author: ROTHENBERG, J.

text:
    The STATE of Florida, Petitioner, v. Ambrose DIXON and Johan Matienzo, Respondents.
    Nos. 3D17-281, 3D17-158, 3D17-159
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017

      Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for respondents.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   ROTHENBERG, J.

In these consolidated cases, the State of Florida has filed petitions seeking writs of prohibition, certiorari and mandamus. All three appellate' cases arise from the trial judge’s stated policy requiring the State to file an information by the twenty-first day after the arrest of the defendant or face a sua sponte release of the defendant or a reduction of the defendant’s bond.

It has long been held in the courts of this state that “every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939). Because the trial judge’s on-the-record comments reflect a predisposition to release defendants from custody either on their own recognizance (“ROR”) or on a de minimis release condition, such as a $1 bond, if the State fails to file charges on the twenty-first day after arrest, we conclude that the trial judge erred by denying the State of Florida’s (“the State”) legally sufficient motion to disqualify the trial judge in State v. Dixon, which was filed on the twenty-first day after Dixon’s arrest and where the State was unprepared to file formal charges. We, therefore, grant the State’s petition' for writ of prohibition in State v. Dixon filed under appellate case number 3D17-281. Based on the discussion which follows, we also grant the State’s petition for certiorari relief in State v. Matienzo, filed under appellate case number -3D17-158, but deny the State’s petition for writ of prohibition in State v. Matienzo, filed under appellate case number 3D17-159.

State v. Ambrose Dixon, Appellate Case Number 3D17-281.

The defendant, Ambrose Dixon (“Dixon”), was arrested for numerous offenses in three separate cases, allegedly committed on three separate dates. In case number F16-25669, Dixon was charged with making written threats to kill or do bodily harm (a second degree felony) and making threatening or harassing phone calls (a first degree misdemeanor) on July 18, 2016. In ease number F16-25725, he was charged with committing these same offenses on November 30, 2016. Lastly, in case number F16-25670, Dixon was charged with committing a strong arm robbery (a second degree felony) and grand theft (a third degree felony) on December 26, 2016. At his first appearance, a finding of probable cause was made, and at the bond hearing, Dixon was given bonds totaling $28,500 as to all three cases, with an additional condition of house arrest.

The Assistant State Attorney that was handling Dixon’s cases: (1) was not able to complete his investigation prior to the scheduled arraignment on January 17, 2017, which was the twenty-first day after Dixon was arrested; (2) intended to ask the trial judge, the Honorable Alberto Milian (“the trial judge”), to reset the arraignment for the thirtieth day as authorized by rule 3.134, Florida Rules of Criminal Procedure (2016); and (3) was aware of the trial judge’s policy of releasing defendants sua sponte, either ROR or on a $1 bond without considering any other factors when formal charges are not filed by the twenty-first day after arrest. Accordingly, the Assistant State Attorney filed a motion to disqualify the trial judge prior to his announcement at the arraignment and requested a reset of the arraignment to the thirtieth day. Accompanying the motion to disqualify was a sworn affidavit signed by the Assistant State Attorney and transcripts of the relevant proceedings in State v. Matienzo (case number F16-23856), over which the trial judge presided.

A. Grounds For Disqualification

As grounds for disqualification, the Assistant State Attorney identified Dixon’s pending charges and current bond status and stated that the State was not going to be able to complete its investigation prior to the twenty-first day (January 17, 2017), and thus, it was going to request the trial judge to reset the arraignment for the thirtieth day. The motion also stated that the Assistant State Attorney had a well-founded fear that the trial judge would not be fair and impartial to the State when ruling on motions regarding Dixon’s bond or at trial, if the case proceeded to trial, because the Assistant State Attorney was aware of the trial judge’s tone and statements made in State v. Matienzo, which he argued demonstrate: (1) a predisposition to release defendants ROR or on a very low bond in every case in which the trial judge believes the charging document was not timely filed, with or without a motion by defense counsel; (2) a predisposition for assisting defendants by sua sponte granting bonds and suggesting courses of action to defense counsel; and (3) hostility towards the State Attorney’s Office because the trial judge perceives the office as having a “lackadaisical bureaucratic attitude” towards the timely filing of charges.

B. State v. Matienzo (Case Number F16-23856), Which Was Relied On By the State in State v. Dixon

In support of his allegation regarding the trial judge’s predisposition to apply such a policy, the Assistant State Attorney in State v. Dixon relied on the record in State v. Matienzo, case number F16-23856. This record reflects that when case number F16-23856 was called up for arraignment on December 20, 2016, the twenty-first day after Matienzo’s arrest, Matienzo had three other felony cases pending before the trial court: (1) case number F16-14443, in which Matienzo was charged with strong arm robbery; (2) case number F16-23864, wherein Matienzo had been arrested for first degree grand theft and the arraignment had been reset for December 29, 2016, the thirtieth day; and (3) case number F16-23919, which was set for arraignment the following day. The case that was set for arraignment on December 20, 2016, case number F16-23856, was for an armed home invasion robbery with a firearm, a first degree felony punishable by life imprisonment, and two counts of aggravated battery with a firearm, second degree felonies punishable by fifteen years imprisonment with three-year minimum mandatories. Thus, Matienzo was being held without bond on that case.

As outlined in the motion to disqualify, when case number F16-23866 was called up for arraignment on the morning of December 20,2016, the Assistant State Attorney assigned to prosecute the case informed the trial judge that he had just finished the pre-file meetings with the witnesses and therefore he needed an extra day to generate the paperwork in order to file the charges in that case, and asked the trial judge to reset the arraignment for the following day where Matienzo was scheduled for arraignment on another case (case number F16-23919). The trial judge refused to reset the arraignment for the following day. Then, with no notice to the State, motion by defense counsel, or consideration of any of the factors that the court is required to consider when determining whether to release a defendant on bail or other conditions, see § 903.046, Fla. Stat. (2016), the trial judge sua sponte ordered that Matienzo be released ROR because the State had not filed an information when the case was called for arraignment on the twenty-first day.

Also sua sponte and with no notice to the State or motion by defense counsel, the trial judge changed the bond which had been previously set in case number F16-23864, and which had already been reset to the thirtieth day for arraignment, to ROR, which he later modified to a $1 bond. The Assistant State Attorney objected to the rulings in both cases and explained that Matienzo was going to be charged with a felony punishable by life, a non-bondable offense, in case number F16-23856, Matienzo had violated his pretrial release in case number F16-14443, Matienzo posed a danger to the community, and firearms were involved in almost all of Matienzo’s cases. The Assistant State Attorney also asked if the trial judge would reconsider his rulings if the State filed the information in case number F16-23864 within thirty minutes. The trial judge responded that he would not reconsider his rulings even if the State filed the charges in thirty minutes (and still on the twenty-first day):

THE COURT: I will not reconsider. I have made my position abundantly clear, as I have told the State on repeated occasions in numerous courtrooms, there is a duty and an obligation to act expeditiously. And the failure of the government to act is going to have some consequences. So the bond will be set at $1.00 on both of those cases.

As promised, later that morning and still on the twenty-first day, the State filed formal charges against Matienzo in case number F16-23856, charging him with armed robbery with a firearm, a non-bond-able first degree felony punishable by life, and two counts of aggravated battery with a firearm, second degree felonies punishable by fifteen years imprisonment, and an additional charge of possession of a firearm by a delinquent. Based on the filing of formal charges, the Assistant State Attorney asked the trial judge to reconsider Matienzo’s bond status because the information had been filed on the twenty-first day. The trial judge denied the request stating: “When I called up the case an hour and a half ago it was not filed, so your request is hereby denied.”

When Matienzo’s cases were before the trial judge the following day, December 21, 2016, for arraignment on another case, the Assistant State Attorney again asked the trial judge to reconsider his ruling on Ma-tienzo’s bond in case number F16-23856. The trial judge remained steadfast and denied the motion stating:

I put you on notice when you came into this division. You have an obligation, and I have an obligation. If you do not file the charges on a timely basis, it is on you. And there is no reason you could not have filed it yesterday. Ultimately, you filed it within an hour. Proper planning prevents poor performance. You have an obligation. You comply with that obligation. .,.
Now, I have told the division repeatedly. And I have told the defendants and I have told the public defenders and I have told the private bar that I am not going to put off somebody’s liberty, so that the State can come in on the 33rd day and say, we are filing a resisting without violence. And somebody is sitting incarcerated. Since I am not a prophet, and I do not have the obligation of filing the charges, I really am going to hold your feet to the fire. That has been my position. Do not interrupt me. You did that yesterday. Do not interrupt me and do not argue with me. Your request is denied.

When the Assistant State Attorney attempted to inquire about the bond that the trial judge had sua sponte reduced to $1 in case number F16-14443 and explain why he was approximately one hour late with filing the charges in case number F16-23856, the tidal court refused to entertain either the prosecutor’s question or explanation, stating: “I am not here to do a question and answer on your cases,” and “I do not require an explanation.”

On January 6, 2016, the Assistant State Attorney made one last attempt to explain the cause of the slight delay in the filing of the charges in case number F16-23856 and to apprise the trial judge of why pre-trial detention on the non-bondable offense and the additional charges was important in this case. However, rather than considering the seriousness of the charges, the fact that the charges were filed on the twenty-first day and before the trial judge had completed that morning’s call of the calendar, Matienzo’s dangerousness to the community, and the fact that the charged crimes allegedly occurred while Matienzo was on pre-trial release on other serious charged offenses, the trial judge continued to adhere to his stated policy of releasing defendants when the State fails to file the charges by what the trial judge has determined is timely. And then, on January 21, 2016, without listening to the Assistant State Attorney’s explanation, the trial judge accused the Assistant State Attorney and the State in general of “negligence,” “dereliction” “or plain out bureaucratic laziness.”

THE COURT: If all of those factors that you cite in your motion were true you, your office, the police agencies, had an obligation to file those charges in accord with the law. You chose not to. I don’t know if there was negligence, or dereliction, or plain out bureaucratic laziness. I gave the gentleman a $1 bond because of the failure of the government to adhere to its responsibilities to file the charges.
If all of those factors are true, and they should be considered by a judge, whether it’s me or anybody else, then your office and you should have moved to file those appropriate charges in the appropriate time. Just because a man is sitting in jail accused of a heinous crime does not give us the luxury of bureaucratic neglect and largess of somebody else’s freedom. And the reason that I have made it a point in two years of stating my position that I as a gatekeeper of justice and fairness will not sit idly by when a human being is incarcerated who is either poor or facing a serious charge where he is being held without a bond and wait [here for approximately one hour] for the government to make its decision ....
Your motion is hereby denied. And I will stand by my ruling understanding everything that you have said, and even taking it at face value. I only wish whoever was responsible for filing those charges would have taken those factors in account. If Mr. Matienzo goes out—if he’s a danger to the community like you claim the responsibility lies with you, not with me.
That is my position, I have explained it. It will continue to be my position. Just as we have the exclusionary rule to assure that law enforcement abides by the constitution!,] in this case a bond was set because of the government’s failure to act on a timely basis according to their responsibilities, and according to the law.

C. Legal Analysis: Motion to Disqualify

The Florida Rules of Judicial Administration provide for the disqualification of a judge when “the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1). The legal sufficiency of a motion to disqualify depends on “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983); State v. Borrego, 105 So.3d 616, 619 (Fla. 3d DCA 2013). The allegations of fact that are contained in the motion must be taken as true, Masten v. State, 159 So.3d 996, 997 (Fla. 3d DCA 2015), and “the question of disqualification focuses not on what the judge intended, but rather how the message is received and the basis of the feeling.” Great Am. Ins. Co. of N.Y. v. 2000 Island Boulevard Condo. Ass’n, 153 So.3d 384, 390 (Fla. 3d DCA 2014) (citing Livingston, 441 So.2d at 1086).

We conclude that each of the grounds raised in the State’s motion for disqualification are legally sufficient, requiring the trial judge’s disqualification.

(1) The trial judge’s stated policy

The trial judge announced his policy regarding the release of defendants if the charges are not filed on the twenty-first day after arrest. Specifically, the trial judge made the following statements: (1) “I have made my position abundantly clear, as I have told the State on repeated occasions in numerous courtrooms, there is a duty and an obligation to act expeditiously. And the failure of the government to act is going to have some consequences. So the bond will be set at $1 on both of those cases”; (2) “I gave the gentleman a $1 bond because of the failure of the government to adhere to its responsibilities to file the charges”; and (3) “That is my position. I have explained it. It will continue to be my position. Just as we have the exclusionary rule to assure that law enforcement abides by the constitution!,] in this case a bond was sét because of the government’s failure to act on a timely basis according to their responsibilities, and according to the law.”

The trial judge’s actions demonstrated that he was willing to adhere, to this policy even when (1) a defendant had four pending felony cases and was out on pretrial release when he was arrested for an armed home invasion robbery (a non-bondable offense) and two counts of aggravated battery with a firearm; (2) the State filed the charges on the twenty-first day, albeit approximately one hour after the case was initially called up for arraignment; and (3) the Assistant State Attorney informed the trial judge that he had just completed the pre-filing process, and he would be prepared to file the information in thirty minutes if the trial judge would pass the case to allow him to complete the paperwork. The trial judge’s strict adherence to his stated policy was also demonstrated in his unwillingness to entertain the Assistant State Attorney’s explanation for the delay or to consider Matienzo’s danger to the community, the likelihood that Matienzo would re-offend while out of custody, and the other relevant factors a court must consider when deciding to release a defendant from custody and determining the conditions of the release. Instead, the trial judge sua sponte released Matienzo, who was being held on a non-bondable offense, even after the charges had been filed on the twenty-first day and within one hour of the scheduled arraignment.

“[Jjudicial comments revealing a determination to rule a particular way pri- or to hearing any evidence or argument have been found to be sufficient grounds for disqualification.” Thompson v. State, 990 So.2d 482, 490 (Fla. 2008). “A trial judge’s announced intention before a scheduled hearing to make a specific ruling, regardless of any evidence or argument to the contrary,' is the paradigm of judicial bias and prejudice.” Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994).

Thus, a motion to disqualify a trial judge may rely bn the judge’s announcement of his policy in other cases in order to establish a well-founded fear that the judge will not be impartial in the case in which the motion to disqualify was filed. In Dunlevy v. State, 201 So.3d 733, 736 (Fla. 4th DCA 2016), defense counsel quoted and relied on multiple statements by the tidal judge in other cases and asserted that the facts and statements in those other cases demonstrated that the trial judge had a policy of sentencing indigent defendants who were unable to pay restitution more harshly than defendants who could pay restitution or who could pay restitution more quickly than a co-defendant. The Fourth District Court of Appeal concluded that, based on the allegations in the motion to disqualify, Dunlevy’s fear of bias against him because he could not pay restitution was reasonable, and thus the motion to disqualify should have been granted. Id. at 736.

Similarly, in Martin v. State, 804 So.2d 360 (Fla. 4th DCA 2001), the motion to disqualify the trial judge was based on the allegation that the trial judge had a policy of ordering that any jail or prison sentence be followed by a period of probation, which reflected the trial judge’s failure to apply individualized sentencing criteria in determining the appropriate sentence to impose following a guilty or no contest plea or a guilty verdict. Id. at 362. This allegation was based on statements the trial judge had allegedly made to a reporter. Because the trial judge’s remarks to the reporter could have reasonably been interpreted as announcing a fixed intention to have probation invariably follow any jail or prison sentence that the judge would impose, the motion to disqualify the trial judge was found by the appellate court to be legally sufficient and should have been granted. Id. at 364; see also Torres v. State, 697 So.2d 175, 177 (Fla. 4th DCA 1997) (concluding that the judge’s announced policy that no probation violator would be sentenced to time served constituted legally sufficient grounds for disqualification because the policy personally affected Torres and placed him in fear that he would not receive a fair sentencing hearing); Hayes v. State, 686 So.2d 694, 695 (Fla. 4th DCA 1996) (holding that disqualification of the trial judge was required based on the judge’s comments to an assistant public defender representing another defendant that the judge would never sentence a defendant to time served on a violation of probation, and finding that although the statement was not specifically directed towards Hayes, the trial judge erred by denying Hayes’ motion to disqualify).

As these examples reflect, a judge’s announced policy or predisposition to rule in a particular manner is grounds for disqualification. Here, the trial judge’s announced policy of releasing defendants either on ROR or on a de minimis bond of $1 if the State does not file charges by the twenty-first day following the arrest, without consideration of the nature of the offense, the reason for the delay, the defendant’s prior record, the risk to the community, and the likelihood that the defendant will appear for all scheduled court appearances, gave the State a well-founded fear that it would not receive fair and impartial treatment when it announced its unreadiness to file Dixon’s charges on the twenty-first day.

This policy is also in violation of Florida’s statutory law and criminal procedure rules. Florida Rule of Criminal Procedure 3.134 addresses the time parameters for the filing of formal charges after an arrest and provides as follows:

The state shall file formal charges on defendants in custody by information, or indictment, or in the case of alleged misdemeanors by whatever documents constitute a formal charge, within 30 days from the date on which the defendants are arrested or from the date of the service of capiases upon them. If the defendants remain uncharged, the court on the 30th day and with notice to the state shall:
(1) Order that the defendants automatically be released on their own recognizance on the 33rd day unless the state files formal charges by that date; or
(2) If good cause is shown by the state, order that the defendants automatically be released on their own recognizance on the 40th day unless the state files formal charges by that date.
In no event shall any defendants remain in custody beyond 40 days unless they have been formally charged with a crime.

Section 907.041(3)(a), Florida Statutes (2016), explains that, while there exists “a presumption in favor of release on non-monetary conditions for any person who is granted pretrial release,” the statute limits that presumption to persons not charged with a dangerous crime. However, if a person is arrested for a dangerous crime, the Legislature has clearly expressed its intent that such persons be held on pretrial detention or released on monetary conditions that will assure the presence of the person at trial and other proceedings, protect the community, and assure the integrity of the judicial process. See § 907.041(1), (3).

Section 908.046, Florida Statutes (2016), reiterates that “[t]he purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant.” § 903.046(1). Further, section 903.046(2) provides: (“[W]hen determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court shall consider:)

(a) The nature and circumstances of the offense charged.
(b) The weight of the evidence against the defendant.
(c) The defendant’s family ties, length of residence in the community, employment history, financial resources, and mental condition.
(d) The defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings....
(e) The nature and probability of danger which the defendant’s release poses to the community.
(f) The source of funds used to post bail or procure an appearance bond
(g) Whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of a sentence.
(h) The street value of any drug or controlled substance connected to or involved in the criminal charge....
(i) The nature and probability of intimidation and danger to victims.
(j) Whether there is probable cause to believe that the defendant committed a new crime while on pretrial release.
(k) Any other facts that the court considers relevant.
(l) Whether the crime charged is a violation of chapter 874 or alleged to be subject to enhanced punishment under chapter 874 or reclassification under s. 843.22....
(m) Whether the defendant, other than a defendant whose only criminal charge is a misdemeanor offense under chapter 316, is required to register as a sexual offender... or a sexual predator ....

Rule 3.131(d)(1), Florida Rules of Criminal Procedure, provides for the mechanism to apply for the modification of bail after bail was set or denied at the first appearance probable cause hearing. Rule 3.131(d)(1) provides that such application be made by motion. Subsection (d)(2) requires at least three hours’ notice to the State if modification is being sought by the defendant, and at least three hours’ notice to the defendant if modification is sought by the State.

The transcripts of the proceedings in State v. Matienzo, which served as the basis for and were attached to the motion to disqualify the trial judge in State v, Dixon, reflect that based on the trial judge’s stated policy, the trial judge refused to comply with the law. Florida Rule of Criminal Procedure 3.134 only allows for automatic release for a defendant on the thirty-third day if formal charges have not been filed and after notice to the State on the thirtieth day that such release shall take place on the thirty-third day unless good cause can be shown by the State. Section 903.046 also requires that when considering whether to release a defendant on bail or other conditions, the court shall consider a lengthy statutory list of circumstances bearing on the weight of the evidence against the defendant, the risk to the community, and the likelihood of the defendant’s future court appearances. And rule 3.131(d) only provides for the modification of an existing bail amount or no bail determination by motion of either the defendant or the State and with at least three hours’ notice.

However, the transcripts in State v. Matienzo reflect that, based on the trial judge’s stated policy, with no motion by the defendant, no notice to the State, and on the twenty-first day following Matien-zo’s arrest in case number F16-23856, the trial judge released Matienzo on a reduced bail of $1. This ruling was also made despite the fact that .the first appearance judge had ordered that Matienzo be held on no bond status in that case because Matienzo was arrested on the non-bonda-ble offense of armed home invasion robbery; the State announced that it had completed its investigation and that the charges would be filed on the twenty-first day; the State filed the charges approximately one hour later; and the trial judge did not consider any of the factors the court is required to consider pursuant to section 903.046. As a further demonstration of the trial judge’s adherence to his stated policy, he refused to reconsider his ruling after the State returned to the courtroom approximately one hour later to notify the trial judge that the charges, including the non-bondable offense, had been filed, or to consider the State’s subsequently filed motion for modification of bail. Rather than considering the statutory factors for modification of bail either at the time the trial judge sua sponte modified the bail or upon the State’s subsequent properly noticed motion for modification, the trial judge stated that if the factors stated in the motion were true, they should have been considered by the State and the State should have “file[d] those appropriate charges in the appropriate time.”

Your motion is hereby denied. And I will stand by my ruling understanding everything that you have said, and even taking it at face value. I only wish whoever was responsible for filing those charges would have taken those factors in account. If Mr. Matienzo goes out—if he’s a danger to the community like you claim the responsibility lies with you, not with me.
That is my position. I have explained it. It will continue to be my position. Just as we have the exclusionary rule to assure that law enforcement abides by the constitution!;,] in this case a bond was set because of the government’s failure to act on a timely basis according to their responsibilities, and according to the law.

The State’s motion to disqualify the trial judge in State v. Dixon, accompanied by a sworn affidavit by the Assistant State Attorney and the transcripts of the proceedings in State v. Matienzo, was thus a legally sufficient motion requiring disqualification. The allegations, supporting affidavit and transcripts would place a reasonably prudent person, which in this case is the Assistant State Attorney prosecuting the criminal cases against Dixon, in front of the same judge who presided in State v. Matienzo, in fear of not receiving a fair and impartial consideration of the defendant’s bond status when the Assistant State Attorney was unprepared to file charges against Dixon on the twenty-first day. We therefore conclude that the trial court erred by denying the motion to disqualify.

(2) The trial judge’s predisposition for assisting defendants on bond issues

Although we have already concluded that disqualification is required based on the trial judge’s stated policy to release defendants ROR or on a $1 bond when the State does not file charges against a defendant who is in custody on the twenty-first day, we briefly address the two remaining grounds asserted by the State for disqualification of the trial judge. The law in Florida is clear—a judge may not enter into the fray by giving “tips” or legal advice to either side. Chastine v. Broome, 629 So.2d 293, 295 (Fla. 4th DCA 1993). “When a judge enters into the proceedings and becomes a participant or an advocate, a shadow is cast upon judicial neutrality.” R.O. v. State, 46 So.3d 124, 126 (Fla. 3d DCA 2010); see also Williams v. State, 160 So.3d 541, 544 (Fla. 4th DCA 2015); J.F. v. State, 718 So.2d 251, 252 (Fla. 4th DCA 1998). Thus, when a judge provides legal advice, that alone is sufficient to compel disqualification. Great Am. Ins. Co., 153 So.3d at 388.

The transcripts filed with the motion to disqualify reflect that after ordering that Matienzo be released ROR, the trial judge directed the Assistant Public Defender to contact the Public Defender’s Early Release Unit (“ERU”) and to instruct the unit to be more proactive in filing motions before the trial judge to release defendants who are unable to post bond.

THE COURT: I have been a little bit distressed to see some people held on what I consider minor charges, grand thefts and possession of cocaine charges that end up getting nolle prosed on the day of the arraignment, and for some reason it is not being brought to me. So please talk to your—what do you call that unit. The.
ASSISTANT PUBLIC DEFENDER: E-R-U.
THE COURT: ERU, early—and tell them to put these cases down. I do not care if they put .them down 24 hours’ notice.

By directing the Assistant Public Defender to set more cases on the calendar to enable the trial judge to release more defendants from custody, the trial judge was offering advice or tips to the Public Defender’s Office and abandoned his neutrality. In Chastine, 629 So.2d at 295, the Fourth District disqualified a judge who passed a note to the prosecutor giving the attorney strategy tips. In J.F., 718 So.2d at 252, the Fourth District reversed J.F.’s conviction after- the trial judge directed a State witness to obtain additional evidence and sua sponte continued a hearing pending the results of a fingerprint examination. In Great American Insurance Co., 153 So.3d at 388, this Court found that disqualification of the trial judge was required where he offered legal advice to the plaintiff by stating, “If it were me, I would still ask questions of an opinion nature and get the statements regarding privilege on the record.” And in Williams, 160 So.3d at 544, the appellate court found that it was reasonable for Williams to question the trial court’s neutrality where the trial court prompted the State to move for reconsideration of a suppression order.

We see no reason to treat the trial judge’s tips to the Public Defender’s Office in this case any differently than the tips provided in other cases which required disqualification of the trial judge or a reversal of the judgment. “Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.” Shore Mariner Condo. Ass’n v. Antonious, 722 So.2d 247, 248 (Fla. 2d DCA 1998).

(3) Comments demonstrating hostility and/or bias against the State

The trial judge accused the State of having a “lackadaisical bureaucratic attitude” and of “negligence, or dereliction, or plain out bureaucratic laziness” for not filing charges on the twenty-first day. He further added that the seriousness of the charges did not support the “luxury of bureaucratic neglect and largess of somebody else’s freedom.” The trial judge levied these accusations while at the same time precluding the Assistant State Attorney from explaining what caused the delay, and despite the fact that the Assistant State Attorney had completed his pre-fil-ing investigation that morning, and he had filed the charges one hour later on the twenty-first day. Specifically, when the Assistant State Attorney attempted to provide an explanation when the case was called up for arraignment on the twenty-first day, the trial judge refused to listen and told him, “Do not interrupt me again. I will listen to you whenever I ask you to speak.” The trial judge admonished the Assistant State Attorney again on the following day after the charges were filed and when the Assistant State Attorney attempted to provide an explanation, the trial judge stated: “Do not interrupt me. You did that yesterday. Do not interrupt me and do not argue with me. Your request is denied.”

The trial judge also inferred that the State’s “laziness,” “lackadaisical bureaucratic attitude,” “negligence or dereliction” results in defendants needlessly sitting in custody and stated that he would not “rubber stamp having somebody in custody without the law being obeyed,” thus implying that the law requires the filing of formal charges by the twenty-first day, which it does not, and that the State is violating the law when it fails to file charges on the twenty-first day and requests a reset until the thirtieth day, which it is legally entitled to request. These accusations and negative comments directed at the Assistant State Attorney and the State in general requires disqualification. See State v. Alzate, 972 So.2d 226, 229 (Fla. 3d DCA 2007) (requiring disqualification where the trial judge accused the victim’s counsel of “playing games” and accused him of deliberately delaying the proceedings to accrue larger hourly fees); Valdes-Fauli v. Valdes-Fauli, 903 So.2d 214, 217 (Fla. 3d DCA 2005) (holding that the trial judge’s words and actions reasonably gave the wife a legitimate fear that she would not receive a fair and impartial trial, thus warranting disqualification); Royal Caribbean Cruises, Ltd. v. Doe, 767 So.2d 626, 627 (Fla. 3d DCA 2000) (holding that disqualification was required where the judge’s remarks suggested that she had preexisting unfavorable opinions about the management and litigation tactics of the cruise line industry).

State v. Matienzo, Appellate Case Numbers 3D17-158 and 3D17-159

In appellate case number 3D17-158, the State seeks a writ of certiorari quashing the trial judge’s order rendered on January 9, 2017, denying pre-trial detention of the defendant, Matienzo, based on the trial judge’s stated policy of releasing defendants as previously discussed in this opinion. Additionally, the State seeks a writ of mandamus to require the trial judge to afford the State with a hearing on its motion for pretrial detention and for consideration of the factors provided in section 907.041, Florida Statutes.

In appellate case number SD17-159, the State seeks a writ of prohibition prohibiting the trial judge from imposing his stated policy of releasing defendants ROR or on de minimis conditions, such as a $1 bond, when the State does not file charges by the time the case is called for arraignment on the twenty-first day after arrest.

Based on our decision in State v. Dixon, we grant the petition for writ of certiorari, quash the January 9, 2017 order denying pre-trial detention, and remand for reassignment of Matienzo’s eases to another judge. Because we are confident that upon the trial judge’s consideration of this opinion, the trial judge will comply with sections 903.046, and 907.041, and rules 3.131 and 3.134, we deny the petition seeking a writ to prohibit the trial judge from imposing his previously stated policy in future cases.

CONCLUSION

A. State v. Dixon, Appellate Case Number 3D17-281

Because the allegations and transcripts attached to the motion to disqualify the trial judge would place a reasonably prudent person, which in this case is the Assistant State Attorney who filed the motion to disqualify, in fear of not receiving a fair and impartial hearing before the trial judge, disqualification was required. We, therefore, grant the petition for writ of prohibition in State v. Dixon, appellate case number 3D17-281, and remand for the assignment of a new judge to hear all proceedings against Dixon. Because we conclude that the trial judge should have granted the motion to disqualify, his subsequent rulings were without authority and are hereby vacated. See State v. Borrego, 105 So.3d 616, 621 (Fla. 3d DCA 2013); Cobo v. Pepper, 779 So.2d 599, 600 (Fla. 3d DCA 2001).

B. State v. Matienzo, Appellate Case Numbers 3D17-158 and 3D17-159

We grant the petition for writ of certio-rari filed in appellate case number 3D17-158, quash the January 9, 2017 order under review, and remand for reassignment of Matienzo’s cases to another judge and for consideration of the State’s motion for pre-trial detention. We deny the petition for writ of prohibition filed in appellate case number 3D17-159 for the reasons previously stated in this opinion.

Petition for writ of prohibition, case number 3D17-281 granted; petition for writ of certiorari in case number 3D17-158 granted and remanded with instructions; petition for writ of prohibition in case number 3D17-159 is denied.

This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.

      . Although the trial judge initially released Matienzo ROR on case number F16-23856, which included a non-bondable offense, he later, also sua sponte, changed the ROR designation to a $1 bond to allow Matienzo to receive credit for the time he remained in custody until the bond of $1 was posted.

      .Section 907.041(4)(a) defines a "dangerous crime” as including the following offenses:
      1. Arson;
      2. Aggravated assault;
      3. Aggravated battery;
      4. Illegal use of explosives;
      5. Child abuse or aggravated child abuse;
      6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
      7. Aircraft piracy;
      8. Kidnapping;
      9. Homicide;
      10. Manslaughter;
      11. Sexual battery;
      12. Robbery;
      13. Carjacking;
      14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
      15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority;
      16. Burglary of a dwelling;
      17. Stalking and aggravated stalking;
      18. Act of domestic violence as defined in s. 741.28;
      19. Home invasion robbery; M3
      20. Act of terrorism as defined in s. 775.30; O
      21. Manufacturing any substance in violation of chapter 893; and
      22. Attempting or conspiring to commit any such crime.

      . Based on our ruling on the petition for writ of prohibition, we decline to address the petition for writ of mandamus as it is moot.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Maria GONZALEZ and Ida Leal, Appellants, v. INTERNATIONAL PARK CONDOMINIUM I ASSOCIATION, INC., Appellee.
    No. 3D16-690
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017

      Javier Guadayol, for appellants.
    Essig Law, P.A., and William G. Essig, for appellee.
    Before SUAREZ, C.J., and SALTER and SCALES, JJ.
   SALTER, J.

Maria Gonzalez and Ida Leal (“Owners”), individual condominium unit owners and members of appellee, International Park Condominium I Association, Inc. (“Association”), appeal a final judgment awarding attorney’s fees and costs to the Association in the consolidated circuit court cases below. The issue presented is whether the Owners or the Association prevailed on the substantial issues in the lawsuits. Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204, 213 (Fla. 2012). We find that the Owners prevailed on those issues, and thus vacate the final judgment of attorney’s fees and costs entered February 29, 2016, as well as the earlier order on the Association’s entitlement to such fees and costs.

I. The Lawsuits

In circuit court case 12-690, the Association petitioned for appointment of a receiver for the 75 units within the 312-unit condominium that were delinquent in their payment of assessments, section 718.116(6)(c), Florida Statutes (2012). The circuit court granted the petition and appointed a receiver for the delinquent units in late 2012. In early 2013, the receiver sought a modification of the receivership order to grant the receiver blanket authority to cast votes on behalf of those members then owning the units which were delinquent in paying assessments. The receiver’s motion for modification was granted.

In April 2013, one of the Owners (appel-lee Maria Gonzalez) filed an emergency motion to limit the receiver’s authority to cast any votes for units subject to the receivership, “as it would be in direct violation of the Association’s governing documents and contrary to Florida law.” The trial court denied Ms. Gonzalez’s motion. Thereafter, the initially-appointed receiver was discharged by the trial court for cause and a successor was appointed.

In August 2013, the Owners filed a separate action (circuit court case 13-26294) against the Association to compel the Association to comply with the Declaration of Condominium (“Declaration”), its articles of incorporation, its by-laws, and statutory provisions regarding voting rights for the unit owner/members ineligible to vote because of their delinquencies in the payment of assessments. The 2013 and 2012 circuit court cases were consolidated in 2014.

In November 2014, the circuit court discharged the successor receiver on the court’s own motion. The court then entered an order appointing a successor as receiver, but that order eliminated the pri- or receivers’ power to vote on behalf of unit owners who were delinquent in their payment of assessments. That order substantially granted the relief sought by the Owners in circuit court case 13-26294. The Owners and the Association filed cross-motions for summary judgment, and in 2015 the then-presiding circuit judge reaffirmed during a hearing that she had “already stripped the receiver of [the delinquent unit owners’ voting] rights,” the relief sought by the Owners.

• Finding no further action necessary in the cases, the circuit court then entered a final judgment in favor of the Association and reserved jurisdiction regarding the Association’s motion for an award of attorneys fees and court costs. Following the retirement of the circuit judge who entered that final judgment, another circuit judge entered an order of entitlement to attorney’s fees and costs in favor of the Association, but did not fix the amount of attorney’s fees and costs. A third circuit judge then conducted an evidentiary hearing on the amount-of attorneys fees and costs, and on February 29, 2016, entered a final judgment awarding the Association $9,150.00 in attorneys fees and $488.25 in taxable costs. The Owners’ appeal followed.

II. Analysis

The circuit court orders do not state a basis for the fee award. However, the Association sought fees under three statutory provisions: section 718.1255(1), Florida Statutes (2014) (fees for litigating after alternative dispute resolution); section 718.303, Florida Statutes (2014) (fee award for prevailing party in action to enforce Declaration); and section 57.105, Florida Statutes (2014) (fees for frivolous litigation). All three of the statutes award attorneys fees to the prevailing party.

Fee statutes are strictly construed because there is no common law right to attorneys fees. Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1199 (Fla. 2009). In this case, an award of attorneys fees to the Association is not warranted under any of the three statutes. Based on our determination that the Owners prevailed on the most significant issue in their case (eliminating the receiver’s claimed right to vote on Association matters on behalf of the delinquent owners), the award of taxable costs must be reversed as well.

A. Section 718.1255

The first provision, section 718.1255(1), specifies that the party who files a complaint for a trial de novo (following the mandatory non-binding arbitration procedure) shall be assessed the other party’s arbitration costs, court costs, and other reasonable costs (including attorney’s fees, investigation expenses, and expenses for expert or other testimony or evidence incurred after the arbitration hearing), if the judgment upon the trial de novo is not more favorable than the arbitration decision. If the judgment is more favorable, the party who filed a complaint for trial de novo shall, upon motion, be awarded reasonable court costs and attorney’s fees.

This statute does not support an award of fees to the Association in the present case; the result obtained by the Owners in the trial court was more favorable than the arbitration result. The Owners succeeded in stripping the receiver of the erroneously-ordered right to vote on behalf of the delinquent unit owners. In addition, the plain language of this statute requires that there be judgment upon the trial de novo. Trytek, 3 So.3d 1194 at 1198. “[Rjegardless of who prevails in the arbitration, where a trial de novo is instituted after arbitration, the party who prevails in the trial de novo proceedings by obtaining a judgment more favorable than the arbitration decision is awarded attorney’s fees for all proceedings.” Huff v. Vill. of Stuart Ass’n, Inc., 741 So.2d 1217, 1219 (Fla. 4th DCA 1999). See Beach Terrace Ass’n, Inc. v. Wanda DiPaola Stephen Rinko Gen. P’ship, 27 So.3d 147, 148 (Fla. 2d DCA 2010) (affirming award of fees to unit owner who was awarded judgment more favorable than arbitrator’s decision).

No such trial de novo occurred here. The court disposed of the cases on motion for entry of judgment because the issues had been resolved. The outcome for the Owners was more favorable in the court action. The fee and costs award to the Association was not supported by this statutory provision.

B. Section 718.303

The second statute relied upon by the Association, section 718.303, provides that the prevailing party in a case of this kind by or against a condominium association is entitled to recover reasonable attorney’s fees. Under the statute, the “prevailing party” is the party that succeeds on any significant issue in the litigation, achieving some of the benefit the party sought in bringing the lawsuit. Padow v. Knollwood Club Ass’n, Inc., 839 So.2d 744 (Fla. 4th DCA 2003); Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla. 1992). In this case, the unit owners prevailed in achieving a significant benefit they sought from the litigation: precluding the receiver from any further wrongful exercise of voting rights.

In the present case, the final judgment in the Association’s favor is not the metric that determines which side prevails. See Shands Teaching Hosp. & Clinics, Inc., 97 So.3d at 213 (Fla. 2012). The Owners were more successful. Village of Kings Creek Condo. Ass’n, Inc. v. Goldberg, 596 So.2d 1195 (Fla. 3d DCA 1992) (finding that association is not prevailing party for fee award where final court order permitted owner to achieve some of his objectives); Martin v. Key Largo Kampground, Inc., 501 So.2d 648 (Fla. 3d DCA 1986) (reversing attorney’s fee award in association’s action for removal of structure erected by tenant where removal was not granted and the only right the association gained was the right to be asked for approval). A fee award in favor of the Association under section 718.303 on this basis also was unwarranted based on the relief obtained by the Owners before the final judgment was entered.

C. Section 57.105

While it is improbable that the award was based on section 57.105, that third statute invoked by the Association also does not support an award of fees in this case. An award of fees under section 57.105 requires a determination by the court that “the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Blue Infiniti, LLC v. Wilson, 170 So.3d 136, 140 (Fla. 4th DCA 2015). The fact that the Owners obtained the relief they sought, as acknowledged by the initially-presiding trial judge at the 2015 hearing before the entry of the final judgment, demonstrates that their action was not frivolous. Moreover, to award attorney’s fees under this statute, the court must make detailed, specific findings of bad faith, and should recite the facts on which it bases its conclusions in the order awarding such fees. Avis Rent A Car Sys., Inc. v. Newman, 641 So.2d 915, 916 (Fla. 3d DOA 1994). That was not done here.

III. Conclusion

Based on the foregoing, the final judgment of attorney’s fees and costs and the order on the Association’s amended motion for attorney’s fees in the underlying consolidated cases are hereby vacated. The consolidated cases are remanded for the entry of a final judgment denying the Association’s amended motion for attorney’s fees and taxable costs against the Owners.

Final judgment and entitlement order vacated; case remanded for further proceedings consistent with this opinion.

      . The Owners’ complaint against the Association in 2013 was filed after Ms. Gonzalez first sought non-binding arbitration of the issues before the Department of Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, as required by section 718.1255(4), Florida Statutes (2013). The final order of the Department authorized Ms. Gonzalez to seek relief in the circuit court.

      . Through no fault of any of the circuit judges who ruled in the two consolidated cases, three different judges heard different aspects of the cases at different times. The last circuit judge to hear the cases ruled on the attorney’s fee motions and cannot be faulted for lacking the full four-year history of the cases.

      . In the present case, the Owners did not cross-move for attorney’s fees and costs, and they did not cross-appeal the 2015 final judgment denying any further relief to them in circuit court case 13-26294.


author: LOGUE, J.

text:
    TAURUS INTERNATIONAL MANUFACTURING, INC., et al., Appellants, v. Jason FRIEND, Appellee.
    No. 3D16-1960
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.

      Smith, Gambrell & Russell, LLP, and Scott S. Gallagher and Richard D. Rivera (Jacksonville), for appellants,
    Morris Haynes Wheeles Knowles & Nelson, and Matthew G. Garmon and M. Todd Wheeles (Birmingham, KY), Bailey & Glasser LLP, and James L. Kauffman (St. Petersburg) and David L. Selby, II (Birmingham, KY), for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   LOGUE, J.

Taurus International Manufacturing, Inc. and Taurus Holdings, Inc. appeal the trial court’s nonfinal order denying their motion to dismiss Jason Friend’s products liability claims on the basis of forum non conveniens. We affirm.

Jason Friend is a police officer and resident of Kentucky. He was gifted a Taurus semi-automatic pistol that was purchased in Kentucky in 2008. One day in February 2014, the pistol fell out of Friend’s holster. When the pistol hit the ground, it fired and discharged a bullet into Friend’s leg, causing multiple injuries. Friend filed a products liability action against Taurus in Miami-Dade County—Taurus’ home forum. Taurus filed a motion to dismiss for forum non conveniens, arguing that the action will be fairly and more conveniently litigated in Kentucky. The trial court denied the motion after a hearing, and this appeal followed.

We conclude that the trial court acted well within its discretion in denying the defendants’ motion to dismiss. Under Florida Rule of Civil Procedure 1.061(a), the “decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.” The rule outlines four factors the trial court may consider when ruling on a motion to dismiss for forum non conveniens: (1) whether “an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties”; (2) whether “all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice”; (3) “if the balance of private interests is at or near equipoise,” whether “factors of public interest tip the balance in favor of trial in the alternate forum”; and (4) whether the “plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.” Fla. R. Civ. P. 1.061(a)(l)-(4) (emphasis added); see also Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996) (adopting emergency Rule of Civil Procedure 1.061).

Here the trial court did not abuse its discretion in denying Taurus’ motion to dismiss for forum non conveniens. Miami-Dade County was plaintiffs initial forum choice, and it is Taurus’ headquarters where Taurus markets, distributes, and services firearms. As this court has previously observed, “[a] forum non conveniens argument coming from a party sued where he resides is both puzzling and strange.” Cardoso v. FPB Bank, 879 So.2d 1247, 1250 (Fla. 3d DCA 2004) (internal quotations omitted) (affirming denial of motion to dismiss for forum non conveniens in a case that “involves the exceptional situation in which the defendant has been sued in his own forum and has objected that his home forum is inconvenient”). Based on the factors outlined in Rule 1.061 and Kinney, we cannot conclude that the trial court abused its discretion in finding that the defendants here failed to meet their high burden of proof for dismissal on the ground of forum non conveniens. Accordingly, we affirm.

Affirmed.


author: LAGOA, J.

text:
    Calvin WATKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2650
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017
    Calvin Watkins, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and LUCK, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Calvin Watkins (“Watkins”) appeals from an order denying his motion to correct illegal sentence and from an order denying his motion for rehearing. The State of Florida (the “State”) moves to dismiss the appeal as untimely. We grant the motion to dismiss the appeal.

I. FACTUAL AND PROCEDURAL HISTORY

Pursuant to Florida Rule of Criminal Procedure 3.800(a), Watkins filed a motion to correct illegal sentence alleging that the trial court was without jurisdiction to find a violation of community control. The State served a response to the motion and Watkins filed a reply.

On September 28, 2016, the trial court entered a written order denying the motion to correct illegal sentence. The order was filed with the Clerk on the same date, and the certificate of service stamp on the order certifies that on September 30, 2016, the order was furnished to Watkins by mail.

On October 25, 2016, pursuant to the mailbox rule, Watkins filed a motion for rehearing. In the motion for rehearing, Watkins asserted that “[o]n September 28, 2016, [the trial] Court entered an order summarily denying Watkins’ [sic] 3.800(a) motion to correct illegal sentence.” Watkins further asserted that “[t]he date of service was October 13, 2016” and therefore the motion for rehearing was “timely filed where, by rule, it is being filed within 15 days from the date of service.” In support of his argument, Watkins attached the trial court’s order. A review of the order attached to Watkins’s motion for rehearing shows two stamps: (1) a certificate of service stamp from the deputy clerk stating that the order “has been furnished to” Watkins on September 30, 2016; and (2) another stamp dated October 13, 2016, from the same deputy clerk, which certifies that the document is a true and correct copy of the order.

On November 9, 2016, the trial court entered a written order denying Watkins’s motion for rehearing. The certificate of service shows that a copy of the order denying the rehearing motion was furnished on November 30, 2016, by mail to Watkins.

On November 16, 2016, pursuant to the mailbox rule, Watkins filed a Notice of Appeal with this Court. In his Notice of Appeal, Watkins argued that although he had “never received an order denying his motion for rehearing” the motion was deemed denied, pursuant to Florida Rule of Criminal Procedure 3.850(j), if no order was filed within forty days from the date of the order denying his motion to correct illegal sentence. Watkins further asserted that because the tidal court denied his motion to correct illegal sentence on September 28, 2016, the trial court only had until November 8, 2016, to enter an order on the motion for rehearing.

In response to the Notice of Appeal and Watkins’s initial brief, the State moved to dismiss the appeal for lack of jurisdiction. Specifically, the State argues that Watkins failed to file a timely motion for rehearing, and therefore the time to appeal the underlying September 28, 2016, order was not tolled. The State further argues that Watkins failed to appeal the September 28, 2016, order within thirty days from rendition of the order. We will address each argument separately.

II. ANALYSIS

Florida Rule of Appellate Procedure 9.110(b) requires the filing of a notice of appeal “within 30 days of rendition of the order to be reviewed.” “Florida Rule of Appellate Procedure 9.020(i) provides that ‘[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.’ An order is rendered when all of these three conditions are met.” See Amos v. Reich, 208 So.3d 796, 796 (Fla. 3d DCA 2016). On September 28, 2016, the trial court signed the written order denying Watkins’s 3.800 motion, and the order was filed with the clerk on the same date. As such, the order denying Watkins’s motion to correct illegal sentence was rendered on September 28, 2016—the date the order was filed with the clerk.

Pursuant to Rule 3.800(b)(1)(B), a defendant may file a motion for rehearing of any signed, written order denying a Rule 3.800(a) motion. The motion for rehearing, however, must be timely as only a “timely filed motion for rehearing shall toll rendition of the order subject to appellate review.” See Fla. R. Crim. P. 3.800(b)(1)(B). A motion for rehearing is deemed timely under Rule 3.800 if filed “within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.” Id. “However, when the order is served by mail, Rule 3.070 provides that three days shall be added to this time period.” Whipple v. State, 867 So.2d 433 (Fla. 1st DCA 2004); see also Parks v. State, 126 So.3d 352 (Fla. 3d DCA 2013). Watkins filed his motion for rehearing on October 25, 2016.

In support of the argument that his motion for rehearing was timely, Watkins points to the two stamp marks located on the trial court’s September 28, 2016, order attached to his Notice of Appeal. One stamp mark shows a certificate of service stamp from a deputy clerk that certifies that the order had “been furnished” to Watkins on September 30, 2016. The other stamp mark dated October 13, 2016, from the same deputy clerk certifies that the document is a true and correct copy of the order. In his response to the State’s motion to dismiss, Watkins relies on this second stamp mark to support his argument that the rehearing motion is timely. This second stamp mark, however, fails to support the timeliness argument as it does not reflect a date of service. Indeed, the law is clear that it is the certificate of service that establishes the presumptive date of service. See Neal v. State, 915 So.2d 746, 747 (Fla. 5th DCA 2005). The second stamp mark dated October 13, 2016, only establishes that the order attached to the notice of appeal is a certified copy of the original order. As such, we find that the presumptive date of service for the order denying Watkins’s motion to correct illegal sentence is September 30,2016.

Because the trial court’s September 28, 2016, order was mailed, Watkins had 18 days from the September 30, 2016, service date to file a timely motion for rehearing. Watkins therefore had until October 18, 2016, to file a timely motion for rehearing. Since Watkins filed his motion for rehearing on October 25, 2016, we find that the motion for rehearing was not timely filed and thus did not toll rendition of the September 28, 2016, order denying Watkins’s motion for illegal sentence. See Parks, 126 So.3d at 352; Reid v. Cooper, 955 So.2d 31, 32 (Fla. 3d DCA 2007); Smartmays v. State, 937 So.2d 712, 713 (Fla. 5th DCA 2006); Jones v. State, 838 So.2d 659, 660 (Fla. 5th DCA 2003).

Because Watkins filed an untimely motion for rehearing, we focus our inquiry on whether Watkins filed a timely Notice of Appeal. Rule 9.110(b) requires that an appeal from a final order must be taken within thirty days of rendition of the order appealed. The order denying the motion to correct illegal sentence was rendered on September 28, 2016, and Watkins had thirty days from rendition of the order to file a timely notice of appeal. The thirty-day period to file the Notice of Appeal fell on October 28, 2016. Watkins filed his Notice of Appeal on November 16, 2016. “Under Rule 9.110, the ‘[fjailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Amos, 208 So.3d at 796 (quoting Rice v. Freeman, 939 So.2d 1144, 1145 (Fla. 3d DCA 2006)).

III. CONCLUSION

Because Watkins’s motion for rehearing was untimely, it failed to toll rendition of the trial court’s September 28, 2016, order denying his motion to correct illegal sentence. Watkins’s November 16, 2016 Notice of Appeal therefore was not filed within thirty days from rendition of the trial court’s September 28,2016, order. As such, this Court lacks jurisdiction to entertain this appeal, and we dismiss this appeal for lack of jurisdiction. The dismissal is without prejudice to Watkins filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Floyd v. State, 880 So.2d 796 (Fla. 1st DCA 2004).

Dismissed without prejudice.

      . Under the mailbox rule, a motion, petition, or notice of appeal is considered filed when placed in the hands of prison officials. See Thompson v. State, 761 So.2d 324, 326 (Fla. 2000) (“[S]ince an inmate loses control of his document after placing it in the hands of prison officials who may not timely mail the document, this Court has held that an inmate’s document is deemed 'filed' when he or she places it in the hands of prison officials.”); Haag v. State, 591 So.2d 614, 617 (Fla. 1992). A review of the record establishes that Watkins gave his motion for rehearing to prison officials on October 25, 2016.

      . While Watkins mistakenly cites to the Rule addressing motions filed under Florida Rule of Criminal Procedure 3,850, his motion to correct illegal sentence was filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Both rules contain the following identical language: “The trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought.” See Fla. R. Crim. P. 3.800(b)(1)(B); Fla. R. Crim. P. 3.850(j). In his Notice of Appeal, Watkins asserts that the motion for rehearing is deemed denied if no order is filed within the 40 days. This language was previously found in both Rule 3.800(b)(1)(B) and Rule 3.850(j), but that specific language was deleted by amendments to the Florida Rules of Criminal Procedure, which took effect immediately on June 11, 2015. See In re Amendments to the Florida Rules of Criminal Procedure, 167 So.3d 395, 396 (Fla. 2015).

      . Pursuant to Rule 3.800(b)(1)(B), the tolled signed, written order subject to appellate review is "deemed rendered upon the filing of a signed, written order denying the [timely] motion for rehearing.”

      . Florida Rule of Criminal Procedure 3.070 provides:
      Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other document on the party and the notice or document is served on the party by mail, when permitted, or e-mail, 3 days shall be added to the prescribed period.

      . If Watkins files a belated appeal, he bears the burden of pleading and proving the order was not actually served on him until October 13, 2016, as alleged in his motion for rehearing. See Neal, 915 So.2d at 747.


author: PER CURIAM.

text:
    Jesus MELENDEZ, Appellant, v. MIAMI-DADE COUNTY TRANSIT, Appellee.
    No. 3D16-1554
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.
    Lopez Roca and Sonia Roca, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, and Korissa Lepore, Assistant County Attorney, and Evan Grob, Assistant County Attorney, for appellee,
    Before SUAREZ, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Artigas v. Allstate Ins. Co., 541 So.2d 739, 740 (Fla. 3d DCA 1989); Miami Transit Co. v. Ford, 159 So.2d 261, 262 (Fla. 3d DCA 1964); Peterson v. Cent. Fla. Reg’l Transp., 769 So.2d 418 (Fla. 5th DCA 2000).


author: OSTERHAUS, J.

text:
    Michelle FRY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3832
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017

      Michelle Fry, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   OSTERHAUS, J.

Michelle Fry appeals the trial court’s summary denial of her postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of Appellant’s second claim without further discussion. However, we reverse the trial court’s denial of Appellant’s other two claims because they are legally sufficient and not conclusively refuted by the record below.

On September 4, 2012, Ms. Fry and her co-defendant husband entered guilty pleas to drug-related charges. Ms. Fry subsequently filed a timely motion seeking postconviction relief, which the trial court summarily denied on August 2, 2016. In denying Appellant’s first and third claims, the trial court cited Clift v. State, 43 So.3d 778 (Fla. 1st DCA 2010), for the proposition that Ms. Fry’s counsel did not have a duty to further investigate or challenge the evidence after she pled guilty. But Ms. Fry did not allege in her postconviction motion that her counsel was ineffective for failing to further investigate or challenge the evidence against her. Indeed, the trial court would have been justified in summarily denying such a claim. See Stano v. State, 520 So.2d 278, 280 (Fla. 1988) (“By insisting on pleading guilty ... [the defendant] rendered any further investigation pointless.”). Rather, Ms. Fry claimed that her counsel failed to investigate and challenge evidence, and failed to inform her of potential defenses prior to her entering her plea. “A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th DCA 2010) (quoting Williams % State, 717 So.2d 1066,1066 (Fla. 2d DCA 1998)). See also Smith v. State, 815 So.2d 707, 707-08 (Fla. 1st DCA 2002) (holding that the appellant’s claim was facially sufficient and not negated by his plea where appellant alleged that counsel failed to properly investigate a potential defense witness and that appellant would not have entered a plea in the absence of the alleged failure).

The first and third claims in Ms. Fry’s 3.850 motion state valid potential defenses. Ms. Fry first claimed that her counsel was ineffective for failing to investigate and inform her regarding a lab report used to establish the weight and substance of the drugs in her case. Ms. Fry asserts that the lab report did not have her name on it, but that of her brother Robert Barwick. Ms. Fry says that she would have gone to trial had she been advised that the critical lab report received by her counsel, and cited as evidence supporting the drug charges against her, didn’t actually apply to her.

Ms. Fry’s third claim argued that her counsel was ineffective for not investigating and informing her of viable defenses related to the law of constructive possession. Ms. Fry asserts that she wasn’t present and had no control or influence over the garage/utility area of the home she shared with her co-defendant husband, where authorities found the illegal drugs and accompanying paraphernalia. Ms. Fry asserts that had she been properly advised of defenses related to constructive possession, she would not have pled guilty to multiple possession counts.

“A claim of ineffective assistance of counsel for failure to advise a defendant of a potential defense can state a valid claim if defendant was unaware of the defense and can establish that a reasonable probability exists that [she] would not have entered the plea if properly advised.” Jacobson v. State, 171 So.3d 188, 191 (Fla. 4th DCA 2015). Because Ms. Fry’s first and third claims were legally sufficient, the trial court should have attached to the order below portions of the record conclusively refuting them, or held an evidentia-ry hearing. State v. Leroux, 689 So.2d 235, 237 (Fla. 1996) (“Rule 3.850 explicitly requires that the record ‘conclusively’ rebut an otherwise cognizable claim if it is to be denied without a hearing.”); see also Watts v. State, 136 So.3d 1225 (Fla. 1st DCA 2014) (concluding that attached records failed to conclusively refute appellant’s claim); Stano v. State, 520 So.2d 278 (Fla. 1988) (attaching sufficient records to show that appellant knew when he entered his plea that his attorney had not finished investigating); Wilson v. State, 871 So.2d 298 (Fla. 1st DCA 2004) (attaching sufficient records showing that appellant knowingly waived the right to pursue the claim that trial counsel failed to develop viable defenses to the charges against him).

Thus, we affirm the denial of claim two, but reverse and remand the denial of claims one and three for further proceedings. On remand, the court should either attach portions of the record conclusively refuting Ms. Fry’s first and third claims, or hold an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

JAY and WINSOR, JJ., CONCUR.


text:
    Antonio MOORER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3662
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017.

      Antonio Moorer, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Antonio Moorer, appeals the trial court’s summary denial of the third ground of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s motion requested that the trial court vacate his judgment and sentence because his plea of no contest was not a knowing and voluntary waiver of his constitutional rights. He asserted that the trial court did not advise him of his right to trial by jury and attendant rights as required by Florida Rule of Criminal Procedure 3.172. Appellant claimed that had he known of these rights, he would not have entered the plea and would have proceeded to trial. Because the record does not conclusively refute Appellant’s legally sufficient claim, we reverse and remand for an evidentiary hearing on this claim.

Before accepting a defendant’s plea of nolo contendere, a trial judge “shall determine that the plea is voluntai'ily entered ....” Fla. R. Crim. P. 3.172(a). This determination “demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.” Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Florida Rule of Criminal Procedure 3.172(c) sets out ten factors that a trial judge “shall determine on the record” that a defendant understands when determining the voluntariness of his plea. Specifically, the rule provides that a trial judge should inquire into a defendant’s understanding the fact that he is giving up the right to plead not guilty, the right to a trial by jury, the right to the assistance of counsel at trial, the right to compel the attendance of witnesses on his behalf, the right to confront and cross-examine adverse witnesses, and the right to avoid compelled self-incrimination. Fla. R. Crim. P. 3.172(c).

The transcript of the June 24, 2013, plea hearing reveals that the trial court did not address Appellant’s right to compel attendance of witnesses on his behalf and the right to confront and cross-examine witnesses against him. Nor is it apparent from the face of the record that Appellant was aware of these rights. Appellant does not appear to have signed a waiver of rights form. And when asked at the hearing if he had any questions, Appellant responded, “I would like—no questions, Your Honor. I would just like to first of all—” Appellant’s attorney then stopped him from speaking. Although Appellant said, “no questions,” it is unclear from the record what Appellant was about to say.

Given these circumstances, we do not think the record conclusively refutes Appellant’s claim that his plea was not a knowing and voluntary waiver of his rights. See Koenig v. State, 597 So.2d 256 (Fla. 1992). Accordingly, we reverse the summary denial of Appellant’s third ground and remand for an evidentiary hearing on this claim.

REVERSED AND REMANDED.

OSTERHAUS, BILBREY, and WINOKUR, JJ., CONCUR.


author: PALMER, J.

text:
    CITY OF SATELLITE BEACH, Petitioner, v. Klaus GOERSCH and Brigitte Goersch, Respondents.
    Case No. 5D16-2763
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Rehearing Denied May 26, 2017

      James P. Beadle, of Spira, Beadle & McGarrell, P.A., Palm Bay, for Petitioner.
    Clifford Repperger, Jr., and Tiffany M. Walters, of GrayRobinson, P.A, Melbourne, for Respondents.
   PALMER, J.

The City of Satellite Beach (the City) seeks second-tier certiorari review of the circuit court’s order quashing the Board of Adjustment’s denial of the Respondents’, Klaus and Brigitte Goersches’, request for a fence variance. Because the circuit court failed to apply the correct law, we grant the petition.

The Goersches purchased a home in Satellite Beach in 2012. At that time, the property contained an opaque fence which was installed in 2006. The fence became non-conforming in August 2007 as a result of an amendment to the Satellite Beach Code of Ordinances (the Code). The amendment reads:

A fence shall not have more than 30 percent of any vertical surface per running foot constructed of opaque materials.

The Goersches applied for a permit to extend their existing fence. The permit was issued, and the fence was installed. However, the building inspector refused to issue a certificate of completion for the fence because it violated the opaqueness amendment.

The Goersches sought a variance from the Code to allow the now-completed, non-compliant fence to remain in place. Section 30-205(b) of the Code authorizes the Board of Adjustment to hear and decide applications for fence variances. This section provides:

Powers and Duties
(3) Criteria. The board shall be governed by the following criteria when deciding whether a variance shall be granted: a. Written application. A written application for a variance must be submitted demonstrating the following criteria, all of which must be met:
1. A special circumstance exists which is peculiar to the land, building, or structure involved (i.e., not applicable to other lands or structures in the same zoning district), and is not the result of the applicant’s actions except as provided in (b)(3)b.3 (i) and (ii) of this section;
3. Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district and work unnecessary hardship on the applicant; and
4. Applicant’s reason justifies granting the variance, and the variance is the minimum that will make possible the reasonable use of the land, building, or structure under present zoning; and
5. The variance will be in harmony with the general intent of this chapter and the district in which the property is located and will not be detrimental to the neighborhood or the public welfare.

Id. The Goersches’ application included the criteria required for a variance and asserted two special circumstances peculiar to their property: 1) the opaque existing fence was situated on the property when the Goersches purchased the property, and 2) the city-owned property immediately adjacent to the subject property was recently officially dedicated as a city park.

The Board of Adjustment conducted a variance hearing. Ultimately, the Board entered an order denying the Goersches’ variance application.

The Goersches then sought certiorari review in the circuit court. They argued that the Board’s order denying their variance application was not supported by substantial competent evidence. The circuit court agreed and granted the certiorari petition, quashing the decision of the Board and remanding the matter to the Board. The circuit court concluded:

The only objective complaint raised by the neighbors’ written comments was that the fence would be a potential hazard in the event of a hurricane or high winds. Although off-point and not addressed to the opaque nature of the fence, the Petitioners indicated that the City’s breezeway requirement would be met. The remaining comments made by surrounding property owners amounted to disagreements with the contents of the Petitioners’ application and complaints that the fence would obstruct the view of the ocean from the street and neighboring properties. The staff member that was present did not address any of the factors to be weighed regarding the issuance of a variance. Generalized opinions and complaints, without more, do not constitute competent, substantial evidence. Because the Board’s denial was not supported by competent, substantial evidence, the Petitioners’ application for a variance should be granted.

Thereafter, the City filed the instant petition for a writ of certiorari arguing that the circuit court erred by improperly shifting the burden of proof. We agree.

Florida courts are authorized to use the common law writ of certiorari to review the actions of local government agencies not reviewable under Florida’s Administrative Procedure Act. Broward Cty. v. G.B.V. Int’l., Ltd., 787 So.2d 838, 843 (Fla. 2001). When a petitioner seeks review of a quasi-judicial action, the circuit court conducts what is known as “first-tier” certiorari review. Id. The circuit court’s review is confined to:

whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] whether the administrative findings and judgment are supported by competent substantial evidence.

Id. When a party seeks certiorari review of the circuit court’s order, the district court conducts what is known as “second tier” review and determines “[1] whether the circuit court afforded procedural due process and [2] applied the correct law.” Id.

Neither party claims that it was denied procedural due process; hence, the only issue before this court is whether the circuit court applied the correct law. “[A] circuit court applies the ‘wrong’ or ‘incorrect’ law when it reweighs or reevaluates conflicting evidence and decides the merits of the underlying dispute anew.” State, Dep’t of Highway Safety & Motor Vehicles v. Wiggins, 151 So.3d 457, 463 (Fla. 1st DCA 2014). The circuit court cannot reweigh the evidence and substitute its judgment for that of the Board. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

For a variance request, the applicant carries the burden to establish that the criteria necessary to grant the request is met. Bd. of Cty. Cmm’rs of Dade Cty. v. First Free Will Baptist Church, 374 So.2d 1055 (Fla. 3d DCA 1979). The Board concluded that the Goersches did not meet that burden, and the record supports this conclusion. Since the Goersches never met their burden, the burden did not shift to the City to show that there was substantial competent evidence to support the Board’s denial of the variance request. Accordingly, the circuit court failed to apply the correct law by shifting the burden to the City to show that the Board’s denial was supported by substantial competent evidence.

Accordingly, we grant the petition, quash the circuit’s order, and remand for further proceedings.

Petition GRANTED; Circuit Court Order QUASHED; Cause REMANDED.

EDWARDS, J. and JACOBUS, B.W., Senior Judge, concur.


author: SLEET, Judge.

text:
    Glenroy BLACKWOOD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1351
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017
    Brandon J. Rafool of Brandon J. Rafool, LLC, Winter Haven, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee,
   SLEET, Judge.

Glenroy Blackwood appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief after an evidentiary hearing. Blackwood, a Jamaican citizen legally present in the United States, alleged that his trial counsel failed to warn him that he would be subject to automatic deportation as a result of entering a plea to aggravated assault with a deadly weapon and that had he known of the deportation consequences, he would not have entered the plea but instead would have proceeded to trial. Because the only evidence provided at the evidentiary hearing supported Blackwood’s sworn assertions in his postconviction motion, we reverse the postconviction court’s order denying relief.

Under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), counsel has a duty to provide correct advice about the deportation consequences of a plea when those consequences are clear from the relevant immigration statute. Id. at 369, 130 S.Ct. 1473 (“[W]hen the deportation consequence is truly clear ... the duty to give correct • advice is equally clear.”). On appeal, the State concedes that Blackwood’s plea to aggravated assault with a deadly weapon made him eligible for automatic deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2015) (“Any alien who is convicted of an aggravated felony at any time after admission is de-portable.”); § 1101(a)(43)(F) (defining an aggravated felony as “a crime of violence ... for which the term of imprisonment [is] at least one year” (footnote omitted)); 18 U.S.C. § 16(a) (2015) (defining a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”), Blackwood’s trial counsel testified at the evidentiary hearing that he did not advise Blackwood that he would be subject to automatic deportation as a result of the plea. The post-conviction court correctly found that counsel’s performance was deficient.

The postconviction court also found that Blackwood would not have entered the plea had he been accurately advised of the deportation consequences by his trial counsel based on Blackwood’s sworn statements in his postconviction motion and his testimony at the evidentiary hearing. However, the court denied the motion after concluding that Blackwood had not proven that he was subject to automatic deportation under the federal immigration statute. The postconviction court relied on the test outlined by the Fourth District in Cano v. State, 112 So.3d 646, 648 (Fla. 4th DCA 2013), which requires a postconviction movant to establish

(1) that the movant was present in the country, lawfully at the time of the plea; (2) that the plea at issue is the sole basis for the movant’s deportation;. (3) that the law, as it existed at the time of the plea, subjected the movant to “virtually automatic” deportation;. (4) that the “presumptively mandatory” consequence of deportation is clear from the face of the immigration statute; (5) that counsel failed to accurately advise the movant about the deportation consequences of the plea; and (6) that, if the movant had been accurately advised, he or she would not have entered the plea.

In order to succeed on a claim of ineffective assistance of counsel, a movant “must show that counsel’s performance was deficient [and] ... that the deficient performance prejudiced the defense.” Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In this case, the post-conviction court found that Blackwood had met this burden but imposed an additional requirement that he also prove that he was subject to automatic deportation under the federal immigration statute. This was error.

In Cano, the Fourth District addressed the facial sufficiency of a motion denied under Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), decision quashed, 184 So.3d 447 (Fla. 2014), which held that giving defendants the rule 3.172(c)(8) warning that they may be subject to deportation as a consequence of entering a plea cured the prejudice to all defendants alleging a claim under Padilla. 112 So.3d at 647-48. In Hernandez, the Florida Supreme Court abrogated the holding in Flores, explaining that an equivocal warning in a plea colloquy that a plea may or may not result in deportation “cannot by itself refute a claim that [a defendant] was unaware of presumptively mandatory consequences.” 124 So.3d at 763. Under Hernandez, even when defendants have received the warning required by rule 3.172(c)(8) from the court during their plea colloquy, they may still show prejudice if they were subject to automatic deportation under the federal immigration statutes. Id. Thus, Cano is limited to its facts and should not be read to impose an additional evidentiary burden on all defendants asserting ineffective assistance of counsel claims under Padilla.

The record reflects that the trial court did not give Blackwood a rule 3.172(e)(8) warning during his plea colloquy. Therefore, it is irrelevant whether Blackwood is subject to automatic deportation under the federal immigration statutes; there was no record evidence that Blackwood, a noncitizen, received any warning of potentially adverse immigration consequences before entering his plea. See Padilla, 559 U.S. at 369, 130 S.Ct. 1473. Because the postconviction court found that Blackwood’s counsel was deficient and that Blackwood would not have entered the plea had he been properly advised of the deportation consequences, the court should have granted the motion. Accordingly, we reverse and remand for the post-conviction court to grant the motion and allow Blackwood to withdraw his plea.

Reversed and remanded with instructions.

NORTHCUTT and SALARIO, JJ., Concur.