dismiss the appeal with instructions.

This is the second appeal arising from litigation involving these parties. See Casey v. Casey, 85 So.3d 435 (Ala.Civ.App.2011) (opinion on application for rehearing). That opinion summarized much of the pertinent procedural background:

“The former husband and the former wife were married in 1999; in 2000, the former husband reentered military service and was temporarily transferred to Florida. During that time, the former wife resided in Atmore and waited for the former husband to receive a permanent assignment; the parties’ child was born in September 2000. The parties never reunited, and, in 2003, they decided to proceed with an uncontested divorce. Although the divorce documents were prepared in 2003, the divorce judgment was not entered until December 2006, in part because the former husband had been sent overseas. The divorce judgment incorporated an agreement of the parties; that judgment awarded physical custody of the parties’ child to the former wife, awarded the former husband liberal visitation, and ordered the former husband to pay $500 in monthly child support.
“The record reveals that, after leaving military service in June 2003, the former husband took employment with a private security company that sent him to Iraq in July 2004; he did not return to Florida until March 2005. Thereafter, he traveled to Idaho briefly and then returned to Florida until September 2005. At that time, he moved to Pennsylvania to attend school and remained there until June 2007. Subsequently, the former husband remarried and moved to New Jersey, staying there until September 2007, when his employer sent him to Saudi Arabia until February 2008.
“In May 2007, the former wife filed an action seeking a judgment declaring that the former husband was in contempt for failing to pay $819 in child support and $2,900 in medical expenses (case no. DR-03-180.01); the former husband was served with the complaint in that action in July 2007. At that time, he was notified that a hearing was set for September 2007, when he was scheduled to be in Saudi Arabia, so he hired an attorney in Bay Minette to represent him and to seek a continuance until his return from overseas. After the September 2007 hearing was continued, the former husband terminated the services of that attorney; however, unknown to the former husband, another hearing had been scheduled for December 13, 2007; nothing in the record indicates that the former husband received formal notification from the trial court of that December hearing date. However, the record does contain a November 2007 e-mail message from the former husband to the former wife in which the former husband acknowledged ‘knowing’ that a December hearing date regarding the unpaid child support and medical bills had been set. The former husband telephoned his current wife in New Jersey and discovered that she had not received any notice of an upcoming hearing, so he ‘assumed’ that there would be no hearing in December 2007. When the former husband returned from Saudi Arabia in February 2008, he received notification of the entry of a default judgment that had been entered against him. That judgment had determined the former husband’s child-support arrearage to be $29,000.
“... The record does not indicate that the former wife amended her contempt complaint to reflect any increase in her child-support-arrearage claim; moreover, the record does not reflect that any official notice of the December 2007 hearing was sent to anyone representing the former husband other than the former husband’s previous attorney. The record also reflects the fact that the former husband, acting pro se, filed a motion for relief from the default judgment on June 9, 2008. Then, on June 25, 2008, the former husband filed a request seeking a modification of visitation, a modification of child support, and the right to claim the child as a dependent for tax purposes and requests concerning the transportation costs of visitation and potential relocation of the parties; that action was assigned case no. DR-03-180.02. The former wife filed an answer; she also filed a counterclaim seeking an order requiring that the former husband be instructed to obtain professional treatment for certain alleged substance-dependency and mental-health issues before being awarded unsupervised visitation with the child.

85 So.3d at 437-38.

As we noted in our opinion on rehearing in the former appeal, “[t]he trial court conducted a bifurcated ore tenus proceeding to address all pending motions on April 21 and August 31, 2009.” 85 So.2d at 439. The trial court, at the outset of the presentation of evidence on August 31, 2009, made the following remarks:

“THE COURT: Now let me also make it clear, we’ve got a case number that is a 180, another case number that’s 180.01 another one which is the 180.02. And for purposes of what we are doing, and whether I did it before or not, I’m consolidating all three of these actions and that are all hereby consolidated as one action regardless of what are the allegations therein. And from this point forward, any future filing or pleading in this proceeding will be identified under the .02 action. And the reason I do this is that we do have some filings that are in some of, I think the .01 may have a file, maybe the .00, and it all needs to be under one heading, one case number, so that we can functionally look in that file and see everything that is out there.
“[Counsel for the former husband]: What was the number we’re going to go by?
“THE COURT: We are going by DR 03-180.02. And that’s just for administrative purposes so that we all have one case number to file things in. So be it. Any future filings, unless of course there was at some point way down the road where there might be another petition to modify or contempt that could be a .03, but at this stage of the process, everything is consolidated under .02. All pending claims, et cetera. And as far as the future filings .02, unless it’s a new action, which the attorneys would understand.”

(Emphasis added.)

On September 30, 2009, the trial court entered a judgment in case no. DR-03-180.02 that, among other things, denied the former husband’s Rule 60(b) motion to set aside the default judgment that had been entered in January 2008; modified the visitation provisions of the parties’ divorce judgment so as to award the former husband supervised visitation with the child during specified school vacations; ordered the former husband to be evaluated by a qualified mental-health professional and to submit to periodic drug testing every 60 days for a specific period; and denied the former husband’s requests for a modification of child support, to claim the child as a dependent for tax purposes, and for current and prospective relief as to transportation costs of visitation. On October 27, 2009, the former husband filed a motion, pursuant to Rules 59(a) and 59(e), Ala. R. Civ. P., seeking either a new trial or that the trial court alter, amend, or vacate the September 30, 2009, judgment; that motion was accompanied by a memorandum of facts and law that, among other things, challenged the trial court’s ruling in the September 30, 2009, judgment as to the Rule 60(b) motion that the former husband had filed in case no. DR-03-180.01. The trial court denied the former husband’s Rule 59 motion on December 30, 2009.

The former husband filed a notice of appeal on January 15, 2010, in case no. DR-03-180.02; in his brief in that appeal, the former husband contended that the trial court had erred in denying the Rule 60(b) motion filed in case no. DR-03-180.01, that he had been erroneously ordered to undergo drug testing and a mental-health evaluation, and that the trial court had erroneously awarded the former wife an attorney’s fee. That appeal was assigned appeal no. 2090371. On March 4, 2011, this court, on original submission, issued an opinion in appeal no. 2090371 in which we concluded, in pertinent part, that, to the extent the former husband sought review of the trial court’s denial of his motion for relief under Rule 60(b) from the judgment previously entered in case no. DR-03-180.01, the former husband’s appeal had not been timely taken:

“As an initial matter, we note that the issues raised by the former husband as [the appeal] relates to the denial of his Rule 60(b) motion may not be considered, because the former husband’s appeal from that denial is untimely. As we have noted, the trial court denied the former husband’s Rule 60(b) motion on September 30, 2009; however, the former husband waited until January 15, 2010, to appeal from that ruling.
“ ‘After a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive post-judgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal.’
“Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998); see also Green v. Green, 43 So.3d 1242, 1244 (Ala.Civ.App.2009) (trial courts lack jurisdiction to entertain successive motions after entry of a final judgment requesting same or similar relief as a party’s original motion or requesting reconsideration of denial of original postjudgment motion). Thus, to the extent the trial court’s September 30, 2009, judgment denied the former husband’s motion for relief from the January 31, 2008, default judgment, the former husband’s filing of his October 27, 2009, motion did not suspend the 42-day period for filing a notice of appeal as to the trial court’s denial of his Rule 60(b) motion. The notice of appeal filed on January 15, 2010, was not filed within the 42-day appeal period following the entry of the September 30, 2009, judgment. See generally Rule 4(a)(1), Ala. R.App. P. Because the former husband’s appeal of the trial court’s denial of his Rule 60(b) motion is not timely, we dismiss that portion of the appeal, and we address only those issues as to which the former husband’s appeal is timely.”

(Footnote omitted.)

The former husband filed a timely application for rehearing in appeal no. 2090371. In his application for rehearing, the former husband asserted that the trial court had not entered its September 30, 2009, judgment in case no. DR-03-180.01 and posited that this court had erred in concluding that his appeal was due to be dismissed in part. Although the former husband had raised that issue for the first time on rehearing, and although it was proposed to the court that the rehearing application as to that point be overruled on that basis, that proposal was not accepted by all the members of this court. Ultimately, it was agreed by a majority of the court that, even if the former husband’s belated invocation of the general rule regarding consolidation (i e., that when actions are consolidated, each action retains its separate identity so as to require the entry of separate judgments) was appropriate, the former husband had not similarly insisted upon that same principle of separateness because his own notice of appeal had been filed in only case no. DR-03-180.02. This court elected to withdraw its March 4, 2011, opinion and to release a new opinion simply quoting the general rule requiring separate judgments and deeming the scope of the former husband’s appeal to be limited to only those issues adjudicated by the trial court that had originally arisen in case no. DR-08-180.02. Casey v. Casey, 85 So.3d at 439-40 (opinion on application for rehearing).

This court’s substituted opinion in appeal no. 2090371 was issued on July 29, 2011, after which the former husband, pursuant to Rule 39, Ala. R.App. P., filed a petition for a writ of certiorari in August 2011 seeking further review by our supreme court. However, in September 2011, the former husband, before the issuance of this court’s certificate of judgment in appeal no. 2090371, filed a motion in the trial court requesting the entry of “a final and appealable judgment” in case no. DR-03-180.01. On November 30, 2011, while the former husband’s certiorari petition was pending, the trial court entered an order purporting to again deny the June 9, 2008, motion for relief from the judgment entered in case no. DR-03-180.01, but it expressly opined in that order that it had been that court’s intent “that [its] September 30, 2009, order addressed all of the issues presented ... by the parties on the consolidated actions in Case No. DR-03-180.01 and Case No. DR-03-180.02.” The former husband filed a notice of appeal on December 6, 2011, purporting to appeal from that order; that appeal was docketed in this court as appeal no. 2110324. The former husband’s certiorari petition in appeal no. 2090371 was not acted upon until December 9, 2011, when it was denied, and this court’s certificate of judgment in that appeal did not issue until December 12, 2011.

The statements of the trial court made at the August 29, 2010, hearing by which “everything,” i.e., “[a]ll pending claims” involving the parties, were “consolidated” within case no. DR-03-180.02, and its indication in the November 30, 2011, order that its September 30, 2009, judgment had been intended to “address[ ] all of the issues presented ... by the parties on the consolidated actions,” cast considerable doubt upon the proposition that case no. DR-03-180.01 could properly be said to have had any continuing separate existence after the trial court’s consolidation directive such that the trial court would have had any jurisdiction to enter a separate order in November 2011 in that case that would support an appeal. Cf. Schnabel v. Lui, 302 F.3d 1023, 1035 (9th Cir.2002) (discussing the authority of trial courts under Rule 42, Fed.R.Civ.P., to fully “merge” actions together). However, it is not necessary in this appeal to decide that issue, because the order from which the former husband has attempted to appeal is clearly void: the trial court lacked jurisdiction to take any action affecting the issues raised by the parties in appeal no. 2090371 in advance of the issuance of this court’s certificate of judgment on December 12, 2011, in that case. See Reneke v. Reneke, 920 So.2d 579, 584 (Ala.Civ.App.2005), and Portis v. Alabama State Tenure Comm’n, 863 So.2d 1125, 1126 (Ala.Civ.App.2008). We thus dismiss the former husband’s appeal with instructions to the trial court to vacate its November 30, 2011, order.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur in the result, without writings.

      ‘‘Although the former wife contends that that motion was an untimely Rule 59, Ala. R. Civ. P., postjudgment motion because (1) the motion was filed more than 30 days after the entry of the judgment and (2) the former husband, albeit inartfully, pleaded that the judgment was void on due-process grounds, we conclude that the former husband’s post-judgment motion was a Rule 60(b) motion, and we treat it as such in this opinion. See, e.g., Ex parte Lang, 500 So.2d 3 (Ala.1986), and Curry v. Curry, 962 So.2d 261 (Ala.Civ.App.2007).”


author: KELLUM, Judge.

text:
    Donovan Myguel SISTRUNK v. STATE of Alabama.
    CR-11-1027.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.

      Rebecca Denean McCorkel, Dothan, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Donovan Myguel Sis-trunk, pleaded guilty to unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975. The circuit court sentenced Sistrunk to a total of 25 years’ imprisonment: 15 years’ imprisonment for the unlawful-distribution conviction plus a 5-year enhancement pursuant to § 13A-12-250, Ala.Code 1975, because the offense took place within a 3-mile radius of a school, and a 5-year enhancement pursuant to § 13A-12-270, Ala.Code 1975, because the offense took place within a 3-mile radius of a public-housing project. The circuit court ordered Sistrunk to pay a fine of $5,000, $2,500 to the Crime Victims Compensation Fund, court costs, and attorney fees. Sistrunk timely filed a motion to set aside his guilty plea on April 2, 2012, which the circuit court denied on the same day. This appeal followed.

I.

Sistrunk contends that the circuit court abused its discretion in denying his motion to withdraw his guilty plea. Specifically, Sistrunk contends that he did not knowingly, voluntarily, and intelligently enter his guilty plea because the circuit court failed to advise him of the minimum and maximum sentence range for his offense as required by Rule 14.4(a)(l)(ii), Ala. R.Crim. P.

Sistrunk raises this issue for the first time on appeal. In his April 2, 2012, motion to withdraw his guilty plea, Sis-trunk moved to set aside his guilty plea solely on the basis that “he believe[d] his sentence was not in the interests of justice.” (C. 30.) Thus, Sistrunk limited his challenge to the actual sentence he received and did not challenge, as he does on appeal, the deficiencies in the circuit court’s guilty-plea colloquy. “ ‘ “The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” ’ Culp v. State, 710 So.2d 1357, 1359 (Ala.Crim.App.1996), quoting Ex parte Frith, 526 So.2d 880, 882 (Ala.1987).” Ginn v. State, 894 So.2d 793, 795 (Ala.Crim.App.2004). “ ‘[CJlaims relating to the voluntariness of guilty pleas must first be presented to the trial court or they are waived on direct appeal.’ ” Danzey v. State, 703 So.2d 1019 (Ala.Crim.App.1997), quoting Anderson v. State, 668 So.2d 159, 162 (Ala.Crim.App.1995). Because the specific claim Sistrunk raises on appeal was not first presented to the circuit court, it is not properly before this Court for review. Ginn, supra.

II.

Sistrunk also contends that the circuit court abused its discretion in sentencing him to 25 years’ imprisonment because, he argues, the circuit court imposed a sentence in accordance with both the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975 (“the HFOA”), and the voluntary sentencing guidelines. The State concedes on appeal that the “hybrid” sentence imposed by the circuit court was not authorized under Alabama law.

The record indicates that after Sistrunk pleaded guilty, the following exchange occurred during sentencing:

“THE COURT: All right. What is the recommendation of the State?
“[PROSECUTOR:] Judge ... my recommendation would be twenty-one years, a five thousand dollar fine, and a twenty-five hundred dollar Victim Compensation Fund Assessment.
“THE COURT: That does not include the enhancement?
“[PROSECUTOR:] No, sir, that does not.
“[DEFENSE COUNSEL:] Your Hon- or, I have prepared the guidelines. And I do have a case from the Court of Criminal Appeals out of Lauderdale County which says that the Court can follow the guidelines. Your Honor, if the Court gives Mr. Sistrunk the minimum, the minimum would be three hundred and sixty months. The guidelines call for a maximum of a hundred and fifty-four months.
“And, Judge, I would ask the Court to take into consideration the huge disparity between the guidelines and the minimum sentence of three hundred and sixty months.
“And, obviously, Judge if the Court is not going to follow the guidelines, we would like something between a hundred and fifty four and three sixty. And, certainly, we would, at least, ask for the minimum.
“THE COURT: Well, even with the minimum, with two enhanced five years, that would bring it up to twenty-three years.
“[DEFENSE COUNSEL:] We would ask for any mercy the Court would consider.
“THE COURT: All right. I’m going to split between the guidelines and the [HFOA] and sentence him to a hundred and eighty months with an additional ten years for the enhanced punishment of a drug sale near a school and near a housing project for a total sentence of twenty-five years.”

(R. 7-10.)

The Alabama Sentencing Reform Act of 2008 (“the Act”), as amended effective October 1, 2006, created voluntary sentencing standards to, among other things, assist trial judges in determining the most appropriate sentence for convicted felony offenders. See § 12 — 25—B1 (a)(1), Ala.Code 1975. “The Act gives a trial judge discretion to either sentence a defendant pursuant to the voluntary sentencing standards or pursuant to the HFOA.” State v. Crittenden, 17 So.3d 253, 259 (Ala.Crim.App.2009). If a trial judge sentences a defendant pursuant to the voluntary sentencing standards, our review of the sentence imposed is “ ‘limited to whether the sentence fell within the permissible statutory range.’ Smith v. Commonwealth, 26 Va.App. 620, 626, 496 S.E.2d 117, 120 (1998).” State v. Jones, 13 So.3d 915, 920 (Ala.2008). Section 12-25-35(c), Ala.Code 1975, of the Act addresses appellate review of sentences imposed pursuant to the Act and provides:

“In any felony case in which the trial court imposes a sentence that departs from the voluntary standards, and sentences outside the voluntary sentencing standards in accordance with existing law, the court may provide a brief written reason for the departure. Neither the departure nor the reason stated for the departure shall be subject to appellate review....”

(Emphasis added.)

In the instant case, the record indicates that the circuit court declined to choose whether to sentence Sistrunk pursuant to the voluntary sentencing standards or pursuant to the HFOA but, instead, chose to “split between” the two and created a “hybrid” sentence. Defense counsel provided the circuit court with worksheets authorized by the Act that recommended Sistrunk receive a straight sentence of between 81 and 154 months. The circuit court, however, declined to sentence Sistrunk within the range provided and instead went “outside the voluntary sentencing standards” and sentenced Sistrunk to 180 months’ imprisonment.

Sistrunk, who was convicted of a Class B felony, see § 13A-12-211(b), Ala.Code 1975, and who had more than three prior felony convictions, was subject to a mandatory sentence under the HFOA of “imprisonment for life or any term of not less than 20 years.” § 13A-5-9(c)(2), Ala.Code 1975. Further, the two five-year enhancements also were mandatory, pursuant to §§ 13A-12-250 and -270, Ala.Code 1975, because the sale occurred within a three-mile radius of a school and within a three-mile radius of a public housing project. Therefore, if Sistrunk had been sentenced under the HFOA, his mandatory minimum sentence would have been 30 years’ imprisonment. Accordingly, the 25-year sentence imposed by the circuit court in the instant case was not authorized under the HFOA.

Likewise, the circuit court’s sentence under the voluntary sentencing standards was improper because it exceeded the maximum sentence recommended by the guidelines. Further, any imposition of mandatory enhancements under the guidelines is prohibited. See § 12-25-34(c), Ala.Code 1975 (“No additional penalties pursuant to any sentence enhancement statute shall apply to sentences imposed based on the voluntary sentencing standards.”). Therefore, the circuit court could not impose a sentence under the voluntary sentencing standards and then impose the enhancements under §§ 13A-12-250 and -270, Ala.Code 1975.

Sistrunk’s guilty-plea conviction is affirmed; however, for the reasons set forth above, we remand this case to the Houston Circuit Court for that court to resentence Sistrunk on his unlawful-distribution conviction pursuant to either the HFOA or the voluntary sentencing standards. See Crittenden, supra.

Moreover, the record reflects that the circuit court failed to assess the mandatory fine under the Demand Reduction Assessment Act, § 13A-12-281, Ala.Code 1975, and the mandatory Alabama Forensic Services Trust Fund fee as provided for in § 36-18-7(a), Ala.Code 1975, for Sistrunk’s drug conviction. We therefore also instruct the circuit court to assess the appropriate fines and fees as mandated by § 13A-12-281 and § 36-18-7(a).

Due return should be filed in this Court no later than 42 days from the date of this decision.

AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED FOR NEW SENTENCING PROCEEDINGS.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

       Note from the reporter of decisions: On October 26, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: DAVIS, Judge.

text:
    Thomas W. CUTLER and Ann Cutler, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Structured Asset Investment Loan Trust, 2006-BNC3, Appellee.
    No. 2D10-5709.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    Rehearing Denied March 15, 2013.
    J. Michael Shea of St. Michael’s Legal Center for Women and Children, Inc., Tampa, for Appellants.
    Michael K. Winston, Dean A. Morande, and Cynthia L. Comras of Carlton Fields, P.A., West Palm Beach, for Appellee.
   DAVIS, Judge.

Thomas W. Cutler and Ann Cutler challenge the final summary judgment entered in favor of U.S. Bank National Association in U.S. Bank’s mortgage foreclosure action against them. Because a genuine issue of material fact remains with regard to whether U.S. Bank was the proper holder of the note, we reverse and remand for further proceedings.

On September 22, 2008, U.S. Bank filed a two-count complaint against the Cutlers seeking to foreclose their mortgage and to establish the lost, destroyed, or stolen note. Attached to the complaint was a copy of the mortgage that listed BNC Mortgage, Inc., as the lender. The complaint alleged that the mortgage had been assigned to U.S. Bank, but no assignment was attached.

The Cutlers responded to the complaint with a letter in which they stated that they were seeking a loan modification and that they “ha[d] not been able to successfully make payments on [their] Home Loan.”

After moving for summary judgment on February 18, 2010, U.S. Bank filed the original note with an attached allonge signed in blank and undated. The original note is signed by Mr. Cutler but not by Mrs. Cutler.

On October 6, 2010, prior to the summary judgment hearing, counsel for the Cutlers filed a notice of appearance and a motion to dismiss the complaint, alleging that U.S. Bank lacked standing to bring the foreclosure action.

At the October 11, 2010, hearing on U.S. Bank’s motion for summary judgment, the trial court granted the motion and set the date of foreclosure sale. The final judgment was entered the following day. The Cutlers moved for rehearing, challenging U.S. Bank’s standing to foreclose and alleging that “[i]n 2008 the Plaintiff did not hold the promissory note that is the subject of this cause of action and [that] the Plaintiff had no interest in the mortgage attached to the [complaint].” The trial court denied the Cutlers’ motion.

On appeal, the Cutlers first argue that the trial court erred in granting final summary judgment because U.S. Bank lacked standing to bring the foreclosure action. With regard to the mortgage, the Cutlers are correct that it was not assigned to U.S. Bank until nearly two years after the complaint was filed. However, the date of the assignment of the mortgage is irrelevant because ‘“[i]f the note or other debt secured by a mortgage [is] transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt....’” WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004) (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938)).

As such, the question becomes whether U.S. Bank was the holder of the note at the time it filed its complaint. See Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007) (“The holder of a note has standing to seek enforcement of the note.”). In its complaint, U.S. Bank did indeed allege that it was the holder of the note. The Cutlers admitted this allegation by not specifically denying it in their letter to U.S. Bank which served as their answer. See Fla. R. Civ. P. 1.110(e) (“Averments in a pleading to which a responsive pleading is required ... are admitted when not denied in the responsive pleading.”). Furthermore, at no time did the Cutlers seek to amend their answer or to file affirmative defenses. However, in their motion to dismiss, and then again in their motion for rehearing, the Cutlers did argue that U.S. Bank lacked standing to bring the foreclosure action because it did not hold the note when it initiated the suit. This allegation was sufficient to bring the issue to the attention of the trial court and to preserve it for appellate review. Cf. Maynard v. Fla. Bd. of Educ., 998 So.2d 1201, 1206 (Fla. 2d DCA 2009) (“[S]ince Maynard did raise the issue of standing below in his motion to set aside the verdict and judgment, .... the issue has not been waived.”).

Accordingly, a genuine issue of material fact remained as to whether U.S. Bank was the proper holder of the note at the time it initiated the foreclosure action. The note includes the allonge endorsed in blank, but the allonge is not dated. If indeed U.S. Bank cannot establish that the allonge took effect prior to the date of the complaint, it did not have standing to bring suit. See Feltus v. U.S. Bank Nat’l Ass’n, 80 So.3d 375, 377 n. 2 (Fla. 2d DCA 2012) (“A cause of action must be complete before a party files a lawsuit.... Thus ... [U.S. Bank] would have needed to prove the endorsement in blank was effectuated before the lawsuit was filed.” (citations omitted)); Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did not own or possess the note ... when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”); see also Barrington v. Gryphon Invs., Inc., 32 So.3d 668, 670 (Fla. 2d DCA 2010) (“ ‘[T]he burden of proving the absence of a genuine issue of material fact is upon the moving party.’ ” (alteration in original) (quoting Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966))).

Because a genuine issue of material fact remains, the trial court erred in entering a final summary judgment. Id. (“ ‘[A] summary judgment is proper only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered.’ ” (quoting Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400 (Fla. 2d DCA 2004))). Accordingly, we must reverse and remand for further proceedings.

Reversed and remanded.

WHATLEY and WALLACE, JJ„ Concur.

      . Specifically, count two of the complaint sought "entry of judgment confirming its right to enforce the lost Note and Mortgage.”

      . We note that there is no merit to the Cutlers' argument that Mrs. Cutler cannot be foreclosed on because she did not sign the note. She did sign the mortgage; therefore, a judgment on the note may not be entered against her, but a foreclosure on the mortgage can.


text:
    Larry PATTERSON as Father and Next Friend of Katie Patterson, a minor, Appellant, v. FIRSTLEASE, INC.; Sergio Gutierrez, II; Drop Ship Direct, Inc.; and Harco National Insurance Company, Appellees.
    No. 2D11-3762.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2012.
    Rehearing Denied March 15, 2013.

      Mark T. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg, for Appellant.
    Timón V. Sullivan of Ogden & Sullivan, P.A., Tampa, and Diane B. Carvell of Rawle & Henderson, LLP, Harrisburg, Pennsylvania, for Appellee Harco National Insurance Company.
    No appearance for remaining Appellees.
   DAVIS, Judge.

Larry Patterson, as Father and Next Friend of Katie Patterson, a minor, challenges the trial court’s final summary judgment in favor of Harco National Insurance Company in Patterson’s declaratory judgment action against Harco. In that underlying action, Patterson sought a determination that Drop Ship Direct, Inc., and Sergio Gutierrez, II, were named insureds under a Harco insurance policy issued to FirstLease, Inc. The trial court determined that Drop Ship and Gutierrez were not named insureds on the policy and that the policy provided no coverage for them. We do not agree with this conclusion and thus reverse the trial court’s final judgment and remand for further proceedings.

On April 29, 2005, Patterson’s minor daughter was injured in a motor vehicle accident that involved a box truck driven by Gutierrez in the scope of his employment with Drop Ship. Drop Ship had leased the truck from FirstLease, and Fir-stLease carried motor vehicle coverage for its rental vehicles with Harco.

Patterson filed a personal injury action naming FirstLease, Drop Ship, and Gutierrez as party defendants. Harco, as the insurer of FirstLease, denied all coverage and did not provide FirstLease a defense in the cause of action. Patterson settled with FirstLease and continued the action with Drop Ship and Gutierrez. Drop Ship and Gutierrez agreed to the entry of a stipulated judgment against them. Subsequently, they assigned to Patterson any rights they had against Harco under the FirstLease policy. He then filed the instant declaratory action against Harco, asking that the trial court determine that the policy issued by Harco provided coverage for Drop Ship and Gutierrez as named insureds.

The policy in question designates as the named insureds FirstLease and “[ajnyone else while using with your permission a covered ‘auto’ you own, hire or borrow,” with certain enumerated exceptions that do not apply here. Without further consideration, Drop Ship and Gutierrez meet this definition because Gutierrez was an employee of Drop Ship and FirstLease leased the vehicle to Drop Ship for the specific purpose of use by Drop Ship’s employees in the course of performing Drop Ship’s business.

However, the policy also included an endorsement entitled “Leasing or Rental Concerns — Contingent Coverage.” This form alters the coverage provided by the policy when the covered vehicle is being used pursuant to a lease or rental agreement at the time of the accident. For such vehicles, the endorsement states:

Section 1. Coverages
A. Liability Insurance ... provided by the policy for a covered “auto” which is a “leased auto” or “rented auto” applies subject to the following provisions:
3.For the lessee or rentee, any employee or agent of the lessee or rentee or any person, except you or your employees or agents, operating the leased or rented auto with the permission of any of these, the limit of insurance provided by this endorsement is the minimum limit required by any applicable compulsory or financial responsibility law. This endorsement does not apply to the limit or limits specified by any law governing Motor Carriers of passengers or property.
4. The insurance provided by this endorsement does not apply if any other insurance is collectible.
5. The insurance proved by the endorsement does not apply as excess insurance to any other policy.

The rider then goes on to define certain terms as follows:

“Leased Auto” means an “auto” you lease to a customer (lessee) for one year or more, including any substitute or extra “auto” you provide under a lease agreement where the lessee is providing primary insurance for you.
“Lease or rental agreement” means the written contract or agreement between you and the lessee or rentee of your “auto,” and includes those provisions which establish responsibility for providing primary insurance coverage or indemnity.

FirstLease and Drop Ship entered into a lease agreement that required Drop Ship to obtain “bodily injury and property damage liability” insurance coverage and to provide proof of such to FirstLease. The agreement specifies as follows: “Such insurance shall be primary with respect to OWNER, and any insurance carried by the OWNER shall not inure to the benefit of RENTER or RENTER’S agents, servants, or employees.”

Drop Ship did obtain insurance coverage from Progressive Insurance Company, and Progressive has paid out its policy limits to individuals involved in this accident. The question now before this court is whether the two permissive users — Drop Ship and Gutierrez — were covered under the Harco policy in the instant circumstances. If they were, the trial court erred in granting summary judgment in favor of Harco. The determination of whether the policy provides coverage turns on whether Fir-stLease effectively shifted the responsibility of carrying primary coverage to Drop Ship by the lease agreement and thereby met the specifics of the endorsement such that, by the terms of the endorsement, Drop Ship and Gutierrez would not be covered by the policy.

This was the argument made by Hareo below and the basis on which the trial court granted summary judgment in Harco’s favor. That is, Harco argued that because the lease agreement required Drop Ship to provide the coverage and Drop Ship in fact did so via its Progressive policy, the Hareo policy does not provide Drop Ship or its employees any coverage because the plain language of the policy endorsement “does not apply if any other insurance is collectible.”

However, Patterson argues on appeal, as he argued below, that the terms of the lease agreement did not effectively shift the responsibility for providing primary coverage to Drop Ship. Patterson maintains that because FirstLease failed in its attempt to shift the responsibility, the Progressive policy was not the primary coverage policy and the truck driven by Gutierrez did not meet the definition of a “covered auto” provided in the endorsement. According to Patterson, because the truck did not meet this definition, the exclusions provided by the endorsement do not apply and Drop Ship and Gutierrez are named insured as defined in the body of the policy (i.e., using the vehicle with FirstLease’s permission).

Patterson bases this argument on section 627.7268(1), Florida Statutes (2004), which provides that the lessor’s liability insurance coverage on a vehicle that is subject to a lease agreement is the primary coverage “unless otherwise stated in at least 10-point type on the face of the rental or lease agreement.” Subsection (2) of the statute provides that “[i]f the lessee’s coverage is to be primary, the rental or lease agreement must contain [certain] language, in at least 10-point type.” The parties agree that the lease agreement between FirstLease and Drop Ship did not meet these statutory requirements.

Patterson argues that because the leasing agreement did not meet the statutory requirements, FirstLease did not successfully transfer the responsibility of providing the primary insurance coverage to Drop Ship. Patterson further asserts that because the transfer was ineffective, Fir-stLease — not Drop Ship — was providing the primary coverage, resulting in the truck not meeting the definition of a “covered auto” that is included in the policy endorsement. Thus, according to Patterson, the exclusion does not apply and by the terms of the body of the insurance policy, Drop Ship and Gutierrez, as permissive users, are named insureds under the policy.

Harco, however, argues that section 627.7263 does not apply because it has been preempted by the Graves Amendment, 49 U.S.C. § 30106, which precludes liability being established against the owner of a rental vehicle on the basis of the common law principle of vicarious liability. We disagree.

“Congress in 2005, through the Graves Amendment, clearly sought to eliminate vicarious liability for a specific category of ovmer/lessors ... — those ‘engaged in the trade or business of renting or leasing motor vehicles.’ ” Vargas v. Enterprise Leasing Co., 60 So.3d 1037, 1042 (Fla.2011) (emphasis added) (quoting 49 U.S.C. § 30106(a)(1)). As such, had FirstLease not settled with Patterson, it, as the owner/lessor of the truck, may have been able to insulate itself against liability by raising the Graves Amendment. However, the claims at issue here are against Drop Ship and Gutierrez and are based on the negligence of Gutierrez as the driver of the truck and Drop Ship’s vicarious liability as Gutierrez’s employer. Because there is no judgment against FirstLease as owner, the Graves Amendment does not apply. See id. Rather, FirstLease provided liability coverage which, by statute, remains the primary coverage. As permitted users, Drop Ship and Gutierrez are named insured of that policy and thus are entitled to coverage for the judgment entered against them.

We note that Patterson also argues that the trial court erred in denying his motion for summary judgment as to two of Har-co’s affirmative defenses. We conclude, without further comment, that this argument is without merit.

In conclusion, because Drop Ship and Gutierrez are named insureds under the Harco policy, we must reverse the final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI and LaROSE, JJ„ Concur.

      . The endorsement also specified that the Harco policy would not be payable as excess coverage.

      . The specified language is as follows: "The valid and collectible liability insurance and personal injury protection insurance of any authorized rental or leasing driver is primary for the limits of liability and personal injury protection coverage required by ss. 324.021(7) and 627.736, Florida Statutes.” § 627.7263(2).

      . We also note that if the provisions of subsections (4) and (5) of the policy endorsement do not apply, Harco may be liable for excess coverage even if another policy has paid to the benefit of Harco’s named insureds.


author: PER CURIAM.

text:
    Javares Antonio LANDRUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5406.
    District Court of Appeal of Florida, First District.
    Dec. 7, 2012.
    Rehearing Denied Feb. 5, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, VAN NORTWICK, and ROWE, JJ., Concur.


text:
    Christian BORGWALD, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D12-5657.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2012.

      Christian Borgwald, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, MARSTILLER, and SWANSON, JJ., Concur.


text:
    Jean Nery MOREAU, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-154.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2013.
   PER CURIAM.

Jean Nery Moreau appeals the summary denial of his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. In his post-conviction motion, Mr. Moreau raised five grounds for relief. We affirm the postcon-viction court’s order on all five grounds.

In the fifth ground of his motion, Mr. Moreau alleged, among other things, that his trial counsel was ineffective because he failed to advise Mr. Moreau of the deportation consequences of his plea. The Florida Supreme Court’s recent decision in Hernandez v. State, — So.3d-(Fla.2012), is controlling and held that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively. Because Mr. Moreau’s convictions were final before the decision in Padilla, we affirm the postconviction court’s order on this ground in accordance with Hernandez.

Affirmed.

SILBERMAN, C.J., and WALLACE and CRENSHAW, JJ., Concur.


text:
    Richard Lee HUNTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6147.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2013.
    Rehearing Denied March 6, 2013.
    Richard Lee Hunter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Laronald D. SPEAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1471.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2013.
    Melissa J. Ford, Assistant Regional Conflict Counsel, and Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   REHEARING EN BANC

PER CURIAM.

We grant the State’s motion for rehearing, withdraw our original opinion in this case, and sua sponte consider the case en banc. This case addresses whether the $20 court cost imposed for crime stoppers programs in criminal cases pursuant to section 938.06(1), Florida Statutes (2010), is mandatory regardless of whether any fine is imposed. Prior to July 1, 2010, section 938.06(1) provided in part, “In addition to any fine prescribed by law for any criminal offense, there is hereby assessed as a court cost an additional surcharge of $20 on such fine, which shall be imposed by all county and circuit courts and collected by the clerks of the courts together with such fine.” Based upon this version of the statute, we issued several opinions holding that it was error to impose the $20 cost where no fine was imposed or where a fine was wrongfully imposed. See, e.g., Harris v. State, 100 So.3d 245, 246 (Fla. 1st DCA 2012); Chamblee v. State, 93 So.3d 1184, 1186 (Fla. 1st DCA 2012); Clavelle v. State, 80 So.3d 456, 457 (Fla. 1st DCA 2012); Mallory v. State, 70 So.3d 738, 738 (Fla. 1st DCA 2011); Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011); Lang v. State, 856 So.2d 1105, 1106 (Fla. 1st DCA 2003).

The Legislature amended section 938.06(1) effective July 1, 2010, to provide that “[i]n addition to any fine prescribed by law, when a person is convicted of any criminal offense, the county or circuit court shall assess a court cost of $20.” Thereafter, we issued opinions in seven cases, which were consolidated for briefing purposes and where the State conceded error on the subject, striking the $20 cost imposed pursuant to the 2010 version of section 938.06 because no fine was imposed. See Pruitt v. State, 98 So.3d 237, 238 (Fla. 1st DCA 2012); Pruitt v. State, 98 So.3d 236, 237 (Fla. 1st DCA 2012); Pruitt v. State, 98 So.3d 235, 236 (Fla. 1st DCA 2012); Pruitt v. State, 98 So.3d 234, 235 (Fla. 1st DCA 2012); Pruitt v. State, 98 So.3d 233, 234 (Fla. 1st DCA 2012); Pruitt v. State, 98 So.3d 232, 233 (Fla. 1st DCA 2012); Pruitt v. State, 98 So.3d 231, 232 (Fla. 1st DCA 2012). In doing so, we cited to our Pullam opinion, which addressed section 938.06 prior to the amendment. One day after the Pruitt decisions were issued, we set forth as dicta in Sanders v. State, 101 So.3d 373, 377 n. 3 (Fla. 1st DCA 2012), that effective July 1, 2010, section 938.06(1) was amended to provide that the $20 assessment for the Crime Stoppers Trust Fund was a mandatory cost rather than an additional surcharge on any fine imposed.

Reconsidering this issue en banc, we recede from our Pruitt decisions with respect to section 938.06 and determine that the reasoning as set forth in Sanders is correct. Although both versions of the statute include the language “[i]n addition to any fine prescribed by law,” the only prerequisite to the imposition of the $20 cost following the 2010 amendment is that a person be convicted of any criminal offense. No longer is the cost considered “an additional surcharge ... on such fine” as was the case prior to the amendment. Therefore, the $20 cost must be imposed when a person is convicted of a criminal offense whether or not a fine is also imposed. Appellant’s judgments and sentences are hereby AFFIRMED.

BENTON, C.J., WOLF, DAVIS, VAN NORTWICK, PADOVANO, LEWIS, ROBERTS, CLARK, WETHERELL, ROWE, MARSTILLER, RAY, SWANSON, and MAKAR, JJ., concur.

      . We note appellate counsel’s concession that the trial court did not err in adjudicating Appellant guilty of a violation of section 893.13, Florida Statutes. See State v. Adkins, 96 So.3d 412 (Fla.2012).


author: ALTENBERND, Judge.

text:
    PULTE HOME CORPORATION, Appellant, v. VERMILLION HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2D12-1532.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2013.
    Rehearing Denied March 25, 2013.

      Theodore Estes of Divine & Estes, P.A., Orlando, for Appellant.
    Lilliana M. Fariñas-Sabogal and Daniel L. Wallach of Becker & Poliakoff, P.A., Miami, for Appellee.
   ALTENBERND, Judge.

Pulte Home Corporation appeals an order denying its motion to compel arbitration concerning claims made in a lawsuit filed by Vermillion Homeowners Association, Inc. The lawsuit alleges certain construction defects further described in this opinion. We reverse the order to the extent that the Association is suing as a representative of the homeowners, all of whom agreed to arbitrate their claims. In so ruling, we leave open the possibility that the Association could amend its complaint to allege a more limited claim involving property owned by the Association. Although the claims of the homeowners must be arbitrated, it is possible that a claim concerning property owned by the Association would not require arbitration.

This lawsuit concerns a development in Pasco County known as Vermillion. According to the complaint filed by the Association, Pulte was the builder of “the common areas, roads, drainage ponds, building exteriors, roofs, and other matters at Vermillion.” Although our record is very limited, it appears that the homes in question are townhomes individually owned by homeowners who are members of the Association. Although the homes are owned individually, the homeowners, as members of the Association, have some maintenance functions performed on their homes by the Association. For example, the declarations of covenants, conditions and restrictions of Vermillion provide that the Association is required to maintain not only the common areas, but also the exterior of the buildings. The Association is not required to maintain doors, door frames, glass surfaces, and locks. The Association can be authorized to perform additional maintenance beyond the required maintenance.

The complaint filed by the Association in this lawsuit seems carefully crafted to avoid a full description of the construction issues in dispute. In count II, the complaint alleges that Pulte “impliedly warranted to the lot owners ... common areas, common property, building exteriors and/or roofs of the Association....” It then alleges that Pulte breached the warranty by “failing, in constructing the common area improvements, common property, building exteriors and/or roofs of the Association, to comply with the requirements of the applicable building codes, and by failing to construct in accordance with good design, engineering and construction practices....”

Thus, from the complaint, it is impossible to know what defects are at issue. From the transcripts in the record, it appears likely that the primary issues relate to the exterior of the homes and to the roofs. If there are problems with the roads or the drainage ponds, for example, that cannot be ascertained from the complaint.

The Association filed this action “in its own rights and as lawful and adequate representative of all of the owners of the lots comprising the Association, all of whom are members of the Association.”

Pulte responded to the complaint by filing a motion to compel arbitration. The motion and relevant attachments establish that all of the owners of the townhomes entered into arbitration agreements with Pulte in both the purchase agreement and the applicable “Pulte Protection Plan” limited warranty. It appears undisputed that the individual homeowners would be required to arbitrate any claims involving construction defects if they brought the actions individually.

The Association correctly observes that it did not sign a purchase agreement or a limited warranty. Thus, it argues that it should be free to litigate its claims and should not be compelled to arbitrate them. The problem with this argument is that the Association alleges that it is suing, at least in part, in its representative capacity. Florida Rule of Civil Procedure 1.221 expressly gives the Association the standing to bring an action on behalf of its members, including an action addressing “the roof or structural components of a building.” See also § 720.308(1), Fla. Stat. (2011) (authorizing the Association to maintain such actions).

But when the Association brings an action for damage to a roof or the exterior of a home that is individually owned by a member, we are unconvinced that its rights are superior to those of the actual owner. See Yacht Club Se., Inc. v. Sunset Harbour N. Condo. Ass’n, 843 So.2d 917, 919 (Fla. 3d DCA 2003) (recognizing that while the association may bring suit on behalf of the owners, it is the owners who are the real parties in interest). The Association essentially is assigned the right to bring the action for its members, and it receives that right with an obligation to comply with the arbitration agreements signed by each of its members.

The Association cannot avoid the obligation to arbitrate by alleging its claims in an ambiguous manner. On the other hand, we do not believe it should be compelled to arbitrate a claim that is actually the Association’s claim in its own right simply because the complaint lacked detail. Thus, although we reverse the order denying arbitration and hold that Pulte is entitled to enforce its arbitration agreements as to claims arising from the individual homeowners’ contracts with Pulte, the trial court should give the Association the opportunity to amend its complaint on remand to allege any claims of the Association that might proceed to litigation while the claims relating to the individual homes are arbitrated.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ„ Concur.

      . The complaint also names Trout Creek Properties, LLC, as a defendant. It allegedly was the developer for Vermillion. There is no indication in our record that Trout Creek was served or appeared in the circuit court. It has not been identified as an appellee in this proceeding and no one has served them in this appeal with the notices, motions, and briefs. See Fla. R.App. P. 9.020(g)(2).


author: GROSS, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. James M. HARVEY, Respondent.
    No. 4D12-1525.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Rehearing Denied March 27, 2013.

      B. Richard Young, Adam A. Duke and Joseph A. Kopacz of Young, Bill, Roumbos & Boles, P.A., Pensacola, for petitioner.
    David J. Sales of David J. Sales, P.A., Jupiter, for respondent.
   GROSS, J.

GEICO General Insurance Company (GEICO) petitions for a writ of certiorari from a trial court order that denied its motion to dismiss defendant’s post-verdict erossclaim against it. GEICO argues that the trial court departed from the essential requirements of law by denying its motion to dismiss the defendant’s third party insurance bad faith action. We conclude that an insurance bad faith claim must be raised in a separate cause of action and cannot be brought in an underlying tort action. The denial of the motion to dismiss has the practical effect of preventing GEICO from removing this action to federal court based on diversity jurisdiction. We therefore grant the petition.

In the underlying action, the decedent’s estate sued the defendant, respondent James Harvey, for negligence arising out of an August 2006 automobile accident where the defendant’s vehicle collided with the deceased’s motorcycle at an intersection. GEICO insured defendant Harvey pursuant to an automobile liability policy. On December 2010, the estate obtained a jury verdict against Harvey and was awarded $8 million in damages, substantially exceeding the $100,000 policy limit.

On April 2011, pursuant to section 627.4136(4), Florida Statutes (2006), the estate was permitted to add GEICO as a defendant. Soon thereafter, Harvey, the liable defendant, filed a erossclaim against GEICO, raising a new cause of action for insurance bad faith. The crossclaim alleged that GEICO failed to settle the plaintiffs claim when it should have and that GEICO’s failure to notify him that the plaintiff wanted to take a presuit statement led to the plaintiffs lawsuit. GEICO attempted to remove the bad faith action to federal court, but the notice of removal was found to be untimely, and the case was remanded to the state circuit court. See Potts v. Harvey, No. 11-80495-CIV, 2011 WL 4637132 (S.D.Fla.2011).

GEICO then moved to dismiss or sever the bad faith crossclaim by arguing that the claim was not part of the same transaction or occurrence as the wrongful death action. The trial court denied the motion, and this petition timely follows.

Generally, a non-final order denying a motion to dismiss is not subject to interlocutory review through a petition for writ of certiorari. See Williams v. Oken, 62 So.3d 1129, 1134 (Fla.2011); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)).

In this case, however, the denial of the motion to dismiss has defeated GEI-CO’s right to have the action removed to federal court. The loss of this statutory right of removal is among the narrow class of matters subject to certiorari review. See Sunrise Mills (MLP) Ltd. P’ship v. Adams, 688 So.2d 464, 465 (Fla. 4th DCA 1997).

GEICO was added as a defendant pursuant to the “[n]onjoinder of insurers” statute, which provides as follows:

(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

§ 627.4136(1), Fla. Stat. (2006). The non-joinder statute prevents a third party from pursuing a direct action against an insurer for a cause of action covered by liability insurance unless the third party has first obtained a settlement or jury verdict against the insured. “The legislative intent behind the statute is to ensure that the availability of insurance has no influence on the jury’s determination of the insured’s liability and damages.” Gen. Star Indem. Co. v. Boran Craig Barber Engel Constr. Co., 895 So.2d 1136, 1138 (Fla. 2d DCA 2005); see also Merchants & Businessmen’s Mut. Ins. Co. v. Bennis, 636 So.2d 593, 594 (Fla. 4th DCA 1994) (“Public policy against disclosure of insurance coverage to the jury underlies the non-joinder statute.”).

Once a settlement or verdict has been obtained against the insured, subsection (4) of the statute permits joinder of the insurer solely “for the purposes of entering final judgment or enforcing the settlement.” § 627.4136(4), Fla. Stat. (2006). The subsection provides,

At the time a judgment is entered or a settlement is reached during the pen-dency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2).

Id. “The statute expressly excludes joinder of an insurer as a party defendant when the insurer [has] denied coverage.... ” De-Meo v. Frenchy’s Worldwide Helmets, Inc., 732 So.2d 12, 13 (Fla. 4th DCA 1999).

In this case, the nonjoinder statute permitted GEICO to be joined as a party solely for the purpose of entering final judgment against it. This provision in the nonjoinder statute streamlines the injured party’s ability to obtain a judgment against the insurer for covered losses without the plaintiff having to file a separate cause of action. See Hazen v. Allstate Ins. Co., 952 So.2d 531, 535-36 (Fla. 2d DCA 2007) (discussing the history of the nonjoinder statute and this provision). The provision in the nonjoinder statute was not intended to allow a party to inject an insurance bad faith claim into the tort action.

The insurance bad faith cross-claim is not authorized in this tort action. Florida Rule of Civil Procedure 1.170(g) provides as follows:

A pleading may state as a crossclaim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim therein, or relating to any property that is the subject matter of the original action.

(Emphasis added). The wrongful death action in this case sounds in tort and arose from the August 2006 automobile accident. By contrast, defendant’s third party bad faith crossclaim against his insurer arises from the insurer’s alleged breach of its duty to act in good faith in handling the estate’s claim against the defendant. We conclude that these causes of actions accrued at different times and do not arise out of the same transaction or occurrence for purposes of rule 1.170(g).

Our conclusion is buttressed by ease law and policy considerations. A cause of action for an insurer’s bad faith failure to settle a third party claim may not be maintained until a judgment in excess of the policy limits has been entered against the insured. See Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994). Thus, the bad faith claim could not have been maintained and did not arise out of the August 2006 accident that is the subject of the tort claim.

An insurance bad faith action does not accrue until the issue of coverage under the policy has been determined. See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991); Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla.2000) (clarifying Blanchard and continuing to hold that a bad faith claim is premature and should be dismissed where the issues of liability and the extent of coverage under the policy are unresolved); Progressive Select Ins. Co. v. Shockley, 951 So.2d 20 (Fla. 4th DCA 2007) (granting certiorari from an order denying a motion to dismiss a first party bad faith claim and granting relief because the issue of damages had not yet been determined in the coverage action). Thus, the bad faith cause of action did not accrue until well after the tort cause of action and did not arise from the same occurrence.

In State Farm Mutual Automobile Insurance Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010), this court held that “[wjhere causes of action for both the underlying damages and bad faith are brought in the same action, the appropriate step is to abate the bad faith action until coverage and damages have been determined.” Tranche se, like many of the published decisions in this area of the law, pertained to a first party bad faith claim arising from an action for uninsured motorist coverage. As such, Tranchese recognizes that, when it is in the interest of judicial economy, a trial court has discretion to abate a bad faith claim that is brought in a coverage action; however, the trial court also has discretion to dismiss the claim without prejudice. Landmark Am. Ins. Co. v. Studio Imports, Ltd., Inc., 76 So.3d 963, 964 (Fla. 4th DCA 2011) (citing Vanguard Fire & Cas. Co. v. Golmon, 955 So.2d 591 (Fla. 1st DCA 2006)).

Unlike Tranchese, this case does not involve a first party bad faith claim. Here, the insured defendant has attempted to raise a third party bad faith claim as a crossclaim in the tort case. The Florida Supreme Court has repeatedly recognized that a “ ‘claim arising from bad faith is grounded upon the legal duty to act in good faith, and is thus separate and independent of the claim arising from the contractual obligation to perform.’ ” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1285 (Fla.2006) (quoting Blanchard, 575 So.2d at 1291). Similarly, a defendant’s bad faith claim against his insurer is distinct, separate and independent from the plaintiffs tort claim against the defendant.

In State ex rel. American Home Insurance Co. v. Seay, 355 So.2d 822, 823 (Fla. 4th DCA 1978), an insured was permitted to file a post-verdict bad faith crossclaim in the underlying tort action. This court refused to withdraw a previously issued writ of prohibition and held that the trial court lacked jurisdiction to proceed with the bad faith crossclaim while the tort judgment was on appeal. Id. at 824. In a footnote, this court noted, however, that “we do not determine here that a cross claim is authorized in the present posture of this case.” Id. at 823 n. 2. We now decide this issue and determine that a bad faith cross-claim is not authorized in this posture.

Accordingly, the trial court departed from the essential requirements of law by denying the insurer’s motion to dismiss. A third party bad faith claim against an insurer for failure to settle may not be brought in the underlying tort action but must be raised in a separate cause of action. We grant the petition and quash the order denying the motion to dismiss.

Petition for writ of certiorari is granted.

TAYLOR and LEVINE, JJ., concur.

      . Although the claim is brought by the insured against his insurer, the claim is known as a "third party” bad faith action because the claim is based on the insurer’s alleged bad faith in handling the third party’s claim against the insured. See Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1125-26 (Fla.2005). A third party bad faith claim, which can also be brought directly by a third party standing in the shoes of the insured, should be distinguished from a first party bad faith claim which is brought by the insured based on bad faith in handling a claim that does not involve a third party. See generally Macola v. Gov’t Emps. Ins. Co., 953 So.2d 451, 455-56 (Fla.2006) (discussing the history of third party and first party bad faith actions).


text:
    Michael Anthony ARGUELLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5863.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Rehearing Denied March 6, 2013.
    Michael Anthony Arguelles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Kendrick S. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1902.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Rehearing Denied March 25, 2013.

      Kendrick S. Wilson, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely and successive motion for post-conviction relief/writ of habeas corpus. Appellant’s complaints about the process by which the prosecutor took sworn testimony before filing and then amending the information are improper in a post-conviction proceeding, untimely, and meritless. See Carbajal v. State, 75 So.3d 258, 262 (Fla.2011); Simon v. State, 997 So.2d 490, 491 (Fla. 4th DCA 2008); State v. Williams, 362 So.2d 678, 680 (Fla. 4th DCA 1978), dismissed, 368 So.2d 1376 (Fla.1979); State v. Hartung, 543 So.2d 236, 237 (Fla. 5th DCA 1989).

This post-conviction motion alleging that the state attorney failed to receive sworn testimony from a material witness before filing the information is one of numerous such frivolous motions this court has dealt with recently. E.g., Collins v. State, 97 So.3d 305, 306 (Fla. 4th DCA 2012). As in that case, we direct the clerk to send a certified copy of this opinion to the appropriate institution for disciplinary action, see § 944.279(1), Fla. Stat. (2012). Appellant is also cautioned that any further frivolous or malicious filings will result in this court imposing the sanction of no longer accepting his pro se filings. See State v. Spencer, 751 So.2d 47, 49 (Fla.1999).

Affirmed. Appellant referred to prison officials.

WARNER, STEVENSON and DAMOORGIAN, JJ., concur.