author: DAMOORGIAN, J.

text:
    Clalibeltha CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3094.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2016.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Defendant, Clalibeltha Charles, appeals the revocation of her probation for technical violations and commission of a new law violation, and the resulting 40.5 month prison sentence. After carefully reviewing the record, we hold that the evidence against Defendant was insufficient to support the conclusion that she willfully violated the terms of her probation. See Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006) (“It is well-settled that probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.”).

Factual Background

While Defendant was on probation, her probation officer filed an Affidavit of Violation, alleging that she violated her probation by: 1) failing to successfully remain in drug/alcohol treatment until the provider determines that treatment is no longer necessary; 2) changing her residence without procuring the consent of the probation officer; and 3) failing to live and remain at liberty without violating any law by being cited for driving without a license.

At the violation of probation (“VOP”) hearing, the court heard testimony from Defendant and her probation officer. With respect to the first basis alleged in the VOP affidavit, the probation officer testified that she received notice from Defendant’s treatment center that Defendant was unsuccessfully discharged from its program after she missed two scheduled sessions. The probation officer did not provide further details regarding the missed sessions.

In reference to Defendant’s change of address, the probation officer testified she discovered Defendant moved after she went to Defendant’s last known residence, a pay by the week motel, to conduct a home visit upon learning that the Department of Children and Families (“DCF”) had sheltered one of Defendant’s children. At that time, the motel manager informed the officer that Defendant was no longer staying at the hotel. The officer was not able to contact Defendant because Defendant did not have a working telephone. Defendant reported to her probation meeting eleven days later, at which time Defendant provided the officer with a new address.

The officer did not provide any testimony as to the charge that Defendant failed to live and remain at liberty without violating any law by being cited for driving without a license and the State did not present any additional evidence on this charge.

Defendant did not deny that she was discharged from her treatment program nor that she moved without giving prior notice. However, she provided testimony establishing that both alleged violations were influenced by outside conditions. With respect to her treatment program discharge, Defendant explained that she actually tried to attend both of her missed sessions but was turned away by the facility both times. The first time, she was turned away because she had her two infant children with her. Defendant testified that she had to bring her children because she had no one to watch them and had no money to pay for childcare. Defendant was able to secure childcare for her next appointment, but was again turned away because she was five minutes late. Defendant explained that her tardiness was the result of waiting on the babysitter.

With respect to the change in her residence, Defendant testified that she was abruptly evicted from the motel she was staying at after she could not come up with the weekly rent. Defendant did not immediately let her probation officer know about the change in residence because she did not have a phone and was temporarily homeless and without a new address to report. As the result of her displacement, one of Defendant’s children went to stay with the child’s father and the other was taken into DCF custody. Defendant stated that she informed her probation officer of her new address as soon as she secured a place to stay.

At the conclusion of the presentation of the evidence, the court orally pronounced its finding that Defendant willfully violated the terms and conditions of her probation by failing to notify her probation officer of where she was living and by failing to complete the drug treatment program. It then revoked Defendant’s probation and sentenced her to 40.5 months in prison on the underlying convictions for which Defendant was on probation. In its written order of revocation, the court found that Defendant violated all three conditions outlined in the State’s VOP affidavit. This appeal follows.

Analysis

“ ‘For a violation of a condition of probation to trigger a revocation, the violation must be willful and substantial, and the state must prove it by the greater weight of the evidence.’ ” Myers v. State, 931 So.2d 1069, 1071 (Fla. 4th DCA 2006) (quoting Tobias v. State, 828 So.2d 1066, 1068 (Fla. 4th DCA 2002)). “This court reviews trial court decisions on violations of probation under an abuse of discretion standard.” Id.

Discharge from Treatment Center

“A revocation based on the failure to complete a rehabilitation program must be shown to be the probationer’s fault.” Rainer v. State, 657 So.2d 1230, 1230 (Fla. 4th DCA 1995). Accordingly, “[i]f a probationer makes reasonable efforts to comply, his failure will not be considered willful.” Thomas v. State, 672 So.2d 587, 589 (Fla. 4th DCA 1996).

Here, the only evidence establishing why Defendant missed her sessions and was therefore discharged from her treatment program came from Defendant herself. She testified that on both occasions she showed up to her sessions, but was turned away after she brought her children and then after she was five minutes late as a result of trying to secure childcare. This evidence established that Defendant made reasonable efforts to attend her treatment sessions but was thwarted by her childcare issues. Defendant’s circumstances fall in line with eases wherein the courts have held that the probationer did not willfully violate probation. Thomas, 672 So.2d at 589 (trial court abused its discretion in finding that probationer willfully violated term of probation by being discharged from treatment center when discharge was the result of the probationer missing curfew due to a flat tire); Rainer, 657 So.2d at 1230 (reversing revocation of probation based on probationer’s failure to complete rehab treatment where probationer’s unconverted testimony established that his Crohn’s disease “interfered with his ability to follow instructions” and led to his discharge).

Because the uncontroverted evidence established that Defendant attempted to attend her scheduled sessions but was turned away and discharged from her treatment program due to her childcare issues, the court abused its discretion in finding that Defendant s violation was willful.

Change of Address

As to the charge that Defendant changed her address without obtaining the consent of her probation officer, we focus our attention on whether Defendant’s failure to obtain such permission was willful. Our Court has previously held that when a probationer becomes displaced from his/ her residence with little notice and is made temporarily homeless, the probationer’s failure to procure permission to change residences cannot be considered a willful violation of probation. See, e.g., Williams v. State, 896 So.2d 805, 806 (Fla. 4th DCA 2005) (record did not support court’s revocation of probation based on failure to obtain approval before changing address because evidence established that appellant was forced to leave his residence and was living on the street); see also Van Wagner v. State, 677 So.2d 314, 316-17 (Fla. 1st DCA 1996) (failure to provide new address when temporarily homeless was not willful noncompliance with term of probation). By our holding, we do not suggest that a probationer can never be charged with willfully violating his/her probation by becoming temporarily homeless. However, in this case, the State failed to present any evidence that Defendant became homeless due to any intentional conduct.

New Law Violation for Driving Without a License

As discussed above, in its written order, the court found that Defendant violated a term of her probation by being cited for driving without a license. However, the State did not mention this ground or submit any evidence proving it at Defendant’s VOP hearing.

Conclusion

In sum, we conclude that Defendant’s testimony established her violations of probation were not willful and substantial, and the State did not present any evidence to the contrary. Accordingly, we reverse the revocation of probation and sentence, and remand to the circuit court for reinstatement of probation.

Reversed.

CIKLIN, C.J., and MAY, JJ„ concur.


source: Caselaw Access Project

author: LUCAS, Judge.

license: Public Domain

text:
    Brian THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1986.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2016.

      Joseph C. Bodiford of Bodiford Law, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa; and Johnny T. Salgado, Assistant Attorney General, Tampa, substituted as counsel of record, for Appellee.
   LUCAS, Judge.

Following a jury trial, Brian Thomas was convicted and sentenced on one count of traveling to meet a person to solicit a child to commit a sexual act under section 847.0135(4)(b), Florida Statutes (2012) (count I), one count of using a computer to solicit a person to commit a sexual act on a child in violation of section 847.0135(3)(b) (2012) (count II), and one count of attempted lewd or lascivious battery under sections 800.04(a) and 777.04 (2012) (count III). He raises several issues in his appeal, but we find merit in only one, the denial of his motion for arrest of judgment and motion to dismiss count II of the information.

' Both counts I and II stemmed from the same course of conduct on the part of Mr. Thomas, who, by his own admission, was searching for a sexual liaison on Craigslist when he happened across a posting from what turned out to be an undercover Florida Department of Law Enforcement Agent posing as the online mother to fictional, minor-aged children. The operative information underlying Mr. Thomas’ charges and criminal proceedings alleged, in count II, that Mr. Thomas, “on or about March 19, 2013, through March 22, 2013,” used a computer online service to solicit the undercover agent for the purpose of engaging in unlawful sexual activity with minor children. Count I of the operative information alleged that Mr. Thomas then traveled on March 22, 2013, in order to solicit the agent for the purpose of engaging in unlawful sexual conduct with the children. The State does not describe any temporal break between Mr. Thomas’ sustained and increasingly lurid text messages and online communications soliciting the FDLE agent from March 19 through March 22 and his driving to meet the agent at an agreed upon location on March 22.

As such, Mr. Thomas is correct that his convictions for traveling to solicit under count I and solicitation under count II, under these facts, encompassed the same criminal conduct and violated the constitutional prohibition against double jeopardy. See State v. Shelley, 176 So.3d 914, 919 (Fla.2015) (“Based on the plain language of section 847.0135, we hold that the [ljegisla-ture has not explicitly stated its intent to authorize separate convictions and punishments for conduct that constitutes both solicitation under subsection (3)(b) and traveling after solicitation under subsection (4)(b).”); Mahar v. State, 190 So.3d 1123, 1125 (Fla. 2d DCA 2016) (“[T]he supreme court in Shelley considered and rejected the State’s argument that the legislature intended to allow for multiple convictions that treat each instance of online communication as a separate offense, thereby also allowing for a conviction for both the communications and traveling for the same conduct.”); Meythaler v. State, 175 So.3d 918, 920 (Fla. 2d DCA 2015) (“Accordingly, Mr. Meythaler’s convictions and sentences for solicitation and traveling after solicitation based upon the same conduct impermissibly place him in double jeopardy.”). We must, therefore, reverse Mr. Thomas’ conviction and sentence for solicitation under count II and remand for the circuit court to vacate the conviction and sentence as to that count.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: CIKLIN, C.J.

text:
    Lenncy W. JEUDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2767.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2016.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, C.J.

Appellant Lenncy Jeudy appeals his conviction and prison sentence for grand theft of a firearm under section 812.014, Florida Statutes (2014), a third-degree felony. Among other issues, Jeudy asserts that the trial court erred by instructing the jury as to a conditional statutory presumption that would permit a jury to infer that an individual knew or should have known that certain property had been stolen. We agree with Jeudy and reverse his conviction with instructions to afford him a new trial.

On January 29, 2014, law enforcement officers from the Hallandale Beach Police Department responded to reports of nearby gunshots. After witnesses directed them to a specific apartment, officers knocked on the front door and announced their presence, and, after no answer following multiple attempts, gained access and entered the apartment. Inside, the officers found Jeudy in the front bedroom, and his girlfriend in the back bedroom. Jeudy was immediately taken into custody as directed by the protocol of this police department.

Officers conducted a protective sweep of the inside of the apartment, where they found a 20-gauge Remington shotgun situated in an air vent. The firearm had been severed into two pieces, leading the officers to conclude the act of breaking the weapon down to pieces was done to aid concealment. After cross-referencing its serial number with a stolen items database, the officers determined the shotgun had been reported stolen approximately one year prior. The state ultimately charged Jeudy with grand theft of a firearm.

Testifying for the state at trial, Jeudy’s now ex-girlfriend stated that Jeudy purchased the gun several weeks before the night of his January 29th arrest, paying either $60 or $75 with cash she had given him. She also testified that Jeudy was in possession of the firearm at some point during the night and that he placed it in the air vent.

The state’s final witness testified that in October, 2013, he reported to law enforcement that his house was burglarized and, among other items of personal property, his firearms were stolen. The serial number for one of the firearms matched the shotgun found in Jeud/s air vent on the night of January 29, 2014. The witness testified that he paid about $500 to $600 for that particular shotgun.

At the appropriate times, Jeudy twice moved for judgment of acquittal and the trial court denied both motions.

The court then instructed the jury. At the state’s request and over defense objection, the court gave the following instruction:

Proof of the purchase or sale of stolen property at a price substantially below the fair market value unless satisfactorily explained gives rise to an inference that a person buying or selling the property knew or should have known that the property had been stolen.

In arguing against inclusion in the instructions, Jeudy asserted that the state never proved the fan' market value of the shotgun at the time Jeudy purchased it, thereby logically precluding the subject inference instruction. Therefore, Jeudy argued before the trial court and now argues before us, there was no factual basis for the jury to consider the question as to whether Jeudy purchased the shotgun “substantially below” fair market value.

We review a trial court’s decision on jury instructions for abuse of discretion. Bozeman v. State, 931 So.2d 1006, 1008 (Fla. 4th DCA 2006).

A conviction for theft requires the state to prove the following elements beyond a reasonable doubt: (1) the defendant knowingly obtained or used; (2) another person’s property; and (3) with the intent to temporarily or permanently either, (a) deprive the owner’s right to, or benefit from, the property, or (b) appropriate the property to his or her own use. See Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996). The statute enhances the offense to grand theft in the third degree when the stolen property is, among other items, a firearm. § 812.014(2)(c)5., Fla. Stat. (2014).

Principally at issue is the state’s underlying burden of proof that the appellant knowingly obtained or used the subject shotgun. Section 812.022(3), Florida Statutes (2014), creates the statutory inference that the trial court used here. We must conclude that the statute reveals an inherent ambiguity: While it allows a jury to infer guilt when a defendant purchases or sells stolen property “substantially below” its fair market value, it does not provide a definition of when fair market value is to be determined so as to give necessary meaning and context to the inference.

The First District has addressed this statute on a few occasions. In Barfield v. State, 613 So.2d 507 (Fla. 1st DCA 1993), the defendant was charged with grand theft of fishing equipment. Id. at 507. At trial, the state presented evidence of the value of a particular fishing net when it was new (about $135) and the defense presented evidence that the defendant paid $10 for it. Id. However, as the First District noted: “No concrete evidence of the net’s current fair market value [i.e. at the time the defendant purchased it] was offered at trial.” Id. At the end of trial and over the defendant’s objection, the trial court instructed the jury on the fair market value statutory presumption. Id. Our sister district reversed and remanded for a new trial. Id. at 508 (“[Considering the lack of proof of the net’s current fair market value, the evidence was insufficient to support the giving of the challenged instruction.” (emphasis added)).

Not many other Florida courts have addressed this issue and Barfield has become the leading case in a relatively thin line of case law addressing this statute. See also Hadley v. State, 152 So.3d 848, 849 (Fla. 1st DCA 2014); Dawson v. State, 66 So.3d 1077, 1077-78 (Fla. 1st DCA 2011).

However — it should be noted — that in April 2016, when amending the Florida Standard Jury Instructions in Criminal Cases, the Florida Supreme Court added the following language to the subject section concerning the fair market value statutory presumption: “Do not give unless there is evidence of the- fair market value of the stolen property” and then cites to Barfield. In re Standard Jury Instructions in Criminal Cases-Report No. 2015-04, 190 So.3d 614, 621 (Fla.2016). While the plain language of this amendment may not expressly resolve the clear ambiguity contained in the statute, we think the supreme court’s reliance on Barfield acknowledges the First District’s rationale,

Accordingly, we agree with the holding in Barfield and apply its definition of the point in time when fair market value is to be determined prior to permitting a jury to infer that a defendant “knowingly” took another’s property. We hold that the state must prove the fair market value of a stolen item (to which the state seeks application of the statutory presumption) at the point in time when the defendant purchased it.

In the instant case, while the state presented evidence as to the amount the victim paid for the shotgun, it did not present evidence related to the fair market value of the shotgun when Jeudy purchased it. Without that required evidence, there is no viable method for a finder of fact to ever legally conclude that the price paid by a defendant charged with theft was “substantially below” an item’s fair market value.

As the court was in Barfield, “we are concerned that this instruction amounts to an improper comment on the evidence by the trial judge and thereby invades the province of the jury,” Barfield, 613 So.2d at 508. For that reason, we must conclude the trial court here erred.

Reversed and remanded for a new trial.

LEVINE and FORST, JJ., concur.


author: PER CURIAM.

text:
    Phillip B. ISAN, Petitioner, v. Jill R. ISAN, Respondent.
    Case No. 5D16-3867
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 6, 2016

      Douglas H. Reynolds, Stephanie D. Alexander, Henny L. Shomar and Stephanie C. Mazzola, of Tripp Scott, P.A., Fort Lauderdale, for Petitioner.
    Wayne F. Jentis, of Law Offices of Wayne F. Jentis, Melbourne, for Respondent.
   PER CURIAM.

Phillip Isan (Petitioner) petitions this court for a writ of prohibition to disqualify the Honorable Robert Wohn from presiding over Petitioner’s marital dissolution case against Jill Isan (Respondent). We grant the petition.

“Prohibition lies to review trial court orders denying motions to disqualify trial judges.” Martin v. State, 804 So.2d 360, 362 (Fla. 4th DCA 2001) (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla. 1990)). Motions to disqualify are governed substantively by section 38.10, Florida Statutes (2016), and procedurally by Florida Rule of Judicial Administration 2.330. See Krawczuk v. State, 92 So.3d 195, 200 (Fla. 2012) (citing Parker v. State, 3 So.3d 974, 981 (Fla. 2009)). This rule provides that a motion to disqualify “shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.” Fla. R. Jud. Admin. 2.330(e). Pursuant to this rule, a judge against whom an initial motion to disqualify has been directed shall determine only the legal sufficiency of the motion without passing on the truth of the facts alleged. Fla. R. Jud. Admin. 2.330(f). The legal sufficiency of the motion turns on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial hearing. See MacKenzie, 565 So.2d at 1335; Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983). This Court has written:

If the grounds asserted in a motion for disqualification are legally sufficient to create a well-founded fear in the mind of a party that he or she will not receive a fair trial, it is incumbent upon a judge to disqualify herself. To determine whether the motion is “legally sufficient,” this Court must resolve whether the alleged facts, which, accepted as true, would prompt a reasonably prudent person to fear that she could not get a fair and impartial trial before that judge. An affiant’s mere subjective fear is insufficient to form the basis for disqualification.

Chace v. Loisel, 170 So.3d 802, 803 (Fla. 5th DCA 2014) (citations omitted).

Here, Petitioner argues that the petition should be granted because his disqualification motion was timely and legally suffi-dent in light of case law addressing ex parte communications. See Rose v. State, 601 So.2d 1181, 1183 (Fla. 1992) (“Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.”); Klapper-Barrett v. Nurell, 742 So.2d 851, 853 (Fla. 5th DCA 1999) (reiterating that there is a strong public policy against ex parte communications between a judge and litigant). We agree.

Petitioner’s motion alleged the trial judge engaged in ex parte communications with Respondent on several occasions before entering a Final Judgment nearly identical to Respondent’s proposed final judgment, including awarding attorney’s fees. This is sufficient on its face to demonstrate that a reasonably prudent person would be in fear of not receiving a fair and impartial hearing. Accordingly, the writ of prohibition shall issue, and Judge Wohn is disqualified from further participation in this case.

PETITION GRANTED; WRIT ISSUED.

ORFINGER, BERGER and WALLIS, JJ., concur.


author: Per Curiam.

text:
    Jennifer WHITE, Appellant, v. Michael BUTTS, Appellee.
    No. 4D15-4646
    District Court of Appeal of Florida, Fourth District.
    December 7, 2016
    Jennifer White, Miami Gardens, pro se.
    No appearance for appellee.
   Per Curiam.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).

Taylor, Forst and Klingensmith, JJ., concur.


text:
    Roy Lynn FOREHAND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2580
    District Court of Appeal of Florida, First District.
    Opinion filed December 12, 2016.
    Roy Lynn Forehand, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We previously affirmed the summary denial of the appellant’s postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.800(a), but retained jurisdiction for consideration of the imposition of sanctions.

The appellant has failed to obtain relief in at least nine cases he filed in this court to challenge this judgment and sentence. This is his fifth postconviction motion challenging the scoring of his prior conviction for murder. Accordingly, we ordered the appellant to show cause why he should not be prohibited from future pro se filings challenging this judgment and sentence. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). The appellant’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Therefore, because the appellant’s repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in the court concerning Bay County Circuit Court case number 1986-CF-1247. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar.

B.L. THOMAS, RAY, and OSTERHAUS, JJ., CONCUR.


author: SALTER, J.

text:
    FAR NIENTE, LLC, etc., et al., Petitioners, v. CITY OF KEY WEST, et al., Respondents.
    Nos. 3D16-2350 & 3D16-2348
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016
    Rehearing Denied January 17, 2017

      The Smith Law Firm and Wayne LaRue Smith and Brett Tyler Smith; Easley Appellate Practice PLLC and Dorothy F. Easley; Shannin Law Firm and Nick Shannin (Orlando), for petitioners.
    Ronald J. Ramsingh, Chief Assistant City Attorney; Smith Oropeza Hawks, P.L. and Barton W. Smith and Ashley N. Sybesma, for respondents.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   SALTER, J.

These consolidated petitions for certio-rari involve certificates of appropriateness issued by the Historic Architectural Review Commission (“HARC”) of the City of Key West for partial demolition of (our Case No. 3D16-2350), and additions to (our Case No. 3D16-2348), a traditional frame house in the City’s historic district. After hearings before the HARC, issuance of the certificates of appropriateness, further challenges and proceedings before a Special Magistrate, and the consideration and denial of first-tier petitions for certio-rari by the appellate division of the Circuit Court for Monroe County, the petitioners seek second-tier certiorari hei-e. Applying the extraordinary requirements applicable to such petitions, we deny them on the merits.

Facts and Procedural History

The petitioners are entities and persons who object to the applications filed with the HARC by the individual owners of 616 Eaton Street, a residence on a site of approximately 19,000 square feet in the Key West historic district. The owners (respondents here, together with the City) are Mark and Kristina Serbinski. The owners purchased the property from one of the petitioners (Far Niente, LLC, a Minnesota limited liability company, whose principals are Dana and Stan Day); other petitioners are residents and business owners in the area.

In June 2015, the Serbinskis filed an application for HARC approval of a project to include “renovation of historic house, demo rear additions, add new addition, new residence in rear of property with pool & site work.” Detailed plans prepared by a Key West architect were attached. After review of the application and plans by HARC staff and various revisions, in July 2015 a HARC assistant planner detailed the applicable historic guidelines (including applicable Standards for Rehabilitation promulgated by the United States Secretary of the Interior) and the staff recommendations in a memorandum to commission members:

Consistency with Guidelines
1. The renovations to this historic house are consistent with the guidelines. The proposed design will restore the house, which is much needed. The site work is also consistent with the guidelines.
2. The new one-story, L-shaped addition on the historic house will not alter or expand the historic in a manner that will conceal its character-defining features. The additions are attached to less publicly visible secondary elevations. The additions will be clearly differentiated from the historic house.
3. The applicant has reworked the proposed house to break up the one large house into three smaller masses with small connectors. Providing a map showing the massing of the adjacent structures, the architect has shown that the neighboring lots often comprise [sic] of multiple buildings, many of which are at least two stories. Having shown the context of the neighborhood in terms of its scale and massing, this new design is more consistent with the guidelines in regards to new construction.
It is staffs opinion that the renovations to historic house, the new addition, and the second house are consistent with the guidelines. This is a unique lot where there is ample space to construct a new residence behind the historic house. Although the proposed house is very large, the applicant has worked to break up the massing so that it is compatible with the adjacent structures and will not outsize the neighborhood.

The HARC certifícate of appropriateness for the design of the project was approved on July 28, 2015, and appealed ten days later. The demolition application was approved on September 29, 2015, and appealed the following day. Each appeal was directed to a Special Magistrate, and the differences in timing resulted in separate case numbers, briefing, hearings, orders, and subsequent petitions to the circuit court and this Court.

As specified by the City Code, the Special Magistrate conducted hearings and de novo reviews in each of the appeals. On September 14, 2015, the Special Magistrate issued a written order affirming the HARC decision on the design application, concluding that the City’s applicable historic architectural guidelines were properly applied. On October 21, 2015, the Special Magistrate affirmed the HARC approval of the demolition incident to the Serbinskis’ application.

The petitioners then petitioned for cer-tiorari in the appellate division of the circuit court for Monroe County. After the submission of responses and further hearings, the circuit court entered separate, nine-page orders in each of the cases denying the petitions. The petitions to this Court followed. The petitioners also sought an emergency motion for stay in both cases. The trial court denied the motions filed in the circuit court, concluding that the mandates had issued and that the court lacked jurisdiction to issue a stay. We entered a temporary stay pending further order of this Court on October 19, 2016, in each of the consolidated cases.

Analysis

Although we will address the petitions under the principles established by the Florida Supreme Court for second-tier certiorari petitions, it should be noted that the City’s ordinance allows for an additional level of review by the special magistrate, such that our review is actually a third bite at the apple regarding the HARC determinations, following prior consideration by the special magistrate and the circuit court appellate division.

In Custer Medical Center v. United Auto Insurance Co., 62 So.3d 1086, 1092 (Fla. 2010), the Florida Supreme Court addressed the history of second-tier certio-rari, emphasizing that review is to become narrower, not broader, as a case moves to higher levels of appellate review. The issues presented for review are “not to be reinvestigated, tried, and determined upon the merits generally as upon appeal at law or writ of error.” Id. at 1093 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525-26 (Fla. 1995)). Custer summarized the strict legal requirements for consideration of a second-tier petition (“something more than a simple legal error;” “when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice;” “an illegal or irregular act;” “grievous errors”). Custer, 62 So.3d at 1092.

Turning to the petitions in this case, HARC, the special magistrate, and the circuit court afforded procedural due process to the petitioners, observed the essential requirements of law, and reached decisions based, according to the circuit court, on substantial competent evidence. The City established HARC as an agency to bring special expertise to the review of applications and permits in its historic district. Here, as with any agency given municipal or state authority to regulate a particular subject matter, HARC’s interpretation of the guidelines warrants deference:

An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference. See Bellsouth Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla. 1998). Further, a court will not depart from the contemporaneous construction of a statute by a state agency charged with its enforcement unless the construction is “clearly erroneous.”

Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla. 2002).

We do not find that HARC’s interpretation and application of the guidelines to the proposed demolition and the building project plans were clearly erroneous.

In the circuit court, the petitioners belatedly raised one additional issue. The petitioners filed a notice of supplemental authority after the initial ruling by the court “bringing to the circuit court’s attention a binding appellate circuit court opinion raising significant due process issues.” The petitioners argued below and here that the Monroe County Circuit Court Appellate Division’s opinion in June 2016 in Andrews v. KWSC, Inc. d/b/a/ Adult Entertainment Club, No. 2014-AP-6-K (Fla. 16th Cir. Ct. June 22, 2016), granted cer-tiorari in a case based on a determination that the Assistant City Attorney could not act as both advocate for, and advisor to, the City and to the special magistrate in a proceeding. Relying on that decision and other “dual role” cases, particularly Cherry Communications, Inc. v. Deason, 652 So.2d 803 (Fla. 1995), the petitioners alleged that the special magistrate acted in .a judicial function, such that the Assistant City Attorney could not both advise HARC and the special magistrate and simultaneously defend the HARC decision on behalf of the City.

In Cherry, the Florida Supreme Court vacated a Public Service Commission order in an adversary proceeding in which “a Commission attorney served as the prosecutor,” and another Commission attorney “served as the Commission’s legal advis- or.” Id. at 803. The Court held that this was a violation of due process in a quasi-judicial procedure in which “the decision-maker must not allow one side in the dispute to have a special advantage in influencing the decision.” Id. at 805.

We reject the petitioners’ “dual role” argument, however, because the special magistrate and circuit court in this case neither sought nor received advice from an Assistant City Attorney, and the adversarial proceedings in Andrews (code enforcement violations) and Cherry (revocation of a certificate to provide long-distance telephone interexchange services in Florida) were distinguishable from the demolition and design permitting decisions. The City’s Assistant City Attorney did not represent the City before the HARC, nor did it advise the special magistrate. In this case, the special magistrate was not an enforcement board empowered to impose fines or other penalties.

For all these reasons, we deny each of the petitions on the merits.

      . The City’s applicable ordinances provide that HARC decisions may be reviewed by appeal to the City’s Special Magistrate. City of Key West, Fla., Code § 90-428 (2015).

      . Between the circuit court's denial of a stay on October 13, 2016, and this Court’s temporary stay order of October 20, 2016, the Ser-binskis obtained demolition permits and allegedly completed the demolition at issue in our Case No. 3D 16-2350. They moved to dismiss that case as moot, and the petitioners moved for sanctions against the Serbinskis. By separate order, we have denied both of those motions.

      . Petitioners’ Emergency Corrected Second-Tier Certiorari Petition, Case No. 3D16-2350, p. 16.

      . In Cherry, after the adversary hearing, the prosecuting attorney met with the Commission during its deliberations and submitted advisory memoranda, much of which the Commission adopted in its final order. 652 So.2d at 803.

      . The special magistrate made a thorough and commendable disclosure of his prior representations of private clients, which was accepted and waived by the parties. The special magistrate stated on the record that he had not spoken to the Assistant City Attorney about the case at all. Nothing in the record suggests ex parte communications to or from the City’s legal staff as the special magistrate considered the parties' submissions.


author: ROTHENBERG, J.

text:
    Humberto REYES, Appellant, v. AQUA LIFE CORP., etc., Appellee.
    No. 3D15-2304
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016.
    Rehearing Denied January 9, 2017

      Law Offices of Sina Negahbani, and Sina Negahbani, for appellant.
    Perez & Rodriguez, P.A., and Javier J. Rodriguez, Freddy X. Muñoz, and Johanna Castellon-Vega, for appellee.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   ROTHENBERG, J.

Humberto Reyes, the plaintiff below, appeals the denial of his verified motion to vacate an order dismissing his lawsuit for lack of prosecution filed pursuant to Florida Rule of Civil Procedure 1.540(b)(4). Because the dismissal of Reyes’s lawsuit constituted a final judgment in the cause, the order of dismissal was granted at a hearing conducted without notice to Reyes, and there was clearly record activity which precluded the entry of the dismissal, we reverse the trial court’s order denying Reyes’s motion to vacate the order of dismissal and remand for the reinstatement of the lawsuit.

The record in this case reflects a laundry list of errors and a system-wide failure to provide notice to Reyes, the trial court, and even to the defendant, Aqua Life Corp., d/b/a Pinch A Penny #43 (“the appellee”). This case commenced in circuit court on August 31, 2010, and included two causes of action: (1) a claim alleging worker’s compensation retaliation filed pursuant to section 440.205 of the Florida Statutes; and (2) for unpaid overtime wages in violation of the Federal Fair Labor Standard Act. One month later, on September 30, 2010, the appellee issued a Notice of Removal and removed the entire case to federal court. Although the appellee was required to file a copy of its Notice of Removal with the circuit court to notify the circuit court and the clerk of the court that the case had been removed to federal court, see 28 U.S.C. § 1446(d), the appel-lee failed to file a copy of its Notice of Removal or otherwise inform the circuit court judge or the clerk of the removal.

The failure of the appellee to provide this notice was critical. Because removal results in an automatic stay of- the proceedings in state court, no further activity or action is permissible or may be conducted in the circuit court, and the notice informs the circuit court that it may not proceed unless and until the case is remanded. Specifically, 28 U.S.C. § 1446(d) states the following:

Notice to adverse parties and State court. — Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

After nearly two years, the federal court remanded the retaliation claim back to the circuit court on June 13, 2012. The circuit court, which apparently was not aware of the removal of the case to federal court, the automatic stay of the circuit court proceedings, or the federal court’s order remanding the retaliation claim back to the circuit court, saw that there had been no record activity for over a year, and. allegedly issued a notice of dismissal for lack of prosecution on September 22, 2012, and set a hearing for January 25, 2013. However, it appears that the Clerk’s office did not send this notice to either Reyes or the appellee, and it is undisputed that neither received any notice. Thus, the parties proceeded with the case without responding to the circuit court’s notice of dismissal for lack of prosecution. Reyes issued a Notice for Trial on October 30, 2012, which was docketed on the same day, and on October 31, 2012, the appellee filed an amended answer to the complaint and a motion to strike the Notice for Trial, claiming that it needed additional time to conduct discovery.

Although the hearing on the circuit court’s notice of dismissal was set without notice to Reyes for January 25, 2013, the hearing was actually held on January 29, 2013, and again, no notice was sent to Reyes. When no one appeared for the hearing, the circuit court dismissed Reyes’s lawsuit for lack of prosecution. This was clear legal error for three separate reasons.

The first error was issuing a notice of dismissal for lack of prosecution in the first place. The lack of record activity for a year preceding the notice was as a result of the removal of the entire case to federal court and the automatic stay in effect in the circuit court. Had the trial court been notified of the removal, it would not have mistakenly included the time the case was under a mandatory stay when computing the time of no record activity. The federal court remanded Reyes’s retaliation claim back to the circuit court in June 2012, thereby lifting the stay. Thus, when the circuit court issued its notice of dismissal in September 2012, the period of “no record activity” was, at best, for only three months. And, as already noted, this error was caused by the appellee’s failure to file the requisite notice in the circuit court informing the circuit court of the removal.

The second error was that the circuit court lacked the authority to dismiss the case for lack of prosecution on January 29, 2013 because there was, in fact, record activity during the one-year period prior to the dismissal. On October 30, 2012, Reyes noticed the case for trial, and on October 31, 2012, the appellee filed an amended answer and a motion to strike Reyes’s notice for trial, both of which established record activity precluding dismissal for lack of prosecution. See Mikos v. Sarasota Cattle Co., 453 So.2d 402, 403 (Fla. 1984) (approving the decision of the Second District Court of Appeal which held that “once a plaintiff has given notice that it is ready for trial, the trial court must enter an order fixing a date for trial and is therefore precluded from dismissing the action for lack of prosecution should the plaintiff fail to take any further action”), receded from in part by Fishe & Kleeman, Inc. v. Aquarius Condo. Ass’n, 524 So.2d 1012, 1012-13 (Fla. 1988) (holding that “the bar against dismissal terminates after the trial court has taken action in response to the notice for trial”); Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So.2d 422, 424 (Fla. 2d DCA 2006); Howland Feed Mill, Inc. v. Hart, 774 So.2d 962 (Fla. 1st DCA 2001).

The third and most egregious error, however, was the failure to give Reyes notice and an opportunity to be heard, which denied Reyes his fundamental right to due process. State, Dep’t of Revenue ex rel. Johnson v. Haughton, 188 So.3d 32, 34 (Fla. 3d DCA 2016); Jade Winds Ass’n v. Citibank, N.A., 63 So.3d 819, 822 (Fla. 3d DCA 2011). As the First District Court of Appeal noted in Department of Revenue ex rel. Poynter v. Bunnell, 51 So.3d 543, 546 (Fla. 1st DCA 2010), “[t]he right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” (internal quotations omitted).

The record reflects that notice was not sent nor received by Reyes, and Reyes was not put on notice in writing or otherwise of the circuit court’s notice to dismiss his case for lack of prosecution or of the order actually dismissing the case. In Haughton, 188 So.3d at 34, this Court held that “an order issued without notice to a party is void.” This Court also found in State, Department of Revenue ex rel. of Prinzee v. Thurmond, 721 So.2d 827, 828 (Fla. 3d DCA 1998), that the trial court abused its discretion when it denied the State’s motion to vacate an order dismissing the cause filed under rule 1.540(b)(4). Specifically, this Court held that because the State had not received notice, the order of dismissal was void and “[t]he passage of time cannot make valid that which has always been void.” Thurmond, 721 So.2d at 828 (quoting Ramagli Realty Co. v. Craver, 121 So.2d 648, 654 (Fla. 1960)).

We also note that the order of dismissal entered on January 29, 2013 and filed with the Clerk on February 1, 2013, states in the heading that it is a “Motion, Notice and Judgment of Dismissal.” Based on the heading and the legal effect of the dismissal of the entire case for lack of prosecution, we treat the order as a final judgment. See De La Osa v. Wells Fargo Bank, N.A., No. 3D14-1455, 208 So.3d 259, 2016 WL 7232272 (Fla. 3d DCA Dec. 14, 2016) (en banc) (holding that the term “judgment” as used in rule 1.540(b) includes final orders); Kaufman v. Heller, 616 So.2d 1064, 1065 (Fla. 3d DCA 1993) (treating an order issued on possession of real property as a final judgment because it was “a final disposition of the whole merits of the landlord’s cause before the court”), see also Courtney v. Catalina, Ltd., 130 So.3d 739, 740 (Fla. 3d DCA 2014) (treating Courtney’s motion to vacate a final order dismissing the case for lack of prosecution filed pursuant to rule 1.540(b)(4) as a motion for relief of a void judgment or decree and reversing the trial court’s order denying him relief under rule 1.540(b)(4)); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So.2d 758 (Fla. 3d DCA 1986) (treating the order dismissing the complaint as a void final judgment due to lack of notice, and finding that the trial court erred by failing to vacate the order of dismissal pursuant to rule 1.540(b)(4)).

Judgments entered without notice are void, and relief from a void judgment may be granted at any time. See Tannenbaum v. Shea, 133 So.3d 1056, 1060 (Fla. 4th DCA 2014) (holding that a void judgment maybe attacked at any time under rule 1.540(b)(4)); Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009) (holding that “[a] judgment is void if, in the proceedings leading up to the judgment, there is ‘[a] violation of the due process guarantee of notice and an opportunity to be heard’ ” (quoting Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)); Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007) (finding that when a judgment is void, “it is deemed never to have had legal force and effect”); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988) (holding that, because Shields did not receive notice of the trial, the judgment was void, and thus, the trial court erred by denying Shield’s motion to vacate the dismissal, which was filed approximately two years after the entry of the judgment under rule 1.540(b)(4)); Falkner, 489 So.2d at 758-59 (holding that a judgment entered without service of process is void, and therefore, as a matter of law, the trial court was obligated to grant relief under rule 1.540(b)(4) from the judgment dismissing the complaint).

Conclusion

The trial court erred when it issued a notice of dismissal for lack of prosecution which failed to take into consideration the period of time the case was under a mandatory stay and by granting a dismissal for lack of prosecution when there clearly had been record activity within one year preceding the order of dismissal and within sixty days of the issuance of the notice of dismissal. Reyes would have been able to obtain a correction of these errors if he had been given notice and an opportunity to be heard. However, Reyes received no notice. Therefore, the order dismissing the case, which we treat as a final judgment because it disposed of the entire cause before the court, is void. A void judgment may be set aside at any time under rule 1.540(b)(4). We, therefore, reverse the circuit court’s order denying Reyes’s motion to vacate filed pursuant to rule 1.540(b)(4) and remand for reinstatement of the lawsuit and for proceedings consistent with this opinion.

Reversed and remanded.


text:
    MAGNUM CONSTRUCTION MANAGEMENT CORP., etc., et al., Appellants, v. The CITY OF MIAMI BEACH, Florida, Appellee.
    No. 3D15-2239
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016.

      Armas & Bertrán, and J. Alfredo De Armas and Eduardo E. Bertrán, for appellants.
    Lydecker Diaz, and Joan Carlos Wizel and Colby E. Grossman, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

Magnum Construction Management Corporation (“MCM”) and its surety, Travelers Casualty and Surety Company of America . (“Travelers”), appeal the trial court’s entry of a final judgment against them and in favor of the City of Miami Beach, Florida (“the City”), who claimed, in part, that MCM was liable for playground defects and landscaping.defects at South Pointe Park (“South Pointe Park” or “the park”). Because the City failed to provide MCM with an opportunity to cure the defects in the playground, as required by the contract between the parties, we reverse the trial court’s finding that MCM was liable for the playground defects. Additionally, because the trial court’s award of damages in connection with the landscaping defects on the project was speculative, we reverse the award and remand for a new trial on damages.

BACKGROUND

The underlying lawsuit arose out of a construction project that was intended to redesign and improve South Pointe Park. The City awarded Hargreaves Associates, Inc. (“Hargreaves”) the contract for designing the park and supervising the construction project. Thereafter, the City awarded MCM the general contract for the construction of the park. Travelers issued a performance bond for the project and named MCM as the principle and the City as the obligee.

The park was designed to include, in part, a new children’s playground and a variety of new grassy turfs and other landscaping features. Construction commenced in 2007, and on March 20, 2009, Hargreaves issued a Certificate of Substantial Completion, which according to the contract documents indicated that “all conditions and requirements of permits and regulatory agencies have been satisfied and the Work, is substantially complete in accordance with the Contract Documents, so the Project is available for beneficial occupancy by CITY,” Although Hargreaves stopped working on the park by October 2009 due to a payment dispute Hargreaves had with the City, the City did not officially terminate its contract with Hargreaves until 2011, and in the interim, the City did not hire a replacement for Hargreaves.

In the aftermath of a major flood in 2009, several aspects of the park’s landscaping began to decline, including the deterioration of the sod in certain areas of the park. Although the parties attempted to maintain the park and remediate the problems with the landscaping features, when it became obvious that these attempts were not going to solve the problem, the City hired Rosenberg Gardner Design to create a remediation plan. It was eventually determined that one of the primary causes , for the problems with the sod and other landscaping features was the over compaction of the soil, and the City ultimately awarded Superior Landscaping & Lawn Service, Inc. the construction bid to remediate the park.

In addition to the landscaping defects, it also became apparent that some of the aspects of the park’s playground were not in compliance with certain contractually required safety standards. On December 6, 2010, the City unilaterally performed an audit of the playground and initiated the underlying litigation. As the trial court correctly noted below, several of the playground defects were minor and could have been easily corrected, such as a missing slide side rail, properly sized metal cap covers, and.the relocation of a sculpture. The City did not, however, offer MCM the opportunity to repair or cure any of the defects in the playground, but instead removed, redesigned, and replaced the playground in its entirety. It is particularly noteworthy that the City’s own expert witness, Teri Hendy, never recommended that the playground be entirely removed.

After a bench trial, the trial court entered a verdict adjudicating the City’s claims against MCM, Travelers, and Hargreaves. The trial court found that: (1) MCM was liable for breach of contract and breach of warranty; (2) Travelers was liable for breach of performance; and (3) Hargreaves was liable for breach of contract, negligence, and negligence per se.

As to MCM’s liability for the playground defects, the trial court specifically found that, although the City did not agree to work with MCM to prepare a joint audit of the playground and never provided MCM with an opportunity to cure the deficiencies in the playground, the City suffered damages because the playground did not comply with the safety standards in the contract documents. The trial court, however, found that the City’s complete removal and replacement of the playground was excessive, and therefore reduced the damages accordingly.

As to MCM’s liability for the subgrade, sod, and landscaping defects, the trial court found that the City was entitled to be reimbursed for the remediation of the defects in the park, and that MCM was partially at fault for failing to recognize that over compacting the soil would cause the grass and landscaping to fail. However, the trial court also found that the City was not entitled to a betterment, which the trial court calculated as the difference between the total amount sought by the City and the entire damage award. After the trial court entered a final judgment, MCM and Travelers timely appealed.

ANALYSIS

1. Liability for the playground defects

MCM argues that it cannot be held liable for the playground defects because the City never provided MCM with an opportunity to cure any of the playground defects, as required by the contract documents. Because section 25.3 of the General Conditions of the contract documents plainly provides for an opportunity to cure, we agree.

Section 25.3 provides as follows:

If, within one (1) year after the date of substantial completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision of the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, CONTRACTOR, after receipt of written notice from CITY, shall promptly correct such defective or nonconforming Work within the time specified by the CITY without cost to CITY, to do so.

This provision requires the City to notify MCM, the contractor, of any defects it finds in MCM’s work. Thereafter, MCM “shall” correct the defective work within the time specified by the City. It follows, therefore, that the City was required to notify MCM of any defective work and provide MCM with a period of time in which MCM must cure the identified defects.

Although section 25.3 is dispositive of this issue, we note that had the contract been performed as intended, MCM would also have been given other opportunities to cure the playground defects through the project’s “consultant,” Hargreaves. For example, section 25.1 states as follows: “CONSULTANT shall have the authority to reject or disapprove work which CONSULTANT finds to be defective. If required by CONSULTANT, CONTRACTOR shall promptly either correct all defective work or remove such defective work and replace it with nondefective work.” Similarly, the contract contains an alternative dispute resolution provision in section 12.1, which states as follows:

To prevent all disputes and litigation, it is agreed by the parties hereto that CONSULTANT shall decide all questions, claims, difficulties and disputes of whatever nature which may arise relative to the ... fulfillment of this Contract ... and CONSULTANT’S estimates and decisions upon all claims, questions, difficulties and disputes shall be final and binding to the extent provided in Section 12.2.

(emphasis added). Thus, either pursuant to section 25.1 or 12.1, the consultant, Hargreaves, had the obligation to make determinations as to MCM’s work and to order MCM to correct any defective work. MCM would then have had a contractual period of time to cui’e any defective work identified by Hargreaves. However, after Hargreaves stopped working on the park in October 2009 due to its payment dispute with the City, and the City failed to replace Hargreaves, no consultant was available to provide MCM with notice of any defective work or to provide MCM with an opportunity to cure. Thus, the obligation fell on the City to insure that these contract provisions, which provided MCM with opportunities to cure any defects in its work product, were fully honored, and the City’s failure to provide a replacement consultant frustrated these several provisions that were intended to prevent litigation between the parties. See N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993) (stating that “a party who, by his own acts, prevents performance of a contract provision cannot take advantage of his own wrong”); see also Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384, 386 (1945).

Additionally, the trial court expressly found that “MCM admitted its responsibility to correct the Playground equipment deficiencies, but the CITY did not agree to work with them to prepare a joint audit and never provided MCM an opportunity to cure deficiencies.” (emphasis added). Instead, the City unilaterally decided to remove the playground in its entirety. The City has not cross-appealed these findings in the trial court’s verdict, and any objection to them on appeal has accordingly been waived. State v. City of N. Miami Beach, 108 So.2d 764, 765 (Fla. 1959); Philip J. Padavano, Florida Appellate Practice § 8:10 at 173 (2016 ed.) (“Although an appellate court may affirm an order based on a point not made by the appellee or respondent, the court will not reverse an order based on a point that was not made by the appellant or petitioner.”).

Because MCM was not provided with an opportunity to cure the defects in the playground, as required by the contract documents, we find that the trial court erred by holding MCM liable as to the playground defects. Underwater Eng’g Servs., Inc. v. Util. Bd. of City of Key W., 194 So.3d 437, 445 (Fla. 3d DCA 2016) (holding that the trial court erred by entering judgment in favor of the plaintiff where the contractor was not provided with the contractually required notice and opportunity to cure the alleged defects in the project); see also City of Hollywood v. Diamond Parking, Inc., 950 So.2d 472, 474 (Fla. 4th DCA 2007).

II. The trial court’s damages award for the landscaping defects

MCM contends that the trial court’s award of damages for the landscaping defects was speculative, and we agree. The City sought approximately $3 million in damages against MCM and Hargreaves in connection with the landscaping defects, but the trial court only awarded the City $1,290,037. The trial court stated that the difference between its total award and the amount sought by the City constituted a “betterment,” which the trial court defined as aspects of the City’s remediation plan which improved upon and differed significantly from the original designs and specifications in the contract documents.

The trial court was correct to exclude betterments from its award, as the measure of damages for breaching a construction contract is “the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste.” Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037, 1039 (Fla. 1982) (quoting § 346(1)(a), Restatement (First) of Contracts (1932)) (emphasis added); Kritikos v. Andersen, 125 So.3d 885, 888 (Fla. 4th DCA 2013) (stating that if an owner elects to adopt a more expensive design in the course of making repairs in a construction defect case, then “the recovery should be limited to what would have been the reasonable cost of repair according to the original design”) (quoting Temple Beth Sholom & Jewish Ctr., Inc. v. Thyne Constr. Corp., 399 So.2d 525, 526 (Fla. 2d DCA 1981)) (emphasis added).

However, the City has not cited to any evidence and we have found no evidence in the record as to the value of the better-ments in the remediation plan, or what it would have cost to restore the City “to the condition [it] would have been in if the contract had been performed.” Grossman Holdings Ltd., 414 So.2d at 1039. The only measure of damages provided by the City was the costs associated with the planning, permitting, and construction of a park that is fundamentally different from the one it contracted with MCM to build. Therefore, we find that the trial court speculated as to the value of the betterments in the City’s remediation plan and, thus, speculated in its ultimate calculation of the damages owed to the City in connection with the landscaping defects in the park. Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989) (“Damages cannot be based upon speculation or guesswork, but must have some reasonable basis in fact.”); Kingswharf, Ltd. v. Kranz, 545 So.2d 276, 278 (Fla. 3d DCA 1989) (reversing a speculative damage award in a breach of construction contract ease and remanding for a new trial on damages). We find the City’s remaining arguments are without merit, and we therefore decline to specifically address them here.

CONCLUSION

In summary, because the City never provided MCM with an opportunity to cure the defects in the playground, as required by section 25.3 of the contract, the trial court erred by holding MCM liable for the playground defects. The trial court also erred by speculating as to the damages the City suffered in connection with the landscaping defects. We therefore reverse the trial court’s entry of a final judgment against MCM for the playground defects, as well as the trial court’s award of damages as to the landscaping defects. We remand for a new trial on damages as to the landscaping defects alone.

Reversed and remanded.

      . Additionally, Victor Lowry, Hargreaves’s expert witness, testified at trial that all of the defects in the playground could have been repaired, and Juan Munilla, one of MCM's fact witnesses, testified that each of the safety defects identified by Teri Hendy were fixable.

      . Hargreaves has separately appealed, and the two appeals were consolidated only for purposes of the record.

      . The measure of damages in a breach of warranty action similarly does not include what the trial court defined as betterments. See §§ 672.714, 672.715, Fla. Stat. (2010); Miles v. Kavanaugh, 350 So.2d 1090, 1093 (Fla. 3d DCA 1977).


text:
    Shaina ALSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3902
    District Court of Appeal of Florida, Fourth District.
    December 14, 2016

      Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

The defendant argues her convictions and sentences on Counts V, VI, and VII for armed false imprisonment should be reversed because the record establishes she was unarmed. She argues the proper remedy is for the trial court to vacate the armed false imprisonment convictions, enter convictions for simple false imprisonment as third-degree felonies, and resen-tence her on those counts. She recognizes this remedy will not affect her ultimate prison term as she is still serving concurrent, ten-year prison sentences on Counts I through IV. The state confesses error. We agree.

Reversed and remanded for resentenc-ing on Counts V, VI, VII.

Ciklin, C.J., Warner and Gerber, JJ., concur.


author: Forst, J.

text:
    M & M PROPERTY MANAGEMENT, LLC, Appellant, v. PALM-AIRE COUNTRY CLUB CONDOMINIUM ASSOCIATION NO. 2, INC., Appellee.
    No. 4D16-1448
    District Court of Appeal of Florida, Fourth District.
    December 14, 2016

      Bartosz A. Ostrzenski of Ostrzenski & Stricklin, P.A., Boca Raton, and Gerard S. Collins and Jeffrey D. Green of Kaye Bender Rembaum, P.L., Pompano Beach, for appellant.
    Tamar Duffner Shendell of Shendell & Associates, P.A., Lighthouse Point, for ap-pellee.
   Forst, J.

Against the backdrop of the aphorism that “all politics is local,” we address a trial court decision with respect to a challenge to a condominium association’s board of directors election. As discussed below, we reverse the temporary injunction entered against Appellant M & M Property Management, LLC, allowing it to continue to operate in service of the board elected on March 2.

Background

On February 29, 2016, the then-Board of Directors of the Appellee condominium association attempted to postpone the annual board election scheduled for March 2, 2016. Although there is some ambiguity as to what exactly occurred at the February 29 meeting, the record could support the conclusion that the Board voted 6-3 in favor of postponement. However, there is no indication that the actual voting members of the association ever voted to postpone the election. An election was nonetheless ostensibly held on March 2, at which a new board was elected.

The dispute at issue between Appellee (in the form of the first board) and Appellant M & M stems from the latter’s refusal to recognize the continued authority of the first board. In seeking an injunction, Ap-pellee claimed that the election was fraudulent because of the vote to postpone and, therefore, that the Board which existed on February 29, 2016, continued to exist and should have been recognized by M & M. Appellee alleged that it was harmed by being cut out of daily operations of the association and by being removed from the association’s bank accounts. The trial court granted a preliminary injunction requested by Appellee and ordered M & M to recognize the pre-March 2 “election” Board and provide it the access and control over the association that it sought. M & M challenges that preliminary injunction on appeal.

Analysis

Whether Appellee has demonstrated a substantial likelihood of success on the merits depends on the legal issue of whether the vote to postpone the election was effective. As such, we review this case de novo. Telemundo Media, LLC v. Mintz, 194 So.3d 434, 435 (Fla. 3d DCA 2016).

It is well-established that a temporary injunction lies when the following requirements are proved by the party seeking the injunction: “(1) it will suffer irreparable harm unless the injunction is entered, (2) there is no adequate remedy at law, (3) there is a substantial likelihood that the party will succeed on the merits, and (4) that considerations of the public interest support the entry of the injunction.” Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So.3d 68, 72 (Fla. 4th DCA 2014) (emphasis added).

The Florida Administrative Code provides that “[i]n order to adopt different voting and election procedures in its bylaws ... an association must obtain the affirmative vote of a majority of the total voting interests .... ” Fla. Admin. Code R. 61B-23.0021(1)(c) (emphasis added). The relevant bylaws here state that directors “shall” be elected at a meeting which “shall be held on the first Wednesday in March of each year.” March 2 was the first Wednesday in March during 2016. To the extent that Rule 61B-23.0021(1)(c) applies to the postponement here, it commands that the vote to postpone be taken by all of the relevant voting interests, not just the Board, because that change would itself be the adoption of different voting procedures than the rule provides. That was not done. As such, Appellee failed to show it had a “substantial likelihood” of prevailing because it did not provide authority circumventing application of Rule 61B-23.0021(1)(c) to this scenario, nor any other authority supporting the Board’s ability to postpone the election.

Conclusion

We therefore reverse because Appellee failed to demonstrate the third requirement of a temporary injunction; namely, that it had a substantial likelihood of succeeding on the merits. In this case, the bylaws set the annual meeting and election date and Appellee did not provide any authority permitting a postponement based solely on a majority vote of the Board.

Reversed.

Ciklin, C. J. and Klingensmith, J., concur.

      . We do not intend this statement to be interpreted as any finding that this vote in fact did or did not occur, should the issue be relevant in further proceedings.

      . We emphasize that the burden in this case was on Appellee to provide authority that would support not applying Rule 61B-23.0021(c)(1). This opinion should not be read as holding anything with regard to the actual application of that rule beyond the simple recognition that its language would seem to indicate that it may apply in this situation. The nuances and exact application of the rule are not the concern of this Court at this time.


text:
    Willie Earl PONDER, Appellant, v. STATE of Florida, Appellee.
    CASE NO.: 1D15-0873
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2016

      Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Willie Earl Ponder appeals the denial of his motion for post-conviction relief arguing the circuit court erred in denying three claims of ineffective assistance of trial counsel. We affirm and write as to only one issue.

Appellant was convicted of attempted first degree murder. At trial there were references made by the State that Appellant became a suspect after his name surfaced as the shooter. In his motion for post-conviction relief, Appellant argued that defense counsel should have filed a motion in limine to exclude any reference to the “word on the street” that Appellant was the shooter. Further, Appellant argued his defense counsel rendered ineffective assistance for failing to object to the repeated references by the prosecution to the so-called “word on the street” evidence. In support of this argument, Appellant relies on Saintilus v. State, 869 So.2d 1280 (Fla. 4th DCA 2004).

At Appellant’s trial, the trial court sustained the hearsay objection of defense counsel to the statement made by the prosecutor in opening argument that “there was talk in the community about who the shooter was and that that is how law enforcement developed a suspect in this case.” Further, during the proffer of Breanna Morgan, a witness to the shooting, Morgan was cautioned by the trial court to refer to shooter as “the shooter, or something of that nature ... rather than talking about Willie Ponder like you know who he is,” Morgan would later refer to Appellant by name multiple times. Defense counsel objected to the first reference, an objection which was denied; defense counsel did not again object to Morgan’s reference to Appellant by name because, as he explained at the post-conviction hearing, he did not want the jury to see the defense get repeatedly overruled. Defense counsel also objected when the prosecutor asked a police officer “when [the shooting victim] mentioned to you a name that he had heard from other people, did you just take a picture of Willie Ponder and show it to him and say, is this the guy that shot you?” The trial court did sustain the hearsay objection. It is true that defense counsel did not object when the prosecutor referenced in opening argument things “being said in the community” about Appellant; nor did defense counsel object when the prosecutor asked the shooting victim whether friends and family members were passing information to him about the name of the shooter or whether he was familiar with Appellant’s name “because of what people were telling you.”

Following an evidentiary hearing, the circuit court denied the post-conviction relief noting no prejudice resulted from the references given “vague, generalized nature of the reference to “word on the street’ and how it was used by the investigators.” Further, the circuit court found, defense counsel was able to use the “word on the street” evidence to bolster its theory of misidentification as such evidence “suggested that the victim and the eye witness were desperate, or eager at least, to be able to point the finger at someone, even though they couldn’t really identify him.” These findings are supported by the record.

Therefore, Appellant has not demonstrated the circuit court erred in denying post-conviction relief. “Judicial scrutiny of counsel’s performance must be highly deferential,” and there is a strong presumption that trial counsel’s performance was not ineffective. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000),

The issue in Saintilus was not whether trial counsel rendered ineffective assistance, but whether the trial court erred in denying an objection to the admission of “word on the street evidence.” Given the record, we cannot say the circuit erred in concluding ineffective assistance was not demonstrated. There were several objections made, and when the “word on the street” references were made, defense counsel used such to bolster the defense, as noted.

Accordingly, the denial of post-conviction relief is AFFIRMED.

ROBERTS, C.J., WETHERELL and BILBREY, JJ., CONCUR.


text:
    Carlos MEDINA, Petitioner, v. AMERICAN AIRLINES and Sedgwick CMS, Respondents.
    CASE NO. 1D16-3777
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2016

      Toni L. Villaverde, Coral Gables, for Petitioner.
    Frank Garcia, of Moran Kidd Lyons Johnson, P.A., Miami Lakes, for Respondents.
   PER CURIAM.

At issue in this workers’ compensation case is whether a video must be produced by Claimant, Carlos Medina, who seeks review by certiorari of an order compelling him to turn over a video he commissioned to be made of an independent medical examination (IME) by the E/C’s IME doctor. The E/C believed that Claimant’s counsel was using the video to cross-examine the IME doctor at deposition, which was not completed and has been continued. Resumption of the deposition has been delayed by a protective order and is contingent on resolution of Medina’s certiorari petition in this Court.

In support of the disclosure order, the JCC made three terse findings of fact: “1. The video was at the E/C IME. 2. Video used by claimant to direct/cross examine IME. 3. Deposition to be used at trial.” These findings imply that the video constitutes work product and that Medina waived his work product privilege by intending to use the video at trial. We agree that the video constitutes work product, but not that Claimant waived the privilege.

The video constitutes work product because it “was made in anticipation of litigation or for trial”; more specifically, the only evidence here is that it was ordered by Claimant’s counsel to ensure that the E/C’s IME was administered fairly and properly. See McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d 923, 924, 926 (Fla. 2d DCA 2004) (holding that, in tort, videotape of compulsory medical examination (CME) constitutes work product because it “was prepared pursuant to the instructions of McGarrah’s counsel and not as an objective recording of the CME” and was intended to “ensur[e] the CME was administered fairly and properly”); see also S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla. 1994) (holding that work product privilege protects “materials prepared in anticipation of litigation by or for a party or its representative”).

It is premature, however, to conclude that Medina has waived the privilege. The work product privilege evaporates once the party claiming the privilege elects to use the material at trial. See Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004) (“We conclude and specifically announce today that all materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are ... not protected by the work product privilege.”). But Medina’s counsel avers in her reply that Medina has not listed the video as evidence yet, and the questions in the deposition that are allegedly based on the video do not indisputably rely on the video or necessarily require its use at trial (for impeachment or otherwise). Medina may choose to use the video for impeachment; if so, the video loses its work product status.

Because the work product privilege was not waived, disclosure of the video would cause irreparable harm. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) (holding discovery of information protected by privilege “ ‘may reasonably cause material injury of an irreparable nature’ ” (quoting Martin-Johnson v. Savage, 509 So.2d 1097, 1100 (Fla. 1987))). Because the ruling is premature, the order departs from the essential requirements of law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995) (“The required ‘departure from the essential requirements of law means ... an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” (quoting Jones v. State, 477 So.2d 566, 569 (Fla. 1985))).

The petition is GRANTED and the order on review QUASHED.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


author: SHEPHERD, J.

text:
    Jose CRUZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-2119
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    Rehearing Denied January 6, 2017

      Jose Cruz, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, SHEPHERD and SALTER, JJ.
   ON ORDER TO SHOW CAUSE

SHEPHERD, J.

On October 13, 2016, this court denied Jose Cruz’s most recent attempt to seek review of the sentence entered below in lower court case number 92-20576A, at the same time ordering Cruz to show cause why he should not be prohibited from any further pro se appeals, pleadings, motions or petitions dealing with Case No. 92-20576A. Cruz responded to the show cause order, but has not shown good reason for not being prohibited from further pro se filings.

Accordingly, we direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, petitions or motions relating to Cruz’s conviction and sentence in Case No. 92-20576A, unless they are filed by a Florida Bar member in good standing. Any such further unauthorized pro se filings by Cruz will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it of disciplinary action. See 944.279(1), Fla. Stat. (2016).

      . Unbeknownst to this panel, Cruz previously was prohibited by this court from further pro se filing concerning Case No. 92-20S76A. Cruz v. State, 981 So.2d 1272 (Fla. 3d DCA 2008).


text:
    Raymond VALDESPINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1938
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    Rehearing Denied January 12, 2017

      Raymond Valdespino, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

Raymond Valdespino (“the defendant”) appeals the denial of his rule 3.800 motion to correct what he claims is an illegal sentence, and a subsequent order denying his motion to clarify his sentence. Although we conclude, as did the trial court, that the defendant’s claim that he is entitled to additional credit for time served in the Dade County Jail is without merit, we remand for consideration of an additional claim the trial court apparently overlooked.

The record reflects as follows. The defendant was arrested on March 1, 2012, and was not released prior to trial. Following a jury trial, the defendant was sentenced on August 27, 2013, to twenty-two years with a three-year minimum mandatory for shooting a deadly missile (Count I), fifteen years for discharging a firearm from a motor vehicle (Count II), and five years for committing an aggravated assault (Count III), with all sentences to be served concurrently as an habitual felony offender. On September 25, 2013, the defendant was picked up and transported to state prison by the Department of Corrections (“DOC”). The defendant received credit for the time he served from March 1, 2012, the date of his arrest, through August 27, 2013, the date he was sentenced. The defendant, however, claims that the trial court should also have given him credit for the time he served in the county jail from August 27, 2013, the date of sentencing, to September 25, 2013, the date he was picked up by the DOC.

The trial court correctly denied the defendant’s motion to award him credit for this additional time because the trial court only awards credit for pre-sentenc-ing jail time. The award of post-sentencing jail time is the function of the DOC. See Willis v. State, 18 So.3d 1215 (Fla. 5th DCA 2009) (affirming the trial court’s order denying Willis’s motion for additional jail credit for time spent in jail after sentencing and holding that Willis’s motion should have been directed to the DOC); Smith v. State, 932 So.2d 594, 595 (Fla. 5th DCA 2006) (stating that a “trial court is only required to award credit for pre-sen-tence jail time; it is the function of the Department of Corrections to award credit for any time served in jail after sentencing but before transfer to state prison”); see also § 921.161(1), Fla. Stat. (2013).

If the defendant has not received post-sentencing credit, he may submit his request for this additional time to the DOC. If he is unsuccessful in obtaining the requested relief from the DOC, and he exhausts his administrative remedies, he may then seek mandamus relief. Leiffer v. State, 867 So.2d 538, 538 n.1 (Fla. 5th DCA 2004).

In reviewing the record, it appears that the defendant also sought relief under rule 3.800 with regards to the habitual felony offender sentences imposed. He claims that the predicate offenses relied on by the trial court when it found that the defendant qualified to be sentenced as a habitual felony offender were legally insufficient. Because it appears that the trial court overlooked and has not ruled on this claim, we remand to afford the trial court the opportunity to address it. This Court takes no position on the merits of this claim.

Affirmed; remanded with directions.


author: EMAS, J.

text:
    Angel M. MIGUEL a/k/a Miguel Angel, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1851
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016
    Angel M. Miguel a/k/a Miguel Angel, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
   EMAS, J.

Angel M. Miguel appeals from the trial court’s denial of his postconviction motion for return of property. While we agree that the motion was facially insufficient, we hold that the trial court erred in denying the motion without granting Miguel an opportunity to amend the motion to set forth a facially sufficient claim.

The trial court denied the motion as both untimely and facially insufficient. On appeal, the State properly concedes that the motion was timely. See § 705.105(1), Fla. Stat. (2016) (providing that “[t]itle to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding”); Davis v. State, 198 So.3d 1070 (Fla. 5th DCA 2016) (holding sixty-day time period under section 705.105 did not commence until appellate court issued mandate following direct appeal of conviction). In the instant case, Miguel pleaded guilty on March 8, 2016, and did not take an appeal from the judgment and sentence, which therefore became final on April 7, 2016. Thus, April 7, 2016 constitutes the date of the “conclusion of the proceeding” under section 705.105(1), and Miguel had sixty days from that date — until June 6, 2016 — to file his motion. Miguel filed his motion on June 3, 2016, and it was therefore timely.

The State also properly concedes that, given that Miguel’s motion was timely filed, the trial court erred in denying the motion as facially insufficient without granting Miguel an opportunity to amend his motion to state a facially sufficient claim. Wilson v. State, 957 So.2d 1264, 1265 (Fla. 2d DCA 2007) (holding that “[i]f the court dismisses the motion [for return of property] as facially insufficient, it shall identify the deficiencies and grant [mov-ant] leave to amend within a reasonable time”); Arel v. State, 160 So.3d 104 (Fla. 4th DCA 2015).

We therefore reverse the trial court’s order and remand for the trial court to enter an order denying the motion as facially insufficient and granting leave for Miguel to file an amended motion within sixty days. If Miguel files an amended motion that remains facially insufficient, the trial court may enter a final order denying the motion. If Miguel files an amended motion that is facially sufficient, the trial court shall either conduct an evi-dentiary hearing or summarily deny the motion by an order that attaches those portions of the record which conclusively establish Miguel is entitled to no relief. Holmes v. State, 997 So.2d 1184 (Fla. 3d DCA 2008); Bolden v. State, 875 So.2d 780 (Fla. 2d DCA 2004).

Reversed and remanded with directions.

Before WELLS, LAGOA and EMAS, JJ.

      . See Arel v. State, 160 So.3d 104, 105-06 (Fla. 4th DCA 2015) (holding that "[a] facially sufficient motion for return of property must specifically identify the property and allege that it is the movant's personal property, that it is not the fruit of criminal activity, and that it is not being held as evidence”); Bolden v. State, 875 So.2d 780 (Fla. 2d DCA 2004).


text:
    UNITED BRANDS, S.A., Appellant, v. DIAGEO DOMINICANA, S.R.L., f/k/a Diageo Dominicana, S.A., Appellee.
    No. 3D16-1544
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.

      Akerman and Francisco A. Rodriguez and Andrew J. Dominguez, for appellant.
    Hunton & Williams and Samuel A. Da-non and Douglas C. Dreier, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

We affirm the trial court’s well-reasoned order: granting the motion of the appellee (“Diageo Dominicana”) for temporary injunction; imposing the specific terms of the temporary injunction; and requiring a bond in the amount of $10,000.00, in accordance with Florida Rule of Civil Procedure 1.610. The language of the Resale Agreement of July 29, 2009, between Diageo Dominicana and the appellant (“United Brands”) is clear and unambiguous. The Agreement is “governed and construed in accordance with the laws of Florida without giving effect to the principles of choice-of-law ' thereof.” The terms of the Resale Agreement “supersede any prior agreement or understanding and this Agreement may only be modified or amended by a written instrument executed by the parties hereto.”

The parties to the suit below and to this appeal further specified:

Each party hereby irrevocably and unconditionally (a) agrees that any action or proceeding at law or equity, arising out of or relating to this agreement and any other agreements or the transactions contemplated hereby and thereby shall only be brought in the state or federal courts located in Miami-Dade County, Florida (b) expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and (c) waives and agrees not to raise (by way of motion, as a defense or otherwise) any and all jurisdictional, venue and convenience objections or defenses that such Party may have in such action or proceeding.

Resale Agreement, section 26 (emphasis supplied).

The claims filed preemptively in the Dominican Republic by United Brands against Diageo Dominicana unquestionably violate the exclusive forum and venue provision in the Resale Agreement, prompting the Florida lawsuit and anti-suit injunction. We reject United Brands’ argument that the presence of another putative defendant in the Dominican Republic lawsuit — Mercasid, S.A., Diageo Dominicana’s post-termination reseller — precludes the anti-suit injunction, as the injunction does not mention Mercasid and Mercasid is not a party to the Florida lawsuit.

The federal cases relied upon by United Brands are distinguishable and not persuasive as applied to the record before us. In Canon Latin America, Inc. v. Lantech (CR), S.A., 508 F.3d 597 (11th Cir. 2007), for example, the foreign country suit sought to be enjoined was filed in Costa Rica and asserted violations of Public Law 6209 of Costa Rica. The Costa Rican court rejected the Florida corporation’s jurisdictional challenge to the Costa Rican plaintiffs right to sue in Costa Rica (despite the exclusive forum selection and choice of law provision in the written contract between the parties), finding that the provision “is of no effect, since a public policy law such as 6209 specifies that the jurisdiction of the courts of this country cannot be waived in this type of dispute.” Id. at 600 n.3. United Brands has pointed to no such anti-waiver statute in the Dominican Republic that would apply to the claims and record before us.

Finally, other federal cases adopting a more stringent consideration of the “same parties” and “complete disposition” tests do not bind our consideration of the legal issue in this case. In applying Florida contract law and our statutes regarding choice of law and jurisdictional provisions, sections 685.101 and 685.102, Florida Statutes (2015), a federal court for this district would ordinarily follow applicable decisions of our Florida Supreme Court or District Court of Appeal. Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000). We find no such state appellate decision that would prohibit the temporary injunction entered in the present case. We thus decline to apply federal decisions outside of Florida, which seem to suggest that the joinder of Mercasid in the Dominican lawsuit would, in and of itself, preclude an anti-suit injunction in Florida.

For all these reasons, we affirm the temporary injunction. The temporary stay pending appeal ordered by this Court on July 19, 2016, will be vacated by separate order.

      .From the certified translations of the complaint and appeal filed by United Brands in the Dominican Republic, it does not appear that the anti-competition claim against Mer-casid can proceed if the Florida court determines that Diageo Dominicana properly terminated United Brands as a reseller. The trial court in the Dominican Republic and an appellate court there have dismissed the United Brands complaint based on the forum provision in the Resale Agreement. The exclusive forum provision and anti-suit injunction do not disregard international comity or, apparently, the public policy of the Dominican Republic in this case.

      . See, e.g., Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004) (“An anti-suit injunction against parallel litigation may be imposed only if: (A) the parties are the same in both matters, and (B) resolution of the case before the enjoining court is dis-positive of the action to be enjoined,”).

      . Among other concerns, and as discussed during oral argument, we are wary of an analysis that could circumvent or defeat an unambiguous forum selection/governing law provision by simply adding a defendant in the foreign suit sought to be enjoined.


text:
    Cordero Otistroy BLAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-0431
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    Rehearing Denied January 10, 2017
    Cordero Otistroy Blair, in proper person.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SHEPHERD, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Cordero Blair appeals from an order denying his pro se motion for post-conviction relief entered January 26, 2016. We affirm the order of the trial court on Ground 2 of Blair’s motion. We reverse the order on Ground 1 of the motion, and remand with directions to the trial court to amend Blair’s sentence to reflect his youthful offender status. See Jacques v. State, 95 So.3d 419, 420-21 (Fla. 3d DCA 2012); Yegge v. State, 186 So.3d 553, 555-56 (Fla. 2d DCA 2015). Blair need not be present.

Affirmed in part; reversed in part and remanded with directions.


author: FERNANDEZ, J.

text:
    Angelo STRIPLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-359
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016
    Angelo Stripling, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

Angelo Stripling appeals the trial court’s order denying his 3.850(b)(2) motion for post-conviction relief, arguing he is entitled to resentencing in conformance with chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. We reverse and remand for resentencing.

Stripling was found guilty of first-degree murder following a jury trial and in 1992 was sentenced to life in prison with a 25-year minimum mandatory. Stripling was also found guilty of armed robbery for which he received a consecutive life sentence with a 3-year minimum mandatory, and was found guilty of shooting a deadly missile into a vehicle for which he received a concurrent 15-year sentence.

Stripling appealed his convictions and sentence, and this Court affirmed on February 15, 1995. See Stripling v. State, 664 So.2d 2 (Fla. 3d DCA 1995). Stripling now claims he should be resentenced because he was a juvenile at the time he committed the crime. Based on our recent decision in Neely v. State, no. 3d14-1052 (Fla. 3d DCA Nov. 30, 2016), Stripling is entitled to judicial review of his sentence.

We therefore reverse Stripling’s first-degree murder sentence and remand to the trial court for resentencing under section 775.082(1)(b)(1), Florida Statutes (2016), section 921.1401, Florida Statutes (2014), and section 921.1402, Florida Statutes (2015).

Reversed and remanded with directions.