author: CASANUEVA, Judge.

text:
    Amoundo James Terrence MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-897.
    District Court of Appeal of Florida, Second District.
    March 21, 2014.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Amoundo James Terrence Mathis appeals his judgments and sentences for possession of cocaine and possession of drug paraphernalia. We agree with Mr. Mathis that the trial court erred in admitting into evidence certified copies of his previous convictions and sentences, and we reverse.

During Mr. Mathis’s jury trial, Officer Jeff Barlett testified that while police were executing a search warrant at a residence, they found Mr. Mathis inside the residence and arrested him for possessing cocaine and drug paraphernalia. The defense attorney asked the officer on cross-examination if he had spoken with Mr. Mathis on the day of his arrest. When Officer Bar-lett answered in the affirmative, the defense attorney asked, “And during that conversation he never made any admissions to you; Mr. Mathis?” Officer Bar-lett testified, “That is correct.”

The State then asked for a bench conference and argued that, because the defense had introduced exculpatory testimony during the cross-examination of Officer Bar-lett, it was entitled to introduce into evidence certified copies of Mr. Mathis’s eight prior felony convictions and one prior conviction for a crime involving dishonesty. The trial court agreed with the State and admitted the certified copies into evidence.

In this appeal, Mr. Mathis first contends that the testimony was not exculpatory. We disagree. The cross-examination established that Officer Barlett had a conversation with Mr. Mathis after his arrest for possession of cocaine and paraphernalia, which were found in common areas of the home, and Mr. Mathis presumably denied that the drugs belonged to him. Similarly, in Freeman v. State, 74 So.3d 123, 125 (Fla. 1st DCA 2011), the defense attorney asked if Freeman “denied everything” after being read Miranda and the detective agreed. The First District held that Freeman offered the statement to show that he was not involved in the crime, and therefore, he “opened the door for the State to impeach him with his prior convictions.” Id. at 125-26. Here, the trial court did not abuse its discretion in determining that Mr. Mathis opened the door for the State to impeach him with his prior convictions because he offered the statement to show that it was his contention on the day of the arrest that the cocaine and paraphernalia did not belong to him. See Stallworth v. State, 53 So.3d 1163, 1165 (Fla. 1st DCA 2011) (noting that a trial court’s decision concerning the questioning of a witness about prior convictions is reviewed for abuse of discretion).

However, we agree with Mr. Mathis that the trial court abused its discretion in admitting the certified copies of the prior convictions and sentences. Section 90.806(1), Florida Statutes (2011), provides that “[wjhen a hearsay statement has been admitted in evidence, credibility of the de-clarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” When a witness testifies, his or her credibility may be attacked “by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law ... or if the crime involved dishonesty or a false statement.” § 90.610(1). But when a witness is questioned about his or her prior convictions pursuant to section 90.610, the questioning is usually limited to the existence and the number of prior convictions unless the witness answers untruthfully. Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992).

In Huggins v. State, 889 So.2d 743, 755-56 (Fla.2004), the Florida Supreme Court held that “section 90.806 permits the introduction of a defendant’s felony convictions when the defendant elicits his or her own exculpatory, hearsay statement through another witness at trial.” However, unlike the present case, the certified copies of the convictions and sentences were not introduced into evidence in Huggins. In Huggins, the trial court informed the jury about the appellant’s nine previous felony convictions, but it did not specify the nature of the crimes, and the trial court gave the jury a limiting instruction relating to the jury’s use of the information. Id. at 754; see also Moore v. State, 943 So.2d 296, 297-98 (Fla. 1st DCA 2006) (holding that where the appellant introduced exculpatory statements that he made to police officer, his credibility could be attacked just as if he had testified as a witness).

In Freeman, 74 So.3d at 125, the First District followed Huggins and held that “[t]he State can use [an appellant’s] prior convictions to impeach exculpatory hearsay statements of [an appellant] who does not testify but gets the statements into evidence through another witness.” However, in Freeman the trial court deferred ruling on the request by the State to introduce the convictions until the appellant decided whether to testify. Id. When the appellant did not testify, the trial court informed the jury that the parties had stipulated to the following:

The [appellant] has been convicted of three prior felonies. Now, ladies and gentlemen, that evidence of prior convictions should be considered only for the purpose of assessing the [appellant]’s credibility of statements he allegedly made that were related by a witness and are not to be considered as proof of guilt for the charged offense.

Id.

The First District held that the trial court did not abuse its discretion in using this procedure. Id. at 126; see also Werley v. State, 814 So.2d 1159, 1162-63 (Fla. 1st DCA 2002) (holding that prior convictions were properly admitted for impeachment purposes where the “trial court instructed the jury that the prior convictions should be considered only for the purpose of assessing the defendant’s credibility of statements he made that were related by witnesses, and are not to be considered as proof of guilt for the charged offense”).

Similar to Huggins and Freeman, the Fourth District has held that “[a] non-testifying defendant who brings out his or her own exculpatory statements through another witness, ‘runs the risk of having those statements impeached by felony convictions.’ ” Gonzalez v. State, 948 So.2d 877, 878 (Fla. 4th DCA 2007) (quoting Kelly v. State, 857 So.2d 949, 950 (Fla. 4th DCA 2003)). In Gonzalez, the Fourth District found no abuse of discretion where the trial court instructed the jury as to the appellant’s prior felony convictions and further instructed the jury that the information “is to be utilized only by you in consideration of determining the credibility of the statements that are attributable to Mr. Gonzalez and Mr. Gonzalez only. Understand that it has nothing to do with any other factor in this case.” Id. at 878.

The present case is distinguishable from the above cases, because the trial court allowed the State to introduce certified copies of Mr. Mathis’s convictions instead of merely informing the jury about the number of his previous convictions. Further, the trial court did so without waiting to find out if Mr. Mathis would testify, and it gave no instruction to the jury that it was to consider the convictions in determining Mr. Mathis’s credibility, not his guilt. We note that if Mr. Mathis had testified and acknowledged the correct number of times he had been previously convicted of a felony, the State would not have been permitted to introduce the convictions or inform the jury about the nature of the crimes. See Fotopoulos, 608 So.2d at 791.

Additionally, as the Florida Supreme Court held in Huggins, 889 So.2d at 756, the trial court was required to determine whether the probative value of the evidence was substantially outweighed by the danger of the evidence’s unfair prejudice. § 90.408 (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice .... ”). In Huggins, 889 So.2d at 756-57, the supreme court concluded that the trial court did not abuse its discretion in performing this balancing test where it tried to limit the danger of unfair prejudice by giving the jury a limiting instruction regarding the use of the evidence and by not informing the jury of the nature of crimes.

In the present case, we conclude that the probative value of the convictions did not outweigh the danger of unfair prejudice to Mr. Mathis, where the jury was informed of the nature of the crimes and the trial court did not give the jury a limiting instruction pertaining to the convictions. During Mr. Mathis’s trial, only one witness testified that the cocaine and drug paraphernalia found in the house belonged to Mr. Mathis, and she admitted to having four previous felony convictions. We hold that, although it would have been proper for the trial court to inform the jury about the number of Mr. Mathis’s previous convictions, it was an abuse of discretion to permit the introduction of the convictions into evidence.

We note that the Fourth District addressed this issue and found no abuse of discretion in Moncus v. State, 69 So.3d 341, 342 (Fla. 4th DCA 2011), holding that the State had the right to attack the appellant’s credibility after his attorney elicited exculpatory hearsay from the arresting officer, even though the defendant did not testify. Similar to the present case, the State introduced the certified copies of the appellant’s seven prior judgments into evidence. Id. at 342-44. However, the issue raised on appeal in Moncus involved the validity of the prior convictions. Id. at 343; see also Fisher v. State, 924 So.2d 914, 916 (Fla. 5th DCA 2006) (holding that the State was properly allowed to enter into evidence the appellant’s convictions where the trial court gave a limiting instruction to the jury). But cf. Ray v. State, 933 So.2d 716, 720 (Fla. 4th DCA 2006) (holding that trial court properly informed the jury about the appellant’s prior convictions without identifying the crimes because exculpatory statements of the appellant had been admitted through testimony of the State’s witnesses; however, when the appellant later testified and admitted to having the previous convictions, it was an abuse of discretion to allow the State to bring out the fact that one of the prior felony convictions was a burglary).

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ„ Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).


source: Caselaw Access Project

author: DAVIS, Chief Judge.

license: Public Domain

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Gsamp Trust 2006-NCI Mortgage Pass-Through Certificates, Series 2006-NCI, Appellant, v. Jose BUSQUETS and Oaks at Windemere Homeowners Association, Appellees.
    No. 2D13-280.
    District Court of Appeal of Florida, Second District.
    March 21, 2014.
    Masimba M. Mutamba, Khari E. Taus-tin, and Jeremy W. Harris of Morris, La-ing, Evans, Brock & Kennedy, Chtd., Wellington, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellee Busquets.
    No appearance for remaining Appellee.
   DAVIS, Chief Judge.

U.S. Bank National Association, as Trustee for the GSAMP TRUST 2006-NCI Mortgage Pass-through Certificates, Series 2006-NCI (the Bank), challenges the trial court’s summary final judgment entered in favor of Jose Busquets in the Bank’s foreclosure action against Bus-quets. In the final judgment, the trial court dismissed the foreclosure action, concluding that the Bank failed to give proper notice before accelerating the loan as required by the terms of the mortgage. The Bank argues that the trial court erred in finding its notice of acceleration deficient. We agree and reverse.

On October 81, 2005, Busquets borrowed funds from New Century Mortgage Corporation and executed a promissory note in favor of the lender to represent his obligation. He also executed a mortgage on his real property in favor of New Century to secure his obligations on the promissory note.

The mortgage required that any notice of default and possible foreclosure proceedings advise “that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceedings^] and sale of the property.”

Busquets ultimately became delinquent on his loan payments, and on November 2, 2011, the Bank, through its servicing agent, sent a notice of default to Busquets. The language of the notice provided as follows:

Failure to bring your account current may result in our election to exercise our right to foreclose on your property. Upon acceleration, your total obligation will be immediately due and payable without further demand. In foreclosure proceedings, we are entitled to collect your total arrearage in addition to any expenses of foreclosure, including but not limited to reasonable attorney’s fees and costs. If your loan has already been accelerated and foreclosure proceedings already begun, we will continue the foreclosure action (if possible). You have the right to assert in court the nonexistence of a default or any other defense to acceleration and foreclosure.

The Bank then filed its foreclosure complaint.

In response, Busquets filed a motion for summary judgment, arguing that pursuant to the terms of the mortgage contract, the notice of default was deficient in five ways. Busquets therefore maintained that the Bank had breached the mortgage agreement. Busquets argued that the foreclosure action should be dismissed due to the Bank’s failure to show that all conditions precedent had been accomplished.

The trial court granted summary judgment, finding that the Bank’s notice of default was deficient in two of the ways alleged by Busquets. The Bank now challenges that ruling.

On appeal, the Bank first argues that the trial court erred in finding that the notice it provided Busquets was deficient because it only advised Busquets that the holder of the note could institute foreclosure proceedings if the default was not cured, whereas the mortgage required that the notice advise of the potential of foreclosure by way of judicial proceedings. We agree.

“Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties.” Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011) (applying this principle to the language of a mortgage). Here, the language of the Bank’s notice meets the notice requirements set forth in the plain language of the mortgage contract. Busquets clearly was put on notice of the possibility of a foreclosure proceeding. And the trial court’s concern that the word “proceeding” was not modified by the word “judicial” is misplaced because in Florida, the only method for foreclosure is a judicial proceeding. Cf. DeSilva v. First Cmty. Bank of Am., 42 So.3d 285, 290 (Fla. 2d DCA 2010) (“ ‘[I]n order to protect a borrower’s due process rights, the courts have determined that a mortgagee can acquire possession upon a default only through judicial foreclosure.’ ” (quoting Orlando Hyatt Assocs., Ltd. v. F.D.I.C., 629 So.2d 975, 977 (Fla. 5th DCA 1993))). See generally §§ 701.02, 702.09, Fla. Stat. (2011).

Furthermore, the language of the Bank’s notice adequately describes the nature of the proceedings that Busquets might face. The notice states that in the foreclosure proceeding, the lender may collect attorney’s fees and costs in addition to the unpaid principal and interest. The notice further advises that in the foreclosure proceeding, the mortgagee has “the right to assert in court the nonexistence of a default or any other defense to acceleration and foreclosure.” Thus, the complete paragraph in the Bank’s notice adequately describes the foreclosure proceeding as a judicial proceeding, making the notice sufficient under paragraph twenty-two of the mortgage contract. It was therefore error for the trial court to hold otherwise.

The trial court also found that because the Bank’s notice only advised Bus-quets that he “may” have the right to reinstate the mortgage after acceleration, it did not comply with paragraph twenty-two’s requirement that the notice “further inform Borrower of the right to reinstate after acceleration.” We disagree.

Paragraph nineteen of the mortgage specifies Busquets’ right to reinstate after acceleration by stating that “[i]f the Borrower meets certain conditions, [the] Borrower shall have the right to have the enforcement of this Security Instrument discontinued.” The paragraph then designates the timing for exercising this right, and it continues by listing four conditions that must be met to be eligible to secure reinstatement. In other words, by the plain reading of the terms of the mortgage contract, the right to reinstatement is at best a qualified right, obtainable only after the borrower meets the specified conditions precedent. The trial court’s reading of paragraph twenty-two in isolation might suggest that the notice must advise Bus-quets of an absolute right, but such a reading is contrary to the provisions of paragraph nineteen and would, in effect, misadvise Busquets of his rights by advising him that he had an absolute right in conflict with the conditional rights provision of the mortgage contract.

Furthermore, the Bank’s notice advised Busquets to review the terms of his mortgage contract to determine the conditions under which he might be eligible for reinstatement. Therefore, the trial court erred in finding the language of the notice deficient in this regard.

Based on these two errors, we reverse the trial court’s final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . Although not the original holder of the note and mortgage, the Bank, through a series of assignments, became a party at interest prior to initiating the foreclosure proceedings.

      . The dismissal was without prejudice to the Bank’s filing a new foreclosure action once proper notice is given.

      . The note and mortgage were sold, and the new holders of the note and mortgage engaged Ocwen Loan Servicing LLC to handle the collection of the note.

      .The trial court did not address the remaining three deficiencies alleged by Busquets, and this opinion does not address the respective merits of those claims.


author: MORRIS, Judge.

text:
    STATE of Florida, Petitioner, v. Victoria PAGE-MARTIN, Respondent.
    No. 2D13-4064.
    District Court of Appeal of Florida, Second District.
    March 21, 2014.
    Stephen B. Russell, State Attorney, and Jill E. Cabai, Assistant State Attorney, LaBelle, for Petitioner.
    Karen H. Brouse of Brouse Law Office, Fort Myers, for Respondent.
   MORRIS, Judge.

The State of Florida seeks a writ of certiorari to quash the circuit court’s nonfi-nal order denying the State’s request to use a challenge for cause on an alternate juror and denying the State’s request to use its remaining peremptory challenges as back strikes after the original jury veni-re had been dismissed. We deny the petition as it relates to the challenge for cause without further comment. However, we conclude that the circuit court departed from the essential requirements of law which cannot be remedied on appeal by denying the State’s use of its remaining peremptory challenges. We therefore grant the State’s petition in part.

In late 2008, respondent, Victoria Page-Martin, was charged with one count of aggravated child abuse and one count of aggravated child neglect. Respondent was brought to trial in July 2013. During jury selection, the State and respondent agreed to seat six jurors and two alternate jurors. Each side was provided with six peremptory challenges. By the end of the initial jury selection, the State had used four of its six peremptory challenges with two remaining. The record reflects that there were several challenges to prospective jurors and that the State never clearly stated its acceptance of the original panel due to an interruption by the trial court. However, the selected jurors were seated as the jury panel and alternates, and the original jury venire was dismissed.

Subsequently, a selected juror asked to be excused from jury duty based on a purported hardship, and the State objected. The parties and the circuit court then engaged in a lengthy discussion which resulted in the continuation of the proceedings until the following day. At no point was the original jury panel sworn in. The following day, the circuit court excused the juror and moved an alternate juror onto the jury panel, leaving only one alternate. The State objected to the entire jury panel and requested to use its remaining peremptory challenges. The parties and the court then discussed whether the State should be allowed to use its remaining peremptory challenges as back strikes, with the State arguing that it could do so at any time until the jury was sworn. Ultimately, the circuit court recognized that “the State should be allowed the opportunity to back strike at this point” but then stated it was impossible to back fill the seats with a venire person as the original venire had already been dismissed. Thus, the circuit court overruled the State’s objection to the jury panel. At that point, the State moved for a stay of the proceedings and elected to proceed by filing its petition for writ of certiorari.

Parties “may challenge a prospective juror [at any time] before the jury is sworn.” Gilliam v. State, 514 So.2d 1098, 1099 (Fla.1987) (citing Fla. R. Crim. P. 3.310). And ‘“[a] trial judge has no authority to infringe upon a party’s right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn.’ ” Id. (alteration in original) (quoting Jackson v. State, 464 So.2d 1181, 1183 (Fla.1985)). “The denial of this right is per se reversible error.” Id. Where a party has remaining challenges and attempts to back strike but is not permitted to do so, the party has demonstrated prejudice and the point has been preserved for appeal. See Tedder v. Video Elecs., Inc., 491 So.2d 533, 534 (Fla.1986). These principles recognize that “an essential component of the right to trial by jury” is “the right to view the panel as a whole before the jury is sworn.” Id. at 535.

In Mack v. State, 620 So.2d 804, 804 (Fla. 5th DCA 1993), the jury was selected one day but was not sworn; the following day, when the defendant attempted to back strike two jurors by exercising peremptory challenges, “the trial court refused to allow the back[ jstrikes on the basis that there were no other available jurors.” Id. On the basis of Gilliam, the court found that such a denial constituted per se reversible error.

Although the Mack case does not explicitly state that the jury venire had been dismissed, that is certainly implied by the facts, most specifically the trial court’s reasoning for refusing to allow the back strikes. We therefore conclude that a party may challenge a prospective juror at any time before the jury is sworn even where the initial jury panel has been seated and the jury venire has been dismissed. Such a conclusion comports with the fundamental nature of the right to trial by jury which includes a party’s right to view the jury panel as a whole and to either accept the panel or to exercise any remaining challenges the party may have. See Tedder, 491 So.2d at 535 (relying on Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)).

Accordingly, we hold that the circuit court departed from the essential requirements of law by refusing to allow the State to exercise its remaining peremptory challenges because the jury had not yet been sworn. We further hold that this type of error results in irreparable harm because if the State were forced to proceed to trial without being allowed to exercise its remaining peremptory challenges and the defendant is acquitted, the State could not appeal.

Finally, we note that both parties have made arguments about what the proper remedy should be if we granted certiorari. We recognize that under the facts of this case, the State’s exercising its remaining peremptory challenges as back strikes makes obtaining a full jury panel more complicated. However, this court has no power other than to quash the order on review. See Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So.2d 838, 844 (Fla.2001).

We therefore grant the State’s petition in part, quash the order on review as it pertains to the State’s use of its remaining peremptory challenges, and remand.

DAVIS, C.J., and NORTHCUTT, J., Concur.

      . In Thomas v. State, 958 So.2d 1047, 1050 (Fla. 2d DCA 2007), this court noted that the per se "reversible error” analysis has its critics and is not uniformly applied.

      . See also Jackson, 464 So.2d at 1183 (recognizing that even where a party has initially accepted a juror but later retracts his election and expresses a desire to challenge the juror, that party has the right to do so until he or she has exhausted all of his or her remaining peremptory challenges (citing O'Connor v. State, 9 Fla. 215, 229 (1860)).

      . See also Shelby v. State, 541 So.2d 1219, 1219 (Fla. 2d DCA 1989) (holding that where both parties accepted original jury panel and jury was sent home for the day prior to being sworn, objecting party should have been allowed to exercise his remaining peremptory challenges on the day of trial), superseded by statute on different grounds as stated in Dowling v. State, 723 So.2d 307, 309 (Fla. 4th DCA 1998). Like the Mack case, our opinion did not expressly state that the jury venire had been dismissed, but that is implied by the fact that the jury had been accepted by both sides and told to return the next day for trial.


author: PER CURIAM.

text:
    Michael GISI, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-727.
    District Court of Appeal of Florida, Second District.
    March 26, 2014.

      Michael Gisi, pro se.
   PER CURIAM.

Michael Gisi appeals the summary dismissal of his motion for jail credit filed under Florida Rule of Criminal Procedure 3.800(a). Gisi is seeking jail credit for time he spent in a South Dakota jail and in a Bradford County, Florida, jail prior to sentencing in Pinellas County. We reverse the postconviction court’s dismissal order and remand for further proceedings.

The postconviction court found that Gisi’s claim of entitlement to out-of-state jail credit was not cognizable in a rule 3.800(a) motion but should have been raised in a timely motion pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of counsel. See Garnett v. State, 957 So.2d 32, 33 (Fla. 2d DCA 2007) (en banc) (“If a defendant is seeking out-of-state jail credit in a post-conviction proceeding, it would appear that the proper method to seek such relief would normally require a timely allegation of ineffective assistance of trial counsel under rule 3.850.”). The postconviction court also found that Gisi’s claim of out-of-county jail credit was facially insufficient under rule 3.800(a) because he failed to provide documentation showing that he was arrested in Bradford County on a Pinellas County warrant or detainer. The court further found that because the Bradford County jail credit claim involved disputed issues of fact, it could only be resolved pursuant to rule 3.850. See Montague v. State, 933 So.2d 1282, 1283 (Fla. 2d DCA 2006); Mendez v. State, 42 So.3d 848, 848 (Fla. 5th DCA 2010).

The postconviction court neither addressed the claims on the merits nor treated the motion as though it were properly filed under rule 3.850 because the motion did not contain a sworn oath as required by rule 3.850(c). However, the court found that the motion would have been untimely under rule 3.850 because Gisi’s judgment and sentence became final when the mandate in Gisi’s appeal issued on January 26, 2007. Thus, the court con-eluded that Gisi’s rule 3.850 motion addressing the out-of-state and out-of-eounty jail credit claims should have been raised by January 26, 2009, thereby rendering his April 20, 2012, motion untimely. The post-conviction court used an incorrect date to calculate the two-year time frame under rule 3.850 and incorrectly found that the motion was untimely.

The appellate history of this case is extensive. See Gisi v. State, 848 So.2d 1278 (Fla. 2d DCA 2003); Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005) (Gisi I); Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007) (Gisi II) rev’d, per curiam, Gisi v. State, 4 So.3d 613 (Fla.2009) (Gisi III). As a result of a successful petition alleging ineffective assistance of appellate counsel, Gisi was granted a second direct appeal in which we affirmed his convictions in part, reversed his convictions in part, reversed his sentences, and remanded with directions for resentencing. See Gisi I, 909 So.2d at 532. On appeal from resentenc-ing, we affirmed the sentences and certified a question of great public importance to the supreme court. See Gisi II, 948 So.2d at 816-17. The supreme court quashed our decision and remanded the case for further proceedings consistent with its decision in State v. Rabedeau, 2 So.3d 191 (Fla.2009). See Gisi III, 4 So.3d at 614. On remand, we withdrew by unpublished order the January 26, 2007, mandate that issued in Gisi II, reversed the judgment in part, and remanded for further proceedings.

Gisi was resentenced on May 5, 2010. Because he did not appeal the new sentence, it became final — and the clock under rule 3.850 began to run — when the thirty-day period for filing an appeal expired. See Snipes v. State, 843 So.2d 1043, 1044 (Fla. 2d DCA 2003); Ross v. State, 947 So.2d 699, 701 (Fla. 4th DCA 2007); see also Westley v. State, 903 So.2d 312, 313 (Fla. 2d DCA 2005); Davis v. State, 687 So.2d 292, 293 (Fla. 2d DCA 1997). Thus, Gisi had until June 5, 2012, to file a timely postconviction motion, so his April 20, 2012, motion was timely.

Even though the motion was timely filed, it was facially insufficient for failure to contain an oath. See Fla. R. Crim. P. 3.850(c). Also, Gisi did not properly raise his claim for out-of-state jail credit. See Garnett, 957 So.2d at 33. He is therefore entitled to an opportunity to amend the motion and raise a facially sufficient claim regarding out-of-state jail credit, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So.2d 754, 755 (Fla.2007).

With respect to Gisi’s claim for out-of-county jail credit, the postconviction court correctly determined that the claim was facially insufficient. See Montague, 933 So.2d at 1283. However, claims of jail credit must now be raised under the new Florida Rule of Criminal Procedure 3.801, which provides that “[a] court may correct a sentence that fails to allow a defendant credit for all the time he or she spent in the county jail before sentencing as provided in section 921.161, Florida Statutes.” Fla. R. Crim. P. 3.801(a).

Although the court commentary to rule 3.801 states that “[a]ll jail credit issues must be handled pursuant to this rule,” the rule does not apply to claims of jail credit for the time a defendant was incarcerated outside the state while awaiting sentencing. See In re Amendments to the Fla. Rules of Criminal Procedure & the Fla. Rules of Appellate Procedure, No. SC11-1679, slip op. at 6, 27 (Fla. Feb. 6, 2014), available at http://www.florida supremecourt.org/decisions/2014/scll-1679.pdf. (“This new rule governs the correction of a sentence that fails to allow county jail time credit as provided in section 921.161, Florida Statutes (2012).”). Section 921.161(1) (2012) provides that “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 supreme court has held that the term “county jail” in section 921.161(1) “is applicable only to Florida jails and ... was not intended by the legislature to apply to various places of incarceration in other jurisdictions.” Kronz v. State, 462 So.2d 450, 451 (Fla.1985). Thus, rule 3.801 can be used only to seek jail credit for time spent in Florida jails before sentencing.

Accordingly, we reverse the order of the postconviction court and remand with directions for the postconviction court to permit Gisi to file a facially sufficient rule 3.850 motion for out-of-state jail credit within 60 days of the date that our opinion becomes final. The court shall also allow Gisi to file a rule 3.801 motion for out-of-county jail credit by July 1, 2014. See In re Amendments, No. SC11-1679, slip op. at 6. (“The rule provides a one-year grace period for sentences imposed prior to July 1, 2013.”). If Gisi chooses to file a rule 3.801 motion, the motion must comply with the requirements of rules 3.801(c), (e), and 3.850(n). Upon receipt of a rule 3.801 motion, the court must follow the procedure outlined in rule 3.850(f). See Fla. R. Crim. P. 3.801(e).

Reversed and remanded.

VILLANTI, LaROSE, and CRENSHAW, JJ., Concur.


text:
    Kim LEDGER, Petitioner, v. CITY OF ST. PETERSBURG, Respondent. Termaine Jones, Petitioner, v. City of St. Petersburg, Respondent. Tracy Garcia, Petitioner, v. City of St. Petersburg, Respondent.
    Nos. 2D13-4661, 2D13-5536, 2D13-5574.
    District Court of Appeal of Florida, Second District.
    March 26, 2014.
    Opinion filed March 26, 2014.

      Kirsten Clanton, Southern Legal Counsel Inc., Gainesville, for Petitioners.
    Michael L. Emge, Office of the Court Counsel, St. Petersburg, for Respondent J. Thomas McGrady, Chief Judge of the Sixth Judicial Circuit Court.
   PER CURIAM.

Three civil litigants petition this court for a writ of mandamus compelling the judge of the Appellate Division of the Sixth Judicial Circuit Court to grant indigent fee waivers. As each petition presents the same legal issue, we have consolidated them only for purposes of this opinion. Because we conclude that the court has not complied with its ministerial duty to waive the filing fee when a litigant has been declared civilly indigent, we grant the petitions.

Each of these civil litigants filed a petition for writ of certiorari in the Appellate Division of the Sixth Circuit, challenging a decision of a City of St. Petersburg hearing master. Accompanying each petition, there was a motion to proceed in forma pauperis, a motion for indigent fee waiver of filing fee, and an application for determination of civil indigent status. In each case, the clerk of the circuit court granted the litigants’ applications for civil indigent status. The circuit court, however, denied the litigants’ motions to proceed in forma pauperis and for indigent fee waiver of filing fee, finding that although filing fees in appellate proceedings may be deferred for an indigent person, they may not be waived. Subsequently, the court ordered the litigants to enter into payment plans for the payment of the filing fee within thirty days of the signed order. The litigants then petitioned this court for writs of mandamus.

The litigants argue that mandamus is proper because the court’s duty to grant an indigent fee waiver, where a certificate of indigence has been granted, is a ministerial duty that is mandated by section 57.081(1), Florida Statutes (2012). Respondent, the Chief Judge of the Sixth Circuit, asserts that the petitions raise a point of possible statutory conflict but maintains that because the litigants initiated appellate proceedings from the lower court to the circuit court, sections 34.041(5), 28.241(2), and 28.246(4), Florida Statutes (2012), require the deferral — not waiver — of the filing fees. The parties agree that the litigants validly obtained a certification of indigence from the clerk and were properly declared indigent. We reject the respondent’s argument and grant the petitions for the reasons that follow.

“A writ of mandamus is used to enforce an established legal right by compelling a public officer or agency to perform a duty required by law.” Lee Cnty. v. State Farm Mut. Auto. Ins. Co., 634 So.2d 250, 251 (Fla. 2d DCA 1994). In order to issue a writ of mandamus, the petitioner must demonstrate a clear legal right to the relief sought. Id. However, “[t]he fact that we may need to examine and interpret the statute in order to determine whether there is such a right does not make the right any more or less ‘clear.’” Schmidt v. Crusoe, 878 So.2d 361, 363 (Fla.2003); see also Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) (“While we agree with the trial court that the Department’s statutory obligations are ambiguous, according to Schmidt, it is appropriate for us to interpret an ambiguous statute and then determine it to be sufficiently ‘clear’ for the purpose of mandamus.”).

“Because the Legislature does not intend to enact purposeless or useless laws, the primary rule of statutory interpretation is to harmonize related statutes so that each is given effect.” Butler v. State, 838 So.2d 554, 555-56 (Fla.2003) (citation omitted). “It is presumed that statutes are passed with the knowledge of existing statutes, so courts must favor a construction that gives effect to both statutes rather than construe one statute as being meaningless or repealed by implication.” Id. at 556. There is no conflict between the statutes at issue here, and the provisions can be harmonized.

“The general indigency statute, section 57.081, ... provides a general waiver of prepayment of court costs and fees for persons who are determined to be indigent....” Fla. Parole Comm’n v. Spaziano, 48 So.3d 714, 717 (Fla.2010) (interpreting the 2009 version of the statute, which is substantially similar to the 2012 version at issue). Section 57.081(1) provides in pertinent part that “[a] party who has obtained a certification of indigence pursuant to s. 27.52 or s. 57.082 with respect to a proceeding is not required to prepay costs to a court, clerk, or sheriff and is not required to pay filing fees or charges for issuance of a summons.” (Emphasis added.) Thus, under section 57.081, an individual who is found to be indigent will not be required to pay the filing fee and such a fee may not be included in the calculation related to a payment plan. See § 57.082(6) (“A person who the clerk or the court determines is indigent for civil proceedings under this section shall be enrolled in a payment plan under s. 28.246 .... Filing fees waived from payment under s. 57.081 may not be included in the calculation related to a payment plan established under this section.”).

Section 28.241(2) provides that in circuit court appellate proceedings, “[i]f the party is determined to be indigent, the clerk shall defer payment of the fee.” See also § 34.041(5) (“Upon the institution of any appellate proceeding from the county court to the circuit court, including any appeal filed by a county or municipality, the clerk shall charge and collect filing fees as provided in s. 28.241(2) from the party or parties instituting the appellate proceedings. If the party is determined to be indigent, the clerk shall defer payment of the fee.” (emphasis added)). Additionally, section 57.081(3) specifically provides that “[i]f an applicant prevails in an action, costs shall be taxed in his or her favor as provided by law and, when collected, shall be applied to pay filing fees or costs that have not been paid.” Taken together, we interpret these sections to mean that in an appellate proceeding from a lower tribunal to the circuit court, once the individual is found to be indigent, the related filing fee must be waived as to the individual but deferred and levied against the opposing party should the applicant prevail. In other words, the fee is not deferred so the indigent party can later pay it; rather, the fee is deferred so it can be collected from the opposing party if the indigent party prevails. Thus, the civil litigants have a right to have the fee waived, and the circuit court has a legal duty to waive the fee.

Accordingly, we grant the petitions for writs of mandamus. The court is hereby directed to waive each civil litigant’s filing fee. As we are confident that the court will promptly comply with this ruling, we withhold formal issuance of the writ.

Petitions granted.

CASANUEVA, KHOUZAM, and SLEET, JJ., Concur.

      . In 2D13-4661, petitioner urges this court to quash footnote one of the circuit court’s Administrative Order 2009-038 PA/PI-CIR. We decline to do so; however, we are certain that the circuit court will amend the order to the extent that it may conflict with this opinion.


text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. MAJORLAND, LLC f/k/a Haydon-Rubin Development, Inc., and Board of Trustees of the Internal Improvement Trust Fund, Appellees.
    No. 2D12-6393.
    District Court of Appeal of Florida, Second District.
    March 26, 2014.
    Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellant.

      Shawn R. Horwick and Gregory J. Rit-ter of Ritter Chusid, LLP, Coral Springs, for Appellee Majorland, LLC.
    No appearance for Appellee Board of Trustees of the Internal Improvement Trust Fund.
   MORRIS, Judge.

The Department of Transportation (DOT) appeals a final summary judgment entered in favor of Majorland, LLC (Ma-jorland), on Majorland’s action to quiet title and for declaratory relief against the DOT and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the Board). We affirm the decision of the trial court for the reasons expressed below.

Majorland acquired property in Pinellas County in 2000. The property’s chain of title includes a 1945 deed conveying land from the Trustees of the Internal Improvement Fund of the State of Florida (TIIF) to Majorland’s predecessor in title. The deed describes various parcels of land and then reserves to the State two types of rights in the land. The deed contains the following language:

AS TO LANDS IN TRACTS OR COMPOSITE TRACTS AGGREGATING TEN (10) ACRES OR MORE:
RESERVING unto the State of Florida the title to an undivided one-half of all petroleum and petroleum products, and title to an undivided three-fourths of all other minerals which may be found on or under the said land, together with the right to explore for and to mine and develop; and further
RESERVING unto the State of Florida easement for State Road Right of Way Two Hundred (200) feet wide, lying equally on each side of the center line of any State Road existing on the date of this deed through so much of any parcel herein described as is within One Hundred (100) feet of said center line.

Majorland learned of the reservations when it replatted and began development of the property. Majorland took the position that because its property is less than ten acres, the reservations do not apply to Majorland’s property. In other words, Majorland’s position was that the qualifier at the beginning of the first quoted paragraph, describing tracts of land ten acres or more, applied to both reservations. Majorland is concerned only with the second reservation, i.e., the right-of-way reservation. The Board and the DOT, on the other hand, asserted that the right-of-way reservation applied to all tracts of land and was not limited by the language found at the beginning of the first quoted paragraph describing tracts of ten acres or more.

Majorland filed a complaint against the Board and the DOT, and all parties moved for summary judgment. In granting summary judgment in favor of Majorland, the trial court concluded that the ten-acre-or-more language applied to both reservations and that because Majorland’s property is less than ten acres, Majorland’s property is not encumbered by either reservation.

The trial court correctly determined that the applicability of the right-of-way reservation in the subject deed is controlled by the First District’s decision in Mann v. State Road Department, 223 So.2d 383 (Fla. 1st DCA 1969). In Mann, the court analyzed the very same reservations of rights in a Murphy Act deed and considered whether the ten-acre-or-more qualifier applied to the right-of-way reservation. Id. at 384. The court concluded that the language and structure of the reservations of rights were clear and that the ten-acre-or-more qualifier did apply to the right-of-way reservation.

The Department challenges the application of Mann in this case, arguing that the First District in Mann did not consider minutes from TIIF meetings because the minutes had not been presented to the trial court. See id. at 385. In this case, the DOT presented TIIF minutes from 1939 and 1940 indicating that the right-of-way reservation was discussed without any mention of limiting the reservation to tracts of a particular size. The DOT also presented TIIF minutes from 1943 indicating that the ten-acre-or-more qualifier was introduced along with the petroleum and mineral rights reservation without any mention of the right-of-way reservation. While these minutes suggest that the two reservations were unrelated when they were initially considered by TIIF, we find it inappropriate to consider these minutes because the reservation language in the deed is clear and unambiguous. See Mann, 223 So.2d at 385; Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211, 1214 (Fla. 2d DCA 2012) (“Tf a contract provision is clear and unambiguous, a court may not consider extrinsic or parol evidence to change the plain meaning set forth in the contract.’ ” (quoting SCG Harbourwood, LLC v. Hanyan, 93 So.3d 1197, 1200 (Fla. 2d DCA 2012))).

Affirmed.

LaROSE and SLEET, JJ., Concur.

      . The State of Florida had acquired the land pursuant to the Murphy Act, chapter 18296, Laws of Florida (1937).

      . The application of the first reservation regarding petroleum and other mineral rights is not at issue in this case.


author: SLEET, Judge.

text:
    INNOVISION PRACTICE GROUP, P.A., Appellant, v. BRANCH BANKING AND TRUST COMPANY, Appellee.
    No. 2D13-1595.
    District Court of Appeal of Florida, Second District.
    March 26, 2014.

      Michael C. Markham of Johnson, Pope, Bokor, Ruppel, & Burns, LLP, Clear-water, for Appellant.
    Thomas H. McLain, Jr. of Fisher & Sauls, P.A., St. Petersburg, for Appellee.
   SLEET, Judge.

Innovision Practice Group, P.A., (Innovision) appeals a partial final judgment entered in favor of Branch Banking and Trust Company (BB & T). For the reasons explained below, we treat the appeal as a petition for writ of certiorari, grant the petition, and quash the partial final judgment.

Innovision obtained a business loan from BB & T. When Innovision defaulted on the business loan, BB & T filed a seven-count complaint against Innovision; five counts of which pertained to the business loan. Innovision filed an'answer that included two counterclaims. Subsequently, the trial court entered a partial final judgment on count one, which pertained to the business loan. The partial final judgment included the language “for all of which sums let execution issue.”

Innovision attempts to appeal the partial final judgment. However, the judgment is not final or appealable because count one is interrelated with the remaining counts pending before the trial court. See S.L.T. Warehouse v. Webb, 304 So.2d 97, 100 (Fla.1974). The fact that the judgment authorizes execution is problematic; while BB & T may seek enforcement of the judgment, Innovision may not obtain review until the trial court renders a final order. For the reasons explained in East Avenue, LLC v. Insignia Bank, 136 So.3d 659, 2014 WL 185205 (Fla. 2d DCA Jan. 17, 2014), we treat the appeal as a petition for writ of certiorari.

The facts of this case are nearly identical to the facts in East Avenue. In East Avenue, we held that the amended summary final judgment was not appealable because it resolved only three counts of a multicount complaint while other factually and legally interrelated counts remained pending before the trial court. Id. The judgment contained language authorizing execution, which allowed Insignia to enforce the judgment and left East Avenue unable to seek appellate review. Id. We concluded that in this situation, “certiorari is available to review the form of an order, if not its underlying merits, insofar as it permits execution prior to rendition of an appealable final judgment.” Id. at 664. We held that the requirements of certiora-ri were satisfied because East Avenue was materially injured and the injury could not be remedied on appeal and that the trial court departed from the essential requirements of law when it let execution issue on the judgment while other interrelated claims remained pending before the court. Id. at 665. Ultimately, we granted the petition and quashed the judgment. Id.

Here, it is apparent that the jurisdictional requirements of certiorari are met. Innovision is materially injured because BB & T can enforce the judgment while Innovision is unable to obtain appellate review of the judgment. See id. Furthermore, the trial court departed from the essential requirements of law when it authorized execution of the partial final judgment while interrelated claims remained pending before the trial court. Id. Therefore, we grant the petition and quash the partial final judgment.

Petition for writ of certiorari granted; judgment quashed.

VILLANTI and WALLACE, JJ., Concur.

      . In East Avenue, this court noted the proper kind of order that should be entered when adjudicating less than the entire cause. East Avenue, 136 So.3d 659, 2014 WL 185205, 39 Fla. L. Weekly D179. A trial court may enter an interlocutory order that specifies the amount of damages that are no longer in controversy and direct that the remaining issues be resolved. Id. at-, at D181. Once the remaining issues are resolved, then the trial court can enter a final order encompassing all damages. Id. A trial court may also enter an order pursuant to Florida Rule of Civil Procedure 1.510(d).


text:
    Terry E. LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0309.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Terry E. Lee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Ulysses LYNCH, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D14-0846.
    District Court of Appeal of Florida, First District.
    March 26, 2014.

      Ulysses Lynch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

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

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Gary Wayne CURRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0906.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Gary Wayne Curry, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Jerome J. FERRIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0876.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Jerome J. Ferrier, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Noel ALDANA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0917.
    District Court of Appeal of Florida, First District.
    March 26, 2014.

      Noel Aldana, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Charles Tony NELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0919.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Charles Tony Nelson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Phillip ARNOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1043.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Phillip Arnold, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    James Bernard CAMPBELL, Appellant, v. D. ELLIS, J.D. Sloan, D. Birmingham, J. Gainnie, M. Heyser, M. Bailey, D. Brooks, Appellees.
    No. 1D13-3956.
    District Court of Appeal of Florida, First District.
    March 27, 2014.
    Rehearing Denied May 16, 2014.

      James Bernard Campbell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Appellees.
   PER CURIAM.

The Court has determined that the Order Denying Motion for Relief from Judgment is not an appealable order. Accordingly, the appeal is dismissed. See Bennett’s Leasing, Inc. v. First Street Mortgage Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

ROWE, MARSTILLER, and RAY, JJ., concur.


author: WALLIS, J.

text:
    Jabez BOAZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4485.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.

      Jeffrey D. Deen, Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel, Fifth District, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Jabez Boaz (“Boaz”) appeals his judgment and sentence after entering an open plea to four drug-related charges. Boaz argues the lower court abused its discretion by failing to address a letter in which Boaz requested a Nelson hearing. Because Boaz’s letter properly requested a Nelson hearing, and a lower court’s failure to conduct any inquiry is per se reversible error, we reverse and remand.

Boaz entered an open plea to four drug-related charges. The first — trafficking in hydrocodone — carried a minimum mandatory sentence of fifteen years. The three remaining charges carried minimum mandatory sentences of probation. The trial court found Boaz’s plea to be open and voluntary. As part of a substantial assistance agreement, the trial court released Boaz without bond.

Boaz sent a pro se letter requesting a Nelson hearing to the trial court. In the letter, Boaz argued his trial counsel forced Boaz to enter the plea, promised Boaz the trial court would sentence Boaz to probation, and failed to file his other requested motions. Before sentencing, Boaz’s trial counsel moved to withdraw Boaz’s plea, alleging he thought he could receive probation. The trial court heard the motion to withdraw the plea but did not conduct a Nelson hearing.

We review a trial court’s conduct regarding a Nelson hearing for an abuse of discretion. Wilson v. State, 889 So.2d 114, 117 (Fla. 4th DCA 2004) (citing Moore v. State, 778 So.2d 1054, 1056 (Fla. 4th DCA 2001)).

A trial court must conduct a Nelson hearing only when a defendant’s actions satisfy a three-prong test: “the defendant makes a ‘clear and unequivocal’ statement that he wishes to discharge appointed counsel, the discharge request is based on a claim of incompetence, and the alleged ineffectiveness arises from counsel’s current representation.” Laramee v. State, 90 So.3d 341, 344 (Fla. 5th DCA 2012) (quoting Blanding v. State, 939 So.2d 173, 175 (Fla. 1st DCA 2006)). The parties dispute only whether Boaz’s letter alleged his trial counsel’s incompetence.

Generally, a trial court does not need to conduct a Nelson hearing when a defendant expresses only general dissatisfaction with counsel. Clayton v. State, 953 So.2d 758 (Fla. 5th DCA 2007) (citing Wil son, 889 So.2d 114)). However, if a defendant expresses his counsel misadvised the defendant, which we have recognized as a valid reason to grant conflict-free counsel after a Nelson inquiry, the defendant’s expression is necessarily specific. As we have previously indicated, “new counsel is required ... when the defendant alleges erroneous advice or misconduct on the part of his current lawyer as the basis for the motion to withdraw plea — so that the lawyer becomes a potential witness at any hearing on the motion.” Gonzales v. State, 993 So.2d 55, 57-58 (Fla. 5th DCA 2008) (citing R. Regulating Fla. Bar 4-3.7; AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 678 (Fla. 2d DCA 2006) (explaining that the dual role of lawyer and witness creates an actual conflict of interest “if the lawyer’s testimony is at odds with that of his client’s”)). Boaz alleged his misapprehension of the minimum mandatory resulted from his counsel’s erroneous advice, which is a validly stated claim for incompetence. Thus, Boaz’s allegation that his trial counsel told him he could receive a probationary sentence satisfies the second prong.

The State contends, nevertheless, that the error is harmless because Boaz pleaded openly and voluntarily. We disagree. “[W]hile the failure to conduct an adequate Nelson inquiry is subject to an abuse of discretion standard and, presumably, a harmless error analysis, the failure to conduct any inquiry is per se error.” Jackson v. State, 33 So.3d 833, 836 (Fla. 2d DCA 2010) (citing Maxwell v. State, 892 So.2d 1100, 1101-02 (Fla. 2d DCA 2004)); Nesmith v. State, 6 So.3d 93, 94 (Fla. 1st DCA 2009) (noting the failure to conduct a “preliminary inquiry into the defendant’s reason for seeking to discharge court-appointed counsel is not harmless error; rather, it is ‘a structural defect in the trial requiring reversal as per se error’ ” (quoting Maxwell, 892 So.2d at 1102)).

We reverse and remand for the trial court to conduct a Nelson inquiry to examine Boaz’s allegations and, accordingly, to determine whether conflict-free counsel is necessary to file a motion to withdraw Boaz’s plea.

REVERSE and REMAND with INSTRUCTIONS.

PALMER and COHEN, JJ., concur.

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

      . The State correctly concedes that Boaz’s request met the first and third prongs.


author: TORPY, C.J.

text:
    Rebecca CONNOR, Appellant, v. SEASIDE NATIONAL BANK, etc., et al., Appellee.
    No. 5D13-3323.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.

      Christian D. Posada and Nancy Stein-McCarthy of Asset Shield Law Group, Greenacres, for Appellant.
    Houston Short and David J. Kohs of Pohl & Short, P.A., Winter Park, for Ap-pellee.
   TORPY, C.J.

The question we deem dispositive in this case is whether the proceeds of certain annuity contracts are exempt from garnishment pursuant to section 222.14, Florida Statutes (2013). The annuities at issue here were purchased by Appellant’s former husband, Michael Connor, but were distributed in substantial part to her in the final judgment of dissolution of their marriage. Appellant was in the process of effectuating the transfer of her interest in the annuities into her name when a judgment was entered against her in favor of Appellee. Thereafter, writs of garnishment were served on the annuity companies. The annuity companies answered the writs, acknowledging Appellant’s interest in the annuities. Appellant then filed a motion to dissolve the writs, asserting the statutory exemption based on her beneficial interest in the annuities. After hearing, the lower court concluded that Appellant was not the “beneficiary” of the proceeds, pursuant to section 222.14, because she was not the named annuitant. Consequently, it denied her motion to dissolve the writs. This appeal timely followed. Because we hold that Appellant was the beneficiary of the annuities, we reverse.

Section 222.14 provides an exemption from garnishment for the proceeds of an annuity contract in favor of the “beneficiary of such annuity contract.” The term beneficiary is not defined in chapter 222. Accordingly, we must construe the word in accordance with its plain and ordinary meaning. State v. Brake, 796 So.2d 522, 528 (Fla.2001). The exemption should be liberally construed in favor of the debtor. Killian v. Lawson, 387 So.2d 960, 962 (Fla.1980). Black’s Law Dictionary defines beneficiary as “[a] party who will benefit from a transfer of property or other arrangement.” Black’s Law Dictionary 157 (6th ed. 1990). Under this definition, Appellant is clearly a beneficiary of the annuity contracts because she is entitled to payment of the proceeds in accordance with the divorce decree. Accord In re Benedict, 88 B.R. 387, 389 (Bankr. M.D.Fla.1988) (recognizing that term “beneficiary” includes any person with beneficial interest in annuity; beneficiary not necessarily one named in contract).

Appellee acknowledges that Appellant has a direct right to receive the proceeds of the annuity contracts by virtue of the final judgment entered in the divorce proceeding. Indeed, garnishment would not have been available to Appellee to collect a judgment against Appellant unless the proceeds of the contracts constituted a debt due to Appellant at the time the writs were served. Appellee argues, nevertheless, that only the named annuitant in an annuity contract is the “beneficiary” as that term is intended in the statute. To support this argument, Appellee places primary reliance on In re Pizzi, 153 B.R. 357 (Bankr.S.D.Fla.1993). Even assuming that we agree with that decision, it is readily distinguishable.

In In re Pizzi, the debtor won more than $3 million in the Connecticut lottery. The State of Connecticut purchased an annuity contract from Met Life from which it derived the income to make debtor’s annual payouts over twenty years. Id. at 359. The annuity contract issued by Met Life listed the State of Connecticut as the owner and beneficiary of the contract. Id. The debtor subsequently filed bankruptcy in Florida and sought to exempt the proceeds of the annuity contract under section 222.14. The bankruptcy court concluded that the proceeds of the annuity contract were not exempt because, even though the debtor was the “nominee” under the contract, she was not a beneficiary. It reasoned that the State of Connecticut received the annual proceeds and could make any use of the proceeds. In the event of a default by Connecticut, the debtor had no right to assert any claim under the annuity directly against Met Life. Id. at 361.

Here, by contrast, although Appellant was not the named annuitant, she did have a right to assert a direct claim against the annuity companies because Michael’s contractual rights had been transferred to her through the dissolution judgment. Very simply put, Appellant was the owner of her percentage interest in the annuities.

Accordingly, we reverse the order below and remand this cause with instructions that the trial court dissolve the garnishment writs served on Aviva Life and Annuity Company (regarding contract numbers 41728 and 40626) and Allianz Life Insurance Company of North America (regarding contract number 70155573).

REVERSED AND REMANDED.

GRIFFIN and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    Iris MONTANEZ, Petitioner, v. PUBLIX SUPER MARKETS, INC., Respondent.
    No. 5D13-3848.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.

      W. Andrew Rariden, of The Trial Professionals, P.A., Orlando, for Petitioner.
    Katherine E. Giddings, of Akerman LLP, Tallahassee, and Carrie Ann Wozniak of Akerman LLP, Orlando, for Respondent.
   EVANDER, J.

Petitioner, Iris Montanez, seeks certio-rari review of an order compelling discovery. Because the order improperly required Montanez to produce privileged attorney-client communications, we grant the petition.

Montanez filed a negligence action against Respondent, Publix Super Markets, Inc., alleging that on June 1, 2011, she suffered serious bodily injury as the result of a slip and fall on a large puddle of water at a Publix store located in Lake County, Florida.

As part of the discovery process, Publix served a set of interrogatories on Monta-nez. The answers to interrogatories were signed by Montanez and verified as being “true and correct to the best of his/her knowledge.” Interrogatory 10(c) read and was answered as follows:

Interrogatory:

10. Please provide a detailed explanation of the following:
(c) Provide all facts which form the basis for the allegations within your Complaint that Defendant knew a dangerous condition existed on the premises.

Answer:

Defendant’s responsibility is to maintain premises safe for the public. The liquid had been on the floor long enough that defendant should have discovered it.

At her subsequent deposition, Montanez was asked about her answer to interrogatory 10(c). She responded that although she had signed the answers to interrogatories, the listed answer to interrogatory 10(c) had not been provided by her. She went on to testify that she did not know the length of time that the puddle of water had been present prior to her slip and fall.

Thereafter, Publix served a request to produce, seeking Montanez’ original, handwritten responses to Publix’s interrogatories. Montanez objected to production of the handwritten answers on the grounds that the requested information was protected by the attorney-client privilege. At the hearing on Montanez’ objection, her counsel advised the court that he had “helped” Montanez with her answer to interrogatory 10(c) and that Montanez was not the one who had “come up with that phraseology.” Counsel’s representation was consistent with Montanez’ answer to interrogatory number one in which she had listed her attorney and herself as the individuals answering the interrogatories.

The trial court concluded that Publix was entitled to see the document containing Montanez’ draft answers because she had revealed and placed her answers at issue during her deposition. The trial court recognized that attorney-client communications other than Montanez’ factual answers might be included in the document and indicated that it would give Mon-tanez’ counsel ten days to identify any such communications, which the court could then review in camera to determine whether any information contained in the document, other than the specific handwritten responses to the interrogatories, would be privileged. When Montanez filed a blanket privilege log asserting that the entire document was privileged, the trial court entered an order compelling its production. It is from this order that Monta-nez has sought review.

Certiorari review is appropriate where a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on plenary appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). An order that erroneously compels a party to produce privileged information is a classic example of a discovery order subject to certiorari review because the harm caused by the disclosure of privileged information is irreparable. Id.

Montanez correctly argues that the handwritten draft answers to interrogatories she delivered to her attorney were privileged attorney-client communications. Section 90.502(l)(e), Florida Statutes (2012), provides generally that a communication between a lawyer and a client is “confidential” if it is not intended to be disclosed to third persons. Although signed and verified answers to interrogatories served on an opposing party are obviously intended to be disclosed to a third person, we reject Publix’s suggestion that a client’s unsigned and unverified draft answers,- submitted directly to that client’s lawyer for review, are likewise intended to be disclosed to others. Indeed, an attorney’s role will often include assisting a client in the preparation of interrogatory answers, so as to best advance the client’s interest while complying with all applicable legal and ethical requirements.

We also reject Publix’s argument that Montanez waived the attorney-client privilege by stating that the response to paragraph 10(c) set forth in her answers to interrogatories was not “her” answer. At no time in her deposition did Montanez disclose her communications with her attorney regarding the preparation of her answers to interrogatories other than to indicate that the answer she had prepared to interrogatory 10(c) was different than the one served on Publix. We would further observe that interrogatory 10(c) did not require an answer based solely on matters within Montanez’ personal knowledge. Indeed, the question called for Montanez to “provide all facts which form the basis for the allegations within your Complaint....” See also Fla. R. Civ. P. 1.340(b) (“An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or calls for a conclusion or asks for information not within the personal knowledge of the party.”). Thus, contrary to Publix’ argument to the trial court, Montanez’ interrogatory answer was not necessarily inconsistent with her deposition testimony.

The trial court’s order compelling Mon-tanez to produce her original handwritten responses to Publix’s interrogatories constituted a departure from the essential requirements of law causing material injury for which there was no adequate remedy at law. Accordingly, we grant Monta-nez’ petition and quash paragraph 3 of the trial court’s order dated October 4, 2013.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

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

      . Even if a waiver of the attorney-client privilege could be found with regard to the answer to interrogatory 10(c), that waiver should not have been found to apply to Montanez’ answers to the other interrogatories.


author: SAWAYA, J.

text:
    Brad HEILMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3940.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.

      David L. Redfearn and Lawrence H. Collins, of The Tate Firm, PLLC, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   SAWAYA, J.

The issue we must resolve is whether the Legislature intended section 944.35(l)(a), Florida Statutes (2011), to preclude a correctional officer from asserting the “stand your ground” defense provided in section 776.032, Florida Statutes (2011). The correctional officer in this case, Brad Heilman, presents this issue in a Petition for Writ of Prohibition he filed with this court. In that Petition, he requests this court issue a writ directing the trial court to hold an evidentiary hearing pursuant to section 776.032. Heilman contends the writ is necessitated by an order rendered by the trial court holding that section 944.35(l)(a), which lists specified circumstances in which a correctional officer is authorized to use force against an inmate, provides the defense for Heilman and precludes him from asserting the immunity and justification defense provided under section 776.032.

The facts of the underlying criminal case are not important to resolution of the legal issues before us (statutory construction and discerning legislative intent), so we will proceed with only a brief discussion of them. Heilman was a correctional officer employed by the Florida Department of Corrections and worked at the Lake Correctional Institution in Lake County, Florida. While on duty, Heilman and an inmate became involved in a physical altercation that resulted in physical injury to the inmate. Heilman was subsequently charged with aggravated battery. He filed a motion pursuant to section 776.032 to dismiss the Information charging him with that offense and requested a hearing.

The trial court denied the motion and the requested hearing based solely on the rationale of State v. Caamano, 105 So.3d 18 (Fla. 2d DCA 2012). Specifically, the court held that “[ajpplying the court’s reasoning in Caamano ... to the instant case, the specific language of section 944.35(l)(a), Florida Statutes, governs the Defendant’s use of force rather than section 776.032, Florida Statutes.”

We believe that the trial court’s reliance on Caamano is misplaced because that case is clearly distinguishable from the instant case. The defendant in Caamano was a police officer charged with attempted battery allegedly committed while the officer was attempting to arrest the victim. When the officer asserted a defense under section 776.032, the court held that another, more specific, statute found in chapter 776 provided a defense for law enforcement officers. That statute is section 776.05, and it provides that the officer “is justified in the use of any force” under specified circumstances. § 776.05, Fla. Stat. (2011). Specifically, the court stated that “[bjecause sections 776.05 and 776.032 address the use of justifiable force in the context of a criminal prosecution, the doctrine of in pari materia requires that we read them together and harmonize them.” Caamano, .105 So.3d at 22 (emphasis added). The court reasoned that section 776.05 is specifically applicable to cases involving the use of force by law enforcement officers in making an arrest and, therefore, section 776.05 supplied the justification defense applicable to the police officer rather than the more general statute found in section 776.032. Otherwise, the court believed that the two statutes would be in conflict and that section 776.032 would render the other meaningless. However, with the exception of section 776.07(2), Florida Statutes (2011), which only applies to a correctional officer’s use of force in a case involving escape, there is no specific statute in chapter 776 that similarly supplies a justification defense for a correctional officer from criminal prosecution.

The court in Caamano considered two statutes in the same chapter of the Florida Statutes that contain the same terminology, while the two statutes we consider are found in different chapters and contain different terminology. Specifically, section 776.032 is found in chapter 776 of the Florida Statutes, entitled “Justifiable Use of Force,” and the clear purpose of the statutes in that chapter is to provide defenses to individuals accused of crimes committed against the person of another. Section 776.032 is entitled “Immunity from criminal prosecution and civil action for justifiable use of force,” and the provisions of the statute speak in terms of “justified” and “justifiable” (meaning “to declare free of blame: to absolve”) to denote a defense to such crimes. For example, section 776.032(1) provides that a person is “justified in using such force and is immune from criminal prosecution,” and the term “justified” is used by the Legislature in a manner to clearly mean and reference a defense to, and immunity from, criminal prosecution. The immunity from criminal prosecution extends to “arresting, detaining in custody, and charging or prosecuting the defendant.” § 776.032(1), Fla. Stat. (2011).

When we analyze section 944.35, we see a different statute. Section 944.35 is found in chapter 944, “The Florida Corrections Code of 1957,” and the stated purpose of the statutes in chapter 944 is to make the correctional system in Florida more efficient and effective and to reduce recidivism. See § 944.012, Fla. Stat. (2011). While section 776.032 specifically provides a justification defense that immunizes an individual from criminal prosecution, no similar provision is found in section 944.35(l)(a). Rather, in section 944.35(l)(a), the Legislature utilized the term “authorized” (meaning “to give authority or power to”) to provide criteria for and to specify the circumstances in which employees of the Department of Corrections may use physical force against inmates. The reasons this criteria and these circumstances are specified in the statute include the following: so that courses of instruction may be developed to “teach the proper methods and techniques in applying authorized physical force on an inmate,” section 944.35(l)(a); for reporting purposes and examination of inmates allegedly injured by the use of force by an employee, section 944.35(l)(b) and (2); for disciplinary action and dismissal from employment, section 944.35(3)(c); and to provide criminal penalties for employees of the Department of Corrections who use unauthorized physical force on inmates, section 944.35(3)(a) and (b). We, therefore, reject the implicit rationale adopted by the trial court that under the holding of Caamano, section 944.35(1) and section 776.032 are analogous to the point where the former precludes application of the latter to correctional officers.

We also note that section 944.35 was enacted long before section 776.032, and we hardly think that the Legislature intended that statute preclude application of a statute that had not yet been enacted. Moreover, under the rationale of Ca ama-no, the Legislature certainly knows how to enact a specific statute that provides a justification defense for correctional officers, and an exemplar emanates from the provisions of section 776.07(2), which provides that “[a] correctional officer or other law enforcement officer is justified in the use of force, including deadly force, which he or she reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.” Under the Caamano rationale, this statute would appear to preclude application of the justification defense provided in section 776.032. But section 944.35(l)(a)2., Florida Statutes (2011), also addresses situations involving force by correctional officers in cases involving escape. That statute provides that “[a]n employee of the department is authorized to apply physical force upon an inmate only when and to the extent that it reasonably appears necessary ... [t]o prevent a person from escaping from a state correctional institution when the officer reasonably believes that person is lawfully detained in such institution!!]” § 944.35(l)(a)2., Fla. Stat. (2011). If we apply the Caamano rationale, it would appear that section 776.07(2) is a more specific statute intended to preclude application of section 776.032 in cases involving force used by correctional officers to prevent an escape. But if, under the Caama-no rationale, section 944.35(1) preempts section 776.032, there would be no reason for the Legislature to enact section 776.07(2) in the first instance. That would essentially mean that the Legislature enacted a useless statute when it wrote section 776.07(2), but that is just the sort of statutory construction the Caamano court (and many other courts) say should be avoided.

The primary focus of our analysis has been to discern legislative intent — the proverbial polestar that guides statutory construction, see Bautista v. State, 863 So.2d 1180 (Fla.2003) — and the conclusions we reach are that the Legislature did not intend that section 944.35(1) preempt section 776.032 and that the Legislature did intend that section 776.032 apply to correctional officers with the exception provided in section 776.07(2). Because Heilman is entitled to assert the defense provided under section 776.032, we grant the Petition, issue the writ, and remand this case for further proceedings consistent with this opinion.

Petition Granted; Writ Issued; Remanded.

PALMER and BERGER, JJ., concur.

      . This court and others have held that a petition for writ of prohibition is the appropriate procedure for obtaining a pre-trial review of a trial court’s order denying a motion to dismiss under section 776.032. See Bretherick v. State, 135 So.3d 337, 2013 WL 5849486 (Fla. 5th DCA Nov. 1, 2013); Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013); Joseph v. State, 103 So.3d 227 (Fla. 4th DCA 2012); Mederos v. State, 102 So.3d 7 (Fla. 1st DCA 2012).

      . Because we resolve the legal issue of statutory interpretation, our standard of review is de novo. See State v. Wonder, 128 So.3d 867 (Fla. 4th DCA 2013).

      . Since this case involves a criminal prosecution, we will ignore the provision referring to civil action in the remainder of this opinion.

      . Webster's II New Riverside University Dictionary 660 (1984). Black's Law Dictionary defines the term “justifiable” as "[rjightful; defensible; warranted or sanctioned by law; that which can be shown to be sustained by law; as justifiable homicide.” Black's Law Dictionary 1004 (4th ed. 1968).

      .§ 944.01, Fla. Stat. (2011).

      . Webster's II New Riverside University Dictionary 139 (1984). Black's Law Dictionary defines the term "authorize" as meaning "to empower; to give a right or authority to act.” Black’s Law Dictionary 169 (4th ed. 1968).

      . In Macchione v. State, 123 So.3d 114, 119 (Fla. 5th DCA 2013), this court explained:
      "It is a basic rule of statutory construction that ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’” Dennis v. State, 51 So.3d 456, 463 (Fla.2010) (quoting Martinez v. State, 981 So.2d 449, 452 (Fla.2008) (other citation omitted)); State v. Goode, 830 So.2d 817, 824 (Fla.2002); Unruh v. State, 669 So.2d 242, 245 (Fla. 1996) (“As a fundamental rule of statutory construction, ‘courts should avoid readings that would render part of a statute meaningless.’ ” (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla. 1992))); Sharer v. Hotel Corp. of Am., 144 So.2d 813, 817 (Fla. 1962) ("It should never be presumed that the legislature intended to enact purposeless and therefore useless, legislation.”); Quarantello v. Leroy, 977 So.2d 648, 651 (Fla. 5th DCA), review denied, 987 So.2d 1210 (Fla.2008).


author: PALMER, J.

text:
    David Andrew BAINTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-602.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

David Bainter (defendant) appeals his judgment and sentence which were entered by the trial court after he pled nolo contendere to the charge of manufacturing cannabis. Determining that his motion to suppress should have been granted, we reverse.

The defendant was charged with committing the offense of manufacturing cannabis. He filed a pre-trial motion seeking to suppress cannabis seized from his home based on the claim that the seizure was the result of an illegal, warrantless search. After conducting a hearing, the trial court entered a written order denying the suppression motion. The defendant then entered a plea of nolo contendere as charged, after reserving the right to appeal the trial court’s dispositive suppression ruling. See Fla. R. App. P. 9.140.

The defendant maintains that the trial court reversibly erred in denying his suppression motion. We agree.

A trial court’s rulings on a motion to suppress come to [the appellate] court with a presumption of correctness. State v. Ernst, 809 So.2d 52, 54 (Fla. 5th DCA 2002). Accordingly, the evidence and all reasonable inferences “must be interpreted in a manner most favorable to an affirmance.” Id. If the trial court’s findings of fact are supported by competent, substantial evidence, this court must accept them. See, e.g., Weiss v. State, 965 So.2d 842, 843 (Fla. 4th DCA 2007). By contrast, we review questions of law involved in any suppression analysis de novo. Ernst, 809 So.2d at 54.

State v. Nowak, 1 So.3d 215, 217 (Fla. 5th DCA 2008).

The undisputed facts are that the property where the search and seizure took place was the defendant’s home. The home was located on a large piece of property that had a few acres that were cleared. The property was surrounded by a barbed-wire fence, had a chain-link push gate at the entry to the dirt driveway, and had “no trespassing” signs posted at the entry to the driveway. The police traveled to the defendant’s address to do a knock and talk after receiving an anonymous tip that the property owner might be growing cannabis. The police drove down the dirt driveway through the open gate, parked the car near the home, exited the ear, walked about forty yards to the front porch, and knocked on the front door. The knock and talk resulted in the eventual seizure of cannabis. The police admitted that they did not have consent to enter the property and they did not have a warrant. They also did not see anything in plain view that was illegal.

William Hamilton testified that he owns the property where the search took place. A six-foot-high chain-link gate blocks the entrance to the driveway and a barbed-wire fence surrounds the property. The mailbox is located twelve feet outside of the gate. Several “no trespassing” signs are posted on a pole beside the place where the gate shuts. Hamilton testified that he does not generally have members of the public come onto his property, and no salesmen or solicitors had ever entered his property. He shuts the gate when there is no one home, but when there is someone home, the gate is open most of the time. He said that, when friends come over, the gate is open, if he knows that they are coming. UPS packages are usually delivered by leaving them at the gate post, even when the gate is open. However, if a signature is required for delivery, the delivery service drives to the house. He testified that if a postal worker has a package, the worker comes on the property and honks the horn to get someone’s attention.

The defendant then testified. He stated that he has lived on the property off and on for ten years. He corroborated the fact that the property is completely surrounded by barbed-wire fencing and that there is a gate at the entrance to the driveway. Also, there are “no trespassing” signs on a post at the entry to the driveway. He said that they “very, very seldom” receive visitors at the house and they never receive solicitors. He stated that the power company employees must enter the property to read the meter.

The defendant sought suppression, arguing that the police officers’ entry into the property was illegal. The trial court rejected this argument, reasoning:

Everybody testified here today, the police officers, the defendant, and his witness, Mr. Hamilton, all testified that at the time the gate was clearly open, and for the sake of my ruling I’m going to assume that those posted signs were there, even though the officers testified they did not remember seeing the posted signs. ... So I do rule in favor of the state, deny the motion to suppress with that open gate. I think the officers did have the right to drive up there, regardless if they walked, drove, drove within 25 feet, 50 to 75 feet or 30 yards away or walked up, they had the right to be there, the defendant’s motion to suppress is denied.

We disagree.

In Randall v. State, 458 So.2d 822 (Fla. 2d DCA 1984), the Second District explained:

The fourth amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” As the United States Supreme Court held in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a “search” occurs within the meaning of the fourth amendment when government action invades an individual’s justifiable or reasonable expectation of privacy. Katz, 389 U.S. at 353, 88 S.Ct. at 512, 19 L.Ed.2d at 583. See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Under Katz and its progeny, a reasonable expectation of privacy exists if the individual has exhibited an actual, subjective expectation of privacy which society is prepared to recognize as reasonable. See Smith, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226.

Id. at 824. The Third District, citing our court, recently held that a defendant had established his subjective expectation of privacy in the curtilage of his home, explaining:

“Putting up fences, and affirmatively taking express steps to exclude the public or other persons from using the area, seeing into it, or gaining access to the area ... are ways to establish such a subjective manifestation.” Ratcliff v. State, 783 So.2d 1099, 1101 (Fla. 5th DCA 2001); Ruiz v. State, 743 So.2d 581 (Fla. 4th DCA 1999).

Fernandez v. State, 63 So.3d 881, 883 (Fla.3d DCA 2011). Thus, the issue for determination here is whether the defendant exhibited an actual, subjective expectation of privacy that society is prepared to recognize as reasonable. We hold that he did.

Two recent cases are instructive. In Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013), the issue was “whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment.” Id. at 580. The Powell defendants argued that the officers’ viewing of the marijuana plants by standing at and looking through the front window of their home constituted an illegal search. The First District agreed. In the opinion, the court set forth a summary of the law applicable to constitutional limitations placed on police conduct at a person’s home and addressed the circumstances surrounding knock and talks:

The existence and extent of a license that would permit a “knock and talk” depends on the circumstances; homeowners who post “No Trespassing” or “No Soliciting” signs effectively negate a license to enter the posted property. See § 810.09, Fla. Stat. (Florida’s trespass statute).

Id. at 584. In Nieminski v. State, 60 So.3d 521 (Fla. 2d DCA 2011), the issue was whether deputies could enter acreage completely surrounded by a six-foot chain-link fence in order to conduct a knock and talk. There, the driveway had a closed, but unlocked, gate and there were no signs posted. Two deputies entered the property through the gate so that they could conduct the knock and talk. The Second District explained that the defendant had the initial burden to establish that he had a reasonable expectation that ordinary citizens would not occasionally enter the property through the closed but unlocked gate to knock on his front door. Id. at 529. The court held that the defendant failed to sustain his burden of proof because the “property was not posted and did not have any other signs that might discourage a person from entering for the purpose of knocking on the front door.” Id. at 522.

Here, the posting of the signs and the fencing of the entire property, including a push gate at the entrance to the driveway, exhibited the defendant’s actual, subjective expectation of privacy, and we conclude that society is prepared to recognize same as being reasonable. Neither the fact that the gate was open, nor that occasional friends or service providers come onto the property, negate that expectation of privacy-

Accordingly, we reverse the order denying the defendant’s suppression motion and remand with directions to discharge the defendant.

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . A knock and talk is justified as a consensual encounter during which officers are authorized to "approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart." Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013).


text:
    Jason Scott DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2600.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.
    Jason Scott Downs, Melbourne, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Jason Downs appeals the denial of his petition for writ of habeas corpus, wherein he sought permission to file a belated motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850(b)(3). He argues the trial court erred when it summarily denied his motion as untimely. We agree and reverse.

In 2001, Downs was convicted of two sex offenses. On appeal, this Court affirmed his judgment and sentence. Downs v. State, 823 So.2d 789 (Fla. 5th DCA 2002). The mandate issued on August 12, 2002, which gave Downs until August 12, 2004, to file a timely rule 3.850 motion.

Eleven years later, on March 13, 2013, Downs filed a petition for writ of habeas corpus requesting the trial court to allow him to file a belated motion for postconviction relief on the basis that appellate counsel agreed to file a postconviction motion, but failed to do so. The trial court denied the petition finding:

Rule 3.850(b)(3) provides for an additional exception to the two year time limit where “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.” However, the rule goes on to state that, “[a] claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.” The time for filing a motion for postcon-viction relief expired on August 12, 2004. Therefore, the time for filing a 3.850 motion under this exception expired on August 12, 2006. The Defendant’s motion is untimely.

The two-year time limit was added to the exception effective July 1, 2011. Prior to that date, a claim based on the exception found in rule 3.850(b)(3) could be raised at any time. Thus, had Downs filed his petition on June 30, 2011, he would have been provided a hearing. However, because his petition was not filed until 2013, the judge denied it as untimely.

Unless specifically provided otherwise, rules of procedure are to be applied prospectively. See Pearlstein v. King, 610 So.2d 445, 446 (Fla.1992). Prospective application of a rule to pending cases, where the rule is amended to provide specific time frames, would require the new time frames to run from the effective date of the rule. Id. Here, giving prospective effect to rule 3.850(b)(3), as amended, would provide two years from the effective date of the rule, i.e., two years from July 1, 2011, to file a petition for writ of habeas corpus alleging counsel failed to timely file a motion for postconviction relief.

Because Downs’ petition was filed prior to July 1, 2013, it was timely. Accordingly, he was entitled to a hearing on his claim. See Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999). The order denying the petition is, therefore, reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion. Our reversal, however, is without prejudice to the State to raise the claim of laches. See McCray v. State, 699 So.2d 1366 (Fla.1997); Brimage v. State, 937 So.2d 230, 233 (Fla. 3d DCA 2006); Hayes v. State, 896 So.2d 974 (Fla. 5th DCA 2005).

REVERSED AND REMANDED.

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

      . Rule 3.850(b)(3), which went into effect on July 1, 2011, provides in pertinent part:
      Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final unless it alleges that

      3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.

      . The trial judge correctly applied the rule in effect at the time Downs filed his petition. See Fuzzell v. E.I. DuPont de Nemours & Co., 987 So.2d 1271 (Fla. 5th DCA 2008).


text:
    Javier MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4140.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.
    Javier Medina, Monticello, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We reverse the trial court’s summary denial of the motion for jail credit filed by Appellant pursuant to rule 3.801, Florida Rules of Criminal Procedure, and remand this case to the trial court to allow Appellant to amend his facially insufficient motion. See Fla. RR.Crim. P. 3.801(e), 3.850(f)(2).

REVERSED and REMANDED.

GRIFFIN, SAWAYA, and COHEN, JJ., concur.