author: DAVIS, Chief Judge.

text:
    Dominic Deangelo NEALY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4767.
    District Court of Appeal of Florida, Second District.
    June 25, 2014.
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Dominic Nealy challenges the revocation of his community control and the sixty-month prison sentence for felony battery entered as a result of that revocation. As the State properly concedes, Mr. Nealy’s community control was completed before the revocation proceedings were initiated and it was error to revoke it. We therefore reverse the order of revocation and remand for the trial court to immediately vacate the order and resulting sentence and to dismiss the affidavit of violation of community control.

In 2008 Mr. Nealy pleaded no contest to felony battery and was sentenced to three years of probation. He violated this probation, and on or about August 17, 2009, he was placed on two years of community control to be followed by one year of probation. On September 14, 2011, following the expiration of the two-year community control portion of his sentence, he was alleged to have violated the conditions of his community control by committing a new law violation. On March 9, 2012, following an admission to the alleged violation, the trial court found that Mr. Nealy had violated the terms of his community control and extended his probation for one additional year. Mr. Nealy did not appeal the May 30, 2012, order modifying his community control entered after these proceedings.

On May 31, 2012, Mr. Nealy was alleged to have violated certain technical terms specifically associated with community control. Following a hearing he was found to have violated those terms and he was sentenced to five years in prison. The State properly has conceded that this was error because, despite the May 30, 2012, order, Mr. Nealy’s community control actually ended in August 2011, approximately nine months before the alleged violations. Therefore, because he could not have been serving anything more than probation at that time, the trial court lacked jurisdiction to revoke his community control based on the May 2012 allegation. See Ermatinger v. State, 866 So.2d 698, 699 (Fla. 2d DCA 2003) (“Because the revocation process did not begin until ... after Ermatinger’s period of community control expired, the trial court was without jurisdiction to revoke his community control.”). Accordingly, we reverse the revocation of Mr. Nealy’s community control and remand for the trial court to immediately vacate the order of revocation and the resulting sentence and to dismiss the affidavit of violation of community control. Mr. Nealy is entitled to be immediately released from any prison sentence he is serving for the conviction associated with this opinion.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ., Concur.

      . We are without the benefit of any transcripts from the proceedings held on the alie-gations of violation in 2011. It is clear from the available record that Mr. Nealy was erroneously alleged to have violated the terms of his then-expired community control. The March 9, 2012, and the corrected May 14, 2012, Hendry County Circuit Court disposition forms that are part of the record on appeal clearly indicate that the additional year of probation was a modification and extension of the probation he was then serving. But the subsequent order of modification of community control entered on May 30, 2012, finds Mr. Nealy in violation of his August 17, 2009, community control and incorrectly states that this community control was originally set to run for a period of "5 years, 2 months!,] 21 days.” It also extends the one-year period of probation set to follow that community control by an additional year.

      . Even considering that the May 30, 2012, order erroneously modifying his community control went unchallenged, Mr. Nealy was only serving probation at the time of the alleged violation in May 2012. See § 948.01(4), Florida Statutes (2008) (stating that community control can be for a period of no more than two years). The May 30, 2012, order is, at best, an extension of the probation he was serving at that time; it is not a legal extension of the community control portion of his sentence beyond two years.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael Anthony GOTTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3623.
    District Court of Appeal of Florida, Second District.
    June 25, 2014.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the issues raised in this appeal, but we remand for the circuit court to enter a written order restoring Michael Gotti to competency, nunc pro tunc to the date the court orally found him competent. Gotti need not be present for this ministerial proceeding.

NORTHCUTT, SILBERMAN, and CRENSHAW, JJ., Concur.


author: MAY, J.

text:
    Zavier PERMENTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2948.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order revoking his probation and imposing a 48.5-month prison sentence. He argues the trial court violated his Fourteenth Amendment due process right to confront witnesses against him by relying on statements of the victim and a witness, who did not testify at the violation hearing. We disagree. Having reviewed the record, we find sufficient non-hearsay evidence to support the trial court’s revocation of his probation. We therefore affirm.

Affirmed.

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


text:
    Lorenzo Edward FARNELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1858.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.
    Lorenzo Edward Farnell, Bonifay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Lorenzo Edward Farnell appeals the convictions and sentences imposed after he entered an open no contest plea to several drug offenses in three lower tribunal cases. While the appeal was pending, he filed a rule 3.800(b) motion to correct sentencing errors, which the trial court granted. One of the errors was that he was awarded 441 days of jail time credit for each of two counts in L.T. case no. 562012CF362A, but was entitled to 443 days. The trial court entered an amended sentence for count II (which also required another correction), but omitted to enter an amended sentence for count I.

Farnell’s assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), pointing out the omission.

We affirm the convictions and the sentences, but we remand with the direction that the trial court enter an amended sentence for count I of L.T. case no. 562012CF362A, reflecting an award of 443 days of jail time credit.

Affirmed and Remanded with Instructions.

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


text:
    Joe PLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-434.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.
    Joe Plain, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant committed his burglary offense in 1997 before the legislature superseded the holding of State v. Huggins, 802 So.2d 276 (Fla.2001). See Shiflet v. State, 50 So.3d 1153 (Fla. 4th DCA 2010). The jury made no finding that the dwelling was occupied, and the jury’s failure to make that finding was not harmless under the circumstances of this case. Appellant has demonstrated that his mandatory life sentence as a prison release reoffender for burglary of a dwelling with an assault or battery is illegal. Suffield v. State, 132 So.3d 333, 333 (Fla. 4th DCA 2014); Tumblin v. State, 965 So.2d 354, 356 (Fla. 4th DCA 2007). We remand for resentencing.

Reversed and Remanded for Resentenc-ing.

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


author: KHOUZAM, Judge.

text:
    Jorvonni PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2849.
    District Court of Appeal of Florida, Second District.
    June 27, 2014.
    Howard L. Dimmig, II, Public Defender, and Christine Trakas Thornhill, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Jorvonni Palmer challenges his conviction and sentence for attempted robbery. We affirm in all respects except to point out a scrivener’s error in the judgment and sentence, which indicates that Palmer pleaded guilty when in fact he was found guilty by a jury. We remand for the correction of this scrivener’s error. See Shuey v. State, 950 So.2d 1285 (Fla. 5th DCA 2007). Palmer does not need to be present for this correction. See id.

Affirmed; remanded with instructions.

BLACK, JJ., and BAUMANN, HERBERT J., JR., Associate Judge, Concur.


text:
    Michael B. OWENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1003.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Michael B. Owens, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the August 15, 2012, order denying motion for postconviction relief in Nassau County Circuit Court case number 93-352-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Chaz WEST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1171.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Chaz West, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the September 19, 2013, judgment and sentence in Escambia County Circuit Court case number 2012-CF-003680C. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


author: SWANSON, J.

text:
    William Isiah JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1372.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Joseph 0. Reosti of Joseph 0. Reosti, LLC, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this direct criminal appeal, appellant claims the trial court abused its discretion when it denied his motion to strike the entire venire after a potential juror commented about appellant’s criminal history. Because this claim was not properly preserved for appeal, we affirm.

During voir dire, the prosecutor asked, “Is there anything that has come up about anything I’ve asked you that you think we need to know about?” A prospective juror responded:

PROSPECTIVE JUROR: I work for the road department and we work with prisoners all the time, and I don’t — I thought I’ve seen him before but I don’t really know.
[PROSECUTOR]: You might have seen the defendant?
PROSPECTIVE JUROR: Yeah.

Defense counsel then approached the bench and requested the trial court to strike the entire venire on the ground the prospective juror’s comment “puts it in the jury’s mind, potentially in the panel’s mind that [appellant] is a convicted felon or at least been incarcerated or imprisoned.” The prosecutor opposed the request, arguing the juror could have meant that he worked with appellant or had seen him along the road, not necessarily that appellant was a prisoner. The trial court denied appellant’s motion, reasoning the comment was not “significant enough to have infected the panel.” At the conclusion of jury selection, six jurors and two alternates were selected without objection. Later, the jury was sworn without objection.

On appeal, appellant claims the trial court abused its discretion in denying his motion to strike the venire after the potential juror indicated he might have recognized appellant as a prisoner through his employment with the road department, citing Turner v. State, 51 So.3d 542, 543 (Fla. 5th DCA 2010), and Richardson v. State, 666 So.2d 223, 224 (Fla. 2d DCA 1995). The state correctly responds that this claim is not preserved for appeal because appellant’s motion was not renewed once jury selection was complete or before the jury was sworn. See McPhee v. State, 117 So.3d 1137, 1138 (Fla. 3d DCA 2012) (citing Carratelli v. State, 961 So.2d 312 (Fla.2007), for the proposition that preservation of a challenge to a potential juror requires more than one objection, and the objecting party must renew and preserve the objection before the jury is sworn); Hayes v. State, 954 So.2d 1265, 1266 (Fla. 5th DCA 2007) (holding that although defendant did not formally accept the jury panel, defendant failed to preserve his claim that the trial court should have granted his motion to strike the entire venire where he failed to renew his objection or motion to strike prior to the jury being sworn). Thus, we affirm due to the lack of preservation.

AFFIRMED.

ROBERTS and RAY, JJ., concur.


text:
    Larry L. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5985.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Larry L. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 10, 2013, judgment and sentence in Gadsden County Circuit Court case number 11-000582-CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Timothy PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1038.
    District Court of Appeal of Florida, First District.
    July 1, 2014.
    Timothy Perry, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 21, 2014, order denying defendant’s motion to correct illegal sentence, in Escambia County Circuit Court case number 1996-CF-001765A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

THOMAS, ROBERTS, and MAKAR, JJ., concur.


text:
    Patrick Allen McCALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2301.
    District Court of Appeal of Florida, First District.
    July 1, 2014.
    Patrick Allen McCall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as successive.

THOMAS, ROBERTS, and MAKAR, JJ., concur.


text:
    Phillip HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3001.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.

      Phillip Hunter, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Phillip Hunter appeals an order adjudicating him guilty of direct criminal contempt, imposing a fíne, and committing him to jail for five days. The direct contempt charge arose from a civil matter in which Mr. Hunter became obstructive and profane during the proceedings. The record suggests that the jail sentence may have been fully served already. But even if it has been served, the case is not moot, and procedural due process concerns compel us to reverse the contempt order.

Mr. Hunter maintains that the trial court did not satisfy the requirements of Florida Rule of Criminal Procedure 3.880 in several respects. He claims that it failed to apprise him of the accusation against him, failed to offer him an opportunity to show cause why he should not be adjudged guilty, failed to give him an opportunity to present excusing or mitigating evidence, and failed to pronounce his sentence in open court. Although we do not disturb the trial court’s findings with respect to Mr. Hunter’s contemptuous conduct, we must reverse the contempt order because the record does not demonstrate that the trial court satisfied these procedural requirements.

On remand, the trial court is not required by our mandate to conduct further proceedings. If the trial court determines that it is appropriate to reinstate the judgment of contempt, it must conduct a hearing, upon proper notice to Mr. Hunter, in order to give him an opportunity to show cause why he should not be adjudged guilty and to afford him an opportunity to present mitigating or excusing evidence. Following any hearing, if the court determines the judgment of contempt should be reinstated, it should give due regard to principles of double jeopardy when imposing any sanction.

Reversed and remanded with directions.

ALTENBERND, VILLANTI, and CRENSHAW, JJ„ concur.


author: DAMOORGIAN, C.J.

text:
    Rickardo STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4523.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.

      Rickardo Stephens, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Rickardo Stephens appeals the trial court’s denial of his pro se motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(Z). Prior to the court’s ruling on Stephens’ motion, his counsel withdrew on the grounds of conflict. Although Stephens requested that the court appoint him conflict-free counsel in his motion, the court summarily denied it without appointing conflict-free counsel. We find error and reverse.

Rule 3.170(Z) provides for a motion to withdraw plea within thirty days after sentencing on grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a-e. A motion to withdraw plea is considered a critical stage of a criminal proceeding, and thus a defendant is entitled to counsel. Schriber v. State, 959 So.2d 1254, 1256 (Fla. 4th DCA 2007). Accordingly, the court erred in considering Stephens’ motion without first appointing conflict-free counsel. We reverse and remand, directing the trial court to appoint conflict-free counsel to assist Stephens in drafting his motion. The trial court may then determine whether to summarily deny the motion or to hold an evidentiary hearing.

Reversed and Remanded.

WARNER and MAY, JJ., concur.

      . Had Stephens’ counsel not withdrawn, our analysis would be different. Under such a scenario, so long as the motion alleged an adversarial relationship between Stephens and his counsel, the trial court would have been required to "hold a limited hearing” to determine whether “an adversarial relationship between counsel and the defendant has arisen” and thus whether Stephens was entitled to new, conflict-free counsel. Sheppard v. State, 17 So.3d 275, 287 (Fla.2009); see also Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010).


text:
    Katrina R. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1046.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals from a restitution order following her conviction and sentence for various crimes involving the victim’s stolen jewelry. The defendant primarily argues that the circuit court erred in determining the restitution amount based on hearsay evidence which the victim obtained from websites. Based on case law, we are compelled to agree with the defendant, and thus reverse and remand for a new restitution hearing.

At the restitution hearing, the victim testified that, after she prepared the list of stolen jewelry, the prosecutor asked her to research how much the jewelry was worth. The victim testified that she researched online the jewelry’s value as follows:

I got high and low prices. Some items I found three or four pieces that were similar, added them together and divided them by whether I got three or four prices. ... [A]ll the prices that I got were just middle prices. ....

The defendant objected on hearsay grounds to the victim testifying about any online values. The circuit court overruled the objection. The court commented, “I think it’s a valid method of attempting to obtain a market value.”

After the court’s ruling, the following exchange occurred between the prosecutor and the victim regarding the victim’s estimated value for each item:

Q. ... [Fjirst item that you mentioned, the one-carat diamond, what was the amount you were able to determine?
A. The average was $6,200.
Q. ... [Sjecond item, the tennis bracelet ... what was the amount you were able to determine?
A. [$2,950],
Q. ... [T]hird item, the [amethyst charm] ... how much were you able to determine that was worth?
A. ... [T]hat one was difficult because it had been passed through my family for numerous generations. We got it back in the 1800s and as far as similar stuff, I got [$2,748].
Q. ... [N]umber 4 [the amethyst bracelet], how ... much were you able to determine for that?
A. [$3,895].
Q. ... [N]umber 5 ... amethyst earrings.
A. ... This I only got one price for because I saw a picture of the earrings that looked exactly like mine and [they were] $721.
Q. ... [N]umber 6, gold chain necklace?
A. $449.
Q. ... [N]umber 7, rope bracelet.
A. $349.
Q. ... [N]umber 8, [the one-quarter carat] diamond earrings?
A. ... I went with the quarter carat because I do believe that they were quarter carat. My ex-husband said they were half carat each but I was pretty sure they were quarter carats. ... $724.
Q. ... [N]umber 9, gold wedding band.
A. $648 ....
Q. ... [N]umber 10, aquamarine [and] gold bracelet ....
A. ... $123. And that item is irreplaceable too.
Q. ... Item 11, which is a gold heart ring with a [quarter] carat diamond in each heart.
A. $1,477.
Q. And ... all of these items ... this is your replacement value if you were to go out and try to get ... the same type of items that were stolen from you—
A. Right. Similar ... as I could find.
Q. Item 12 [the gold flower ring].
A. $142.

The victim testified that the total amount which she was seeking for the jewelry was $20,511.

On cross-examination, the victim recounted the names of the six websites she used to perform her research. She also testified that she performed her research on two separate days — the first day approximately two months before the restitution hearing, and the second day approximately two weeks before the restitution hearing. She conceded that she did not purchase any of the items and, for most of the items, had no first-hand knowledge of their purchase date, original value, or quality. She also conceded that, at the defendant’s sentencing hearing two months earlier, she estimated the items’ total value to be $14,000, and had changed her estimate based on her internet research.

During closing arguments, the defendant contended that the victim’s estimate of the items’ values from the internet was not sufficient to establish the restitution amount because it was inadmissible hearsay.

The circuit court found that the victim’s testimony was sufficient to establish the restitution amount. The court reasoned:

[Sage v. State, 988 So.2d 150 (Fla. 4th DCA 2008),] tells us how we figure out what restitution should be. And the four factors that set forth what we can consider and ascertain the fair market value are the original market cost, the manner in which the item was used, the general condition and the quality of the item, and the percentage of depreciation. I’m not sure that jewelry ever depreciates, but the defendant should not get the benefit of a bargain by ... stealing something that’s antique or that’s old, that it’s no longer capable of somebody just finding an exact duplicate like you could an automobile or a stereo or something like that. Also [Sage ] stands for the proposition that an owner of property is generally qualified to testify as to fair market value of the property. The burden is certainly on the State to do that, but also [Sage ] tells us that when a plea agreement is reached and a defendant agrees to pay restitution, it should be liberally construed in favor of making the victim whole again, and that’s what I intend to do in this case. I recognize that some of these items may not be exactly capable of being an exact value ... because she just didn’t buy these things. She doesn’t have receipts for when she actually bought them because the jewelry, as oftentimes is, is a gift. So I choose to resolve the credibility as a fact finder in favor of ... the victim. ... I’m going to find restitution in the total amount in this case of $20,511.

After the circuit court entered a written restitution order, this appeal followed. The defendant primarily argues that the circuit court erred in determining the restitution amount based on hearsay evidence which the victim obtained, from websites. We review the court’s determination of the restitution amount for an abuse of discretion. T.D.C. v. State, 117 So.3d 809, 811 (Fla. 4th DCA 2013).

Based on case law, we are compelled to agree with the defendant’s argument. “Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence.” Conway v. State, 115 So.3d 1058, 1059 (Fla. 4th DCA 2013) (citation and quotation marks omitted); see also G.M.H. v. State, 18 So.3d 728, 729-30 (Fla. 2d DCA 2009) (reversing and remanding for a new restitution hearing based on the state’s concession that the trial court should not have admitted the victim’s mother’s hearsay evidence of repair prices based on her internet research). Here, the victim’s reliance on hearsay evidence from websites resembles a witness’s reliance on hearsay evidence from a catalog or contacts with non-witnesses, which courts have held cannot support the determination of a restitution amount. See, e.g., Gonzalez v. State, 40 So.3d 86, 89 (Fla. 4th DCA 2010) (“Catalog prices alone are insufficient to establish a sufficient predicate.”); I.M. v. State, 958 So.2d 1014, 1016 (Fla. 1st DCA 2007) (“[The witness] did not have personal knowledge of the value of the ruined items, but relied upon the opinions of his vendors, who did not testify.”). Thus, the victim’s reliance on hearsay evidence from websites was insufficient to establish the restitution amount.

In reaching our conclusion, we recognize that it was practically impossible for the victim to establish the restitution amount without relying on hearsay evidence. As the victim conceded, she did not purchase any of the items and, for most of the items, had no first-hand knowledge of their purchase date, original value, or quality. Therefore, in her good-faith effort to establish the values of the items, she relied on her memory of the items’ appearance, her understanding of the quality, and her ability to find similar items on the internet. She went so far as to visit multiple websites in order to determine an average price for the items.

The fact that it was practically impossible for the victim to establish the restitution amount without relying on hearsay evidence appears to have caused an unjust result for the victim, because she and the state appear to have no other means by which to prove the restitution amount.

This case is distinguishable from the situation we faced in Conway, where the victim could have presented a competent witness to testify as to the stolen item’s restitution amount. In Conway, the stolen item was an antique silverware set. The set was melted down by the pawnshop which purchased it from the defendant. However, the victim’s son testified that he contacted a silver company representative who was able to identify and determine a restitution amount for the set. The amount was relied upon by the trial court to determine restitution. We reversed because the son’s testimony was based on hearsay — merely reciting his conversation with the silver company representative. 115 So.3d at 1059. Presumably, if the victim or the state had incurred the expense of presenting the silver company representative as a witness at the restitution hearing, then the hearsay objection would have been resolved, allowing the restitution amount to be awarded.

Here, however, it is highly unlikely that the victim could have presented representatives from the various websites she researched to testify as to the restitution amount. Putting aside the time and expense of such an endeavor, such representatives would have a difficult time establishing their competency or reliability to opine as to the stolen items’ value. Unlike the recognizable antique silverware set in Conway, the stolen items here were not unique and, because the items were gifts, the victim had no reason to possess any knowledge regarding the items’ purchase date, original value, or quality. Thus, the testifying representatives would be left to accept the victim’s non-descript description of the stolen items and merely speculate that a similar-looking item had a certain value. Such speculative testimony likely would be insufficient to establish the restitution amount. See id. (the amount of restitution “must be established through more than mere speculation”) (citation and quotations marks omitted). Thus, although we are obligated to remand for a new restitution hearing, we are doubtful that the new hearing will provide the victim with any relief.

We surmise that the victim here is not alone. This court and our sister courts recently have issued multiple opinions reversing restitution awards where the victim and the state have not presented competent, substantial evidence supporting the amount awarded. See, e.g., T.D.C., 117 So.Bd at 811 (“[Ajbsent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution ... the amount of restitution should be established through evidence of [fair market value] at the time of the theft.”) (citation and quotation marks omitted). In each case, a wholly innocent person has been left with a more difficult, if not impossible, path to recover their stolen items’ value. The circuit court in this case recognized this unjust result in honorably attempting to justify its determination of the restitution amount here.

Based on the foregoing, we recommend that our state legislature revisit section 775.089, Florida Statutes (2012), and consider providing trial courts with wider discretion in setting the restitution amount. We recommend the following underlined revision to section 775.089(7):

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The court is not bound by fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution, including consideration of hearsay. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.

See State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991) (“[A] court is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution”) (emphasis added); Noel v. State, 127 So.3d 769, 774 (Fla. 4th DCA 2013) (“[RJestitution to victims is a central ‘penological interest’ of Florida criminal law.”); § 90.802, Fla. Stat. (2012) (“Except as provided by statute, hearsay evidence is inadmissible.”) (emphasis added). This proposed statutory change would permit a victim-owner of property to offer an opinion as to its value that is based upon hearsay.

In the meantime, we will enforce the law as it currently exists. We reverse and remand for a new restitution hearing.

Reversed and remanded for a new restitution hearing

GROSS, GERBER and FORST, JJ., concur.

      . The defendant also argues that the circuit court erred in setting the restitution amount based on the stolen items’ purchase price instead of their fair market value. We disagree. The record indicates that the court determined the restitution amount based on the stolen items’ fair market value, albeit improperly based upon hearsay evidence from websites. See T.D.C., 117 So.3d at 811 ("Generally, the amount of restitution is established through evidence of fair market value of the stolen items at the time of the theft.”) (citation and quotation marks omitted).


author: VILLANTI, Judge.

text:
    Alexander PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4860.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   VILLANTI, Judge.

Alexander Patterson appeals the summary dismissal of his motion for jail credit filed under Florida Rule of Criminal Procedure 3.800(a). Patterson sought credit against his prison sentence for time spent in jail in New York. Because the trial court based its dismissal on the erroneous application of Florida Rule of Criminal Procedure 3.801, we reverse the dismissal order and remand for further proceedings.

Patterson pleaded no contest to lewd and lascivious battery on a child older than twelve but under sixteen years of age and was originally sentenced to fifty-one months in prison followed by ten years’ probation. Following the revocation of his probation, he was sentenced to 85.65 months in prison. Pursuant to the plea agreement, he was awarded 150 days of jail credit.

In his current motion, Patterson claims that he is entitled to an additional award of out-of-state jail credit for time spent in jail in New York. The postconviction court treated the motion as though it were raised under newly adopted rule 3.801. The court found that Patterson had previously litigated a claim for jail credit in an earlier rule 3.800(a) motion and that he had negotiated his plea agreement to include credit for time spent in jail from October 25, 2011, until he was sentenced. The court further found that although Patterson’s motion was facially insufficient under rule 3.801, he was not entitled to an opportunity to amend because there was no manifest injustice and the claim was therefore procedurally barred as successive.

We first hold that the postconviction court erred in treating Patterson’s claim for out-of-state jail credit as one filed under rule 3.801. In Gisi v. State, 135 So.3d 493, 495 (Fla. 2d DCA 2014), we held that “[ajlthough the court commentary to rule 3.801 states that ‘[a]ll jail credit issues must be handled pursuant to this rule,’ the rule does not apply to claims of jail credit for the time a defendant was incarcerated outside the state while awaiting sentencing.” Instead, claims of entitlement to out-of-state jail credit must be raised in a timely motion under rule 3.850. See id. at 495, 496 (“[R]ule 3.801 can be used only to seek jail credit for time spent in Florida jails before sentencing.”); see also Wombaugh v. State, 25 So.3d 707, 709 (Fla. 2d DCA 2010) (holding that claims for out-of-state jail credit are not cognizable in a rule 8.800(a) motion and must be raised under rule 8.850); Garnett v. State, 957 So.2d 32, 33 (Fla. 2d DCA 2007) (en banc) (same). Hence, the postconviction court should have treated Patterson’s claim as if it had been filed in a properly styled motion under rule 3.850. See Gill v. State, 829 So.2d 299, 300 (Fla. 2d DCA 2002) (“Where a movant files a properly pleaded claim but incorrectly styles the postconviction motion in which it was raised, the trial court must treat the claim as if it had been filed in a properly styled motion.”). And considering the motion as such, it is not procedurally barred either by the doctrine of collateral estoppel under rule 3.800(a), see State v. McBride, 848 So.2d 287, 291 (Fla.2003), or as successive under rule 3.801, see Fla. R. Crim. P. 3.801(d).

Moreover, had the postconviction court treated Patterson’s motion as one filed under rule 3.850, he would have been entitled to amend his facially insufficient claim because the motion was filed within the two-year time limit of rule 3.850. See Wombaugh, 25 So.3d at 709; Garnett, 957 So.2d at 33 n. 1. Because the postconviction court should have treated the claim as if it had been filed in a proper rule 3.850 motion, Patterson must be given an opportunity to amend the motion, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So.2d 754, 762 (Fla.2007). And because the record before this court indicates that Patterson has not previously filed a rule 3.850 motion raising such a claim, on remand, the motion should not be considered successive.

Accordingly, we reverse the order of the postconviction court and remand with directions for the postconviction court to permit Patterson to file a facially sufficient rule 3.850 motion for out-of-state jail credit within sixty days of the date that this opinion becomes final. Finally, because the Department of Corrections website indicates that Patterson has a current release date of October 1, 2014, we encourage the postconviction court to expedite its proceeding on remand.

Reversed and remanded with directions.

LaROSE and SLEET, JJ., Concur.

      . We note that the postconviction court did not address the exact claim that Patterson raises here when it ruled on the earlier rule 3.800(a) motion. To date, no court has addressed the claim currently raised by Patterson that he is entitled to jail credit for time spent in jail in New York after his arrest for a violation of his probation on February 4, 2011, and while awaiting extradition to Pasco County. Patterson claims that Pasco County refused to extradite him and that he was released on May 25, 2011. He was rearrested on October 25, 2011, at which time Pasco County did extradite him. This current motion addresses Patterson’s claim for jail credit from February 4 until May 25, 2011.


author: ALTENBERND, Judge.

text:
    Robert M. FOX, Jr., Petitioner, v. Sam JOHNSON, Chairman Polk County Commissioners; Grady Judd, Sheriff of Polk County; Polk County Sheriff’s Office; and Polk County Commissioners, Respondents.
    No. 2D13-5031.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.

      Robert M. Fox, Jr., pro se.
    Janet A. McDonald, Assistant County Attorney, Polk County Attorney’s Office, Bartow, for Respondent Polk County.
    Mario J. Cabrera, Polk County Sheriffs Office, Winter Haven, for Respondent Polk County Sheriffs Office.
   ALTENBERND, Judge.

Robert M. Fox, Jr., seeks a writ of certiorari with respect to the circuit court’s order denying his amended petition for writ of mandamus. In his amended petition, Mr. Fox, in essence, claimed that he was entitled to “statutory gain time” for time he was in county jail in Polk County Circuit Criminal Case Numbers CF93-4441A1-XX and CF94-3348A1-XX prior to being sentenced to prison on the revocation of his probation in those cases. He sought a writ of mandamus to require the Polk County Sheriffs Office and the Polk County Board of Commissioners to award him gain time pursuant to section 951.21(1), Florida Statutes (1993), which concerns gain time for good conduct for county prisoners. At the time Mr. Fox sought this relief in these cases, he was no longer a county prisoner. He had already been sentenced to prison and committed to the custody of the Florida Department of Corrections to serve his prison sentences, and neither the Sheriffs Office nor the County Commissioners had the indisputable legal duty, or even the power, to award him section 951.21(1) gain time against his DOC sentences. See, e.g., Haines v. Broward Cnty. Bd. of Comm’rs, 695 So.2d 818, 819 (Fla. 4th DCA 1997) (affirming denial of petition for writ of mandamus that had been sought to require sheriff and county commissioners to award defendant gain time pursuant to section 951.21, Florida Statutes (1995), for time the defendant was in temporary custody of the sheriff, court explained “[ajfter a state prison sentence has been imposed, a defendant’s entitlement to any gain time, even for a temporary stay in county jail, is a decision that rests with the Department of Corrections”).

Accordingly, we deny Mr. Fox’s petition for writ of certiorari.

Petition denied.

KELLY and LaROSE, JJ., Concur.

      . Mr. Fox was adjudicated guilty of two counts each of lewd act upon a child under sixteen and contributing to the delinquency of a minor and one count of attempted sexual battery on a child under twelve in Polk County Circuit Criminal Case Numbers CF93-4441A1-XX and CF94-3348A1-XX. A portion of his sentences for those offenses included probation, which was subsequently revoked. Mr. Fox has initiated numerous proceedings with this court, most of which appear to have been filed after the revocation proceedings were commenced and all of which have merited no relief. See Fox v. State, No. 2D14-2572, 2014 WL 3557640 (Fla. 2d DCA June 10, 2014) (denying petition for writ of mandamus by order reported at 2014 WL 3557640); Fox v. State, No. 2D14-294, 2014 WL 1789105 (Fla. 2d DCA Jan. 29, 2014) (denying petition for writ of prohibition by order reported at 2014 WL 1789105); Fox v. State, No. 2D 13-4957, 2013 WL 7095379 (Fla. 2d DCA Dec. 17, 2013) (denying petition for writ of habeas corpus by order reported at 2013 WL 7095379); Fox v. State, No. 2D 13-4849, 2013 WL 7095382 (Fla. 2d DCA Dec. 17, 2013) (denying amended petition for writ of habeas corpus by order reported at 2013 WL 7095382); Fox v. State, 122 So.3d 374 (Fla. 2d DCA 2013) (dismissing petition for writ of prohibition by order in case number 2D 13-4079 as duplicative of case number 2D 13-3869); Fox v. State, 138 So.3d 1030 (Fla. 2d DCA 2013) (denying petition for writ of prohibition by order reported at 2013 WL 8645613); Fox v. State, 115 So.3d 365 (Fla. 2d DCA 2013) (dismissing appeal in case number 2D 13-2774 by order in summary Florida Rule of Criminal Procedure 3.800 case); Fox v. State, 114 So.3d 945 (Fla. 2d DCA 2013) (affirming per curiam in case number 2D 13-744 in Florida Rule of Criminal Procedure 3.850 case); Fox v. State, 114 So.3d 945 (Fla. 2d DCA 2013) (affirming per curiam in case number 2D 12-5724 summary rule 3.800 appeal); Fox v. State, No. 2D12-3696, 2013 WL 2278240 (Fla. 2d DCA May 24, 2013) (affirming per curiam summary rule 3.800 appeal reported at 2013 WL 2278240); Fox v. State, No. 2D12-3694, 2013 WL 2278243 (Fla. 2d DCA May 24, 2013) (Fla. 2d DCA May 24, 2013) (affirming per curiam summary rule 3.800 appeal reported at 2013 WL 2278243); Fox v. State, 92 So.3d 829 (Fla. 2d DCA 2012) (affirming per curiam with citations in case number 2D 11-6121 summary rule 3.800 appeal); Fox v. State, 90 So.3d 285 (Fla. 2d DCA May 30, 2012) (affirming per curiam with citations in case number 2D12-2025 summary rule 3.800 appeal); Fox v. State, 30 So.3d 500 (Fla. 2d DCA 2010) (affirming per curiam with citations in case number 2D09-5319 summary rule 3.800 appeal). In conjunction with the foregoing proceedings, Mr. Fox has made a multitude of filings, including motions for rehearing that were entirely frivolous.
      Mr. Fox has also initiated at least two proceedings with the First District Court of Appeal that merited no relief. See Fox v. Fla. Dep’t of Corr., 136 So.3d 1217 (Fla. 1st DCA 2014) (denying petition for writ of certiorari on the merits in case number ID 13-4006); Fox v. Fla. Dep’t of Corr., 133 So.3d 932 (Fla. 1st DCA 2013) (denying petition for writ of certiorari on the merits in case number ID 13-2603).
      Finally, at present Mr. Fox has one undecided proceeding pending with this court. See Fox v. State, No. 2D 13-5256 (Fla. 2d DCA filed Oct. 23, 2013) (appealing order imposing sanctions and prohibiting Mr. Fox from filing any further pleadings without the assistance of counsel).
      We intend to direct Mr. Fox, by separate order, to show cause why this court should not direct the clerk of the court to reject all appeals and original proceedings filed in this court related to circuit court case numbers CF93-4441A1-XX and CF94-3348A1-XX, unless the filing is submitted by a member in good standing of The Florida Bar pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Wilson PIERRE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D14-638.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Rehearing Denied July 28, 2014.
    Louis G. Carres, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Wilson Pierre, Jr., alleges that his appellate counsel was ineffective for failing to argue on appeal that the manslaughter jury instruction given to the jury constituted fundamental error pursuant to State v. Montgomery, 39 So.Bd 252, 259 (Fla.2010). He also faults appellate counsel for failing to notify the court about favorable case law from other jurisdictions. We agree and grant the petition.

Pierre was charged with first-degree murder. The jury was instructed on the lesser included offenses of second-degree murder and manslaughter by intentional act. With respect to manslaughter as a lesser included offense, the court instructed the jury that the State had to prove that Pierre “intentionally caused” the victim’s death. Later in the instruction, the court also stated that “it [was] not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” This second provision was consistent with a 2008 amendment to the instruction for manslaughter by intentional act. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403 (Fla.2008). The jury found Pierre guilty of second-degree murder as a lesser included offense and the judgment and sentence were affirmed on appeal. See Pierre v. State, 90 So.3d 892 (Fla. 4th DCA 2012).

Pierre argues that this instruction violated Montgomery, which held that an instruction for manslaughter by act requiring proof of intent to kill was fundamentally erroneous. 39 So.3d at 259. He faults counsel for failing to raise Montgomery on appeal and for failing to notify the court about Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), in which the First District held that an instruction identical to the one in the instant case constituted fundamental error pursuant to Montgomery. Pierre also notes that this Court certified the question in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), almost a year before his initial brief was filed.

The State counters that counsel is not required to anticipate changes in the law. For support, the State notes that at the time of Pierre’s appeal, precedent from this Court established that an instruction consistent with the 2008 amendment was proper. See Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010), quashed, 134 So.3d 449 (Fla.2014).

The Third District recently addressed a similar issue in Skinner v. State, 137 So.3d 1164 (Fla. 3d DCA 2014). The court noted that “ ‘there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.’ ” Id. at 1166 (quoting Granberry v. State, 919 So.2d 699, 701 (Fla. 5th DCA 2006)); see also Lopez v. State, 68 So.3d 332, 334 (Fla. 5th DCA 2011). In finding that Skinner’s appellate counsel’s performance was deficient, the court reasoned that he failed to raise the jury instruction issue and failed to provide the court with notice of conflicting case law from another district. Skinner, 137 So.3d at 1166. The court found that these omissions constituted “a serious error and a substantial deficiency” which “compromised the appellate process to such extent that it undermined this Court’s confidence” in the outcome of the direct appeal. Id. at 1166-67.

Because counsel’s omissions in the instant case are analogous to those in Skinner, we agree that the appellate process was substantially compromised. Counsel was tasked with knowing that the instruction was being challenged and that the First District had reached a conflicting decision in Riesel. These issues should have been brought to our attention during the appeal. For these reasons, we grant Pierre’s petition for writ of habeas corpus, vacate his conviction for second-degree murder, and remand for a new trial.

Petition granted; case remanded.

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


text:
    Ellen C. HEDENDAL, Appellant, v. NATIONSTAR MORTGAGE, LLC; Harbour Hall Inlet Club Condominium, Inc.; Unknown Spouse of Ellen C. Hedendal; and Unknown Tenant in Possession of the Subject Property, Appellees.
    No. 4D13-1152.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Carl A. Cascio of Carl A. Cascio, P.A., Delray Beach, for appellant.
    William David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale; Nancy M. Wallace of Akerman LLP, Tallahassee; and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee Na-tionstar Mortgage, LLC.
   PER CURIAM.

We accept Nationstar Mortgage, LLC’s concession of error and remand this case with directions for the trial court to reverse the summary judgment in favor of Nationstar and conduct further proceedings.

Reversed and remanded.

MAY, CIKLIN and GERBER, JJ., concur.


text:
    Lorena Vargas HERRERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4723.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Robert Sauerheber of Robert Sauerhe-ber, P.A., Orlando, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   On Concession of Error

PER CURIAM.

The State concedes that appellant’s amended postconviction motion, which she filed following our decision in Herrera v. State, 126 So.3d 445 (Fla. 4th DCA 2013), should not have been denied as untimely. We reverse and remand for further proceedings.

Reversed and remanded.

STEVENSON, CIKLIN and CONNER, JJ., concur.


author: LOGUE, J.

text:
    BANK OF AMERICA CORPORATION, Appellant, v. Rodolfo VALLADARES, Appellee.
    No. 3D12-1338.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Rehearing Denied July 22, 2014.

      Liebler, Gonzalez & Portuondo, P.A., and J. Randolph Liebler, Miami, and Trida J. Duthiers, West Palm Beach, for appellant.
    Mark G. DiCowden, P.A., and Mark G. DiCowden, Aventura; Joel S. Perwin, P.A., and Joel S. Perwin, Miami; Russell S. Adler, Delray Beach, for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Bank of America Corporation appeals a final judgment entered in favor of Rodolfo Valladares. Valladares sued the Bank for personal injuries he suffered at the hands of the police when the Bank mistakenly reported Valladares to be a bank robber. The jury returned a verdict for Valladares finding that the Bank was negligent. Because a person cannot be held liable for simple negligence when contacting the police to report suspected criminal activity, we reverse.

FACTS AND PROCEDURAL BACKGROUND

On July 3, 2008, Valladares visited a branch of the Bank to cash a check. A teller at the branch mistook Valladares for a bank robber. In the ensuing events, police responded to the scene and ordered all persons in the lobby to lie face down. Valladares assumed a position in which one of his hands was located under his body and out of the view of the officers. When he failed to obey a command to show his hand, an officer used his toe to execute a “foot tap,” or kick, to Valladares’s head. The officer later explained that he was concerned Valladares might have been concealing a firearm.

Valladares sued the Bank for personal injuries. His complaint contained causes of action for battery, false imprisonment, and negligence. The complaint also requested punitive damages for the battery and false imprisonment claims.

The jury returned the following special verdict: the Bank was negligent; Valla-dares was not comparatively negligent; the Bank did not cause a battery to be committed on Valladares; and the Bank did not cause Valladares to be falsely imprisoned. The jury awarded the following damages: $3,000 for past medical expenses; $100,000 for future medical expenses; $1,500,000 for past pain and suffering; $1,000,000 for future pain and suffering; and $700,000 in punitive damages. The trial court subsequently entered a final judgment against the Bank.

Throughout the proceedings, citing to Pokorny v. First Federal Savings & Loan Association of Largo, 382 So.2d 678 (Fla.1980), the Bank maintained that a party could not be liable in Florida for negligently calling the police to report a crime. The Bank raised this issue in a motion for summary judgment, a motion for directed verdict at the end of Valladares’s case, and in its motion to set aside the verdict and judgment. The trial court rejected the Bank’s argument in this regard.

ANALYSIS

On appeal, the Bank argues the following matters justify reversal: (1) the trial court’s denial of the motion to set aside the verdict on the negligence cause of action; (2) the trial court’s refusal to find the cause of action preempted under federal law; (3) the trial court’s refusal to grant an instruction on the police conduct as a superseding cause and to allow the police to be named as a Fabre defendant; (4) the trial court’s refusal to set aside the punitive damages because they were requested only for the counts of battery and false imprisonment and the jury found no liability on those counts; and (5) the trial court’s denial of the Bank’s motion to interview two jurors who denied being sued, although they were allegedly defendants in mortgage foreclosure actions. Without reaching the merits of the other arguments, we address only the first issue because we find it to be dispositive.

The Bank argues the trial court erred in allowing this matter to go to the jury on a theory of simple negligence. On this point, the case presents an issue of everyday concern — under what circumstance is a person who mistakenly reports a possible crime liable if the individual reported was (a) actually innocent and (b) physically injured during the ensuing interaction with the police.

Two legitimate and competing interests are at odds here. On one hand, an individual should be protected from abusive accusations. On the other hand, people must feel free, and indeed must be encouraged, to contact the police to report suspected criminal activity. The Florida Supreme Court described these competing interests as they arise in the context of actions for malicious prosecution as follows:

The tort of malicious prosecution is premised on the right of an individual to be protected from unjustifiable litigation or unwarranted criminal prosecution. Against this right, the need of society to bring criminals to justice by protecting those who, in good faith, report and legally prosecute persons apparently guilty of crime must be balanced. The latter need, in addition to the public policy in favor of the termination of litigation, dictates the plaintiffs heavy burden of proof.

Burns v. GCC Beverages, Inc., 502 So.2d 1217,1219 (Fla.1986) (citation omitted).

In the context of a false arrest that arises from a person’s mistaken report of a crime to the police, the Court similarly held that the public policy of Florida is to give wide latitude to an individual reporting a suspected crime to ensure a free flow of information between the people and the police. In this regard, the Court said:

Prompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and not discouraged under apprehension or fear of recrimination.

Pokorny, 382 So.2d at 682 (quoting Manis v. Miller, 327 So.2d 117 (Fla. 2d DCA 1976)); see also Fridovich v. Fridovich, 598 So.2d 65, 68 (Fla.1992) (“The fundamental public policy ... is the need to encourage free and unhindered communication to assist the authorities in detecting and prosecuting perpetrators of criminal activity”).

In light of these declarations by our highest court, it should come as no surprise that Florida law in many different contexts recognizes that a person who reports a suspected crime to the police has a qualified privilege: the person making the report cannot be liable if the report is based upon a good faith mistake. In other words, the person making the report cannot be liable unless she acted maliciously.

Under the common law of Florida, for example, a mistaken report to the police that leads to an innocent person being prosecuted rises to the tort of malicious prosecution only when it is done with malice. Pokorny, 382 So.2d at 683. A mistaken report to the police of suspicions of a crime rises to the level of defamation only if done with malice. Fridovich, 598 So.2d at 69 (adopting a qualified privilege for defamatory statements voluntarily made to police). A mistaken report to the police rises to the level of slander only if it is done with malice. Myers v. Jim Russo Prison Ministries, Inc., 3 So.3d 411, 412 (Fla. 2d DCA 2009) (recognizing a qualified privilege attaches to slanderous statements made to police). A mistaken report to the police that leads to a false arrest rises to the level of a tort only if the reporting person acted with malice or specifically requested the arrest and detention. Pokorny, 382 So.2d at 683 (“A plaintiff contending that he had been improperly arrested as the result of negligence in swearing out a warrant must bear the burden of establishing malice and want of probable cause. Mere negligence alone is insufficient.”).

These judicial decisions dovetail with many statutes that balance the competing interests by affording individuals qualified immunity for good faith mistakes when reporting wrongful acts to enforcement authorities. Regarding mistaken reports of abuse at nursing homes, for example, Florida law provides:

Any person who submits or reports a complaint concerning a suspected violation of the resident’s rights or concerning services or conditions in a facility or who testifies in any administrative or judicial proceeding arising from such complaint shall have immunity from any criminal or civil liability therefor, unless that person has acted in bad faith, with malicious purpose, or if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

§ 400.022(4), Fla. Stat. (2013). The Legislature has enacted a similar qualified immunity for mistaken reports to numerous enforcement agencies.

We found only one authority that cuts against the trend of recognizing a qualified privilege for reporting a crime. In Harris v. Lewis State Bank, 482 So.2d 1378, 1384 (Fla. 1st DCA 1986), the court held that the trial court erred in dismissing a count of negligently reporting a crime, although it also stated that “[t]he allegations upon which all the counts of appellant’s complaint are based include acts beyond the innocent misunderstanding portrayed in Pokomy” To the extent Harris holds that a person can be liable for a negligent, but good faith, mistake in summoning the police, it conflicts with the authority summarized above which governs analogous situations. We respectfully disagree with it.

Admittedly, none of these authorities dealt with the exact cause of action before us: a mistaken report of a crime that results in the person reported receiving personal injuries at the hands of the police. But the same reasons for recognizing a qualified privilege when the injury is wrongful prosecution, arrest, defamation, or slander apply when the injury is physical. The purpose of the standard of conduct is to govern the actions of the person when she is deciding whether to report the suspected crime. If there are differing standards based on the type of harm, a person would be unable to know when she was deciding to contact the police whether she would be liable based on mere negligence or only upon a showing of malice. Without knowing whether she had qualified immunity, she would be chilled from calling the police, undermining the holdings of and frustrating the policy announced by the Supreme Court in Bums, Pokomy, and Fridovich, supra. The fact that a call to the police leads to one type of harm rather than another may, of course, change the amount of damages, but it does not change the standard by which liability for making the call will be judged.

Under Florida law, therefore, an individual’s interest to be free from mistaken accusations is balanced against the need to encourage people to report suspected crimes. A person calling the police to report a possible crime is not liable for a good faith mistake even if the individual reported suffers personal injuries at the hands of the police. Calling the police to report a crime rises to the level of a tort only if the reporter acts maliciously, meaning the reporter either knows the report is false or recklessly disregards whether the report is false.

Having decided that the judgment below must be reversed, we must decide whether the case should be remanded for entry of a judgment for the Bank or for a new trial. Some authorities from outside Florida suggest this matter should be remanded in the interest of fairness to allow Valladares to retry his case on the standard of conduct announced in this decision. See, e.g., La Place v. Sun Ins. Office, Ltd., 298 F.Supp. 764, 767 (D.Vi.1969) (“Since the above is a new rule in this jurisdiction, and since [defendants] had no prior notice that it would be called upon to show how and why it was prejudiced by anything [plaintiff] did or failed to do, the court, in the interest of fairness, will grant defendants a new trial so that they may comply with the standard announced today.”); Brakeman v. Potomac Ins. Co., 472 Pa. 66, 871 A.2d 193, 198 (1977) (same).

The Florida Supreme Court, however, has rejected such an approach. In Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 587 So.2d 561 (Fla.1988), the plaintiff proceeded to trial and obtained a jury verdict over the objections of the defense that the plaintiffs theory was not properly pled. Id. at 562. The Court agreed with the defense and reversed. Recognizing that a reversal might occur, the plaintiff had also argued that, in the event of a reversal, the case should be remanded for a new trial. After all, the plaintiff argued, it should not be penalized simply because it relied upon the trial court’s ruling. The Court rejected this argument, explaining that “[b]y ‘relying’ on the trial court’s ruling, counsel always proceeds at the clear risk of reversal if the trial court was wrong.” Id. at 563. Having elected to go to trial on a legal theory, a party is not entitled to another trial on a different theory merely because the first theory is later rejected on appeal. Id.; see also Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981) (“[A] procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the ‘finality’ concept in our system of justice.”).

The Court’s reasoning is particularly applicable here. Although the general allegations of the complaint claimed the Bank’s conduct rose to the level of bad faith, and those allegations were technically incorporated by reference into the negligence count, Valladares persuaded the trial court to allow the negligence count to go to the jury on a theory of simple negligence. Among other occasions, he did this by successfully striking the Bank’s proposed jury instructions that would have informed the jury that the Bank could not be liable for a good faith mistake in its report to the police. Having elected to go to trial on the theory of simple negligence, Valladares ran the “clear risk” that simple negligence was not a proper theory for the relief claimed. For this reason, he is not entitled to a new trial based on another theory.

Reversed and remanded for entry of judgment for the Bank.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from in part on other grounds, Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249 (Fla.1995).

      . See § 39.203, Fla. Stat. (2013) (reporting child abuse, abandonment, or neglect); § 397.482, Fla. Stat. (2013) (conveying information in connection with a lawyer assistance program); § 415.1113(10), Fla. Stat. (2013) (providing information to a central abuse hotline); § 429.28(7), Fla. Stat. (2013) (describing services and conditions in assisted care facilities); § 560.123(3)(d), Fla. Stat. (2013) (filing a report on money laundering); § 626.989(4)(c), Fla. Stat. (2013) (furnishing information on insurance fraud); § 937.021(5), Fla. Stat. (2013) (reporting a missing person); § 937.025(3), Fla. Stat. (2013) (reporting missing children); § 943.043(4), Fla. Stat. (2013) (providing information on sexual predators and sexual offenders); § 1003.32(8), Fla. Stat. (2013) (reporting criminal activity on school property); § 1006.147(6), Fla. Stat. (2013) (reporting bullying or harassment).


text:
    Nieve and Marisol LINARES, Appellants, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D13-3175.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.

      Diverse Legal Solutions, a Law Firm, and S. Antonio Jimenez, for appellants.
    Loughren and Doyle, P.A., and Richard B. Doyle, Jr., Fort Lauderdale, for appel-lee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Nieve and Marisol Linares, the homeowners, appeal a final summary judgment entered in favor of Universal Property and Casualty Insurance Company. The trial court determined the homeowners’ breach of contract action was barred by the five-year statute of limitations period. We reverse.

On October 24, 2005, the homeowners’ property sustained damage as a result of Hurricane Wilma. The homeowners reported the damage to the insurance company approximately two months later. On February 21, 2006, the insurance company sent a letter to the homeowners stating that the damages fell below the insurance policy’s deductible. Although the letter also stated that the insurance company had concluded its investigation, the letter did not clearly or conclusively deny the claim. Instead, the letter provided, “[i]f you discover any additional damages or information regarding this matter, please forward it to our office for consideration.”

Some three years later, in December 2009, the homeowners provided the insurance company with the report of a private adjuster estimating the damages to exceed the policy deductible by a factor of ten. The homeowners also demanded that the insurance company participate in the appraisal process as provided for in the policy. In response, the insurance company requested that the homeowners participate in examinations under oath and provide sworn proof of loss. The homeowners complied with the requests. On August 24, 2010, the insurance company sent a letter to the homeowners denying the claim in plain and unambiguous language: “the original assessment of damages relating to Hurricane Wilma, when the claim was filed in 2005, was adequate and accurate, and the recently presented claim must be denied.”

The homeowners brought suit on July 9, 2012, alleging one count of breach of contract. The insurance company moved for summary judgment on the basis of the statute of limitations. The trial court granted the motion. This appeal followed.

The applicable statute of limitations provides that an action for breach of a property insurance contract must be filed within five years of the cause of action accruing. See § 95.11(2)(b), Florida Statutes (2010). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2010). This generally occurs, in insurance contract actions, at the time the insurance policy is breached. State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla.1996).

The insurance company argued, and the trial court agreed, the statute of limitations began to run when the insurance company sent the February 2006 letter stating that the claim was below the deductible. We disagree.

The court in Oriole Gardens Condominiums, III v. Independence Casualty & Surety Company, No. 11-60294-CIV, 2012 WL 718803 (S.D.Fla. March 6, 2012), addressed a case with remarkably similar facts. The insured submitted a claim for property damage sustained during Hurricane Wilma. Id. at *1. The insurer responded with a letter, similar to the February 2006 letter in the present case, stating the damages fell below the insurance policy’s deductible and inviting the submission of additional information. Id.

Three years later, the insured submitted a sworn proof of loss for damages exceeding the policy deductible. Id. The insurer requested that the insured participate in examinations under oath and submit further document in support of the claim. Id. The insured complied with the requests and demanded that the insurer participate in the appraisal process as provided for in the policy. Id. The insurer eventually sent a letter clearly denying the claim and stating it was standing by its initial determination that the amount of loss fell below the policy’s deductible. Id. at *2. Over five years after the insured received the initial letter stating the damages fell below the policy’s deductible, but less than five years after the second letter denying the claim, the insured brought a one-count complaint for breach of contract against the insurer. Id.

The court held the cause of action was not barred by Florida’s five-year statute of limitations period. Id. at *12. First, the initial letter informing the insured that its claim fell below the policy’s deductible’contained no language clearly denying the claim. Id. at *11. Second, the insurer’s correspondence and actions regarding the insured’s claim indicated that the claim was open and ongoing. Id. We find this reasoning to be persuasive and applicable to the present case.

Reversed and remanded for proceedings consistent with this opinion.

      . In 2011, the Legislature shortened the limitations period for property insurance claims by specifying that such actions begin to run from the date of loss. § 95.11(2)(e), Fla. Stat. (2011). That amendment to section 95.11(2) does not apply retroactively to this case. Rizo v. State Farm Fla. Ins. Co., 133 So.3d 1114 n. 1 (Fla. 3d DCA 2014) (citing Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So.3d 187 (Fla.2011)).


text:
    Herbert Larry PEARSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-955.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Herbert Larry Pearson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   PER CURIAM.

We reverse the trial court’s denial of the defendant’s petition filed pursuant to Florida Rule of Criminal Procedure 3.850. The defendant was sentenced pursuant to a plea on August 9, 2011. On August 8, 2013, he placed his Rule 3.850 petition into hands of the prison mailroom official. The petition was clearly date stamped: “Provided to Martin Correctional Institution on 8/8/13 for mailing” and initialed by the mailroom official. The prison mailroom log shows the petition was placed in outgoing mail to the Clerk of Court on August 9, 2013, exactly two years from the date of conviction and sentence.

As stated by this Court in Saavedra v. State, 59 So.3d 191 (Fla. 3d DCA 2011), “[t]he two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the judgment and sentence become final if no direct appeal is filed.” In addition, in Ramos v. State, 658 So.2d 169 (Fla. 3d DCA 1995), this Court stated: “where the motion for post-conviction relief is essentially a motion to set aside the plea and no previous appeal has been taken, the judgment and sentence do not become “final” for purposes of the rule until the thirty-day period for filing an appeal expires.” Applying those cases here, defendant’s sentence was not final until September 8, 2013 and his motion was timely filed.

We reverse and remand for consideration of the defendant’s Rule 3.850 petition on the merits.


text:
    Bobby ROSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2011.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Bobby Ross, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and LOGUE, JJ.
   PER CURIAM.

Affirmed. Falcon v. State, 111 So.3d 973, 973-74 (Fla. 1st DCA 2013) (holding that Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not apply retroactively to cases on collateral review by citing to Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), and Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012)), review granted, 137 So.3d 1019 (Fla.2013); Geter, 115 So.3d at 385 (finding that Miller does not “warrant retroactive application to Florida juvenile homicide offenders whose convictions and sentences were final as of June 25, 2012, the date Miller was issued”).


text:
    FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellant, v. WAKULLA FISHERMEN’S ASSOCIATION, INC., Ronald Fred Crum, Jonas Porter, and Keith Ward, Appellees.
    No. 1D13-5115.
    District Court of Appeal of Florida, First District.
    July 7, 2014.

      Pamela Jo Bondi, Attorney General and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for Appellant.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, and Fred McCormack of Fred McCormack, LLC, Tallahassee, for Amicus Curiae Coastal Conservation Association-Florida.
    Robert N. Hartsell and Sarah Hayter of Robert N. Hartsell, P.A., Pompano Beach, for Amicus Curiae The Snook and Gamefish Foundation.
    David Guest and Bradley Marshall of Earthjustice, Tallahassee for Amicus Curiae Florida Wildlife Federation.

      Ronald A. Mowrey, Mark L. Mason, and Nicholas Fugate of the Mowrey Law Firm, P.A., Tallahassee, for Appellees.
    Gary M. Mastry, II of the Mastry Law, P.A., St. Petersburg, for Amici Curiae The Monroe County Commercial Fishermen and The Southeastern Fisheries Association.
   PER CURIAM.

The Florida Fish and Wildlife Conservation Commission appeals a final judgment, contending the trial court erred by enjoining enforcement of article X, section 16, of the Florida Constitution and Florida Administrative Code Rules 68B-4.002, 68B-4.0081, and 68B-39.0047, and enjoining the Commission’s authority to adopt rules pursuant to article IV, section 9, of the Florida Constitution with respect to the use of a “gill net” or an “entangling net.” We agree and reverse.

Article X, section 16, which became effective on July 1, 1995, was enacted to place “limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.” Art. X, § 16(a), Fla. Const. The provisions prohibit the use of “gill nets or other entangling nets” and limit all other nets in the nearshore and inshore waters of Florida to 500 square feet of mesh area. Art. X, § 16(b), Fla. Const.

The provisions of article X, section 16, and the rules adopted to implement the provisions, have been the subject of almost continuous litigation since the proposal of the constitutional amendment. See Advisory Op. to the Attorney Gen.-Ltd. Marine Net Fishing, 620 So.2d 997, 999 (Fla.1993) (holding the proposed amendment met the single-subject and ballot summary requirements); Dep’t of Envtl. Prot. v. Millender, 666 So.2d 882 (Fla.1996) (addressing the method of measuring trawl nets pursuant to article X, section 16); Lane v. Chiles, 698 So.2d 260, 263 (Fla.1997) (holding article X, section 16, bore a reasonable relationship to a permissible governmental objective and was not discriminatory, arbitrary, or oppressive); State v. Conner, 717 So.2d 179 (Fla. 1st DCA 1998) (rejecting the assertion that article X, section 16, and a Marine Fisheries Commission rule, both of which prohibited the use of nets greater than 500 square feet in nearshore and inshore Florida waters, were unconstitutionally vague); State v. Kirvin, 718 So.2d 893, 894 (Fla. 1st DCA 1998) (holding the provisions prohibiting use of gill nets or other entangling nets were not “unconstitutionally vague”); Pringle v. Marine Fisheries Comm’n, 732 So.2d 395, 396-97 (Fla. 1st DCA 1999) (noting the “appellants’ evidence that a 500-square-foot net with a uniform mesh of two inches would not be commercially viable for catching mullet,” stating that a “net disallowed by the Net Ban Amendment cannot lawfully be used, whatever its commercial viability,” and affirming the administrative law judge’s conclusion that the proposed rule amendment to prohibit any mesh size larger than two inches stretched mesh constituted a valid exercise of delegated legislative authority). See also Fla. Fish & Wildlife Conservation Comm’n v. Pringle, 838 So.2d 648, 650 (Fla. 1st DCA 2003) (reversing, based on failure to exhaust administrative remedies, a circuit court judgment that (i) declared a net constructed of three-inch stretched mesh did not violate article X, section 16(b), and (ii) ruled that Florida Administrative Code Rules 68B-4.0081 and 68B-39.0047 were unconstitutional); Fla. Marine Fisheries Comm’n (Div. of Law Enforcement) v. Pringle, 736 So.2d 17, 19 (Fla. 1st DCA 1999) (reversing, based on failure to exhaust administrative remedies, a circuit court judgment that declared restrictions on the use of a 500 square foot seine net constructed with three-inch stretched mesh violated article X, section 16(b)).

In the present action, Rules 68EM.002 (defining an “entangling net” and a “gill net”), 68B-4.0081 (prohibiting the use of any gill or entangling nets of any size and prohibiting the use of any net, other than a cast net, landing or dip net, jellyfish paired trawl, or calico scallop otter trawl with a mesh size greater than two inches stretched mesh), and 68B-39.0047 (prohibiting the harvesting of mullet with the use of any gear or method other than permitted by rule), are again challenged. Appel-lees alleged below that the rules are facially unconstitutional and unconstitutional as applied to commercial mullet fishermen.

The trial court recognized that these rules, and the underlying constitutional provision, have been previously challenged and upheld, and that the prior decisions reviewed “similar matters.” Although the trial court acknowledged that “[i]t would be much easier to simply deny [Appellees] any relief and say ‘you have previously had your day in court,’ ” the trial court rejected the Commission’s contention that res judicata barred relitigation of the issues raised. The trial court instead determined that application of the constitutional provision and rules to mullet fisherman was “fundamentally unfair” and that it was compelled as a “court of equity ... to at least attempt to abate the unfairness.”

Res judicata, which is Latin for “a matter adjudicated,” is the doctrine that “ ‘[a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.’ ” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984) (emphasis supplied)); Black’s Law Dictionary 1305 (7th ed. 1999). See also State v. McBride, 848 So.2d 287, 290 (Fla.2003). “The doctrine of res judicata applies when four identities are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Topps v. State, 865 So.2d 1253, 1255 (Fla.2004).

The trial court’s ruling, however well-intentioned it might have been, was erroneous. The doctrine of res judicata applies to courts of law and courts of equity, and a judge is bound by the prior precedents of the jurisdiction in which the judge serves, regardless of whether the judge agrees with those prior decisions. See Phoenix Holding, LLC v. Martinez, 27 So.3d 791, 793 (Fla. 3d DCA 2010) (“With no valid reason, the trial judge set aside the judgment and sale solely because he did not ‘think it [was] fair.’ Unfortunately, neither the ground of fairness nor ‘the “ground” of benevolence and compassion ... constitute^] a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.’ Republic Fed. Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009).” Cf. Orr v. Trask, 464 So.2d 131, 135 (Fla.1985) (reversing an order that enjoined the Secretary of the Florida Department of Labor and Employment Security on equitable grounds from appointing a successor to the deputy commissioner who resigned because the “authority of a governor to appoint deputy commissioners is embodied in law” and “[c]ourts of equity have no power to overrule established law”); Canakaris v. Canakaris, 882 So.2d 1197, 1203 (Fla.1980) (explaining that, when exercising discretion, the judge “is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness” (quoting B. Cardozo, The Nature of the Judicial Process 141 (1921)); Flagler v. Flagler, 94 So.2d 592, 594 (Fla.1957) (“[W]e cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of ‘social justice’ at the particular moment without regard to established law. This court has no authority to change the law simply because the law seems to us to be inadequate in some particular case.”); Schwartz v. Zaconick, 68 So.2d 173, 175-76 (Fla.1953) (noting, in holding the court of equity could not ignore the parol evidence rule, that “[ejquity, although not as inflexible as the law, is nevertheless administered within established limits and upon recognized principles” and “must follow the law unless some recognized principle permits otherwise”); Hayes v. Frohock, 56 Fla. 794, 47 So. 343, 343 (1908) (affirming circuit court’s dissolution of an injunction that had enjoined the sale of real estate under an execution because it appeared the “legality of the execution was determined under the statutory proceedings, ... no writ of error was taken to the judgment of the court dismissing the proceedings,” and the matter was “res adjudi-cata by the proceeding at law taken by the defendant in execution, who cannot have such proceeding reviewed in equity”).

The doctrine of res judicata barred relitigation of the validity of the rules at issue. In Wakulla Commercial Fishermen’s Association, Inc. v. Florida Fish & Wildlife Conservation Commission, 951 So.2d 8 (Fla. 1st DCA 2007), plaintiffs sought a declaration that the three rules were unconstitutional and unconstitutional as applied. It was alleged that “research indicate[d] that nets with two-inch meshes gill a significant number of non-usable juvenile fish, which could lead to eradication of the species, whereas nets with larger meshes gill fewer fish — and the ones which are gilled by the large meshes are older, commercially viable fish.” Id. at 10. It was further alleged that “these three rules operate together to violate the Florida Constitution’s ban on gill and entangling nets, which ban exists to ‘protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.’ ” Id. (citation omitted).

The trial judge in Wakulla Commercial Fishermen’s Association found a rational basis supported the three challenged rules and granted the Commission’s motion for summary judgment. This court affirmed:

Because the challenged rules do not involve a suspect class or a fundamental right, they are reviewed under the rational basis test. Under the rational basis test, the validity of the rules must be upheld if “any state of facts may be conceived to justify [them].” Whether [the Commission] chose the best method to protect marine resources is not an appropriate judicial inquiry under the rational basis standard....
[The Commission] ... presented expert testimony that the mullet population remains healthy and has actually increased since the implementation of the two-inch net mesh limitation. This testimony ... is sufficient to establish a rational basis for [the Commission’s] adoption of the challenged rules as a means of furthering the goal of protecting marine resources.

Id. at 9-10 (citations omitted; emphasis supplied). See also Crum v. Fla. Fish & Wildlife Conservation Comm’n, 888 So.2d 22 (Fla. 1st DCA 2004) (table opinion affirming In re: Petition of Ronald Fred Crum & Keith Ward for Declaratory Statement, Nets, Order No. E003-05 June 1, 2003, in which the Commission (i) concluded that a proposed “hybrid” net with mesh size larger than two inches was not lawful and (ii) denied a request for an evidentiary hearing because each of the prior cases “involve[d] the same issues regarding application of the prohibitions of the Net Limitation Amendment to large mesh nets that the Commission has determined to be gill or entangling nets”).

Appellees’ assertion that application of the doctrine of res judicata “will inflict pernicious results” is not persuasive. The Florida Supreme Court “has long recognized that res judicata will not be invoked where it would defeat the ends of justice.” McBride, 848 So.2d at 291. The injustice asserted by Appellees, however, .“stems from the arbitrary rule and its enforcement against commercial mullet fishermen trying to earn a living” based on the allegations that the “two-inch stretch mesh rule is far less selective than a net with a larger mesh” so that “commercial mullet fishermen are gilling vast quantities of juvenile fish every time they deploy a net” and are compelled to use a “net that violates the purpose of the Net Limitation Amendment.”

Because these assertions have been raised and rejected in prior proceedings, Appellees failed to establish that a manifest injustice will result. See, e.g., Kalmanson v. Ducote, 955 So.2d 50, 50-51 (Fla. 5th DCA 2007) (determining that when the respondent had appealed a sanction order on the basis that the trial court’s imposition of monetary sanctions violated his right to due process, the appellate court had affirmed the sanction order, and the respondent’s motions for rehearing, for rehearing en banc and for a written decision were denied, the doctrine of res judicata precluded the trial court from staying enforcement of the sanction order and ruling a hearing was necessary to determine whether the respondent was given adequate notice); Sibley v. Sibley, 885 So.2d 980, 982 (Fla. 3d DCA 2004) (“The former husband argues that it would be a manifest injustice to enforce the March 4 order because the prior panel which affirmed the March 4 order did not write an opinion explaining the panel’s reasoning. In the former husband’s view, the prior panel was mistaken and should have written an opinion to explain the ruling. This is not a legally sufficient showing of manifest injustice.”). Cf. Williams v. State, 47 So.3d 906, 908 (Fla. 3d DCA 2010) (holding the manifest injustice exception to the res judicata doctrine was applicable when the defendant was sentenced under a version of the sentencing guidelines that was later held to be unconstitutional); Ranes v. State, 913 So.2d 742, 743 (Fla. 4th DCA 2005) (determining the manifest injustice exception was applicable when the defendant sufficiently alleged and established that he missed the deadline to file a rule 3.850 motion because his attorney had agreed to file the motion but failed to do so in a timely manner); State, Dep’t of Revenue, Office of Child Support Enforcement on behalf of D.J.N. v. Redding, 685 So.2d 1000 (Fla. 3d DCA 1997) (noting the manifest injustice exception would apply in a subsequent paternity action because there is a recognized public policy of the state that children be provided support, and application of res judicata would deprive a child of needed support for the remainder of the child’s minority).

The requisite “four identities” and a decision on the merits, required for application of the doctrine of res judicata, were established by the Commission. The trial court failed to find (and Appellees failed to establish) a sufficient factual foundation for application of the manifest injustice exception. The trial court therefore erred in determining that Appellees’ claims were not barred by res judicata.

The trial court also erred by enjoining enforcement of article X, section 16, and the Commission’s authority pursuant to article IV, section 9, to adopt rules with respect to use of a gill net or an entangling net. This relief was not requested by Appellees below and is not advocated by Appellees on appeal. See, e.g., Worthington v. Worthington, 123 So.3d 1189, 1190-91 (Fla. 2d DCA 2013) (“ ‘In ... civil matters, courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error.’ Additionally, a court should not grant such relief absent proper notice to the parties.” (citation omitted)); Antoniadis v. Earca, N.V., 442 So.2d 1001, 1001 (Fla. 3d DCA 1983) (holding the trial court lacked the authority to fashion a remedy that was not raised by any of the pleadings and not tried by consent).

REVERSED.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Louis WELTMAN and Phoenix Realty Partners, Inc., Appellants, v. Stephen RIGGS and Heritage FFR, LLC, and Douglas Turner, Appellees.
    No. 1D14-614.
    District Court of Appeal of Florida, First District.
    July 7, 2014.

      Jack E. Kiker, III and Brian C. Bohm of Williams, Gautier, Gwynn, DeLoach & Sor-enson, P.A., Tallahassee, for Appellants.
    Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, for Appellees Stephen C. Riggs and Heritage FFR, LLC.
   PER CURIAM.

Appellants appeal an order granting in part Appellees’ emergency motion for temporary injunction. Appellants argue that reversal is warranted on two general grounds: 1) insufficient notice; and 2) the order did not contain the necessary factual findings addressing each of the four factors necessary for issuing a temporary injunction. We affirm the first argument without further comment. For the reasons explained below, we reverse as to the second issue.

Appellees filed a three count complaint, one count of which sought an injunction ordering Appellants to recognize Appellee Riggs’ attempt to exercise a stock option which would result in him becoming the majority shareholder. This complaint was followed by the emergency motion at issue. The gravamen of this motion was that Appellants planned to hold a shareholder meeting to ratify certain actions that Ap-pellees contend were contrary to an agreement between Riggs and Appellants as well as detrimental to Appellees and the property owners in the golf course development that is at the center of this controversy. Riggs requested that the court enjoin Appellants from holding this meeting or doing other actions that, he contended, would result in irreparable harm to his rights as well as the development’s property owners. Riggs also requested that the court issue the aforementioned order concerning the stock option. Riggs asserted that, once his purported right to exercise the option was recognized, he would be able to prevent the ratification and prevent this alleged irreparable harm.

The court, sua sponte, scheduled an expedited hearing on the matter. Recognizing the brevity of the notice of the hearing to Appellants, but also concerned that there would be irreparable harm if the allegations in the complaint and motion were true, the court issued the subject injunction. In essence, the court ordered that the status quo be maintained pending an evidentiary hearing on the merits to take place within 20 days. The court denied Riggs’ request to order recognition of his attempt to exercise the stock option, stating that that issue was in fact the crux of the entire matter.

“A temporary injunction may be granted only if the movant establishes (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest support the entry of the injunction.” Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666 (Fla. 2d DCA 2005).

“Every injunction shall specify the reasons for entry. Fla.R.Civ.P. 1.610(c). Clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a temporary injunction.” Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994). The court in Richard held that, even if the record supports the trial court’s order, if the order is flawed because it fails to list any factual findings consistent with this rule, it must be remanded “to the trial court with instructions to delineate factual findings to support each of the four conclusions necessary to grant the temporary injunction.” Id.

Here, although the court made sufficient findings on the irreparable harm factor, its order failed to address the remaining three factors. Although we are sympathetic to the court’s effort to both prevent potential irreparable harm and afford a prompt evidentiary hearing to address the matters more fully, the holding in Richard, as well as precedent from this court, requires us to reverse and remand for the trial court to address this flaw in its order. See, e.g., Tom v. Russ, 752 So.2d 1250, 1251 (Fla. 1st DCA 2000) (holding: “The order on appeal fails to address likelihood of success on the merits or considerations of public interest. The order also fails to require a bond. Accordingly, we remand with instructions to the trial court to either enter an order that satisfies all requirements for entry of a temporary injunction or if appropriate, an order denying the injunction.”).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

THOMAS, ROWE, and MAKAR, JJ., concur.

      . We note that this court has held that, although “a defendant against whom a temporary injunction is entered without notice may seek immediate appellate review, clearly the preferred practice is for the defendant to present the alleged deficiencies to the trial court via a motion to dissolve pursuant to Rule 1.610(d).” Hathcock v. Hathcock, 533 So.2d 802, 804 (Fla. 1st DCA 1988). Despite this, Appellants opted (after delaying the evi-dentiary hearing they had requested) to appeal rather than file such a motion and afford the court the opportunity to correct the order’s deficiencies which, we note, would have been a more expeditious process for all concerned.