author: ROTHENBERG, C.J.

text:
    Jeffrey L. VENNISEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1604
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017

      Jeffrey L. Vennisee, in proper person.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

Jeffrey L. Vennisee (“Vennisee”) appeals the denial of his motion for postcon-viction relief. Vennisee, who was a juvenile when he committed a murder on December 10, 1978, was indicted for first-degree murder. On March 26,1979, Vennisee pled guilty to second-degree murder and was sentenced to life with the possibility of parole. Vennisee contends that his sentence is unconstitutional under the Eighth Amendment and based on the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and the Florida Supreme Court’s decision in Atwell v. State, 197 So.3d 1040 (Fla. 2016), and that he is entitled to a resentencing hearing and to be resentenced pursuant to chapter 2014-220, Laws of Florida, § 1. For the reasons that follow, we affirm the trial court’s order denying Vennisee’s motion for postconviction relief.

The Evolving Juvenile Sentencing Case Law

In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the United'States Supreme Court held that a sentence of death for a crime committed by a juvenile violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Five years later, the United States Supreme Court addressed whether a life sentence without the possibility of parole imposed upon a juvenile who committed a non-homicide offense was also violative of the Eighth Amendment in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

Graham was sixteen when he committed an armed burglary and an attempted armed robbery. Based on a negotiated plea, Graham pled guilty to the charges, adjudication was withheld, and Graham was placed on probation. Less than six months after being released from custody, Graham, while still a juvenile, committed an armed home invasion robbery. Graham, 560 U.S. at 54-55, 130 S.Ct. 2011. After conducting a hearing, the trial court found that Graham had violated his probation, adjudicated him guilty of the prior armed burglary and attempted armed robbery, and imposed a sentence of life imprisonment for the armed burglary and a fifteen-year sentence for the attempted armed robbery. Id. at 57, 130 S.Ct. 2011. Because Florida had abolished the parole system, a life sentence provided no possibility of release absent the grant of executive clemency. See § 921.002(l)(c), Fla. Stat. (2003). The United States Supreme Court concluded that the life without the possibility for parole sentence that Graham received was akin to a death sentence in that the forfeiture of Graham’s life was irrevocable—that good behavior and character improvement were immaterial as he must remain in prison for the remainder of his life. Graham, 560 U.S. at 69-70, 130 S.Ct. 2011. Thus, the United States Supreme Court found that Graham’s life sentence violated the Eighth Amendment and reversed.

It' is important to note, however, that while the Graham Court held that a life sentence without the possibility for parole imposed upon a juvenile for a nonhomicide offense violates the Eighth Amendment, the Court did not require that the sentence imposed guarantee the juvenile offender’s ultimate release from incarceration. In fact, the Court stated the opposite.

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is- give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. ... It bears emphasis, however, that while the Eighth Amendment, prohibits a State from imposing a life without parole sentence on a juvenile nonho-micide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain be: hind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.

Id. at 75,130 S.Ct. 2011.

Two years after addressing life sentences without the possibility of parole imposed upon juveniles who commit non-homicide offenses in Graham, the Court addressed the imposition of life without parole sentences imposed upon juveniles who commit homicide offenses in Miller. Although the United States Supreme Court did not prohibit life sentences for juveniles who commit homicide offenses, it held that mandatory life sentences without the possibility of parole which do not take into account the defendant’s “age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” are unconstitutional. Miller, 567 U.S. at 477, 132 S.Ct. 2455. “We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Milter, 567 U.S. at 479, 132 S.Ct. 2455. The Court, however, did not issue a categorical bar for life without parole sentences for juvenile offenders. “Because [our] holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument- that the Eighth Amendment requires a categorical bar on life without parole for juveniles ..,. ” Id. at 479, 132 S.Ct. 2455.

Thus under Graham and Miller, no juvenile offender may be sentenced to a mandatory life sentence without the. possibility of parole, regardless of whether the offense is a homicide or a non-homicide offense. Another important decision was also made by the United States Supreme Court in Miller. Besides prohibiting mandatory life sentences without the possibility of parole, the Court held that juvenile offenders are constitutionally entitled to individualized sentencing at which the judge or jury will have the opportunity to consider mitigating circumstances, including the offender’s age and the circumstances attendant to it, such as immaturity, impetuosity, and the failure .to appreciate the consequences. Miller, 567 U.S. at 476-77, 132 S.Ct. 2455.

In Falcon v. State, 162 So.3d 954, 962 (Fla. 2015), the Florida Supreme Court concluded that it was -patently unfair to treat similar juvenile offenders differently based solely on when their cases were decided-. Thus, the Court held that Graham and Miller must be applied retroactively to juvenile offenders’ sentences that were final when these decisions were issued.

Also in 2015, the Florida Supreme Court issued its opinion in Henry v. State, 175 So.3d 675, 680 (Fla. 2015), which' extended the Roper and Graham conclusion—that juvenile life without parole sentences for non-homicide offenses violates the Eighth Amendment—to term-of-years sentences that do not afford any meaningful opportu-■ nity to obtain release based on the offender’s demonstrated maturity and rehabilitation. Because the defendant in Henry, who was a juvenile when he committed several non-homicide offenses, received' an aggregate sentence totaling ninety years, which required that he remain, imprisoned until he was at least ninety-five years old with no opportunity to be considered for an earlier release, the Florida Supreme Court held that his sentence was unconstitutional under Graham, and that Henry must be resentenced under the new juvenile sentencing legislation enacted by the Florida Legislature in 2014 (Chapter 2014-220, Laws of Florida). See also Gridine v. State, 175 So.3d 672, 674-75 (Fla. 2015) (holding that a seventy-five-year sentence for a juvenile who was convicted of an attempted murder was unconstitutional because it failed to provide for a meaningful opportunity for early release).

In Lawton v. State, 181 So.3d 452, 458 (Fla. 2015), the Florida Supreme Court applied the prohibition of life sentences without the possibility of parole for juveniles convicted' of non-homicide offenses even when the juvenile commits á homicide during the same criminal episode. In Kelsey v. State, 206 So.3d 5 (Fla. 2016), the Florida Supreme Court also held that the trial court must apply and comply with the provisions of Chapter 2014-220 for those juvenile offenders who were convicted of non-homicide offenses; initially received a life sentence for the non-homicide offense(s); were resentenced tu a term-of-years sentence pursuant to Graham because the sentence violated the Eighth Amendment; and received a new sentence that is longer than twenty years.

Consistent with this historical case law evolution regarding the sentencing of juvenile offenders, the Florida Supreme Court held that a. mandatory life sentence, even-with the possibility of parole after the juvenile offender serves twenty-five years imposed for a homicide offense, is unconstitutional; Atwell v. State, 197 So.3d 1040 (Fla. 2016); The Florida Supreme -Court’s extension of Miller in Atwell (which had only found that mandatory life sentences without the possibility of parole for juveniles convicted of a homicide were unconstitutional), was based on the Florida Supreme Court’s conclusion that the parole system in effect at the time Atwell was sentenced was the “practical equivalent” of a'life sentence without the' possibility of parole because Atwell’s presumptive parole release date had recently been set to 2130, which would be at age 156, thus far exceeding Atwell’s life expectancy. Id. at 1044.

We summarize-the' evolving case law as follows. Mandatory life sentences, with or without the possibility of parole for juveniles convicted of homicide and nonho-micide offenses are unconstitutional under Graham, Miller, and Atwell. Sentences for non-homicide offenses which do not provide for a meaningful opportunity to obtain release based on a demonstration of maturity and rehabilitation, either imposed initially or upon a resentencing, are unconstitutional under Henry, Gridine, and Atwell. These holdings are to be applied retroactively. Falcon, 162 So.3d- at 962. And when juveniles are reséntenced for non-homicide offenses because their original sentence violated Graham, they' must be resen-tenced pursuant to Chapter 2014-220. Kelsey, 206 Sol3d at 5.

The Instant Case

The offense at issue in this appeal is a homicide. Vennisee was seventeen when the homicide was committed. .Venni-see pled guilty to the homicide in 1979 and was sentenced to.life in prison with the possibility of parole. Unlike the juvenile in Miller, who received a mandatory life sentence without the possibility of parole, and the juvenile in Atwell, whose presumptive release date provided-him with no meaningful opportunity for early release, Venni-see’s sentence provided him with a meaningful opportunity for early release as he was released on October 8, 2002 after serving approximately twenty-three years in prison. When paroled, Vennisee was forty years old.

In 2007, Vennisee violated his parole, but he was given another opportunity to demonstrate his maturity, rehabilitation, and ability to live outside of the prison environment. His parole was reinstated, and he was placed on community control. Approximately four months later, Vennisee violated his community control and parole by committing and subsequently being convicted of committing the following felony offenses, for which he was sentenced to ten years imprisonment, and his parole was revoked.

Case number: F08-14834—possession of a firearm by a convicted felon.
Case number: F08-10916—strong-arm robbery and planting a hoax bomb.
Case number: FO8-10917—attempted strong-arm robbery and planting a hoax bomb.
Case number: F08-14893—strong-arm robbery and planting a hoax bomb.

On April 16, 2015, Vennisee filed a motion for postconviction relief arguing that he is entitled to a resentencing pursuant to Miller, Graham, and Falcon for his conviction of the homicide offense that he committed when he was a juvenile. The trial court denied Vennisee’s motion on December 31, 2015, finding that Vennisee’s sentence of life with parole for a homicide offense did not violate Miller (and thus did not violate Falcon, which provides for retroactive application of Miller). Vennisee did not initially appeal the trial court’s order denying his motion for postconviction relief, but on July 8, 2016, this Court granted Vennisee a belated appeal.

Subsequent to the issuance of the'trial court’s order and during the pendency of this appeal, the Florida Supreme Court decided Atwell (extending Miller to include juveniles convicted of homicides and who received life sentences with the possibility of parole). We will, therefore, analyze Ven-nisee’s arguments under the most current status of the relevant law.

As already discussed, where the Court in Miller only found that mandatory life sentences without the possibility of parole for homicides committed by juveniles were violative of the Eighth Amendment, since Vennisee filed his appeal, the Florida Supreme Court extended the Miller holding to mandatory life with parole sentences for homicide offenses in Atwell. Thus, Venni-see is entitled to the benefit and retroactive application of Atwell.

We conclude, as this Court, the First District Court of Appeal, and the Fourth District Court of Appeal have already concluded in similar cases, that because Ven-nisee has already been provided with a meaningful opportunity to obtain release, was released, and violated the. terms of his release by committing new felony offenses while an adult, Miller, Graham, and Atwell are not implicated, and Vennisee is not entitled to a resentencing because his sentence is not cruel and unusual under the Eighth Amendment,

In Rooks v. State, 224 So.3d 272 (Fla. 3d DCA 2017), this Court addressed a similar situation. Rooks was convicted in 1972 for a nonhomicide offense he committed while a juvenile, and he was sentenced to life with parole eligibility. Rooks was paroled in 1980 at the age of twenty-four after serving eight and one-half years. In 1986, at the age of thirty, Rooks violated his parole and was returned to prison as a parole violator. In .2006, at the age of fifty, Rooks was again released on parole, and although he was initially charged with violating his parole, he was not returned to prison and his parole was restored. In 2014, at the age of fifty-eight, Rooks was arrested for trafficking in heroin, and as a result, in 2015, his parole was revoked and he was returned to prison.

Thereafter, Rooks filed a motion to correct what he claimed was an .illegal sentence based on Graham, Miller, Henry, and Atwell. The trial court denied Rooks’ motion, and this Court affirmed after finding that the parole system and guidelines, under which Atwell was serving his sentence, differed from the parole system and guidelines applicable to Rooks, as evident from the fact that Rooks was released on parole after serving only eight and one-half years of a life sentence, whereas At-well’s presumptive parole release date was in 2130, at which point Atwell would be 156 years old. Rooks, 224 So.3d at 279. Thus, Rooks’ sentence did not resemble a mandatory life without parole sentence in violation of Miller or Atwell, nor an aggregate sentence that failed to provide Rooks with any meaningful review in violation of Henry and Atwell. Rooks, 224 So.3d at 279. This Court therefore concluded that neither Graham/Miller nor Henry/Atwell were implicated, Rooks’ sentence was not illegal, and he was not entitled to resen-tencing under Florida’s newly-enacted juvenile sentencing scheme. Rooks, 224 So.3d at 273.

The First District and Fourth District Courts of Appeal reached the same conclusion in Currie v. State, 219 So.3d 960 (Fla. 1st DCA 2017), and Rogers v. State, 223 So.3d 281 (Fla. 4th DCA 2017),'respective-ly. Currie was a juvenile when he committed an armed sexual battery and was sentenced to life in prison with the possibility of parole. Currie, 219 So.3d at 960. When Currie was twenty-five years old he was released on parole. He subsequently violated his parole and was returned to prison. The First District concluded that although Currie was a juvenile when he committed these offenses and he received a life sentence, he was “not entitled to be resen-tenced because he has not received the functional equivalent of a life sentence. He has already been released once, and he has the potential to be released again.” Id.

In 1972, Rogers was convicted of a robbery that he committed when he was seventeen and sentenced to life in prison with the possibility of parole. Rogers, 223' So.3d at 281. After spending seven years in prison, he was released on parole. Id. In 1979, at the age of twenty-eight, Rogers was reincarcerated when he violated his parole by committing an armed robbery. Id. Rogers was' released on parole again in Í990, but reincarcerated when he violated his parole by committing a grand theft in 1999. Id. Rogers claimed that his life sentence for a non-homicide offense he committed as a juvenile was unconstitutional pursuant to Graham and sought resentenc-ing pursuant to chapter 2014-220. Id. at 281-82. The'Fourth District concluded that because Rogers was released on parole, he could not show a violation of the Eighth Amendment under Graham, which held that juvenile offenders who commit non-homicide offenses do not have to be guaranteed eventual freedom. Id. They must only be afforded a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Id. As the Fourth District noted in Rogers:

A juvenile offender who has actually been released from a prison sentence has received more than what Graham requires. Rogers had an opportunity for release and was in fact released from prison twice on parole. He has not shown that his sentence violates the Eighth Amendment under Graham, and he is not entitled to resentencing.

Id. (footnote omitted); see also Guzman v. State, 183 So.3d 1025, 1027 (Fla. 2016) (Pariente, J., concurring) (concluding that Guzman, who was fourteen when he committed several non-homicide offenses, was provided an opportunity for rehabilitation, but committed a kidnapping as an adult while on probation for the offenses committed as a juvenile, was “removed from the purview of Graham” and was not entitled to be resentenced); Davis v. State, 42 Fla. L. Weekly D1481, 1482, 223 So.3d 1106, - (Fla. 5th DCA 2017) (concluding that, although Davis was seventeen when he committed non-homicide offenses, because he was eighteen when he violated his youthful offender sentence by committing an armed carjacking and he received an aggregate forty-five year prison sentence for the offenses he committed as a juvenile, he was not entitled to be sentenced under Florida’s new juvenile sentencing scheme in order to be in compliance with Graham and Miller).

CONCLUSION

Vennisee, who committed a homicide while a juvenile, was sentenced in 1979 to life with the possibility of parole. After serving approximately twenty-three years in prison, he was released on parole in 2002. Vennisee violated his parole in 2007, received another chance, and then violated his parole again by committing seven new felony offenses. His parole was revoked, and he was returned to prison. Because Vennisee has already been provided with a meaningful opportunity to obtain release, was released, and then was returned to prison after he violated the terms of his release by committing new felony offenses as an adult (he was approximately forty-five years old), we conclude that Graham, Miller, and Atwell are not implicated, Ven-nisee’s sentence is not illegal, and he is not entitled to- resentencing under Chapter 2014-220. He has, in fact, received more than Graham, Miller, and Atwell require.

Affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Amanda SCHOECK, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    Case No. 2D16-3161
    District Court of Appeal of Florida, Second District.
    Opinion filed October 13, 2017
    Rehearing Denied December 22, 2017

      Wm. Newt Hudson of Law Office of Wm. NeM Hudson, Tarpon Springs, for Appellant.
    Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, and. Jacqueline M. Bunty of Law Offices of Jacqueline M. Bunty, Tampa, for Appellee.
   NORTHCUTT, Judge.

The circuit court ruled that Amanda Schoeck failed to satisfy a condition precedent to her suit against Allstate Insurance Company, and on that basis it granted summary judgment to Allstate. We reverse because Allstate waived Schoeck’s alleged noncompliance with the condition at issue.

In 2009, Schoeck was injured while a passenger in a vehicle owned and driven by her father. Schoeck alleged in her complaint that the driver of another vehicle caused the collision in which she was injured but lacked liability coverage sufficient to fully satisfy her damages claims. At the time of the accident Schoeck was covered by two uninsured motorists provisions, under her father’s Geico policy and her mother’s Allstate policy. The Geico policy provided $20,000 in UM coverage; the Allstate policy provided $25,000 in UM coverage.

In 2013, Schoeck sued Allstate seeking UM benefits under its policy; the record before us does not disclose why Schoeck did not also file suit against Geico at that time. Schoeck alleged generally that all conditions precedent to maintaining suit against Allstate had been met or else had been waived. Allstate’s answer did not address that allegation directly, but “denie[d] the allegations in all Paragraphs pertaining to this Defendant unless otherwise specifically admitted.”

Allstate eventually moved for summary judgment, disclosing the existence of the Geico policy and requesting among other things that the court prioritize the Geico policy and reduce Allstate’s total excess exposure to $5000. In support, Allstate relied on a statutory provision providing that insurers may write UM policies limiting an injured insured’s recovery to the highest UM limits afforded to any vehicle insured under that policy. See § 627.727(9)(c), Fla, Stat. (2015). Allstate argued that Schoeck would only be entitled to the highest limit from among all vehicles covered under both the Geico and Allstate UM policies. Since $25,000 was the highest limit available under the Allstate policy, and since Allstate was the excess carrier, Allstate asserted that its policy limit should be reduced by the highest available limit available under the primary Geico coverage, $20,000.

The circuit court agreed, and it entered a preliminary order that found the Geico policy primary and the Allstate policy excess, and that limited Allstate’s maximum liability exposure to $5000. Schoeck moved for reconsideration, urging that section 627.727(9)(c) only limits UM recovery to the highest limit applicable to a vehicle covered under the Allstate policy itself, and that there was no basis for “crediting” the excess carrier for proceeds owed by a primary carrier. Schoeck also argued that Allstate had waived any argument relating to the “Other Insurance” clause because Allstate had not pleaded an affirmative defense seeking to preclude or diminish recovery in reliance on that clause.

In its reply to the motion for reconsideration, Allstate for the first time argued that “a closer-look” at its policy suggested that Schoeck had not satisfied a condition precedent contained in the “Other- Insurance” clause—that she must fully exhaust all other sources of recoverable insurance before suing Allstate. Allstate also anticipated that the Geico limits were.probably unrecoverable due to the statute of limitation. Allstate asserted that because Schoeck had failed to timely proceed against the primary Geico benefits, she was therefore precluded from recovering any excess coverage from Allstate.

The circuit court again agreed with Allstate and entered a final summary judgment declaring’ that Sehoeck’s claims against Allstate were barred for failure to meet a condition precedent. The court specified that “the primary Geico [UM] coverage which was available at the time of the automobile accident .,. had not been actually paid and is now unpayable,” and therefore Schoeck would be unable to proceed against Allstate. ; The court again found that even had such condition precedent been satisfied, Allstate’s maximum liability would have been reduced to $5000 to account for the primary Geico proceeds. Schoeck appealed, and we have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A).

The express terms of the Allstate contract provide that prior to taking action against Allstate, no insured or injured person may sue “unless there is full compliance with all the terms of the- policy.” Later, the operative language of the UM section provides:

If the injured person was in, on, getting into or out of a vehicle [that the insured does] not own which is insured for this coverage under another policy, this coverage will be excess. [W]hen the injured person is legally-entitled to recover damages in excess of the other policy limit, [Allstate] will pay up to [the UM] policy limit, [excluding special damages], but only after all other collectible insurance has been exhausted.

(Emphasis added.)

We agree with the circuit court’s order insofar as this contract language was meant to impose a condition precedent to an action against Allstate. But Allstate waived this defense by' failing to plead the issue with sufficient specificity. Whereas Florida Rule of Civil 'Procedure 1.120(c) permits the satisfaction of a condition precedent to be alleged generally, the rule requires a pleader to deny the performance or occurrence of a condition precedent “specifically and with particularity.”

Allstate contends that. it ^specifically raised the condition precedent in its seventh affirmative defense, which alleged that “any recovery' should be reduced or barred to the extent of available insurance coverage ... available to any individual or entity which may be wholly or partially responsible for the damages' alleged in connection with the subject matter of the incident described in the Complaint.” (Emphasis added.) Although this allegation ge-nerieally evoked other sources of insurance coverage, the emphasized language limited the defense to coverage that was available to the instigating tortfeasor or tortfeasors. •The defense did not specifically allege that Schoeck failed to exhaust proceeds available to.her from her father’s Geico policy. Because Allstate failed to plead the affirmative defense of noncompliance with a condition precedent, it waived the defense. See Fla. R. Civ. P. 1.140(h)(1). The court therefore erred by basing its final judgment on that ground.

Because we reverse the summary judgment due to Allstate’s waiver of the contractual condition precedent, we need not decide whether Allstate’s position— that Schoeck could not sue until she exhausted Geico’s benefits—in fact would have barred Schoeck’s recovery under legal principles governing UM coverage. We note that Allstate apparently advocates a position that is contrary to the policies underlying the UM enactments and the caselaw interpreting UM contract language. “[Sjection 627,727 was intended to place the injured, party in the same position as he or she would have been had the tortfeasor been insured.” State Farm Mut. Auto. Ins. Co. v. Curran, 135 So.3d 1071, 1077 (Fla. 2014). “[T]he statute is not designed ‘for the benefit .of insurance companies or motorists who cause damage to others.’” Id. (quoting Young v. Progressive Se. Ins. Co., 753 So.2d 80, 83 (Fla. 2000)). “As a creature of statute rather than a matter for contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer to limit or negate that protection.” Sommerville v. Allstate Ins. Co., 65 So.3d 558, 562 (Fla. 2d DCA 2011) (quoting Gilmore v. St. Paul. Fire & Marine Ins., 708 So.2d 679, 681 (Fla. 1st DCA 1998)). “[Cjonditions or exclusions must be carefully scrutinized first to determine -whether the condition or exclusion unambiguously excludes or limits coverage, and then to determine, if so, whether enforcement of a specific provision would be contrary to the purpose of the uninsured motorist statute.” Flores v. Allstate

Ins. Co., 819 So.2d 740, 745 (Fla. 2002).

We- also clarify that limiting Allstate’s maximum exposure to $5000 was error. First, section 627.727(9)(c) authorizes an insurer to offer a policy restricting an insured’s maximum UM benefits to the highest limits afforded to any car covered under the policy itself. In insurance parlance, the statute permits carriers to offer “unstacked” or “nonstaeked” UM options. Section 627.727(9)(c) does not provide that insurers may credit their excess UM benefits with a primary insurer’s payouts. Second, the Allstate policy itself provides: “[Wjhen the injured person is legally entitled to recover damages in excess of the [primary] policy limit, [Allstate] will pay up to [the UM] policy limit .... ” This language unambiguously entitles Schoeck to recover up to the $25,000 UM policy limit, provided that her damages exceed the amount of primary coverage.

Based on the foregoing, we reverse the final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

LaROSE, C.J., and SILBERMAN, J., Concur.


author: PER CURIAM.

text:
    Philip MOSIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5457
    District Court of Appeal of Florida, Second District.
    Opinion filed October 13, 2017.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
    Philip Mosier, pro se.
   PER CURIAM.

Philip Mosier appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The State properly concedes that Mosier is entitled to reversal and remand for resentencing.

In his motion, Mosier argued that his concurrent sentences of thirty years’ imprisonment followed by ten years’ sexual offender probation for felony offenses he committed when he was sixteen years of age are unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Henry v. State, 175 So.3d 675 (Fla. 2015). In denying Mosier’s motion, the postconviction court found that Mosier would be released at age forty-six at the latest and that he had the opportunity for earlier release through the accrual of gain time. Based on those findings, the court concluded that Mosier’s sentences were not unconstitutional.

Since the issuance of the postconviction court’s order, the supreme court has squarely refuted the postconviction court’s conclusion:

[P]ursuant to Henry, we must consider three factors when reviewing a juvenile nonhomicide offender’s term-of-years sentence. Post-Henry, we must ensure that a juvenile nonhomicide offender does not receive a sentence that provides for release only at the end of a sentence (e.g. a 45-year sentence with no provision for obtaining early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term, such as in Kelsey [v. State, 206 So.3d 5 (Fla. 2016) ]). Secondly, we must ensure that a juvenile nonhomicide offender who is sentenced post-Henry does not receive a sentence which includes early release that is not based on a demonstration of rehabilitation and maturity (i.e. gain time or other programs designed to relieve prison overpopulation). Last, we must ensure that a juvenile nonhomicide offender , who is sentenced post-Henry does not receive a sentence that provides for early release at a time beyond his or her natural life (e.g. a 1,000-year sentence that provides parole-eligibility after the offender serves 100 years). To qualify as a “meaningful opportunity for early release,” a'juvenile nonhomicide offender’s sentence must meet each of the three parameters described in Henry.

Johnson v. State, 215 So.3d 1237, 1243 (Fla. 2017).

Accordingly, we reverse the postconviction court’s order and remand for Mosier to be resentenced under the juvenile sentencing guidelines codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2016). See Johnson, 215 So.3d at 1243.

Reversed and remanded for resentenc-ing.

KELLY,' KHOUZAM, and BADALAMENTI, JJ„ Concur.


author: BLACK, Judge.

text:
    Bridgett BETTS, Appellant, v. Ricky BETTS, Appellee.
    Case No. 2D16-3090
    District Court of Appeal of Florida, Second District.
    Opinion filed October 13, 2017.
    Mark A. Neumaier, Tampa, for Appellant.
    Catherine W. Real and Michael J. Ro-zum of Catherine W. Real, P.A., Tampa (withdrew after briefing), for Appellee.
    Ricky Betts, pro se.
   BLACK, Judge.

Bridgett Betts (the former wife) challenges the final judgment of dissolution of marriage, raising several issues on appeal. We find merit in the former wife’s contention that the trial court erred in awarding a dollar-for-dollar equitable credit to Ricky Betts (the former husband) for the contributions he made to the mortgage encumbering the former wife’s premarital duplex. We therefore reverse the equitable distribution portion of the final judgment and remand for further proceedings.

“[W]hen marital assets are used during the marriage to reduce-the mortgage on [nonmarital] property, the increase in equity is a marital asset subject to equitable distribution.” Somasca v. Somasca, 171 So.3d 780, 783 (Fla. 2d DCA 2015) (quoting Ballard v. Ballard, 158 So.3d 641, 643 (Fla. 1st DCA 2014)). It was undisputed that the former husband contributed $350 per month toward the mortgage on the former wife’s premarital duplex from the date the parties were married in November 2004 until the date the former wife’s side of the duplex burned down in November 2006. The trial court therefore determined that the former husband was entitled to a dollar-for-dollar credit for the payments he made during this twenty-four-month period. This was error. The credit awarded must instead be based upon “the amount by which the use of marital funds to pay down the mortgage reduced the indebtedness on the [property].” Somasca, 171 So.3d at 783 (emphasis added); see also Abdnour v. Abdnour, 19 So.3d 357, 362 (Fla. 2d DCA 2009) (“The trial court ... correctly found that marital assets had been used to reduce the outstanding balance (the pay-down) on the home’s mortgage and that the paydown of the mortgage was a mari tal asset subject to equitable distribution.”); Cole v. Roberts] 661 So.2d 370, 372 (Fla. 4th DCA 1995) (“[T]he trial court should debit the distribution of assets to the husband in the ainount of one-half of the marital funds contributed towards reducing the mortgage debt on the condominium.”). Here there was no evidence presented demonstrating the extent to which the former husband’s payments reduced the outstanding balance on the duplex’s mortgage. In fact, in denying the former wife’s motion for rehearing as to this issue, the trial court stated that “[neither party presented any evidence or argument regarding the increase ... in equity in the [former wife’s] property upon which the Court could make any such finding.”

Because, the trial court erred in calculating the equitable credit awarded to the former husband for the contributions he made to the mortgage encumbering the former wife’s duplex, we reverse the equitable distribution. On remand, the trial court shall recalculate the equitable distribution in accordance with this opinion. The trial court may readdress any portion of the equitable distribution or related alimony calculations as necessary.

Affirmed in part; reversed in part; remanded with instructions.

KHOUZAM and SLEET, JJ., Concur.

      . We note that the trial court also made a mathematical error when it calculated the credit awarded to the former husband for his mortgage contributions. Our reversal renders this error moot. The remaining issues raised on appeal lack merit and warrant no further comment.

      . Even had the former husband been able to establish that his contributions enhanced the duplex’s equity value, we question whether he would have been entitled to- a credit for those payments. The former wife’s half of the duplex was considered a total loss due to the. fire, and the former wife received a pay out from the insurance company accordingly. The insurance proceeds were expended by the parties before the dissolution proceeding was initiated,


text:
    MIAMI-DADE COUNTY, Appellant, v. LANSDOWNE MORTGAGE, LLC, Appellee.
    No. 3D16-1046
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017
    Abigail Price-Williams, Miami-Dade County Attorney, and Michael J. Mastruc-ci and Jorge Martinez-Esteve, Assistant County Attorneys, for appellant.
    Ritter, Zaretsky, Lieber & Jaime LLP, and Vivian Jaime, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   ROTHENBERG, C.J.

Miami-Dade County (“the County”) appeals the trial court’s entry of a final judgment of foreclosure, which granted Lans-downe Mortgage, LLC’s (“Lansdowne”) motion for summary judgment, and the subsumed order denying the County’s cross-motion for summary judgment, which found that the County’s homestead tax lien was inferior to Lansdowne’s mortgage on the subject property. Because the trial court improperly prioritized Lans-downe’s mortgage over the County’s tax lien, in contravention of section 197.122(1), Florida Statutes (2015), we reverse.

Lansdowne’s mortgage on the subject property was executed and recorded in September 2007. The County’s tax lien on the subject property was recorded in January 2014. The tax lien resulted from the tax assessor’s determination that the property improperly received homestead benefits. In May 2015, Lansdowne filed a foreclosure action against the County, among others, alleging in part that because its mortgage was recorded prior to the recording of the County’s tax lien, its mortgage had priority over the tax lien. Lans-downe and the County filed cross-motions for summary judgment on the issue of priority. The trial court granted Lans-downe’s motion and denied the County’s motion, concluding that Lansdowne’s mortgage was superior to the County’s tax lien pursuant to Florida’s recording statute. See § 695.01(1), Fla. Stat. (2015). After the trial court entered a final judgment of foreclosure and an order denying the County’s motion for rehearing, the County appealed.

Generally, courts in Florida, employ section 695.01(1) when determining the priority of interests in real property. Barton v. MetroJax Prop. Holdings, LLC, 207 So.3d 304, 306 (Fla. 3d DCA 2016). “However, the Florida Legislature has enacted statutes giving priority to ‘certain liens over the priority established under chapter 695.”’ Id. (quoting City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924, 928 (Fla. 2013)). One such example is section 197.122(1), which states that “[a]ll taxes imposed pursuant to the State Constitution and laws of this state shall be a first lien, superior to all other liens, on any property against which the taxes have been assessed .... ” See City of Palm Bay, 114 So.3d at 928. Thus, according to the unambiguous text of section 197.122(1), the County’s homestead tax lien shall be “superior to all other liens,” including Lans-downe’s mortgage lien.

Lansdowne contends that the general priority scheme in section 197.122(1) does not apply to the instant tax lien because there is a more specific statute, section 196.161, Florida Statutes (2015), which addresses the priority of liens that are imposed to remedy the improper grant of homestead tax exemptions. See § 196.161(3), Fla. Stat. (2015) (stating that before the notice of the homestead tax lien is filed among the appropriate public records, “any purchaser for value of the subject property shall take free and clear of such lien.”). However, section 196.161(3) does not expressly or impliedly affect the priority of homestead tax liens over other liens on a particular piece of real property. When read in context, it is clear that the statute covers the subject of when and how such a lien attaches to a given property:

The lien herein provided shall not attach to the property until the notice of tax lien is filed among the public records of the county where the property is located. Prior to the filing of such notice of lien, any purchaser for value of the subject property shall take free and clear of such lien. Such lien when filed shall attach to any property which is identified in the notice of lien and is owned by the person who illegally or improperly received the homestead exemption....

Id. We therefore disagree with Lans-downe’s argument, adopted by the trial court, that the priority of the County’s tax lien in this case should be governed by section 196.161(3) instead of section 197.122(1). Accordingly, we find that the trial court erred by denying the County’s motion for summary judgment and granting Lansdowne’s motion for summary judgment on the issue of priority. We also find Lansdowne’s remaining arguments to be meritless, and we therefore decline to specifically address them.

Reversed and remanded.


text:
    Christian M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-920
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Christian M. Johnson, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We 'affirm, without discussion, the trial court’s summary denial of Appellant’s motion to correct illegal sentence filed pursuant to Florida Rules of Criminal Procedure 3.800(a). However, we direct the trial court to correct the scrivener’s error in the “corrected judgment” to properly reflect that Appellant was convicted in Count I of home invasion robbery with a deadly weapon,

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER’S ERROR. .

ORFINGER, EVANDER and BERGER, JJ., concur.


author: ORFINGER, J.

text:
    Jason L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2543
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017

      Jason L. Williams, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Jason L. Williams appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

Williams was convicted of robbery while masked and two counts of grand theft. He was sentenced to life in prison with a thirty-year minimum mandatory for the robbery, and ten years in prison for the grand thefts. Additionally," he was designated as both a habitual felony offender (HFO) and a prison releasee reoffender (PRR). This Court affirmed Williams’s judgment and sentence on appeal. Williams v. State, 134 So.3d 965 (Fla. 5th DCA 2014).

Williams filed his first motion to correct sentence, challenging his HFO and PRR designations. The trial court dismissed the motion not on the merits, but as facially insufficient. Williams appealed, and this Court affirmed. Williams v. State, No. 5D17-162, 2017 WL 1829579 (Fla. 5th DCA May 2, 2017). Williams then filed the instant motion to correct sentence, raising the same challenge to his HFO and PRR designations but now including record attachments. The trial court denied relief, rilling that the instant motion was improperly successive. This-appeal-follows;

The error to 'be corrected in a rule 3.800(a) motion must be apparent from the face of the record. Johnson v. State, 60 So.3d 1045, 1049 (Fla. 2011). Accordingly, such a motion cannot require an evidentiary hearing. Id. A.s no evidentiary hearing is required or permitted, this Court is presented with pure issues of law on appeal, and applies the de novo standard of review. Smith v. State, 143 So.3d 1023, 1024 (Fla. 4th DCA 2014).

While rule 3.800(a) permits a defendant to file successive motions, a defendant is precluded from re-litigating the same issue previously decided on the merits in a successive rule 3.800(a) motion. See State v. McBride, 848 So.2d 287, 290-91 (Fla. 2003) ‘(noting that, by “barring the filing of successive repetitive 3.800 • motions, [Florida appellate] courts essentially have applied collateral estoppel principles”); Ellis v. State, 853 So.2d 484, 485 (Fla. 5th DCA 2003) (explaining defendant’s successive rule 3.800(a) motion violated law of case doctrine).

In his successive motion, Williams alleges his PRR designation is illegal because the trial court used the wrong dates in determining whether he committed the requisite offenses within the three-year statutory time frame. Williams’s prior motion was dismissed as facially insufficient because he failed to allege which court records would show that his PRR designation was improper. The instant motion corrects that deficiency and is facially sufficient. Because the first motion was not denied on the merits, the instant motion is not improperly successive and should be considered by the trial court as to the PRR designation. However, we affirm as to the HFO designation without further discussion. Accordingly, we reverse and remand for the trial court to address the PRR claim on the merits.

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

BERGER and WALLIS, JJ., concur.


text:
    Steven L. BALDWIN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3868
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    Steven L. Baldwin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, RAY, and OSTERHAUS, JJ., CONCUR.


text:
    Jerrica Kelly DUNCAN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3161
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017.
    Jerrica Kelly Duncan, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    James WHITFIELD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3718
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    James Whitfield, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.141(d)(5) and 9.141(d)(6)(C).

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


text:
    Richard BAILEY, Petitioner, v. Julie L. JONES, Sec. FL Dept. of Corrections, Respondent.
    CASE NO. 1D17-3760
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    Richard Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habe'as corpus is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ, CONCUR. ‘


author: LaROSE, Chief Judge.

text:
    James L. ROBISON, Appellant, v. CITIBANK, N.A, as successor trustee to US Bank, National Association as trustee under the pooling and servicing agreement dated as of July 1, 2007, Mastr Adjustable Rate Mortgages Trust 2007-HF2 mortgage pass-through certificates, series 2007-HF2; United States of America; and the Bank of Commerce, Appellees.
    Case No. 2D16-4714
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017
    Rehearing Denied December 22, 2017
    James L. Robison, pro se.
    Anthony R. Yanez and Nicole R. Topper of Blank Rome LLP, Fort Lauderdale, for Appellee Citibank, N.A.
    No appearance for remaining Appellees.
   LaROSE, Chief Judge.

We affirm the trial court’s order denying a motion to stay the foreclosure sale and the order denying Mr. Robison’s motion to disqualify the trial judge. The appeals of the final judgment and the order on the emergency motion for continuance are dismissed as untimely filed.

Affirmed, in part, and dismissed, in part.

SILBERMAN and MORRIS, JJ, Concur.


text:
    Anthony James SAULSBERRY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4431
    District Court of Appeal of Florida, First District.
    Opinion filed October 31, 2017.
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Mendez-Jorge v. State, 135 So.3d 464 (Fla. 5th DCA 2014).

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


author: SUAREZ, J.

text:
    Ishsha SHALEM, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D17-2312
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for respondent State of Florida.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   SUAREZ, J.

This matter first came before this Court upon Petitioner Ishsha Shalem’s petition for a writ of habeas corpus claiming her pretrial detention without bond is unlawful. A review of the record shows that the Petitioner was ordered detained without any condition for pretrial release pending trial. The record and transcripts from the hearings showed that the requirements of section 907.041, Florida Statutes (2017) and Florida Rules of Criminal Procedure 3.131 and 3,132 were not followed and that the trial court had failed to make the proper findings before ordering pretrial detention. We granted the petition and ordered the trial court to hold a hearing no later than Monday, October 30, 2017 and to comply with the requirements of section 907.041, Florida Statutes (2017) and Florida Rules of Criminal Procedure 3.131 and 3.132 in determining the appropriate conditions for either release or pretrial detention.

The matter is back before us on the Petitioner’s Motion to Enforce Habeas Corpus. A review of the transcript from the hearing on Monday, October 30, 2017 shows that the trial court failed to delineate the findings and reasons for pretrial detention. As such, we send this matter back—once more—for a hearing to be held before noon Wednesday, November 1, 2017, and for the trial court to specifically set forth its findings, in accordance with the Rules of Criminal Procedure and section 907.041, for either pretrial release or detention. The Petitioner shall remain in custody pending the determination of pretrial release or detention.

We also find that in the interest of pursuing fairness, further proceedings in this case should be held before a different judge.


text:
    Joseph SCOTT, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2032
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017
    Joseph Scott, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.
   SUAREZ, J.

By petition for writ of habeas corpus Joseph Scott seeks a new trial, or a new evidentiary hearing on his 2016 petition filed pursuant to Florida Rule of Criminal Procedure 3.850, or alternatively, a new appeal from his original judgment and sentence. We deny the writ.

Scott was originally convicted and sentenced in May 2014. Scott’s first postcon-viction motion was granted, and he was resentenced accordingly. He filed a second Motion for Post-Conviction Relief on October 13, 2016, claiming ineffective assistance of his counsel when he took the original May 2014 plea. The trial court denied the petition as it was filed two years, four months, , and two weeks after the judgment and sentence were filed, beyond the two-year time limit set forth in Rule 3.850. He has now filed a third post-conviction petition styled as a petition for habeas corpus, alleging the same previously raised claims of ineffective assistance of counsel. Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850. See Baker v. State, 878 So.2d 1236, 1245-46 (Fla. 2004),

We therefore deny the petition as successive and untimely filed. .


text:
    Elli GUTFRUCHT, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION; Ocwen Loan Servicing, LLC, as successor in interest to Homeward Residential, Inc. f/k/a American Home Mortgage Servicing, Inc.; Ralf Gutfrucht; Sherwood At the Crossroads Homeowners Association, Inc; and Department of Revenue, Appellees.
    Case No. 2D16-711
    District Court of Appeal of Florida, Second District.
    Opinion filed November 3, 2017
    Rehearing Denied January 3, 2018
    Thomas Erskine Ice and Amanda L. Lundergran of Ice Appellate, Royal Palm Beach (withdrew after briefing), for Appellant.
    Elli Gutfrucht, pro se.
    David Rosenberg and Robert R. Edwards of Robertson, Anschutz & Schneid, PL, Boca Raton, for Appellee Federal National Mortgage Association.
   PER CURIAM.

Elli Gutfrucht appeals a final judgment of foreclosure in favor of Federal National Mortgage Association (Fannie Mae). We affirm without comment in all respects save one. Fannie Mae has correctly conceded that the amount due stated in the final judgment was mistakenly based on a principal amount of $384,309.89. Fannie Mae’s evidence was sufficient to show that the actual principal amount was $308,790. Accordingly, we reverse the final judgment’s computation of the amount due and remand for the trial court to recalculate that sum based on the correct principal amount and enter a judgment reflecting that amount. See, e.g., Messiha v. First Fla. Credit Union, 139 So.3d 376, 377 (Fla. 1st DCA 2014) (reversing and remanding for the recalculation of the interest awarded in a final judgment of foreclosure where amount awarded was based on a miscalculation).

Affirmed in part; reversed in part; remanded with directions.

SILBERMAN, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: PER CURIAM. LAMBERT, J.,

text:
    Christopher BOATWRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1849
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 3, 2017
    Christopher Boatwright, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

BERGER and EISNAUGLE, JJ., concur.

LAMBERT, J., concurs, with opinion.

LAMBERT, J.,

concurring.

I concur with the affirmance of the post-conviction court’s summary denial of Appellant’s Florida Rule of Criminal Procedure 3.850 motion for postconviction relief because the lower court reached the right result, albeit for the wrong reason. Following a bench trial, Appellant was found to have willfully and materially violated his probation by committing a new criminal offense. The trial court revoked Appellant’s probation and sentenced him to serve ten years in prison. Appellant timely moved for a new trial, and after his motion was denied, he appealed his judgment and sentence. Earlier this year, this court affirmed Appellant’s judgment and sentence without opinion. Boatwright v. State, 222 So.3d 1226 (Fla. 5th DCA 2017).

Approximately three -months after the mandate issued on his direct appeal, Appellant filed the instant rule 3.850 motion, raising four grounds for relief. In summarily denying the motion, the postconviction court first acknowledged in its order that Appellant had appealed his judgment and sentence and that our court denied him relief in January of this year. However, the court then inconsistently wrote that because Appellant’s postconviction claims were related to the violation of probation proceedings held on November 3, 2014, and since Appellant “did not appeal,” Appellant’s motion was untimely for not being filed within two years of the judgment and sentence becoming final as required by rule 3.850(b).

Appellant’s motion was timely because it was filed within two years of this court’s mandate on direct appeal. See Hall v. State, 86 So.3d 590, 590 (Fla. 5th DCA 2012) (citing Rosado v. State, 654 So.2d 623 (Fla. 5th DCA 1995)). Typically, we would reverse the order on appeal and remand for the lower court to consider the merits of the motion. However, to do so here would serve no purpose because, based on our record, the summary denial of Appellant’s motion is appropriate. See Miller v. State, 829 So.2d 321, 322 (Fla. 5th DCA 2002) (affirming an order summarily denying a defendant’s rule 3.850 motion under the “tipsy coachman” doctrine because the trial court properly denied relief, though not for the correct reason). Three of Appellant’s four grounds for relief asserted in his motion are based on trial court error, which is not cognizable in a rule 3.850 motion for postconviction relief. See Swanson v. State, 984 So.2d 629, 629 (Fla. 1st DCA 2008) (citing Hodges v. State, 885 So.2d 338, 366 (Fla. 2004); Gorham v. State, 521 So.2d 1067, 1070 (Fla. 1988)).

In his remaining claim, Appellant argues that his trial counsel was ineffective in failing to object or to otherwise preclude the trial court from proceeding with his violation of probation 'trial prior to the resolution of the separate case on the new criminal offense that constituted the violation of his probation. This claim is merit-less. An attorney is not ineffective for failing to insure that a defendant’s probation violation hearing is held after any trial or plea on his new law violations because a defendant has no right to insist that his cases be heard in any • particular order. Lister v. State, 925 So.2d 400, 402 (Fla. 5th DCA 2006). This is a matter within the sound discretion of the trial court. Id.


text:
    Leighdon HENRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-92
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 3, 2017
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Leighdon Henry, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING-

PER CURIAM.

We grant Leighdon Henry’s Motion for Rehearing, withdraw our earlier per cu-riam affirmance and substitute the following in its place.

As to Counts 1, 2, 3 and 5, the sentencing documents shall, on remand, be amended to reflect that Henry is entitled to a review of his- sentence after serving twenty years, not twenty years after the date of his initial sentencing. See § 921.1402(2)(d), Fla. Stat. (2014); Tyson v. State, 199 So.3d 1087, 1089 (Fla. 5th DCA 2016).

AFFIRMED and REMANDED.

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Susan White DOWLING, Wife, Appellant, v. Robert Jason DOWLING, Husband, Appellee.
    CASE NO. 1D16-2264
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017
    John N. Bogdanoff, The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Beth M. Terry, Law Office .of Beth M. Terry, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Susan "White Dowling, the former wife, appeals from a final judgment of dissolution of marriage. We agree with her argument that the alimony award must be recalculated, but otherwise affirm without comment.

On June 17, 2014, Ms. Dowling filed a petition for dissolution of marriage from her husband Jason Dowling. After conducting discovery, the parties went to a bench trial on issues related to the equitable distribution of assets and debt and to the determination of entitlement to alimony. After hearing the evidence, the' trial court found Ms. Dowling’s net monthly income to be $5,418.81 and her monthly expenses to be $6,199.28. The court found Mr. Dowling’s net monthly income to be $11,729.31 and his monthly expenses to be $10,037.06. The court’s income and expense findings were based on the parties’ financial affidavits which indicated that Jason Dowling paid the full monthly amount of $2,053.98 on a line of credit owed by the parties. Based on these numbers, the court found Jason Dowling had an ability to pay alimony, and ordered him to pay durational alimony to his former wife of $1,200 per month for five years.

In general, “[t]he primary factors to be considered in deciding to award alimony are the needs of one spouse and the ability of the other spouse to pay.” Motie v. Motie, 132 So.3d 1210, 1213 (Fla. 5th DCA 2014) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980)). An alimony award is insufficient if it “does not ‘provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.’” Rhoads v. Rhoads, 213 So.3d 968, 970 (Fla. 1st DCA 2015) (quoting Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla. 2000)).

In this case, the trial court’s alimony calculation did not take into account the change it ordered with respect to the parties’ payment of the $2,053.98/month line of credit debt. The trial court made each party responsible to pay for, one-half of .that debt, whereas the financial affidavits used to compute alimony assumed that Mr. Dowling was paying it entirely himself. Making Ms. Dowling responsible for one-half. of this .debt substantially increased her monthly expenses, and comparatively lowered Mr. Dowling’s monthly expenses, so that their, expenses were not accurately reflected in the court’s findings. Indeed, adding a line-of-credit payment of over $1,000 per month to Ms, Dowling’s expenses consumes almost all of the $1,200 alimony award.and doesn’t appear to “provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Rhoads, 213 So.3d at 970 (internal quotation marks and citation omitted).

Accordingly, we reverse the alimony award for reconsideration in light of the court’s distribution of the marital debt. The judgment is otherwise affirmed.

WOLF, OSTÉRHAUS, and KELSEY, JJ., CONCUR.


author: CRENSHAW, Judge.

text:
    Corey L. BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5617
    District Court of Appeal of Florida, Second District.
    Opinion filed November 8, 2017

      Brett S. Chase of Chase Law Florida, P.A., Saint Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Corey L. Brown, Jr., appeals his judgment and sentence for second-degree murder with a firearm, an offense he committed as a juvenile. After a jury found him guilty, the trial court sentenced Brown to forty years’ prison with a twenty-five-year mandatory minimum term based on the jury’s finding that he caused the victim’s death by discharging a firearm during the offense. See § 775.087(2)(a)(3), Fla. Stat. (2013). We find merit in only one of the issues raised in this appeal and affirm Brown’s conviction without further comment. We also conclude that the trial court conducted an appropriate sentencing hearing in accordance with section 921.1401, Florida Statutes (2014), and thus affirm the trial court’s decision to sentence Brown to forty years’ prison. See, e.g., Young v. State, 219 So.3d 206, 209 (Fla. 5th DCA 2017). Because we agree with Brown that the trial court failed to make written findings regarding his entitlement to a sentence review as now required by section 775.082(3)(a)(5)(c), Florida Statutes (2014), we remand for the trial court to make those findings.

Brown preserved this issue by raising it in a motion to correct sentencing error that was deemed denied after it had not been ruled on within sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B). Because Brown was convicted under section 782.04(2), Florida Statutes (2013), of an offense that was reclassified as a life felony pursuant to section 775.087(l)(a) which he committed before he was eighteen, he is eligible for sentence review under section 775.082(3)(a)(5). However, the record contains no written findings that Brown is entitled to sentence review as required by section 775.082(3)(a)(5)(c). Accordingly, we must remand for the trial court to make the necessary written findings regarding Brown’s entitlement to sentence review. See Cook v. State, 225 So.3d 268, 269 (Fla. 4th DCA 2017); Cutts v. State, 225 So.3d 244, 245-46 (Fla. 4th DCA 2017); see also Hawkins v. State, 219 So.3d 982 (Fla. 1st DCA 2017).

Affirmed and remanded with directions.

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Maria DE BRITO, Appellee.
    No. 3D16-1466
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017

      Blank Rome, -LLP, and Anthony R. Ya-nez and Nicole R. Topper (Ft. Lauder-dale), for appellant.
    Jacobs Keeley, PLLC, and Bruce Jacobs, for appellee.'

      Before ROTHENBERG, C.J.,and SUAREZ and SALTER, JJ.
   SUAREZ, J.

Deutsche Bank National Trust Company (“Bank”) appeals from a final order granting homeowner Maria de Brito’s (“Appel-lee”) motion for involuntary dismissal of the Bank’s complaint in foreclosure. We reverse.

In 2006, Appellee’s husband, Alfredo Brito, entered into an adjustable rate mortgage with a negative amortization provision. The Note provides that the Lender had the right to change the interest rate and that any deficiency would be added to the principal. Together with the Note, Mr. Brito and Appellee executed the mortgage. The payment history reflects that the amount of the monthly payments remained the same- for two and a half years. In August 2008, Mr. Brito sent in his usual monthly payment, but Ocwen, the current servicer, rejected the payment and returned the check to Mr. Brito. In- June 2010, the loan servicer sent a demand letter to Mr. Brito, advising him of the default and necessary steps to cure the default. With no response, in August 2011, the Bank filed its complaint in foreclosure. The Appellee filed an answer and raised a long list of affirmative defenses, including failure to fulfil conditions precedent, faulty practices of the mortgage industry in general, unclean hands, and conspiracy to inflate premiums, among others. None of the Appellee’s affirmative defenses alleged that the Bank failed to provide evidence of a change in interest rate or payment amount, or that any alleged failure to provide this notice improperly caused Appel-lee to default.

Prior to the two-day bench trial, Appel-lee’s counsel deposed Ocwen’s witness, Mr. Blanchard, for over three hours. At trial, Mr. Blanchard testified in detail as to the servicer’s boarding process, verifications, the payment history, the notice of default and acceleration. The- Note ■ and. the demand letter were admitted into evidence by the trial court and the payment history was admitted into evidence by stipulation. At the end of trial, the Bank moved for final judgment, and the Appellee moved for an involuntary dismissal. On May 31, 2016, approximately three weeks after conclusion of the trial, the trial court entered a written Final Judgment granting the Appellee’s motion for involuntary dismissal, concluding—in total contradiction to its admission of Ocwen’s witness’s testimony and documents into evidence at trial—that the testimony was hearsay, and that the Bank had thus failed to prove the Appellee received a notice of payment or interest change that could trigger a default (while noting that such was not required). Without more, the trial court’s Final Judgment granting involuntary dismissal relied upon and adopted a trial court’s ruling from a separate and unrelated case before a different judge with different witnesses, evidence, and issues to determine that the Bank’s witness in this case did not provide an adequate foundation sufficient to meet the business records exception under the hearsay rule. We reverse.

Our standard of review of an order granting an involuntary dismissal is de novo, viewing all of the evidence presented and all available inferences from that evidence in the light most favorable to the non-moving party. Maggolc, Inc. v. Roberson, 116 So.3d 556, 558 (Fla. 3d DCA 2013). When considered in the light most favorable to the Bank, the record on appeal establishes sufficient evidence to sustain the Bank’s complaint in foreclosure.

The business records exception, section 90.803(6), Florida Statutes (2016), allows a party to introduce evidence that would normally be inadmissible hearsay if:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State. 993 So.2d 952, 956 (Fla. 2008). The foundation for admission of a business record may be established by a records custodian or other qualified witness, and that witness authenticating the records need not be the person who actually prepared, the business records. See Deutsche Bank Trust Co. Ams. v. Frias, 178 So.3d 505 (Fla. 4th DCA 2015); Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209 (Fla. 5th DCA 2015); Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014). The witness just needs to be well enough acquainted with the activity to testify that the successor business relies on those records, and that the circumstances indicate the records are trustworthy. Bank of New York v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015); Berdecia, 169 So.3d at 216 (“Although [the witness] did not personally participate in the ‘boarding process ... [the witness] demonstrated a sufficient familiarity with the ‘boarding’ process to testify about it.”); Cayea 138 So.3d at 1217. It is not necessary to present a witness who was employed by the prior servicer or who participated in the boarding process. Ocwen Loan Servicing, LLC v. Gundersen, 204 So.3d 530 (Fla. 4th DCA 2016). “Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’” Calloway, 157 So.3d 1064, 1071 (Fla. 4th DCA 2015); see also Bank of New York Mellon v. Johnson, 185 So.3d 594 (Fla 5th DCA 2016); Wells Fargo Bank, N.A. v. Eisenberg, 220 So.3d 517 (Fla. 4th DCA 2017).

Here, Ocwen’s witness authenticating the records, Mr. Blanchard, provided enough testimony to meet these requirements. Mr. Blanchard’s testimony concerning the loan .payment history and third party .default letter was not inadmissible hearsay and.'should have been admitted as an exception to the hearsay rule. Mr. Blanchard’s testimony showed he was sufficiently acquainted with the history of the records in this ease to testify to the practice and procedure for generating the default notice and demand letter, the servicing platform, Ocwen’s boarding process, and the requirements for admitting mortgage documents. Mr. Blanchard testified that- American Home Mortgage was absorbed into Ocwen in 2012, and that all of the prior servicers’, documents were verified for accuracy before incorporation into Ocwen’s records; Three weeks-after the trial ended and "after the trial court had admitted -the documents 'and testimony into evidence the trial court decided that Mr. Blanchard was not familiar enough with the practices and procedures- of Moss Codilis, one of the prior third party vendors, and excluded the demand letter for that reason. Although Mr. Blanchard was not familiar with the prior third pax’ty vendor’s recordkeeping practices and policies, he did not have to be because, the business records exception does not contain such a requirement. See Cayea 138 So.3d at 1217. Mr. Blanchard had only to demonstrate that he was well enough acquainted with preparation of the demand letter in order to authenticate it. Calloway, 157 So.3d 1064. Mr. Blanchard’s testimony provided sufficient. explanation of the boarding process, and properly laid the foundation for. the admissibility of the loan payment history and the demand letter. The trial court erred by excluding the default notice from evidence after the business records exception was properly met, based upon a non-binding ruling by another trial judge in an unrelated case.

Additionally, the payoff printout should also have been admitted as a business records exception to the hearsay rule and the trial court erred by excluding it. The Bank alleged and proved via the payoff printout that the June 2008 payment and all subsequent payments were not made, and the trial court’s ruling that the Bank failed to prove a default is erroneous and must be reversed. Printouts of data prepared for trial may be admitted under the business records exception even if the printouts themselves are not kept in the ordinary course of business so long as a qualified witness testifies as to the manner of preparation, reliability, and trustworthiness. Cayea, 138 So.3d at 1217. See e.g., Lindsey v. Cadence Bank, N.A., 135 So.3d 1164, 1168 (Fla. 1st DCA 2014) (“[t]he law does not require an affiant who relies on computerized bank records to be the records custodian who entered or created the data, nor must the affiant identify who entered the data into the computer.” (quoting Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780, 782 n.2 (Fla. 4th DCA 2011))).

As a last matter, we conclude the Appellee waived any defense of its claim that the Bank was required to provide notice of interest rate and payment change to the Appellee; the trial court erred in imposing this burden of proof at trial. The trial court acknowledged that the Note does not contain any requirement to notify the borrower of any change in interest rate or payment amount. Furthermore, the Appellee never raised the issue in its affirmative defenses. The Appellee only raised the usual paragraph 22 defense, which was refuted by the demand letter (initially received into evidence, then- improperly excluded). Thus, the Bank was never put on notice that notice of a rate change or payment amount would be an issue at trial. The trial court was not authorized to deny foreclosure merely because it believed the borrower signed a “bad bargain.”

We thus reverse the entry of involuntary dismissal and remand for entry of final judgment of foreclosure.

      . Trial took place on April 11, 2016, and on May 12, 2016.


text:
    FLUOR-ASTALDI-MCM Joint Venture, Petitioner, v. FLORIDA DEPARTMENT OF TRANSPORTATION, and Archer Western-Demoya, Joint Venture, Respondents.
    CASE NO. 1D17-4726
    District Court of Appeal of Florida, First District.
    Opinion filed November 13, 2017
    Cynthia S. Tunnicliff, Brian A. Newman, and Brandice D. Dickson, Tallahassee, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

LEWIS, BILBREY, and M.K. THOMAS, JJ., CONCUR.


text:
    CITY OF MIAMI, Petitioner, v. Larry HAGAN, Respondent.
    No. 3D16-2177
    District Court of Appeal of Florida, Third District.
    Opinion filed November 13, 2017

      Victoria Méndez, City Attorney, and Forrest L. Andrews, Assistant City Attorney, for petitioner.
    Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G. Gibbons (Ft. Lauderdale), for respondent.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   SUAREZ, J.

The City of Miami (the “City”) petitions for second-tier certiorari from a decision from the appellate division of the circuit court that overturned the City Manager’s termination of former police officer Larry Hagan (“Hagan”). While the proper venue for appeal of the City Manager’s action was the appellate division of the circuit court, we conclude that the appellate division departed from the essential requirements of law in reversing Hagan’s termination. As grounds to reverse, the appellate division held that the Civil Service Board lacked jurisdiction to hear Hagan’s case as it was required to and failed to hold his hearing within thirty days of Hagan filing his grievance; and that the City Manager was required to hold a separate hearing before terminating Hagan, and failed to do so. We reverse each of the holdings in the opinion as each departs from the essential requirements of the law. We therefore grant the' City’s petition and quash the opinion of the appellate division and remand for reinstatement of the City Manager’s judgment.

Factual Background

While the parties disagree about the details of the preliminary events, for purposes of this appeal it is sufficient to state that in 2013 Hagan’s on-duty sergeant recommended that he be reprimanded for behavior which is irrelevant to this appeal. Despite the sergeant’s recommendation, Hagan’s commander determined that he should be suspended for 120 hours based on a “pattern of behavior.” Hagan requested a grievance hearing by the Civil Service Board, pursuant to the remedies afforded him under the City of Miami Code of Ordinances. The hearing took place and the Civil Service Board found Hagan guilty of numerous violations and recommended the 120 hour suspension. Those findings and recommendation- were forwarded to the City Manager, also pursuant to the procedures set forth in the Code of Ordinances. The City Manager affirmed the Civil Service Board’s factual findings, but rejected its suspension recommendation and instead terminated Hagan. Hagan was credited back the time already served on the 120 hour suspension after his termination.

Hagan then filed a Petition for Certiora-ri with the appellate division of the circuit court alleging that he was not afforded due process because he was not notified he could be terminated; that the essential requirements of the law were not observed because he was punished twice for the same conduct; and that the Civil Service Board’s findings of fact were not supported by competent substantial evidence. After oral argument, the appellate division of the circuit court requested additional documents from the parties, but did not inform the parties why it requested those documents and did not request any additional briefing from the parties.

Subsequently, the appellate division issued the opinion in question and granted Hagan’s petition, concluding that the Civil Service Board lacked jurisdiction to adjudicate Hagan because it was required by the City Ordinance to hold his grievance hearing within thirty days of the filing'of his grievance request and- did not do so. The appellate division also found that the City Manager’s disciplinary decision violated the essential requirements of law because the City was required to hold a separate hearing when the City seeks to terminate am employee and fails to do so. Finally, the appellate division concluded that it had jurisdiction to hear Hagan’s petition and ordered that he be reinstated with back pay. We reverse, as the appellate division deviated from the essential requirements of the law in arriving at each decision.

Procedures Followed by the Parties

We first note that, as established in our, parallel opinion in City of Miami v. Jean-Phillipe, No. 16-1172, 232 So.3d 1138, 2017 WL 5248184 (Fla. 3d DCA Nov. 13, 2017),, which, is issued simultaneously herewith, Hagan properly availed himself of his right to review the City Manager’s decision in the appellate division of the circuit court. Miami-Dade Cnty. v. Moreland, 879 So.2d 23 (Fla. 2d DCA 2004); Bass v. Metro Dade Cnty. Dep’t of Corr. and Rehab., 798 So.2d 835 (Fla. 3d DCA 2001); City of Miami Springs v. Barad, 448 So.2d 510, 511 (Fla. 3d DCA 1983); Sch. Bd. of Leon Cty. v. Mitchell, 346 So.2d 562, 568 (Fla. 1st DCA 1977).(cited by Barad, examining history of the APA and holding “in the vast majority of cases, the sole method of challenging agency action, whether formally recognized as an ‘order’ -or a ‘rule’, as it affects the substantial interests of a party is by petition for review to the appropriate Court of Appeal.”).

Further, although Hagan captioned his pleading in the appellate division of the circuit court as a petition for certiorari, the review which was, - and should have been, afforded by the appellate division was plenary. 2 Fla. Prac., Appellate Practice § 19:9 (2016 ed.) stating:

Article V, § 5(b) of the Florida Constitution states that the circuit courts shall ‘have the power of direct review of administrative action prescribed by general law.’ However, there is often no general statute that authorizes an appeal from a decision by a local administrative body such as a county commission. To implement the basic right of appellate review, the courts have held that an . unappealable decision by a local administrative tribunal is reviewable by certio-rari in the circuit court. This use of certiorari is unlike any other, in that the scope of review is actually more like a plenary appeal.

[e.s.] In this case, no general statute authorizes appeal from the actions of the City Manager so appeal to the appellate division is the permitted remedy.

City of Miami Code Provisions

In pertinent parts, the City of Miami Code of Ordinances states:

40-122—Disciplinary Actions Generally-
(a) Authority of city manager, department director; appeals to board; investigatory, evidentiary powers of board. Any officer or employee in the classified service may be removed, fined, laid off, or reduced in grade by the city manager or by the director of the department in which he/she is employed, for any cause which will promote the efficiency of the service; but he/she must be furnished with a written statement of the reasons therefor within five days from the date of the removal, suspension, fine, layoff, or reduction in grade, and be allowed a reasonable time for answering such reasons in writing, which shall be made a part of the records of the board; and he/she may be suspended from the date when such written statement of reason is furnished him/her. No trial or examination of witnesses shall be required in such case except at the discretion of the city manager or the department director.
Any employee in the classified service who deems that he/she has been suspended, removed, fined, reduced in grade or demoted without just cause may, within 15 days of such action by the department director, request in writing a hearing before the civil service board to determine the reasonableness of the action. [e.s.] The board shall, within 30 days after appeal of the employee disciplined, proceed to hear such appeal. After hearing and considering the evidence for and against the employee, the board shall report in writing to the city manager its findings and recommendations. The city manager shall then sustain, reverse, or modify the action of the department director ....
40-124—Appeals from Disciplinary Actions.
(a) Generally. When any employee in the classified service with permanent civil service status has been suspended, reduced in rank, or dismissed appeals to the board, the appeal must be made in writing within 15 days from the effective date of the suspension, reduction, or dismissal; and the board within 30 days shall proceed to hear such appeal. The board, recognizing the disciplinary authority of the administrative head ... shall make its findings in writing to the city manager for his/her consideration, who shall enter an order affirming, reversing or modifying the disciplinary action of the department head.... ■ (emphasis added)

It is noted that the Code of Ordinances does not expressly address the rights' of the parties to any further review of a disciplinary action after the City Manager has issued her or his final determination. Nevertheless, on the authorities cited above, an affected employee—but not the" City—has the right to review by the appellate division of the circuit court.

Punishments Imposed

As also, established in Jean-Phil-lipe, the City of Miami Ordinances are clear that following a Civil Service Board review of a disciplinary action, the City Manager shall review the Civil Service Board’s factual findings to determine whether they are supported by substantial competent evidence and also review the Board’s disciplinary recommendation. In reviewing the disciplinary recommendation, the City Manager has three options: he or she may 1) affirm; 2). reverse; or 3) modify the disciplinary action against the employee. Jean-Phillipe, No. 16-1172 (Fla. 3d DCA Nov. 13, 2017). It is equally plain that the term “modify” necessarily includes the possibility of an increase in that disciplinary action up to and including dismissal. Thus, any employee who opts to seek a Civil Service Board review of a disciplinary action against him or her takes the risk that a harsher penalty may be imposed as a result of such an appeal and must give due consideration to that possibility when deciding whether or not to seek Civil Service Board review. See, City of Miami v. Reynolds, 34 So.3d 119, 120 (Fla. 3d DCA 2010), where this Court agreed with the argument that “once misconduct has been determined by the Civil Service Board, the penalty to be assessed comes within the exclusive discretion of the City Manager and may be imposed without elucidation.”

Because the Ordinance language is clear and because there is a long line of cases reconfirming the City Manager’s authority to “modify” a disciplinary sanction, we reject Hagan’s contention that he was not on notice that he could be terminated by the City Manager. We further conclude that the appellate division violated this clearly established principle of law in ruling that the City was required to institute separate proceedings in order to terminate a civil service employee. Nowhere is there any authority for such a requirement. As stated above, the City.Manager has-the sole authority to affirm, reverse, or to modify the disciplinary action against the employee. Such modification can include dismissal. Thus, we reverse on these issue.

We acknowledge Hagan’s argument that the City Manager’s “modification” of his discipline.from suspension to termination creates the appearance that. Hagan was penalized for his decision to appeal , his initial suspension through the Civil Service Board as opposed to arbitration or determining not to challenge the suspension. However, that is the result of the current wording of the Ordinances that we are powerless to modify.

Factual Findings

As indicated above, upon review of the Civil Service Board’s recommendations, the City Manager accepted the Civil Service Board’s findings of fact. Thus, the City Manager’s ability to review those facts is not an issue in this appeal. We note only to reiterate that the City Manager has the ability to review such findings of fact for the limited purpose of determining whether they are supported by competent substantial evidence and that her or his review is to be conducted in the same manner as any other reviewing agency. Jean-Phillipe and cases cited therein.

Civil Service Board’s Duty to Conduct Hearings

After oral argument, the appellate division of the circuit court directed the parties to submit additional documents. Based on those documents, the appellate division sua sponte concluded that the Civil Service Board did not have jurisdiction to conduct the hearing requested by Ha-gan because it was required to and had not conducted such hearing within thirty- days of Hagan’s -request.

This issué was not' raised by either party to the proceeding before it, but the appellate division determined that the issue of jurisdiction may be raised at any time. We do not dispute that'ruling, but determine that it was misapplied in this case,, Dep’t of Revenue v. Graczyk, 206 So.3d 157, 159 (Fla. 1st DCA 2016) (“The issue of whether a lower tribunal has subject matter jurisdiction is a question of law-subject to de novo review.” citing Faulk v. State, Dep’t of Revenue, 157 So.3d 534, 535-36 (Fla. 1st DCA 2015)). We are unable to locate, and the appellate division did not cite to, any case in which the failure to hold a hearing within a specified time has deprived a tribunal of jurisdiction. “Generally so long as a court has jurisdiction over the subject matter and a party, a procedural defect occurring before the entry of a judgment does not render a judgment void.” Sterling Factors Corp. v. U.S. Bank Nat. Ass’n, 968 So.2d 658, 666 (Fla. 2d DCA 2007).

Once again, we reverse as the appellate division’s conclusion departed from the essential requirements of the law. While we acknowledge that Ordinances 40-122 and 40-124 state that the Civil Service Board “shall proceed to hear sueh an appeal” thirty days from the appeal by an employee, we conclude that such terminology does not mean that the Civil Service Board loses its jurisdiction to hear an appeal if more than thirty days lapse after an employee files a request for such a hearing. First, there is no precedent for such a conclusion in the wide history of proceedings subsequent .to Civil Service Board recommendations, and the Ordinances make no such conclusion. The ordinances require the Board after thirty days to “proceed to hear such appeal.” It does not require that the hearing take place within the thirty days. It requires only that the Board proceed (which means to go forward) to having the hearing. The Civil Service Board Manual of Procedures requires only that the Board “schedule a hearing within 30 days after receipt of an employee’s written request for such a hearing.” All that is required is that the hearing be scheduled not that the hearing take place.

Hagan further argues that should the Civil Service Board not hold the hearing within thirty days the effect would be that the employee would be helpless to get her or his motion heard. That is not the case. As stated in City of Hollywood v. Fielding, 362 So.2d 362 (Fla. 4th DCA 1978), where there is no statutory provision to remedy a Civil Service Board’s failure to hold a hearing, an affected employee may seek an order from the circuit court requiring the board to hold the hearing. Reinstatement of a disciplined employee or rescission of the discipline is not the proper remedy. Id. We agree.

We therefore conclude that the appellate division departed from the essential requirements of law on this issue as well and also reverse on that ground. In light of this reversal and the others above, we need not address the remaining issues raised by the City.

For the reasons stated above, we quash the opinion of the circuit appellate division and remand for further proceedings consistent with this opinion.

      . See Custer Med. Ctr. v. United Auto. Ins, Co., 62 So.3d 1086, 1092 (Fla. 2010), stating: “This Court has continually applied certain fundamental principles for the use of certiora-ri to review decisions rendered by the circuit court acting in its appellate capacity from the time common-law certiorari jurisdiction was first recognized in 1855. We have consistently observed that ‘[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.' Therefore, when a district court considers a petition for second-tier certiorari review, the 'inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law/ or, as otherwise stated, departed from the essential requirements of law. The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error. Rather, a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” (internal citations omitted).

      . Hagan describes his petition, in part, as seeking review of the Civil Service Board's findings of fact and conclusions of law. The appellate division also captioned its'opinion as being "On Petition for Writ of Certiorari from the City of Miami Civil Service Board.” As is discussed below, the appellate division’s review is from the determination by the City Manager, not the Civil Service Board. In a proceeding before the appellate division an employee may only challenge the factual findings made by the City Manager and not those made by the Civil Service Board. Where the City Manager adopts the finding by the Civil Service Board, such review may be identical, but it should be clarified that the appellate division is not actually reviewing the actions of the Civil Service Board.
      We also note here .that we are sympathetic to the argument that the "factual findings” by the Civil Service Board are often simply recitations of the testimony provided and not any actual findings. We note that it would greatly assist the parties to the proceedings and the reviewing tribunals if future recommendations from the Civil Service Board actually detailed which’ facts it accepted in making its determination, especially where, as here, conflicting testimony exists. - ■

      . We reiterate our determination in Jean-Phillipe that the City has no right to further review of the City Manager’s ruling because he or she is acting on the City’s behalf and no legal principle permits a party to appeal from its own actions. We also reiterate that "any implication to the contrary in City of Miami v. Martinez-Esteve, 125 So.3d 295 (Fla. 3d DCA 2013) was dictum. Moreover, that case did not address factual findings and conclusions of law by the Civil Service Board but instead ■involved only interpretation of City policy, so any such statement is inapplicable to the facts here in any event.

      . City of Miami v. Reynolds, 34 So.3d 119 (Fla. 3d DCA 2010), supra; Miami-Dade Cnty v. Jones, 778 So.2d 409 (Fla. 3d DCA 2001) (same); Kee v. Miami-Dade Cnty, 760 So.2d 1094 (Fla. 3d DCA 2000) (denying petition for certiorari "because the county manager has the complete discretion to determine the appropriate penalty where the hearing officer has decided that an offense requiring discipline was committed.”); City of Miami v. White, 165 So.2d 790, 791 (Fla. 3d DCA 1964) (“It may be that the punishment imposed was severe and obviously it was more severe than would have been imposed by the Civil Service Board, but as we have pointed out, it was not the prerogative of the Civil Service Board to punish the appellant but that of the City Manager.”); State ex rel. Eldredge v. Evans, 102 So.2d 403, 405 (Fla. 3d DCA 1958) (“it was not the prerogative of the Civil Service Board to punish the appellant but that of the City Manager”). " ■

      .We also reject Hagan's contention that his appeal was limited to an appeal of a suspension by virtue of City of Miami Civil Service Rule 14.10 and that no other discipline could be imposed against him as a result of the language- of that rule. Hagan’s request for hearing was not made under that Rule, but instead was made under Rule 14.3 and that rule specifically echoes the language of Ordinance 40-124 in recognizing the City Manager’s ability to modify a disciplinary action and is not limited to actions involving only "employees reduced in pay or position, laid off or suspended.”

      . As opposed to the failure of a party to timely file a pleading or other required document, which can deprive a tribunal of jurisdiction,