text:
    E.R., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D14-885.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Lori D. Shelby, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

E.R., the mother, appeals an order adjudicating her two minor children dependent. Because the trial court’s ruling “that the mother placed both the minor children at imminent risk of neglect and harm” is not supported by competent, substantial evidence, we reverse.

The Department of Children and Families (“DCF”) initiated an abuse investigation after the paternal grandparents of the minor children, E.B. and A.R., reported the father and E.B. missing. After the investigation, DCF filed a petition for dependency in June of 2013 alleging that the mother neglected the minor children and placed them “at substantial risk of imminent threat of harm,” “imminent risk of abuse,” “and/or imminent risk of neglect.”

Testimony at an adjudicatory hearing held in September and November of 2013 revealed that the father had obtained sole custody of E.B. in June of 2012, approximately one year prior to the dependency petition. He was granted sole custody based on a sworn petition and affidavit filed in April of 2012 in front of another judge in family court alleging that the mother showed “an inability to properly care for [E.B.]” in that she would not or could not properly feed, interact, calm, or stimulate the child; and when “not ignoring [E.B.], [the mother] commits inappropriate physical acts such as poking her unnecessarily causing trauma.” The family court judge entered an order providing the mother have “no time sharing” with E.B.

The grandmother testified further regarding the mother’s treatment of E.B., which she witnessed on a Nanny Cam video approximately eighteen months prior to the dependency hearing. On the video, the mother grabbed the back of E.B.’s shirt pulling her backward, making her hit her head; the mother watched TV and played on her cell phone while the child crawled away; and lastly, the mother repeatedly pulled E.B.’s hair until the child started crying. After these events, the father obtained sole custody of E.B. and the two lived with the paternal grandparents.

In June 2013, approximately one year after obtaining sole custody of E.B., the father did not show up to work and did not bring E.B. to daycare. The grandparents’ attempts to contact the father were unsuccessful, and they called police to report the two missing. The grandmother explained she was concerned because she “didn’t know what he was doing,” and she was afraid he was not taking Zoloft which was prescribed for a mood disorder that he suffered from.

DCF determined that the father and E.B. were with the mother and A.R. at a hotel in Sebring. The father explained they went there to “start a family of our own, without the conflict” that the mother previously experienced with the grandparents. He testified that he sees a psychiatrist regularly for his prescription medication and was taking it during the incident. Officers were sent to perform a wellness check. One of the officers testified that the motel room was “clean and orderly,” with food, formula, diapers, two beds, and a crib. He felt there was “no immediate danger to the children and [the parents] had money.” DCF informed the officer that the mother had outstanding warrants, and he arrested her and DCF took the children into custody.

The mother testified at the September 2013 adjudicatory hearing that she was homeless and unemployed. She claimed that she did not contact the father during the custody proceedings because she was “upset and mad.” She claimed that she and the father had “everything we needed” at the hotel, including food, diapers, and wipes. She testified that she was “in the means now of getting a job,” and if she had a job, she would “be able to take care of [the children].”

The assigned child protection investigator testified that she made a finding of “inadequate supervision” based on the father leaving E.B. in the mother’s care after obtaining sole custody due to his concerns about the mother’s inability to care for the child and the mother’s past abuse history. She also made a finding of “threatened harm” based on the father leaving the county with E.B. and having prior history of a mood disorder, not being on his medication, and not being seen by a psychologist to follow up with his mood disorder. The child advocate testified that during home visits, she had seen the mother interact more with A.R. than E.B., and that she provided the mother with referrals for voluntary services for parenting skills, counseling, and assistance programs.

In February of 2014, the trial court adjudicated the children dependent based upon a preponderance of the evidence “that the mother placed both the minor children at imminent risk of neglect and harm.” The court noted the mother’s alleged prior mistreatment of E.B., her “violation” of the “no time sharing” order, her failure to “contest the Order or take steps to rehabilitate herself,” and her “homeless and unemployed” status.

“[I]t is well settled that, in a dependency proceeding, the allegations contained in the dependency petition must be established by a preponderance of the evidence.” D.A. v. Dep’t of Children & Family Servs., 84 So.3d 1136,1138 (Fla. 3d DCA 2012).

A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. Competent substantial evidence is tantamount to legally sufficient evidence. While a trial court’s discretion in child welfare proceedings is very broad, reversal is required where the evidence is legally insufficient to sustain the findings of the trial court.

C.A. v. Dep’t of Children & Families, 958 So.2d 554, 557 (Fla. 4th DCA 2007) (citation omitted).

A court may enter an order adjudicating a child dependent if the child is at substantial risk of imminent harm or neglect “based on the conduct of one parent, both parents, or a legal custodian.” §§ 39.01(15)(f); 39.507(7)(a), Fla. Stat. (2013). “Harm” to a child’s health or welfare occurs when the child suffers “physical, mental, or emotional injury.” § 39.01(32)(a) Fla. Stat. (2013). “Neglect” occurs when “a child is deprived of ... necessary food, clothing, shelter, or medical treatment or ... is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(44), Fla. Stat. (2013). “‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur.’ ” J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 951 (Fla. 1st DCA 2004) (citation omitted). In imminent harm or neglect cases, “the parent’s harmful behavior must pose a present threat to the child based on current circumstances” and be “clearly and certainly predicted.” S.S. v. Dep’t of Children & Families, 81 So.3d 618, 621 (Fla. 1st DCA 2012) (citation omitted); E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 187 (Fla. 1st DCA 2001) (citation omitted).

The Trial Court’s Findings Applicable to Both E.B. and A.R.

Applicable to both children, the trial court noted the mother’s “history of instability and unemployment” and then-current “homeless and unemployed” status at the adjudicatory hearing. The mother’s homelessness and unemployment, standing alone, is insufficient to support a finding of a prospective harm or neglect because the mother had not previously rejected offered services. See § 39.01(44), Fla. Stat. (2013) (stating that if circumstances supporting a finding of neglect are “caused primarily by financial inability,” then neglect will not be found “unless actual services for relief have been offered to and rejected by such person”); Brown v. Feaver, 726 So.2d 322, 324 (Fla. 3d DCA 1999) (“Homelessness, derived solely from a custodian’s financial inability, does not constitute abuse, neglect, or abandonment unless the Department offers services to the homeless custodian and those services are rejected.”). The mother’s residential instability and unemployment do not provide sufficient bases for a finding of imminent risk of neglect or harm.

Additionally, there was no testimony or evidence presented that either child was ever “deprived of ... necessary food, clothing, shelter, or medical treatment” as a result of the mother’s homelessness and unemployment to constitute imminent risk of neglect. § 39.01(44), Fla. Stat. (2013). Rather, the officers who performed the wellness check testified that the children appeared “clean,” “orderly,” and “healthy,” with food, formula, diapers, two beds, and a crib and nothing to cause concern for the children’s welfare. The grandmother testified that since the children were sheltered, the mother has fed and bathed them during her supervised visits with the children. There is no testimony to show that the mother placed the children at risk to be “deprived of ... necessary food, clothing, shelter, or medical treatment.”

The Trial Court’s Findings as to E.B.

First, the court placed “great weight” on the family court order which granted the father sole custody of E.B. and ordered that the mother have “no time-sharing” with E.B. The court also weighed the mother’s failure to “contest the Order or take steps to rehabilitate herself” after its entry. The father obtained sole custody of E.B. nearly one year prior to the dependency proceeding based on his petition for sole custody filed in family court and sworn allegations that the mother was “incapable of properly caring for” E.B., and was “abusive and neglectful” toward her. The allegations were based on Nanny Cam footage he viewed with the grandmother approximately eighteen months prior to the dependency adjudicatory hearing. There was no testimony by either the father or the grandmother that the mother had engaged in “neglectful” or “abusive” behavior since the Nanny Cam incident that occurred nearly eighteen months before the hearing. The evidence presented is insufficient to support a finding that the mother posed an “imminent risk of harm or neglect” to E.B. because there was not “a present threat to the child based on current circumstances.” S.S., 81 So.3d at 621.

The case of B.C. v. Department of Children & Families, 846 So.2d 1273 (Fla. 4th DCA 2003), is instructive. There, DCF filed a dependency petition in July 2002 against two parents based on “two instances of domestic violence in the presence of the couple’s child” that occurred in August and December of 2000, following the couple’s separation. Id. at 1274. Because the instances of domestic violence occurred approximately eighteen months prior to the dependency petition, this court found the instances were “simply too remote in time to support an adjudication of dependency.” Id. at 1275. See also M.F. v. Dep’t of Children & Families, 975 So.2d 622, 625-26 (Fla. 4th DCA 2008) (finding that DCF “failed to establish that the father’s drug use placed the children at risk of imminent neglect” because the father’s prior arrest for drug possession and failed drug test did not establish that the father recently “used drugs in the presence of the children or that his drug use adversely affected the children or had an adverse effect on his ability to parent”).

Here, the allegations concerning the mother’s mistreatment of E.B. are likewise “too remote in time to support an adjudication of dependency.” B.C., 846 So.2d at 1275. The testimony concerned actions by the mother that occurred approximately eighteen months prior to the dependency proceeding — the same amount of time as in B.C. In conclusion, we find that none of the findings by the trial court present competent, substantial evidence to support its conclusion that the mother subjected E.B. to “imminent risk of neglect and harm.”

A.R.

Any testimony regarding the mother’s prior treatment toward E.B. is insufficient evidence to consider when analyzing the bases for a finding of dependency for A.R. See M.N. v. Dep’t of Children & Families, 826 So.2d 445, 448-49 (Fla. 5th DCA 2002) (finding that the father’s prior abuse of the mother’s other child who was not his was insufficient to support a finding of prospective abuse or neglect toward the parents’ minor child). Thus, the “great weight” the trial court placed on the allegations in the father’s petition for sole custody of E.B. and the consequent “no time sharing” order cannot support a finding of harm or neglect as to A.R.

The only finding specifically related to A.R. made by the trial court is that at the time the mother left with A.R. to go to Sebring with the father and E.B., A.R. was believed to be the child of another man. Once in Sebring, “[t]he mother was arrested [on outstanding warrants] and taken into custody ... [leaving A.R.] with no known parent immediately available to care for the minor child” who was only two months old at the time. The police who arrested the mother notified DCF who then took A.R. into custody. This finding does not present competent, substantial evidence that the mother subjected A.R. to “imminent risk of neglect and harm.”

In sum, “reversal is required [because] the evidence is legally insufficient to sustain the findings of the trial court.” C.A., 958 So.2d at 557 (citation omitted).

Reversed and remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.

      . The trial court additionally found that the mother was "in violation” of the "no time sharing” order entered by the family court judge in June of 2012. Since the order was not a restraining or "no contact” order prohibiting the mother from being in contact with E.B., the mother could not violate the family court order simply by spending time with E.B. in the presence of the father. In any event, there was no competent, substantial evidence of imminent "neglect” or "harm” as a result of the mother spending time with E.B. in the presence of the father.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    Richard L. MENENDEZ, Appellant, v. CITY OF HIALEAH, Florida, Appellee.
    No. 3D13-1069.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.

      Richard A. Sicking, Coral Gables, for appellant.
    William M. Grodnick, Hialeah; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and William R. Radford, Miami, for appel-lee.
    Before SUAREZ, EMAS and SCALES, JJ.
   SCALES, J.

Richard L. Menendez (Menendez), Plaintiff below, appeals from an order granting final summary judgment in favor of the City of Hialeah, Florida (the City) for lack of subject matter jurisdiction based on Menendez’s failure to exhaust administrative remedies. We affirm.

I. The City of Hialeah’s Retirement System

The City has, by ordinance, created a Retirement System. Hialeah, Fla., Code of ORDINANCES ch. 70 (2002) (Hialeah’s Code). To administer its Retirement System, section 70-131 establishes an independent board of trustees (Retirement Board of Trustees or Retirement Board or the Board) “in whom is vested the general administration, management and responsibility for the proper operation of the retirement system.” § 70-181, Hialeah Code.

If an employee of the City, including a firefighter, becomes unable to work because of a job-related disability, he or she may apply for permanent and total disability benefits with the Retirement Board of Trustees. § 70-248, Hialeah Code. The member’s medical condition is then evaluated by the medical committee, which reports its written conclusions to the Retirement Board. §§ 70-138, -248. If the medical committee determines that the member is physically or mentally totally and permanently incapacitated from further performance of duty in the member’s classified position “and the Board of Trustees concurs[,]” the member is medically retired. § 70-248.

Hialeah Code further provides that a member retired due to total and permanent disability “shall be subject to a review of the member’s condition by the medical committee at the request of the board of trustees as often as the board shall deem it advisable 70-248.

II. Factual Background

The City hired Menendez as a firefighter on June 3, 1991. On November 28, 1995, Menendez applied for total and permanent disability retirement with Hialeah’s Retirement System. On December 12, 1995, Menendez’s application for disability retirement was approved by the Retirement Board of Trustees and he began receiving job-related disability payments.

A few years later, pursuant to section 70-248 of Hialeah’s Code, the Retirement Board decided to review Menendez’s disability status. The medical committee reexamined Menendez, and, in 2002, concluded that Menendez was no longer totally and permanently disabled. The medical committee found that Menendez was capable of performing administrative or light duties. Menendez did not challenge these findings before the Retirement Board.

On January 6, 2003, the City wrote Menendez, informing him that it could accommodate Menendez within his medical limitations and/or restrictions as a Fire Dispatcher in the Fire Department. The City instructed Menendez to report to work on March 3, 2003. Menendez did not report to work on March 3, 2003.

Upon being recalled by the City, and having failed to report for work as scheduled, Menendez was terminated for job abandonment. On March 28, 2003, the City informed Menendez that it would be discontinuing its portion of his job-related disability benefits. Rather than seek administrative review by the Retirement Board of Trustees, Menendez filed a complaint seeking declaratory relief with respect to the rights of the parties and the legality of the City’s discontinuance of its portion of his disability payments. The trial court found that Menendez’s failure to exhaust his administrative remedies before the Retirement Board deprived it of subject matter jurisdiction to hear Menendez’s case.

III. Analysis

The City has, by its code of ordinances, delegated plenary powers to the Retirement Board of Trustees for the Retirement System’s administration. § 70-131. The Retirement Board’s determinations regarding entitlement to disability retirement under section 70-248 are among the principal functions of the Board. § 70-248. The Retirement Board has sole jurisdiction to confirm or reject the medical committee’s conclusions regarding the total and permanent disability status of an employee. Id.

Thus, the trial court correctly concluded that it lacked subject matter jurisdiction over the action since, before filing his lawsuit in the trial court, Menendez failed to seek administrative review by the Retirement Board of the following (i) the medical committee’s determination that Menendez was no longer totally and permanently disabled, and (ii) the City’s subsequent decision to cease paying Menendez its portion of his disability payments. See De Carlo v. Town of W. Miami, 49 So.2d 596, 596-97 (Fla.1950) (holding that a party is required to exhaust administrative remedies prior to turning to the circuit court for relief); see also City of Coral Gables v. Fortun, 785 So.2d 741, 742 (Fla. 3d DCA 2001) (“Administrative remedies must be exhausted, subject to certain exceptions not present in this case, before seeking alternative judicial remedies.”).

Affirmed without prejudice to Menendez seeking review with the Retirement Board of Trustees.

      . Menendez’s annual job-related disability benefits had two pay components. The City itself paid a portion of Menendez's disability benefits, and the remaining payment came from Hialeah’s Retirement System.

      . The City did not seek discontinuance of the portion of Menendez's benefits paid by Hialeah's Retirement System. Due to an administrative error, the City’s portion of Menendez’s disability benefits were not actually terminated until March 2005.


author: EMAS, J.

text:
    The FALLSTAFF GROUP, INC., etc., et al., Appellants, v. MPA BRICKELL KEY, LLC, etc., Appellee.
    No. 3D13-2183.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.

      Irv J. Lamel, Miami; Hicks, Porter, Ebenfeld & Stein and Dinah Stein, Miami, and Shannon Debus-Horn, for appellants.
    Coffey Burlington and Daniel F. Blon-sky, Miami, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

The Fallstaff Group, Inc. (“Fallstaff’) and Courvoisier Courts, LLC (“Courvoisier”) appeal a final judgment, an amended final judgment, and two orders entering partial summary judgment in favor of MPA Brickell Key, LLC (“MPA”). For the reasons that follow, we affirm in part and reverse in part.

BACKGROUND

In November 2004, MPA entered into an agreement to sell real property on Brickell Key to Fallstaff. A portion of the real property was subject to a Shared Facilities Agreement (“SFA”) with a neighboring property owner, FBEC-Brickell Key Cen-tre, L.P. (“FBEC”). The SFA addressed, in part, apportionment of ad valorem taxes for properties separately owned by MPA and FBEC, but billed by the property appraiser under a single folio number. Pursuant to the SFA, MPA paid the real property taxes billed under the single folio number — Folio No. 11 — and thereafter, MPA would invoice FBEC for its 1% share.

At the time of the proposed sale by MPA to Fallstaff, certain disputes between Fallstaff and FBEC had arisen, which required a postponement of the closing date. Accordingly, MPA and Fallstaff entered into a separate letter agreement, which postponed the closing and further provided, in relevant part:

2. Reference is made to certain disputes between [MPA] and Jones Lang LaSalle (“JLL”) concerning a certain Shared Facilities Agreement (“the SFA”). [MPA] and Fallstaff have agreed that [MPA] will, at Closing under the Agreement, pay Fallstaff $110,000 (including within the $110,000, $10,000 for gate removal) in full payment of all of [MPA’s] obligations with respect to these disputes (the “SFA Dispute”) and all amounts owed by [MPA] under the SFA through the date of the Closing. In recognition of this fact, Fallstaff hereby agrees to indemnify and hold harmless [MPA] and all of its equity holders, officer, employees, agents and representatives with respect to any liability under or in connection with the SFA (including any liability with respect to legal fees or court costs).

On the day of closing, Fallstaff assigned the sales agreement to an affiliate, Cour-voisier, and agreed that Fallstaff and Courvoisier would “be jointly and severally liable under and pursuant to the Agreement.” The assignment further provided that Courvoisier “shall perform all obligations, duties and liabilities of [Fallstaff] under the Agreement.” At closing, Cour-voisier received the $110,000 credit as set forth in the letter agreement, and the letter agreement was included in the closing binder.

Unbeknownst to the parties, the tax appraiser had created a new tax folio in 2002 (“Folio No. 12”), splitting FBEC’s and MPA’s property from one another, but the tax bills were never sent to MPA or FBEC. Thus, although its property was being taxed separately from 2002 on, FBEC continued to pay its portion of the ad valorem taxes on Folio No. 11 up to the date of the Fallstaff closing in 2004.

A few months after the closing, FBEC discovered the folio split when tax certificates were issued against its property and, thereafter, demanded from MPA “$43,-215.07 (the amount paid by [FBEC] to MPA), plus $7,593.56 (the amount of costs penalties and interest paid).” In response, MPA, through counsel, notified FBEC that it had no knowledge of the tax folio split, that the real property in question was sold, and that all issues should be directed to the new owner, Fallstaff. When Fallstaff also refused to reimburse FBEC, FBEC filed suit against MPA.

In response, MPA filed a third-party complaint against Fallstaff, seeking indemnification as provided under the terms of the letter agreement. The third party complaint was dismissed without prejudice, pending the resolution of FBEC’s suit against MPA. After discovery, FBEC acknowledged that MPA did not have knowledge of the tax folio split when it invoiced FBEC for the 2002-2004 taxes, and MPA and FBEC settled their lawsuit for $17,000.

Following that settlement, MPA filed an amended complaint against Fallstaff and Courvoisier, asserting a claim for contractual indemnification, seeking the $17,000 MPA paid to FBEC, plus attorney’s fees and costs incurred by MPA in that action (Count I). In the alternative, MPA asserted a claim against Courvoisier for unjust enrichment based on the $110,000 credit Courvoisier received at closing (Count II).

Fallstaff and Courvoisier moved for summary judgment as to the claim for contractual indemnification. At the hearing, the trial court agreed with Fallstaffs and Courvoisier’s assertion that, although MPA’s initial conduct in billing FBEC for the 2002-2004 property taxes was an innocent mistake, once MPA confirmed the tax folio split, MPA should have returned the wrongfully collected money to FBEC. Instead, MPA forced FBEC to pursue an action against MPA to recoup the wrongfully collected money, and as a result of this wrongful conduct, MPA was not entitled to indemnity. As to Courvoisier, the trial court further ruled that Courvoisier did not agree to indemnify MPA. Based on these rulings, the trial court granted summary judgment in favor of Fallstaff and Courvoisier as to MPA’s claim for contractual indemnification.

Courvoisier then moved for summary-judgment as to MPA’s alternative claim for unjust enrichment. At the hearing, the trial court ruled that Courvoisier was not unjustly enriched, and therefore, granted summary judgment in favor of Courvoisier. The trial court later entered final judgment in favor of Fallstaff and Courvoisier, and MPA appealed.

On appeal, this court held that the trial court erred in granting summary judgment in favor of Fallstaff and Courvoisier. MPA Brickell Key, LLC v. Fallstaff Group, Inc., 92 So.3d 879 (Fla. 3d DCA 2012). Specifically, we held that (1) the indemnification provision in the letter agreement (including the provision, to indemnify MPA) was binding on Courvoisier; and (2) that MPA did not act wrongfully in failing to tender the amounts set forth in FBEC’s demand letter or in defending the action because the amount demanded was more than the amount FBEC paid MBA and because MPA believed it was no longer responsible for “resolving any disputes, past or present, under the Shared Facilities Agreement.” Accordingly, this court reversed the final judgment and remanded for further proceedings, “including a determination of whether the claim FBEC and MPA settled was covered by the indemnification provision in the letter agreement.” Id. at 882.

On remand, MPA moved for partial summary judgment on liability, asserting the settled claim was covered by the indemnification provision in the letter agreement, and therefore, it was entitled to the $17,000 it paid to settle the claims with FBEC, plus interest, as well as attorney’s fees and costs for its defense of those claims for four years, and the attorney’s fees and costs for its prosecution of the indemnity claim against Fallstaff and Courvoisier, at both the trial court and the appellate court levels.

After a hearing on March 11, 2013, the court granted MPA’s motion for partial summary judgment on liability, finding Fallstaff and Courvoisier had breached the contract and were jointly and severally liable for the $17,000 settlement payment. It reserved ruling on other damages. On March 22, it entered another order granting MPA’s revised motion for partial summary judgment on liability, finding MPA was entitled to reasonable attorney’s fees and costs expended in the underlying FBEC litigation, in the instant indemnification action, and in the prior appeal of the reversed summary judgment. The court entered a final judgment on July 22, 2013, awarding MPA a total of $225,860.11, for which Fallstaff and Courvoisier were held jointly and severally liable. On August 14, 2013, the court entered an amended final judgment, to correct arithmetical errors and update interest calculations, awarding MPA $243,210.73. Fallstaff and Courvoi-sier appealed, asserting the trial court erred in finding MPA was entitled to indemnification and in awarding attorney’s fees to MPA.

ANALYSIS

We review de novo an order granting summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Further, although we generally review a court’s ruling on entitlement to attorney’s fees for an abuse of discretion, Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513 (Fla. 3d DCA 2006), where that ruling relies upon the interpretation of contractual provisions, our standard of review is de novo. Kapila v. AT & T Wireless Servs., Inc., 973 So.2d 600 (Fla. 3d DCA 2008).

As for MPA’s entitlement to indemnification, we hold that the trial court correctly determined that MPA was entitled to indemnification from Fallstaff and Courvoisier under the terms of the letter agreement. The language of the letter agreement unambiguously provides for indemnification for “any liability under or in connection with the SFA (including any liability with respect to legal fees or court costs).” Though it is undisputed that this particular dispute between MPA and FBEC did not arise until after the letter agreement was formed, it is nevertheless covered under the broad language (underlined above) employed by the indemnification clause at issue. Thus, MPA was properly awarded the $17,000 it paid to settle FBEC’s claims against it.

As to the issue of attorney’s fees, the letter agreement provides that Falls-taff (and Courvoisier) must indemnify MPA for “any liability under or in connection with the SFA (including any liability with respect to legal fees or court costs.” Fallstaff and Courvoisier assert that this language requires Fallstaff to indemnify MPA only in the event MPA became liable for a third party’s legal fees or court costs, not for MPA’s own legal fees and court costs. We do not read the language of the letter agreement so narrowly.

We begin with the general rule in Florida that “an indemnitee is entitled to recover, as part of his damages, reasonable attorney’s fees and reasonable and proper legal costs and expenses, which he is compelled to pay as a result of suits by or against him in reference to the matter against which he is indemnified.” Am. & Foreign Ins. Co. v. Avis Rent-A-Car Sys. Inc., 401 So.2d 855, 857 (Fla. 1st DCA 1981). See also, Fla. Patient’s Compensation Fund v. Miller, 436 So.2d 932 (Fla. 3d DCA 1983). Further, the unambiguous language of the letter agreement included indemnification for legal fees and court costs incurred by MPA in defending itself against the claims brought by FBEC “in connection with the SFA.”

As for MPA’s entitlement to attorney’s fees and costs in the indemnification action (and the first appeal) against Fallstaff and Courvoisier, however, we find that the trial court erred in finding MPA was entitled to recover those fees and costs. Although “attorney’s fees incurred in the defense of a claim indemnified against are part of the damages allowable, ... attorney’s fees incurred in establishing the right to indemnification are not allowable.” Snider v. Continental Ins. Co., 519 So.2d 12, 13 (Fla. 5th DCA 1987) (citing United States Auto. Ass’n v. Hartford Ins. Co., 468 So.2d 545 (Fla. 5th DCA 1985)); Am. Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979); Am. & Foreign Ins. Co. v. Avis Rent-A-Car Sys., Inc., 401 So.2d 855 (Fla. 1st DCA 1981). Further, “[i]n the absence of a clear and unambiguous contractual provision or a statutory right,” MPA is not entitled to attorney’s fees incurred in the indemnification action. Sunshine Bottling Co. v. Tropicana Prods., Inc., 757 So.2d 1231 (Fla. 3d DCA 2000). Because the indemnification provision at issue does not by its terms provide for MPA’s recovery of fees and costs incurred in seeking indemnification, we hold that the trial court erred in awarding those fees. We therefore reverse that portion of the judgment, and affirm in all other respects.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

      . Jones Lang LaSalle was FBEC's agent.

      . This amount was comprised of the $17,000 settlement amount paid by MPA to FBEC, plus interest; attorney's fees and costs in the FBEC litigation, plus interest; attorney’s fees and costs in the prior appeal, plus interest; and attorney's fees and costs for the indemnification action, plus interest.


author: SALTER, J.

text:
    Barry YAMPOL, Appellant, v. TURNBERRY ISLE SOUTH CONDOMINIUM ASSOCIATION, INC., etc., Appellee.
    No. 3D13-2667.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Legón Fodiman and Todd R. Legón and Jeffrey A. Sudduth, Miami; Hicks, Porter, Ebenfeld & Stein and Erik P. Bartenha-gen and Emily Elisco, Miami, and Cindy L. Ebenfeld, Holly Wood, for appellant.
    Blaxberg, Grayson & Kukoff and I. Barry Blaxberg and Ian J. Kukoff, Miami, for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   SALTER, J.

Barry Yampol, a residential condominium owner, appeals an order directing him to “promptly and permanently remove all of his improvements from the parapet walls” of the roof of Turnberry Isle South. We reverse the order insofar as it purports to grant permanent relief not sought in the appellee/condominium association’s pleadings, and we affirm the order in all other respects.

Facts and Procedural History

The Turnberry Isle South Condominium Association, Inc. (plaintiff and counterde-fendant below), and Mr. Yampol have sporadically sparred over Mr. Yampol’s rights to build and maintain various improvements on the rooftop above his penthouse condominium unit at Turnberry Isle South in Aventura. The. precipitating cause of a similar dispute in 1994 and the most recent dispute (which commenced in 2010) was the Association’s need to replace the highrise building’s roof. The roofing contractors needed access to the structural walls and parapets in order to perform the work, seal the roof, paint the adjoining exterior walls, and move materials and debris between roof and ground. A 1994 lawsuit on these issues was settled the following year when the parties signed a written agreement addressing the timing, extent, and cost for the roof repairs and the dismantling and replacement of Mr. Yampol’s rooftop improvements.

In 2010, the Association and Mr. Yampol again disagreed on the roof repairs and various aspects of the removal and replacement of Mr. Yampol’s rooftop improvements. In its amended complaint, the Association sought declaratory and injunctive relief to the effect that Mr. Yampol was obligated to remove his improvements from his roof at his own expense, pay for replacing the roof in his “exclusive roof area,” and be responsible for any reinstal-lation of his improvements “if such reins-tallation is permissible” under the then-current building codes. The Association also sought enforcement of an unrecorded, pre-turnover “Right to Use Agreement” between the developer and the original owner of Mr. Yampol’s unit, the imposition of a lien against Mr. Yampol’s unit for failing to pay his portion of the roof repair costs, damages for Mr. Yampol’s alleged interference with the Association’s contractual duties to other unit owners in the building, and damages for his alleged breach of the 1995 settlement agreement.

Mr. Yampol raised numerous affirmative defenses and filed a counterclaim against the Association, alleging, among other things, that the Association “implemented a policy of selective and discriminatory enforcement against Yampol, which policies and actions have been orchestrated and implemented over the years by various Board members, several of whom have criminal convictions, in order to pursue their own interests and self-dealing, and in order to run roughshod over the 280 owners of the building, many of whom [are] widows and widowers (or who only live in the building certain times of the year) and who do not have the means or ability to change their improper behavior and unlawful conduct.” In essence, Mr. Yampol alleged that the Association breached the “Right to Use Agreement,” the Declaration of Condominium, and the 1995 settlement agreement. He alleged that it would cost between $500,000.00 and $700,000.00 to remove and replace his rooftop improvements, “assuming that it is even possible to restore [the improvements] to their present condition.”

After two days of evidentiary hearings, on September 20, 2013, the trial court entered two non-final orders on the claims for injunctive relief — one order submitted by Mr. Yampol, and one by the Association. The Association’s form of order required Mr. Yampol to remove his improvements from the rooftop to the extent necessary to permit the Association and its contractors to maintain and repair the roof and parapet walls. However, contrary to the narrow relief originally sought by the Association and contrary to its attorney’s representations during the hearings, the order also directed that Mr. Yampol would be required to permanently remove all of his improvements from the parapet walls bordering his designated rooftop area and his other improvements stacked in the Association-controlled roof area while the work was underway. The Association’s position in the pleadings and during the hearings was that, subject only to compliance with applicable building codes, Mr. Yampol would be permitted to restore his improvements to their original state following the roofing, painting and waterproofing work at the top of the building. Mr. Yampol’s appeal followed.

Analysis

The Association’s pleadings and its attorneys’ representations during the hearings, acknowledged as well by the trial court, indicated that Mr. Yampol would be permitted to replace his rooftop improvements, including “the wood surfaces mounted on his parapet walls, which were part of the original finish on his previously existing improvements,” at the conclusion of the Association’s repairs and painting of the roof and parapet walls. After all the evidence had been received, however, the trial court made its own determination that Mr. Yampol was required to remove all wood decking and planters from the parapet walls “in perpetuity.” The trial court expressed the view that the parapet walls were “common elements, or limited common elements that should not have fixtures attached to them.”

Following a review of the complete record, we conclude that Mr. Yampol’s due process argument is well taken. The permanent relief granted by the trial court, and the legal basis for it, were introduced after the evidence had been taken and without notice and an opportunity to be heard. Jade Winds Ass’n, Inc. v. Citibank, N.A., 63 So.3d 819, 822 (Fla. 3d DCA 2011).

Further, the trial court’s jurisdiction could only be exercised within the scope of the pleadings in the case. BAC Home Loans Servicing, Inc. v. De Headley, 130 So.3d 703, 705 (Fla. 3d DCA 2013); Mullne v. Sea-Tech Constr. Inc., 84 So.3d 1247, 1249 (Fla. 4th DCA 2012). The Association did not plead a claim for the permanent removal of Mr. Yampol’s improvements, it conceded that the improvements could be replaced (to the extent allowed by applicable building codes), and it may not now “mend its hold” to claim that it is entitled to the permanent removal of those improvements on the unpled grounds relied upon by the trial court. Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979).

The Association claims that it is “disingenuous” for Mr. Yampol to claim reliance on his ability to reinstall his decking and other rooftop improvements. The Association asserts that Mr. Yampol conceded that he would be unable to replace the improvements in his own cross-motion for an injunction (as part of his allegations regarding irreparable injury). But the concession that some of the “large trees and improvements” cannot be replaced under the current building code does not address which improvements cannot be reinstalled. The parties did not plead, try, or brief the legal basis relied upon by the trial court in barring the reinstallation of Mr. Yampol’s parapet wall improvements “in perpetuity,” a sua sponte conclusion that the parapet walls were “common elements, or limited common elements that should not have fixtures attached to them” — irrespective of any building code analysis.

Conclusion

We affirm the Association’s form of order entered September 20, 2013, with the exception of those findings and conclusions referring to the permanent removal of Mr. Yampol’s rooftop improvements installed in or abutting the parapet walls, which we reverse and remand. We express no opinion as to whether the applicable building codes, condominium documents, “Right of Use Agreement,” and course of dealings between and among the Association, Mr. Yampol, and the owners of other rooftop improvements at Turnberry Isle South, will allow the restoration of Mr. Yampol’s improvements installed in or abutting the parapet walls, in the event that the parties amend their pleadings on remand to assert such claims and are afforded an appropriate hearing on such issues.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . The parties sought a relinquishment of jurisdiction to clarify various conflicts between the two orders. A motions panel of this Court granted relinquishment for that limited purpose. The trial court entered an order in November 2013, also appealed by Mr. Yam-pol, Case No. 3D13-3195. Concluding that the later order exceeded the specifically stated matters identified in the relinquishment, see Fla. R. App. P. 9.600, this Court ultimately denied further relinquishment and directed that our review would be confined to the existing record and the two non-final orders in this case, No. 3D 13-2667. Yampol v. Turnberry Isle South Condo. Ass’n Inc., 137 So.3d 1124 (Fla. 3d DCA 2014). The trial court then clarified that the intended order was the longer version submitted by the Association.


author: FERNANDEZ, J.

text:
    Viervens SAINT-HILAIRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1730.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Viervens Saint-Hilaire appeals the denial of his motion to suppress, which was based on a search of the contents of his cell phone during a warrantless search incident to a lawful arrest. We reverse and conclude that the search of the cell phone was improper, and the inevitable discovery doctrine is inapplicable.

During a routine traffic stop of Saint-Hilaire’s vehicle, an officer discovered that Saint-Hilaire’s wallet contained about eight debit cards of the same color and bank name. The officer arrested Saint-Hilaire because the coding on one card did not match the name on the front of the card. A pat-down incident to arrest followed, during which an officer searched the contents of Saint-Hilaire’s cell phone and discovered twenty-four or twenty-five names and social security numbers.

The State subsequently charged Saint-Hilaire with nine counts of possession of personal identification information with intent to defraud. Saint-Hilaire moved to suppress the information found on his cell phone on the ground that it was discovered during a warrantless, illegal search. The trial court held that the search of Saint-Hilaire’s cell phone was valid as a search incident to a lawful arrest. The trial court denied the motion to suppress, following the First District Court of Appeal’s decision in Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011), quashed, 113 So.3d 724 (Fla.2013).

Motions to suppress are to be reviewed by an appellate court using a mixed standard of review. See Nelson v. State, 850 So.2d 514, 521 (Fla.2003). Appellate courts accord a presumption of correctness to the trial court’s determination of historical facts, while independently reviewing mixed questions of law and fact that determine constitutional issues present in the motion to suppress. Id.

We conclude that the search of Saint-Hilaire’s cell phone was unauthorized. In Smallwood, upon which the trial court correctly relied, the Florida Supreme Court held that a warrantless search of a cell phone incident to a lawful arrest exceeds the boundaries of a proper search of a person incident to a lawful arrest in the absence of a reasonable belief that the cell phone contains evidence of a crime. Smallwood, 113 So.3d at 732. The Court declined to extend the doctrine set out in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), which held that the search incident to arrest warrant exception permits a search and inspection of the contents of personal items found on the arrestee. Id. at 234, 94 S.Ct. 467; Smallwood, 113 So.3d at 730. The Florida Supreme Court stated that when the search incident to arrest warrant exception is inapplicable because “[t]here is no evidence or hint of evidence that [a] particular phone could be used as a weapon or that evidence could be destroyed remotely, ... once a cell phone has been removed from the person of the arrestee, a warrant must be secured ... before officers may conduct a search .... ” Small-wood, 113 So.3d at 735-36.

Here, there was no evidence that the cell phone was going to be used to endanger the officer or resist arrest, or that evidence contained in the cell phone was going to be destroyed. Thus, the circumstances surrounding Saint-Hilaire’s arrest required the officers to obtain a warrant before they searched the contents of the cell phone.

Additionally, our decision is in accord with the recent United States Supreme Court decision in Riley v. California, — U.S. -, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014). In Riley, the Supreme Court held that a warrant is generally required before officers can search a cell phone “even when a cell phone is seized incident to an arrest.” Id.

Furthermore, we decline to apply the inevitable discovery doctrine as an exception to the exclusionary rule. In order for the evidence obtained from Saint-Hi-laire’s phone to be admissible under the inevitable discovery doctrine, the State would have had to show, by a preponderance of the evidence, that the police had probable cause to search the phone. See 96 (Fla. 4th DCA 2012) (finding that the inevitable discovery rule did not allow for admission of the evidence because the State failed to make the requisite showing that the police could have obtained a warrant supported by probable cause). The State made no such showing here. Thus, the inevitable discovery doctrine is inapplicable.

We note, however, that our reversal on the motion to suppress issue is not disposi-tive of the case. On remand, the State may amend the charges to include information obtained from the consented-to search of Saint-Hilaire’s wallet. Accordingly, we reverse the order denying Saint-Hilaire’s motion to suppress and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    SOUTH FLORIDA RACING ASSOCIATION, LLC, etc., Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, etc., et al., Appellee.
    No. 3D13-2529.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Navon & Lavin, P.A., and Andrew T. Lavin, Ft. Lauderdale, for appellant.
    J. Layne Smith and Garnett W. Chisen-hall, Tallahassee, for the Department of Business & Professional Regulation; The Lockwood Law Firm, and John Lockwood, Tallahassee, for West Flagler Associates, Ltd.
    Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
   SCALES, J.

Appellant, South Florida Racing Association, LLC (SFRA), appeals a final order issued by the Division of Business and Professional Regulation, Division of PariMutuel Wagering (Division), which denied SFRA’s application seeking a permit to conduct summer jai alai under section 550.0745(1), Florida Statutes (2012).

The Division denied SFRA’s permit application because the Division maintained that no summer jai alai permit was available. For the same reason, the Division denied SFRA’s competitor, West Flagler Associates, Ltd.’s (West Flagler) summer jai alai permit application. West Flagler appealed its denial to Florida’s First District Court of Appeal, while SFRA appealed its denial to this court.

We adopt the well-reasoned majority opinion of our sister court in West Flagler Associates, Ltd. v. Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 139 So.3d 419 (Fla. 1st DCA 2014) (the West Flagler Appeal), and hold the Division erred in denying SFRA’s application for a summer jai alai permit. We concur with the First District Court of Appeal’s conclusion in the West Flagler Appeal that the Division’s interpretation of the relevant statute governing creation of new summer jai alai permits (section 550.0745) was erroneous.

We write only to address an issue raised in the instant appeal that was not germane to the West Flagler Appeal.

I.

The Division rejected SFRA’s additional argument that it is entitled to priority over other applications for a summer jai alai permit. We agree with the Division on this issue.

Section 550.0745(1) provides, in relevant part, the following:

If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements.

SFRA urges that, in order for “the viability of the statute to be maintained,” we must interpret the statute to provide priority treatment to the “eligible permit holder” (i.e., the permit holder that had the lowest handle for two consecutive years, and, thus the permit holder that is entitled to convert its quarter horse permit to a summer jai alai permit).

The plain and unambiguous language of section 550.0745, however, does not provide any priority treatment to an applicant for a summer jai alai permit. The statute simply provides criteria for conversion of a pari-mutuel permit to a summer jai alai permit. In the event the eligible permit holder declines to convert, the statute provides for creation of a new summer jai alai permit in the affected county.

SFRA’s interpretation of the statute would require us to add additional terms to the statute that the Legislature chose not to include. It is well-established that courts “are not at liberty to add words to statutes that were not placed there by the Legislature.” Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (quoting Knowles v. Beverly-Enters.-Fla., Inc., 898 So.2d 1, 7 (Fla.2004)).

II.

We, therefore, consistent with our sister court’s opinion in the West Flagler Appeal, reverse the Division’s final order with directions to reinstate SFRA’s application for the new summer jai alai permit. Additionally, we affirm the Division’s finding that SFRA is not entitled to priority treatment.

Affirmed in part, reversed in part, and case remanded for proceedings consistent with instructions herein.

      . The West Flagler Appeal refers to SFRA as "Hialeah Park."

      . The facts of this case were largely recited in the West Flagler Appeal. For purposes of the present appeal, however, we add the following facts. SFRA, which operates a quarter horse pari-mutuel facility in Miami-Dade County, had the lowest handle (i.e., was the lowest performing economically) among the qualifying permit holders in Miami-Dade County for the 2009-10; 2010-11; 2011-12 state fiscal years. On December 17, 2012, rather than seek to convert its quarter horse permit to a summer jai alai permit, SFRA applied for a summer jai alai permit pursuant to section 550.0745(1). The Division denied SFRA’s application.

      . "Handle” means “the aggregate contributions to pari-mutuel pools” and "[p]ari-mutu-el wagering pool” means "the total amount wagered on a race or game for a single possible result.” § 550.002(13), (24), Fla. Stat.

      . If more than one qualified applicant seeks the issuance of a newly-created summer jai alai permit during the same year, rule 61D-4.002 of the Florida Administrative Code, promulgated by the Division pursuant to section 550.0251, Florida Statutes, should govern the Division’s determination of which competing applicant should receive the permit. The rule does not provide for the "eligible permit holder” to receive any special preference. In evaluating a permit application, the rule instructs the Division to consider the following factors:
      (a) The potential profitability and financial soundness of the prospective permitholder;
      (b) The ability to preserve and protect the pari-mutuel revenues of the state and to ensure the integrity of the wagering pool;
      (c) The holdings, transactions, and investments of the applicant connected to previous business ventures;
      (d) The existence of any judgment or current litigation, whether civil, criminal, or administrative, involving the applicant.
      R. 61D-4.002(1), Fla. Admin. Code (2012).


author: PER CURIAM.

text:
    Jeffery L. GIBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3148.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2014.
    Jeffery L. Gibbs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, 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.


text:
    Anthony JOHNSON, Appellant, v. DRIFTWOOD ACRES MHP, LTD., a Florida limited partnership, and Driftwood Holdings, LLC, a Florida limited partnership, Appellees.
    No. 4D14-1026.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Patrice Paldino of Legal Aid Service of Broward County, Inc., Plantation, for appellant.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for ap-pellees.
   PER CURIAM.

Given the deferential standard of review for temporary injunctions, see, e.g., Citizens for Sunshine, Inc. v. School Bd. of Martin County, 125 So.3d 184, 187 (Fla. 4th DCA 2013), we affirm the circuit court’s order on plaintiffs motion for temporary injunction. We note that the court’s statement that appellee “is not required to accept an Application for Residency at Lot 18 from” appellant is but a preliminary finding for the purpose of ruling on the injunction that does not foreclose litigation of this issue as the case below progresses.

GROSS, MAY, JJ., and SCHER, ROSEMARIE, Associate Judge, concur.


text:
    Randy L. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-845.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

The defendant appeals from the circuit court’s order revoking his probation. He argues that the court did not have jurisdiction over him because his five-year probation term, imposed in 2008, had expired before the affidavit of violation of probation was filed in 2014. The state properly has confessed error. Based on the foregoing, we reverse and remand for the circuit court to vacate its order revoking the defendant’s probation as an “unsuccessful completion.”

Reversed and remanded.

TAYLOR, MAY and GERBER, JJ., concur.


author: PER CURIAM. SALTER, J.

text:
    Vilma SOLER, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 3D11-2510.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Vilma Soler, in proper person.
    Louis A. Gutierrez, Senior Attorney (Tallahassee), for Reemployment Assistance Appeals Commission, appellee.

      Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 443.151(4)(b)(6), Fla. Stat. (2013) (“The referee’s decision is final unless further review is initiated under paragraph (c) within 20 days after the date of mailing notice of the decision to the party’s last known address or, in lieu of mailing, within 20 days after the delivery of the notice.”); Fla. Admin. Code Ann. R. 73B-20.007(2) (“If the referee finds that the appeal was not filed within the time allowed by the law, it shall be dismissed.”); Espinosa v. Cableoptics, Inc., 807 So.2d 195, 195-96 (Fla. 3d DCA 2002) (“Pursuant to section 443.151(4)(b) 3, Fla. Stat. (1997), an aggrieved party has twenty days after the mailing or delivery of the referee’s decision to initiate an appeal with the U.A.C. An appeal which is not timely perfected within twenty days is subject to dismissal pursuant to Florida Administrative Code Rule 38E-3.006. As the appel-lees correctly point out, there are no good cause exceptions to this dismissal rule.”)

SALTER, J.

(concurring).

I concur in the result, but I write to reaffirm two exceptions to the procedural default rule relied upon by the majority (dismissal based on the twenty day administrative appeal period, Florida Administrative Code Rule 38E-3.006). I disagree with the majority that the rule has “no good cause exceptions.” One exception is a due process exception, applicable when a claimant establishes that the decision itself was not timely mailed, that an incorrect address was used, or that the claimant never received the adverse decision. Brumm v. Unemployment App. Comm’n, 680 So.2d 1123 (Fla. 1st DCA 1996). This exception is detailed in the case cited by the majority, Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).

A second exception is applicable when the Commission or Agency creates confusion by its actions (including extraordinary delays that prejudice the claimant) or misinforms the claimant regarding the status of his or her claims. Arensen v. Fla. Unemployment App. Comm’n, 48 So.3d 936 (Fla. 1st DCA 2010); Assam v. Fla. Unemployment App. Comm’n, 871 So.2d 978 (Fla. 3d DCA 2004); Cornello v. Unemployment App. Comm’n, 624 So.2d 382 (Fla. 4th DCA 1993).

The records in this case and a related case involving the same claimant (Soler v. Reemployment Assistance App. Comm’n, Case No. 3D12-1179, 2014 WL 3844152) initially appeared to me to indicate that Ms. Soler believed that she would receive a further determination regarding her claim for benefits (one which would be appeal-able). The Agency referee’s order of April 28, 2011, modified an earlier determination that she was ineligible for benefits from October 17, 2010, concluding that Ms. Sol-er was able and available for work for certain weeks after that date. While “eligibility” refers to a qualified claimant’s right to continue receiving benefits, § 443.091, Fla. Stat. (2014), “qualification” refers to the claimant’s right to claim any benefits. § 443.101, Fla. Stat. (2014).

In its supplemental briefing, the Commission has explained that the “eligibility” determination is a separate process, because it only involves the Agency and the employee. The “qualification” determination is a separate and threshold adjudication of entitlement to benefits that involves the employer and employee, as well as the Agency.

In the present case, the April 28, 2011, order by the referee on Ms. Soler’s eligibility issue turned out to be moot, because three months earlier (January 19, 2011) the Agency had issued a determination that Ms. Soler was not qualified to receive benefits. The Agency ruled that Ms. Sol-er “failed to respond to the Agency’s request for information to substantiate good cause attributable to the employer for quitting.” Ms. Soler’s failure to appeal from that determination within twenty days resulted in the dismissal of her appeal by the Agency and Commission, and we have now affirmed the Commission’s order. The order modifying Ms. Soler’s weeks of eligibility did not vacate the Agency’s earlier adjudication that Ms. Sol-er was not qualified to receive any benefits.

I concur with the majority’s affirmance of the Commission’s order of dismissal, but I do not join in its additional conclusion that “there are no good cause exceptions” to the twenty-day period within which a claimant must commence an appeal.

      . Effective June 27, 2011, chapter 443 was substantially amended and the Agency for Workforce Innovations’s functions were assumed by the Department of Economic Opportunity. Because the forms, correspondence, orders, and transcript in this case refer exclusively to the Agency for Workforce Innovation, the governmental unit is referred to as the Agency.


text:
    Vilma SOLER, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 3D12-1179.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Vilma Soler, in proper person.
    Louis A. Gutierrez, Senior Attorney (Tallahassee), for Reemployment Assistance Appeals Commission, appellee.
    Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 443.151(4)(b)(6), Fla. Stat. (2013) (“The referee’s decision is final unless further review is initiated under paragraph (c) within 20 days after the date of mailing notice of the decision to the party’s last known address or, in lieu of mailing, within 20 days after the delivery of the notice.”); Fla. Admin. Code Ann. R. 73B-20.007(2) (“If the referee finds that the appeal was not filed within the time allowed by the law, it shall be dismissed.”); Espinosa v. Cableoptics, Inc., 807 So.2d 195, 195-96 (Fla. 3d DCA 2002) (“Pursuant to section 443.151(4)(b) 3, Fla. Stat. (1997), an aggrieved party has twenty days after the mailing or delivery of the referee’s decision to initiate an appeal with the U.A.C. An appeal which is not timely perfected within twenty days is subject to dismissal pursuant to Florida Administrative Code Rule 38E-3.006. As the appel-lees correctly point out, there are no good cause exceptions to this dismissal rule.”)

SALTER, J.

(concurring).

For the reasons explained in the separate appeal involving the same claimant/appellant and benefits period, I concur only in the result; Soler v. Reemployment Assistance App. Comm’n, Case No. 3D11-2510, 2014 WL 3844150 (Fla. 3d DCA 2014). Although we ultimately granted consolidation for the limited purpose of hearing oral argument on both of Ms. Sol-er’s appeals, I respectfully submit that our decisionmaking would have been expedited by consolidating the cases for all purposes.


text:
    BAY POINT SCHOOLS, INC., etc., Appellant, v. BAY POINT SCHOOL PROPERTIES, INC., Appellee.
    Nos. 3D13-1396, 3D13-1274.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Rasco Klock Perez & Nieto, and Joseph P. Klock, Jr. Coral Gables, and Roberto E. Moran, Miami, for appellant.
    White & Case LLP, and Raoul G. Cantero, David P. Draigh, and Jesse L. Green, Miami; Law Offices of Thomas Manick, P.A., and Thomas E. Manick, Miami, for appellee.
    Before SUAREZ, SALTER, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Coral Reef Drive Land Dev., LLC v. Duke Realty Ltd. P’ship, 45 So.3d 897, 902 (Fla. 3d DCA 2010).


text:
    Lisbeth C. PARRA, Appellant, v. COCONUT GROVE BANK, Appellee.
    Nos. 3D14-1116, 3D13-2771.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Lisbeth C. Parra, in proper person.
    Kula & Associates, Elliot B. Kula and W. Aaron Daniel, Miami, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Parra v. Coconut Grove Bank, — So.3d-(Fla. 3d DCA 2014); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Juan Ospina MENDOZA, Petitioner, v. Ray CROSS, etc., et al., Respondents.
    No. 3D14-1863.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2014.

      David J. Sobel, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for respondents.
    Before SHEPHERD, C.J., and SUAREZ and EMAS, JJ.
   EMAS, J.

While out of custody on bond, Juan Mendoza failed to appear for his trial on June 23, 2014. The trial court estreated his bond and issued a warrant for his arrest.

Mendoza’s attorney thereafter filed a motion to quash the warrant, asserting that Mendoza failed to appear that day because he overslept. A hearing was scheduled on that motion for June 27, but Mendoza failed to appear at that hearing. It was later rescheduled for July 2. Prior to July 2, however, Mendoza was arrested in Hernando County on the outstanding warrant, and thereafter held without bond.

Mendoza hired new counsel who filed a motion to set bond, which was heard before the trial judge. At that hearing, the trial judge determined that Mendoza’s failure to appear for trial based on having overslept was willful, denied the motion to set bond, and continued to hold Mendoza in custody and without bond pending trial.

Mendoza filed the instant petition for writ of habeas corpus, contending that the trial court failed to make the necessary findings and determination that there were no reasonable conditions of pretrial release to protect the community from risk of physical harm to person and to assure Mendoza’s appearance in court. We agree.

A review of the transcript reveals that, although the trial court did make a finding that Mendoza wilfully violated a condition of pretrial release by his failure to appear for trial, it failed to make the additional finding required under section 907.041(4), which provides in pertinent part:

(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exists:
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.

§ 904.071(4)(c)7., Fla. Stat. (2014). See also Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 3.131(a).

A defendant may not be held without bond (i.e., pretrial detention) upon the sole finding that the defendant violated a condition of pretrial release by willfully failing to appear. Rather the trial court must make the additional finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the defendant at trial. State v. Blair, 39 So.3d 1190 (Fla.2010).

We decline to adopt the State’s view that this judicial determination may be implied from the transcript, especially given the constitutional dimension of an accused’s right to pretrial release. Moreover, the trial court’s “pretrial detention order shall be based solely on evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record.” Fla. R. Crim. P. 3.132(c)(2) (emphasis added). Finally, even if we were so inclined, a review of the transcript reveals no such implied determination.

We therefore grant the petition, withhold formal issuance of the writ, and direct the trial court to immediately conduct a hearing and for further proceedings consistent with this opinion. This opinion shall become effective immediately, notwithstanding the filing of any motion for rehearing.

Petition granted.

      . In its response to the petition, the State contended that a "judicial determination at a bond hearing may be expressly stated or implied from the transcript”, citing Blair, 39 So.3d at 1194. The Court in Blair made no such pronouncement, but rather merely observed, in its analysis, that "[ajfter a careful review of the bond hearing transcript, it does not appear that the trial court ever made such a determination, either expressly or impliedly.”

      . Article I, section 14 of the Florida Constitution provides: Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.


text:
    J.L., Father of J.L., JR. a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D13-4219.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2014.
    J.L., Father of J.L., Jr., Ocala, pro se.
    Deborah Anne Schroth, of Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

J.L. Sr., Father of J.L., Jr., appeals the order terminating his parental rights as to J.L., Jr. We affirm the order of termination based on section 39.806(l)(e), Florida Statutes. However, because there is undisputed testimony that Father regularly visited with the child and rarely missed a scheduled visit, that Father provided some money, snacks, clothing and shoes proportionate to his income, and that the child is bonded with Father, we reverse as to the finding of abandonment under section 39.806(l)(b), Florida Statutes, and remand for modification of the order. See S.L. v. Dep’t of Children & Families, 120 So.3d 75, 77 (Fla. 4th DCA 2013).

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, COHEN and BERGER, JJ., concur.


text:
    Mathieu JOSEPH, et al., Appellant, v. BANK OF NEW YORK MELLON, Appellee.
    No. 1D14-3025.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.
    Mathieu Joseph, pro se, Appellant.
    Benjamin B. Brown and Keely F. Morton, of Quarles & Brady, LLP, Naples, for Appellee.
   PER CURIAM.

DISMISSED. The dismissal is without prejudice to appellants’ right to seek relief in the trial court. See Williams v. Roundtree, 464 So.2d 1293 (Fla. 1st DCA 1985); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

LEWIS, C. J., ROWE and MARSTILLER, JJ., concur.


text:
    Edmond SERMONS, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D13-2670.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.

      Edmond Sermons, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Court has determined that appellant’s notice of appeal failed to invoke its appellate jurisdiction in a timely manner. Accordingly, the appeal is dismissed.

LEWIS, C.J., BENTON and MARSTILLER, JJ., concur.


text:
    Keith Edward KOPPELMAN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D14-2690.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.
    Keith Edward Koppelman, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

The Court has determined that appellant’s notice of appeal failed to invoke its appellate jurisdiction in a timely manner. Accordingly, appellee’s motion to dismiss, filed on July 3, 2014, is granted and the appeal is dismissed.

LEWIS, C.J., BENTON and MARSTILLER, JJ., concur.


text:
    Kelvin Lorenzo CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3264.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014)

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


author: GERBER, J.

text:
    Liston T. GUMBS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-518.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, and Liston T. Gumbs, Jr., Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, George Francis and Monique Rolla, Assistant Attorneys General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals the circuit court’s order summarily denying his motion to withdraw his plea to attempted first-degree murder with a firearm. According to the defendant: (1) his motion to withdraw plea was facially sufficient because it alleged that defense counsel misadvised him that if he proceeded to trial and was found guilty, the court was required to sentence him to life in prison; (2) he is entitled to an evidentiary hearing on his motion to withdraw plea because the record does not conclusively refute his allegations; and (3) he is entitled to a Sheppard hearing to determine whether he should receive conflict-free counsel for the evidentiary hearing. We agree with the defendant’s position in all three respects and reverse.

The state’s attempted first-degree murder charge against the defendant alleged that the defendant discharged a firearm and inflicted great bodily harm on the victim. Therefore, if convicted, the defendant faced a mandatory minimum sentence of twenty-five years in prison and a maximum sentence of life in prison. See § 775.087(2)(a)3., Fla. Stat. (2009) (“Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a firearm or destructive device as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.”).

On the day that the defendant’s trial was to begin, the state, on the record, offered to enter into a plea agreement with the defendant. Under the state’s offer, the defendant would: (1) plead no contest to the crime as charged; and (2) waive his right to appeal the court’s earlier order denying his motion to suppress his statement to the police. In exchange, the state would recommend that the court sentence the defendant to the mandatory minimum term of twenty-five years in prison.

A brief recess then occurred. The record suggests that during the recess, defense counsel presented the defendant with a written plea form. On the plea form, the defendant placed his initials next to the following pertinent statements:

• “I am pleading guilty to the charge of Att. 1st Deg Murder (Fl).”

• “I understand that the maximum possible penalty provided by law is Life (under 10/20/Life).”

• “The minimum penalty is 96 mths SP.”

“My guideline recommended range is 96 mths — LIFE.”

“And my guideline permitted range is:

• “I understand that that if the Court accepts my plea to the charge(s) listed above, my sentence will be 25 years State prison w/ 25 year min/man w/ 727 days credit.”

“Other than the proposed sentence set forth above, no one has made any promises or guarantees to me nor has anyone threatened me or in any way forced me to enter this plea; I am doing this freely and voluntarily[.]”;

• “I have not been threatened or coerced into this plea, and have not been promised any reward or favor for giving up my rights by anyone.”

After the recess, defense counsel requested an opportunity to “state for the record why we are choosing to take a plea.” The court granted the request. Defense counsel stated, in pertinent part:

I do believe that his best interests are to take the negotiated resolution from the State because I believe that the situation that may result at trial would not be as favorable to him especially given the limited options the Court would have on sentencing, given that the lesser included offenses would all lead to the main minimum mandatory sentence of life.
So that being said ... all I am expressing to the Court is that [the defendant] has agreed to take this ... plea offer and I have given him whatever advice I can throughout this time based on that.

(emphasis added). Even though defense counsel made the emphasized incorrect statement as to the minimum mandatory sentence, the record does not indicate that the state or the court corrected defense counsel.

Instead, the court proceeded to conduct its plea colloquy with the defendant. The colloquy’s pertinent portions are as follows:

Court: You are charged with one count of attempted murder in the first degree, that is punishable by life. You understand what you’re facing here? Defendant: Yes, sir.
Court: My understanding is it is going to be an adjudication, 25 years in [a] Florida State Prison with 25 year minimum mandatory, credit for 727 days he has already served. Is that your understanding, sir?
Defendant: Yes, sir.
Court: Has anyone promised you anything other than what I just announced right here in open court?
Defendant: No.
Court: Anyone forcing you, threatening you or coercing you into taking this plea?
[Defendant does not respond.]
Court: You know what, I am not accepting the plea.
Defendant: No, no, I was thinking of my family that’s all, nobody ain’t force me, nobody ain’t force me. Nobody ain’t forced me.
Defense Counsel: The frustration is he is trying to balance out what his family’s requests are versus perhaps what he may have individually wanted to do. Court: Sir, I got 50 jurors sitting downstairs if you want to have a trial. Defendant: Yes, I know, I am not trying to hold you up, your Honor, I’m sorry. Court: I’m ready.
Defendant: Ain’t nobody has forced me to do nothing, I’m free will.
Court: All right, no one is forcing you, threatening you or coercing you into changing your plea?
Defendant: No, sir.
Court: I’m holding in my hand a form entitled Plea of ... No Contest to Criminal Charges in Circuit Court. Do you recognize it?
Defendant: Yes, sir, I did.
Court: Are those your initials in front of each paragraph?
Defendant: Yes.
Court: Signature on pages 2 and 3?
Defendant: Yes, sir.
Court: Did you have an opportunity to read over that form in its entirety prior to initialing and signing it?
Defendant: Yes.
Court: Do you have any questions about what is on the form?
Defendant: No.

(emphasis added).

The defendant proceeded to plead no contest to the charge. The court accepted the plea, found that the defendant entered the plea knowingly, intelligently, and voluntarily, and found that the defendant understood the nature of the charge against him and the consequences of his plea. The court then sentenced the defendant to the mandatory minimum sentence of twenty-five years in prison with credit for 727 days of time served.

Ten days after the plea and sentencing hearing, the defendant served a pro se motion to withdraw plea. In the motion, the defendant argued, in pertinent part, as follows:

Defendants counsel told his client that if he did not [accept] the plea of 25 years[,] the Honorable Judge would call [trial] that afternoon and he would be found [guilty] and be sentenced to life in Florida prison. Going against what the defendant wishe[d] to go to [trial], his counsel forced him to [accept] the plea [agreement]. If the court would have taken more time with the defendant to make sure taking a 25 year plea is what he really wanted[,] and not being [threatened] and forced into taking the plea[,] the defendant would have proceeded to [trial] like he wanted to do.
Upon arriving [in prison], the defendant learned that his counsel had[J along with the court[J misadvised the defendant of what he would [receive] if he proceeded to [trial]. ... The defendant did not understand what was happening and did not know what he was doing by listening to the [advice] of his counsel.

(emphasis added).

The state filed a response to the motion. In the response, the state argued only “that the court was thorough in its colloquy and explanation of the maximum penalties involved in this plea.” (emphasis added).

The circuit court entered an order denying the defendant’s motion without a hearing. Regarding the defendant’s argument that his counsel “forced” him into accepting the plea offer, the court found that the defendant’s plea form and the plea colloquy transcript, both attached to the order, conclusively refuted the defendant’s argument. The court noted from the plea form the defendant’s agreement that “[o]ther than the proposed sentence set forth above, no one has made any promises or guarantees to me nor has anyone threatened me or in any way forced me to enter this plea; I am doing this freely and voluntarily.” The court also noted certain portions of the plea colloquy transcript (quoted above) in which the defendant acknowledged his understanding that the court would sentence him to prison for the minimum mandatory twenty-five years term of imprisonment, and that no one had promised him anything, forced him, threatened him, or coerced him into taking the plea. However, nowhere in the order did the court address the defendant’s allegation that his counsel “misadvised [him] of what he would [receive] if he proceeded to [trial].”

This appeal followed. The defendant argues that the circuit court erred in summarily denying his motion to withdraw plea. According to the defendant: (1) his motion to withdraw plea was facially sufficient because it alleged that defense counsel misadvised him that if he proceeded to trial and was found guilty, the court was required to sentence him to life in prison; (2) he is entitled to an evidentiary hearing on his motion to withdraw plea because the record does not conclusively refute his allegations; and (3) he is entitled to a Sheppard hearing to determine whether he should receive conflict-free counsel for the evidentiary hearing.

We review the circuit court’s order for an abuse of discretion. See Hamil v. State, 106 So.3d 495, 497 (Fla. 4th DCA 2013) (“We review a trial court’s denial of a motion to withdraw a plea after sentencing for an abuse of discretion.”).

We agree with the defendant’s position in all three respects.

First, we conclude that the defendant’s motion to withdraw plea was facially sufficient. That is, if defense counsel indeed advised the defendant that the court was required to sentence him to life in prison if he proceeded to trial and was found guilty, then defense counsel misad-vised the defendant. See § 775.087(2)(a)8., Fla. Stat. (2009) (“[T]he convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.”); Woodly v. State, 937 So.2d 193, 197 (Fla. 4th DCA 2006) (“The allegation that counsel misadvised appellant that he would receive a life sentence if convicted is cognizable under rule 3.170(i).”).

Second, we conclude that the defendant is entitled to an evidentiary hearing on his motion to withdraw plea because the record does not conclusively refute his allegations. See id. at 196 (“Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations.”). The record indicates that, before the court began the plea colloquy, defense counsel explained that the reason why the defendant was taking the plea was because a guilty verdict “would not be as favorable to him especially given the limited options the Court would have on sentencing, given that the lesser included offenses would all lead to the main minimum mandatory sentence of life.” (emphasis added). Even though defense counsel made the emphasized incorrect statement as to the minimum mandatory sentence, the record does not indicate that the state or the court corrected defense counsel. Moreover, during the plea colloquy, the court never informed the defendant that if he proceeded to trial and was found guilty, then the court could have sentenced him anywhere from the mandatory minimum term of twenty-five years in prison to the maximum term of life in prison. Instead, the court told the defendant only that the charge of attempted murder in the first degree was “punishable by life,” and that he was entering his plea to receive “25 years in [a] Florida State Prison with 25 year minimum mandatory, credit for 727 days he has already served.” Thus, given the foregoing record, the defendant is entitled to an evidentiary hearing on his motion to withdraw plea.

Third, we conclude that the defendant is entitled to a Sheppard hearing to determine whether he should receive conflict-free counsel for the evidentiary hearing. In Sheppard, our supreme court “outline[d] the procedure trial courts should follow when a represented defendant files a pro se rule 3.170(i) motion based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.” 17 So.3d at 286-87. Under this procedure:

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id at 287.

Our conclusions in this case are consistent with our recent opinion in Thompkins v. State, 120 So.3d 66 (Fla. 4th DCA 2013). In Thompkins, the state charged the defendant with, among other things, three counts of first-degree murder with a firearm. The defendant later pled guilty to second-degree murder with a firearm. The defendant then filed a Florida Rule of Criminal Procedure 3.850 motion, in which he claimed, among other things, affirmative misadvice of counsel that if he were convicted of the first-degree murder counts as charged, the only possible sentence he could receive would be the death penalty. The circuit court summarily denied this claim based on the plea colloquy.

We reversed, reasoning: “[W]e find nothing in that colloquy which actually refuted this claim. The fact that the trial court advised [the defendant] that if convicted, he faced the possibility of the death penalty did not overcome his claim that his counsel affirmatively misadvised him that this was the only sentencing possibility if he were convicted.” Id. at 67 (emphasis added). We thus remanded for either an evidentiary hearing or attachment of portions of the record refuting the claim other than the portions of record already incorporated by the trial court. Id.

Although Thompkins involved a rule 3.850 motion while this case involves a motion to withdraw plea, the underlying legal basis for reversal to conduct an evi-dentiary hearing remains the same in both cases. In both cases, the record did not conclusively refute defense counsel’s alleged misadvice that if the defendant proceeded to trial and was found guilty, the court was required to sentence him to the maximum penalty. See also Boule v. State, 884 So.2d 1023, 1025 (Fla. 2d DCA 2004) (“[NJothing in the transcript of the plea hearing or otherwise contained in the record on appeal conclusively refutes [the defendant’s] claim that his attorney told him he would definitely receive a life sentence if he rejected the plea offer and went to trial. Although the sentencing score-sheet reflects that [the defendant] was exposed to the possibility of a life sentence, the record does not reflect that such a sentence was a certainty. ... Accordingly, we reverse the denial of [the defendant’s] motion to withdraw plea and remand for the trial court to conduct an evidentiary hearing to resolve the motion.”) (footnote omitted).

In reaching today’s opinion, we distinguish two of our prior opinions, Jones v. State, 680 So.2d 585 (Fla. 4th DCA 1996), and Woodly v. State, 937 So.2d 193 (Fla. 4th DCA 2006).

In Jones, a defendant who qualified for habitual offender sentencing entered a plea bargain to a term of years sentence which did not contemplate any enhancement. During the plea conference, the court told the defendant that if it declared him to be a habitual offender, he “could be sentenced to life.” The defendant stated he understood and did not have any questions about the sentence which the court could impose. The defendant later filed a rule 3.850 motion alleging his lawyer mi-sadvised him, before entering the plea, that if found guilty as an habitual offender “you’re never going to get out of prison because the judge is obligated to sentence you to life.” The circuit court summarily denied the motion.

We affirmed. 680 So.2d at 586-87. We concluded the defendant’s acknowledgement that he understood the sentence and his failure to raise any questions refuted the defendant’s claim that his plea was involuntary. Id. at 587. In a partial dissent, Judge Stevenson argued that, as he understood the claim, the defendant was alleging “defense counsel advised him that if he proceeded to trial and was then found guilty as [a] habitual offender, the judge would be obligated to sentence him to life imprisonment.” Id. at 588 (Stevenson, J., dissenting in part). According to Judge Stevenson, “[t]he trial judge’s plea colloquy would not necessarily have cleared up an erroneous belief that the maximum sentence after a trial could be different; neither would the plea colloquy necessarily have prompted an additional inquiry from [the defendant] concerning the matter since it was not inconsistent with the advice he had allegedly been given.” Id.

The instant case presents the scenario which Judge Stevenson contemplated. Here, the defendant has alleged that defense counsel misadvised him that, if he proceeded to trial and was found guilty, the judge would be obligated to sentence him to life imprisonment. In fact, defense counsel said on the record that the reason why the defendant was taking the plea was because a guilty verdict “would not be as favorable to him especially given the limited options the Court would have on sentencing, given that the lesser included offenses would all lead to the main minimum mandatory sentence of life.” (emphasis added). Even though defense counsel made the emphasized incorrect statement as to the minimum mandatory sentence, the record does not indicate that the state or the court corrected defense counsel. Moreover, during the plea colloquy, the court never informed the defendant that if he proceeded to trial and was found guilty, then the court could have sentenced him anywhere from the mandatory minimum term of twenty-five years in prison to the maximum term of life in prison. Instead, the court merely told the defendant that the charge of attempted murder in the first degree was “punishable by life,” and that he was entering his plea to receive “25 years in [a] Florida state prison with 25 year minimum mandatory, credit for 727 days he has already served.” Thus, to paraphrase Judge Stevenson, the court’s plea colloquy here would not necessarily have cleared up an erroneous belief that the maximum sentence after a trial could be different; nor would the plea colloquy necessarily have prompted an additional inquiry from the defendant concerning the matter since it was not inconsistent with the advice he had allegedly been given and what was said on the record.

In Woodly, the state charged the defendant with robbery with a firearm, armed kidnapping, and attempted murder. On the morning of trial, the state, on the record, offered the defendant a plea deal of fourteen years in prison with a ten-year mandatory minimum sentence. The court asked what the potential penalties were, and the state informed that the defendant was “looking at life because of the robbery firearm as a principal.” However, this was not a mandatory life sentence. The court then confirmed that the defendant’s “potential penalty would be up to life discretionary with a ten year minimum mandatory” under the 10-20-Life law. The defendant said he would accept the state’s offer. During the plea colloquy, the court asked the defendant, “[H]as anyone, including your attorney, told you anything different than what I’ve told you here in open court?” The defendant said “no.” Shortly after the sentencing, the defendant moved to withdraw his plea, alleging, among other things, that his attorney mi-sadvised him “that if he did not take the negotiated plea, the trial judge would impose a life sentence after trial if he were convicted.” The court summarily denied the motion without prejudice to the defendant filing a rule 3.850 motion.

We affirmed, concluding that the record conclusively refuted the defendant’s allegations:

In [the defendant’s] presence, the prosecutor stated that the potential penalty was up to life imprisonment on each count. The court confirmed that the life sentence was discretionary and not mandatory. Further, through its questioning, the trial court confirmed that no one, including [the defendant’s] attorney, had told [the defendant] anything different than what the court was informing him about his sentence. The trial court informed [the defendant] that if he proceeded to trial he was facing up to life imprisonment with a ten-year minimum mandatory on each count in the information pursuant to the 10-20-Life provision of the Florida Statutes. Based upon the transcript, [the defendant] was well aware that he was not facing a mandatory life sentence on the charges to which he pled guilty.

937 So.2d at 197-98.

The record in Woodly differs from the record here. Here, neither the prosecutor nor the court stated in the defendant’s presence that the potential penalty was up to life imprisonment on the count charged; the court never indicated that the life sentence was discretionary and not mandatory; and the court never confirmed that no one, including the defendant’s attorney, told him anything different than what the court was informing him about his sentence. Thus, based upon the transcript, a question remains whether the defendant was aware that he was not facing a mandatory life sentence on the charge to which he pled guilty.

Based on the foregoing, we reverse the circuit court’s order summarily denying the defendant’s motion to withdraw his plea. We remand for the court to hold an evidentiary hearing on the motion. We also remand for the court to hold a Sheppard hearing to determine whether the defendant should receive conflict-free counsel for the evidentiary hearing.

Reversed and remanded.

STEVENSON and CIKLIN, JJ., concur.

      . Sheppard v. State, 17 So.3d 275 (Fla.2009).