author: Kelsey, J.

text:
    Michael H. BROOKS, Petitioner, v. Emily H. BROOKS, Respondent.
    No. 1D17-1395
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Daniel W. Uhlfelder and Nicola J. Pappas of Daniel W. Uhlfelder, P.A., Santa Rosa Beach, for Petitioner.
    Clay B. Adkinson of Adkinson Law Firm, LLC, DeFuniak Springs, for Respondent.
   Kelsey, J.

Petitioner, the husband in a pending dissolution proceeding, asks us to quash an order allowing Respondent wife to subpoena husband's medical, psychotherapist, pharmacy, and employment records from five non-parties. The order directs that the documents be provided to husband's counsel and then to the trial court for an in-camera inspection to determine what documents will be furnished to wife. We grant the petition in part and quash three of the five subpoenas.

I. FACTS

The parties lived together from 2005 to 2015, and were married in 2014. They had a daughter early in 2015. Husband filed for dissolution that September. The court ordered 50/50 timesharing and equal decision-making authority while the dissolution was pending.

Wife claims she left the marital home during the summer of 2015 after husband committed an act of domestic violence against her. She also claims husband was on disability for parts of 2011, 2012, and 2014 due to emotional instability. Her present concerns about his mental health stem from his lack of employment and his alleged angry, expletive-laced tirades when they exchange custody of their daughter. She does not, however, assert any issues with husband's care or parenting of the child.

Wife notified husband that she intended to subpoena his medical and personnel files to gather information about his past mental instability. Her subpoenas sought medical records from husband's psychotherapist, a medical facility where he was treated, and records from 2012 to the present from a pharmacy where he filled his prescriptions. She sought his entire personnel file from his 2013-2014 employer, and his application and offer letter from his 2015-2016 employer.

Wife argues that husband's mental health is relevant to child custody, which is why she is seeking his medical records from his psychotherapist and the organizations that participated in his treatment. She also claims that his personnel file from his 2013-2014 employer may contain parts of his medical record and his application for disability, also relevant to his mental health. She asserts that this personnel file could also be relevant to whether husband is voluntarily underemployed, which could affect his child support obligation. Finally, she argues that husband's application and offer letter from his 2015-2016 employer will be relevant to establishing his child support obligations because it will contain salary information.

II. CERTIORARI STANDARDS

Certiorari is the proper vehicle for reviewing a discovery order. Allstate Ins. Co. v. Langston , 655 So.2d 91, 94 (Fla. 1995). "[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Id. Because irreparable harm is a jurisdictional threshold for certiorari review, we must first determine whether a petitioner has made a prima facie showing that the order will cause such harm. O'Neill v. O'Neill , 823 So.2d 837, 839 (Fla. 5th DCA 2002) ; Morgan, Colling & Gilbert, P.A. v. Pope , 798 So.2d 1, 3 (Fla. 2d DCA 2001). If the petitioner demonstrates irreparable harm, we proceed to determine whether the order departed from the essential requirements of law. O'Neill , 823 So.2d at 839.

Not all erroneous discovery orders cause irreparable harm, but irreparable harm can come from discovery of "cat out of the bag" type information that "could be used to injure another person or party outside the context of the litigation." Allstate , 655 So.2d at 94. Because personnel files often contain sensitive, personal information that can be used to harm a party outside the context of the litigation, the discovery of irrelevant portions of the file can cause irreparable harm. See Alterra Healthcare Corp. v. Estate of Shelley , 827 So.2d 936, 945-46 (Fla. 2002). Therefore, courts should conduct in-camera inspections of personnel files to separate relevant information from irrelevant information, balancing the "right to privacy with the right to know." Id. ; see Walker v. Ruot , 111 So.3d 294, 294-96 (Fla. 5th DCA 2013).

The "[e]rroneous disclosure of medical records [also] qualifies as irremediable harm." Zarzaur v. Zarzaur , 213 So.3d 1115, 1117 (Fla. 1st DCA 2017). A person has the right to prevent the disclosure of "confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition." § 90.503(2), Fla. Stat. (2016). In a child custody dispute, the mental health of the parents is a factor to be considered, but it does not waive the statutory psychotherapist-patient privilege. Leonard v. Leonard , 673 So.2d 97, 99 (Fla. 1st DCA 1996). Nor can mere allegations of mental or emotional instability overcome the privilege. Id. A court may deem the privilege involuntarily waived only under "extreme circumstances." Zarzaur , 213 So.3d at 1119. "In O'Neill , for instance, an involuntary waiver occurred when the court found the existence of a 'calamitous event' after a mother threatened to kill herself and her children and then voluntarily committed herself to a psychiatric ward." Id. at 1119 (citing O'Neill , 823 So.2d at 840 ).

In Zarzaur , this Court quashed a discovery order requiring the petitioner to disclose her medical records from the previous seven years. We concluded the evidence did not establish a "genuine 'calamitous event.' " Id. at 1119. We also held in Zarzaur that the medical records must be relevant to the parent's present ability to parent. Id. at 1118-19. This is why "prior mental health of the parents is rarely relevant or material in a child custody case." Bruce G. Borkosky & Mark S. Thomas, Florida's Psychotherapist-Patient Privilege in Family Court , Fla. B.J., May 2013, at 35, 35.

Because the release of privileged and confidential records has the potential to create irreparable injury, Florida appellate courts require trial courts to conduct in-camera inspections of such records before they are released, to prevent improper and overbroad disclosures. Zarzaur , 213 So.3d at 1120 ; Walker , 111 So.3d at 296 ; see Alterra , 827 So.2d at 945-47.

III. ANALYSIS

In this case, wife sought the disclosure of several of husband's employment and medical records because they might contain information about his alleged emotional troubles and their relation to both his periodic unemployment and his present ability to parent the parties' child. Wife does not dispute that these records are privileged or confidential. She only argues that she demonstrated an adequate need to overcome those privacy interests. The court did not order direct disclosure of the requested records, but rather ordered that they be produced for an in-camera inspection-a requirement that we approve. Zarzaur , 213 So.3d at 1120.

A. Medical Records .

The records of husband's treating physician, the medical facility, and the pharmacy fall within the ambit of the statutory privilege, and that privilege is only waived under the extreme circumstances described in the case law. Wife has not alleged the occurrence of a calamitous event that would qualify as the extreme circumstance necessary to invade husband's privileged communications and documents related to the treatment of a mental health condition. In fact, wife was not aware of a single problem regarding husband's care of their child. She only alleged that he previously committed an act of domestic violence against her and would curse her out when they met to exchange custody. Neither of these claims qualifies as the type of extreme condition that would allow the disclosure of husband's medical records.

An in-camera inspection of husband's medical records would not cure wife's failure to establish the extreme circumstances required to overcome husband's privilege. The purpose of an in-camera inspection is to separate discoverable information from nondiscoverable information where the sensitivity of the information makes an erroneous disclosure harmful. Here, the court departed from the essential requirements of the law as it applies to the subpoenas for medical records, and disclosure of those records would create irreparable harm. Therefore, we quash the subpoenas issued to the Crane Center, Publix Pharmacy, and Tracey Novak.

B. Personnel Records .

Florida law cautions against allowing the discovery of entire personnel files, because of the potential of disclosing irrelevant information that could cause irreparable harm. Alterra , 827 So.2d at 944. Even when releasing only portions of the file, the court should balance the competing interests in the discovery of the information. Id. at 945. Given the nature of personnel files, an in-camera inspection is the best way to balance those interests and properly tailor the discovery. See id. at 945-46. In light of our ruling that wife has not demonstrated entitlement to husband's past medical records, any disclosure from husband's personnel files must be limited to financial information relevant to child support calculations. Because the trial court's order properly requires in-camera inspection of husband's personnel records, husband has not shown a present departure from the essential requirements of law as to this part of the order. We therefore deny the petition as it relates to husband's personnel records, without prejudice to husband's seeking future relief if appropriate after the trial court reviews the records and determines the scope of disclosure.

GRANTED in part and DENIED in part.

Lewis and M.K. Thomas, JJ., concur.

      "[D]iscovery in civil cases must be relevant to the subject matter of the case." Walker v. Ruot , 111 So.3d at 294, 295 (Fla. 5th DCA 2013).


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Gregory THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2148
    District Court of Appeal of Florida, Third District.
    Opinion filed February 28, 2018
    Gregory Thomas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   SUAREZ, J.

Gregory Thomas appeals the final order denying his Florida Rule of Criminal Procedure 3.800(a) Motion for Post-Conviction Relief. We reverse and remand for further proceedings.

Thomas was convicted of first degree murder, one count of robbery by snatching, and one count of grand theft auto. Counts two and three are third degree felonies; the sentence shows that he received a ten-year sentence for those counts. He correctly notes that the maximum statutory penalty for a third degree felony is five years. § 775.082(3)(d), Fla. Stat. (2007). Thomas filed a motion to correct these two sentences to reflect five years each. The trial court denied the petition for legal insufficiency. The State filed no response, and there is no sentencing transcript in the record.

In the absence of any explanatory record, the petition is sufficient to require a clarification of the written sentence. It is not clear from the written sentence on counts two and three how that ten year sentence applies to each third degree felony count. The written sentence does not explicitly state whether ten years for counts two and three are ten years per charge, or five years per charge (consecutive), or whether those sentences were enhanced in any way to result in a ten year total sentence.

On remand, the trial court must either enter a new order attaching documents that conclusively refute Thomas's claim or must otherwise grant the appropriate relief in resentencing Defendant to five years for each third degree felony conviction, noting whether those terms are to be served concurrently or consecutively.

Reversed and remanded.


author: PER CURIAM.

text:
    Valentin SPATARU, Appellant, v. Rick RAMSAY, etc., Appellee.
    No. 3D17-671
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Valentin Spataru, in proper person.
    Purdy, Jolly, Giuffreda & Barranco, P.A., and Gregory J. Jolly (Fort Lauderdale), for appellee.
    Before LAGOA, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Santa Rosa Cty. v. Administration Com'n, Div. of Admin. Hearings, 661 So.2d 1190, 1193 (Fla. 1995) (observing that "Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical 'state of facts which have not arisen' and are only 'contingent, uncertain, [and] rest in the future.' " (quoting LaBella v. Food Fair, Inc., 406 So.2d 1216, 1217 (Fla. 3d DCA 1981) ) (additional citations omitted) ) ); Behm v. Campbell, 925 So.2d 1070 (Fla. 5th DCA 2006) (holding that defendant's plea of no contest, accompanied by a withhold of adjudication of guilt, nevertheless established probable cause for the defendant's arrest and precluded a collateral challenge of the legality of that arrest by way of a civil suit for false arrest).


text:
    REGIONS BANK, etc., Appellant, v. AMERICAN LEISURE RESORTS, INC., et al., Appellees.
    Nos. 3D16-2538
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Garbett, Allen & Roza, P.A. and Philip A. Allen, III, David S. Garbett and Brian P. Yates, Miami, for appellant.
    León Cosgrove, LLC, Coral Gables and James R. Bryan, Miami, Scott B. Cosgrove, Coral Gables and Jordi C. Martinez-Cid ; Marcos D. Jimenez, P.A., and Marcos Daniel Jimenez ; Ross & Girten, and Lauri Waldman Ross, Miami, for appellee CDR Créances, S.A.S.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Cahill v. Regan, 5 N.Y.2d 292, 184 N.Y.S.2d 348, 157 N.E.2d 505 (N.Y. 1959) (holding that, in construing the meaning and coverage of a general release, the court must consider the controversy being settled and the purpose for which the release was actually given); Glassberg v. Lee, 82 A.D.3d 836, 918 N.Y.S.2d 554, 555 (2011) (holding: "While the meaning and scope of a release are determined within the context of the controversy being settled, a release cannot be read to cover matters which the parties did not intend to dispose of, and unless it is shown that a specified matter was in dispute at the time a purported release was given, it cannot be held to bar the releasor's rights as to that matter") (internal citations omitted); Wild v. Finger Lakes Racing Ass'n, 191 A.D.2d 995, 595 N.Y.S.2d 590, 591 (1993) (holding that "the law will not infer an intent for a party to release all persons, known and unknown, from all claims").


text:
    Jesse LOOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1245
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ, and LOGUE, JJ.
    ON MOTION TO VACATE OPINION FOR LACK OF JURISDICTION
   PER CURIAM.

We grant the appellant's motion to vacate opinion for lack of jurisdiction, vacate the prior per curiam affirmance issued on April 15, 2015, and issue the following opinion in its stead. See Del Risco v. State, 203 So.3d 909 (Fla. 3d DCA 2016), vacating for lack of jurisdiction, 207 So.3d 886 (Fla. 3d DCA 2015) (unpublished table decision).

Before trial, the defendant filed a pro se Notice of Waiver of Counsel that the trial court subsequently denied after a Faretta hearing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Specifically, the trial court found that the defendant was not competent to conduct his own defense at trial, and the defendant filed a pro se notice of appeal of that order. Counsel for the defendant was unaware of the appeal.

A criminal defendant generally does not have the right to an interlocutory appeal. Lopez v. State, 638 So.2d 931, 932 (Fla. 1994). The trial court's order at issue here "does not fall within any of the enumerated categories of appealable nonfinal orders found in Florida Rule of Appellate Procedure 9.130 or 9.140(b)." Accordingly, this Court lacked jurisdiction to rule on the defendant's interlocutory appeal. See Baez v. State, 985 So.2d 1223, 1224 (Fla. 3d DCA 2008) ; see also Rentas v. State, 133 So.3d 1117, 1117 (Fla. 4th DCA 2014) ("[The defendant] is not entitled to nonfinal review of the trial court's ruling on the self-representation issue."). We therefore vacate our decision of April 15, 2015.


author: ROTHENBERG, C.J.

text:
    Norman MESNIKOFF, Petitioner, v. FQ BACKYARD TRADING, LLC, Respondent.
    No. 3D17-2803
    District Court of Appeal of Florida, Third District.
    Opinion filed March 07, 2018
    Arthur J. Morburger, Miami, for petitioner.
    Chase Law, LLC, and Kenneth E. Chase (Washington, DC), for respondent.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

The petitioner, Norman Mesnikoff ("Mesnikoff"), seeks second-tier certiorari review of the circuit court appellate division's per curiam affirmance of a final judgment of eviction entered in favor of the respondent, FQ Backyard Trading, LLC ("Backyard Trading"). Because we conclude that the county court lacked subject matter jurisdiction to enter the final judgment of eviction, we grant the petition and quash the decision entered by the circuit court appellate division.

I. Factual and Procedural History

Mesnikoff and his girlfriend, Doris Dubler, began to live together in December 1989, after Dubler purchased a condominium titled solely in her name. On June 28, 2002, Dubler executed the Doris Dubler Revocable Trust ("revocable trust"), which provides that if Dubler is survived by Mesnikoff, the trustee shall pay off the existing mortgage on the condominium and permit Mesnikoff to reside in the condominium for the rest of his life so long as he pays the real estate taxes and maintenance.

On February 24, 2010, without Mesnikoff's knowledge, Dubler executed the First Amendment to the Doris Dubler Revocable Trust ("amended revocable trust"), which eliminated the above referenced provision, but added several provisions affecting Mesnikoff. First, the amended revocable trust provides that if Dubler is survived by Mesnikoff, the trustee shall pay Mesnikoff $25,000 from a specific brokerage account. Second, if the trust estate contains the condominium at the time of Dubler's death, the trustee shall sell the condominium as soon as practicable, and the proceeds from the sale shall be distributed to Dubler's then-living children in equal shares, per stirpes. Lastly, if Mesnikoff still resides in the condominium at the time of Dubler's death, Mesnikoff may occupy the condominium until the condominium is sold, provided that he pays the real estate taxes and the maintenance costs of the condominium.

Following Dubler's death in March 2016, Mesnikoff was notified that the successor co-trustees of the revocable trust, Steven Kugler and Shelley Shader (Dubler's children), were selling the condominium and that Mesnikoff would have to vacate the condominium upon its sale. On July 18, 2016, Kugler and Shader, individually and as co-trustees of the revocable trust, sold the condominium to Backyard Trading for $245,000.

After the condominium was sold to Backyard Trading, Mesnikoff refused to vacate the condominium, and Backyard Trading initiated the underlying action in county court against Mesnikoff. Backyard Trading filed a "Complaint for Possession of Real Property and Ejectment from Real Estate," which provided, in part, as follows: "NOW COMES Plaintiff [Backyard Trading] and hereby files this complaint for possession of real property and to eject the wrongful possessor of real property, Defendant Norman Mesnikoff ... under Florida Statute 66.021 ." (emphasis added). Backyard Trading requested that the county court enter a judgment "ejecting [Mesnikoff] from the [condominium] and restoring possession" of the condominium to Backyard Trading. Importantly, the complaint made absolutely no reference to a tenancy; a rental agreement; or Chapter 83, Part II, Florida Statutes (2016), which is known as the Florida Residential Landlord and Tenant Act ("the Act").

In response, Mesnikoff filed an answer and asserted several affirmative defenses. Mesnikoff explained that he initially did not know that the condominium was titled solely in Dubler's name, and from the date the condominium was purchased, he and Dubler opened a joint bank account to pay for all expenses associated with the condominium, including the mortgage, real estate taxes, insurance, maintenance, assessments, and improvements. Mesnikoff's federal pension and social security payments and Dubler's social security payment were deposited into the joint bank account. Mesnikoff also explained that after he learned that his name did not appear on the deed, Dubler promised him that he could live in the condominium for the rest of his life pursuant to the terms of the revocable trust. Mesnikoff became aware of the amended revocable trust following Dubler's death, and he asserted that Dubler's children fraudulently induced Dubler into changing the terms of the revocable trust. Based on these assertions, Mesnikoff claimed, in part, that Backyard Trading has unclean hands because its attorney had advance knowledge that Mesnikoff had been living in the condominium for twenty-seven years and was claiming that he had an equitable lien and ownership interest in the condominium, and that Mesnikoff had requested that the sale not take place or, in the alternative, that the sale proceeds be held in escrow until Mesnikoff's equitable lien rights had been resolved.

Following Mesnikoff's answer and affirmative defenses, Backyard Trading moved for summary judgment. In its motion, despite the absence of any allegations in its complaint concerning a residential tenancy, Backyard Trading stated that Mesnikoff is a "tenant who refuses to vacate the premises." (emphasis added).

During the hearing, the county court correctly recognized its lack of jurisdiction to adjudicate Backyard Trading's action for ejectment filed under section 66.021. See § 26.012(2)(f), Fla. Stat. (2016) (providing that circuit courts have "exclusive original jurisdiction" in "actions for ejectment"). When addressing the county court's concern relating to subject matter jurisdiction, Backyard Trading's counsel announced that he was dismissing the ejectment action and was proceeding solely on a claim for "possession," arguing that the instant case involves "a landlord-tenant issue." The county court continued to question whether it had subject matter jurisdiction, and it then reserved ruling and encouraged the parties to come to an agreement.

After the parties failed to enter into a settlement, the county court entered an order granting Backyard Trading's motion for summary judgment. Thereafter, the county court entered a final judgment in favor of Backyard Trading on what the county court called a "Complaint for Eviction," which entitled Backyard Trading to recover possession of the condominium from Mesnikoff.

Mesnikoff then appealed the judgment of eviction entered by the county court to the circuit court appellate division, arguing that the county court lacked subject matter jurisdiction. The circuit court, sitting in its appellate capacity, entered a per curiam affirmance. Mesnikoff's second-tier petition for certiorari review followed.

II. Analysis

"The standard governing the disposition of a petition for second-tier certiorari in a district court is narrow: '[T]he district court must determine whether the decision of the circuit court ... is a departure from the essential requirements of law resulting in a miscarriage of justice.' " State, Dep't of Highway Safety & Motor Vehicles v. Fernandez, 114 So.3d 266, 269-70 (Fla. 3d DCA 2013) (quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 725 (Fla. 2012) ). The circuit court's decision departs from the essential requirements of law where the circuit court fails to afford procedural due process or fails to apply the correct law. Nader, 87 So.3d at 722-23 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla. 1995) ). In the instant case, Mesnikoff does not argue that the circuit court appellate division did not afford him procedural due process. Therefore, the sole issue before this Court is whether the circuit court failed to apply the correct law, resulting in a miscarriage of justice.

In his petition for second-tier certiorari review, Mesnikoff argues that the county court lacked subject matter jurisdiction, and therefore, the circuit court failed to apply the correct law when affirming the final judgment entered by the county court. We agree, and therefore, we grant the petition and quash the circuit court's appellate decision.

During the summary judgment hearing, Backyard Trading realized that the county court did not have subject matter jurisdiction to adjudicate its action for ejectment. Backyard Trading then led the trial court astray by characterizing its complaint as a two-count complaint-(1) ejectment under section 66.021, and (2) possession-and by announcing that it was voluntarily dismissing the ejectment action and proceeding solely under its count for "possession." In making this argument, although Backyard Trading's complaint does not indicate in any fashion that Mesnikoff was a tenant under the Act, Backyard Trading informed the trial court that the case involved a "landlord-tenant issue." Thereafter, the trial court entered a final judgment on what the county court called Backyard Trading's "Complaint for Eviction."

Our review of the complaint clearly indicates that Backyard Trading pled only one count-ejectment under section 66.021. Specifically, Backyard Trading requested that the county court enter a judgment "ejecting [Mesnikoff] from the [condominium] and restoring possession" of the condominium to Backyard Trading. Therefore, once Backyard Trading voluntarily dismissed its sole count for ejectment, the trial court lacked subject matter as there were no remaining claims to adjudicate. As the county court lacked subject matter jurisdiction, the decision of the circuit court, sitting in its appellate capacity, affirming the county court's judgment of eviction constitutes a departure from the essential requirements of law resulting in a miscarriage of justice. See Stel-Den of Am., Inc. v. Roof Structures, Inc., 438 So.2d 882, 884 (Fla. 4th DCA 1983) (holding that a court's "incorrect decision on subject matter jurisdiction ... constitutes a departure from the essential requirements of law, sufficient to justify invocation of [second-tier] certiorari jurisdiction"). Accordingly, we grant Mesnikoff's second-tier certiorari petition and quash the per curiam affirmance issued by the circuit court appellate division.

Even if Backyard Trading did attempt to include in its complaint a second count for possession under section 83.59(1) of the Act, which it did not, we would nonetheless conclude that the county court lacked subject matter jurisdiction to enter a final judgment for eviction and possession because a landlord-tenant relationship did not exist. And as previously stated, a court's "incorrect decision on subject matter jurisdiction ... constitutes a departure from the essential requirements of law, sufficient to justify invocation of [second-tier] certiorari jurisdiction." Stel-Den of Am., 438 So.2d at 884.

The Act "applies to the rental of a dwelling unit." § 83.41, Fla. Stat. (2016). Although we agree that Backyard Trading is a "landlord" under the Act, § 83.43(3), Fla. Stat. (2016) (defining "landlord" as "the owner or lessor of a dwelling unit") (emphasis added), Mesnikoff is not a "tenant" under the Act because there was no rental agreement. See § 83.43(4), Florida Statutes (2016) (defining "tenant" as "any person entitled to occupy a dwelling unit under a rental agreement"); see also Toledo v. Escamilla, 962 So.2d 1028, 1030 (Fla. 3d DCA 2007) (holding that, because the party occupying the dwelling unit "is not a 'tenant' as defined by the Act, the county court lacked subject matter jurisdiction"). Thus, section 83.59(1) of the Act does not apply.

In addition, we note that, based on his answer and affirmative defenses, which clearly indicated that Mesnikoff was not in possession of the condominium as a "tenant" and was claiming an equitable lien and ownership interest in the condominium, ejectment, not eviction, was the proper remedy. See Toledo, 962 So.2d at 1030 ("We also find that when [the party in possession of the dwelling unit] asserted in her answer that she was not a tenant and that she had an equitable interest in the property, ejectment, not eviction, was the proper remedy, and the matter should have been transferred to the circuit court [because] [t]he circuit court has 'exclusive original jurisdiction' over ejectment actions"); see also Ward v. Estate of Ward, 1 So.3d 238, 239 (Fla. 1st DCA 2008) (concluding that "the circuit court departed from the essential requirements of law in affirming the county court's exercise of jurisdiction" in a complaint for eviction where the defendants in the eviction action "asserted a claim to an equitable interest in the property they inhabited, which should have been resolved by the circuit court," noting that "circuit courts have exclusive original jurisdiction in ejectment actions"). Accordingly, we would have also granted Mesnikoff's second-tier certiorari petition for these separate reasons.

Petition granted; decision of circuit court appellate division quashed.

      Chapter 66 of the Florida Statutes pertains solely to actions for ejectment.

      The trial court entered a memo of disposition reflecting that Backyard Trading dismissed its ejectment count and was going forward only as to its count for "possession."

      Although the circuit court, sitting in its appellate capacity, issued a per curiam affirmance in the present case, Mesnikoff was not precluded from seeking second-tier certiorari review in this Court. See Auerbach v. City of Miami, 929 So.2d 693, 694-95 (Fla. 3d DCA 2006) (exercising jurisdiction to review a circuit court appellate division per curiam affirmance where "[f]ailing to do so ... would ... [result in] an unjustified approval of the obvious failure of the circuit court to apply the correct law and the resulting 'miscarriage of justice' which occurred below") (citations omitted and footnote omitted); Rich v. Fisher, 655 So.2d 1149, 1150 (Fla. 4th DCA 1995) (noting that "[c]ounty court litigants ... are not precluded from seeking review in the district court of appeal when the circuit court affirms without opinion").

      Even if Backyard Trading had not voluntarily dismissed its action for ejectment, the trial court would have nonetheless lacked subject matter jurisdiction because, as stated early, circuit courts have "exclusive original jurisdiction" in "actions for ejectment." § 26.012(2)(f).


text:
    Tyree GLAND, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1802
    District Court of Appeal of Florida, Second District.
    Opinion filed March 7, 2018
    Tyree Gland, pro se.
   PER CURIAM.

Tyree Gland appeals the order treating his petition for writ of habeas corpus as a motion filed under Florida Rule of Criminal Procedure 3.850 and dismissing it as untimely. We reverse and remand for further proceedings.

In 2010, a jury found Gland guilty of second-degree murder, and the trial court found him guilty after a nonjury trial of being a delinquent in possession of a firearm. The trial court sentenced Gland to concurrent terms of life imprisonment for the murder count and fifteen years' imprisonment for the delinquent in possession of a firearm count. This court affirmed Gland's convictions and sentences for both offenses by written opinion. Gland v. State, 72 So.3d 216, 217 (Fla. 2d DCA 2011) ( Gland I ). In 2014, the supreme court quashed this court's opinion by unpublished order and remanded for reconsideration pursuant to Haygood v. State, 109 So.3d 735, 737 (Fla. 2013) (holding that the fundamental error of giving an erroneous manslaughter by act jury instruction is not cured by giving a manslaughter by culpable negligence instruction when the evidence only supports manslaughter by act and the defendant is convicted of second-degree murder). Gland v. State, No. SC14-29, 2014 WL 2616898, at *1 (Fla. June 11, 2014) ( Gland II ). Upon remand, this court reversed Gland's conviction of second-degree murder and remanded for a new trial. Gland v. State, 166 So.3d 900, 902 (Fla. 2d DCA 2015) ( Gland III ). The mandate issued on July 6, 2015.

On February 28, 2017, Gland filed a petition for writ of habeas corpus in which he argued that he did not waive his right to a jury trial for the charge of delinquent in possession of a firearm and that his bench trial violated his Sixth Amendment rights. Because Gland's petition challenged his conviction, the postconviction court correctly treated it as a motion filed under rule 3.850. The court then dismissed the motion as untimely, finding that Gland's conviction and sentence for the delinquent in possession of a firearm count became final when the mandate issued for Gland I. The court noted, citing Gland III, that when the supreme court "remanded for proceedings consistent with Haygood, [Gland's] conviction for [delinquent in possession of a firearm] was not disturbed."

The postconviction court's reasoning was incorrect-it is the conclusion of the direct appeal process, when jurisdiction to entertain a postconviction motion returns to the sentencing court, that starts the two-year time limitation of rule 3.850, Anton v. State, 976 So.2d 6, 8 (Fla. 2d DCA 2008) (quoting Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987) ), not whether a conviction or sentence is "disturbed" before that process ends. This fact is illustrated by several cases.

In Snipes v. State, the supreme court affirmed Snipes' first-degree murder conviction but reversed his death sentence and remanded for the trial court to impose a sentence of life imprisonment. 843 So.2d 1043, 1043-44 (Fla. 2d DCA 2003). The court issued its mandate on May 24, 1999. Id. at 1044. The trial court imposed a life sentence, and Snipes appealed. Id. This court affirmed and issued its mandate on January 16, 2001. Id. Snipes then filed a rule 3.850 motion on January 4, 2002. Id. The postconviction court denied Snipes' motion as untimely, finding that the judgment Snipes attacked became final when the supreme court issued its mandate on May 24, 1999. Id.

This court reversed based on the plain language of rule 3.850(b) providing a time limit of two years "after the judgment and sentence become final." Id. (emphasis omitted); accord Breland v. State, 58 So.3d 326, 327 (Fla. 1st DCA 2011) ("[T]he two-year period in the rule does not commence until both the conviction and the sentence become final, which occurs upon issuance of the mandate in the direct review proceedings."); Pierce v. State, 875 So.2d 726, 729 (Fla. 4th DCA 2004) (agreeing with Snipes ). While Snipes' conviction became final in 1999, his sentence did not become final until this court issued its mandate affirming his sentence on January 16, 2001. See Snipes, 843 So.2d at 1044. Thus, his January 4, 2002, motion was timely. See id.; accord Gisi v. State, 135 So.3d 493, 495 (Fla. 2d DCA 2014).

This court cited Snipes in Skeens v. State, 853 So.2d 494, 495 (Fla. 2d DCA 2003). Skeens was convicted of committing sexual battery and lewd or lascivious act upon a child. Id. at 494. We affirmed the sexual battery conviction but reversed the lewd or lascivious act conviction and remanded for resentencing. Id. (citing Skeens v. State, 733 So.2d 1094, 1096 (Fla. 2d DCA 1999) ( Skeens I ) ). After he was resentenced, Skeens again appealed, and this court remanded to the sentencing court for reconsideration under intervening case law. Id. (citing Skeens v. State, 779 So.2d 418 (Fla. 2d DCA 2000) ( Skeens II ) ). The sentencing court resentenced Skeens for the sexual battery, but he did not appeal. Id. On October 21, 2002, he filed a rule 3.850 motion. Id. The postconviction court found that Skeens' motion was untimely because it was filed more than two years after the sexual battery conviction became final upon issuance of this court's mandate for Skeens I in 1999. Id.

This court reversed, holding that Skeens' postconviction motion was timely because "the two-year time limitation of rule 3.850(b) cannot begin to run until the direct appeal process has concluded." Id. at 495 (citing Snipes, 843 So.2d at 1044 ). The opinion explained that

since [Skeens'] conviction was affirmed by his initial direct appeal ( Skeens I ) and he did not appeal the sentence imposed after his second direct appeal ( Skeens II ), the direct appeal process ended and his judgment and sentence became final on December 13, 2000, when the time expired for the filing of a direct appeal from his second resentencing. See McGee v. State, 684 So.2d 241, 242 (Fla. 2d DCA 1996) (holding that a judgment and sentence which are not appealed become final when "the thirty-day period for taking an appeal has expired").

853 So.2d at 495.

In the present case, the direct review proceedings concluded on July 6, 2015, when the mandate issued for this court's opinion in Gland III reversing Gland's conviction of second-degree murder and remanding for a new trial on that count only. Gland's rule 3.850 motion filed on February 28, 2017, was therefore timely.

Accordingly, we reverse the postconviction court's order dismissing Gland's rule 3.850 motion as untimely and remand with directions for the court to address the motion on its merits.

Reversed and remanded.

CASANUEVA, SILBERMAN, and BADALAMENTI, JJ., Concur.

      There is a reporter citation for this case, Gland v. State, 145 So.3d 824 (Fla. 2014), but it is a table decision. The unpublished order can only be found on Westlaw.

      In addition, we note that when the supreme court granted Gland's petition for review, it quashed this court's "decision in this case" and remanded the case for reconsideration. Gland II, 2014 WL 2616898, at *1. The quashed decision affirmed Gland's convictions and sentences for both offenses. Gland I, 72 So.3d at 216. Thus, the language of the opinion itself reveals that Gland's conviction and sentence for the delinquent in possession of a firearm count were no longer final as a result of Gland II.


author: EMAS, J.

text:
    I.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1368
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   EMAS, J.

I.B. was charged with the offense of resisting an officer without violence. At the adjudicatory hearing, following the State's presentation of its case, I.B. moved for judgment of dismissal, contending that the police officer had no founded suspicion to detain I.B. and that, therefore, the State had failed to establish an element of the offense. The trial court denied the motion and, following the conclusion of the hearing, found I.B. delinquent of the charged offense.

We affirm the trial court's denial of the judgment of dismissal and affirm the order finding I.B. delinquent of the offense of resisting an officer without violence. We review de novo the trial court's denial of a judgment of dismissal, D.L. v. State, 138 So.3d 499 (Fla. 3d DCA 2014), and consider the evidence presented, and the reasonable inferences therefrom, in a light most favorable to the State, to determine whether substantial competent evidence supports the trial court's determinations. K.S.H. v. State, 56 So.3d 122 (Fla. 3d DCA 2011).

In order to sustain a charge of resisting an officer without violence, the State must prove that the officer was engaged in the lawful execution of a legal duty and that the defendant's actions obstructed, resisted or opposed the officer in the performance of that duty. O.B. v. State, 36 So.3d 784 (Fla. 3d DCA 2010) ; Fla. Std. J. Inst. (Crim.) 21.2 (2016) (providing that the State must prove, inter alia , the officer "was engaged in the execution of legal process" or "lawful execution of a legal duty"). Importantly, the "element of a lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrantless arrest. Otherwise, the individual has a right to ignore the police and go about his business." J.W. v. State, 95 So.3d 372, 378 (Fla. 3d DCA 2012) (additional citations omitted). Stated another way, if the officer does not have a founded suspicion to stop an individual, that individual does not commit the offense of resisting an officer without violence by simply walking away from the officer or by ignoring his command to stop.

Having reviewed the record in the instant case, we conclude that the State presented competent substantial evidence to support the trial court's determination that the police officer had a founded suspicion that I.B. had engaged in, was engaging in, or was about to engage in criminal activity, either directly (possessing marijuana) or as a principal (by acting as a lookout for others who were about to engage in vandalism by marking city-owned property with graffiti). Under these circumstances, and considering the observations made by the officer, the trial court properly determined there was founded suspicion to temporarily detain I.B. and, in resisting the officer's valid attempt to do so, I.B. committed the delinquent act of resisting an officer without violence.

Affirmed.


text:
    Ezequiel and Raquel MUHTAR, Appellants, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., successor in interest to Bank of America, N.A., and New Day Miami, LLC, Appellees.
    No. 3D17-387
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Claudio R. Cedrez Pellegrino, for appellants.
    Storey Law Group, P.A., and Christian J. Gendreau (Orlando); Burr & Forman LLP and Jacqueline Simms-Petredis and Adam J. Knight (Tampa), for appellee Wilmington Savings Fund Society, FSB; Richard L. Barbara, for appellee New Day Miami, LLC.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Ezequiel and Raquel Muhtar appeal two orders: an order denying their second amended motion to vacate a final judgment of foreclosure and to cancel sale; and an order amending the final judgment to correct a scrivener's error.

Upon consideration of appellee Wilmington Savings' proper concession of error, and our independent review, we reverse the order denying the Muhtars' motion to vacate the final judgment of foreclosure and remand with instructions to enter an order vacating the final judgment and the certificates of sale and title. See Miami-Dade Cty. v. Cribbs, 937 So.2d 1215, 1217 (Fla. 3d DCA 2006) (holding "notice to the client is not an acceptable substitute for the required notice to opposing counsel" (quoting Gulliver v. Texas Commerce Bank, 787 So.2d 256, 258 (Fla. 5th DCA 2001) ) ). See also Fla. R. Jud. Admin. 2.505(e) (providing in pertinent part: "An attorney may appear in a proceeding in any of the following ways: (1) By serving and filing, on behalf of a party, the party's first pleading or paper in the proceeding.")

We take this moment, however, to acknowledge the law firm of Burr & Forman, LLP, and its attorneys, Jacqueline Simms-Petredis, Esquire and Adam J. Knight, Esquire for the concession of error they filed. The firm entered this appeal late in the game, on behalf of Wilmington Savings Fund Society, FSB, a successor in interest to the original appellee (and plaintiff below), Bank of America. By the time Burr & Forman filed its notice of appearance on behalf of Wilmington Savings, the answer brief had already been filed and served by counsel for the predecessor in interest, Bank of America, and the Muhtars' reply brief had also been filed and served.

Wilmington Savings' attorneys could simply have permitted the appeal to proceed in due course, resting mutely upon the brief already filed, and arguments already advanced, by predecessor counsel. They did not. Instead, after reviewing the briefs, the issues on appeal and the case law, they determined that the arguments advanced for affirmance could not be supported and that reversal was warranted, thus leading to their filing of the concession of error. Such candor and professionalism is not only to be encouraged, but recognized as well.

The order denying the Muhtars' motion to vacate final judgment of foreclosure is reversed and remanded with instructions to enter an order vacating the final judgment and the certificates of title and sale, and for further proceedings consistent with this opinion.

      See American Banker's Life Assur. Co. of Fla. v. Williams, Salomon, Kanner & Damian, 399 So.2d 365 (Fla. 3d DCA 1981).

      As indicated in their notice of appearance, the full description of the successor in interest is: Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity, but solely as Trustee for BCAT 2014-12TT, successor in interest to Bank of America, N.A.

      Appellee New Day Miami, LLC (the third-party purchaser at the foreclosure sale) also participated in this appeal and filed an answer brief. New Day Miami also filed a response in opposition to Wilmington Savings' concession of error.

      Because this opinion directs the trial court to vacate the final judgment, we dismiss as moot the Muhtars' appeal of the order amending the final judgment to correct scrivener's error.


text:
    Lazaro PARRONDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1939
    District Court of Appeal of Florida, Third District.
    Opinion filed March 07, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   ROTHENBERG, C.J.

Lazaro Parrondo ("the defendant") appeals his conviction for exploitation of an elderly person or disabled adult based on an alleged jury instruction error. Specifically, the defendant claims that the trial court gave a jury instruction that omitted an element of the charged offense; the omitted element was an element disputed at trial; and although the defendant's trial counsel failed to object to the defective jury instruction, the error was fundamental; and thus, he is entitled to a new trial. Alternatively, the defendant argues that his trial counsel's failure to object to the defective jury instruction demonstrates ineffective assistance of counsel on the face of the record. We agree with the defendant that the jury instruction given was defective, and the defective jury instruction constitutes fundamental error because the instruction omitted a necessary element of exploitation of an elderly person or disabled adult; the omitted element was a disputed element at trial; and the omission of this element improperly reduced the State's burden of proof. However, as will be more fully explained below, the remedy in this case is not a new trial.

Summary of the Case

The exploited elderly person or disabled adult in this case is the defendant's aunt, Rosa O. Montero, who has an eighth-grade education, does not speak English, and was seventy-nine years old on the date of the offense. The State presented evidence at trial that the defendant and his girlfriend moved into Ms. Montero's home and began living with her in 2008. Ms. Montero owned her home since 1967, and in 2008, there was no mortgage on the property.

On June 10, 2008, shortly after moving into his aunt's home, the defendant brought Ms. Montero to a title company where she signed papers written in English establishing a reverse mortgage on her home and providing a lump-sum payment to Ms. Montero in the amount of $154,528.23, a payment which was wired to Ms. Montero's account. The defendant, who was unemployed and had obtained control over Ms. Montero's checkbook, used the funds from the reverse mortgage to purchase a 2006 Cadillac Escalade for $65,000 on July 2, 2008, and a 2006 Mercedes-Benz 350 on March 13, 2009.

The State presented evidence that, at the time Ms. Montero entered into the reverse mortgage, she lacked the capacity to understand or consent to the transaction. Ms. Montero was diagnosed with dementia in 2005, and her neurologist testified that when Ms. Montero executed the reverse mortgage in 2008, she was not capable of understanding the transaction.

The defendant, however, contended that Ms. Montero possessed the capacity to consent and did consent to the transactions. Thus, Ms. Montero's mental capacity and the defendant's knowledge of Ms. Montero's mental capacity were disputed issues at trial.

The Defective Jury Instruction

Section 825.103, Florida Statutes (2008), titled "Exploitation of an elderly person or disabled adult, penalties," provides as follows:

(1) "Exploitation of an elderly person or disabled adult" means:
(a) Knowingly, by deception or intimidation , obtaining or using, or endeavoring to obtain or use, an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
1. Stands in a position of trust and confidence with the elderly person or disabled adult; or
2. Has a business relationship with the elderly person or disabled adult; or
(b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent .
(2)(a) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(emphasis added).

Thus, in 2008, the State could prove a section 825.103 exploitation of an elderly person or disabled adult violation by either establishing that: (1) the defendant, who was in a position of confidence and trust, knowingly deceived or intimidated the victim ; or (2) the defendant knew or should have known that the victim lacked the capacity to consent . The State proceeded under the second theory-that the defendant knew or should have known that Ms. Montero lacked the mental capacity to enter into the reverse mortgage and to consent to the defendant's use of the reverse mortgage proceeds for his own benefit. The jury, however, was not instructed that, in order to find the defendant guilty of exploitation of an elderly person or disabled adult, the State was required to prove beyond a reasonable doubt that the defendant knew or should have known that Ms. Montero lacked the capacity to consent. Instead, the jury instruction, was as follows:

EXPLOITATION OF AN ELDERLY PERSON OR A DISABLED ADULT

To prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following four elements beyond a reasonable doubt:

1. Rosa O. Montero was an elderly person or a disabled adult.
2. Lazaro Parrondo knowingly obtained or used or endeavored to obtain or use Rosa O. Montero's funds, assets, or property.
3. Lazaro Parrondo did so with the intent to
a. temporarily or permanently deprive Rosa O. Montero of the use, benefit, or possession of her property;
b. benefit someone other than Rosa O. Montero.
4. At the time, Lazaro Parrondo stood in a position of trust and confidence or had a business relationship with Rosa O. Montero.
If you find Lazaro Parrondo guilty of Exploitation of an Elderly Person or a Disabled Adult, you must then determine whether the State has proven beyond a reasonable doubt that:
a. the funds, assets, or property involved in the exploitation of the elderly person or disabled adult are valued at $50,000 or more;
"Disabled adult" means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person's ability to perform the normal activities of daily living.
"Elderly person" means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.
"Endeavor" means to attempt or try.
"Lacks capacity to consent" means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the elderly person's disabled adult's person or property.

This instruction, unfortunately, was defective under both theories of prosecution under the statute-the State's theory under section 825.103(1)(b) (that the defendant obtained the property when he knew or should have known Ms. Montero lacked the capacity to consent), or the uncharged theory not relied on by the State under section 825.103(1)(a) (that the defendant stood in a position of trust with Ms. Montero or based on his business relationship with Ms. Montero, knowingly, by deception or intimidation, obtained Ms. Montero's property). Specifically, under section 825.103(1)(b), the instruction omitted the element that the defendant knew or should have known Ms. Montero lacked the capacity to consent, and under section 825.103(1)(a), the instruction omitted the element that the defendant knowingly by deception or intimidation obtained Ms. Montero's property. Instead, the instruction conflated the two theories of prosecution but was deficient under either theory.

Fundamental Error

The defendant's trial counsel failed to object to the defective jury instruction. Thus, the defendant must establish that the error was fundamental error. An error is deemed fundamental "when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process." J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998). The failure to instruct the jury on an element of a crime is fundamental error if the element was disputed at trial. Reed v. State, 837 So.2d 366, 369-70 (Fla. 2002), see also Garcia v. State, 901 So.2d 788, 794 (Fla. 2005) (holding that when an essential element of a crime is in dispute at trial, such as the knowledge of the illicit nature of the substance in a possession case, the failure to instruct the jury on that element is fundamental error).

The defendant disputed at trial that Ms. Montero was deceived or that she lacked the capacity to consent. Thus, the omission of the elements that Ms. Montero lacked the capacity to consent and that the defendant knew or should have known that she lacked the capacity to consent were material to what the jury was required to consider and to what the State was required to prove in order to convict. See State v. Delva, 575 So.2d 643, 645 (Fla. 1991) (holding that an erroneous jury instruction constitutes fundamental error "when the omission is pertinent or material to what the jury must consider in order to convict") (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982) ). We, therefore, conclude that the defective instruction given in the instant case constitutes fundamental error.

The Remedy

Although the giving of an erroneous or defective jury instruction that omits a disputed element of the offense generally necessitates a new trial, a new trial is not required in this case. That is because the defendant was also charged with grand theft in the second degree, the jury found the defendant guilty of grand theft in the second degree, and grand theft in the second degree is a lesser included offense of exploitation of an elderly person or disabled adult. See Fla. Std. Jury Instr. (Crim.) 14.9 (listing grand theft as a category two lesser included offense of exploitation of the elderly); Rich v. State, 823 So.2d 208, 208-09 (Fla. 2d DCA 2002) (finding that convictions for both exploitation of the elderly and grand theft based on the taking of the same property violates double jeopardy because, although exploitation of the elderly contains an element not found in the grand theft statute, the grand theft statute does not contain any element not included in the exploitation statute); Thomason v. State, 790 So.2d 1189, 1190 (Fla. 4th DCA 2001).

The proper remedy in this case is, therefore, the entry of a verdict for grand theft in the second degree and the correction of the judgment and sentence to reflect a conviction for grand theft in the second degree as a lesser included offense of exploitation of an elderly person or disabled adult. See Jaimes v. State, 51 So.3d 445, 451 (Fla. 2010) (noting that under section 924.34 of the Florida Statute, "when an appellate court vacates a conviction but determines that the evidence establishes the defendant's guilt as to a lesser included offense, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the ... lesser included offense.") (quotation omitted).

Conclusion

Although the defendant's trial counsel failed to object to the defective exploitation of the elderly jury instruction, we conclude that the omission of the element that Ms. Montero lacked the capacity to consent constitutes fundamental error because that element was a disputed issue at trial. However, because the State charged the defendant with grand theft based on the same conduct, the jury found the defendant guilty beyond a reasonable doubt of grand theft in the second degree, and grand theft in the second degree is a lesser included offense of exploitation of an elderly person or disabled adult, we reverse the conviction and judgment for exploitation of an elderly person or disabled adult and remand for the entry of a conviction and judgment for the lesser included offense of grand theft in the second degree.

Reversed and remanded with instructions.

      Section 825.103 has since been amended. In 2009, the statute was amended to add a third way to prove the offense, not applicable here. In 2014, the statute was amended to eliminate the element of "knowingly, by deception or intimidation" under section 825.103(1)(a), and in 2015, the Florida Supreme Court amended the jury instructions to reflect this change.


author: LUCK, J.

text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Nelson SILVA and Yesenia Silva, Appellees.
    No. 3D16-1936
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018 Rehearing Denied April 18, 2018
    Akerman LLP, Nancy M. Wallace (Tallahassee), William P. Heller and Marc J. Gottlieb (Fort Lauderdale), and Eric M. Levine (West Palm Beach), for appellant.
    Corona Law Firm, P.A., Ricardo Corona, and Ricardo M. Corona, for appellees.
    Before SUAREZ, SALTER and LUCK, JJ.
   LUCK, J.

Nationstar Mortgage, LLC appeals the trial court's involuntary dismissal in favor of borrowers Nelson and Yesenia Silva entered after Nationstar's case-in-chief on its residential foreclosure complaint. The trial court granted involuntary dismissal because Nationstar's default letter did not comply with paragraph twenty-two of the mortgage. Because we conclude the default letter complied with the mortgage, we reverse the involuntary dismissal and remand for further proceedings.

Factual Background and Procedural History

The Silvas stopped paying the mortgage on their Miami-Dade home in February 2009. Nationstar sent a letter to the Silvas on April 6, 2009 letting them know about the default, the amount they owed, and how to cure it. Still, the Silvas did not pay their mortgage, and hadn't paid by the time of the bench trial.

Nationstar, on March 21, 2014, filed a foreclosure complaint against the Silvas. The complaint alleged that the Silvas defaulted on the promissory note by failing to pay their mortgage on February 1, 2009. The Silvas moved to dismiss the complaint because the foreclosure was barred by the five-year statute of limitations. The trial court dismissed the complaint, but allowed an amendment by interlineation "to allege a default date within 5 years of filing the complaint." This order was entered on September 17, 2014. Nationstar filed a notice of amendment by interlineation on October 3, 2014, amending the complaint to read: "Defendant(s) has defaulted under the Note and Mortgage by failing to pay the payment due March 21, 2009, and all subsequent payments."

The bench trial was held on February 3, 2016. Only one witness testified: Ilosh Azarsepandan, a representative for Nationstar. Nationstar introduced evidence that it sent the default letter on April 6, 2009, and the Silvas had not made payments since the February 1, 2009 default.

At the close of Nationstar's case, the Silvas moved for involuntary dismissal arguing that the complaint failed to state a cause of action because the default letter did not correspond to the default date in the amended complaint, March 21, 2009. The trial court requested memoranda of law on whether Nationstar was required to provide a new notice of default for the March 21, 2009 date it claimed the Silvas defaulted on the loan. The parties briefed the issue of "whether [Nationstar] was required to send the [Silvas] a second breach letter due to the change in the default date in the Complaint." The trial court entered a final order on the Silva's motion dismissing the case. This appeal followed.

Standard of Review

We review an order of involuntary dismissal de novo. See Wells v. Sacks, 180 So.3d 1223 (Fla. 3d DCA 2015). A motion for involuntary dismissal should be granted only "when there is no reasonable evidence upon which a [fact finder] could legally predicate a verdict in favor of the non-moving party." Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012) ; see also Deutsche Bank Nat. Trust Co. v. Huber, 137 So.3d 562, 563-64 (Fla. 4th DCA 2014) ("When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." (quotation omitted) ).

Discussion

Nationstar contends that its April 6, 2009 default notice was sufficient under paragraph twenty-two of the mortgage, and the trial court erred by involuntarily dismissing the case. The Silvas respond that: (1) Nationstar was required to send a new default letter once it changed the default date in the complaint; and (2) the complaint did not allege, and Nationstar did not prove at trial, that the default was within the five-year statute of limitations.

1. The Default Letter

Paragraph 22 of the mortgage provides that:

Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to the Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to reassert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.

"[A] mortgagee's default notice is sufficient if it substantially complies with the mortgage's default notice provision"-i.e. paragraph 22. Wells Fargo Bank, N.A. v. Hernandez & Silva Enterprises, Inc., 193 So.3d 67, 67-68 (Fla. 3d DCA 2016). "Paragraph twenty-two is designed to ensure that a borrower receives essential information concerning his or her default, how to cure it, and his or her rights with respect to it. It is not a technical trap designed to forestall a lender from prosecuting an otherwise proper foreclosure action because a borrower, after the fact, decides that the letter might have been better worded." Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 19 (Fla. 2d DCA 2015).

The evidence from the bench trial showed that the April 6, 2009 default letter complied with paragraph twenty-two of the mortgage, and even if it didn't, the Silvas were not prejudiced by the discrepancy in the default date. Paragraph twenty-two provided that if the default was not cured-and the evidence was clear that it was not-Nationstar could accelerate "without further demand" and foreclose on the home. The default letter notified the Silvas that they did not make their February 2009 mortgage payment, and by April they owed $6,245.68. Even so, the Silvas did not cure the default as required by the mortgage. As long as the default was not cured, and the Silvas did not pay, Nationstar was not required to send another default letter before accelerating the mortgage and proceeding with the foreclosure. See Milam, 177 So.3d at 18 n. 4 (explaining that "[i]t does not follow that a borrower's continuing and uninterrupted failure to make monthly payments-as existed in this case-requires a new paragraph twenty-two notice letter for each instance in which the borrower fails to pay.").

Even if the default letter did not comply with paragraph twenty-two, "[a]bsent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an otherwise valid contract." Gorel v. Bank of New York Mellon, 165 So.3d 44, 47 (Fla. 5th DCA 2015). In Gorel, the "Bank's default letter set a cure date twenty-nine days later, not thirty or more as required" by the terms of the mortgage. Id. The district court rejected the borrowers' defective-default-letter claim because "the defective notice did not prejudice Mr. Gorel, as he made no attempt to cure the default." Id. Here, too, the discrepancy in the date between the amended complaint and the default letter did not prejudice the Silvas because they made no attempt to cure the default from March 21, 2009 until trial. Without evidence they were prejudiced by the wrong date, the trial court erred in granting involuntary dismissal based on the discrepancy between the amended complaint and the default letter.

2. Statute of limitations

The Silvas' claim that the default date in the complaint was outside the statute of limitations has already been rejected by the court. In Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825 (Fla. 3d DCA 2016), we explained that the foreclosure complaint "survived the asserted statute of limitations bar" because "the Bank's complaint specifically alleged that [the borrower] had failed to pay the April 2008 payment and all subsequent payments, and the action was filed within five years of a default payment." Id. at 826 (emphasis in original); see also Bartram v. U.S. Bank Nat'l Assoc., 211 So.3d 1009, 1019 (Fla. 2016) ("[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage"). Here, as in Dhanasar, Nationstar alleged the Silvas missed the March 21, 2009 payment and all subsequent payments. Nationstar also presented evidence at the bench trial that the Silvas had not made any payments since before February 2009. By alleging and proving that the Silvas missed all payments since March 21, 2009, Nationstar established that the Silvas defaulted on the mortgage within five years of the statute of limitations.

Conclusion

Viewing all inferences and evidence in the light most favorable to Nationstar, the trial court erred in granting involuntary dismissal in favor of the Silvas. We vacate the judgment for the Silvas, and reverse and remand for further proceedings.

Reversed and remanded with instructions.


author: LAGOA, J.

text:
    Morris A. ASHEAR, Appellant, v. Seth SKLAREY, Appellee.
    No. 3D16-888
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    P.A. Bravo, P.A., and Paul Alexander Bravo; Matthew Estevez, P.A., and Matthew Estevez, for appellant.
    Michael A. Vandetty, P.A., and Michael A. Vandetty, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

ON MOTION FOR APPELLATE ATTORNEY'S FEES AND COSTS

Appellant, Morris A. Ashear ("Ashear"), seeks appellate attorney's fees and costs pursuant to Florida Rule of Appellate Procedure 9.400 and section 197.602(2), Florida Statutes (2017), in connection with his appeal from a final judgment vacating and setting aside a tax deed in Ashear v. Sklarey, --- So.3d ----, 43 Fla. L. Weekly D181, 2018 WL 443199 (Fla. 3d DCA Jan. 17, 2018). We deny the motion.

Appellee, Seth Sklarey ("Sklarey"), owned property located in Coconut Grove, Florida. A tax certificate issued on the property, and a tax deed auction for the property occurred on August 5, 2010. Ashear was the successful bidder, and a tax deed issued to Ashear the following day. On August 12, 2010, Sklarey filed a complaint against Ashear and others, seeking to set aside the tax deed issued to Ashear. The matter proceeded to trial, and the trial court entered final judgment vacating and setting aside the tax deed issued to Ashear. Ashear appealed to this Court, raising the following three issues: (1) whether the trial court's factual findings were supported by the evidence presented at trial; (2) whether "the trial court's erroneous legal conclusion resulted from its application of the wrong legal standard"; and (3) whether the trial court erred in failing to require Sklarey to reimburse Ashear the amount paid for the tax deed and interest from the date the tax deed was issued as required by section 197.602. This Court affirmed the final judgment in part, finding that the trial court's findings of fact were supported by competent, substantial evidence and that the trial court applied the correct legal standard, and reversed in part, finding that Ashear was entitled to reimbursement from Sklarey. See Ashear, --- So.3d at ----, 43 Fla. L. Weekly at D181.

Ashear now seeks appellate attorney's fees and costs under the current version of section 197.602(2), which provides that "[i]n an action to challenge the validity of a tax deed, the prevailing party is entitled to all reasonable litigation expenses, including attorney's fees." We find no entitlement to attorney's fees and costs as the version of section 197.602 in force at the time the tax sale certificate issued did not contain any provision for an entitlement to attorney's fees to the prevailing party in an action challenging the validity of the tax deed. As the Florida Supreme Court explained in Culmer v. Office Realty Co., 137 Fla. 675, 189 So. 52, 54 (Fla. 1939) :

When the tax sale certificates are issued at the tax sales to private purchasers who pay the amounts due as taxes and costs, or when such certificates are issued to, and afterward are duly transferred by, the State to private parties, the rights of such private purchasers are governed by the law in force at the time the tax sale certificates are issued to them or to their assignors at the tax sale or at the time the State transfers the certificates to private purchasers.

(emphasis added); see also Holliday v. Wade, 117 F.2d 154, 157 (5th Cir. 1941). Unlike the current version of the statute, the 2010 version of section 197.602 did not provide for an entitlement to attorney's fees to the prevailing party in an action challenging the validity of the tax deed.

Subsection (2), providing for entitlement to attorney's fees, was added to section 197.602 in 2011, and became effective on July 1, 2011. Because the tax deed was issued to Ashear on August 6, 2010, the 2010 version of the applicable statute governs. Accordingly, Ashear is not entitled to an award of attorney's fees and costs pursuant to section 197.602, effective at the time the tax sale certificate was issued.

Moreover, even if the current version of section 197.602(2) were applicable here, Ashear would not be entitled to attorney's fees as he is not the prevailing party on appeal. In Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 810 (Fla. 1992), the Florida Supreme Court defined the prevailing party for purposes of attorney's fees and costs as "the party prevailing on the significant issues in the litigation." Where appellate litigation ends in a "tie," with each party prevailing in part and losing in part on the "significant issues," it is appropriate to deny a motion for appellate fees. See Loy v. Loy, 904 So.2d 482, 484 (Fla. 3d DCA 2005).

Here, Ashear failed to prevail on two separate and significant issues. Specifically, Ashear failed to prevail on the following issues: (1) whether the trial court's findings were contrary to the evidence (both testimony and documents) presented at trial; and (2) whether the trial court's "erroneous legal conclusion resulted from its application of the wrong legal standard" under section 197.122, Florida Statutes (2010), and section 197.472, Florida Statutes (2010). Ashear prevailed on appeal only with regard to his argument that he was entitled to reimbursement for the purchase price of the property along with interest. Because this Court affirmed the trial court's judgment vacating the tax deed, and reversed on only one of the issues raised by Ashear, he cannot be considered the prevailing party on the "significant issues" and is therefore not entitled to attorney's fees on this basis as well. Accordingly, we deny Ashear's motion for appellate attorney's fees and costs.

Motion denied.

      Section 197.602, Florida Statutes (2017), states in its entirety:
      (1) If a party successfully challenges the validity of a tax deed in an action at law or equity, but the taxes for which the tax deed was sold were not paid before the tax deed was issued, the party shall pay to the party against whom the judgment or decree is entered:
      (a) The amount paid for the tax deed and all taxes paid upon the land, together with 12 percent interest thereon per year from the date of the issuance of the tax deed;
      (b) All legal expenses in obtaining the tax deed, including publication of notice and clerk's fees for issuing and recording the tax deed; and
      (c) The fair cash value of all maintenance and permanent improvements made upon the land by the holders under the tax deed.
      (2) In an action to challenge the validity of a tax deed, the prevailing party is entitled to all reasonable litigation expenses, including attorney's fees.
      (3) The court shall determine the amount of the expenses for which a party shall be reimbursed. The tax deed holder or anyone holding under the tax deed has a prior lien on the land for the payment of the expenses that must be reimbursed to such persons.

      In its entirety, the 2010 version of section 197.602 read as follows:
      If, in an action at law or in equity involving the validity of any tax deed, the court holds that the tax deed was invalid at the time of its issuance and that title to the land therein described did not vest in the tax deed holder, then, if the taxes for which the land was sold and upon which the tax deed was issued had not been paid prior to issuance of the deed, the party in whose favor the judgment or decree in the suit is entered shall pay to the party against whom the judgment or decree is entered the amount paid for the tax deed and all taxes paid upon the land, together with 12-percent interest thereon per year from the date of the issuance of the tax deed and all legal expenses in obtaining the tax deed, including publication of notice and clerk's fees for issuing and recording the tax deed, and also the fair cash value of all permanent improvements made upon the land by the holders under the tax deed. The amount of the expenses and the fair cash value of improvements shall be ascertained and found upon the trial of the action, and the tax deed holder or anyone holding thereunder shall have a prior lien upon the land for the payment of the sums.
      § 197.602, Fla. Stat. (2010).


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, in Trust FOR REGISTERED HOLDERS OF LONG BEACH MORTGAGE LOAN TRUST 2006-6 ASSET-BACKED CERTIFICATES SERIES 2006-6, Appellant, v. James M. MILLER, Angela M. Miller a/k/a Angela Marie Miller a/k/a Angela Marie Hayes, All American Management, Fairwinds Credit Union, State of Florida, Seminole County, Florida, Appellees.
    Case No. 5D17-785
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 9, 2018 Rehearing and Rehearing En Banc Denied April 12, 2018
    Nicholas S Agnello, Courtney Oakes and Matthew Mitchell, of Burr & Forman LLP, Ft. Lauderdale, for Appellant.
    Roger A Kelly, of Rush, Marshall, Jones and Kelly, P.A., Orlando, for Appellee, James M. Miller.
    No Appearance for other Appellees.
   PER CURIAM.

Deutsche Bank National Trust Company ("the Bank") appeals an order granting final summary judgment in favor of James and Angela Miller and dismissing its complaint based on the statute of limitations. We reverse.

In May 2013, the Bank filed a foreclosure complaint against the Millers, alleging that the Millers defaulted on their February 1, 2007 mortgage payment and all subsequent payments. The Millers successfully moved for summary judgment, arguing that the statute of limitations barred the Bank's claim based on the default date alleged in the complaint. See § 95.11(2)(c), Fla. Stat. (2013) (providing five-year statute of limitations period for foreclosure actions).

The trial court erred in granting the motion for summary judgment based on the statute of limitations. The Bank's complaint was not time-barred because the Bank alleged a continuous state of default that encompassed payments within the five years preceding the filing of the complaint. See Velden v. Nationstar Mortg., LLC, 43 Fla. L. Weekly D147, --- So.3d ---- (Fla. 5th DCA Jan. 12, 2018) ; Bank of N.Y. Mellon v. Stallbaum, 230 So.3d 1271, 1271 (Fla. 5th DCA 2017) ; U.S. Bank N.A. v. Diamond, 228 So.3d 177, 178 (Fla. 5th DCA 2017) ; Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168 (Fla. 5th DCA 2017).

Accordingly, we reverse the entry of final summary judgment and remand for further proceedings.

REVERSED and REMANDED.

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


text:
    Douglas SCHEELS, Appellant, v. Kendra SCHEELS, Appellee.
    Case No. 5D17-2748
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 13, 2018 Rehearing Denied April 12, 2018
    Douglas Scheels, Tucson, AZ, pro se.
    Heather Morcroft, Winter Park, for Appellee.
   PER CURIAM.

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

TORPY, WALLIS, and EISNAUGLE, J.J., concur.


text:
    Claudia RIVAS, Appellant, v. MIAMI-DADE COUNTY, et al., Appellees.
    Nos. 3D17-1492
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    M. Gabriela Palacios, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney and Sabrina Levin, Assistant County Attorney, for appellees.
    Before SALTER, SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Miami-Dade County v. Herndon, 776 So.2d 360 (Fla. 3d DCA 2001) ; Grier v. Metropolitan Dade County, 660 So.2d 273, 275 (Fla. 3d DCA 1995). See also Vermeulen v. Worldwide Holidays, Inc., 922 So.2d 271, 273 (Fla. 3d DCA 2006) ("The mere happening of an accident does not give rise to an inference of negligence.").


text:
    Robert Hughes HARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3587
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    Robert Hughes Harris, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Robert Harris appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two, Four, Five, Six, Seven, and Eight. However, because the record does not conclusively refute Harris's sufficiently pled claim that counsel was ineffective for failing to ask for an alibi instruction, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) )). We also reverse the summary denial of Ground Three, regarding counsel's alleged misleading advice on Harris's right to testify, and remand for an evidentiary hearing. Simon v. State, 47 So.3d 883, 886 (Fla. 3d DCA 2010) (concluding evidentiary hearing is usually necessary to determine whether counsel's advice not to testify is deficient).

AFFIRMED in part, REVERSED in part, and REMANDED.

BERGER, LAMBERT and EISNAUGLE, JJ., concur


text:
    Zuluima MARVAL, Appellant, v. LAT LATIN AMERICA TRADE, etc., et al., Appellees.
    No. 3D17-1065
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Weissman & Dervishi, P.A., and Peter A. Tappert, for appellant.
    Miami Law Counsel, PLLC, and Scott Dickinson, for appellee Erika N. Naranjo.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


text:
    Fernando Antonio BOSCH, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2059
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Jud. Admin. 2.330(e) (providing: "A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling"); Fla. R. Jud. Admin. 2.330(c)(3) (providing: "A motion to disqualify shall... be sworn to by the party by signing the motion under oath or by a separate affidavit").


text:
    Carole BRODY, Appellant, v. Arthur S. TURKISH, Appellee.
    No. 3D17-1050
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Bruce A. Katzen and Josh M. Rubens ; Samson Appellate Law and Daniel M. Samson, for appellant.
    Mark Migdal & Hayden and Joshua A. Migdal ; Ross & Girten and Lauri Waldman Ross and Theresa L. Girten, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Salta Inv. Co. v. Silva, 584 So.2d 172 (Fla. 3d DCA 1991).


text:
    Emerson PEROZO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-373
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

The petitioner, Emerson Perozo, seeks mandamus relief instructing the trial court to accept his written waiver of appearance at any pretrial conference. See Fla. R. Crim. P. 3.180(a)(3) ("In all prosecutions for crime the defendant shall be present ... at any pretrial conference, unless waived by the defendant in writing[.]"); 3.220(o )(1) ("The trial court may hold 1 or more pretrial conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. The defendant shall be present unless the defendant waives this in writing."). Because no good cause has been shown to override the defendant's waiver, we grant the petition for writ of mandamus and instruct the trial court to accept the petitioner's written waiver of appearance. See Charlemagne v. Guevara, 183 So.3d 1261, 1263 (Fla. 3d DCA 2016) ("[I]f there is a good reason to do so, a trial court may require the presence of the defendant in court even when the defendant has filed a written waiver [of appearance at pretrial conferences].") (citing Cruz v. State, 822 So.2d 595 (Fla. 3d DCA 2002) ).

Petition granted; writ of mandamus issued.


text:
    M.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1319
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS, and SCALES, JJ.
    ON CONFESSION OF ERROR
   LAGOA, J.

M.C. appeals his revocation of probation. While the trial court orally stated that it found M.C. to have violated his probation by committing criminal mischief, no written order of revocation appears in the record. Based on the State's proper confession of error, we remand to the trial court to enter a written order of revocation noting the specific conditions of probation that M.C. violated. See Mitchell v. State, 43 Fla. L. Weekly D187, D187, --- So.3d ---- (Fla. 3d DCA 2018) ("It is well-settled that a trial court must 'reduce to writing its oral pronouncement of the violations and revocation of ... probation.' " (alteration in original) (quoting Brown v. State, 127 So.3d 831, 831 (Fla. 3d DCA 2013) ) ); King v. State, 46 So.3d 1171, 1172 (Fla. 4th DCA 2010) ("If a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated.").

Remanded with directions.


text:
    ORIGINWAVE TECH SOFT PRIVATE LIMITED, Appellant, v. MOBILE INSIGHT, LLC, Appellee.
    No. 3D16-2460
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Law Office of Sean C. Burnotes, P.A., and Sean C. Burnotes (St. Petersburg), for appellant.
    Law Offices of Charlton Stoner, P.A., and Charlton Stoner, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Upon our review, and consistent with the acknowledgment of the parties that compulsory counterclaims remain pending below, we dismiss this appeal from the trial court's summary judgment order in favor of plaintiff on its declaratory judgment claim. See Londono v. Turkey Creek, Inc., 609 So.2d 14, 19-20 (Fla. 1992) ; Ryder Truck Lines, Inc. v. Pough, 392 So.2d 590, 591 (Fla. 3d DCA 1981) (recognizing that "[i]t has been uniformly held that, because of the interrelationship between an original claim and a compulsory counterclaim, no appeal could be taken from either until the final disposition of both the claim and the counterclaim.")

Appeal dismissed.

      In Londono, the Florida Supreme Court adopted the "logical relationship test" to be applied in determining whether a counterclaim is compulsory-that is, whether a counterclaim "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." See Fla. R. Civ. P. 1.170(a). The Londono Court held:
      [A] claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.
      Id. at 20 (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA 1981) ) (additional citations omitted).


text:
    Vladimir Calafet PIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2456
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Prada Urizar, PLLC and Mark A. Prada, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Jules v. State, 233 So.3d 1196 (Fla. 3d DCA 2017) ; State v. Green, 944 So.2d 208 (Fla. 2006).


text:
    Kevin Lonell SQUAIR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-873
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    Michael A. Graves, Public Defender and Eric R. Tippin, Assistant Public Defender, Brooksville, for Petitioner.
    No Appearance 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 June 21, 2017, judgment and sentence rendered in Case No. 15-CF-001622, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


author: PER CURIAM

text:
    Khris TOBLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-80
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    Khris A. Tobler, Century, pro se.
    No Appearance for Appellee.
   PER CURIAM

AFFIRMED. We reject Appellant's argument that the Prison Releasee Reoffender Act is unconstitutional because it allows the judge, rather than the jury, to determine whether a defendant qualifies as a prison releasee reoffender for sentencing purposes. See Chapa v. State , 159 So.3d 361, 362 (Fla. 4th DCA 2015) ; Lopez v. State , 135 So.3d 539, 540 (Fla. 2d DCA 2014).

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


text:
    Jose M. VEGA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3493
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    Jose M. Vega, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The appellant, Jose M. Vega, appeals the trial court's summary denial of the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Vega alleged that he entered into a plea agreement that provided that he would admit his violation of probation and serve an additional eighteen months in prison. Vega had previously served a sentence of ten years in prison on the substantive charges. The trial court, in accordance with the plea agreement, sentenced him to eleven years and 283 days in prison, with credit for 103 days served in the county jail and the ten years he had previously served in the Department of Corrections.

After he was sentenced, the Department of Corrections calculated the gain time Vega was entitled to from his previous term of incarceration. Pursuant to that calculation, Vega would be required to serve in excess of the eighteen months in prison provided for in his plea agreement. Accordingly, we reverse the order denying Vega's motion and remand this case to the trial court to either resentence Vega in accordance with the plea agreement or to allow him to withdraw his plea. See Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007) ; Dellahoy v. State, 816 So.2d 1253, 1253 (Fla. 5th DCA 2002).

REVERSED and REMANDED.

SAWAYA, ORFINGER and BERGER, JJ., concur.