author: SAWAYA, J.

text:
    Avery CORBITT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D16-1766.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2016.

      Avery Corbitt, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

The issue presented is whether statements the trial court made during sentencing that Avery Corbitt failed to express remorse or take responsibility for his crimes are constitutionally impermissible. In his Petition for Writ of Habeas Corpus, Corbitt alleges that the statements constitute fundamental error because they violate his constitutional rights to remain silent and to a jury trial. He further alleges that his appellate counsel was ineffective for failing to raise this issue in his prior appeal. Corbitt wants this court to vacate his sentence and remand this case for re-sentencing by a different judge. We believe that those statements are not impermissible and that Corbitt’s petition should be denied for the following reasons: 1) the statements were made in the context of the trial court attempting to find some level of mitigation for the sentence; and 2) Corbitt entered a plea, waived his rights to a jury trial and to remain silent, and admitted under oath that he committed the crimes and shot one of the officers. These reasons will be addressed in the order presented, after the facts and procedural history of the case are discussed.

Corbitt was charged with several felony offenses stemming from his involvement in a drug deal with two undercover officers. Instead of completing the drug transaction, Corbitt and his accomplice attempted to rob the undercover officers. The officers resisted, and a gunfight ensued. Cor-bitt shot one of the officers, and the officers shot and killed the accomplice. In the midst of his trial, Corbitt decided to enter a plea to two of the charges (second-degree felony murder, which involved the death of the accomplice, and attempted first-degree murder). The plea agreement provided that the State would waive the twenty-five year minimum mandatory sentence applicable to those charges and drop the remaining charges. The agreement also provided that, in the event Corbitt filed a motion to withdraw his plea prior to sentencing, the standard applicable to post-sentence motions would apply. The sentencing range was 16.85 years to life in prison.

Corbitt was placed under oath by the trial judge, and a thorough plea colloquy was conducted. A factual basis was established for the plea, and Corbitt told the trial court that he understood the constitutional rights he was waiving, including the right to trial by jury and the right to remain silent. Corbitt admitted his involvement in the crimes and specifically told the trial court under oath that he shot one of the officers. Corbitt further states in his petition that he admitted shooting the officer. During the colloquy, Corbitt was twice advised by the trial court that the maximum sentence he could receive was life, and both times Corbitt told the court that he understood. Corbitt also stated that he understood the standard that would apply if he filed a motion to withdraw his plea. The trial court accepted the plea, finding that Corbitt “intelligently, freely, and voluntarily waived his rights in entering the plea, and that there is a factual basis for the plea.” Sentencing was set for another date.

On that date, the trial court advised Corbitt’s attorney and the State that he had received three handwritten letters from Corbitt. The motion to withdraw plea referred to in Corbitt’s petition consists of these letters. Corbitt’s attorney, who was representing Corbitt at the time the letters were sent, stated that he was not sent copies of the letters and refused to adopt them as a motion to withdraw Corbitt’s plea. The letters reveal that they are a plea by Corbitt for the minimum sentence of 16.85 years and an attempt to persuade the trial court why a life sentence should not be imposed. Corbitt makes allegations that once again admit his involvement in the crimes but makes excuses for his misconduct in an attempt to mitigate his sentence. Specifically, Cor-bitt contends that he thought he would get 16.85 years rather than life and did not understand that life imprisonment was an option. He also claims that he did not remember shooting the officer and that his deceased accomplice was primarily responsible for the crimes.

As a motion to withdraw plea, the letters are facially inadequate, and the motion should have been dismissed as a nullity. See Sheppard v. State, 17 So.3d 275, 287 (Fla.2009) (holding that if a pro se motion to withdraw plea does not allege an adversarial relationship with the defendant’s attorney “such as counsel’s misad-vice, misrepresentation, or coercion,” it should be stricken as a nullity). Nevertheless, the trial court considered the letters as a motion to withdraw plea, heard the motion, and summarily denied it. Even if the letters could be considered a proper motion, the trial court did not abuse its discretion in summarily denying it because the reasons Corbitt alleged are clearly rebutted by the sworn admissions he made during the plea colloquy. The courts have consistently held that when defendants seek to set aside their pleas, they are bound by those admissions. See Wagner v. State, 177 So.3d 695, 697 (Fla. 5th DCA 2015); Conner v. State, 97 So.3d 976, 976 (Fla. 5th DCA 2012); Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006); Thompson v. State, 50 So.3d 1208, 1211 (Fla. 4th DCA 2010). Once the trial court made its ruling and findings on the record, it then proceeded with the sentencing hearing.

Corbitt’s attorney argued in mitigation that, although Corbitt committed the crimes, he was a follower and he was led into the events of that day by his deceased accomplice. Corbitt also presented several mitigation witnesses. The State called several witnesses to testify about the impact Corbitt and his crimes had on their lives and argued that the statements in Corbitt’s letters showed his refusal to take responsibility for his wrongful conduct. The statement by the trial court that Cor-bitt took little responsibility for what he did was made as the trial judge was attempting to find mitigating factors to consider in imposing the sentence. The transcript of the sentencing hearing reveals the following discussion (emphasis added):

THE COURT: All fight, Mr. Corbitt, your attorney is right in making one assertion that I’ve carefully noted here, that the purpose of sentencing is not vengeance, it’s to determine the appropriate amount of sentence necessary to accomplish whatever goals,- sentencing goals, are defined by the sentencing authority. So if 15 years will do, you doii’t do 30. If 30 will do, you don’t do life. And in determining what the appropriate sentence should be, I calmly look through and comb through all of the potential mitigation^ to determine what the appropriate sentence should be.
THE DEPENDANT: Yes, Sir.
THE COURT: And from the moment you entered your plea, I’ve been — I’ve been' deliberating on that, considering that, and certainly no decision has been made until I’ve had an opportunity to review all of the evidence.
And the pieces of that puzzle .that assist me in determining the appropriate sentence, for example, .first and foremost is acceptance of responsibility. And I submit to you that notwithstanding your assertion under oath to me, previously when you entered your plea that you shot. Detective Tiller, you’ve retreated from that. And whether or not we can — we can debate the extent to which .you’ve retreated from that, but you’ve retreated from that. You’ve accepted little responsibility for what happened ■ here.
So I look further and aggressively through your Presentence Investigation to try to find some level of mitigation that would justify some sort of sentence that’s less than the maximum ....

Corbitt did not object to these statements, which is why he asserts fundamental error. As we will- explain, because there is no error, there is no fundamental error to analyze.

The courts have held that “[cjonsid-eration of remorse is ... appropriate if it occurs during .a court’s consideration of whether or not to mitigate a sentence.” Rankin v. State, 174 So.3d 1092, 1097 (Fla. 4th DCA 2015); see also K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001) (holding that “remorse and an admission of guilt may be grounds for mitigation of a sentence or a disposition”); Godwin v. State, 160 So.3d 497, 498 (Fla. 2d DCA 2015) (“[W]e agree with the postconviction court that in context, the trial court’s comments at sentencing were made in connection with its rejection of the argument for mitigation.”); Shelton v. State, 59 So.3d 248, 250 (Fla. 4th DCA 2011). After the trial court found there were no mitigating factors, it then examined all of the evidence presented in arriving at its sentence. Under these circumstances, we do not believe it Was error for the trial court to consider Corbitt’s lack of remorse or failure to take responsibility for his crimes during sentencing.

Corbitt’s petition should be denied for a second reason. As previously explained, prior to sentencing, Corbitt had freely and voluntarily entered a plea and.waived his constitutional rights, including his rights to remain silent and to a jury trial. Even if the trial court had not considered Corbitt’s lack of responsibility or remorse in mitigation, because Corbitt entered a plea and admitted under oath his involvement in the crimes, those considerations would not have been error.

The stated reason for the general rule prohibiting a trial court from considering a defendant’s lack of responsibility or remorse during sentencing is to ensure that a defendant is not unfairly punished for his plea of not guilty and- the exercise of his constitutional rights to remain silent and to proceed to a jury trial. As the Florida Supreme Court in Holton v. State explained:

A defendant has the right to maintain his or her innocence and have a trial by jury. Art. I, § 22, Fla. Const. ' The protection provided by the [F]ifth [A]mendment to the United States Constitution guarantees an accused the right against self-incrimination. The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.

573 So.2d 284, 292 (Fla.1990); see also Robinson v. State, 108 So.3d 1150, 1151 (Fla. 5th DCA 2013); Jiles v. State, 18 So.3d 1216, 1216 (Fla. 5th DCA 2009); K.N.M., 793 So.2d at 1198; Peters v. State, 128 So.3d 832, 847 (Fla. 4th DCA 2013); Green v. State, 84 So.3d 1169, 1171-72 (Fla. 3d DCA 2012); Holt v. State, 33 So.3d 811, 812 (Fla. 4th DCA 2010); Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004).

This court and others have held that the reason for the rule evaporates when a defendant freely and voluntarily enters- a plea and admits his involvement in the crimes or presents testimony regarding his involvement in the crimes during trial. See Lincoln v. State, 978 So.2d 246, 247 (Fla. 5th DCA 2008); St. Val v. State, 958 So.2d 1146, 1147 (Fla. 4th DCA 2007), review dismissed, 982 So.2d 682 (Fla. 2008); Peake v. State, 490 So.2d 1325, 1326 (Fla. 1st DCA 1986); see also Peters, 128 So.3d at 847.

In Peake, the defendant entered a plea to the crimes charged and was sentenced. 490 So.2d at 1325. He challenged his sentence on appeal,- contending that four reasons existed to reverse his -sentence. Id. In the fourth reason, he alleged that the trial court erred in considering the fact that the defendant attempted to place some of the blame for his conduct on the victim. Id. In affirming the sentence, the First District Court explained:

We do not believe that- the validity of reason #4 is governed by the cases which have disapproved the trial court’s reliance upon the defendant’s apparent untruthfulness at trial or lack of remorse. See Perez v. State, 485 So.2d 24 (Fla. 1st DCA 1986); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984); Guerrero v. State, 484 So.2d 59 (Fla. 2nd DCA 1986); and Pursell v. State, 483 So.2d 94 (Fla. 2nd DCA 1986).
In Hubler, the defendant pled not guilty, went to trial, and presented certain alibi witnesses. The jury found him guilty. In departing from the .guidelines sentence, the trial court gave as reasons Hubler’s lack of remorse and his apparent subornation of perjury. In reversing, this Court stated:
[WJhere the defendant has at all times denied committing the battery charged and has persisted in maintaining his innocence, we conclude that it was improper for the trial court to aggravate the sentence imposed because the defendant failed to exhibit remorse for having committed the offense. This is but a corollary of the rule that a .trial court may not impose a greater sentence because the defendant has availed himself-of his constitutional right to a trial by jury (citations omitted).
Id. at 353. In the instant case, as reflected in the presentence investigation report, the defendant admitted the offenses from the time of his arrest. However, in an apparent effort to mitigate his conduct (as opposed to a defense to the charges), he claimed that his eight year old stepdaughter initiated his sexual encounters with her. Thus, the defendant did not continue to maintain his innocence in the face of accusations, as was the concern in Hubler, but, rather, admitted the crimes and understood them to be wrong.

Id. at 1325-26. Like the defendant in Peake, Corbitt admitted his involvement in the crimes and that he shot the officer. However, he attempted to mitigate his responsibility by claiming he was a follower and by trying to lay most of the blame for the crimes on his deceased accomplice.

Even in cases where the defendant exercises his right to a jury trial, this court has held that if he presents testimony admitting his involvement in the crime, it is not error for the trial court to consider the defendant’s lack of remorse during sentencing. As this court explained in Lincoln:

This appeal involves the propriety of the trial court’s enunciation of the defendant’s lack of remorse as a factor in imposing sentence on two counts of sexual battery upon a child (familial authority). The defendant, relying on several cases including Holton v. State, 573 So.2d 284 (Fla.1990), Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999) and K.Y.L. v. State, 685 So.2d 1380 (Fla. 1st DCA 1997), disapproved on other grounds in State v. J.P.C., 731 So.2d 1255 (Fla.1999), urges that lack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence.
We believe that St. Val v. State, 958 So.2d 1146 (Fla. 4th DCA), rev. granted, 966 So.2d 968 (Fla.2007), offers the proper framework for deciding this issue. As in St. Val, the trial court here, in imposing a sentence within the strictures of the criminal punishment code, was not punishing the defendant for exercising his constitutional right to plead not guilty and maintain his innocence. Rather, the defendant had testified at trial and was unable to explain incriminating comments he made in recorded telephone exchanges with the child victim. In one exchange, the victim referred to the “sex part” and the defendant replied, “You didn’t enjoy that?” The defendant additionally at one point during sentencing admitted he was sorry for “the whole thing,” for “what I did,” though he then raised challenges to the child victim’s credibility.
Under these circumstances, the trial court properly took into account the defendant’s lack of remorse for his misconduct.

978 So.2d at 247 (footnote omitted). Like the trial court in Lincoln, the trial court in the instant case properly took into consideration Corbitt’s attempts to place responsibility for his crimes on his deceased accomplice.

Because St. Val sets the proper framework to resolve the issue in this case, a discussion of that case is pertinent. In St. Val, the jury convicted the defendant of attempted first-degree murder with a firearm, attempted second-degree murder, and shooting into a vehicle. 958 So.2d at 1146. The evidence presented in that case was that the defendant shot at two people in a car, wounding one in the arm. Id. The defendant attempted to explain his involvement in the crimes as “an accident in which someone just happened to get shot.” Id. At sentencing, the trial court considered the defendant’s lack of remorse in rejecting the defendant’s characterization of the incident as an accident. Id. In affirming the sentence, the Fourth District Court held that “[w]e reject appellant’s contention that a sentencing judge may never take a defendant’s lack of remorse into consideration when imposing sentence.” Id. The court stated that remorse for the crimes committed “is the type of factor that judges have historically taken into consideration in imposing sentence.” Id. at 1146-47. The court further stated that lack of remorse may not be considered in cases where defendants maintain their innocence at sentencing. Id. at 1147. The court explained its ruling as follows:

K.Y.L. [v. State, 685 So.2d 1380, 1381 (Fla. 1st DCA 1997),] stated that “lack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence.” As authority for this statement, K.Y.L. cited Holton and A.S. K.Y.L., 685 So.2d at 1381. K.Y.L. misstates the holdings of Holton and A.S.; both cases involve defendants who maintained their innocence at sentencing, not defendants who did not contest their commission of criminal acts, but who failed to exhibit remorse for them. The first district recognized this distinction in Peake v. State, 490 So.2d 1325, 1326 (Fla. 1st DCA 1986); the court upheld an enhanced sentence imposed on a defendant for lewd assault on a child, where the defendant did not protest his innocence, but exhibited a lack of remorse when he argued in mitigation that the eight year old victim had initiated the sexual encounters with him. This is not a case where a defendant was punished for protesting his innocence as in A.S., Johnson [v. State, 948 So.2d 1014 (Fla. 3d DCA 2007) ], and Holton.

Id.

It is important to note that Lincoln and St. Val certified conflict with K.Y.L., which holds that a defendant’s lack of remorse is “a constitutionally impermissible consideration in imposing sentence” in all circumstances. K.Y.L., 685 So.2d at 1381; see also Lincoln, 978 So.2d at 247; St. Val, 958 So.2d at 1148. Thus, this court and the Fourth District Court rejected the notion that considerations like lack of remorse or failure to accept responsibility are constitutionally impermissible sentencing factors in all cases. For this reason, subsequent decisions are careful to point out that the defendants, unlike Corbitt in the instant case, consistently maintained their innocence throughout trial and sentencing. See Robinson, 108 So.3d at 1151 (reversing a sentence imposed after a jury trial because the trial court considered lack of remorse and specifically noting that “[a]t sentencing, Robinson maintained his innocence”); Peters, 128 So.3d at 847 (holding that the rule “emanated from cases where a defendant consistently maintained his innocence”); Jiles, 18 So.3d at 1216 (reversing a sentence because the trial court considered the defendant’s refusal to accept responsibility and stating that “Jiles maintained his innocence at trial and during sentencing”); Holt, 33 So.3d at 811 (explaining that “Holt has repeatedly denied committing the crimes charged and has persisted in maintaining his innocence”); Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009) (holding that, after a jury verdict of guilty and the defendant’s steadfast claims of innocence at sentencing, it was improper for the court to consider “the fact that a defendant continues to maintain his innocence”); Ritter, 885 So.2d at 414 (reversing a sentence after a jury trial and concluding that “it is constitutionally impermissible ... to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt”).

The rule that prohibits consideration of the defendant’s lack of responsibility or remorse applies in cases where the defendant entered a plea of not guilty, proceeded to trial, and continued to maintain his innocence at sentencing. We have found no case, and do not believe any exists, that applies the rule to require re-sentencing when the defendant waived his rights, entered a plea, and admitted his guilt.

In summary, lack of responsibility or remorse was considered in mitigation of Corbitt’s sentence. Even if it were otherwise, Corbitt freely and voluntarily entered a plea and admitted under oath that he committed the crimes. We do not think it appropriate to apply a rule of law intended to protect the very rights Corbitt has waived.' Because Corbitts appellate counsel cannot be faulted for failing to raise issues that are not erroneous, see Davis v. State, 875 So.2d 359, 373 (Fla. 2003), we deny the Petition for Writ of Habeas Corpus.

PETITION DENIED.

LAWSON, C.J., and EVANDER, J., concur.

      . Corbitt also alleges that his appellate counsel was ineffective for failing to raise in the prior appeal his trial counsel's failure to request a hearing on his motion to withdraw plea and a hearing on his counsel's request to withdraw from further representation of Corbitt. As to this claim, we deny it without further discussion.

      . The letters are not in the record of this appeal. The State, in its Response, requests that judicial notice be taken of those letters, portions of which are in this court's records of Corbitt’s prior direct appeal. Because Cor-bitt refers to them in his petition, we believe it is appropriate to take judicial notice of them. See Tedesco v. Dep't of Rev., 93 So.3d 1236, 1237 n. 1 (Fla. 2d DCA 2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Demetrius Rashad GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 5D16-1053.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2016.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Cheesman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This is a direct appeal from Appellant’s conviction of possession of a firearm by a convicted felon. The sole issue raised by Appellant concerns allegations of ineffective assistance of his trial counsel. To warrant reversal and a new trial based on that claim, Appellant must establish that his trial counsel’s actions were deficient and that the deficiency So affected the trial that confidence in the outcome is undermined. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnston v. State, 70 So.3d 472, 477 (Fla.2011). “This Court normally considers the merits of ineffective assistance of counsel claims after a postconviction motion has been filed under the applicable rule of criminal procedure and ruled upon by the trial court following the completion of any necessary evidentiary proceedings.” Robards v. State, 112 So.3d 1256, 1266 (Fla.2013). “[A]n ineffective assistance of counsel claim may be treated on the merits on direct appeal only in the rare instance where (1) the ineffectiveness is apparent on the face of the record, and (2) it would be a waste of judicial resources to require the trial court to address the issue.” Id. at 1267 (internal quotations and citations omitted). Appellant’s claims do not meet the Robarás criteria. Accordingly, we will not consider the merits of Appellant’s allegations of ineffective assistance of counsel. We affirm Appellant’s judgment and sentence without prejudice to allow Appellant to timely pursue his claim of ineffective assistance of counsel by filing an appropriate postconviction motion.

AFFIRMED.

SAWAYA, BERGER, and EDWARDS, JJ., concur.


author: OSTERHAUS, J.

text:
    David Allen HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-4801.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2016.

      Nancy A. Daniels, Public Defender and Brenda L. Roman, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General and Samuel B. Steinberg, Assistant Attorney General, for Appellee.
   OSTERHAUS, J.

After David Allen Holt pled nolo conten-dere to trespassing and grand theft charges, the trial court held a restitution hearing to determine what Mr. Holt would pay back for stealing a plasma television and damaging the front door of the victim’s home. The final order set restitution for the television at $600. But because there was insufficient evidence to support the $600 restitution amount, we must reverse and remand for a new hearing.

I.

At the September 2015 restitution hearing, Sharon Griffin testified that a 50-inch Samsung Plasma television had been taken from her home in 2014. According to Ms. Griffin, she purchased the television, new, about three years before it was stolen and it was in “great shape.” However, when asked how much she purchased the television for, Ms. Griffin responded, “To be honest with you, I don’t know. I haven’t had a lot of time — we just got served yesterday for this, so I haven’t had a lot of time to look it up. I’m guessing— in memory, between six and seven hundred dollars.” Ms. Griffin did not provide a receipt for the television and no other evidence was provided as to its original cost. As for depreciation, Ms. Griffin testified that the television probably would have depreciated some but she did not have the training to know what that amount would be.

After Ms. Griffin testified, counsel for both parties searched the internet for the value of Samsung 50-inch plasma televisions in an attempt to establish the value of Ms. Griffin’s television at the hearing. But rather than reaching a definitive conclusion at the hearing, the trial court asked counsel to supplement the record regarding depreciation and the present value of the television. Neither party supplemented the record. Ultimately, the trial court issued an order setting restitution for the television at $600.

II.

In determining restitution, the State bears the burden to prove the amount of loss by the greater weight of the evidence. See DJR v. State, 139 So.3d 458, 459 (Fla. 1st DCA 2014); § 775.089(7), Fla. Stat. The amount of restitution is generally based on the fair market value of the property at the time of the offense. See Fernandez v. State, 98 So.3d 730, 731 (Fla. 2d DCA 2012). The State may establish fair market value by presenting direct testimony or evidence of (1) the original cost, (2) the manner in which the item was used, (3) the general condition and quality of the item, and (4) the percentage of depreciation. See State v. Hawthorne, 573 So.2d 330, 332-33 (Fla.1991); Mansingh v. State, 588 So.2d 636, 638 (Fla. 1st DCA 1991). A court is not tied to fair market value as the sole standard for determining restitution, but “may exercise such discretion as is required to further the purpose of restitution, which is to compensate the victim and to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.” Hagan v. State, 746 So.2d 1241, 1242 (Fla. 1st DCA 1999). “The amount of restitution must be based on more than speculation.... ” Ritch v. State, 14 So.3d 1104, 1106 (Fla. 1st DCA 2009); see Bennett v. State, 944 So.2d 524, 526 (Fla. 4th DCA 2006) (“Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution.”); K.R. v. State, 155 So.3d 507, 509 (Fla. 4th DCA) (holding that a victim’s testimony regarding the amount it cost to repair her stolen vehicle was legally insufficient to support a restitution amount when her testimony of the amount was preceded by the words “probably,” “like,” and “I think”).

Here, the State did not establish the original cost of the television. When asked how much she purchased the television for, Ms. Griffin testified, “I don’t know.” She then “guess[ed]” that it cost between six and seven hundred dollars. No other evidence was presented to establish the television’s original cost. Nor did the State establish the percentage of depreciation. Although the trial court found that the value of the television would have depreciated, counsel only referred to prices for other televisions found on the internet during the hearing. See Molter v. State, 892 So.2d 1115, 1117 (Fla. 2d DCA 2004) (“In general, it is error to accept an attorney’s unsworn assertions as evidence .... ”). We must therefore conclude that the $600 amount set by the restitution order was not supported by competent, substantial evidence.

III.

Accordingly, we reverse the $600 restitution award and remand for a new restitution hearing to determine the appropriate amount of restitution.

REVERSED AND REMANDED.

WOLF and LEWIS, JJ., concur.


author: EDWARDS, J,

text:
    BOARDWALK AT DAYTONA DEVELOPMENT, LLC, Appellant, v. Panormitis K. PASPALAKIS, et al., Appellees.
    No. 5D15-1944.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2016.

      David A. Monaco, John N. Bogdanoff, and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Amy Brigham Boulris, Lauren Vickroy Purdy, and Jonathan Kaskel, of Gunster, Yoakley & Stewart, P.A., Miami, for Ap-pellees.
    Allison D. Daniel, of Institute for Justice, Miami, Amicus Curiae Brief, for Ap-pellees.
   EDWARDS, J,

Neither law nor equity can furnish a sufficient description of land to be conveyed where the parties have failed to do so. Specific performance is only available to compel the transfer of land that is specifically described in the parties’ agreement alone or where its identity is clear from an agreement that is appropriately supplemented by parol evidence. The parties’ agreement in this case contained only a general description of the land to be conveyed; however, it lacked a legal description, street address, or any other information to assist in the identification of the specific parcel of land. The ambiguity was not cured by the trial court’s consideration of parol evidence. Indeed, in the course of litigation, the parties .identified three different parcels of land of significantly different sizes, each of which fit the agreement’s general description. Accordingly, we find that the trial court erred in decreeing specific performance by compelling the conveyance of one of those three parcels.

Boardwalk at Daytona Development, LLC (“BDD”) appeals the final judgment decreeing specific performance of an agreement and compelling BDD to convey specific real estate to Panormitis K. Paspa-lakis, Eleny Lisa Psaros, and A.L. & P. Corporation (collectively “Appellees”). Though BDD raises several issues on- appeal, our determination that specific performance was not an appropriate remedy renders the other issues moot.

This dispute arises from a public-private economic development project. BDD’s predecessor obtained Appellees’ property ■located on the Daytona Beach Boardwalk using the City of Daytona Beach’s eminent domain power, but the land was purchased with private funds. The Boardwalk Project contemplated the construction of buildings operating dually as , hotels and residential condominiums. The structures would also contain retail space. To resolve the condemnation litigation, the parties entered into a mediated settlement agreement that set the price Appellees would receive for their property and granted Ap-pellees an option to purchase and refurbish a specific building, which was located on the Boardwalk. The mediated settlement agreement was subsequently amended, providing Appellees with three different options to purchase and operate 7500 square feet of retail space on the Boardwalk.

Appellees chose the option that required BDD to transfer property to Appellees who, in exchange, would pay $250,000. The amended agreement did not contain a legal description or street address for the property to be conveyed to Appellees. However, the amended agreement indicated that the property would be adjacent to the Mardi Gras, a Daytona Beach business; that it would have a minimum of 50 frontage feet on the Boardwalk; and that it would have “sufficient land to build a 7500 square foot one story building;, free of any and all liens.” Appellees advised BDD they were “willing to close the purchase of the property as soon as the site and legal description have been confirmed.”

BDD provided Appellees with a survey sketch and legal description of property that it proposed for the conveyance, stating that the 7682 square foot lot included 53.4 feet of Boardwalk frontage and would have sufficient area for construction of a 7500 square foot, one story building. Use of this lot would require locating the storm water vaulting system beneath the occupied building, an unusual design feature that caused concern to Appellees. Further, BDD insisted that the conveyed property would be subject to a perpetual, irrevocable, and permanent negative easement for light, air, and unobstructed view for the benefit of BDD’s adjacent property. Appellees objected, asserting that the amended agreement did not discuss any such easement.

BDD filed suit against Appellees, seeking a declaratory judgment that the property BDD tendered, including the negative easement, conformed to the amended agreement. Appellees counterclaimed, seeking damages and specific performance that would require BDD to transfer the land described in the amended agreement, 1.e., sufficient to build a 7500 square foot, one story building with a minimum of 50 feet of Boardwalk frontage in fee simple, without restrictions.

During the pendency of the litigation, BDD submitted two site plans to governmental authorities. The first site plan was for a 17,350 square foot lot. This plan provided for the storm water system located under the building and arranged for the excavated soil to be deposited on the lot. The second site plan was for an 8594 square foot lot. In this second plan, the storm water system was located under the building and the excavated soil had to be deposited on the beach. BDD dismissed its complaint against Appellees, and defended against Appellees’ amended counterclaim by asserting that there was no agreement to be specifically enforced because there was no meeting of the minds regarding the exact size, location, easements, and legal description of the property. In their second amended counterclaim, Appellees requested the court to order BDD to convey the parcel described in the first site plan or, in the alternative, to order BDD to convey the parcel described in the second site plan while ordering BDD to accept the transfer of the excavated sand from the site plan to the dunes on its adjacent property.

During the four-day nonjury trial, the parties’ witnesses testified regarding the feasibility of locating a storm water system beneath an occupied building, how to dispose of the excavated soil, the terms of the amended agreement, and how those issues did or did not define what piece of land was “sufficient for a 7500 square foot building.” In closing arguments, Appel-lees initially urged specific performance by forcing BDD to convey the 8592 square foot lot described in the second site plan. When the trial court remarked that the larger 17,350 square foot lot described in the first site plan might be more suitable, Appellees stated that they would accept either parcel. The final judgment decreed specific performance by ordering BDD to convey the land described in the first site plan to Appellees without the negative easement. BDD timely appealed.

“The decision whether to grant or withhold a judgement for specific performance is a matter within the sound discretion of the trial court which will not be disturbed on appeal unless clearly erroneous.” Muniz v. Crystal Lake Project, LLC, 947 So.2d 464, 469 (Fla. 3d DCA 2006) (citing Henderson Dev. Co. v. Gerrits, 340 So.2d 1205, 1206 (Fla. 3d DCA 1976)). “[T]he right to exercise this judicial discretion does not extend to the power or authority to contravene the legal requirements which must exist to give a litigant grounds upon which he may invoke the remedy.” Id. (alternation in original) (quoting Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005)). “A decree of specific performance .... can be granted only when 1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it.’” Invego Auto Parts, Inc. v. Rodriguez, 34 So.3d 103, 104 (Fla. 3d DCA 2010) (quoting Castigliano, 911 So.2d at 148). In contrast, “[t]he interpretation of a contract involves a pure question of law for which [the appellate court] applies a de novo standard of review.” Muniz, 947 So.2d at 469 (citing Kissman v. Panizzi, 891 So.2d 1147, 1149 (Fla. 4th DCA 2005)).

“In order for a court to grant specific performance, the parties must have entered into an agreement that is definite, certain, and complete of all its essential terms.” Id. (emphasis added) (citations omitted). “As a general rule, ‘[t]here is no definitive list of essential terms that must be present and certain to satisfy the statute of frauds [and] the essential terms will vary widely according to the nature and complexity of each transaction and will be evaluated on a case-by-case basis.’ ” de Vaux v. Westwood Baptist Church, 953 So.2d 677, 682 (Fla. 1st DCA 2007) (alteration in original) (quoting Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979)).

However, for land contracts, a description of the land to be conveyed is generally an essential part of the agreement. See Rhode v. Gallat, 70 Fla. 536, 70 So. 471, 472-73 (1915). A “meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract, and where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.” de Vaux, 953 So.2d at 681 (citing Cent. Props., Inc. v. Robbinson, 450 So.2d 277, 280 (Fla. 1st DCA 1984) (additional citations omitted)).

Here, BDD argues that the term “sufficient land for a 7500 square foot building” is ambiguous and, therefore, an essential term of the contract was absent from the agreement. In support of this argument, BDD cites Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137 (Fla. 3d DCA 1974). In Bay Club, the plaintiff “executed a written agreement with [defendants] to lease a portion of the Brickell Bay Club condominium which was then in the early stages of construction for the operation of a private club by [defendants].” 293 So.2d at 138. “The agreement was contingent upon the defendants being able to obtain a zoning variance to permit the operation on the proposed club.” Id. Plaintiffs subsequently filed a complaint for rescission of the agreement, alleging that defendants were in violation of the contract. Id. Defendants counterclaimed for specific performance. Id. Plaintiffs moved to dismiss the counterclaim on the basis that the contract was insufficient to “form a predicate for a claim of specific performance.” Id. The trial court dismissed the counterclaim. Id.

The Third District affirmed, finding that the agreement, which described the leased area “as approximately 20,000 square feet without any designated location thereof in the 31 story building,” lacked “so many of the essential elements of a lease for the operation of a business that the court for specific performance thereof, would have to write a comprehensive lease based on parol evidence which [it] may not and shall not do.” Id. (emphasis added). Similarly, here, while the amended agreement indicated that the land to be conveyed was adjacent to the Mardi Gras property with a minimum of 50 frontage feet on the Boardwalk, it did not provide any further specifics that would, assist in identifying the parcel of land. Instead, the amendment merely required BDD to convey “sufficient land” for a 7500 square foot building. While the Mardi Gras property may provide a starting point for the identification of the land, as did the thirty-one story building in Bay Club, the description in the amended agreement is too ambiguous to enforce via specific performance.

As the amended agreement did not specifically describe the exact property to be conveyed, the trial court considered and relied upon parol evidence offered by the parties regarding what would be “sufficient for the construction of a 7500 one story building,” “[P]arol evidence is admissible to determine the description so long as the instrument itself shows that the parties were contemplating a particular piece of property — rather than an unspecified piece of property ... or alternative descriptions ... or property to be obtained later.” Bajrangi v. Magnethel Enters., Inc., 589 So.2d 416, 418-19 (Fla. 5th DCA 1991) (footnotes omitted) (citing Edmun Realty Corp. v. Kearns, 158 Fla. 558, 28 So.2d 834, 836 (1947)). “[T]he description [of land] is sufficient if the reference to the property in the deed is such that the court, by pursuing an inquiry based upon the words of reference, is able to identify the particular property to the exclusion of all other property.” Id. at 419. But cf. Venema v. Tost, 424 So.2d 786, 787 (Fla. 3d DCA 1982) (reversing the trial court’s granting of specific performance because the contract did not sufficiently describe the real property in question and holding that the “use of parol evidence to remove a patent ambiguity with respect to a legal description in a conveyance is error” (citations omitted)).

Jordan v. Boisvert, 632 So.2d 254 (Fla. 1st DCA 1994), proves helpful in deciding this issue. In Jordan, the parties entered into a contract for the sale and purchase of real property. 632 So.2d at 255. The “contract fixed the' price, contained a description, and called for a survey to establish the exact legal description of the property to be conveyed.” Id. Attached to the contract was a “sketch of the general area of the property.” Id. Defendant subsequently contacted the plaintiff via mail and informed him that he would “not really know how many acres are involved until the survey is complete and the calculations are made.” Id. The correspondence additionally provided boundary landmarks for the property to be conveyed. Id. Pursuant to the agreement, plaintiff obtained a survey that indicated “the proposed sale involved 5.95 acres.” Id. Defendant obtained a second survey that indicated that the proposed sale involved 5.40 acres. Id. Plaintiff, subsequently obtained a third survey. Id. Plaintiff then, filed a complaint for specific performance. Id. The trial court “ruled that the legal description in the contract was insufficient to allow a survey- or to locate and establish boundaries on the land.’’ Id. at 256. On appeal, the plaintiff argued that the trial -court erred in failing to consider appellee’s letter in determining whether there was a clear and unambiguous description of the land to be conveyed. Id.

The First District affirmed and determined that the plaintiff did not show “that the trial , court abused its discretion in denying specific performance of the written agreement signed by the parties.’.’ Id. at 257. The . court • indicated that “[fjunda-mental to a grant of specific performance of a contract for purchase and sale of property is ‘whether a surveyor with the deed before him and with or without the aid of extrinsic evidence can locate the land and establish the boundaries,’ ” Id. at 256 (quoting Mogee v. Haller, 222 So.2d 468, 469 (Fla. 1st DCA 1969)). In determining that specific performance should not be granted, the court emphasized that:

The fact that the surveyor performed three surveys, each of which varied the boundary lines of the property at issue, constitutes substantial evidence to support the trial court’s finding that even considering the description in the contract for sale, attached drawing, and extrinsic evidence, the description was insufficient to permit a surveyor to establish the boundaries of the property.

Id. at 257.

Here, there were three different parcels of land identified as being potentially “sufficient” for the 7500 square foot building, with lot sizes ranging from 7682 to 17,350 square feet. Each of the three lots was adjacent to the Mardi Gras and each had a minimum of 50 feet Boardwalk frontage. However, neither the amended agreement alone nor the amended agreement as supplemented by the trial evidence estab-, lished a meeting of the minds on what real estate was being bought and sold. Thus, the trial court erred in granting specific performance. We reverse the final judgment granting specific performance in favor of the Appellees and remand for entry of final judgment in favor of BDD.

REVERSED AND REMANDED.

SAWAYA and PALMER, JJ., concur.

      . As noted in the amicus brief filed by Institute for Justice, the Boardwalk Project was similar in many respects to the facts of Kelo v, City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), in terms of the use of governmental condemnation power for private real estate development. In 2006, Florida reacted by amending its eminent domain statutes and passing a constitutional amendment to prohibit the use of condemnation in similar situations. See Chapter 73, Florida Statutes (2007); Art. X, § 6(a), Fla. Const.

      . Paragraph one of the second amended counterclaim states that specific performance and money damages exceeding $15,000 are sought; however, money damages are never mentioned again nor are they sought in the ad damnum clause.


text:
    Andrew Wyatt NIELSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-253
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2017
    Robert Wesley, Public Defender, and Joshua Sinclair, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent,
   PER CURIAM.

Petitioner, Andrew Wyatt Nielson, petitions this court for a writ of habeas corpus claiming he is being unlawfully detained in that the trial court did not conduct a full bond hearing to determine reasonable conditions for pre-trial release pursuant to Florida Rule of Criminal Procedure 3.131(b). We agree and grant the petition for habeas corpus. We remand the matter back to trial court to conduct a full bond hearing pursuant to Florida Rule of Criminal Procedure 3.131(b).

PETITION GRANTED, REMANDED FOR FURTHER PROCEEDINGS.

BERGER, WALLIS, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Kenneth Jerome KIRKLAND, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0171
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017
    Mitchell G. Wrenn, Assistant Regional Counsel, Casselberry, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 6, 2016 judgment and sentence in Case No. 2014-301657-CFDB in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Ira Lee JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3715
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017
    Ira Lee Jackson, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED without prejudice for Appellant to refile his Rule 3.800(a) motion, if appropriate.

COHEN, C.J., BERGER and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    Vernardo J. GRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3260
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017

      Vernardo J. Gray, Malone, pro se.
    No Appearance for Appellee.
   EDWARDS, J.

Appellant, Vernardo J. Gray, appeals the trial court’s order summarily denying his motion for postconviction relief. Appellant was convicted of attempted secondr degree murder (count 1) and aggravated assault with a firearm (count 2). He was sentenced to concurrent terms of thirty years in prison on count 1 and twenty years in prison on count 2. Appellant timely filed an original, then an amended, and finally a second amended motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Appellant raises four claims of ineffective assistance of counsel. The postconviction court summarily denied all four claims. For the reasons set forth below, we reverse as to Claim One and affirm as to Claims Two, Three, and Four.

In order to successfully argue ineffective assistance of counsel, a defendant must allege that counsel’s performance was deficient and that he or she was prejudiced as a result. See Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (additional citation omitted)). To show that counsel’s performance was deficient, the defendant “must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Id. To show the requisite prejudice, the defendant must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.” Wainwright v. State, 896 So.2d 695, 698 (Fla. 2004) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

In Claim One, Appellant alleges that defense counsel was ineffective for advising Appellant to reject the State’s plea offer of five years in the Department of Corrections. Appellant asserts that defense counsel incorrectly advised him that Appellant’s recorded statement could not be admitted in evidence, and that without that evidence, the State’s cáse was “extremely weak.” Appellant claims that if defense counsel had made him aware of the potential that his recorded statement would be admissible, he would have accepted the State’s offer of five years. He further asserts that the State would not have withdrawn its offer and that the offer would have been accepted by the trial court, resulting in a significantly shorter prison term.

In its order summarily denying Claim One, the trial court explained that because defense counsel inquired about the recorded statement just prior to trial, Appellant was on notice that the statement would be admitted. The trial court thus concluded that because of this knowledge Appellant cannot establish that defense counsel was ineffective. To uphold a summary denial by the trial court, “the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (citing Fla. R. Crim. P. 3.850(d)). The allegations of defendant’s motion are assumed to be true unless conclusively refuted by the record. See Fla. R. Crim. P. 3.850(f)(4)-(6) (permitting summary denial of claims only if “conclusively refuted” by the record); Freeman v. State, 761 So.2d 1055, 1065 n.9 (Fla. 2000).

“A claim that’ misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel.” Colon v. State, 909 So.2d 484, 490 (Fla. 5th DCA 2005) (quoting Steel v. State, 684 So.2d 290, 291 (Fla. 4th DCA 1996)). The Florida Supreme Court has stated as follows:

[I]n order to show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine, confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe .than under the judgment and sentence that in fact were imposed.

Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013).

Appellant claims that defense counsel told him that his recorded statement could not be admitted. The trial transcript shows that defense counsel asked the trial court for additional time to review the recorded statements with Appellant. To the extent that defense counsel may have privately misadvised Appellant regarding the admissibility of the recorded statement, the record does not conclusively refute this claim. The transcript suggests that Appellant was not in the courtroom when defense,counsel discussed the statement with the court. Specifically, defense counsel informed the court that he had discussed certain matters with Appellant “downstairs” and would like to have a few minutes to discuss the State’s plea offer “once [Appellant was] upstairs.” Additionally, the record does not show that Appellant formally rejected the plea offer or that the trial court inquired about the plea offer.

Because Appellant’s claim is facially sufficient and because the record does not conclusively refute Claim One, we reverse and remand for the postconviction court to attach the records that- conclusively refute this claim or, in the alternative, ■ hold an evidentiary hearing.

Claims Two, Three, and Four are merit-less. Accordingly, we reverse as to Claim One and affirm as to Claims Two, Three, and Four.

AFFIRMED in part; REVERSED in part.

PALMER and LAMBERT, JJ., concur.


text:
    A.G., Mother of H.F.D., T.D. and M.R.G., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D16-3647
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 7, 2017
    Ryan Thomas Truskoski, Special Assistant Regional Counsel, Jeffrey Deen, Appellate Counsel, and Lori D. Loftis, Assistant Regional Counsel, of The Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant.
    Deborah Anne Schroth, for Appellee, Department of Children and Families.
    Sara E. Goldfarb, Sanford, for Guardian ad Litem Program.
   PER CURIAM.

AFFIRMED. See J.B.P. v. Dep’t of Children & Families, 868 So.2d 1289, 1290 (Fla. 4th DCA 2004) (“Because the complete record is sufficient and enables us to review the final order of termination, even with only a single omnibus finding, we have elected not to reverse in this case. We caution the Judges in this District presiding over termination of parental rights cases, however, not to infer that the failure to make specific factual findings will always be harmless. In most eases-although not in this one-such findings are indispensable.”).

ORFINGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: ORFINGER, J.

text:
    MADISON HIGHLANDS, LLC and American Residential Development, LLC, Appellants, v. FLORIDA HOUSING FINANCE CORPORATION, SP Gardens, LLC, West River Phase 2, LP and West River 1A, LP, Appellees.
    Case No. 5D16-1035
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017

      Kenneth B. Bell, of Gunster, Yoakley <& Stewart, P.A., Tallahassee, James W. Middleton, . of James W. Middleton, PLLC, Jacksqnville Beach, Michael , G, Maida, of Michael G. Maida, P.A., Tallahassee, J. Timothy Schulte and Sarah Lindquist Pape, of Zimmerman, Kiser, & Sutcliffe, P.A., Orlando, William S. Bilenky and Douglas -P. Manson, of Manson Bolves Donaldson Varn, P.A., Tampa, for Appellants.
    ’ Chris McGuire, Tallahassee, for Appel-lee, Florida Housing Finance Corporation,
    Stacy D. Blank, of Holland & Knight LLP, Tampa, and Lawrence E. Sellers, Jr., of Holland & Knight LLP, Tallahassee, for Appellee, SP Gardens, LLC
    Michael P. Donaldson, of Carlton, Fields Jordan Burt, P.A., Tallahassee, for Appel-lee, West River 1A, LP and West River Phase 2, LP,
   ORFINGER, J.

Madison Highlands, LLC and American Residential Development, LLC (collectively “Madison Highlands”) appeal a final order of the Florida Housing Finance Corporation (“FHFC”) dismissing its first and second amended petitions for a formal administrative proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (2016). We conclude that the doctrine of equitable tolling allows for the consideration of Madison Highlands’s second amended petition, which was legally sufficient and demonstrated standing under Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478, 479 (Fla. 2d DCA 1981). Accordingly, we reverse the final order and remand for an administrative hearing pursuant to section 120.57, Florida Statutes (2016).

The FHFC is the state agency designated to allocate and distribute low-income housing tax credits that the United States Treasury annually makes available to the states for various 'programs, including the State Housing Tax Credit Program (the “Program”). See § 420.5099, Fla. Stat. (2016). Because the demand for housing credit funding exceeds available allocations under the Program, qualified affordable housing developers must compete for the funding. The competitive process is initiated when the FHFC issues a 'Requést for Applications (“RFA”), and interested developers respond by submitting applications. Madison Highlands participates in the Program and competes for this funding.

The FHFC issued RFA-2015-107 for an award of tax credits for the development of affordable housing projects in several counties, including Hillsborough County, where only one development would be funded. Madison Highlands and others submitted applications, and in time, the FHFC posted a notice identifying SP Gardens, LLC (“Laburnum Gardens”) as the applicant to which it intended to award the tax credits for the Hillsborough County development. Madison Highlands timely filed a written protest to the notice and petitioned for an administrative hearing.

The FHFC issued an Order Dismissing the Petition with Leave to Amend, finding that Madison Highlands’s first amended petition did not comply with. Florida Administrative Code Rule 28-106.201(2)(e)-(f) as it did not include:

(e) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action; [and]
(f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes ....

The Order Dismissing the Petition with Leave to Amend gave Madison Highlands until March 4, 2016, to file an amended petition and stated that the “[failure of [Madison Highlands] to file an amended petition within this time shall be considered a waiver of its rights to file any administrative challenge in.this matter.”

At 6:36 p.m. on March 4, 2016, Madison Highlands filed its second amended petition by electronic mail, again protesting the notice and petitioning for an administrative hearing. The, FHFC subsequently entered a Final Order that dismissed the second amended petition with prejudice, concluding that the second amended petition was untimely filed thirty-six minutes late and Madison Highlands had not demonstrated that the doctrine of equitable tolling applied. The FHFC further determined that even if timely, the second amended petition failed to establish that Madison Highlands had standing to' protest the preliminary award because.it did not contain adequate allegations against all of the four higher-ranked applicants that, if proven, would result in Madison Highlands being ranked highest. Madison Highlands challenges these determinations.

We review an agency’s conclusions of law de novo. Parlato v. Secret Oaks Owners' Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). We agree with the FHFC that the second amended petition was untimely. Section .120.54(5), Florida Statutes (2016), requires the Administration Commission to adopt uniform rules of procedure to replace the multiple rules in the administrative code promulgated by the various agencies. See Fla. Pub. Emps. Council 79, AFSCME, AFL-CIO v. Jacksonville Emps. Together, 738 So.2d 489, 491 (Fla. 1st DCA 1999). The Uniform Rules provide, in relevant part, that “[a]ny document received .by the office of the agency clerk before 5:00 p.m. shall be filed as of that day but any document received after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day.” Fla. Admin. Code R. 28-106.104(3). However, the FHFC has published its own rule, Florida Administrative Code Rule 67-r 52.002(3), which specifies that when a petition is sent to its clerk by electronic mail, it “shall be accepted on the date transmit ted.” Such a rule cannot serve as an exception to the Uniform Rules because the Administration Commission has not approved it as an exception to the time deadline set forth in rule 28-106.104(3). § 120.54(5)(a), Fla. Stat. (2016) (providing that Uniform Rules apply unless Administration Commission specifically grants exception to agency); see Dep’t of Corr. v. Saulter, 742 So.2d 368, 369-70 (Fla. 1st DCA 1999) (characterizing effect of section 120.54(5)(a) as “legislative repeal” of agency .procedural rules in conflict with Uniform Rules). Thus, the second amended petition was untimely under rule 28-106.104(3). Nevertheless, Madison . Highlands is entitled to the relief afforded by the equitable tolling doctrine.

Section 120.569(2)(c), Florida Statutes (2016), requires agencies to dismiss untimely petitions, but further provides that this direction “does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition.” A late request for an administrative hearing is not a jurisdictional defect. Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla. 1988); Pro Tech Monitoring, Inc. v. State, Dep’t of Corr., 72 So.3d 277, 280 (Fla. 1st DCA 2011); see Williams v. Dep’t of Corr., 156 So.3d 563, 565 (Fla. 5th DCA 2015) (“The doctrine of equitable tolling can be applied to extend an administrative filing deadline.”).

Under the doctrine of equitable tolling, a late-filed petition should be accepted when a party “has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum,” provided that the opposing party will suffer no prejudice. Machules, 523 So.2d at 1134. Madison Highlands asserts that it was misled or lulled into not timely filing the second amended petition by the terms of the Order Dismissing the Petition with Leave to Amend, which only stated that the second amended petition was due on March 4, 2016. Madison Highlands also submits that FHFC rule 67-52.002(3), published both in the Florida Administrative Register and on the FHFC website, provides that the second amended petition, delivered by electronic mail, would be deemed filed the date it was transmitted, in this case, March 4, 2016. Madison Highlands claims it was not informed that FHFC rule 67-52.002(3) was not an approved exception to the Uniform Rules and neither the FHFC website nor the Order Dismissing the Petition with Leave to Amend cited to rule 28-106.104(3) or referenced the time cutoff provisions found in the Uniform Rules. Although FHFC had, on other occasions, included specific submittal times in certain situations, it did not do so here.

Madison Highlands does not assert that it requested this information from FHFC or had any discussion with the FHFC concerning the applicability of the Uniform Rules. Indeed, Madison Highlands was aware that the Uniform Rules would apply to petitions filed with the FHFC since it referenced the Uniform Rules numerous times in its second amended petition, and never referenced chapter 67-52. Notwithstanding, we conclude that the FHFC affirmatively “lulled or misled” Madison Highlands into relying on rule 67-52.002, Madison Highlands’s mistake was based on the FHFC’s act of publishing FHFC Rule 67-52.002(3) on its website without also publishing or referencing Uniform Rule 28-106.104(3), but then applying the 5:00 p.m. time deadline from the Uniform Rules to Madison Highlands’s petition.

Equitable tolling does not require active deception or agency misconduct, but focuses rather on the applicant with a reasonably prudent regard for his rights. See, e.g., Machules, 523 So.2d at 1134; see also Pro Tech Monitoring, Inc., 72 So.3d 277 (applying equitable tolling to disappointed bidder’s late filed formal bid protest petition where bidder alleged that petition was timely delivered to department’s security guard, who prevented bidder from delivering petition directly to clerk’s office and instead accepted petition, stamped it with department-issued time and date stamp, and affirmatively led bidder to believe that no further action was required). In addition, no prejudice was shown because the opposing parties were on notice that Madison Highlands intended to file the second amended petition. See Machules, 523 So.2d at 1137 (finding that opposing party was not prejudiced by petition that was filed one day late when opposing party “obviously was on notice that petitioner intended to appeal”).

We also agree with Madison Highlands that the FHFC erred in ruling that it had not shown standing under the Agri-co test. “Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.” Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006) (citing Hospice of Palm Beach Cty., Inc. v. State, Ag. for Health Care Admin., 876 So.2d 4, 7 (Fla. 1st DCA 2004)). An administrative agency’s action may be set aside if “[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action ....” § 120.68(7)(d), Fla. Stat. (2016). Moreover, the standing issue in this case involves the application of general principles of administrative law. Therefore, we need not give any deference to the legal analysis in the final order on this issue. S. Broward Hosp. Distr. v. State, Ag. for Health Care Admin., 141 So.3d 678, 681 (Fla. 1st DCA 2014); see Ft. Myers Real Estate Holdings, LLC v. Dep’t of Bus. & Prof'l Reg., Div. of Pari-Mutuel Wagering, 53 So.3d 1158, 1160 (Fla. 1st DCA 2011); Doyle v. Dep’t of Bus. Reg., 794 So.2d 686, 690 (Fla. 1st DCA 2001).

The Agrico decision provides a two-prong test to determine when a challenger to agency action meets the “substantial interest” element found in section 120.52(13)(b), Florida Statutes (2016). The Agrico test requires the challenger to demonstrate “1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.” Agrico, 406 So.2d at 482. “The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.” Id. Under the first prong of Agrico, the injury must be actual or immediate, and not based on a hypothetical scenario. See S. Broward Hosp. Dist., 141 So.3d at 681-82; Vill. Park Mobile Home Ass’n v. State, Dep’t of Bus. Reg., 506 So.2d 426, 433 (Fla. 1st DCA 1987). “With respect to the second prong, this factor usually requires that ‘the injury is of the type that the statute pursuant to which the agency has acted is designed to protect.’ ” Menorah Manor, Inc. v. Ag. for Health Care Admin., 908 So.2d 1100, 1104 (Fla. 1st DCA 2005) (quoting Fairbanks, Inc. v. State, Dep’t of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994)).

To have standing to challenge the proposed award of a public contract, an applicant must have a substantial interest to be determined in the case. Preston Carroll Co. v. Fla. Keys Aqueduct Auth., 400 So.2d 524, 525 (Fla. 3d DCA 1981); see § 120.57(3)(b), Fla. Stat. (2016). The second lowest bid establishes that substantial interest because if the lowest bid is disqualified, the second lowest bid may receive the award. See Preston Carroll Co., 400 So.2d at 525 (holding that unsuccessful bidder did not establish substantial interest entitling it to challenge highest bidder where testimony showed it was not second lowest bidder and would not receive award even if challenge was successful). An applicant who submits the fifth lowest bid does not have a substantial interest, unless the applicant can establish that the four higher-ranked applications must all be rejected or re-evaluated, resulting in the protesting filer being ranked highest. See Preston Carroll Co., 400 So.2d at 525; Louis Berger Grp., Inc. v. Fla. Div. of Emerg. Mgmt., Case No. 15-2537 BID (Fla. DOAH June 10, 2015; Fla. FDEM July 10, 2015) (relying on Preston Carroll Co. in explaining that unsuccessful bidder was required to demonstrate that all seven bidders ahead of it would be disqualified in order to demonstrate standing); see also Brasfield & Gorrie Gen. Contractor, Inc. v. Ajax Constr. Co. of Tallahassee, 627 So.2d 1200, 1203 n.1 (Fla. 1st DCA 1993) (noting that unsuccessful bidder finished seventh out of seven bids made, which “hardly lends credence” to unsuccessful bidder’s argument that it had interest substantial enough to establish standing).

We find that Madison Highlands has alleged a substantial interest and has met both prongs of the Agrico test. Under the first prong, Madison Highlands has established a real and immediate injury, as its second amended petition alleges that the applications of the four higher-ranked applicants had deficiencies and that if the FHFC had properly scored or considered the higher-ranked applicants, it would have been awarded the housing tax credits for the Hillsborough County development. Madison Highlands has also established that the injury, i.e., being denied the allocation of the housing tax credits, is the type that the proceedings were designed to protect.

In considering the dismissal of a petition for a hearing under section 120.57, Florida Statutes, an agency must “accept as true the factual allegations of the petitions and may not consider any factual matters outside the amended petitions.” St. Francis Parkside Lodge of Tampa Bay v. Dep’t of Health & Rehab. Servs., 486 So.2d 32, 34 (Fla. 1st DCA 1986). The question of whether the petitioner may ultimately be able to prove the allegations in its petition is a question to be determined at the administrative hearing, not at the pleading stage on an order of dismissal by the agency. Ft. Myers Real Estate Holdings, LLC, 53 So.3d at 1162; see Palm Beach Cty. Envtl. Coal. v. Fla. Dep’t of Envtl. Prot., 14 So.3d 1076, 1078 (Fla. 4th DCA 2009) (explaining that question of whether party has standing is different from question of whether party will be able to prove its case). Madison Highlands’s second amended petition set forth sufficient allegations, which, taken as true, substantially complied with rule 28-106.201(e) and (f). We reverse and remand for an administrative hearing.

REVERSED AND REMANDED.

TORPY, J., and THOMPSON, E.R., Senior Judge, concur.

      . Four applicants, including Laburnum Gardens, scored equally in the FHFC’s evaluation matrix. Consequently, Laburnum Gardens was selectéd by lot. Madison Highlands’s application had a lower score, and was the next ranked applicant.


text:
    Jammie SIMMONS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4529
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 10, 2017
    James S. Purdy, Public Defender, and Brittany O’Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincenb-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jammie Simmons timely appeals his convictions and sentences for aggravated assault on a law enforcement officer with a firearm, possession of a firearm by a convicted felon, possession of cocaine, and two separate counts of resisting arrest. Simmons raises three issues on appeal, arguing that the trial court erred in: 1) denying his motion to withdraw plea; 2) denying his motion for appointment of counsel; and 3) imposing two consecutive mandatory minimum sentences. We affirm on the first two issues without further discussion.

As to the sentencing issue, the State properly concedes error. See Williams v. State, 186 So.3d 989, 993 (Fla. 2016) (holding that consecutive sentences of mandatory minimum terms for multiple firearm offenses are impermissible if the offenses arose from the same criminal episode and the firearm was not discharged). In the instant case, the trial court imposed consecutive mandatory minimum sentences for the aggravated assault and possession of a firearm by a convicted felon charges. The State concedes that these two charges stemmed from the same criminal episode. Accordingly, we reverse and remand with instructions to impose the mandatory minimum sentences concurrently rather than consecutively.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA and TORPY, JJ„ and JACOBUS, B.W., Senior Judge, concur.


author: LAMBERT, J.

text:
    Erin GREEN, Appellant, v. Wayne IVEY, in his Official Capacity as Sheriff of Brevard County, Florida, Appellee.
    Case No. 5D16-3907
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017

      Patricia R. Sigman, of Sigman & Sig-man, P.A., Altamonte Springs, for Appellant.
    Mark E. Levitt and Marc A. Sugerman, of Allen, Norton & Blue, P.A., Winter Park, for Appellee.
   LAMBERT, J.

Appellant, Erin Green, the plaintiff below, appeals the trial court’s nonfinal order granting the motion filed by Appellee, Wayne Ivey, in his capacity as the Sheriff of Brevard County, to transfer venue of the underlying action from Seminole County to Brevard County. Because Appellee waived his venue objection by not timely asserting it, we reverse.

Appellant filed her complaint in Seminole County against Appellee, seeking damages pursuant to Florida’s ‘Whistle-Blower Act.” Appellee answered the complaint but did not contest venue. Seven weeks later, Appellee filed an unsworn motion to transfer venue to Brevard County, asserting that venue in Seminole County is inappropriate because Appellant’s cause of action accrued in Brevard County, that Appellant and most, if not all, of the witnesses are located there, and that pursuant to the “home venue privilege,” Appel-lee, as the Sheriff of Brevard County, is entitled to have the instant suit litigated in Brevard County where he maintains his headquarters. Appellant responded that by failing to raise the defense of improper venue in his answer or by a pre-answer motion, Appellee waived his objections to venue. Following a hearing at which no evidence was presented, the trial court transferred venue “[bjecause [the] parties are located in Brevard County, Florida, [and Appellee] is a government agency with all headquarters, including [the] main headquarters, in Brevard County.”

Other than actions against nonresidents, “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” § 47.011, Fla. Stat. (2015). To contest an alleged improper choice of venue, Florida Rule of Civil Procedure 1.140(b) requires that a party object to venue either in its first responsive pleading or in a motion filed before the first responsive pleading. Moreover, both subdivisions (b) and (h) of rulé 1.140 provide that the failure to raise improper venue in either the answer or the pre-answer motion constitutes a waiver of the defense.

Here, Appellee, by failing to object to venue in his answer or pre-answer motion, waived his objection. See Tip Top Enters., Inc. v. Summit Consulting, Inc., 905 So.2d 201, 201-02 (Fla. 3d DCA 2005) (reversing order granting appellee’s motion to change venue, reasoning that appel-lee waived its venue objection “by failing to affirmatively plead it in either the answer or in a pre-answer motion”). Additionally, an agency waives the home venue privilege by failing to object to an improper venue. State, Dep't of Transp. v. Gulf-Atl. Constructors, Inc., 727 So.2d 305, 306 (Fla. 1st DCA 1999) (“Failure to raise improper venue,” including improper venue based on the home venue privilege, “prior to or contemporaneous with a party’s answer constitutes waiver.” (citing Fla. R. Civ. P. 1.140(h)(1) (additional citation omitted))).

Finally, any argument by Appellee that the order on appeal should be affirmed under the doctrine of forum non conveniens based on his allegation that Appellant and the witnesses are located in Brevard County is presently without merit as Appellee provided no evidence to support this basis for a transfer. See Resor v. Welling, 44 So.3d 656, 657 (Fla. 5th DCA 2010) (reversing order transferring venue based on forum non conveniens because Appellant did not file affidavits or evidence to meet his “burden of showing substantial inconvenience or undue expense to establish a basis for the transfer” (citing Vero v. Vero, 659 So.2d 1348, 1349 (Fla. 5th DCA 1995))).

Accordingly, we reverse the order transferring venue to Brevard County and remand with directions that the trial court enter an order transferring venue back to Seminole County.

REVERSED and REMANDED, with directions.

BERGER and EDWARDS, JJ., concur.

      . This court has jurisdiction. See Fla. R. App. P. 9.130(a)(3)(A).

      . §§ 112.3187-.31895, Fla. Stat. (2015).

      . "The home venue privilege provides that, absent waiver or exception, venue in a suit against the State, or an agency or subdivision of the State, is proper only in the county in which the State, or the agency or subdivision of the State, maintains its principal headquarters.” Fla. Dep’t of Child. & Fams. v. Sun-Sentinel, Inc., 865 So.2d 1278, 1286 (Fla. 2004) (citations omitted).

      . See § 47.122, Fla. Stat. (2015) ("For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”).


author: COHEN, C.J.

text:
    Paul ARCHER, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Not in Its Individual Capacity but Solely as Trustee of SW Remic Trust 2014-1, Appellee.
    Case No. 5D16-1970
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017

      Melissa Alfonso and Adam H. Sudbury, Apellie .Legal, Orlando, for Appellant.
    Diana B. Matson, Debbie Satyal and Joshua R. Levine of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for Appellee.
   COHEN, C.J.

Paul Archer appeals from a nonfinal order denying his motion to quash constructive service of process, in this foreclosure case. Because the nonfinal order did not determine personal jurisdiction over Archer, it is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), and this Court lacks jurisdiction. We therefore dismiss the appeal.

This case began when an in rem action to foreclose was filed against property that was subject to a mortgage executed by Archer. U.S. Bank National Association was ultimately substituted as party plaintiff in this case. After personal service was attempted on Archer, to no avail, U.S. Bank constructively served Archer by publication. Archer moved to quash the constructive service -based on- U.S. Bank’s alleged failure to comply with the. diligent search requirements set forth in sections 49.031 and 49.041, Florida Statutes (2013). The trial court denied the motion to quash. The court’s order does not refer to personal jurisdiction, and no assertion of personal jurisdiction was made in the trial court.

This Court has previously held that, absent a determination regarding personal jurisdiction, the denial of a motion to quash constructive service is not an appealable nonfinal order. See, e.g., Koniecpolski v. Stelnicki, 571 So,2d 577, 578 (Fla. 5th DCA 1990) (dismissing appeal because Florida Rule of-Appellate Procedure 9.130(a)(3)(C)(i) does not vest jurisdiction in this Court over nonfinal order denying motion to quash constructive service of process in foreclosure proceeding when order does not determine jurisdiction of the person), “The case law is clear . /. that constructive service by publication under [section 49.011(1), Florida, Statutes] cannot confer a court with jurisdiction over a person.” Milanick v. State, 147 So.3d 34, 35 (Fla. 5th DCA 2014). Rather, constructive service confers only in rem jurisdiction on the trial court. See Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla. 1986). Indeed, personal jurisdiction is not required to initiate a foreclosure action because foreclosure proceedings instituted against the subject property are in rem proceedings. See, e.g., NCNB Nat’l Bank of Fla. v. Pyramid Corp., 497 So.2d 1353, 1355 (Fla. 4th DCA 1986); see also § 49.011(1), Fla. Stat. (2013).

Additionally, Archer’s motion to dismiss, filed in conjunction with the motion to quash, alleged that dismissal was appropriate because the service was untimely under Florida Rule of Civil Procedure 1.070(j). However, “an order denying a motion to dismiss that is based on untimely service under rulel.070(j) is not an order which determines ‘jurisdiction of the person’ and therefore is not directly ap-pealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).” Traylor Bros., Inc. v. Shipman, 758 So.2d 91, 91 (Fla. 2000).

Thus, this Court lacks jurisdiction because the rules of appellate procedure do not permit review of this nonfinal order.

DISMISSED.

SAWAYA and EDWARDS, JJ., concur.

      . Conversely, if the plaintiff is seeking a deficiency judgment in a foreclosure proceeding, a trial court must have personal jurisdiction over the defendant. See Carter v. Kingsley Bank, 587 So.2d 567, 569 (Fla. 1st DCA 1991).


author: PER CURIAM. JACOBUS, B.W., Senior Judge,

text:
    Mark G. THOMPSON, Appellant/Cross Appellee, v. Alvaro E. AVILA, Appellee/Cross Appellant.
    Case No. 5D15-2152
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 31, 2017
    Caryn L. Bellus, and Barbara E. Fox, of Kubicki Draper, P.A., Miami, for Appellant/Cross Appellee.
    Ramsey Smathers of the Law Offices of Ramsey Smathers, P.A., Winter .Park, Shea T. Moxon,- of Brannock & Hum-phries, Tampa, and Michael V. Barszczj of Law Offices of Michael V. Barszcz, M.D., J.D., Winter Park, for Appellee/Cross Appellant,
   PER CURIAM.

AFFIRMED.

EVANDER and EDWARDS, JJ., concur.

JACOBUS, B.W., Senior Judge, dissents with opinion.

JACOBUS, B.W., Senior Judge,

dissenting.

This case is before us on an appeal from a negligence case in which Appellee, Alvaro Avila, obtained a verdict for $1.9 million. The verdict included $1,330,385.90 for future pain and suffering. The trial court issued a remittitur of the future pain and suffering damages by reducing the amount to $250,000. The remittitur was not accepted by either party. Accordingly,- the trial court granted a new trial on the issue of future pain and suffering. damages. The majority affirms the ruling by the order for a new trial on non-economic damages. I would reverse and remand for reinstatement of the verdict. The jury heard all the testimony regarding Appellee, Mr. Avila, and determined that his damages were $1.9 million, including the amount they found for future pain and suffering. A jury-has wide latitude on the determination of damages. Rety v. Green, 546 So.2d 410 (Fla. 3d DCA 1989). Unless there is something that influences the jury outside the record, in my view, this verdict should stand. See Arab Termite & Pest Control, Inc. v. Jenkins, 409 So.2d 1039 (Fla. 1982). The amount of damages in a civil case are well within the province of the jury. A verdict is not necessarily excessive because it is above the amount the court considered a jury should have allowed. Bould v. Touchette, 349 So.2d 1181 (Fla. 1977). “The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Id. at 1184.

I would reverse the order granting a new trial and remand to the trial court to reinstate the jury verdict.


author: PER CURIAM. PALMER, J.,

text:
    Dennis Michael WILKERSON, Appellant, v. Victoria Glasgow WILKERSON, Appellee.
    Case No. 5D16-1938
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017

      Dennis Michael Wilkerson, Butner, North Carolina, pro se.
    Heather M. Kolinsky, of HMKLaw, P.A., Orlando, for Appellee.
   PER CURIAM.

Dennis Wilkerson (“Father”) appeals from the final judgment dissolving his marriage to Victoria Glasgow Wilkerson (“Mother”). The trial court awarded sole parental responsibility of the parties’, minor children to Mother, granted her request to change the children’s surname, and ordered Father to pay child support. Father raises a number of issues on appeal, only one of which merits discussion. He argues that the trial court abused its discretion in ordering him to pay child support.

Prior to the dissolution of marriage, Father was convicted of two counts of knowingly attempting to persuade, induce, and entice a person believed to be a minor to engage in illicit sexual conduct. . He is currently serving a lengthy sentence in federal prison. The issue presented is whether the trial court abused its discretion by entering an initial child support order based on imputing income to Father, even though he is incarcerated.

Initially, we address Father’s argument that his due process rights were violated because he was “blindsided” by Mother’s request for child support at trial. Although Mother did not request child support in her petition for dissolution of marriage, contrary to Father’s assertion, the request for child support was listed as an issue for resolution in Mother’s pretrial statement. Likewise, Father’s pretrial statement addressed the child support issue, indicating that he was presently unable to afford child support. Father does not argue that he objected to the issue of child support at trial; further, we do not have a transcript of the trial reflecting any objection. Thus, Father cannot establish that the trial court violated his due process rights in considering the child support issue. See Clark v. Clark, 147 So.3d 655, 658 (Fla. 5th DCA 2014) ("When a pleading fails to make a specific demand, courts will accept the issue as being ‘tried by implied consent’ where a pre-trial statement raises the issue and the other party fails to object at the hearing.”).

As to the child support order, this case presents an issue of first impression in our Court and an issue that has divided other jurisdictions. Two of our sister courts have considered the question and reached opposite conclusions. See Dep’t of Rev. v. Llamas, 196 So.3d 1267 (Fla. 1st DCA 2016); McCall v. Martin, 34 So.3d 121 (Fla. 4th DCA 2010).

The Florida Supreme Court addressed the related issue of modification of a preexisting child support award in Department of Revenue v. Jackson, 846 So.2d 486 (Fla. 2003). Specifically, the Court addressed “whether a court should permit a parent to have a preexisting support obligation modified or suspended based upon an inability to fulfill the financial support obligation during a period of imprisonment.” 846 So.2d at 488. The Court determined that an incarcerated individual is not entitled to an automatic modification based on a reduction in income resulting from the incarceration. Id. at 494. Rather, the Court held that: (1) an incarcerated parent may file a petition to modify the support obligation; (2) the trial court will hold the petition in abeyance throughout the period of incarceration; and (3) the “support installments, although still outstanding according to the original payment schedule, do not accrue as a vested interest of the child to be reduced to judgment which cannot be altered.” Id. at 491.

Subsequently, in McCall, the Fourth District addressed whether Jackson applies to setting an initial support obligation for an incarcerated parent, based on an imputation of income. 34 So.3d 121. In McCall, the appellant committed a domestic battery on his wife and was sentenced to prison for that offense. Id. at 121. The trial court declined to impute income for purposes of establishing an initial child support award because the appellant had no monthly income as a result of his incarceration. Id. at 122. In reversing, the Fourth District held that “income should be imputed ... so that the arrearages can accumulate until he is able to earn an income.” Id. at 123. The court held that upon release, the trial court should comply with the procedural guidelines set forth in Jackson. See id. (“[I]ncome should be imputed to the father so that the arrearages can accumulate until he is able to earn an income. When release occurs, the court should establish a payment plan to reduce arrearages according to his earning ability, setting a payment plan.”).

Conversely, in Llamas, 196 So.3d at 1270-71, the First District found that neither section 61.30(2)(b), Florida Statutes, nor Jackson require or permit the imputation of income to an incarcerated parent when the incarceration results in a present inability to pay child support. Rather, the court held that Jackson was limited to modification of support orders. 196 So.3d at 1269-70. The court cited Justice Par-iente’s separate opinion in Jackson and upheld an administrative law judge’s refusal to impute income to an incarcerated parent. Id. at 1270-71. The court held that a trial court should not impute income to an incarcerated parent in order to set an initial child support obligation without a demonstrable ability to pay, or applicability of the doctrine of unclean hands. Id. at 1270-71 & n.2. In doing so, the First District certified conflict with McCall. Id. at 1271.

The decision whether to impute income ■ to an incarcerated parent in order to establish an initial child support obligation raises competing policy concerns — the obligation of a parent to provide support for his or her children versus an incarcerated individual’s inability to pay. Although in most instances a parent without the ability to pay will not be ordered to pay child support, the child support guidelines allow for imputation of income if the evidence demonstrates that the obligor’s “unemployment or underemployment is voluntary.” § 61.30(2)(b), Fla. Stat. (2015).

We believe that an individual’s actions that lead to incarceration are voluntary for purposes of the statute. See, e.g., Mascola v. Lusskin, 727 So.2d 328, 332 (Fla. 4th DCA 1999) (holding father’s conduct leading to incarceration was voluntary for purposes of chapter 61); see also Div. of Child Support Enf't, ex rel. Harper v. Barrows, 570 A.2d 1180, 1183 (Del. 1990) (affirming trial court’s holding that “incarceration is .a foreseeable.result of criminal activity and does not ipso facto relieve one of the obligation to pay child support”); Koch v. Williams, 456 N.W.2d 299, 301 (N.D. 1990) .(deeming appellant’s incarceration to be “self-induced and voluntary”); Proctor v. Proctor, 773 P.2d 1389, 1391 (Utah Ct. App. 1989) (“[A]n able-bodied person who stops working, as an exercise of .personal preference or as a result of punishment for an intentional criminal act, nonetheless retains the ability to earn and the duty to support his or her children.”). We do not think that section 61.30 was intended to operate as a shield tó avoid having an initial support obligation established while the parent is incarcerated. Indeed, “the duty to support one’s children pre-exists other duties voluntarily assumed or imposed by law. It exists as a result of parenthood and came into force before any criminal conviction.” Mascola, 727 So.2d at 332.

The majority opinion in Jackson noted that a child’s best interests are not served where the obligor “is unable to fulfill his or her support obligations while in prison.” 846 So.2d at 493. Jackson recognized the distinction between an award of child support and the practical limitations on the enforcement of that award when a parent is incarcerated, However, the court refused to categorically allow modification of support obligations based on an incarcerated parent’s inability to pay. Id. at 494. Rather, the court formulated a procedure for addressing the modification of previously ordered child support during a prisoner’s period of incarceration. Id. at 491,

It would be inconsistent to allow an incarcerated parent’s child support obligation, which was set before incarceration, to continue to accrue until the parent’s release from prison, and yet not allow the trial court, to initially set a minimum amount of child support for an individual who is already incarcerated. To preclude an initial award of child support that would accrue during the period of a parent’s incarceration would deprive a child of the support to which he or she is entitled.

Accordingly, we hold that a trial court does not abuse its discretion in setting an initial child support obligation by imputing income to an incarcerated parent. We affirm the trial court’s decision to do so in this case; we align ourselves with the Fourth District in McCall and certify conflict with the First District in Llamas.

AFFIRMED; CONFLICT CERTIFIED.

COHEN, C.J., and WALLIS, J., concur.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent because I disagree with the majority’s conclusion that a trial court possesses the authority to impute income to an incarcerated parent when setting an initial child support obligation.

“[A] court cannot order a parent to pay child support which that parent cannot afford to pay.” Alois v. Alois, 937 So.2d 171, 175-76 (Fla. 4th DCA 2006). Section 61.30 (2)(b) of the Florida Statutes (2015) imposes upon the parent seeking to impute income to the other parent the burden to present substantial competent evidence that identifies the “source of the imputed income” based on available employment. As such, without a demonstrated ability to pay, a court is not authorized to impute income to an incarcerated parent when imposing an initial child support obligation. As this court held in Hogle v. Hogle, 535 So.2d 704 (Fla. 5th DCA 1988):

In order to impute income, the trial judge must find that the parent owing a duty of support has the actual ability to earn more than he or she is currently earning, and that he or she is deliberately refusing to work at that higher capacity to avoid support obligations.

Id. at 705. Similarly, in Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996), the Second District reversed a child support order based on the amount that the father was earning prior to incarceration, stating:

A court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts.

679 So.2d at 3 (internal quotation marks omitted); see also Strassner v. Strassner, 982 So.2d 1224, 1225 (Fla. 1st DCA 2008); Koeppel v. Holyszko, 643 So.2d 72, 75 (Fla. 2d DCA 1994).

I agree with the decision in Department of Revenue v. Llamas, 196 So.3d 1267 (Fla. 1st DCA 2016), and with the decisions in other jurisdictions which have held that trial courts cannot impute income to an incarcerated individual absent a showing of the ability to pay. See e.g. Lambert v. Lambert. 861 N.E.2d 1176, 1180 (Ind. 2007). (concluding that imputing income to incarcerated individual is improper, but allowing imposition of minimal support order as authorized by Indiana statute); State v. Porter, 259 Neb. 366, 610 N.W.2d 23, 29 (2000) (concluding trial court abused its discretion in setting initial support obligation based on “earning capacity” that the appellant would not have during incarceration); Lewis v. Lewis, 637 A.2d 70, 73 (D.C. 1994) (vacating child support order of $50 per month for incarcerated father, noting his “income while in prison will be ‘essentially nothing.’ ”).

In sum, absent a demonstration of ability to pay, the trial court lacks the authority to impute income for the purpose of establishing an initial child support obligation.

      . See, e.g., Drew A. Swank, Enforcing the Unenforceable: Child Support Obligations of the Incarcerated, 7 U.C. Davis J. Juv. L. & Pol’y 61, 63 (2003) (compiling authority and discussing differing jurisdictional approaches to setting or modifying child support obligations for incarcerated parents); Karen Rothschild Cavanaugh & Daniel Pollack, Child Support Obligations of Incarcerated Parents, 7 Cornell J.L. & Pub. Pol'y 531, 534 (1998) (discussing impact of incarceration on child support obligations, modifications of obligations, and considerations regarding changes in circumstances and ability to pay); Frank J. Wozniak, Loss of Income Due to Incarceration as Affecting Child Support Obligation, 27 A.L.R.5th 540 (1995) (reviewing different state procedures for addressing, setting, and modifying child support obligations for incarcerated parents).

      . In Jackson, Justice Pariente wrote, "The Department of' Revenue ... acknowledges that if the initial child support obligation is •. established at the time that the parent is incarcerated, then it would be error to impute income to that parent without showing an independent source of income.” Jackson, 846 So.2d at 498 (Pariente, J., concurring in part and dissenting in part).

      . The facts of the instant case are illustrative. Father is currently serving a seventeen-year sentence in federal prison. Absent the imposition of an initial support obligation while he is incarcerated, the trial court would be precluded from awarding child support for the period of his incarceration if Mother was required to file the petition after his release. See, e.g., § 61.30(17), Fla. Stat. (allowing initial determination of child support to be awarded retroactively to date when parents no longer resided together, but limiting the time period for recovery to twenty-four months prior to filing the petition). In this case, each of the parties’ children will be over the age of eighteen by the time Father is released from incarceration. See Larwa v. Dep't of Rev. ex rel. Roush, 169 So.3d 1285, 1285 (Fla. 5th DCA 2015) ("Generally, a parent's child-support obligation ceases when the child turns eighteen."); Campagna v. Cope, 971 So.2d 243, 249 (Fla. 2d DCA 2008) (limiting section 61.30(17) petition for retroactive child support to "those months within the preceding twenty-four months when the child was a minor”).