text:
    Jenny Evy RIDDLE, Appellant, v. Alan RIDDLE and The Plank Factory, Inc., Appellees.
    No. 4D16-2803
    District Court of Appeal of Florida, Fourth District.
    [March 29, 2017]

      Chris Keith, Palm Beach Gardens, for appellant.
    Render Ledezma, Palm Beach Gardens, for appellee Alan Riddle.
   ON MOTION FOR REHEARING

Per Curiam.

We grant the husband’s motion for rehearing, withdraw our previous opinion, and issue the following opinion in its place.

The wife in an ongoing dissolution of marriage action appeals a trial court order granting the husband’s motion to modify a prior temporary relief order and designating the husband the primary residential parent. We have jurisdiction to review this non-final order. Fla. R. App. P. 9.130(a)(3)(C)(iii)b.

The trial court did not abuse its discretion in modifying its temporary relief order, and we affirm. We write to clarify the standard of review that applies to modification of pretrial, temporary relief orders concerning child custody and time sharing. As explained below, a court is not required to find a “substantial change, in circumstances” in order to modify a temporary custody order entered before any final decree has been entered.

Background

The parties have two minor children. The older child is in elementary school. The younger child is in daycare. In December 2015, the wife filed a petition for dissolution of marriage. In February 2016, the trial court entered an Order for Temporary Relief establishing ' a temporary time sharing schedule and designating the wife as the primary residential parent. The order provided that the older child would be re-enrolled in Jupiter Elementary School in Palm Beach County, Florida. Although neither parent was residing in Jupiter at the time, the wife testified during the February 2016 hearing that she intended to move back there.

In June 2016, the husband filed an amended motion to modify the temporary relief order seeking to become the primary residential parent. Among other things, the motion alleged that the wife resided in Okeechobee County and was subjecting the children to a one-and-a-half-hour drive to and from school each day.

In late July 2016, as the start of the school year approached, the court held an evidentiary hearing on the husband’s motion. At the outset, the court observed that the wife testified during the hearing in February 2016 that she intended on moving back to Jupiter but had not done so. The husband’s counsel explained that he was seeking to modify the temporary relief order because the children needed to be registered for the upcoming school year, and he was concerned about subjecting the children to the long drive from Okeechobee to Jupiter each school day.

The husband testified that he has a close family network in Boca Raton. He lives there with his mother and sister, with other relatives living nearby. About a mile away from the husband’s home was an “A” rated elementary school.

The court took judicial notice of the Palm Beach County School Board policy that requires students to be assigned to schools based on the primary residence of the child’s parent or legal guardian. This rule precluded the child’s assignment to the Jupiter school if neither parent lived in that district.

The wife testified that she had lived in Okeechobee County for about six months. She would prefer to live in Jupiter and intended on doing so, but she had been unable to secure a rental or other housing. She did not intend on enrolling the child in an Okeechobee County school and wanted the child to continue to attend the school in Jupiter despite the lengthy drive. Due to the early hour they had to get up, the children would sleep in their school clothes the night before school. She would carry them from their bed to the car in the morning. They would eat breakfast and brush their teeth in the car.

The trial court entered an order finding that neither parent lived in Jupiter and that such a lengthy commute to school was not in the children’s best interests. The order modified the temporary parenting plan to make the husband the primary residential parent and ordered that the husband’s address be used for school assignment purposes.

The wife appeals this order arguing that the court erred in granting the motion to modify because the husband did not allege or prove, and the trial court did not find, that a substantial change in circumstances had occurred since the temporary relief order was entered in February 2016.

Analysis

Pretrial, temporary child custody and time sharing determinations are subject to a different legal standard than a final custody determination. Temporary relief orders in family law cases “are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.” Mullins v. Mullins, 799 So.2d 450, 451 (Fla. 4th DCA 2001) (quoting Pedraja v. Garcia, 667 So.2d 461, 462 (Fla. 4th DCA 1996)). This is because “[tjemporary relief hearings are abbreviated and the relief granted is not final, so the trial judge may revisit temporary relief matters in the final judgment.” Id. As we explained in Hoff v. Hoff, 100 So.3d 1164 (Fla. 4th DCA 2012), “in proceedings where trial judges are required to determine interim timesharing schedules, the limited nature of a temporary hearing and necessity for quick action by the trial judge require us to defer to the trial court’s exercise of its discretion and not pick apart a trial court’s order for technical infirmities.” Id. at 1168.

In Hoff, therefore, we held that a trial court setting a pretrial, temporary parenting plan does not commit reversible error in failing to make explicit findings on the best interests of the child or on the factors in section 61.13(3), Florida Statutes, which dictates in part that “a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances.” See Hoff, 100 So.3d at 1168; § 61.13(3), Fla. Stat. We reasoned:

The goal of temporary relief hearings ... is to promote stability in the lives of children while the divorce is pending, not to decide the final outcome.
Contested temporary relief hearings are not and should not be as lengthy as contested final hearings. The parties need to obtain temporary relief expeditiously. Shorter hearings are required to accomplish that goal. ... As long as the trial court’s decision is based on competent, substantial evidence and not an abuse of discretion, it will be affirmed.

Hoff, 100 So.3d at 1168; see also Shiba v. Gabay, 120 So.3d 80, 83 (Fla. 4th DCA 2013) (recognizing that pre-judgment, temporary relief orders determining time sharing and child custody are subject to an abuse of discretion standard of review).

For the same reasons, a trial court’s ruling modifying a pretrial, temporary relief order on child custody or time sharing is subject to an abuse of discretion standard of review.

A substantial change in circumstances must be shown to modify a child custody determination only where a final judgment or decree was previously entered determining the issue. Unless otherwise provided in the final judgment, the substantial change test applies to the modification of a final divorce decree regardless of whether the custody award came after a stipulated agreement between the parties or an adversarial hearing. Wade v. Hirschman, 903 So.2d 928, 934 (Fla. 2005). “In either circumstance, satisfaction of the substantial change test is necessary in order to overcome the res judicata effect of the final judgment.” Id. The court described the origins of this rule:

A final divorce decree providing for the custody of a child can be materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree. Belford v. Belford, 159 Fla. 547, 32 So.2d 312, 314 (1947). This rule promotes the finality of the judicial determination of the custody of children. After the trial court enters the original final judgment decree, it is res judicata of the facts and circumstances at the time the judgment became final. Thus, there is a presumption in favor of the reasonableness of the original decree. Id. This presumption may be overcome when changes in circumstances have arisen which warrant and justify modification of the original decree.

Id. at 932-33 (emphases added); see also Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 465-66 (1933) (recognizing that it is a final decree of the court fixing custody of the child that “is to be regarded as res adjudicata as of the time of the decree”); § 61.13(2)(c), (3), (providing the standard for modification of a parenting plan in a final judgment of dissolution); § 61.14(11)(a), Fla. Stat. (recognizing that a “court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding”) (emphasis added).

Accordingly, the wife’s argument that the trial court erred in failing to find a substantial change in circumstances when modifying its temporary relief order is without merit. Under the circumstances of this case, the trial court did not abuse its discretion in modifying the temporary relief order.

Affirmed.

Ciklin, C.J., Levine and Forst, JJ., concur.

      . The trial court's order provided that the terms ‘‘primary residential parent” and “secondary residential parent,” used in the temporary relief order, "have no meaning whatsoever other than to identify [the time sharing] schedule each party will follow.”

      . The wife's argument that the trial court misapplied the parental relocation statute, section 61.13001, Florida Statutes, is misplaced. The trial court did not modify its temporary relief order based on this statute.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MENZ & BATTISTA, PL, Appellant, v. Michael RAMOS, Appellee.
    No. 4D16-1634
    District Court of Appeal of Florida, Fourth District.
    [March 29, 2017]

      Jeffrey P. Battista of Menz & Battista, Vero Beach, for appellant.
    No brief filed on behalf of appellee.
   Per Curiam.

After a final judgment was entered in a dissolution of marriage case, the law firm for the husband moved for a charging lien, pursuant to a representation agreement between the law firm and the husband. The trial court denied the motion. We agree this was error and we reverse.

The amended final judgment of dissolution of marriage provided for the equitable distribution of marital assets; the husband was awarded a share of the marital assets. The trial court’s order denying the law firm’s motion for a charging lien contained the following reasoning:

It would appear that [the husband] would normally be entitled to an equal division of the contested financial assets pursuant to the equitable distribution statute. There is not enough evidence to indicate that the wife would have been awarded more than fifty percent of these items but for the representation of [the law firm]. Therefore, the two financial items cannot be considered as “tangible fruits of the services of the law firm.” As such, a charging lien[ ] is not permitted to attach to the husband’s share of the Roth IRA, and the JP Morgan Pension Account.

“We review trial court orders on attorney’s fees for an abuse of discretion. We have de novo review however of the trial court’s interpretation of law.” Robin Roshkind, P.A. v. Machiela, 45 So.3d 480, 481 (Fla. 4th DCA 2010) (internal citation omitted).

“The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of- the attorney.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla. 1983). There are four requirements for a charging lien: “(1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.” Rebecca J. Covey, P.A. v. Am. Car Import Car Sales, 944 So.2d 1202, 1204 (Fla. 4th DCA 2006) (quoting Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986)). Further, “[i]t is not enough to support the imposition of a charging lien that an attorney has provided his services; the services, must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.” Rudd v. Rudd, 960 So.2d 885, 887 (Fla. 4th DCA 2007) (quoting Mitchell v. Coleman, 868 So.2d 639, 641 (Fla. 2d DCA 2004)). Where all of the requirements of a charging lien have been alleged and proved, a charging lien may be pursued in a dissolution action. Dyer v. Dyer, 438 So.2d 954, 955 (Fla. 4th DCA 1983).

Here, there was a written legal representation agreement providing for a charging lien and the husband was awarded a share of marital assets. The trial court’s justification for denying the law firm’s charging lien has no basis in well-established case law. In fact, our courts recognize that a charging lien may attach to assets awarded in equitable distribution. See Walia v. Hodgson Russ LLP, 28 So.3d 987, 989 (Fla. 4th DCA 2010); Rudd, 960 So.2d at 887; Mitchell, 868 So.2d at 641. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded for proceedings consistent with this opinion.

Ciklin, C.J., Damoorgian and Gerber, JJ., concur.


text:
    Xavier TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-08
    District Court of Appeal of Florida, Fourth District.
    [April 5, 2017]
    Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the circuit court’s sentence, but with two exceptions. The court erred by ordering the defendant to pay, as a condition of probation, crime lab costs of $166.80 and a public defender fee of $400.00, because the court did not follow the procedural steps for imposing such costs and fee. We address each in turn.

On the costs issue, as we stated in Finkelstein v. State, 944 So.2d 1226 (Fla. 4th DCA 2006).

Costs cannot be assessed in a criminal case unless there is statutory authority for their imposition. Statutorily mandated costs may be imposed without notice to the defendant. However, the trial court is required to give the defendant notice of the imposition of discretionary costs and to make an oral pronouncement of such costs and their statutory basis. If this does not occur, and discretionary costs are made a condition of probation, they are to be stricken, and cannot be re-imposed.

Id. at 1227 (internal citations, brackets, and quotation marks omitted). Here, the imposed crime lab costs exceeded the statutorily authorized amount of $100. See § 938.055, Fla. Stat. (2014). As such, the excess costs were discretionary and the court was required to make an oral pronouncement of such costs and the basis for exceeding the statutorily authorized amount. The court orally pronounced the costs, but did not orally pronounce the basis for exceeding the statutorily authorized amount. Accordingly, we strike the imposed crime lab costs and remand for imposition of the statutorily authorized amount of $100.

On the fee issue, the imposed public defender fee exceeded the statutorily authorized amount of $100. See § 938.29(1)(a), Fla. Stat. (2014). As such, the fee was discretionary and the court was required to inform the defendant of his right to contest the amount. See § 938.29(5), Fla. Stat. (2014); Fla. R. Crim. P. 3.720(d)(1) (2014). The court did not inform the defendant of his right to contest the amount. Accordingly, we strike the imposed public defender fee and remand for either imposition of the statutorily authorized fee or an evidentiary hearing with notice to the defendant of his right to contest the amount. Brooks v. State, 199 So.3d 974, 976-77 (Fla. 4th DCA 2016).

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

Warner, Gross and Gerber, JJ., concur.


author: Forst, J.

text:
    STATE of Florida, Appellant, v. Jeffrey HICKS, Appellee.
    No. 4D16-2771
    District Court of Appeal of Florida, Fourth District.
    [April 12, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   Forst, J.

In this criminal appeal, the State of Florida appeals the trial court’s order granting Appellee Jeffrey Hicks’s motion to dismiss for lack of jurisdiction. The State argues that because it alleged in its violation of probation warrant (“VOP warrant”) that Appellee absconded, the trial court retained jurisdiction to consider the VOP warrant even after the expiration of Appellee’s probationary period.

The trial court abused its discretion by granting Appellee’s motion to dismiss. See State v. Balezos, 765 So.2d 819, 822 (Fla. 4th DCA 2000) (applying abuse of discretion standard). The analysis and holding of our recent opinion in Williams v. State, 202 So.3d 917 (Fla. 4th DCA 2016), are directly on point. There, the State’s VOP warrant, identical to the one here, suggested Appellee absconded by changing his residence without consent, and making his current whereabouts unknown. Id. at 921. As set forth in Williams, “[o]ur supreme court and three of our sister courts have recognized that probation is tolled when a defendant absconds from [probationary] supervision.” Id. at 920-21 (citing Francois v. State, 695 So.2d 695, 697 (Fla. 1997); Kimball v. State, 890 So.2d 495, 496 (Fla. 5th DCA 2004); Williams v. State, 529 So.2d 366, 367 (Fla. 2d DCA 1988); Ware v. State, 474 So.2d 332, 334 (Fla. 1st DCA 1985)). Our Williams opinion clarified that this Court’s earlier opinion in Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016) “does not overrule the case law recognizing that when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.” Williams, 202 So.3d at 921.

Accordingly, we reverse and remand to the trial court to determine under the totality of the circumstances if Appellee did in fact abscond from probationary supervision. If the trial court finds that Appellee did abscond, then Appellee’s probationary period was tolled until he was arrested and the trial court would have jurisdiction to consider the VOP warrant and any amendments to it.

Reversed, and remanded.

Taylor and Conner, JJ., concur.


author: PER CURIAM.

text:
    Darryl SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5150.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2016.
    Darryl Scott, pro se, Appellant,
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. R. App. P. 9.420(a)(2); see Rivera v. Dep’t of Health, 177 So.3d 1 (Fla. 1st DCA 2015).

WETHERELL, MAKAR, and WINOKUR, JJ., concur.


text:
    Tyrone WILKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5736.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2016.
    Tyrone Wilkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WETHERELL, MAKAR, and WINOKUR, JJ., concur.


text:
    Devin O. BOWDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-4047.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2016.

      Devin 0. Bowden, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. R. App. P. 9.420(a)(2); see Rivera v. Dep’t of Health, 177 So.3d 1 (Fla. 1st DCA 2015).

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


text:
    Jeffrey Dale SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-1753.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2016.
    Rehearing Denied April 27, 2017.

      William R. Ponall of Ponall Law, Mait-land, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant pleaded guilty to three crimes: (1)using a computer to solicit a minor for sex, (2) traveling to meet a minor after using a computer to solicit a minor for sex, and (3) unlawful use of a two-way communication device to facilitate a felony. For the second time, he appeals the trial court’s order denying postconviction relief. We affirm.

In his earlier appeal, Appellant claimed that trial counsel misadvised him about his maximum possible sentence, wrongly telling him that he faced up to 35 years in prison, instead of just 25. Armed with the correct information, Appellant asserted that he would have insisted on going to trial. Because we found he stated a facially sufficient claim, we remanded for further proceedings. Smith v. State, 146 So.3d 536 (Fla. 1st DCA 2014). On remand, the court heard evidence and, based on testimony from Appellant’s trial counsel, concluded that Appellant was not mi-sadvised and again denied the claim. Appellant now argues that the trial court’s conclusion lacked evidentiary support. Because the record plainly shows otherwise, we affirm the trial court’s decision denying this claim.

Appellant’s second postconviction claim is that his trial counsel was ineffective for failing to make a double jeopardy argument at sentencing. In his initial rule 3.850 motion, Appellant claimed that, had counsel argued that double jeopardy precluded sentences for both (1) using a computer to solicit a minor for sex and (2) traveling to meet a minor after using a computer to solicit a minor for sex, his sentence would have been shorter. The trial court denied the claim below, noting that State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), would have foreclosed the double jeopardy argument, and explained that “[cjounsel cannot be found ineffective for failing to make an argument that would be fruitless under the current state of the law.” This court affirmed without comment the trial court’s summary denial of this claim, so that decision is now the law of the case. See Smith, 146 So.3d at 537; Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). We nevertheless have the authority to revisit our earlier decision, see R.J. Reynolds Tobacco Company v. Townsend, 118 So.3d 844, 847 (Fla. 1st DCA 2013), but that would not be proper here.

Appellant correctly notes that the Florida Supreme Court’s recent decision in State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), does not allow convictions for solicitation and traveling if the convictions are based on the same conduct (effectively overruling Murphy). But Appellant claims only that his counsel was ineffective for not arguing that his sentence should have been shorter. Thus, there was no such ineffectiveness, because the Florida Supreme Court’s 2015 decision in Shelley does not make counsel’s 2013 decision in Appellant’s case constitutionally infirm. Cf. Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir.1995) (“To be effective within the bounds set by Strickland, an attorney need not anticipate changes in the law.”). Furthermore, based on the trial court’s comments at the original sentencing, the record refutes any claim that the trial court would have imposed a shorter sentence, regardless of whether the solicitation and traveling had been based on the same conduct.

Accordingly, the trial court’s order denying Appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 is affirmed.

AFFIRMED.

B.L. THOMAS, WETHERELL, and WINSOR, JJ., concur.


author: PER CURIAM. MAKAR, J., MAKAR, J.,

text:
    Dr. Erwin D. JACKSON, as an elector of the City of Tallahassee, Petitioner, v. LEON COUNTY ELECTIONS CANVASSING BOARD; Scott C. Maddox, as the successful candidate for Tallahassee City Commission, Seat 1; and City of Tallahassee, a Florida municipal corporation, Respondents.
    No. 1D16-5205.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2016.
    Rehearing Denied April 11, 2017.

      Charles Burns Upton II of the Upton Law Firm, P.L., Tallahassee, for Petitioner.
    No appearance for Respondent Leon County Elections Canvassing Board.
    Stephen Marc Slepin of The Maddox Horne Law Firm, Tallahassee, for Respondent Scott C. Maddox.
    Louis C. Norvell, Assistant City Attorney, for Respondent City of Tallahassee.
   PER CURIAM.

Petitioner Dr. Erwin Jackson has filed an emergency petition for writ of certiora-ri, writ of prohibition, and constitutional stay writ. We deny the petition in part and grant it in part, addressing each section of the petition in turn.

Petition for Writ of Certiorari

First, we deny the petition for writ of certiorari. Petitioner Jackson has not shown that the trial court’s ruling on his motion for default against Respondent Scott Maddox, nor its ruling that the City Charter requires Maddox to be an elector of the City of Tallahassee on November 21, 2016, meets the high standard for certiora-ri relief. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (“It is well settled that to obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’” (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002))).

Petition for Writ of Prohibition

We also deny Jackson’s petition for writ of prohibition. While we find that Jackson’s November 15 motion for disqualification of the trial judge was legally sufficient, and was timely as to the conduct of the November 10 hearing, Jackson thereafter failed to take appropriate and timely steps to seek our review of the order denying disqualification and to prevent the trial judge from taking further action pending such appellate review. The general rule of timeliness for judicial disqualifications requires action “at [the] first opportunity to do so in a proceeding before that judge.” St. Pierre v. State, 966 So.2d 972, 975 (Fla. 2d DCA 2007). We have stated the rule as requiring action “as soon as practicable.” People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So.2d 493, 496 (Fla. 1st DCA 1990) (denying a petition for writ of prohibition on the merits but noting that “[w]hen the motion was denied and movants elected to challenge that ruling by seeking a writ of prohibition rather than waiting to raise the issue on plenary appeal, a petition should have been filed as soon as practicable” citing Carr v. Miner, 375 So.2d 64 (Fla. 1st DCA 1979))). A party having knowledge of grounds to disqualify a judge may not delay taking preventive action until after suffering an adverse ruling. “A motion for recusal is considered untimely when delayed until after the moving party has suffered an adverse ruling unless good cause for delay is shown.” Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986); Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (holding that party waives right to seek removal of judge “[b]y doing nothing to affirmatively promote or protect the issue of the possiblé recusal”); Data Lease Fin. Corp. v. Blackhawk Heating & Plumbing Co., Inc., 325 So.2d 475, 479 (Fla. 4th DCA 1975) (holding a motion is untimely if not filed after the party has knowledge to support disqualification and after the party suffers an adverse ruling).

We recognize that the procedural context of this case is unique in that the delay occurred after Jackson had timely filed his motion to disqualify and obtained a ruling denying it. However, the principles of timeliness and preservation of the disqualification claim apply with equal force where a party having knowledge of grounds for disqualification participates in further proceedings before the trial judge without first seeking a stay or seeking appellate review of the order denying disqualification. In this case, the trial judge denied the motion for disqualification by order rendered the morning of November 16; and within about an hour after rendering that order, rendered another order setting a case management conference for November 18. Although Jackson has filed in this Court numerous documents in a series of three sets of petitions denominated as emergencies, and has done so on exceedingly short time frames measured in hours, he did not file a petition for writ of prohibition prior to the November 18 case management conference.

Jackson’s scant reference to the appellate record in his statement for the case management conference, on which the dissent relies, was not a request for stay or an objection to the trial court’s continuing to preside over this ease, nor did it invoke this Court’s prohibition jurisdiction. Even if it had, Jackson was obligated to protect his rights on the record at the hearing itself, and failed to do so. The problem here is not the speed with which Jackson originally moved to disqualify the trial court or the .speed with which he eventually petitioned this Court for review; the problem is Jackson’s conduct at the November 18 hearing, which was inconsistent with his previous claim for disqualification and constituted a waiver. At the case management hearing, Jackson did not object to the trial court’s continuing to preside over the case, he did not seek a stay or continuance, and did not indicate any intention to file a petition for a writ of prohibition. That hearing was more than a case management conference and included argument and rulings on multiple substantive motions, yet Jackson submitted to the jurisdiction of the trial court and participated fully without objection and without referencing disqualification or prohibition, thus waiving his disqualification argument.

We reject the dissent’s assertion that we are not authorized to reach the issue of waiver because neither the City nor Maddox raised a waiver defense in response to the petition. Our standard of review on petition for writ of prohibition is de novo. Philip Morris USA, Inc. v. Brown, 96 So.3d 468, 471 (Fla. 1st DCA 2012). The facts of what Jackson did and did not raise at the November 18 hearing are undisputed and are of record, and legal significance attached to Jackson’s failure to take appropriate protective action to, at a minimum, preserve his objection to the trial judge’s presiding over the hearing. As the party seeking this extraordinary remedy, Jackson had the burden of-proving and preserving every element of his claim for disqualification, and on this record he failed to do so.

We do not hold that prohibition must be filed -within hours or even days under different facts, but in light of the unusual time constraints and history of this case, we find that Jackson waived any right to prohibition relief by participating in the November 18 hearing before challenging the denial of his motion to disqualify in this Court and without asserting any objection to the trial court’s presiding over that hearing. Had this issue been preserved, however, we would have found that the motion to disqualify was legally sufficient and should have been granted, due to the due process violations we have previously found in this case. See, e.g., Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002) (outright denial of the basic and fundamental right of cross-examination would give a reasonably prudent person a well-founded fear of judicial bias).

Petition for Constitutional Stay Writ

Finally, we grant the petition for constitutional stay writ. The circumstances of this election contest are unique. Jackson timely filed his complaint on September 13, 2016, and, over a month later, the trial court stayed proceedings. This Court then ordered the court to hold an immediate hearing, and then, seven days later, vacated the trial court’s order following due process violations. We entered a temporary stay order preventing Maddox from taking the oath of office on November 21. The trial court has yet to enter a final judgment. Under these circumstances, we conclude that it is necessary to maintain the status quo by prohibiting Maddox from taking the oath of office pending entry of a final judgment. We thus exercise our authority under article V, section 4(b)(3), of the Florida Constitution to issue “other writs necessary to the complete exercise of [our] jurisdiction.” We find that issuance of the writ is necessary to preserve our jurisdiction to fully resolve the claim of Maddox’s eligibility. See Monroe Educ. Ass’n v. Clerk, Dist. Court of Appeal, Third Dist., 299 So.2d 1, 2 (Fla.1974) (issuance of this writ is not necessarily “dependent upon or altogether ancillary to independent appellate proceeding” (citing Couse v. Canal Auth., 209 So.2d 865, 867 (Fla.1968))). We further note that the City has represented in its filings in this Court that the City Commission will not meet until December 14, 2016, which will be its final meeting of the year.

Accordingly, Maddox shall not take the oath of office pending a final judgment by the trial court. The parties continue to dispute whether Maddox must have been a resident of the City upon taking the oath of candidacy on June 22, 2016, when Maddox attested to his residency for purposes of becoming a candidate; on August 30, 2016, when he was elected; on September 6, 2016, when the election results were certified; or upon taking the oath of office for a new term on November 21, 2016. The trial court has ruled that November 21 is the controlling date. The merits of that ruling are not presently before us and therefore we do not pass upon the question, but for the sake of judicial economy we suggest that the parties make an evi-dentiary record of Maddox’s residency on all potentially applicable dates so that the issue can be resolved with finality in a single plenary appeal. We direct the trial court to determine the controlling legal definition of “residency,” refine the outstanding requests for discovery and set a discovery schedule, and, barring any extraordinary circumstances, to enter a final judgment by December 6,2016.

ROWE and KELSEY, JJ., concur.

MAKAR, J., concurs in part and dissents in part with opinion.

MAKAR, J.,

concurring in part, dissenting in part.

This election contest case, which began in early September 2016, has resulted in three emergency appellate proceedings, all of which were avoidable had the requisite answer, discovery, and evidentiary hearing been held expeditiously as Florida law requires. See §§ 102.168(1), (3)(b) & (7), Fla. Stat. (2016). Needless delays have impeded the right of the electors of the City of Tallahassee to a speedy resolution of this controversy, one that needs final resolution for the sake of local governance. Public controversies are brought to appellate courts for resolution; we don’t seek them out. And when they land on our plate, and involve matters of great urgency, we dig in and adjudicate them with studious speed.

In this one case, we’ve now issued three opinions this week, all of which I fully concur in except the conclusion that Jackson waived his right to seek appellate review of the trial judge’s denial of Jackson’s disqualification motion. Filing a prohibition petition in an appellate court challenging the denial of a disqualification order— versus raising the issue on appeal after final judgment—need only be done as soon as practicable. People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So.2d 493, 496 (Fla. 1st DCA 1990). Jackson did so. He filed his prohibition petition in this Court midday on Sunday, November 20th, challenging the trial court’s order, which was entered shortly before noon on Wednesday, November 16th. Spaced in-between was extensive legal work by the parties, including compliance with the trial court’s simultaneous order requiring the filing of written statements as to discovery, outstanding motions, and all other issues to be considered in advance of a case management conference held on Friday morning November 18th.

As a part of his detailed filing, Jackson made clear that appellate review of the disqualification order was forthcoming, saying as follows: “For the benefit of the appellate record, Jackson requests that this court state the basis on which it denied his motion for disqualification.” (Emphasis added). The disqualification issue did not come up at the hearing, and neither Maddox nor the City claimed Jackson waived his right to seek appellate review of the disqualification order by appearing at or participating in the conference. Indeed, Jackson had no legal responsibility to say or do anything further to preserve his right of appellate review, particularly in light of his case management filing highlighting the matter. It would have been futile for Jackson to have told the trial court to halt the Friday case management conference, particularly given this Court had directed the trial court to move forward expeditiously; and Jackson didn’t have the option of boycotting the proceeding. Telling the trial court “I’m seeking review of your disqualification order” at the case management conference might have been a nicety (he’d already said as much in his case management report), but it would have no legal effect on Jackson’s appellate rights. Other than simply saying so, no legal authority exists that Jackson had to request a stay of proceedings, should have objected to the trial judge continuing to preside over the case, and had to invoke our Court’s prohibition jurisdiction prior to the case management conference; these are desirable trial practice pointers, but aren’t legal grounds for waiving appellate rights.

Finally, unlike cases the panel cites where a litigant dithers and fails to seek disqualification timely in the trial court, Jackson timely sought disqualification below. He then specifically said appellate review was forthcoming in his case management statement and soon thereafter (on a weekend no less) filed a petition promptly. Where a litigant has preserved his right to appellate review and timely sought review, and no opposing party claims waiver, we should not so readily deny him that right, particularly when we’ve been charitable in allowing review in the past for situations involving exceptionally deleterious inactions. See People Against Tax Revenue Mismanagement, 571 So.2d at 494-96 (adjudicating the merits of a prohibition petition filed on a Friday afternoon to stop a Monday trial despite petitioner having presented disqualification issue in an untimely way numerous times in the trial and appellate court over a year’s time). And because no party has raised the waiver issue in this proceeding, Jackson has had no opportunity to defend whether his attendance and participation at the case management conference amounts to' a waiver of his appellate right; he will surely be surprised to discover that this Court has unilaterally adjudicated the matter without notice and' an opportunity to defend this right, one that should not be taken away under the circumstances.

Opinion on Rehearing

BY ORDER OF THE COURT:

Petitioner, Erwin D. Jackson, filed a motion for rehearing on November 27, 2016. On February 9, 2017, we issued- an order directing Petitioner to address whether his motion for rehearing should be considered moot. Petitioner responded to the order on February 10, 2017, conceding that his motion is moot.

Based on Petitioner’s response, we deny the motion for rehearing as moot. See Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1985) (“It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.”).

ROWE and KELSEY, JJ., concur. MAKAR, J., dissents with opinion.

MAKAR, J.,

dissenting on the denial of emergency motion for rehearing.

Lost in the shuffle of this election contest is the “Emergency Motion for Rehearing” of Erwin D. Jackson, who points out the ways in which our appellate panel erred by sua sponte taking away his fundamental right to appeal the trial court’s denial of his disqualification motion. Because this Court did so on its own volition without notice to him, Jackson’s motion is more properly styled as an “Emergency Motion for a Hearing” as it is Jackson’s first opportunity to defend himself against the unilateral termination of his appellate rights and the imposition of two new procedural requirements that conflict with precedent.

Jackson begins with an unassailable point: it is little solace to say his disqualification motion should have been granted but simultaneously take away his right to contest its denial on appeal. Our supreme court long ago said courts have the duty to “scrupulously guard” the right to an impartial tribunal. Dickenson v. Parks, 104 Fla. 577, 140 So. 459, 462 (1932). On this point, the court said, in magniloquent language, that the “outstanding big factor[] in every lawsuit is the truth of the controversy,” an admonition repeated in its judicial recusal cases. Id.; see MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1342 (Fla. 1990); Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983). Imputing waiver of the right to appeal without notice to the right-holder based on one-sided judicial postulation is contrary to the duty to “scrupulously guard” Jackson’s right. And doing so when no party raised waiver as an issue in either the trial court or in this Court creates a new legal power for appellate courts to wield.

But can’t a litigant waive the right to appeal a disqualification order? Of course, but that requires clear record evidence that the right-holder intentionally and knowingly did so, which isn’t the case here. In finding waiver, the majority has created conflict and inconsistencies in the existing legal framework for review of disqualification orders, and stretched the meaning of inapt caselaw.

First of all, as noted in his motion, Jackson points out that three of the primary cases upon which the majority relies involved the untimely filing of disqualification motions in the trial court. But Jackson unquestionably filed his motion to recuse the trial judge timely, which contrasts with the three cases: Fischer v. Knuck, 497 So.2d 240, 243 (Fla. 1986) (disqualification motion was untimely and “used to frustrate a final decision” because it “was filed eleven days after all the testimony had been taken and five days after the judge had announced his ruling”); Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (disqualification motion was untimely because it was filed nine days after final judgment in bench trial; the movant “can be said to have sat on his rocking chair, watching the trial meander by. It is now too late and he has shown no good cause for delay”); and Data Lease Fin. Corp. v. Blackhawk Heating & Plumbing Co., Inc., 325 So.2d 475, 478 (Fla. 4th DCA 1975) (motion untimely under section 38.02, Florida Statutes, because it was “filed more than thirty days” after discovering grounds for disqualification). It cannot be said that Jackson dawdled at any stage by “sitting in a rocking chair, watching the trial meander by,” particularly since all his trial and appellate filings on disqualification were pre-trial, before a final hearing was held.

Next, and most importantly, appellate review of a denial of a disqualification order can be done either via a writ of prohibition or at the end of the case. People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So.2d 493, 496 (Fla. 1st DCA 1990) (noting that movant may elect to challenge a disqualification ruling via a writ of prohibition or “raise the issue on plenary appeal”); D.H. ex rel. J.R. v. Dep’t of Child. & Fams., 12 So.3d 266, 272 (Fla. 1st DCA 2009) (“[A] petition for writ of prohibition is not the exclusive avenue for pursuing relief from the denial of a motion for disqualification.”); see generally Philip J. Padovano, 5 Florida Practice, Civil Practice § 5:3 (2016-17 ed.) (“An order granting or denying a motion for disqualification can be reviewed on appeal from the final judgment. However, most such orders are reviewed before the trial or hearing on the merits by filing a petition for extraordinary relief.”) (footnote omitted).

Given these legal options, Jackson could have chosen to wait until the end of the case (which was not far off) to appeal the disqualification order. That he did not wait, and chose to exercise his right to seek appellate review earlier can’t count against him, particularly when he filed his petition expeditiously. People Against Tax Revenue Mismanagement, 571 So.2d at 496 (petitions for prohibition “should” be filed “as soon as practicable”).

On this point, the majority overstates what was said in People Against Tax Revenue Mismanagement, asserting that “[w]e have stated the rule as requiring action ‘as soon as practicable.’” No rule exists, let alone one that compels appellate filings within a matter of hours. Dicta in that case said the appellate petition “should have been filed as soon as practicable.” Exhortations to act speedily are commendable, but “should” is not compulsion and “practicable” means only what can reasonably be done. Indeed, in that same case the Court said “there is no legal barrier to the filing of a petition for writ of prohibition less than an hour before this court closes for business on a Friday when petitioner seeks to prevent a trial scheduled to begin on Monday morning.” Id. at 496. Read in context, the Court in People Against Tax Revenue Mismanagement was pointing out a lack of diligence by the petitioner in that case; yet, even so, it nonetheless considered and resolved the merits of the prohibition petition, one that subsumed multiple disqualification motions filed over the course of a yearlong proceeding. See id. What happened in People Against Tax Revenue Mismanagement is incomparable to this case. How appellate review can be denied here, when it was allowed in People Against Tax Revenue Mismanagement, can’t be reconciled.

Under the exigent circumstances of this fast-moving election challenge, Jackson was not required to file a petition for writ of prohibition; and it would have been wholly “reasonable” for him to not delay the proceeding by seeking review on plenary appeal after trial. In D.H. ex rel. J.R., this Court held it was “reasonable” to proceed with an imminent hearing rather than delay it by seeking a writ of prohibition. 12 So.3d at 272. In that case, the trial court denied a disqualification order “just minutes before [a] termination hearing was scheduled to begin,” this Court saying on appeal that the appellant’s “decision to proceed with the termination hearing rather than delay the proceedings further by seeking a writ of prohibition, is reasonable under the particular circumstances.” Id. That Jackson filed a petition expeditiously—on a Sunday less than 48 hours after attending a compulsory court-ordered hearing—provides no “procedural bar” to this Court’s consideration of the matter.

Notably, two new legal requirements in disqualification cases emerge. The first is that once a litigant gets an adverse ruling on a disqualification motion, he must continually object to a trial judge presiding over his case; failure to do so supports waiver of the right to appeal. But Jackson could have waited until the end of the case to raise the disqualification issue, so why is a continuing objection required? What purpose does it serve? Jackson had already timely filed his disqualification motion, thereby perfecting his right to challenge the trial judge’s ruling on appeal as to those grounds raised. The only thing Jackson was legally required to do in the trial court was to assert timely any newly-dis covered grounds for recusal, beyond those he previously asserted, if he wished to preserve the new ones. No statute, case, or rule required him to continually object as to the initial grounds for recusal that the trial court ruled were legally insufficient. And Jackson clearly indicated an intent to seek legal review of the disqualification order; why else would he have said in filing his legal papers before the court-ordered hearing: “For the benefit of the appellate record, Jackson requests that this Court state the basis on which it denied his motion for disqualification.”

For similar reasons, a second new legal requirement—that Jackson was supposed to have sought a stay or continuance— makes little sense. Since he can wait until the end of the case to seek appellate review, what compels him to seek a stay or continuance? And why would the failure to do so amount to waiver, particularly when he could have dismissed his prohibition petition and sought plenary review and raised the disqualification issue?

Notably, no caselaw or rule exists for either of the two new legal requirements imposed on Jackson in this case (and, prospectively, on trial and appellate lawyers who will now struggle to understand what is required of them). Moreover, both of these newfound obligations are merely “secondary factors” that stand in the way of arriving “at the truth of the controversy.” Dickenson, 140 So. at 462.

Finally, the shelf-life of the majority’s opinion on waiver was fleeting, becoming moot within hours due to the trial judge’s spontaneous decision to recuse himself soon after his receipt of the majority’s ruling. A court has the inherent power and discretion to vacate its opinions, moot or otherwise, prior to the mandate issuing and the case becoming final, a power that should have been exercised here. Rothenberg v. Conn. Mut. Life Ins. Co., 161 So.2d 875, 877 (Fla. 3d DCA 1964) (vacating its opinion based on mootness due to settlement of parties); see generally Fla. R. App. P. 9.340 (2017); Philip J. Padovano, Florida Appellate Practice at § 20:8 (“An appellate decision ordinarily becomes final when the appellate court issues a document known as a mandate.”). After the trial judge recused himself, the majority opinion thereafter could have no actual effect whatsoever on the issue of whether the trial judge should have recused himself earlier. Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.”). No claim is made that an exception to the mootness doctrine applies (such as a question of great public importance or one that evades review) that would justify not vacating our opinions. Phibro Res. Corp. v. State, Dep’t of Envtl. Reg., 579 So.2d 118, 125-26 (Fla. 1st DCA 1991) (retaining jurisdiction and declining motions for rehearing to vacate opinions as moot due to importance of issues raised and the likelihood of recurrence). For reasons of judicial restraint, we should have vacated the moot portions of our respective majority and dissenting opinions, as internally requested, and moved on.

In response to this dissent, the majority issued an order asking Jackson whether his rehearing motion should be denied as moot, to which he agreed in a one-sentence response shortly thereafter; he was not asked whether we should vacate our opinions. That Jackson’s rehearing motion is moot supports vacating our opinions, because “[i]t is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.” Montgomery v. Dep’t of HRS, 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1986) (emphasis added). Here, the majority opinion can’t be carried into effect, opines on moot questions, and declares new legal rules and principles that matter not in this concluded case (but create confusion for future litigants). As such, we should undo our moot handiwork; vacatur is appropriate and prudent.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

      . In all of American jurisprudence, the phrase “outstanding big factor” appears only in Dickenson and citations thereto; it has no clear meaning other than its ordinary sense, that being a "really big deal.”

      . The appellate power to raise and resolve a legal issue neither raised by any party nor brought to their attention, is said to come from Philip Morris USA, Inc. v. Brown, 96 So.3d 468, 471 (Fla. 1st DCA 2012), but that case merely states that the "standard of review for the legal sufficiency of a motion to disqualify is de novo,” which says nothing about the overly broad scope of review created.

      . The Appellate Rules Committee may wish to study whether to codify these two approaches, as a few other states have done. See Tenn. Sup. Ct. R. 10B (2016) (codifying the “two alternative methods of appeal—the accelerated interlocutory appeal or an appeal as of right following entry of the trial court's judgment—-shall be the exclusive methods for seeking appellate review of any issue concerning the trial court’s denial of a [disqualification] motion”); Tex. R. Civ. P. 18a (2011) (appellate review of orders on recusal motions may be reviewed "on appeal from the final judgment,” "by mandamus” and "by appeal! ] in accordance with other law”).


text:
    Gregory GAFFNEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3914
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Gregory Gaffney, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Gregory Gaffney appeals the order of the trial court denying Grounds One through Nine of his Florida Rule of Criminal Procedure 3.860 motion for postconviction relief. We affirm as to Grounds Two through Nine. However, because the record attachments do not conclusively refute Gaffney’s claim that his trial counsel was ineffective for threatening or coercing him into deciding not to testify at trial, we reverse the summary denial of Ground One and remand for attachment of portions of the. record conclusively refuting this claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996))).

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, BERGER and LAMBERT, JJ., concur.


author: EVANDER, J.

text:
    Mourad BALZOURT, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-2929
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017

      Mourad Balzourt, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   EVANDER, J.

Mourad Balzourt was convicted of second-degree murder and abuse of a corpse. He was sentenced to life in prison on the murder conviction and to five years on the abuse of a corpse conviction. His convictions were per curiam affirmed by this court. Balzourt v. State, 189 So.3d 792 (Fla. 5th DCA 2016). .

Subsequently, Balzourt filed a petition and supplemental petition for postcon-viction relief pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging ineffective assistance of appellate counsel. He argues, inter alia, that appellate counsel should have raised as an issue the trial court’s failure to conduct an adequate Far-etta inquiry when Balzourt requested to represent himself at the sentencing hearing. We find merit to this argument.

Balzourt was represented by counsel at trial. At the onset of the sentencing hearing, Balzourt advised the trial court of his belief that his trial counsel had a “conflict of interest” and made an unequivocal request to represent himself. The trial court made inquiry on the purported “conflict of interest” claim, but failed to conduct a Faretta inquiry. Thereafter, Balzourt’s request for self-representation was denied.

Failure to hold a proper Faretta hearing at a critical stage of the proceedings is reversible error. Eib v. State, 191 So.3d 977, 979 (Fla. 2d DCA 2016). Sentencing is a critical stage of the proceedings. Id.

Appellate counsel was ineffective in not raising on direct appeal the trial court’s failure to conduct a Faretta inquiry. Given that Balzourt was sentenced to life, this error cannot be deemed harmless. Because a new appeal would be redundant, we grant the petition as to this issue and remand for a Faretta hearing. If Balzourt is allowed to represent himself following the Faretta hearing, the trial court is directed to vacate his present sentence and proceed with resentencing.

We find the other issues raised in Balz-ourt’s petition to be without merit.

PETITION GRANTED, in part; DENIED, in part; and REMANDED.

PALMER and LAMBERT, JJ., concur.

      . Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: ROBERTS, C.J.

text:
    James Nathaniel MARSHALL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    CASE NOS. 1D14-2350 & 1D15-1198
    District Court of Appeal of Florida, First District.
    Opinion filed March 1, 2017
    Rehearing Denied April 28, 2017
    James Nathaniel Marshall, pro se; Andy Thomas, Public Defender, and Mark Gra-

      ham Hanson, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, and Kathryn Lane, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appel-lant.
   ROBERTS, C.J.

After a jury trial, Appellant was convicted of aggravated battery with great bodily harm by discharging a firearm (count II), aggravated assault by threat with a firearm (count III), and shooting at or into an occupied vehicle (count VI). The trial court initially sentenced Appellant to twenty-five years’ imprisonment on count II; time served on count III; and seventy-eight and one-tenth months’ imprisonment on count VI to run concurrently with count II.

While this appeal was pending, Appellant filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The State conceded that an error occurred and Appellant was entitled to be resentenced on count II. Over the State’s objection, the trial court resentenced Appellant on count II to ten years’ imprisonment with a minimum mandatory sentence of ten years’ imprisonment. The State objected to the sentence as the trial court was required to run count II consecutively to count VI. See § 775.087(2)(d), Fla. Stat. (2012). The trial court determined that it could not restructure Appellant’s sentences since it previously ordered count VI to run concurrently to count II.

On appeal, Appellant challenges his convictions and sentences. In a cross-appeal, the State challenges the trial court’s failure to run count II consecutively to count VI. We affirm Appellant’s convictions as well as his sentence for count VI without further comment. We find the trial court erred when it ordered count II to run concurrently to count VI.

The legality of a sentence is a question of law that is reviewed de novo. Washington v. State, 199 So.3d 1110, 1111 (Fla. 1st DCA 2016). Section 775.087(2)(d), Florida Statutes (2012), states:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

Aggravated battery is a listed charge in section 775.087. See § 775.087(2)(a)1.g., Fla. Stat. (2012). Shooting at or into an occupied vehicle is a felony offense that is not listed in section 775.087. See §§ 775.087 & 790.19, Fla. Stat. (2012). Under section 775.087(2)(d), a trial court is required to run the sentence for a “qualifying” offense consecutively to a sentence for a “non-qualifying” offense. Martin v. State, 190 So.3d 252, 255 (Fla. 1st DCA 2016). In Appellant’s case, count II, aggravated battery, is a “qualifying” offense, and count VI, shooting at or into an occupied vehicle, is a “non-qualifying” offense.

Appellant argues that the trial court was required to keep his sentences concurrent to each other as the trial court was bound by the law of the case doctrine. Appellant’s argument is without merit as the law of the case doctrine only applies to issues decided on appeal. Hentze v. Denys, 88 So.3d 307, 310 (Fla. 1st DCA 2014) (quoting State v. McBride, 848 So.2d 287, 290 (Fla. 2003)). Additionally, consecutive sentencing after a defendant successfully obtains postconviction relief has been allowed providing a defendant’s constitutional rights are not violated in the process. See Finethy v. State, 962 So.2d 990, 992-93 (Fla. 4th DCA 2007) (finding the trial court did not err in restructuring defendant’s sentence in count I to run consecutively instead of concurrently to the other counts since the restructured sentence was not vindictive as it did not increase the defendant’s overall terra of imprisonment).

This Court finds that this case is most analogous to Cunningham v. State, 22 So.3d 127 (Fla. 4th DCA 2009). In Cunningham, the defendant was convicted of second-degree murder with a firearm and two counts of attempted manslaughter. The defendant was sentenced to life in prison for second-degree murder and twenty years in prison with a minimum mandatory sentence of twenty years for each of the attempted manslaughter convictions. The manslaughter sentences were ordered to run concurrently to the second-degree murder sentence and consecutively to each other. Id. While the defendant’s case was on appeal, he filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The attempted manslaughter charges did not qualify for minimum mandatory sentencing. At the resentencing hearing, the trial court sentenced the defendant to twenty years in prison on each of the attempted manslaughter counts to run concurrently to each other, but consecutively to the second-degree murder sentence. On appeal, the defendant argued that the trial court errored by altering the structure of his sentence with regards to the sentence for second-degree murder. The Fourth District Court of Appeal held that a trial court is free to run corrected sentences concurrently or consecutively to any of the other counts in a single prosecution.

Since the trial court was required to resentence Appellant on count II, it was free to run count II consecutively to count VI as Appellant had no expectation in the finality of his sentence. We find that the Legislature made it clear in section 775.087(2)(d) that the trial court had to run Appellant’s sentence for count II consecutively to the sentence for count VI. Therefore, we are required to reverse Appellant’s sentence in count II and remand for resentencing in accordance with Martin.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

WETHERELL and BILBREY, JJ., CONCUR.


text:
    Brittany HANEY, Appellant, v. Leslie SLOAN, Appellee.
    CASE NO. 1D15-3905
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017
    Rehearing Denied April 10, 2017

      Caryn L. Bellus and Bretton C. Albrecht of Kubicki Draper, P.A., Miami, for Appellant.
    ■ Dennis R. Schutt and Cindy K. Kinslow-Coats of Schutt, Schmidt & Noey, Jacksonville, for Appellee.
   PER CURIAM.

This appeal arises from a car , accident and Leslie Sloan’s personal injury lawsuit against Brittany Haney, which resulted in a $1.6 million verdict. Because the trial court improperly directed a verdict on the amount of past medical expenses when conflicting record evidence existed at trial, we reverse and remand for a new damages trial.

I.

Ms. Sloan (Plaintiff) and Ms. Haney (Defendant) were involved in a car accident in March 2012 that injured Plaintiff. After the accident, she received chiropractic and pain management care and had a spinal fusion on her neck. After her medical interventions and appointments substantially subsided, Plaintiff was involved in an unrelated accident. After this December 2013 accident, Plaintiff also sought medical help. She had many treatments with her chiropractor and pain management doctors and was diagnosed as having a temporomandibular joint (TMJ) condition.

Plaintiff then sued Defendant to recover from the first accident. Defendant admitted liability as to Plaintiffs, neck injury, but disputed fault for Plaintiffs other injuries and TMJ condition. Defendant ascribed Plaintiffs other medical problems primarily to the second accident. After the parties presented their evidence, Plaintiff moved for a directed verdict as to all of her past medical expenses, incurred both before and after the second accident. She argued that a jury could not differentiate between her injuries caused by the two accidents based on the evidence presented, and therefore must attribute all of Plaintiffs injuries to the initial accident. Over Defendant’s objection, the trial court granted the motion and informed the jury that all of Plaintiffs past medical expenses, some $130,577.18, were legally attributable to the first accident and caused by Defendant. Plaintiff then argued at closing that the jury should consider its award of future medical expenses and pain and suffering expenses based on the premise that Defendant had solely caused all of Plaintiffs injuries. The jury then returned a verdict for Plaintiff in the amount of $1,630,577.18.

II.

A.

Where a plaintiff has been involved in successive accidents but sues just one of the tortfeasors causing her injuries, it is the jury’s role to determine whether the plaintiffs injuries can be apportioned between the first and second accident. See Gross v. Lyons, 763 So.2d 276, 279 (Fla. 2000); In re Standard Jury Instructions In Civil Cases—Report No. 13-02, 135 So.3d 281, 282 (Fla. 2014). If the injuries cannot be apportioned, then the jury is to find the prior tortfeasor responsible for all of the injuries. Gross, 763 So.2d at 279. A trial court should proceed with “extreme caution” in deciding to remove a case from the jury’s purview and grant a directed verdict motion. Houghton v. Bond, 680 So.2d 514, 522 (Fla. 1st DCA 1996). It is reversible error to grant a motion for directed verdict when conflicting evidence exists regarding the causation of injuries and the attribution of expenses between them. See Pugliese v. Terek, 117 So.3d 1230 (Fla. 3d DCA 2013); Moore v. Perry, 944 So.2d 1115 (Fla. 5th DCA 2006); Gross v. Lyons, 721 So.2d 304 (Fla. 4th DCA 1998), approved, 763 So.2d 276 (Fla. 2000).

B.

In the instant case, the trial court attributed all of Plaintiffs past medical bills—including bills incurred after the second accident—to the first accident and granted a directed verdict. It is undisputed that the neck injury arose from the initial car accident. The source of Plaintiffs other injuries (and resulting medical bills), however, is disputed. Plaintiff presented expert testimony from her chiropractor and her pain management specialist that her lower back injury, TMJ condition, and pain primarily arose from the initial accident. But Plaintiffs experts also acknowledged, as did Defendant’s expert, that some of her pain and treatment, at least temporarily, arose from the second accident.

There was conflicting evidence about the proper attribution of some of the medical bills and whether they were attributable to the first accident or the second. Whereas Plaintiff argued that a jury could not segregate bills between the injuries caused by the two accidents, some evidence suggests that certain bills could indeed be differentiated. Plaintiffs pain management doctor stated, for instance, that he was unaware that Plaintiff had even been involved in a subsequent accident. He hadn’t reviewed Plaintiffs medical records from the second accident, but conceded that it could have caused her spine, TMJ, and lower back problems. In other words, there was a basis for the jury to agree with the Defendant that Plaintiffs post-December 2013 bills arose from the second accident.

With respect to other bills, Defendant’s medical expert testified based on Plaintiffs own statements of his belief that certain chiropractic treatments in Georgia did not stem from the first accident, but from a sleeping-related problem. Here again, the jury had a basis for attributing some of Plaintiffs medical bills to causes other than the first accident.

Finally, Plaintiffs chiropractor admitted to keeping two separate files for Plaintiff based on each accident. He apparently billed Plaintiffs insurance company separately for treatments she received after the subsequent accident. The attribution of at least some of Plaintiffs medical costs to the second accident is supported by the examination report he completed a week after the second accident, which described that accident as follows:

Mrs. Sloan ... stated the impact was severe, she was jolted back and forth in her car “pretty hard” and she felt immediate pain in her lower back, neck and head. ... [After treatment at the hospital, she was] released with prescription medications. Since the day of the accident she has been taking valium and hydrocodone for pain management.

With respect to that same chiropractic visit, Plaintiffs case/patient history form stated her reason for treatment arose solely from the second accident. She reported her “present illness” as being the second motor vehicle accident—“MVA on 12/27/18.” She also listed the date her symptoms appeared as being the date of the second accident; that she’d first noticed her major symptom (“predominantly lower back pain with neck pain”) on the date of the second accident; and that her major symptom “originally occurred” on the date of the second accident. Here again, the jury had a basis for apportioning at least some of Plaintiffs chiropractic expenses to the second motor vehicle accident, and not Defendant.

Because evidence from conflicting witness testimony existed upon which the jury could have attributed at least some of Plaintiffs past medical expenses to the second car accident, the trial court incorrectly directed a verdict. We thus reverse the final judgment so that a jury can resolve conflicts in the evidence and decide the distribution of damages issue. See Van v. Schmidt, 122 So.3d 243, 259 (Fla. 2013) (recognizing that a jury may reject any testimony, including testimony of experts). Because Plaintiff argued to the jury that her future medical expenses and pain and suffering expenses should all be attributed to the first accident based upon the court’s directed verdict, the amount of these damages must also be reconsidered by the jury at the new trial. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2014) (unless the benefitted party proves no reasonable possibility that the error contributed to the verdict, the error must be considered harmful).

III.

We REVERSE the final judgment and REMAND for a new trial on damages.

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.


text:
    Nairn D. NEWELL, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D16-2025
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017
    Rehearing Denied April 18, 2017

      Nairn D. Newell, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, Nairn D. Newell, seeks to compel the Florida Department of Corrections (“FDOC”) to award him 60 days of gain-time to which he asserts he is entitled following the completion of his general educational development certificate (“G.E.D.”). We have jurisdiction in accordance with Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), and determine that the FDOC has the statutory authority to award, within its discretion, 60 days of gain-time to inmates whose crimes were committed on or after October 1, 1995, and who have completed their G.E.D. certificate.

In the FDOC’s administrative ruling, for which the circuit court denied cer-tiorari relief, the FDOC concluded that it had no authority to consider petitioner’s request for the one-time 60-day gain-time award because the statute providing for such an award, section 944.275(4)(d), Florida Statutes, does not apply to inmates like petitioner whose offenses were committed on or after October 1, 1995. We disagree; although the 60-day award is clearly within the FDOC’s discretion, the FDOC was required, at a minimum, to consider peti: tioner’s request.

Subparagraphs 944.275(4)(b)l-3 govern the award of monthly incentive gain-time as follows:

(b) For each month in which an inmate works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant incentive gain-time in accordance with this paragraph. The rate of incentive gain-time in effect on the date the inmate committed the offense which resulted in his or her incarceration shall be the inmate’s rate of eligibility to earn incentive gain-time throughout the period of incarceration and shall not be altered by a subsequent change in the severity level of the offense for which the inmate was sentenced.
1. For sentences imposed for offenses committed prior to January 1, 1994, up to 20 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.
2. For sentences imposed for offenses committed on or after January 1, 1994, and before October 1,1995:
■a. For offenses ranked in offense severity levels 1 through 7, under former s. 921.0012 or former s. 921.0013, up to 25 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly, b. For offenses ranked in offense severity levels 8, 9, and 10, under former s. 921.0012 or former s. 921.0013, up to 20 days of incentive gain-time may be granted. If granted, such gain-time shall be credited and applied monthly.
3.For sentences imposed for offenses committed on or after October 1, 1995, the department may grant up to 10 days per month of incentive gain-time, except that no prisoner is eligible to earn any type of gain-time in an amount that would cause a sentence to expire, end, or terminate, or that would result in a prisoner’s release, prior to serving a minimum of 85 percent of the sentence imposed. For purposes of this subpara-graph, credits awarded by the court for time physically incarcerated shall be credited toward satisfaction of 85 percent of the sentence imposed. Except as provided by this section, a prisoner shall not accumulate further gain-time awards at any point when the tentative release date is the same as that date at which the prisoner will have served 85 percent of the sentence imposed. State prisoners sentenced to life imprisonment shall be incarcerated for the rest of their natural lives, unless granted pardon or clemency.

§ 944.275(4)(b)l-3, Fla. Stat. (emphasis added). Subparagraph 944.275(4)(d), which provides for the 60-day educational gain-time award, reads in relevant part:

Notwithstanding subparagraphs (b)l. and 2., the education program manager shall recommend, and the ■ Department of Corrections may grant, a one-time award of 60 additional days of incentive gain-time to an inmate who is otherwise eligible and who successfully completes requirements for and is awarded a high school equivalency diploma or vocational certificate:

§ 944.275(4)(d), Fla. Stat.

The FDOC’s position is that because the 60-day award is granted all at once pursuant to the educational gain-time award subsection,'it would necessarily be in excess of the 10-day-per-month cap established in the general gain-time subsection. The FDOC also argues that because sub-paragraph (d) of the educational award subsection begins with, “[n]otwithstanding subparagraphs (b)l. and 2,” but omits mention of subparagraph (b)3 regarding the award of gain-time for offenses that occurred on or after October 1, 1995, the statutory construction doctrine of expres-sio unius est exclusio alterius requires a reading that subparagraph (d) does not apply to inmates whose offenses were committed on or after October 1, 1995. We disagree with the FDOC.

Judge Benton, in his concurrence in Perez v. McNeil, 995 So.2d 989 (Fla. 1st DCA 2008), noted that the FDOC’s interpretation of the educational gain-time subsection was not the only interpretation. Judge Benton first noted the FDOC’s position as posited by the Staff Analysis of the educational gain-time subsection’s bill: “If the Staff Analysis is correct that no more than ten days of incentive gain-time of whatever kind can be awarded per month, a 60-day award, whether for educational achievement under subsection (d)-or, indeed, for heroism under subsection (c)-can never be made (at least in a single month) against a sentence imposed for an offense occurring on or after October 1, 1995.” Perez, 995 So.2d at 991 (Benton, J., concurring) (citing Fla. H.R. Comm, on Corr., HB 687 (1995) Staff Analysis 3 (final Jul. 13, 1995) (on file in the State Archives)). However, Judge Benton further stated, “[t]his is not ... the only possible reading of section 944.275(4)(b), which can also be read as imposing the ten-day-per-month limit only on ‘incentive gain-time [granted] in accordance with this paragraph,’ i.e., section 944.275(4)(b).” Id. at n.2 (emphasis added).

Faced with the question of which is the correct reading, we conclude that from the face of the statute itself, the second reading is correct; the phrase “in accordance with this paragraph” operates to limit the general incentive gain-time subsection 944.275(4)(b) and does not affect the educational gain-time award provided for under a separate subsection, 944.275(4)(d).

There are two problems with the reading urged by the FDOC: 1) the omission of subparagraph (3) from the educational gain-time award subsection is not disposi-tive because the educational gain-time award subsection was enacted before sub-paragraph (3) was added to the general incentive gain-time subsection; and 2) it would result in repeal of a statute by implication, which is unfavored.

First, subparagraph (3) of the general incentive gain-time subsection, which requires inmates who committed their offenses on or after October 1,1995, to serve at least 85% of their sentences, was enacted when the educational gain-time award subsection was already in existence. The failure of the educational gain-time subsection to carve out an exclusion for subpara-graph (3) of the general incentive gain-time subsection, therefore, does not necessarily evince a legislative intent for sub-paragraph (3) to control absent a conflict, as subparagraph (3) did not exist at the time the educational gain-time subsection was created.

Second, the 85% limitation does not say anything about repealing the G.E.D. gain-time subsection; if the Legislature had wished to repeal the educational gain-time subsection, it would have been more explicit.

The only clear conflict between these subsections is the one identified in Judge Benton’s concurrence in Perez, 995 So.2d at 991-92, that the application of the educational credits cannot cause an inmate to serve less than 85% of the sentence as stated in the general gain-time subsection. That conflict is not alleged to exist in the current case.

Thus, the FDOC’s reading of the statute would effectively repeal the educational gain-time award subsection by implication, determining that the gain-time awarded would be unavailable for any inmate who committed an offense on or after October 1,1995.

Repeal by implication is not favored. Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980). “There is a general presumption that later statutes are passed with knowledge of prior existing laws; and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication.” Oldham v. Rooks, 361 So.2d 140, 143 (Fla. 1978); see also State ex rel. Gerstein v. Hialeah Race Course, Inc., 245 So.2d 53 (Fla. 1971).

[T]he mere fact that a later statute relates to matters covered in whole or in part by a prior statute does not cause a repeal of the older statute. If two statutes may operate upon the same subject without positive inconsistency or repug-nancy in their practical effect and consequences, they should each be given the effect designed for them, unless a contrary intent clearly appears.

State v. Gadsden County, 63 Fla. 620, 58 So. 232, 235 (1912).

The two subsections involved in the instant case can be read so that they are not inconsistent. That is, the 60-day G.E.D. statute cannot cause an inmate to serve less than 85% of a sentence; in all other cases, the FDOC has discretion to grant the educational gain-time award.

We, therefore, hold that the FDOC’s conclusion that it is entirely without authority even to consider the 60-day educational gain-time award for inmates whose offenses were committed on or after October 1, 1995, was erroneous. Although the ultimate decision of whether to grant the 60-day award is discretionary and subject to the 85%-of-sentence requirement discussed in subparagraph 944.275(4)(b)3, the FDOC had a ministerial duty to consider the request and at its discretion, either grant or deny it.

Accordingly, we GRANT the petition for writ of certiorari, QUASH the order of the lower tribunal denying petitioner’s petition for writ of mandamus, and REMAND for further proceedings consistent with this opinion.

PETITION GRANTED; REMANDED.

WOLF, B.L. THOMAS, and KELSEY, JJ., CONCUR.

       In Perez v. McNeil, as noted in Judge Benton’s concurrence, this court held the inmate whose offense was committed on or after October 1, 1995, was ineligible to receive the 60-day gain-time award for completing his G.E.D. not because of the date his offense was committed, but because the gain-time award would have caused the inmate to serve less than 85% of his sentence contrary to section 944.275(4)(b)3, Florida Statutes. Perez v. McNeil, 995 So.2d 989 (Fla. 1st DCA 2008) (Benton, J., concurring). No similar allegation that the award of the educational gain-time would cause appellant to serve less than 85% of his sentence has been raised here.


author: JAY, J.

text:
    Cristina TARANTOLA, M.D., (Incorrectly Set Forth as Christina Tarantela, M.D.), Appellant, v. WILLIAM B. HENGHOLD, M.D, P.A., Appellee.
    CASE NO. 1D16-3718
    District Court of Appeal of Florida, First District.
    Opinion filed March 7, 2017.
    Rehearing Denied April 18, 2017
    Todd M. Ladouceur, Jessica L. Scholl, and Chris K. Ritchie of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellant.
    Jeremy C. Branning, Daniel E. Harrell, and Andrew M. Spencer of Clark Parting-ton, Pensacola, for Appellee.
   JAY, J.

In this appeal from an order granting a temporary injunction pursuant to a covenant not to compete, we affirm in all respects except as to appellant’s claim that the trial court misconstrued the covenant as prohibiting appellant from “practicing dermatological medicine including Mohs surgery.” We conclude that the injunction is overly broad insofar as it can be construed as prohibiting appellant from practicing general dermatology unrelated to Mohs surgery.

Appellant entered into an employment contract containing a covenant not to compete that restricted her from “[djirectly or indirectly rendering medical services that include performing Mohs surgery in any capacity for Employee’s own account or for others.” After appellant left her employment, her employer filed a complaint for injunctive relief and breach of contract alleging that appellant violated the covenant not to compete. In its order granting a temporary injunction, the trial court interpreted “medical services” to “encompass all dermatological services including Mohs surgery.” This appeal followed,

In evaluating “employment agreements, as with all contracts, courts must apply the ‘most commonly understood meaning with regard to the subject matter and circumstances of the contract.’ ” DePuy Orthopaedics, Inc. v. Waxman, 95 So.3d 928, 934 (Fla. 1st DCA 2012) (citation omitted). This requires construing the pertinent language “in accordance with the plain meaning of the words contained” in the agreement. Ferreira v. Home Depo/Sedgwick CMS. 12 So.3d 866, 868 (Fla. 1st DCA 2009). Here, the contractual term “medical services” is modified by the restrictive clause “that include performing Mohs surgery.” Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (“[A] limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows.”). Based on this language, appellant is clearly restricted from providing medical services that involve the provision of Mohs surgery. This restriction applies not only to performing Mohs surgery, but also to any pre-operative and postoperative medical services associated with this type of surgery. However, it would not prohibit appellant from practicing general dermatology provided that her dermatology practice does not encompass services that directly or indirectly relate to the provision of Mohs surgery.

As written, the trial court’s temporary injunction generally restricts appellant from practicing “dermatological medicine” because the participial phrase “including Mohs surgery” is not one of limitation. See Include, Black’s Law Dictionary (10th ed. 2014) (“The participle including typically indicates a partial list <the plaintiff asserted five tort claims, including slander and libel>. But some drafters use phrases such as including without limitation and including but not limited to—which mean the same thing.”). Accordingly, we reverse the temporary injunction in part and remand with directions that the trial court narrow the injunction so that appellant is not prohibited from practicing general dermatology unrelated to Mohs surgery.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

OSTERHAUS and WINSOR, JJ„ CONCUR.


text:
    Howard VOGEL and Alicia Vogel, Appellants, v. WELLS FARGO BANK, N.A. and Debbie Swift, Appellees.
    No. 4D16-3329
    District Court of Appeal of Florida, Fourth District.
    March 8, 2017
    Brian Korte and Scott J, Wortman of Korte <& Wortman, P.A., West Palm Beach, for appellants.

      Sara F. Holladay-Tobias and Ada Agusti Hammond of McGuire Woods LLP, Jacksonville, for appellee, Wells Fargo Bank, NA.
    Gregg M. Paley of Colson & Paley, LLC, Lighthouse Point, for appellee, Debbie Swift.
   Per Curiam.

Affirmed. See Sundie v. Haren, 253 So.2d 857, 859 (Fla. 1971).

Gross, May and Gerber, JJ., concur.


text:
    Lemmie T. STRAUGHTER, IV, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4334
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017.
    Rehearing Denied April 24, 2017
    Lemmie T. Straughter, IV, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kathryn Lane, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal as untimely. The final order was rendered on August 5, 2016, making any notice of appeal due to be filed no later than September 6, 2016 (because the 30th day fell on Sunday, and Monday was Labor Day, a legal holiday). Appellant’s notice of appeal was not delivered to prison officials for mailing until September 8, 2016, which was late and therefore ineffective to invoke our jurisdiction. Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla. 2002).

DISMISSED.

ROWE, KELSEY, and JAY, JJ., CONCUR.