author: ORFINGER, J.

text:
    Richard MIDGETTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1545.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Richard Midgette, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Richard Midgette appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the trial court’s order denying relief on Grounds One, Two, Three, and Four without discussion. However, we reverse and remand the claims designated “Ground Two Sub-Claim” and Ground Five for further proceedings.

Following a trial, Midgette was convicted of burglary of a dwelling and grand theft. Midgette asserts that his counsel was ineffective for failing to object to a jury instruction establishing an inference that a burglary or theft conviction may b'e justified, in part, by an accused’s unexplained possession of recently stolen property. This instruction is based on section 812.022(2), Florida Statutes (2006), which provides that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” See, e.g., Nshaka v. State, 92 So.3d 848, 847 (Fla. 4th DCA 2012). However, this inference only arises when the accused’s possession of recently stolen goods is -personal and exclusive, or from the accused’s distinct and conscious assertion of possession. Ridley v. State, 407 So.2d 1000, 1001 (Fla. 5th DCA 1981). If there is joint possession, the suspects must be acting in concert. See Walker v. State, 896 So.2d 712, 720 n. 5 (Fla.2005) (explaining that joint possession of two or more persons acting in concert is “exclusive” as to any of them). Merely sharing the location where stolen property was found with others, does not support the inference instruction. See Walton v. State, 404 So.2d 776, 777 (Fla. 1st DCA 1981) (holding that joint possession of duplex and shed where stolen property found was insufficient). Likewise, “[m]ere knowledge that an offense is being committed and mere presence at the scene of the crime are insufficient to establish participation in the offense.” Garcia v. State, 899 So.2d 447, 450 (Fla. 4th DCA 2005) (holding inference not permitted where defendant was one of several people in van containing stolen property, but there was no proof that he exercised dominion or control over property). Similarly, mere presence nearby while someone else possesses stolen property is also not sufficient to create the inference of guilt. Waldron v. State, 979 So.2d 449 (Fla. 2d DCA 2008) (holding presence outside of burglary location, even with nervous behavior and dirty hands, did not support inference); Bronson v. State, 926 So.2d 480 (Fla. 2d DCA 2006) (holding inference not supported where defendant was passenger in another’s truck containing stolen property without other links to crime); Adams v. State, 693 So.2d 1031 (Fla. 2d DCA 1997) (holding no inference permitted where defendant arrested “nearby” truck, taken from repair location without payment, absent any showing that defendant moved it); Chamberland v. State, 429 So.2d 842 (Fla. 4th DCA 1983) (holding inference not permitted though defendant watched roommate install stolen air conditioner in their shared apartment); see also K.C.B. v. State, 715 So.2d 1083 (Fla. 3d DCA 1998) (holding defendant did not possess cocaine where merely sitting near cocaine in another’s apartment); cf. Holcomb v. State, 946 So.2d 633 (Fla. 4th DCA 2007) (holding inference proper where defendant was driver of getaway truck containing stolen goods).

Midgette contends that he was simply present outside the burgled building and in or near the house where the stolen property was ultimately found, as is more fully set forth in his Ground Five. Midgette’s theory of defense at trial was misidentifi-cation at the scene of the crime. However, the inference of guilt arising from possession of recently stolen goods would have negated his defense theory. The jury could have inferred guilt from Midgette’s presence at the scene of the crime and the location where the stolen goods were found. Midgette’s claim on this ground is facially sufficient and should not have been summarily denied.

In Ground Five, Midgette argues that trial counsel was ineffective for failing to investigate, interview, and call as witnesses his brother, and co-defendant, Matthew Midgette, and his other co-defendant, Stevie Ricks. He alleges that both witnesses were available to testify and would have testified that, while Midgette was present at the burglarized house, he did not engage in any of the criminal behavior. This claim is facially sufficient. See Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004) (requiring defendant “to allege what testimony defense counsel could have elicited from witnesses and how defense counsel’s failure to call, interview, or present the witnesses who would have so testified prejudiced the case,” as well as that witnesses would have been available to testify)-

The trial court rejected this claim, concluding that the proposed testimony would have conflicted with trial counsel’s strategy. However, as the trial court acknowledged, “a denial of a claim of ineffective assistance based on a finding that counsel was engaging in reasonable trial strategy generally should only be made after an evidentiary hearing.” Perez v. State, 128 So.3d 223, 227 (Fla. 2d DCA 2013) (citing Porter v. State, 626 So.2d 268, 269 (Fla. 2d DCA 1993)); see Glover v. State, 996 So.2d 885, 888 (Fla. 4th DCA 2008); Rutledge v. State, 786 So.2d 1199, 1200 (Fla. 4th DCA 2001) (citing Harris v. State, 768 So.2d 1179, 1183 (Fla. 4th DCA 2000)). As the State notes, there is an exception to the necessity of a hearing when “it is so obvious from the face of the record that trial counsel’s strategy not to present a [particular] defense is very clearly a tactical decision well within the discretion of counsel.... ” Hannon v. State, 941 So.2d 1109, 1138 (Fla.2006). We do not find that the facts alleged here fall into that narrow exception. The summary denial of relief on this ground was error. See Perez, 128 So.3d at 227; Rutledge, 786 So.2d at 1200.

We affirm the trial court’s order summarily denying Midgette’s motion as to Grounds One, Two, Three, and Four, but reverse and remand as to “Ground Two Sub-Claim” and Ground Five for attachment of record excerpts that conclusively refute those claims or for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY, C.J. and BERGER, J., concur.

      . Though the State asserts that the complete trial transcripts show that Midgette was acting in concert with his brother, it also concedes that the record attachments do not conclusively refute this claim.


source: Caselaw Access Project

author: LAMBERT, J.

license: Public Domain

text:
    Dana Michael LITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1781.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Dana Michael Little appeals the sentence imposed following his convictions for two counts of dealing in stolen property and two counts of receiving money from a pawn broker by false verification of ownership. He argues that the trial court committed fundamental error by having announced a policy of not considering a request for a downward departure sentence after a jury finds a defendant guilty. Finding the trial court’s arbitrary policy of not considering a downward departure sentence based upon a jury returning a verdict of guilt to be a due process violation, resulting in fundamental error, we reverse.

At the sentencing hearing, defense counsel was seeking a downward departure sentence pursuant to section 921.0026(1), Florida Statutes (2013), which provides in pertinent part:

A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.

§ 921.0026(1), Fla. Stat. (2013).

In Barnhill v. State, 140 So.3d 1055 (Fla. 2d DCA 2014), the court discussed the trial court’s decision-making process regarding whether to depart from the sentencing guidelines:

A trial court’s decision whether to depart from the [sentencing] guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.”
Second, where the step 1 requirements are met, the trial court further must determine whether it should de-. part, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors.

140 So.3d at 1060 (quoting Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)). The trial court here imposed a sentence within the criminal punishment code scoresheet sentencing range. Typically, an appellate court does not have the power or authority to consider or review a trial court’s discretionary decision to deny a request for a downward departure sentence. Jorquera v. State, 868 So.2d 1250, 1253 (Fla. 4th DCA 2004) (citing § 924.06(1), Fla. Stat. (2003); Patterson v. State, 796 So.2d 572, 574 (Fla. 2d DCA 2001)). However, as explained in Barnhill:

[B]ecause the issue here revolves around the trial court’s applying an incorrect standard in determining whether to exercise its discretion, we apply a de novo standard of review. See Cromartie v. State, 70 So.3d 559, 563 (Fla.2011) (holding that issue of whether trial court violated due process by applying an “arbitrary policy of rounding up sentences” is a question of law subject to de novo review); Pressley v. State, 73 So.3d 834, 836 (Fla. 1st DCA 2011) (applying de novo review to trial court’s policy of refusing to consider youthful offender sentencing).

140 So.3d at 1060-61.

At the sentencing hearing, after briefly presenting testimony from Appellant, defense counsel began his argument for a downward departure sentence when the following exchange occurred:

THE COURT: I’ll just tell you right now, the court’s not going to downward depart.
MR. JONES: Thank you, Your Honor. As I was stating, we are making—
THE COURT: I just don’t want you to waste your breath. I’m not going to downward depart.
The jury found him guilty. When a jury finds a defendant guilty, I don’t downward depart. A jury came in here — we empaneled a jury to consider the facts of this case. And that jury — I would be showing the jury such disrespect by not considering their views of the facts. So I’m not going to downward depart in this.
So what else?

Here, the trial court made its policy abundantly clear that once any defendant elects to exercise his or her constitutional right to a trial by jury, it will not consider a downward departure sentence upon conviction because it does not want to “disrespect” the jury. We conclude that this general policy constitutes a due process violation, resulting in fundamental error. See Jackson v. State, 983 So.2d 562, 575 (Fla.2008) (stating that for an error to be fundamental, it “must be basic to the judicial decision under review and equivalent to a denial of due process” (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994))); Maddox v. State, 760 So.2d 89, 100 (Fla.2000) (“[A] fundamental sentencing error will be one that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected.”). Therefore, we reverse the sentences imposed and remand for resentencing before a different judge, who may properly determine whether a downward departure sentence is appropriate.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY, C.J. and SAWAYA, JJ. concur.

      . § 812.019(1), Fla. Stat. (2013).

      . § 539.00 l(8)(b)8., Fla. Stat. (2013).

      .In addition to the four offenses before the court, Appellant’s scoresheet included a record of 19 prior crimes, the majority of which involved crimes of dishonesty. Despite this impressive criminal history, the lowest permissible' prison sentence was 17.85 months. The trial court sentenced Appellant to serve 41.85 months in the Department of Corrections, concurrent on all counts.

      . In its answer brief, the State candidly acknowledged that there may be a due process violation if the trial court’s comments can be construed to reflect a generalized policy that it will never consider a downward departure sentence when a defendant is convicted by a jury.


author: WALLIS, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Craig Robert WIGGEN, Respondent.
    No. 5D14-1811.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Rehearing Denied Dec. 24, 2014.
    Stephen D. Hurm, General Counsel, and, Jason Helfant, Assistant General Counsel, Dept, of Highway and Safety and Motor Vehicles, Legal Office, Lake Worth, for Petitioner.
    Eric A. Latinsky, of Damore, Delgado, Romantk & Rawlins, Daytona Beach, for Respondent.
   WALLIS, J.

Petitioner, Department of Highway Safety and Motor Vehicles (“DHSMV’), petitions for certiorari review of the circuit court’s order, which quashed DHSMVs order suspending respondent Craig Robert Wiggen’s driver’s license. The circuit court, acting in its appellate capacity, departed from the essential requirements of law by quashing DHSMVs order. Accordingly, we grant the petition for certio-rari and quash the circuit court’s order setting aside the suspension of Wiggen’s driver’s license.

On November 26, 2011, Deputy Kaphan, a member of the Flagler County Sheriffs Office, responded to a vehicle parked with its headlights off at an intersection of two roads. Kaphan found Wiggen sleeping in the driver’s seat of the vehicle with the keys in the ignition, which was in the on position. Wiggen submitted to a breath test, which was conducted twice on a specific breath-alcohol testing device (the “Device”). The two test results indicated that Wiggen had a breath-alcohol level of 0.161 and 0.163, respectively, over twice the legal limit. Kaphan arrested Wiggen for driving under the influence.

DHSMV administratively suspended Wiggen’s driver’s license for six months under section 322.2615(l)(a), Florida Statutes (2011). Wiggen requested a formal administrative review before a DHSMV hearing officer under section 322.2615(l)(b)(3), Florida Statutes (2011). At the hearing, the hearing officer considered the testimony of several witnesses and documentary evidence submitted by the parties. These documents included, among others: an affidavit of probable cause and a breath test affidavit signed by Kaphan, registration documents for the Device, and the agency inspection reports for the Device.

Deputy Biss, the officer who performed the agency inspections of the Device, testified about the inspection procedures required under state law. Under Florida Administrative Code Rule 11D-8.006 (2011), breath-alcohol test devices must be inspected by an agency inspector at least once a month, in accordance with established inspection procedures, to assure that the devices are in compliance with Florida Department of Law Enforcement (“FDLE”) rules and regulations. Additionally, the Device and identical models are designed to perform a self-diagnostic check both before and after each test. The breath test affidavit showed that the self-diagnostic checks performed before and after Wiggen’s test indicated that the Device was functioning properly. The agency inspection records produced at the hearing showed that the Device passed an inspection on October 30, 2011, but failed the subsequent inspection on November 30, 2011 — four days after Wiggen’s breath-alcohol test. During Biss’s testimony, he explained that the Device did not fail the November inspection; rather, the inspection falsely indicated a failure as a result of Biss’s lack of experience and consequent error during the inspection. He provided a detailed technical explanation of the reasons for the false failure result. Biss testified that he had not performed many device inspections as of November 30, 2011, and that the November inspection was the first inspection of the Device he performed without assistance from a more experienced deputy.

Andy Cospito, an expert witness on maintenance and inspection of breath-alcohol testing devices, also testified at the hearing. Cospito stated that in his expert opinion, because the Device passed the October 30, 2011 inspection but failed the November 30, 2011 inspection, all of the testing results between November 1 and 30, 2011, were invalid.

The hearing officer concluded that there was sufficient evidence to sustain the driver’s license suspension and entered an order upholding DHSMV’s suspension order. Wiggen filed a petition in the circuit court seeking certiorari review of DHSMV’s order. The circuit court issued an order denying the petition for writ of certiorari and upholding Wiggen’s license suspension, finding that there was competent, substantial evidence to support the hearing officer’s conclusion. Wiggen filed a motion for rehearing. A different circuit court judge granted the motion for rehearing and reversed DHSMV’s suspension of Wiggen’s license. The circuit court ruled that after Wiggen produced evidence that the Device failed its agency inspection four days after Wiggen’s test, the burden shifted to DHSMV “to show that the test on the day in question, run just a few days before the [Device] became inoperative, produced accurate and reliable results.” The circuit court opined that DHSMV “presented no such testimony or evidence.” DHSMV filed this appeal after the circuit court denied a motion for rehearing.

Where a district court reviews the decisions of a circuit court—acting in its appellate capacity—certiorari review “is limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 526 (Fla.1995)).

Under Florida law, upon a timely request for formal review by the driver subject to a license suspension, DHSMV is tasked with conducting a formal administrative review of the license suspension. Fla. Admin. Code R. 15A-6013 (2011). These hearings are presided over by a hearing officer, who is tasked with the responsibility of “determining] whether the suspension ... is supported by a preponderance of the evidence.” Fla. Admin. Code R. 15A-6013 (2011); see also § 322.2615(7), Fla. Stat. (2011). If the driver’s license was suspended as a result of a breath-alcohol test indicating the driver was impaired, the scope of the hearing officer’s review is limited to determining:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in the state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended had an unlawful ... breath-alcohol level of 0.08 or higher as provided in s. 316.193.

§ 322.2615(7)(a). DHSMV is only required to establish an unlawful breath-alcohol level by a preponderance of the evidence. For a breath-alcohol affidavit to be admissible, DHSMV must establish: (1) that the breath test was performed substantially in accordance with the methods approved by FDLE, with an approved device by a qualified technician; and (2) that the device has been inspected in accordance with FDLE rules to assure its accuracy. State v. Donaldson, 579 So.2d 728, 729 (Fla.1991); Dep’t of High. Saf. & Motor Veh. v. Berne, 49 So.3d 779, 782 (Fla. 5th DCA 2010); see also § 316.1932(l)(b)(2), Fla. Stat. (2011). Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath.” § 316.1934(5), Fla. Stat.; see also § 316.1934(2)(c) (providing that a test result of 0.08 or higher is “prima facie evidence” that the person was impaired).

Here, DHSMV established the Donaldson Requirements, rendering the breath-alcohol test affidavit admissible. Once the affidavit was admitted, the burden shifted from DHSMV to the party challenging the suspension, in this case Wiggen, to overcome the presumption of impairment. Berne, 49 So.3d at 783. Contrary to the circuit court’s ruling, the burden did not shift back for DHSMV to reestablish the accuracy of the Device. Wiggen attempted to overcome the presumption of impairment by presenting evidence that the Device failed its monthly inspection only four days after being used to test Wiggen’s breath-alcohol level. However, DHSMV presented evidence that the Device passed its previous monthly inspection and that the self-diagnostic tests performed before and after Wiggen’s breath-alcohol test indicated the Device was functioning properly. Additionally, Biss testified that the Device failed the subsequent inspection due to his own user error and that the Device was actually functioning properly. Given the evidence presented at the hearing, the hearing officer could have concluded that the documentary evidence and testimony presented in the record was sufficient to show that the Device was in compliance with FDLE standards and was operating normally on the day in question. The hearing officer, as the trier of fact, was responsible for resolving any conflicts in the evidence and was free to weigh and reject Wiggen’s argument, as long as that decision was based on competent, substantial evidence. See Cohen v. Sch. Bd. of Dade Cnty., 450 So.2d 1238, 1241 (Fla. 3d DCA 1984).

Consequently, the circuit court exceeded its limited scope of review and departed from the essential requirements of law by reversing the hearing officer’s decision. It was not the circuit court’s task to reweigh evidence presented to the hearing officer, evaluate the pros and cons of conflicting evidence, and reach a conclusion different from that of the agency. We grant the petition for certiorari and quash the circuit court’s order. See, e.g., Dep’t of High. Saf. & Motor Veh. v. Friend, 837 So.2d 1071, 1071-72 (Fla. 1st DCA 2003); Dep’t of High. Saf. & Motor Veh. v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995); Rivera v. Dawson, 589 So.2d 1385, 1388 (Fla. 5th DCA 1991).

PETITION FOR WRIT OF CERTIO-RARI GRANTED; CIRCUIT COURT ORDER QUASHED.

EVANDER and LAMBERT, JJ., concur.

      . Contrary to Wiggen's argument, this case is significantly different from the situation in Department of Highway Safety & Motor Vehicles v. Wejebe, 954 So.2d 1245 (Fla. 3d DCA 2007). In Wejebe, unlike the instant case, evidence — including testimony from FDLE— showed that the breath-alcohol testing device had been deemed to be out-of-compliance in other cases, had failed multiple inspections with no explanation for the failures, and had never been taken out of service or repaired.


author: COHEN, J.

text:
    STATE of Florida, Petitioner, v. James ROBERSON, Respondent.
    No. 5D14-196.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Petitioner.
    Robert Wesley, Public Defender, and Alyssa Salman, Assistant Public Defender, Orlando, for Respondent.
   COHEN, J.

The State petitions for a writ of certiora-ri, seeking to quash an order that excluded evidence as a sanction for a perceived discovery violation. We hold that the trial court departed from the essential requirements of law, resulting in a miscarriage of justice; accordingly, we grant the petition and quash the trial court’s order.

James Roberson was charged with grand theft and contributing to the delinquency of a minor after he and his sixteen-year-old son stole a car trunk lid and a wheel from ASAP Auto Salvage. The theft was witnessed by one of ASAP’s owners and an ASAP employee. The employee called law enforcement and then followed the Robersons’ vehicle through three counties until the police effectuated a stop. Roberson admitted to taking the items and returned them to their rightful owners. Thus, in Roberson’s prosecution, the issue in dispute centers on the value of the stolen items.

Five days before trial, Roberson filed a motion to dismiss premised on the State’s alleged violation of section 90.91, Florida Statutes (1995). Roberson claimed that the State’s failure to provide either photographs of the stolen property or the property itself “effectively crippled the Defense and [its] ability to hire an expert and move forward as to proving value.” The trial court continued the hearing until the next day to allow the parties to research the issue.

That night, one of the victims informed the prosecutor that he possessed the stolen items. The prosecutor immediately relayed this information to the trial court and defense counsel by e-mail.

The next day, due to this recent revelation, Roberson requested a Richardson hearing. The trial court, presupposing the existence of a discovery violation, asked the prosecution how the defense was not prejudiced by the late disclosure. The prosecutor replied that the stolen items were listed and described in the police report and that there was video surveillance of the theft that showed the stolen items. In short, the prosecutor contended that the available discovery provided Roberson with sufficient information to evaluate the value of the stolen property. Ultimately, the trial court denied Roberson’s request for exclusion because it did not think that the State committed a discovery violation that required a sanction under Richardson. The trial court reasoned that, although the State temporarily had possession of the stolen property during Roberson’s arrest, the property had not been in the State’s custody since that time.

The court then sua sponte raised the State’s failure to provide a written discovery exhibit detailing any “tangible papers or objects that the prosecuting attorney intends to use in the hearing or trial [and] that were not obtained from or that did not belong to the defendant,” as required by Florida Rule of Criminal Procedure 3.220. The court observed that, instead of compiling a discovery exhibit as contemplated by the rule, the State “just emailed” the police reports and witness statements to the defense. The State argued that the witness statements and the police reports that were provided to the defense satisfied the rule that discovery be provided in writing. Nevertheless, the court excluded the stolen items, finding that exclusion was appropriate because the rules require the State to provide a discovery exhibit. In the court’s written order, it explained:

The Court finds that the State has failed to comply with rule 3.220(b)’s requirement that a written discovery exhibit be served on the defense. The Court finds that the State intentionally failed to comply with the rule in this and other cases, and that the State would not be prejudiced by the exclusion of the evidence in the instant case. Therefore the trunk lid and tire are excluded from evidence.

This order is the subject of the State’s petition for writ of certiorari.

When a defendant timely raises a potential discovery violation, Richardson requires the court to determine whether the State violated a discovery rule, and if so, whether that violation resulted in harm or prejudice to the defendant. See Richardson v. State, 246 So.2d 771, 775 (Fla. 1971) criticized on other grounds in Cuciak v. State, 410 So.2d 916 (Fla.1982). In exercising its discretion, the trial court must make an adequate inquiry into all the surrounding circumstances. Id. If a violation is found, the court must assess whether the State’s discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what affect it had on the defendant’s ability to prepare for trial. See Sinclair v. State, 657 So.2d 1138, 1140 (Fla.1995) (citing Richardson, 246 So.2d at 775). Although Rule 3.220(n)(l) authorizes a trial court to exclude evidence as a sanction for a discovery violation, this sanction should be imposed only when there is no other adequate remedy. McDuffie v. State, 970 So.2d 312, 321 (Fla.2007).

The trial court’s analysis in the present case was in contravention of clearly established law. As an initial matter, it must be noted that Rule 3.220(b) was not the basis for the defense’s request to exclude evidence. Moreover, the trial court never found that the failure to disclose the existence of the evidence constituted a discovery violation. Instead, the court contemplated the proper way to comply with Rule 3.220(b). Even assuming the State failed to comply with Rule 3.220(b) — an issue we need not address — the court never found that Roberson suffered procedural prejudice, nor did the court consider lesser sanctions. Rather, the trial court improperly shifted the focus of the Richardson inquiry when it concluded that “the State would not be prejudiced by the exclusion of the evidence in the instant case.” This misapplication of the law constituted a departure from the essential requirements of the law, resulting in a miscarriage of justice. Therefore, we grant the State’s petition and quash the trial court’s order excluding the stolen items.

PETITION GRANTED; ORDER QUASHED.

SAWAYA and EVANDER, JJ„ concur.

      . That section provides:
      In any prosecution for a crime involving the wrongful taking of property, a photograph of the property alleged to have been wrongfully taken may be deemed competent evidence of such property and may be admissible in the prosecution to the same extent as if such property were introduced as evidence. Such photograph shall bear a written description of the property alleged to have been wrongfully taken, the name of the owner of the property, the location where the alleged wrongful taking occurred, the name of the investigating law enforcement officer, the date the photograph was taken, and the name of the photographer. Such writing shall be made under oath by the investigating law enforcement officer, and the photograph shall be identified by the signature of the photographer. Upon the filing of such photograph and writing with the law enforcement authority or court holding such property as evidence, the property may be returned to the owner from whom the property was taken.
      § 90.91, Fla. Stat. (1995).

      . See generally Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Janace K. DOOLITTLE a/k/a Kathy Doolittle, Petitioner, v. Julie Chase SHUMER, et al, Respondents.
    No. 5D14-3423.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Philip S. Kinney, of Kinney & Sasso, PLLC, Jacksonville, for Petitioner.
    E.T. Fernandez, III, and Kendall E. Mills, of Fernandez Trial Lawyers, P.A., Jacksonville, for Respondent, Julie Chase Shumer.
    No Appearance for Respondents, Frank Donald Shumer and Kenneth Samuel Savage.
   LAMBERT, J.

Petitioner, the plaintiff below, seeks a writ of certiorari to quash an indefinite order of abatement of her civil action against Respondents. In the action below, Petitioner seeks damages- from the Respondents for injuries she sustained as a result of a dog attack. Respondents, Julie Shumer and Frank Shumer, are the alleged owners of the dog that attacked Petitioner and her dog, resulting in the death of Petitioner’s dog. The third Respondent, Kenneth Samuel Savage, was employed by the Shumers to walk the dog.

Approximately six weeks after the Respondents filed their answer and several affirmative defenses to the complaint, Julie Shumer was criminally charged for actions arising from the same incident that gave rise to the civil action. Julie Shumer thereafter filed a motion to abate the civil action “until such time that [she] can testify without compromising her privilege against self-incrimination,” or in the alternative, for the entry of a protective order precluding her from having to respond to any discovery or requests for future deposition until her criminal case has been completed. The parties, by tacit agreement and without court intervention, took no action in the case for several months. Petitioner then filed a motion pursuant to section 768.72, Florida Statutes (2013), for leave to amend her complaint to add a claim for punitive damages. A hearing was held on the .motion to amend and on Respondent’s motion to abate. At the hearing, the parties agreed to postpone addressing the motion to amend and, after hearing argument, the court abated the entire action “until further order of the court.” In addition, the court scheduled a status conference for 90 days after entry of the September 15, 2014 abatement order.

Petitioner contends that the indefinite order of abatement of the entire case based upon Julie Shumer’s blanket assertion of the Fifth Amendment privilege against self-incrimination is a departure from the essential requirements of law that will cause her irreparable harm. We agree and grant the writ in part.

“It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.” Childs v. Solomon, 615 So.2d 865, 866 (Fla. 3d DCA 1993) (citing Rainerman v. Eagle Nat’l Bank, 541 So.2d 740 (Fla. 3d DCA 1989)). The trial court, however, in considering a request for abatement should exercise the least intrusive means in fashioning relief, keeping in mind that a plaintiffs legitimate need to proceed expe-' ditiously must also be given weight. Kerben v. Intercontinental Bank, 573 So.2d 976, 978 (Fla. 5th DCA 1991); State v. Antonucci, 590 So.2d 998, 1000 (Fla. 5th DCA 1991). The challenged order, contrary to Respondent’s assertion, does not simply delay the case for a finite period. Rather, it abates the entire action “until further order of the court.” Moreover, the order applies not only to Julie Shumer, but also to her Co-Respondents who are not being criminally prosecuted. No reason was provided at the hearing why the Petitioner should be precluded from at least pursuing discovery against the Co-Respondents.

We quash the order as to the Co-Respondents because we find that an abatement as to them departs from the essential requirements of law. Article I, Section 2 of the Florida Constitution provides that justice shall be administered without denial or delay. However, we deny the petition as to Respondent, Julie Shumer, without prejudice to Petitioner seeking further relief if the trial court, after the upcoming status conference, either indefinitely stays the case against her, or does not otherwise consider a less intrusive means to safeguarding Respondent’s Fifth Amendment privilege.

PETITION FOR WRIT OF CERTIO-RARI GRANTED in part; DENIED in part; and ORDER QUASHED, in part.

ORFINGER and BERGER, JJ., concur.

      . Counsel representing Julie Shumer in this proceeding represents all three Respondents in the litigation below.

      . None of the other Respondents have been criminally charged.

      . The transcript of the hearing on the motion to abate reflects that counsel for Petitioner specifically inquired if the stay would "automatically quash” after 90 days. The court apparently declined to explicitly address the inquiry, and instead, abated the case and scheduled a case management conference.

      . The civil suit was filed in August 2013. "In Klein v. Royale Group, Ltd., 524 So.2d 1061, 1062-63 (Fla. 3d DCA 1988), the court held ’ that a stay became unreasonable fourteen months after the filing of the suit.” Eller Media Co. v. Serrano, 761 So.2d 464, 466-67 (Fla. 3d DCA 2000).

      .The record before us does not indicate that interrogatories have been propounded to Julie Shumer or that her deposition had been scheduled. In any event, not every question asked in a deposition or interrogatory will implicate the Fifth Amendment privilege. However, if Respondent believes a question may lead to incriminating evidence, she can make a specific objection to the question, assert her Fifth Amendment privilege and, at that time, the trial court, if requested, can exercise its discretion in determining whether it is reasonably possible that the answer could evoke an incriminating response. See Serrano, 761 So.2d at 466 (citing Delisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982)).


author: WOLF, J.

text:
    Everly Scott LIPPWE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3423.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.

      Melissa J. Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Pursuant to Goddard v. State, 458 So.2d 230 (Fla.1984), the trial court fundamentally erred in convicting appellant of two counts of organized trafficking pursuant to section 812.019(2), Florida Statutes (2011), when the evidence showed that appellant directly participated in the theft and sale of the same stolen property. “[A]n individual who steals and traffics in only his own stolen goods is subject to theft and trafficking charges under sections 812.014 and 812.019(1), but may not be charged with ‘organizing’ under section 812.019(2).” Goddard, 458 So.2d at 234. The judgment and sentence is reversed and remanded as to the two counts on appeal for imposition of the lesser included offense of trafficking pursuant to section 812.019(1), and for resentencing. See id. at 234.

On remand, the trial court will have an opportunity to re-impose costs and fees. We remind the trial court that fines imposed pursuant to section 775.083, Florida Statutes (2011), are discretionary and must be separately and orally pronounced at sentencing. See Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012). We also point out that “investigative fees” that are not “costs for the state attorney” are imposed pursuant to subsection 938.27(1), Florida Statutes (2011), not subsection (8), and must be requested on the record by the appropriate agency. Finally, we point out that section 28.37(2), Florida Statutes (2011), does not itself authorize the imposition of a 10% fee. Rather, it directs that 10% of any fines imposed be directed to the Public Records Modernization Trust Fund. Any confusion could be remedied if the clerk ensured that amounts directed to the fund are properly labeled as being imposed “pursuant to” the appropriate statute, in this case, section 775.083.

REVERSED and REMANDED with instructions.

BENTON and MAKAR, JJ., concur.


author: PER CURIAM.

text:
    Obie Dewayne HOLLIMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5886.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.

      Obie Dewayne Holliman, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the denial of a motion to correct illegal sentence which raised three claims. We affirm the denial of grounds two and three without further discussion. For the reasons discussed below, we reverse and remand the denial of ground one for further proceedings.

In ground one, Appellant asserts that his seventeen-year sentence for possession of a firearm by a convicted felon is illegal because it exceeds the fifteen-year statutory maximum for a second degree felony. Although it appears the sentences were imposed pursuant to a plea agreement, a defendant cannot plead to an illegal sentence. See Larson v. State, 572 So.2d 1368 (Fla.1991) (“[A] defendant cannot by agreement confer on a judge authority to exceed the penalties established by law”); Darling v. State, 886 So.2d 417, 418 (Fla. 1st DCA 2004) (reversing a sentence that exceeded the statutory maximum even though the defendant had agreed to the sentence).

The trial court would have been correct to deny Appellant’s motion if his seventeen year sentence is the lowest permissible under the criminal punishment code. See § 921.0024(2), Fla. Stat. (2009); Perkins v. State, 123 So.3d 678 (Fla. 2d DCA 2013) (“[W]hen the lowest permissible sentence under the criminal punishment code exceeds the statutory maximum, the former becomes the maximum sentence a court can impose.”). Assuming for argument’s sake that the lowest permissible sentence under the sentencing guidelines is less than seventeen years, the remedy would not be an automatic resentencing if the sentence was imposed pursuant to a negotiated plea. Instead, the State would have the option of agreeing to a legal sentence or withdrawing from the plea. See Taylor v. State, 899 So.2d 1191 (Fla. 1st DCA 2005).

Given the severely abbreviated record on appeal, we are not able to engage in meaningful appellate review of the trial court’s order. Appellant’s lowest permissible sentence under the sentencing guidelines cannot be determined based on the record before us, which does not include his sentencing guidelines scoresheet. Nor does the record establish whether the plea was a negotiated plea for a specific sentence or an open plea with sentencing at the trial court’s discretion.

In cases such as this, where the record fails to show conclusively that the appellant is not entitled to relief, this court has consistently reversed and remanded for the trial court either to attach to its order the portions of the record refuting the appellant’s claim or to grant the requested relief. Fla. R. App. P. 9.141(b)(2)(d); see, e.g., Brown v. State, 132 So.3d 363 (Fla. 1st DCA 2014); Cummings v. State, 106 So.3d 33 (Fla. 1st DCA 2013); Higginbotham v. State, 69 So.3d 1041 (Fla. 1st DCA 2011). But see Casteel v. State, 141 So.3d 624 (Fla. 4th DCA 2014) (“We do not accept the State’s concession. The Florida Supreme Court has made clear that a trial court is not required to attach any records to an order denying a rule 3.800(a) motion. Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011). The burden is on the movant to show his entitlement to relief is clear on the face of the record. Id.”).

Accordingly, we reverse and remand the order under review for the trial court to either attach the portion of the record that refutes Appellant’s claim that his seventeen-year sentence for possession of a firearm by a convicted felon is illegal, to re-sentence Appellant to a legal sentence if the plea was an open plea, or, if the sentence was the result of a negotiated plea, to grant the state the option of (a) agreeing to a resentencing or (b) withdrawing from the plea and proceeding to trial on the original charges.

AFFIRMED in part, REVERSED and REMANDED in part for proceedings consistent with this opinion.

ROBERTS, RAY, and SWANSON, JJ„ concur.

       The record on appeal is limited to "copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.” Fla. R. App. P. 9.141(b)(2)(A).


text:
    SEARS OUTLET and Sedgwick CMS, Appellants, v. James BROWN, Appellee.
    No. 1D14-2289.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.

      Jane E. McGill of Pallo, Marks, Hernandez, Palm Beach Gardens, for Appellants.
    Carolyn Friedman Frank, Harvey Friedman, and Raquel Y. Reyes-Lao of Friedman, Rodman & Frank, P.A., Miami, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) challenges an order by the Judge of Compensation Claims (JCC) requiring the E/C to provide Claimant with treatment for a renal mass/cancer to the extent that it was a hindrance to treatment of the compensable lumbar spine injury. After undergoing low back surgery to treat the compensable injury, Claimant experienced a recurrence of back pain. The E/C authorized an orthopedic workup for a second back surgery during which an MRI of the lumbar spine revealed a right kidney mass suspicious for renal cancer. The E/C subsequently authorized a urologist to clear Claimant for the proposed back surgery.

After evaluating Claimant, the authorized urologist referred Claimant to a hospital for further diagnostic testing with partial or complete removal of the kidney. Instead of requesting the recommended kidney diagnostics and surgery from the E/C, Claimant had the procedure done at a hospital on an unauthorized, non-emergency basis. Only after the procedure was complete (with Claimant’s kidney being removed resulting in a final diagnosis of renal cancer) did Claimant ask the E/C to pay for such treatment.

According to the medical opinions accepted by the JCC, the kidney mass needed to be removed before Claimant could undergo further evaluation of the low back, have the back surgery, or take additional anti-inflammatories. Applying the hindrance-to-recovery doctrine, the JCC determined that the E/C was responsible for treating the unrelated kidney condition to the extent necessary to remove the hindrance it created to treating the compen-sable back injury. The JCC also ruled that Claimant’s failure to request authorization for the kidney surgery was excused under the self-help provision of section 440.13(2)(c), Florida Statutes (2010). Accordingly, the JCC directed the E/C to pay the hospital for the admission for the kidney surgery and to reimburse Claimant for the related payments he made directly to the hospital.

On appeal, the E/C argues that the JCC applied an incorrect test to find the kidney treatment received at the hospital compen-sable under the hindrance-to-recovery doctrine and misinterpreted the requirements of the self-help provision of section 440.13(2)(c). To the extent these issues involve the JCC’s application of undisputed facts to the law, review is de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002). Because we find that the E/C is not legally responsible under section 440.13(2)(c) for the medical bills related to the kidney surgery — even assuming the compensability of Claimant’s unrelated kidney problem, we find it unnecessary to address the JCC’s application of the hindrance-to-recovery doctrine.

The JCC found section 440.13(2)(c) applicable based solely on his determination that the E/C wrongfully denied the medical care. Section 440.13(2)(c) expressly provides, however, that “[t]here must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care” before a claimant is entitled to recover any amount expended for initial treatment or care. See Parodi v. Fla. Contracting Co., 16 So.3d 958, 962 (Fla. 1st DCA 2009) (holding that section 440.13(2)(c) operates in limited circumstances where e/c wrongfully denies medical care but noting that claimant “retains the burden ... to establish that he made a specific request for the care, allowed the employer or carrier a reasonable time to respond, and obtained care that was com-pensable, reasonable, and medically necessary”). Here, it is undisputed that Claimant did not specifically request that the E/C provide the treatment and care recommended by the authorized urologist and provided by the hospital. Although the authorized urologist recommended followup for the kidney mass in his report, he also indicated that it was unlikely that the kidney condition was related to the workers’ compensation injury. This language cannot be reasonably construed as a specific request for treatment from the E/C. The JCC, therefore, erred when he determined that Claimant was entitled to recover the cost of his kidney surgery from the E/C under the statutory provision of section 440.13(2)(c). Accordingly, we REVERSE the award of the medical costs related to the treatment of Claimant’s renal mass/cancer.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    Arick BURKETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-4121.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Arick Burkett, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Arick Burkett, appeals the trial court’s order denying his pro se motion to compel transcription of a DVD by the clerk of court, and argues that pursuant to Lewis v. State, 142 So.3d 879 (Fla. 1st DCA 2014), he is entitled to the transcription of the DVD, a piece of “digital discovery material” containing a recorded police interview with his co-defendant, and to a paper copy thereof in preparation of his motion for postconviction relief. Contrary to Appellant’s contention, Lewis does not dictate the result he seeks, and we decline to extend its holding to the situation at issue. See Lewis, 142 So.Sd at 880-81 (finding that “the Clerk should continue to provide a paper copy of the record to appointed counsel representing an indigent defendant on appeal and to other pro se indigent defendants in criminal matters until such time as a rule or statute provides otherwise”); see also Wilcox v. State, 143 So.3d 359, 377 (Fla.2014) (finding that the trial court did not abuse its discretion in refusing to order the State to transcribe a recorded statement it had provided to the appellant in DVD format, which the appellant could not access due to his incarceration); Bennett v. Clerk of Circuit Court Citrus Cnty., 150 So.3d 277, 278 (Fla. 5th DCA 2014) .(explaining that Lewis does “not extend the right to free copies to indigents beyond the direct appeal of judgment and sentence and transcripts of evi-dentiary hearings held on postconviction claims”); Deas v. State, 985 So.2d 69, 70 (Fla. 4th DCA 2008) (“[PJrisoners have no right to free transcripts for use in preparation of a post-conviction motion.”); Woodfaulk v. State, 935 So.2d 1225, 1226-27 (Fla. 5th DCA 2006) (“Indigent prisoners may obtain free copies and services for a plenary appeal, but there is no provision to obtain them thereafter. There is no right to free transcripts for use in preparation of a postconviction motion. Rather, a prisoner seeking postconviction relief must first prepare and file his motion before he may secure those portions of the record relevant to the motion.”) (Internal citations omitted).

AFFIRMED.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Ryan DEBORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6067.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Cross Paxson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Ryan DeBord, appeals his judgments and sentences for sexual battery and lewd and lascivious molestation on grounds that the trial court abused its discretion by allowing the testimony of two undesignated expert witnesses for the State. We agree, and reverse and remand for a new trial.

Everyone agrees in this case that the State violated Florida Rule of Criminal Procedure 3.220 by not designating its expert witnesses in discovery. The parties also agree that the trial court failed to conduct an adequate Richardson hearing. We conclude that the trial court also abused its discretion by deciding summarily that the State’s discovery violation was a harmless, technical one. The Florida Supreme Court has established a very high bar for excusing discovery violations by the State:

[Wjhere the State commits a discovery violation, the standard for deeming the violation harmless is extraordinarily high. A defendant is presumed to be procedurally prejudiced “if there is a reasonable [possibility] that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.”

Cox v. State, 819 So.2d 705, 712 (Fla.2002) (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)); see also Scipio v. State, 928 So.2d 1138, 1149-50 (Fla.2006). In this ease, there seems a reasonable possibility that Appellant would have altered his trial preparation or strategy had the State disclosed its intent to obtain expert testimony from these witnesses prior to the eve of trial. In fact, Appellant’s counsel told the trial court that he would have deposed both expert witnesses and possibly procured his own expert. Under these circumstances, we cannot conclude beyond a reasonable doubt that Appellant was not procedurally prejudiced by the State’s discovery violation. See Henry v. State, 42 So.3d 328 (Fla. 2d DCA 2010). Thus, we reverse and remand for a new trial. See Curry v. State, 1 So.3d 394, 399 (Fla. 1st DCA 2009). In view of this result, we need not address Appellant’s other argument.

REVERSED and REMANDED for a new trial.

BENTON, CLARK, and OSTERHAUS, JJ., concur.


author: LOGUE, J.

text:
    Debra DAMSKY and Gerald Damsky, Petitioners, v. UNIVERSITY OF MIAMI and Alan Livingstone, M.D., Respondents.
    No. 3D14-2024.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.

      The Leto Law Firm, and Justin C. Leto; Hall, Lamb and Hall, P.A., and Matthew P. Leto, Miami, for petitioners.
    Fowler White Burnett, P.A., and Marc J. Schleier and Christopher E. Knight, Miami, for respondents.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

This petition for a writ of certiorari arises out of a lawsuit in which Debra Damsky and Gerald Damsky are suing the University of Miami and Alan Livingstone, M.D., for medical malpractice, which allegedly took place during a surgery performed on Ms. Damsky at Jackson Memorial Hospital. In the course of preparing the case for trial, the attorneys for the University made ex parte contacts with Dr. Jamie Barkin, a gastroenterologist at Mount Sinai Medical Center who treated Ms. Damsky for problems resulting from the surgery. The Damskys petitioned for a writ of certiorari to “quash the portion of the Lower Court’s Order finding that any communication between Dr. Barkin and [the University] are privileged and that ex parte communications [by the University] with Dr. Barkin are permissible.”

The substantive legal issue that underlies this petition involves whether Dr. Barkin is an employee of the Úniversity. The patient confidentiality provisions of section 456.057, Florida Statutes (2014), have been interpreted by the Florida Supreme Court to prohibit treating physicians from engaging in communications regarding their treatment of a patient to third parties, including attorneys, without the authorization of the patient. Hasan v. Garvar, 108 So.3d 570, 577 (Fla.2012). An exception to this rule permits a hospital to communicate with its employees about patient care in preparing the defense of a case in which the hospital is a defendant. Lee Mem’l Health Sys. v. Smith, 40 So.3d 106, 109 (Fla. 2d DCA 2010); Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277, 282 (Fla. 2d DCA 2005). The parties disagree whether this case comes within the ambit of this exception because they cannot agree whether Dr. Barkin, who works at Mount Sinai pursuant to an affiliation agreement between the University and Mount Sinai, is an employee of the University. The trial court ultimately determined that Dr. Barkin was an employee of the University.

Before reaching the substance of this issue, however, we must first- determine if we have jurisdiction. Orders governing discovery are not one of the interlocutory orders that can be appealed as a matter of right. Fla. R. App. P. 9.130. Interlocutory orders that are not appeal-able as a matter of right, however, may be reviewed by a petition for a writ of certio-rari. But a petition for writ of certiorari is not simply an alternative method to obtain an interlocutory appeal when the rules do not provide one. In fact, a petition for writ of certiorari is not an appeal. It is an original action seeking an extraordinary writ. It differs from an appeal in many ways. Among other things, the standard of review governing a petition for certiora-ri is much higher than the standard governing an appeal of right.

To prevail in its petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal. Sucart v. Office of the Comm’r, 129 So.3d 1112, 1114 (Fla. 3d DCA 2013) (citation omitted). These last two elements are sometimes referred to as irreparable harm. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012).

This higher standard applies because a more relaxed standard would allow “piecemeal review of non-final trial court orders [that] will impede the' orderly administration of justice and serve only to delay and harass.” Bd. of Trustees of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla.2012) (quotations and citations omitted). Under this high standard, few non-final orders qualify for the use of a writ of certiorari. Citizens Property Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344, 351-52 (Fla.2012).

Under the high standard for issuance of certiorari, the first and necessary condition is demonstration of irreparable harm. Mere legal error without irreparable harm, even a departure from the essential requirements of law, while appealable at the end of the case, is not a basis for the issuance of a writ of cer-tiorari. Unless the petitioner establishes irreparable harm, the court must dismiss the petition for lack of jurisdiction. In this regard, the Florida Supreme Court has repeatedly emphasized that “[a] finding that the petitioning party has ‘suffered an irreparable harm that cannot be remedied on direct appeal’ is a ‘condition precedent to invoking a district court’s certiorari jurisdiction.’ ” Bd. of Trustees, 99 So.3d at 454-55 (quoting Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998)).

Turning to the order we are being asked to review, it is clear it does not inflict an “irreparable harm that cannot be remedied on direct appeal.” First, the order prevents the Damskys from taking discovery to learn the contents of the communications between the University and Dr. Barkin. But an order that denies discovery normally does not rise to the level of irreparable harm because it can be readily remedied on appeal; therefore, “orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.” Neeley v. CW Roberts Contracting, Inc., 948 So.2d 844 (Fla. 1st DCA 2007); see also Esman v. Bd. of Regents, 425 So.2d 156, 157 (Fla. 1st DCA 1983) (“[T]he trial court’s interlocutory ruling denying discovery does not furnish the occasion for this court’s intervention through the use of the extraordinary writ.”).

Second, the Damskys contend that the order allows the University to engage in future ex parte communications with Dr. Barkin. Such an order may be reviewable by certiorari. See Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745, 747 (Fla. 2d DCA 2003) (granting certiora-ri review of an order that permitted a rehabilitation clinic to conduct ex parte discussions with a patient’s treating physicians); Melody v. State Dep’t of Health & Rehabilitative Servs., 706 So.2d 115, 116 (Fla. 4th DCA 1998) (holding certiorari review was appropriate to review an order that required a minor, in the minor’s action against the Department of Health and Rehabilitative Services, “to execute a release to allow [the Department] to talk to her mental health care providers without her counsel being present, or alternatively for her treating doctors to speak to counsel for [the Department] ex parte”).

But our examination of the order reveals that it does not authorize prospective ex parte communications. Although the order finds that Dr. Barkin is an employee of the University and therefore suggests that the trial court may authorize such communications, the order contains language that expressly prohibits such communications until further order of the court. At oral argument, the University acknowledged that under the existing trial court orders, the University and its lawyers cannot communicate with Dr. Barkin about his treatment of Ms. Damsky or matters relating to the underlying lawsuit unless and until they obtain an order from the court permitting such communication. The petition therefore does not demonstrate irreparable harm.

Petition for certiorari dismissed.


author: SCALES, J.

text:
    Dorit REZNEK, Appellant, v. CHASE HOME FINANCE, LLC, Appellee.
    No. 3D14-1499.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.
    Randall 0. Reder, P.A., and Randall 0. Reder, Tampa; Steven A. Greenspan, Aventura, for appellant.
    Kass Shuler, P.A., and Melissa A. Giasi and Joan W. Wadler, Tampa, for appellee.
    Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.
   ON APPELLEE’S MOTION TO STRIKE APPELLANT’S MOTION FOR ATTORNEY’S FEES PURSUANT TO SECTION 57.105(1) AND (4)

SCALES, J.

Dorit Reznek, the Appellant, (Reznek) filed a notice of appeal on June 20, 2014. In her appeal, Reznek challenges the trial court’s order denying her Motion for Entitlement to Attorney’s Fees & Costs in an underlying mortgage foreclosure action.

On August 20, 2014, prior to Reznek filing her initial brief, she served Chase Home Finance, LLC, the Appellee (Chase), with a Motion for Appellate Attorney’s Fees pursuant to section 57.105, Florida Statutes (2014).

Presumably, in an attempt to comply with the “safe harbor” requirements of section 57.105(4) and Florida Rule of Appellate Procedure 9.410(b)(3) and (b)(4), Reznek’s motion provides in pertinent part: “If appellee does not file a confession of error within 21 days of the service of this motion, Appellant will file this motion with the Court.”

Chase did not confess error. After the twenty one-day period elapsed, Reznek filed her sanctions motion with this court. Chase has responded with a motion to strike Reznek’s sanctions motion, essentially arguing that Reznek’s motion is premature.

Specifically, Chase asserts that neither section 57.105 nor rule 9.410(b) authorizes the filing of a motion seeking sanctions prior to the opposing party filing any type of paper, claim, contention, allegation or denial in the appeal. Chase argues that nothing in either the statute or the rule authorizes the filing of such a motion if, prior to any other filings in an appeal, the non-moving party simply declines to confess error.

The statute and rule are crafted to allow a party to seek sanctions against another party who has filed a paper, or otherwise asserted a claim or defense, which either (a) is not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by application of then-existing law to those material facts.

Both section 57.105 and rule 9.410(b) contemplate that a sanctions motion be directed toward a party’s specific filing or assertion. Pursuant to the procedure expressly outlined in both the statute and the rule, before a movant may file the sanctions motion with the court, the non-moving party must have at least twenty one days (the “safe harbor” period) to evaluate the efficacy of the motion and to determine whether to withdraw the challenged paper, claim, defense, contention, allegation or denial. If, as in this case, the non-moving party neither has filed a challenged paper with the appellate court nor has had the opportunity to assert in oral argument a challenged claim, defense, contention, allegation, or denial, then there is nothing for the non-moving party to withdraw.

Statutes and rules entitling a party to attorney’s fees as a sanction are in derogation of common law and are therefore strictly construed. Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So.3d 487, 490 (Fla. 3d DCA 2013). As of the date of Reznek’s motion, Chase had neither filed a paper nor asserted a defense or claim in this appeal yet to be “challenged” by Reznek.

Reznek’s Motion for Appellate Attorney’s Fees is stricken without prejudice to Reznek to file an appropriate motion after the occurrence of all conditions precedent to such filing have occurred.

The Motion to Strike is granted.

      . Section 57.105(4) states:
      A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

      . Florida Rule of Appellate Procedure Rule 9.410(b)(3) and (b)(4) state:
      (b) Motion by a Party.
      (3) Initial Service. A copy of a motion for attorneys’ fees as a sanction must initially be served only on the party against whom sanctions are sought. That motion shall be served no later than the time for serving any permitted response to a challenged paper or, if no response is permitted as of right, within 15 days after a challenged paper is served or a challenged claim, defense, contention, allegation, or denial is made at oral argument. A certificate of service that complies with rule 9.420(d) shall be taken as prima facie proof of the date of service. The certificate of filing should remain undated and unsigned.
      (4) Filing and Final Seivice. If the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected within 21 days after service of the motion, the movant may file the motion for attorneys’ fees as a sanction, as referenced in subdivision (3), with the court (a) no later than the time for service of the reply brief, if applicable, or (b) no later than 30 days after service of the motion ....
      Fla. R. App. P. 9.410(b).

        .See § 57.105(l)(a), (b), Fla. Stat. (2014). Rule 9.410(b) was adopted by the Florida Supreme Court in 2010 to make the appellate rule consistent with, and to implement the "safe harbor” provisions of, section 57.105.
        In re Amendments to the Florida Rules of Appellate Procedure, 41 So.3d 885 (Fla.2010).


author: SALTER, J.

text:
    The QUIN GROUP, INC., etc., Appellant, v. 2020 PONCE, LLC, etc., Appellee.
    No. 3D13-2877.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.

      Beck & Lee Trial Lawyers and Elizabeth Lee Beck and Jared H. Beck, Miami, for appellant.
    Phillips, Cantor, Shalek, Rubin & Pfister and Gary S. Phillips and Edward J. Pfis-ter, Hollywood; Blaik P. Ross, for appel- • lee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   SALTER, J.

In this circuit court case involving a contract for the purchase of an office condominium unit from a developer (2020 Ponce), the purchaser (The Quin Group) subpoenaed the general contractor (Beau-champ Construction Co., a non-party) to produce various records. The contractor filed objections that included a request for the reimbursement of the contractor’s general counsel at $150 an hour to remove or identify privileged documents in the estimated 35 boxes of construction documents.

The trial court instead authorized “costs” at $40 per hour for an “employee” of Beauchamp to “use good faith in reviewing documents and limiting time needed to review said documents.” Part of the handwritten order (and it is unclear who may have done the writing) stated “The purpose of reviewing the documents is to review for privilege issues prior to production.” Based on the inclusion of that sentence in the order, The Quin Group maintains that any award to Beauchamp for such a review would be an award of attorney’s fees, not costs, prohibited under the applicable rules and such cases as Attorney’s Title Insurance Fund, Inc. v. Landa-Posada, 984 So.2d 641 (Fla. 3d DCA 2008).

Neither the order for reimbursement of costs for the review and production of documents nor a subsequent order denying The Quin Group’s motion for reconsideration and rehearing fixed an amount to be awarded. At oral argument, counsel for The Quin Group argued that the parties had estimated that the task might take ten hours, so that the amount in controversy was essentially agreed.

Although we are tempted to “secure the just, speedy, and inexpensive determination,” of this $400.00 dispute in a prompt and decisive fashion, our limited jurisdiction precludes us from doing so. The orders before us are not final because the amount of any award of costs has not been determined.- See Kling Corp. v. Hola Networks Corp., 127 So.3d 833 (Fla. 3d DCA 2013). Nor do we find any other basis for jurisdiction.

Because this record reflects that the Beauchamp employee performing the document review and production is a non-lawyer, it seems unlikely that the final invoice for costs remitted to The Quin Group by Beauchamp will include attorney’s fees. But if the invoice does include such time or charges, The Quin Group will have an opportunity to raise its objections and to appeal from any resulting final order.

Appeal dismissed for lack of jurisdiction.

      . Fla. R. Civ. P. 1.010.


text:
    MILLENNIUM RADIOLOGY, LLC., etc., Appellant, v. STATE FARM MUTUAL AUTOMOBILE, etc., Appellee.
    No. 3D12-3143.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.
    The Vaccaro Law Firm, P.A., Charles L. Vaccaro (Davie), for appellant.
    Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Nancy W. Gregoire (Fort Lauderdale); Roig, Tutan, Rosenberg & Zlotnick, P.A., and Mark J. Rose (Deer-field Beach), for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Northwoods Sports Med. & Physical Rehab., Inc. v. State Farm Mut. Auto. Ins. Co., 137 So.3d 1049, 1055-57 (Fla. 4th DCA 2014)(holding that: (1) Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005), did not abrogate the English rule of priorities that the Florida Supreme Court announced in Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So.2d 95 (Fla.1965)); and (2) in an action by an assignor for No Fault Insurance benefits founded on a claim of breach of contract, the post-suit exhaustion of benefits absolves the insurer from any responsibility to pay an otherwise valid claim where the exhaustion occurred (a) after the insurer paid an amount that the provider claims is less than the contract requires; (b) after the insurer was served with a filed complaint; and (c) absent bad faith in the handling of the claim by the insurer.).


text:
    Garrick HAUGHTON, Appellant, v. STATE Of Florida, Appellee.
    Nos. 4D13-530, 4D13-531.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm appellant’s adjudications and sentences in these two consolidated appeals presented under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but remand for the trial court to enter a written order which specifies the conditions of probation appellant was found to have violated in lower court case number 502008CF009036A. See Turner v. State, 84 So.3d 389 (Fla. 4th DCA 2012); Petrie v. State, 980 So.2d 1209 (Fla. 4th DCA 2008). Appellant need not be present.

Affirmed but remanded with instructions.

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


author: DAMOORGIAN, C.J.

text:
    A.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4656.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

A.D., a juvenile, appeals from a restitution order following the court’s acceptance of his plea of no contest to one count of burglary of a dwelling and one count of grand theft. Appellant first argues that there was not sufficient valuation evidence to support the trial court’s restitution order. We disagree, concluding that the record evidence supports the trial court’s valuations. Next, Appellant argues that the trial court erred in awarding restitution for a camera because it was not specifically listed as an item stolen in the grand theft count contained in Appellant’s petition for delinquency. Appellant is correct.

As we explained in S.S. v. State, 122 So.3d 499 (Fla. 4th DCA 2013), “[w]hen a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the [sjtate as reflected in the information and/or by the factual basis for the plea.” Id. at 502 (quoting Malarkey v. State, 975 So.2d 538, 540-41 (Fla. 2d DCA 2008)). In other words, “in order for the court to require restitution, either the arrest affidavit or the facts admitted by the juvenile at the time of the plea must include the items for which the court orders restitution.” Id.

Here, there was no mention of a camera in the arrest affidavit, the petition for delinquency, or at the plea hearing. Accordingly, we reverse the restitution order as it pertains to the camera and remand for the trial court to recalculate the amount of restitution consistent with this opinion.

Affirmed in Part; Reversed in Part and Remanded.

STEVENSON and GROSS, JJ., concur.


author: GROSS, J.

text:
    Cravelyn HOOKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1044.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The circuit court denied a defendant’s unequivocal request to represent himself because he was not “qualified” to do so by his “training, education, and experience.” This ruling violated the defendant’s right to self-representation under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We reverse the judgment of conviction and remand for a new trial.

Cravelyn Hooker was charged with a form of sexual battery contrary to section 794.011(8)(b), Florida Statutes (2010). After a jury trial, he was convicted of the lesser included offense of lewd or lascivious battery.

Several months before trial began, at a pretrial motion hearing, Hooker told the trial judge, “I’d like to exercise my sixth amendment right to go pro se...When the court asked Hooker to repeat himself, Hooker said, “I say I like to go ahead and represent myself, just go ahead and take my sixth amendment right and represent myself, go pro se at this time.”

The judge questioned Hooker and learned that he had “finished up past twelfth grade” and had attended some college at Florida Memorial where he “studied to be an air conditioner refrigeration repairman.” Regarding his legal experience, Hooker said he had never been through a trial and explained that he was frustrated with counsel over delays; he felt counsel was “holding [him] back.” The judge said he did not understand why Hooker would want to go to trial “without a lawyer to help” him. Hooker responded, “No, I rather just go ahead and just go pro se.”

The trial judge denied Hooker’s request to represent himself, stating:

Well, I don’t think you’re qualified to represent yourself by your training, education and experience. I think you need a lawyer. I don’t think there’s any reason to not have a lawyer. So, I don’t think you’re capable of doing that. So, I’m going to deny that request.

The Faretta Legal Framework

Subject to some limitations, an accused has the right to self-representation at trial. Faretta, 422 U.S. at 834, 95 S.Ct. 2525. “A defendant’s choice to invoke this right ‘must be honored out of that respect for the individual which is the lifeblood of the law.’ ” Tennis v. State, 997 So.2d 375, 377-78 (Fla.2008) (quoting Faretta, 422 U.S. at 834, 95 S.Ct. 2525).

It is a. defendant’s unequivocal request for self-representation that triggers a trial judge’s obligation to conduct a Far-etta inquiry. See id. at 378 (pronouncement that defendant wanted to proceed pro se, coupled with two separate pro se motioná requesting self-representation “was an unequivocal and clear request for self-representation”); Herron v. State, 113 So.3d 852, 853-54 (Fla. 2d DCA 2012) (holding that defendant’s two handwritten motions to dismiss attorney and represent himself was an unequivocal request for self-representation); Laramee v. State, 90 So.3d 341, 344 (Fla. 5th DCA 2012) (holding that defendant’s statement, “I’m going pro-se — I’m filing. I refuse to go to court with somebody who ain’t seen me at all ...” was an unequivocal and clear request for self-representation).

■ The purpose of a Faretta hearing is ‘“to determine whether the* defendant is knowingly and intelligently waiving his right to court-appointed counsel.’ ” McCray v. State, 71 So.3d 848, 864 (Fla.2011) (quoting Tennis, 997 So.2d at 378); Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “Whether this standard is met in a given case is a fact-specific determination which must take into account all of the surrounding circumstances, including the background, experience and conduct of the accused.” Morgan v. State, 991 So.2d 984, 987 (Fla. 4th DCA 2008) (citing Edwards, 451 U.S. at 482, 101 S.Ct. 1880).

In conducting such a hearing, “the trial court is obligated to inquire about the defendant’s age, education, and legal experience” id. at 987, and must warn the defendants “of the perils and pitfalls of self-representation,” id. at 988. “Faretta instructs that ‘[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.’ ” McKinney v. State, 850 So.2d 680, 681 (Fla. 4th DCA 2003) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525).

The likelihood that a defendant would incompetently represent himself is not a valid reason to deny his unequivocal request for self-representation. See id. at 681; Tarver v. State, 145 So.3d 911, 912 (Fla. 2d DCA 2014). “Under Faretta, ‘[t]he test is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to • represent himself.’ ” Smith v. State, 956 So.2d 1288, 1289 (Fla. 4th DCA 2007) (quoting Wilson v. State, 724 So.2d 144, 145 (Fla. 1st DCA 1998)). As Florida Rule of Criminal Procedure 3.111(d)(3) provides:

Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if.the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.

Here, Hooker’s request to represent himself was unequivocal. In conduet-ing the abbreviated Faretta inquiry, the trial court focused on whether Hooker was competent to represent himself rather than on whether his waiver of his right to counsel was knowing and intelligent. The trial court precluded Hooker from representing himself for an invalid reason and never reached the issue that the Faretta hearing is supposed to resolve.

We reject the State’s contention that Hooker waived the Faretta issue by his failure (1) to file pro se motions, (2) to request new counsel, and (3) to further indicate that he wanted to represent himself. Also, the State faults Hooker for proceeding to trial with his appointed counsel. After an unequivocal request for self-representation, a defendant’s abandonment of the request must be demonstrated by record evidence that the defendant is vacillating on the issue or that he has abandoned his request altogether.

This was essentially the holding of Lindsey v. State, 69 So.3d 363 (Fla. 5th DCA 2011). In Lindsey, the defendant sought to dismiss his court-appointed counsel, stating that his counsel was discriminating against him. Id. at 364. The court held a Nelson hearing and determined that counsel was not providing ineffective assistance. Id. When the defendant asserted he wanted to proceed pro se, the court conducted an abbreviated Faretta hearing. Id. On appeal, the court determined that the defendant’s request was unequivocal, as demonstrated by the trial court’s launch into a Faretta hearing. Id. at 365. Conceding that the trial court applied the wrong standard, the State nevertheless argued the defendant waived any self-representation argument by proceeding to trial with appointed counsel. Id. The fifth district disagreed, holding that “the passage of a few months and a subsequent trial do not amount to a waiver.” Id. at 366. The court took into account the fact that the defendant “never agreed to have his appointed counsel continue to represent him” and that “the trial judge never revisited the issue to determine whether [the defendant] continued in his desire to proceed alone.” Id. at 365-66.

The facts in the instant case are similar to those of Lindsey. Hooker made an unequivocal request to discharge his counsel and represent himself, which the trial court denied. As in Lindsey, waiver is not demonstrated by the fact that Hooker proceeded to trial with appointed counsel; Hooker never expressly agreed that he had withdrawn his request to proceed pro se and the trial judge never revisited the self-representation issue with him.

For these reasons we reverse and remand for both a new trial and new Faretta hearing.

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

      . Judge Karen Miller presided over the trial in this case, and entered the judgment and sentence which was appealed. Judge Stephen Rapp presided over the November 28, 2012 pretrial hearing wherein defendant's request to represent himself was denied.

      . We do not reach the issue of whether the Faretta inquiry would have been adequate had the trial court allowed the defendant to represent himself.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Marie Barnett MILLSAPS, Appellant, v. Kurt KALTENBACH and State Farm Automobile Insurance Company, Appellees.
    Nos. 4D13-2614, 4D14-200.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.

      Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, and Webb Millsaps of Webb Millsaps Law, PL, Boca Raton, for appellant.
    Thomas Regnier and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee Kurt Kaltenbach.
    Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for ap-pellee State Farm Mutual Automobile Insurance Company.
   PER CURIAM.

Marie Barnett Millsaps (“appellant”) appeals the final order of the trial court rendering judgment after a jury verdict in favor of appellee Kurt Kaltenbach (“Kal-tenbach”) and appellee State Farm Mutual Automobile Insurance Company (“State Farm”). This case arose from an automobile accident involving appellant and Kal-tenbach. The issue presented is whether the trial court erred as a matter of law in granting a directed verdict to State Farm as to its liability on an uninsured motorist claim for the actions of an unidentified third vehicle, and in denying appellant’s motion for new trial. Because we find that appellant waived these claims at trial, we affirm.

Appellant’s original complaint alleged negligence against Kaltenbach for causing the accident. Kaltenbach filed an answer with an affirmative defense that he struck appellant’s vehicle while taking action “to avoid contact with [the driver of the unidentified vehicle],” and did not himself fail to exercise' reasonable care. Appellant filed a subsequent amended complaint that added an additional claim for uninsured/underinsured motorist coverage against State Farm under the belief that Kaltenbach was underinsured for the damages claimed, but not under the theory that State Farm would stand in the shoes of the unidentified third vehicle to compensate appellant for any percentage of the damages attributable to that driver. At trial, and over objection, appellant was permitted to amend his pleadings pursuant to rule 1.190(b) to conform to the evidence regarding the third vehicle’s negligence that Kaltenbach presented during the trial, and to add that vehicle to the uninsured motorist claim against State Farm.

During the charge conference, counsel for appellant abandoned the uninsured motorist claim against State Farm for the actions of the unidentified third vehicle, and advised the court “[w]e don’t want to blame the [unidentified vehicle].” As a result, the court directed a verdict in favor of State Farm on the uninsured motorist claim for the actions of the unidentified third vehicle. Appellant did not object to the directed verdict. Thereafter, proposed jury instructions and the verdict form were drafted to include the question of the unidentified driver’s negligence, but only as an affirmative defense to appellant’s claim against Kaltenbach. After taking time to review the proposed jury instructions and verdict form, counsel for appellant stated that he had “no objection to either the jury instructions or the verdict form.” The jury’s verdict found that there was no negligence on the part of Kalten-bach which was a legal cause of injury or damages to appellant. Appellant’s motion for new trial was denied and this appeal ensued.

In the instant case, the court granted State Farm’s motion for directed verdict as to the uninsured motorist claim against the unidentified third vehicle after appellant stated, on the record, that she did not want this claim to go to the jury, therefore essentially dismissing the claim. Counsel for appellant reviewed both the jury instructions and the verdict form before they were presented to the jury and told the trial judge that they were both acceptable. As this court stated in Hernandez v. Gonzalez, 124 So.3d 988, 993 (Fla. 4th DCA 2013):

A party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make. Gupton v. Village Key & Saw Shop, 656 So.2d 475, 478 (Fla.1995). Appellants’ inability to recover certain elements of damages in this case was a foreseeable potential outcome of counsel’s trial strategy and not a result of any error by the trial court. Taylor v. Bateman, 927 So.2d 1024 (Fla. 4th DCA 2006); Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654 (Fla. 4th DCA 1996). By seeking to have the jury decide the issue of appel-lees’ liability for all damages rather than moving for directed verdict on any or all of those damages, appellants cannot now successfully claim error simply because the jury returned a zero verdict. See Gupton, 656 So.2d at 478; see also Sheffield v. Superior Ins. Co., 800 So.2d 197, 202 (Fla.2001) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)) (Under the rule of invited error, ‘“a party may not make or invite error at trial and then take advantage of the error on appeal.’ ”).

As a result, we affirm on all issues presented.

Affirmed.

WARNER, TAYLOR and KLINGENSMITH, JJ„ concur.


author: FORST, J.

text:
    P.J.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3437.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Appellant P.J.A., a minor, appeals the denial of his motion for judgment of dismissal as to the charge of aggravated assault with a deadly weapon, arguing that the State failed to prove that the assault was made with a “deadly weapon.” We conclude that the knife held by Appellant in the incident at issue, under the circumstances of this case, sufficiently satisfied the last element of the charged offense. See Fla. Std. Jury Instr. (Crim.) 8.2. Accordingly, we affirm.

We conduct a de novo review of the denial of a motion for judgment of dismissal. A.W. v. State, 82 So.3d 1136, 1138 (Fla. 4th DCA 2012). A motion for judgment of dismissal must be granted if the evidence, viewed in the light most favorable to the State, does not support a conviction on the charge. Id.

An aggravated assault with a deadly weapon occurs when:

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
4.The assault was made with a deadly weapon.

Fla. Std. Jury Instr. (Crim.) 8.2; see also §§ 784.011(1), 784.021(1), Fla. Stat. (2013); L.C. v. State, 799 So.2d 330, 332 (Fla. 5th DCA 2001). “Deadly weapon” is defined as a weapon “used or threatened to be used in a way likely to produce death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) 8.2. Appellant’s only challenge to his conviction for aggravated assault with a deadly weapon is whether the evidence proved that “[t]he assault was made with a deadly weapon.” Id.

Appellant encountered the victim (also a minor) in his home, where the victim and her mother were also residing. After the victim’s mother took three of four knives away from Appellant, slightly cutting herself in the process, Appellant commenced twisting the remaining knife in his hand and told the victim that he was going to kill her. This statement was made while the victim was standing only two or three feet from Appellant. The knife was described as a food preparation or steak knife.

Appellant’s holding and twisting of the knife in his hand while saying that he was going to kill the victim was a threat to use the weapon “in a way likely to produce death or great bodily harm.” Id. As such, this case is clearly distinguishable from Miller v. State, 421 So.2d 746 (Fla. 4th DCA 1982), upon which Appellant relies. In that case, the defendant held a kitchen knife during a robbery but only used it to remove a stereo from the victim’s car and never threatened the victim with the knife. Id. at 747. The fact that Appellant did not step toward the victim nor raise the knife in a threatening fashion does not lead to a contrary conclusion. See Willard v. State, 386 So.2d 869, 871 (Fla. 1st DCA 1980) (“The ability to do violence was established by the presence of the knife because a knife may be thrown or used anytime it is in a person’s possession ... it is not necessary that the knife be brandished or that the perpetrator move toward the victim.”).

Because the facts, viewed in the light most favorable to the State, establish each element of the offense of aggravated assault with a deadly weapon, including that the assault was made with a deadly weapon, there was no error in the trial court denying Appellant’s motion for judgment of dismissal.

Affirmed.

CIKLIN and CONNER, JJ., concur.


text:
    Henry James WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3235.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.
    Henry James Wright, West Palm Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (where defendant is given consecutive sentences, the defendant “is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition”).

WARNER, MAY and LEVINE, JJ., concur.


text:
    Sylvera MATHURIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4189.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.
    Sylvera Mathurin, South Bay, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. St. Cyr v. State, 106 So.3d 487, 489 (Fla. 4th DCA 2013); Blacker v. State, 49 So.3d 785 (Fla. 4th DCA 2010), rev. denied, 108 So.3d 656 (Fla.2012).

GROSS, TAYLOR and KLINGENSMITH, JJ., concur.


text:
    Fallon Rahima JALLALI, Appellant, v. KNIGHTSBRIDGE VILLAGE HOMEOWNERS’ ASSOCIATION, INC., Appellee.
    No. 4D14-64.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.

      Alan Martin Medof, Boca Raton, for appellant.
    Alan Schwartzseid of Kaye Bender Rembaum, P.L., Pompano Beach, for ap-pellee.
   GROSS, J.

The circuit court entered an amended final judgment while the appeal of the original final judgment was pending in this court. We quash the amended final judgment because the circuit court was without jurisdiction to enter it.

This case began with a complaint filed by the appellee homeowner’s association to foreclose a claim of lien for the non-payment of dues. The circuit court entered a default final judgment of foreclosure on November 21, 2012. That final judgment was on appeal when appellant filed bankruptcy, triggering an automatic stay.

After the foreclosure case was permitted to proceed, the homeowner’s association moved in 2013 to amend the 2012 final judgment. At that time, the appeal from the 2012 final judgment was still pending in this court. The circuit court granted the motion and entered an amended final judgment on December 30, 2013.

The trial court erred in entering the amended judgment because the pen-dency of the appeal of the 2012 judgment divested the trial court of jurisdiction.

When an appeal is taken, “the lower court [is] divested of jurisdiction to proceed with matters related to the final judgment.” Hudson v. Hofmann, 471 So.2d 117, 118 (Fla. 2d DCA 1985) (citing Wilson Realty, Inc. v. David, 369 So.2d 75 (Fla. 2d DCA 1979)). During the appeal’s pendency, the trial court lacks jurisdiction “to modify or amend the judgment on appeal,” Brewn v. Brown, 931 So.2d 251, 251 (Fla. 1st DCA 2006), or “entertain ... motion[s] pursuant to Florida Rule of Civil Procedure 1.540(b).” State ex. rel. Schwartz v. Lantz, 440 So.2d 446, 449 n. 3 (Fla. 3d DCA 1983) (citations omitted); see, e.g., Zuckerman v. Alex Hojrichter, P.A., 630 So.2d 210, 211 (Fla. 3d DCA 1993) (“[A] trial court lacks jurisdiction to proceed on a motion for relief from judgment once appellate jurisdiction is invoked” (citations omitted)); Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 n. 1 (Fla. 4th DCA 1994) (“The pendency of the appeal divested the trial court of jurisdiction to hear the rule 1.540 motion.” (citation omitted)). Under such circumstances, the proper recourse is to ask the appellate court to “relinquish[ ] jurisdiction to the trial court.” Glatstein v. City of Miami, 391 So.2d 297, 298 (Fla. 3d DCA 1980) (citations omitted); see also Fla. R. App. P. 9.600.

A pending appeal does not entirely nullify a trial court’s ability to enter orders on a case. While the appeal is pending, the trial court retains jurisdiction “with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” Palma Sola Harbour Condo., Inc. v. Huber, 374 So.2d 1135, 1138 (Fla. 2d DCA 1979) (citations omitted). As the third district has explained:

Whether the trial court lacks jurisdiction depends not simply on the fact that an appeal in the case has been taken and is pending, but rather on the nature of the action being taken by the trial court in relation to the subject matter of the pending appeal. If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal, then the trial court can act. The jurisdiction of the appellate court is exclusive only as to the subject matter of the appeal.

Bailey v. Bailey, 392 So.2d 49, 52 (Fla. 3d DCA 1981). Thus, for example, a trial court retains jurisdiction to award post-trial attorney’s fees since such a ruling “does not interfere with the authority of the appellate court with regard to the matters under consideration in the main appeal.” Schultz v. Schickedanz, 884 So.2d 422, 424 (Fla. 4th DCA 2004) (citations omitted).

For these reasons we quash the December 2013 amended final judgment and reinstate the 2012 final judgment.

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

      . Although not stated in its motion to amend, appellee concedes on appeal its motion was filed pursuant to Florida Rule of Civil Procedure 1.540(b)(5).