author: BILBREY, J.

text:
    ARLINGTON PEBBLE CREEK, LLC, Appellant, v. CAMPUS EDGE CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporation, Appellee. Arlington Properties, Inc., Appellant, v. Campus Edge Condominium Association, Inc., Appellee.
    CASE NO. 1D16-1347, CASE NO. 1D16-1423
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017
    Rehearing Denied January 9, 2018

      Mark A. Boyle, Molly Chafe Brockmeyer, and Alexander L. Brockmeyer of Boyle & Leonard, P.A., Fort Myers, for Appellant Arlington Pebble Creek, LLC.
    Hinda Klein and Brian Lee Ellison of Conroy Simberg, Hollywood; Jeffrey M. Paskert and Dara'L. Dawson of Mills Pas-kert Divers, P.A., Tampa, for Appellant Arlington Properties, Inc.
    Jefferson M. Braswell of Scruggs & Carmichael, P.A., Gainesville, for Appellee.
   BILBREY, J.

Appellants, Arlington Properties, Inc., and Arlington Pebble Creek, LLC, appeal the final judgment in favor of Campus Edge Condominium Association, entered after denial of Appellants’ motions for directed verdict and based upon the jury’s verdict and award of damages. “A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the mov-ant’s case as a matter of law and there is-no evidence to rebut it.” Wald v. Grainger, 64 So.3d 1201, 1205 (Fla. 2011). An appellate court reviews an order on a motion for directed verdict de novo. Kopel v. Kopel, 229 So.3d 812, 42 Fla. L. Weekly S26, 2017 WL 372074 (Fla. Jan. 26, 2017); Christensen v. Bowen, 140 So.3d 498 (Fla. 2014); Hoffmann-La Roche Inc. v. Mason, 27 So.3d 75 (Fla. 1st DCA 2009). Here, the evidence and inferences from the evidence do not establish proof of all the elements of fraudulent misrepresentation or negligent misrepresentation, even when viewed in a light most favorable to the Association. Therefore, the final judgment is reversed and the trial court is directed to enter judgment in favor of the Appellants.

-Arlington Properties, Inc., purchased an existing apartment complex in January 2006, for the purpose of converting the facilities to condominium ownership under chapter 718, Florida Statutes. Upon this purchase, Arlington Pebble Creek, LLC, was created to conduct the conversion, including creation and initial management of the Association. See § 718.111, Fla. Stat. In December 2008, Arlington Pebble Creek relinquished management and control of the Association to the unit owners. See § 718.301, Fla. Stat.

The original complaint was filed by the Association on January 6, 2012, after extensive water intrusion damage to common areas of the condominium property was discovered. Necessary repairs to the common areas required the Association to increase, and for some years double or more, the assessments upon its members in order to preserve the utility and.value of both the common areas and the individual condominium units. The Association sought damages from both Arlington Properties and Arlington Pebble Creek, asserting that the developer and the managing company knew of the water intrusion problems but neglected to fully cure the situation, turned over to the Association responsibility for upkeep and repairs knowing that damage to the buildings was ongoing, and knew the Association would incur substantial expense to preserve the integrity and safety of the common areas. Based on the factual allegations in its Fourth Amended Complaint, and after clarification by. counsel and the trial court as the litigation progressed, the Association proceeded on causes of action for fraudulent misrepresentation and negligent misrepresentar tion.

As the Florida Supreme Court has stated, a party seeking to establish fraudulent misrepresentation is required to prove the following elements:

(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.

Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010)(quoting Johnson v. Davis, 480 So.2d 625, 627 (Fla. 1985)). To establish negligent misrepresentation, a party is required to prove: (1) a misrepresentation of material fact that the defendant believed to be true but which was in fact false; (2) that defendant should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in justifiable reliance upon the misrepresentation, resulting in injury. See Specialty Marine & Industrial Supplies, Inc. v. Venus, 66 So.3d 306, 309 (Fla. 1st DCA 2011).

The first elements of both causes of action require false statements of material fact. The Association admitted into evidence Arlington Properties’ Facility Evaluation Report from December 2005. This report was prepared as required by section 718.616, Florida Statutes, when converting an apartment complex to a residential condominium. The report stated an estimated remaining useful life of the structures of 35 to 45 years and described the functional soundness of the structures as “Good (localized deterioration).” In addition, the Association presented Arlington Pebble Creek’s budget for Association maintenance for 2008 (the year immediately prior to turnover of Association management), showing less than $10,000 expended for building repairs.

To prove the falsity of the Facility Evaluation Report and the maintenance budget, and to prove the defendants’ knowledge of such falsity (for the fraudulent misrepresentation count) or that they should have known of the falsity (for the negligent misrepresentation count), the Association admitted into evidence a second engineering report, the Property Condition Assessment. Arlington Properties had obtained the Property Condition Assessment around the time of the Facility Evaluation Report in December 2005 as it prepared to purchase the then apartment complex. The Property Condition Assessment was not filed with the State of Florida or otherwise published to third parties. It described moisture intrusion affecting the exterior balconies including columns, handrails, concrete decks, and balcony ceilings. The Property Condition Assessment included the engineers’ estimate that at the time of that report water damage to the buildings required repairs to the “Structure/Building envelope” costing approximately $290,200.00. According to the Association, the falsity of the 2008 budget was that it gave no hint that costly repairs were needed immediately and that extraordinary Association assessments were required in order to preserve the common areas.

The jury therefore had evidence to support the first and second elements of the fraudulent and negligent misrepresentation causes of action. However, the Association failed to present any evidence to prove the third and fourth elements for both fraudulent and negligent misrepresentation. No evidence of any intent of Arlington Properties or Arlington Pebble Creek to induce reliance by the Association was presented. In addition, the Association failed to present any evidence that it actually relied on the statutory report or any pre-transfer Association budgets, and failed to present any evidence that the damages it sought resulted from its action or inaction attributed to any reliance.

The testimony of Dorothy Benson, a unit owner since 2007 and Association president at the time of trial, did not describe any action the board took at the time of transfer or thereafter in reliance on any statement by either defendant. She never testified that the transfer of Association control to the unit owners was contingent upon any representation by either defendant. No one representing the Association asserted that the transfer deviated from any provision of section 718.301, Florida Statutes. Likewise, upon transfer of the Association in December 2008, the first post-transfer property manager, Jeff Sau-saman, testified that he prepared the budgets for the Association for 2009 and years thereafter based on his experience and with some knowledge of the Association’s budget for 2008. But Mr. Sausaman had not seen Arlington Properties’ 2005 statutory property condition report, and thus could not have relied on it, until after the litigation was commenced in 2012.

The lack of evidence of either defendants’ intent to-induce reliance and the failure to show any actual reliance by the Association via any action or change in the Association’s position was argued extensively in the defendants’ motions for directed verdict at the conclusion of the Association’s presentation of evidence. The issue of failure of proof was thus preserved for appellate review. The trial court specifically inquired of counsel what the Association would have done differently had the Association known of the water intrusion problems earlier in time. Other than preparing post-transfer budgets with higher projections for repair expenses, charging unit owners with higher assessments earlier, and perhaps undertaking repairs sooner, there was simply no evidence that the costs of repairs eventually incurred was a consequence of any reliance by the Association upon any false statement made to the Association, either fraudulently or negligently, by either of the defendants.

Because the record on appeal fails to contain proof of the third and fourth elements of both fraudulent misrepresentation and negligent misrepresentation, the jury’s verdict, and the final judgment based thereon, are not supported by evidence in the record. Accordingly, the final judgment is REVERSED with directions for entry of judgment in favor of Appellants.

LEWIS and ROBERTS, JJ., CONCUR.

      . The Association’s count alleging a violation of section 718.616, Florida Statutes, based on allegations of Arlington Pebble Greek not fulfilling its statutory obligation of disclosure upon conversion of the apartment complex into a residential condominium had been dismissed by the time the case was tried. Counsel for the Association also clearly represented to the trial court, and in' the Association’s brief in this court, that the Association was not proceeding under a buyer’s cause of action for fraudulent nondisclosure as provided in Johnson v. Davis, 480 So.2d 625 (Fla. 1985), since the Association was not a buyer, the individual unit owners were. During the discussion of jury instructions and the parameters, of closing arguments after the close of evidence, the trial court ruled that the Association was proceeding on "a fraudulent and negligent ■ misrepresentation claim, not a fraudulent nondisclosure case.” The Association did not object 'and1 does not challenge that ruling here.

      . Although there may have been misrepresentations made to individual unit owners which were intended to induce them into purchasing their units, the trial court correctly held that it was necessary for the Association to prove that the Appellants intended to induce reliance by the Association and that the Association was injured acting in reliance on the misrepresentation. The Association does not dispute this on appeal and in fact states in its answer brief, “[tjhis case is about fraudulent misrepresentations made directly, to the Association in Association meetings.”

      . There was no evidence that the Association suffered additional damages by any delay in repairs. Additionally, although the extent of reliance necessary to prove fraudulent misrepresentation and negligent misrepresentation differ, here there was no proof of any reliance to satisfy either cause of action. See Specialty Marine, 66 So.3d at 310-11. Contrary to one of the Association’s arguments, the existence of a fraudulent statement does not in itself establish reliance on that statement — to so hold would eliminate the third and fourth elements of the cause of action required by Butler.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eva Electris CANNIE aka Ava Electris Cannie, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB dba Christiana Trust, Not Individually but as Trustee for Pretium Mortgage Acquisition Trust, Appellee.
    CASE NO. 1D17-2598
    District Court of Appeal of Florida, First District.
    Opinion filed November 20, 2017.
    Rehearing Denied January 10, 2018

      Eva Electris Cannie aka Ava Electris Cannie, pro se, Appellant.
    David Rosenberg of Robertson, An-schutz & Schneid, P.L., Boca Raton, for Appellee.
   PER CURIAM.

Appellee’s motion, filed on October 6, 2017, is granted and the appeal is dismissed for lack of jurisdiction.

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


text:
    Ervin James FINDLEY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4450
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017.
    Rehearing Denied January 10, 2018
    Ervin James Findley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. ' App. P. 9.141(d)(5).

WETHERELL, RAY, and WINSOR, JJ., CONCUR.


text:
    Andre BURGESS, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    CASE NO. 1D17-3914
    District Court of Appeal of Florida, First District.
    Opinion filed November 27, 2017
    Rehearing Denied January 10, 2018
    Andre Burgess,-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 habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

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


author: JAY, J.

text:
    Katherine Anne SMITH, Appellant/Cross-Appellee, v. Douglas W. SMITH and E. Drew Mitchell, as co-personal representatives of the estate of Robert H. Smith. In re: Estate of Robert H. Smith, Appellees/Cross-Appellants.
    CASE NO. 1D16-2409
    District Court of Appeal of Florida, First District.
    Opinion filed November 27, 2017
    Rehearing Denied January 10, 2018

      F. Wallace Pope, Jr., Brandon D. Bel-lew, and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellant/Cross-Appellee.
    Dubose Ausley and Kevin A. Forsthoefel of Ausley McMullen, Tallahassee; James P. Judkins and Larry D. Simpson of Jud-kins, Simpson & Schulte, Tallahassee, for Appellees/Cross-Appellants.
   JAY, J.

This is an appeal and cross-appeal from an order ruling on Appellees’ motion to dismiss various counts of a petition filed by Appellant in the probate of her husband’s estate. We affirm in all respects and write only to address Appellant’s contention that the trial court erred in dismissing with prejudice her claim seeking removal of Appellees as co-personal representatives of the estate.

On May 28, 2013, Appellant’s husband died, survived by Appellant and two adult children. The decedent’s last will and testament and the first codicil to the will designated Appellees as co-personal representatives and co-trustees of testamentary trusts funded with assets from the residue of the estate. One of these trusts — the marital trust — provided income to Appellant during her lifetime. The trial court entered an order admitting the will and codicil to probate and appointing Appellees as co-personal representatives of the estate.

On September 11, 2013, Appellant filed a claim against the estate pursuant to a premarital agreement dated March 5, 2009, which provided for the cash purchase of the marital home by the estate from Appellant and the lump-sum payment to Appellant of $500,000.00. In exchange, Appellant and her husband agreed “to refrain from any action or proceeding to void or nullify to any extent the probate of or the terms of any last will and testament or trust or testamentary substitute created by the other so long as the rights of the surviving party under the terms of this Agreement are not abridged by any such instrument.” Pursuant to this agreement, the estate made the lump-sum payment and purchased Appellant’s interest in the marital home.

On November 2, 2015, Appellant filed an amended petition seeking, among other things, Appellees’ removal as co-personal representatives due to alleged breaches of fiduciary duty with regard to the marital trust. In particular, the amended petition alleged that Appellant entered into the premarital agreement on March 5, 2009, and that the waiver of rights provision contained therein did not apply to any rights Appellant later acquired through her husband’s subsequently executed will and codicil. In response, Appellees filed a motion to dismiss in which they asserted, among other things, that Appellant waived any interest in her husband’s estate by entering into the premarital agreement. The trial court granted Appellees’ motion to dismiss with leave to amend.

On January 28, 2016, Appellant filed a second amended petition, which again sought removal of the co-personal representatives but omitted all reference to the premarital agreement. In response, Appel-lees filed another motion to dismiss as well as a motion to strike, which asserted that the removal of the reference to the premarital agreement constituted a sham to avoid a subsequent dismissal. The trial court entered an order both striking and dismissing with prejudice Appellant’s claim seeking removal of the co-personal representatives. This appeal followed.

Appellant asserts that the trial court erred in dismissing her claim seeking removal of the co-personal representatives upon concluding that she waived any interest she had in her husband’s estate by entering into the premarital agreement. Although it is undisputed that Appellant and her husband .executed a premarital agreement, Appellant asserts that the waiver provisions of the premarital agreement'did not extend to the interest she acquired in her husband’s estate when she was named an income beneficiary of the marital trust created under the terms of his last will executed after the marital agreement.

“ ‘A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts.’ ” Hahamovitch v. Hahamovitch, 174 So.3d 983, 986 (Fla. 2015) (quoting Taylor v. Taylor, 1 So.3d 348, 360 (Fla. 1st DCA 2009)). “Contract interpretation begins with a review of the plain language of the agreement because the contract language is the best evidence of the parties’ intent at the time of the execution of the contact.” Taylor, 1 So.3d at 350. “Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language.” Hahamovitch, 174 So.3d at 986.

Here, the premarital agreement expressly provided that the parties would “refrain from any action or proceeding to void or nullify to any extent ... the terms of any last will and testament or trust or testamentary substitute,” which clearly contemplated all wills and testamentary trusts regardless of whether they were executed before or after the premarital agreement. Accordingly, the premarital agreement prevented Appellant from nullifying the terms of her husband’s last will by seeking the removal of the co-personal representatives named in the will.

In addition to dismissing Appellant’s claim seeking removal of the co-personal representatives, the trial court also granted Appellees’ motion to strike that claim as a sham because the second amended petition deliberately omitted facts alleged in the amended petition— specifically, the execution of the premarital agreement — for the purpose of avoiding a dismissal. Appellant did not challenge this ruling in her initial brief and cannot challenge it. for the first time in her reply brief. See Land v. Fla. Dep’t of Corr., 181 So.3d 1252, 1254 (Fla. 1st DCA 2015) (holding that it is well-settled that an issue not raised in the initial brief is deemed abandoned and may not be raised for the first time in the reply brief).

Even if the ruling was properly before this court, the trial court did not err in striking Appellant’s claim as a sham. On a motion to strike a sham pleading, the trial court applies the same standard applicable to motions for summary judgment— i.e., the court may grant the motion “only if the material facts are not in dispute and only if the pleading is not supported by the facts.” Philip J. Padovano, Florida Civil Practice, § 7:12 (2016-2017 ed.); accord Slatko v. Virgin, 328 So.2d 499, 500 (Fla. 3d DCA 1976) (“A hearing on a motion to strike is not a hearing to try the issues but to determine whether there are any genuine issues to be tried.”). “If the pleading is supported by any version of the evidence or by at least some evidence, then the motion to strike must be denied.” Padovano, supra, § 7:12. All doubt is resolved in favor of the pleading. Id.; see also Parrish & Yarnell, P.A. v. Spruce River Ventures, LLC, 180 So.3d 1198, 1200 (Fla. 2d DCA 2015) (“[T]he trial court must resolve all doubts in favor of the pleading and keep in mind that striking a pleading is an extreme measure that is disfavored.”).

In this case, it is undisputed that Appellant's second amended complaint removed all references to the premarital agreement — an agreement that was the basis' for the trial court’s prior dismissal of Appellant’s claim seeking removal of the co-personal representatives. The clear language of that agreement prevented Appellant from invalidating the 'terms of her husband’s last will by seeking the removal of the co-personal representatives named in the will. Consequently, it was appropriate for the trial court to strike Appellant’s claim insofar as the claim was negated by the premarital agreement. See Schaal v. Race, 135 So.2d 252, 254 (Fla. 2d DCA 1961) (holding that the trial court properly dismissed the amended complaint as a sham where the plaintiff amended the original complaint to omit factual allegations that resulted in the dismissal of the original complaint); see also City of Miami v. Urban League of Miami, Inc., 849 So.2d 1095, 1098-99 (Fla. 3d DCA 2003) (holding that the trial court properly struck allegations regarding a specific parcel and rightly dissolved the corresponding lis pendens because the uncontroverted evidence established that the City had released its lien); Yunger v. Oliver, 803 So.2d 884, 887-88 (Fla. 5th DCA 2002) (holding that the trial court properly dismissed the tenants’ counterclaims as sham pleadings where the tenants had been -previously ordered to turn over possession of the premises).

AFFIRMED.

WINOKUR and MX THOMAS, JJ., CONCUR.


author: LaROSE, Chief Judge.

text:
    Tex Cordell FOSTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3902
    District Court of Appeal of Florida, Second District.
    Opinion filed December 6, 2017.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   LaROSE, Chief Judge.

In this Anders appeal, Tex' Cordell Foster appeals his judgment and sentence entered after he pleaded guilty to lewd or lascivious conduct. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm his conviction without further comment. We write to explain why, despite Mr. Foster’s express reservation of the trial court’s ruling allowing Williams rule evidence, the issue is not cognizable. on appeal,

Background

The State charged Mr. Foster with lewd or lascivious molestation, a life felony. As the case progressed, the State filed a Williams rule notice pursuant to section 90.404(2)(d)(l), Florida Statutes (2015). The trial court conducted a hearing and determined that the evidence, testimony from another child allegedly molested by Mr. Foster, was' “admissible and relevant to prove motive, intent, and absence of mistake.” The trial' court memorialized its ruling in a detailed written order.

On the day of trial,- defense counsel announced that the parties had negotiated a plea agreement. The State agreed to a reduced charge and Mr. Foster agreed to an eight-year prison sentence followed by five years of sex offender probation. Defense counsel further declared that • as “part of the plea [Mr. Foster] is reserving the right to appeal the Williams rule hearing.” The trial court expressed'Skepticism, observing that “it is an interlocutory order ... that would, only be apparent to the appellate court at trial.” In light of its misgivings, the trial court asked Mr. Foster whether, he still wishpd to proceed with his plea. Mr. Foster responded that he did. After a thorough plea colloquy, the trial court sentenced him in accordance with the negotiated disposition.

Analysis

Following entry of a guilty plea, the Florida Statutes and the Florida Rules of Appellate Procedure cabin the scope of a defendant’s appeal. Section 924.051(4), Florida Statutes (2016), states that “if a defendant pleads guilty without expressly reserving the right to appeal a legally dis-. positive issue, the defendant may not appeal the judgment or sentence.” The Florida Rules of Appellate Procedure provide that upon entry of a guilty plea, a defendant may appeal “a prior dispositive order of the lower tribunal” for which the right to appeal has been expressly reserved. Fla. R. App. P. 9.140(b)(2)(A)(i) (emphasis added); see also England v. State, 46 So.3d 127, 129 (Fla. 2d DCA 2010) (“Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) states in relevant part that a defendant may not appeal from a guilty plea except where the defendant has expressly reserved the right to appeal a prior disposi-tive order and identified with particularity the point of law being reserved.”).

Two barriers block Mr. Foster’s attempt to appeal the Williams rule order. First, as we have recognized in the context of suppression motions, the parties may stipulate, or the-trial coui't must expressly find, that the order is, in fact, dispositive. See Dermio v. State, 112 So.3d 551, 557 (Fla. 2d DCA 2013) (“We have previously recognizéd that orders denying motions to suppress confessions are not dispositive unless stipulated to by the parties.” (citing England, 46 So.3d at 129)). The record reflects no such stipulation. See Henderson v. State, 135 So.3d 1092, 1095 (Fla. 2d DCA 2013) (“Mr. Henderson made no suggestion that the motion to suppress was dispositive at the plea hearing, the sentencing hearing, or in the written plea agreement. Because there was no finding or agreement that the motion was disposi-tive, Mr. Henderson may not appeal the denial of the motion.”). Moreover, Mr. Foster made no suggestion at the plea hearing that the Williams rule order was disposi-tive, nor did the trial court make such a finding.

Second, “[a]n issue is preserved for appeal on a guilty plea only if it is dispositive of the case.” Levine v. State, 788 So.2d 379, 380 (Fla. 4th DCA 2001). “A motion is dispositive if the State could not proceed to trial if the defendant prevailed on the appeal of the ruling on the motion.” M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009) (en banc); see, e.g., Campbell v. State, 386 So.2d 629, 629 (Fla. 5th DCA 1980) (“We do not decide [the trial court’s denial of appellant’s motion to suppress] because, even if we were to reverse the order denying the suppression, the state hás other evidence and eye witness testimony with which to try the appellant. Thus[,] the issue is not dispositive of the case.”).

The trial court’s Williams rule order was not dispositive. Even if the ruling was erroneous, the State could, and likely would, have proceeded to trial. Williams rule evidence is “admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” § 90.404(2)(a); see, e.g., Ricketts v. State, 125 So.3d 194, 195-96 (Fla. 4th DCA 2013) (“Because knowledge is a specific element of [trafficking in cannabis], the evidence of the other crates was admissible Williams rule evidence because it was ‘relevant or material to some aspect of the offense being tried ....’” (quoting Santiago v. State, 70 So.3d 720, 725 (Fla. 4th DCA 2011))).

But the evidence was not necessary to obtain a conviction. Even if the trial court excluded the Williams rule evidence, the State could have still called the victim to testify at trial. Without commenting upon the weight afforded to the victim’s testimony, a determination for the jury, we observe that the victim’s testimony, alone, could likely be sufficient to establish the elements of the charged offense. See § 800.04(5)(a), (b), Fla. Stat. (2015); cf. Henderson, 135 So.3d at 1095 (stating that the motion seeking suppression of evidence obtained from a computer tablet was not dispositive as the State “may have [nonetheless] been able to proceed to trial” based upon the additional evidence possessed by the State); Campbell, 386 So.2d at 629. Because the trial court’s Williams ruling was not dispositive, it is not cognizable for this court’s review.

We therefore affirm Mr. Foster’s judgment and sentence. See Leonard v. State, 760 So.2d 114, 119 (Fla. 2000) (holding that a district court should summarily affirm “when the court determines that an appeal does not present ... a legally dispositive issue that was expressly reserved for appellate review”).

Affirmed.

SILBERMAN and MORRIS, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . See § 90.404(2)(b)(l), Fla. Stat. (2015) (“In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant,”); see also Williams v. State, 110 So.2d 654 (Fla. 1959).


text:
    PP TRANSITION, LP f/k/a Palms of Pasadena Hospital, LP d/b/a Palms of Pasadena Hospital, Petitioner, v. Sharon and Randall MUNSON, Respondents.
    Case No. 2D17-136
    District Court of Appeal of Florida, Second District.
    Opinion filed December 13, 2017
    Thomas Saieva and Lesley Ann Stine of La Cava & Jacobson, P.A., Tampa, and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Petitioner.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Marjorie Chalfant of The Nurse Attorney, P.A., University Park, for Respondents.
   PER CURIAM.

PP Transition, LP is the defendant in a medical malpractice action brought by Sharon and Randall Munson based on the care Ms. Munson received from the nursing staff at a hospital PP Transition operates. It petitions our court for a writ of certiorari from an order denying its motion to dismiss based on-'the Munsons’ alleged .noncompliance with the presuit investigation -requirements . applicable to medical malpractice cases under chapter 766, Florida Statutes (2013). We grant the petition.

As a part of their attempt to‘ comply with the requirements of chapter 766, the Munsons submitted the affidavit of a California-licensed neurologist who expressed an opinion on the nursing standard of care in Florida. See § 766.203(2) (requiring a medical malpractice claimant to -submit a medical expert opinion to corroborate reasonable grounds to support the claim). PP Transition filed a motion to' dismiss for failure to plead a claim or for an evidentia-ry hearing on the Munsons’ compliance with chapter .766, in which it argued— among other things — that the California-based witness was ineligible to offer an opinion on the standard of care applicable to nurses in Florida. See § 766.206(1), (2). After a nónevidentiary hearing, the trial court denied the motion. It gave no explanation for its ruling either on the record or in. the subsequent written order denying the motion.

PP Transition’s motion required the trial court to “determine” whether the Munsons complied with chapter 766. See § 766.206(1); Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 663 (Fla. 4th DCA 2008); Duffy v. Brooker, 614 So.2d 539, 544-45 (Fla. 1st DCA 1993), abrogated on other grounds by Archer v. Maddux, 645 So.2d 544 (Fla. 1st DCA 1994); cf. Holden v. Bober, 39 So.3d 396, 400 (Fla. 2d DCA 2010) (“The circuit court must then determine whether the opposing party complied with the reasonable investigation requirements of sections 766.201 to 766.212.”). At a minimum, that required the trial court make an express finding as to the Munsons' compliance with the pre-suit requirements. See Martin Mem’l, 984 So.2d at 663 (granting certiorari where trial court denied a motion to dismiss but “did not determine whether plaintiff conducted a good faith investigation!/]' or reach a conclusion on whether there was a reasonable basis for the claim”). Here, the court summarily denied PP Transition’s motion without making any findings as to the Munsons’ compliance with chapter 766. This effected a denial of the procedural safeguards of chapter 766 for which certio-rari relief is appropriate. See Williams v. Oken, 62 So.3d 1129, 1134 (Fla. 2011) (“Florida courts have permitted certiorari review to determine whether the defendant was afforded the proper process through procedural compliance with the statutory requirements.”); Rell v. McCulla, 101 So.3d 878, 880-81 (Fla. 2d DCA 2012) (“[Wjhere a plaintiff in a medical malpractice action has failed to satisfy the presuit notice requirements set forth in section 766.203(2), the defendant in such an action would suffer a material injury that could not be remedied in a post-judgment appeal if the action was allowed to proceed.”).

For these reasons, which render PP Transition’s other asserted grounds for certiorari relief moot, we grant PP Transition’s petition and quash the order below.

Petition granted; order quashed.

LaROSE, C.J., and VILLANTI and SALARIO, JJ., Concur.


author: KHOUZAM, Judge.

text:
    German Pito AYALA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3327
    District Court of Appeal of Florida, Second District.
    Opinion filed December 13, 2017

      Howard L. Dimmig, II, Public Defender, and Ama N. Appiah, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KHOUZAM, Judge.

German Pito Ayala appeals from his judgment and sentences for sale or delivery of a controlled substance and possession of heroin. Because the trial court erred in finding that Mr. Ayala was prohibited from raising the defense of entrapment, we reverse and remand for a new trial.

The State charged Mr. Ayala with sale or delivery of a controlled substance and possession of heroin. Mr. Ayala filed a written plea of not guilty and proceeded to trial. During opening statements, defense counsel asserted that Mr. Ayala was “entrapped” into providing drugs to a female police informant. The State did not object and thereafter presented its case against Mr. Ayala to the jury. The State’s case relied upon a video recording of the drug transaction and the testimonies of the police informant, two law enforcement officers, and a crime laboratory analyst.

After the State rested, defense counsel called Mr. Ayala’s girlfriend and Mr. Ayala himself to the stand. The girlfriend testified, in pertinent part, that she had been a friend of the informant for over ten years. She further testified that the informant had been “harassing” Mr. Ayala for heroin because the informant was “sick” and suffering from withdrawal. Corroborating his girlfriend’s account, Mr. Ayala testified that the informant had called on “countless” occasions to acquire drugs. He further testified that he did not want to acquire drugs for the informant because the informant was a difficult person, she was “always calling” him, and he was concerned about getting her narcotics. The State then objected to Mr. Ayala’s testimony, which prompted the trial court to hold a bench conference with both parties.

At side bar, the trial court asked defense counsel whether she had “file[d] any notice with the State that [Mr. Ayala] was using the defense of entrapment.” When defense counsel stated that she did not know that filing such a notice was required, the trial court decided that it was going to “cut [Mr. Ayala’s testimony] a little short.” The trial court reasoned that because defense counsel failed to file the requisite notice, Mr. Ayala was prohibited from arguing the defense of entrapment to the jury. The bench conference ended. -

Despite the trial court’s ruling, defense counsel continued attempting to elicit testimony from Mr. Ayala regarding entrapment. Defense counsel asked Mr. Ayala whether it was his “practice” to sell narcotics and whether it was his intent to sell narcotics to the informant. But on both occasions, the State objected and the trial court sustained those objections. The defense then rested.

At the charge conference and before closing arguments, defense counsel twice argued that Mr. Ayala was not required to provide any pretrial notice qf his intent to rely upon the defense of entrapment. Relying primarily upon Weaver v. State, 370 So.2d 1189 (Fla. 4th DCA 1979), defense counsel contended that the appropriate remedy for the lack of notice was to permit Mr. Ayala to present his entire entrapment defense and allow the State to introduce rebuttal evidence. But again, the trial court rejected defense counsel’s argument and prevented any further argument on the issue stating, “No. I’ve ruled. Keep arguing. I’ve ruled.” The jury was not instructed on entrapment and found Mr. Ayala guilty as charged. Mr. Ayala filed a motion for new trial, wherein he raised the same arguments once more. The trial court denied the motion, and this appeal followed.

“Normally under a plea of not guilty an accused may avail himself of any defense not required by law to be specifically pleaded, and all matters of justification and excuse.” Ivory v. State, 173 So.2d 759, 760 (Fla. 3d DCA 1965). The defense of “entrapment may be raised on a plea of not guilty.” Id; see also Koptyra v. State, 172 So.2d 628, 632 (Fla. 2d DCA 1965) (“Within the scope of a defendant’s plea of not guilty he may interpose the defense of entrapment where he is charged with possession of narcotics.”); Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) (on rehearing) (“A plea of not guilty should not preclude the defense of voluntary intoxication anymore than it precludes a defense of entrapment.” (citing Ivory, 173 So.2d at 760)). In fact, “[tjhere is no statute in Florida requiring that the defense of entrapment be specifically raised by the pleadings.” Ivory, 173 So.2d at 760 n.1; cf., e.g., Fla. R. Crim. P. 3.200, 3.201, 3.216 (providing that a criminal defendant must give the State notice of his or her intent to rely on certain defenses, including alibi, battered-spouse syndrome, and insanity, respectively).

In this case, the trial court erred in barring Mr. Ayala from raising the defense of entrapment. Based on the cases cited above, Mr. Ayala was under no obligation to give the State notice of his intent to rely specifically upon entrapment as a defense. Mr. Ayala’s plea of not guilty was sufficient to notify the State of the possibility that he could raise the defense of entrapment. And any concern regarding the seeming lack of notice could have been addressed by simply allowing the State an opportunity to rebut Mr. Ayala’s entrapment defense. See Weaver, 370 So.2d at 1191 (explaining that where the defense of entrapment is not raised until the charge conference, “the State may introduce rebuttal evidence of a defendant’s predisposition to commit the crime”). Accordingly, we conclude that Mr. Ayala was entitled to raise the entrapment defense at trial.

We further conclude that the trial court’s error was harmful because it deprived Mr. Ayala of his primary theory of defense. Regardless of the defense’s likelihood of success, Mr. Ayala was entitled to raise entrapment as a defense and to introduce evidence in support of it. See Ivory, 173 So.2d at 760; see also Mateo v. State, 932 So.2d 376, 379 (Fla. 2d DCA 2006) (explaining that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission” and that, therefore, “as a general proposition, any evidence that tends to support the defendant’s theory of defense is admissible”); Morgan v. State, 112 So.3d 122, 125 (Fla. 5th DCA 2013) (“[I]t is neither our role nor that of the trial court to weigh the sufficiency of that evidence or rule upon the likelihood of success of the entrapment defense.”). Accordingly, because the trial court wrongly found as a matter of law' that entrapment was not an available defense and that Mr. Ayala was precluded from introducing evidence regarding entrapment to the jury, Mr. Ayala’s right to present his theory of defense was prejudiced. See, e.g., LeBron v. State, 127 So.3d 597, 604 (Fla. 4th DCA 2012) (holding that trial court’s error in refusing -to allow defendant to present evidence on his one main theory of defense — entrapment—was not harmless); Flynn v. State, 351 So.2d 377, 378 (Fla. 4th DCA 1977) (holding that a trial court’s .refusal to allow defendants’ testimony as to conversations they had with informant in order to prove entrapment was . reversible error because it “remove[d] the heart of their defense.” and the conversations were for the purpose of proving defendants’ state of mind).

And though the State contends that any error Was ultimately harmless because Mr. Ayala failed to introduce or proffer evidence to sufficiently demonstrate entrapment, this argument misses the mark. The trial court repeatedly rejected and “cut short” Mr. Ayala’s efforts to introduce evidence of entrapment. Indeed, when defense counsel attempted to argue that he needed to be able to elicit testimony from Mr. Ayala regarding his lack ,of predisposition to commit the crimes charged, the trial court shut down any further arguments. It was therefore unnecessary for Mr. Ayala to make such a proffer. See Reaves v. State, 531 So.2d 401, 403, (Fla. 5th DCA 1988) (“[A] proffer is unnecessary where the offer would be a useless ceremony, where the evidence is rejected as a class, or where the court indicates the proffer would, be unavailing.” (citing Seeba v. Bowden, 86 So.2d 432, 434 (Fla. 1956), Wright v. Schulte, 441 So.2d 660, 663 (Fla. 2d DCA 1983)); see also Hammett v. State, 908 So.2d 595, 597 (Fla. 2d DCA 2005) (citing Reaves with approval).

For the reasons.set forth.above, we reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and SLEET, JJ., Concur.

      . We note that the State did not argue in its answer brief that Mr. Ayala was required to give notice of his intent to raise the defense of entrapment.

      . To establish entrapment, the defendant' must show (1) "that a government agent induced him to commit the charged.offense” and (2) that he lacked "predisposition to commit the crimes.” Rivera v. State, 180 So.3d 1195, 1197 (Fla. 2d DCA 2015); see also § 777.201, Fla. Stat. (2014) (codifying the defense of subjective entrapment).

      . We express no opinion on- whether the evidence was sufficient to warrant a jury instruc-. tion on entrapment, But we note that "[t]he threshold for the giving of an instruction on a legally permissible theory of defense is low.” Morgan, 112 So.3d at 124 (explaining that to warrant a jury instruction on entrapment, the evidence merely has to "suggest[j the possibility of entrapment” and that "[ojnce this threshold is piet, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction” (citing Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988))). We also note that the State makes various other arguments as to why the trial court’s error was harmless, but we find these arguments to be unpersuasive.


text:
    BLOOMINGDALE TRAILS HOMEOWNERS’ ASSOCIATION, INC., Appellant, v. Jeff W. WESTBROOK and The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders CWABS, Inc., Asset-Back Notes, Series 2006-SD1. Appellees.
    Case No. 2D16-4098
    District Court of Appeal of Florida, Second District.
    December 22, 2017

      Leslie M. Conklin, Clearwater, for Appellant.
    Dariel Abrahamy' and Victor Kline of Greenspoon Marder, P.A., Bo'ca Raton, for Appellee The Bank of New York Mellon fka The Bank of New York, As Trustee For the Certificateholders CWABS, Inc., Asset-Back Notes, Series 2006 SD1.
    No Appearance for Appellee Jeff W. Westbrook.
   PER CURIAM.

Finding- no merit in the substantive argument raised in this appeal, we affirm the judgment below. However, we remand for the circuit court to enter an amended final judgment of foreclosure that clarifies that the Bloomingdale Trails Homeowners’ Association’s lien on the subject property is not affected by the entry of the judgment. Cf. Fortune v. Hutchinson, 20 So.3d 476, 477 (Fla. 2d DCA 2009) (affirming and remanding for clarification where circuit court’s declaratory judgment failed to indicate a litigant’s type of “ownership interest” in certain property).

Affirmed; remanded with instructions.

KELLY, LUCAS, and SALARIO, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Corey Anthony JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3816
    District Court of Appeal of Florida, Second District.
    December 22, 2017

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Corey Anthony Johnson appeals his convictions for driving while license suspended, fleeing or attempting to elude a police officer, depriving an officer of means of protection or communication, resisting an officer with violence, felony battery, criminal mischief, and resisting an officer without violence. He argues on appeal, and the State correctly concedes, that his convictions and sentences for both resisting an officer with violence and resisting an officer without violence violate double jeopardy principles.

Mr. Johnson’s vehicle was stopped by police when he failed to stop at a stop sign. During the traffic stop, Mr. Johnson was accused of resisting the officer with violence for repeatedly punching the officer, and he was also accused of resisting the same officer without violence by thereafter fleeing and ignoring the officer’s commands to stop. “[C]ourts have uniformly held that separate convictions for resisting arrest with violence and resisting arrest without violence are prohibited when the acts of resisting occurred as part of a single criminal episode.” Williams v. State, 959 So.2d 790, 792 (Fla. 2d DCA 2007); see also Ruiz-Alegria v. State, 14 So.3d 1276, 1277 (Fla. 2d DCA 2009). In determining whether the charges relating to the acts of resisting are part of one criminal episode, “a defendant’s continuous resistance to a single ongoing attempt to effectuate his arrest constitutes a single episode of resisting.” Williams, 959 So.2d at 793. Furthermore, when a defendant flees from officers and is therefore arrested at a different location from where he was originally detained, it does not transform the single continuous resistance into separate criminal episodes. Id. In the present case, Mr. Johnson’s attempt to flee directly followed his striking the officer, and consequently, the two charges were part of one criminal episode. Therefore, the convictions for both offenses violate the constitutional protection against double jeopardy.

Accordingly, we reverse Mr. Johnson’s conviction for resisting arrest without violence and remand for resentencing. Mr. Johnson’s remaining convictions are affirmed.

Affirmed in part; reversed in part; and remanded.

KELLY and BADALAMENTI, JJ„ Concur.


text:
    Oree Deandre WEST, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2351
    District Court of Appeal of Florida, Second District.
    December 22, 2017
    Debra B. Tuomey of Debra B. Tuomey, Attorney at Law, LLC, Spring Hill, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm without comment the order revoking Oree West’s community control in case numbers 2012-CF-8004 and 2012-CF-8722 and the resulting sentences imposed in those cases. However, because the circuit court failed to continue Mr. West’s youthful offender status originally assigned to him in those eases, we remand for the trial court to correct Mr. West’s written sentences to reflect his continuing youthful offender status. See Ware v. State, 197 So.3d 1147, 1150 (Fla. 2d DCA 2016) (“[F]ollowing a revocation, ‘the sentencing court must maintain the defendant’s youthful offender status upon resen-tencing for a violation of probation even when the violation was substantive.’ ” (quoting Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012))); see also Jaques v. State, 224 So.3d 929, 930 (Fla. 2d DCA 2017). Mr. West need not be present.

Additionally, following revocation, the circuit court entered new judgments in 2012-CF-8004 and 2012-CF-8722. “Dupli-cative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings.” Butler v. State, 195 So.3d 1147, 1148 (Fla. 2d DCA 2016); see also Pierce v. State, 150 So.3d 1207 (Fla. 2d DCA 2014). Thus, we reverse the unauthorized judgments.

Affirmed in part, reversed in part, and remanded with directions.

KELLY, SLEET, and LUCAS, JJ., Concur.


author: BLACK, Judge.

text:
    Mychal T. KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2723
    District Court of Appeal of Florida, Second District.
    December 22, 2017
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius Christopher Demps, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Mychal King challenges his judgment and sentence for first-degree murder. We affirm his judgment and sentence without comment but dismiss the portion of the appeal challenging the trial court’s denial of the motion to disqualify, rendered after the notice of appeal was filed, because we lack jurisdiction to consider this issue. See Davis v. State, 174 So.3d 646, 647 (Fla. 1st DCA 2015).

Affirmed in part; dismissed in part.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.


text:
    Anthony Ray RHAGNANAN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-4043
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 27, 2017
    Robert Wesley, Public Defender, and James Stevenson Fisher, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Anthony Ray Rhagnanan was arrested for attempted second-degree murder, possession of cannabis with intent to sell or deliver, and attempted possession of cannabis over.twenty grams. At first appearance, the presiding judge granted reasonable bond on the latter two charges but denied bond for the attempted second-degree murder. Rhagnanan petitions for a writ of habeas corpus, arguing that his present pretrial detention without bond is illegal. The State concedes error; We grant the writ and remand for an expedited hearing.

Unless a person is charged with a capital offense or an offense punishable by life imprisonment and the. proof of guilt is evident or the presumption is great, the person is entitled to pretrial release on reasonable conditions. See Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 3.131; Thermidor v. State, 146 So.3d 95, 96 (Fla. 5th DCA 2014). Attempted • second-degree murder is not a capital offense or an offense punishable by life imprisonment. It is a second-degree felony, thus entitling Rhagnanan to'a pretrial release on reasonable conditions, absent the court granting a proper motion from the State' seeking pretrial detention. Florida Rule of Criminal Procedure 3.132(a) provides that the State may file with the judicial officer at first appearance a motion seeking pretrial detention, “setting forth with particularity the grounds and the essential facts on which pretrial detention is sought and certifying that the state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion.” No such written motion was filed, and the State’s oral motion made at first appearance is nót sufficient under this rule. This rule further provides that if no motion is filed, the judicial officer may inquire whether the State intends to file a motion for ‘pretrial detention, and if so, grant the State no more than three days to file the motion. “Upon’a showing by the State of probable cause that the defendant committed the offense and exigent circumstances, the defendant shall be detained in custody pending the filing of the motion.” Id, Here, the first appearance judge never made this inquiry nor was there a showing or finding of exigent circumstances prior to the judge denying bond at the very brief first appearance hearing.

Accordingly, because the procedures for pretrial detention were not followed, we grant thé petition for writ of habeas corpus and remand to the trial court to set an expedited hearing to determine the issue of pretrial release or detention consistent with rules 3.131 and 3.132.

PETITION . GRANTED; CAUSE REMANDED.

EVANDER, BERGER, arid LAMBERT, JJ., copcur.

      . See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2017). However, under certain circumstances where a defendant is charged with attempted second-degree murder with a firearm and is alleged to have discharged the firearm, resulting in great bodily harm to the victim, the defendant may face up to life imprisonment. § 775.087(2)(a)3, Our present record is not sufficiently developed to determine whether Rhagnanan is facing life imprisonment on the present charge.


text:
    Terry GAYNOR, Appellant, v. Meco GAYNOR inod & obo Octavius B. Thornton, Appellee.
    CASE NO. 1D17-1426
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
    Terry Gaynor, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant challenges .an order summarily denying his motion, to dissolve a domestic violence injunction. In his motion, he alleged that the injunction had served its purpose and was no longer necessary because he had not had any contact with the other party for the past 8 years, and he did not have any reason to be in contact with her in the future. He further alleged he had a change in circumstances because he was currently imprisoned, and the'injunction prevented him from participating in re-entry and work release programs. His motion was legally sufficient, and thüs the court’s summary denial without affording appellant a meaningful opportunity to be ‘ heard violated due process requirements. See Kugler v. Joosten, 58 So.3d 323 (Fla. 1st DCA 2011); Colarusso v. Lupetin, 28 So.3d 238, 239 (Fla. 4th DOA 2010). Thus, we REVERSE and REMAND for further proceedings.

B.L. THOMAS, C.J., and WOLF and RAY, JJ., CONCUR.


text:
    Evan SHORT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2996
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017
    Evan Short, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. . ,
   PER CURIAM.

Appellant, Evan Short, appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Short alleged that his trial counsel was ineffective because 1) counsel failed to request a Richardson hearing and 2) counsel failed to properly advise Short of the possibility and consequences of being sentenced as a habitual felony offender. We affirm as to the first claim without further discussion. Regarding the second claim, the trial court held that the allegations were facially insufficient because Short failed to allege each element provided in Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013). Although the trial court was correct in concluding that the claim was facially insufficient, Short should have been provided sixty days to amend his motion to state a facially sufficient claim, if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(3); see, e.g., Campbell v. State, 139 So.3d 490, 495 (Fla. 2d DCA 2014). We therefore reverse the summary denial of the second claim and remand for further proceedings.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, PALMER, and EVANDER, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


text:
    William CASIANO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2343
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017
    Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We reverse and remand the order denying Appellant’s Florida Rule of Criminal Procedure 3.850 motion because Appellant’s claim of misadvice by trial counsel and the resulting prejudice is not refuted by the record before us.

Appellant was charged with sexual battery with a' deadly weapon or physical force. The maximum penalty for this crime was life in prison with a twenty-five-year minimum mandatory, with the latter being imposed if the defendant used a deadly weapon. §§ 794.011(3), 775.082(3)(a)3., 794.0115(2)(b), Fla. Stat. (2013). Appellant alleges that he was offered and rejected a favorable plea offer not knowing that he faced a minimum mandatory of twenty-five years in prison. Had he known about the minimum mandatory, Appellant alleges that he would have accepted the plea offer and that the trial court would have abided by the plea agreement.

To obtain relief on a claim that defense counsel misadvised the defendant in a way that caused the defendant to reject a plea offer, the defendant must establish that:

(1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013). Here, Appellant’s allegations were facially sufficient. Defense counsel has a duty to advise a defendant about the possibility of the minimum mandatory sentence. The fact that Appellant did not receive the minimum mandatory sentence in this case because of an error in the verdict form does not negate his claim that he would have taken the plea if he had known he faced a minimum mandatory sentence.

On remand, the trial court shall either grant Appellant a hearing to see if he can prove the Alcorn factors or attach portions of the record that conclusively refute the allegations in the motion.

REVERSED AND REMANDED.

PALMER, TORPY and EISNAUGLE, JJ., concur.


text:
    Juan Francisco PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3741
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017
    Todd Thurow, of Thurow Law, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Juan F. Perez appeals his convictions for aggravated battery with a firearm and aggravated assault with a firearm. We affirm without prejudice to. Perez filing a timely, facially sufficient motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We express no opinion on the merits of any postconvictiori motion filed.

AFFIRMED.

ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.


author: PER CURIAM,

text:
    Dennis T. HUTTO, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0908
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Miami, for Appellee.
   PER CURIAM,

Appellant, Dennis Hutto, challenges his judgment- and sentence, He argues the trial court fundamentally erred in entering, a sentencing order without conducting a sentencing hearing, and without orally pronouncing the sentence in court. We agree and remand for a new sentencing hearing.

Appellant pleaded guilty to the charge of driving with a permanently revoked license. He faced a maximum sentence of five years imprisonment due to numerous prior convictions. On July 15, 2015, at a scheduled sentencing hearing, the State and Appellant acknowledged a dispute as to the appropriate calculation of Appellant’s scoresheet. As a result, the trial court postponed the sentencing hearing to September 17, 2015, at which time the State and Appellant disagreed, as to whether two DUIs should have been included on his proposed scoresheet. Appellant’s counsel requested additional time to research a 2006 hearing transcript regarding one of the DUIs at issue. The trial court granted the request and postponed the matter to October 8, 2015, and then again to October 22, 2015. .However, on October 20, 2015, without Appellant present .and two days before the. scheduled reconvening of the sentencing hearing, the trial court entered an order, declaring the State’s scoresheet to be proper, and sentencing Appellant to five years in prison.

Appellant appeared before the trial court on another matter on October 22, the date set for the reconvening of the sentencing hearing. He expressed to the trial court his concern regarding the trial court’s entry of the order deeming as correct the State’s proposed scoresheet. The trial court responded that it had already ruled on the matter, and Appellant could “take the appropriate action” if he disagreed. The sentence imposed in the subject order was not orally discussed or pronounced during this exchange.

A new sentencing hearing should be granted if a defendant has not been given an opportunity to be heard. Dean v. State, 60 So.3d 532, 533 (Fla. 1st DCA 2011) (citing Ventura v. State, 741 So.2d 1187, 1189 (Fla. 3d DCA 1999)). Here, the trial court granted two extensions of the sentencing hearing to allow the parties to research an issue relating to the score-sheet determination. However, prior to the date the hearing was to be reconvened, and without explanation, the trial court entered a sentencing order. Thus, in violation of Florida Rule of Criminal Procedure 3.720(b), Appellant was deprived of'the opportunity to be heard at the sentencing hearing regarding a final scoresheet determination. .

“Every sentence ... of the case shall be pronounced in open court.” Fla. R. Crim. P. 3.700(b). A written sentence is merely a record that must conform to the orally pronounced sentence. Justice v. State, 674 So.2d 123, 125 (Fla. 1996). Thus, by entering the sentencing order before concluding the sentencing hearing process, the trial court failed to orally pronounce the sentence and to provide Appellant the opportunity ■ to be heard on the .matter.

Accordingly, we REVERSE and REMAND to the trial court for a’ new sentencing hearing.

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


text:
    E.C., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3861
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017
    Robert Wesley, Public Defender, and Tyler Stiglich, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

E.C. petitions this Court for a writ of mandamus compelling the trial court to toll speedy trial, stay all proceedings, and appoint two experts to evaluate his competency pursuant to Florida Rule of Juvenile Procedure 8.095 and section 985.19(1), Florida Statutes (2016). We sua sponte treat this matter as a petition for certiora-ri, find the trial court’s order departs from the essential requirements of law, and grant the petition.

E.C.’s counsel filed five separate motions to determine competency. The trial court denied all five motions as “legally insufficient.” While several of the motions were legally insufficient, the final motion satisfied the requirements of rule 8.095(a)(1) and section 985.19, and should have been granted. Hence, we quash the order denying the fifth motion to determine competency. On remand, the trial court shall stay the proceedings and order an examination in compliance with rule 8.095 and section 985.19.

PETITION GRANTED; ORDER QUASHED.

PALMER, ORFINGER and EVANDER, JJ., concur.


author: PER CURIAM. LAMBERT, J.,

text:
    William KUCKUCK, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Case No. 5D16-3828
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017

      Adam Pollack, of Law Office of Adam L. Pollack, P.A., Orlando, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.
   PER CURIAM.

Following a jury trial, William Kuckuck was convicted of violating section 847.0135(3)(b), Florida Statutes (2016), by knowingly using a computer on-line service, internet service, or other similar device to solicit a person believed to be a parent of a .minor child to obtain their consent to engage in unlawful sexual conduct with the child (“solicitation”) and of violating section 847.0135(4)(b), Florida Statutes (2016), for traveling to meet the minor child to engage in unlawful sexual conduct after solicitation (“traveling”).

Upon Kuckuck’s post-trial motion, the trial court vacated the conviction and sentence for solicitation on double jeopardy principles. Kuckuck now appeals the traveling conviction, arguing that the trial court deprived him of his “fundamental right to a fair trial” by requiring him to go to trial on a “defective information” that exposed him to double jeopardy. The State cross-appeals, contending that because the dual convictions were not based on the same conduct, the trial court erred in vacating the conviction and sentence for solicitation based on a double jeopardy violation. Because we agree with the State, we reverse the order vacating the solicitation conviction and sentence, and we remand with directions to reinstate the conviction, judgment, and sentence.

On July 14, 2016, FBI agent Kevin Kaufman, posing as the father of eleven-year-old and nine-year-old daughters, posted an ad on Craigslist seeking “taboo” experiences for his “daughters.” Shortly thereafter, Kuckuck responded by email and the two engaged in explicit .communications that day regarding sexual conduct that Kuckuck sought to engage in with the “daughters.” On July 15, 2016, Kuckuck initiated contact with the “father,” and again communicated in a sexually explicit manner, seeking consent from the “father” to engage in sexual activity with his “daughters.” During the July 15 contacts, Kuckuck and the “father” reached an agreement for Kuckuck to travel later that day to have sex with the “daughters.” Upon' arriving at the designated meeting location, Kuckuck was arrested.

The State filed a two-count information. In count one, Kuckuck was charged with solicitation for his actions of July 14, 2016, while in count two, Kuckuck was specifically charged with traveling after solicitation on July-15, 2016. The case proceeded to trial and at the close of the State’s case-in-chief, Kuckuck moved for a judgment of acquittal, arguing that double jeopardy principles prohibited a conviction on the solicitation count because the conviction would be based upon the same conduct as the traveling charge and therefore was subsumed in the traveling count. See State v. Shelley, 176 So.3d 914, 919 (Fla. 2015) (holding that because the statutory elements of solicitation are entirely subsumed by the statutory elements of traveling after solicitation, double jeopardy principles prohibit separate convictions when based upon the same conduct). The trial court denied the motion, finding that separate acts of solicitation occurred on July 14 and July 15. After the jury found Kuckuck to be guilty on both counts, Kuckuck timely filed a renewed motion for judgment of acquittal on the same grounds that his motion argued during trial. The trial court reversed its in-trial ruling and granted the motion.

Kuckuck does not dispute the facts of his solicitation and traveling. We apply a de novo standard of review to a double jeopardy claim based on undisputed facts. Griffith v. State, 208 So.3d 1208, 1212 (Fla. 5th DCA 2017) (citing Shelley, 176 So.3d at 918 n.4).

Here, the State carefully charged Kuckuck with committing solicitation on July 14 and with separately committing traveling after solicitation on July 15. The trial evidence presented by the State was consistent with the allegations. Moreover, unlike in Hughes v. State, 201 So.3d 1230 (Fla. 5th DCA 2016), where we found a double jeopardy violation based upon "same conduct” when the solicitation that occurred on the first day included a plan for Hughes to travel the following day, with no additional solicitation by Hughes, here, there was no agreement reached during Kuckuck’s solicitation on the first day, July 14, for Kuckuck to meet with the “daughters” for sexual conduct. There was, however, a separate, distinct solicitation by Kuckuck on July 15, resulting in an agreement reached for Kuckuck to travel on July 15 to engage in sexual conduct with the “daughters.” Thus, Kuckuck’s solicitation on July 15 with the travel shortly thereafter was distinct from his criminal act of solicitation on July 14.

The instant case is more analogous to Griffith, which was not available to the lower- court at the time of trial. In Griffith, the defendant solicited on February-3, and made plans to meet with the “minor” on February 7 to engage in sexual conduct. 208 So.3d at 1210. Mr. Griffith then committed a separate act of solicitation on February 4, made a new plan to now meet the “minor” that same day for sex, and then traveled on February 4 to accomplish his goal. Id, We reasoned that these facts distinguished the case from Hughes, concluding that there was no double jeopardy violation because Griffith’s solicitation on February 3 and his solicitation and travel on February 4 were distinct acts and therefore did not constitute the “same conduct” under Shelley. Id. at 1212. Here, there is even less evidence of a double jeopardy •violation than in Griffith because there was no agreement reached on July 14 for Kuckuck to travel to engage in the unlawful sexual conduct.

Accordingly, we conclude that Kuckuck’s conviction for solicitation did not violate double jeopardy because it was not based upon the same conduct as the traveling conviction. We therefore reverse the trial court’s order vacating the judgment and sentence for solicitation and remand with instructions to reinstate the conviction, judgment, and’sentence.

REVERSED and REMANDED, on Cross-Appeal with directions; ■ main appeal AFFIRMED as moot.

COHEN, C.J., and EISNAUGLE, J., concur.

LAMBERT, J,, concurs and concurs specially, with opinion.

LAMBERT, J.,

concurring and concurring specially.

While I concur with the majority opinion, I am sympathetic to the trial judge and counsel in their effort to reconcile and apply the facts of this case to the various appellate cases addressing these types of double jeopardy claims. As Judge Makar from the First District has aptly observed: “Double jeopardy jurisprudence is among the most confusing and complex, generating challenging conundrams and resulting often in widely divergent court decisions analyzing similar issues; this phenomenon continues post-Shelley, as- Florida courts navigate new and confounding questions.” Lee v. State, 223 So.3d 342, 376 (Fla. 1st DCA 2017) (Makar, J., concurring in part, dissenting in part) (footnote omitted).

As indicated in the majority opinion, the solicitation (count one) and the traveling after solicitation (count two) were separately pleaded and proved as occurring on different days. I would suggest that in future cases to facilitate the- resolution of potential double jeopardy claims, trial judges consider utilizing verdict forms that separately set forth in the verdict the date of the solicitation that the State is attempting to prove for each count. Trial judges should also consider instructing the jury that it has to find at least two separate and distinct solicitation violations to hold the defendant accountable on both the traveling count and the solicitation count. See id. (Makar, J., concurring in part, dissenting in part). By doing so, this should resolve any questions the judge and the parties have about whether solicitation and traveling convictions were from the same conduct.

      . Kuckuck’s primary defense at trial was that he had been entrapped by law enforcement.


author: PER CURIAM. VTLLANTI, Judge,

text:
    Jordan TROWELL, Appellant, v. Greg CRAWFORD, Appellee.
    Case No. 2D16-4880
    District Court of Appeal of Florida, Second District.
    Opinion filed December 29, 2017
    Jeremiah Hawkes, Counsel to Sheriff Chris Nocco, New Port Richey, for Appellant.
    Greg Crawford, pro se.
   PER CURIAM.

We dismiss as moot this appeal from an order granting a temporary injunction against repeat violence. It is apparent that the trial court erred in entering the temporary injunction where the petition failed to allege two incidents of violence, with one occurring within six months of the filing of the petition. See § 784.046(l)(b), Fla. Stat. (2016); Titsch v. Buzin, 59 So.3d 265, 266 (Fla. 2d DCA 2011). However, the court’s ultimate dismissal of the petition renders further discussion of the applicable law with regard to injunctions against repeat violence moot. We are unconvinced that the issues raised by the appellant are capable of repetition but evade review such that we must address them in this instance. Cf. Kopelovich v. Kopelovich, 793 So.2d 31, 32 (Fla. 2d DCA 2001). Had the court entered a final judgment on injunction for protection against repeat violence or had the temporary injunction been lawfully entered, we would have likely concluded it necessary to reach the merits of appellant’s claims. See id.; Jacquot v. Jacquot, 183 So.3d 1158, 1159 (Fla. 5th DCA 2015).

Dismissed.

BLACK and SALARIO, JJ., Concur.

VILLANTI, J., Dissents with opinion.

VTLLANTI, Judge,

Dissenting.

I fully concur with the majority’s statement that the trial court erred in entering the temporary injunction against Deputy Jordan Trowell because inmate Greg Crawford’s petition failed to allege two incidents of violence, with one occurring within six months of the filing of the petition. See § 784.046(l)(b), Fla. Stat. (2016); see also Jones v. Jackson, 67 So.3d 1203, 1205 (Fla. 2d DCA 2011) (Altenbernd, J., concurring) (noting that an injunction against repeat violence “cannot be used simply to compel civility and common decency”). However, because I disagree that the issue is moot, I would not dismiss this appeal but instead would reverse the entry of the temporary injunction on the merits.

Crawford is an eight-time convicted felon and was an inmate in the Pasco County jail. He filed a petition for injunction against repeat violence naming Trowell, a detention deputy, as the respondent and contending that a certain pat-down search of Crawford undertaken by Deputy Tro-well in the course of his job was excessively rough. Crawford also alleged that Deputy Trowell had taunted Crawford on several occasions and had threatened to tell other inmates the nature of his charges. By granting the temporary injunction, the trial court prevented further interaction between Crawford and Deputy Trowell, but it did so at the expense of telling the sheriff how to run his jail and deploy his resources.

At this point, everyone — including the trial court and the majority — agree that the allegations in Crawford’s petition were legally insufficient, and the temporary injunction has now been dismissed. However, in my view, the improper granting of this temporary injunction, even if only for a short time, will embolden other jail inmates to file such pleadings — meritorious or not — in an effort to control the terms of their confinement. Hence, I believe this tail-wagging-the-dog potential renders the issue not moot because it is capable of repetition and yet will likely evade review each time the temporary injunctions are dissolved. Therefore, I would not dismiss this appeal'as moot but instead would address it on the merits.

Moreover, I have grave concerns that the use of temporary injunctions in this manner violates the separation of powers doctrine by permitting the trial court to dictate how the sheriff may operate the jail vis-a-vis personnel assignments. Further, I note that Crawford had other available remedies that do not implicate this separation of powers issue. The record shows that Crawford utilized available administrative remedies by filing two internal grievances with jail administration. He could also potentially have filed a civil rights action under 42 U.S.C. § 1983. In my view, these available remedies should have been adequate to address his allegations, and his decision to resort to the use of the civil injunction resulted in him misusing this statutory provision and wasting judicial resources.


text:
    Roshad S. FOSTER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4931
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
    Roshad S. Foster, 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.

WOLF, ROWE, and WINSOR, JJ., CONCUR.


text:
    Dennis CHRISTENSEN, Petitioner, v. Judy VINZ, Respondent.
    CASE NO. 1D17-4163
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017.
    Dennis Christensen, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

WOLF, ROWE, and WINSOR, JJ., CONCUR.


text:
    Jonathan Jamaal WEST, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3725
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
    Jonathan Jamaal West, pro se, Petition-

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

The petition for belated appeal is denied on the merits.

ROBERTS, BILBREY, and KELSEY, JJ., CONCUR.


text:
    Chasity PRESCOTT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0954
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
    Chasity Prescott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking belated appeal is denied on the merits.

WOLF, ROWE, and WINSOR, JJ., CONCUR.


author: Per Curiam.

text:
    Teraince R. KIRKSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4788
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Teraince R. Kirksey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied as premature.

Makar, Osterhaus, and Winokur, JJ., . concur.


text:
    Deazion APPLEBY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4808
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Deazion Appleby, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

Roberts, Bilbrey, and Kelsey, JJ., concur.


text:
    Harold LONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4430
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Harold Long, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comrn’n, 807 So.2d 733 (Fla. 1st DCA 2002).

Makar, Osterhaus, and Winokur, JJ., concur.


author: PER CURIAM

text:
    Gina M. LINDEN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    Case No. 5D17-1051
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 5, 2018
    Gina M. Linden, Windermere, pro se.
    Amanda L. Neff, Deputy General Counsel and Chief Appellate Attorney, of Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM

Gina M. Linden appeals from an order of the Reemployment Assistance Appeals Commission (“RAAC”) dismissing her appeal of an administrative decision denying unemployment compensation benefits as untimely. We affirm.

Ms. Linden contends that she had good cause for failing to timely file her appeal with the RAAC. Unfortunately, section 443.151(4)(b)l., Florida Statutes (2016), which governs appeals from RAAC determinations, does not provide a “good cause” exception that would permit the RAAC to accept an untimely appeal. See Thurman v. Fla. Unemployment Appeals Comm’n, 881 So.2d 89, 91 (Fla. 1st DCA 2004). The courts have carved out a limited exception in cases where the claimant alleges the untimeliness of unemployment appeals was “occasioned by the actions of the Commission.” Assam v. Fla. Unemployment Appeals Comm’n, 871 So.2d 978, 980 (Fla. 3d DCA 2004). However, that has not been demonstrated here. Therefore, although sympathetic to her plight, we must affirm the RAAC decision.

AFFIRMED.

ORFINGER, EVANDER and WALLIS, JJ., concur.


text:
    Nicole ESCOBAR, Appellant, v. Yan Fabian ESCOBAR, Appellee.
    Case No. 5D17-314
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 5, 2018
    Julie F. Weinberger, Kissimmee, for Appellant.
    Heather M. Kolinsky, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellee.
   PER CURIAM.

AFFIRMED. See Clark v. Clark, 147 So.3d 655, 657 (Fla. 5th DCA 2014) (holding issue is properly before court when it is raised in pleadings or when it is raised and considered by court without objection).

ORFINGER, EVANDER and WALLIS, JJ., concur.


text:
    Michelle KHETARPAL, n/k/a Michelle Booth, Appellant, v. Sunil KHETARPAL, Rex & Rex Limited, Inc., a Florida corporation, and Khetarpal Holdings, LLC, Appellees.
    No. 4D16-2757
    District Court of Appeal of Florida, Fourth District.
    January 10, 2018

      Jeanne C. Brady and Frank R. Brady of Brady & Brady, P.A., Boca Raton, for appellant.
    John T. Christiansen Jr. of Law Offices of John T. Christiansen, P.L., West Palm Beach, for appellees.
   Per Curiam.

The wife appeals a final judgment of dissolution of marriage, challenging the trial court’s determination of marital assets, denial of permanent alimony, interpretation of the prenuptial agreement, and valuation date for marital assets. We find the issues raised to be without merit and affirm without discussion. However, we reverse and remand for the limited purpose of resolving a conflict in the judgment, which found the wife needed $5,200 per month in bridge-the-gap alimony but awarded $3,964.42 per month in bridge-the-gap alimony.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., Levine, J. and Singhal, Raag, Associate Judge, , concur.


author: PER CURIAM:

text:
    STATE EX REL. Larry MITCHELL v. STATE of Louisiana
    No. 2016-KH-1877
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated at least four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings- mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral preview. The district court is ordered to record a minute entry consistent with this per curiam.

^Attachment


text:
    STATE EX REL. Edward COUSIN, Jr. v. STATE of Louisiana
    No. 2016-KH-1621
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

hNot considered; untimely filed. La. S.Ct.R. X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Arthur BIAS, Jr. v. STATE of Louisiana
    No. 2016-KH-1584
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA

PER CURIAM:

liDenied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C,Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated at least two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, ^unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Houston JACKSON
    No. 2016-KP-1600
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| iDenied. Relator shows no error in the district court’s ruling denying relief.

Relator has now fully litigated at least four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La. C.Cr.P. art. 930.8. Notably,' the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Abdullah MUHAMMAD v. STATE of Louisiana
    No. 2016-KH-1573
    Supreme Court of Louisiana.
    1/9/2018
   ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES

PER CURIAM:

h Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated multiple applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P, art. ,930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930,6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. John CUNNINGHAM v. STATE of Louisiana
    No. 2016-KH-1571
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, ! PARISH OF ORLEANS

PER CURIAM:

l iDenied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr,P. art. 930.4 and within the limitations period as set-out in La.C.Cr.P, art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing:the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Charles Wayne SNEED v. STATE of Louisiana
    No. 2016-KH-1727
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE

PER CURIAM:

I ,Denied. With the enactment of 2017 La. Acts, No. 280, § 3, including R.S. 15:574.4(H), relator’s eligibility for parole consideration is no longer dependent upon a commutation of his sentence to a fixed term of years, but will instead be governed by the criteria set forth in R.S. 15:574.4(H). As such, his claims are moot, and intervention is not warranted.


text:
    STATE EX REL. Felicia YOUNG v. STATE of Louisiana
    No. 2016-KH-1569
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON '

PER CURIAM

| iDenied. Relator’s sentencing claim is not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated her application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions' the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. Art. 930.4 and within the limitations period as set out in La.C.Cr.P. Art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. Art. 930.6, and.this denial is final. Hereafter, unless- she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Vince E. MOORE
    No. 2016-KP-1555
    Supreme Court of Louisiana.
    1/9/2018
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM

^Denied. See La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. George WADE v. STATE of Louisiana
    No. 2016-KH-1505
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11 Denied. To the extent relator seeks post-conviction relief, the application was not timely filed hi the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated at least four- applications for post-conviction relief in state court. Similar to federal habeas relief, see 28- U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P. art. 980.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Ernest JONES v. STATE of Louisiana
    No. 2016-KH-1496
    Supreme Court of Louisiana.
    01/09/2018
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11 Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As' such, it is subject to the' time limitation set forth in La.C.Cr.P. art. 93Ó.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.