text:
    Anthony COUNCIL, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT and Vanessa Gethers, Appellees.
    No. 4D17-2212
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    Anthony Council, Hollywood, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for appellees.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

Ciklin, Conner and Klingensmith, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LLANO FINANCING GROUP LLC, Appellant, v. James E. KERR and Melissa Anne Trainor, Appellees.
    No. 4D16-1432
    District Court of Appeal of Florida, Fourth District.
    [November 29, 2017]
    Robert J. Hauser of Pankauski Hauser, PLLC, West Palm Beach, for appellant.

      Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, for Amici Curiae All Florida Appraisal Group, Inc., Mario T. Garcia III, and Dorothy Harrington.
   Per Curiam.

Affirmed. See Llano Fin. Grp., LLC v. Yespy, 228 So.3d 108 (Fla. 4th DCA 2017).

May, Klingensmith, and Kuntz, JJ., concur.

      . We note two distinctions between this case and Yespy, but they do not dictate a different result. First, the appraisal agreement's language was more limited in this case. It stated: “The only function of the appraisal is to assist the client mentioned in this report in evaluating the subject property for lending purposes. The use of this appraisal by anyone other than the stated intended user, or for any other use than the stated intended use, is prohibited.” It further stated that the "Lender/Client” is Fir-strust Mortgage & Lending Corp. The appraisal only allows the lender to provide copies of the appraisal to successor mortgagees or their assigns if the appraiser first provides written consent. And second, the trial court’s dismissal order was based on a lack of standing and the statute of limitations where Yes-py's dismissal order was solely based on the statute of limitations.


author: PER CURIAM.

text:
    James Curtis REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2090
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    James Curtis Reynolds, pro se.
   PER CURIAM.

Affirmed.

VILLANTI, C.J., and BLACK and SALARIO, JJ., Concur.


text:
    Donnis Turner FOSTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3151
    District Court of Appeal of Florida, Second District.
    Opinion filed August 2, 2017
    Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

The State has properly conceded that we must reverse Donnis Foster’s conviction for possession of marijuana. We do so and remand with directions to vacate that conviction. We affirm the judgment and sentences in all other respects.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT, KELLY, and MORRIS, JJ., Concur.


author: BLACK, Judge.

text:
    Francisco Sierra SIERRA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2769
    District Court of Appeal of Florida, Second District.
    Opinion filed August 4, 2017

      ■Francisco S. Sierra, pro se..,
    . Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

Francisco Sierra appeals from the denial of his motion for postconviction relief after an evidentiary hearing.' We reverse the postconviction order and remand to the circuit court for a new trial.

Following a jury trial, Sierra was convicted of two counts of’lewd or lascivious molestation, in violation of section 800.04(5)(b), Florida Statutes (2009), and one count of lewd or lascivious exhibition, in violation of section 800.04(7)(a). In his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, Sierra alleged that trial counsel was ineffective for failing to move for a mistrial or accept the trial court’s offer of a mistrial based on witnesses for the State vouching for the credibility of the victims.

An evidentiary hearing was held to resolve Sierra’s, claim. At that hearing, Sierra’s postconviction-counsel asked the court to take judicial notice of the relevant portions of the trial transcript; counsel also read portions of the transcript into the postconviction record. The transcript reflects that the State’s case rested on the credibility of the victims, particularly the victim who raised the allegations against Sierra and who had previously recanted her claims (the first-named victim). There was no dispute that both a school guidance counselor and the lead detective and investigator for the special victims unit testified on cross-examination by trial counsel as to the credibility of the first-named victim and the veracity of the allegations against Sierra. There was also no dispute that the trial court recognized the problem with the testimony. The trial court stated:

There’s a[ ] problem we have, folks, and that is this. We’ve had testimony in this trial from the State’s witnesses ... on cross-examination of these witnesses, in effect, these witnesses were rendering their opinion as to the credibility of the alleged victim. And there was no objection made. And, in effect, when the—we can’t have a witness testify as to whether or not someone is deceptive or lying or truthful or otherwise. Because if we do that, we don’t need a jury. That’s what the jury is supposed to figure out. But those questions were elicited on cross-examination. So the court’s concern is that we’re going to have a 3.850 on this case. Do you know what I’m talking about [defense counsel]?
So I don’t know how—I mean, I don’t want to—no one wants to try a case twice, but I see that happening in this case. Now, one possible solution is that both sides could agree to have a mistrial and we could try this case another day.

There was no agreement, and trial counsel did not move for a mistrial. Sierra was convicted of the charged offenses.

At the postconviction hearing, Sierra recalled that trial counsel’s strategy had been to attack the investigation as minimal and one-sided and that he had agreed to that strategy. Sierra also testified that he was not present for the bench conversation where the trial court suggested a mistrial and that when counsel asked if he wanted a new trial, counsel did not explain what that would mean.

During his testimony, trial counsel confirmed that his strategy had been to attack the investigation as insufficient. He testified that he had intended to establish that the guidance counselor was not trained in detecting deception and that she did not question the truth of the story the first-named victim provided. When asked about the opinion testimony, he testified that he believed that objecting and approaching the bench would have drawn the jury’s attention to the problematic testimony and would have given the jury the idea that he was losing control of the Witness. As to the lead detective’s testimony, trial counsel stated that his strategy had been to establish that the investigation had initially stalled because the léad detective questioned the veracity of the allegations and that the investigation had otherwise been inadequate. He reiterated that he had not wanted to draw attention to the opinion testimony by objecting.

As to the trial court’s mistrial suggestion, counsel testified that he had evaluated the trial and how it was progressing. He testified that he had believed it was not in Sierra’s interest to agree to a mistrial because to do so would have eliminated what counsel felt was a strong issue for appeal—that the State had been permitted to amend the information after the jury had been impaneled and sworn. Counsel further testified that he believed that by agreeing to a mistrial based “on that one little problem”—that “the witness said an opinion”—he would have nullified what he perceived as a bigger issue. When asked if he had discussed this with Sierra and whether Sierra had agreed with the strategy to decline a mistrial, counsel stated, “I didn’t specifically ask him because I didn’t think that he—I basically told him what was happening and he just nodded yes, that he understood me.”

In denying Sierra’s motion, the postcon-viction court found that not objecting to the witnesses’ testimonies and declining a mistrial were strategic decisions in light of the amended information issue. The court further found that Sierra failed to demonstrate an entitlement to relief.

“An attorney’s performance must be reasonable under the prevailing professional norms, considering all of the circumstances, and viewed from, the attorney’s perspective at the time of trial.” Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000). The question presented by Sierra’s claim is whether a reasonably effective lawyer would have declined to move for a mistrial. In addressing this question we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), However, that presumption is re-buttable; the judgment or strategy of counsel must be objectively sound. Id. “‘[Pfetently unreasonable’ decisions, although characterized as tactical, are not immune” from challenge. Lamb v. State, 124 So.3d 953, 957 (Fla. 2d DCA 2013) (quoting Cabrera, 766 So.2d at 1133).

Counsel’s failure to move for a mistrial, or to accept the court’s apparent offer of a mistrial, constitutes deficient performance. It was unreasonable for counsel to decline a new trial in favor of pursuing an issue for appeal which—if successful—would have garnered the same result. Cf. Davis v. State, 740 So.2d 86, 86 (Fla. 1st DCA 1999) (concluding that the untimely filed amended information was prejudicial and reversing and remanding for a new trial). The propriety of the court’s ruling allowing the State to amend the information was not, as counsel believed, a “bigger issue.” “Trial counsel’s decision in this case to permit this evidence repeatedly during [his]. own cross-examination of not one, but two State witnesses, and to take no action to try to alleviate the damage, was ‘outside the wide range of professionally competent assistance.’” See Glancy v. State, 941 So.2d 1201, 1203 (Fla. 2d DCA 2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

It is elemental in our system of jurisprudence that the jury is the sole arbiter of the credibility of witnesses. Barnes v. State, 93 So.2d 863 (Fla. 1957). Thus, it is an invasion of the jury’s exclusive province for one witness to offer his personal view on the credibility of a fellow witness.

Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999) (quoting Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984)). “It is error to admit the testimony of a witness that is offered to vouch for the credibility of another witness.” Rhue v. State, 693 So.2d 567, 568 (Fla. 2d DCA 1996). Where a police officer’s testimony is used to bolster the credibility of a victim, the error cannot be deemed harmless. Cavaliere v. State, 147 So.3d 628, 629 (Fla. 2d DCA 2014) (quoting Lee v. State, 873 So.2d 582, 584 (Fla. 3d DCA 2004)); see also Page, 733 So.2d at 1081 (“It is especially harmful for a police witness to- give his opinion of a-witnesses’ [sic] credibility because of the great weight afforded an officer’s testimony.”). And “[although the prohibitions on civilians vouching for a victim’s credibility have not been treated as harshly by the courts, such testimony can still be harmful error[.]” Cavaliere, 147 So.3d at 629.

“The benchmark for judging claims of ineffectiveness ... is whether the’ conduct of ‘ counsel ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” Cabrera, 766 So.2d at 1133 (quoting Downs v. State, 453 So.2d 1102, 1106 (Fla. 1984) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052)). The credibility of the victims was the pivotal issue in this case. See Rhue, 693 So.2d at 570. A guidance counselor and the lead- detective vouched for the first-named victim’s credibility, By failing to object to the bolstering testimony or move for a mistrial, “the jury was left with the impression that it could properly take into account the detective’s opinion,” as well as the guidance counselor’s. See Cavaliere, 147 So.3d at 629 (quoting Lee, 873 So.2d at 583-84). “The concern of the court evaluating an ineffectiveness claim should be whether the result of a particular proceeding is unreliable because of a breakdown in the adversarial process.” Lamb, 124 So.3d at 957 (quoting Cabrera, 766 So.2d at 1134). And in this case the opinion testimony was clearly damaging, “so under-minting] the proper functioning of the adversarial process that the trial cannot be relied on has having produced a just result.” See Glancy, 941 So.2d at 1203; see also Cavaliere, 147 So.3d at 630.

In the same way that an appeal not taken because of late filing prejudices a defendant [for purposes of the Strickland analysis] by denying him “the opportunity for a second trial he otherwise would have had,” so too does counsel’s failure to request a mistrial deprive [the defendant] of a “procedural right to which the law entitle[d]” him.

Middleton v. State, 41 So.3d 357, 362 (Fla. 1st DCA 2010) (third alteration in original) (quoting United States v. Ramsey, 323 F.Supp.2d 27, 40 (D.D.C. 2004)); cf. Lamb, 124 So.3d at 956 (“The failure to file a motion for new trial can support a claim for 1 postconviction relief.”); Manley v. State, 605 So.2d 1327, 1328 (Fla. 2d DCA 1992) (affirming denial of pbstconviction relief where prejudice was not established because the court was “not convinced of any strong likelihood a new trial -would have been ordered”). Where there is a reasonable probability that a mistrial would have been granted had counsel made the appropriate motion, prejudice has been established. Cf. Lamb, 124 So.3d at 957 (“We conclude that there .is a reasonable probability that the judge would have granted a new trial if defense counsel had filed the proper motion based on the weight of the evidence.”). Moreover, “[g]iv-en the significance of the issue, we must conclude [that] there is a reasonable probability that, but- for trial counsel’s omissions, the outcome of the proceeding would have been different."’ Rhue, 693 So.2d at 570.

Counsel’s decision to forego a new trial in favor of the mere possibility of a new trial following a successful appeal was not reasonable trial strategy. 'Sierra was deprived of a fair trial; counsel’s rejection of the remedy offered by the court prejudiced Sierra. See Garrido v. State, 162 So.3d 1069, 1072 (Fla. 4th DCA 2015). Accordingly, we reverse the denial of Sierra’s motion for postconviction relief and remand for a new trial.

Reversed and remanded.

VILLANTI and SALARIO, JJ., Concur.

      . Sierra raised a second claim of ineffective assistance of trial counsel which was summarily denied. He does not challengé the denial of that claim, and our reversal for new trial moots the issue.

      . Whether the trial court erred in permitting the State to amend the information was raised on direct appeal. This court affirmed Sierra’s convictions and sentences. Sierra v. State, 103 So.3d 161 (Fla. 2d DCA 2012) (table decision).


text:
    Anthony Lloyd COBB, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-898
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Anthony Lloyd Cobb, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

'We affirm without discussion' the trial court’s order prohibiting Anthony Lloyd Cobb from filing further pro se pleadings, motions, or petitions- challenging his conviction and sentence in case number 91-5033,

ORDER TO SHOW CAUSE

Further, Anthony Lloyd Cobb has filed numerous postconviction appeals regarding his conviction and sentence in lower tribunal case number 91-5033. Our preliminary review of those prior postconviction proceedings evidences that Anthony Lloyd Cobb has engaged in the filing of appeals on claims that were successive, time-barred, or otherwise wholly without merit. We therefore order Anthony Lloyd Cobb within thirty (30) days from the date of this order, to file á response and to show cause, why this Court should not prohibit him from submitting further pro se appeals, petitions, motions or other pleadings regarding case number 91-5033, unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing.


author: WETHERELL, J.

text:
    Daontae Terrell SCOTT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2717
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017

      Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant, the defendant below, represented himself in two criminal cases that were tried on the same day in separate bench trials. On appeal, he contends that the trial court erred by failing to renew the offer of counsel before the start of the second trial. We disagree and affirm for the reasons that follow.

Appellant was charged with multiple criminal offenses arising' out of separate incidents involving his sister (“the 2014 case”) and his girlfriend (“the 2015 case”). The cases were not consolidated, but they were considered together at a final pretrial hearing held on April 1, 2016. At that hearing, the cases were set for bench trials the following week, and the trial court also considered Appellant’s motion to discharge his court-appointed attorney and represent himself at the trials. After conducting a full Faretta inquiry during which the court advised Appellant of the consequences of self-representation and the charges and potential sentences he was facing in both cases, the court authorized Appellant to represent himself. The court also appointed Appellant’s prior attorney as standby counsel. •

The eases proceeded to trial the following week, on April 7, 2016. The trial court called the 2014 case first and conducted another full Faretta inquiry, but the court only discussed the charges and potential sentences that Appellant was facing in the 2014 case and did not mention the 2015 case. Appellant confirmed that he wanted to continue to represent himself with standby counsel, and the court permitted him to do so. After closing arguments in the 2014 case, the court took that case under advisement and immediately called the 2015 ease. The court did not conduct another Faretta inquiry or renew the offer of counsel prior to starting the trial in the 2015 case, and Appellant represented himself at the trial with standby counsel.

Appellant was found guilty as charged in both cases, and he was sentenced to a lengthy prison term. This appeal followed.

The Florida Supreme Court held in Traylor v. State that the trial court is required to renew the offer of court-appointed counsel to an unrepresented defendant at the commencement of each “crucial stage of the proceeding.” 596 So.2d 957, 968 (Fla. 1992). Specifically, the defendant “must be informed of the right to counsel and the consequences of waiver.” Id.; see also Fla. R. Crim. P. 3.111(d)(5) (“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”).

The trial is a crucial stage of the proceeding at which the offer of counsel must be renewed. See Lamb v. State, 535 So.2d 698, 699 (Fla. 1st DCA 1988). However, that does not necessarily mean that the offer of counsel must be renewed on the first day of trial. See Wilson v. State, 76 So.3d 1085, 1088 (Fla. 2d DCA 2011) (“The beginning of the ‘trial’ in the context of rule 3.111(d)(5) may not be the actual start of the trial, but the start of the trial stage.”). Renewal of the offer of counsel at a pretrial hearing is sufficient so long as the offer was made for the trial stage and there is no intervening crucial stage between the renewal of the offer of counsel and the actual start of the trial. See Knight v. State, 770 So.2d 663, 669-70 (Fla. 2000) (citing Lamb); McCarthy v. State, 731 So.2d 778, 780 (Fla. 4th DCA 1999); Lamb, 535 So.2d at 699; cf. Brown v. State, 113 So.3d 134, 142 (Fla. 1st DCA 2013) (where trial court renewed offer of counsel prior to the start of jury selection, court was not required to renew offer at the start of each day of the multi-day trial); Harris v. State, 687 So.2d 29 (Fla. 5th DCA 1997) (trial court was not required to renew offer of counsel at start of retrial that occurred shortly after mistrial in original trial).

Here, Appellant’s waiver of counsel at the April 1 pretrial hearing was clearly for the trial stage in both cases, and the start of the trial in the 2015 ease less than a week later was not a subsequent, crucial stage of the proceeding for which the offer of counsel had to be renewed. Likewise, the fact that the trial in the 2014. case occurred between the pretrial hearing and the trial in the 2015 case is immaterial because the Faretta inquiry held at the pretrial hearing addressed both cases, and there were no subsequent crucial-stage proceedings in the 2015 case between the pretrial hearing and the start of. trial in that case. Accordingly, we agree with the State'that the trial court did not err when it failed to renew the offer of counsel at the start of the trial in the 2Ó15 case.

Additionally, although not necessarily dispositive based on. Howard v. State, 147 So.3d 1040 (Fla. 1st DCA 2014), it is still significant that Appellant had standby counsel with him at the trials in both cases because as, the Florida Supreme Court stated in Knight, “[s]tandby counsel is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding.” 770 So.2d at 670; see also Brown, 113 So.3d at 142; Bloodsaw v. State, 949 So.2d 1119, 1122 (Fla. 3d DCA 2007); McCarthy, 731 So.2d at 781; Mincey v. State, 684 So.2d 236, 238 (Fla. 1st DCA 1996); Harrell v. State, 486 So.2d 7 (Fla. 3d DCA 1986). Accordingly, under the circumstances of this case, even if the trial court erred by failing to renew the offer of counsel before starting the trial in the 2015 case (despite having done so earlier in the day prior to the start of the trial in the 2014 case), Appellant cannot show prejudice due to the presence of standby counsel in both cases.

Finally, this case is distinguishable from Segal v. State, 920 So.2d 1279 (Fla. 4th DCA 2006), which also involved Faretta and two separate, but related cases. The Fourth District held in that case that it wás error for the trial court not to rénew the offer of counsel prior to the start of the hearing in the defendant’s violation of probation (VOP) case despite the fact that the court conducted a Faretta .inquiry in the criminal case that gave rise -to the VOP case. Id. at 1280. Most pertinent here is that-although the court rejected the State’s argument that the Faretta inquiry in the related criminal case was sufficient, the court also stated that “[w]e might well have affirmed those convictions if there had either been a full Faretta inquiry specifically warning appellant of the dangers of self-representation, including the penalties in his VOP case. ...” Id. at 1281. That is precisely what occurred in this case; .the trial court conducted a full Faretta inquiry at the April 1 pretrial hearing at which Appellant was advised of the charges, and sentences he was facing in both cases.

Accordingly, for the reasons stated above, we affirm Appellant’s judgments and sentences.

AFFIRMED.

RAY and MAKAR, JJ., CONCUR.

      , We affirm the other issues raised by Appellant without discussion.

      . Appellant waived his right to jury trials.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . That said, there certainly would have been no harm in the court renewing the offer of counsel as a precautionary measure before starting the trial in the 20IS case, as it did before starting the trial in the 2014 case.


text:
    Reginald L. HENRY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2415
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant. •

      Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez and Jennifer Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s denial of two pretrial motions to suppress regarding a recording the victim made on her cell phone of a conversation with Appellant in which he made threats in an apparent attempt to extort money from her. It is well-settled that “to raise an error on appeal, a contemporaneous objection must be made , at the trial level when the alleged error occurred.” Carr v. State, 156 So.3d 1052, 1062 (Fla. 2015) (quoting J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998)). Although section 90,104(1), Florida Statutes (2012), provides that, “[i]f the court has made a definitive ruling on the record admitting ... evidence, either at or before trial, a party need not renew an objection ,.. to-preserve a claim of error for appeal,” the statute does not apply to the circumstances in the instant case. Here, the trial court denied both of Appellant’s motions to 'suppress and ruled the recording was admissible. Subsequently, at trial, the State moved to introduce the recording, and Appellant’s counsel affirmatively stated, “no objection.” Pursuant to the Florida Supreme Court’s decision in Carr, counsel’s statement of “no objection” acted to abandon or waive the prior motions to suppress. See 156 So.3d at 1062. Accordingly, this issue was not preserved for appeal, and we affirm without further discussion.

WOLF, RAY, and BILBREY, JJ., CONCUR.


author: BADALAMENTI, Judge.

text:
    Delmer SMITH, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2619
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017

      Delmer Smith, III, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   BADALAMENTI, Judge.

Delmer Smith, III, appeals the dismissal of his motion to return property. The trial court originally dismissed his motion without prejudice to amend, and therefore the trial court’s dismissal was not renewable on appeal. See Almodovar v. State, 74 So.3d 1140, 1140 (Fla. 2d DCA 2011) (citing Brown v. State, 36 So.3d 186, 187 (Fla. 2d DCA 2010)). We relinquished jurisdiction to the trial court so that it could dismiss Mr. Smith’s motion with prejudice. The trial', court obliged, and we may now review the dismissal of Mr. Smith’s motion for return of property.

Mr. Smith was convicted in Sarasota County of armed home-invasion robbery and armed kidnapping with intent to harm or terrorize. He was sentenced to two concurrent terms of life imprisonment. Subsequent to his conviction and sentencing, Mr. Smith filed successive motions for return of property. In his operative motion, Mr. Smith explains that, “[f]or the convenience of [the] court and to facilitate [the] expeditious return of [his] property,” he “made a good faith effort to provide” the court with an evidentiary inventory “based upon evidence- logs/receipts previously provided by” the Sarasota County Sheriffs Office (SCSO) and Venice Police Department (VPD).

Attached to Mr. Smith’s motion was a five-page list created by Mr. Smith, cata-loguing the property that Mr. Smith wanted the State to return. Also attached were multiple property receipts given to him by SCSO and VPD. The list attached to the motion was compiled by Mr. Smith based on the item numbers and the property descriptions in these receipts. Mr. Smith also took the additional step of organizing his property into five “types”—watches, iPods, electronic gadgets, computers, and jewelry.

In its response to Mr. Smith’s motion, the State explained that “[h]undreds of items were seized by multiple agencies and stored under multiple case numbers in connection with the investigation of this case.” Even though Mr. Smith claimed to have made a “good faith effort” to provide the State with a list of his property, the State claimed that it was “unable to determine from his motion precisely which items he is seeking to have returned, and the current location of those items.”

The State gave two specific examples to illustrate its confusion. First, the State pointed out that the first item on Mr. Smith’s list was item number 31, “G Shock Watch.” However, when the State examined the attached SCSO property receipts, it claimed that item number 31 in the receipts was not described as “G Shock Watch” but was instead described as “Allen Wrenches.” Second, the State noted that there were a minimum of five law enforcement agencies involved in this investigation and that the State “should not be forced to ‘figure out’ exactly which items the defendant seeks to have returned and the location of those items.” According to the State, “[t]his burden falls on the defendant and he has failed to meet that burden.”

The trial court found that Mr. Smith failed to meet his burden to “specifically identify” the property he wanted the State to return. The trial court reasoned that “[a]lthough some of the property receipts attached to [Mr. Smith’s] motion appear to [have] originated from [SCSO], several of the property receipt lists contain no indication regarding which law enforcement agency they originated from.” The trial court also stated that “[i]t is ... unclear whether [Mr. Smith] is requesting every single item on each of the property receipts or if some of those items were already introduced as evidence in this case or in [the] capital felony trial in Manatee County.” For all of these reasons, the trial court determined that Mr. Smith’s motion was facially deficient for failing to describe the property that Mr. Smith wanted returned to him. In dismissing Mr. Smith’s motion with prejudice pursuant to our instructions upon relinquishment of jurisdiction, the trial court echoed the same reasons it expressed in its prior dismissal without prejudice.

A facially sufficient motion for return of property must allege that the property at issue is the defendant’s personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence. Durain v. State, 765 So.2d 880, 880 (Fla. 2d DCA 2000). “Implicit in this standard is the requirement that the defendant must specifically identify ‘property at issue.’ ” Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004). “If the trial court finds that a motion to return property is facially sufficient, it may order the'State to respond by citing applicable case law and attaching portions of the record ..,, after which the motion may be summarily denied.” Id. (citing Durain, 765 So.2d at 880-81). “In the alternative, the trial court may hold an evidentiary hearing.” Id.

Here, Mr. Smith’s motion properly alleges that the property he wants returned is his personal property, is not the fruit of criminal activity, and is not being held as evidence. See Durain, 765 So.2d at 880. Mr. Smith provided an itemized list of all the property he wanted returned. A quick comparison between Mr. Smith’s list and the property receipts he has provided indicates that Mr. Smith does not want all of the property on the receipts returned— only those select items on his list. Not only did Mr. Smith meticulously list the items he wanted returned, but he even provided the item numbers corresponding to each item from the receipts. The law asks no more of him. Cf. Eight Hundred, Inc. v. State, 895 So.2d 1185, 1186 (Fla. 5th DCA 2005) (reversing the denial of a motion for return of property where, although the defendant’s description of the property may have been somewhat vague, it was “sufficient to satisfy any uncertainty regarding a proper description of the property sought”); Coon v. State, 585 So.2d 1079, 1081 (Fla. 1st DCA 1991) (same).

Moreover, we reject’ the State’s argument that the property receipts provided by Mr, Smith render his motion deficient because they “contain no indication regarding which law enforcement agency they originated from.” The receipts are all visibly from SCSO and VPD. The receipts specifically provide the locations where the impounded property is—or. has been—located. They also contain handwritten entries describing dates, times, and places of. when and where certain items were received or released by SCSO and VPD.

We recognize that the State may be unsure as to where Mr. Smith’s property may be located at the present moment. But this does not render Mr. Smith’s motion for return of property facially insufficient. If, unbeknown to Mr. Smith, his property no longer resides with those agencies that gave him property receipts, then the proper solution is an evidentiary hearing. See Bolden, 875 So.2d at 782-83 (explaining that the question of “whether the property is still in the agency’s possession” is to be resolved at an evidentiary hearing (citing Stone v. State, 630 So.2d 660, 661 (Fla. 2d DCA 1994))); see also Brown v. State, 613 So.2d 569, 571 (Fla. 2d DCA 1993) (comparing a trial court’s denial of a motion for return of property after the State disclaimed knowledge of certain items which a defendant claimed were seized to “the granting of summary judgment while disputed facts remain unresolved”).

Because Mr. Smith’s motion for return-of property was facially sufficient, the trial court erred in summarily dismissing it for its lack of specificity' and its failure to pinpoint precisely where Mr. Smith’s property may be at the present moment. Accordingly, we reverse the trial court’s summary dismissal and remand for further proceedings consistent with this opinion.

Reversed; remanded with instructions.

SILBERMAN and WALLACE, JJ., concur.

      . The State's confusion seems to stem from the fact that the item numbers on some of the receipts were crossed out in the "Item No.” column and rewritten in the column titled "If Damaged Recovered Value.” Ignoring the crossed-out figures in the "Item No.” column, all of the seized property is correctly numbered to match the numbers on Mr. Smith’s list.


author: LAGOA, J.

text:
    WELLS FARGO BANK, NA, as Trustee, on behalf of the Holders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Mortgage Funding, Trust 2007-AR4, Mortgage Pass Through Certificates, Series 2007-AR4, Appellant, v. BH-NV INVESTMENTS 1, LLC, Appellee.
    No. 3D15-2692
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017.

      Holland & Knight, LLP, and Brian K. Hole and Philip E. Rothschild (Fort Laud-erdale), for appellant. .
    Matthew Estevez, P.A., and Matthew Estevez, for appellee.
    Before LAGOA, FERNANDEZ, and SCALES, JJ.
   LAGOA, J.

Appellant, Wells Fargo Bank, NA, as Trustee, on behalf of the Holders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Mortgage Funding, Trust 2007-AR4, Mortgage Pass Through Certificates, Series 2007-AR4 (“Trustee”) appeals from the trial court’s order entering final summary judgment in favor of Appellee, BH-NV Investments 1, LLC (“BH-NV”). We reverse.

I. FACTUAL AND PROCEDURAL • HISTORY .

;0f significance to this appeal, bn'June 15, 2009, the Trustee filed a complaint to foreclose on the subject property and alleged that the Borrower defaulted by failing to pay the .December 1, 2008, payment and all subsequent payments (the “First Foreclosure Action”). On April 1, 2011, the trial court dismissed the First Foreclosure Action for lack of prosecution...

Subsequently, on July 14, 2015, the Trustee filed a second foreclosure action on the subject property, and alleged that the Borrower defaulted by failing to pay the August 1, 2010, payment and all subsequent payments (the “Second Foreclosure Action”). •

BH-NV filed a Motion for Summary Judgment asserting that the Second Foreclosure Action was barred by the applicable statute of limitations. At the summary judgment hearing, counsel for BH-NV relied on this Court’s opinion in Deutsche Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d DCA Dec. 17, 2014) (“Beauvais I”). Following the hearing, the trial court entered a written order granting BH-NVs motion “on statute of limitations grounds.” This timely appeal ensued.

II. ANALYSIS

On appeal, the Trustee contends that this Court’s en banc decision in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (“Beauvais II”), which withdrew Beauvais I, requires reversal of the trial court’s order finding that the Second Foreclosure Action was barred by the applicable statute of limitations. We agree. As this Court concluded in Beauvais II, “dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action.” Id. at 944.

Moreover, the Florida Supreme Court’s subsequent opinion in Bartram v. U.S. Bank National Ass’n, 211 So.3d 1009 (Fla. 2016), reached the same conclusion on the question at issue here—whether a subsequent foreclosure action filed after an initial foreclosure action that sought acceleration but was later dismissed is barred by the applicable statute of limitations. In Bartram, the Florida Supreme Court concluded that a “Bank had the right to. file a subsequent foreclosure action—and to seek acceleration of all sums due under the note—so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.” Id. at 1021.

Accordingly, both Bartram and Beauvais II hold that a subsequent foreclosure action is not barred so long as the second action is brought on a subsequent default within the five-year statute of limitations period found in section 95.11(2)(c), Florida Statutes. A review of the record evidence in this case shows that the default in the Second Foreclosure Action is different than the default in the First Foreclosure Action. Moreover, the record evidence further establishes that the later default occurred within five years of the- filing of that subsequent action.

Accordingly, we reverse the final judgment and remand to the trial court for reinstatement of the complaint in light of the Florida Supreme Court’s opinion in Bartram and this Court’s opinion in Beau-vais II. We note that the trial court did not have the benefit of either opinion when it rendered the final judgment in favor of BH-NV.

Reversed and remanded for reinstatement of complaint.

      . BH-NV, a non-party to the Note and Mortgage, is the current owner of the subject property and purchased the property subject to the Trustee’s mortgage.

      . This Court appreciates a party filing a confession of error, especially when filed prior to the parties expending unnecessary litigation costs and prior to this Court’s expenditure of its limited judicial .resources. Here, BH-NV filed a Confession of Error on July 19, 2017, based on this Court's decision in Wells Fargo Bank, N.A., v. Spence, 213 So.3d 1142 (Fla. 3d DCA 2017). We note that Spence was decided on April 5, 2017, well before BH-NV’s Answer brief was filed on May 22, 2017. As a result of BH-NV’s failure to file its Confession of Error earlier even though Bar-tram, Beavais II, and Spence were decided well before its Answer brief was due, Wells Fargo was required to incur the expense of preparing and filing both an Initial Brief and a Reply Brief, and this Court was required to consider a matter where the legal issue presented had been resolved against BH-NV's position by both this Court sitting en banc and the Florida Supreme Court.


author: FERNANDEZ, J. ROTHENBERG, C.J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Barry MUKAMAL, as court-appointed receiver FOR Carlos LACAYO; and Kathleen Kastenholz and Michael Kastenholz, as co-personal representatives of the Estate of Emerson Michael Kastenholz, Appellees.
    No. 3D15-2750
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Rehearing Denied October 18, 2017

      Shutts & Bowen, LLP, Stephen T. Maher, Frank A. Zacherl, and Alfredo L. Gonzalez, Jr., Miami, for appellant.
    Deutsch & Blumberg, P.A. and Edward R. Blumberg, Miami; James C. Blecke, Coral Gables; Tabas, Freedman, Soloff, P.A. and Joel L. Tabas, Miami and Joshua D. Silver; Michael Seth Cohen, Coral Gables; Easley Appellate Practice, PLLC, and Dorothy F. Easley, Coral Gables, for appellees.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LOGUE, JJ.
   FERNANDEZ, J.

GEICO General Insurance Company appeals from two final summary judgments entered in favor of appellees Kathleen and Michael Kastenholz, and appellee Barry Mukamal who is the court-appointed receiver for Carlos Lacayo, on the claim for declaratory judgment. We affirm the judgments, concluding that insurance coverage existed as a matter of law because there-was no genuine issue of material fact that GEICO failed to comply with the Claims Administration Statute, section 627.426, Florida Statutes (2015).

The Kastenholzes sued Lacayo for the wrongful death of their son that resulted from an automobile accident. GEICO first notified Lacayo of its reservation of rights to deny coverage because Lacayo was not listed as a driver under the insurance policy. Lacayo absconded and his whereabouts are unknown. GEICO thereafter notified Lacayo of its reservation of rights because Lacayo failed to cooperate with GEICO’s investigation. GEICO issued numerous other reservation of rights letters. GEICO represented Lacayo for a period of years and throughout post judgment proceedings. The jury ultimately returned a verdict for $15,350,000 in favor of the Kastenholzes. The trial court entered final judgments consistent with the jury’s verdict. GEICO subsequently sought to decline coverage based on the coverage defense of breach of cooperation.

GEICO’s coverage defense failed to comply with the requirements of the Claims Administration, Statute. The plain and unambiguous language . of section 627.426 states:

(2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless:
(a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail .sent to the last known address of the insured or by hand delivery; and .
(b) Within 60 days of compliance with paragraph (a) or receipt of a summons and complaint naming the insured as a defendant, whichever is later, but in no case later , than 30 days before trial, the insurer:
1. Gives written notice to the named insured by registered or certified mail of its refusal to defend the insured;
2. Obtains from the insured a non-waiver agreement following full.disclosure of the specific facts and policy provisions upon which the coverage defense is asserted and the duties, obligations, and liabilities of the insurer during and following the pendency of the subject litigation; or
3. Retains independent counsel which is mutually agreeable to, the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court,.

(Emphasis added).

. GEICO did not comply with the written “refusal to defend” through .registered or certified mail, pursuant to section (2)(b)l. GEICO instead defended Lacayo. Neither did GEICO comply with sections (2)(b)(2), (3).,GEICO-could not obtain from Lacayo a “nonwaiver agreement” or “retain[j independent counsel which [was] mutually agreeable to the parties” because Lacayo had. absconded and GEICO did not know of Lacayo’s whereabouts. The trial court’s entry of summary judgments against GEI-CO was therefore proper.

Affirmed.

ROTHENBERG, C.J.

(specially concurring).

Although I agree that the result articulated in the majority opinion is mandated by the clear and unambiguous language of section 627.426, Florida Statutes (2015), I write to expose what appears to be an unintended consequence of the literal interpretation of the statute that, in this ease, defeats the very purpose of the statute. I also write to invite the Legislature to review and amend the statute to reflect the 'Legislative intent.

Carlos Lacayo, was involved in a traffic accident while driving intoxicated, resulting in the death of five individuals. The vehicle Lacayo was driving was owned by Lacayo’s mother and insured ,by Geico General Insurance Company (“Geico”). On March 9, 2011, four days after the accident, Geico sent a reservation of rights letter to Lacayo advising him that, while it was providing him with a defense, Geico was reserving its right to deny coverage because he was not listed as a driver on the policy. On March 10, 2011, an attorney from Cole Scott and Kissane, P.A. (“Cole Scott”) wrote to Lacayo’s mother, advising her that Geico had appointed the firm to represent her and her son. This letter included a statement of the insured client’s rights.

Thereafter, Lacayo and his mother met with a lawyer from Cole Scott, discussed the case with the lawyer, and signed financial and insurance affidavits and an authorization for disclosure of protected- health information, identifying the Cole Scott lawyer as counsel for Lacayo. Several weeks later, Lacayo signed another authorization for disclosure of protected health information, which again identified the Cole Scott lawyer as counsel for Lacayo,

The personal representatives, on behalf of the estates, filed a wrongful death action (“the plaintiffs”). Discovery ensued, and both Lacayo and his mother attended a litigation settlement conference.

On June 7, 2011, facing arrest for DUI manslaughter, Lacayo fled the jurisdiction, and his whereabouts remain unknown. Based on Lacayo’s flight and failure to cooperate, Geico sent numerous additional reservation of rights letters but continued to represent Lacayo and provided him with a defense. Lacayó did not return any of Geico’s phone calls, appear for deposition, or answer interrogatories, which resulted in Lacayo’s pleadings being stricken for his failure to comply with' discovery.

In September 2012, the plaintiffs made a settlement offer of $100,000, the policy limit. Because Cole Scott had not had any communications with Lacayo, had ho •knowledge of his whereabouts, and had no authority to accept the settlement offer, the case proceeded to trial, and the jury returned a verdict of $15,350,000 in favor of the plaintiffs. No appeal of the judgment was filed on Lacayo’s behalf, however, Cole Scott did represent Lacayo at various post-judgment proceedings.

Thereafter, the plaintiffs and the court-appointed receiver for Lacayo (“the appel-lees”) filed a lawsuit against Geico alleging Geico exercised bad faith in its handling of the claims and its obligations under the insurance contract. Because no final determination of coverage had been made, Geico filed a declaratory judgment against the appellees in the United States District Court, and the appellees amended their complaint in their bad-faith action to address the issue of coverage.

Ultimately, the coverage issue was decided" by the trial court after the federal district court dismissed Geico’s federal coverage action on abstention grounds. The trial court granted summary judgment in favor of the appellees on the coverage issue based on its-finding that Geico did "not comply with the' expressfy listed methods of compliance with section 627.426(2)(b), the Claims Administration Statute. Specifically, Geico- did not deny coverage, obtain a non-waiver agreement from Lacayo within sixty days of its reservation of rights letter, or retain independent mutually agreeable counsel to represent Lacayo. Thus, Geico was precluded as a matter of law from denying coverage.

Pursuant to section 627.426, once Geico sent its reservation of rights notice to assert a coverage defense, Geico had three options: (1) refuse to defend Lacayo; .(2) obtain a non-waiver agreement from La-cayo; or (3) retain independent, mutually agreeable counsel to represent Lacayo. Failure to perform any of these three options precludes a later attempt to deny coverage.

Geico did not refuse to defend Lacayo within sixty days of its reservation of rights. And because Lacayo absconded, Geico could not obtain either a non-waiver agreement from Lacayo or Lacayo’s agreement for the appointment of independent counsel to represent Lacayo. Thus, Geico was placed.in the proverbial catch 22 position. It could either (1) abandon Lacayo entirely, leaving Lacayo with no representation or defense, and potentially subject itself to bad-faith litigation if it was later determined that Lacayo was covered by the policy, or (2) continue to defend La-cayo in his absence and waive its coverage defense; Geico chose the second option.

ANALYSIS

Although Geico’s initial reservation of rights was based on Geico’s position that Lacayo was not covered by the subject policy, after Lacayo fled on June 7, 2011, Geico sent several additional reservation of rights letters to Lacayo’s last known address based on Lacayo’s failure to cooperate, which under the policy was a defense to coverage. However, under the Claims Administration Statute, because Geico was unable to either obtain a non-waiver agreement or retain independent counsel mutually agreeable to Lacayo and Geico because Lacayo’s whereabouts were unknown, Geico had only one option available to it—to deny Lacayo coverage. Geico, however, not wanting to leave Lacayo without representation, continued to represent and defend Lacayo, and as a result, is now subject to a bad-faith lawsuit filed against it by both the plaintiffs and the receiver appointed for Lacayo, and Geico is precluded from asserting a coverage defense.

While section 627.426 is clear and unambiguous, and therefore mandates the result identified by the trial court and the affir-mance being issued by this Court, such a result appears, to me, to be contrary to the intent of the statute; which is to protect both the insured and the insurer when the issue of coverage remains an open question. Requiring the insurer to abandon a putative insured in order to protect the insurer’s coverage defense only benefits the plaintiff, who will be able to litigate his/hers/its claims without opposition. And if it is subsequently determined that the putative insured’s absence or failure to cooperate was not willful, and the putative insured was in fact covered by the policy, then the insurer would be subject to a bad faith litigation claim for failing to defend the insured. It is unlikely that the Legislature intended such a result when it enacted section 627.426.

I, therefore, concur with the majority opinion, and write solely to identify what appears to be an unintended consequence of the subject legislation and to invite review by the Florida Legislature.

FERNANDEZ, J., concurs.


author: SUAREZ, J. SCALES, J.

text:
    Eduardo GARCIA, Petitioner, v. CHRISTIANA TRUST, etc., et al., Respondents.
    No. 3D16-735
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017

      Sordo & Associates, P.A. and Alexander Pena and Cesar R. Sordo; Arnaldo Velez, P.A., and Arnaldo Velez, for petitioner.
    Baker, Donelson, Bearman, Caldwell & Berkowitz, PC and David B. Levin and Joshua R. Levine (Ft. Lauderdale), for respondent Christiana Trust.
    Before SUAREZ, FERNANDEZ, and SCALES, JJ.
   SUAREZ, J.

Christiana Trust seeks an order enforcing this Court’s mandate in Garcia v. Christiana Trust, 208 So.3d 176 (Fla. 3d DCA 2016). We grant the motion and order the trial court to vacate its April 5, 2017 order.

This is the fourth time this case comes before us. Title to the property was held by the entireties by Petitioner Eduardo Garcia (“Garcia”) and his wife, Bertha. Bertha allegedly forged Garcia’s signature on the Note and Mortgage. When the Bank sought to foreclose, it was only possible against the wife’s interest. The Final Judgment of Foreclosure provided that the Bank held a lien against the -property for the debt owed, but not as to Garcia, The property was sold, but the buyer found out after the sale that the property could not be divided because it was held by the entireties. This Court reversed the order denying the buyer’s objections to the sale and ordered the trial court to return the buyer’s money. In that opinion, however, the panel also reversed the Final Judgment' of Foreclosure. Rocketrider v. BankUnited, 138 So. 3d 1223 (Fla. 3d DCA 2014).

Garcia then sought a determination from the trial court that he was not liable on the note and mortgage, and to quiet title. The bank’s successor in interest, Christiana Trust, moved to file an amended complaint in foreclosure and to add new counts. The trial court, relying on the Rocketrider opinion, reversed the Final Judgment arid granted the Trust’s leave to amend the foreclosure complaint,

Garcia appealed, which leads us to the second opinion, Garcia, 208 So.3d 176. In that opinion, this Court recognized that 1) Garcia never appealed from the Final Judgment in Foreclosure back in 2013; thus, that judgment was final; 2) The. Rocketrider appeal was only between the Bank and the buyer—Garcia was not a party to that appeal, and 3) the Final Judgment, in foreclosure was not at issue. The opinion concluded that the Final Judgment could not be reversed or the matter reopened at that point. The panel deemed Garcia’s appeal as a petition for certiorari, granted the petition and quashed the order below granting the Trust’s motion to amend the complaint in foreclosure, and directed the trial court to reinstate the 2013 Final Judgment of Foreclosure.

On remand, Garcia went back to the trial court on a Rule 1.540(b)(6) motion seeking relief from judgment, and asked the trial court to remove the Trust’s lien against the property so that it’ could be sold. Garcia did' not argue the 1.540(b) merits, but rather" contended for the first time at the hearing that the trial court had ongoing jurisdiction to “do equity” because of the general reservation of jurisdiction contained in the Final Judgment of Foreclosure.

The Trust argued that Garcia was raising this issue for .the first time, as it was not. plead in the 1.640(b) motion. In addition, the Trust argued that the standard general reservation of jurisdiction was not specific, and did not extend to reopening an un-appealed final judgment more than three years later when there had been no change in circumstances. On April 5, 2017, the trial court issued an order determining that it had jurisdiction under the general reservation of jurisdiction clause of the Final Judgment of Foreclosure. The court determined that the Final Judgment “is not a cloud on the title on the property ..', Hence, property can be sold free of said judgment lien—cloud.” Christiana Trust now seeks an order from this Court enforcing the Mandate of Garcia reinstating the Final Judgment of Foreclosure-.

We agree with the Trust that the general reservation of jurisdiction in the Final Judgment of Foreclosure does not give the trial court jurisdiction to eliminate the Trust’s lien more than three years after the Final Judgment of Foreclosure became final. The general reservation of jurisdiction in a foreclosure judgment is deemed in case law to be appropriate for deficiency judgments, but little else. The reservation of jurisdiction in the final judgment of foreclosure must be very specific in order to apply to such things as seeking unpaid assessments post-judgment or post-sale. See, e.g., Cent. Mortg. Co. v. Callahan, 155 So.3d 373, 376 (Fla. 3d DCA 2014) (holding the final judgment contained a general reservation of jurisdiction but did not specifically reserve jurisdiction to determine the amount of assessments due, it merely .retained jurisdiction to enforce— via writs of possession and deficiency judgments—.the final judgment entered in the matter); Harrell v. Harrell, 515 So.2d 1302, 1304 (Fla. 3d DCA 1987) (stating that once a trial court enters a final judgment and the time for filing post-trial motions has expired, a trial court may not entertain post-judgment motions absent a rule to the contrary,-“unless it specifically retained jurisdiction to do so in its final judgment”). Further, the general reservation of jurisdiction does not allow for a supplemental complaint or to add an omitted party post-judgment. See, e.g., Ross v. Wells Fargo Bank, 114 So.3d 256 (Fla 3d DCA 2013).

Florida Rule.of Civil Procedure 1.540(b)(5) requires the moving party to “allege new circumstances affecting the decision made by the trial judge.” Gotham Ins. Co. v. Matthew, 179 So.3d 437, 442 (Fla. 5th DCA 2015) (quoting In re Guardianship of Schiavo, 792 So.2d 551, 561 (Fla. 2d DCA 2001)). In addition, the moyant must establish that these new circumstances “make it no longer equitable for the trial court to enforce its earlier decision. In re Guardianship of Schiavo, 792 So.2d at 561. At its core, there must be some new. post-judgment fact or occurrence that requires the trial court, in equity, to recede from its prior order or judgment. See Bank of N.Y. Mellon v. Peterson, 208 So.3d 1218, 1223 (Fla. 2d DCA 2017); see also Miami-Dade Cty. v. Second Sunrise Inv. Corp., 56 So.3d 82, 85-86 (Fla. 3d DCA 2011) (reiterating the clear legal principle that “something must have happened after the entry of final judgment ’ that should ‘equitably limit’ the judgment’s application” in order for rule 1.540(b)(5) to apply); Baker v. Baker, 920 So.2d 689, 692 (Fla. 2d DCA 2006) (“[T]his court has held that the equities mentioned in [rule 1.540(b)(5)] are limited to ones that come to fruition after the final judgment.”). Here, Garcia did not allege below any new or changed, post-judgment circumstances in his written motion, nor does the record reveal any such circumstances.

We therefore grant the Trust’s motion to enforce the Mandate, and order the trial court to vacate the April 5, 2017 order below’ which eliminated the .Trust’s lien against the property, and reinstate' the February 28, 2013 Final Judgment of Foreclosure.

SCALES, J.

concurring.

I wholeheartedly concur with the majority opinion and write separately to emphasize that this Court’s granting of the Trust’s motion to enforce our earlier mandate should not be interpreted as an independent validation of the Trust’s' lien on Garcia’s wife’s interest in the property. That lien, while adjudicated in a final judgment, is derived from a mortgage purporting to encumber jointly owned marital property. Yet, as adjudicated by the trial court in the same final judgment, the mortgage was signed by only one spouse. Because the foreclosure judgment was not appealed, however, the majority opinion does not reach the issue of whether this hen would have withstood appellate scrutiny.

      . The general reservation of jurisdiction in the Final Judgment of Foreclosure reads, "Jurisdiction. The court retains jurisdiction of this action to enter further”'orders that are proper, including, without limitation, a deficiency judgment.” ,

      . Tins Court leariiéd during the pendency of • this appeal that Garcia and his wife Bertha . no longer had ownership interest in the property, having conveyed their interest to a third party by special warranty deed recorded soon after the trial court issued the order being challenged here, but before the Trust filed its Motion to Enforce Mandate, We separately grant Christiana Trust’s motion to strike Garcia's Response to the Motion to Enforce Mandate as'he no'longer has standing to participate in this appeal. Our opinion in this matter, however, remains unchanged.


text:
    Florentino LABANINO-CAMEJO, and F & J Transport Corp., Appellants, v. Sandra Lee SALVATO, Appellee.
    Case No. 2D17-939
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Joseph A. Kopacz and Anthony J. Petril-lo of Luks, Santaniello, Petrillo & Jones, Tampa, for Appellants.
    Kathryn E. Lee, Thomas S. Harmon, and Steven D. Parker of Harmon, Woods & Parker, P.A., Tampa, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, BLACK, and SALARIO, JJ., Concur.


text:
    Joseph CARBONE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1061
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Joseph Carbone, pro se.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011); Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975); Carbone v. State, 132 So.3d 231 (Fla. 2d DCA 2014) (table decision); Fox v. State, 827 So.2d 377 (Fla. 3d DCA 2002).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


text:
    Karen Touchton HIGGINBOTHAM, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2524
    District Court of Appeal of Florida, First District.
    Opinion filed August 30, 2017

      Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel R. Krumbholz and Thomas H. Duffy, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Novaton v. State, 634 So.2d 607, 609 (Fla. 1994) (double jeopardy claims waived when defendant enters into negotiated plea agreement).

ROWE, RAY, and KELSEY, JJ., CONCUR.


text:
    Karen Touchton HIGGINBOTHAM, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2523
    District Court of Appeal of Florida, First District.
    Opinion filed August 30, 2017.
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel R. Krumbholz and Thomas H. Duffy, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Novaton v. State, 634 So.2d 607, 609 (Fla. 1994) (double jeopardy claims waived when defendant enters into negotiated plea agreement).

ROWE, RAY, and KELSEY, JJ., CONCUR.


text:
    Jeremiah BUTLER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-6110
    District Court of Appeal of Florida, First District.
    Opinion filed August 30, 2017
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

In accordance with instructions from the Florida Supreme Court, this cause is remanded for resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Kelsey v. State, 206 So.3d 5 (Fla. 2016).

OSTERHAUS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


text:
    Roderick FARLIN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3154
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017.
    Roderick Farlin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236, 1238 (Fla. 2004).

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    STATE of Florida, Appellant, v. Nicodious NORWOOD, Appellee.
    CASE NO. 1D16-4363
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, , Assistant Attorney General, Tallahassee, for Appellant,
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee,-for Appellee.
   PER CURIAM.

AFFIRMED. See Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016).

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


text:
    UTOPIA HOME CARE/GUARANTEE INSURANCE COMPANY, Appellants/Cross-Appellees, v. Beatriz ALVAREZ, Appellee/Cross-Appellant.
    CASE NO. 1D16-1696
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.

      Paulette Z. Brown and Ben H. Cristal of Cristal Hanenian, Tampa, for Appellants/Cross-Appellees.
    Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, and Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland, for Appellee/Cross-Appellant. ■
   PER CURIAM.

The issue before us is the proper interpretation of section 440.093(3), Florida Statutes (2011). Under the plain meaning of the statute, which we will discuss before applying it to the facts of this case, we reverse.

Benefits for Mental or Nervous Injury.

At all pertinent times, section 440.093(3) has provided as follows: '

Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensa-ble mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries, which shall be included in’ the period of 104 weeks as provided in s. 440.15(2) and (4). Mental or nervous injuries are compensable only in accordance with the terms of this section.

' Section 440.093(3) must be interpreted in para materia with the .subsections that immediately precede it and the sections expressly referenced within it. See Cecil W. Perry, Inc. v. Lopez, 425 So.2d 180, 181 (Fla. 1st DCA 1983) (reading parts of pertinent subsection of workers’ compensation act in para materia to arrive at proper construction); White v. City of Jacksonville, 413 So.2d 95, 96 (Fla. 1st DCA 1982) (same). The subsections immediately preceding section 440.093(3) emphasize the requirement of an “accompanying physical injury requiring medical treatment” before payment of benefits for mental or nervous injuries is allowed. § 440.093(1), Fla. Stat. (2011). Mental or nervous injuries must be demonstrated by “clear and convincing medical evidence, by a licensed psychiatrist,” and the compensable physical injury must “be and remain the major contributing cause of the mental or nervous condition.” § 440.093(2), Fla. Stat. (2011).

The reference to section 440.15, Florida Statutes (2011), at the beginning of section 440.93(3)—“[sjubject to the payment of permanent benefits under s. 440.15”—like-wise requires a connection between mental or nervous injuries and an underlying com-pensable physical injury that is permanent in nature. Section 440.15 provides for payment of permanent benefits for permanent total disability or for permanent impairments remaining after the date of maximum medical improvement (“MMI”). § 440.15(1), (3) Fla. Stat. (2011). Thus, when a claimant attains physical MMI and the physical injury qualifies for a permanency rating, the claimant is entitled to, and “subject to the payment of permanent benefits” under, section 440.15.

The dispute before us involves the next phrase in section 440.093(3): “in no event shall temporary benefits for a compensable mental or nervous injury be paid fór more than six months after the date of maximum medical improvement for the injured employee’s physical injury or injuries .... ” The issue is whether this six-month period is a bank of time that, subject to the payment of permanent benefits, can be awarded at any time' after the claimant reaches physical MMI; or whether it is a calendar-based limitation that begins upon physical MMI and expires six months later. Our prior cases addressing the issue treat the six-month period as a calendar-based limitation, and we adhere to that interpretation.

In School Board of Lee County v. Huben, 165 So.3d 865 (Fla. 1st DCA 2015), we construed the statute according to its plain meaning, as we must. Id. at 867 (“in construing statute, courts must first look to its plain language”) (citing Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DOA 2008)). We concluded that the plain meaning of the statute required us to reject the “bank of time” interpretation of the six-month limit in section 440.093(3) in favor of a strict calendar-deadline interpretation:

In contrast to the JCC’s understanding, we read section 440.093(3) to set á strict deadline after which no [temporary total disability] benefits are payable on psychiatric injuries. The plain language of the statute marks a date on the calendar, or starts a clock that stops six months to the day after the date of physical MMI.

Huben, 165 So.3d at 867. In Huben, the claimant reached MMI on her compensa-ble physical injury on January 9, 2014. Id. at 866. She had a twenty-percent permanent impairment rating and was receiving impairment benefits based on that rating. Id. On July 3, 2014, five months and twenty-four days later, she for the first time obtained the requisite medical opinion that she had a compensable mental injury. Id. The JCC in Huben treated the six-month period of section 440.093(3) as a bank of time that could commence upon the date of the medical opinion as to compensable mental injury. Id. We rejected that interpretation, instead applying the statute as plainly written to have started the clock on the date of the claimant’s MMI, leaving her eligible to be compensated for only six days’ worth of psychiatric benefits. Id. Our interpretation in Huben was consistent with our observation in an earlier case that the six-month limit is durational. Sarasota Cty. Sch. Bd. v. Roberson, 135 So.3d 587, 590 (Fla. 1st DCA 2014) (“[T]he Legislature [in 2003 amendments] opted to place a limit on the duration of temporary disability benefits payable in association with a compensable psychiatric injury.”).

Under Huben, claimants Who do not manifest potentially compensable mental or nervous injuries before or within six months after reaching physical MMI are not eligible for temporary mental health disability benefits. Likewise, claimants who manifest such mental or nervous injuries before or immediately after reaching physical MMI, but who do not immediately obtain the required medical opinion of compensability for qualifying mental injuries, may have little or no time left in that indemnity benefits window. This may seem unfair in the abstract, and we noted in Huben that a plain-meaning application of section 440.093(3) may lead to results at odds with the overall purpose of the workers’ compensation law. Huben, 165 So.3d at 867. However, the limited grant of eligibility for mental-health benefits in section 440.093 is an exception to the general rule of non-compensability for such injuries, and limiting that exception is within the province of the Legislature, Limiting the availability of post-physical MMI temporary mental-health disability benefits to the six-month period immediately after initial physical MMI has support in logic and is not facially unreasonable. As we expressly stated in Huben, the Legislature can amend the statute if it did not contemplate such a result. Id. The Legislature has not done so.

Huben is not inconsistent with, or limited by, our earlier opinion in W.G. Roe & Sons v. Razo-Guevara, 999 So.2d 708 (Fla. 1st DCA 2008). In Razo-Guevara, we noted that the claimant there was not being paid permanent benefits. Id. at 709. Interpreting Razo-Guevara in light of the plain meaning of the statute and, as consistent with Huben, we conclude that Razo-Gue-vara does not create a right to unlimited psychiatric indemnity benefits during times when no permanent benefits are being paid. Such a construction would contravene the clear import of the physical injury and permanency prerequisites to eligibility for mental-health, benefits imposed in subsections (1) and (2) of section 440.093. When the Legislature provided in the introductory phrase of section 440.093(3) that post-physical MMI temporary disability benefits for mental or nervous injury are “subject to” payment of permanent benefits under section 440.15, the intent was to limit, not expand, benefits for mental health injuries.

Applying the Statute to this Case.

In this case, Claimant suffered a com-pensable shoulder injury and underwent surgery for that injury. She reached physical MMI in January of 2012. and received impairment benefits based on a two-percent permanent impairment rating. The six-month window to obtain post-physical MMI temporary disability benefits for her mental injury opened, on that date and closed six months later, in.July of 2012; but there is no evidence that Claimant needed such benefits then, and she did not claim them.

However, Claimant continued to report pain, which prompted her doctor to recommend a second surgery, but conditioned on a psychiatric evaluation. The evaluation was completed with a diagnosis of major depressive disorder, for which the compen-sable accident was the major contributing cause. The Employer/Carrier accepted compensability of the psychiatric condition and provided psychiatric treatment'. Due to the worsening’of her shoulder injury and the recommendation for a second surgery—a remedial procedure—Claimant was regarded as no longer at MMI as of 2012. MMI was re-assigned' for the shoulder injury to July 26, 2013.' Almost two years later, Claimant sought indemnity benefits for the'psychiatric condition, and an expert'medical advisor (“EMA”) testified at his deposition on January 27, 2016; that Claimant was not yet át psychiatric MMI and should' be off work entirely for three months. The JCC awarded Claimant three months of psychiatric benefits to begin on the date of the EMA’s deposition, noting the six-month statutory limit.

The parties assert on appeal the same arguments they presented to the JCC. The Employer/Carrier assert that section 440.093(8) limits temporary benefits post-physical MMI for a compensable mental or nervous injury to six months and that a request for such benefit ripens the day after physical MMI is attained—but claim no evidence on this record would support such an award during that time period. Claimant argues that section 440.093(3) does not apply because it applies only to claimants who are receiving permanent impairment benefits during the weeks .in which they would be receiving the temporary psychiatric disability payments. Under Claimant’s argument, the temporary psychiatric disability benefits that the Legislature intended to limit would instead become unlimited.

We reject Claimant’s argument on the direct appeal. While the JCC correctly applied a calendar-based start date for post-physical MMI temporary mental-health disability benefits and ruled that the benefits were subject to the six-month statutory limit, he erred by starting the clock running on the date of the EMA’s deposition, over four years after Claimant reached physical MMI initially or two years after the reassigned MMI due to the ■ decline in' physical condition and the recommendation for further remedial care. To the extent that the JCC intended to treat the six-month period of section 440.093(3) as a bank of time that could be doled out over an extended period after Claimant reached physical MMI, this was also error and contrary to the plain meaning of the statute and our holding in Huben. The statute dictates that temporary psychiatric disability benefits are not. payable for dates or time periods later than “six months to the day after the date of physical MMI,” Huben, 166 So,3d at 867. Therefore, the award in this particular case—for three months starting January 27, 2016— was reversible error. This is true whether the start date was Claimant’s initial physical MMI in January 2012 or the second physical MMI date of July 26, 2013. -This construction gives effect to the legislative expression of intent to begin such benefits in close temporal proximity to the causative physical injury and to terminate their availability in six calendar months.

On cross-appeal, Claimant specifically challenges the application of section 440.093(3)’s six-month limitation to her award and challenges the constitutionality of that six-month-limit. We reject as premature the cross-appeal arguments because the award on appeal is for a three-month term.

REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings in accordance with this opinion.

ROWE, KELSEY, and JAY, JJ., CONCUR.

      . Not all compensable physical injuries at the date of MMI are permanent in nature and qualify for a permanent impairment rating under the applicable impairment rating guidelines. See § 440.15(3)(b)-(c), Fla. Stat. (2011). If at the date of MMI the physical injury does not qualify for a permanent rating, the Claimant is not eligible for permanent benefits under section 440.15.

      . We acknowledge that the second sentence of section 440.093(1), Florida Statutes, provides for a mental or nervous injury accompanying a physical injury that may constitute its own separate injury independent of the com-pensable physical injury. See McKenzie v. Mental Health Care/Summit, 43 So.3d 767 (Fla. 1st DCA 2010). However, no independent mental or nervous injury is asserted here.

      . Notably, this case does not raise the issue of a subsequent re-assignment of a claimant’s physical MMI date and the potential for an increase in the permanent impairment rating qualification due to the decline or worsening of a physical condition requiring the need for further remedial medical care. Accordingly, we do not address that question in this case.

      . The temporary benefits at issue here do not fall within the six-month calendar window of this re-assigned MMI date.