source: Caselaw Access Project

license: Public Domain

text:
    HEALTH ALLIANCE INJURY & PAIN MANAGEMENT, INC., Appellant(s)/Petitioner(s), v. U.S. SECURITY INSURANCE COMPANY, Appeilee(s)/Respondent(s).
    No. 3D12-2828.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2013.
   Upon consideration, petitioner’s motion for rehearing on order granting appellate attorney’s fees to respondent U.S. Security is hereby granted. Appellate attorney’s fees are provisionally granted to respondent subject to determination of entitlement by the trial court.

SHEPHERD, C.J, and EMAS and FERNANDEZ, JJ, concur.


text:
    James TURNER and Jeffrey Turner, Appellant(s)/Petitioner(s), v. JAGUAR CREIT CORPORATION and Jaguar Cars, Appellee(s)/Respondent(s).
    No. 3D13-1886.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2014.
    Rehearing Denied Feb. 18, 2014.
   Upon consideration, appellee Jaguar Credit Corporation’s motion to dismiss appeal is granted insofar as it relates to the orders of November 29, 2012, and March 26, 2013. Said motion is denied insofar as it relates to the writ of bodily attachment entered July 15, 2013.

LAGOA, SALTER and LOGUE, JJ., concur.


author: MORRIS, Judge.

text:
    STATE of Florida, Appellant, v. David B. McELROY, Appellee.
    No. 2D12-872.
    District Court of Appeal of Florida, Second District.
    April 30, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   MORRIS, Judge.

The State of Florida appeals the imposition of a downward departure sentence in this case. We hold that the reason provided by the trial court for imposing the downward departure sentence is not supported by competent, substantial evidence, and we therefore reverse and remand for resentencing.

In August 2011, David B. McEl-roy, the appellee, pleaded no contest to domestic battery by strangulation. Adjudication was withheld, and he was sentenced to eleven months and twenty-nine days in jail, followed by four years of probation. The State objected to this downward departure sentence. On August 19, 2011, the judgment and sentence were filed. However, on August 22, 2011, the trial court issued a sua sponte order, entitled “Order for Rehearing of Sentencing,” wherein the trial court rescinded the sentence and set the matter for a new hearing. At the new sentencing hearing, the trial court stated that “it is not [the court’s] intent to change the sentence.” The trial court then explained that because it imposed a downward departure sentence, it needed to state the reason for the downward departure on the record to prevent a reversal of the sentence and to ensure that “[McElroy] doesn’t end up in prison for several years instead of several months.” After the sentencing hearing, the original trial judge failed to issue a new sentencing order. At that point in time, McElroy was in a legal limbo, serving his jail sentence, but without the benefit of a formal sentencing order. The State subsequently sought disqualification of the trial judge which was eventually granted. The case was reassigned, and on February 8, 2012, the successor judge entered an order finding that the August 22, 2011, order that rescinded the original sentencing order was a nullity. The successor judge also ordered the clerk of court to file the original judgment and sentence from August 19, 2011. The State then timely filed its appeal of the February 8, 2012, order.

A trial court’s decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent!,] substantial evidence supports its ruling. ...
Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion.

Banks v. State, 732 So.2d 1065, 1067-1068 (Fla.1999) (footnotes omitted). Here, the issue is whether the requirements of step 1 were met.

The trial court imposed the downward departure after finding that McElroy suffered from a “significant mental or emotional disorder.” A downward departure sentence may be imposed where the defendant needs specialized treatment for a mental disorder unrelated to substance abuse or addiction or for a physical disability and where the defendant is amenable to treatment. See § 921.0026(l)(d), Fla. Stat. (2011).

The problem in this case is that McEl-roy did not seek a downward departure sentence pursuant to section 921.0026(l)(d). And although he testified that a counselor told him that “she believed I had Manic Depressive Disorder with severe dependency issues,” he offered no proof of a formal diagnosis made by a physician. He also testified that he stopped participating in counseling and taking medication in 2006. There was simply no evidence presented on the issues of whether McElroy suffered from a mental disorder which required specialized treatment or whether he was amenable to such treatment.

Instead, without any adequate factual basis, the trial court concluded that McEl-roy was suffering from an undiagnosed mental or emotional disorder based on McElroy’s conduct during sentencing. The trial court stated “I can’t identify what it is, but I can see the symptoms.” The trial court also found that the undiagnosed mental or emotional disorder “does not strike me as simply one that addresses ... anger management” but, instead, was “a lot more complicated than that.” Based on that finding, the trial court concluded that participation in anger management courses would be an insufficient treatment option. The closest that the trial court came to addressing McElroy’s amenability to treatment was the trial court’s opining that if treatment was available and McEl-roy took advantage of it, there was a “realistic possibility.”

The trial court’s finding that a downward departure sentence pursuant to section 921.0026(l)(d) was appropriate is not supported by competent, substantial evidence. There was no evidence of an official diagnosis, whether McElroy required specialized treatment, or whether McElroy would even be amenable to such treatment. The trial court’s conclusions were based purely on speculation which did not support the imposition of a downward departure sentence. Accordingly, we reverse the downward departure sentence. See State v. Sahadeo, 890 So.2d 464, 465 (Fla. 2d DCA 2004) (reversing downward departure sentence where defense offered no evidence that appellant required treatment for mental disorder and did not even argue that appellant suffered from a mental disorder). On remand, the trial court shall conduct a de novo resentencing hearing. See Jackson v. State, 64 So.3d 90, 93 (Fla.2011) (holding that “nothing within the [Criminal Punishment Code] precludes the imposition of a downward departure sentence on resentencing following remand” and that a trial court may resen-tence a “defendant to a downward departure if such a departure is supported by valid grounds”).

Ordinarily, “[a] defendant is entitled to withdraw a plea if, following a plea agreement, the trial court is not able to adhere to the provisions of the plea agreement.” Sahadeo, 890 So.2d at 465. But here, there was no plea agreement in place nor was there any inducement to enter the plea by the trial court. Rather, MeElroy entered an open plea to the court. Under these circumstances, MeElroy is not entitled to withdraw his plea. See id.

Reversed and remanded for resentenc-ing.

ALTENBERND and WALLACE, JJ., Concur.

      . McElroy's scoresheet reflected that the lowest permissible sentence was 24.225 months in prison.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)( 1)(M). We reject McElroy’s assertion that this appeal is untimely because the State failed to file a notice of appeal from the original sentencing order filed on August 19, 2011. The original sentence was rescinded via the trial court’s sua sponte August 22, 2011, order, and no further sentencing orders were filed until February 8, 2012. Thus through no fault of the State, there was no sentence to appeal until February 8, 2012.

      . We acknowledge that this court, as well as the First and Third District Courts of Appeal, holds that "[t]o show that a defendant requires specialized treatment for a mental disorder, 'it must be established that the mental disorder requires treatment that is not available in the Department of Corrections.’ ” State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005) (quoting State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004)); State v. Hall, 981 So.2d 511, 514 (Fla. 2d DCA 2008); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Ford, 48 So.3d 948, 950 (Fla. 3d DCA 2010); State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005). We also acknowledge that both the Fifth and the Fourth District Courts of Appeal have receded from their prior case law and certified conflict with the opinions from this court and the First and Third District Courts of Appeal. See, e.g., State v. Owens, 95 So.3d 1018, 1019— 21 (Fla. 5th DCA 2012) (en banc); State v. Chubbuck, 83 So.3d 918, 921-23 (Fla. 4th DCA 2012) (en banc), review granted, SC12-657. Oral argument was conducted in the Chubbuck case before the Florida Supreme Court on September 17, 2013. However, we need not address the continuing vitality of the requirement mentioned above because it is not dispositive to this case given the complete lack of competent, substantial evidence that McElroy suffered from a mental disorder.

      . McElroy did seek a downward departure based on section 921.0026(2)(j), which permits a departure where the crime was an isolated incident, was committed in an unsophisticated manner, and where the defendant has shown remorse. The trial court rejected this argument below.

      . The State also argues that the trial court committed technical errors when it failed to reduce its reason for the downward departure sentence to writing and when it failed to note the departure on the sentencing scoresheet. See Hall, 981 So.2d at 513 (citing § 921.00265(2) and explaining that a trial court must file written reasons for a downward departure within seven days after the date of sentencing; we recognized, however, that a downward departure sentence may still be affirmed where the trial court makes oral findings on the record which are supported by competent, substantial evidence). However, due to our disposition of this case, we need not address this issue.

      . Cf. Scherber, 918 So.2d at 425 (holding that because pleas were induced by trial court’s finding that defendant was eligible for downward departure sentence, defendant should be permitted to withdraw his pleas on remand); Wheeler, 891 So.2d at 617 ("Since the trial court induced the departure sentence which is now reversed, Wheeler should be permitted to withdraw his plea.”).


author: SLEET, Judge.

text:
    Melanie A. WHRITENOUR, Court Appointed Guardian of William T. Wolden and as Parent and Legal Guardian of Gavin A. Wolden, Appellant, v. Tina F. THOMPSON, Appellee.
    No. 2D13-3434.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.
    Rehearing Denied Aug. 29, 2014.

      Celene H. Humphries of Brannock & Humphries, Tampa; and George A. Lorenzo of Lorenzo & Lorenzo, P.A., Tampa, for Appellant.
    Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellee.
   SLEET, Judge.

Melanie Whritenour, appointed guardian of William Wolden and parent and legal guardian of Gavin Wolden, appeals an order granting final summary judgment. Because Whritenour was entitled to a jury trial on the issues of negligence and damages, the trial court erred as a matter of law. Accordingly, we reverse.

This case, to our knowledge, involves an unprecedented situation. Thompson, the defendant below, obtained a final summary judgment in favor of Whritenour that compelled Whritenour to accept Thompson’s liability insurance policy limits in full and complete satisfaction of her damages. In doing so, the trial court barred Whritenour from obtaining a jury verdict on the issue of damages because of her perceived inability to prove a subsequent bad faith claim against Thompson’s insurance carrier.

On January 4, 2012, Whritenour brought a negligence action against Thompson that stemmed from a motor vehicle accident that occurred in July 2011. Thompson had bodily injury liability insurance coverage of $300,000. Her insurance company retained defense counsel who filed an answer and defenses and advised Thompson to file for bankruptcy. She was referred to a bankruptcy attorney and on September 11, 2012, Thompson filed for Chapter 7 bankruptcy. Thompson listed Whritenour’s personal injury claim in her bankruptcy petition at a value in excess of one million dollars. On the same day, the bankruptcy court issued an automatic stay pursuant to 11 U.S.C. § 362.

On October 23, 2012, Whritenour filed an emergency motion for relief from the bankruptcy stay in the negligence action. On November 29, 2012, the bankruptcy court granted Whritenour’s motion and modified the automatic stay “to permit [Whritenour] to commence, prosecute, complete^] and liquidate through final judgment, her claims against [Thompson], for the purpose of pursuing [Thompson’s] insurance carrier and not for the purpose of pursuing personal liability against [Thompson].” In addition, the order provided that “in the event that [Whritenour] wants to proceed against the insurance company for an excess judgment, [Whri-tenour] is to file another motion for relief.”

Litigation in the negligence action continued until Thompson filed a motion for summary judgment. At the summary judgment hearing, Thompson’s bankruptcy attorney argued that Thompson had no personal liability and that Whritenour’s maximum recovery was the liability insurance policy limit of $300,000. He argued that the bankruptcy court gave Whriten-our permission to proceed against Thompson in name only to the extent of available insurance coverage. And, undeterred by the lack of sworn evidence, he argued that the bankruptcy trustee did not have any desire to pursue a bad faith claim against the insurance company. Finally, he concluded that Camp v. St. Paul Fire & Marine Insurance Co., 616 So.2d 12 (Fla.1993), authorized a bankruptcy trustee to pursue an action for bad faith against the insurer only if the bad faith action was already pending when the tortfeasor was discharged from bankruptcy. Ultimately, the trial court granted summary judgment in favor of Whritenour for the $300,000 policy limit. The trial court interpreted Camp to hold that Whritenour was not entitled to proceed to a jury determination of the negligence action because she failed to file an action for bad faith prior to Thompson being discharged in bankruptcy and that the policy limits were the maximum recovery.

This court reviews a trial court’s order granting summary judgment de novo. Jiminez v. Faccone, 98 So.3d 621, 623 (Fla. 2d DCA 2012). “A summary judgment deprives a party of his or her right to trial and must be exercised with restraint; any doubts must be resolved in favor of the nonmoving party.” Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003).

Whritenour argues that the viability of her potential action for bad faith is not a legal basis upon which to grant summary judgment in her underlying negligence action. We agree. Whritenour has a right to have a jury decide and liquidate the damages. See art. I, § 22, Fla. Const. Contrary to Thompson’s argument, Camp does not hold that a plaintiffs personal injury damages are limited to the insurance policy limits if the tortfeasor files for bankruptcy and the plaintiff has not established a bad faith action before the tortfea-sor is discharged in bankruptcy. Camp ⅛ precedential value is limited to the extent that Mrs. Camp obtained relief from a bankruptcy stay in order to pursue and recover a jury verdict on damages. 616 So.2d at 14. Mrs. Camp obtained a verdict in excess of the defendant’s policy limits and filed a bad faith action with the defendant’s bankruptcy trustee. Id. The Florida Supreme Court held that the insurance carrier’s liability for bad faith was not extinguished when the insured defendant declared bankruptcy while the underlying personal injury action was pending. Id. at 15.

Whritenour’s negligence action and any potential subsequent bad faith action are two separate and distinct causes of action. The elements of a negligence action are the existence of a duty, a breach of the duty, a causal connection between the conduct and the resulting injury, and actual damages. Jackson Hewitt, Inc. v. Kaman, 100 So.3d 19, 27-28 (Fla. 2d DCA 2011) (citing Clay, 873 So.2d at 1185). Thompson did not argue any of these elements in her summary judgment motion. Instead, the parties’ arguments devolved into the applicability of Camp and whether or not Whritenour could prove a bad faith action against Thompson’s insurance carrier.

Under Florida law, a bad faith action is a separate cause of action that does not arise until an insured is legally obligated to pay an excess judgment. See Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994) (explaining that a third party must ordinarily obtain a judgment against the insured in excess of the policy limits before prosecuting a bad faith claim against the insured’s liability carrier). A plaintiff must first obtain a judgment in a negligence action that determines liability and the amount of resulting damages because that determination is essential to a potential suit against an insurance company for its bad faith in handling a liability claim against its insured. Id. A tortfeasor’s bankruptcy filing and discharge does not change this procedure. The only difference is that the bankruptcy trustee brings the bad faith action against the insurance company. Camp, 616 So.2d at 15. The bankruptcy court’s order granting relief from the stay expressly permitted Whritenour to pursue Thompson’s insurance company in order to prosecute the negligence action through final judgment. There was no express language limiting Whritenour’s recovery to the policy limits and the bankruptcy court’s instruction to file another motion for relief in the event Whritenour wanted to proceed against the insurance company for an excess verdict belies such an interpretation.

We conclude that the viability of a potential bad faith action is not a legal basis that can support granting a summary judgment motion in a negligence case. A plaintiff must be allowed to proceed to trial and liquidate her damages before bad faith becomes an issue. Cunningham, 630 So.2d at 181. If a plaintiff chooses to pursue a trial, the trial court cannot compel her to accept the defendant’s policy limits. A defendant’s discharge in bankruptcy cannot be a legal basis upon which to compel a plaintiff to accept the liability insurance policy limits. If such were the case, every insurance carrier would instruct its insured to declare bankruptcy in order to limit recovery to the policy limits.

For the reasons expressed above, we reverse the order granting summary judgment against the plaintiff and remand the case to the trial court for the determination of the issues of negligence and damages by a jury. Any potential verdict is subject to the provisions of the bankruptcy court order concerning Thompson’s personal liability.

Reversed and remanded with directions.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . At oral argument, Thompson argued that liability was admitted. However the record does not reflect an admission of liability. Additionally, there was no sworn testimony filed in support of the motion for summary judgment.


author:
PER CURIAM.
      MORRIS, J., NORTHCUTT, J.,

text:
    Mark A. WESTBROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-888.
    District Court of Appeal of Florida, Second District.
    June 13, 2014.
    Rehearing Denied July 25, 2014.

      Howard L. Dimmig, II, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Mark A. Westbrooks appeals his convictions for manslaughter (a lesser-included of felony murder), two counts of armed robbery, and four counts of attempted armed robbery. On appeal, Westbrooks claims that the trial court erred in denying his motion for judgment of acquittal because the State did not rebut his hypothesis of innocence that he was not involved in the robbery. We affirm his convictions for the reasons expressed below.

I. Facts

At trial, the State proceeded on the theory that on November 11, 2009, West-brooks and two other men drove to the Carver City area of Tampa to rob a group of men playing cards outside of a house. The men playing cards had been warned that a robbery was about to take place in Carver City, but they did not take the warning seriously. The men had witnessed a car drive by about twenty minutes prior to the incident. When the car returned, two masked perpetrators exited the car with guns in their hands. One of the perpetrators shot into the air and ordered everyone to the ground, and some of the men playing cards ran into a nearby house. One of the perpetrators robbed two of the men who remained outside, taking their jewelry, wallets, money, and phones. Another man tried to flee, but a second perpetrator shot him in the back, killing him. The perpetrators then returned to their car and drove away.

Greshawnta Hornsby, Westbrooks’ ex-girlfriénd, testified that she was with Westbrooks on the evening of November 11, 2009. Westbrooks received a phone call when Hornsby was sitting in his car with him around 7:30 or 7:40 that evening. Hornsby testified to the following: “He said, ‘A lick?’ And then kind of paused and ‘Carver City’ and said ‘All right.’” He then hung up the phone. The phone records confirmed that Westbrooks received a call from Chris Lemons at 7:40 that lasted forty-seven seconds and that Westbrooks received another call from Lemons at 7:41. Hornsby identified a photograph in evidence as being that of Westbrooks’ car. It was the same car that she was sitting in when he received the phone call about a “lick” in Carver City. Later, after Hornsby learned about the robberies and shooting in Carver City, she asked Westbrooks about it and he told her he had been in St. Petersburg with his car.

Several witnesses to the offenses, including victims, testified at trial and identified the car that the perpetrators drove. Brenda Green owned the home outside which the incident occurred. She testified that she heard gun shots around 8:30 in the evening and that the car driven by the perpetrators was louder than a normal car. She called 911.

Isaac Anderson, one of the victims, testified that the car drove by a first time and that he “heard the pipes go by.” Then, about twenty minutes later, the car drove by again, but this time it stopped and the occupants got out. It was a greenish blue, four-door car, and he noticed a little dent on the back. When the occupants exited the car, the interior light came on and Anderson was able to tell that the interior was gray. The windows were darkly tinted. He identified the photos in evidence, which were photos of Westbrooks’ car, as depicting the car involved in the offenses. The pipes on the car sounded like a deep roar.

Reginald Bass, another victim, testified that he heard a car pass by with pipes. It looked like a police car, but he realized it was not because he heard the pipes. It was either a Crown Victoria or a Mercury. It was the car that returned for the shooting. It was a four-door car that had a dent on the passenger side door towards the middle.

Randy Cochran testified that the car that returned for the offenses had loud “flow masters on it,” which are dual pipes that make the “car faster, sound better.”

Joseph Green testified that he was on his porch when he saw a car at the high school fifty to sixty feet away and that the car looked like a Mercury that was dark green in color. “It sounded like it had a big engine in it like it had pipes on it.” A “black dude” with “long dreadlocks” got out, and he opened the trunk and put a t-shirt over the license tag. Two other people were in the car. The car drove by Green’s house and turned. Thirty seconds later, he heard about six gunshots. He heard the car again, and he ran to his yard and saw the same car turn onto another street. He picked the car out of photographs shown to him, and he was able to identify it by a dent it had on the side. He paid attention to the car because “[s]ome-thing ain’t look right to me.” The car had tinted windows.

Leslie Allen, another victim, testified that the car that stopped before the shooting was a “bluish, greenish Mercury Grand Marquis.” He identified the car in the photo as being similar to the one at the shooting. It had tinted windows and no hub caps. He noticed the pipes as it was leaving and that it sounded like the same pipes he had heard earlier that evening when the car had driven by the first time.

Detective Camp identified the photos in evidence as depicting the Mercury Grand Marquis belonging to Westbrooks. It had a gray interior. Detective Camp also testified that he conducted a taped interview with Westbrooks about a week after the incident. In that conversation, West-brooks told Detective Camp that he was with Chris Lemons and Chris Toombs in Tampa on the night of the shooting. He admitted that he had previously told Hornsby that his car was in St. Petersburg because he did not want her to bother him. He also denied to Detective Camp that anybody had access to his car that night other than him.

The State presented detailed evidence of phone calls made that night between West-brooks, Toombs, Lemons, and Hornsby. The State introduced phone records and maps into evidence which showed the location of the towers from which all the calls were placed and received. The phone calls also showed that the group was in contact with a Matthew Grier, a person who several witnesses said was present at the location in Carver City for only a few minutes prior to the incident. Specifically, the records showed that Westbrooks was in contact with Lemons at 7:40 and 7:41. The records also showed that Grier called Toombs around 7:26 p.m. and that Toombs called Grier at 7:41. These early phone calls placed Westbrooks, Lemons, and Toombs in the area of Tampa where Toombs and Lemons lived. Grier and Toombs continued to make phone contact. Between 8:19 and 8:31, Grier made several phone calls to Toombs. The location of the cell tower indicated that at that point in time, Toombs was within six blocks of where the shooting occurred. Approximately twenty minutes later, Toombs called Grier again twice at 8:50, from an area with a cell tower seven or eight miles away, back in the area where Toombs and Lemons lived. Later phone calls showed that Toombs, Westbrooks, and Lemons remained back on their side of town. Then, at 2:11 a.m., a call was placed from Reginald Bass’s stolen cell phone to Lemons but Lemons did not answer. Then, at 2:12, a call was placed from Leslie Allen’s stolen cell phone to Lemons but Lemons did not answer. At 2:15, Lemons called Toombs. At 2:16, Lemons called Grier. At 2:21, Toombs called Grier. At 2:28, Lemons called Westbrooks. In sum, the phone activity clearly showed that West-brooks, Lemons, and Toombs were in contact with each other much of the night and that between 8:00 and 9:00, the hour surrounding the robbery, there was significant phone activity between Toombs and Grier which placed Toombs within blocks of the Carver City incident.

At the close of the State’s case, West-brooks moved for a judgment of acquittal, arguing that the circumstantial evidence was insufficient to sustain convictions for the offenses. The trial court denied the motion, and the jury found Westbrooks guilty of manslaughter (a lesser-included offense of felony murder) and as charged on the robbery and attempted robbery counts. He was sentenced to thirty years in prison on the armed robberies to be followed by ten years’ probation and to 304.5 months in prison on the attempted armed robberies and the manslaughter, all to run concurrently.

II. Analysis

Generally, a motion for judgment of acquittal should be denied “[i]f, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). However, in cases in which the evidence is “wholly circumstantial,” a special standard of review applies: “the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Id,.; see also Mosley v. State, 46 So.3d 510, 526 (Fla.2009) (“If the State presents both direct and circumstantial evidence, courts do not apply the special standard of review applicable to circumstantial evidence cases.” (citing Pagan, 830 So.2d at 803)). “Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.” Durousseau v. State, 55 So.3d 543, 557 (Fla.2010). “‘The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the [d]efendant’s theory of events.’ ” Id. (quoting State v. Law, 559 So.2d 187, 189 (Fla.1989)). The State is not required to rebut a hypothesis of innocence that is unreasonable. See Henderson v. State, 679 So.2d 805, 806 (Fla. 3d DCA 1996) (“While we must agree with [appellant] that the State was required to provide evidence inconsistent with any reasonable hypothesis of innocence, we emphasize that the State was not required to exclude any unreasonable hypothesis.”).

In this case, there was direct evidence that Westbrooks was told of a robbery before it was committed, thus suggesting his participation in the robberies, but there was no direct evidence that Westbrooks participated in the robberies. See Singleton v. State, 105 So.3d 542, 544 (Fla. 2d DCA 2012) (holding that direct evidence of defendant’s DNA found at the scene was “direct evidence merely of a circumstance that suggested his participation” in the burglary and theft but was “not direct evidence of [his] participation in the burglary’); see also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 401.1 (2013 ed.) (“Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact; e.g., T saw A shoot B’ is direct evidence that A shot B. Circumstantial evidence is evidence which involves an additional inference to prove the material fact; e.g., T saw A flee the scene’ is circumstantial evidence of A’s guilt and direct evidence of flight.”). Therefore, this court must apply the special standard applicable to wholly circumstantial evidence cases. See Kocaker v. State, 119 So.3d 1214, 1225 (Fla.2013) (applying special circumstantial evidence standard in a case in which the State “failed to present direct evidence that it was [defendant] who killed [the victim]”); Law, 559 So.2d at 188 (applying “special standard of review ... [w]here the only proof of guilt is circumstantial”); Singleton, 105 So.3d at 544 (applying circumstantial evidence standard where there was no direct evidence of defendant’s participation in the offenses).

In order to convict Westbrooks as a principal, the State was required to prove (1) that he intended for the offenses to be committed and (2) that he assisted in the commission of the offenses. See McBride v. State, 7 So.3d 1146, 1148 (Fla. 2d DCA 2009). Hornsby’s testimony established that Westbrooks was told about a robbery in Carver City before it happened. Specifically, Westbrooks’ statements during a phone call indicated that he was asked about a robbery in Carver City and that he responded, “all right.” Numerous witnesses identified West-brooks’ car as the one involved in the robbery, and Westbrooks admitted that he was the only one in possession of his car on the night of the offenses. Westbrooks also admitted that he was with Toombs and Lemons that night. The cell phone records placed Toombs within six blocks of the incident around the time of the incident and showed that Toombs was in constant phone contact with a person, Grier, who had left the scene of the robbery minutes before it occurred. The evidence showed that Westbrooks knew that a robbery was being planned and that he committed acts in furtherance of the robbery. Cf. id. at 1149 (holding that McBride’s presence at and flight from the scene was insufficient to sustain his conviction where the State “failed to present any evidence that established McBride’s intent that the victim be shot or that he committed an act in furtherance of the shooting”).

Westbrooks’ hypothesis of innocence was one of mistaken identity, i.e., that he was not involved in the incident. But the State presented evidence that was inconsistent with his theory of events. Numerous eyewitnesses identified Westbrooks’ car as the one driven by the perpetrators; three people testified that the car they saw that evening had a dent in it, which proved to match a dent in Westbrooks’ car, and all of the witnesses testified that the car had loud pipes, which also proved to match Westbrooks’ car. The State also presented Westbrooks’ statement to Detective Camp that Westbrooks was the only one with access to his car that night.

Further, the State presented other evidence that Westbrooks was in the area of Carver City at the time of the incident. The State introduced a taped conversation in which Westbrooks told Detective Camp that he had been gambling with several people that evening, including Lemons and Toombs. He was with both Lemons and Toombs when Hornsby called him to tell him that a shooting had occurred in Carver City. The cell phone records also placed Toombs within blocks of the shooting at the time of the shooting, and both Lemons and Westbrooks did not use their cell phones for approximately an hour surrounding the shooting. During that hour, Toombs was in constant contact with Grier, who had been at the location of the shooting just prior to the shooting. Later in the evening and again early in the morning, Westbrooks, Lemons, and Toombs called each other. And early in the morning, phone calls were placed from the stolen cell phones to Lemons, and both Lemons and Toombs called Grier.

Neither Westbrooks nor the State provide any case law that is directly on point or helpful to the factual scenario in this case. But State v. Sims, 110 So.3d 118 (Fla. 1st DCA 2013), provides some guidance. In Sims, the First District affirmed the trial court’s granting of a postverdict motion for judgment of acquittal. Id. at 114. Sims was convicted of charges stemming from a shooting incident at a gas station. Sims and his friend, Webb, had been involved in a fight with five men at a park earlier that day. Id. at 114-15. At the park, Sims had been driving his car, and Webb was riding with him. About forty-five minutes later, the five men encountered Webb at a convenience store. Id. at 115. He was in the backseat of a car outside the store. As the five men left, the car in which Webb was riding followed them to a gas station, where Webb fired a gun from the backseat window.

The First District held that the State did not meet its burden under the special circumstantial evidence standard in proving Sims’ guilt and that a finding of his guilt “could be sustained only by stacking several inferences one on another.” Id. at 116. The court concluded that no forensic evidence or eyewitness accounts connected Sims’ car to the shooting. While two of the victims indicated that the car was similar to Sims’ car (a dark blue, four-door Pontiac G6), another bystander described it as a black, two-door car. Id. at 115. Even if Sims’ car was involved, there was no direct or circumstantial evidence that he was driving his car. Id. at 116. And even if Sims’ had been driving, there was no evidence that Sims knew that Webb intended to fire a gun from the back seat.

This case is distinguishable from Sims for several reasons. In this case, the eyewitnesses were able to identify West-brooks’ car as the one seen before and during the shooting. There were some inconsistencies in the description of the car, but most of the descriptions specifically matched Westbrooks’ car. In addition, there was evidence that Westbrooks was either driving his car or riding in his car during the shooting; Westbrooks admitted that he was with his car most of the evening and that nobody else had access to his car because when he was not with his car for a short period of time, he still had the keys. Furthermore, there was direct evidence that Westbrooks was told about a robbery in Carver City before it happened and that he left Hornsby’s house immediately after that. Westbrooks’ participation and intent to participate in the robbery could be inferred from all of the circumstances. Here, the circumstantial evidence could lead a jury “ ‘to a reasonable and moral certainty’ ” that Westbrooks participated in the offenses. See Cox v. State, 555 So.2d 352 (Fla.1989) (quoting Hall v. State, 90 Fla. 719, 107 So. 246, 247 (1925)).

This court recently reversed a felony murder conviction in Rocker v. State, 122 So.3d 898, 903-905 (Fla. 2d DCA 2013), holding that the circumstantial evidence presented by the State was not inconsistent with Rocker’s hypothesis of innocence that he “set up a drug transaction without prior knowledge that [his codefendant] intended to take advantage of the situation to rob the victim.” The facts in this case are distinguishable from those in Rocker. The Rocker case turned on the evidence of Rocker’s intent. Id. at 903-05. Here, the State provided clear evidence of West-brooks’ intent. A witness testified that in a phone call with his friend Lemons, West-brooks mentioned a “lick,” or a robbery, in Carver City. Also, Westbrooks admitted being with or in control of his car all night, and the State presented evidence that Westbrooks’ car was involved in the incident. There was no other explanation for Westbrooks’ car being in Carver City that night. Cf. Rocker, 122 So.3d at 904 (concluding that Rocker’s actions on the night of the murder were “just as consistent with the theory that he was participating in a drug transaction as [they were] with the theory that he was participating in a robbery”). The State presented evidence of intent and participation that was inconsistent with Westbrooks’ theory that he was not involved in the incident. Cf. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980) (holding that circumstantial evidence that defendant drove the car and fled the scene after his brother committed robbery was insufficient to sustain defendant’s conviction absent other evidence of defendant’s intent to aid in the robbery).

Because the State presented circumstantial evidence in this case that was inconsistent with Westbrooks’ hypothesis of innocence, we affirm his convictions.

Affirmed.

NORTHCUTT, J., Concurs specially with an opinion.

MORRIS, J., Concurs with an opinion in which BLACK, J., Concurs.

MORRIS, J.,

Concurring.

I agree with the majority opinion that the State met the special circumstantial evidence standard in this case. However, I take this opportunity to express my concern with the continued application of this special standard. In Knight v. State, 107 So.3d 449, 455, 457 (Fla. 5th DCA 2013), the Fifth District concluded that the special circumstantial evidence test did not apply under the facts of that case but also opined that “Florida should join the federal courts and the vast majority of states that have abandoned use of a special circumstantial evidence standard of review.” See also Rocker, 122 So.3d at 912 (Villanti, J., dissenting); Sims, 110 So.3d at 117 (Thomas, J., dissenting). The court reasoned that the special “standard is misleading because it completely ignores the proper role of the jury and directs the appellate judge to determine ... whether a hypothesis of innocence is reasonable,” Knight, 107 So.3d at 457, it “ignores the correlation between the ‘strength’ of circumstantial evidence and the ‘reasonableness’ of various hypotheses of innocence,” id. at 458, and “it incorrectly suggests that an allowance for the jury’s credibility determinations should never factor into a sufficiency of the evidence review in circumstantial evidence cases,” id. at 459. The Knight court also concluded that the standard is unnecessary because the general standard of review applicable to motions for judgment of acquittal ensures that a conviction is sustained only when the trier of fact could find every element beyond a reasonable doubt. Id. at 460. The court further opined that the special standard should not apply to cases “where the state presents direct evidence to support a finding of guilt as to most elements, but is left to rely on circumstantial evidence to prove the defendant’s state of mind,” recognizing that state of mind is almost never proven by direct evidence. Id. at 463; see also Rocker, 122 So.3d at 912 (Villanti, J., dissenting); Sims, 110 So.3d at 122 (Thomas, J., dissenting). The court pointed out that there is much confusion in Florida about when the special standard applies and that the supreme court should at the least clarify when it applies. Id. at 467.

I agree with the Fifth District’s compelling reasons for the abandonment or reconsideration of this special standard of review, and I too encourage the supreme court to address this issue. See Rocker, 122 So.3d at 912 (Villanti, J., dissenting) (encouraging the “supreme court to reconsider Florida’s use of the ‘special standard of review’ in circumstantial evidence cases”). Since the Rocker majority concluded that the evidence in that case did not meet the special circumstantial evidence standard, see id. at 905, I believe that this issue would be best addressed by the Florida Supreme Court in its review of this court’s decision in Rocker.

NORTHCUTT, J.,

Specially concurring.

I fully and easily concur in the affir-mance of Westbrooks’ convictions because the State presented evidence of circumstances that refuted Westbrooks’ hypothesis of innocence. I do not share my colleagues’ view about the efficacy of the circumstantial evidence rule. To the contrary, I believe the rule is what prevents a purely circumstantial case from devolving into little more than a trial by ordeal. But, rather than clutter the margins of this opinion with a hypothetical exchange, I will refrain from proffering a more refined defense of the rule until I am assigned to a case that turns on the issue.

      . In a dissenting opinion in Sims, Judge Thomas concluded that the State presented sufficient circumstantial evidence to convict Sims. 110 So.3d at 117 (Thomas, J., dissenting).

      . Rocker was a split decision with a vigorous dissent by Judge Villanti, in which he opined that the State presented evidence that was "inconsistent with Rocker’s hypothesis of innocence which would then allow the jury to infer his intent to commit the crime.” 122 So.3d at 911 (Villanti, J., dissenting). The State sought discretionary review of this court's Rocker decision in the Florida Supreme Court. State v. Rocker, SC 13-1975. On October 22, 2013, the supreme court granted the State's motion to stay further proceedings as well as the enforcement of this court's mandate of the Rocker decision.


author: PER CURIAM.

text:
    Belafonte Lopez ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6209.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Belafonte Lopez Rosier, pro se.
   PER CURIAM.

Affirmed. See Rosier v. State, 109 So.3d 801 (Fla. 2d DCA 2013) (table decision); Rosier v. State, 95 So.3d 230 (Fla. 2d DCA 2012) (table decision); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000); Green v. State, 765 So.2d 825 (Fla. 2d DCA 2000); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Michael HURLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6237.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Michael Hurley, pro se.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.125(f); Adaway v. State, 902 So.2d 746 (Fla.2005); State v. Boatwright, 559 So.2d 210 (Fla.1990); Rusaw v. State, 451 So.2d 469 (Fla.1984); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004); Wilkinson v. State, 889 So.2d 110 (Fla. 2d DCA 2004); Dailey v. State, 501 So.2d 15 (Fla. 2d DCA 1986).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Michael W. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-205.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Michael W. Scott, pro se.
   PER CURIAM.

Affirmed. See Lee v. State, 679 So.2d 1158 (Fla.1996); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Scott v. State, 16 So.3d 140 (Fla. 2d DCA 2009) (table decision); O’Neill v. State, 6 So.3d 630 (Fla. 2d DCA 2009); Reed v. State, 761 So.2d 1241 (Fla. 2d DCA 2000); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Edwards v. State, 830 So.2d 141 (Fla. 5th DCA 2002).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Timothy COUGHLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-367.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Timothy Coughlin, pro se.
   PER CURIAM.

Affirmed. See Coughlin v. State, 967 So.2d 913 (Fla. 2d DCA 2007) (table decision).

NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Deneal BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 2D14-1166.
    District Court of Appeal of Florida, Second District.
    June 27, 2014.
    Rehearing Denied Aug. 15, 2014.
    Dane K. Chase of Chase Law Florida, PA., St. Petersburg, for Petitioner.
    No appearance required for Respondent.
   PER CURIAM.

Petitioner’s motion for rehearing, certification, and request that the court issue a written opinion is granted. The prior order dated April 16, 2014, is withdrawn, and the attached opinion is issued in its place.

Deneal Brown filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d) claiming that his appellate attorney should have challenged, as fundamental error, the trial court’s use of the standard jury instruction for manslaughter by intentional act. We conclude that Mr. Brown is entitled to no relief.

Mr. Brown was charged with second-degree murder, and he testified at trial that his friend shot the victim in self-defense. Defense counsel argued in closing that the victim was the aggressor, and the shooting was self-defense. The State disputed the presence of Mr. Brown’s friend as well as Mr. Brown’s argument that the shooting was self-defense. The State argued that Mr. Brown’s act of shooting the victim in the torso demonstrated a depraved mind without regard for human life. The jury found Mr. Brown guilty as charged, and the trial court sentenced him to life in prison with a twenty-five-year mandatory minimum term in accordance with the jury’s findings that he discharged a firearm during the commission of the offense and that the discharge caused the victim’s death.

Because Mr. Brown was charged with second-degree murder and his intent was not disputed at trial, the only disputed issues the jury had to consider in deciding whether to find Mr. Brown guilty of second-degree murder or manslaughter were whether his friend shot the victim or, if not, whether Mr. Brown’s actions were justified as self-defense. Based on the reasoning of Richards v. State, 128 So.3d 959, 963-64 (Fla. 2d DCA 2013), we conclude that Mr. Brown is not entitled to relief.

Petition denied.

ALTENBERND, KELLY, and WALLACE, JJ., Concur.


text:
    Matthew FAISON, Petitioner, v. GGO PRISON FACILITY and COL. CORR. INST., Respondents.
    No. 1D14-1760.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Rehearing Denied Sept. 3, 2014.
    Matthew L. Faison, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Thomas v. State, Dept. of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011) (stating that absent a showing that an express and distinct demand for performance has been made, mandamus will not lie to compel a court to rule on a pleading in a civil matter).

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


author: VAN NORTWICK, J.

text:
    G.H., Sr., father of P.G.H., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-5334.
    District Court of Appeal of Florida, First District.
    June 30, 2014.
    Rehearing Denied Sept. 3, 2014.

      Linda C. Clark, Tampa, for Appellant.
    Dwight 0. Slater, Children’s Legal Services, Department of Children and Famines, Tallahassee, for Appellee.
    Leslie Powell and Kari Crawford, Conflict Guardians ad Litem, Legal Services of North Florida, Pensacola, for Appellee.
   VAN NORTWICK, J.

G.H., Sr., the natural father of P.G.H., challenges the termination of his parental rights over this child. We reverse because the Department failed to establish that termination was the least restrictive means of protecting the child.

The child P.G.H. was sexually abused by her older brother in 2011, and the brother, who was adjudicated delinquent, was removed from the family home. Appellant was not living in the family home at the time of the abuse. In March 2013, the brother was returned to the mother’s home by Families First Network, an agent of the Department. The child P.G.H. claimed that her brother again abused her after he climbed through her bedroom by use of a ladder; this abuse occurred approximately a week after the brother returned. He was again charged but was acquitted of the second charge. Upon notice of the second incident of abuse, the Department of Children and Families petitioned to terminate the parental rights of appellant and the natural mother, who is not a party to this appeal. As to the appellant, the Department sought termination on the ground that he had “engaged in conduct towards the child that demonstrates that the continuing involvement of the parents in the parent-child relationship threatens the life, safety, well being [sic] or physical, mental or emotional health of the child.... ” The statutory authority for this ground is section 39.806(l)(c), Florida Statutes (2013).

It is well-established that the Department has the burden to prove by clear and convincing evidence that termination of a parent’s rights is the least restrictive means of protecting the child from serious harm. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). The “[l]east restrictive means” analysis embodies due-process concerns. Before depriving someone of a fundamental right, such as the right to parent, the State must demonstrate a compelling interest and that this interest is furthered through the least intrusive and restrictive means. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 625 n. 16 (Fla.2003); In re T.W., 551 So.2d 1186, 1193 (Fla.1989); A.W. v. Deft of Children & Families, 969 So.2d 496, 504 (Fla. 1st DCA 2007).

Below, the trial court found that “[t]his child clearly has a strong emotional bond with her parents. The Court has no doubt that it will be traumatic for her to be separated from her parents permanently.” The trial court concluded, though, that the harm suffered by the separation would be less than what would occur if the child was returned to them. This conclusion is without support in the record. The child’s therapist testified that it was not in the child’s best interests to have no future exposure to her parents. It was the agent of the Department which placed the brother back in the family home; it was not explained why removal of the brother from the family home will not protect the child victim.

Further, the current guardian of P.G.H., an aunt, indicated a preference for a permanent guardianship rather than adoption. The trial court noted this preference in the final order. While ordering termination of parental rights and the cessation of parental visitation, except for “a visit to enable the parents and child to say goodbye to each other,” the trial court also stated, incongruously, that “it is not necessarily true that [P.G.H.] needs to be completely estranged from her parents in order for it to be in the manifest best interest to have parental rights terminated” so that under “appropriate supervision, the parents may not be harmful to [P.G.H.] simply by maintaining a relationship.” Given such a finding, there is nothing in the record indicating that a guardianship as suggested by the aunt would not protect the child, as it has since her removal from the family home.

The termination of parental rights involves a fundamental liberty interest, protected by the federal and state constitutions. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Padgett v. Deft of Health & Rehabilitative Servs. Given this fundamental liberty interest, the Department is obliged to “proceed in a narrowly tailored manner.” N.S. & D.R. v. Dep't of Children & Families, 36 So.3d 776, 778 (Fla. 3d DCA 2010); D.M. v. Dep't of Children & Families, 79 So.3d 136, 139 (Fla. 3d DCA 2012). Terminating appellant’s parental rights under the facts presented below was not a narrowly tailored remedy and was not the least restrictive means of protecting the child.

Accordingly, the order terminating the parental rights of the appellant is REVERSED and REMANDED for further proceedings as authorized by section 39.811, Florida Statutes.

PADOVANO and MARSTILLER, JJ., concur.


author: CIKLIN, J.

text:
    James RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4581.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Rehearing Denied Sept. 10, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, 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.
   CIKLIN, J.

This is the third appeal by Riley of the denial of his motion for postconviction relief. See Riley v. State, 8 So.3d 1285 (Fla. 4th DCA 2009); Riley v. State, 975 So.2d 507 (Fla. 4th DCA 2007). As one of his central themes, Riley continues to assert that a sentencing scoresheet used early on in the process was flawed. He argues that certain misdemeanor convictions should not have been included in the scoresheet calculation because they were based on uncounseled pleas. In our most recent opinion we wrote:

Notably, the Florida Supreme Court has modified its holding in State v. Beach, 592 So.2d 237 (Fla.1992), in a recent decision of State v. Kelly, 999 So.2d 1029 (Fla.2008), in which the defendant argued that the state erred in using prior uncounseled misdemeanor convictions to increase a subsequent DUI from a misdemeanor to a felony. The court held that a defendant must allege: (1) that the offense was punishable by imprisonment; (2) that the defendant was indigent and entitled to court-appointed counsel; (3) that counsel was not appointed; and (4) that the right to counsel was not waived. Riley satisfied this requirement. This shifts the burden to the state to show that counsel was provided or that counsel was waived.

Riley, 8 So.3d at 1286 n. 1.

The record reflects that in his postcon-viction motion, Riley challenged the assessment of points for four misdemeanor convictions. On remand from the last appeal, the state established that Riley waived counsel as to two of the four misdemeanors — carrying a concealed weapon and disorderly conduct. However, the state has repeatedly failed to establish that counsel was provided or waived as to two traffic crimes.

As the state has now had two opportunities to meet its burden and has been unable to do so with respect to two of the misdemeanors, we reverse and remand for the trial court to resentence Riley based on a scoresheet that does not include the convictions for the two traffic misdemeanors.

The other issues raised on appeal are without merit or moot.

Reversed and remanded with instructions.

MAY and KLINGENSMITH, JJ., concur.

      . The first two appeals were taken from summary denials while the instant appeal flows from a resentencing order which effectively denied postconviction relief.

      . On remand from the second appeal in this case, the state sought to add points to Riley’s scoresheet for a prior conviction for fishing off a bridge. On appeal, Riley argues this prior conviction should not have been scored when he violated his probation as it was a noncriminal infraction. He is incorrect. The offense occurred in 1992. At that time, the offense was a misdemeanor. See § 316.1305, Fla. Stat. (1992).


text:
    Fredrick J. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-308.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   PER CURIAM.

Affirmed. See Tucker v. State, 726 So.2d 768 (Fla.1999); Leeman v. State, 357 So.2d 703 (Fla.1978); Williams v. State, 997 So.2d 486 (Fla. 2d DCA 2008); Daniel v. State, 935 So.2d 1240 (Fla. 2d DCA 2006); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Pitts v. State, 832 So.2d 260 (Fla. 2d DCA 2002); Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985); Foss v. State, 834 So.2d 404 (Fla. 5th DCA 2003); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Halt v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


author: WOLF, J.

text:
    AGENCY FOR HEALTHCARE ADMINISTRATION, Appellant, v. BAYFRONT MEDICAL CENTER, INC., Cape Memorial Hospital, Inc. d/b/a Cape Coral Hospital, CGH Hospital, Ltd. d/b/a Coral Gables Hospital, Delray Medical Center, Inc. d/b/a Delray Medical Center, Lee Memorial Health System, d/b/a Lee Memorial Hospital and Gulf Coast Medical Center, Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital, Morton Plant Hospital Association, Inc. d/b/a Morton Plant Hospital and Morton Plant North Bay Hospital, Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, South Broward Hospital District d/b/a Memorial Health System d/b/a Memorial Regional Hospital, Memorial Hospital West, Memorial Hospital Pembroke, and Memorial Hospital Miramar, South Florida Baptist Hospital, Inc. d/b/a South Florida Baptist Hospital, St. Anthony’s Hospital, Inc. d/b/a St. Anthony’s Hospital, St. Joseph’s Hospital, Inc. d/b/a St. Joseph’s Hospital, St. Joseph’s Children’s Hospital, St. Joseph’s Hospital North and St. Joseph’s Women’s Hospital, Tenet Good Samaritan, Inc. d/b/a Good Samaritan Medical Center, Tenet Healthsystem North Shore, Inc. d/b/a North Shore Medical Center and North Shore Medical Center-FMC Campus, Tenet Hialeah Healthsystem, Inc. d/b/a Hialeah Hospital, Tenet St. Mary’s, Inc. d/b/a St. Mary’s Medical Center, Trustees of Mease Hospital, Inc. d/b/a Mease Dunedin Hospital and Mease Countryside Hospital, West Boca Medical Center, Inc. d/b/a West Boca Medical Center, Appellees.
    No. 1D13-0224.
    District Court of Appeal of Florida, First District.
    July 16, 2014.
    Rehearing Denied Sept. 3, 2014.
    Tracy Cooper George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellant.
    Joanne B. Erde of Duane Morris LLP, Miami, for Appellees.
   WOLF, J.

Appellant, the Agency for Health Care Administration (AHCA), filed an appeal of a final order of the Division of Administrative Hearings which found that AHCA was operating under an unpromulgated rule. After the issues were fully briefed and this court heard oral arguments, AHCA filed a notice of voluntary dismissal. In light of this notice, we dismiss. However, we write to specify that AHCA may not avoid its obligation to pay appellees’ reasonable appellate attorney’s fees by filing this belated notice of voluntarily dismissal.

Section 120.595(4)(a), Florida Statutes, requires that “[i]f the appellate court or administrative law judge determines that” an agency is operating under an unpromul-gated rule, “a judgment or order shall be entered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds.” Here, the administrative law judge (ALJ) found that AHCA was operating under an unpromulgated rule which was not required by the Federal Government. AHCA has sought to voluntarily dismiss this court’s review of that finding. Thus, the ALJ’s finding entitles appellees to reasonable attorney’s fees during the entire duration of these proceedings. As such, we accept the voluntary dismissal, but we grant appellees’ motion for appellate attorney’s fees and remand for a determination of the amount if the parties are unable to reach an agreement.

DISMISSED. APPELLEES’ MOTION FOR ATTORNEYS FEES GRANTED.

PADOVANO and RAY, JJ., concur.


text:
    Zachery Keith TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-698.
    District Court of Appeal of Florida, First District.
    July 18, 2014.
    Rehearing Denied Sept. 5, 2014.
    Zachery Keith Turner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, ROBERTS, and ROWE, JJ., concur.


author: THOMAS, J.

text:
    James R. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1715.
    District Court of Appeal of Florida, First District.
    July 21, 2014.
    James R. Mitchell, pro se, Appellant. Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT FOR RECONSIDERATION IN LIGHT OF STATE V JOHNSON, 122 So.3d 856 (Fla.2013)

THOMAS, J.

Based on the Florida Supreme Court’s recent decision in State v. Mitchell, 2014 WL 2601466 (Fla. June 10, 2014), which quashed this court’s decision in Mitchell v. State, 147 So.3d 1, 2012 WL 955508, 37 Fla. L. Weekly D708 (Fla. 1st DCA March 22, 2012), we withdraw our previously-entered opinion. We hereby affirm the trial court’s order denying Appellant’s motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a), as the supreme court has now held that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is not retroactive to sentences that were final after the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was announced but before Blakely was decided. State v. Johnson, 122 So.3d 856 (Fla.2013).

Appellant’s sentence “became final after Apprendi but before Blakely ” was decided. Mitchell, — So.3d at—, 37 Fla. L. Weekly at D708. We reversed and remanded the trial court’s order denying relief, as this court had previously held that Blakely did not announce a new rule of law, but merely “clarified” the decision in Apprendi, and was thus retroactive and applicable to sentences, such as Appellant’s, which were legally revisited after Apprendi but before Blakely was announced. Id. Acknowledging a conflict with the Fourth District’s decision in Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005), which certified conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), rev. dismissed, 66 So.3d 912 (Fla.2011), cert, denied, — U.S.—, 132 S.Ct. 1539, 182 L.Ed.2d 161 (2012), we certified a question of great public importance, to wit:

Do Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), apply retroactively in the context of a sentencing where the resentencing occurred and became final after Appren-di was decided, but before Blakely was issued?

On June 9, 2014, the Florida Supreme Court determined that “it should accept jurisdiction in this case .... [t]he First District Court of Appeal’s decision in this case is quashed, and this matter is remanded for reconsideration upon application of our decision in State v. Johnson, 122 So.3d 856 (Fla.2013).” As the Florida Supreme Court has now made clear in Johnson, the decision by the United States Supreme Court in Blakely is considered to have announced a new rule, not a clarification of Apprendi. Thus, under the criteria established more than thirty years ago in Witt v. State, 387 So.2d 922, 925 (Fla.1980), the supreme court has decided the rule is not retroactive, as Blakely cannot be considered a “jurisprudential upheaval.” Johnson, 122 So.3d at 863. In fact, in Johnson, the supreme court stated that “[bjecause Blakely estatablished a new rule, we necessarily reject the First District’s contrary conclusion expressed in Isaac — and applied in this ease — that Blakely ‘clarified’ Apprendi and applies retroactively.” Id. at 862. The supreme court then described Isaac as a “concluso-ry decision (that) could effectively open the floodgates for postconviction claims any time a court interprets a criminal statute or comments on its own decisional law.” Id. at 863.

Thus, Appellant is not entitled to any further review of his claim that the upward departure sentence imposed on him violates his Sixth Amendment right to a jury to consider whether the factors supporting the upward departure are present beyond a reasonable doubt. Because Appellant was sentenced within the “statutory maximum” under the State’s sentencing guidelines, i.e., the maximum statutory term defined by the Legislature, his sentences, including his sentence of life in prison, for the offenses of sexual battery with a deadly weapon, attempted first-degree murder, armed robbery, and causing bodily injury during the commission of a felony, which are upward departures of the recommended guideline sentences, are not subject to collateral attack on the basis of Blakely or Apprendi.

We AFFIRM the trial court’s order denying Appellant relief under the authority of State v. Johnson, 122 So.3d 856 (Fla.2013), as our prior decision in Isaac is no longer good law.

ROBERTS and MARSTILLER, JJ., concur.


text:
    Terry Dewayne GIDEON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1173.
    District Court of Appeal of Florida, First District.
    July 21, 2014.
    Rehearing Denied Sept. 3, 2014.
    Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Terry Dewayne Gideon challenges his designation as a Prison Releasee Reoffen-der (PRR) and the resulting mandatory minimum sentence. We reject Gideon’s argument that eligibility for PRR sentencing is a fact which must be submitted to the jury. See Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014), and Lopez v. State, 135 So.3d 539 (Fla. 2d DCA 2014). As for the argument that eligibility for PRR sentencing is an element which must be alleged in the charging document, we find this argument to be without merit. See Almendarez-Toms v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

AFFIRMED.

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


author: DAMOORGIAN, C.J.

text:
    The FLORIDA PHILHARMONIC ORCHESTRA, INC., a nonprofit corporation, Appellant, v. Phillip BRADFORD; Robert Williams Moving & Storage, Inc., a Florida corporation, and Fisher Auction Co., Inc. a Florida corporation, Appellees.
    No. 4D13-376.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Rehearing En Banc Denied Sept. 16, 2014.

      Anne Sullivan Magnelli, Kathryn L. Smith and Kristen A. Tajak of Cole, Scott & Kissane, P.A., Miami, for appellant.
    William G. Wolk of Eaton & Wolk, PL, Miami, for appellee Phillip Bradford.
   DAMOORGIAN, C.J.

The Florida Philharmonic Orchestra, Inc. (“Florida Philharmonic”) appeals the trial court’s non-final order granting Phillip Bradford’s motion to set aside settlement agreement and striking the final order of dismissal. We reverse and remand for the trial court to make specific findings as to which party bears the burden of the fraud committed by Bradford’s attorney in procuring the settlement agreement.

This case stems from a negligence action that Bradford filed against Florida Philharmonic in August 2007. Bradford’s counsel, Scott Rovenger, negotiated a $280,000 settlement with Florida Philharmonic without Bradford’s knowledge or consent. The settlement agreement contained a provision releasing Florida Philharmonic from all liability. Florida Philharmonic issued a check to Bradford and Rovenger’s law firm and the trial court entered an order dismissing Bradford’s negligence action with prejudice.

Seven months later, Bradford, represented by new counsel, filed a motion to set aside the settlement agreement and strike the order dismissing the action with prejudice. Bradford alleged that: (1) he never authorized the settlement with Florida Philharmonic; (2) Rovenger submitted a false release on Bradford’s behalf; and (3) Rovenger admitted his actions were unauthorized and unlawful. Bradford attached Rovenger’s handwritten confession to the motion. He also attached a copy of the check issued by Florida Philharmonic as part of the purported settlement.

At the hearing on the motion to set aside the settlement agreement, Florida Philharmonic emphasized that Bradford gave Rovenger authority to settle his case for $900,000. Thus, Florida Philharmonic argued that Rovenger acted with apparent authority when he negotiated a $280,000 settlement without Bradford’s permission. In the event that the trial court decided to set aside the settlement, Florida Philharmonic requested a set-off for the money it already paid. The court entered an order striking the dismissal of the underlying case without discussion. The court reserved ruling on the set-off issue. This appeal follows.

The standard of review of an order denying a Rule 1.540(b) motion for relief from judgment is abuse of discretion. Blanton v. Baltuskouis, 20 So.3d 881, 882 (Fla. 4th DCA 2009). On appeal, Florida Philharmonic argues that the trial court abused its discretion in setting aside the settlement agreement because Rule 1.540(b)(3) permits relief from judgment based on fraud by an adverse party and here, the fraud was committed by Bradford’s attorney. We find no merit in this argument, as Rule 1.540(b) also permits the court to grant relief from judgment for fraud on the court. See Fla. R. Civ. P. 1.540(b) (“This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.”). In fact, we have affirmed an order setting aside a settlement agreement pursuant to Rule 1.540(b) based on conduct similar to Rovenger’s. See Huffman v. Delacruz, 719 So.2d 385, 385-86 (Fla. 4th DCA 1998). There, we emphasized that extrinsic fraud on the court includes “fraudulent representation of a party without his consent and connivance in his defeat.” Id. at 386 (quoting Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514, 515 (1946)).

Other courts have addressed the issue of attorney fraud and similarly vacated the resulting judgment. See, e.g., NC-DSH, Inc. v. Gamer, 125 Nev. 647, 218 P.3d 853, 859-61 (2009) (citing several cases, including Huffman, where courts “have found fraud on the court egregious enough to justify vacating the judgment and allowing the claims to proceed”). In NC-DSH, the plaintiffs brought a malpractice action against a hospital. Id. at 855. Without their knowledge or consent, the plaintiffs’ attorney “settled their case for $160,000, forged the necessary settlement papers, and disappeared with the money.” Id. The trial court vacated the stipulated judgment but provided that the hospital was entitled to a $160,000 credit toward any eventual recovery. Id. The Supreme Court of Nevada held that the trial court was “well within its discretionary authority to decide” that “the court, equally with the [plaintiffs], the Hospital, and the Hospital’s lawyer, was defrauded by [the plaintiffs’ attorney]” and that the fraud “justified vacating the stipulated judgment.” Id. at 861 (emphasis added). In so holding, the court emphasized that the trial judge “entered specific and adequate find ings of fact and conclusions of law.” Id. (emphasis added).

While Rovenger’s actions are analogous to the fraudulent behavior of the attorneys in Huffman and NC-DSH, this case is distinguishable because here, it is undisputed that Bradford gave Rovenger authority to settle the case — albeit for $900,000 not $280,000. It is not clear whether the trial court considered this fact in reaching its decision to strike the settlement because the order in this case does not include specific findings like the one in NC-DSH. Here, the order merely provides that “[t]he Dismissal is hereby struck and the case is returned to the active docket.” We hold that this was error and remand the case for the trial court to make specific findings as to which party bears the burden of Rovenger’s fraud.

When conducting its analysis, the trial court shall consider the following: (1) whether the plaintiff demonstrated due diligence in hiring the attorney; (2) whether the attorney had actual or apparent authority to settle the case; (3) whether the opposing party knew or should have known that the proposed settlement was suspect; (4) whether the plaintiff demonstrated due diligence upon discovering the fraud; and (5) whether the plaintiff ratified the fraud. If, after considering these factors (or any others the trial court finds relevant), the court upholds its decision to set aside the settlement, the trial court should still consider awarding a set-off to Florida Philharmonic in the event that Bradford ultimately prevails.

Reversed and Remanded.

WARNER and KLINGENSMITH, JJ, concur.

      . In his handwritten confession, Rovenger admitted that Bradford would not have agreed to the settlement he negotiated with Florida Philharmonic. During his deposition, Roven-ger added that he forged Bradford’s signature on the settlement check and used a computer to copy and paste Bradford’s signature onto the settlement document.


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    Walter VEGA, Appellant, v. FRS ENVIRONMENTAL REMEDIATORS, and Accord Human Resources/Risk Enterprised Management, Appellee.
    No. 1D13-5947.
    District Court of Appeal of Florida, First District.
    July 28, 2014.
    Rehearing Denied Sept. 5, 2014.
    Walter Vega, pro se, for Appellant.
    John G. Brady of the Brady Law Group, PLC, Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that concludes Claimant is disqualified, under section 440.09(4), Florida Statutes (1998), from all benefits otherwise available to him under the Florida Workers’ Compensation Law. Upon receipt of Claimant’s brief, this court entered an order advising the parties that this appeal is being considered for summary affirmance under Florida Rule of Appellate Procedure 9.315(a). Accordingly, the parties were directed to refrain from further briefing.

Because the record evidence supports the JCC’s finding that Claimant was convicted and adjudicated guilty of workers’ compensation fraud under section 440.105, Florida Statutes, in a court of competent jurisdiction, we find no error in the JCC’s conclusion that Claimant has, therefore, forfeited his entitlement to workers’ compensation benefits as directed by section 440.09(4). Accordingly, we affirm the appealed order, which denies all benefits on this basis. We further conclude that Claimant fails to present a preliminary basis for this court to reverse the order on appeal; thus, under rule 9.315(a) we AFFIRM the order on appeal, on a summary basis.

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


text:
    T.C. CRUM ROOFING AND GENERAL CONTRACTORS, LLC, Appellant, v. Manuel OLVERA-CASAS, Appellee.
    No. 4D12-3052.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Rehearing Denied Sept. 10, 2014.
    Charles M-P George of the Law Offices of Charles M-P George, Coral Gables, and Christopher W. Wadsworth, Daniel L. Margrey and Mark C. Vazzana of Wads-worth Huott, LLP, Miami, for appellant.
    Mariano Garcia of Searcy Denney Scaro-la Barnhart & Shipley, P.A., West Palm Beach, and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellee.
   PER CURIAM.

The defendant, T.C. Crum Roofing and General Contractors, LLC, appeals a final judgment awarding damages to the plaintiff, Manuel Olvera-Casas. Finding no reversible error, we affirm as to the issues raised in the main appeal.

On cross-appeal, the plaintiff argues, and the defendant concedes, that the trial court erred in denying the plaintiffs request for post-verdict, pre-judgment interest where the plaintiff requested a final judgment on the day of the verdict and the delay in obtaining the final judgment was not attributable to the plaintiff. We accept the defendant’s confession of error. We therefore reverse on the cross-appeal and remand with instructions for the trial court to award post-verdict, pre-judgment interest running from the date of the verdict. See Hyundai Motor Co. v. Ferayorni, 876 So.2d 680, 682 (Fla. 4th DCA 2004).

Affirmed on main appeal; Reversed and, Remanded on cross-appeal.

DAMOORGIAN, C.J., FORST, J., and HANZMAN, MICHAEL, Associate Judge, concur.


text:
    Daniel ARCILA, Appellant, v. BAC HOME LOANS SERVICING, L.P., Appellee.
    No. 2D13-2366.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2014.
    George J.F. Werner, Ybor City, for Appellant.
    Geoffrey A. Pette of Elizabeth R. Well-born, P.A., Deerfield Beach, for Appellee.
   MORRIS, Judge.

Daniel Arcila appeals a nonfinal order granting a motion filed by BAC Home Loans Servicing, L.P. (BAC), to vacate an order dismissing its foreclosure complaint for lack of prosecution. We reverse and remand for further proceedings.

BAC filed a foreclosure action against Arcila in April 2010. No record activity occurred between March 2011 and January 2012. In January 2012, the trial court entered a notice of lack of prosecution. On April 9, 2012, an order was entered dismissing the action for lack of prosecution. On April 2, 2013, BAC filed its motion to vacate pursuant to Florida Rule of Civil Procedure 1.540(b), which provides in part that a motion for relief from judgment on the basis of “(1) mistake, inadvertence, surprise, or excusable neglect” may be filed within one year of the judgment. BAC claimed that its counsel was unaware of the notice of lack of prosecution “through inadvertent mishandling.” BAC alleged that “[ajlmost immediately after ... counsel learned of the dismissal [o]r-der,” BAC prepared and filed the motion to vacate. On April 18, 2013, the trial court granted BAC’s motion to vacate and reinstated the case.

On appeal, Arcila argues that the trial court erred in granting BAC’s motion without first holding an evidentiary hearing. A trial court errs in granting a motion for relief from judgment without affording the opposing party an opportunity to be heard at an evidentiary hearing. See, e.g., Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011); see also Monsour v. Bruce Balk, A.I.A, P.A., 705 So.2d 968, 969 (Fla. 2d DCA 1998) (holding that trial court erred in denying motion for relief from judgment alleging defective service without “conducting an evidentiary hearing to determine whether or not the facts in the affidavits could be proven”); Schuman v. Int’l Consumer Corp., 50 So.3d 75, 77 (Fla. 4th DCA 2010) (“[Tjhe motion for relief from judgment stated a claim of ‘colorable entitlement to relief that would require the trial court to conduct an evidentiary hearing before dismissing the motion.”).

In Avi-Isaac, a bank sought to set aside a foreclosure sale on the same basis as in this case-mistake, inadvertence, surprise, or excusable neglect under rule 1.540(b)(1). The bank alleged that docketing and filing errors had mistakenly resulted in the foreclosure sale taking place. 59 So.3d at 175-76. After a nonevidentiary hearing, the trial court granted the bank’s motion to set aside the sale, despite the purchaser’s request for an evidentiary hearing. Id. at 176. On appeal, this court reversed, concluding that the trial court should have held an evidentiary hearing and provided the purchaser with an opportunity to “cross-examine the representative from the law firm” regarding the docketing and filing errors. Id. at 177.

This court reached a similar holding in Shlishey the Best, Inc. v. CitiFinancial Equity Services, Inc., 14 So.3d 1271 (Fla. 2d DCA 2009), wherein the trial court granted a bank’s motion to vacate foreclosure sale without providing the purchaser an opportunity to be heard. This court held that the trial court erred because the purchaser “had neither notice nor an opportunity to be heard,” id. at 1275, and that “ ‘[d]ue process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard,’ ” id. at 1274 (quoting E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995)).

BAC alleged in its timely, sworn motion to vacate that counsel was unaware of the notice of lack of prosecution “through inadvertent mishandling” at his firm and that counsel prepared the motion to vacate “[ajlmost immediately after ... counsel learned of the dismissal [ojrder.” Even though this was sufficient to state a color-able entitlement to relief on the basis of mistake, inadvertence, or neglect under rule 1.540(b), the trial court erred in granting BAC’s motion without first giving Areila an opportunity to be heard on the matter. See McCrea v. Deutsche Bank Nat’l Trust Co., 993 So.2d 1057, 1058-59 (Fla. 2d DCA 2008) (holding that by failing to hold hearing before trial court vacated order of dismissal based on ex parte communications with one party, trial court precluded other party from addressing whether the order should be properly vacated as the product of mistake under rule 1.540(b); reversing for a hearing on the matter). Accordingly, we reverse the order granting BAC’s motion to vacate and remand for further proceedings.

Reversed and remanded.

VILLANTI and BLACK, JJ., Concur.

      . BAC’s allegations amount to secretarial error or oversight as the reason BAC’s counsel did not appear at the hearing or respond to the notice of lack of prosecution. See Wilson v. Woodward, 602 So.2d 547, 548-49 (Fla. 2d DCA 1992) (holding that trial court erred in denying motion for relief from summary judgment filed pursuant to rule 1.540(b) where counsel alleged, with supporting affidavits, that he had missed the summary judgment hearing due to secretarial mistake and that counsel’s failure "to appear at the hearing [was] because of a mistake and not because of any wilful and flagrant act”); J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68-69 (Fla. 4th DCA 2008) (holding that counsel's failure to appear for hearing due to secretarial error was excusable neglect under rule 1.540(b) and recognizing that rule 1.540(b) should be liberally construed because Florida policy "states a preference for deciding a case on its merits rather than on a technicality”); Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985) ("[Wjhere inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.”); cf. Spencer v. BMC Mortg. Corp., 97 So.3d 257, 261 (Fla. 3d DCA 2012) (holding that bank’s complaint should have been dismissed for failure to prosecute because bank’s new counsel was aware of the notice of lack of prosecution and had time to conduct record activity to avoid dismissal for lack of prosecution).


text:
    Bobby AKIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4469.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Bobby Aiken, Malone, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005).

TAYLOR, GERBER and CONNER, JJ., concur.


text:
    Alloy LEWIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1975.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Bernard F. Daley of The Daley Law Firm, Tallahassee, for appellant.

      No appearance required for appellee.
   PER CURIAM.

We affirm the trial court order summarily denying appellant’s third motion for post-conviction relief and/or habeas corpus petition. This motion was unsworn, untimely, successive and patently without merit. Appellant filed two prior motions for post-conviction relief, the summary denial of which this court affirmed per curiam in Lewin v. State, 881 So.2d 1124 (Fla. 4th DCA 2004), and Lewin v. State, 901 So.2d 138 (Fla. 4th DCA 2005).

Accordingly, we caution appellant that the filing of any future successive and frivolous pro se motions, petitions or appeals attacking his convictions and sentences in this case may result in sanctions, such as a ban on future pro se filings in this court and/or referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So,2d 47 (Fla.1999). See also § 944.279(1), Fla. Stat.; Fla. R. Crim. P. 3.850(n).

Affimied.

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


text:
    Adam Benjamin HUNT, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2075.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Adam Benjamin Hunt, Carrabelle, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of Adam Benjamin Hunt’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) because he has not demonstrated entitlement to relief under that rule. His challenges suggest possible claims of ineffective assistance of defense counsel and involuntary plea. Our affirmance is without prejudice to his right to file a motion for post-conviction relief in compliance with the verification and content requirements of Florida Rule of Criminal Procedure 3.850, within thirty days of the date of this court’s mandate. A rule 3.850 motion filed within that deadline will be considered timely filed. Orosco v. State, 801 So.2d 303 (Fla. 2d DCA 2001).

Affirmed.

MAY, FORST and KLINGENMITH, JJ., concur.


text:
    Alvin JEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2205.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.

      Alvin Jean, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of Alvin Jean’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We write to comment solely on appellant’s claim that his fifteen-year sentences are illegal having been imposed following revocation of his youthful offender probationary terms. Through several recent opinions, this court has rejected that challenge and explained its reasoning when concluding that comparable terms are legal. See Mosley v. State, 134 So.3d 1124 (Fla. 4th DCA 2014); Lachenauer v. State, 117 So.3d 880 (Fla. 4th DCA 2013); Eustache v. State, 83 So.3d 784 (Fla. 4th DCA 2011).

Affirmed.

CIKLIN, LEVINE and KLINGENSMITH, JJ„ concur.


text:
    Evelyn CHIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3707.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Evelyn Chin, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the August 12, 2013 summary dismissal of appellant Evelyn Chin’s motion for postconviction relief without prejudice for appellant to file an amended motion which comports with the oath requirements of rules 3.850(c) & 3.987 within thirty days of this court’s mandate. See Fla. R. Crim. P. 3.850(c) & 3.987; Cornelius v. State, 984 So.2d 1268, 1269 (Fla. 4th DCA 2008); Troya v. State, 817 So.2d 932 (Fla. 4th DCA 2002).

GROSS, CONNER and FORST, JJ., concur.


text:
    Daniel TULLOCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1733.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.

      Daniel Tulloch, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s amended claim seven following our remand in Tulloch v. State, 86 So.3d 1155 (Fla. 4th DCA 2012). The deposition transcripts conclusively refute appellant’s claim. Appellant has attempted to raise additional claims which exceed the scope of our remand. These claims are procedurally barred and were properly denied.

Affirmed.

DAMOORGIAN, CONNER and KLINGENSMITH, JJ., concur.