author: KELLY, Judge.

text:
    Bob GUALTIERI, in his official capacity as Sheriff of Pinellas County, Appellant, v. Timmie Leigh KEYSER, Individually, and as Personal Representative of the Estate of Richard N. Keyser, deceased, Appellee.
    Case No. 2D15-2112
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2017
    Della M. Connolly, Largo, for Appellant.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Brennan, Holden & Kavouklis, P.A., Tampa, for Appellee.
   KELLY, Judge.

Pinellas County Sheriff, Bob Gualtieri, appeals from the final judgment awarding costs to Timmie Leigh Keyser. The Sheriff challenges two aspects of the award—the cost of digital video editing and the fees awarded to six experts. We agree the trial court should not have awarded these costs and therefore reverse and remand with directions to strike those portions of the cost judgment.

After prevailing at trial, Keyser filed a motion to tax costs. The Sheriff filed a detailed response to the cost motion listing each individual cost item Keyser sought to recover, the amount of the item, and the Sheriffs specific objection, if any, to each item. At the first hearing on the cost motion, the trial court determined Keyser was entitled to recover her costs, but it set another hearing to determine which costs she could recover. Both in his objections and at the initial hearing the Sheriff advised the trial court and opposing counsel of the need for an evidentiary hearing regarding reasonableness of the expert witness fees. The Sheriff also explained in detail why Keyser had not met her burden to show the video editing costs were reasonably necessary. However, when the parties appeared for the second cost hearing, Keyser offered no evidence in support of any of these requests.

The Statewide Uniform Guidelines for Taxation of Costs requires the party requesting costs to demonstrate the cost was “reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.” In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612, 614 (Fla. 2005). The Sheriff argues Keyser did not meet her burden to show the video editing was reasonably necessary to prosecute the action. We agree. See Nasser v. Nasser, 975 So.2d 531, 532 (Fla. 4th DCA 2008) (affirming the denial of costs of depositions where the moving party failed to meet her burden in the trial court to show that the requested costs were reasonably necessary); cf. Winter Park Imps., Inc. v. JM Family Enters., Inc., 77 So.3d 227, 231-32 (Fla. 5th DCA 2011) (affirming costs for certain transcripts and depositions where lead counsel testified via affidavit and without objection as to the reasonableness and necessity of the costs). Accordingly, this portion of the cost award must be stricken.

The Guidelines allow a party to recover a reasonable fee for expert testimony. “[U]pon the specific objection to the setting of an expert witness fee without an evidentiary hearing, the prevailing party will have to present testimony concerning the necessity and reasonableness of the fee.” Lafferty v. Lafferty, 413 So.2d 170, 171 (Fla. 2d DCA 1982). In his written response to Keyser’s cost motion and at the first cost hearing the Sheriff made his objection to Keyser’s expert witness fees known. He argued repeatedly that Keyser had the burden to prove the reasonableness and necessity of the six experts’ fees and, citing Lafferty, he argued she had to do so by offering testimony at an eviden-tiary hearing. At every turn the Sheriff made it known that he objected to setting the experts’ fees without an evidentiary hearing. Because Keyser, even in the face of the Sheriffs objections, failed to offer any testimony whatsoever in support of her request for expert witness fees, the fees for those experts must also be stricken from the cost judgment.

Reversed and remanded for entry of a cost judgment consistent with this opinion.

CASANUEVA and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shane MCMINN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5330
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2017.
   PER CURIAM.

Affirmed. See Lindquist v. State, 155 So.3d 1193 (Fla. 2d DCA 2014); Durant v. State, 177 So.3d 995 (Fla. 5th DCA 2015) (en banc); Walden v. State, 112 So.3d 578 (Fla. 4th DCA 2013); Thomas v. State, 828 So.2d 1045 (Fla. 4th DCA 2002).

LaROSE, CRENSHAW, and SLEET, JJ., Concur.


author: Forst, J.

text:
    STATE of Florida, Appellant, v. C.J., a Child, Appellee.
    No. 4D16-2574
    District Court of Appeal of Florida, Fourth District.
    May 31, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General; West Palm Beach, for appellant.'
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellee.
   Forst, J.

This Court has jurisdiction over this appeal of the trial court’s order granting CJ.’s motion to suppress cannabis found after what he contends was an illegal search. Fla. R. App. P. 9.145(c)(1)(B). We agree with the State that the search in this case was within the limits of the Fourth Amendment and therefore reverse and remand for continued proceedings in which the cannabis is not suppressed on this ground.

Background

A law enforcement officer observed the allegedly delinquent child, C.J., riding his bicycle shortly after 9:00 p.m. Because the bicycle lacked the required light, the'Officer stopped C.J, to cite him for this infraction. While performing a routine ID check on- C.J., the officer was alerted to the fact that C.J. was on probation and had a curfew of 6:00 p.m. The officer did not ask C.J. if he had any court-authorized excuse for being out past his curfew, nor did C.J. volunteer such • information. There was also nothing immediately obvious about C.J. that might have suggested a .legitimate excuse (such as, for example, a work uniform which might have indicated that C.J.’s shift had-just ended). After confirming C.J.’s probationary status over the phone, the officer placed C.J. under arrest for the curfew violation. During a customary ‘pat-down as part of the arrest, the officer located the cannabis at issue in this case. ; . . .

C.J. moved to suppress thé cannabis, arguing that his arrest for violation of probation was illegal. His argument was essentially that the officer was required to engage in a reasonable investigation of possible excuses for C.J.’s breaking of his curfew, and that the officer did not do so. Without doing so, according to C.J., the officer lacked probable cause for the arrest. The trial court agreed with this argument, stating that it “believe[d] [the officer] was under a responsibility to question [C.J.] further.” Holding that the failure to further question C.J. made the arrest invalid, the trial court granted C.J.’s motion to suppress.’ The State appealed.

Analysis

On a motion to suppress, we review the trial court’s legal conclusions de novo but defer to the trial court on issues of fact. M.J. v. State, 121 So.3d 1151, 1154 (Fla. 4th DCA 2013).

An officer may arrest a child if that officer “has probable cause to believe that a child is in violation of the conditions of the child’s probation.” § 985.101(l)(d), Fla. Stat. (2016). “The test for probable cause is whether the [totality of the] facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that [it is more likely than not that] an offense has been committed.” Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000) (en banc); accord State v. Blaylock, 76 So.3d 13, 14 (Fla. 4th DCA 2011) (using the language inserted into the quotation). Probable cause does not require absolute certitude, but is more than bare suspicion. Id.

It is true that “[a] police officer may not close his or her eyes to facts that would help clarify the circumstances of an arrest.” City of St. Petersburg v. Austrino, 898 So.2d 955, 959 (Fla. 2d DCA 2005) (quoting BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)). However, the theoretical possibility that something observed and believed to be criminal might be innocent does not destroy probable cause. Blaylock, 76 So.3d at 14-15; see also State v. Maya, 529 So.2d 1282, 1287 n.7 (Fla. 3d DCA 1988) (“[T]he determination of probable cause does not turn on whether an innocent explanation can possibly be conjured up from what are obviously incriminating circumstances. Rather, it is dependent on what a realistic view of the facts justifies or requires.”). Furthermore, although an officer, in establishing probable cause, “is required to conduct a reasonable investigation, ... the officer does not have to take every conceivable step to eliminate the possibility of convicting an innocent person.” City of Clearwater v. Williamson, 938 So.2d 985, 990 (Fla. 2d DCA 2006).

At the time he placed C.J. under arrest, the officer was aware that C.J. was on probation, out three hours past his curfew, and did not appear to be within any possible exception to the curfew requirement (again, for example, by being in a work uniform). Taking the totality of these facts and circumstances into account, a “person of reasonable caution” could believe that it was more likely than not that C.J. was in violation of his probation. Curtis, 748 So.2d at 374. This case does not involve a claim of innocence by C.J. which the officer may have had to investigate, like in Austrino, and instead is more like Maya and Williamson, where there may have been an innocent explanation, but the criminal likelihood was still apparent in light of the reasonable investigation performed. The officer in this case did not “close his eyes” to any potentially-exonerating facts; those facts were simply not placed before his open eyes so that they could be observed and investigated.

Because the trial court erred by concluding that the officer was required to independently consider all possible exceptions to the curfew requirement and eliminate each before arresting C.J., we reverse the suppression of the cannabis and remand for further proceedings.

Conclusion

An officer is required to conduct a reasonable investigation to establish probable cause. This reasonable investigation, however, does not include eliminating all possibilities of innocence when, as here, those possibilities are neither obvious nor brought to the officer’s attention. Because the officer in this case was not required to investigate and eliminate every possibility that C.J.’s breaking of his curfew was authorized, we hold that the officer had probable cause to arrest C.J. for violation of probation. The search incident to arrest was therefore lawful and the cannabis should not have been suppressed.

Reversed and remanded.

Levine and Kuntz, JJ., concur.

      . The closest C.J. came to an explanation was simply stating that he was riding his bicycle home, although he did not say where he was riding from.

      . On appeal, C.J. does not support the motion to dismiss by arguing either that the original stop for haying no light was illegal or that the pat-down was illegal.


text:
    HANH NGUYEN and Nhon Nguyen, Petitioners, v. HUONG HUYNH, Respondent.
    CASE NO. 1D17-1504
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017.
    Preston H. Oughton, Jacksonville, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See generally Augustin v. Blount, 573 So.2d 104, 105 (Fla. 1st DCA 1991) (“If claimant is unwilling or unable to amend his claim to correct the defects raised in the motion to dismiss, his proper course is to so advise the [trial judge] and request entry of a final order of dismissal with prejudice which may be appealed.”).

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


text:
    Tyrone L. SMITH, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections and Warden Comerford (Santa Rosa C. I. Main Unit), Respondents.
    CASE NO. 1D17-1710
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017
    Tyrone L. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kenneth S. Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

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

This court has determined that this petition for writ of habeas corpus raises a frivolous claim. Accordingly, the clerk of the court is directed to provide a copy of this order to the Department of Corrections to consider the imposition of sanctions against petitioner as provided for in section 944.279, Florida Statutes (2015) (stating that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections). Fla. R. App. P. 9.410.

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


text:
    M. M., a Child, Petitioner, v. STATE of Florida and Forrest Hallam, Superintendent of the Alachua Regional Juvenile Detention Facility, Respondents.
    CASE NO. 1D17-1410
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017
    James S. Purdy, Public Defender, and Norma Kay Wendt, Assistant Public Defender, Palatka, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,. Assistant .Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DISMISSED as moot.

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


author: PER CURIAM. •

text:
    Kinard D. HUGGINS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4962
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017.
    Kinard D. Huggins, pro se, Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM. •

Petitioner is granted a belated appeal of the December 20, 2016, judgment arid sentence in Duval County Circuit Court case' number 16-2015-CF-009833-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    Renardo A. SMITH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1691
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017.
    Renardo A. Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant has filed a rule 3.850 postcon-viction motion in which he asserts that his trial counsel acted ineffectively by failing to advise him that he qualified'for a mandatory sentence, in addition to other penalties, pursuant to the prison releasee reof-fender (“PRR”) statute, section 775.082(9)(a)l., Florida Statutes (2012), prior to his rejection of two plea offers. He asserts counsel’s failure to advise him of his PRR eligibility caused him to reject the offers and proceed to a bench trial, where he was convicted. Thereafter, the state filed notice that he qualified to be sentenced as a PRR. The court sentenced him as a PRR to the mandatory 15 years for the second-degree felony, which also barred his eligibility to earn gain time as well as participation in work release and early release programs. We reversé.

The trial court denied the claim after finding that Appellant would have proceeded to trial even if he had knowledge he qualified for >PRR enhancement, because he knew his sentence exposure was up to 25 years’ imprisonment when he rejected the plea offers. Appellant argues the 25-year collective sentence was a possibility, but not mandated, as is the situation with the PRR statute, which requires imposition of a statutory maximum sentence. Further, under PRR enhancement’, a defendant must serve the entirety of the sentence, 'with no opportunity to earn gain time, work release, or early reléase.

Appellant’s claim is not conclusively refuted by the record. See Alcorn v. State, 121 So.Sd 419 (Fla. 2013) (discussing four prongs for consideration when evaluating a claim of ineffective assistance for failure to properly advise of actual sentence exposure); Armstrong v. State, 148 So.3d 124, 126 (Fla. 2d DCA 2014) (stating “ ‘[prejudice ... is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice’ ”) (quoting Alcorn, 121 So.3d at 432) (emphasis in original).' We therefore reverse and remand for the trial court to hold an evidentiary hearing, which will provide the court with “the opportunity to receive evidence and evaluate the credibility of any witnesses in deciding whether Appellant would have accepted the plea, or would have continued to state, T didn’t do it,’ and insist - on. trial.” Mathis. v. State, 848 So.2d 1207; 1209 (Fla. 1st DCA 2003).

REVERSED AND REMANDED.

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


text:
    Stephen Elliot DRAKUS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3398
    District Court of Appeal of Florida, First District.
    Opinion filed June 1, 2017

      Stephen Elliot Drakus, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the circuit court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedural 3.850. Appellant raised 7 grounds in his motion. We find that the court erred in summarily denying ground 1 because it was not conclusively refuted by the record; however, we also find that claim was legally insufficient. Thus, we reverse and remand for the circuit court to allow appellant the opportunity to amend ground 1. We affirm the denial of the remaining claims.

“We review the summary denial of claims for postconviction relief to determine whether the claims are legally sufficient and whether they are conclusively refuted by the record.” Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA 2008).

In ground 1 of his motion, appellant alleged that counsel was ineffective for advising him to reject a 15-year plea offer because counsel was certain that a newly assigned prosecutor would offer a better deal. However, the new prosecutor did not. Appellant asserted that but for counsel’s advice, he would have accepted the 15-year plea offer and the trial court would not have rejected the plea offer.

The postconviction court found this claim was conclusively refuted by 3 statements made by appellant and his counsel during a pre-trial hearing. In the first two statements, appellant said that he was fully prepared to proceed to trial, and there was nothing else he wanted his lawyer to do to ensure they were both ready for trial. In the third statement, defense counsel stated that she had communicated all plea offers to appellant, explaining that “[tjhere have not been any [offers] for some time. Back when the [prior prosecutor] had the case [ ] the State [ ] made a 15 year plea offer, which ... [appellant] did not wish to accept at that time.” The court found these statements demonstrated that the “decision to reject the offer was solely [appellant’s]” and that appellant “made no objection to the matter being set for trial.”

None of these statements conclusively refute, or even address, appellant’s claim that he rejected the 15-year plea offer due to counsel’s advice that a better offer would be forthcoming. The first two statements merely established that appellant and his counsel were prepared for trial. In the third statement, counsel confirmed that appellant rejected the 15-year plea offer, but did not state why.

It is also unclear why the postconviction court believed appellant’s claim of ineffective assistance was refuted by appellant’s failure to object to going to trial. It is not apparent on what grounds the court believed that appellant could have objected. Perhaps the postconviction court believed that if appellant still wanted to accept the 15-year plea deal, he should have stated so at that time. However, there is no indication in the record that the offer was still on the table. Defense counsel implied the opposite by stating that there “have not been any [offers] for some time.” Thus, the record does not conclusively refute appellant’s claim of ineffective assistance of counsel, and the postconviction court erred in summarily denying this claim.

However, although not addressed by the postconviction court, appellant’s claim was facially insufficient.

[C]oncerning ineffective- assistance of counsel claims in which the defendant rejected a plea offer based on misad-vice.. . in order to show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3)the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

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

“ ‘A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute. an actionable ineffective assistance of counsel claim.’ ” Hauter v. State, 206 So.3d 839, 840 (Fla. 5th DOA 2016) (quoting Lamb v. State, 202 So.3d 118, 120 (Fla. 5th DCA 2016)). However, the defendant must allege that counsel’s advice was deficient. Id.

In Morgan v. State, 991 So.2d 835, 841 (Fla. 2008), the supreme court held a claim that counsel was ineffective for advising the defendant to reject a plea offer because counsel was confident that she could win at trial was insufficient, reasoning “[t]he mere fact that [the defendant] did not prevail at, trial does .not translate into misadvice. Some specific deficiency on the part of counsel must be alleged.” .Id., receded from on other grounds by Alcorn, 121 So.3d at 419. In Morgan, there was “no allegation that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case.” Morgan, 991 So.2d at 841. Thus, the claim was insufficient. H.

- Similarly here, appellant has failed to allege' that counsel’s advice was deficient. He fails to allege that counsel’s confidence that appellant would receive a lower plea offer from the newly appointed" prosecutor was unreasonable, or that, counsel had not investigated or was not otherwise familiar with the case. Thus, appellant failed to sufficiently allege deficient performance.

Additionally, appellant also failed to allege the second Alcorn prejudice factor— that-the State would not have withdrawn the offer. As such, this claim is facially insufficient.

When a defendant’s initial rule 3.850 motion alleging ineffective assistance of ■counsel is found to be legally insufficient, the defendant should be given at least one opportunity to amend the motion. Spera v. State, 971 So.2d 754, 761 (Fla. 2007); Ferris v. State, 996 So.2d 228, 229 (Fla. 1st DCA 2008).

As such, we reverse that portion of the order that denied ground 1 as being refuted by the record with instructions that the postconviction court allow appellant to amend ground 1 to state a facially sufficient claim within a reasonable period of time. As to all other claims, we affirm.

AFFIRMED in part; REVERSED in part; REMANDED,

ROBERTS, C.J., WOLF and THOMAS, JJ., CONCUR.


author: BILBREY, J.

text:
    Alfred E. HAWKINS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1120
    District Court of Appeal of Florida, First District.
    Opinion filed June 1, 2017

      Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

BILBREY, J.

Upon the State’s motion for clarification of our original opinion,, we grant the motion, withdraw the original opinion, and substitute the following opinion.

■ After a jury trial, Appellant was convicted of first degree murder with a firearm, armed robbery with a firearm, and tampering with physical evidence following the death of Alex Bias. Appellant challenges the trial court’s denial of his motion for judgment of acquittal as to all three counts, but applying a de novo standard of review, we find the evidence was legally sufficient. See Durousseau v. State, 55 So.3d 543 (Fla. 2010).

Appellant, who was seventeen at the time the crimes were committed, also challenges his life sentences for the murder and robbery convictions as violations of the Florida and federal constitutions’ prohibition of cruel and unusual punishment; See Art. I, § 17, Fla. Const.; Amend. VIII, U.S. Const. The trial court conducted an individualized :sentencing and considered the factors under section 921.1401, Florida Statutes, which was added to address the prohibition set forth in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), of a mandatory life sentence for any crime committed by a juvenile. The trial court also ordered a “sentence review hearing” to occur after 25 years, pursuant to section 921.1402, Florida Statutes, due to the fact Appellant was convicted of a “capital felony,” referencing the homicide offense. Appellant’s life sentence for the homicide offense (1st Degree Murder) is therefore constitutional and in compliance with Florida law.

As to the life sentence for robbery (count II), the trial court’s order for a sentence review hearing did not clearly specify that the review applied to both the capital felony and the nonhomicide felony (armed robbery with firearm). In Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the United States Supreme Court held that a life sentence for a crime committed by juvenile who did not commit a homicide offense was unconstitutional as cruel and unusual punishment, unless there was “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” For a time after Graham, there was a split of authority among the district courts of Florida as to whether the prohibition in Graham of a life sentence for a nonhomi-cide offense, which would be otherwise punishable by life, applied when a juvenile also committed a homicide in the same criminal episode. This court took the position that Graham prohibited a life sentence without meaningful opportunity for early release for a nonhomicide offense even when a juvenile committed a homicide in the same criminal episode. See Jackson v. State, 187 So.3d 853 (Fla. 1st DCA 2013). The Florida Supreme Court agreed and stated, “Graham’s categorical rule leaves no room for the homicide-case exception.” Lawton v. State, 181 So.3d 452, 453 (Fla. 2015). The Court in Lawton went on to state, “the ban on sentencing juveniles to life without parole for nonhomicide offenses is, indeed, unqualified.” Id.

However, a life sentence with future judicial review, as provided by section 921.1402, Florida Statutes (2014), validly addresses the constitutional requirements for cases such as Appellant’s. See Horsley v. State, 160 So.3d 393 (Fla. 2015); see also Kelsey v. State, 206 So.3d 5, 10 (Fla. 2016) (agreeing that the “new sentencing scheme contemplates the possibility of a life sentence for a juvenile nonhomicide offender.”). Since the sentence for count II imposes a life sentence without clearly providing a meaningful opportunity for early release, we must remand for resentencing.

Based on the above, the convictions for counts I, II, and III, and the sentences for counts I and III are AFFIRMED. However, Appellant’s life sentence for count II, armed robbery with a firearm, committed when he was seventeen, is REVERSED and REMANDED for resentencing, including the judicial review provided for by section 921.1402, Florida Statutes, as applicable,

WETHERELL and JAY, JJ./ CONCUR.


author: WETHERELL, J.

text:
    The CITY OF PENSACOLA, Appellant, v. SEVILLE HARBOUR, INC., a Florida Corporation, and Merrill Land, LLC, a Florida Limited Liability Company, Great Southern Restaurant Group of Pensacola, Inc., a Florida Corporation, Appellees.
    CASE NO. 1D16-2481
    District Court of Appeal of Florida, First District.
    Opinion filed June 1, 2017

      Térrie L. Didier and J. Nixon Daniel of Beggs & Lane, RLLP, Pensacola, for Appellant.
    Edward P. Fleming and R. Todd Harris of McDonald, Fleming, Moorhead, Ferguson, Green & de Kozan, LLP, Pensacola, for Appellee Seville Harbour, Inc.
    Robert A. Emmanuel and Adam J. White of Emmanuel, Sheppard & Condon, Pensacola,for Appellee Merrill Land, LLC.
    Charles F. Beall, Jr. of Moore, Hill & Wéstmoreland, P.A., Pensacola, for Appel-lee Great Southern Restaurant Group of Pensacola, Inc.
   WETHERELL, J.

The City of Pensacola appeals the final summary judgment determining that the lease between the City and Appellee Seville Harbour, Inc., was properly renewed and that an agreement between Seville Harbour and Appellee Merrill Land, LLC, was a sublease, not a pro tanto (partial) assignment of the lease. We affirm the trial court’s determination that the lease was properly renewed, without further comment, and we affirm its determination as to the nature of the Seville Harbour-Merrill Land agreement for the reasons that follow.,

Factual and Procedural Background

In 1985, the City and Seville Harbour’s predecessor-in-interest entered into a lease agreement—which we will refer to as the “Marina Lease”—for three parcels of undeveloped property along the waterfront in downtown Pensacola. The leased property was comprised of uplands and submerged lands, and as contemplated by the Marina Lease, the property has been developed into a marina and related facilities.

At the time the Marina Lease was executed, two of the parcels (Parcels I and III) were owned by the City, while the third parcel (Parcel IA) was owned by the State of Florida and leased to the City. In 1990, the State deeded Parcel IA to the City. None of the provisions of the Marina Lease related to Parcel IA were modified after this change of ownership.

The Marina Lease provided an initial lease term of 30 years for Parcels I and III, which could be “renewed and extended” for an additional 30 years upon written notice from the lessee (now Seville Har-bour) to the City. The initial (sub)lease term for Parcel IA was also 30 years, but it could only be renewed in “successive five (5) year increments” upon payment of a “lease fee ... equal to the appraised rental value ... charged to [the City] by the State of Florida.”

The annual rent due under the Marina Lease is the greater of a per-square-foot “ground rent” or a percentage of the lessee’s (now Seville Harbour’s) “gross sales” and “gross rentals” in the prior year. The Marina Lease defines “gross sales” as all monies received from business conducted on the leased property “by [Seville Har-bour], its subsidiaries or business combinations” (emphasis supplied), and it defines “gross rentals” as all rents received “by [Seville Harbour] from all..... sublessees or tenants” on the property.

In 2000, Seville Harbour and Merrill Land entered into the “Pitt Slip Marina Sublease Agreement” pursuant to which Seville Harbour “subleased” Parcels IA, III and part of Parcel 1 to Merrill Land for “the remaining term of the Marina Lease plus any extensions or' renewals thereof.” This agreement, which we will refer to as the “Marina Sublease,” reserved to Seville Harbour “a perpetual non-exclusive easement over and on the property ... for ingress, egress, parking, signage, utility lines ... as well as for maintenance, construction, and reconstruction of [the non-transferred part of Parcel I].” It also gave Seville Harbour (and the City) the right to access the property covered by the Marina Sublease “at all reasonable times deemed necessary for the purpose of the Marina Lease.”

Thereafter,’Merrill Land subleased Parcel IA to Appellee Great.Southern Restaurant Group of Pensacola, Inc., which owns and operates two restaurants (The Fish House and Atlas Oyster House) on that parcel. Neither Seville Harbour nor Merrill Land pays additional rent to the City based On the “gross sales”- from the restaurants operated by Great Southern.-

In 2013, the City sent a “Notice of Default” to Seville Harbour and Merrill Land claiming that Merrill Land was a “partial assignee” of the Marina Lease and that additional rents were owed to the City based on the gross sales generated by the restaurants operated by Great Southern, which the City claimed was a “business combination” of Merrill Land. Appellees’ counsel responded in a terse letter disputing the City’s premise that the Seville Harbour-Merrill Land agreement was an assignment and' not a sublease. The City thereafter withdrew the default notice.

Subsequently, in 2014, Seville Harbour and Merrill Land filed a declaratory judgment action seeking determinations that the agreement between Seville Harbour and Merrill Land was a sublease, not an assignment, and' that the Marina Lease was properly renewed. The City filed an answer and third-party complaint joining Great Southern as a third-party defendant in which it argued among other things that (1) additional rent was due under the terms of the Marina Lease on Great Southern’s gross sales because Merrill Land was an assignee under the lease by virtue of the Marina Sublease and Great Southern was a “business combination” of Merrill Land, and (2) the Marina Lease was not properly renewed as to Parcel IA because the “lease fee” applicable to that parcel had not been paid.

The parties each filed motions for summary judgment, and after a hearing, the trial court entered a final summary judgment in favor of Appellees. The trial court ruled that the City was not entitled to additional rent based on Great Southern’s gross sales because the Marina Sublease between Seville Harbour and Merrill Land was a sublease, not a pro tanto assign-meñt, and even if the Marina Sublease was an assignment, Great Southern was not a “bu’siness combination” of Merrill Land. The court also ruled that the Marina Lease was properly renewed because under the plain language of the lease, the “lease fee” for Parcel IA was equal to the appraised rental value charged by the State to the City and, since 1990, no amount was being charged to the City.

This timely appeal followed.

Analysis

The crux of the parties’ dispute in this case is whether the agreement between Seville'Harbour and Merrill Land is a pro tanto assignment of the Marina Lease (as the City contends) or a sublease (as Appel-lees contend). 'This is an issue of law, which we . review de novo. See BOLD MLP, LLC v. Smith, 201 So.3d 1261, 1261 (Fla. 1st DCA 2016).

It is well-established that the nature of a real estate transaction is determined by-its legal effect, not its . form or title. C.N.H.F., Inc. v. Eagle Crest Dev. Co., 99 Fla. 1238, 128 So. 844, 846 (1930) (“[T]he form of an assignment of-lease is immaterial; its character in law being, determined by its legal effect.”). Accordingly, the title of the Marina Sublease and its use of the term “sublease” throughout to describe the transaction between Seville Harbour and Merrill Land is not disposi-tive.

'As a threshold matter,- we agree- with the parties and the trial court that pro tanto assignments are recognized in Florida.- See id. (“An assignment by a' lessee transfers his entire interest in the demised premises or a part thereof for the unexpired term of the original lease.”) (emphasis added). Accordingly, if the Marina Sublease is an assignment, it is a pro tanto assignment because the Marina Lease gave Seville Harbour a leasehold interest in three ■ parcels, but Seville Harbour transferred to Merrill Land an interest in only two of those parcels and part of the third.

The test for determining whether a real estate transaction is an assignment (either pro tanto or full) or a sublease is whether the lessee “transfers [1] his entire interest in [all or part of the leased property] for [2] the unexpired term of the original lease.” Id. (emphasis added); see also Estate of Basile v. Famest, Inc., 718 So.2d 892, 892 (Fla. 4th DCA 1998) (“The test between an assignment and a sublease is whether the lessee transfers his entire interest in the property; if no reversionary interest is retained, the transaction is considered an assignment.”); but cf. MDS (Canada) Inc. v. Rad Source Techs., Inc., 143 So.3d 881 (Fla. 2014) (rejecting the use of this bright-line rule to distinguish between the assignment of a license agreement and a sublicense and holding that a multi-factor, case-by-case analysis is required in that context). Accordingly, it follows that if the lessee transfers less than his entire interest in the part of the leased property at issue—or his entire interest for less than the unexpired term of the lease—then the transaction is a sublease.

Here, it is undisputed that the term of the Marina Sublease was for the entire unexpired term of the Marina Lease. Accordingly, resolution of this case turns on whether Seville Harbour transferred to Merrill Land its “entire interest” in the property covered by the Marina Sublease.

The parties have not cited, nor has our research located, any Florida case addressing whether a lessee has transferred his “entire interest” in the leased property at issue when the lessee retains an easement in the property. However, this issue has been addressed by courts in other states and those courts have held that the transfer is a sublease rather than an assignment when the lessee retains an easement in the leased property. See, e.g., Damaro Rest. Group, LLC v. Gazette Realty Holdings, LLC, 21 Misc.3d 1131(A), 873 N.Y.S.2d 510 (Sup. Ct. 2008) (finding an agreement to be a sublease where the grantor retained the right to enter the demised property: “While these rights to enter the property and make use of it may be small, the existence of these rights to enter, use and occupy the demised premises defeat the claim that [the grantor] transferred its entire estate.”); First Trust Co. v. Downs, 230 S.W.2d 770, 774-75 (Mo. Ct. App. 1950) (finding agreement to be a sublease where grantor retained easements on the demised property during the entire term of the sublease); McNeil v. Kendall, 128 Mass. 245 (1880) (finding agreement to be a sublease where lessee transferred a portion of the leased property for the remainder of the lease term, but granted an easement on the retained premises: “It is plain, therefore, that ... while he conveyed to the defendants his whole term for years, did not convey his whole interest in the premises, which the defendants had the right to occupy and enjoy under their lease; but retained in himself all the land ... subject to the easements granted to the defendants. The interest which he conveyed to the defendants was a portion of the entire estate, and not his whole estate in a portion of the same.”).

These cases are consistent with the settled principle of Florida law that although an easement is not an “estate” in land, it is an “interest” in land. See Burdine v. Sewell, 92 Fla. 375, 109 So. 648, 653 (1926) (“He, of course, must have known that a grant of an easement should be drawn and executed with the same formalities as a deed to real estate, an easement being an interest in land.”); Dianne v. Wingate, 84 So.3d 427, 429 (Fla. 1st DCA 2012) (“Although an easement is a real property interest in land, it is a right distinct from ownership of the land itself and does not confer title to the land on which the easement is imposed.”); Keys Island Properties, LLC v. Crow, 97 So.3d 329, 330 (Fla. 3d DCA 2012) (quoting Dean v. MOD Props., Ltd., 528 So.2d 432, 433 (Fla. 5th DCA 1988)) (“[0]wnership of land, or an ownership interest in land, constitutes an ‘estate’ as distinguished from an easement, which is the right in one other than the owner of the land to use land for some particular purpose or purposes.”); Am. Quick Sign, Inc, v. Reinhardt, 899 So.2d 461, 464-65 (Fla. 5th DCA 2005) (“Although an easement is not an estate in land and its creation does not convey title, it is an interest that gives to one other than the owner a right to use the land for some specific purpose”). Accordingly, when a lessee transfers his leasehold interest to a third party, but retains an easement in the leased property, it cannot be said that the lessee transferred his “entire interest” in the property.

Here, the record establishes that Seville Harbour transferred less than its entire interest the property covered by the Marina Sublease to Merrill Land because Seville Harbour specifically retained “a perpetual non-exclusive easement over and on the property ... for ingress, egress, parking, signage, utility lines ... as well as for maintenance, construction, and reconstruction of [the non-transferred part of Parcel I].” Additionally, Seville Harbour specifically retained the right of access to the property covered by the Marina Sublease “at all reasonable times deemed necessary for purposes of the Marina Lease.” Based upon these reservations, and the case law cited above, we find no error in the trial court’s conclusion that the Marina Sublease is, in fact, a sublease, and not a pro tanto assignment.

Conclusion

In sum, because the trial court correctly concluded that the Marina Sublease was a sublease and not a pro tanto assignment (and because we find no merit in the other issues raised by the City), we affirm the final summary judgment.

AFFIRMED.

WOLF, J., and LESTER, DON H., ASSOCIATE JUDGE, CONCUR.

      . We also affirm without further comment the “procedural issues” raised by the City.

      . The legal description of the property covered by the Marina Sublease includes' all of Parcel I (containing 8.529 acres) less a specifically described portion of the parcel containing “7 acres more or less." Thus, only approximately 1.5 acres of Parcel I is covered by the Marina Sublease.

      . The trial court also ruled that the renewal term for Parcel IA was 30 years, rather than 5 years. The City, did not challenge that ruling on appeal.

      . We did not need to consider the merits of the City’s argument that Great Southern is a "business combination” of Merrill Land because, as the City conceded in its brief and confirmed at oral argument, that issue is moot if we determine—as we did in this opinion—that the Marina Sublease is not an assignment.


text:
    Genci XHELAJ and Teuta Kanni, Appellants, v. MCCORMICK 105, LLC, Appellee.
    Case No. 2D16-1804
    District Court of Appeal of Florida, Second District.
    Opinion filed June 2, 2017
    Michael P. Fuino of Weidner Law, P.A., St. Petersburg, for Appellants.
    Manuel Farach of McGlinchey Stafford, Fort Lauderdale, for Appellee.
   PER CURIAM.

We affirm the final judgment of foreclosure in all respects, save one. The appellee confesses there was no competent, substantial evidence to support the attorney’s fee award within the foreclosure judgment, and so we reverse and remand for the trial court to conduct further proceedings to establish the correct amount due and owing. See Boyette v. BAC Home Loans Servicing, LP, 164 So.3d 9, 11 (Fla. 2d DCA 2015) (reversing and remanding for further proceedings where foreclosure judgment’s inclusion of interest, property inspection fees, and attorney’s fees was hot supported by competent, substantial evidence); see also Hovannesian v. PennyMac Corp., 190 So.3d 681, 682 (Fla. 4th DCA 2016) (observing where foreclosure judgment included unsupported awards of interest, attorney’s fees, and miscellaneous expenses, “[t]he appropriate remedy is to reverse and remand the judgment for further proceedings to properly establish the correct amount due and owing”).

Affirmed in part; reversed in part; remanded.

NORTHCUTT, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: . PER CURIAM.

text:
    Cindy L. DOTTAVIANO, Appellant, v. Michael A. DOTTAVIANO, Appellee.
    Case No. 5D16-1322
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    Cindy L. Dottaviano, Palm Beach, pro se.
    Scott Ellerin, and'Stefani K. Nolan, of Kenny Leigh & Associates, Daytona Beach, for Appellee.
   . PER CURIAM.

We remanded this cause to the trial court to reconsider the imputation of income to Appellant, alimony, and child support, as well as for partition of the marital home. Dottaviano v. Dottaviano, 170 So.3d 98 (Fla. 5th DCA 2015). Upon remand, the trial court again imputed income to Appellant; albeit in a slightly smaller amount. Appellant once again challenges this conclusion. We agree with Appellant that the trial court erred in imputing income to her. We also conclude that the trial court erred in calculating Appellant’s monthly need and in setting her equity share in the former marital home.

Pursuant to section 61.30(2)(b), Florida Statutes, once a trial court finds a party is underemployed, it must consider the party’s “employment potential and probable earnings level” based on “recent work history, occupational qualifications, and prevailing earnings level in the community if such information is - ayailable.” While a court may impute income to a spouse earning less than she could with the use of her best .efforts, there must be competent, substantial evidence supporting the determination that the spouse could earn the imputed amount. LaFlam v. LaFlam, 854 So.2d 809, 810 (Fla. 2d DCA 2003). The trial court’s imputation of income in this case was not supported by substantial, competent evidence. Accordingly, on remand, the trial court shall recalculate alimony and child support without imputing any income to Appellant.

In addition, the trial court erred, in rejecting some ,of Appellant’s monthly expenses in computing. her need. Without explanation, the trial court omitted the amounts Appellant listed for payments on her car, entertainment for her and the children, club dues and memberships, monthly gifts, religious contributions, education expenses, and tax liability on alimony. Conversely, the court allowed similar expenses for Appellee in computing his net income. On remand, the trial court shall re-compute Appellant’s monthly need, including these expenses, unless it provides a specific explanation for their exclusion.

Lastly, although the trial court complied with our instruction to order the partition of the marital home, it determined Appellant’s share of the equity based upon the assumptions made under its prior order granting Appellee possession of the home. On remand, the trial court shall compute Appellant’s equity share based upon the home’s actual selling price.

REVERSED AND REMANDED.

TORPY, EVANDER and WALLIS, JJ., concur.


text:
    Ann Theresa BIRKMIRE, Appellant, v. Rex Alan BIRKMIRE, Appellee.
    Case No. 5D15-2893
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017
    Dorothy J. McMichen, of McMichen, Ci-nami & Demps, PLLC, Orlando, for Appellant.
    Marcia K. Lippincott,.of Marcia K. Lip-pineott, P.A., Lake Mary, for Appellee.
   PER CURIAM.

We determine that Appellant’s challenge to the order of modification of child support is meritorious in one respect. The trial court erred in retroactively modifying support to a date before the petition seeking the relief was filed. Galperin v. Galperin, 862 So.2d 10, 12 (Fla. 2d DCA 2003). On remand, the court shall order the reduction in child support retroactive to December 4, 2012, and recalculate Appellee’s credit accordingly. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY, EVANDER and WALLIS, JJ., concur.


author: PER CURIAM

text:
    Christopher CHUCHIAN and Kristen Chuchian, Appellants, v. SITUS INVESTMENTS, LLC, Appellee.
    Case No. 5D15-2125
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 2, 2017

      Richard B. Carey and Melva Harris-Rozier, of Carey Law Group, P.A., West Palm Beach, for Appellants.
    Marquista A. Shipman, of Shipman Law, P.A., Hollywood, for Appellee.
   PER CURIAM

Christopher and Kristen Chuchian (Borrowers) appeal the summary final foreclosure judgment entered against them by the trial court in favor of Situs Investments, LLC (Bank). The trial court awarded Bank $118,323.12, including $89,235 in unpaid principal. Because Bank was entitled to at most $30,000 in unpaid principal, this was error.

Borrowers entered into a revolving credit agreement and disclosure (Credit Agreement) with Ocala National Bank in 2003, for a credit line of up to $30,000, and secured it with a non-standard mortgage on their property for up to $30,000 in principal plus interest and costs for taxes, levies, repairs, and insurance. The credit agreement states that any principal advances in excess of the $30,000 credit limit would not be secured by the mortgage. A year later, the mortgage was modified to increase the credit line to up to $90,500. After a chain of assignments of the original credit agreement and the original and modified mortgage to various entities, the original credit agreement and the original mortgage were assigned to Bank. However, the modified mortgage was not assigned to Bank. Bank filed its original foreclosure complaint on May 5, 2014.

Although the original credit agreement executed by Borrowers was a nonnegotiable instrument because it was not for a fixed sum, see section 673.1041(1), Florida Statutes (2003), the owner of a nonnegotiable note may still have enforcement rights. See OneWest Bank, FSB v. Nunez, 193 So.3d 13, 14 (Fla. 4th DCA 2016) (“As a general rule, the assignee of a nonnegotiable instrument takes it with all the rights of the assignor, and subject to all the equities and defenses of the debtor connected with or growing out of the obligation that the obligor had against the assignor at the time of the assignment.” (quoting State v. Family Bank of Hallandale, 667 So.2d 257, 258 (Fla. 1st DCA 1995))); Holly Hill Acres, Ltd. v. Charter Bank of Gainesville, 314 So.2d 209, 211 (Fla. 2d DCA 1975). The assignee of a nonnegotiable note obtains the right of the assignor to enforce the note and is subject to any defenses the borrower had against the assignor. See Mason v. Flowers, 91 Fla. 224, 107 So. 334, 335 (Fla. 1926); Reddish v. Ritchie, 17 Fla. 867, 870 (Fla. 1880).

Bank established standing to foreclose on the original credit agreement and mortgage through a special indorsement on the assignment of the credit agreement. Although that indorsement is undated, Bank filed a notarized certificate of possession with the original foreclosure complaint stating it had come into possession of the original credit agreement on February 11, 2014, and the assignment of the original mortgage, which was also attached to the original foreclosure complaint, :states that the credit agreement was transferred to Bank-on that day. This means that Bank had standing under the original credit agreement for up to $30,000 of the unpaid principal. See Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923, 925 (Fla. 4th DCA 2016); Tomlinson v. GMAC Mortg., LLC, 173 So.3d 1121, 1122-23 (Fla. 2d DCA 2015).

However, Bank did not produce any evidence showing that a modified credit agreement exists, nor has it shown that the mortgage modification was intended to modify not just the mortgage but also the original credit agreement. The original credit agreement explicitly states that any credit advances in excess of the credit limit are not secured by the mortgage. Without evidence showing that a modified credit agreement exists and was assigned to Bank, the modified mortgage is insufficient to establish the' increased amount Bank claims 'it is owed. See Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) (quoting Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015)); Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015). A modification of the credit agreement was necessary to increase the credit limit. Thus, there is a genuine issue of material fact concerning Bank’s entitlement to enforce the modified mortgage. See Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 309-11 (Fla. 2d DCA 2013); Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010) (citing TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So.3d 53, 55 (Fla. 3d DCA 2010)). Consequently, the trial court erred when it awarded more than $30,000 in unpaid principal to Bank in the summary final judgment.

REVERSED and REMANDED.

PALMER, ORFINGER and BERGER, JJ., concur.

      . The appellate record does not contain any documents modifying the original credit agreement.

      . In its affidavit of indebtedness, Bank asserted that Borrowers owed $89,235 in unpaid principal.

      . Bank has also not produced evidence showing that the modified mortgage securing the $60,500 increase in the credit limit was assigned to it. However, this failure is not relevant to the standing analysis as the mortgage follows the note, and an assignment of the mortgage to the plaintiff in a foreclosure case is insufficient to establish standing unless the note was also assigned to the plaintiff. See Jelic v. BAC Home Loans Servicing; LP, 178 So.3d 523, 525 (Fla. 4th DCA 2015) (citing Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1041 (Fla. 4th DCA 2015)).

      . In addition to the unpaid principal, the mortgage permits the trial court to award interest on the principal plus costs for taxes, levies, repairs, and insurance as well as interest on those costs.


text:
    Theophilus BESSELLIEU, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4508
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Theophilus Bessellieu, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Theophilus Bessellieu, challenges the summary denial of his rule 3.850 motion. In his brief, Bessellieu raised four issues. This Court affirms without further comment on three of the issues. However, Appellant’s argument that Ground One of his motion was not conclusively refuted by the portions of the record attached to the lower court’s order is found to have merit. The lower court’s attachment of an outdated Information has led us to this conclusion. We hereby reverse and remand with instruction to either attach portions of the record conclusively refuting Appellant’s claim in Ground One, or to conduct an evidentiary hearing to determine whether ineffective assistance of counsel was provided.

REVERSED and REMANDED for attachment of record evidence to the lower court’s order, or, in the event of the absence of such evidence, for an evidentiary hearing.

ROBERTS, C. J., WINOKUR, and M.K. THOMAS, JJ., CONCUR.


author: PER CURIAM..

text:
    John M. MURRAY, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    CASE NO. 1D16-3166
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017.
    John M. Murray, pro se, Appellant.
    Kenneth S. Steely, General Counsel, Sheron Wells and Barbara Debelius, Assistant General Counsels, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM..

Appellant seeks review of the denial of a petition for writ of mandamus that sought a recommendation from the Florida Department of Corrections- (“the Department”) to -the Office of Executive Clemency (“OEC”) for commutation „ of his life sentence. Appellant sought reimbursement of personal costs and requested that the OEC be notified that appellant was convicted of second-degree murder.

The Department has filed an amended concession of error showing that it has provided the statutorily required recommendation to the OEC and has filed a notice of reimbursement demonstrating that appellant’s inmate account has been reimbursed for personal costs.

We summarily affirm the second issue because the record shows that the information provided to the OEC makes no mention of a first-degree murder conviction. The circuit court granted a motion to correct the record, noted that appellant had been convicted of second-degree murder, and recognized that the court had misstated that fact in the final order.

Accordingly, based on the Department’s proper partial concession of error, we reverse as to the request for reimbursement of personal costs noting that the Department has already reimbursed the costs, and we summarily affirm the second issue.

ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.


text:
    Montiez Lamar DONALDSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5302
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

In this appeal, Montiez Lamar Donaldson challenges the trial court’s revocation of his probation without conducting an adequate admission colloquy, including failing to inform Donaldson of the consequences of his admission. See Johnson v. State, 776 So.2d 1024, 1025 (Fla. 1st DCA 2001) (“[I]n accepting a guilty plea to a probation violation, the trial court must advise the probationer of the violation charges and, among other things, should tell the probationer of the potential consequences of a guilty plea.”); Johnson v. State, 107 So.3d 1153, 1154 (Fla. 1st DCA 2013) (“At a minimum, the colloquy must inform the defendant of the allegations against him, his right to counsel, and the consequences of an admission or the right to a hearing and it shall afford him an opportunity to be heard.”). A remand is necessary when the trial court fails to conduct the minimum requirements for an admission colloquy. Johnson, 107 So.3d at 1154 (citing Balsinger v. State, 974 So.2d 592, 592-93 (Fla. 2d DCA 2008); Randall v. State, 741 So.2d 1183, 1184 (Fla. 2d DCA 1999)). If, however, Donaldson “does not wish to enter an admission, the court shall hold an evidentiary hearing on the violation allegations and, based on the evidence, determine whether the defendant violated the terms of his probation.” Johnson, 107 So.3d at 1154.

REVERSE AND REMAND.

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


author: LEWIS, J.

text:
    RIVERWOOD NURSING CENTER, LLC, d/b/a Glenwood Nursing Center, Appellant, v. John F. GILROY, Individually, and John F. Gilroy, III, P.A., A Florida Professional Association, Appellees.
    CASE NO. 1D16-2556
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017.

      H. Richard Bisbee, H. Richard Bisbee P.A., Tallahassee, for Appellant.
    Mary K. Simpson and Catherine B. Chapman, Guilday Law, Tallahassee, for Appellees.
   LEWIS, J.

Riverwood Nursing Center, LLC, d/b/a Glenwood Nursing Center, (“Riverwood”) challenges a final summary judgment entered in favor of John F. Gilroy, individually, and John F. Gilroy, III, P.A. (individually and collectively, “Gilroy”) on its amended complaint. Riverwood argues that the trial court erred by entering summary judgment upon finding that there was no genuine issue of material fact as to whether the doctrine of equitable estoppel barred Gilroy’s statute of limitations defense. We disagree and affirm.

Background

In October 2013, Riverwood filed a complaint against Gilroy for legal malpractice. Riverwood subsequently filed an amended complaint, raising, among other things, claims for legal malpractice and breach of fiduciary duty. Riverwood alleged that it operated a 119-bed skilled nursing center, it leased the nursing center and the requisite certificate of need from its owner, and it employed Gilroy as its counsel. Gilroy failed to timely request a hearing on an administrative complaint the Florida Agency for Health Care Administration (“AHCA”) issued against Riverwood. As a result, AHCA entered a final order by default against Riverwood, whereby it revoked its nursing facility license. River-wood alleged that as a direct consequence of that order, it suffered substantial damages due to its forced and unanticipated termination of the nursing center. Gilroy filed a motion for summary judgment, contending in part that the two-year statute of limitations of section 95.11(4)(a), Florida Statutes, barred the claims as of April 14, 2013, two years after this Court denied Riverwood’s motion for rehearing of its affirmance of AHCA’s final order, and that the doctrine of equitable estoppel did not bar the limitations defense.

During pre-suit discussions, Susan Sells, a claims specialist with Florida Lawyers Mutual. Insurance Company (“FLMIC”), which was Gilroy’s insurance carrier, informed Richard Feldman, Riverwood’s attorney, that Gilroy’s liability coverage limit was $1 million. Feldman notified Sells of Riverwood’s intent to submit a claim based on Gilroy’s negligence pertaining to the administrative action. Robert Hagan, Riv-erwood’s president, and Sells corresponded about Riverwood’s claimed damages so she could evaluate its claim. In a January 2013 letter, Sells offered to settle Riverwood’s claim for $100,000. Hagan testified that he told Sells that Riverwood was unwilling to accept the $100,000 offer and, around February or March 2013, Sells and Gilroy told him that FLMIC would not settle for more than $100,000. Hagan repeatedly attested that he never wanted to sue Gilroy, he always thought the statute of limitations stops running once a claim is. filed, and Gilroy did not inform him about the two-year statute of limitations and that River-wood had to file a lawsuit on or before April 14, 2013.

Following a hearing, the trial court entered a final summary judgment against Riverwood upon finding in part that it was undisputed that Riverwood did not file suit until after the statute of limitations had expired on April 14, 2013. The trial court further found that the undisputed facts did not support the elements of equitable es-toppel because the pre-suit settlement negotiations did not toll the statute of limitations and Hagan’s deposition testimony and affidavit “do not present any factual evidence that [Gilroy or FLMIC] acted fraudulently or made any misrepresentation of a material fact.” The trial court found it significant that Riverwood was represented by counsel throughout the settlement negotiations and that “it is undisputed that time remained on the statute of limitations-when [Gilroy' and/or FLMIC] informed [Riverwood] that it would not pay more than $100,000.00 to settle [River-wood’s] claim.” This appeal followed.

Analysis ..

A trial court’s order granting final summary judgment is reviewed de novo to determine whether there are genuine issues of material fact and whether the court properly applied the correct rule of law. Glaze v. Worley, 157 So.3d 552, 553-54 (Fla. 1st DCA 2015). An appellate court must view the facts in the light most favorable to the nonmoving party. Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909, 912 (Fla. 1st DCA 2014); see also Feizi v. Dep’t of Mgmt. Servs., 988 So.2d 1192, 1193 (Fla. 1st DCA 2008) (explaining that the party moving for summary judgment must conclusively show the absence of any genuine issue of material fact and the trial court must draw every possible inference in favor of the nonmoving party); Parker v. Dinsmore Co., 443 So.2d 356, 358 (Fla. 1st DCA 1983) (“Summary judgment is párticularly unsuitable in those cases where ‘the facts and circumstances indicate a possibility of an estoppel or a waiver.’ ” (Citation omitted)).

The doctrine of equitable estop-pel acts as a bar to a statute of limitations defense. Major League Baseball v. Morsani, 790 So.2d 1071, 1076 (Fla. 2001). “Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position.” Id. (explaining that the doctrine “‘is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himáelf, or to alter his own previous condition to- his injury" ” (internal citation omitted)). The party relying on the doctrine of equitable estoppel must show that (1) the opposing party represented a material fact contrary to its later position, (2) the party asserting the doctrine relied on the opposing party’s earlier representation, and (3) the party asserting the doctrine changed its position to its detriment due to the opposing party’s representation and its reliance thereon. Black Bus. Inv. Fund of Cent. Fla., Inc. v. State, Dep’t of Econ. Opportunity, 178 So.3d 931, 934 (Fla. 1st DCA 2015); see also W.D. v. Archdiocese of Miami, Inc., 197 So.3d 584, 590 (Fla. 4th DCA 2016) (explaining that “tt]o assert equitable estoppel, the defendant must have engaged in wrongful conduct which ‘induced another into forebear-ing suit within the applicable limitations period,’” and concluding that the allegations were insufficient to support an equitable estoppel claim because “[t]he plaintiff would have had to have been aware of his right to sue, and then fail to file because of the Archdiocese and school’s actions. This is contrary to his asserted position that he had no memory of the alleged abuse” (citation omitted)).

“The basic elements of estoppel include a false representation or concealment of material facts.” Castro v. E. Pass Enters., Inc., 881 So.2d 699, 700 (Fla. 1st DCA 2004) (citing Rinker Materials Corp. v. Palmer First Nat’l Bank & Tr. Co. of Sarasota, 361 So.2d 156, 159 (Fla. 1978), where the supreme court held that equitable estoppel requires “proof of fraud, misrepresentation, or other affirmative deception”). In Castro, we concluded that estoppel was inapplicable because the allegedly -concealed material' fact was the requirement to file a claim in the probate division, “[bjecause both parties had the same means of -ascertaining the truth as to whether a claim must be filed in probate court, there can be no estoppel. ... No party can claim ignorance of the law,” and there was no evidence of affirmative deception or an intent t’o-mislead the'party into believing that it did not need to file a claim in probate court. Id. at 700-01.

Ip this appeal, Riverwood does not contest the. trial, court’s ruling-that it was undisputed that Riverwood did not file suit until after the statute of limitations had expired on April 14, 2013, but argues that the court erred by rejecting the doctrine of equitable estoppel as a bar to Gilroy’s statute of limitations defense; We disagree. Hagan testified that he never intended to sue Gilroy. Hagan also stated that he always believed the statute of limitations stops running when a claim is filed, and Gilroy did not advise him about the applicable limitations period. However, Hagan’s belief about die running of the statute of limitations was 'not based on any alleged misrepresentation by Gilroy or FLMIC, who had no duty to advise him about the matter, and Riverwood was represented by counsel throughout the pre-suit negotiations. See Fletcher v. Dozier, 314 So.2d 241, 242 (Fla. 1st DCA 1975) (noting that a potential defendant has no duty to remind a claimant that the statute of limitations is running). More importantly, Hagan attested that in February or March 2013-r—be-fore the expiration of the statute of limitations—Sells and. Gilroy told him that FLMIC was not going to settle for more than $100,000, and he had made clear that Riverwood would not settle for less than $1 million. Thus, it is undisputed that time' remained on the statute of . limitations when Gilroy and FLMIC informed River-.wood that FLMIC would not pay more than $100,000 to settle its claim. Accordingly, the trial court did not err by entering final summary judgment against River-wood because no genuine issue of material fact existed as to whether Gilroy should be equitably estopped from relying on the statute of limitations defense given that there was no evidence of fraud, misrepresentation, or other affirmative deception by Gilroy or FLMIC.

Conclusion

For the foregoing reasons, we affirm the trial court’s final summary judgment.

AFFIRMED.

ROBERTS, C.J. and WINSOR, J., CONCUR.

      . See Riverwood Nursing Ctr., LLC v. Agency For Health Care Admin., 58 So.3d 907 (Fla. 1st DCA 2011).


text:
    Sherry SANTANGELO, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2086
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Andy Thomas, Public Defender; Archie F. Gardner, Jr. and Steven Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s judgment and sentence are affirmed. However, we remand for correction of the scrivener’s error contained in the probation ■ revocation order, which states that the appellant violated “Condition [] 2” of her probation rather than “Modification of Probation Condition (2).” See Nickolas v. State, 66 So.3d 1077 (Fla. 1st DCA 2011).

AFFIRMED; REMANDED for correction of scrivener’s error in probation revocation order.

ROBERTS, C.J., ROWE and WINSOR, JJ., CONCUR.


author: WOLF, J.

text:
    Jared Tavar ANDERSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4867
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017.
    Andy Thomas, Public Defender, and William Pafford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant raises two issues on appeal. We find only one issue has merit; we agree with appellant that the trial court erred when it failed to enter a written order adjudicating appellant competent to proceed before allowing appellant to represent himself in a bench trial. Therefore, we AFFIRM appellant’s judgment and sentence, but REMAND for the trial court to enter a written order of competency nunc pro tunc. Mullens v. State, 197 So.3d 16, 37 (Fla. 2016).

LEWIS and WETHERELL, JJ., CONCUR.


text:
    Claude KASSIM, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 4D16-2821
    District Court of Appeal of Florida, Fourth District.
    June 7, 2017
    Claude Kassim, Sunrise, pro se.
    Robert Edwards of Choice Legal Group, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

On appeal, appellant argues that the trial court erred in denying his objection to the foreclosure sale and motion to vacate the sale of the property. Appellee confesses error, and does not oppose reversal of the order on appeal. After reviewing the record, we agree that the trial court erred, and reverse the order entered by the trial court and remand for further proceedings.

Reversed and remanded.

TAYLOR, GERBER and CONNER, JJ., concur.


author: May, J.

text:
    Berenise ESTIMABLE, Appellant, v. Felix PROPHETE, Appellee.
    No. 4D16-725
    District Court of Appeal of Florida, Fourth District.
    June 7, 2017

      Hegel Laurent of Laurent Law Office, P.L., Miami, for appellant.
    No brief filed on behalf of appellee.
   May, J.

Florida Rule of Judicial Administration 2.516 lies at the center of this appeal. The mother appeals a sanctions order, and argues the trial court erred in sanctioning her pursuant to section 57.105, Florida Statutes (2015), and Rule 2.516. While the father complied with section 57.105, she argues he failed to comply with the strict requirements of Rule 2.516. We agree and reverse.

The mother and father obtained an out-of-state custody order in Haiti; the Haitian order was not domesticated. The mother then moved to the United States with their daughter where she petitioned for a determination of paternity, child support, and time-sharing for the father.

The father moved to dismiss the mother’s petition, arguing her case was barred by res judicata and collateral estoppel. On the same day, he sent a “safe harbor letter” to the mother advising her that he would move for sanctions if she did not voluntarily dismiss her petition with prejudice.

The father then moved for sanctions, pursuant to section 57.105, arguing the mother’s petition was frivolous and dupli-cative to avoid the Haitian order. He also filed an amended motion to dismiss the mother’s complaint for lack of subject matter jurisdiction.

The father alleged the mother fled Haiti with them minor child without the father’s permission. He was only able to reach the mother with the help of the U.S. Department of State. When he located the mother, he moved to domesticate the Haitian order; the mother filed a paternity petition. He asserted the mother’s claims were not only duplicative and barred by res judicata and collateral estoppel, but were “so devoid of merit as to be sanctionable.”

The trial court dismissed the mother’s petition, granted the father’s motion for sanctions, and, ordered the mother to pay $200 in attorney’s fees. The mother moved for rehearing on the sanctions order, arguing the father had failed to comply with Florida’s service rules. The court denied the motion for rehearing. The mother now appeals.

We review a sanctions order for an abuse of discretion. Lago v. Kame By Design, LLC, 120 So.3d, 73, 74 (Fla. 4th DCA 2013). “However, to the extent a trial court’s order on fees is based on an issue of law, [we have] de novo review.” Id.

Section 57.105 requires a party filing a motion for sanctions to comply with, the twenty-one-day “safe harbor” provision, and Florida Rule of Judicial Administration 2.516. § 57.105(4), Fla. Stat. (2015); Fla. R. Jud. Admin. 2.516. The “safe harbor” provision requires a party to wait twenty-one days after serving its motion for sanctions on opposing counsel before filing the motion so that the challenged document can be corrected or withdrawn. § 57.105(4), Fla. Stat.

Here, the father’s motion for sanctions complied with the twenty-one-day “safe harbor” provision as the father’s notice was sent on July 21, 2015, and the sanctions motion was filed thirty-five days later on August 25, 2015. However, the father’s “safe harbor” letter failed to strictly comply with Florida Rule of Judicial Administration 2.516.

Rule 2.516(b)(1)(E) requires: (i) the attachment of a copy of the document in PDF format, and a link to the document on a website maintained by a clerk; (ii) the subject line begin with' the words “SERVICE OF COURT DOCUMENT” in’ all capital letters, followed by the case number; and (iii) the body of the e-mail identify the court in which the case is pending, “the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document.” Fla. R. Jud. Admin. 2.516(b)(l)(E)(i)-(ii).

We have held that strict compliance with Rule 2.516 is mandatory. Matte v. Captan, 140 So.3d 686, 689-90 (Fla. 4th DCA 2014) (“Litigants should not be left guessing at what a court will deem is ‘substantial compliance’ with the rules and statutes for the imposition of attorney’s fees as a sanction.”).

Here, the father failed to comply with all requirements. His letter failed to contain “SERVICE OF COURT DOCUMENT,” followed by the case number in the subject line, and did not include in the body of the email the case number, name of the initial party, and title of the document served. He also failed to attach a PDF copy or link containing his motion for sanctions. His letter’s non-compliance requires us to reverse the sanctions order.

Reversed.

Ciklin, C.J., and Taylbr, J., concur.


author: CASANUEVA, Judge.

text:
    Linda CAGWIN, Appellant, v. THRIFTY RENTS, INC., Appellee.
    Case No. 2D16-1698
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017.
    Michael P. Fuino and Matthew D. Weid-ner of Weidner Law, P.A., St. Petersburg; for Appellant.
    Erin M. Berger of Kelley Kronenberg, Tampa, for. Appellee.
   CASANUEVA, Judge.

Linda Cagwin appeals a final judgment of foreclosure entered in favor of Thrifty Rents, Inc., on Thrifty Rents’ motion for summary judgment. We reverse and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Ms. Cagwin and Claude Miranda executed a promissory note and mortgage in favor of Thrifty Rents. Thrifty Rents filed a foreclosure complaint on May 28, 2014, alleging that the loan was in default and all payments were due and owing since December 1, 2011. The borrowers filed an answer and affirmative defenses, including an allegation that payments had been made and the amount claimed as owed was incorrect.

Thrifty Rents filed a motion for summary judgment and affidavits in support of the summary judgment. Ms. Cagwin responded with an affidavit in opposition alleging, among other things, that she was entitled to a credit in the amount of $100,000 and that Thrifty Rents had failed to properly apply that credit. The trial court entered a uniform final judgment of foreclosure following a hearing on the motion for summary judgment. We have no transcript of the summary judgment hearing. Ms. Cagwin filed a motion for rehearing, which was denied without a hearing. For the reasons discussed below, we conclude that the trial court abused its discretion by denying Ms. Cagwin’s motion for rehearing, and we reverse and remand for further proceedings.

II. ANALYSIS

We review a ruling on summary judgment de novo. Gonzalez v. Deutsche Bank Nat’l Tr. Co., 95 So.3d 251, 253 (Fla. 2d DCA 2012) (quoting Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1116-17 (Fla. 2d DCA 2011)). The movant must establish the absence of a genuine issue of material fact and must refute the affirmative defenses or establish that they are legally insufficient. Id. We view every possible inference in favor of the nonmoving party. Id. “If the record reflects the existence of any genuine issue of material fact, or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Coral v. Garrard Crane Serv., Inc., 62 So.3d 1270, 1273 (Fla. 2d DCA 2011) (quoting Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996)).

Thrifty Rents filed an affidavit in support of summary judgment identifying the amounts alleged to be due and owing. While Ms. Cagwin questions whether the affiant had sufficient knowledge to attest to the matters set forth in the affidavit, we cannot determine whether such a challenge was properly raised or addressed at the summary judgment hearing because we have no transcript. See Zarate v. Deutsche Bank Nat’l Tr. Co., 81 So.3d 556, 557-58 (Fla. 3d DCA 2012) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)). Accordingly, we cannot say that the trial court erred in relying on the affidavit executed by Thrifty Rents’ president.

In response to the motion for summary judgment, Ms. Cagwin filed a reply and objection to the motion, as well as an affidavit in opposition raising at least one issue of material fact. See Bair v. City of Clearwater, 196 So.3d 577, 583 (Fla. 2d DCA 2016) (stating that once the movant establishes that there was no genuine issue of material fact, the burden shifts to the nonmovant to establish that a genuine issue of material fact does exist). She alleged that she transferred property to Thrifty Rents in 2011 in partial payment of the loan, she was entitled to a credit in the amount of $100,000 based on that transfer, and the amount was not properly applied, resulting in improper penalties and interest. A copy of the deed was attached to the affidavit.

While we have no transcript of the hearing, the parties seem to agree that the trial court rejected Ms. Cagwin’s affidavit as deficient because it was acknowledged rather than sworn to. Nonetheless, Ms. Cagwin argues that she corrected this error with a properly sworn affidavit attached to her motion for rehearing.

The difference between “acknowledged” and “sworn to” is discussed in Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989).

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit, ... the person swearing before the notary must under oath assert that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.
Where an affidavit is called for, an acknowledgment will not suffice.

Id. at 1162 (footnotes omitted).

We note that the document in this case contains several attributes of an affidavit. The document was titled “Affidavit,” it was made by Ms. Cagwin as “Affiant,” and the introductory sentence states: “COMES NOW the undersigned Affiant who, after taking an oath, states .... ” Several cases have found similar documents sufficient to constitute an affidavit despite the erroneous use of the term “acknowledged” rather than the proper “sworn to” in the signature block. See Gaynor Hill Enters., Inc. v. Allan Enters., LLC, 113 So.3d 933, 937 (Fla. 5th DCA 2013) (concluding that “[t]he wording of the notary block-[wa]s not sufficient to vitiate the document’s effectiveness as an affidavit” when read in conjunction with the rest of the document); Bell v. Renar Dev. Co., 811 So.2d 780, 782 (Fla. 4th DCA 2002) (concluding that contractor’s affidavit was sufficient for purposes of the statute where it was clearly intended as a final contractor’s affidavit, despite use of the term “acknowledged” rather than “sworn”).

However, as we have no transcript, we do not know what argument was presented to the trial court regarding the deficiency of the document presented as an affidavit. We do know, however, that Ms. Cagwin filed a motion for rehearing and attached a properly sworn affidavit alleging that the $100,000 credit was not properly applied.

In Fatherly v. California Federal Bank, FSB, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997), this court concluded that the trial court erred in granting summary judgment for two reasons. First, the court erred in granting summary judgment when the bank failed to conclusively disprove the assertion that the bank had not properly credited the borrower’s payments, an allegation that was asserted as an affirmative defense. Id. Second, the court abused its discretion in denying the borrower’s motion for rehearing. Id. The borrower’s original counsel failed to submit an affidavit in opposition to summary judgment, but the borrower hired new counsel who filed a sworn motion for rehearing containing the borrower’s allegations of disputed fact. Id.

This court noted that a trial court has broad discretion to grant a rehearing “when the party seeking rehearing submits matters that would have created-an issue precluding summary • judgment if they had been raised prior to the hearing on the motion.” Id. Finding that the allegations in the sworn motion would have prevented summary judgment and may have even precluded foreclosure, this court concluded that the trial court abused its discretion in refusing to consider the sworn allegations on rehearing. Id. at 1103; see also Petrucci v. Brinson, 179 So.3d 398, 401-02 (Fla. 1st DCA 2015) (concluding that the trial court abused its discretion in denying defendant’s motion for rehearing and not considering his affidavit in opposition to summary judgment, which presented a genuine issue of material fact).

III. CONCLUSION

In this case, whüe the first affidavit was technically deficient, the affidavit attached to the motion for rehearing cured that deficiency and. presented a dispute of material fact. We conclude that it was an abuse of discretion to deny the motion for rehearing and that summary judgment was improper in light of Ms. Cagwiris amended affidavit. Accordingly, we reverse the final judgment and remand for 'further proceedings.

Reversed and remanded with directions.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Mr. Miranda has made no appearance in this appeal.

      . In light of this reversal, we decline to addreSs Ms. Cagwiris remaining arguments.


author: SLEET, Judge.

text:
    Lisa G. ANDREWS, Appellant, v. James P. ANDREWS, Appellee.
    Case No. 2D16-238
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    Sheila Skellie of Law Office of David J. Kurland, Largo, for Appellant.'
    Matthew E. Thatcher of The Solomon Law Group, P.A., Tampa, for Appellee.
   SLEET, Judge.

Lisa G. Andrews challenges the. trial court’s final order granting her former husband James P. Andrews’ motion for modification of alimony and child support. In the order, the trial court concluded that Mr. Andrews had established a substantial and unanticipated change of circumstances and reduced his alimony and child support obligations. We reverse only that portion of the court’s order that directs Mrs. Andrews to pay $521 a month in child support to her former husband prospectively until the parties’ second oldest child’s eighteenth birthday. We affirm the final order in all other aspects.

Section 61.30(ll)(c), Florida Statutes (2015), allows for modification of a child support award based on one parent’s failure to exercise the parties’ time-sharing schedule, and the statute directs that modification shall be retroactive to the date the parent first failed to exercise time-sharing. Here, the trial court made a finding that Mrs. Andrews had failed to exercise her time-sharing since September 1, 2014, but it did not order a modification of the parties’ time-sharing schedule. As such, we conclude, and Mr. Andrews concedes, that Mrs. Andrews’ prospective monthly payment of the $521 was not warranted. See Buhler v. Buhler, 83 So.3d 790, 792 (Fla. 5th DCA 2011) (recognizing that “[b]y its nature,” a parent’s failure to exercise time-sharing “occurs over a period of time” and that pursuant to section 61.30(ll)(c), “during that time frame” the other parent'is entitled to a modification in the child support award (emphasis added)).-•

On remand, the trial court shall amend the final order to reflect that Mrs. Andrews is only responsible for the $521 payment from September 1, 2014—the date she first failed to exercise her time-sharing—to December 16, 2015—the date the final order was rendered. If in the future Mrs. Andrews continues to fail to exercise her time-sharing, Mr. Andrews may seek further modification of the child support award and a modification of the time-sharing schedule. We affirm the final order in all other respects.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, J., and CASE, JAMES, R., ASSOCIATE SENIOR JUDGE,' Concur.


text:
    J.J.P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4869
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

J.J.P. appeals an order withholding adjudication of delinquency after he was found to have committed the offense of robbery. We do not find merit in his argument pertaining to the admissibility of his confession and affirm the order as to the robbery offense; However, the trial court sentenced J.J.P, to probation and, as J.J.P. argues and the State correctly concedes, it improperly required J.J.P. to pay transcription costs as a condition of his probation.

The trial court ordered him to pay the cost pursuant to section 27.52(6), Florida Statutes (2015), which does not authorize the imposition of this cost. Section 27.52(6) addresses the duties of a nonindigent parent or legal guardian, but it does not authorize a cost assessment against the juvenile:

When the public defender ... is appointed to represent a minor ... in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian shall be liable for payment of the fees, charges, and costs of the representation even if the person is a minor being tried as an adult. Liability for the fees, charges, and costs of the representation shall be imposed in the form of a lien against the property of the nonindigent parents

We therefore reverse that part of the order requiring J.J.P. to pay transcription costs as a part of his probation and remand for the trial court to strike this part of the order. On remand, the trial court is also directed to modify that portion of the probation order prohibiting J.J.P. from having contact with “co-defendants involved in robbery” and is directed to specify the names of the individuals with whom J.J.P. is prohibited from being involved.

Affirmed in part; reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.


text:
    Jeffery J. MCDONALD, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1380
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017
    Jeffery J. McDonald, Clermont, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 15, 2016 Final Order Denying Defendant’s Second Addendum to Motion for Postcon-viction Relief, filed in Case No. 2007-002233-CFAWS, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., EVANDER and LAMBERT, JJ., concur.


text:
    Ruby WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-238
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017
    Ruby Williams, Bonifay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Ruby Williams (“Appellant”) appeals the order summarily denying Appellant’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court did not attach pertinent portions of the record to support its conclusion. Therefore, we reverse and remand to the trial court to attach portions of the record supporting its summary denial of Appellant’s motion.

REVERSED and REMANDED.

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


text:
    Tracey MACKEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-133
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017
    Tracey Mackey, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee’
   PER CURIAM.

Tracey Mackey appeals the summary denial of his rule 3.850 motion. The claims raised in Mackey’s motion were facially insufficient. Rather than denying Mackey’s motion, the trial court should have allowed him sixty days to amend his motion. See Fla. R. Crim. P. 3.850(f)(2) (“If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.”).

We reverse the trial court’s summary denial order and remand for the trial court to provide Mackey sixty days to amend his motion.

REVERSED and REMANDED with instructions.

COHEN, C.J., and EVANDER and ■ LAMBERT, JJ., concur.


text:
    Chance M. CLARK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3817
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017
    Chance M. Clark, Live Oak, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the summary denial of Appellant’s rule 3.800(a)/3.801 motion without prejudice to Appellant seeking relief pursuant to a timely filed rule 3.850 motion.

AFFIRMED.

COHEN, C.J., and PALMER and EVANDER, JJ., concur.


text:
    George HOGAN, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1301
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 9, 2017

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant. '
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, . Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences except as to Orange County Circuit Court Case No. 2015-CF-006417-0. As to' that - case, as the State properly concedes, Appellant cannot be convicted of fraudulent use of a credit card and petit theft. See Wolf v. State, 679 So.2d 351 (Fla. 5th DCA 1996). On remand, the trial court shall vacate Appellant’s petit theft conviction in Case No. 2015-CF-006417-0.

AFFIRMED in part, REVERSED’ in part, and REMANDED.

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


text:
    Oscar GLENN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3820
    District Court of Appeal of Florida, First District.
    Opinion filed June 9, 2017
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, for Appellee.
   PER CURIAM.

Oscar Glenn appeals an order revoking his probation. He argues among other things that the trial court erred by not providing written reasons for its finding "that he poses a danger to the community under section 948.06(8)(e), Florida Statutes. The trial court orally made the statutorily required factual findings, so we affirm the revocation of probation. But we remand for correction of the trial court’s written order, so that it can be conformed to the trial court’s oral pronouncement.

In 2014, Appellant pled guilty to one count of sale of cocaine within 1,000 feet of a place of worship and two counts of solicitation to commit witness tampering. He was sentenced to probation. In March, 2016, the State filed an affidavit alleging that Appellant violated the terms of his probation. The trial court conducted a hearing and revoked his probation. At the sentencing hearing, the trial court revoked Appellant’s probation and sentenced him to 133.8 months in prison on the first count, and five years in prison on the other two counts, to run concurrent with the sentence for count one. Although the trial court orally stated several reasons for its decision to revoke Appellant’s probation, it did not reduce any of them to writing. This appeal followed.

Section 948.06(8)(e)l, Florida Statutes, requires that a trial court make written findings regarding whether a violent felony offender of special concern poses a danger to the community. Because here the trial court articulated several reasons- that satisfy the statute, we affirm the revocation of Appellant’s probation. But because the trial court did not reduce its reasons to writing, we reverse and remand with instruc-. tions that the trial court enter a written order that conforms to its oral pronouncements. See Arnone v. State, 204 So.3d 556, 557 (Fla. 4th DCA 2016); Bell v. State, 150 So.3d 1214 (Fla. 5th DCA 2014); Martin v. State, 87 So.3d 813 (Fla. 2d DCA 2012). We also affirm with respect to Appellant’s second, sentencing scoresheet-related argument.

AFFIRMED in part, REVERSED in part, and REMANDED.

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