author: WELLS, Judge.

text:
    David LEDO, Appellant, v. SEAVIE RESOURCES, LLC, Appellee.
    No. 3D14-21.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.
    T.P. Murphy’s Law P.A., and Thomas P. Murphy, for appellant.
    De La Cruz & Cutler, LLC, and H. Jeffrey Cutler; Albert D. Viener, Coral Gables, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   WELLS, Judge.

This is a straight forward mortgage foreclosure action to which defendant below, Appellant here, David Ledo, asserted no valid defenses, and, after his attorney withdrew because of irreconcilable differences, continued to represent himself. Ledo appeals from a resulting Final Judgment of Foreclosure entered by the trial court after the entry of an earlier order striking Ledo’s pleadings. Upon failure to respond to interrogatories, and following an order to show cause why his pleadings should not be stricken for failure to comply with discovery demands, Ledo’s pleadings were stricken by the trial court. Because the record is devoid of any excuse or hint of explanation for Ledo’s failure to comply with an express court order to respond to discovery, we affirm.

I. Facts

This action to collect on a $165,000 promissory note and to foreclose the mortgage securing it was filed by Seavie Resources, LLC on February 22, 2012. After Ledo’s attorney, Joshua Bliel of The Tick-tin Law Group, P.A., requested an enlargement of time to respond, an answer generally denying the allegations of the sworn complaint and a single affirmative defense were asserted. In sum, the defense stated:

The Defendant raises as his First Affirmative Defense the defense of Unclean Hands, as the Defendant has made several attempts to repay the amounts alleged to be due pursuant to the negotiations between the Plaintiff and Defendant, but the agents of the Plaintiff have failed to abide by those negotiations.

This answer and defense were filed on June 5, 2012, and, that same day, Seavie propounded its first set of interrogatories on Ledo. No answers or responses to these interrogatories were served within the thirty-day time limit as required by the relevant rule. See Fla. R. Civ. P. 1.340(a). Rather, an agreed order was entered granting Ledo until August 22, 2012, in which to respond.

On September 5, 2012, two weeks after answers to Seavie’s interrogatories were due, Seavie moved to compel and for sanctions for Ledo’s failure to timely respond. That same day, Ledo’s counsel moved to withdraw citing to “irreconcilable differences.” On September 13, the motion to withdraw was granted, and Ledo was ordered to either retain new counsel within thirty days or advise the court whether he was going to represent himself. That same order clearly advised Ledo that his failure to either retain new counsel or advise the court that he would continue to represent himself could result in imposition of sanctions, including striking of his pleadings:

THIS CAUSE, having come before this Court on September 13, 2012 on Motion to Withdraw as Counsel for Defendant David Ledo [hereinafter “CLIENT”], and appropriate notice having been given, it is hereby,
ORDERED AND ADJUDGED as follows:
1) The Motion to Withdraw is GRANTED.
2) Movant shall mail a copy of this order to Client forthwith.
3) Within 30 days from the date of this order, Client shall either:
a. Retain new counsel and have that counsel file a written appearance with the clerk; OR
b. File a written notice with the clerk advising that Client will represent himselfiherself....
4) Failure to comply with the preceding paragraph, will create a presumption that Client no longer wishes to participate in this lawsuit and the Court may sua sponte or on motion of opposing party impose sanctions against Client. Sanctions may include the imposition of fees and costs, striking of pleadings, entry of default, and dismissal with prejudice.
5) In the interim, Client is required to comply with orders/notices requiring Client’s appearance in court; pending orders requiring compliance are stayed for thirty days ....

(Emphasis added in paragraphs three and four). Ledo neither secured new counsel within thirty days nor notified the court below that he intended to self-represent.

On November 7, 2102, Seavie’s motion for sanctions against Ledo for his failure to respond to its interrogatories was heard. Although the motion was granted, Ledo’s pleadings were not stricken for failure to respond to Seavie’s interrogatories. To the contrary, a small monetary sanction was imposed and Ledo was accorded yet another opportunity to respond to Seavie’s discovery request:

THIS CAUSE having come on to be heard on November 7, 2012, on Plaintiffs ... Motion To compel Defendant, David Ledo’s, Answers to Plaintiffs Initial Set of Interrogatories, for Sanctions, etc. and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon ORDERED AND ADJUDGED that said Motion be, and the same is hereby 1) Granted. The defendant, David Ledo, shall provide full and complete answers to Plaintiffs interrogatories within 10 days from the date of this order. 2) Sanctions are granted for defendant’s failure to comply with the pri- or agreed order in the amount of $500 to be paid to plaintiff within 10 days. (3) Failure to comply with 1 or 2 above will result in defendant’s pleadings being stricken.

(Emphasis added).

When Ledo failed yet again to provide discovery as expressly ordered, Seavie moved for imposition of the sanctions delineated in the November 7 order (to wit, the striking of Ledo’s pleadings). On December 12, 2012, that motion was granted, and Ledo’s pleadings were stricken and judgment on liability was entered. Ledo filed no motion for reconsideration of the December 12 order striking his pleadings.

On January 22, 2013, Seavie moved for summary judgment to foreclose the mortgage securing Ledo’s defaulted loan. The motion was set for hearing on February 26, 2013. However, the day before the scheduled summary judgment hearing, Ledo, still acting pro se, filed for Chapter 7 bankruptcy protection and filed a suggestion of bankruptcy with the circuit court in the foreclosure action. As a consequence, the summary judgment hearing was stayed.

On April 25, 2013, after the bankruptcy action was dismissed, the motion for summary judgment was reset for June 3, 2013. With a hearing on Seavie’s motion for summary judgment looming, on May 16, 2013, the scheduled June 3 hearing was continued to allow Ledo to notice the appearance of new counsel and to allow that attorney to file any “motions” that might be appropriate. Ledo’s new lawyer filed no motions, but instead filed a counterclaim which purported to state claims sounding in fraud and usury.

Seavie moved to strike this pleading because Ledo’s pleadings had already been stricken and liability determined against him by virtue of the trial court’s December 12 order. Seavie’s motion was granted, Ledo’s counterclaim was stricken, and summary judgment in Seavie’s favor was entered. Ledo appeals this summary judgment. Essentially, Ledo argues that summary judgment was improper because the trial court’s December 12 order striking Ledo’s pleadings and determining Ledo’s liability lacked the express written findings of fact required by Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), and Ham v. Dunmire, 891 So.2d 492 (Fla.2004).

II. Analysis

We review the trial court’s order striking the pleadings for abuse of discretion. Ham, 891 So.2d at 495 (“[Djetermin-ing sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion.”) (citing Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)). The striking of pleadings for noncompliance with an order compelling discovery “is the most severe of all sanctions which should be employed only in extreme circumstances.” Mercer, 443 So.2d at 946.

Since Ledo was sanctioned for his own failures to comply with court orders while he was acting pro se, Kozel has no application here. See Ham, 891 So.2d at 496 (confirming that Kozel addresses “whether •a dismissal with prejudice is a warranted response to an attorney’s behavior”). Rather, this matter falls within the Mercer /Ham rubric, which mandates a determination and findings of willful or deliberate disregard of a court’s authority:

It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983). Reviewing courts apply a “reasonableness test” to determine if the trial court has abused its discretion, which provides that if reasonable people could differ as to the propriety of the trial court’s action, the action is not unreasonable, and no abuse of discretion has occurred. See id. (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). While sanctions are within a trial court’s discretion, it is also well established that dismissing an action for failure to comply with orders compelling discovery is “the most severe of all sanctions which should be employed only in extreme circumstances.” Mercer, 443 So.2d at 946. In Mercer, this Court held that “[a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Id. (citation omitted).
The dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard. See Commonwealth Fed. Savings & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990). Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation. See id. at 1273. While no “magic words” are required, the trial court must make a “finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Id.

Ham, 891 So.2d at 495-96.

The record plainly reflects that the trial court repeatedly informed Ledo: (1) of the need to respond to the interrogatory requests; and (2) that sanctions, including the striking of his pleadings, would follow if he failed to do so in a timely manner. Further, the record clearly reflects that Ledo’s failure to respond to the interrogatories was the result of Ledo’s willful and deliberate disregard of the court’s orders, rather than any mistake or inadvertence.

Under the circumstances of this case— where the record demonstrably establishes Ledo’s deliberate disregard of the trial court’s order — we do not find any reversible error in the trial court’s failure to provide written findings of fact in its December 12 order striking Ledo’s pleadings.

In Ham, the Florida Supreme Court explained:

Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.

Ham, 891 So.2d at 496 (emphasis added). In this case, the record is not susceptible to more than one interpretation — Ledo’s conduct clearly constituted willful or deliberate disregard for the court’s November 7 order — and, it is clear that the trial judge made the conscious determination that Ledo’s failure to respond to Seavie’s interrogatories was more than a mistake, neglect or inadvertence.

Affirmed.

      . More particularly, Ledo’s counterclaim alleged that the original verified complaint was a fraud because: (1) the promissory note attached to Seavie’s complaint was “a false and fraudulent document” because it bore no signature, whereas the original (and identical) later filed promissory note actually bore Ledo's signature; (2) Seavie’s complaint falsely represented that Ledo had failed to make payments required by the note because Ledo had made payments as purportedly evidenced by three checks attached to the corn-plaint; and (3) Seavie’s complaint falsely represented that $165,000 was due when Seavie had proposed a $30,000 principal modification. Ledo claimed that he was not only entitled to a judgment in his favor on these claims, but also that he was entitled to damages for slander of title and fraud and unjust enrichment as a consequence. Ledo also claimed that Seavie had charged usurious interest on a separate $8000 loan that it had made to him.

      . The instant case is distinguishable from Toll v. Korge, 127 So.3d 883, 887 (Fla. 3d DCA 2013), where this court found reversible error where:
      The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants’ collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll’s counsel.
      In Toll, this court remanded for an evidentia-ry hearing and further instructed:
      If, on remand, the trial court determines that dismissal is appropriate, the trial court shall include in its written order findings of fact with respect to each [Kozel ] factor, and individualized findings with regard to the conduct of each of the sanctioned parties and their counsel.

        Id. at 888. In the instant case, it is clear that Ledo's conduct was personally attributable to himself, rather than his attorney or any other party.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rosa M. ROLDAN & Edwin Castro, et al., Appellants, v. CITIBANK, N.A., etc., Appellee.
    No. 3D14-519.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Rehearing Denied Nov. 19, 2014.
    The Law Offices La Ley con John H. Ruiz, P.A., and John H. Ruiz, Karen J. Barnet-Backer, and Christine M. Lugo, for appellants.

      Wargo & French, LLP, and Joseph D. Wargo and Susan Capote, for appellee.
    Before ROTHENBERG, LOGUE, and .SCALES, JJ.
   PER CURIAM.

Affirmed. Sopena v. Rowland Coffee Roasters, Inc., 716 So.2d 799, 800 (Fla. 3d DCA 1998); Englander v. St. Francis Hosp., Inc., 506 So.2d 423, 424 (Fla. 3d DCA 1987) (en banc); Simmons v. Schimmel, 476 So.2d 1342, 1346 (Fla. 3d DCA 1985).


text:
    Terrance Delaney DAVIDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5594.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2014.
    Rehearing Denied Nov. 7, 2014.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hurry v. State, 978 So.2d 854 (Fla. 1st DCA 2008).

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


author: SHEPHERD, C.J.

text:
    LUANI PLAZA, INC., etc., Appellant/Cross-Appellee, v. Michael BURTON, d/b/a Burton Family Partnership, Appellee/Cross-Appellant.
    Nos. 3D11-1792, 3D11-1952.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2014.
    Rehearing Denied Nov. 6, 2014.

      John Marston, Key West; John R. Allison, III, Key West, for appellant/cross-appellee.
    Brett C. Powell and P. Brandon Perkins, Palmetto Bay, for appellee/cross-appellant.
    Before SHEPHERD, C.J, and WELLS and LAGOA, JJ.
   SHEPHERD, C.J.

This is an appeal from a final judgment rendered after a bench trial, resolving disputes between Dr. Michael Burton, the owner of two units in Luani Plaza in the City of Key West, Florida, and Luani Plaza, Inc, the business owner’s association (the “Association”) which administers the common areas of Luani Plaza. We summarily affirm the well-reasoned final judgment of the trial court in all respects sans one, that portion of the final judgment authorizing Dr. Burton to convert his units into affordable housing units. A brief recitation of the facts of this case is necessary to explain our decision.

FACTUAL AND PROCEDURAL BACKGROUND

Luani Plaza best can be described as a commercial plaza of businesses and professional offices. The entire complex resembles a strip mall. It is zoned “limited commercial” and consists of fifteen separate parcels, each a “unit.” The units are held by individual business owners in fee simple. Each “unit” includes that business owner’s individual structure, and the land in front and back of the structure. The fee simple boundaries of each unit are established by metes and bounds descriptions found in a Declaration of Covenants, Conditions and Restrictions, recorded by the developer of the Plaza in the public records of Monroe County in 1982. Though not a condominium, the ownership constitutes “a common interest community,” as generally described in the Restatement (Third) of Property: Servitudes — “a real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal.” Restatement (Third) of Prop.: Servitudes § 6.2 (2000).

The recorded Declaration provides that covenants and restrictions run with the land. There is no land owned jointly or in common by the owners of the units, but each unit owner is a member of the Association. The Association is charged by the Declaration with the responsibility to fix and collect assessments, and to maintain the “Common Area” in good condition and repair. The “Common Area” of the property is defined as “those areas upon which a building is not constructed,” as shown in a schematic in the Declaration. Every owner has a right and easement of enjoyment in and to the Common Area. Additionally, the Declaration cedes architectural control and right of approval of all proposed external modifications to structures within the project to the Association.

In 1990 and 2002, Dr. Burton (personally and through a family partnership) became owner of two units in Luani Plaza. On July 8, 2003, Dr. Burton applied to the Association for permission to erect dormers on the second floor of his units for the purpose of creating storage space. The Association neither approved nor disapproved the proposal. Rather, it advised Dr. Burton that the plans were not sufficiently complete for the Association to be able to make a decision. Dr. Burton ignored the request for further information and built the dormers. Thereafter, without notice to the Association, Dr. Burton applied to the City to convert the second floor of each unit to residential use. In connection therewith, Burton obtained from the City a recordable affordable housing restriction declaration, which he executed on December 7, 2007, without the prior knowledge or approval of the Association.

The Luani Plaza Declaration contains 146 prohibited uses of the property, ranging from “animal hospitals” to “vulcanization,” but is silent about residential use. When the Association learned of Dr. Burton’s decision to convert his units to residential use, it demanded he cease the conversion. Dr. Burton refused. On February 11, 2008, the Association amended the Declaration (Fifth Amendment), specifically to prohibit residential use of the units. When Dr. Burton nevertheless continued to move forward with his project, the Association, on June 13, 2008, filed the present action seeking a mandatory injunction against his use of the property for residential purposes. It was not until May 25, 2010, that Dr. Burton received a certificate of occupancy for the renovated units. The units first were occupied as residential units two months thereafter.

The Association argues that the use of the units as residential dwellings is incompatible with the existing commercial shopping center and professional office use. Moreover, the Association claims the conversion by Dr. Burton of his two units to residential use has increased the risk and cost of liability insurance to the Association. We find the trial court erred in concluding that Dr. Burton could put the units to residential use.

ANALYSIS

The issue presented requires an interpretation of the Declaration of Covenants, Conditions and Restrictions of Luani Plaza, Inc., as amended, and more particularly, as amended by the Fifth Amendment to the Declaration. The Declaration and all properly adopted amendments thereto form a binding contract among the owners of the “units” in Luani Plaza. See Cohn v. Grand Condo. Ass’n, 62 So.3d 1120, 1121 (Fla.2011). The interpretation of this contract and its covenants is a matter of law, and therefore reviewable by this court de novo. See Klinow v. Island Court at Boca W. Prop. Owner’s Ass’n, 64 So.3d 177, 180 (Fla. 4th DCA 2011).

We note at the outset that the Fifth Amendment to the Declaration prohibiting residential use of the units at Luani Plaza was properly adopted by the unit owners. Article X, Section 3 of the Declaration provides that it “may be amended at any time and from time to time upon execution and recordation of an instrument executed by the Owners holding not less than four-fifths of the voting interests.” The adoption of this amendment was done in accordance with these procedural requirements.

Dr. Burton argues that the Fifth Amendment nevertheless is unenforceable against him for two reasons: (1) the prohibition of the Amendment unreasonably and arbitrarily denies him the use of his own private property; and (2) the Amendment is being impermissibly applied against him retroactively. We find no merit in either position.

We have no quarrel -with Dr. Burton’s assertion that an amendment to a declaration of covenants and restrictions concerning the use of real property cannot be arbitrary, capricious or even promulgated in bad faith. See Klinow, 64 So.3d at p. 180 (citing Hollywood Towers Condo. Ass’n v. Hampton, 40 So.3d 784, 787 (Fla. 4th DCA 2010)). The test of enforceability of an amendment to a restrictive covenant is one of reasonableness. Klinow, 64 So.3d at 180. Any amendment made to a declaration of covenants and restrictions “must be exercised in a reasonable manner so as not to destroy the general plan of the development.” Holiday Pines Prop. Owners Ass’n v. Wetherington, 596 So.2d 84, 87 (Fla. 4th DCA 1992); Zerquera v. Centennial Homeowners’ Ass’n, 721 So.2d 751, 752 (Fla. 3d DCA 1998) (applying “reasonableness” measure to determine whether grantor lawfully exercised its rights to amend covenants and restrictions).

The Fifth Amendment to the Declaration in this case comprises a reasonable exercise of the amending power of the Declaration. Luani Plaza was conceived as a commercial business project, and that was its use for more than two decades before Dr. Burton decided to try to impress a residential use upon the Plaza. It is true that a prohibition on “residential use” is not among the 146 prohibited uses of the project in the Declaration. However, a cursory perusal of these prohibitions, especially when considered within the context of the entire document, leaves little doubt the scrivener had but one thing in mind — commercial use — at the time of drafting. The fact Dr. Burton declared in his application to the Association that he wished to modify the units he owned by adding dormers for the purpose of facilitating the use of the space as “storage,” followed by securing permits to modify the interior of the units to serve as affordable housing without- a mention to the Association, suggests that Dr. Burton himself may at all times have interpreted the Declaration as we do here. The arbitrariness and capriciousness of both usage and process in this case seems to fall on Dr. Burton.

Finally, the adoption of the Fifth Amendment did not impose an impermissible retroactive regulation on Dr. Burton. The Declaration obligated Dr. Burton to seek Association approval to modify the exterior of his units. There was no similar requirement for interior modification. However, Dr. Burton was subject to any amendments to the Declaration. See Flagler Federal Sav. & Loan Ass’n of Miami v. Crestview Towers Condo. Ass’n, 595 So.2d 198, 200 (Fla. 3d DCA 1992) (stating that in a common interest community governed by a declaration authorizing amendments, “unit owners who acquire[] title - prior to [an] amendment, [are] bound by the Declaration as amended”); see also, Woodside Village Condo. Ass’n v. Jahren, 806 So.2d 452, 461 (Fla.2002) (“Thus, we find that respondents were on notice that the unique form of ownership they acquired when they purchased their units ... was subject to change through the amendment process, and that they would be bound by property adopted amendments.”). In this case, Dr. Burton was on notice of the prohibition against residential use not only by the long-established character of use of Luani Plaza, but also by the recording of the Fifth Amendment in the public records of Monroe County on February 11, 2008, passed by the Association soon after it learned Dr. Burton planned to put his units to residential use. Dr. Burton did not obtain a certificate of occupancy for his converted units until May 25, 2010, more than two years after the Fifth Amendment was recorded. The Fifth Amendment was not retroactively applied against him. Rather, Dr. Burton proceeded with his interior improvements with full knowledge, from the beginning, that his units could not be used for residential purposes.

We reverse that portion of the final judgment which finds the Fifth Amendment to the Declaration unenforceable against Dr. Burton, and remand for further proceedings in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

      . The parties agree the attorney’s fee issue raised by Luani Plaza is not ripe for review. See, e.g., Demaio v. Coco Wood Lakes Ass’n, Inc., 637 So.2d 369 (Fla. 4th DCA 1994) (holding prevailing party determination not ripe until trial court actually enters an award of fees). We also clarify the issue raised by Dr. Burton regarding damages for the delay in paving the parking areas. The trial court found "defendant” liable for additional costs incurred by Luani Plaza due to the City’s refusal to issue a permit. At this point, the City was a defendant in the action. The award of $4,897.01 to Luani Plaza against Dr. Burton did not include an amount for damages occasioned by the paving delay. The trial court determined the City responsible for improperly denying the permit. Thus, we do not read the final judgment as holding Dr. Burton liable for expenses associated with this delay.

      . Dr. Burton contends he did so in reliance on Article VIII of the Declaration that deems a request approved unless the Board of Directors of the Association "fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it.” Burton maintains the Board of Director's response was neither and therefore he was authorized to continue with his modification.

      . Dr. Burton also references Article X, Section 4, of the Declaration, which provides for future annexation of residential property. However, annexing contiguous property, which previously may have been used for residential purposes, does not equate to converting original property, used exclusively for commercial and professional purposes, to resr idential use. Rather the annexed residential property would become commercial property upon being added to Luani Plaza.


text:
    Franklin RIDGWAY, Appellant, v. Julissa Taipe RIDGWAY, Appellee.
    No. 3D13-2295.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2014.
    Rehearing Denied Nov. 7, 2014.

      Franklin Ridgway, in proper person.
    Florida International University, College of Law, and Laverne Pinkney and Ricardo Rodriguez, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    BAGGETT BROTHERS FARM, INC., Appellant, v. ALTHA FARMERS COOPERATIVE, INC., Appellee.
    No. 1D13-4200.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Rehearing Denied Nov. 7, 2014.
    Mark A. Bednar of Mark A. Bednar, P.A., Pensacola, for Appellant.
    Andrea C. Lyons and John H. Adams of Emmanuel, Sheppard & Condon, Pensacola, for Appellee.
   PER CURIAM.

Appellant Baggett Brothers Farm, Inc. (Baggett) appeals a final order finding that Baggett was in violation of a Chapter 11 bankruptcy reorganization plan. Baggett raises several issues. We affirm on all issues but one. We find the circuit court erred in the measure of damages awarded.

Baggett filed for Chapter 11 bankruptcy in federal bankruptcy court. Baggett entered into a reorganization plan that stated Baggett owed $386,862.44 to one of its creditors, appellee Altha Farmers Cooperative, Inc. (Altha). The plan required Baggett to repay Altha in annual payments over 10 years. The bankruptcy court confirmed the plan and closed the case. Altha later brought an action in state circuit court alleging that Baggett breached the plan by making only the first annual' payment in 2007, but failing to make annual payments thereafter. The circuit court ruled in favor of Altha and awarded Altha damages in the amount of the debt owed under the plan, $386,862.44, minus the single annual payment made by Baggett in 2007.

We find that the circuit court had subject matter jurisdiction because a Chapter 11 bankruptcy reorganization plan is a contract that may be enforced in state court. See In re Troutman Enters., Inc., 253 B.R. 8, 11 (6th Cir. BAP 2000) (“The plan is essentially a new and binding contract between the Reorganized Debtor and the Petitioning Creditors.... If a reorganized debtor defaults under a plan, creditors have several options, including enforcing the plan terms in any court of competent jurisdiction.”); Paul v. Monts, 906 F.2d 1468, 1476 (10th Cir.1990) (finding a state law breach of contract action may be brought to enforce a Chapter 11 bankruptcy plan “[ejxcept where state law would directly conflict with the federal bankruptcy provisions”).

However, we find the circuit court erred in awarding Altha the full amount of debt owed under the plan, minus the single annual payment. The plan did not contain an acceleration provision that permitted accelerating the full amount of debt in the event of nonpayment. See Miller v. Balcanoff, 566 So.2d 1340, 1342 (Fla. 1st DCA 1990) -(“[I]t is well established that a maker’s obligation under an installment note may not be accelerated in the absence of an acceleration provision”). Thus, we reverse and remand for the circuit court to enter a final judgment awarding damages only as to the amount of payments actually missed.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

WOLF, ROBERTS, and OSTERHAUS, JJ., concur.


author: LOGUE, J.

text:
    Harold CRANE, Appellant, v. LIFEMARK HOSP. OF FLA., INC., etc., Appellee.
    No. 3D13-2510.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2014.
    Rehearing Denied Nov. 17, 2014.

      Matthew W. Dietz, Miami, for appellant. Lash & Goldberg LLP and Martin B. Goldberg and Lorelei J. Van Wey, Miami, for appellee.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   LOGUE, J.

We review the decision of the Florida Commission on Human Relations which held that it lacked jurisdiction to adjudicate a complaint filed by Harold Crane, who is deaf, against Lifemark Hospital of Florida, Inc., for failure to provide an American Sign Language interpreter. The issue on appeal is whether a private hospital in Florida constitutes a “public accommodation” under the Florida Civil Rights Act of 1992 by virtue of having a cafeteria within its premises. Based on express language in the Act that excludes cafeterias in hospitals from the provisions of the Act, we agree with the Commission that it does not have jurisdiction. Accordingly, we affirm the Commission’s determination that it lacked jurisdiction of this dispute.

FACTS AND PROCEDURAL BACKGROUND

In his complaint, Crane alleged he is deaf, does not speak, and that his primary language is American Sign Language. During his four-day admission to the Hospital, Crane alleges, the telecommunications device for the deaf provided to him by the Hospital was inadequate, and although he requested an interpreter, the Hospital failed to provide one until an hour before he was discharged. As a result, at various points during his stay, he was unable to understand or communicate with the doctors and nurses who treated him. Particularly pertinent to the legal issue on appeal, Crane alleged the Hospital “is a covered accommodation by the presence of a food service establishment including the hospital cafeteria, and snack bar on the first floor called Out Takes, as well as vending machines.”

After his discharge, Crane filed the complaint at issue. The Commission dismissed the complaint for lack of jurisdiction. It determined that a private hospital is not a public accommodation covered by the Act. Crane timely appealed.

ANALYSIS

The Florida Civil Rights Act of 1992 prohibits discrimination based on handicap in places of public accommodation. In this regards, it reads:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public' accommodation, as defined in this chapter, without discrimination or segregation on the ground of race, color, national origin, sex, handicap, familial status, or religion.

§ 760.08, Fla. Stat. (2011).

As the language quoted above indicates, however, the provisions of the act extend only to a “place of public accommodation.” The Act defines “public accommodation” by listing specific types of establishments and by including a general catégory at the end of its definition. The establishments specifically , listed do not include hospitals. Crane, however, relies on the general provision at the end of the definition. The definition reads, in pertinent part:

“Public accommodations” means places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this section:
(d) Any establishment which is physical- . ly located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment. ■

§ 760.02(11), Fla. Stat. (2011) (emphasis added).

Crane contends that the existence of the cafeteria on the grounds of the Hospital causes the Hospital to qualify as a public accommodation because the cafeteria, a covered establishment, is located within the Hospital and the Hospital holds itself out as serving the patrons of the cafeteria. The Florida Civil Rights Act, however, includes specific language that excludes from its provisions food service establishments located in private hospitals.

Section 509.092 of the Florida Civil Rights Act expressly prohibits discrimination in public food service establishments. It reads:

Public lodging establishments and public food service establishments are private enterprises, and the operator has the right to refuse accommodations or service to any person who is objectionable or undesirable to the operator, but such refusal may not be based upon race, creed, color, sex, physical disability, or national origin. A person aggrieved by a violation of this section or a violation of a rule adopted under this section has a right of action pursuant to s. 760.11.

The Act, however, goes on to define public food service establishments in a manner that expressly excludes from its provisions food service establishments in facilities certified or regulated by the Florida Agency for Health Care Administration. The definition with this exclusion reads:

(5)(a) “Public food service establishment” means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.
(b) The following are excluded from the definition in paragraph (a):
4. Any eating place maintained by a facility certified or licensed and regulated by the Agency for Health Care Administration or the Department of Children and Families or other similar place that is regulated under s. 381.0072.

§ 509.013(5)(a)-(b)(4), Fla. Stat. (2011) (emphasis added).

The Hospital is a facility that is certified, licensed, and regulated by the Florida Agency for Health Care Administration; among other things, it is required to have a license issued by the Agency for Health Care Administration in order to operate as a hospital. § 395.003(l)(a), Fla. Stat. (2011). The cafeteria within its premises is therefore excluded from the definition of “public food service establishments” covered by the Florida Civil Rights Act. Because the cafeteria in the Hospital is not a covered establishment, the cafeteria’s location within the premises of the Hospital does not cause the Hospital to become a covered establishment.

The idéntical interpretation of the statutes was reached by the federal district court in Martin v. Halifax Healthcare Systems, Inc., No. 6:12-cv-1268-Or1-31DAB, 2014 WL 1415647, at *2 (M.D.Fla.Apr. 11, 2014). The Court reasoned:

The [Act’s] definition of “public accommodations” includes the following: “Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.” Fla. Stat. § 760.02(ll)(d) (emphasis added).... [T]he Defendants point out that the statutory definition of “public food service establishment,” found at Fla. Stat. § 509.013(5)(b)(4) excludes eating places that are maintained by a facility certified or licensed and regulated by the Agency for Health Care Administration (henceforth, the “AHCA”), which licenses Halifax Hospital.... In response, the Plaintiffs cite to cases under federal law in which the existence of hospital cafeterias turned hospitals into places of public accommodation, but fail to point to any evidence supporting the same result in this case or offer any argument that would overcome the exclusion, under Florida law, for eateries operated by AHCA-licensed entities. Summary judgment will be entered in favor of the Defendants ....

Most importantly, this interpretation of the Act was adopted by the Florida Commission on Human Relations in deciding it had no jurisdiction in this case. Crane v. Lifemark Hosp. of Fla., Inc., Final Order No. 13-058 (FCHR Sept. 12, 2013); see also Mena v. Lifemark Hosp. of Fla., Inc., Final Order No. 12-023, at 3 (FCHR May 16, 2012) (“[T]he presence of a cafeteria maintained by a hospital and located in the hospital cannot turn the hospital into a ‘a place of public accommodation’ as defined by the Florida Civil Rights Act.”), aff'd, Mena v. Lifemark Hosp. of Fla., Inc., 109 So.3d 787 (Fla. 1st DCA 2013). Because the Commission is charged by the Legislature to investigate complaints of discrimination under the Florida Civil Rights Act, section 760.06(5), Florida Statutes (2011), its interpretation of the Act is entitled to due deference from this court. Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002) (“An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference,” and “a court will not depart from the contemporaneous construction of a statute by a state agency charged with its enforcement unless the construction is ‘clearly erroneous.’ ”) (citations omitted). The interpretation by the Florida Commission on Human Relations is far from clearly erroneous: indeed, we find it persuasive.

Crane notes, however, that the Florida Civil Rights Act provides that its purposes “are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status .... ” § 760.01(3). The Act then expressly requires that its terms “shall be construed according to the fair import of its terms and purposes stated in this section and the special purposes of the particular provision involved.” Id. Based on this language, Crane suggests that the court should go beyond the literal meaning of the Act in order to effectuate its broad, remedial purpose.

The language of the Act requiring that it be interpreted broadly to fulfill its remedial purpose, however, does not displace the fundamental canons of statutory interpretation that (1) “legislative intent is the polestar that guides this Court’s interpretation” and (2) “[t]o discern legislative intent, we look ‘primarily’ to the actual language used in the statute.” Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006); see also Delva v. Cont’l Group, Inc., 137 So.3d 371 (Fla.2014) (interpreting the Florida Civil Rights Act of 1992, holding “[w]hen construing a statute, this Court attempts to give effect to the Legislature’s intent, looking first to the actual language used in the statute and its plain meaning”) (citations and quotations omitted). Applying these fundamental canons of statutory construction, we find that the broad statement in the Act that it should be interpreted to accomplish its remedial purposes does not authorize a court to ignore the Legislature’s clear, unambiguous, and express exclusion of cafeterias in hospitals from the statutory definition of “public food service establishments.”

CONCLUSION

Because the eating establishments are not covered under the Florida Civil Rights Act, they do not turn the Hospital into a “place of public accommodation” under section 760.02(ll)(d). Accordingly, the Commission was correct when it determined it had no jurisdiction.

Affirmed.

      . The Legislature has expressly indicated twice that the Florida Civil Rights Act includes specific statutory sections in both chapters 760 and 509, Florida Statutes. § 760.01(1), Fla. Stat. (2011) (“Sections 760.01-760.11 and 509.092 shall be cited as the 'Florida Civil Rights Act of 1992' ”); § 760.02(1) (" ‘Florida Civil Rights Act of 1992’ means ss. 760.01-760.11 and 509.092”).

      . Because we rely on an express exclusion that exists in Florida Statutes and not federal statutes, we are not reaching the issue of whether a covered cafeteria within a hospital would cause the hospital to qualify as a "covered establishment.” In the context of federal statutes, courts are divided on this issue. Compare Goonewardena v. N. Shore Long Island Health Sys., No. 11 CV 2456, 2012 WL 7802351, *10 (E.D.N.Y. Nov. 5, 2012) ("[T]he case law in this Circuit is clear that a private hospital is not a place of public accommodation under Title II of the Civil Rights Act .... ”), and Foster v. Howard Univ. Hosp., No. Civ. A. 06-244, 2006 WL 2938701, *2 (D.D.C. Oct. 13, 2006) (holding Howard University Hospital is not a place of public accommodation under Title II of the Civil Rights Act), with U.S. v. Med. Soc’y of S.C., 298 F.Supp. 145 (D.S.C.1969) (holding that where a hospital included a snack bar and cafeteria that held themselves out to serve patrons of the hospital, the hospital itself was a place of public accommodation under the federal Civil Rights Act).


author: ' PER CURIAM.

text:
    Ananias WESTBROOK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2226.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2014.
    Ananias Westbrook, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   ' PER CURIAM.

We affirm without further discussion the trial court’s order denying Appellant’s motion to correct illegal sentence. However, we write to place Appellant Ananias Westbrook on notice that the issue in the instant appeal has been raised by him in prior motions filed with the trial court and in prior appeals filed with this court, and has been resolved on the merits adversely to Appellant. See Westbrook v. State, 122 So.3d 378 (Fla. 3d DCA 2013); Westbrook v. State, 116 So.3d 391 (Fla. 3d DCA 2013). The filing of repetitive motions, and the prosecution of repetitive appeals, seeking to re-litigate claims which have previously been resolved on the merits and affirmed on appeal constitutes an abuse of the judicial process and subjects a pro se party to sanctions. The right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive, meritless or frivolous collateral claims in a criminal proceeding. State v. Spencer, 751 So.2d 47 (Fla.1999). Other possible sanctions include the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action. See § 944,279(1), Fla. Stat. (2014). “Given the possibility of sanctions, prisoners should ‘stop and think’ before filing frivolous collateral criminal challenges or appeals.” Marc v. State, 46 So.3d 1045 (Fla. 4th DCA 2010) (quoting Spencer v. Fla. Dep’t of Corr, 823 So.2d 752, 756 (Fla.2002)).

Affirmed.


text:
    Harold CRANE, Appellant, v. MOUNT SINAI MEDICAL CENTER, Appellee.
    No. 3D13-2025.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2014.
    Rehearing Denied Nov. 17, 2014.
    Matthew L. Dietz, for appellant.
    Lash & Goldberg and Lorelei J. Van Wey, Miami, for appellee.
    Before WELLS, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Crane v. Lifemark Hosp. of Fla., Inc., No. 3D13-2510, 2014 WL 5151621 (Fla. 3d DCA 2014); Martin v. Halifax Healthcare Sys., Inc., 2014 WL 1415647, *2 (M.D.Fla. Apr.11, 2014).


text:
    Derrick G. JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-378.
    District. Court of Appeal of Florida, Third District.
    Oct. 22, 2014.
    Ana M. Davide, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Crim. P. 3.850(h) (providing that “a court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits....”); McCrae v. State, 437 So.2d 1388,1390 (Fla.l983)(hold-ing that a rule 3.850 motion based upon grounds which either were or could have been raised on appeal may be summarily denied, and further holding that a rule 3.850 motion is “successive” when it raises substantially the same grounds as a previous motion and that previous motion was decided on the merits). See also, Zeigler v. State, 632 So.2d 48 (Fla.1993); Foster v. State, 614 So.2d 455 (Fla.1992).


text:
    Ansar F. MOHAMMED, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3197.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.
    James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

After Appellant pled no contest to certain sex’ offenses involving a minor, the court placed him on sex offender probation with a condition that he not reside within 1000 feet of any place where children regularly congregate. Appellant challenges an order denying his request to remain at his residence, which is within 1000 feet of a child care facility, while serving sex offender probation. Appellant argues that, because the child care facility moved within 1000 feet of his home after he purchased it but before he committed the crime for which he was placed on probation, he should have been permitted to remain in his home, notwithstanding this mandatory probation condition. He argues that the applicable statute expressly permits him to remain in the home, or that the applicable statute is ambiguous on this point and should be construed in his favor. Concluding that the statute is not ambiguous, and does not permit Appellant to remain in his residence, we affirm.

Pursuant to a plea agreement, Appellant pled no contest to sixteen counts of unlawful possession of materials depicting sexual performance by a child and the State nolle prosequied the remaining thirty-one charges. The offenses occurred in August and September 2012. On August 8, 2013, the court sentenced him to an aggregate of twenty years of sex offender probation (a downward departure sentence). The court imposed the standard sex offender conditions, including the condition that “[i]f the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, day care center, park, playground or other places where children regularly congregate, as prescribed by the court.” At sentencing, Appellant and his attorney signed a list containing all the special conditions for sex offender probation and filed it with the court.

Appellant later filed a motion to “clarify” his sentence. In it, he explained that he had purchased and had been living in his home since February 2008. He represented that the child care facility, which is within 1000 feet of his home, had not been established until July 2009. He asked the court to clarify its probation order to allow him to remain living in his home. After a hearing, the lower court denied relief.

The dispositive issue on appeal turns on the construction of section 948.30(1), Florida Statutes (2013), which, in pertinent part, provides:

948.30 Additional terms and conditions of probation or community control for certain sex offenses ...
(1) Effective for probationers ... whose crime was committed on or after October 1, 1995, and who are placed' under supervision for violation of ... s. 827.071 ..., the court must impose the following conditions in addition to all other standard and special conditions imposed:
(b) If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, child care facility, park, playground, or other place where children regularly congregate, as prescribed by the court.... A probationer ... who is subject to this paragraph may not be forced to relocate and does not violate his or her probation ... if not be forced to relocate he or she is living in a residence that meets the requirements of this paragraph and a school, child care facility, park, playground, or other place where children regularly congregate is subsequently established within 1,000 feet of his or her residence.

§ 948.30(1), Fla. Stat. (2013) (emphasis added).

Appellant contends that the last sentence of section 948.30(l)(b) authorizes him to remain in his residence or, at the very least, it is ambiguous, necessitating that we employ the rule of lenity in construing the statute. We disagree. The statute only applies to a “probationer ... subject to this paragraph.” Appellant did not become a probationer subject to the statute until after he was convicted and placed on probation in 2013. At that time, the child care facility was already in place and within 1000 feet of his residence. Thus, at the time Appellant became a probationer subject to the statute, his residence did not “meet[ ] the requirements of [section 948.30(1) ].” Therefore, the last sentence of section 948.30(l)(b) does not apply to his situation and the trial court did not err in denying his request to remain in his home.

AFFIRMED.

TORPY, C.J., ORFINGER and EVANDER, JJ., concur.


author: ORFINGER, J.

text:
    Montrell L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3867.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.

      Michael H. Lambert, of Lambert Law, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Montrell L. Johnson appeals the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. We affirm, but write to address Johnson’s claim that his trial counsel was ineffective for failing to object to the improper- reclassification of his charged crime. While we agree that Johnson’s conviction for aggravated battery should not have been reclassified to a first-degree felony, we conclude that his twenty-year sentence is otherwise legal.

At trial, the State presented eyewitness testimony that Johnson shot the victim after the two engaged in an altercation outside a nightclub. In addition to finding Johnson guilty of aggravated battery with a firearm, the jury made special findings that Johnson (1) possessed a firearm; (2) discharged a firearm; and (3) discharged a firearm and, as a result, caused great bodily harm and/or permanent disability and/or permanent disfigurement to the victim. On direct appeal, this Court held that because the jury found that Johnson’s discharge of the firearm had “caused great bodily harm and/or permanent disability and/or permanent disfigurement,” the twenty-five-year minimum enhancement set forth in section 775,087(2)(a)3., Florida Statutes (2007), commonly known as the “10-20-Life” statute, was not applicable. That provision of the statute does not apply when the result is “permanent disability” or “permanent disfigurement.” It applies only to “great bodily harm.” See Johnson v. State, 53 So.3d 360 (Fla. 5th DCA 2011). On remand, Johnson was re-sentenced to twenty years in prison pursuant to section 775.087(2)(a)2. He contends that his sentence is illegal.

Trial counsel’s failure to object to an illegal sentence constitutes ineffective assistance of counsel. Hernandez v. State, 30 So.3d 610, 612-13 (Fla. 3d DCA 2010) (citing Rudolph v. State, 968 So.2d 633 (Fla. 2d DCA 2007); Penn v. State, 941 So.2d 466 (Fla. 1st DCA 2006)). “Aggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime.” Jacobs v. State, 954 So.2d 1268,1269 (Fla. 2d DCA 2007) (citing Lareau v. State, 573 So.2d 813, 815 (Fla.1991); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996)). Here, the State charged Johnson in a way that made use of a firearm an essential element. Thus, reclassification was not permitted. § 775.087(1), Fla. Stat. (2007).

However, while section 775.087(2) establishes various minimum mandatory sentences when a crime is committed with a firearm,.it does not change the degree of the offense, though the practical effect may be similar. Under section 775.087(2)(a)2., Johnson is subject to a twenty-year minimum mandatory sentence even though aggravated battery is a second-degree felony. Regardless of whether the use of a firearm is an element of the crime, the minimum mandatory sentence is required here because, as the jury found, Johnson actually discharged a firearm during the commission of the felony. See § 775.087(2)(a)2., Fla. Stat. (2007); Edwards v. State, 108 So.3d 696, 697 (Fla. 5th DCA 2013) (holding that defendant’s aggravated battery with firearm conviction should not have been reclassified as first-degree felony, and therefore, he should have been sentenced to twenty-year, not twenty-five-year, imprisonment term). “Reclassification speaks to the degree of the crime charged .... ” Cooper v. State, 455 So.2d 588, 589 (Fla. 1st DCA 1984). Reclassifications and minimum mandatory sentences operate independently of each other. State v. Smith, 470 So.2d 764, 766 (Fla.. 5th DCA 1985).

We conclude that the trial court was required to impose the twenty-year minimum mandatory sentence mandated by section 775.087(2)(a) while not reclassifying the offense as prohibited by section 775.087(1). We affirm the trial court’s order, but remand this matter to the trial court to correct the scrivener’s error in the sentencing documents indicating that Johnson’s conviction was for a first-degree felony. Johnson’s conviction was for a second-degree felony, but he was still subject to the 10-20-Life minimum mandatory.

AFFIRMED and REMANDED for correction of scrivener’s error.

SAWAYA and BERGER, JJ., concur.

      . Appellate counsel did not serve as Johnson’s trial counsel.

      . The State charged that Johnson, while in possession of a firearm, did actually and intentionally touch or strike LAQUS-HIA C[J POLLARD against [her] will ... and in doing so, discharged a handgun, a firearm and deadly weapon, which caused great bodily harm and/or permanent disability and/or permanent disfigurement to LAQUSHIA POLLARD, contrary to Florida Statutes 784.045(l)(a)(l)(2) and 775.087(2)(a)(3). (1 DEG FEL)

      . We do not address a situation when both a reclassification and a minimum mandatory apply.

      . Johnson’s reliance on Brady v. State, 65 So.3d 599 (Fla. 5th DCA 2011), is misplaced. Brady dealt with a crime that occurred in 1995, before the enactment of the 10-20-Life statute on July 1, 1999. Hence, Brady does' not consider the interplay of the statutes at issue here.


author: COHEN, J.

text:
    Steven J. WIEBE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-544.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.

      Steven J; Wiebe, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee; and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Appellant, Steven Wiebe, appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.801 motion for correction of jail credit. We reverse and remand.

In 2000, Wiebe was charged with two counts of sexual battery on a child under twelve years of age. In 2002, the State nolle prossed those charges after unsuccessfully appealing an order suppressing a statement Wiebe made to law enforcement. Wiebe had been incarcerated awaiting trial, but he was released after the charges were dropped.

Eight years later, the State reopened Wiebe’s case during the course of a new investigation. Charges were refiled, and Wiebe entered a no-contest plea to two counts of sexual battery on a person under twelve years of age. According to Wiebe, those were the same charges that he faced in 2000. The trial court sentenced him as a sexual predator to life imprisonment without the possibility of parole. That judgment and sentence was affirmed on appeal. See Wiebe v. State, 111 So.3d 897 (Fla. 5th DCA 2013). The issue presented here is whether Wiebe is entitled to credit for the time that he spent in jail awaiting trial in 2000.

Currently, life means life, and granting Wiebe additional credit for time served will have no practical effect on his sentence. But we recognize that Florida’s sentencing laws are subject to change, and we do not know how the Legislature might amend Florida’s sentencing scheme in the future.

Section 921.161, Florida Statutes, provides that defendants are entitled to credit for time served:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

§ 921.161(1), Fla. Stat. (2013). And “[t]he fact that the sentence is for life does not diminish the requirement to allow credit for time served.” Lyttle v. State, 352 So.2d 942, 943 (Fla. 2d DCA 1977) (citation omitted). The State has not cited any authority for the proposition that if the State nolle prosses a charge and later refiles, which is not uncommon, a defendant held on that charge pending trial loses the right to credit for time served. Rather, the cases relied upon by the State hold that defendants are not entitled to credit for time served for different offenses committed on different dates. Wiebe’s motion, however, alleges that he was originally held on the same charges for which he is currently imprisoned. Although the length of time between the dismissal of the charges and the refiling in this case is unusual, the concept remains the same.

We reverse and remand for the trial court to either grant the additional jail credit or hold an evidentiary hearing to determine Wiebe’s entitlement to credit.

REVERSED and REMANDED.

PALMER and LAWSON, JJ„ concur.

      . At this stage, we accept the allegations in Wiebe's motion as true. See Sampson v. State, 598 So.2d 211, 211 (Fla. 2d DCA 1992).

      . For instance, the Legislature has recently discussed a program that would allow for the release of elderly inmates. See S.B. 426, 2012 Leg., Reg. Sess. (Fla.2012).


text:
    Nevin R. BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3003.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.
    Nevin Baker, Sneads, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 9, 2014 order denying Petitioner’s amended motion for postconviction relief filed in Case No. 48-2009-CF-001414, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON and WALLIS, JJ., concur.


text:
    Charles L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-60.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2014.
    Charles L. Johnson, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp and Charlene L. Matthews, Assistant Attorneys General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The State properly concedes that the record does not conclusively refute the first two claims of Johnson’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On remand, the trial court shall either attach portions of the record that conclusively refute these claims or grant an evidentiary hearing. We affirm the trial court’s summary denial of Johnson’s remaining claims.

AFFIRMED, in part; REVERSED, in part; REMANDED.

PALMER, EVANDER and WALLIS, JJ., concur.


text:
    Kevin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3287.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Melissa J. Ford, Assistant Regional Conflict Counsel, Office of Jeffrey E. Lewis, Criminal Conflict & Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises four minor sentencing errors in this Anders appeal: (1) imposition of a $230 cost pursuant to section 938.05(l)(a), Florida Statutes (2009), when the statutory maximum is $225; (2) imposition of a $415 cost pursuant to section 775.083(2) when the statutory maximum is $50; (3) imposition of the $100 cost of prosecution without citing the statutory basis for the cost; and (4) imposition of the $100 cost of defense without citing the statutory basis for the cost or giving Appellant an opportunity to contest the amount of the cost. We affirm Appellant’s convictions and prison sentences without comment, but based upon the State’s concession of error in its response to our Harrison order, we remand for the trial court to correct the sentencing errors raised by Appellant.

AFFIRMED and REMANDED with directions.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.

      . Harrison v. State, 146 So.3d 76 (Fla. 1st DCA 2014) (on motion for rehearing).

      . We recognize that the trial court entered an order on April 14, 2014, affording Appellant an opportunity to contest the cost of defense and directing the clerk of the lower tribunal to correct the other cost issues raised by Appellant, but that order (and the resulting corrected judgment and sentence) is a nullity because it was filed more than 60 days after Appellant filed his rule 3.800(b)(2) motion. See Fla. R. Crim. P. 3.800(b)(1)(B); Ogden v. State, 117 So.3d 479 (Fla. 1st DCA 2013). That said, we see no reason that the trial court could not simply reenter that order on remand.


text:
    Todrick ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1891.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.
    Rehearing Denied Nov. 19, 2014.
    Todrick Roberts, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed.

ORDER TO SHOW CAUSE

On September 9, 1997, the trial court declared Todrick Roberts a/k/a Natan Torres a habitual violent felony offender based upon a robbery conviction and sentence of forty years with a fifteen-year minimum mandatory sentence. Roberts has since filed an overwhelming number of pro se motions challenging his conviction and. sentence, all of which were denied. We now order Roberts to show good cause within forty five days from the date of this opinion why he should not be prohibited from filing further pro se proceedings in this Court concerning his conviction and sentence imposed in case number F97-4142.

I. Facts

On October 12, 2012, the trial court issued Roberts an order to show cause within thirty days why he should not be barred from filing pro se motions. Roberts failed to show cause after which the trial court on December 11, 2012 issued an order prohibiting Roberts from filing further pro se pleadings, motions, or petitions.

Roberts has filed at least six pro se Motions to Correct Illegal Sentence pursuant to Florida Rule of Criminal Procedure 3.800. The trial court denied these motions, and this Court affirmed all of the denials. See Roberts v. State, 109 So.3d 1168 (Fla. 3d DCA 2013); Roberts v. State, 46 So.3d 1012 (Fla. 3d DCA 2010); Roberts v. State, 990 So.2d 594 (Fla. 3d DCA 2008); Roberts v. State, 946 So.2d 28 (Fla. 3d DCA 2006); Roberts v. State, 765 So.2d 714 (Fla. 3d DCA 2000).

Roberts then petitioned the Florida Supreme Court to review this Court’s affir-mance relative to the trial court’s denial of one of his Motions to Correct Illegal Sentence. See Roberts v. State, 946 So.2d 28 (Fla. 3d DCA 2006). The Florida Supreme Court dismissed his petition for review. Roberts v. State, 956 So.2d 456 (Fla.2007). The United States Supreme Court likewise denied Roberts’ petition for writ of certiorari. Roberts v. Florida, 550 U.S. 941, 127 S.Ct. 2261, 167 L.Ed.2d 1102 (2007). The United States Supreme Court also denied his petition for rehearing. Roberts v. State, 551 U.S. 1178, 128 S.Ct. 11,168 L.Ed.2d 788 (2007).

Roberts again sought review before the Florida Supreme Court relative to this Court’s affirmance of the trial court’s denial of another Motion to Correct Illegal Sentence, see Roberts v. State, 990 So.2d 594 (Fla. 3d DCA 2008), which the Florida Supreme Court ultimately dismissed. Roberts v. State, 996 So.2d 213 (Fla.2008). The United States Supreme Court denied Roberts’ petition for writ of certiorari. Roberts v. Florida, 555 U.S. 1215, 129 S.Ct. 1530,173 L.Ed.2d 661 (2009).

Additionally, Roberts has filed at least four pro se Motions for Post-Conviction Relief pursuant to Florida Rule of Criminal Procedure 3.850. This Court affirmed the trial court’s denials of these motions. See Roberts v. State, 93 So.3d 1039 (Fla. 3d DCA 2012); Roberts v. State, 5 So.3d 683 (Fla. 3d DCA 2009); Roberts v. State, 949 So.2d 211 (Fla. 3d DCA 2007); Roberts v. State, 892 So.2d 494 (Fla. 3d DCA 2004).

Roberts has also filed four petitions, two seeking writs of mandamus and two seeking writs of habeas corpus, and this Court has denied all of the petitions. See Roberts v. State, 41 So.3d 908 (Fla. 3d DCA 2010). Roberts v. State, 17 So.3d 299 (Fla. 3d DCA 2009); Roberts v. State, 854 So.2d 202 (Fla. 3d DCA 2003); Roberts v. State, 842 So.2d 122 (Fla. 3d DCA 2003). Recently, this Court denied his petition for belated appeal. Roberts v. State, No. 3D14-0359, 2014 WL 1513985 (Fla. 3d DCA Mar. 12, 2014).

II. Analysis

We recognize that incarcerated persons must be provided with a full panoply of procedural vehicles with which to challenge the lawfulness of their incarceration. State v. Spencer, 751 So.2d 47, 48 (Fla.1999). On the other hand, successive motions which have been heard, considered, rejected, and then raised again, are an abuse of process. Concepcion v. State, 944 So.2d 1069, 1072 (Fla. 3d DCA 2006).

This Court has the inherent authority and duty to limit abuses of the judicial process by pro se litigants. Golden v. Buss, 60 So.3d 461, 462 (Fla. 1st DCA 2011). This is particularly true in this case where, over the course of about fifteen years, Roberts has filed at least six pro se Motions to Correct Illegal Sentence, four Motions for' Post-Conviction Relief, two writs of mandamus, two writs of habe-as corpus, and a petition for belated appeal. In addition, he filed two petitions for review before the Florida Supreme Court and two writs of certiorari in the United States Supreme Court. The record thus plainly reflects that Roberts has filed an overwhelming number of appeals that now require the issuance of this Order.

III. Conclusion

We therefore order Roberts to show good cause within forty five days from the date of this opinion why he should not be prohibited from filing further pro se pleadings in this Court concerning his conviction and sentence imposed in case number F97-4142.

      . Roberts filed two additional appeals in this Court, both of which are non-published opinions. This Court affirmed the appeal in case number 3D97-3396 and dismissed the appeal in case number 3D99-1240.


author: LAMBERT, J.

text:
    Michael LOVETT and James Lovette, Appellants, v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-1, Appellee.
    No. 5D13-3943.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.

      N. James Turner, of N. James Turner, Esq. P.A., Orlando, for Appellants.
    Dana M. Stern, of Hayt, Hayt & Landau, P.L., Miami, for Appellee.
   LAMBERT, J.

Michael Lovett and his father, James Lovette, (collectively “the Lovettes”) appeal the summary final judgment entered in favor of Appellee, National Collegiate Student Loan Trust 2004-1 (“Loan Trust”), in an action to recover on a credit agreement/promissory note. The Lovettes argue that the trial court erred because: (1) Loan Trust never proved that it was the owner of the note sued upon, (2) Loan Trust never tendered the original promissory note, and (3) Loan Trust never alleged or provided notice of assignment pursuant to section 599.715, Florida Statutes (2013). Finding the first argument meritorious, we reverse.

Michael executed a credit agreement in which he borrowed $30,000 from Bank One, N.A., as an education loan. James co-signed the loan and guaranteed payment in full. Because Michael did not pay the loan as agreed, Loan Trust filed a one-count, one-page complaint, alleging in pertinent part: (1) the Lovettes executed a promissory note, (2) Loan Trust “owns and holds the note(s),” (3) the Lovettes failed to pay the installment payments when due, (4) Loan Trust accelerated the balance upon nonpayment, and (5) all conditions precedent to the filing of the action have occurred. Michael filed a pro se response to the complaint. He did not deny the allegations of the complaint, but asserted that the cause of action was barred by the statute of limitations. He also asserted that his father was elderly and, due to his father’s, poor health, his father should not be required to participate in any court proceedings. Additionally, Michael claimed that, his wages, earnings, or compensation as head of the household should be exempt from garnishment.

Loan Trust filed a motion for summary judgment and attached to its motion an affidavit of account executed by a supervisor for its loan servicer. In response, the Lovettes filed an unsigned “motion for dismissal of summary judgment,” asserting that Loan Trust lacked standing to sue them as “it was not a party to the contract and has not provided any documentation showing its relationship to the original lender, Bank One.” At the conclusion of the summary judgment hearing, the trial court found in favor of Loan Trust and entered summary final judgment. The Lovettes thereafter retained counsel, who timely filed a motion for rehearing pursuant to Florida Rule of Civil Procedure 1.530. In their motion, the Lovettes argued, inter alia, that the trial court erred in entering summary judgment because Loan Trust failed to produce evidence at the hearing establishing that it owned the promissory note. The trial court denied rehearing and this appeal ensued.

Our standard of review of a trial court’s entry of summary final judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126,1129 (Fla. 4th DCA 1996). “[I]f the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138,1140 (Fla. 2d DCA 2000).

On appeal, the Lovettes argue that outstanding issues of fact regarding the “ownership” of the note exist that should have prevented entry of summary judgment in favor of Loan Trust. In response, Loan Trust argues that the Lovettes waived these issues by failing to file an affidavit opposing summary judgment or otherwise raise the issue below.

“Generally, the failure to raise standing as an affirmative defense operates as a waiver.” Beaumont v. Bank of New York Mellon, 81 So.3d 553, 555 (Fla. 5th DCA 2012) (citing Kissman v. Panizzi, 891 So.2d 1147, 1150 (Fla. 4th DCA 2005)); Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So.2d 909; 912 (Fla. 4th DCA 2003) (“There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver.” (citing Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 842 (Fla.1993))). But see McLagan v. Fed. Home Loan Mortg. Corp., 145 So.3d 943, 945 (Fla. 2d DCA 2014) (“[T]he pertinent question is whether the issue was raised at the trial court, not how it was raised .... [Standing may not be raised for the first time on appeal; however, it does not necessarily require that standing be raised only by means of an affirmative defense.” (alterations in original) (quoting Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 998 So.2d 1201, 1206 (Fla. 2d DCA 2009)).

To be entitled to summary final judgment, Loan Trust had the burden to “show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 175 (Fla. 4th DCA 2012); see also Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010) (stating that “the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder” (citing BAC Funding Consortium Inc. IS-AOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010))). In addition, Loan Trust had the burden to “prove its right to enforce the note as of the date of the summary judgment hearing, including how it obtained the [note],” even if the Lovettes had waived the right to challenge Loan Trust’s standing as of the date suit was filed. See Boumarate v. HSBC Bank USA, N.A., 109 So.3d 1239, 1239 (Fla. 5th DCA 2013) (citing Beaumont, 81 So.3d at 554-55). Because there is no evidence in the record at the time of the hearing regarding how Loan Trust acquired the note, summary final judgment was improper.

REVERSED and REMANDED.

ORFINGER and WALLIS, JJ„ concur.

      . There appears to be a discrepancy in the spelling of Michael's last name. The final judgment is entered against Michael Lovette and James Lovette, and in his pro se filings in the lower court, Michael spells his last name “Lovette." However, the notice of appeal lists Michael’s last name as "Lovett.”

      . Because this issue is dispositive, we do not ' address the Lovettes’ other arguments.

      . James did not file an answer to the complaint. However, no default was ever sought against him. Michael later filed, without leave of court, an amended response to the complaint, which raised an additional issue not critical to our determination.


text:
    Matthew Lee WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1238.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Matthew Lee Warren, Bushnell, pro se.
    Pamela Jo'Bondi, Attorney General, Tallahassee, Lori N. Hagan and Marjorie Vincent-Tripp, Assistant Attorney Generals, Daytona Beach, for Appellee.
   PER CURIAM.

Matthew Lee Warren appeals the summary denial of all five grounds raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two through Five. However, as the State properly concedes, because the waiver of rights and plea agreement attached to the trial court’s order does not conclusively refute Warren’s claim that counsel was ineffective for failing to move to suppress his pre-arrest statements to police, see Zanchez v. State, 84 So.3d 466, 468 (Fla. 2d DCA 2012) (holding general plea colloquy did not address specific issue of alleged illegal search), we reverse the summary denial of Ground One and remand for attachment of portions of the record refuting that claim or for an evidentiary hearing, see Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.”).

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, LAWSON and BERGER, JJ., concur.


text:
    Deol NARAYAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1464.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Deol Narayan, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Deol Narayan (defendant) appeals the trial court’s order summarily denying his motion for jail credit, filed pursuant to Florida Rule of Criminal Procedure 3.801. Because the trial court erroneously denied the motion as being untimely, we reverse.

On January 19, 2010, the defendant pled guilty to two counts of robbery with a firearm. On December 9, 2013, he filed a motion to correct his illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a). On January 28, 2014, the defendant filed a motion for leave of court to amend his pending 3.800(a) motion in order to comply with Florida Rule of Criminal Procedure 3.801. That day, the defendant filed an amended motion for correction of jail credit pursuant to rule 3.801. The trial court denied the amended motion, concluding that it was untimely filed. The trial court cited rule 3.801(b), which has a one-year deadline for filing motions for jail credit.

The effective date of rule 3.801 was July 1, 2013. Because of confusion as to whether defendants whose sentences became final prior to July 1, 2013, were precluded from filing rule 3.801 motions, the rule was later amended to state that, for sentences imposed prior to July 1, 2013, a rule 3.801 motion may be filed on or before July 1, 2014. Rule 3.800(a) was also amended to remove any reference to jail credit. Thus, rule 3.801 is the exclusive post-conviction remedy available for seeking jail credit, and defendants whose sentences became final prior to July 1, 2013, have a grace period of one year to file any jail credit claims. Therefore, as the State properly concedes, the trial court erred in denying the defendant’s motion as untimely.

Accordingly, we reverse the trial court’s order denying the defendant’s rule 3.801 motion. Because said motion must be filed under oath, and because rule 3.801(e) incorporates rule 3.850(f), which requires the court to allow the defendant at least one opportunity to amend a timely but insufficient motion, we remand to the court to give the defendant the opportunity to refile his motion under oath.

REVERSED and REMANDED.

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


text:
    Jason CROSS, Appellant, v. WELLS FARGO BANK, NA., etc., et al., Appellees.
    No. 5D13-1695.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Ryan N. Ghantous, of Kaufman, Englett & Lynd, PLLC, Orlando, for Appellant.
    Michael K. Winston and Dean A. Mo-rande, of Carlton Fields Jorden Burt, P.A., West Palm Beach, and Christopher M. Sacco, of Carlton Fields Jorden Burt, P.A., Tampa, for Appellee.
   PER CURIAM.

Jason Cross appeals the entry of summary final judgment of foreclosure in favor of Wells Fargo Bank, N.A. DBA Americas Servicing Company. Because we agree with Cross that Wells Fargo failed to produce competent evidence of its compliance with the notice requirements set forth in paragraph 22 of the mortgage, we reverse the summary final judgment of foreclosure and remand for further proceedings. See Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387-88 (Fla. 5th DCA 2011) (reversing entry of final summary judgment where notice of default attached to motion was not authenticated by affidavit or otherwise); Bryson v. Branch Banking & Trust Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (“The unauthenticated copies of default letters purportedly sent to Bryson by BB & T were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment.”).

REVERSED and REMANDED.

ORFINGER, BERGER and LAMBERT, JJ., concur.


text:
    Kenneth BREWER, Sr., Appellant, v. John CHASTAIN, Appellee.
    No. 5D14-1764.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Dallas R. Hedstrom, of Douglas & Hedstrom, P.A., Palatka, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Kenneth Brewer appeals the entry of a repeat violence injunction entered pursu-' ant to section 784.046(l)(b), Florida Statutes (2014), in favor of John Chastain. Having carefully reviewed the record, we conclude that there is no competent, substantial evidence demonstrating “repeat violence,” as defined by section 784.046(l)(b). Accordingly, the final judgment entering the injunction is reversed.

REVERSED.

ORFINGER, EVANDER and COHEN, JJ. concur.


text:
    Dewayne KEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2933.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Dewayne Key, Miami, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing and withdraw the order denying the petition for belated appeal rendered September 29, 2014. The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying the petition for writ of habeas corpus and order denying the motion for rehearing in Case No. 2010-CF-004176, in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

GRANT PETITION.

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


text:
    Dustin Blayne BURKETT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3261.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Dustin Blayne Burkett, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 28, 2014 order denying motion for postconviction relief, filed in Case No. 2009-CF-3892-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, COHEN, LAMBERT, JJ., concur.


text:
    Frederick BRADLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3394.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Robert Wesley, Public Defender, Ninth Judicial Circuit and Erin Brenna Hyde, Assistant Public Defender, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Tatman Kaylee, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 1, 2014 order denying postconviction relief in Case No. 1997-CF-12022-B-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON and, COHEN JJ., concur.


text:
    Robert Lee PRICE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3462.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Robert Lee Price, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 2, 2014, judgment and sentence in Case No. 2013-CF-56825, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and COHEN, JJ„ concur.


text:
    Timothy CAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3514.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Blaise Trettis, Public Defender, and Michael Mario Pirolo, Assistant Public Defender, Viera, for Appellant.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 6, 2014 judgment and sentence in Case No. 2008-CF-024171, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, C.J., EVANDER and WALLIS, JJ., concur.


text:
    Jaime Luis SANTIAGO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D14-73.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm on all issues, but remand for correction of two scrivener’s errors. As part of a negotiated plea agreement, Defendant entered a nolo contendere plea to possession of cocaine, a lesser-included offense of the charged crime of possession of cocaine with intent to sell or deliver. Unfortunately, the Judgment and the corrected Order of Disposition both erroneously recite that Defendant was adjudicated guilty of the charged offense. We must, therefore, remand for correction of these two scrivener’s errors to reflect the correct offense to which Defendant entered his plea. We affirm in all other respects.

AFFIRMED; REMANDED with instructions.

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