text:
    Jose Angel PAMBLANCO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1820.
    District Court of Appeal of Florida, Fifth District.
    April 12, 2013.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jose Pamblanco (“Pamblanco”) appeals his conviction for solicitation of a child under the age of sixteen to commit lewd or lascivious conduct. We reverse for a new trial and remand for resentencing on Pam-blanco’s remaining offenses.

In February 2010, Pamblanco began texting a twelve-year-old girl whom he did not know. The girl, whose name was J.G., expressly told Pamblanco her age. Upon learning of the incident, the child’s mother turned the phone over to a detective, who texted back and forth with Pamblanco. Eventually the conversations turned sexual. Pamblanco, who thought the detective was J.G., asked him various things, such as whether the detective “wanted to see his thing,” if he had ever done anything with a boy, and if he wanted to “give him a B.J.” Pamblanco also texted “he was hard,” “he was laying in bed and he was hard,” and “he wanted to meet with me in my house, and sneak into [J.G.’s] bedroom.” Finally, Pamblanco asked the detective, whom he still thought was J.G., whether her friends had ever “milked someone” or “if they ever tasted the milk.” At some point, Pamblanco asked to meet the detective at McDonald’s, but the detective did not show due to time constraints. Pamblanco complained that he had been “fronted,” meaning J.G. had not showed. A female detective also pretended to be J.G. on the telephone and initiated a plan to meet Pamblanco at McDonald’s. However, Pamblanco did not appear. He later told the detective he had car trouble. He was ultimately arrested, at which time detectives obtained Pamblanco’s cell phone, showing the texts and phone calls. Pamblanco admitted to a detective he is the only person who uses that cell phone.

Based on these facts, Pamblanco was charged by amended information with four offenses, including solicitation of a child under the age of sixteen to commit lewd or lascivious conduct. At trial, in addition to the above evidence, the controlled phone calls between Pamblanco and the female detective, posing as J.G., were played for the jury and a copy of the messages were introduced into evidence. The defense declined to call any witnesses. The jury was then instructed, without objection, that it could find Pamblanco guilty of the crime of solicitation of a child under sixteen to commit lewd or lascivious conduct if the State proved: (1) J.G. was under sixteen years of age; (2) Pamblanco solicited either J.G. or another person he believed to be J.G. to commit a lewd or lascivious act; and (3) Pamblanco was eighteen years or older at the time of the offense. No objection was made to the instruction as read, and Pam-blanco was found guilty by the jury of all four crimes as charged in the information.

On appeal, Pamblanco argues the trial court erred when it instructed the jury he could be convicted of the offense of solicitation of a child under sixteen to commit lewd or lascivious conduct if he merely believed the victim to be under sixteen. He contends under section 800.04(6), Florida Statutes (2011), the victim must be under sixteen years of age, this is an element of the offense, and the instruction as given was fundamental error.

The State, on the other hand, argues solicitation, like attempt, is a crime which focuses on the defendant’s intent. It therefore argues it was enough to show Pamblanco made a request that the victim perform what he thought was a lewd act by a minor and it is no defense that the victim was not an actual minor, as legal impossibility is not a defense in Florida.

Section 800.04(6)(a)2., Florida Statutes (2011), provides “[a] person who ... solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.” In addition, “[a]n offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree.” § 800.04(6)(b), Fla. Stat. Solicitation under the statute means “to ask earnestly or to try to induce the person solicited to do the thing solicited.” Fla. Std. Jury Instr. (Crim.) 11.10(d).

“The gist of criminal solicitation is enticement....” Hutchinson v. State, 315 So.2d 546, 548 (Fla. 2d DCA 1975) (distinguishing between an attempt and solicitation). The reason is that the laws against solicitation are “concerned not only with the prevention of the harm that would result should the inducements prove successful, but with protecting inhabitants of this state from being exposed to inducements to commit or join in the commission of the crime specified.... ” Miller v. State, 430 So.2d 611, 614 (Fla. 4th DCA 1988) (quoting People v. Burt, 45 Cal.2d 311, 288 P.2d 503, 505 (1955)). The Florida Supreme Court has stated that “[t]he elements of criminal solicitation are (1) commanding, hiring, requesting, or encouraging another person to commit a crime and (2) the intent that the other person commit the crime.” The Florida Bar v. Marable, 645 So.2d 438, 442 (Fla. 1994).

The State argues that, due to the focus on intent, the offense is complete when a person asks another to commit a crime with the intent that the other commit the crime. See State v. Johnson, 561 So.2d 1321, 1323 (Fla. 4th DCA 1990); State v. Waskin, 481 So.2d 492, 493 (Fla. 3d DCA 1985). However, the intent aspects of section 800.04(6) are not as clear as advocated by the State. The authority relied on by the State pertains to section 777.04(2), Florida Statutes, the general criminal solicitation provision. There is no indication this section has any bearing on the definition of “solicitation” contained in section 800.04(6), Florida Statutes.

More problematic for the State is that the age of the person solicited is an element of the offense of solicitation in violation of section 800.04(6). The statute provides “[a] person who ... solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.” § 800.04(6)(a)(2), Fla. Stat. (emphasis added). That the child’s age is an element of the offense makes perfect sense because soliciting an adult to commit a lewd or lascivious act is not a crime in Florida; it is a crime only if the person solicited is under sixteen years of age. Moreover, it is only a person who actually commits (versus attempts to commit) lewd or lascivious conduct who commits a felony. See, e.g., § 800.04(6)(b), Fla. Stat. (“An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree.”).

That the age of the victim is an element of the offense is reflected in the standard jury instructions, which require the State to prove that “the victim is under 16 years of age.” Fla. Std. Jury Instr. (Crim.) 11.10(d). This requirement must be contrasted with that in other statutes which plainly punish the defendant both if the victim is a child or is believed to be a child. See, e.g., § 847.0135(3)(a), Fla. Stat. (involving statute entitled the “Computer Pornography and Child Exploitation Act,” which expressly criminalizes the use of a computer to solicit, or attempt to solicit, not only a child, but a person believed to be a child); § 847.0135(4), Fla. Stat. (making it an offense to travel to meet a child or a person believed to be a child for the illicit purposes outlined in the statute). Thus, for the completed offense of solicitation of a child under the age of sixteen to commit lewd or lascivious conduct, it seems clear the request must be made to someone under sixteen. It is not enough a defendant believes the victim is under sixteen. We, therefore, vacate Pamblanco’s conviction for solicitation of a child under the age of sixteen to commit lewd or lascivious conduct. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (holding that when “the evidence is totally insufficient as a matter of law to establish the commission of a crime ... [s]ueh complete failure of the evidence meets the requirements of fundamental error ... ”).

The State argues the actual text messages were introduced at trial, but these exhibits have not been included in the record on appeal. It therefore contends that this Court cannot determine whether Pamblanco directly solicited twelve-year-old J.G. and is required to affirm the conviction. However, even if there is evidence that Pamblanco directly solicited J.G., the jury was given improper instructions concerning the offense. The general verdict that was used in this case makes it impossible for this Court to determine whether Pamblanco was convicted based on the jury’s conclusion that Pam-blanco solicited the detective. The error is fundamental and requires reversal for a new trial to the extent there is evidence that Pamblanco directly solicited J.G. See Fitzpatrick v. State, 859 So.2d 486, 490 (Fla.2003) (“It is well established that a general jury verdict cannot stand where one of the theories of prosecution is legally inadequate.”); Mackerley v. State, 777 So.2d 969, 969 (Fla.2001) (same). Pam-blanco is entitled to resentencing for the remaining offenses.

REVERSED and REMANDED WITH DIRECTIONS.

PALMER, LAWSON and JACOBUS, JJ., concur.

      . He was also charged and convicted of: (1) traveling to meet a minor for unlawful sexual act; (2) solicitation of a minor via a device capable of electronic data storage or transmission; and (3) unlawful use of a two-way communication device. The remaining convictions have not been challenged on appeal.

      . The offense is different from general criminal solicitation, which requires a defendant to solicit another to commit a crime. See § 777.04(2), Fla. Stat. (stating that general criminal solicitation occurs when ''[a] person ... solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense....").

      . The parties have not briefed the issue of attempted solicitation and whether a conviction could be obtained for attempted solicitation under the facts of this case.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    POLAKOFF & AABBOTT BAIL BONDS, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D12-2507.
    District Court of Appeal of Florida, Fifth District.
    April 12, 2013.
    Lisa H. Colon, of Law Office of Lisa H. Colon, P.A., and Bruce S. Reich, of Law Office of B. Reich, P.A., Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Phillip P. Quaschnick and Enoch J. Whitney, Assistant Attorneys General, Tallahassee, for Appellee.
   SAWAYA, J.

Chapter 903, Florida Statutes, is a compilation of enactments governing bail, criminal surety bail bonds, and the procedures bail bond agents should follow in order to obtain relief from the commitments and obligations imposed on them by the surety bonds they issue once the bonds are forfeited. The circumstances of this case involve a bail bond agent who did not follow the statutory procedures by timely paying the forfeitures and seeking remission or obtaining a judgment and moving to set the judgment aside. Instead, the bail bond agent filed a Motion to Set Aside Bond Forfeitures and Discharge Bonds. When that motion was denied, the agent filed a Motion to Reconsider, which was also denied. The bail bond agent has appealed the order denying the Motion to Reconsider, and the question presented is whether this court has jurisdiction to review that order.

The bonds at issue in this case were posted in connection with the criminal prosecution of Jorge Diaz. The facts underlying the crimes Diaz allegedly committed are not important to the resolution of the issue before us, so we will not dwell upon them. It is sufficient to state that Diaz was initially arrested for five felony charges that subjected him to a maximum penalty of fifty years in prison. Polakoff and Aabbott Bail Bonds (Polakoff) issued separate criminal surety bail bonds for each of the five charges, thus securing Diaz’s release from custody. When the State subsequently filed its Information, it included four of the five charges originally lodged against Diaz, but added twenty-five additional felony charges, thereby increasing Diaz’s maximum possible sentence to 175 years in prison. Needless to say, Diaz absconded and, after he failed to appear for his scheduled arraignment, forfeiture of the bonds was entered by the clerk. Notice of the forfeiture was mailed to Po-lakoff on September 13, 2011, which gave Polakoff sixty days, or until November 13, to pay the forfeiture under section 903.26(2)(a), Florida Statutes.

Rather than pay the forfeiture, Polakoff filed within the sixty-day period a Motion to Set Aside Bond Forfeitures and Discharge Bonds. The motion was filed on November 1 and heard eight days later. The trial court reserved ruling on the motion and stayed entry of judgment on the forfeiture based on the representation by the State that it did not object to the court staying payment on the forfeiture. On November 22, the trial court entered an order denying the motion as to the four original charges covered by the bonds that were included in the Information. Additionally, the trial court ordered that the previous stay order would remain in effect until the time to file a notice of appeal had expired and that a subsequent stay order would have to be obtained in the event an appeal was filed. Polakoff then filed a Motion to Reconsider, and the trial court issued yet another stay order pending resolution of this motion. The motion was heard on January 17, 2012, and the ensuing order denying the Motion to Reconsider was entered on May 20, 2012. That order also provided that the previously ordered stay would remain in effect until the time to file an appeal had expired.

On June 18, Polakoff filed its Notice of Appeal of the order denying the Motion to Reconsider and paid the forfeiture amount to the clerk the next day. The State contends that the procedure Polakoff followed in seeking relief from its obligations under the surety bail bonds it posted resulted in an order that is not reviewable on appeal. We agree.

When a bail bond agent executes a criminal surety bail bond, the bail bond agent becomes obligated to ensure that the defendant timely appears at all subsequent court proceedings. § 903.045, Fla. Stat. (2011). A criminal surety bail bond is, in essence, a contract involving three parties: the State, which brings the criminal charges; the bail bond agent, which is the surety; and the defendant, who is the principal. Allegheny Cas. Co. v. State, 850 So.2d 669, 671-72 (Fla. 4th DCA 2003) (citing Pinellas Cnty. v. Robertson, 490 So.2d 1041, 1042 (Fla. 2d DCA 1986)). Failure of the principal to timely appear constitutes a breach by the surety of its obligations under the bond and triggers forfeiture of the bond under chapter 903, Florida Statutes. § 903.045, Fla. Stat. (2011); Bd. ofCom/m’rs of Brevard v. Barber Bonding Agency, 860 So.2d 10, 11-12 (Fla. 5th DCA 2003) (“Parties’ rights and remedies regarding discharge of forfeited bonds and remission of part or all of the funds forfeited are currently governed by statutes and the courts are limited by their provisions.”). At this juncture, we note that if the principal appears on the specified date, albeit beyond the specified time, the trial court will have the discretion in the interest of justice to set aside any forfeiture of the bond that may have been entered. § 903.26(2)(b), Fla. Stat. (2011). Late appearance beyond the specified date, however, constitutes a forfeiture and “the court shall not preclude entry of such forfeiture by the clerk.” Id. Hence, we must look to the statutory provisions governing forfeitures in chapter 903 to determine the appropriate procedures governing forfeitures and the courses of action the surety is authorized to take after the bond has been forfeited and notice of the forfeiture has been provided to the surety. These procedures will generally determine whether a proper order or judgment has been rendered that bestows jurisdiction upon the appellate court.

The events that trigger application of the forfeiture procedures generally occur when the bond is breached. In the event the breach is committed by an absconding principal who fails to appear in court when required, as Diaz did in the instant case, a forfeiture will automatically be entered by the clerk and notice of the forfeiture will be mailed to the surety within five days. § 903.26(2)(a)-(b), Fla. Stat. (2011). At this juncture, absent a tardy appearance on the specified date by the principal and the trial court’s discretionary decision to set aside any forfeiture that may have been entered, there are three courses of action the surety may take regarding forfeiture proceedings under chapter 903. We will explain them seriatim.

First, the surety may timely pay the forfeiture amount and seek remission under section 903.28. See Hillsborough Cnty. v. Roche Sur. & Cas., Co., Inc., 805 So.2d 937, 939 (Fla. 2d DCA 2001) (“Without payment of the forfeiture, there are no funds for the clerk of the court to remit. Furthermore, failure to pay the forfeiture constitutes a breach of the bond.”); Cnty. of Volusia v. Audet, 682 So.2d 687 (Fla. 5th DCA 1996). Once timely payment is made, and within two years from the forfeiture, the surety may file an application for remission of the forfeiture under the premise that no breach occurred. § 908.28(1), Fla. Stat. (2011). The order either granting or denying remission is a final, appealable order that brings finality to the forfeiture issue.

Second, the surety may file a motion to discharge the forfeiture pursuant to section 903.26(5). However, discharge is limited to the following circumstances: 1) it was impossible for the principal to appear due to circumstances beyond his or her control; 2) the principal was adjudicated insane and was confined at the time scheduled for his or her appearance; or 3) the principal surrenders or is arrested and the delay did not thwart the proper prosecution of the case. § 903.26(5)(a)-(c), Fla. Stat. (2011); see also § 903.26(6), Fla. Stat. (2011) (“The discharge of a forfeiture shall not be ordered for any reason other than as specified herein.”). Since none of these circumstances is present in the instant case, we will discuss them no further.

Third, the surety may elect not to pay the forfeiture within the sixty-day period. If the surety follows this course and the bond is secured other than by money and bonds authorized in section 903.16, the clerk of the circuit court shall enter a judgment against the surety. § 903.27(1), Fla. Stat. (2011). After notice of the judgment by the clerk, the surety may have thirty-five days to pay the judgment amount and.file a motion to set aside the judgment or to stay the judgment. § 903.27(4)-(5), Fla. Stat. (2011). Timely payment of the judgment amount is a condition of the motion. Id. If a motion is filed, the funds paid to the clerk are held in escrow and all further proceedings are stayed until the motion to set aside the judgment is resolved. Id. “The filing of such a motion, when accompanied by the required escrow deposit, shall act as an automatic stay of further proceedings, including execution, until the motion has been heard and a decision rendered by the court.” § 903.27(5), Fla. Stat. (2011). Failure to pay the judgment within thirty-five days results in a bar against the surety to execute future bail bonds, and the clerk shall furnish the Department of Financial Services, the Office of Insurance Regulations, and the applicable county sheriff with two copies of the judgment and a certificate stating that the judgment remains unsatisfied. § 903.27(1), (3), Fla. Stat. (2011).

Here, Polakoff did not file a motion for remission pursuant to section 903.28(1) or a motion to set aside judgment pursuant to the pertinent provisions of section 903.27. Instead, Polakoff filed a Motion to Set Aside Bond Forfeitures and Discharge Bonds. While motions to discharge forfeiture are authorized under section 903.26(5), that statute applies to a very limited number of circumstances that are inapplicable to the instant case. When that motion was denied, Polakoff filed a Motion to Reconsider and, after that motion was denied, Polakoff filed a Notice of Appeal of the order denying reconsideration. Rather than follow the appropriate statutory procedures, Polakoff embarked upon an unehartered procedural path that led to an order that is not reviewable.

Polakoff argues that this court has affixed its judicial imprimatur to the procedure it followed, citing Mike Snapp Bail Bonds v. Orange County, 913 So.2d 88 (Fla. 5th DCA 2005), to support that contention. Our reading of Snapp leads us to conclude that Snapp neither approves of the procedural course Polakoff took nor dictates an answer to the jurisdictional question before us. Snapp is so factually different and distinguishable from the instant case, it is of little precedential value in resolving the issue before us.

This case amply demonstrates the pitfalls that may be encountered when a bail bond agent fails to comply with the statutory procedures and requirements contained in chapter 903. Those who elect to follow a different course proceed at their own risk. We conclude that we do not have jurisdiction to review the order denying reconsideration presented by Polakoff, and we dismiss this appeal.

DISMISSED.

PALMER and EVANDER, JJ., concur.

      . In 2006, the Legislature amended section 903.02(4), Florida Statutes, to provide that "[a]ny judge setting or granting monetary bail shall set a separate and specific bail amount for each charge or offense. When bail is posted, each charge or offense requires a separate bond.” Ch. 2006-279, § 1, Laws of Fla. Prior to that amendment, courts could set one blanket bond covering all charges in a particular case.

      . The trial court did grant the motion only as to the original charge that the State omitted from the Information.

      . This court in Audet applied the prior versions of the pertinent statutes that contained a thirty-five day period. For example, prior to the 2000 amendment of section 903.26(2)(a)', Florida Statutes, that section required that the forfeiture be paid within thirty-five days of the date the notice was mailed by the clerk. The amendment changed the time period to sixty days. Ch. 2000-178, § 4, Laws of Fla. The pertinent time periods contained in section 903.26 were changed from thirty-five days to sixty days via amendment to the statute in 1999. Ch. 99-303, § 4, Laws of Fla.; see also Frontier Ins. Co. v. State, 760 So.2d 299, 300 n. 1 (Fla. 3d DCA 2000) (noting the amendment).

      . Within this two-year period, the surety may seek various levels of partial repayment depending on the timeframe of the principal’s surrender after the forfeiture. See § 903.28(2)-(6), Fla. Stat. (2011). The application must be accompanied by- supporting affidavits and the clerk and the state attorney must be given twenty days’ notice before the application may be heard. See § 903.28(8), Fla. Stat. (2011). The clerk of the circuit court is the real party interest in appeals arising from forfeiture proceedings. § 903.28(10), Fla. Stat. (2011).


author: WOLF, J.

text:
    Octavius WARE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4502.
    District Court of Appeal of Florida, First District.
    April 16, 2013.

      Octavius D. Ware, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant, Octavius Ware, raises a number of issues concerning the order denying his motion for postconviction relief from a finding of violation of probation (VOP). We find one has merit and requires remand for a new evidentiary postconviction hearing. The trial court abused its discretion in denying appellant’s motion for appointment of counsel for the evidentiary hearing.

The finding of a violation of probation was based on a new law violation, domestic battery. A review of the transcript in the VOP case indicates that, while the trial court relied on corroborating evidence, the finding of violation was at least partially based on a sworn statement given by the alleged victim at the time of the incident. At the violation hearing, the alleged victim testified that she lied to the police in her written statement given at the scene. She essentially admitted to being the aggressor in the fight and that most of her injuries were as a result of a fight two days earlier with another person. While there was sufficient evidence presented to find appellant guilty of violation of probation, see Ware v. State, 54 So.3d 1074 (Fla. 1st DCA 2011) (affirming Ware’s revocation of probation), it is the actions of the state attorney’s office after the violation hearing that are of concern in this case.

After the violation hearing, the state attorney’s office charged the alleged victim with and obtained a conviction for perjury based on her statements connected to the domestic battery incident and at the subsequent violation of probation hearing. It is unclear from the record before us whether she was prosecuted for a violation of section 837.021, Florida Statutes (2008), felony perjury by contradictory statements; section 837.012, Florida Statutes, misdemeanor perjury when not in an official proceeding; or section 837.05, Florida Statutes, misdemeanor false reports to law enforcement authorities. Based on the record before us, it appears that the alleged victim was never charged with a violation of section 837.02, Florida Statutes, felony perjury in official proceedings for making a false statement at the VOP hearing.

At the postconviction hearing, after appellant’s renewed motion for appointment of counsel was denied, appellant questioned the investigator who interviewed the alleged victim prior to the VOP hearing. He testified he investigated the victim with an eye toward prosecuting her for perjury because she had produced an un-sworn statement essentially recanting her sworn statement to police and admitting she had lied to the police. The investigator was also the affiant to the alleged victim’s probable cause affidavit on which her arrest warrant was based. The investigator claimed the victim was charged with a violation of section 837.021, perjury by contradictory statements, which he claimed was a misdemeanor, but appellant pointed out at the hearing that she was charged with a violation of section 837.012, perjury not in an official proceeding, which he believed referred to the statement to police. The investigator testified that he believed she lied at the VOP hearing which would have been a violation of 837.02, perjury in official proceedings, but claimed it was “easier” to prosecute her for the two conflicting sworn statements, which he again claimed was a misdemeanor charge. On cross-examination by the State, the investigator admitted he signed the probable cause affidavit against the victim for misdemeanor perjury “not in an official proceeding” after she testified at the VOP hearing inconsistently with her statement to police, which would appear to be a contradiction of his earlier testimony regarding the charge against the victim. He also admitted that the victim was subsequently arrested and convicted for perjury. The probable cause affidavit in the record on appeal indicates the victim was charged with a violation of section 837.012 “Misdemeanor 1st Degree, Perjury Not in Official Proceeding.” It states that the victim testified under oath during the VOP hearing that she lied about all of the written issues in the original sworn written statement to police. No documentation was introduced concerning the alleged victim’s charging information or conviction, but it appears it was for a misdemeanor — not a felony. Appellant attempted to subpoena the assistant state attorney involved and proffered questions for examination, but his request for a subpoena was denied.

Appellant argued that the alleged victim’s subsequent prosecution and conviction for perjury “not in an official proceeding” indicated her statement to police was perjury and constituted newly discovered evidence, and, had it been in existence at the time of the VOP hearing, the State would have been barred from tendering the perjured hearsay statement.

At the end of the hearing, the court ruled on appellant’s argument that the alleged perjured testimony was newly discovered evidence, finding that the arrest warrant for the victim was not in existence at the time of the VOP hearing, and while the decision to charge the victim was made after the hearing, her prosecution should not have come as a surprise. The court found even if her prosecution and conviction were newly discovered evidence, it was not likely to change the outcome of the VOP proceeding because the victim told multiple different stories. The court rejected any argument that the State knowingly used perjured testimony and opined that the probable cause affidavit against the victim includes a typographical error, that instead of citing section 837.012, for perjury not in an official proceeding, it should be section 837.021, for perjury by contradictory statements. The court went on to point out that, regardless of any error in the probable cause affidavit, the investigator testified that the theory of prosecution was that the victim made two contradictory statements. The court also commented that he did not believe the original statement to police was perjury.

We find the record contains no direct evidence of a typographical error on the probable cause affidavit, and in fact we note the evidence that the victim was charged with misdemeanor perjury would indicate an inconsistency with the investigator’s recollection that the “easier” path to prosecute the victim was to charge her for contradictory statements, a felony perjury offense he mistakenly believed was a misdemeanor offense.

“Decisions denying postconviction counsel are reviewed for an abuse of discretion.” Simmons v. State, 99 So.3d 620, 623 (Fla. 1st DCA 2012). The trial court abuses this discretion when, under the circumstances of a particular case, “the assistance of counsel is essential to accomplish a fair and thorough presentation” of a defendant’s claim for collateral relief. State v. Weeks, 166 So.2d 892, 897 (Fla.1964); see also Woodward v. State, 992 So.2d 391 (Fla. 1st DCA 2008).

Under Graham v. State, 372 So.2d 1363 (Fla.1979), in deciding whether to appoint counsel for an indigent defendant filing a postconviction motion, the trial court should consider: (1) the adversary nature of the proceeding; (2) its complexity; (3) the need for an evidentiary hearing; and (4) the need for substantial legal research. Appellant argues that the granting of the evidentiary hearing met the first and third prongs.

While appellant mainly argues the question of the alleged perjured testimony in terms of newly discovered evidence, we determine that the proper presentation of the conflicting evidence related to the subsequent perjury prosecution and the legal effect of the evidence on the prior proceeding were both complex and required substantial legal research and analysis.

Prosecutors are precluded from presenting evidence that they believe is false. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Johnson v. State, 44 So.3d 51 (Fla. 2010). Thus, the factual issue of whether the perjury prosecution was based on the falsity of the victim’s statement given at the scene and the potential legal effect of such prosecution on appellant’s VOP hearing must be explored by the trial court after a hearing where appellant is represented by counsel.

REVERSED and REMANDED.

BENTON, C.J., and SWANSON, J„ concur.

      . We are aware that another panel of this court has affirmed the denial of a motion for postconviction relief from Mr. Ware’s entry of a plea regarding the charges on which his violation of probation was based, Case No. ID 12-3738. Given the substantially different burdens and concerns at issue in a VOP hearing versus a plea hearing, our decision in this case has no effect on the disposition in that case, nor are we willing to speculate what effect that decision will have on the remanded proceedings in this case.

      . We reject this finding by the lower court in light of the fact that the trial court expressly recognized its authority to consider the hearsay statement of the victim in a VOP proceeding. In addition, other than the victim’s statement to police, there is no other direct evidence of domestic battery.

      . The fact that the prosecutor may have made the decision to pursue the perjury charge after the VOP hearing does not preclude it from being newly discovered evidence that may be considered at the postconviction proceeding. See Wyatt v. State, 71 So.3d 86, 100 (Fla.2011) (the "requirement” that evidence must exist at the time of trial has never been part of the newly discovered evidence analysis).


author: ROWE, J.

text:
    Carlos SPARAGA, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1525.
    District Court of Appeal of Florida, First District.
    April 16, 2013.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

Carlos Sparaga appeals his judgment and sentence upon violation of probation, raising two issues: Whether the trial court erred by failing to conduct an adequate Faretta hearing, and whether the trial court erred in finding that he violated his probation. Because we conclude that the trial court erred by failing to conduct an adequate Faretta hearing, we do not reach the second issue.

Carlos Sparaga, pled no contest to two counts of neglect of a child. Sparaga entered into a negotiated plea with the state and was sentenced pursuant to the agreement to four years’ probation. On November 7, 2011, the state filed an affidavit alleging violation of probation by lewd or lascivious exhibition in the presence of a child.

On January 18, 2012, at the first scheduled hearing on the violation of probation, Sparaga’s appointed counsel informed the court that Sparaga wished to continue the case until he could procure private counsel. The court questioned Sparaga about his decision to discharge appointed counsel and hire private counsel, informing Spara-ga that if he did not retain counsel, he would be representing himself:

THE COURT: You understand this court if it does grant your continuance today it will be until February 8th. This court is not going to continue this [case] indefinitely for you to hire private counsel. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: You will be either representing yourself or have a private attorney that will be representing you. Do you understand that, sir?
THE DEFENDANT: Yes.

The court discharged court-appointed counsel, advising Sparaga again that there would be no more continuances, and if he had not obtained counsel by the date of the next scheduled hearing, he would be representing himself:

THE COURT: All right, Mr. Sparaga, based upon your request I am going to discharge the Public Defender’s Office from representing you any further and you are now at this juncture required to either hire private counsel as you have told me you will be doing and that private attorney must be here on February 8th.You’re either going to be representing yourself on that day or you will have an attorney with you, sir, because that is what you have chosen to do.

At the next scheduled hearing, on February 8, 2012, Sparaga had not yet retained counsel. Sparaga informed the court that he was “in the process” of retaining an attorney, but had not hired one yet. Under the circumstances, the court continued the hearing to March 14, 2012, with another warning to Sparaga that the court would not continue the case again, and if he did not show up with an attorney at the March 14 hearing, Sparaga would be representing himself:

[T]he court is going to set this matter for an evidentiary hearing in March. Now let me be very clear and let the record be very clear that if you do not have an attorney as we come back for the March 14th evidentiary hearing date you will be representing yourself. The court will not continue this any further and the court does have an expectation that this matter is going to be heard as far as an evidentiary hearing on that date. I think the court has been very generous with you. I will be generous one last time, sir, but at that time if you’re unable to have counsel with you at that time you will be representing yourself, sir.

At the March 14, 2012, hearing, Sparaga told the court that he had an attorney, Zack White, but he didn’t know where Mr. White was. Upon questioning, the court learned that Sparaga had not contracted with Mr. White, nor had Mr. White filed a notice of appearance:

THE COURT: [T]he Court had given you until this date to either have counsel or to be prepared to proceed without counsel. Do you have counsel?
THE DEFENDANT: I have Zack White here. I don’t know where he went to.
THE COURT: Did you retain him? Did you pay him money and enter a contract with him?
THE DEFENDANT: I didn’t sign the contract, no.
THE COURT: Okay. Well, the Court is going to proceed then with the eviden-tiary hearing at this time. If he has not filed his notice of appearance on your behalf, you are still represented by yourself. So I’m going to hear evidence today on the violation of probation.

The court proceeded to hear the testimony of the state’s witnesses and allowed Spara-ga to question the state’s witnesses, and at the end of the state’s case, the court asked Mr. Sparaga if he had any witnesses in his defense, to which Sparaga responded that he was not prepared because he thought he would have an attorney present at the hearing. The court again reminded Spara-ga that he had been given time to obtain counsel, and he was expected to be prepared for the hearing:

THE COURT: All right. Mr. Sparaga, the Court, on three separate occasions, had continued this matter, so that you could obtain counsel. You were advised specifically at the last time that we were together that you would appear here today with an attorney or be prepared to proceed without an attorney. The Court was specifically advised by Mr. White that he had not been retained by you to represent you in this matter.
THE DEFENDANT: See, I didn’t, I don’t understand this.
THE COURT: Well, he’s not filed a notice of appearance and that’s what the Court has to go by. So you do have the right to choose to testify here today. If your witnesses aren’t here, today was the day to have them here based upon my warnings to you the last time you were in court, so if they’re not here that is [] no fault of the Court. That’s through your fault and yours alone, sir. Do you wish to testify here today?
THE DEFENDANT: I would like to say that I didn’t have access to a law library at Holmes County Jail and I didn’t know what to do.

The court denied “any request to continue” and allowed Sparaga to take the stand to testify in his own behalf. Following the hearing, the trial court found that the state had established by the greater weight of the evidence that Sparaga had violated his probation. The court revoked Sparaga’s supervision, adjudicated him guilty, and sentenced him to five years in prison on each count of child neglect, to be served concurrently.

The standard of review for a trial court’s handling of a request for self-representation is abuse of discretion. McCray v. State, 71 So.3d 848 (Fla.2011). However, a trial court’s failure to conduct a Far-etta hearing prior to allowing a defendant to appear without counsel is per se reversible error. Id. at 864; Cleveland v. State, 87 So.3d 813 (Fla. 1st DCA 2012).

Under Faretta and its progeny, when a defendant clearly asserts a desire for self-representation at a critical stage, the trial court is obligated to conduct an inquiry to determine if the defendant is knowingly and intelligently waiving his right to counsel and is “aware of the dangers and disadvantages of self-representation.” Wilson v. State, 947 So.2d 1225, 1226 (Fla. 1st DCA 2007) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (1975)); Fla. R. Crim. P. 3.111(d). In this case, however, the record demonstrates that Sparaga neither waived his right to counsel, nor asserted a right of self-representation. Although the right to counsel is in force until waived, the right of self-representation does not attach until asserted. See Frazier v. State, 453 So.2d 95, 96 (Fla. 5th DCA 1984) (citing Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir.1982)). Thus, by neither asserting the right to self-representation nor waiving the right to appointed counsel, Sparaga created a difficult situation for the trial court.

In Jones v. State, 449 So.2d 253 (Fla. 1984), the supreme court provided guidance to Florida courts in how to deal with the kind of impasse which occurred in this case. There, the supreme court makes it clear that a “contumacious” defendant’s decision to neither assert the right to self-representation nor waive the right to counsel may not be used as a device “to abuse the dignity of the court or to frustrate orderly proceedings.” Id. at 258-59. Under such circumstances, the supreme court advises that a defendant is presumed to be exercising the right to self-representation, and the trial court should proceed to a Faretta inquiry:

[W]hatever his motivation, defendant burdened and delayed the court by his vacillation in not unequivocally choosing between court-appointed counsel, proceeding pro se, or obtaining his own counsel of choice.... As a matter of guidance, defendants who without good cause refuse appointed counsel but do not provide their own counsel are presumed to be exercising their right to self-representation. They should be so advised and the trial court should forthwith proceed to a Faretta inquiry.

Id. at 258 (emphasis added). Thus, under the guidance of the supreme court in Jones, the trial court here properly deemed that Sparaga had asserted his right to self-representation by refusing appointed counsel and not obtaining private counsel; however, the court reversibly erred by failing to conduct a Faretta inquiry before allowing Sparaga to proceed without counsel.

In Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982), this court reversed and remanded for a new trial where the defendant never requested to act as his own counsel, but was forced to do so. See also Clark v. State, 442 So.2d 1044 (Fla. 4th DCA 1983) (reversing and remanding for new trial where record did not reflect knowing and intelligent waiver of constitutional right to assistance of counsel).

In Mansfield v. State, 430 So.2d 586 (Fla. 4th DCA 1983), the Fourth District held that the trial court erred by requiring the defendant to select a jury without counsel where the defendant had not waived his right to counsel. Id. at 587. In Mansfield, as here, where the defendant refused appointed counsel, failed to obtain private counsel, and then professed incompetence for self-representation, the Fourth District reiterated for “recalcitrant defendants” that “[t]hey are not entitled to friction-free representation,” and such defendants “simply do not have the option of frustrating the criminal justice system.” Id. at 588.

Under the guidance of the supreme court in Jones, we hold it was reversible error for the trial court to compel Sparaga to proceed without counsel in the absence of an adequate Faretta inquiry. We REVERSE AND REMAND for a new trial.

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

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Florida Rule of Criminal Procedure 3.111(d)(2) requires the trial court to inquire into a defendant's comprehension of the offer of assistance of counsel before accepting a waiver of counsel: "A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver.”

      . In Jones, the defendant argued, among other things, that the trial court failed to conduct a proper inquiry regarding a waiver of counsel and required him to proceed pro se when he had not waived his right to legal representation even though he had discharged appointed counsel.

      . Keene was receded from on different grounds in Hughes v. State, 701 So.2d 378, 379 (Fla. 1st DCA 1997).


author: PER CURIAM.

text:
    Jeffery SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1032.
    District Court of Appeal of Florida, First District.
    April 16, 2013.
    Jeffery Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. RApp. P. 9.140(b)(3). The dismissal is without prejudice to file a request for belated appeal that complies with Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Bruno CANNELLA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6170.
    District Court of Appeal of Florida, First District.
    April 16, 2013.
    Bruno Cannella, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the October 11, 2012, order denying the motion for post-conviction relief, in Santa Rosa County Circuit Court case number 2007-CF-1474. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    John COATES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5398.
    District Court of Appeal of Florida, First District.
    April 16, 2013.
    John Coates, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. At the time the trial court issued its order denying the motion, the appellant’s direct appeal was pending in this court. As the state concedes, the trial court lacked jurisdiction to deny the motion during the pendency of the direct appeal. See Daniels v. State, 712 So.2d 765 (Fla.1998); Arnett v. State, 101 So.3d 1280 (Fla. 1st DCA 2012).

Accordingly, we vacate the trial court’s order denying the rule 3.850 motion with instructions to permit the appellant to refile the motion without prejudice.

VACATED and REMANDED with directions.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    John P. DODSON, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D12-5321.
    District Court of Appeal of Florida, First District.
    April 16, 2013.

      David M. Robbins and Susan Z. Cohen of .Epstein & Robbins, Jacksonville, for Petitioner.
    Damaris E. Reynolds, Lake Worth, for Respondent.
   PER CURIAM.

John P. Dodson petitions this Court for a writ of certiorari to review a circuit court order that denied his petition for writ of certiorari. The circuit court’s denial affirmed an administrative hearing officer’s decision that sustained the suspension of the petitioner’s driver’s license. The Department of Highway Safety and Motor Vehicles (the Department) suspended the petitioner’s driver’s license after a breath test revealed he had been driving under the influence of an alcoholic beverage. We grant the petition in accordance with Florida Department of Highway Safety and Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011).

On second-tier certiorari review, this Court’s review is limited to determining whether the trial court afforded the parties procedural due process and whether it applied the correct law or departed from the essential requirements of the law. See State, Dep't of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011). Second-tier certiora-ri should not be used simply to grant a second appeal. See id. It should be reserved for those cases where there has been a violation of a clearly established principle of law that resulted in a miscarriage of justice. See id.

During the administrative hearing on the petitioner’s suspended driver’s license, the administrative hearing officer refused to consider the lawfulness of arrest as part of the scope of review. However, in Hernandez, the Florida Supreme Court concluded that an administrative hearing officer is allowed to make the determination of whether a breath test was administered incident to a lawful arrest. 74 So.3d at 1079-80 (“[A] driver is on notice that he or she must consent to a breath test or else face suspension of his or her driver’s license only if the test is administered incident to a lawful arrest.”). Although the facts of Hernandez involved a refusal to consent to a breath test, the holding is clearly not limited to refusals. Accordingly, the hearing officer’s refusal to consider the lawfulness of the arrest departed from the essential requirements of the law. The petition for writ of certio-rari is granted, and the decision of the trial court is hereby quashed.

PADOVANO, CLARK, and SWANSON, JJ., concur.


text:
    Christopher BAITY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4286.
    District Court of Appeal of Florida, First District.
    April 16, 2013.

      Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentences without discussion. However, the trial court could not impose the additional surcharge of $20 pursuant to section 938.06(1), Florida Statutes (2009), because the court struck all fines imposed on appellant when it granted his rule 3.800(b)(2) motion. Sanders v. State, 101 So.3d 373, 376-77 (Fla. 1st DCA 2012). In addition, the trial court could not enhance appellant’s second-degree felony murder conviction to a life felony under section 775.087(1), Florida Statutes (2009), because use of a firearm was an essential element of the underlying felony of attempted armed robbery with a firearm. See Traylor v. State, 785 So.2d 1179 (Fla. 2000). Accordingly, we remand with directions that the trial court strike the additional $20 surcharge and correct the written judgment and sentence to reflect appellant’s second-degree felony murder conviction was for a first-degree felony punishable by life imprisonment.

AFFIRMED and REMANDED with directions.

BENTON, C.J., WOLF and SWANSON, JJ., concur.


text:
    Michael Louis REESE, Appellant, v. ROBERT E. EDDINGTON, P.A., Appellee.
    No. 5D12-3964.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2013.
    Rehearing Denied April 29 and May 7, 2013.
    Michael L. Reese, Live Oak, pro se.
    Bruce A. Hanna and Katherine Hurst Miller of Cobb Cole, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. Gibson, 837 So.2d 481 (Fla. 5th DCA 2002).

TORPY, LAWSON and JACOBUS, JJ., concur.


author: WALLACE, Judge.

text:
    S.W. FLORIDA PARADISE PROPERTY, INC., a Florida corporation, Petitioner, v. Gary D. SEGELKE and Cheryl S. Warner, Respondents.
    No. 2D12-4539.
    District Court of Appeal of Florida, Second District.
    April 17, 2013.

      Billy Joe L. McFarland, Cape Coral, for Petitioner.
    Albert J. Tiseo, Jr., of Goldman, Tiseo & Sturges, P.A., Port Charlotte, for Respondents.
   WALLACE, Judge.

S.W. Florida Paradise Property, Inc., a Florida corporation (Paradise Property), petitions for certiorari review of the circuit court’s order denying its motion for protective order and ruling that all of its postjudgment pleadings “will be treated as a nullity” because of a default and a judgment after default entered against Paradise Property in the underlying action. Because the order under review will cause irreparable harm to Paradise Property and imposes a procedural bar that does not flow from a default, we grant the writ and quash the order.

Respondents’ predecessor in interest obtained a default and a final judgment of foreclosure after default against Paradise Property in the underlying mortgage foreclosure action. After the clerk of the court sold the subject property, the Respondents obtained a deficiency judgment against Paradise Property. In postjudgment enforcement proceedings, the Respondents served a subpoena duces tecum for deposition in aid of execution on Hernán Pineda as president and registered agent of Paradise Property. The subpoena required Mr. Pineda to appear for deposition in Charlotte County, Florida, and to produce at the deposition his “personal financial, business and property records and all other papers, passbooks, titles, registrations, record books, and books of account which tend to disclose the extent and nature of financial interest, property and property rights owned by you, either individually, jointly and/or beneficially,” among other things. Notably, Mr. Pineda is not a party to the underlying action, and the deficiency judgment does not name him as a judgment debtor. The deficiency judgment is against Paradise Property only, not against Mr. Pineda.

Paradise Property filed a motion for protective order seeking to require Mr. Pineda’s deposition to be held in Lee County, where he resides, and to protect him from being required to produce his personal financial records. At the hearing on Paradise Property’s motion, the circuit court found that the default previously entered against Paradise Property in the underlying mortgage foreclosure action precluded Paradise Property from filing any pleadings or making any argument concerning any postjudgment matter in the case. Accordingly, it entered an order striking or denying Paradise Property’s motion without considering it on the merits. The order states further that Paradise Property is precluded from filing any more pleadings in the action and that any pleadings it files “will be treated as a nullity.”

“A petition for writ of certiorari is the appropriate method to review a discovery order when the order departs from the essential requirements of the law, causes material injury throughout the remainder of the proceedings below, and effectively leaves no adequate remedy on appeal.” Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006) (citing Nussbaumer v. State, 882 So.2d 1067, 1071 (Fla. 2d DCA 2004)). Here, the circuit court denied Paradise Property’s motion for protective order without considering its merits, thereby denying Paradise Property procedural due process. Not only did the circuit court decline to consider Paradise Property’s motion for protective order on the merits, it ruled that any pleading filed by Paradise Property in the underlying matter would “be treated as a nullity,” thereby prospectively denying Paradise Property procedural due process throughout the remainder of the underlying proceedings. Such a complete denial of due process to Paradise Property in connection with the proceedings in aid of execution constitutes the type of irreparable harm that is subject to certiorari review. See KG. v. Fla. Dep’t of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011) (observing in the context of a petition for certiorari review from a shelter order that if the mother’s allegation that she was denied an opportunity to be heard on the petition were true, it would concern the type of harm that would be irreparable unless immediately addressed; otherwise “the entire proceeding [would be] based on a denial of [the mother’s] due process rights”).

Moreover, Mr. Pineda is not a party to the underlying action, and he should not be required to risk contempt for failure to appear at his deposition or for failing to produce the requested documents before having the opportunity to challenge the subpoena duces tecum for deposition. See Briggs v. Saldnes, 392 So.2d 263, 266 (Fla. 2d DCA 1980); see also Nussbau-mer, 882 So.2d at 1072 (citing Briggs for the foregoing proposition). If Mr. Pineda is wrongfully required to produce his personal financial records or if he is wrongfully required to appear for deposition somewhere other than his county of residence, he would not be able to obtain relief from that harm on subsequent appeal. See Rappoport v. Mercantile Bank, 17 So.3d 902, 906 (Fla. 2d DCA 2009) (observing “that the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant” (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002))); Triple Fish Am., Inc. v. Triple Fish Int’l, L.C., 839 So.2d 913, 914 n. 1 (Fla. 5th DCA 2003) (“Certiorari review is available to review trial court orders requiring that depositions take place at an erroneous location.”); see also Briggs, 392 So.2d at 266 (observing that a nonparty has no adequate remedy for harm caused by an erroneous discovery order on appeal from a final judgment because he or she is not a party to the proceeding in which the final judgment will be entered). Accordingly, the jurisdictional element for certiorari review is satisfied.

We also conclude that the circuit court’s order departs from the essential requirements of the law. The circuit court prevented Paradise Property from challenging the subpoena or from filing any other pleadings in the case. In so doing, the circuit court adopted a drastically expansive view of the consequences of a default that departs from the essential requirements of the law.

A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings, but forced inferences will not. The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive law applicable to the pleadings. A party in default may rely on these limitations. If the party seeking affirmative relief wants to assert a new or additional claim, it must be served on the party in default in the same manner as the initial pleading and he must be given an opportunity to defend against the claim. The effect of the admissions made by entry of a default is for purposes of the pending action only.

Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure § 25:4, at 457 (2012-2013 ed.) (emphasis added) (footnotes omitted); see also Hogan v. Garceau, 880 So.2d 823, 824 (Fla. 5th DCA 2004) (noting same); Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231, 1233 (Fla. 1st DCA 1995) (noting same). Thus, while the entry of a default may preclude the defaulting party from challenging the well-pleaded allegations of the complaint, it does not bar the defaulting party from challenging errors occurring in postjudgment proceedings or other matters for which it is not bound under the well-pleaded allegations of the complaint.

For example, in Household Finance Services, Inc. v. Bank of America, N.A., 883 So.2d 346 (Fla. 4th DCA 2004), the Fourth District addressed whether the Bank could assert its entitlement to the surplus funds remaining after a foreclosure sale as a junior mortgagee, even though the Bank had defaulted in the underlying foreclosure action. In that case, the plaintiff instituted a mortgage foreclosure action against the mortgagor and others, including the Bank, which held a mortgage interest in the subject property that was inferior to the plaintiffs lien. The Bank defaulted in the foreclosure action by failing to file an answer, and the plaintiff proceeded to a judgment of foreclosure and sold the subject property. The plaintiff received the amount of its judgment, and the clerk retained the remaining proceeds pending further order by the court. Id. at 347.

When the defendant mortgagor’s assign-ee, Household Financial, filed a motion requesting an order for the disbursement of the surplus funds to it, the Bank filed a notice of appearance and a motion to disburse the surplus funds to it under its second mortgage. The trial court held that the Bank’s lien was superior to Household Financial’s lien, and Household Financial appealed. Id. at 347-48. On appeal, the Fourth District observed that, generally, encumbrances on mortgaged property inferior to the mortgage on which a sale is based are paid in the order in which they became liens, unless equity otherwise requires. The appellate court rejected Household Financial’s argument that the Bank’s default on the foreclosure complaint precluded it from claiming entitlement to the surplus from the foreclosure sale. In so doing, the court noted that “[a] default admits only the well pled allegations of the complaint. Thus, when the Bank defaulted, all it admitted was the superiority of [the plaintiffs] lien to its own and [the plaintiffs] right to foreclose the Bank’s lien interest in the property.” Id. at 348.

Here, Paradise Property’s motion for protective order is unrelated to its admitted liability resulting from the default for failing to pay the underlying note as alleged in the foreclosure complaint. The allegations of the complaint do not address the unrelated issues of whether Mr. Pine-da should be required to attend a deposition in Charlotte County or whether he should be required to produce his personal financial records to aid the Respondents in collecting a judgment against Paradise Property. Thus Paradise Property’s default, which admitted the well-pleaded allegations of the foreclosure complaint, does not preclude it from seeking a protective order on behalf of Mr. Pineda, a nonparty who is not bound by the default, or from raising issues that are not resolved by the admitted allegations of the complaint. Moreover, it is conceivable that other issues may arise in the context of these proceedings in aid of execution that are not controlled by Paradise Property’s admissions under the default. Accordingly, the circuit court departed from the essential requirements of the law when it precluded Paradise Property from filing any other pleadings and ruled that any pleadings filed would “be treated as a nullity.”

For the foregoing reasons, we grant the petition, quash the order under review, and remand this case to the circuit court for further proceedings.

Writ granted, order quashed, and case remanded.

SILBERMAN, C.J., and BLACK, J., Concur.

      . Mr. Pineda executed the note and mortgage attached to the complaint as its president. The complaint does not further identify Mr. Pineda or allege that he is responsible for the deficiency owed by Paradise Property.

      . Neither Paradise Property nor the Respondents addressed in the circuit court or in this appeal whether Paradise Property has standing to object on behalf of Mr. Pineda to the location of his deposition or to the subpoena requiring him to produce his personal financial records. Accordingly, we do not reach this issue.

      . The order states that Paradise Property’s motion is ''stricken and/or denied.”


author: LaROSE, Judge.

text:
    Donna L. VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1202.
    District Court of Appeal of Florida, Second District.
    April 17, 2013.

      Joseph Gardner Dato of Joseph Gardner Dato, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Donna L. Vasquez appeals her judgments and sentences for (1) racketeering conspiracy by possessing, delivering, or purchasing heroin or facilitating those acts, and (2) conspiracy to possess heroin. See §§ 895.02(1), 895.03(3), (4), 893.13(6)(a), Fla. Stat. (2008-09). We have jurisdiction. See Fla. R.App. P. 9.140(b)(1)(A). We affirm in part and reverse in part.

The State filed a seven-count superseding information against nineteen people, which included the two counts at issue against Ms. Vasquez. She proceeded to jury trial with two codefendants on count II, the racketeering (RICO) conspiracy, and count IV, conspiracy to deliver. She purchased heroin on numerous occasions that are alleged in the superseding information as the predicate RICO offenses under count I. The State’s evidence against Ms. Vasquez centered on her meetings with and phone calls to other charged individuals to obtain heroin, presumably for her use.

Ms. Vasquez argues that the trial court erred in denying her judgment of acquittal motion on the RICO conspiracy charge because the State failed to establish that she was “associated with” the RICO enterprise. She asserts that she was only a buyer of drugs for her personal use with no intention of engaging in a RICO conspiracy.

We review the denial of the motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); State v. Fagan, 857 So.2d 320, 321 (Fla. 2d DCA 2003). We affirm on this issue. In Gross v. State, 765 So.2d 39, 44 (Fla.2000), the supreme-court noted that RICO reaches groups of individuals “‘whose association, however loose or informal, furnishes a vehicle for the commission of two or more predicate crimes.’ ” Id. (quoting United States v. Cagnina, 697 F.2d 915, 920 (11th Cir.1983)). To prove the existence of a RICO enterprise, the State need only establish (1) an ongoing organization, formal or informal, with a common purpose of engaging in a course of conduct that (2) functions as a continuing unit. Id. at 45. Recognizing the clandestine nature of such enterprises, the supreme court observed that

by their very nature, criminal organizations are, in most instances, not structured like legitimate business entities. For obvious reasons, their activities usually require a great deal of secrecy, minimal exposure, and minimal contact among their members. Accordingly, direct evidence of a structure may be difficult to obtain.... [W]e agree ... that a “jury should be permitted to draw the natural inference arising from circumstantial evidence of association.”

Id. at 45-46 (citations omitted) (quoting United States v. Elliott, 571 F.2d 880, 898 (5th Cir.1978)).

A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense and an intention to commit the offense. Schlicher v. State, 13 So.3d 515, 517 (Fla. 4th DCA 2009). The fact-finder may infer the agreement from the circumstances; direct proof is not. necessary. Generally, Florida courts have affirmed convictions for drug conspiracies where the “defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase.” Id. (quoting Leigh v. State, 967 So.2d 1102, 1104 (Fla. 4th DCA 2007)).

Logic demands that the agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense.... In a buy-sell transaction, that agreement usually does not exist because the buyer and seller each intend to commit a different criminal offense. As a result, there is no criminal conspiracy to pursue a common goal.

Id.

As to counts II and IV, Ms. Vasquez was tried with two of the other many individuals named in the superseding information. Count I, a RICO charge, named all defendants. The jury instructions recited the predicate offenses described in count I. The jury found on count II that “[t]he defendant is guilty of conspiracy to conduct or participate in an enterprise through a pattern of racketeering activity (RICO conspiracy).”

Although we offer no view as to whether the State overcharged Ms. Vasquez, we conclude that this case is similar to Pallin v. State, 965 So.2d 1226, 1227 (Fla. 1st DCA 2007). In the light most favorable to the State, Ms. Vasquez engaged in more than a “buy-sell” arrangement; resolution of count II was properly submitted to the jury-

Ms. Vasquez’s involvement with group members spanned more than a three-month period and involved specific instructions on delivery of the heroin to various locations, often multiple times weekly. The amounts at issue, fourteen to twenty-eight grams and more than twenty-eight grams of heroin, seemingly constituted more than a user’s weekly supply. She apparently dealt with the organization leader and later with other suppliers in the group to consummate the deals.

“Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”

Vargas v. State, 34 So.3d 44, 46 (Fla. 4th DCA 2010) (quoting Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). Compare Davis v. State, 95 So.3d 340, 343 (Fla. 5th DCA 2012) (reversing conspiracy to traffic in cocaine conviction in a non-RICO case where defendant intended only to purchase and possess the cocaine; affirming conviction and sentence for trafficking in cocaine); with Vargas, 34 So.3d at 48 (finding sufficient evidence to show that defendant knew he was joining a criminal enterprise and that he specifically intended to engage in the crimes which the State ultimately charged as the predicate acts for racketeering). Vargas, however, cautioned the State when it decides which persons to charge with racketeering and conspiracy:

Despite our affirmance based on the evidence of this case, we join other courts in cautioning the state to use its prose-cutorial discretion wisely.... See State v. Otte, 887 So.2d 1186, 1190 n. 4 (Fla. 2004) (“[T]he target of RICO Act prosecutions will be [,] appropriately, the professional or career criminal and not non-racketeers who have committed relatively minor crimes.”) (citation omitted); Jackson v. State, 858 So.2d 1211, 1213 (Fla. 3d DCA 2003) (“[T]he concept of enterprise is not to be applied to ‘garden variety criminal undertakings.’ ”) (citation omitted); Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994) (“One danger that lurks in the criminal charge of conspiracy is the tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition.”) (citation omitted).

34 So.3d at 48 n. 1.

Although we affirm as to the RICO conspiracy, count II, we agree, as the State concedes, that Ms. Vasquez cannot stand convicted of both that charge and conspiracy to possess the same heroin, count IV. Such dual convictions violate the double jeopardy clauses of the federal and state constitutions. See Amend. V, U.S. Const. (“[N]or shall any person be subject for the same offen[s]e to be twice put in jeopardy.”); art. I, § 9, Fla. Const. (“No person shall be ... twice put in jeopardy for the same offense.... ”); Rios v. State, 19 So.3d 1004, 1006-07 (Fla. 2d DCA 2009) (holding that convictions for both conspiracy to traffic in heroin and conspiracy to commit RICO violated double jeopardy); Negron Gil de Rubio v. State, 987 So.2d 217, 219 (Fla. 2d DCA 2008) (holding that convictions on multiple conspiracy counts arising from a single agreement violated double jeopardy); Durden v. State, 901 So.2d 967, 968 (Fla. 2d DCA 2005) (“A criminal conspiracy is the agreement to commit a criminal act or acts, and if a single agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses.”). We note that the trial court sentenced Ms. Vasquez to concurrent sentences of equal length on both charges. Given that the lesser punishable offense was for conspiracy to possess heroin, the trial court should vacate that conviction and sentence. See, e.g., Negron Gil de Rubio, 987 So.2d at 219.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA, J., concurs.

KELLY, J., concurs in result only.

      . This latter conviction was a lesser offense from the original charge of conspiracy to deliver heroin. See §§ 893.03(l)(b), 893.135(5).

      . The Florida RICO (Racketeer Influenced and Corrupt Organization) Act. See § 895.01.


author:
WALLACE, Judge. DAVIS, Judge,
      ALTENBERND, Judge,

text:
    Mike COBB, Appellant, v. David DURANDO and Jane Durando, husband and wife, Appellees.
    No. 2D12-1991.
    District Court of Appeal of Florida, Second District.
    April 17, 2013.
    Michael L. Keiber of Michael L. Keiber, P.A., Sebring, for Appellant.
    J. Steven Southwell, II, of Morrell, Watson, Southwell & Mank, Wauchula, for Ap-pellees.
   WALLACE, Judge.

Mike Cobb challenges the circuit court’s award of attorney’s fees to David Durando and Jane Durando following the entry of a judgment in favor of the Durandos on their claim against Mr. Cobb for breach of a contract for roofing services. The Du-randos sought attorney’s fees against Mr. Cobb in accordance with section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442 based on his rejection of their demand for judgment. Because the Durandos’ demand for judgment failed to apportion the amount of their demand between them, we reverse.

The Durandos’ demand for judgment provided, in pertinent part, as follows:

Plaintiffs, David Durando and Jane Durando[] (“Durando”)[,] pursuant to § 768.79, Fla. Stat., demands [sic] judgment against Defendant, MIKE COBB, in the amount of $39,992.31[] (Thirty-Nine Thousand Nine Hundred Ninety Two and 31/100 Dollars), in full settlement of the above captioned case, including prejudgment interest for all claims brought by Durando in the Complaint.

Thus the demand for judgment failed to “state the amount ... attributable to each party,” as required by Florida Rule of Civil Procedure 1.442(c)(3).

The apportionment requirement of rule 1.442(c)(3) is strictly construed, and an offer from multiple plaintiffs must apportion the offer among the plaintiffs. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 279 (Fla.2003); Allstate Ins. Co. v. Materiale, 787 So.2d 173, 175 (Fla. 2d DCA 2001); McElroy v. Whittington, 867 So.2d 1241, 1242-43 (Fla. 4th DCA 2004); Meyer v. Hutchinson, 861 So.2d 1185, 1189 (Fla. 5th DCA 2003). Accordingly, the Durandos’ demand for judgment was invalid because it failed to apportion the demand between Mr. and Mrs. Duran-do.

The Durandos argue that apportionment of their demand was not required because their claim for breach of contract derived from then* ownership of real property as tenants by the entireties; therefore, they conclude that the apportionment of the amount attributable to each party was not feasible. We find this argument unpersuasive for two reasons. First, the Durandos’ claim against Mr. Cobb did not arise directly from their ownership of entireties property. Instead, their claim was for the breach of a contract for roofing services. Second, the rule requiring apportionment of proposals for settlement made by multiple plaintiffs does not recognize an exception for joint proposals made by tenants by the entireties. See Feldkamp v. Long Bay Partners, LLC, No. 2:09-cv-253-FtM-29SPC, 2012 WL 3941773, at *2 (M.D.Fla. Sept. 10, 2012) (holding that a proposal for settlement made by a “husband and wife is not necessarily an offer by ‘one person’ ”); cf. Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371, 372 (Fla. 4th DCA 2006) (rejecting the defendants’ argument that their unapportioned offer of settlement was valid because “they were sued on a ‘single unified claim’ directed at their joint ownership of real property” and holding that a “proposal for settlement as tenants by the entireties does not alter the bright line rule”).

For the foregoing reasons, the trial court erred in awarding the Durandos attorney’s fees based on their unapportioned demand for judgment. It follows that we must reverse the final judgment awarding attorney’s fees to the Durandos based on their invalid demand.

Reversed.

DAVIS, J., Concurs specially with opinion.

ALTENBERND, J., Dissents with opinion.

DAVIS, Judge,

Concurring specially.

Although I find the reasoning expressed by the dissent to be attractive and supported by common sense, I concur with the majority. The case law requires a strict construction of the applicable statute and Florida Rule of Civil Procedure 1.442(c)(3). Feldkamp and Graham hold that a tenancy by the entirety status, such as the one involved in this case, does not exempt the offer from the strict requirement of apportionment between the offerors. Feldkamp, 2012 WL 3941773, at *2; Graham, 928 So.2d at 372. Accordingly, I concur.

ALTENBERND, Judge,

Dissenting.

I recognize that the court’s outcome today is supported by the decisions in Feldkamp v. Long Bay Partners, LLC, No. 2:09-cv-253-FtM-29SPC, 2012 WL 3941778 (M.D.Fla. Sept.10, 2012), and Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371 (Fla. 4th DCA 2006). I further acknowledge my own poor track record at determining when joint or separate proposals are required under Florida Rule of Civil Procedure 1.442. See Barnes v. Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003), disapproved of by Lamb v. Ma-tetzschk, 906 So.2d 1037 (Fla.2005); RDR Computer Consulting Corp. v. Eurodirect, Inc., 884 So.2d 1053 (Fla. 2d DCA 2004), implicitly overruled by Lamb, 906 So.2d 1037, as stated in Easters v. Russell, 942 So.2d 1008, 1009 n. 1 (Fla. 2d DCA 2006). Nevertheless, Mr. and Mrs. Durando jointly own a single cause of action against Mr. Cobb for breach of a single contract to replace the roof on their home. I do not believe we should reverse the trial court’s award of attorney’s fees in this case. I am unconvinced that Florida Rule of Civil Procedure 1.442 must be interpreted to require parties to make proposals to settle that essentially split causes, of action, ignore the doctrine of merger, and serve no practical purpose.

David and Jane Durando are husband and wife. They own a home and an adjacent barn in Hardee County. In August 2004, Hurricane Charley did substantial damage to the property. The Durandos entered into a contract with Mr. Cobb to install new roofing. The contract specified a single amount of $40,000 to remove the old roof and replace it with new roofing. It included another $1400 for “emergency dry-in.” The new roofing leaked. The Durandos eventually had someone else replace the roof for $45,050. The Durandos then sued Mr. Cobb for this amount, describing themselves as husband and wife and attaching Mr. Cobb’s contract. Following a nonjury trial, the trial court found “for the plaintiffs against the defendant in the amount of $49,990.39.”

Following entry of the judgment, the Durandos sought attorney’s fees because Mr. Cobb had rejected their offer of judgment. The language of their offer is accurately recited in the court’s opinion. Interestingly, they use the phrase “demands judgment” instead of “offer judgment.” The discussion at the hearing on the motion indicates that the Durandos’ simply revised a form that Mr. Cobb had served on them first. This form is now rarely used because most lawyers use the language of rule 1.442 and the phrase “proposal for settlement.” Under this older form, the Durandos were not requiring that Mr. Cobb pay them; they simply offered full settlement in exchange for entry of judgment.

I recognize that the supreme court requires this court to construe section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442 strictly because they are in derogation of the common law. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003). I simply do not understand how the requirement for dual offers of judgment in this case does anything to protect the common law.

The Durandos have sustained a single monetary loss. Mrs. Durango cannot logically make a claim for the roofing over the living room, while Mr. Durango demands payment for roofing over the garage. In this context, even the division between the house and the barn does not provide a logical split. Certainly, Mr. Cobb was not confused or placed into an unusual bargaining position by this joint offer, which mirrors his own offer.

If the Durandos had each filed an offer of judgment for $18,500, for example, in compliance with the rule described in Graham, 928 So.2d 371, what would have been the result? If Mr. Cobb had accepted the husband’s offer, a judgment would have been entered in his favor for $18,500. Under the doctrine of merger, this single cause of action would have merged into that judgment. See Whitehurst v. Camp, 699 So.2d 679, 682-83 (Fla.1997); Variety Children’s Hosp. v. Perkins, 445 So.2d 1010, 1012 (Fla.1983); Weston Orlando Park, Inc. v. Fairwinds Credit Union, 86 So.3d 1186 (Fla. 5th DCA 2012). Absent some exceptional legal gymnastics, the wife would not have a cause of action to pursue following this partial payment.

Even if this case involved a proposal for settlement in which a release was contemplated, absent special language in the joint offers and in the first release, the cause of action might be released by a release executed by the first of the two partners who owned the cause of action. See Hennessy v. White Mop Wringer Co., 693 So.2d 1088 (Fla. 2d DCA 1997).

As a practical matter, the contract only has Mr. Durando’s name on it. If the single cause of action could be brought by him individually, I do not understand why this rule of procedure must be interpreted to require two offers of judgment. Likewise, if the offer to settle this claim were divided into two parts, it is not clear to me why Mr. Cobb would ever want to pay to settle an undivided half interest in this cause of action, merely to face further litigation on the other undivided half interest. Protecting the common law seems to have achieved form over substance in this line of cases.

      . The offers used in this case did not expressly discuss punitive damages or attorney's fees, but the case did not involve these issues and Mr. Cobb has not objected to the form as a result of these issues. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362 (emphasizing that section 768.79 and rule 1.442 explicitly require a proposal to state whether fees are included).

      . The rule requiring strict construction of statutes in derogation of the common law is a substantive canon. Substantive canons of construction are controversial. See Peter D. Webster et al., Statutory Construction in Florida: In Search of a Principled Approach, 9 Fla. Coastal L. Rev. 437, 519-21 (2008). I agree that a statute created by the legislature can be construed strictly to preserve the common law that was created by the judiciary prior to the statute. I am not entirely convinced that this substantive canon should be used to narrowly construe a judicial rule of procedure by which a court with common law power has chosen to procedurally implement a statute that changes the common law.


author: GERBER, J.

text:
    Raul COSME, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-1650, 4D09-1652.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his sentences following his violation of probation. He argues that the circuit court fundamentally erred in failing to consider the criminal punishment code scoresheet and sentencing guidelines before imposing the sentences. The state concedes error. We have reviewed the record and recognize some doubt may exist as to what the court may have considered or intended before imposing the sentences. Therefore, we reverse and remand for resentencing.

The defendant pled guilty in two cases to two counts of robbery with a firearm and one count of robbery with a weapon. For each count, the circuit court imposed a youthful offender sentence of incarceration to be followed by probation, with the sentences to run concurrently.

The state later charged the defendant with violating his probation by committing several new crimes. The trial court ultimately found that the defendant violated his probation. At the end of the violation of probation hearing, the court asked the state: “Are there any impediments to sentencing?” The state responded that because the defendant originally was sentenced as a youthful offender, the issue would be whether any limitations would exist for the violation of probation sentence. The court replied: “[T]he sentencing is going to be either the parameters of youthful offender or what [the defendant] could have been sentenced to at the time that the Court [imposed the youthful offender sentence].” The state responded: “[T]he maximum sentence applicable is life ... which the Court is free without the constraints of the criminal punishment code, without any restraint at all to structure as you wish.” (emphasis added).

At sentencing, the state argued that the defendant received a huge break at his original sentencing by receiving a youthful offender sentence instead of a ten-year minimum mandatory sentence for the use of the firearm. The state then requested the court to sentence the defendant to life in prison.

The court recounted the significant breaks which the defendant received for the imposition of the youthful offender sentence. The court then stated: “I think you have been given opportunities, and you did not take advantage of them.” The court revoked the defendant’s probation and sentenced him to concurrent life sentences on all three counts.

After the court pronounced the sentences, the state produced a criminal punishment code scoresheet showing a lowest permissible prison sentence of 12.25 years and a maximum sentence of life in prison. However, in producing the scoresheet, the state remarked: “[T]his is youthful offender ... It’s not a guideline.” The state asked whether the court wanted the score-sheet submitted. The following exchange then occurred:

Court: I think it should be submitted and put on there—
Prosecutor # 1: Guidelines not applicable.
Court: There’s a space in there, I believe.
Prosecutor # 2: We can put other reason and put guidelines not applicable. Court: That works. I just want to have all the paperwork.

The life sentences were noted on the scoresheet and next to the line “Other Reason,” was written: “Guidelines not applicable (youthful offender).” The court then added its signature to the scoresheet. The sentence on the robbery with a weapon count later was corrected to a thirty-year maximum sentence.

The defendant now argues that the circuit court apparently failed to consider the sentencing guidelines before imposing the sentences because the court imposed sentences without the scoresheet and then directed that the scoresheet be prepared to indicate “Guidelines not applicable (youthful offender).” Recognizing the lack of objection in the circuit court, the defendant argues the error is fundamental because it constitutes a violation of due process and falls outside the scope of a rule 3.800 motion to correct sentencing error. The state concedes this point. We agree. See Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (defendant could not rely on rule 3.800 to raise a sentencing issue involving a denial of due process, but could raise the issue on direct appeal as fundamental error).

We are compelled to reverse and remand for resentencing. We first acknowledge that, at the end of the violation of probation hearing, when the state first used the phrase that the court was free to sentence the defendant “without the constraints of the criminal punishment code,” the state may have intended to convey the point that “the six-year cap does not apply to a youthful offender sentence imposed following a substantive violation of probation.” Christian v. State, 84 So.3d 437, 444 (Fla. 5th DCA 2012). The court may have understood the state’s point because the court earlier stated: “[T]he sentencing is going to be either the parameters of youthful offender or what [the defendant] could have been sentenced to at the time that the court [imposed the youthful offender sentence].”

However, at the sentencing, the court pronounced the sentences before being provided a scoresheet, and then both the state and the court expressed that the scoresheet should indicate the sentencing guidelines were not applicable when, in fact, they were applicable. This was error. See Erickson v. State, 565 So.2d 328, 336 (Fla. 4th DCA 1990) (“In order to reach a fully informed sentencing decision, the trial court must have the benefit of an accurately prepared scoresheet. This requirement applies even if the trial court expresses an intention to impose the maximum statutory sentence at the sentencing hearing.”) (internal citations omitted).

Again, we acknowledge that the notation of “Guidelines not applicable (youthful offender)” on the scoresheet may have been intended to convey the court’s recognition that “the six-year cap does not apply to a youthful offender sentence imposed following a substantive violation of probation.” Christian, 84 So.3d at 444. However, because the court also pronounced the sentences without the scoresheet, and because the record does not conclusively show that the same sentences would have been imposed using a correct scoresheet, we are compelled to reverse and remand for re-sentencing. See Graham v. State, 920 So.2d 1262, 1263 (Fla. 4th DCA 2006) (“[A] scoresheet error requires resentencing unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet.”) (citation and quotation omitted).

Reversed and remanded for resentenc-ing.

WARNER and LEVINE, JJ., concur.


author: CIKLIN, J.

text:
    SOUTHFIELDS OF PALM BEACH POLO AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC., Glenn Straub, Salvatore Spano, Dr. Scott Swerdlin, Roger Shingler and Melissa C. Nottingham, Appellants, v. Victoria D. McCULLOUGH, Appellee.
    Nos. 4D11-1130, 4D11-4659.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Peter F. Valori and Russell Landy of Damian & Valori LLP, Miami, for appellants.
    Christopher N. Johnson of Gray-Robinson, P.A., Miami, for appellee.
   CIKLIN, J.

Southfields of Palm Beach Polo and Country Club Homeowners Association, et al. (the “association”) appeals the trial court’s final judgment granting an injunction and a writ of mandamus to compel the association’s board of directors to take the necessary steps to preserve the Declaration of Restrictions (the “declaration”) governing the property (“Southfields”) within the association. Without such board action, the restrictive covenants governing Southfields would have begun to lapse and ultimately expire pursuant to the Marketable Record Titles to Real Property Act (“MRTA”), chapter 712, Florida Statutes (2010). Therefore, we affirm the trial court’s final judgment requiring the association’s board to preserve the declaration.

In 1981, the declaration was created to impose certain covenants, conditions, and restrictions within Southfields. The declaration states that its “provisions hereof shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and operation of the Property.” The declaration created a homeowners association whose stated purpose, according to its articles of incorporation, is “to provide for the regulation, maintenance, and preservation of the development of Southfields.” The association is in turn governed by a board of directors. The declaration, intending to preserve the equestrian nature of South-fields, required that the board exercise its powers to maintain the declaration until and unless ninety-five percent of landowners vote to dissolve the declaration and disband the association.

“MRTA was enacted in 1963 to simplify and facilitate land transactions.... ” Blanton v. City of Pinellas Park, 887 So.2d 1224, 1227 (Fla.2004). “Section 712.02, Florida Statutes (2003), provides that ‘[a]ny person ... vested with any estate in land of record for 30 years or more, shall have a marketable record title ... free and clear of all claims’ except those set forth as exceptions in section 712.03.” Id. (footnote omitted). Section 712.03(2), Florida Statutes (2010), furnishes an exception from MRTA for, among other things, “any covenant or restriction ... preserved by the filing of a proper notice in accordance with the provisions hereof.” Section 712.05(1), Florida Statutes (2010), states, in part: “[A] homeowners’ association desiring to preserve any covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the 30-year period immediately following the effective date of the root of title,[] a notice, in writing....”

Victoria McCullough, a landowner in Southfields, filed a complaint with the circuit court, claiming that the association’s board was refusing to file the notice required under 712.05 in order to preserve the declaration. McCullough requested an injunction and a writ of mandamus to compel the board to file the required notice. The trial court granted summary judgment as to both the prayer for injunction and mandamus.

We agree with the trial court’s conclusion that “[i]f parcels were to drop out piecemeal without the requisite votes required by the [governing] documents, the Association would begin to resemble a piece of Swiss cheese, with portions of Southfíelds covered by the restrictions and other portions ... not covered by the restrictions.” The trial court also correctly concluded that the language of the declaration itself makes it clear that “the board of directors is mandated to, and has a duty to, protect Southfíelds and protect the restrictive covenants running with the land.” Therefore, injunctive and mandamus relief was appropriate to compel the board to fulfill its duty and take the required action to preserve the declaration. We therefore affirm.

However, we remand the final judgment to the trial court to correct a scrivener’s error. Former defendants Salvatore Spa-no and Melissa Nottingham were removed from the case style in the order granting the summary judgment, but their names reappeared in the final judgment. All parties agree that this was an error and should be corrected by the trial court.

Affirmed and remanded with instructions.

STEVENSON and GERBER, JJ„ concur.

      . The land use restrictions for Southfields are set forth in the Amended and Restated Declaration of Restrictions of Southfields, dated January 23, 1981 and Amendment # 1 to Amended and Restated Declaration of Restrictions of Southfields the By-Laws and Articles of Incorporation of Southfields and the Wellington Countryplace P.U.D. Master Land Use Plan.

      . "Root of title” is defined under section 712.01(2), Florida Statutes (2010), as "any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.”

      . Mandamus relief is ordinarily used to compel a public official to perform a ministerial duty. See, e.g., Kuehl v. Bradshaw, 954 So.2d 653, 655 (Fla. 4th DCA 2007) ("Mandamus is proper to compel a public official to perform a ministerial duty.”). Neither party raises as an appellate issue whether mandamus is appropriate to compel a homeowners association to act; therefore this question is not properly before us. We do note, however, that mandamus has been approved to compel a corporation to act. See Faro v. Simplex Med. Sys., Inc., 748 So.2d 342, 342-43 (Fla. 3d DCA 1999).