author: ROWE, J.

text:
    NATIONAL COUNCIL ON COMPENSATION INSURANCE, Florida Office of Insurance Regulation, and David Altmaier, in His Official Capacity as Commissioner of the Florida Office of Insurance Regulation, Appellants, v. James F. FEE, Jr., Individually, Appellee.
    CASE NO. 1D16-5408 & 1D16-5416
    District Court of Appeal of Florida, First District.
    Opinion filed May 9, 2017

      Thomas J. Maida, James A. McKee, Benjamin J. Grossman, and Nicholas R. Paquette of Foley & Lardner LLP, Tallahassee, for Appellant National Council on Compensation Insurance, Inc.; Shaw.P. Stiller, Chief Assistant General Counsel, and C. Timothy (Gray and Lacy End-Of-Horn, Assistant General Counsels, for Appellants Florida Office of Insurance Regulation and David Altmaier.
    John K. Shubin, Salvatore • H. Fasulo, Lauren G. Brunswick, and Mark E. Grafton- of Shubin & Bass, P.A., Miami, for Appellee.
    Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Amicus Curiae The Florida Press Association, The First Amendment Foundation, and The Associated Press, Inc.
    Richard A. Sicking of Touby, Chait & Sicking, P.L., Coral Gables, for Amicus Curiae Florida. Professional Firefighters, Inc.
   ROWE, J.

The National Council on Compensation Insurance (NCCI) and the Office of Insurance Regulation (OIR) appeal the trial court’s order invalidating OlR’s approval of a 14.5% increase in workers’ compensation insurance rates. For the reasons that follow, we reverse the order in its entirety.

I. Facts

OIR regulates all insurance activities in Florida, including all activities relating to workers’ compensation insurance. Insurance companies writing workers’ compensation insurance policies in Florida must seek approval from OIR when setting or changing insurance rates by filing a rate proposal. OIR reviews filings seeking a rate change to determine if the proposed rate is “excessive, inadequate, or unfairly discriminatory ... in accordance with generally accepted and reasonable actuarial techniques.” § 627.062(3)(b), Fla. Stat. (2015). In determining whether the rate proposal should be approved, OIR may examine the statistical data supporting the proposed rate, and it may hold a public hearing., §§ 627.091(2), .101, Fla. Stat. (2015). OIR takes official action on rate filings through its agency head, the Commissioner of Insurance. Regulation, currently .David Altmaier. See §§ 20.121(3)(a)l., (4), Fla. Stat. (2015).

Insurers have the option, of directly filing rate change proposals with OIR or joining a licensed rating organization that will file the proposals on their behalf. § 627.091(4), Fla. Stat. (2015). A rating organization is defined as “every person, other than an authorized insurer, whether located within or outside this state, who has as his or her object or purpose the making of rates, rating plans, or rating systems.” § 627.041(3), Fla. Stat. (2015). NCCI is a licensed rating organization operating in more than forty states. And it represents and files rate proposals on behalf of most of the workers’ compensation insurers in Florida. Before 1991, the responsibility for establishing rates fell to NCCI’s Classification and Ratings Committee. NCCI had such a committee in each state in which it operated, including Florida. These rate-determination committees were composed of representatives of competing workers’ compensation insurers who would meet periodically to fix the rates to be submitted for approval to insurance regulators. The committees were disbanded in 1991. Since then, no specific committee at NCCI has been assigned responsibility for overseeing, reviewing, or preparing rate filings. In Florida, the responsibility for rate determinations falls to a single employee of NCCI, one of its actuaries—Jay Rosen.

Before filing a rate proposal with OIR, Rosen analyzes certain data to determine whether there is a need for a change in insurance rates. After he decides that a rate change is needed, a Technical Peer Review meeting is convened where other NCCI actuaries challenge Rosen’s conclusions in order to assist him in defending his recommended rate proposal. The next step in the process is a Phase II meeting where Rosen provides an overview to other actuaries and members of NCCI’s regulatory division explaining how he arrived at his rate proposal. After these meetings, Rosen prepares the documents that are filed with OIR.

II, Procedural History

NCCI announced in a May 2016 press release that, as a consequence of the supreme court’s decision in Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016), which declared unconstitutional the statutory cap on claimants’ attorneys’ fees in workers’ compensation cases, a significant increase in workers’ compensation insurance rates would be necessary. Following this announcement, James F. Fee, Jr., an attorney and the sole owner of a law firm that purchases workers’ compensation insurance in Florida, requested from NCCI “all pertinent information relating to all NCCI rate and rule filings affecting Florida Workers’ Compensation premiums that were in effect for the calendar years 2006 through 2016.” Fee made this request shortly before NCCI submitted a proposal to OIR for a 17.1% increase in the overall statewide workers’ compensation insurance rate; he made a second records request after the proposal was submitted. NCCI responded by providing Fee with the records it submitted to OIR with its rate filing.

Before OIR could act on NCCI’s rate filing, the supreme court decided Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016), holding that the 104-week statutory limit on temporary total disability benefits was unconstitutional, and reinstating a 206-week limitation on these benefits. NCCI responded to the Westphal decision by amending its filing to propose a rate increase of 19,6% to go into effect on October 1, 2016, After NCCI amended its filing, OIR provided notice that it would conduct a public hearing on the proposed rate increase. Fee then made another request to NCCI, seeking any information related to the amended rate filing and any additional information related to his prior requests. Two weeks later, NCCI provided Fee with documents it submitted to OIR associated with its 2016 amended rate filing. Days later, OIR published on the internet all of NCCI’s rate filings from 2006 through 2016,

Fee then filed suit against NCCI, OIR, and Commissioner Altmaier and sought to enjoin the public hearing on NCCI’s amended rate filing. Fee alleged that (1) NCCI violated the Sunshine Law, section 286.011, Florida Statutes (2016), by failing to provide notice of or a meaningful opportunity to participate in committee meetings where its rate proposals were discussed; (2) the amended rate filing was void ab initio due to violations of the Sunshine Law; (3) NCCI violated section 627.291(1), Florida Statutes, by denying Fee access to records regarding the rate proposal; and (4) NCCI violated the Public Records Act by failing to respond to Fee’s records requests.

Despite the pending complaint, the public hearing proceeded as scheduled on August 16, 2016. At the four-hour hearing, every person who filled out a speaker card spoke, including an actuary Fee hired to present testimony in opposition to the proposed rate increase. OIR also allowed for additional commentary by holding open the time for written public comments for an extra seven days. But after reviewing NCCI’s rate proposal and considering public comments on the proposal, OIR rejected the proposed 19.6% increase as unjustified. OIR determined that only a 14.5% rate increase was appropriate. NCCI then submitted a revised rate proposal requesting a 14.5% rate increase. On October 5, 2016, Commissioner Altmaier issued a final order approving the revised rate proposal.

The trial court held an evidentiary hearing on Fee’s complaint after the Commissioner approved the final order, but before the rate went into effect. After hearing testimony and receiving documentary evidence, the court determined that the order approving the fate increase was void because NCCI and OIR violated the Sunshine Law under three separate statutory provisions: section 627.091(6), Florida Statutes; section 286.011, Florida Statutes; and section 627.093, Florida Statutes. The trial court also concluded that NCCI violated sections 627.291(1) and 119,07, Florida Statutes, when it denied Fee access to its récords. NCCI and OIR appeal.

III. Analysis

We review the trial court’s factual findings to determine whether they are supported by competent, substantial evidence. McDougall v. Culver, 3 So.3d 391, 392 (Fla. 2d DCA 2009). But we review the trial court’s interpretation of the law de novo. Liner v. Workers Temp. Staffing, Inc., 990 So.2d 473, 476 (Fla. 2008) (‘We review the statutory interpretation conducted by the trial court to reach this ultimate ruling de novo, while we defer to those factual findings of the trial court that are supported by competent, substantial evidence from the record.”).

A. Alleged Sunshine Law Violations

The trial court found that NCCI and OIR violated Florida’s Sunshine Law in three respects. First, the trial court determined ■ that NCCI violated section 627.091(6), Florida Statutes, by conducting meetings of the statutory rate-determination committee outside the sunshine. Second, the trial court" found that OIR delegated its "authority over rate’ filings to NCCI, subjecting NCCI’s rate proposal activities to the sunshine.requirements of section 286.011, Florida Statutes. And third, the trial court concluded that section 627.093, Floridá Statutes, requires NCCI to conduct its activities in the sunshine.

i Section 627.091(6), Florida Statutes

Florida’s Sunshine Law finds its origins in section 286.011, Florida Statutes (2015), which provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission, must provide reasonable notice of all such meetings.

The Sunshine Law was made part of the Florida Constitution in 1992, in article I, section 24, which requires “[a]ll meetings of any collegial public body” to be open and noticed to the public. By its express terms, the Sunshine Law applies exclusively to governmental bodies and not to private entities. See Op; Att’y Gen. Fla. 16-01 (2016).

Despite this limitation, the Florida Legislature extended the scope of the law to include licensed insurance rating organizations, such as NCCI, under certain specified circumstances:

Whenever the committee of a,recognized .rating organization with responsibility for workers’ compensation and employer’s liability insurance rates in this state meets to discuss the necessity for, or a request for, Florida rate increases or decreases, the determination of Florida rates, the rates to be requested, and any other matters pertaining specifically and directly to such Florida rates, such meetings shall be held in this state and shall be subject to s. 286.011. The committee of such a rating organization shall provide at least 3 weeks’ prior notice of such meetings to the office and shall provide at least 14 days’ prior notice of such meetings to the public by publication in the Florida Administrative Register.

§ 627.0ál(6), Fla. Stat. (2015) (emphasis added). This unique extension of the Sunshine Law applies only when the rate-determination committee of a' rating organization meets to determine workers’ compensation insurance' rates. NCCI argues, and it is undisputed, that no committee at NCCI has been charged with the responsibility for determining worker’s compensation insurance rates in over twenty-five years.

Although NCCI does not entrust a specific committee with responsibility for determining workers’ compensation insurance rates in Florida, Fee contends, and the trial court found, that the following configurations of NCCI’s and OIR’s employees met and acted in place of the rate-determination committee contemplated under the statute and that meetings of those groups were subject to the sunshine: (1) Jay Rosen, in his individual capacity; (2) the Team Peer Review and Phase II meeting participants; (3) Rosen and his staff; and (4) NCCI’s and OIR’s staff. We conclude that none of these individuals or groups meets the definition of the rate-determination committee under the statute, and thus, none of these meetings was subject to the sunshine.

Fee asserts that Rosen, in his individual capacity, acted in place, of the rate-determination committee, contemplated by section 627.091(6). This argument ignores the plain language of the statute and the ordinary meaning of the terms within it. See McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1208 (Fla. 2006) (explaining that statutory, construction starts with an examination of the plain language of the statute); State v. Bodden, 877 So.2d 680, 685 (Fla. 2004) (observing that it is assumed that the legislature knows the ordinary meaning of words when it enacts a statute). The statute applies only to meetings of a rating organization committee where workers’ compensations insurance rates are discussed and determined. A “committee” has been defined as a “subordinate group,” not a single person. See Committee, Black’s Law Dictionary (10th ed. 2014). Moreover, the use of the term “meets” indicates that the statute is designed to apply to a group of people, not a single individual. The multi-person concept of the term “committee” further finds support in well-established precedent construing the Sunshine Law. See Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So.3d 755, 764 (Fla. 2010) (explaining that Sunshine'Law protections extend to formal and informal meetings only when two or more members of the same board or commission meet to deal with a matter on which' action will be taken in the future); Office of the Attorney General, Government-In-The-Sunshine Manual, at 18 (2016 ed.) (observing that the Sunshine Law does not “ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members.” (emphasis added)). Thus, under the plain and ordinary meaning of the terms “committee” and “meet,” Rosen, in his individual capacity, does not act or “meet” as the statutory rate-determination committee contemplated by section 627.091(6).

The trial court also concluded that NCCI’s Team Peer Review and Phase II- meetings, the meetings between Rosen and his own staff, and the meetings be•tween NCCI and OIR were the functional equivalent of the rate-determination committee. meetings described in section 627.091(6) and that the actions of these groups were subject to the Sunshine Law. The trial court’s conclusions are incorrect. With regard to NCCI’s internal meetings, the Sunshine Law does not apply because none of the participants, other than Rosen, had any authority to determine the worker’s compensation insurance rate to be proposed to OIR. See Sarasota Citizens, 48 So.3d at 762 (holding that the dispositive question for whether the Sunshine Law applies to a committee subordinate to or selected by a traditional governmental authority is whether decision-making authority has been delegated to the committee); Cape Publ’ns, Inc. v. City of Palm Bay, 473 So.2d 222 (Fla. 5th DCA 1985) (holding that a committee that was formed to supply a city manager with information so that he could properly exercise his duty to select a new police chief was not subject to the Sunshine Law because the committee had no decision-making authority). Instead, these meetings were held solely for the purpose of gathering information. See Molina v. City of Miami, 837 So.2d 462, 463 (Fla. 3d DCA 2002) (“In short, the committee is nothing more than a meeting of staff members who serve in a fact-finding, advisory capacity to the chief. The Government-in-the-Sunshine Law is not applicable to meetings of staffers serving this function.”); Lyon v. Lake Cty., 765 So.2d 785, 789 (Fla. 5th DCA 2000) (“When a committee has been established for and conducts only information gathering and reporting, the activities of that committee are not subject to section 286.011, Florida Statutes.”). And with regard to the meetings between NCCI and OIR, those meetings occurred after NCCI made a rate determination and filed its rate proposal with OIR. In no way could those meetings be considered a meeting of a rate-determination committee of a rating organization to determine the rates to be filed. Accordingly, neither NCCI’s internal meetings nor the meetings between OIR and NCCI was subject to the sunshine pursuant to section 627.091(6).

ii. -Section-286.011, Florida Statutes ■

Fee also argued, and the trial court found, that NCCI violated the Sunshine Law itself. Section 286.011, Florida Statutes (2015), requires “[a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision” to be held in the sunshine. The Sunshine Law thus applies to governmental bodies and does not apply to private organizations that were not created by a public entity. See Op. Att’y Gen. Fla. 07-27 (2007). However, the sunshine requirements may apply if a public entity has delegated “the performance of its public purpose” to a private entity. Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 382-83 (Fla. 1999).

Fee contends that NCCI was subject to the sunshine because OIR delegated its authority over rate filings to NCCI. However, no evidence in the record supports Fee’s argument. OIR approves and disapproves rate filings; it does not make rate filings. Conversely, NCCI and individual insurers have no authority to approve or disapprove rate filings; rather, they are under a statutory mandate to file such proposals. §§ 627.091(1), (4), Fla. Stat. (2015). OIR did not delegate to NCCI any authority to carry out an agency function required to be performed in the sunshine. Thus, Fee’s argument under section 286.011 fails.

in. Section 627.093, Florida Statutes

The trial court also concluded, without any argument by the parties, that NCCI was subject to the sunshine pursuant to section 627.093, Florida Statutes. This statute provides as follows: “Section 286.011 shall be applicable to every rate filing, approval or disapproval of filing, rating deviation from filing, or appeal from any of these regarding workers’ compensation and employer’s liability insurances.” § 627.093, Fla. Stat. (2015). The plain language of the statute thus extends sunshine requirements only to rate filings; actions taken by OIR subsequent to receiving a rate filing (approval, disapproval or deviation); and appeals of OIR’s actions. The only portion of the statute that has any nexus to NCCI’s activities in this case is the rate filing itself. And a rate filing is specifically defined by statute to include the following information: (1) “[t]he experience or judgment of the insurer or rating organization”; (2) an “interpretation of any statistical data”; (3) “[t]he experience of other insurers or rating organizations;” or (4) “[a]ny other factors which the insurer or rating organization deems relevant.” § 627.091(2), Fla. Stat. (2015). Reading section 627.093 in conjunction with the statutory definition of a rate filing, it is clear that the sunshine requirements of section 627.093 do not apply to NCCI beyond the rate filing itself. It does not extend to NCCI’s rate determination activities or to its decision-making process leading to the filing of a rate proposal. The trial court’s conclusion to the contrary is incorrect.

B. Access to Records

Fee also alleges that NCCI failed to fully and completely respond to his records requests, in violation of two statutes: section 627.291, Florida Statutes; and section 119.07, Florida Statutes. We conclude that NCCI was not required to provide Fee with access to its records under either provision.

i. Section 627.291, Florida Statutes

Fee contends that he is entitled to access NCCI’s records pursuant to section 627.291, Florida Statutes (2015), as an insured affected by a rate or aggrieved by a rating system. The statute provides as follows:

(1) As to workers’ compensation and employer’s liability insurances, every rating organization and every insurer which makes its own rates shall, within a reasonable time after receiving written request therefor and upon payment of such reasonable charge as it may make, furnish to any insured affected by a rate made by it, or to the authorized representative of such insured, all pertinent information as to such rate.
(2) As to workers’ compensation and employer’s liability insurances, every rating organization and every insurer which makes its own rates shall provide within this state reasonable means whereby any person aggrieved by the application of its rating system may be heard, in person or by his or her authorized representative, on his or her written request to review the manner in which such rating system has been applied in connection with the insurance afforded him or her. If the rating organization or insurer fails to grant or rejects such request within 30 days after it is made, the applicant may proceed in the same manner as if his or her application had been rejected. Any party affected by the action of such rating organization or insurer on such request may, within 30 days after written notice of such action, appeal to the office, which may affirm or reverse such action.

§ 627.291, Fla. Stat. (2015) (emphasis added).

Fee asserts that as an insured who would be affected by NCCI’s proposed rate increase, he was entitled to access all pertinent records relating to NCCI’s rate filing. But the plain language of the statute requires rating organizations to turn over “all pertinent information” to an insured who has been “affected?’ by a rate. Even assuming that Fee had standing as an insured, he could not have been “affected” by a rate that had yet to go into effect and would never go into effect as OIR ultimately rejected NCCI’s request for a 19.6% rate increase. The legislature drafted the statute in the past tense, and it is presumed that the legislature understood this language would limit any rating organization’s obligation to turn over rate information to rates that were already in effect. See State v. McNeil, 162 So.3d 274, 279 (Fla. 5th DCA 2015) (holding that the legislature is presumed to understand the rules of grammar when enacting a statute).

Moreover, all portions of a statute must be read together to achieve a consistent whole. Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006). The language contained in section 627.291(2), also written in the past tense, supports a construction of the statute that would require disclosure of information for only rates that are already in effect. Subsection (2) requires rating organizations to provide reasonable means for any person “aggrieved by the application of its rating system” to review the manner in which “such rating system has been applied” to his or her insurance. § 627.291(2), Fla. Stat. (2015). Further, when both subsections are read together, it is apparent that this statute was designed to allow an insured to obtain information about a rate that is in effect or was in effect and to determine whether he has grounds to challenge the application pf the rate to him. Because nothing in section 627.291 makes it applicable to pending or,rejected rate filings, NCCI was not required to provide records in response to Fee’s requests.

ii. Section: 119.07, Florida Statutes

Fee also argues, and the.trial court found, that NCCI violated the Public Records Act, which provides that *‘[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” § 119.01, Fla. Stat. (2015). The Act defines an “agency” to include any private business entity “acting on behalf of any public agency.” § 119.011(2), Fla. Stat. (2015). “This broad definition [of agency] serves to ensure that a public agency cannot avoid disclosure under the Act by contractually delegating to a private entity that which otherwise would be an agency responsibility.” News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Grp., Inc., 596 So.2d 1029, 1031 (Fla. 1992). Thus, in order to find that NCCI was subject to section 119.07, the trial court was required to determine whether NCCI acted on behalf of a governmental agency. In making this determination, it was necessary for the court to examine multiple factors, including the nine factors outlined in Schwab. 596 So.2d at 1031. But, here, the trial court expressly declined to apply the Schwab factors and concluded that NCCI was subject' to section 119.07. This was error. Economic Dev. Comm’n v. Ellis, 178 So.3d 118, 121 (Fla. 5th DCA 2015).

TV. Conclusion

The trial court erred in declaring OIR’s final order void and in concluding that NCCI and OIR violated the Sunshine Law. The trial court also erred in determining NCCI violated section 627.291, Florida Statutes, and the Florida Public Records Act, by riot providing Fee with access to certain records. Accordingly, we REVERSE the trial court’s final order, and REMAND for reinstatement of OIR’s final order issued on October 5, 2016, approving a 14.5% increase in the workers’ compensation insurance rates.

KELSEY and JAY, JJ., CONCUR.

      . Pursuant to a separate contract with OIR, NCCI also serves as the statistical agent for Florida. In this role, NCCI compiles data regarding the loss, expense, and claims experience of workers’ compensation insurance carriers. See § 627.331(3), Fla. Stat. (2015).

      . The trial court concluded that NCCI’s disbanding of its Classification and Rate Committee in 1991 and its delegation of the responsibility for rate proposals to one person was an attempt to evade the sunshine. But the application of the Sunshine Law does not depend on a party's "intentions, sincerity of purpose or noble motives.” IDS Props., Inc. v. Town of Palm Beach, 279 So.2d-353, 357 (Fla. 4th DCA 1973). Further, it is unclear on this record how the trial, court reached the conclusion that NCCI restructured its rate-proposal process in over forty states to avoid compliance with Florida’s Sunshine Law.

      . Fee did not allege that the meetings between NCCI and OIR were subject to the sunshine under this provision, and the issue was not listed in the pre-hearing stipulation; thus, the trial court erred by addressing this issue. See LPI/Key W. Assocs., Ltd. v. Beachcomber Jewelers, Inc., 77 So.3d 852, 854 (Fla. 3d DCA 2012) (“A pretrial stipulation limiting the issues to be tried is ‘binding upon the parties and the trial court, and should be strictly enforced.’ ”) (quoting Broche v. Cohn, 987 So.2d 124, 127 (Fla. 4th DCA 2008))).

      . We note that if OIR requests an examination of the underlying statistical data for a certain rate filing, this information would not be subject to public disclosure due to the exemptions described in section 624.319, Florida Statutes (2015).

      . In the brief filed with this Court, neither Fee nor Amicus Florida Press Association attempt to defend the trial court's ruling that NCCI was subject to the Public Records Act. •However, when asked at oral argument to concede error on this point, Fee’s counsel instead attempted to defend the trial court’s ruling by arguing that the trial court did not need to rely on the Schwab factors because of the other relevant statutory provisions dealing with an insured’s access to records from a workers’ compensation insurance company.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Morris MARIAH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-582
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      Morris Mariah, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Morris Mariah appeals the trial court’s omnibus order denying his motions to correct, modify, or set aside what Mariah claims is an illegal sentence. Mariah contends that his cumulative twenty-year habitual felony offender sentence is an illegal sentence because: it exceeds the maximum period set forth by law; the trial court failed to determine whether there was a factual basis to impose an habitual offender sentence; Mariah was both insane and incompetent when he entered his plea; and the trial court’s finding, of competency was based on “stale” reports and testimony. Because we find that each of Mariah’s claims are without merit, we affirm..

Mariah was on probation in case numbers F04-36496 (for burglary of a structure)‘and F05-3099 (for aggravated battery on a prison official) when he was charged in case number F09-28701 with committing nine offenses including burglary, resisting an officer with violence, two counts of aggravated battery on a police officer with a deadly weapon, and one count of aggravated assault on a law enforcement officer. After his 2009 arrest, Mariah was sent to South Florida Evaluation and Treatment Center (“SFETC”) based on a finding of incompetency. Upon his return, and after being re-evaluated, the trial court conducted a competency hearing, found that Mariah was competent to proceed, and subsequently accepted Ma-riah’s plea as to the violation of his probation and the new offenses. Based on the negotiated plea, Mariah was sentenced to fifteen years state prison followed by five years of probation as a habitual felony offender.

We find nothing illegal about that sentence. The sentence, which was as a result of a negotiated plea, does not exceed the statutory maximum. The trial court colloquied Mariah prior to making a finding that Mariah qualified to be sentenced as a habitual felony offender, Mariah admitted that he was the person convicted of the offenses in case numbers FÓ4-36496 and F05-3099 and that his convictions were not overturned on appeal or pardoned by the Governor. Aggravated battery on a law enforcement officer with a deadly weapon is a first degree felony punishable by thirty years in prison, and aggravated assault on a law enforcement officer is a second degree felony punishable up to fifteen years in prison. The other offenses Mariah was charged with were third degree felonies punishable up to five years in prison. It is therefore clear that the sentence imposed was a legal sentence.

Mariah’s claim of insanity and/or incompetency at the time he entered his plea is also refuted by the record. The transcript of the 2012 competency hearing reflects that Dr. Sonia Ruiz initially evaluated Mariah in 2009 prior to Mariah’s commitment to SFETC, again in June of 2010 upon his return to Miami-Dade County, and then a third time just prior to the competency hearing in 2012. Dr. Ruiz found that Mariah was competent to proceed in both 2010 and 2012. Dr. Ruiz testified that even when Mariah was first examined in 2009, she had concerns that he was feigning his symptoms, but out of caution, she recommended that he be sent to SFETC for an evaluation and treatment for depression. Dr. Ruiz’s finding of competency in 2012 was based on her evaluations of Mariah, her review of his records at SFETC and the Miami-Dade County Jail, and her direct contact with people at both facilities. She found he was malingering and competent to proceed.

Similarly, Dr. Ralph Richardson evaluated Mariah in July 2010, and then again in January 2012 just before the competency hearing. On both occasions, he concluded that Mariah was malingering and competent to proceed. Dr. Richardson noted that even the mental health professionals at SFETC had concluded that Mariah was malingering.

In contrast, Dr. Michael Di Tomaso, a witness appointed on behalf of the defendant, as opposed to a court-appointed expert, opined that Mariah was not competent to proceed. The trial court, however, found Dr. Di Tomaso’s conclusion “incredulous.” The trial court specifically noted that Dr. Di Tomaso, who had no prior exposure to Mariah, did no testing (both Dr. Ruiz and Dr. Richardson performed extensive testing), reviewed no records, reviewed no reports, and did not attempt to speak with anyone at the Miami-Dade County Jail or SFETC to confirm or call into question Mariah’s presentation.

As reflected, Dr. Di Tomaso’s testimony conflicted with Dr. Ruiz’s and Dr. Richardson’s testimony as to Mariah’s competency. The trial court had the opportunity to assess, the testimony and credibility of the three mental health experts, and in doing so, rejected Dr. Di Tomaso’s testimony. As Dr. Ruiz’s and Dr. Richardson’s testimony was sufficient to sustain a determination that Mariah was competent, the trial court, as the fact-finder, was well within its discretion to reject Dr. Di Tomaso’s testimony. See Alston v. State, 894 So.2d 46, 54 (Fla. 2004) (“[Wjhen the experts’ reports or testimony conflict regarding competency to proceed, it is the trial court’s responsibility to consider all of the relevant evidence and resolve such factual disputes.”); see also Hernandez-Alberto v. State, 126 So.3d 193 (Fla. 2013) (same). Because there was sufficient evidence to support the trial court’s conclusion, this Court cannot substitute its judgment for that of the trial court. Alston, 894 So.2d at 54. Therefore, as Mariah has failed to demonstrate that the trial court abused its discretion, the trial court’s determination that Mariah was competent to proceed will stand. See Hernandez-Alberto, 126 So.3d at 204 (“A trial court’s decision regarding competency will stand absent a showing of abuse of discretion.”).

Affirmed.


author: SCALES, J.

text:
    KENDALL SOUTH MEDICAL CENTER, INC., Appellant, v. CONSOLIDATED INSURANCE NATION, INC., d/b/a Insurance Nation, Appellee.
    No. 3D16-926
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017.

      Raul A. Montaner, for appellant.
    Fowler White Burnett, P.A., and June Galkoski Hoffman and Rory Eric Jurman (Fort Lauderdale), for appellee.
    Before ROTHENBERG, LAGOA and SCALES, JJ.
   SCALES, J.

Kendall South Medical Center, Inc. (“Kendall South’’)» .the plaintiff below, appeals a final order dismissing its Fourth Amended Complaint with prejudice for failure to state a cause of action. against one of the defendants below, Consolidated Insurance Nation, Inc. d/b/a Insurance Nation (“Insurance Nation”). We have jurisdiction, See Fla. R. App. P. 9.110(k). Concluding that Kendall South has sufficiently stated a cause of action for negligent procurement .of an insurance policy, we reverse.

Underlying Facts

Kendall South operates a medical center on leased premises located in North Miami Beach, Florida. On January 3, 2013, the sprinkler system on the leased premises was undergoing maintenance when a leak occurred, resulting in significant water damage to both the physical improvements (i.e., walls, flooring, baseboards) and to the contents (i.e., equipment and machinery) located therein. Kendall South had a commercial property insurance policy with Nation Insurance—issued in August 2011, and later renewed—which provided $100,000 of coverage for the physical improvements and contents of the subject property, and which contained a $1,000 deductible and a 90 percent coinsurance clause. As a result of the sprinkler leak, Kendall South suffered property damaging totaling approximately $260,000. Kendall South made an insurance claim, purportedly expecting to receive a $100,000 payout, but received only $16,562.67 due to the policy’s coinsurance clause.

In March 2013, Kendall South filed a negligence claim against the management company for the leased premises, Equity One Realty & Management, FL., Inc., which allegedly undertook the work on the sprinkler system. As an affirmative defense, the management company asserted that Kendall South had failed to maintain sufficient insurance on the subject premises in compliance with the parties’ lease agreement. In April 2013, Kendall South filed an Amended Complaint, adding a negligence claim against Countryside Power Sweeping, Inc.,' which allegedly performed the work on the sprinkler system. The matter was referred to mediation and later set for trial, which was rescheduled on numerous occasions.

Before the trial was held, on January 20, 2015, Kendall South was granted leave to file a Second Amended Complaint in order to add claims for negligent procurement of insurance and breach of fiduciary duty against Kendall South’s insurer, Insurance Nation. The lower court then struck the pending trial date. On February 26, 2015, Insurance Nation moved to dismiss the two claims against it, claiming that Kendall South had failed to state causes of action. The trial court agreed, dismissing the Second Amended Complaint without prejudice.

On July 31, 2015, Kendall South filed its Third Amended Complaint, again alleging a claim for negligent procurement of insurance against Insurance Nation, but dropping the claim for breach of fiduciary duty. Insurance Nation moved to dismiss the Third Amended Complaint, alleging that Kendall South had again failed to state a cause of action. The trial court agreed, dismissing the Third Amended Complaint without prejudice.

On November 18, 2015, Kendall South filed its Fourth Amended Complaint, once again alleging a claim for negligent procurement of insurance against Insurance Nation. In this pleading, Kendall South alleged that it had met with Insurance Nation’s agent, Humberto Torres, on or about August 10, 2011, in order to obtain a “a commercial property coverage policy of insurance in the amount of $100,000[.]00 that would cover the property, equipment, supplies, and improvements” of Kendall South.

At this meeting, after informing the agent that the subject premises had “office equipment, supplies and furnishings in excess of $100,000.00 and that: - [Kendall South] had spent in excess of $100,000.00 for the buildouts, betterments or .improvements” thereon, Kendall South “requested from [agent] Torres insurance coverage of $100,000.00 to cover the property^ supplies, furnishings, betterments or improvements of Kendall South Medical Center, Inc.” Thereupon, “Torres informed [Kendall South] that Defendant Insurance Nation would procure a commercial policy of insurance that would cover and protect all the property, equipment, furnishings and improvements of the Plaintiff Kendall South Medical Center, Inc., and as specifically requested by Plaintiff.”

After Kendall South paid the premium for a policy that provided'property damage coverage of $100,000 with a $1,000 deductible and a 90 percent coinsurance clause, “Defendant Insurance Nation by and through its agent Torres' again assured plaintiff that, the policy procured by Defendant Insurance Nation would ,cover and fully pay the amount of $100,000[.]00 that was requested by Plaintiff.” Kendall South renewed the policy under the same terms in August 2012. As a result of the sprinkler leak in January 2013, Kendall South’s premises purportedly suffered property damage in excess of $260,000. The subject policy, however, provided coverage in thé amount of only $16,562.67 as a result of a penalty imposed by the coinsurance clause.

Kendall South specifically alleged that Insurance Nation “had the duty to procure the insurance coverage as requested,” as well as a “duty of reasonable care in ... properly explaining the policy of insurance procured on [Kendall South’s] behalf.” This duty was allegedly breached when the agent “failed to advise and or inform arid or adequately and or properly explain to [Kendall South] the 90% coinsurance clause” where the agent “knew or should have known that the policy written by [Insurance Nation] with the 90% coinsurance clause would not cover and pay [Kendall South’s] property as requested by [Kendall South] in the event” of a covered claim.

Insurance Nation moved to dismiss the Fourth Amended Complaint, once again alleging that Kendall South had failed to allege a claim for negligent procurement of insurance. Insurance Nation asserted, in pertinent part that: (i) it “explained this policy, including the coinsurance requirements, to Kendall South in the same way that Insurance Nation always explains similar policies to its customers as a matter of custom and practice”; (ii) “[b]y procuring and explaining the insurance requested by Kendall South, Insurance Nation met its duty”; and (iii) “Kendall South is attempting to manufacture a broker’s liability claim against Insurance Nation despite 1) receiving the insurance it requested; and 2) never specifically asking for a higher level of insurance given the value of its office equipment.”

This time the trial court dismissed the Fourth Amended Complaint with prejudice. For the following reasons, we conclude the trial court erred in finding that the Fourth Amended Complaint failed to adequately allege a claim for negligent procurement of insurance.

Analysis

“A motion to dismiss tests whether a cause of action is stated and requires the court to look only to the four corners of the complaint without considering any affirmative defenses raised by the defendant, or evidence likely to be produced by either side.” Martin v. Principal Mut. Life Ins. Co, 557 So.2d 128, 128-29 (Fla. 3d DCA 1990). To this end, the trial court must treat as true all of the complaint’s well-pleaded allegations and consider them in the light most favorable to the plaintiff. Siegle v. Progressive Consumers Ins. Co, 819 So.2d 732, 734-35 (Fla. 2002). The trial court’s dismissal for failure to state a cause of action is an issue of law subject to de novo review. Id. at 734.

It is well settled that “where an insurance agent or broker undertakes to obtain insurance coverage for another person and fails to do so, he may be held liable for resulting damages for ... negligence.” Klonis ex rel. Consol. Am. Ins. Co. v. Armstrong, 436 So.2d 213, 216 (Fla. 1st DCA 1983); see also Romo v. Amedex Ins. Co., 930 So.2d 643, 653-54 (Fla. 3d DCA 2006) (concluding the insured had stated a valid cause of action for negligent procurement of insurance); Caplan v. La Chance, 219 So.2d 89, 90 (Fla. 3d DCA 1969) (concluding that an “action charging [insurance agents] with negligence in failing to procure the proper coverage requested by the insured ... is a recognized cause of action”). More specifically, and as applicable here, “[a]n agent is required to use reasonable skill and diligence, and liability may result from a negligent failure to obtain coverage which is specifically requested or clearly warranted by the insured’s expressed needs.” Warehouse Foods, Inc. v. Corporate Risk Mgmt. Servs, Inc. 530 So.2d 422, 423 (Fla. 1st DCA 1988). As explained by our sister court, “[t]his general duty requires the agent to exercise due care in correctly advising the insured of the existence and availability of particular insurance, including the availability and desirability of obtaining higher limits, depending on the scope of the agents undertaking.” Adams v. Aetna Cas. & Sur. Co., 574 So.2d 1142, 1155 (Fla. 1st DCA 1991).

Viewing the allegations of the Fourth Amended Complaint as true and in a light most favorable to Kendall South, we conclude the allegations sufficiently state a cause of action for negligent procurement of insurance. Kendall South asserts that, once it informed Insurance Nation’s agent: (i) that both the physical contents of the subject premises and the improvements thereon were each valued in excess of $100,000, and (ii) that it wanted to procure just $100,000 of insurance with respect thereto, it was incumbent upon the agent to apprise Kendall South of the effect of the coinsurance clause, and to explain that different coverage was required to meet Kendall South’s expectations.

In short, Kendall South alleges, albeit somewhat inartfully, that liability arises here from the agent’s negligent failure to advise Kendall South at the August 10, 2011 meeting that the procured policy was inadequate to address Kendall South’s expressed insurance needs. At this stage of the proceedings, on these allegations, we agree that Kendall South has stated a valid cause of action for negligent procurement of insurance.

In reaching this decision, we do not at all imply that an agent or broker has a general duty of knowing and/or valuing the contents and improvements of the premises either before procuring, or thereafter renewing, a commercial insurance policy. Nor, given the current state of the pleadings, is this a case where it has been alleged by the plaintiff that an agent or broker has a general duty to explain a coinsurance clause to any insured before issuing such a policy. Rather, when an insured alleges that it specifically communicated its insurance needs to an agent who then undertook to procure a policy addressing such needs, the insured states a cause of action for negligent procurement where it also alleges that, without providing an explanation that different coverage was required, the agent procured a policy not meeting those expressed needs.

Accordingly, we reverse the final order dismissing with prejudice Kendall South’s Fourth Amended Complaint against Insurance Nation and remand this cause for further proceedings.

Reversed and remanded.

      . The facts presented herein áre taken from the underlying Fourth Amended Complaint,

      . Generally speaking, a coinsurance provision in a policy covering real or personal property imposes a penalty upon an insured who purchases coverage that is far less than the full value of the covered property, such that the insurer does not pay the full amount of a covered loss:
      ' "Coinsurance” means a relative division of the risk between the insurer and the insured, dependent on the relative amount of the policy and the actual value of the property insured thereby.
      The purpose of coinsiirance is to increase the risk to the insured when the insured purchases far less coverage than the full value of the property; when a coinsurance provision applies, the insurer does' not pay the full amount of loss, but the amount otherwise payable under the policy is reduced in proportion to the extent to which the property is underinsured. In 'fact, properly considered, a coinsurance clause involves a penalty or partial forfeiture.
      31 Fla. Jur. 2d Insurance § 2457 (2017) (footnotes omitted).

      . The claims against Equity One Realty & Management, FL., Inc. and Countryside Power Sweeping, Inc. remain pending in the lower court.

      . As already noted, Insurance Nation argued in its motion to dismiss that its agent did "explain[] this policy, including the coinsurance requirements, to Kendall South in the same way that Insurance Nation always explains similar policies to its customers as a matter of custom and practice,” and that this conduct satisfied its duty of care. This, of course, is a matter for later consideration, whether it be raised on a motion for summary judgment or at trial. Similarly, Insurance Nation's argument that Kendall South made only general requests for "full” or "adequate” coverage at the August 2011 meeting presents a potential factual issue that cannot be resolved on a dismissal motion. See Commercial Ins. Consultants, Inc. v. Frenz Enters., 696 So.2d 871, 872 (Fla. 5th DCA 1997) (concluding that whether there has been a failure to procure insurance is ordinarily a question of fact). We express no opinion as to the efficacy of these arguments at this time.


author: EMAS, J.

text:
    Steve GORDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-626
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott and Jonathan Tanoos, Assistant Attorneys General, for appellee.
    Before SUAREZ, C.J.,.and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Appellant Steve Gordon appeals his judgment and sentence following a jury trial and conviction for strongarm robbery. Gordon contends that the trial court erred in denying his request for a “compound offense” jury instruction, and a verdict form which would have permitted the jury to select more than one lesser-included offense on the verdict form—specifically, either theft and assault, or theft and battery. Appellant also requests that this court remand for entry of a written order as to the lower court’s oral pronouncement finding Gordon competent to stand trial. As to the first claim, we affirm, holding that there was no evidence at trial to support a compound offense instruction or a verdict form permitting the jury to find Gordon guilty of more than one lesser-included offense. As to the second claim, we remand for the trial court to enter a written order, consistent with its oral pronouncement, finding Gordon competent to stand trial.

FACTS

On December 26, 2014, the State charged Gordon by information with one count of robbery pursuant to section 812.13(2)(c), Florida Statutes (2014). The information alleged, in relevant part, that Gordon

did unlawfully, by force, violence, assault, or putting in fear, take certain property, to wit: U.S. coin or currency, said property being the subject of larceny, and of the value of less than one hundred dollars ($100.00), the property of [victim], as owner or custodian, from the person or custody of [victim], with the intent to temporarily or permanently deprive the above-named [victim] of the said' property, in violation of s. 812.13(2)(c), Fla. Stat. ,...

' The relevant acts comprising the crime are not in dispute, as a surveillance camera captured video of the entire encounter between Gordon and the victim. Gordon also provided a post-Miranda statement to police confessing to the crime. However, the defense contended' at trial that Gordon’s actions constituted two lesser-included offenses (i.e., theft and assault or theft and battery), rather than the. robbery as charged.

At trial, the female victim testified that Gordon approached her at a gas station while she was getting gas. Gordon asked if he could “borrow” two dollars for gas. During her testimony, the State played the surveillance video to the jury and, as the video played, the victim described the encounter:

[I] said sure. I had all my money in my back pocket. I’m pulling it out and as I’m pulling it out, he’s walking up to me. I give him the $2; He sees that I have more so he’s like, oh, can I get a 10 instead. I said, no, you can’t, and then he snatched my money out of my hand and tried to make a run for it. That’s when I grabbed him by his shirt. He starts pulling away and then he says, oh, I’m just kidding, and smiles at me. And I’m like, that’s not funny. And then he starts to pull away again: At some point he, like, pushes me off and slaps my glasses off of my face. His shirt starts tearing down the middle so I started yelling for help, because I didn’t know how long I could hold on to him.

The victim testified that each time she tried to take back the money Gordon had “snatched” from her, Gordon pulled away and “that’s when he tried to push me off and ended up smacking my face and my glasses off.” The State also introduced photographs which showed a cut to the victim’s eyelid, an injury she sustained during her encounter with Gordon.

During the encounter, the victim yelled for help, and a Good Samaritan approached and ordered Gordon “to get down on the ground.” Gordon started to comply and dropped the money. Almost immediately, however, Gordon jumped up and ran to his car. The Good Samaritan followed Gordon to the car, where the two tussled, and Gordon struck the Good Samaritan on the right side of his body. Gordon drove away and the Good Samaritan followed in his own vehicle while contacting police. Gordon was soon apprehended, waived his Miranda rights and gave a statement to police. The officer described Gordon’s post-Miranda statement:

[Gordon] said he was sitting his vehicle next to the gas pump when he saw the victim arrive. When she got out of her vehicle, he got out of his, and he approached her, asking her for $2. The victim removed money from her right rear pocket, at which time he said, can I get ten, and she said no. At that point, he said that they began tussling. He went to grab the money out of her hand and they began tussling for the money. Once the victim began to scream, he says that he told her, I’m just playing.

Gordon did not testify at the trial, call any witnesses, or introduce any exhibits.

During the charge conference, defense counsel requested that the jury be instructed that robbery was a compound offense and proposed a verdict form that would allow the jury to find Gordon guilty of two lesser-included offenses—either theft and battery, or theft and assault.

The defendant’s proposed jury instruction read as follows:

Proposed Compound Offense Instruction
Robbery is a compound offense. This means that even though this is a single charge, you may convict the defendant of multiple lesser included offenses.
If you find that Steve Gordon committed theft, and afterwards committed a battery and/or assault, you may convict the defendant of both theft and battery or theft and assault.
You may also convict the defendant of just theft, or just battery, or just assault, or find the defendant not guilty of this count.
(Emphasis added.)

Gordon also proposed the following verdict form, which permitted the jury to consider returning a verdict on the compound offenses of theft and assault or theft and battery:

Proposed Verdict Form

COUNT I

Check only A, B, C, D, E, F, G, H, E- and-F, E-and-G, or H.
A. Guilty of Robbery
B. Guilty of Robbery by Sudden Snatch, a lesser included offense
C. Guilty of Attempted Robbery, a lesser included offense
D. Guilty of Attempted Robbery by Sudden Snatch, a lesser included offense
E. Guilty of Theft, a lesser included offense
F. Guilty of Battery, a lesser included offense
G. Guilty of Assault, a lesser included offense
H. Not guilty.

The State argued there was no factual basis for the compound instruction because there was no separation or temporal break of any kind, and the video clearly established a single sequence of continuous acts by Gordon.

The court denied Gordon’s requested special jury instruction and proposed verdict form. The trial court instructed the jury, consistent with the standard instructions, that the jury could find Gordon guilty of the following lesser-included crimes: Category One lesser-included offenses of theft or assault; Category Two lesser-included offenses of robbery by sudden snatching, attempted strongarm robbery, attempted robbery by sudden snatching, and battery. The standard instruction on lesser included offenses permitted the jury to find Appellant guilty of “any lesser included crime” and further stated that “[ojnly one verdict may be returned as to the crime charged.” The jury found Appellant guilty of strongarm robbery, as charged in the information. The court sentenced Gordon to three years’ imprisonment. This appeal followed.

ANALYSIS

The concept of compound offenses are recognized in Florida. See, e.g., Gian-Grasso v. State, 899 So.2d 892 (Fla. 4th DCA 2005); Bledsoe v. State, 764 So.2d 927 (Fla. 2d DCA 2000); Foster v. State, 596 So.2d 1099 (Fla. 5th DCA 1992) (Cowart, J., dissenting). Should the evidence support it, the trial court must instruct the jury on a compound offense and provide a verdict form that permits the jury to return a verdict of guilty as to more than one lesser-included offense. In fact, shortly after the trial in the instant case, the Florida Supreme Court amended the standard verdict form to permit the jury to consider, under appropriate circumstances, the returning of a verdict of guilty for two or more lesser-included offenses instead of the crime charged. See In re Std. Jury Instr. In Crim. Cases—Report No. 2016-02, 199 So. 3d 234, 236 (Fla. 2016) (amending the standard verdict form and Standard Jury Instruction 3.12 (Criminal) to inform jury in certain circumstances that “the defendant can be found guilty of more than one lesser included crime”).

The concept of compound offenses is closely related to the “afterthought” instruction which, under appropriate circumstances, can be given in a charge such as robbery. In fact, the standard jury instruction for robbery contains such a provision:

Afterthought. Give if applicable. DeJe-sus v. State, 98 So.Sd 105 (Fla. 2d DCA 2012)..

If you find that the taking of property occurred as an afterthought to the use of force or violence against the victim, the taking does not constitute robbery but may still constitute theft.

Fla. Std. J. Inst. (Crim.) 15.1 (2014).

Implicit in the concept of “afterthought” is .that, a defendant might use force or violence against a victim, but without the taking of any property (and without.motivation to take any property) of the victim. If, separate from this use of force or violence, a defendant subsequently takes the property of the victim as an “afterthought” (unaccompanied by, and accomplished without the use or threat of force, violence, assault or putting in feár), a defendant theoretically could be guilty of the two separate (and lesser-included) offenses of theft and assault, or theft and battery, instead of the charged offense of robbery. See, e.g., Calafell v. State, No. 3D15-852, 220 So.3d 490, 2017 WL 1713308 (Fla. 3d DCA May 3, 2017); Burns v. State, 170 So.3d 90 (Fla. 1st DCA 2015); DeJesus v. State, 98 So.3d 105 (Fla. 2d DCA 2012); Davis v. State, 922 So.2d 438 (Fla. 5th DCA 2006); Perkins v. State, 814 So.2d 1177 (Fla. 4th DCA 2002).

However, as can be seen from these cases and from the notes accompanying the standard afterthought instruction, such an instruction should be given only “if applicable” rather than as a matter of course in every robbery trial. Fla. Std. J. Inst. (Crim.) 15.1. See also DeJesus, 98 So.3d at 108 (holding trial court erred in refusing to give afterthought instruction where evidence presented at trial supported afterthought theory); Davis, 922 So.2d at 444 (observing that “Perkins demonstrates that afterthought is an established legal theory and that where there is some evidence to support it, a requested instruction should be given”) (emphasis added).

The same analysis applies to the giving of an instruction (and providing a verdict form) for á compound offénse. We hold that a defendant charged with strong-arm robbery is not automatically entitled to a compound offense instruction and a verdict form which permits the jury to find a defendant guilty of the two component offenses of theft and assault (or theft and battery). To warrant such an instruction and corresponding verdict form, there must first be some evidence to support the defendant’s theory that “the act of force, violence, assault or putting in fear” was not used “in the course of the taking.” See §-812.13(3)(b); Rodriguez v. State, 147 So.3d 1066 (Fla. 3d DCA 2014) (holding that when the requested instruction relates to a defendant’s valid theory of defense, the trial court must give the-instruction if there is any evidence supporting the defendant’s defense). See also Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006) (holding that a defendant “is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.”)

In other words, if the evidence conclusively establishes that the use of force was contemporaneous with the theft, and that use of force and the act of' taking “constitute a continuous series of acts or events,” id., and there is no evidence to support any theory to the contrary, a defendant is not entitled to the compound offense instruction, and the jury is not permitted to consider returning verdicts of guilty for the two component offenses of theft and assault (or theft and battery).

Gordon contends that the trial court had no discretion and was required to instruct the jury on the compound offense and provide a verdict form that permitted the jury to find Gordon guilty of theft and assault (or theft and battery). Gordon bases his argument in part on Stuckey v. State, 972 So.2d 918 (Fla. 5th DCA 2007). In Stuckey, the Fifth District noted that a compound offense exists when “two lesser offenses are merged factually and in legal contemplation into the one greater offense.” Id. at 921 (quoting Foster v. State, 596 So.2d 1099, 1104 n. 6 (Fla. 5th DCA 1992) (Cowart, J., dissenting)). The Stuck-ey court also observed that, when a defendant is tried for a compound offense, “he is entitled to have the jury consider convicting him of both of the ‘separate component offenses’ that make up the compound offense.” Id. at 922.

The question is whether a defendant charged by information with strongarm robbery is automatically entitled to a compound offense instruction and a verdict form that permits the jury to return verdicts of guilty for two or more component offenses, even if the unrebutted evidence at trial establishes conclusively that the use of force and the act of taking occurred contemporaneously. Gordon urges us to adopt such a per se rule. We decline to do so and, to the extent1 that our sister court in Stuckey adopted such a per se rule for all robbery offenses; we certify express and direct conflict.

We also note that Stuckey involved an entirely different set of circumstances that warranted, under the evidence presented, an instruction on compound offenses and a verdict form permitting guilty verdicts for two or more component offenses. In Stuck-ey, the defendant was observed by a loss prevention officer táking DVDs from a store and hiding them in his pants pocket. The loss prevention officer waited’ outside the store and watched as the defendant walked past the registers and exited the store without paying for the DVDs. The officer then confronted the defendant, at which time a struggle ensued between the defendant and the loss prevention officer; During the scuffle, the DVDs fell out of the defendant’s pocket. The defendant was arrested and charged with robbery. At trial, the theory of defense was that the defendant committed two separate, lesser-included crimes—petit theft and resisting a merchant—as he lacked the requisite “intent to take by use of force” at the time he resisted. In closing argument, defense counsel argued to the jury that “the theft was complete and his intent in resisting the merchant was to escape, not to maintain possession of the stolen merchandise.” Id. at 920. The defendant suggested that the jury return a verdict for petit theft and resisting a merchant, but not robbery. Over defense objection, the trial court instructed the jury that it could convict the defendant of robbery or of any one of the lesser-included offenses of resisting a merchant, battery,' or petit theft. During deliberations, the jurors sent out a note, asking whether they could pick more than one of the lesser offenses. Over defense objection, the trial court answered “no”. The jury subsequently returned a verdict finding the defendant guilty of robbery.

On appeal, the defendant, Stuckey, argued that he was entitled to a jury instruction, consistent with his defense theory, which would permit the jury to return a verdict for two lesser-included crimes (pet-it theft and resisting a merchant), because the information alleged the elements of these lesser offenses and the evidence at trial supported this theory.

The Fifth District reversed and remanded for a new trial, reasoning that

force employed after a theft may either give rise to a “robbery” or a “resisting a merchant” conviction, depending on whether the two acts were part of a continuous series of acts or events. ... [I]n eases such as this, the defendant should be able to present his theory of defense to the jury and receive an instruction if the evidence supports it.

Id. at 923.

Stuckey is factually distinguishable, because there was evidence presented at the trial to support the defense theory. By contrast, in the instant case we have the testimony of the victim, the defendant’s own post-arrest statement, and a video depicting the entirety of the crime, which conclusively establish that the act of taking and the use of force, violence, assault or putting in fear all occurred contemporaneously, in a single, continuous series of acts. There is simply no evidence to support a theory that the crimes committed by Gordon were theft and assault (or theft and battery) as opposed to robbery, because the only difference between those outcomes is the contemporaneity requirement. The existence of a temporal or spatial break—such that the act of taking and the use of force could be considered separate events accompanied by separate intents—may often be a question of fact for the factfinder (as it was in Stuckey). The instant case, however, presents no such circumstance. The video which shows the entire crime from start to finish, occurs in a single place and lasts a total of forty-four seconds. In that video, the defendant’s use of force (assault or battery) occurred simultaneously with the taking, in one short, continuous act or series of acts by Gordon. There is no break, temporal, spatial, or otherwise, that could possibly justify a compound offense instruction or a verdict form that permits the jury to consider whether Gordon committed the two lesser offenses of theft and assault (or theft and battery) rather than robbery. Stated another way, if the jury were to have determined that Gordon committed a theft and an assault (or a theft and a battery), such a determination would necessarily mean that Gordon committed a robbery, because the evidence presented at trial established conclusively that the use of force and the act of taking were contemporaneous, and there was no evidence to support any contrary theory.

We do agree with defendant that the trial court erred in failing to enter a written order regarding defendant’s competency. Florida Rule of Criminal Procedure 3.212(b) provides that “[if the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.” Both parties agree the rule requires a written order and that the trial court failed to provide such here. Although the State contends this issue was waived and, thus, not renewable on appeal, a review of the case law suggests that this argument is without merit. See Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016). Here, the trial court made an oral finding that defendant was competent to proceed, but failed to render a written order to that effect. This cause must be remanded to the trial court to enter a written order consistent with its oral pronouncement.

We affirm the conviction and sentence, but remand this cause to the trial court to enter a written order reflecting its oral pronouncement regarding appellant’s competency.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This concept of compound offenses and the concept of "afterthought” resulted from the Florida Legislature’s amendment to the robbery statute in 1987. Prior to 1987, the robbery statute was consistent with common law, providing that robbery required that the act of force, violence, assault or putting in fear must be prior to or contemporaneous with the act of taking. The 1987 amendment defined “in the course of taking” more broadly and, since 1987 the statute has provided that an act , “shall be deemed 'in the course of the taking’ if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events. § 812.13(3)(b) (2014) (emphasis added). See Rockmore v. State, 140 So.3d 979, 982-83 (Fla. 2014) (explaining history of amendment); Fonseca v. State, 547 So.2d 1032 (Fla. 3d DCA 1989) (same); Stuckey v. State, 972 So.2d 918 (Fla. 5th DCA 2007) (same). See also Fla. Std. J. Inst. (Crim.) 15.1; Fla. Std. J. Inst. (Crim.) 3.12 (Verdict) (providing in "Comments” to Instruction: "For compounded offenses, such as Burglary with an Assault, the jury can convict on two lesser-included offenses. See Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005)).”

      . In fact, the proposed jury instruction Gordon asked the trial court to give the jury an “afterthought” instruction: "If you find that Steve Gordon committed theft, and after-wards committed a battery and/or assault, you may convict the defendant of both theft and battery or theft and assault.’J

      . To be clear, a defendant charged with robbery is entitled to have the jury instructed on petit theft and assault, as these are Category One, necessarily lesser-included offenses. Further, if the information alleges it and the evidence supports it, the jury must also be instructed on the Category Two lesser-included offenses, including battery. The question presented is not whether the jury must be instructed on these lesser-included offenses, but more discretely, whether the jury must also be instructed that they may find the defendant guilty of two or more of these lesser-included offenses and be provided with a verdict form that permits them to do so.

      . The jury may of course still consider these individual lesser-included offenses and may ■return a verdict on any one of them.

      . On motion for rehearing, the Fifth District certified the following question as a matter of great public importance:
      Is a defendant charged with robbery entitled to have the jury instructed on more than one of thé lesser included offenses where his theory of defense is that he committed both lesser offenses but not the greater charged offense?
      The Florida Supreme Court denied review. State v. Stuckey, 980 So.2d 491 (Fla. 2008).

      .The Fifth District in Stuckey appears to have established a per se rule for all robbery offenses,- "if the evidence presented at trial would support Defendant's conviction for each of those offenses.” Id. at 923. Stuckey also relied upon Gian-Grasso, 899 So.2d at 392, which applied the same analysis to the compound offense of burglary with a battery. To the extent that Gian-Grasso established such a per se rule, we certify express and direct conflict with that decision as well.

      . Thus, the only possible legal premise to justify giving the requested compound offense instruction and verdict form in this case would be that of a jury pardon. In support of this proposition, Gordon cites to Spencer v. State, 71 So.3d 901 (Fla. 1st DCA 2011). We respectfully disagree with our sister court’s conclusion in Spencer, and conclude that the concept of jury pardon is not the underpinning for a jury’s ability to consider verdicts of guilty on two lesser-included component offenses. Rather, it is grounded simply in the right of the jury to consider lesser-included offenses supported by the evidence. See, e.g., Haygood v. State, 109 So.3d 735, 742 (Fla. 2013) (expressly repudiating the contention that its decision was premised on the concept of jury pardon: “This decision is not based on the jury pardon doctrine and is not hinged on the right of the jury to issue a jury pardon despite the evidence. This decision is firmly founded on the longstanding principle that a defendant is entitled to have the jury correctly instructed on the crime charged and the lesser included offenses.”)
      For example, in a homicide prosecution, the jury is not permitted to consider any non-homicide lesser-included offenses (e.g., aggravated battery) even if such lesser-included offenses are subsumed within and necessarily established by proof of the murder charge, unless there is some disputed issue of fact (and some evidence to support a theory) regarding an intervening cause of death. Martin v. State, 342 So.2d 501, 503 (Fla. 1977) (superseded on other grounds by Fla. R. Crim. P. 3.490); Humphrey v. State, 690 So.2d 1351 (Fla. 3d DCA 1997); Walker v. State, 671 So.2d 817 (Fla. 4th DCA 1996). See also Daugherty v. State, 211 So.3d 29 (Fla. 2017). In the same way, whether a jury may lawfully find a defendant guilty of two or more lesser-included offenses, instead of the compound offense charged, is not premised on any notion of jury pardon, but rather upon the presence of some evidence to support the theory that defendant committed the two discrete component offenses rather than the single compound offense.


text:
    Colesha CORMIER, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D16-1176
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      University of Miami School of Law Children & Youth Law Clinic, and Kele Stewart, and Frank Florio, Certified Legal Intern, for appellant.
    Pamela Jo Bondi, Attorney General, and Jacqueline I. Kurland (Fort Lauderdale), Assistant Attprney General, for appellee Florida Department of Children and Families; Paula Herron, for appellee Our Kids of Miami-Dade/Monroe, Inc.
    Before ROTHENBERG, EMAS,-and FERNANDEZ, JJ.
   ROTHENBERG, J.

Colesha Cormier (“Cormier”) appeals from the Department of Children and Families’ (“DCF”) final agency decision sustaining the denial of her application for Education and Training Voucher (“ETV”) benefits and argues that Florida’s eligibility criteria for receiving ETV benefits conflicts with the John H. Chafee Foster Care Independence Program (“the Chafee Act”), 42 U.S.C § 677, which provides funding for state ETV programs. Because we find that Cormier’s ETV application was properly denied under Florida law and that Florida’s ETV eligibility requirements do not conflict with the Chafee Act, we affirm.

BACKGROUND

Cormier was born on November 11, 1995. She lived in the Bahamas with her mother until she was fourteen years old and then moved to Florida to live with her father. On October 2, 2013, DCF removed Cormier from her father’s care due to alleged physical abuse and domestic violence, and thereafter, she entered the dependency court system. Cormier was sheltered briefly and then placed into the temporary custody of a nón-relative caregiver, where she remained for approximately six weeks before turning eighteen. As the hearing on the petition for dependency was scheduled for a date after Cor-mier turned eighteen,, the hearing was never conducted and the dependency case was closed. After turning eighteen, Cormier moved back to the Bahamas and lived with extended family for approximately one year, she then returned to the United States to continue her higher education.

In June 2015, at age nineteen and a half, Cormier applied for ETV benefits through DCF’s contracted community based care agency, Our Kids of Miami-Dade/Monroe, Inc. (“Our Kids”). Our Kids denied Cormier’s application because she did not meet Florida’s ETV eligibility requirements, and thereafter, she petitioned for a Fair Hearing before DCF to appeal the denial of her application for ETV benefits. On April 20, 2016, DCF’s hearing officer entered a final order denying Cormier’s petition for relief, concluding that Cormier did not meet Florida’s eligibility requirements for ETV benefits because she was never adjudicated dependent and did not live in foster care for six months prior to reaching her eighteenth birthday. See Fla. Ad,min. Code R. 65C-31.002(9)(a). Cormier timely appealed.

ANALYSIS

Cormier does not contest that she does not meet the eligibility requirements for Florida’s ETV program. Rather, Cormier contends that Florida’s eligibility requirements conflict with the federal ETV eligibility requirements allegedly found in the Chafee Act. The textual basis for her argument is located in the following general policy statement in the Chafee Act: “The purpose of this section is to provide States with flexible funding that will enable programs to be designed and conducted ... to make available vouchers for education and training, including postsecondary training and education, to youths who have aged out of foster care. ....” 42 U.S.C § 677(a)(1). Because Cormier has aged out of foster care, according to the federal definition of “foster care” she claims that she is eligible for ETV benefits under federal law and that the more narrowly drawn Florida eligibility requirements are invalid under the Supremacy Clause of the United States Constitution. Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) (holding that “a state eligibility standard that excludes persons eligible for assistance; under federal AFDC standards violates the' Social Security Act and is therefore invalid under the Supremacy Clause”).

The flaw in Cormier’s argument is that she treats purposive language in the Chaf-ee Act as imposing mandatory eligibility requirements on the states. In Quern v. Mandley, 436 U.S. 725, 733, 98 S.Ct. 2068, 56 L.Ed.2d 658 (1978), the United States Supreme Court considered, inter alia, whether a State that adopts a program for Emergency Assistance to Needy Families with Children (“EA”) may limit eligibility to receive funds under the program more narrowly than the federal EA statute. The Court noted the general principles that each state is free to set its own monetary standard of need and level of benefits, but that the states are not free to narrow the federal standards that define the categories of people eligible for aid] Id., at 740, 98 S.Ct. 2068. However, the Court then analyzed the text of the federal statute authorizing EA funding to states, and specifically looked for language that made eligibility criteria in the federal act mandatory on participating states. Id. at 743, 98 S.Ct. 2068. The Court concluded, with regard to the federal EA statute, that “[t]here is no statutory language ... that can reasonably be understood as imposing uniform standards of eligibility on every state EA program.” Id. In the absence of such mandatory language, the Court held that states are permitted to implement the federal EA funds through their own programs with eligibility requirements that are narrower than the general federal definitions setting forth the permissible scope of the federal EA program.

Here, the Chafee Act does not impose mandatory ETV eligibility requirements on states, but instead permits states to develop their own eligibility criteria. The purpose of the Chafee Act “is to provide States with flexible funding that will enable programs to be designed and conducted” so as to help foster children who have aged out of the foster care system to make the transition to self-sufficiency. 42 U.S.C § 677(a). However, the Chafee Act explicitly provides that a state’s plan will only be approved if it uses “objective criteria for determining eligibility for benefits and services under the programs, and for ensuring fair and equitable treatment of benefit recipients.” 42 U.S.C. § 677(b)(2)(E). Thus, Congress expressly intended for states, not the federal government, to design and develop eligibility criteria. As an added safeguard, Congress requires that in order to receive funding under the Chafee Act, a state must submit a plan to and receive approval from the Department of Health and Human Services, the federal agency tasked with ensuring that a state’s plan meets the requirements and furthers the objectives of the Chafee Act. See 42 U.S.C § 677(b)(1). Therefore, Florida is free to craft its own eligibility criteria, with the approval of the Department of Health and Human Services, that are reasonably calculated to help foster children transition to self-sufficiency after aging out of foster care. 42 U.S.C § 677(d) (declaring that after a state receives federal funding under the Chafee Act, the state “may use the amount in any manner that is reasonably calculated to accomplish the purposes of [the Chafee Act]”) (emphasis added).

Florida’s ETV eligibility criteria stem from the plan it submitted to the Department of Health and Human Services for funding under the Chafee Act. Florida’s plan, called the Child and Family Services Plan 2016-2019 (“CFSP”), was approved by the Department of Health and Human Services. Among other things, Florida’ CFSP requires an applicant for ETV benefits to have “aged out of licensed care after having accrued a minimum of six month(s) within an out-of-home care setting between the ages of 0 and 17.” Florida’s Child and Family Services Plan 2016-2019, Ch. XV, p. 19; see also Rule 65C-31.002(9)(a). We, like the federal government, find no conflict between this ETV eligibility requirement and the Chafee Act.

CONCLUSION

In summary, Cormier has not demonstrated that the text of the Chafee Act includes mandatory ETV eligibility requirements that Florida must implement in its ETV program. Therefore, we find that the Chafee Act and Florida’s ETV program do not conflict. We also find that the hearing officer correctly applied Florida’ ETV eligibility requirements, and thus, we affirm. We find that Cormier’s remaining arguments on appeal are without merit, and thus, we decline to discuss them further.

Affirmed.

      . The subsequent repeal of rule 65C-31.002(9)(a) in January 2017 is of no consequence in this case, as both parties rightly acknowledge that its repeal does not have retroactive effect. See, e.g., Weingrad v. Miles, 29 So.3d 406, 409 (Fla. 3d DCA 2010) (noting that without clear legislative intent to the contrary, substantive statutory changes will not apply retroactively).

        . "Foster cáre means 24-hour substitute care for children placed away from their parents or guardians and for whom the title IV-E agency has placement and care responsibility.” 45 CFR.§ 1355.20.


author: SUAREZ, C.J.

text:
    Anthony DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2014
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Anthony Davis, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   ON MOTION FOR REHEARING

SUAREZ, C.J.

Anthony Davis seeks rehearing of this Court’s December 14, 2016 per curiam af-firmance of the trial court’s July 29, 2016 order denying his motion for jail credit. We grant rehearing, withdraw our prior opinion, and reverse.

Davis filed a motion for credit for time served on prior sentences to be credited toward sentencing on a new offense. The trial court denied the motion, finding that a defendant “is only entitled to credit against each sentence for time spent in jail for the charge which led to that sentence.” The trial court’s order did not attach any documentation in support. This case involves five separate trial court case numbers, filed in four different years, presumably with offenses having distinctive arrest dates, with different dates for original periods of incarceration in jail leading up to the ultimate sentence. Merely stating in the written order that a defendant is only entitled to credit for time spent in jail for each charge does not establish how the calculations were made and what the relevant dates are for each of the different cases. The. State, in its Response to our order to show cause, indicates that some of the earlier cases had involved probation and probation revocations, such that all five cases were sentenced together in 2015 as a result of a plea agreement. The State notes that this, in turn, raises the question of whether time spent in jail on any of the individual cases prior to February 6, 2014, was waived as part of a plea agreement. Absent the following documentation, the above-noted questions cannot be evaluated: 1) the original sentencing documents on each of the five cases; 2) the current sentencing documents on each of the five cases; 3) a transcript of the most recent sentencing.proceeding to ascertain whether there was a waiver of prior credits for time served; 4) any written waiver of prior credits for time served; 5) forms prepared by the county jail reflecting dates of incarceration on each of the five cases prior to the most recent sentencing; 6) documentation reflecting accurate arrest dates on each of the five cases.

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A) and' (D)'. Because the trial court failed to attach any documents refuting Davis’s claims, and the record does not conclusively show whether Davis waived any credit for time served, we reverse the order on appeal and remand for further proceedings or to attach those portions of the record that conclusively refute Davis’s claims. See Roche v. State, 967 So.2d 340 (Fla. 3d DCA 2007) (“Because we cannot determine from the lower court’s order or record attachments whether the defendant waived his credit for time served, we reverse and remand for an evidentiary hearing or other appropriate relief.”); Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005); Barfield v. State, 900 So.2d 723 (Fla. 3d DCA 2005); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000); see also Louis v. State, 143 So.3d 452, 453 (Fla. 5th DCA 2014) (“When a factual dispute exists, and the files and records do not conclusively show appellant is entitled to no relief, an evidentiary hearing is generally required.”).

Rehearing granted; reversed and remanded for further proceedings.

      . Davis’ motion for rule 3.801 relief was filed under five separate trial court case numbers: F09-28591, F09-30776, F10-19256; Fll-19141, and F14-2869A. •


author: PER CURIAM.

text:
    Andre I. DUNBAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4018
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017

      Andre I. Dunbar, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Andre Dunbar appeals the summary denial of his timely filed motion for postcon-viction relief. See Fla. R. Crim. P. 3.850. Because the trial court denied Dunbar’s motion after erroneously concluding that it had been stricken and that Dunbar had failed to amend it, we reverse and remand for the trial court to properly consider the motion on its merits.

Dunbar was convicted of robbery with a firearm, .two counts of aggravated assault with a firearm, and grand theft. On June 22, 2014, he filed a timely postconviction motion alleging eight grounds for relief. Dunbar filed a motion for leave to amend on February 19, 2015. On March 12, 2015, the trial court struck the motion because it could not ascertain what Dunbar was stating or the relief he was seeking. The trial court'then directed Dunbar to file a “handwritten in legible printed lettering” amended motion for leave to amend. Dunbar failed to file an amended motion. On October'4, 2016, the trial court denied the original rule 3.850 motion with prejudice, concluding:

On June 25,. 2014, Defendant filed a Motion for Postconviction . Relief pursuant to Florida Rule of Criminal Procedure 3.850. On February 24, 2015, Defendant filed a Motion for leave to Amend. The Court granted Defendant’s Motion on March 12, 2015, striking his postconviction motion and allowing him time to amend. The Court directed him to file a legible, hand-written motion as required by the rules.
To date, . Defendant has failed to amend his Motion for Postconviction Relief. Accordingly, denial of the Motion for Postconviction relief with prejudice is appropriate. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Further, any attempt to file a new postconviction motion will be untimely and thereby barred. Fla. R. Crim. P. 3.850(b).!

(Emphasis omitted).

Thereafter, Dunbar sought rehearing. He claimed he did not realize that his motion to amend would result in the striking of his postconviction motion, and he believed that the court would rule on the original motion even in the absence of an amendment. The motion for rehearing was denied.

Despite the trial court’s contrary conclusion, no order is contained within the record striking Dunbar’s original rule 3.850 motion. Likewise, nothing in the record supports the conclusion that Dunbar’s motion to amend was granted. By its own terms, the March 12, 2015 order actually strikes Dunbar’s barely legible motion for leave to. amend and directs him to file an amended motion to amend.

We therefore conclude the trial court erred when it failed to consider Dunbar’s postconviction motion on the merits. See Lozano v. State, 202 So.3d 148, 148 (Fla. 2d DCA 2016); Koszegi v. State, 993 So.2d 133, 134 (Fla. 2d DCA 2008) (“The post-conviction court must give the defendant at least one opportunity to correct facially deficient postconviction claims.” (citing Spera, 971 So.2d at 761. Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED

. SAWAYA, PALMER and BERGER, JJ., concur.

      1. Pursuant to the rules, an amendment may be filed at any time prior to the entry of an order disposing of the motion or an order directing the State to -file an answer. Fla. R. Crim. P. 3.850(e). Had the trial court considered the grounds raised in Dunbar’s postcon-viction motion and found amendment necessary, Dunbar would still have had sixty days to file an amendment. Fla. R. Crim. P. 3.850(e), (f)(2); Lozano v. State, 202 So.3d 148, 148 (Fla. 2d DCA 2016). The court’s reliance on the original filing deadline only applies to new grounds for relief raised in an amended motion. Fla. R. Crim, P. 3.850(e).


author: ORFINGER, J.

text:
    Roberto J. RAMON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3781
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017

      Roberto J. Ramon, Punta Gorda, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Roberto Ramon appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. "We affirm the trial court’s denial of grounds 2 and 3 without comment. However, we reverse .the order as to ground 1 and remand for either an evidentiary hearing or sufficient record attachments to conclusively refute the claim.

Ramon was charged with a number of felony'offenses, including first-degree murder. He was found to be incompetent to proceed and committed for treatment to restore his competency. Eventually, he was returned to court based on the assessment of the. mental health provider that his' competency had been restored. Apparently, a competency hearing was held as required by Florida Rule of Criminal Procedure 3.212. However, while it appears that the trial 'court made an oral finding that Ramon was competent to proceed, it did not enter a corresponding -written order that reflected this determination. This was error. When “a trial court finds that a defendant is competent to proceed, it must enter a written order so finding.” Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014). However, this will not provide Ramon any relief as trial court error cannot be raised in a motion for postconviction relief. See Swanson v. State, 984 So.2d 629, 629 (Fla. 1st DCA 2008).

Notwithstanding, Ramon’s primary contention' in ground 1 is that his trial counsel was ineffective for failing to advise the trial court that he had relapsed into incompetency after the competency hearing, but prior to entering his plea, and failing to request a second competency hearing. Ramon explained that before he was found incompetent, he experienced auditory hallucinations and was prescribed a battery of drugs, including anti-depressants and anti-psychotics. After his competency was restored, he claims to have informed his counsel two months before the plea hearing that he had stopped taking his medications and the “voices were back and' were again cursing him and compelling him to commit suicide.” Thus, he asserts he did not want to plea to all of the charges. According to Ramon,

[h]owever, counsel told [him] that if he explained to the court that he was not taking his medications as ordered and was again hearing the voices, he would again be placed back in the psychiatric facility and the process would continue to drag on. Counsel stated that he might as well plea and get oh to where he would receive help in prison.

The trial court found that the plea colloquy conclusively refuted this ground because under oath, Ramon represented that he thoroughly read the written plea forms and stated that he was taking his medications while in jail and that those medications helped him understand what was happening at the plea hearing. In support, the trial court attached the plea and sentencing transcripts, but did not attach the written plea forms.

We conclude that the records attached to the order do not refute Ramon’s claim that he was again incompetent and experiencing auditory hallucinations before he entered his plea. Accordingly, we reverse and remand for either an evidentiary hearing or sufficient record attachments to conclusively refute ground 1.

AFFIRMED in part; REVERSED in part; and REMANDED. -

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