text:
    Francisco RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1721
    District Court of Appeal of Florida, Fourth District.
    [January 11, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Rai PUNEET, Appellant, v. Suman PATEL, Appellee.
    No. 4D17-1402
    District Court of Appeal of Florida, Fourth District.
    [February 15, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Chelsey SWEENEY, Appellant, v. Matthew C. SMITH, Appellee.
    No. 4D17-1986
    District Court of Appeal of Florida, Fourth District.
    [February 15, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jay GOODLEY, Appellant, v. Geraldine SWARTZ, individually, and Catherine Kolen, individually, Appellees.
    No. 4D17-1013
    District Court of Appeal of Florida, Fourth District.
    [February 15, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Peter STANWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1725
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deaundre DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2628
    District Court of Appeal of Florida, Fourth District.
    February 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marshay Lavon RAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4114
    District Court of Appeal of Florida, Fourth District.
    February 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Connie JONES-GERALD, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4244
    District Court of Appeal of Florida, Fourth District.
    January 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gustavo BONILLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3955
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1668
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    M.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0238
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terri SKILES, as Personal Representative of the Estate of Wesley Skiles, deceased, Appellant, v. LAMARTEK, INC., d/b/a Dive Rite, Appellee.
    No. 4D16-2315
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michel DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-281
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    T.C.W., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-770 4D17-771
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alrick BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3554
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Harold T. DUKES, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-37
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keith M. BATCHELOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1400
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017 Rehearing Denied January 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert BECK and Karen Beck, Appellants, v. FLAGSTAR BANK, FSB and Tuscan Property Management, LLC, Appellees.
    Case No. 5D16-3548
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017 Rehearing Denied January 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert Lamar TOMANETZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2507
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017 Rehearing Denied January 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jabari HIRD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2574
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 5, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tammy J. JONES and Jeffrey A. Jones, Sr., Appellants, v. WELLS FARGO BANK, N.A., as Trustee FOR the CERTIFICATE HOLDERS OF MASTR ASSET-BACKED SECURITIES TRUST 2007-NCW, Mortgage Pass-Through Certificates, Series 2007-NCW, Appellee.
    Case No. 5D17-1617
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 5, 2017 Rehearing and Rehearing En Banc Denied January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ann Marie BALCH and Unknown Spouse of Ann Marie Balch n/k/a Sherman Balch, Appellants, v. BAC HOME LOANS SERVICING, LP f/k/a Countrywide Home Loans Servicing, LP, U.S. Bank National Association as Trustee for J.P. Morgan Alternative Loan Trust 2006-S3 Mortgage Pass-Through, etc., Appellees.
    Case No. 5D17-1516
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Troy RAMBARANSINGH and Danielle Hilaire, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, as Successor-In-Interest to Bank of America, N.A., as Trustee, as Successor By Merger to LaSalle Bank, N.A., etc., et al., Appellees.
    Case No. 5D17-594
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing and Rehearing En Banc Denied January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Taurus Demon BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1988
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael BOWERSOCK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3344
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James E. SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3141
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Erik NUNEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-502
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rogelio SANTOS and Rachel Santos a/k/a Rachel M. Santos, Appellants, v. CITIMORTGAGE, INC., Joseph Nemchik, as trustee on behalf of and under the provisions of a trust agreement known as The Santos Land Trust, Bank of America, N.A., et al., Appellees.
    Case No. 5D17-602
    District Court of Appeal of Florida, Fifth District.
    January 2, 2018 Rehearing and Rehearing En Banc Denied January 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jesse John CANNON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-389
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Thomas Eugene BERRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3745
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ricardo BURTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3240
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jonathan Joseph TURNBULL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3405
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Melvin W. DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3883
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jeffrey REDDEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3695
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James THOMSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3345
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ronald J. OLNEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3138
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William Ulysses MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2800
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlton W. MCGEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2318
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Edward P LUECK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2074
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher Lee HALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1902
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ricky WINGATE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-876
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Ditaniel GREEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-430
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    George RAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-428
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brittany Simone SWIFT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3130
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gregory Javoris WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2034
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mohammed EZZIDI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3459
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Felix MCADORY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2851
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dean A. BEEBE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-760
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jeffery B. MCADAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1116
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Thomas PETTIT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3034
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rickie BUTTREE, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2978
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jeffrey Owen ROSS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1037
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Toris S. OLIVER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3623
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joe Lee THOMPSON, Appellant, v. TOYOSITY, LLC, Appellee.
    Case No. 5D17-1689
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Etberto Luis RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2789
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Danny ALLEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3650
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Melih ARSLAN, Appellant, v. U.S. BANK TRUST, N.A., as Trustee FOR LSF9 MASTER PARTICIPATION TRUST, Appellee.
    Case No. 5D17-214
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Gross, J.

text:
    Joseph SILKY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D17-2945
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]
    Joseph Silky, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for respondent.
   Gross, J.

Joseph Silky seeks a belated appeal of his 2008 conviction and sentence and a mitigated "resentencing" order rendered on July 1, 2015. He also seeks a belated appeal of June 1 and 2, 2016 restitution orders. Silky claims that he asked counsel to appeal the judgment, sentence, and restitution orders after the restitution hearing on June 1, 2016. We write primarily to address Silky's contention, lifted from federal case law, that the time for filing a direct appeal does not expire until a restitution amount is set.

In 2007, Silky was charged with second-degree grand theft (between $20,000 and $100,000). He entered an open plea, and in May 2008, the court initially sentenced him to five years in prison followed by ten years of probation. The court ordered restitution and reserved on the amount. The basis of the criminal charge involved Silky's failure to fulfill contracts as a professional photographer; the prosecution believed there were more than 50 victims and that restitution totaled more than $80,000. The defense disputed the restitution amount, so a restitution hearing was required.

Silky negotiated for a one-week furlough, which provided that a 15-year sentence would be mitigated if Silky surrendered and complied with the conditions of the agreement. Silky failed to appear. In 2014, he was arrested in Mississippi.

On April 28, 2015, Silky and the state reached an agreement that, among other things, the prison sentence would be mitigated to seven years in prison followed by probation. On July 1, 2015, the circuit court rendered the resentencing order and reserved jurisdiction for a restitution hearing. Silky did not appeal from the mitigated sentence.

On June 1 and 2, 2016, the court rendered restitution orders as to various victims.

More than a year later, on September 5, 2017, Silky turned over to prison officials the petition for belated appeal at issue here. The petition argues that, pursuant to Gonzalez v. United States , 792 F.3d 232 (2d Cir. 2015), a conviction is not final while substantive restitution proceedings are ongoing. He contends that the time for filing a direct appeal did not run until the amount of restitution was determined in 2016. He asks for a "belated direct appeal of sentence, judgment, and restitution orders."

Under Florida law, the time to appeal begins to run from a written order imposing a sentence. A court is permitted to hold a restitution hearing after the imposition of a sentence, and post-sentence restitution orders are separately appealable from the original judgment and sentence.

No Florida authority holds that a delayed restitution hearing tolls or postpones the time to appeal from a criminal sentence. Florida Rule of Appellate Procedure 9.140(b)(3) provides (in relevant part):

(3) Commencement . The defendant shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence .

Id. (emphasis added). The 30-day time limit established by Rule 9.140(b)(3) establishes a bright line rule that encourages clarity and uniformity in procedure. A restitution order is not one of the matters that tolls rendition of an order. See Fla. R. App. P. 9.020(i).

The restitution statute provides: "In addition to any punishment, the court shall order the defendant to make restitution to the victim ...." § 775.089(1)(a), Fla. Stat. (2017). In 1993, the Florida Supreme Court held that, while an order requiring restitution must be imposed at sentencing or within 60 days thereafter, the amount can be determined at a later date. See State v. Sanderson , 625 So.2d 471, 473 (Fla. 1993). It is because a sentencing order must be appealed within 30 days of the rendition of a sentence that Florida courts have held that the appeal divests the trial court of jurisdiction to determine the amount of restitution. See White v. State , 190 So.3d 99, 101 (Fla. 4th DCA 2015). This court has suggested that "where the hearing is not set to occur until after notice of appeal has been filed, the better practice would be to ask this court to relinquish jurisdiction to allow the trial court to hold a hearing as to the amount of restitution." Stanek-Cousins v. State , 912 So.2d 43, 48 (Fla. 4th DCA 2005).

That a restitution order does not alter the time for appeal of an earlier sentence is demonstrated by the fact that restitution orders are often reviewed separately from the original judgment and sentence. E.g. , James v. State , 223 So.3d 288, 289 (Fla. 4th DCA 2017) ; Thompson v. State , 68 So.3d 425, 426 (Fla. 4th DCA 2011) ; Sage v. State , 988 So.2d 150, 151 (Fla. 4th DCA 2008) ; Soriano v. State , 968 So.2d 112, 113 (Fla. 4th DCA 2007).

We decline to follow the federal authority on which Silky relies. Gonzalez , 792 F.3d 232 at 235, addressed when an appeal is "final" for purposes of a federal postconviction motion. See 28 U.S.C. § 2255. The question presented in Gonzalez was: "Does the limitations period begin to run with an order affirming a conviction and sentence but remanding for recalculation of restitution, or does it begin to run only after the district court enters a revised restitution order on remand?" 792 F.3d at 233. The court held that the limitations period "begins to run only when the revised restitution order becomes final." Id. Gonzalez dealt strictly with when the federal postconviction clock began to run and is inapplicable here.

We note that the Eleventh Circuit has held that a judgment sentencing a defendant to imprisonment but reserving jurisdiction to determine the amount of restitution is final for purposes of appeal. See United States v. Muzio , 757 F.3d 1243, 1244 (11th Cir. 2014) (citing Dolan v. United States , 560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010) ). However, Muzio contains dicta that suggests a defendant might also wait to appeal a federal sentence until after restitution has been determined:

The Supreme Court has also recognized that if the defendant chooses to do so, he may avoid bifurcation of his appeal by waiting until restitution has been resolved to appeal. See Corey (holding that defendants have the option to appeal immediately from an initial sentencing judgment or to wait and appeal from both judgments only after the second has been entered).

Muzio , 757 F.3d at 1250 ; see also Gonzalez , 792 F.3d at 237 ("The Supreme Court's decision in Corey v. United States supports the conclusion that while the initial judgment is sufficiently final for appeal, an appeal could also be pursued following entry of the restitution order.").

This dicta from federal cases does not derive from a rule of constitutional law that is binding on the states. Corey involved a defendant who was committed preliminarily under 18 U.S.C. 4208(b), but three months later, the court entered an order imposing probation. 375 U.S. at 170, 84 S.Ct. 298. In that situation, the U.S. Supreme Court said that the defendant could appeal the preliminary order committing him or the subsequent "final" disposition. Corey was based on an application of federal statutes not applicable here; the case did not establish a constitutional rule directed at how state court criminal judgments must be appealed.

For these reasons, we decline to apply Muzio and Gonzalez and hold that reserving jurisdiction to determine the amount of restitution does not impact appellate or postconviction time limits set by Florida rules of procedure. See United States v. Gilbert , 807 F.3d 1197, 1200-01 (9th Cir. 2015) (holding that the time limit to appeal runs following the sentence even if the restitution amount is unspecified and that the postconviction time limit does not restart once the restitution amount is set); see also Dolan v. United States , 560 U.S. 605, 617, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010) (recognizing in dicta that "strong arguments favor the appealability of the initial judgment irrespective of the delay in determining the restitution amount.").

We conclude that Silky's judgment and initial sentence became final in 2008 after he failed to appear for the mitigation hearing. The time for direct appeal expired while Silky was a fugitive. The petition for "belated direct appeal of sentence, judgment, and restitution orders" is untimely, and Silky establishes no basis for a belated appeal of his judgment and initial sentence.

The petition is also untimely from the July 1, 2015 resentencing order that mitigated Silky's sentence. The two-year time limit to petition for belated appeal from the resentencing order began to run on July 31, 2015-when the 30-day time period for filing a notice of appeal expired. Fla. R. App. P. 9.141(d)(5). This petition was filed under the prisoner mailbox rule on September 5, 2017-more than a month after the time limit expired. The petition does not set forth any valid exception to the time limitation. See Fla. R. App. P. 9.141(d)(5).

The petition, however, is timely as to the June 2016 restitution orders. Courts have granted a belated appeal from a restitution order. E.g. , Adirim v. State , 166 So.3d 229 (Fla. 5th DCA 2015). The state has presented a good faith basis to dispute Silky's allegation that he asked counsel to appeal the restitution orders. By a separate order, we will direct the circuit court to appoint a commissioner to make findings of fact as to whether Silky timely requested counsel to file a notice of appeal from the restitution orders rendered on June 1 and 2, 2016.

May and Kuntz, JJ., concur.

      Corey v. United States , 375 U.S. 169, 175, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963).


author: Per Curiam.

text:
    Antonio WRENCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2014
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Antonio Wrencher, Bristol, pro se.
    No appearance required for appellee.
   Per Curiam.

Antonio Wrencher appeals the trial court's order summarily denying his rule 3.850 motion for postconviction relief. We affirm and write to explain why certain issues argued by Wrencher on appeal were not properly presented below and are not before this Court.

In November 2010, Wrencher killed his girlfriend outside of a bar by stabbing and slashing her numerous times with a kitchen knife. At trial, the State presented copious evidence that Wrencher premeditated the murder, which was committed in front of at least one witness and to which Wrencher confessed. The jury convicted him of first degree murder, and he was sentenced to life in prison. This Court affirmed on direct appeal without a published opinion. Wrencher v. State , 181 So.3d 503 (Fla. 4th DCA 2015) (table).

Wrencher filed a timely rule 3.850 motion raising seven claims. The trial court ordered the State to respond to the motion. Thereafter, and without seeking leave to amend, Wrencher filed an amended motion purporting to add two more claims. The State responded to the initial motion attaching records to refute the seven claims but did not address the eighth and ninth claims asserted in the amended motion. The trial court denied Wrencher's initial motion, incorporating the State's response. Wrencher moved for rehearing, but did not take issue with the court's failure to address the eighth and ninth claims raised in the amended motion.

Wrencher then filed another amended motion, which he titled "Third Amended Rule 3.850 motion," purporting to add a tenth claim. He then appealed the order denying rehearing as to his initial motion. At no time did Wrencher seek or obtain leave of court to amend his motion.

While this appeal was pending, the court entered an order dismissing without prejudice Wrencher's last amended motion, which asserted the tenth claim for relief, because of a deficient oath. Wrencher filed an amendment including an unnotarized oath. He also moved for rehearing from the nonfinal order dismissing the amended motion without prejudice. The court denied rehearing. Wrencher did not file a notice of appeal from this order.

In his Initial Brief, Wrencher argues that the court erred in denying all ten of his claims. We affirm without further discussion the court's summary denial of claims one through seven-which are the only matters properly before this Court.

The amended motion purporting to add claims eight and nine was not properly presented to the trial court, and the court did not address these claims. Pursuant to Florida Rule of Criminal Procedure 3.850(e), a movant must obtain leave of court to amend a postconviction motion after the court has ordered the State to respond. See also Saltzman v. State , 154 So.3d 438 (Fla. 4th DCA 2014).

Wrencher neither requested nor obtained leave of court to amend his motion. The eighth and ninth claims were not addressed by the State in its response nor by the trial court in its order. Any error in the denial of these claims is not preserved for appeal. Regardless, we have reviewed the claims, which are wholly without merit.

Finally, the nonfinal order dismissing the last amended motion without prejudice was not appealable, and Wrencher did not file a notice of appeal. Again, Wrencher did not obtain leave to amend as required by rule 3.850(e). The trial court did not address the tenth claim on the merits, and the issue is not properly before this Court.

Wrencher's filing of a series of amended motions seeking to add more claims after the trial court had ordered the State to respond was an abuse of procedure. The 2013 amendments to rule 3.850, which added the requirement that a defendant obtain leave to amend, were designed to avoid piecemeal litigation of motions. See In re Amendments to Fla. Rules of Criminal Procedure & Fla. Rules of Appellate Procedure , 132 So.3d 734, 738 (Fla. 2013). Postconviction movants must present their claims in a single motion within the two year time limit, and once the court has taken action on the motion, the movant must obtain leave to amend. Courts should strike amended motions that are filed without leave of court as required by the rules.

Affirmed.

May, Ciklin and Klingensmith, JJ., concur.

      In relevant part, the rule provides: "Leave of court is required for the filing of an amendment after the entry of an order pursuant to subdivision (f)(5) [denying motions conclusively resolved by court records] or (f)(6) [requiring a response from the State]." Fla. R. Crim. P. 3.850(e).

      As with all the other claims, the argument raised in the tenth claim is without merit. Trial counsel was not ineffective in failing to move for judgment of acquittal. The State presented abundant evidence at trial to establish Wrencher's premeditation. Counsel was not deficient, and prejudice cannot be shown.


author: Taylor, J.

text:
    Gloria Patricia SANCHEZ and Body & Soul Retreat, LLC, a Florida Limited Liability Company, Appellants, v. Johana CINQUE and Vincent Cinque, Appellees.
    No. 4D16-2530
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Nancy S. Paikoff of MacFarlane Ferguson & McMullen, Clearwater; Philip J. Crowley of MacFarlane Ferguson & McMullen, Tampa; and Michael B. Kadish of The Kadish Law Group, P.C., Santa Monica, California, for appellants.
    Kelly B. Stewart, Walter G. Campbell Jr., and Brent M. Reitman of Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A., Fort Lauderdale, for appellees.
   Taylor, J.

A day spa and aesthetician appeal a final judgment entered against them for $814,694, after a jury found they were negligent in performing a chemical peel on the plaintiff. The plaintiff alleged that the chemical peel resulted in severe and permanent aggravation to her pre-existing skin condition, rosacea. Appellants, the defendants below, argue that the trial court abused its discretion in excluding the testimony of their expert witness. They also argue that the trial court erred in granting the plaintiffs a directed verdict on comparative negligence and denying the defendants' motion for remittitur. Plaintiff cross-appeals, arguing that the trial court erred in denying her motion for attorney's fees after finding a proposal for settlement ambiguous. We affirm the final judgment, but reverse the denial of attorney's fees.

Plaintiff Johana Cinque and her husband, Vincent Cinque, sued an aesthetician, Gloria Sanchez, and a day spa, Body & Soul Retreat, LLC, for injuries the plaintiff sustained as a result of a chemical peel. The plaintiff alleged that the peel permanently aggravated her rosacea, a pre-existing skin condition. The defendants alleged the plaintiff was comparatively negligent by failing to follow medical advice.

Testimony during trial revealed that on March 19, 2013, the plaintiff went to Body & Soul for a facial. Before the procedure, the plaintiff completed a form stating that she had rosacea. Rosacea is a chronic inflammatory skin condition of the face. The plaintiff's condition was mild, causing only a rosy flushing of her checks.

Sanchez performed a chemical peel on the plaintiff. Sanchez admitted she did not read the form before she performed the procedure. Had she known the plaintiff had rosacea, she would have used a different product or done a test sample.

During the procedure, the plaintiff felt like her face was burning. Immediately after the procedure, her face continued to burn and turned bright red. Her face became blistered, bruised, scabbed, and crusted, and it oozed.

At the time of the April 2016 trial, the plaintiff's face was bumpy and turned red easily from various triggers, such as the sun and increase in temperatures. The plaintiff is a firefighter paramedic, and wearing her bunker gear also causes her face to turn red. The bumps and redness are in the exact shape of the burn to her face. She gets flare-ups anywhere from two times a week to every day. People often ask if she is okay because her face is red and ask what is wrong with her face.

The plaintiff testified that before the incident, her rosacea merely gave her cheeks a rosy appearance. She had smooth skin, received compliments all the time, and wore makeup only on special occasions. Two coworker friends confirmed that before the procedure, the plaintiff had a beautiful complexion and never wore makeup. They further testified that as a result of the procedure, the plaintiff is no longer confident and outgoing; she has become shy and antisocial.

Dr. Peter Wallach, a dermatologist, began treating the plaintiff for rosacea in October 2009. Her condition was mild, and after a visit the following month, Dr. Wallach noted her condition was improving. Dr. Wallach did not see the plaintiff again for rosacea until the day after the chemical peel, when he examined her for facial burns. Dr. Wallach diagnosed the plaintiff with severe irritant contact dermatitis, which is a condition resulting from something that contacted and irritated the skin. A chemical peel could irritate the skin. Dr. Wallach prescribed an antibiotic cream. During follow-up visits, the plaintiff's face was red and hyperpigmented, so he gave her medication to reduce the inflammation. In May 2013, Dr. Wallach noted that the rosacea had decreased but that some hyperpigmentation remained. Dr. Wallach wrote prescriptions for medication and directed her to return in four weeks, but she did not.

Dr. Thomas Zaydon, a plastic surgeon, examined the plaintiff in May 2014. Dr. Zaydon observed a mixed pattern of rosacea and scarring. The chemical peel had taken away the skin's protective barrier, permanently damaging and injuring the plaintiff's face. He testified that a chemical peel is improper for a person with rosacea because it penetrates the protective barrier of the skin and worsens the inflammatory process. In his opinion, the plaintiff's injuries, scarring, and disfigurement were permanent and she would need a lifetime of dermatological care to control the outbursts; she could never be returned to her pre-peel clinical appearance.

Dr. Zaydon suggested that the plaintiff might benefit from laser treatment, which would cost $4,000 to $6,000 to as much as $100,000. She also might benefit from stem cell treatment. Such treatments cost $5,000 each, totaling $10,000 to $15,000. A deep tissue facioplasty could also be performed. Dr. Zaydon estimated the plaintiff's future medical bills would be around $20,000.

Dr. Quang Le, a dermatologist, treated the plaintiff on five occasions from June 2013 to April 2014. Dr. Le gave her various medications to try to reduce the redness and control her condition, but she continued to experience redness and hyperpigmentation. Dr. Le suggested that her condition could be improved with laser treatment.

Dr. Le opined that the exacerbation of the plaintiff's rosacea was caused by the chemical peel. He explained that a chemical peel on someone with rosacea causes significant damage. The peel damaged the top and mid-dermal area of the plaintiff's skin and her condition went from very mild to very difficult to control. According to Dr. Le, the redness will likely be persistent, and it will take a lifetime of treatment for the plaintiff to adequately manage and control her condition. Medical bills showed that the plaintiff paid $80 or $95 for each office visit with Dr. Le. A mortality table showed the plaintiff had a life expectancy of forty-eight more years.

On cross-examination, the plaintiff admitted she had not seen a dermatologist in two years. She had not filled a prescription for her rosacea in two-and-a-half years and was not using any prescribed medication at the time of trial. She last paid for medication in 2013 and stopped using it in the middle of 2014, despite not having been advised by any dermatologist to discontinue the use of medication for her rosacea. She explained that she stopped taking her prescription medications because they did not work and stopped regularly seeing Dr. Wallach and Dr. Le because they only prescribed medication that did not work.

Before trial, the parties took the deposition of the defendants' expert dermatologist, Dr. Evan Schlam. In his deposition, Dr. Schlam testified that he conducted an independent medical examination on the plaintiff in January 2015, twenty-two months after the chemical peel. Dr. Schlam also reviewed her medical records, including the records of dermatologists Drs. Wallach and Le and the records of the plastic surgeon, Dr. Zaydon. Dr. Schlam's examination of the plaintiff lasted twenty minutes. The plaintiff was on medication at the time of his examination. Dr. Schlam noted mild red patches and mild dilation of the vessels. He diagnosed her with mild rosacea because "there wasn't anything pronounced" when he performed his examination. Dr. Schlam opined that the rosacea he saw was not caused by the chemical peel.

On cross-examination, Dr. Schlam admitted that he had not reviewed any photos of the plaintiff before the peel. He conceded it would have been helpful to review a photo of what she looked like before, but maintained it was not necessary. Dr. Schlam said did not observe any scarring or anything else that would be a concern as a long-term consequence of the peel. He felt it was not important to review photos taken before the procedure because the findings at the exam were so minimal that her prior appearance did not affect his opinion.

Dr. Schlam further testified on cross-examination that he assumed the plaintiff had a classic distribution of mild rosacea before the procedure based on her medical records. Dr. Schlam assumed her rosacea distribution was normal because Dr. Wallach's records did not mention otherwise. Dr. Schlam also assumed that a May 2010 visit to Dr. Wallach for a cystic nodule or spot was for rosacea, even though the records for that visit did not mention rosacea.

Before trial, the plaintiff moved in limine to exclude Dr. Schlam's testimony on the ground that his opinions failed to meet the admissibility requirements under Daubert . In her motion and during the hearing, the plaintiff argued that Dr. Schlam's opinion as to causation lacked reliability and an evidentiary foundation because he had no knowledge about her appearance before the peel. She contended that Dr. Schlam relied on facts that lacked any evidentiary basis in forming his opinions; during his deposition he made assumptions and guesses and stated things that were not in the medical records. The defendants responded that the plaintiff's argument went to the weight of Dr. Schlam's testimony, not to its admissibility.

The trial court entered an order granting the motion to exclude Dr. Schlam's testimony. The court found that Dr. Schlam did not apply a reliable methodology and used speculation and assumptions to arrive at his conclusions. Specifically, Dr. Schlam claimed he was familiar with the plaintiff's condition before the procedure from reviewing her medical records, but Dr. Wallach's records did not state anything about the distribution of plaintiff's rosacea before the peel. Dr. Schlam assumed her rosacea distribution was normal because Dr. Wallach's records did not mention otherwise. Dr. Schlam also assumed that a May 2010 visit to Dr. Wallach for a cystic nodule or spot was for rosacea, even though the records for that visit did not mention rosacea.

The trial court further found that Dr. Schlam failed to consider the plaintiff's appearance before the peel, which was necessary to determine if the peel permanently aggravated her rosacea. Additionally, the trial court reasoned that "[i]t is unreliable to base an entire causation analysis on a one time examination while the patient was medicated for the subject condition." In sum, the trial court determined that Dr. Schlam's opinions were based on speculation and assumptions lacking any factual support in the medical records and excluded his testimony. At trial, the defendants did not call any witnesses.

Plaintiff moved for a directed verdict on liability and the affirmative defense of comparative negligence. Sanchez admitted that she was negligent and that she should not have done the procedure. As to the defendants' claim that the plaintiff was comparatively negligent because she failed to follow her doctors' instructions to return for future visits, the plaintiff argued there was no testimony that this had anything to do with causing her damages and that her alleged failure to follow her doctors' instructions went to the issue of mitigation of damages rather than actual liability.

The trial court granted plaintiff's motions. Thus, the jury considered only the issue of damages.

In closing arguments, the plaintiff requested $2,684.22 for past medical expenses and $82,049 for future medical expenses. As to future medical expenses, she argued (as she testified) that her foundation and soap each cost $30 a month; laser treatments, stem cell treatments, and facioplasty would cost $20,000; and that she would need a lifetime of dermatological care every two months at $95 a visit. The plaintiff also requested $30 a day for pain and suffering, which equaled $34,110 for past pain and suffering and $526,805 for future pain and suffering. The defendants argued that damages for pain and suffering should be awarded only until the plaintiff stopped seeking treatment.

The jury returned a verdict of $2,684.22 for past medical expenses, $29,000 for future medical expenses, $23,000 for past pain and suffering, and $760,000 for future pain and suffering, for a total damage award of $814,694.22. The jury also awarded the plaintiff's husband $10,000 for past loss of consortium.

The trial court denied the defendants' motion for new trial, or alternatively, a motion for remittitur.

Exclusion of the Defendants' Expert Witness

The defendants argue that the trial court misapplied Daubert and wrongfully excluded their expert witness, Dr. Schlam. Plaintiff responds that the trial court properly excluded Dr. Schlam's testimony because his opinion was not based upon reliable data and methodology. Dr. Schlam lacked sufficient knowledge of the plaintiff's pre-existing rosacea condition from which he could form an opinion regarding aggravation of her condition.

The standard of review of a trial court's ruling on a motion in limine is abuse of discretion. Dessaure v. State , 891 So.2d 455, 466 (Fla. 2004). "Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an 'erroneous view of the law or on a clearly erroneous assessment of the evidence.' "

Patrick v. State , 104 So.3d 1046, 1056 (Fla. 2012) (quoting McDuffie v. State , 970 So.2d 312, 326 (Fla. 2007) ).

Under Daubert , the trial court has "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial court must consider "whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786. The Daubert test, as codified in section 90.702, requires that "[t]he testimony is based upon sufficient facts or data"; "[t]he testimony is the product of reliable principles and methods"; and "[t]he witness has applied the principles and methods reliably to the facts of the case." "The proponent of expert testimony must, when properly challenged, establish the basis for its admissibility by a preponderance of the evidence." Baan v. Columbia Cnty. , 180 So.3d 1127, 1131-32 (Fla. 1st DCA 2015).

Under section 90.791 and Daubert , the trial courts must "act as gatekeepers, excluding evidence unless it is reliable and relevant." Crane Co. v. DeLisle , 206 So.3d 94, 101 (Fla. 4th DCA 2016). "The court's gatekeeping function requires more than simply 'taking the expert's word for it.' " Id. at 101 (quoting United States v. Frazier , 387 F.3d 1244, 1265 (11th Cir. 2004) (en banc) ).

In this case, the trial court conducted a thorough Daubert analysis before excluding the testimony of Dr. Schlam. The trial court found that Dr. Schlam failed to apply reliable methodology and that his opinions were based upon unfounded assumptions and thus lacked evidentiary value. Dr. Schlam rendered an opinion that the chemical peel the defendants applied to the plaintiff's face did not cause any permanent exacerbation of the plaintiff's rosacea. His opinion was based upon a brief medical examination of the plaintiff, a review of the plaintiff's medical records, and photographs of the plaintiff taken after the chemical peel. As the trial court pointed out, Dr. Schlam never reviewed any photographs of the plaintiff taken before the chemical peel to determine her pre-incident condition. Further, he relied on Dr. Wallach's medical records to form his opinion regarding the severity of the plaintiff's rosacea before the subject chemical peel. In doing so, he made unwarranted inferences and assumptions as to her pre-existing condition because Dr. Wallach's records did not provide sufficient information as to the pre-incident intensity and distribution of her rosacea and other conditions related to her rosacea. The trial court found that Dr. Schlam's conclusions were based on speculation and assumptions.

Although courts have recognized that a physical examination and review of medical records may qualify as an acceptable and reliable methodology, see, e.g. , In re Paoli R.R. Yard PCB Litig ., 35 F.3d 717, 762 (3d Cir. 1994), an expert's opinion should not, as here, be based on assumptions not rooted in any facts actually contained in the medical records relied upon. We conclude that the trial court properly excluded the testimony of the defendants' expert, Dr. Schlam.

Directed Verdict on Comparative Negligence

The defendants also argue the trial court erred in directing a verdict in the plaintiff's favor on the issue of comparative negligence, because evidence that the plaintiff's own behavior in ignoring medical advice to continue treatment and take medication created a jury question as to whether the plaintiff contributed to her condition. We disagree. The trial court properly granted plaintiff's motion for directed verdict on the issue of comparative negligence because the defendants offered no evidence to support this defense. The defendants did not present any evidence that the plaintiff's failure to follow her doctors' advice contributed to the permanent aggravation of her rosacea. No medical expert testified that the plaintiff's alleged failure to seek medical treatment caused or contributed to her injury. See Norman v. Mandarin Emergency Care Ctr., Inc. , 490 So.2d 76, 79 (Fla. 1st DCA 1986) (stating that mere speculation by the defendants, without supporting evidence, is insufficient to establish comparative negligence).

Denial of Motion for Remittitur

Next, the defendants contend the trial court abused its discretion in denying their motion for remittitur. We reject this claim because the jury's award for future medical expenses and pain and suffering was not clearly excessive and was supported by the record.

"The circuit court's determination on an issue of remittitur is reviewed using an abuse of discretion standard." Sch. Bd. of Broward Cnty. v. Pierce Goodwin Alexander & Linville , 137 So.3d 1059, 1072 (Fla. 4th DCA 2014) ; see also Lassitter v. Int'l Union of Operating Eng'rs , 349 So.2d 622, 627 (Fla. 1976).

"A jury is accorded wide latitude in determining the amount of non-economic damages." Hendry v. Zelaya , 841 So.2d 572, 575 (Fla. 3d DCA 2003). "The fact that a damage award is large does not in itself render it excessive nor does it indicate that the jury was motivated by improper consideration in arriving at the award." Allred v. Chittenden Pool Supply, Inc. , 298 So.2d 361, 365 (Fla. 1974). A verdict should not be declared excessive "merely because it is above the amount which the court itself considers the jury should have allowed." Bould v. Touchette , 349 So.2d 1181, 1184 (Fla. 1977). The verdict should be disturbed only when "it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate." Id. at 1184-85.

In determining whether to grant a remittitur, a court considers the following criteria:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.74(5), Fla. Stat.

The record in this case does not show any impropriety that may have led to the size of the verdict for the plaintiff's future pain and suffering, nor is there any evidence that the jury was influenced by considerations outside of the record. The plaintiff introduced ample evidence of how the effects of the procedure caused physical impairment, disfigurement, mental anguish, inconvenience, aggravation of her rosacea, and loss of capacity for the enjoyment of life. Her skin is no longer smooth and her rosacea is no longer mild. She has permanent scarring, bumpy skin, and regular flare ups in the shape of the burn. Before the procedure the plaintiff was outgoing and social, but now she is shy and anti-social.

In short, as to the award of future pain and suffering, the defendants have not shown that the award "is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate." Bould , 349 So.2d at 1184-85.

The award for future medical expenses and makeup was also supported by the record. The plaintiff introduced evidence that her foundation and soap to reduce redness each cost $30 a month. Additionally, Dr. Le testified that the cost of laser treatment, stem cell treatment, and facioplasty would be $20,000. Further, both Drs. Le and Zaydon testified that her condition would require a lifetime of treatment, and past medical bills showed office visits in the amount of $80 and $95 per visit. Although the plaintiff had not sought medical treatment in the two years preceding trial, she presented expert medical evidence that her injury was permanent, requiring a lifetime of treatment.

In sum, because the defendants did not show the trial court abused its discretion in denying the motion for remittitur, we affirm on this issue.

Cross-appeal on denial of the plaintiff's attorney's fees

After the jury verdict, the plaintiff moved for fees and costs pursuant to a proposal for settlement under section 768.79(6)(b) and rule 1.442. She attached a copy of the proposal for settlement and release in support. The proposal for settlement, which had a certificate of service dated November 24, 2015, offered to settle the case for $175,000. Paragraph 2 of the release, however, named individuals who were not parties to the litigation. Specifically, the second paragraph stated:

The undersigned through their heirs, executors, administrators, and assigns, further agree to indemnify and hold harmless GLORIA PATRICIA SANCHEZ from and against any and all claims resulting from the alleged negligence of GLORIA PATRICIA SANCHEZ, its heirs, agents, servants or employees by any and all third parties claiming subrogation rights (whether they be statutory, contractual or common law), to recover from GLORIA PATRICIA SANCHEZ any monies paid or due to be paid by the third party or parties to or on behalf of JAMES WALLER, as Personal Representative of the [sic] PAULA FINEN, deceased, and JAMES WALLER, her husband, individually, for medical expenses or lost wages whether or not the expenses is considered to be or to have been paid by a collateral source.

The defendants argued that the proposal for settlement was ambiguous because of its reference to unknown non-parties, James Waller and Paula Finen. After a hearing, the trial court denied the motion for fees. The plaintiff cross-appealed the denial of her motion.

The plaintiff argues the trial court erred in denying her motion for fees because the proposal for settlement and release were not ambiguous. The typographical error in the release was not inconsistent with the proposal for settlement. Any possible ambiguity would be resolved by looking at the proposal and release as a whole.

An order declining to enforce a proposal for settlement is reviewed de novo. Kiefer v. Sunset Beach Invs., LLC , 207 So.3d 1008, 1010 (Fla. 4th DCA 2017). See also Alamo Fin., L.P. v. Mazoff , 112 So.3d 626, 628 (Fla. 4th DCA 2013) ("The standard of review in determining whether a proposal for settlement is ambiguous is de novo.").

A proposal for settlement "must state with particularity any relevant conditions and all non-monetary terms." Palm Beach Polo Holdings, Inc. v. Vill. of Wellington , 904 So.2d 652, 653 (Fla. 4th DCA 2005). The proposal should "be as specific as possible, leaving no ambiguities, so that the recipient can fully evaluate its terms and conditions." Id. (quoting Swartsel v. Publix Super Markets, Inc. , 882 So.2d 449, 452 (Fla. 4th DCA 2004) ). A proposal for settlement must be "read as a whole" and "is not ambiguous unless a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction." Alamo , 112 So.3d at 630.

"[G]iven the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification." State Farm Mut. Auto. Ins. Co. v. Nichols , 932 So.2d 1067, 1079 (Fla. 2006). "Therefore, parties should not 'nit-pick' the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could 'reasonably affect the offeree's decision' on whether to accept the proposal for settlement." Alamo , 112 So.3d at 629 (quoting Carey-All Transp., Inc. v. Newby , 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) ).

Although a proposal for settlement should "be as specific as possible, leaving no ambiguities, so that the recipient can fully evaluate its terms and conditions," see Palm Beach Polo Holdings , 904 So.2d at 653, this general principle does not make the proposal for settlement invalid in this case because the proposal and release were not ambiguous. There was no doubt that the plaintiff was offering to settle the case against Defendant Sanchez for $175,000 and that the release would prevent Sanchez from ever being sued again by the plaintiff for injuries relating to the March 19, 2013 procedure. The proposal and release stated with particularity the relevant conditions and all non-monetary terms. Read as a whole, the proposal and release did not have any ambiguities that prevented Sanchez from fully evaluating the terms and conditions. Although the release contained a reference to non-parties, this was clearly a "cut and paste" typographical error that did not create an ambiguity that could have reasonably affected Sanchez's decision whether to accept the proposal.

The cases the defendants rely on are distinguishable because those cases involved a patent ambiguity in the amount of the settlement. See Stasio v. McManaway , 936 So.2d 676, 678 (Fla. 5th DCA 2006) (finding patent ambiguity where the proposal offered to settle for $60,000, but release that accompanied proposal spelled out $59,000 while also referencing $60,000 in numerals); Gov't Emps. Ins. Co. v. Ryan , 165 So.3d 674 (Fla. 4th DCA 2015) (finding proposal that spelled out $100,000 in words but also referred to $50,000 in numerals contained patent ambiguity). The defendant's reliance on South Florida Pool & Spa Corp. v. Sharpe Investment Land Trust Number J , 207 So.3d 301, 304 (Fla. 3d DCA 2016), is also misplaced because in that case an ambiguity between the proposal and the release made it unclear what claims the offer was meant to include. Here, in contrast, the proposal and release made clear which claims the plaintiff was offering to settle and the amount to settle them.

More on point is Kiefer v. Sunset Beach Investments, LLC , 207 So.3d 1008 (Fla. 4th DCA 2017). In that case, one of the defendants served a proposal for settlement on the plaintiff offering to settle the case solely against that defendant. The proposal incorporated a release in which two paragraphs limited the release to that defendant, while two other paragraphs did not mention that defendant's name. In reading the settlement and release as a whole, however, we found no ambiguity. We explained that all of the paragraphs related solely to that defendant and the plaintiff, and the two paragraphs that did not include that defendant's name were in between other paragraphs that did include his name. See also Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A. , 176 So.3d 305, 309 (Fla. 3d DCA 2015) (finding that naming attorneys in releases did not create an ambiguity between proposals and releases). Here, as in Kiefer , when one reads the proposal and release as a whole, it is clear that the proposal and release relate only to Sanchez and the plaintiff.

Further, courts have recognized that typographical errors do not automatically create an ambiguity. In Mathis v. Cook , 140 So.3d 654, 656-57 (Fla. 5th DCA 2014), the court recognized that there were typographical errors in the release; however, the errors did not create an ambiguity. Rather, it was apparent from the release that in order to settle the matter with one defendant, the plaintiffs would be required to release all three defendants. Similarly, in Floyd v. Smith , 160 So.3d 567, 569-70 (Fla. 1st DCA 2015), the court found that a typographical gender error in the proposal did not result in any ambiguity which could have affected appellant's consideration of the proposal. See also Jefferson v. City of Lake City , 965 So.2d 174, 175 (Fla. 1st DCA 2007) (typographical error in proposal for settlement citing to nonexistent statute did not render proposal invalid where notice of proposal cited to correct statute number).

In sum, we conclude that the trial court erred in declining to enforce the proposal for settlement because, taken as a whole, no ambiguity existed that would have affected Defendant Sanchez's ability to make a decision.

Affirmed on direct appeal, and Reversed on cross-appeal.

Warner, J., and Buchanan, Laurie, E., Associate Judge, concur.


author: Levine, J. May, J., dissenting.

text:
    Michael BILOTTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3415
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Fred Haddad of Haddad & Navarro, PLLC, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

Appellant appeals his conviction and sentence for first-degree murder and solicitation to commit first-degree murder. We reverse the conviction for all the reasons stated in Pacchiana v. State , No. 4D15-3340, --- So.3d ---- (Fla. 4th DCA February 14, 2018).

Reversed and remanded .

Gerber, C.J., concurs in part and dissents in part with opinion.

May, J., dissents with opinion.

Gerber, C.J., concurring in part and dissenting in part with opinion.

For the reasons expressed in my concurrence in Pacchiana v. State , No. 4D15-3340, --- So.3d ---- (Fla. 4th DCA February 14, 2018), I concur with Judge Levine's ultimate conclusion to reverse the defendant's conviction and remand for a new trial.

May, J., dissenting.

For the reasons expressed in my dissent in Pacchiana v. State , 4D15-3340, --- So.3d ---- (Fla. 4th DCA February 14, 2018), I dissent from the majority. I would affirm.


text:
    PHILIP MORRIS USA INC. and R.J. Reynolds Tobacco Company, Appellants, v. Robert A. GORE, Sr., as Personal Representative of the Estate of Gloria H. Gore, Appellee.
    No. 4D15-3892
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, and David Northrip of Shook, Hardy & Bacon, Kansas City, MO, for Appellant Philip Morris USA, and Gregory G. Katsas of Jones Day, Washington, DC, and Charles R.A. Morse of Jones Day, New York, NY, for Appellant R.J. Reynolds Tobacco Company.
    Bard D. Rockenbach and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Jason L. Odom of Gould, Cooksey, Fennell, P.A., Vero Beach, for appellee.
   Taylor, J.

This is an Engle progeny wrongful death case brought by the plaintiff, Robert Gore, personal representative of the estate of his late wife, Gloria Gore, against the defendants, Philip Morris and R.J. Reynolds. The defendants appeal a final judgment awarding the plaintiff $460,000 against each of them after the trial court applied the jury's comparative fault determination. The plaintiff cross-appeals the judgment, raising issues concerning punitive damages and comparative fault. We affirm as to the main appeal, and reverse and remand as to both issues raised in the cross-appeal.

As to the main appeal, we conclude that the defendants failed to preserve any Daubert challenge to the testimony of the plaintiff's expert historian, Dr. Proctor, concerning the defendants' use of ammonia in an effort to increase the addictiveness of cigarettes. "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved."

Sunset Harbour Condo. Ass'n v. Robbins , 914 So.2d 925, 928 (Fla. 2005) (quoting Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) ).

The trial court ruled that Dr. Proctor could testify regarding his historical review of the defendants' efforts to manipulate the addictiveness of cigarettes, but that he was not qualified to give an opinion on the chemistry of tobacco. To the extent the defendants now suggest on appeal that Dr. Proctor's testimony went beyond a historical opinion and ventured into a scientific opinion (i.e., that adding ammonia to cigarettes increases their addictiveness), the defendants failed to preserve any Daubert objection.

Although the defendants raised the Daubert issue in a pre-trial motion in limine, the trial court deferred ruling on it until trial. At trial, however, the defendants never made any contemporaneous objection raising the specific argument that Dr. Proctor's ammonia testimony violated Daubert or section 90.702, Florida Statutes. Indeed, there are no references by the defendants to " Daubert " or " section 90.702" anywhere in the trial transcript. We conclude, therefore, that this issue was not preserved for appellate review. See Boyles v. A & G Concrete Pools, Inc. , 149 So.3d 39, 43-44 (Fla. 4th DCA 2014) (when a trial court declines to rule on a motion in limine before trial, the moving party must raise a contemporaneous objection at trial to preserve the issue for appellate review).

With respect to the defendants' remaining claims on appeal, we reject the defendants' due process and preemption arguments. See Philip Morris USA, Inc. v. Douglas , 110 So.3d 419, 430-36 (Fla. 2013) ; R.J. Reynolds Tobacco Co. v. Marotta , 214 So.3d 590, 605 (Fla. 2017).

Turning to the cross-appeal, we agree with the plaintiff's argument that he is permitted to seek punitive damages on his claims for negligence and strict liability. See Soffer v. R.J. Reynolds Tobacco Co. , 187 So.3d 1219, 1221-22 (Fla. 2016). The plaintiff preserved this issue by making a conditional request to amend his complaint to seek punitive damages on his non-intentional tort claims in the event the Florida Supreme Court decided Soffer in his favor. See Hardin v. R.J. Reynolds Tobacco Co. , 208 So.3d 291, 292 (Fla. 3d DCA 2016) (holding that the plaintiff properly preserved the same issue by asking the trial court "to provisionally grant her motion to allow punitive damages for her non-intentional tort claims pending the Florida Supreme Court's disposition of Soffer "). On remand, the plaintiff is entitled to seek leave from the trial court to add claims for punitive damages on his non-intentional tort claims. See Philip Morris USA, Inc. v. Blackwood , 4D16-897, 235 So.3d 934, 935, 2018 WL 354549, at *1 (Fla. 4th DCA Jan. 10, 2018).

Finally, we address the plaintiff's argument that the trial court should not have applied comparative fault to reduce the compensatory damages award. Because the jury found for the plaintiff on the intentional tort claims, the compensatory damages award may not be reduced by comparative fault unless the plaintiff waived the intentional tort exception to the comparative fault statute. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 304-05, 2017 WL 6379591 at *7 (Fla. 2017). The intentional tort exception, however, is not waived simply because an Engle plaintiff argues comparative fault on the negligence counts. Id. at 305-06, at *8.

Here, the plaintiff's arguments to the jury were similar to those in Schoeff that the Florida Supreme Court found to be insufficient to constitute a waiver of the intentional tort exception. Moreover, although the defendants now attempt to distinguish Schoeff on the basis that the verdict form here, unlike in Schoeff , asked jurors to apportion fault after the questions concerning the intentional tort claims, we are unpersuaded by this argument. The verdict form in this case, to which the defendants agreed, does not give rise to a finding that the plaintiff intentionally relinquished the right to seek punitive damages for his non-intentional tort claims. See Smith v. R.J. Reynolds Tobacco Co. , 880 F.3d 1272, 1282 (11th Cir. 2018) (rejecting the defendant's waiver argument, in part because the defendant "did not object to the verdict form that was given to the jury," even though the verdict form "could clearly have been drafted in a way that minimized, or even eliminated, any jury confusion").

As the Eleventh Circuit explained: "It is difficult to conclude that a litigant who has consistently proclaimed his opposition to apportionment of fault on an intentional tort claim has somehow waived his right to later maintain that position as to the entry of the judgment." Id. We likewise find that the plaintiff did not waive the intentional tort exception in this case. Accordingly, we reverse and remand on this issue with instructions for the trial court to award compensatory damages in the full amount of the jury's verdict.

In sum, we affirm on the main appeal, reverse on the cross-appeal, and remand for further proceedings consistent with this opinion.

Affirmed on main appeal; Reversed and Remanded on cross-appeal.

Warner and Damoorgian, JJ., concur.

      Engle v. Liggett Group, Inc. , 945 So.2d 1246 (Fla. 2006).

      Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      The trial court did not-and legally could not under this court's case law at the time-grant the plaintiff's request. Instead, the trial court entered an order allowing the plaintiff to plead punitive damages as to his intentional tort claims only.

      Notably, the defendants did not rely on the verdict form as part of their waiver theory below-or even in this appeal before we permitted supplemental briefing on Schoeff . In fact, at trial, one of the defense lawyers stated the following in reference to the structure of the verdict form: "We ultimately did this as a compromise so that, if in the event it became an issue afterwards, both sides' positions were preserved as to whether comparative fault was going to apply to all the claims."

      It is unclear whether the trial court's decision to give effect to the jury's comparative fault determination was based in part on the defendants' waiver argument, or instead whether it was based solely on the trial court's application of the then-existing law in this district that the intentional tort exception did not apply to Engle cases. Assuming, arguendo , that the trial court's decision was grounded in part on the plaintiff's alleged waiver of the intentional tort exception, any finding of waiver would be an abuse of discretion under the circumstances of this case.


author: May, J.

text:
    Nicholas P. SANDELIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3695
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals an order on direct criminal contempt. He argues the trial court erred in: (1) improperly classifying his failure to appear as direct contempt; (2) failing to comply with the procedural requirements for indirect contempt proceedings; and (3) failing to make sufficient findings in the judgment. We agree with him on his first two arguments and reverse.

When the defendant failed to appear at a court hearing, the trial court issued a bench warrant and estreated his bond. The defendant moved to recall the bench warrant and set aside the bond estreature. At the hearing on his motion, the following occurred:

THE COURT: All right, [defendant], it is my practice to concurrently hold a contempt hearing because of failure to appear is considered direct contempt if it's willful; at the same time we hear the issue about recalling the bench warrant since the issue is overlapping meaning if I hold you in contempt, I can sentence you independently to six months in the county jail at the same time I hold you without bond in that regard, so, just so you're aware of that, so, I will notice you that that's what we're doing at this time. Did you want to talk to your lawyer about that or do you understand that?
(TRANSCRIBER NOTE: Pause)
[DEFENSE COUNSEL]: We're ready, Your Honor.
THE COURT: You're ready to go forward? All right, so, at this time I will be conducting a contempt hearing at the same time we issue the-we address the issue of recalling the bench warrant and setting aside the estreature. If you raise your right hand, [defendant], the clerk will swear you.

The court then asked the defendant why he should not be held in contempt for failing to appear. The defendant explained there had been a misunderstanding. He showed up to court at 1:30 p.m. on September 28, 2016, only to discover the hearing was set the day before.

The defendant testified that he called the court clerk and his bondsman to confirm the court date on the morning of September 27. His bondsman told him the court date was September 28, and the clerk told him the hearing was at 1:30 p.m. The defendant also told the court he had a problem with a truck in the middle of the state that needed to be moved.

The court asked the defendant why the truck was relevant to his failure to appear. The defendant replied he did not know, but later said it was why he should not be held in contempt. The State advised the court that the defendant had nine prior felony convictions (seven from his juvenile record) and five prior failures to appear.

The defendant again explained he was provided the wrong date from his bondsman. He also advised his mother was in court and could corroborate his testimony. The court replied "I can't hear what he said from you; if you need to call [the bondsman] as a witness, he needs to be here now, period, and he is not, so, if you want to call the mother, call the mother." The defendant's mother then gave corroborating testimony.

After the parties concluded their arguments, the following occurred:

THE COURT: [Defendant] I don't believe you, period, end of story, so, I find you in contempt. On the issue of contempt as far as your punishment is concerned, you have the opportunity to present mitigating evidence, you did by your testimony, your calling witnesses as far as what your sentence should be. Do you wish to present any evidence on mitigation?
(TRANSCRIBER NOTE: Pause)
[DEFENSE COUNSEL]: No, Your Honor, we're just asking for leniency in that matter.
....
THE COURT: Having found you in contempt, [defendant], I will adjudicate you guilty of contempt and sentence you to 159 days in the county jail as punishment for the contempt. Your request to vacate the bench warrant and set aside the estreature is denied. You have 30 days to appeal the issue of the finding of the contempt in this matter, you have the right to an attorney and appeal in that regard. Thank you.

The court entered a judgment and sentence on direct criminal contempt, from which the defendant now appeals.

We review contempt orders for an abuse of discretion. Napoli v. Napoli , 142 So.3d 953, 954-55 (Fla. 4th DCA 2014).

Our supreme court has held that a party who is ordered by the trial court to appear at a scheduled hearing, but fails to do so, must be found in indirect criminal contempt, rather than in direct criminal contempt. State v. Diaz de la Portilla , 177 So.3d 965, 972 (Fla. 2015). The State agrees and so do we. The trial court erred in finding the defendant guilty of direct criminal contempt.

The defendant next argues the trial court failed to comply with numerous provisions of Florida Rule of Criminal Procedure 3.840. The State suggests the defendant waived this argument. See Rader v. State , 571 So.2d 556 (Fla. 4th DCA 1990). Here, the defendant did not specifically use the word "waive." But, after being put on notice of the trial court's intention to conduct a contempt hearing, the defendant appears to have agreed to proceed with the hearing. Nevertheless, we do not find a knowing, intelligent waiver to have occurred here.

"Only an express waiver will suffice to estop the aggrieved party from challenging the adjudication on appeal." Reins v. Johnson , 604 So.2d 911, 911 (Fla. 2d DCA 1992) (citing Persoff , 589 So.2d at 1007 ). We disagree that the defendant waived the arguments now made. He clearly asked about having the bondsman testify on his behalf, but had no time in which to do so.

Given the proverbial "rock and the hard place" in which the defendant was situated, it is not surprising he felt pressured into going forward with this impromptu hearing. See , e.g. , Gratz v. State , 84 So.3d 1219, 1221 n.3 (Fla. 3d DCA 2012) ("Given the limited choices of trial dates afforded the defense, and defense counsel's immediate clarification of his readiness and articulated reasons why a continuance was necessary, we reject the State's waiver argument.").

Indirect criminal contempt proceedings require strict adherence to rule 3.840. Levey v. D'Angelo , 819 So.2d 864, 869 (Fla. 4th DCA 2002). Failure to comply with the procedural requirements of rule 3.840 constitutes fundamental error. Baker v. Green , 732 So.2d 6, 7 (Fla. 4th DCA 1999). A party's failure to raise the issue of noncompliance with rule 3.840 will not bar full consideration of the issue on appeal. Persoff v. Persoff , 589 So.2d 1007, 1008-09 (Fla. 4th DCA 1991).

Indirect criminal contempt is a proceeding in which the individual is protected by the full panoply of due process rights. Martin v. State , 743 So.2d 591, 592 (Fla. 4th DCA 1999). This court has reversed an indirect criminal contempt charge where the defendant was not provided formal written notice of the charge. Martinez v. State , 976 So.2d 1222, 1223 (Fla. 4th DCA 2008).

Other districts have reached similar conclusions. See Maloy v. Judd , 209 So.3d 581 (Fla. 2d DCA 2015) (holding the trial court failed to comply with rule 3.840 by failing to issue a written order to show cause); J-II Investments, Inc. v. Leon County , 21 So.3d 86, 89 (Fla. 1st DCA 2009) (holding rule 3.840 requires the trial court to issue an order to show cause); De Castro v. De Castro , 957 So.2d 1258, 1260 (Fla. 3d DCA 2007) (reversing for failure to issue show cause order).

Our supreme court has interpreted Rule 3.840 to

require[ ] that the court issue an order to show cause with reasonable time allowed for preparation of the defense and further provides that the defendant is "entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense." These necessary procedures for indirect criminal contempt proceedings were not followed in this case.

Plank v. State , 190 So.3d 594, 607 (Fla. 2016) (emphasis added) (internal citations omitted). The court erred in expediting the process without providing the defendant with a rule to show cause.

Rule 3.840 also requires a reasonable time to prepare a defense "after service of the order on the defendant." Fla. R. Crim. P. 3.840. We have held that a two-day notice is insufficient time to prepare and defend against an indirect criminal contempt charge. Korn v. Korn , 180 So.3d 1122, 1124 (Fla. 4th DCA 2015) ; see also Russ v. State, 622 So.2d 501, 502 (Fla. 5th DCA 1993) (holding two days insufficient); Goral v. State, 553 So.2d 1282, 1283 (Fla. 3d DCA 1989) (holding two "actual working days notice" insufficient).

Here, the defendant received notice of the contempt hearing only moments before the final hearing took place. At the hearing, the defendant argued that his bail bondsman provided him the wrong date. The trial court suggested the defendant needed to have the witness present "now." The defendant was not provided with a reasonable time to prepare his defense.

In short, the trial court erred in failing to provide the defendant with notice, a reasonable time to prepare his defense, and compulsory process for the attendance of witnesses. See Fla. R. Crim. P. 3.840 ; Baker , 732 So.2d at 7. We therefore reverse and remand the case.

Reversed and remanded.

Warner and Damoorgian, JJ., concur.

      We find no merit in the defendant's last argument that the trial court failed to provide sufficient findings. Written findings of fact, setting forth the basis for indirect criminal contempt, are not required where oral findings are made on the record. Gidden v. State , 613 So.2d 457, 458 (Fla. 1993).


text:
    Anibal TOVAR, Appellant, v. Jennika RUSSELL, Appellee.
    No. 4D17-1055
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Brett C. Powell of The Powell Law Firm, P.A., Miami, for appellant.
    Neil Rose of Bernstein, Chackman, Liss, Hollywood, for appellee.
   May, J.

This case invokes a fundamental tenet of contract law: the symmetry needed between an offer and an acceptance to establish an enforceable agreement. The plaintiff appeals an order enforcing a settlement agreement. He argues the trial court erred in enforcing the agreement because there was no meeting of the minds. We disagree and affirm.

The plaintiff was injured in an automobile accident with the defendant. State Farm insured the defendant. The policy contained a $25,000 limit for bodily injury liability per person, a $50,000 limit for bodily injury per accident, and a $10,000 limit for property damage liability.

Before filing suit, plaintiff's counsel delivered a settlement offer to State Farm, requesting State Farm to: (1) tender its policy limits of $50,000; (2) reimburse the plaintiff an additional $10,044 for his property loss; (3) provide an affidavit from the defendant stating she had no other insurance coverage; and (4) provide a certified copy of the defendant's insurance policy. The settlement offer did not address a release.

After receiving the letter, State Farm accepted the offer and provided the plaintiff with all requested documents. State Farm enclosed a proposed release and requested it to be executed by the plaintiff and his mother. State Farm's letter stated:

Execution of the proposed release is not a condition of settlement. Furthermore, the proposed release is not intended to constitute a counter-offer to your settlement offer, or to add any new terms or conditions to your proposed settlement agreement.... If the proposed release is not acceptable to you, please contact me so that we can attempt to reach an agreement as to release language that is mutually acceptable and consistent with your settlement offer.

The plaintiff rejected State Farm's proposed release in a letter, claiming the release contained unusual terms that placed an undue burden on him. He requested State Farm provide a standard release. Although he did not specify the nature of his concern about the release, he suggests on appeal that the release contained uncommon restrictions on how the settlement funds could be spent.

State Farm responded with a letter enclosing two proposed releases: a revised version of the initial release, and a standard release drafted by the Trial Lawyers Section of the Florida Bar. The letter stated:

While it is our preference to have a release executed that memorializes the settlement of the bodily injury claims, execution of a release of the bodily injury claim is not a condition of settlement. Accordingly, if the enclosed releases are not acceptable to you, we withdraw our request for a release.

Plaintiff's counsel responded by returning the check and requesting State Farm to issue two new checks: one for $10,044 covering the plaintiff's property damage, and another for $25,000 issued to the plaintiff's mother. The letter instructed State Farm not to include the plaintiff's name on his mother's check, settlement draft, or release.

State Farm replied that it was under the impression that the settlement offer was already accepted, but indicated it was willing to modify the existing settlement agreement and reissue the checks in the manner the plaintiff desired. State Farm asked the plaintiff to clarify his position in light of the settlement agreement, and explain why he had not requested issuance of a new check in the previous correspondence.

The plaintiff responded by filing a complaint alleging negligence against the defendant and bad faith against State Farm. Shortly thereafter, the plaintiff voluntarily dismissed his claim against State Farm. The defendant filed an answer and affirmative defenses, alleging the plaintiff's action was barred by accord and satisfaction because a settlement had been reached between the parties. The defendant also moved to enforce the settlement, arguing State Farm accepted the plaintiff's offer by complying with its essential terms.

The plaintiff filed a memorandum of law in opposition to the motion, arguing there was no settlement agreement because there was no meeting of the minds between the parties. The trial court found the parties entered into a settlement agreement, and entered a final order granting the motion to enforce and dismissing the action.

From this order, the plaintiff now appeals.

The plaintiff argues there was no settlement agreement because State Farm did not accept the offer, but instead made a counteroffer by requesting a release with new, material terms that did not mirror the offer. State Farm responds that it accepted the offer by substantially complying with the offer's essential terms, creating a settlement agreement. It specifically indicated that the release was neither a condition of the settlement nor a counteroffer.

We review a trial court's findings to ensure they are supported by competent substantial evidence. Cheverie v. Geisser , 783 So.2d 1115, 1119 (Fla. 4th DCA 2001).

Settlement agreements are a favored method to conserve judicial resources and will be enforced whenever possible. Spiegel v. H. Allen Holmes, Inc. , 834 So.2d 295, 297 (Fla. 4th DCA 2002). Settlements are subject to the rules governing contract interpretation. Robbie v. City of Miami , 469 So.2d 1384, 1385 (Fla. 1985). "The acceptance of an offer which results in a contract must be absolute and unconditional, identical with the terms of the offer, and in the mode, at the place, and within the time expressly or impliedly stated within the offer." Grant v. Lyons , 17 So.3d 708, 710 (Fla. 4th DCA 2009).

Generally, an insurance company that accepts an offer can request the plaintiff to sign the "usual settlement documents." Id. at 711. But, where the release contains objectionable and unusual terms, there is no acceptance of the offer. Id. ; see also Peraza v. Robles , 983 So.2d 1189, 1190 (Fla. 3d DCA 2008).

Here, the plaintiff made a settlement offer demanding: (1) $60,044 for personal injury and property damage; (2) a certified copy of the insurance policy; and (3) an affidavit from the defendant indicating she had no other insurance coverage. State Farm responded by accepting the offer, and enclosing the requested sum, a certified copy of the defendant's policy, and the defendant's affidavit.

State Farm's letter mirrored the conditions of the offer. The letter enclosed a proposed release, but expressly stated it was not a condition of settlement. Based on the communication between the parties, the trial court found "State Farm clearly stated in correspondence that execution of its proposed release 'is not a condition of settlement' and stated that the proposed release 'is not intended to constitute a counter offer.' " The trial court held the parties entered into binding settlement that must be enforced. We agree with the trial court and affirm its decision.

In doing so, we acknowledge other cases where we and other courts have held the language of releases and other conditions required by insurance companies varied from the original offer preventing the requisite meeting of the minds. See, e.g. , Grant , 17 So.3d at 709 (requiring all settlement documents executed and all liens satisfied prior to disbursement of proceeds, and requiring the plaintiff to warrant that all hospital bills were fully paid); Cheverie , 783 So.2d at 1118 (reversing where an insurance company sent a letter with a check for the policy limits, but did not respond to objections concerning indemnification); Trout v. Apicella , 78 So.3d 681, 683 (Fla. 5th DCA 2012) (holding an insurer did not accept where the offer demanded a single bodily injury release without indemnification language, and the insurer responded with a release titled "release of all claims"); Peraza , 983 So.2d at 1190 (requiring the check to be held in escrow until the insurance company received an "unaltered release executed ... along with a copy of the U/M Carrier Authorization of Settlement and Waiver of Subrogation Rights.").

In each of those cases, the ongoing discussions concerning the language of the release and other conditions occurred before there was an offer, acceptance, and consideration for the agreement. Here, the offer was accepted by State Farm on identical terms and the agreement reached before any discussion concerning a release. In fact, State Farm specifically indicated that the release was not a condition of the settlement nor a counter-offer. Any discussion concerning the language of the release occurred after the settlement agreement had been made.

In short, the record contains competent substantial evidence to support the trial court's determination that the parties entered into an enforceable settlement agreement. We affirm.

Affirmed.

Warner and Damoorgian, JJ., concur.

      The appellant was the person injured in the accident, but his mother also claimed to have suffered severe emotional distress from witnessing her son's near fatal collision. For ease of reference, we will refer to a single plaintiff throughout the opinion.


text:
    James FORNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3854
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    James Forney, Raiford, pro se.
    No appearance required for appellee.
   Per Curiam.

We affirm the summary denial of appellant's successive rule 3.850 motion for post-conviction relief. We write only to address appellant's claim that the orders entered after he filed a motion to disqualify the trial judge were void. This claim is meritless because appellant failed to serve the motion on the judge. See Fla. R. Jud. Admin. 2.330(c), (j) ; Braddy v. State , 111 So.3d 810, 833 (Fla. 2012) ; Hedrick v. State , 6 So.3d 688, 693 (Fla. 4th DCA 2009).

Affirmed .

Warner, Ciklin and Kuntz, JJ., concur.


text:
    Marcel Antonio PHILMORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4602
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We reverse for resentencing on a corrected scoresheet without the inclusion of the ten juvenile adjudications which occurred more than five years before the primary offense. See Lyons v. State , 823 So.2d 250, 251 (Fla. 4th DCA 2002) ; Lawrence v. State , 590 So.2d 1068, 1069-70 (Fla. 5th DCA 1991).

We affirm the conviction on the remaining issues. See Pickles v. State , 976 So.2d 690 (Fla. 4th DCA 2008) ; Bozeman v.State , 698 So.2d 629, 630 (Fla. 4th DCA 1997).

Affirmed in part; reversed and remanded in part .

Gerber, C.J., Gross and Kuntz, JJ., concur.