author: LOGUE, J.

text:
    Darrin E. MCGILLIS, Appellant, v. DEPARTMENT OF ECONOMIC OPPORTUNITY; and Rasier LLC, d/b/a UBER, Appellees.
    No. 3D15-2758
    District Court of Appeal of Florida, Third District.
    Opinion filed February 1, 2017

      Darrin E. McGillis, in proper person.
    Shutts & Bowen LLP, and Daniel E. Nordby (Tallahassee), and Andrew E. Schwartz (Fort Lauderdale), for appellee Department of Economic Opportunity; Littler Mendelson, P.C., and Courtney B. Wilson, for appellee Rasier, LLC.
    Before LAGOA, SALTER, and LOGUE, JJ.
   LOGUE, J.

Darrin E. McGillis, a former Uber driver, appeals the decision of the Florida Department of Economic Opportunity concluding that an Uber driver is not an employee for the purpose of reemployment assistance. Because the parties’ contract explicitly provides that an Uber driver is not an employee and the nature of the parties’ relationship was consistent with this classification, we agree. We therefore affirm the Department’s order denying McGillis’ claim for reemployment assistance.

FACTS AND PROCEDURAL HISTORY

Uber is a technology platform that connects drivers with paying customers seeking transportation services. McGillis served as an Uber driver until Uber revoked his access to the technology based on alleged violations of Uber’s user privacy policy. McGillis then filed a claim for reemployment assistance against Rasier LLC, d/b/a Uber. The threshold issue raised by McGillis’ claim was whether he provided service to Uber as an employee entitled to reemployment assistance under section 443.1216, Florida Statutes (2015), or whether he served Uber as an independent contractor.

The Department of Revenue initially found that McGillis served as an Uber employee. Uber contested this determination, and an evidentiary hearing was held before the Department of Economic Opportunity. Following the hearing, a special deputy recommended a reversal of the Department’s order. The special deputy found McGillis had served Uber as an independent contractor and was therefore not entitled to reemployment assistance. McGillis filed exceptions to the recommended order. In a detailed final order, the executive director of the Department of Economic Opportunity adopted the special deputy’s recommended order and overruled McGillis’ exceptions. McGillis filed this timely appeal.

At the hearing before the Department, witnesses explained in detail how Uber’s transportation network software works. The software consists of two applications that are generally accessible on smart-phones: a “user application,” used by individuals seeking transportation services, and a “driver application,” used by individuals willing to provide transportation services. Drivers receive a percentage of the fare charged to the passengers, and Uber processes payments to drivers weekly by direct deposit.

Uber supplies additional insurance coverage for commercial operation of a vehicle, but it does not provide other benefits such as medical insurance, vacation pay, or retirement pay. At the end of each year, Uber sends each driver a “Form 1099”— an Internal Revenue Service form used to report payments to independent contractors—setting out the amounts paid to the driver for the year.

A prospective Uber driver must agree to the terms and conditions of Uber’s “Software Sublicense and Online Agreement.” This contract specifies that the driver is an independent contractor and not an employee. It further explains that the driver, as an independent contractor, is not entitled to unemployment benefits:

This Agreement is between two coequal, independent business enterprises that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The Parties are not employees, agents, joint venturers or partners of each other for any purpose. As an independent contractor, you recognize that you are not entitled to unemployment benefits following termination of the Parties’ relationship.

The contract further specifies that each trip request accepted is considered a “separate contractual engagement,” that drivers are “entitled to accept, reject, and select” requests as they see fit, and that drivers have no obligation to accept any request. Drivers are free to set their own schedules and to determine what locations they will serve.

A prospective driver is subject to a background check and must provide Uber with information about the driver’s vehicle, registration, license, and insurance. Drivers are responsible for supplying, maintaining, and fueling their own vehicles. Uber does not require drivers to display Uber signage in their vehicles, nor does Uber control the drivers’ attire. Drivers are free to switch between using Uber’s driver application and the application of a competitor, such as Lyft.

Uber does not directly evaluate or supervise its drivers. Instead, passengers rate theft drivers on a scale ranging from one to five stars. If a driver’s overall rating falls below the level set by the region’s general manager and no improvement is shown, Uber may deactivate the driver’s account.

During his time as an Uber driver, McGillis experimented with when and where to use the driver application. He spent his own time and money investigating the most profitable times and locations. Uber did not reimburse him for any costs related to this market research, such as the cost of gas. And although McGillis left his previous job to use Uber’s driver application, Uber did not require him to do so. Nor did Uber prohibit him from receiving ride requests from Lyft’s driver application. In fact, McGillis switched between using Uber and Lyft at his discretion.

Based on the testimony presented at the hearing, the Department’s executive director concluded that Uber drivers were not employees. It noted that the drivers exercise a level of free agency and control over their work different from that of the traditional master-and-servant model indicative of an employer-employee relationship:

The agreement between drivers and Uber specifies that the relationship is one of independent contractor, and the actual course of dealing confirms that characterization. Drivers have significant control over the details of their work. Drivers use their own vehicles and choose when, if ever, to provide services through Uber’s software. Drivers decide where to work. Drivers decide which customers to serve. Drivers have control over many details of the customer experience. Drivers may provide services through, or work for, competing platforms or other companies when not using the Uber application. On these facts, it appears that Uber operates not as employer, but as a middleman or broker for transportation services.

Rasier, LLC v. Fla. Dept. Econ. Opportunity, 0026 2834 68-02 McGillis (Fla. Dept. Econ. Opp. Dec. 3, 2015) at 2.

ANALYSIS

At the outset, we approve the executive director’s observation regarding the changes rippling through our society as a result of the technology at issue:

The internet and the smartphones that can now access it are transformative tools, and creative entrepreneurs are finding new uses for them every day. People are being connected in ways undreamed. of just a decade ago. This is as true for business relationships (through software like Uber) as it is for social relationships (through software like Fa-cebook). Many more people have access to, and voice in, markets that may once have been closed or restricted. Just as many more people can now publish their own thoughts to a vast audience, many more people can now offer their services or hawk their wares to a vast consumer base.

Id. at 19. In this case, we must decide whether a multi-faceted product of new technology should be fixed into either the old square hole or the old round hole of existing legal categories, when neither is a perfect fit.

The narrow issue on appeal is whether McGillis performed transportation services using Uber’s software application as an “employee” within the meaning of Chapter 443. This determination is based on “the usual common-law rules applicable in determining the employer-employee relationship.” § 443.1216(l)(a)(2). “The statute does not refer to other rules or factors for determining the employment relationship.” Brayshaw v. Agency for Work Force Innovation, 58 So.3d 301, 302 (Fla. 1st DCA 2011). Accordingly, the Department was “limited to applying only Florida common law in determining the nature of the employment relationship.” Id.

To determine whether an individual is an employee or independent contractor, Florida law requires courts to initially look to the parties’ agreement. Keith v. News & Sun Sentinel Co., 667 So.2d 167, 171 (Fla. 1995). If a provision disclaims an employer-employee relationship in favor of independent contractor status, courts hon- or that provision “unless other provisions of the agreement, or the parties’ actual practice, demonstrate that it is not a valid indicator of status.” Id. If the parties’ actual practice contradicts their written agreement, the actual practice controls. Id.

Indeed, independent contractor or employee status “depends not on the statements of the parties but upon all the circumstances of their dealings with each other.” Cantor v. Cochran, 184 So.2d 173, 174 (Fla. 1966). So to determine whether the parties practice an independent contractor or employee-servant relationship, Florida courts consider several factors outlined in the Restatement (Second) of Agency § 220. Id. at 174-75. The Restatement lists the following ten factors:

(a)the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

In examining these factors, it is not uncommon for a court to find that not “every element [of the Restatement] is so clearly present as to establish beyond argument that the arrangement between [the parties] is one of independent contrae-torship” or employer-employee. Miami Herald Publ’g Co. v. Kendall, 88 So.2d 276 (Fla. 1956). But among these ten factors, the “extent of control” is recognized by Florida courts as the most important factor in determining whether a person is an employee or independent contractor. Verchick v. Hecht Invs., Ltd., 924 So.2d 944, 946 (Fla. 3d DCA 2006) (“It is well-established that the main test in determining the existence of an employer-employee relationship is whether the employer has direction and control over the employee.”). “Control” refers to “the right to direct what shall be done and how and when it shall be done.” Herman v. Roche, 533 So.2d 824, 825 (Fla. 1st DCA 1988).

Of course, both employees and independent contractors “are subject to some control by the person or entity hiring them. The extent of control exercised over the details of the work turns on whether the control is focused on simply the result to be obtained or extends to the means to be employed.” Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1131 (Fla. 2d DCA 2004) (citation and quotations omitted). “[I]f control is confined to results only, there is generally an independent contractor relationship .... ” 4139 Mgmt. Inc. v. Dep’t of Labor & Emp’t, 763 So.2d 514, 517 (Fla. 5th DCA 2000). By contrast, “if control is extended to the means used to achieve the results, there is generally an employer-employee relationship.” Id.

For example, in A Nu Transfer, Inc. v. Department of Labor & Employment Security Division of Employment Security, 427 So.2d 305 (Fla. 3d DCA 1983), this court held that an owner-operator truck driver for an inland carrier was an independent contractor because drivers provided their own vehicles, were not required to work a specific number of hours, and were permitted to work for a competitor company. And in Jean M. Light Interviewing Services, Inc. v. State Department of Commerce, 254 So.2d 411 (Fla. 3d DCA 1971), this court held that interviewers for market research were independent contractors because they were “free” to refuse a job, to work for competitors, and to complete an assignment “at such time and in such matter, or fashion, as the interviewers might desire.” Id. at 412-13.

Similarly, in 4139 Management Inc., 763 So.2d at 518, the Fifth District held that condominium housekeepers were independent contractors because they controlled the means to completing a job, were free to refuse a job, and could simultaneously “work for others.” Id. at 518. See also Sarasota Cnty. Chamber of Commerce v. State Dep’t of Labor & Emp’t Sec., Div. of Unemployment Comp., 463 So.2d 461, 462-63 (Fla. 2d DCA 1985) (concluding salespersons were independent contractors because there was “no meaningful supervision over the salespersons’ work”; salespersons “set their own schedules and contact such prospects as they please,” “furnish and pay for their own transportation,” “are free to hire others at their own expense,” and “dress in whatever fashion they desire”); VIP Tours of Orlando, Inc. v. State Dep’t of Labor & Emp’t Sec., 449 So.2d 1307, 1310 (Fla. 5th DCA 1984) (concluding tour guides were independent contractors because they were free to reject an assignment,, free to determine the nature of each tour, and “free to work for other tour services”; the tour company “had no right of control over the tour guides other than to require them to show up at a particular place at a particular time wearing the [company] uniform and to travel in [company] transportation”).

We agree with the Department’s conclusion that Uber drivers like McGillis are not employees for purposes of reemployment assistance. Here, the parties’ agreement unequivocally disclaims an employer-employee relationship. And the parties’ actual practice reflects the written contract. As the Department here found, “the central issue is the act of being available to accept requests” and “[t]his control is entirely in the driver’s hands.” Drivers supply their own vehicles—the most essential equipment for the work—and control whether, when, where, with whom, and how to accept and perform trip requests. Drivers are permitted to work at their own discretion, and Uber provides no direct supervision. Further, Uber does not prohibit drivers from working for its direct competitors. Accordingly, we agree with the Department’s assessment that,

[a]s a matter of common sense, it is hard to imagine many employers who would grant this level of autonomy to employees permitting work whenever the employee has a whim to work, demanding no particular work be done at all even if customers will go unserved, permitting just about any manner of customer interaction, permitting drivers to offer their own unfettered assessments of customers, engaging in no direct supervision, requiring only the most minimal conformity in the basic instrumentality of the job (the car), and permitting work for direct competitors.

Rasier, LLC v. Fla. Dept. Econ. Opportunity, 0026 2834 68-02 McGillis (Fla. Dept. Econ. Opp. Dec. 3, 2015) at 11.

Additional facts of this case support this conclusion. For example, Uber sends each driver a Form 1099—an IRS form used to report payments to independent contractors. See 4139 Mgmt., 763 So.2d at 518 (“At the end of the year, the Association gave the maids a Form 1099 ‘Miscellaneous Income’ for the maids to report their income.”). And Uber does not provide fringe benefits, such as medical insurance, vacation pay, or retirement pay. See A Nu Transfer, 427 So.2d at 306 (“[The truck drivers] do not accrue and are not paid for sick leave or vacation time.”); 4139 Mgmt., 763 So.2d at 518 (“The maids did not receive any benefits such as vacation, sick leave or insurance .... ”); Dep’t of Health & Rehab. Servs. v. Dep’t of Labor & Emp’t Sec., 472 So.2d 1284, 1287 (Fla. 1st DCA 1985) (noting that the independent contractor housekeeper “did not receive fringe benefits, such as insurance, as part of her compensation ....”); La Grande v. B & L Servs., Inc., 432 So.2d 1364, 1367 (Fla. 1st DCA 1983) (“[The taxicab company] provided [the taxicab driver] no fringe benefits of the kind usually found in an employment relationship.”).

The fact that Uber may deactivate a driver’s account under certain circumstances does not mandate a contrary conclusion. See, e.g., La Grande, 432 So.2d at 1368 (“[W]e recognize that the ability to terminate such a relationship at will without incurring liability is an attribute more characteristic of an employment situation than that of independent contractor. However, although a factor to be considered, it is by no means conclusive on the issue of independent contractor versus employee status.”). And even though Uber’s principal business is to provide transportation, this factor alone is not dispositive. See Jean M. Light Interviewing Servs., 254 So.2d at 412-13 (holding interviewers were not employees even though interviewing was the principal business of the interviewing service).

CONCLUSION

Uber and McGillis contractually agreed that McGillis’ work did not make him an employee. A review of the parties’ working relationship confirms this understanding. Due in large part to the trans-formative nature of the internet and smartphones, Uber drivers like McGillis decide whether, when, where, with whom, and how to provide rides using Uber’s computer programs. This level of free agency is incompatible with the control to which a traditional employee is subject. Accordingly, we affirm the final order of the executive director of the Department of Economic Opportunity-concluding that Uber drivers are not entitled to reemployment assistance under section 443.1216 and denying McGillis’ claim for reemployment assistance.

Affirmed.

      . Rasier LLC is a wholly owned subsidiary of Uber Technologies, Inc., and holds a license to administer Uber Technologies' software in Florida. For purposes of simplicity, we refer to both Uber Technologies and Rasier as "Uber.”

      . If a prospective driver does not own a smartphone, Uber may provide one to the driver with the driver application installed, but the driver is responsible for paying a deposit and a weekly fee.

      . The fare is based on an algorithm developed by Uber. Variables include a minimum base fare, charges for mileage and time spent in transit, and a multiplier based on supply and demand in a particular location at a particular time.

      . Uber may deactivate the driver’s account if the driver’s acceptance rate is persistently below a specified level or after 180 consecutive days of inactivity. But even if deactivated, the driver may request reactivation of the account and return to using the driver application.

      . Drivers also rate passengers on a similar scale. This score can affect a passenger’s average rating, which drivers can view before accepting or rejecting a trip request.

      . An administrative agency’s interpretation of a statute it is charged with enforcing is generally entitled to great deference. Donato v. Am. Tel & Tel. Co., 767 So.2d 1146, 1153 (Fla. 2000); Metro, Dade Cty. v. P.J. Birds, Inc., 654 So.2d 170, 175 (Fla. 3d DCA 1995). Under this doctrine, courts defer to the agency because “the interpretation may have been based on a history that is best known by the agency or special expertise the agency has in applying the statute.” Brown v. State, Comm'n on Ethics, 969 So.2d 553, 557 (Fla. 1st DCA 2007). Deference is not required, however, if the agency’s interpretation conflicts with the statute’s plain meaning or requires no special agency expertise. Arza v. Fla. Elections Comm'n, 907 So.2d 604, 606 (Fla. 3d DCA 2005).


source: Caselaw Access Project

author: LUCAS, Judge.

license: Public Domain

text:
    Airol MUNOZ, Appellant, v. Paulina MUNOZ, Appellee.
    Case No. 2D16-1604
    District Court of Appeal of Florida, Second District.
    Opinion filed February 3, 2017
    Lawrence J. Hodz of Cortes Hodz Family Law & Mediation, P.A., Tampa, for Appellant.
    Jessica C. Tien of Tien Law Group, Tampa, for Appellee.
   LUCAS, Judge.

Airol Munoz, the former husband, appeals the circuit court’s orders modifying timesharing and establishing child support and arrears concerning his minor children, A.M. and C.M. Mr. Munoz came before the circuit court on his supplemental petition to modify a default final judgment entered on January 8, 2008, which had awarded Paulina Munoz, his former wife, sole parental responsibility and timesharing with A.M. and C.M. In response to the modification petition, Ms. Munoz filed a petition to establish child support and retroactive child support against Mr. Munoz. A trial was held on both petitions before the circuit court on February 5, 2016. The court entered its orders on March 2, 2016, and Mr. Munoz timely appealed.

Although the absence of a transcript from the trial prevents us from addressing many of the issues Mr. Munoz raises on appeal, because there are errors that are plain on the face of the order modifying timesharing, we are compelled to reverse those portions of the circuit court’s order. See Ivanovich v. Valladarez, 190 So.3d 1144, 1147 (Fla. 2d DCA 2016) (citing Soto v. Soto, 974 So.2d 403, 404 (Fla. 2d DCA 2007)). The progressive, three-phase daytime timesharing schedule the circuit court fashioned to reintegrate Mr. Munoz in his daughters’ lives improperly vests the decision-making authority as to when Mr. Munoz can proceed into the second and third phases solely with a therapist. The order also gives Ms. Munoz sole discretion, at any time, to choose to replace this therapist, which was also an improper delegation of the court’s authority. Third, and perhaps most troubling, the order fails to resolve whether Mi'. Munoz will ever be entitled to overnight, unrestricted timesharing with his minor children, if or when he completes the third phase of this schedule. Taken together, these errors, which are clear from the face of the order, constituted reversible error.

As we explained in Grigsby v. Grigsby, 39 So.3d 453, 456-57 (Fla. 2d DCA 2010):

“Although termination of visitation rights is disfavored, ... the trial court has discretion to restrict or deny visitation when necessary to protect the welfare of the children.” Hunter v. Hunter, 540 So.2d 235, 238 (Fla. 3d DCA 1989). However, when the court exercises this discretion, it must clearly set forth the steps the parent must take in order to reestablish time-sharing with the children. Id.; see also Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004). Essentially, the court must give the parent the key to reconnecting with his or her children. An order that does not set forth the specific steps a parent must take to reestablish time-sharing, thus depriving the parent of that key, is deficient because it prevents the parent from knowing what is expected and prevents any successor judge from monitoring the parent’s progress. See Ross, 867 So.2d at 571.
“Moreover, it is the trial court’s responsibility to ensure that an appropriate relationship is maintained between a parent and his or her children, and that responsibility cannot be abdicated to any parent or expert.” McAlister v. Shaver, 633 So.2d 494, 496 (Fla. 5th DCA 1994); see also Letourneau v. Letourneau, 564 So.2d 270, 270 (Fla. 4th DCA 1990). Thus, a reasonable time-sharing schedule based on the parent’s individual circumstances must be created based on the exercise of the court’s discretion, not the other parent’s. Letourneau, 564 So.2d at 270.

Here, the order modifying timesharing violated the strictures of Grigsby, 39 So.3d at 456-457; see also Perez v. Fay, 160 So.3d 459, 466 (Fla. 2d DCA 2015).

Accordingly, we reverse those portions of the order modifying timesharing that delegated decision-making to a therapist of Ms. Munoz’s sole approval, and that failed to describe what, if any, timesharing Mr. Munoz would be entitled to upon completion of the third phase. On remand, the court shall render an order on Mr. Munoz’s petition consistent with this opinion and that sets forth requisite findings and rulings concerning what, if any, timeshar-ing Mr. Munoz will have with A.M. and C.M. upon completion of any reunification schedule the court may fashion. In all other respects, we affirm the orders below.

Affirmed in part; reversed in part; and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . Mr. Munoz’s motion to set aside that default judgment has not been heard by the circuit court. Accordingly, we express no opinion as to its merits.


author: BERGER, J.

text:
    GLEN GARRON, LLC, Appellant, v. Marla BUCHWALD, etc., et al., Appellee.
    Case No. 5D15-2279
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017

      Thomas Wade Young and Joseph B. Towne, Lender Legal Services, LLC, Orlando, for Appellant.
    Amanda L. Lundergan and Thomas Ers-kine Ice, of Ice Appellate, Royal Palm Beach, for Appellee, Marla Buchwald, and Steven J. Brotman, of Ice Legal, P.A., Royal Palm Beach, for Appellee, Gracie Marla Buchwald.
    No Appearance for other Appellee.
   BERGER, J.

Glen Garrón, LLC, appeals both the trial court’s order dismissing its foreclosure complaint against Marla Buchwald and the order denying its motions for rehearing and leave to file an amended complaint. Glen Garrón raises two issues on appeal. First, it argues that the trial court erred in dismissing the foreclosure action for failure to attach a copy of the note to the complaint. Glen Garrón contends the material provisions of the note were included in the mortgage and riders to the mortgage that were attached to the complaint and that the filing of the original note after the complaint was filed was sufficient to cure any violation of Florida Rule of Civil Procedure 1.130. Second, Glen Garrón asserts that the trial court abused its discretion when it denied the motion for leave to amend the complaint. We agree on both issues and reverse.

On September 16, 2009, BankUnited, N.A. (hereinafter BankUnited), formerly BankUnited, FSB, filed a two-count foreclosure complaint against Buchwald. Count I was an action on the note, and Count II was an action on the mortgage for foreclosure. BankUnited alleged that it held the note and the mortgage and that all conditions precedent to acceleration and foreclosure had been performed or occurred. Copies of the mortgage, the property description, and the adjustable rate rider were attached to the foreclosure complaint. A copy of the note was not attached. However, the original note and mortgage were filed with the trial court at a later time. Attached to the original note was an al-longe containing an undated blank indorsement from BankUnited, FSB.

In lieu of an answer, Buchwald filed a pro se motion to dismiss, arguing BankUn-ited’s failure to attach a copy of the note to the foreclosure complaint required dismissal pursuant to Florida Rule of Civil Procedure 1.130(a). The motion was denied in August 2010, and the case eventually proceeded to trial on May 14, 2015.

When the trial began, Buchwald moved ore tenus for judgment on the pleadings arguing, once again, that dismissal was required because BankUnited failed to attach a copy of the note to the foreclosure complaint. See Fla. R. Civ. P. 1.140(c). The trial court reserved ruling on the motion, and the trial resumed. During a recess, however, the trial court granted Buchwald’s motion and dismissed the complaint without prejudice. The trial court concluded:

It is the law in Florida that the mortgage follows the note. Filing an original note in the Court file, even with notice given to Defendant and the Court, cannot cure the defect in the pleadings when it is the original complaint. The Plaintiff was made aware of the defect as far back as October 2009 and did nothing to correct the defect. A denial of the Motion to Dismiss, an interlocutory Order, cannot excuse the failure to attach the note to the Complaint as the Rule and case law requires the Note to be attached. The Order denying the Motion does not state why the Motion to Dismiss was denied but a reason could have been that Defendant, acting pro se, failed to attend the hearing to argue it. However, whatever the reason, it appears to the Court that the Complaint never stated a cause of action and filing the note in the Court file does not cure the defect and “breathe life into the complaint.”

Both parties moved for rehearing. Buchwald argued that the trial court should have dismissed the entire case and not just the foreclosure complaint. Glen Garrón urged the trial court to vacate its order dismissing the foreclosure complaint or, alternatively, to permit it to file an amended complaint. The trial court denied Glen Garron’s motion for rehearing and later amended the order of dismissal to state the case was dismissed without prejudice and without leave to amend the complaint. This appeal followed.

Glen Garrón argues the trial court erred by applying “a rigid, legalistic interpretation of Rule 1.130(a) wholly at odds with controlling precedent, the language and purpose of the rule, and the command that the Florida Rules of Civil Procedure ‘shall be construed to secure the just, speedy and inexpensive determination of every action.’ ” It maintains that the incorporation of the material portions of the note into other documents, such as the adjustable rate rider to the mortgage, which were attached to the foreclosure complaint is sufficient to satisfy the requirement of rule 1.130. We agree.

“The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts.” U.S. Fire Ins. Co. v. APT Sec. Servs., Inc., 134 So.3d 477, 479 (Fla. 2d DCA 2013) (quoting Barentine v. Clements, 328 So.2d 878, 879 (Fla. 2d DCA 1976)). We review the issue of whether a complaint states a cause of action de novo. Nationstar Mortg., LLC v. Zorie, 146 So.3d 1209, 1211 (Fla. 5th DCA 2014) (citing Thompson v. Napotnik, 923 So.2d 537, 539 (Fla. 5th DCA 2006)).

Motions for judgment on the pleadings are “decided only on the pleadings and attachments thereto and may be granted only if the movant is entitled to judgment as a matter of law.” Id. at 1212 (citing Siegel v. Whitaker, 946 So.2d 1079, 1081 (Fla. 5th DCA 2006)). “In passing on a motion for judgment on the pleadings made by a defendant, all well-pleaded material allegations of the complaint and all fair inferences to be drawn therefrom are taken as true and the inquiry concerns whether the plaintiff has stated a viable cause of action.” Id. When a party refers to a document in the complaint, the trial court may use that document to assess the nature of the claims alleged in the complaint. See U.S. Fire Ins. Co., 134 So.3d at 479 (citing Veal v. Voyager Prop. & Cas. Ins. Co., 51 So.3d 1246, 1249-50 (Fla. 2d DCA 2011)).

Rule 1.130(a) provides:

All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

Fla. R. Civ. P. 1.130(a) (emphasis added). The exhibits attached to the pleading are “considered a part thereof for all purposes.” Fla. R. Civ. P. 1.130(b). “A complaint based on a written instrument does not state a cause of action-until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.” Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So.2d 286, 288 (Fla. 5th DCA 2006) (citing Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 500 (Fla. 4th DCA 2001)).

The purpose of this rule “is to apprise the defendant of the nature and extent of the cause of action so that the defendant may .plead with greater certainty.” Amiker v. Mid-Century Ins. Co., 398 So.2d 974, 975 (Fla. 1st DCA 1981) (citing Sachse v. Tampa Music Co., 262 So.2d 17 (Fla. 2d DCA 1972)). Rule 1.130 does not require attachment of the entire contract, but only the attachmeht or the incorporation into the pleading of the' material portions of-the contract on which the action is based. See Zorie, 146 So.3d at 1212 (finding that the attachment to the complaint of a summary of the promissory note was sufficient to meet the requirement in rule 1.130); Amiker, 398 So.2d at 976 (‘We further note that Rule 1.130(a) does not require attachment of the entire contract, only attachment dr incorporation of the contract’s material provisions.”).

A foreclosure action is an equitable remedy that is based upon the mortgage. Junction Bit & Tool Co. v. Vill. Apartments, Inc., 262 So.2d 659, 660 (Fla. 1972); Mohican Valley, Inc. v. MacDonald, 443 So.2d 479, 481 (Fla. 5th DCA 1984), limited on other grounds by Med. Fac. Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 918 (Fla. 1996). A mortgage is an executory contract “in which one generally promises to allow a future sale of real property if a debt is not paid,” and “[i]t is also a specific lien on the property described in the mortgage.” Pitts v. Pastore, 561 So.2d 297, 301 (Fla. 2d DCA 1990) (citing § 697.02, Fla. Stat. (1987)). The acceleration clause in the mortgage “confers a contract right upon the note or mortgage holder which he may elect to enforce upon default.” David v. Sun Fed. Sav. & Loan Ass’n, 461 So.2d 93, 95 (Fla. 1984) (citing Campbell v. Werner, 232 So.2d 252, 255 (Fla. 3d DCA 1970)). Thus, the mortgage must be attached to the foreclosure complaint. See Fla. R. Civ. P. 1.130(a).

By contrast, an action on the note is an action at law for damages for breach of the note. See Royal Palm Corp. Ctr. Ass’n v. PNC Bank, NA, 89 So.3d 923, 929-33 (Fla. 4th DCA 2012). While a promissory note must be attached to the complaint when suing for payment of the promissory note, see. Student Loan Mktg. Ass’n v. Morris, 662 So.2d 990, 991 (Fla. 2d DCA 1995), in a foreclosure case, the note itself is not required to be attached to the complaint under rule 1.130, as the object of a foreclosure action is to force the sale of the property through the plaintiffs contractual rights that were granted by the mortgage. See Jaffer v. Chase Home Fin., LLC, 155 So.3d 1199, 1202 (Fla. 4th DCA 2015) (finding that bank stated claim in its complaint despite attaching copy of note to complaint that did not contain indorse-ments present on original note as this omission at most raised a possible standing defense, which is insufficient to dismiss complaint for failure to state a cause of action); U.S. Bank Nat’l Ass’n v. Knight, 90 So.3d 824, 825-26 (Fla. 4th DCA 2012) (finding bank had standing to foreclose despite its failure to attach note to its original complaint and its first amended complaint as bank did not attach the note until it filed its second amended complaint); Pitts, 561 So.2d at 301; David, 461 So.2d at 95. Indeed, the note by itself provides no. basis, for a creditor to force the sale of the property. See Pitts, 561 So.2d at 301; David, 461 So.2d at 95.

In this case, a copy of the mortgage was attached to the foreclosure complaint but a copy of the note was not. For count II, attachment of the note was not required as the foreclosure claim was brought based on the mortgage. See Jaffer, 155 So.3d at 1202; Knight, 90 So.3d at 825-26; Pitts, 561 So.2d at 301; David, 461 So.2d at 95. Count I, however, was an action on the note at law for damages. As such, in order for Count I to survive a motion for judgment on the pleadings in absence of the note, the portions of the other attachments must have been material to the action on the note. See Fla. R. Civ. P. 1.130(a).

Here, the attached mortgage and adjustable rate rider to the mortgage included the material provisions of the note, plus the property address, the property description, the initial and maximum interest rates, the method for calculating changes to the interest rate and monthly payment, the amount of the initial monthly payment, the date of the initial payment, the maturity date of the loan, the payment due date, the payment address, and Buchwald’s signature. The mortgage provided the name and address of Buchwald and the original lender (BankUnited, FSB), the amount of the debt, the date of the note, and it recited Buchwald’s promise in the note to pay the debt in full no later than June 1, 2036. The family rider to the mortgage noted that default or breach by Buchwald would permit the lender to exercise its remedies under the mortgage. Hence, the provisions of the note that are material to the action on the note were incorporated into the mortgage and the adjustable rate and family riders to the mortgage. See Zorie, 146 So.3d at 1212; Amiker, 398 So.2d at 976. Because these documents are considered part of the complaint for all purposes, see Fla. R. Civ. P. 1.130(b), failure to attach the note is not fatal to this action. Even if we were to conclude otherwise, the filing of the original note and mortgage corrected the failure to attach them to the foreclosure complaint because the notice of filing of the original note and a copy of the note were also served on Buchwald. See Deutsche Bank Nat’l Tr. Co. v. Taperi, 89 So.3d 996, 997 (Fla. 4th DCA 2012); Hughes v. Home Sav. of Am., F.S.B., 675 So.2d 649, 650 (Fla. 2d DCA 1996); Eigen v. FDIC, 492 So.2d 826 (Fla. 2d DCA 1986). Consequently, the trial court erred in granting Buchwald’s motion for judgment on the pleadings and dismissing the foreclosure complaint and the case. See Jaffer, 155 So.3d at 1202; Knight, 90 So.3d at 825-26; Pitts, 561 So.2d at 301; David, 461 So.2d at 95.

We next turn to the trial court’s failure to permit Glen Garrón to amend the complaint. The trial court’s denial of a motion for leave to file an amended complaint is reviewed for abuse of discretion. See Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422-23 (Fla. 5th DCA 2003) (citing Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132 (Fla. 5th DCA 1998)). “Leave of court [to amend pleadings] shall be given freely when justice so requires.” Id. at 422 (alteration in original) (quoting Fla. Rule Civ. P. 1.190(a)). Indeed, “all doubts should be resolved in favor of allowing amendments so that cases may be resolved on the merits” meaning that “refusal to allow amendment constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Id. at 423 (emphasis omitted) (citing Gate Lands Co., 715 So.2d at 1132; Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So.2d 680 (Fla. 4th DCA 1998)). Leave to amend the complaint after the original complaint failed to state a cause of action should only be denied when it is apparent that prejudice would result to the opposing party or an amended complaint could not possibly state a cause of action and amendment would be futile. Samuels, 782 So.2d at 501; Rohatynsky v. Kalogiannis, 763 So.2d 1270, 1272-73 (Fla. 4th DCA 2000) (citing Hemingway v. Bresney, 733 So.2d 1135 (Fla. 4th DCA 1999)). Leave to file an amended complaint should be granted when the plaintiff has not abused the litigation process and a minor change to the complaint would suffice to state a cause of action. Samuels, 782 So 2d at 501. “[T]he failure to attach necessary documents is a remediable offense.” Wells Fargo Bank, N.A. v. Bohatka, 112 So.3d 596, 601 (Fla. 1st DCA 2013) (citing Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 253 (Fla. 1st DCA 2012)).

On this authority, we conclude the trial court erred when it denied Glen Garron’s motion for leave to amend the foreclosure complaint. See Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973) (determining “the better approach under the facts of this case would have been for the trial court to have dismissed the complaint with leave to amend, rather than to have dismissed the complaint with prejudice” (footnote omitted)); Carr v. Eslinger, 101 So.3d 423, 424 (Fla. 5th DCA 2012); Contractors Unlimited, Inc., 833 So.2d at 288 (reversing a final judgment in favor of the plaintiff for failure to attach the instrument sued upon to the complaint but permitting the plaintiff to file an amended complaint on remand). Buchwald’s argument that the motion for leave to amend came too late belies the fact that she waited until the beginning of the trial to revive her previously denied motion for judgment on the pleadings. As this was an ore tenus motion, Glen Garrón had no idea it would be made until after the trial had started, having proceeded for almost five years under the belief that the motion had been denied. Moreover, given that the original note was filed with the trial court and served on Buchwald in 2010, there is no prejudice to Buchwald. See Legare v. Music & Worth Constr., Inc., 486 So.2d 1359, 1362 n.5 (Fla. 1st DCA 1986) (concluding “[i]t [was] doubtful that appellees could prove such prejudice since, as parties to the contract, they can be said to have implicit knowledge of the contract’s various provisions” (citing Conklin, 287 So.2d at 60)); Wackenhut Protective Sys., Inc. v. Key Biscayne Commodore Club Condo. I, Inc., 350 So.2d 1150, 1151-52 (Fla. 3d DCA 1977).

Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COHEN, C.J., and TORPY, J., concur.

      . BankUnited, FSB, was seized by the Office of Thrift Supervision and the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver on May 21, 2009. The FDIC immediately sold the assets of BankUnited, FSB, to the newly chartered successor institution, BankUnited.

      . BankUnited filed a motion for summary judgment on April 20, 2010, The trial court granted the motion and rendered a final judgment of foreclosure in favor of BankUnited in the amount of $213,593.41. After Buchwald moved for rehearing, the trial court granted the motion and vacated the final judgment.

      . Buchwald also claimed that BankUnited lacked standing to foreclose because BankUn-ited, FSB, was seized by the FDIC and the note and mortgage were in favor of BankUnit-ed, FSB, and not its successor entity BankUn-ited.

      . Glen Garrón was assigned the note and mortgage on July 31, 2013, and on January 29, 2014, the trial court entered an order substituting it as the party plaintiff.

      . Florida Rule of Civil Procedure 1.115(c) requires the attachment of a certification regarding possession of the note to the foreclosure complaint. A copy of the note, along with any allonges, must be attached to this certification. Fla. R. Civ. P. 1.115(c). However, this rule only became effective on December 11, 2014. Hence, it is not applicable to this case as the foreclosure complaint was filed on September 16, 2009.

      . The trial court’s position that these cases are distinguishable because they involved the failure to attach the note to an amended complaint while this case involves the failure to attach the note to the original complaint confuses the rule 1.130 analysis with the analysis for standing to foreclose.

      . At the time the foreclosure complaint was filed on September 16, 2009, rule 1.130 did not require the attachment of the note in foreclosure actions based on the mortgage.


author: PER CURIAM.

text:
    Michael Joseph NILIO, Appellant, v. STATE of Florida, Appellee.
    CASE NOS. 1D15-3453
    1D15-3604
    1D15-3605
    1D15-3606
    1D15-3608
    1D15-3609
    1D15-3610
    1D15-3611
    District Court of Appeal of Florida, First District.
    Opinion filed February 3, 2017.

      Rick A. Sichta, Susanne K. Sichta, and Joseph Hamrick of The Sichta Firm, LLC, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Joseph Nilio challenges his amended judgments and sentences and the summary denial of his motion for postcon-viction relief. Nilio asserts that the trial court failed to resolve his postconviction claim that he attempted to submit restitution and other costs associated with his probation, but the court refused to accept payment. However, because Nilio did not raise the issue in his initial brief, and only cursorily, discussed it in his reply brief, he waived the issue. See Land v. Fla. Dep’t. of Corr., 181 So.3d 1252, 1254 (Fla. 1st DCA 2015) (noting that an argument not raised in the initial brief is waived). Thus, we affirm.that claim without further discussion.

Nilio also argues that the trial court violated due'process and the prohibition against double jeopardy when it amended his judgments and sentences in 2015 to modify the terms of his probation. The 2012 and 2013 versions of his amended judgments and sentences provided that probation “will” terminate early upon full payment of restitution and other monetary obligations. However, the 2015 amendment provided that probation “may” terminate early upon fulfillment' of those' requirements. Based on the language included in the 2012 and 2013 versions of his judgments and sentences, and because the trial court stated during the initial pléa hearing that Nilio’s probation “may terminate early without further contact with [the] court,” Nilio argues that termination of his probationary term was automatic, and the trial court erred in amending the judgments and sentences in 2015. We disagree. The trial court’s 2015 ruling merely reaffirmed its pre-2012 rulings that the probationary term would be terminated at the trial court’s discretion, not automatically upon payment of the probationary obligations.

Beginning with the initial plea hearing in 2010, until the trial court amended the 2015 judgments and sentences, the court, the State, and Nilio’s counsel repeatedly expressed an understanding that termination of Nilio’s probation would be at the court’s discretion, not automatic. Reviewing the record as a whole, including the plea documents, hearing transcripts, filings by Nilio and the State, correspondence among Nilio, his counsel, and the State, and the trial court’s orders, we find no indication whatsoever that the trial court or the parties ever intended the probationary term to automatically terminate upon payment of restitution. See Jackson v. State, 615 So.2d 850, 850-51 (Fla. 2d DCA 1993) (finding that court’s ambiguous oral pronouncement could be resolved where its intent was discernible from the record as a whole).

Although the 2012 and 2013 versions of the judgments and sentences did include language that Nilio’s probation “will” terminate early upon satisfaction of his monetary obligations, the use of that language appears to be a scrivener’s error, properly corrected by the trial court in its 2015 amended judgments and sentences. As the court noted in its order directing the 2015 amendments, the record contains only two hearings addressing the terms of Nilio’s probation: the original 2010 plea hearing and a July 2011 hearing. During both, the parties recognized that termination of Ni-lio’s probation was discretionary.

Accordingly, we conclude that the 2015 amendment to Nilio’s judgments and sentences was intended to correct a scrivener’s error contained in the 2012 and 2013 versions of the amended judgments and sentences. We thus reject Nilio’s claim that the 2015 judgments and sentences were entered in violation of his double jeopardy rights. Further, because the trial court merely corrected a ministerial error, the court did not violate due process when it issued the amended judgments and sentences outside Nilio’s presence. See Frost v. State, 769 So.2d 443, 444 (Fla. 1st DCA 2000).

For these reasons, we AFFIRM the summary denial of postconviction relief and the amended judgments and sentences.

LEWIS, ROWE, and KELSEY, JJ., CONCUR.


text:
    Martius Develle HOLLAND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2969
    District Court of Appeal of Florida, First District.
    Opinion filed February 3, 2017

      Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this criminal appeal, Appellant contends that the trial court erred in denying his motion for discharge because the amended information filed after the expiration of the speedy trial period charged him with a new offense. We affirm for the reasons that follow.

In October 2015, Appellant was stopped for a traffic infraction. He was arrested after a consensual search of his pockets resulted in the discovery of $1195 in cash, 46 small plastic baggies, and a bag containing five grams of a white powdery substance. A field test of the substance “appeared to test positive” for cocaine, but the substance was “sent to FDLE for verification.”

In March 2016, Appellant was charged with possession of cocaine with the intent to sell within 1000 feet of a school in violation of section 893.13(l)(c)l., Florida Statutes (2015) (count I) and possession of drug paraphernalia—the small plastic baggies (count II). Appellant did not waive the speedy trial period.

In May 2016, after the speedy trial period expired, the state filed an amended information reducing the charge in count I to possession of a controlled substance in violation of section 893.13(6)(a) because it was determined by- the FDLE testing that the white powdery substance was pyrro-lidinovalerophenone (PVP) rather than cocaine. The amended information reasserted count II as originally charged.

Appellant thereafter filed a motion for discharge on the ground that the amended information charged him with a new offense after the expiration of the speedy trial period. At the hearing on the motion, defense counsel argued that the amendment to count I after the speedy trial period was “inherently prejudicial” to Appellant. But, when the trial court asked defense counsel whether the amended information “changefs], in any way, how you intend to defend th[e] case, whether the substance turns out to be cocaine or whether it turns out to be PVP,” defense counsel candidly responded “[Pjrobably not, Your Honor.” The court denied the motion for discharge.

Appellant then entered a no contest plea reserving the right to appeal the denial of his motion for discharge. The trial court accepted the plea and sentenced Appellant to 18 months in prison on count I and time served—four days—on count II. This appeal followed.

This Court has explainéd that “although the state may amend an information after the speedy trial time expires, the state may not circumvent the intent and effect of the speedy trial rule by lying in wait until the speedy trial time expires and then amending an existing information in such a way that results in the levying of new charges (if those new charges arise from the same facts and circumstances giving rise to the original charge).” Pezzo v. State, 903 So.2d 960, 962 (Fla. 1st DCA 2005) (emphasis in original). “A ‘new’ offense is one that contains an element that the originally charged offense did not contain.” McDuffie v. State, 135 So.3d 317, 320 (Fla. 1st DCA 2012) (citing State v. D.A., 939 So.2d 149, 153 (Fla. 5th DCA 2006)); see also Whitehall v. State, 81 So.3d 599, 604 (Fla. 2d DCA 2012) (reversing judgment and sentence for crime charged in an amended information filed after expiration of the speedy trial period during the recapture period and stating that the “recapture period provides a safe harbor for the State on a charge it has already levied, not on a new greater offense arising from the same criminal episode”) (emphasis added).

Here, Appellant was not charged with a “new” offense, as described in the cases cited above. The offense charged in count I of the amended information is a necessarily-included lesser offense of the offense charged in count I of the original information, See Fla. Std. Jury Instr. (Crim.) 25.6 (2015) (listing Possession of a Controlled Substance as a category 1 lesser-included offense of Possession of a Controlled Substance with Intent to Sell in Specified Locations). As such, it does not contain any elements that the originally-charged offense did not contain. See generally Brown v. State, 206 So.2d 377, 381-82 (Fla. 1968) (explaining that necessarily-included offenses are those that are “an essential aspect of the major offense,” meaning that “the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence”).

Additionally, even if the charge alleged in count I of the amended information was considered a “new” offense because it specified a different controlled substance than was specified in the original information, we would still affirm because Appellant failed to allege or establish any specific prejudice resulting from this change. See State v. Mulvaney, 200 So.3d 93, 96 (Fla. 5th DCA 2015) (“An amendment is generally permissible ... when it ‘merely clarifies some detail of the existing charge and could not reasonably have caused the defendant any prejudice.’ ”). (quoting Green v. State, 728 So.2d 779, 780 (Fla. 4th DCA 1999)); State v. Clifton, 905 So.2d 172, 178 (Fla. 5th DCA 2005) (affirming dismissal of an entirely new charge contained in an amended information filed after the expiration of the speedy trial period and explaining that “the central inquiry is whether the defendant was prejudiced by the amended information”); cf. Wright v. State, 41 So.3d 924, 926 (Fla. 1st DCA 2010) (reversing trial court’s ruling that allowed the State to amend the information during trial to allege an element of a permissive lesser-included offense because “an amendment that substantively alters the elements of the crime charged is per se prejudicial”).

Accordingly, because the trial court correctly denied Appellant’s motion for discharge, we affirm his judgment and sentence.

AFFIRMED.

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

       PVP is commonly known as "Flakka.”


author: VILLANTI, Chief Judge.

text:
    SUPER PRODUCTS, LLC, a Delaware limited liability company, Appellant, v. INTRACOASTAL ENVIRONMENTAL, LLC, a Florida limited liability company, Appellee.
    Case No. 2D16-1979
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2017.

      Arthur S. Weitzner of Arthur S. Weitz-ner, P.A, Sarasota, for Appellant.
    Adam Hersh of Hunter Business Law, Tampa, for Appellee.
   VILLANTI, Chief Judge.

Super Products, LLC, appeals an order denying its motion for rehearing of an order granting IntraCoastal Environmental, LLC’s motion to dismiss based upon noncompliance with section 605.0904(1), Florida Statutes (2014). Because, under the facts of this case, dismissal was inappropriate, we must reverse.

Super Products, a Delaware limited liability company transacting business in Florida, entered into an equipment rental agreement with IntraCoastal. When In-traCoastal failed to pay certain amounts allegedly due, Super Products filed a complaint. IntraCoastal filed a motion to dismiss the complaint or, alternatively, to stay the proceedings. At the hearing on the motion, IntraCoastal argued that Super Products failed to file a certificate of authority from the State of Florida to conduct business in the state and was therefore legally unable to maintain the lawsuit pursuant to section 605.0904(1). The trial court granted the motion and dismissed the action without prejudice. Thereafter, the trial court also denied Super Products’ motion for rehearing which argued that dismissal was not authorized under section 605.0904(3). This appeal follows.

Section 605.0904(1) provides that “[a] foreign limited liability company transacting business in this state or its successors may not maintain an action or proceeding in this state unless it has a certificate of authority to transact business in this state.” If a foreign limited liability company fails to acquire a certificate of authority, section 605.0904(3) provides:

A court may stay a proceeding commenced by a foreign limited liability company or its successor or assignee until it determines whether the foreign limited liability company or its successor requires a certificate of authority. If it so determines, the court may further stay the proceeding until the foreign limited liability company or its successor obtains the certificate.

The trial court believed that the statutorily required remedy for Super Products’ noncompliance was dismissal. While section 605.0904(3) does in fact provide for a stay, it does not provide for dismissal. Ironically, the relief requested by Intra-Coastal in its motion was dismissal or, in the alternative, a stay.

The use of the word “may” in section 605.0904(3), as permissive verbiage, is only indicative that the court may stay the proceedings or not stay the proceedings. It does not imply that the court must stay the proceedings; it could continue the proceedings and issue an order requiring technical compliance with section 605.0904(1). Dismissal may then become appropriate if the party fails to comply with the court’s order. See Fla. R. Civ. P. 1.420(b); Zaccaria v. Russell, 700 So.2d 187, 187-88 (Fla. 4th DCA 1997).

Here, the trial court gave no reason other than noncompliance for granting the much harsher remedy of dismissal, and from the record before us, we discern none. At the hearing on IntraCoastal’s motion to dismiss, the trial court specifically noted that “the trigger point” for Super Products to provide a certifícate of authority was December 2015, when the complaint was filed. In other words, the trial court regarded Super Product’s failure to obtain the proper certificate as a condition precedent to the filing of its lawsuit. However, obtaining a certificate of authority is a condition that must be met only to maintain a lawsuit, not file one, and Super Products, as evidenced by its motion for rehearing, was not averse to a stay even though it did not initially believe it was required to obtain the certificate.

Because the remedy of dismissal is not provided for in the statute, and no rationale exists in the record to support dismissal, it was error for the trial court to dismiss the action rather than to simply stay it. Accordingly, we reverse and remand for the trial court to vacate its order of dismissal, and if the proper certificate has not been obtained, to reconsider the issue of a stay.

Reversed and remanded with instructions.

KHOUZAM and BADALAMENTI, JJ., Concur.


text:
    Zackery L. STOKES, Appellant, v. Sakeenah A. STOKES, Appellee.
    Case No. 2D16-225
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2017.
    David L. Hurvitz of Law Office of David Hurvitz, P.A., Tampa, for Appellant.
    Sakeenah A. Stokes, pro se.
   VILLANTI, Chief Judge.

This is an appeal of an order entered in two parts, two weeks apart. In the first part, an order modifying final judgment, the trial court engaged in the required statutory analysis and made detailed findings of fact concerning the issues raised in competing petitions for modification of a parenting plan. This order would ordinarily be affirmed as it is supported by competent substantial evidence. However, the second order, an order modifying parenting plan and timesharing schedule, purports to award the Former Wife relief which is at odds with the first order. Inasmuch as the trial court prepared both parts of the order and denied rehearing without placing its rationale on the record, we are unable to resolve these inconsistencies from the face of the record. Hence, we must reverse and remand for further proceedings for the trial court to enter an order that is consistent throughout. See Sedky v. Ibrahim, 41 Fla. L. Weekly D2665, 211 So.3d 80, 2017 WL 192030 (Fla. 4th DCA Nov. 30, 2016) (remanding for clarification of the final judgment and parenting plan due to inconsistent statements); see also Justice v. Justice, 80 So.3d 405, 407 (Fla. 1st DCA 2012) (remanding for entry of a consistent order regarding timesharing).

Reversed and remanded with instructions.

KELLY and WALLACE, JJ, Concur.


author: CASANUEVA, Judge.

text:
    B.R.C., Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D15-3718, 2D15-3727
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2017

      Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

In these consolidated appeals, B.R.C. seeks review of a disposition order withholding adjudication and sentencing him to probation in trial court cases 15-867 and 15-350. B.R.C. argues that the trial court failed to hold an adequate competency hearing before proceeding with a bench trial in both cases. He also challenges the finding of guilt in case number 15-367. We agree that the trial court failed to conduct an adequate competency hearing and thus reverse and remand for further proceedings, as explained below. We affirm B.R.C.’s remaining issue without discussion.

B.R.C. was charged with robbery and battery in case number 15-367 and burglary of an unoccupied dwelling and grand theft in case number 15-350. Both cases stem from separate incidents that occurred on January 24, 2015. On February 16, 2015, the trial court ordered a determination of B.R.C.’s mental condition in accordance with section 985.19, Florida Statutes (2014), and Florida Rule of Juvenile Procedure 8.095. A hearing was held on April 6, 2015, during which competency was to have been addressed, and the cases subsequently proceeded to trial.

In case number 15-367, B.R.C. was found guilty of robbery following a bench trial on August 7, 2015. In case number 15-350, B.R.C. was found guilty of burglary and petit theft following a bench trial on August 6, 2015. On August 18, 2016, the trial court withheld adjudication as to both cases and sentenced B.R.C. to probation. Because the trial court proceeded to trial without conducting an adequate competency hearing and making an independent determination as to whether B.R.C. was competent to proceed, we reverse and remand for further proceedings.

We review a trial court’s decision regarding competency for an abuse of discretion, but questions of statutory interpretation are reviewed de novo. State v. D.V., 111 So.3d 234, 236 (Fla. 4th DCA 2013). Section 985.19 addresses incompetency in juvenile delinquency cases and states;

(1) If, at any time prior to or during a delinquency case, the court has reason to believe that the child named in the petition may be incompetent to proceed with the hearing, the court on its own motion may ... stay all proceedings and order an evaluation of the child’s mental condition.

All determinations of competency must be made at a hearing, and the court must make findings of fact based on mental evaluations provided by two to three experts appointed by the court. § 985.19(l)(b); Dep’t of Children & Families v. O.C., 933 So.2d 690, 691 (Fla. 5th DCA 2006).

Rule 8.095(a)(2) further provides that, if the court at any time prior to or during the adjudicatory hearing has reason to believe the juvenile may be incompetent to proceed, the court on its own motion “shall immediately stay the proceedings and fix a time for a hearing for the determination of the child’s mental condition.” If the child is found at the hearing to be competent to proceed, “the court shall enter an order so finding and proceed accordingly.” Fla. R. Juv. P. 8.095(a)(3).

A court’s determination of competency may not be based on a stipulation of competence; the court must make its own independent determination, even where all of the experts agree that the defendant is competent. Zern v. State, 191 So.3d 962, 964 (Fla. 1st DCA 2016) (citing Dougherty v. State, 149 So.3d 672, 677-78 (Fla. 2014) (discussing competency hearing requirements in criminal proceedings)). “Accepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant’s competency to stand trial.” Dougherty, 149 So.3d at 678.

Here, the trial court was informed at the hearing on April 6, 2015, that B.R.C. was before the court on a “competency return” and that he had been evaluated by two doctors, both of whom found him competent to proceed. The trial court asked B.R.C.’s counsel, “Are you willing to stipulate then to competency?” Counsel responded, “I will stipulate to the doctors reports.” Counsel for the State was asked if the State was stipulating to the evaluation reports on B.R.C., and counsel responded, ‘Tes, he’s competent. We’ll stipulate to that.” Following some discussion regarding transferring the case to another division, the trial court stated, “[B.R.C.] goes to the other division because he’s been found competent.” There was no further discussion regarding B.R.C.’s competence, and no written order was entered.

The trial court was required to make an independent determination regarding B.R.C.’s competency before proceeding with the bench trials, and the record does not support the State’s argument that the trial court made an independent determination. Cf. Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) (noting that the trial court considered the experts’ reports at the competency hearing); Merriell v. State, 169 So.3d 1287, 1288 (Fla. 1st DCA 2015) (observing that the trial court specifically noted it had reviewed the evaluations and found defendant competent). There is nothing in our record to suggest that the trial court read the evaluation reports. Rather, the court appears to have relied on stipulations of counsel regarding the evaluation reports. While counsel can stipulate to the use of written reports in lieu of testimony, this stipulation does not relieve the trial court of its obligation to make its own determination as to B.R.C.’s competency. Thus, we conclude that the trial court failed to conduct a proper competency hearing and make the required findings. Further, as the State concedes, the trial court erred in failing to issue a written order as to competency.

The remedy is generally to remand for a hearing on competency followed by a new trial if the defendant is found to be competent. However, the supreme court has recognized that this is not always necessary, and a retroactive determination of competency is possible “where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.’” Dougherty, 149 So.3d at 679 (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986)); see also Frye v. State, 41 Fla. L. Weekly D2151, _ So.3d _, 2016 WL 4944084 (Fla. 2d DCA Sept. 16, 2016); Presley v. State, 199 So.3d 1014, 1019 (Fla. 4th DCA 2016).

We reverse and remand the disposition order. If the court finds that B.R.C. was competent at the time of trial, it shall enter a nunc pro tunc written order memorializing this finding with no change in the disposition order. If the court finds B.R.C. was incompetent, or if the court is unable to make a retrospective determination of competency, it shall hold a new trial for each case, provided B.R.C. is determined to be competent to proceed.

Reversed and remanded for further proceedings.

KHOUZAM and SLEET, JJ., Concur.


author: BLACK, Judge.

text:
    Marcus Franklin SANDERS, DOC# 788118, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2360
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2017

      Rachael E. Bushey of O’Brien Hatfield, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Marcus Sanders challenges his conviction and sentence for trafficking in over 200 grams of methamphetamine. Sanders raises several issues on appeal, only one of which has merit. Because the State failed to present sufficient evidence to establish that Sanders was in constructive or actual possession of contraband, the motion for judgment of acquittal should have been granted. Therefore, we reverse.

I. Background

On March 28, 2014, Detective Torres was working with a surveillance team watching a residence that was under suspicion for drug-related activity. Detective Torres observed a man and woman come out of the residence and approach a van parked in the driveway. From her vantage point at least 200 feet from the residence, Detective Torres was only able to determine that the man was white and that he was carrying a bag over his left shoulder. The woman entered the van on the driver’s side. The man entered the van through the rear sliding door on the passenger’s side; Detective Torres was unable to see if the man sat in the front or rear of the van after entering. As the van pulled away from the residence, Detective Torres communicated to area units what she had observed, including the van’s direction of travel.

Detective Tarsia responded and began to follow the van. He noted that the window tint was very dark and that as a result of the dark tint, he could not see any movement within the van. Detective Tarsia initiated a traffic stop due to the dark window tint and upon observing the van fail to stop at a stop sign. As Detective Tarsia approached the driver’s side of the van, he observed five people inside: a woman in the driver’s seat, a white man in the front passenger’s seat, a white man in the back seat on the passenger’s side, a child in the middle of the back seat, and a woman in the back seat behind the driver. Detective Tarsia identified Sanders as the white man seated in the back seat on the passenger’s side. Detective Tarsia testified that Sanders was acting “unusual” in that he avoided eye contact with the detective. He also observed two unzipped bags between Sanders’ feet that looked like “cooler type bags” or duffle bags.

Detective Tarsia issued the driver two traffic warnings and then asked the driver for consent to search the van. The driver consented to the search, and the occupants were asked to exit the vehicle; the bags remained inside. While conducting the search, Detective Tarsia observed a plastic bottle containing “a lot of substance down at the bottom with some liquid,” a hair dryer, liquid Drano, and salt inside one of the bags. Based on Detective Tarsia’s training and experience, he believed that the contents of the bag were used in the manufacture of methamphetamine. Detective Tarsia arrested Sanders and searched his person; nothing of evidentiary value was found as a result of the search.

Detective Gonzalez arrived at the scene and took custody of the bag. The substance in the plastic bottle tested positive for the presence of methamphetamine. A sample of the liquid that was seized was submitted to the Florida Department of Law Enforcement (FDLE) for testing, and an FDLE laboratory analyst confirmed that the liquid contained methamphetamine.

At trial, after the State rested its case, Sanders moved for a judgment of acquittal. Sanders argued that the State had failed to establish that he had been in actual or constructive possession of the bag containing methamphetamine. The State argued that Sanders had been in actual possession of the bag because it was within his arm’s reach and under his exclusive control. In the alternative, the State asserted that Sanders had been in constructive possession of the bag. The court denied the motion, finding that the State presented a prima facie case of actual possession due to the location of the bag and Sanders’ unusual behavior, Sanders renewed his motion for judgment of acquittal at the close of the evidence, and it was again denied. The jury found Sanders guilty as charged.

II. Discussion

“All possession crimes may be either actual or constructive.” Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009) (citing Chicone v. State, 684 So.2d 736, 738 n.2 (Fla. 1996)). “Possession is actual when the contraband is (1) in the defendant’s hand or on his person, (2) in a container in the defendant’s hand or on his person, or (3) within the defendant’s ‘ready reach’ and the contraband is under his control.” Id. (quoting Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007)). To establish constructive possession, the State must “prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items [and] was able to exercise dominion and control over them.” Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006) (quoting K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004)). “Under either theory of possession, then, the State must prove that the accused had control of the contraband. And ... under either theory the requisite control is not established by an accused’s mere proximity to the contraband.” G.G. v. State, 84 So.3d 1162, 1164 (Fla. 2d DCA 2012) (citation omitted); accord Meme v. State, 72 So.3d 254, 256 (Fla. 4th DCA 2011).

The State’s evidence established only that the contraband was within Sanders’ ready reach not that it was under his control. The State was unable to establish that Sanders was the white man observed carrying a bag into the van. Additionally, there were two open duffle bags between Sanders’ feet, and there was no evidence establishing that the bag found to contain contraband was the same bag that the man—even had it been Sanders—brought into the van.

In short, the only evidence presented by the State to establish possession was Sanders’ close proximity to the bag containing contraband and his “unusual” behavior. This court has repeatedly held that such evidence is insufficient. See Smith v. State, 123 So.3d 656, 658 (Fla. 2d DCA 2013); Rangel v. State, 110 So.3d 41, 44 (Fla. 2d DCA 2013); Jiles v. State, 984 So.2d 622, 623 (Fla. 2d DCA 2008); Hargrove, 928 So.2d at 1256; Cruz v. State, 744 So.2d 568, 569 (Fla. 2d DCA 1999); E.A.M. v. State, 684 So.2d 283, 284 (Fla. 2d DCA 1996); Skelton v. State, 609 So.2d 716, 717 (Fla. 2d DCA 1992).

Because the State failed to present sufficient proof of possession, the trial court erred in denying Sanders' motion for judgment of acquittal. We therefore reverse Sanders’ judgment and sentence and remand for discharge.

Reversed and remanded with directions.

WALLACE and LaROSE, JJ., Concur.


text:
    Daniela Alves ZAPIOLA, Appellant, v. Andraea Lynn KORDECKI, Appellee.
    Case No. 2D16-820
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.
    Patrick N. Bailey of The Law Office of Patrick N. Bailey, P.A., Fort Myers, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Daniela Zapiola challenges the injunction for protection against domestic violence entered against her. She argues that Andraea Kordecki failed to establish the requirements for entry of the injunction. We agree and reverse.

In January 2016, Ms. Kordecki filed a petition for injunction for protection against domestic violence against Ms. Za-piola. Ms. Kordecki alleged that while she and Ms. Zapiola were dating in 2012, Ms. Zapiola threw a drink at her and punched her in the face. She also alleged that Ms. Zapiola has repeatedly attempted to contact Ms. Kordecki through Facebook and via telephone and that Ms. Kordecki’s job as a traffic aide would allow Ms. Zapiola to cause Ms. Kordecki harm. Ms. Kordecki did not allege that Ms. Zapiola has threatened her in any way.

A domestic violence injunction may be issued “[u]pon notice and hearing, when it appears to the court that [a] petitioner is either the victim of domestic violence as defined by [section] 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.” § 741.30(6)(a), Fla. Stat. (2015); accord Leaphart v. James, 185 So.3d 683, 685 (Fla. 2d DCA 2016). The injunction must be supported by competent substantial evidence. Leaphart, 185 So.3d at 685; see also Horowitz v. Horowitz, 160 So.3d 530, 531 (Fla. 2d DCA 2015) (“Mrs. Horowitz alleged both that she was the victim of domestic violence ... and that Mr. Horowitz had engaged in behavior that led her to believe she was in imminent danger of becoming a victim of domestic violence. ... [Ejither basis, when proved by competent, substantial evidence, would support issuance of the injunction.”).

Ms. Zapiola contends that the evidence presented by Ms. Kordecki was insufficient to support the injunction, particularly where a single incident from 2012 was the only alleged violence. This court has held that “an isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations.” Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (comparing Jones v. Jones, 32 So.3d 772 (Fla. 2d DCA 2010), with Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001)); see also Leaphart, 185 So.3d at 686 (concluding that a single incident of domestic violence committed twenty months before the petition was filed “is not enough to support an injunction in the absence of other conduct”). Here, “[t]he physical incident[] identified ... [is] too remote to be considered reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence.” Horowitz, 160 So.3d at 532. And Ms. Kordecki otherwise failed to present sufficient evidence that she was in imminent danger of becoming a victim of domestic violence. See Weisberg v. Albert, 123 So.3d 663, 664 (Fla. 4th DCA 2013). Where “fear alone is the ‘reasonable cause’ alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well.” Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007) (quoting Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999)). The allegations that Ms. Zapiola might harm Ms. Kordecki while Ms. Kordecki is working as a traffic aide are too vague to provide competent substantial evidence of a reasonably objective fear. See Horowitz, 160 So.3d at 533. Moreover, none of the evidence presented regarding Ms. Zapiola’s attempts to contact Ms. Kordecki alleged, much less established, that Ms. Za-piola had engaged in conduct that was threatening or might otherwise reasonably place Ms. Kordecki in fear. Cf. Gill, 50 So.3d at 774-75 (“Such generalized threats to engage in unpleasant, but not violent, behavior are not sufficient to support the issuance of a domestic violence injunction”).

As a result, we reverse the injunction for protection against domestic violence.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . We note that Ms. Kordecki failed to establish that she could seek an injunction for protection against domestic violence where she did not establish that she qualified as a family or household member under section 741.28(3). The statute defines family or household member to include "spouses, former spouses, ... [and] persons who are presently residing together as if a family or who have resided together in the past as if a family.” § 741.28(3); see also § 741.28(2) (defining domestic violence as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member” (emphasis added)). However, because Ms. Zapiola does not challenge the applicability of the domestic violence injunction statute on this basis, Ms. Kordecki's failure to prove her status as a household member cannot be our basis for reversal. Cf. Barile v. Gayheart, 80 So.3d 1085, 1086-87 (Fla. 2d DCA 2012).


author: LaROSE, Judge.

text:
    INTEGRALE INVESTMENTS, LLC, a Florida limited liability company; and Keith Knutsson, an individual, Petitioners, v. Matthew P. HOFFMAN, an individual; and PCGL, LLC, a Florida limited liability company, Respondents.
    Case No. 2D15-5757
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.
    Steven L. Brannock, Ceci Culpepper Berman, and Joseph T. Eagleton of Bran-nock & Humphries, Tampa; and G. Wrede Kirkpatrick of Hines Norman Hines, P.A., Tampa, for Petitioners.
    Ginger Barry Boyd of Broad and Cassel, Destín; and Kenneth G.M. Mather of Gun-ster, Yoakley & Stewart, P.A., Tampa, for Respondent Matthew P. Hoffman.
    No appearance for Respondent PCGL, LLC.
   LaROSE, Judge.

Pursuant to East Avenue, LLC v. Insignia Bank, 136 So.3d 659, 665 (Fla. 2d DCA 2014), we quash the trial court’s partial final judgment.

The trial court issued an order granting partial final judgment. The order reserves jurisdiction to decide an interrelated claim in the complaint. Yet, the order allows execution to issue.

“Permitting execution prior to completion of the litigation before the trial court has long been characterized as improper by the appellate courts.” Id. Because the order is a nonfinal, nonappealable order but authorizes execution, it departs from the essential requirements of law. Id.

Petition for writ of certiorari granted; judgment quashed.

WALLACE and LUCAS, JJ., Concur.


text:
    Rodney Dewayne RYANS, Appellant, v. Allison McKay BELL, Appellee.
    Case No. 2D15-3933
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.
    Jane H. Grossman, St. Petersburg, for Appellant.
    Matthew Thatcher of The Solomon Law Group, P.A., Tampa, for Appellee.
   LUCAS, Judge.

Rodney Dewayne Ryans appeals a final judgment establishing time-sharing and child support for L.T.R., his minor child with Alison McKay Bell. We do not believe the circuit court’s adoption of Ms. Bell’s proposed final judgment after the conclusion of the trial, under the circumstances of this case, was a “substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge.” See Bishop v. Bishop, 47 So.3d 326, 328 (Fla. 2d DCA 2010) (quoting Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004)). However, as Ms. Bell concedes, the final judgment’s child support calculation failed to account for Mr. Ryans’ cost of health insurance. That omission is clear from the face of the record and contrary to Florida law. See § 61.30(3)(e), Florida Statutes (2011) (“Allowable deductions shall include ... [hjealth insurance payments, excluding payments for coverage of the minor child.” (emphasis added)). Therefore, we reverse the final judgment with instructions to the circuit court to recalculate Mr. Ryans’ child support obligation, deducting from his monthly net income the monthly premiums Mr. Ryans pays for his health insurance. Finding no other error, we affirm the circuit court’s judgment in all other respects.

Affirmed in part; reversed in part; remanded.

CASANUEVA and WALLACE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Issac G. SANCHEZ, Appellant, v. STATE of Florida Appellee.
    Case No. 2D16-1510
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.

      Issac G. Sanchez, pro se.
   KHOUZAM, Judge.

Issac Sanchez appeals the order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in which he raised four claims of ineffective assistance of trial counsel. Because grounds one and two are either legally insufficient or conclusively refuted by the record, we affirm the summary denial of relief on those grounds without further discussion. But because grounds three and four allege facially sufficient claims that are not conclusively refuted by the attachments to the postconviction court’s order, we reverse the summary denial of these grounds and remand for the postconviction court to either attach record evidence that conclusively refutes them or grant Mr. Sanchez an evidentiary hearing.

The charges against Mr. Sanchez- arose, in part, after law enforcement seized a package from a United States Post Office in Tampa in response to a narcotics dog’s alert. The package was addressed to Jason Cardenas (an alias used by Mr. Sanchez) and contained a trafficking amount of heroin. Mr. Sanchez pleaded guilty to trafficking in illegal drugs (count one), felon in possession of a firearm (count two), unauthorized possession or use of a driver’s license (count three), possession of less than twenty grams of cannabis (count four), conspiracy to traffic in illegal drugs (count five), and attempted trafficking in illegal drugs (count six). Before sentencing, he moved to withdraw his plea, but his motion was denied. He was sentenced to a three-year mandatory minimum sentence on count one, 66.37 months’ prison on counts two and six, sixty months’ prison on count three, and a fifteen-year mandatory minimum sentence on count five, all to run concurrently. This court entered a per cu-riam affirmance on Mr. Sanchez’s direct appeal from his judgment and sentences. Garcia-Sanchez v. State, 174 So.3d 1002 (Fla. 2d DCA 2015). Thereafter, Mr. Sanchez filed his timely motion for postconviction relief, which the postconviction court summarily denied.

We review the order summarily denying Mr. Sanchez’s motion for postcon-viction relief de novo. See Meus v. State, 968 So.2d 706, 710 (Fla. 2d DCA 2007). To plead a facially sufficient claim for relief, Mr. Sanchez was required to allege facts establishing that his trial counsel’s performance was deficient and that he was prejudiced by that performance. See Grosvenor v. State, 874 So.2d 1176, 1178 (Fla. 2004) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Because Mr. Sanchez’s motion followed the entry of a guilty plea to the underlying offenses, he had to allege that there existed “a reasonable probability that, but for counsel’s errors, [he] would not have pleaded guilty and would have insisted on going to trial” in order to establish that he was prejudiced by his trial counsel’s deficient performance. Id. at 1179 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). “A defendant is entitled to an evidentiary hearing on his postconviction motion unless (1) the motion, files and records in the case conclusively show that the defendant is not entitled to any relief, or (2) the motion or a particular claim is legally insufficient.” Johnson v. State, 904 So.2d 400, 403 (Fla. 2005). We accept Mr. Sanchez’s factual allegations as true to the extent that they are not conclusively refuted by the record. See id.

In ground three of his motion, Mr. Sanchez argued that his trial counsel was ineffective for advising him to plead guilty when “the heroin discovered by law enforcement was illegally seized absent a sufficiently reliable dog to alert the police to the Defendant’s package that the Defendant [had] a reasonable expectation of privacy to.” He argued that no written reports containing the dog’s certification or training records had been filed and that his counsel failed to investigate whether the dog was qualified or his alert reliable. Mr. Sanchez also asserted that a timely motion to suppress based upon an unreliable dog alert would have been granted. Had trial counsel informed Mr. Sanchez that the heroin seized by law enforcement could have been suppressed on this basis, he would not have entered into a plea and would have gone to trial. Thus, he claimed, his plea was involuntary and he should be entitled to withdraw it.

In ground four, Mr. Sanchez argued that even assuming the alert by the narcotics dog was reliable, the package was illegally seized and opened by law enforcement because law enforcement did not first obtain a warrant to permit them to search the package based upon the alert. He alleged that the package was addressed to “Jason Cardenas, an alleged listed alias to [Mr. Sanchez].” He argued that his trial counsel was ineffective for failing to file a motion to suppress on this alternate basis and advising him to plead guilty without filing a motion to suppress. Accordingly, he concluded that his plea was involuntary and that he should be permitted to withdraw it.

The postconviction court found that Mr. Sanchez’s allegations in grounds three and four stated facially sufficient claims for relief. But it summarily denied relief on both grounds, concluding that Mr. Sanchez could not prove the requisite prejudice. The court noted that Mr. Sanchez did not raise these issues in his motion to withdraw plea and that during his plea colloquy he represented that there was no further work or investigation that he wished his trial counsel to perform. However, the record attachments to the postconviction court’s order do not establish that Mr. Sanchez was aware at the time he entered his plea or filed his motion to withdraw plea that counsel had grounds for suppressing the contraband. So Mr. Sanchez’s expression of satisfaction with his counsel during his plea colloquy was not a valid basis for denying relief. See Jenkins v. State, 44 So.3d 243, 244 (Fla. 2d DCA 2010) (holding that defendant’s acknowledgment during plea colloquy that he was satisfied with counsel’s performance did not refute claim that counsel failed to investigate where defendant’s motion did not state when he learned of counsel’s failure); see also Coursey v. State, 164 So.3d 119, 120 (Fla. 2d DCA 2015) (“[A]n allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.” (quoting Campbell v. State, 139 So.3d 490, 497 (Fla. 2d DCA 2014))). Moreover, Mr. Sanchez alleged facially sufficient claims for relief based upon counsel’s alleged failure to advise him of grounds for suppressing the contraband, thereby causing him to involuntarily enter into his plea. See Coursey, 164 So.3d at 120; Campbell, 139 So.3d at 497.

As a threshold issue, we note that Mr. Sanchez sufficiently alleged a legitimate expectation of privacy in the package to establish his standing to challenge its search and seizure. A defendant has a legitimate expectation of privacy in a package and standing to challenge its search if he is the addressee under a fictitious name linked to him. State v. Williams, 184 So.3d 1205, 1209-11 (Fla. 1st DCA 2016). Here, Mr. Sanchez alleged that he had a reasonable expectation of privacy in the package, which was addressed to him under a fictitious name.

With respect to ground three, an alert by a properly trained narcotics detection dog generally provides probable cause for a search. State v. Grue, 130 So.3d 256, 259 (Fla. 5th DCA 2013). But the alert must be sufficiently reliable based upon the totality of the circumstances. Id. (citing Florida v. Harris, _ U.S. _, 133 S.Ct. 1050, 1056-58, 185 L.Ed.2d 61 (2013)). Mr. Sanchez alleged that his counsel failed to investigate whether the dog’s alert was sufficiently reliable and that a timely motion to suppress on those grounds would have been granted. Because Mr. Sanchez alleged that his counsel failed to advise him about a valid ground to suppress the contraband contained in the package prior to Mr. Sanchez’s plea, he alleged a facially sufficient claim for relief. See Coursey, 164 So.3d at 120; Campbell, 139 So.3d at 497; Jenkins, 44 So.3d at 244.

Similarly, Mr. Sanchez alleged a facially sufficient claim of ineffective assistance of counsel in ground four based upon counsel’s alleged failure to file the motion to suppress because the package was searched without a warrant. See Coursey, 164 So.3d at 120; Campbell, 139 So.3d at 497. Mr. Sanchez correctly asserted that even if a reliable alert by the narcotics dog provided law enforcement with probable cause to seize the package, law enforcement could not search the package without first obtaining a warrant. See Daniels v. Cochran, 654 So.2d 609, 613 (Fla. 4th DCA 1995) (“[A] canine sniff which alerts to a package does not eliminate the requirement that, absent exigent circumstances, consent or other recognized exceptions, a search warrant must be obtained before a search of the contents of the package passes constitutional muster.”). Thus Mr. Sanchez alleged a facially sufficient claim for postconviction relief based upon his counsel’s alleged failure to advise him of grounds to suppress the contraband prior to his plea. See Coursey, 164 So.3d at 120; Campbell, 139 So.3d at 497.

Based on the foregoing discussion, we reverse the order to the extent that it summarily denies relief on grounds three and four and remand for the postconviction court either to attach record evidence that conclusively refutes Mr. Sanchez’s claims or to grant him an evidentiary hearing on these grounds. See Shelby v. State, 75 So.3d 845, 847-48 (Fla. 2d DCA 2011).

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and BLACK, JJ., Concur.


text:
    Nelson ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0290
    District Court of Appeal of Florida, First District.
    Opinion filed February 14, 2017.
    Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As in Cannon v. State, 206 So.3d 831 (Fla. 1st DCA 2016), we reverse and remand for the trial court to address the motion pursuant to rule 3.850.

REVERSED AND REMANDED.

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ„ CONCUR.


text:
    IN RE GUARDIANSHIP OF Carlton HOWARD. Mary Ann Howard Adams and Wanda Faye Howard, Appellants, v. Carlton Howard, Appellee.
    Case No. 2D16-2316
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2017
    Keith D. Miller of Boswell & Dunlap, LLP, Bartow, for Appellants.
    Ralph H. Schofield, Jr., of Schofield. Law, P.A., Lakeland, for Appellee.
   PER CURIAM.

Dismissed as an appeal from a nonfinal, nonappealable order. See Fla. R. App. P. 9.170(b)(23); SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 208 So.3d 775, 41 Fla. L. Weekly D2733, D2735, 2016 WL 7174174 (Fla. 2d DCA Dec. 9, 2016); Salem v. Abram, 868 So.2d 1213, 1214 (Fla. 2d DCA 2004); Garcia v. Valladares, 99 So.3d 518, 518 (Fla. 3d DCA 2011).

NORTHCUTT, WALLACE, and BLACK, JJ., Concur.