author: WALLACE, Judge.

text:
    In re FORFEITURE OF 2006 PONTIAC SOLSTICE, Identification No. 1G2MB35B56Y115828, Tag J852AJ. Allen Lee Underwood, Appellant, v. State of Florida, on behalf of County of Pinellas, for the use and benefit of the Pinellas County Sheriff's Office, Appellee.
    No. 2D15-2981.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2016.
    Rehearing Denied Sept. 15, 2016.

      Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; Jerry Theophilopoulos of The Crow Law Group, Tarpon Springs, for Appellant.
    Shannon Kennedy Lockheart, General Counsel, Largo, for Appellee.
   WALLACE, Judge.

Allen Lee Underwood appeals a final order denying his amended motion for damages, costs, and attorney’s fees following the voluntary dismissal by the Pinellas County Sheriffs Office (the PCSO) of a forfeiture proceeding involving a 2006 Pontiac Solstice owned by Mr. Underwood. We affirm but write to explain our holding and to point out what appears to be an inequity in the statutory scheme applicable to forfeiture proceedings in effect at the time of the underlying proceedings. We also certify conflict with the Fifth District’s decision in Cox v. Department of Highway Safety & Motor Vehicles, 881 So.2d 641 (Fla. 5th DCA 2004).

I. THE FACTS

In connection with an investigation conducted by the PCSO, one of its detectives (the Detective) requested and obtained a search warrant to seize evidence related to the manufacture of marijuana at Mr. Underwood’s residence. On December 14, 2010, detectives employed by the PCSO executed the warrant and seized evidence, including numerous firearms, growing marijuana plants, harvested marijuana, drug paraphernalia, and equipment and supplies commonly used to cultivate and harvest marijuana indoors. In addition, a “concealment container,” holding a small amount of marijuana and rolling papers, was recovered from the front passenger seat of Mr. Underwood’s vehicle. Detectives arrested Mr. Underwood for possession of a controlled substance with intent to sell and possession of a structure for the purpose of manufacturing marijuana. See §§ 893.13(l)(a)(2), .1351(2), Fla. Stat. (2010).

On December 15, 2010, detectives seized Mr. Underwood’s 2006 Pontiac Solstice (the vehicle) under the Florida Contraband Forfeiture Act (the Act). The PCSO filed a complaint for forfeiture on January 26, 2011, alleging in part that the vehicle was “a contraband article as defined in [s]ection 937.701(2)(a), Florida Statutes [ (2010) ].” Mr. Underwood filed a request for an adversarial preliminary hearing at which the PCSO would be required to establish probable cause that the vehicle “was used in violation of the [Act].” § 932.701(2)(f).

At the adversarial evidentiary hearing held March 10,2011, the PCSO relied upon the testimony of the Detective to establish that it had probable cause to believe that the vehicle was a contraband article. A detailed account of the Detective’s testimony and Mr. Underwood’s response is unnecessary to our resolution of this case. At the conclusion of the hearing, the trial court found that under the totality of the circumstances the PCSO had established probable cause for forfeiture of the vehicle under the Act. However, the trial court observed that “when we get to trial, [the PCSO’s] burden is a whole lot different. ... [a]nd it’s not good, so maybe you can work something out.” The trial court issued a written order on March 21, 2011, finding probable cause and permitting the PCSO to retain possession of the vehicle pending further order of the court. Mr. Underwood answered the complaint for forfeiture and discovery ensued.

Ultimately, on November 29, 2012, the PCSO filed a notice/motion of voluntary dismissal. The PCSO and Mr. Underwood submitted an agreed order granting the PCSO’s requested relief, and the PCSO returned the vehicle to Mr. Underwood on December 4, 2012. When Mr. Underwood received the vehicle, he discovered that it had been substantially damaged while in the PCSO’s possession. On December 11, 2012, the trial court signed the agreed order dismissing the forfeiture action while reserving jurisdiction to determine costs, fees, or damages, if appropriate. No hearing or trial was held on the forfeiture claim, and neither the trial court nor a jury determined whether the vehicle should be forfeited.

Thereafter, on December 17, 2012, Mr. Underwood filed his “Amended Claimant’s Motion for an Award of Costs, Attorney’s Fees, & Damages” under sections 932.704(9)(b) and (10) in the pending forfeiture action. Mr. Underwood claimed that under section 932.704(9)(b) he was entitled to damages for the loss of use of and for the loss of value in the vehicle arising from the PCSO’s seizure of the vehicle because he had prevailed in the forfeiture proceeding. He also claimed that he was entitled to his attorney’s fees and costs under section 932.704(10) because the PCSO’s conduct that precipitated the forfeiture action constituted a gross abuse of discretion. Mr. Underwood further contended that the PCSO’s continuation of the action, knowing that it could not meet its burden of proof, was in bad faith. The trial court held an evidentiary healing on Mr. Underwood’s motion on April 23, 2015, and May 22, 2015.

At the conclusion of the hearing, the trial court denied Mr. Underwood’s claim for damages under section 932,704(9)(b) because, based on the PCSO’s voluntary dismissal of the action, Mr. Underwood did not prevail in the forfeiture action at a trial or on appeal as required under the statute. In denying Mr. Underwood’s motion for attorney’s fees and costs under section 932.704(10), the trial court observed that it had found at the preliminary adversarial hearing held on March 10, 2011, that the PCSO had probable cause to seek forfeiture of the vehicle. Then, after conducting discovery, the PCSO had dismissed the forfeiture action and had returned the vehicle to Mr. Underwood. For these reasons, the trial court concluded that the PCSO had proceeded in good faith and ruled that Mr. Underwood was not entitled to his attorney’s fees and costs under section 932.704(10). On June 1, 2015, the trial court entered its written order denying Mr. Underwood’s motion. This appeal followed.

II. DISCUSSION

A. The Standard of Review

We review the trial court’s interpretation of section 932.704(9)(b) de novo. See In re Forfeiture of: $221,898 in U.S. Currency, 106 So.3d 47, 49 (Fla. 2d DCA 2013). We must determine whether the trial court’s factual findings under section 932.704(10) that the PCSO did not abuse its discretion in bringing the action and that it had proceeded in good faith are supported by competent, substantial evidence. See Gay v. Beary, 758 So.2d 1242, 1244 (Fla. 5th DCA 2000).

B. The Claim for Damages under Section 932,704(9)(b)

Mr. Underwood argues that an award of damages for the PCSO’s seizure and improper storage of his vehicle was mandatory under section 932.704(9)(b). He asserts that the PCSO’s position that he was not entitled to damages because he had not prevailed “at trial or on appeal” as a result of the case having been voluntarily dismissed before trial is contrary to the Fifth District’s holding in Cox, 881 So.2d 641.

Section 932.704(9)(b) provides—in pertinent part—that a “trial court shall require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process.” (Emphasis added.) Thus the plain language of section 932,704(9)(b) requires that there must be a trial or an appeal and that the claimant prevail at the trial or on appeal before the claimant is entitled to damages under section 932.704(9)(b). Because no trial or appeal occurred in this case, we agree with the trial court’s ruling that Mr. Underwood was not entitled to damages under section 932.704(9)(b).

To the extent that the Fifth District's decision in Cox suggests that the statute should be interpreted differently, we disagree with that decision. The pertinent language in Cox is quoted from the Fifth District’s earlier decision in Gay, which interpreted section 932.704(10), not section 932.704(9). In Gay, the claimant appealed the trial court’s order denying her motion for attorney’s fees under section 932.704(10) after the sheriff elected not to proceed to trial and voluntarily dismissed his forfeiture proceeding against her. 758 So.2d at 1243-44. Before affirming the trial court’s decision, the Fifth District addressed the sheriffs argument that fees should not be awarded under section 932.704(10) “because the forfeiture proceeding never reached the trial stage and thus no ‘trial’ attorney’s fees [were] award-able.” 758 So.2d at 1244. The Fifth District pointed out that section 932.704(10) provided:

When the claimant prevails, at the close of the forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage in the proceedings in good faith or that the agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion.

Id. (emphasis added) (quoting section 932.704(10), Fla. Stat. (1997)). In rejecting the sheriffs argument that a trial was required before fees could be awarded under section 932.704(10), the Fifth District reasoned as follows:

[T]he obvious intent of the Legislature ... was to make claimants of wrongfully seized property whole, by requiring the seizing agency which brought a baseless forfeiture proceeding to compensate the owner of the property for reasonably expended attorney’s fees and costs necessary to regain the property seized. Many cases end before the trial, but preparation for trial is necessary and it requires time and effort be expended by counsel. It would be contrary to the remedial intent of the statute to give it the limited reading suggested by the Sheriff.

758 So.2d at 1244 (emphasis added).

The Fifth District similarly rejected the sheriffs argument that the claimant was not the “prevailing party” under section 932.704(10). Instead, it “opt[ed] for the view taken with regard to attorney’s fee awards under other statutes and in contract cases” and held that “[ujnder appropriate circumstances, after the Sheriff takes a voluntary dismissal of a forfeiture suit, the claimant may be awarded attorney’s fees as a ‘prevailing’ party.” Id. (emphasis added). Ultimately, the Fifth District affirmed the trial court’s denial of the claimant’s motion for attorney’s fees under section 932.704(10) because competent evidence supported the trial court’s finding that there was no bad faith and no gross abuse of discretion on the sheriffs part. 758 So.2d at 1244-45. In Gay, the Fifth District interpreted the plain language of section 932.704(10) as not requiring a forfeiture action to reach the trial stage for a claimant to recover attorney’s fees or to be the prevailing party under that subsection. Thus, the decision in Gay did not address the language in section 932.704(9)(b) that requires a “claimant [to] prevail[ ] at trial or on appeal” before the seizing agency may be required to pay “the reasonable loss of value of the seized property.”

In Cox, the Florida Department of Highway Safety and Motor Vehicles (DHSMV) sought forfeiture of Mr. Cox’s vehicle under the Act after Mr. Cox permitted a third party with a suspended license to drive the vehicle while intoxicated, causing a crash. 881 So.2d at 642. Following an adversarial preliminary hearing at which the trial court found the seizure of Mr. Cox’s vehicle was supported by probable cause, Mr. Cox filed an answer and affirmative defenses. He also filed a counterclaim for damages in which he alleged “that the DHSMV knew or should have known it had no ‘admissible evidence’ to support its forfeiture complaint ... [and] that Cox had little or no equity in the truck at the time of the seizure due to a lien in favor of Citrus Bank.” Id. After the trial court dismissed Mr. Cox’s counterclaim, the DHSMV returned Mr. Cox’s truck to Citrus Bank and dismissed the main action over Mr. Cox’s objection. Mr. Cox argued that he should have been permitted to have his day in court to establish that the repossession was wrongful and to conduct discovery to show that the DHSMV had proceeded in bad faith or had grossly abused its discretion.

On appeal, the Fifth District observed that “at least some of Cox’s ... claims ... appear to be authorized by section 932.704(9)(b), Florida Statutes (2001),” and that “[u]nder the statute, Cox may be considered a ‘prevailing party’ even though the seizing agency dismissed the action.” 881 So.2d at 646 (citing Gay, 758 So.2d at 1244). Thus it appears that the district court in Cox applied its prior interpretation of the language in section 932.704(10) to its interpretation of section 932.704(9).

In considering Mr. Underwood’s argument under Cox, we observe that the facts in Cox are distinguishable from the facts in this case. When Mr. Cox appealed the dismissal of his counterclaim he had never been given an opportunity to prove his entitlement to damages and attorney’s fees under section 932.704. In the case before us, Mr. Underwood appeals the denial of his claim after he received a full evidentia-ry hearing. However, to the extent that the Fifth District in Cox interpreted sections 932.704(9)(b) and 932.704(10) as establishing the same requirements for a claimant to prove his or her entitlement to damages and to attorney’s fees and costs, we disagree with that interpretation of the statutes. Sections 932.704(9) and 932.704(10) use different language to describe when a claimant may recover damages and when he or she may recover attorney’s fees and costs. Section 932.704(9)(b) plainly requires a claimant to “prevail[] at trial or on appeal” to be entitled to the damages enumerated in that subsection. On the other hand, section 932.704(10) requires a claimant to “prevail[] at the close of forfeiture proceedings and any appeal” and to establish that “the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion.” Thus to the extent that Cox holds that a claimant may be entitled to damages under section 932.704(9)(b) without “prevailing] at trial or on appeal,” we disagree with that decision and certify conflict.

C. Attorney’s Fees and Costs under Section 932.704(10)

Mr. Underwood also contends that the trial court erred in failing to award him attorney’s fees and costs under section 932.704(10), which provides for fees and costs when “the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion.” He argues that the PCSO’s forfeiture case was entirely dependent upon the testimony of the Detective, who resigned from his position in July 2012 amid allegations of misconduct. Specifically, the Detective’s testimony was indispensable to the PCSO’s case because he claimed that Mr. Underwood made certain admissions to him that called into question the source of the funds used to buy the vehicle. Further, Mr. Underwood had produced a witness at the preliminary adversarial hearing who testified that the vehicle was lawfully purchased with payments from labor. Thus, Mr. Underwood argues, the PCSO failed to act in good faith and to timely dismiss its case until five months after the Detective’s resignation.

After the hearing on Mr. Underwood’s motion, the trial court found that Mr. Underwood had failed to meet his burden to recover fees and costs under section 932.704(10). In reaching this conclusion, the trial court stated as follows:

Now, I understand your frustration and I think we all are frustrated—and I’m not making a specific finding in this case—when law enforcement goes outside of the law to do what they do. But in this case the search was issued [pursuant] to a warrant signed by a judge. There was an adversarial preliminary hearing in which I found probable cause; and even in that hearing, as you pointed out, I said that the standard is much different than an adversarial preliminary hearing because the totality of the circumstances or at least probable cause to proceed and I found that. After that, based on the record, and it took several months, in essence what the sheriffs office did was proceed with discovery and other ... well, discovery essentially for which they, after examining that discovery, said, “No, I don’t think we should go any further,” and then dismissed the case.” [sic] I don’t find that that was not done in good faith; in fact, I find that the way they proceeded after that point was in good faith in trying to make a decision: [“] it time to shut this down and give the man his car back[?”]

Our review of the record reflects that the trial court’s findings are supported by competent, substantial evidence. Thus we affirm the denial of attorney’s fees and costs under section 932.704(10).

III. CONCLUSION

To summarize, we affirm the trial court’s determination that Mr. Underwood was not entitled to recover damages under section 932.704(9)(b) because he did not establish that he prevailed at trial or on appeal. We also affirm the trial court’s determination that Mr. Underwood was not entitled to his attorney’s fees and costs under section 932.704(10) based upon its findings that the PCSO did not abuse its discretion in initiating the action and that it had proceeded in good faith. Further, to the extent that the Fifth District held in Cox v. Department of Highway Safety & Motor Vehicles, 881 So.2d 641 (Fla. 5th DCA 2004), that a claimant may be entitled to damages under section 932.704(9)(b) without “prevailing] at trial or on appeal,” we disagree with that decision and certify conflict.

Under the circumstances of this case, some may question the fairness of the statutory requirements that a claimant prevail at trial or on appeal to recover damages and that a claimant establish the seizing authority’s gross abuse of discretion and bad faith to recover attorney’s fees and costs. Here, the PCSO seized Mr. Underwood’s vehicle on December 15, 2010, and retained the vehicle until December 4, 2012, when it voluntarily dismissed the forfeiture action after almost two years. During that period, Mr. Underwood was deprived of the use of the vehicle, the value of his vehicle depreciated, and the vehicle incurred damage from exposure to the elements and from other causes while in the PCSO’s possession. As the trial court noted at the conclusion of the hearing on Mr. Underwood’s motion for damages, costs, and attorney’s fees: “This is a tough area in the sense that government, the sheriffs office, gets some kind of extraordinary rights against a person. But it is what it is.” In addition to his damages, Mr. Underwood incurred attorney’s fees and costs to defend the action that the PCSO ultimately dismissed.

We note that the legislature recently amended section 932.703(l)(d)(2) of the Act to provide, among other things that “[u]n-less otherwise expressly agreed to in writing by the parties, the agency seeking forfeiture of the seized property is responsible for any damage to the property and any storage fees or maintenance costs applicable to the property.” Ch. 2016-179, § 2, at 1996-98, Laws of Fla. Thus under the amended version of the statute, Mr. Underwood would have been entitled to recover his damages upon the PCSO’s voluntary dismissal of the forfeiture action.

Affirmed; conflict certified.

SILBERMAN and BLACK, JJ., concur.

      . §§ 932.701-.706, Fla. Stat (2010).

      . Section 932.70 l(2)(a)(5) defines "contraband article” in pertinent part to mean "[a]ny ... vehicle of any kind .., which was used or was attempted to be used as an instrumentality in the commission of ... any felony ... or which [was] acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.”

      . At the conclusion of the hearing on Mr, Underwood's motion for damages, costs, and attorney’s fees, the trial court found that the condition of the car when the PCSO returned it was not the same as the condition of the car when it had been taken.

      . We observe that section 932.701(2)(g) defines "forfeiture proceeding” to mean "a hearing or trial in which the court or jury determines whether the subject property shall be forfeited.” Thus, it is arguable that the Fifth District wrongly concluded in Gay that a claimant may be considered to be the prevailing party under section 932.704(10) after the sheriff takes a voluntary dismissal in the absence of such a hearing or trial. We need not resolve that issue on this appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric Abdullah WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-11.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.
    Eric Abdullah Welch, pro se.
   PER CURIAM.

Affirmed. See Welch v. State, 152 So.3d 581 (Fla. 2d DCA 2014) (table decision); Welch v. State, 139 So.3d 345 (Fla. 2d DCA 2014) (table decision); Welch v. State, 138 So.3d 1035 (Fla. 2d DCA 2014) (table decision); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

CASANUEVA, KHOUZAM, and MORRIS, JJ., Concur.


text:
    Eric Abdullah WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-1393.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.

      Eric Abdullah Welch, pro se.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla.2011); Welch v. State, 152 So.3d 581 (Fla. 2d DCA 2014) (table decision); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

CASANUEVA, KHOUZAM, and MORRIS, JJ., Concur.


text:
    Jimmy Lee WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-2017.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.
    Jimmy Lee Wheeler, pro se.
   PER CURIAM.

Affirmed. See State v. Drawdy, 136 So.3d 1209 (Fla.2014); Carbajal v. State, 75 So.3d 258 (Fla.2011); State v. Meshell, 2 So.3d 132 (Fla.2009); Melvin v. State, 645 So.2d 448 (Fla.1994); State v. King, 426 So.2d 12 (Fla.1982); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006); Campbell v. State, 884 So.2d 190 (Fla. 2d DCA 2004); Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985); Foss v. State, 834 So.2d 404 (Fla. 5th DCA 2003); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

CASANUEVA, KHOUZAM, and MORRIS, JJ., Concur.


text:
    Timothy M. TALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-695.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.
    Timothy M. Talley, pro se.
   PER CURIAM.

Affirmed. See Talley v. State, 150 So.3d 1149 (Fla. 2d DCA 2014) (table decision); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

CASANUEVA, KHOUZAM, and MORRIS, JJ., Concur.


text:
    Jimmy Lee WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-915.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.
    Jimmy Lee Wheeler, pro se.
   PER CURIAM.

Affirmed. See Carbajal v. State, 75 So.3d 258 (Fla.2011); Johnson v. State, 60 So.3d 1045 (Fla.2011); Bradley v. State, 3 So.3d 1168 (Fla.2009); Long v. State, 529 So.2d 286 (Fla.1988); State v. King, 426 So.2d 12 (Fla.1982); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Melvin v. State, 177 So.3d 648 (Fla. 1st DCA 2015); Goolde v. State, 978 So.2d 249 (Fla. 5th DCA 2008); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

CASANUEVA, KHOUZAM, and MORRIS, JJ., Concur.


text:
    Starling T. MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-944.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.
    Starling T. Middleton, pro se.
   PER CURIAM.

Affirmed. See Lee v. State, 679 So.2d 1158 (Fla.1996); Shaw v. State, 780 So.2d 188 (Fla. 2d DCA 2001); Reed v. State, 761 So.2d 1241 (Fla. 2d DCA 2000); Paris v. State, 156 So.3d 578 (Fla. 3d DCA 2015); Rutherford v. State, 93 So.3d 1132 (Fla. 1st DCA 2012); Martell v. State, 676 So.2d 1030 (Fla. 3d DCA 1996).

CASANUEVA, KHOUZAM, and MORRIS, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    Martice SPEARS, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-1012.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 2016.

      Howard L. “Rex” Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

In this appeal, Martice Spears appeals his criminal convictions and sentences in two unrelated cases, CF13-3400 (possession of a firearm by a convicted felon) and CF14-0275 (grand theft). The trial court sentenced Spears to twelve years’ imprisonment for possession of a firearm by a convicted felon in CF13-3400, to run consecutively with the already imposed five-year sentence in CF14-0275. We vacate Spears’s sentence in CF14-0275 and remand with instructions for the trial court to conduct a hearing on Spears’s request to withdraw his guilty plea. We affirm Spears’s conviction and sentence in CF13-3400 without comment.

The underlying facts relating to CF14-0275 are as follows: Spears attempted to exit through the front door of a Walmart with a shopping cart full of items for which he did not pay. The aggregate value of the items in the cart was $811.33. A Wal-mart employee noticed that Spears was pushing a shopping cart toward the front exit doors of the store and bypassing every point of sale. The employee intercepted Spears and asked him to produce a receipt. Spears refused. After a brief physical struggle, Spears released his hold on the shopping cart and fled into the parking lot. All of the stolen items in the cart were recovered.

Spears entered an open plea to the grand theft charge in CF14-0275. During the plea colloquy, the trial judge noted that the State intended to seek habitual felony offender sentencing. Spears indicated that this fact did not change his decision to plead guilty. The trial court accepted Spears’s guilty plea but deferred adjudication and sentencing until a later date. The State subsequently filed a notice of intention to seek habitual felony offender sentencing.

The trial court thereafter held a sentencing hearing in CF14-0275. At that hearing, the State provided certified copies of prior convictions to establish Spears’s status as a habitual felony offender, and asked that Spears be sentenced to five years’ imprisonment followed by five years’ probation. Spears personally addressed the court and commented that, under the circumstances, he should not be required to serve any prison time because he did not succeed in taking any merchandise out of the store.

After Spears’s comment, the trial judge decided to “get some mundane things out of the way” and began to calculate the appropriate sentencing fees and costs. The trial judge asked Spears if he felt that $100 was a reasonable attorney’s fee, which prompted the following exchange:

[THE COURT:] So do you agree that $100 is a reasonable attorney’s fee, or would you want a hearing to determine—
THE DEFENDANT [Spears]: I would agree, Your Honor, but I will say—I also have a question for The Court. If I don’t like the sentence you give me, can I withdraw my plea?
THE COURT: No—
THE DEFENDANT: I would like—(indiscernible)
THE COURT:—except that you can file—every defendant can always file a motion to withdraw plea. That doesn’t mean it would be granted. It might be, it might not be. You know, it’s like any other motion, The Court has to consider and determine if it’s appropriate to grant it or deny it. So that would be the way you’d be looking at that, that if you understand that that’s the way a motion to withdraw the plea would be handled, so do you wish to go ahead with this plea or are you—
THE DEFENDANT: I’d rather go to trial.
THE COURT: Okay. Now you—at this point—now let’s talk about where we’re at as far as the status of this case. You pled open back in September. At that point I found you guilty, and then we set off disposition for today. So I’ve already found you guilty, so in that sense I’ve already accepted your plea.
THE DEFENDANT: Yes, sir.
THE COURT: And so—let’s see here. Yes, I already accepted the plea back in September. So at this point, it’s just a matter of disposition.
THE DEFENDANT: (Indiscernible).
The COURT: Pardon me?
THE DEFENDANT: I apologize—(indiscernible).
THE COURT: Okay. All right. Well, I think the status of the case is that if it would not be appropriate anyway to withdraw a plea, you could file a motion to withdraw after disposition. But you know, I’ve already' accepted your plea and found you guilty ....

(Emphasis added.) After adjudicating Spears guilty on the grand theft charge and sentencing him to five years’ imprisonment on that count, Spears blurted out, “Trial, man.” The trial court did not address the comment and proceeded to inquire, “[A]re there any other matters?” Spears responded, “Trial, man.” Again, the trial court did not address Spears’s comment. As the trial court proceeded to explain that Spears had a right to appeal, Spears stated, “I steal nothing out of the store, and you’re going to send me to prison, man?”

Florida Rule of Criminal Procedure 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.” (Emphasis added.) An oral motion to withdraw a guilty plea after the plea has been accepted, but before the defendant has been sentenced, is not untimely. See Lehmkuhle v. State, 20 So.3d 971, 974 (Fla. 2d DCA 2009); see also J.D.F. v. State, 870 So.2d 86, 86-87 (Fla. 2d DCA 2003). This court has explained that “the law favors a trial on the merits,” and rule 3.170(f) should thus be “liberally construed” in favor of the defendant. Rivera v. State, 136 So.3d 609, 610 (Fla. 2d DCA 2013) (quoting Moraes v. State, 967 So.2d 1100, 1101 (Fla. 4th DCA 2007)). When a defendant states that he would rather go to trial than be sentenced pursuant to a plea of guilty or nolo contendere, such a statement may be sufficient to constitute an oral motion by the defendant to withdraw his plea. See Tanzi v. State, 964 So.2d 106, 111-12 (Fla.2007) (construing a defendant’s statements that he was dissatisfied with his counsel and that he “should have a guilt phase jury since he was being forced to have a penalty phase jury” as an “oral motion to withdraw his plea” under rule 3.170(f)).

After Spears requested that he would “rather go to trial,” the trial court was placed on notice that Spears would rather proceed forward on the merits and thus desired to withdraw his guilty plea. To exclude any doubt of his desire to proceed forward with a trial on the merits, Spears twice exclaimed “Trial, man” during the sentencing hearing. The trial court did not acknowledge Spears’s remarks. The trial court should have, as a matter of due process, afforded Spears “an opportunity to present argument and be heard” on his oral motion to withdraw his plea. Morales v. State, 973 So.2d 679, 681 (Fla. 2d DCA 2008) (quoting Gunn v. State, 643 So.2d 677, 679 (Fla. 4th DCA 1994)). On this record, it appears that the trial court’s misunderstanding that the Florida Rules of Criminal Procedure only permit a criminal defendant to move to withdraw a guilty plea after sentencing could be a reason the trial court did not further inquire as to Spears’s proclamation that he “would rather go to trial.” The trial court’s actions denied Spears due process of law and directly contravened the plain language of rule 3.170(f), which permits a court to entertain a motion to withdraw a guilty plea “at any time before a sentence.”

We are mindful that a criminal defendant represented by counsel cannot move to withdraw his plea pro se. Indeed, such a motion would be a nullity absent defense counsel’s adoption of the pro se motion. See State v. Tait, 387 So.2d 338, 339-40 (Fla.1980) (“The sixth amendment does not guarantee that the accused can make his own defense personally and have the assistance of counsel.”); see also Murray v. State, 1 So.3d 407, 408 (Fla. 2d DCA 2009). But we are faced with unusual facts and circumstances in this case. Here, the trial court affirmatively misad-vised all present that Spears did not have the right to move to withdraw his plea until after the sentencing hearing. Erroneously believing Spears had no right to withdraw his guilty plea at that juncture, the trial court abruptly cut Spears off and did not even afford Spears’s counsel the opportunity to adopt Spears’s pro se motion. Cf. Gunn, 643 So.2d at 679 (holding that trial court violated a defendant’s procedural due process rights by abruptly cutting off a defendant’s pro se oral motion to withdraw plea prior to sentencing, where defense counsel neglected to make or adopt his client’s motion).

We therefore vacate Spears’s sentence in CF14-0275 and remand with instructions for the trial court to conduct a hearing on Spears’s oral motion to withdraw his guilty plea. See Morales, 973 So.2d at 681 (holding that a defendant who orally moved to withdraw his plea at the beginning of sentencing should have been given an opportunity to present argument and be heard on his motion to withdraw plea before being sentenced). We express no opinion as to the disposition of Spears’s motion to withdraw his guilty plea in CF14-0275. We affirm Spears’s appeal of his conviction and sentence in CF13-3400 in all respects.

Sentence vacated in CF14-0275; remanded for further proceedings consistent with this opinion.

CASANUEVA and LUCAS, JJ., concur.

      . While Spears could have moved to withdraw his plea after sentencing, the permissible grounds for withdrawing a plea after a sentencing hearing are more limited than those for withdrawing a plea before the imposition of sentence. See State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003).


text:
    Paul R. PRIMAVERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-4933.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 2016.
    Paul R. Primavera, pro se.
   PER CURIAM.

Paul R. Primavera appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

In his motion, Primavera argued that his sentences for eight counts of promotion of a sexual performance by a child violated his double jeopardy rights. The postcon-viction court correctly found that Primav-eras claim was not cognizable in a rule 3.800(a) motion. See Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006) (en banc) (holding that double jeopardy challenges to sentences necessarily involve challenges to the underlying convictions and that rule 3.800(a) is limited to claims that the sentence is illegal). But the court incorrectly found that it could not consider the motion as filed under Florida Rule of Criminal Procedure 3.850 because it was untimely and facially insufficient. ■ Rule 3.850(b) provides that motions under the rule must be filed within two years of the judgment and sentence becoming final. This court issued the mandate on November 19, 2013, and Primavera filed his motion on September 11, 2015. Thus, the motion was timely filed. Under rule 3.850, a movant is entitled to amend his motion to state a facially sufficient claim if he can do so in good faith. See Patterson v. State, 141 So.3d 707, 709 (Fla. 2d DCA 2014) (holding that because the postconviction court should have treated Patterson’s motion as if it had been filed under rule 3.850, he had to be given an opportunity to amend the motion pursuant to rule 3.850(f)(2) if he could do so in good faith).

Accordingly, we reverse the order denying Primavera’s rule 3.800(a) motion and remand for the postconviction court to treat it as timely filed under rule 3.850.

Reversed and remanded.

NORTHCUTT, SILBERMAN, and SLEET, JJ., concur.


text:
    Derrick Marcus TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-480.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2016.
    Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We reverse Derrick Marcus Turner’s judgment and sentence for conspiracy to traffic in cocaine. We agree with the State’s concession that the trial court was prohibited by double jeopardy principles from setting aside the judgment of acquittal on this charge, which was entered following the close of the State’s case, and then reinstating it after the defense rested. See Smith v. Massachusetts, 543 U.S. 462, 464-75, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005).

Reversed.

NORTHCUTT, LaROSE, and CRENSHAW, JJ., Concur.

      . Turner filed a petition alleging ineffective appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d), which was granted in part, and this court afforded him a new direct appeal allowing him to challenge this specific conviction only. Turner v. State, 171 So.3d 722 (Fla. 2d DCA 2015) (table decision).


author: SILBERMAN, Judge.

text:
    G4S SECURE SOLUTIONS (USA), INC., a Florida Profit Corporation and Andrew W. Izrailov a/k/a Andrey W. Izrailov, Appellants, v. Sharon MORROW, as Personal Representative of the Estate of Thomas Morrow, deceased, Appellee.
    No. 2D15-2336.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2016.
    Rehearing Denied Nov. 1, 2016.

      Edward R. Nicklaus of Nicklaus & Associates, PA, Coral Gables, for Appellants.
    Michael J. Babboni of Shapiro, Goldman, Babboni & Walsh, St. Petersburg, and Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Thomas Morrow died after being severely beaten by a fellow prisoner while Andrew W. Izrailov was transporting the men to a Pinellas County Sheriffs Office (“PCSO”) facility. Personal representative Sharon Morrow subsequently filed a wrongful death action against Izrailov and his employer, G4S Secure Solutions (USA), Inc. (“G4S”). G4S, which was handling prisoner transport pursuant to an agreement for services with PCSO, filed a motion for summary judgment based on limited sovereign immunity under section 768.28, Florida Statutes (2012). In this appeal, G4S and Izrailov seek review of the order denying the motion. We reverse because the undisputed evidence establishes that G4S and Izrailov were entitled to limited sovereign immunity as agents of PCSO.

Section 768.28(9)(a) provides for sovereign immunity from tort actions for any “officer, employee, or agent of the state or of any of its subdivisions.” Section 768.28(5), however, provides for a limited waiver of this sovereign immunity. Plancher v. UCF Athletics Ass’n, 175 So.3d 724, 726 (Fla.2015). “The state and its agencies and subdivisions” retain the same liability for tort claims as private individuals, but liability does not include punitive damages or prejudgment interest. § 768.28(5). There is a recovery limit of $200,000 for claims by one person and $300,000 per incident or occurrence. Id. “[Sjtate agencies or subdivisions” are defined to include “corporations primarily acting as instrumentalities or agencies of the state.” § 768.28(2).

Thus, limited sovereign immunity is available for private parties involved in contractual relationships with the state if those parties are determined to be acting as agents of the state. Plancher, 175 So.3d at 726; Stoll v. Noel, 694 So.2d 701, 703 (Fla.1997). The determinative factor is the degree of control retained or exercised by the state agency. Plancher, 175 So.3d at 728; Stoll, 694 So.2d at 703.

An express intent regarding agency status is to be considered in deciding the issue, but it is not dispositive. M.S. v. Nova Se. Univ., Inc., 881 So.2d 614, 620 (Fla. 4th DCA 2004); Robinson v. Linzer, 758 So.2d 1163, 1164 (Fla. 4th DCA 2000). If the provisions of the contract governing the state’s right to control are inconsistent with the parties’ expressed intent, the nature of the relationship controls over the label. Robinson, 758 So.2d at 1164.

The agreement between G4S and PCSO contains language expressing an intent to avoid creating an agency relationship. The agreement states that G4S “is and shall remain an independent contractor and is neither agent, employee, partner, nor joint venturer of [PCSO].” The agreement claims to give G4S “sole” responsibility for “[h]iring, scheduling, directing, controlling and discharging” its employees. It also requires G4S to obtain liability insurance in an amount greater than the sovereign immunity caps. And it contains an indemnification and hold harmless provision.

However, the indemnification and hold harmless provision also contains language expressing an intent to avoid waiving sovereign immunity. And other provisions and evidence establish that PCSO has a degree of control over G4S’s operations that creates an agency relationship. PCSO exercises extensive control over the hiring and training of G4S employees. PCSO participates in the interviews of potential G4S hires and has the final say over who is hired. PCSO also has the ability to have a G4S employee fired at will. PCSO conducts the training of G4S employees, and the employees are trained according to PCSO procedures. In fact, G4S is required to comply with all of PCSO’s “standards, policies, training, and directives.” G4S is also required to create and update standard operating procedures (SOPs) subject to PCSO approval.

PCSO also retains control over G4S’s budget in relation to the agreement, including employee salaries and pricing schedule. PCSO has the final say over wage increases and billing rates, and G4S is subject to audits by PCSO. Additionally, G4S must obtain PCSO’s prior written approval of any overtime requests and must submit monthly sign-in sheets and invoices to PCSO.

Finally, PCSO is highly involved in the day-to-day operations of G4S. G4S employees receive orders directly from PCSO’s dispatch officer, and they are in constant contact. PCSO supplies and maintains the transport vehicles and equipment, and PCSO monitors the vehicles while they are in transit. G4S is required to report daily attendance records at all posts, and PCSO has the authority to change G4S employee schedules “as necessary.” G4S must assign a contact person who is required to meet with PCSO’s contract administrator “at a minimum of once each week/month as directed.”

PCSO’s degree of control over G4S under the agreement is analogous to that of the agency in Prison Rehabilitative Industries v. Betterson, 648 So.2d 778 (Fla. 1st DCA 1994). In Betterson, the alleged agent was a corporation that had been organized for the purpose of running a prison work program and was governed by statute. Id. at 780. While the statute accorded the corporation a great deal of independence in the operation of the work program, it also contained provisions providing the government extensive control over the corporation’s day-to-day operations.

Those provisions included requiring government approval of the corporation’s sale of goods to private entities, its articles of incorporation, and its policies and procedures. Additionally, the government administered the trust fund which funded the corporation. The corporation also had to provide the government with an annual financial statement and status report, and it was subject to financial and performance audits by the government. Finally, the corporation was restricted to nonprofit status, and the government retained a rever-sionary interest in any property that related to a correctional work program. Id. The First District concluded that the cumulative effect of these statutory provisions constituted sufficient control over the corporation to create an agency relationship. Id. at 780-81.

G4S’s operations are subject to many of the same types of government control as the corporation’s in Betterson, albeit pursuant to agreement rather than by statute. G4S is required to follow PCSO’s policies and procedures, and G4S is required to obtain PCSO approval of its SOPs, hiring decisions, and overtime billing. G4S’s budget for the agreement is controlled by PCSO, and G4S is subject to finance and performance audits by PCSO. PCSO also owns the vehicles and equipment used by G4S to perform its duties.

Contrary to the statement in the agreement, G4S does not have “sole” responsibility for “[hjiring, scheduling, directing, controlling and discharging” its employees. Instead, PCSO exercises a great deal of control over G4S’s hiring and training of G4S employees, budget and employee salaries, and day-to-day operations. Thus, while PCSO and G4S may have stated they were not creating an agency relationship, they nevertheless did so by virtue of PCSO retaining and exercising extensive control over G4S’s operations.

We have considered the application of section 30.24(2)(b), Florida Statutes (2012), but it does not impact our analysis. Section 30.24 is entitled “Transportation and return of prisoners” and provides, in pertinent part:

(2)(a) The sheriff of each county of the state is authorized to contract with private transport companies for the transportation of prisoners both within and beyond the limits of this state. Each prisoner shall be delivered to the transport company by a sheriff or other proper law enforcement official for transportation and then delivered by the same transport company to the proper sheriff or other law enforcement official upon arriving at the point of destination.
(b) Any company transporting a prisoner pursuant to this section shall be considered an independent contractor and shall be solely liable for the prisoner while the prisoner is in the custody of the company. Any transport company contracting with a sheriff for the transportation of prisoners as provided for in this section shall be insured and shall provide no less than $100,000 in liability insurance with respect to the transporting of the prisoners.

(Emphasis added.)

Section 30.24 does not waive sovereign immunity or address sovereign immunity in any manner. While section 30.24(b) gives private transport companies independent contractor status, this status does not preclude such companies from being agents of the state for purposes of sovereign immunity. See Stoll, 694 So.2d at 703. Independent contractor status and agency status are not mutually exclusive. Id. “One who contracts to act on behalf of another and subject to the other’s control except with respect to his physical conduct is an agent and also an independent contractor.” Id. (quoting Restatement (Second) of Agency § 14N (Am. Law Inst. 1957)).

Likewise, section 30.24’s requirements of holding the sheriff harmless and maintaining $100,000 in liability insurance are not inconsistent with the application of sovereign immunity. Under section 768.28(5), the sheriff and its agents are only entitled to limited sovereign immunity and may be required to pay up to $200,000 for claims by one person and $300,000 per incident or occurrence.

We reject Sharon Morrow’s argument that there is a question of fact that precludes summary judgment. While agency status is generally a question of fact, it may be decided as a question of law “in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts.” M.S., 881 So.2d at 617. G4S produced the agreement and testimony by PCSO employees regarding the interaction between G4S and PCSO. Sharon Morrow did not present any conflicting evidence in opposition to the motion, and she does not challenge any of the established facts or inferences from those facts. Instead, she challenges the application of the law to the facts.

Because the undisputed evidence establishes that G4S and Izrailov are entitled to limited sovereign immunity as agents of PCSO, the trial court erred in denying G4S’s motion for summary judgment. We reverse and remand with directions for the court to enter summary judgment in favor of G4S.

Reversed and remanded.

BLACK and BADALAMENTI, JJ., Concur.

      . The provision states, "Nothing contained herein waives or shall be construed to waive the protections of sovereign immunity of any person or entity, consistent with Section 768, Florida Statutes,”


text:
    Stephen Matthew FERRAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-3764.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2016.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Stephen Matthew Ferran pleaded guilty to two counts of burglary of a conveyance and one count of possession of burglary tools. He now challenges the denial of his motion to suppress the evidence. However, although the parties appear to have agreed that the issue was preserved for appeal, there was neither a stipulation nor a determination by the trial court that the denial of the motion to suppress was dis-positive. We therefore affirm without further comment. See Fla. R.App. P. 9.140(b)(2)(A)(i); Leonard v. State, 760 So.2d 114, 119 (Fla.2000); M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009).

Because it appears to us that Mr. Fer-ran may have believed that his plea was conditioned upon the reservation of his right to appeal from the denial of his motion to suppress, our affirmance is without prejudice to Mr. Ferran’s right to file a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850. See Sears v. State, 920 So.2d 709, 709 (Fla. 4th DCA 2006); Sloss v. State, 917 So.2d 941, 942 (Fla. 5th DCA 2005).

Affirmed.

WALLACE, BLACK, and SALARIO, JJ., Concur.


text:
    Patrick Duncan GAMMAGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-3898.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2016.
    Howard L. Dimmig, II, Public Defender, and Brooke Elvington, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, for Appellee.
   ORDER ON MOTION TO ENFORCE MANDATE

PER CURIAM.

Patrick Gammage filed a motion to enforce mandate, claiming that the trial court did not comply with the directions in this court’s opinion in Gammage v. State, 181 So.3d 1256 (Fla. 2d DCA 2015). He contends that the trial court did not enter judgments for and resentence him on the lesser included offenses of attempted tampering with jurors as first-degree misdemeanors as required by this court’s opinion. We deny the motion to enforce mandate because this court remanded for entry of judgments for the lesser included offenses of attempted tampering and for resentencing and the trial court complied with our mandate. We clarify that the offense of attempted tampering with jurors is a third-degree felony. See § 777.04(4)(d), Fla. Stat. (2013) (providing that “if the offense attempted ... is a ... [fjelony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under s. 921.0022 or s. 921.0023, the offense of criminal attempt ... is a felony of the third degree”); § 921.0022(3)(d), Fla. Stat. (2013) (ranking the third-degree felony of tampering with jurors under section 918.12, Florida Statutes, as a level 4 offense).

MORRIS, KHOUZAM and BADALAMENTI, JJ., Concur.


text:
    Steven SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-1642.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2016.

      Richard C. Reinhart, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

After entering a no contest plea to (1) fraudulent use of a credit card, (2) grand theft, (3) fraudulent use of personal identification, and (4) theft of a credit card, Steven Sanders was adjudicated guilty and sentenced to concurrent sentences of five years in prison on counts one, two, and three and to time served on count four. He challenges the denial of his amended motion to withdraw plea. Because the amended motion was not untimely as an amendment to the original timely-filed motion, we reverse and remand for the trial court to consider the amended motion to withdraw plea on the merits.

Sanders’ sentence was rendered on August 12, 2014. Our record does not contain a transcript of the plea hearing or sentencing hearing. Sanders’ scoresheet reflects that he had no prior criminal history and that he scored any nonstate prison sanction as his lowest permissible sentence. The trial court imposed the statutory maximum sentence of five years in prison.

On September 10, 2014, Sanders filed, through counsel, a motion to reduce/correct sentence and/or withdraw plea under Florida Rules of Criminal Procedure 3.800(c) and 3.170(Z). In the motion, Sanders asserted that the trial court had before it irrelevant evidence during the sentencing hearing that affected Sanders’ sentence. On September 23, 2014, the trial court entered an order that denied the motion as to the request for a modification or reduction of sentence. As to the request to withdraw his plea, the trial court denied the motion “without prejudice to any right Defendant may have to file a legally sufficient amended motion to withdraw plea under [rjule 3.170(Z) within twenty (20) days of the rendition of this order, provided he can do so in good faith.”

On October 13, 2014, Sanders filed an amended motion to withdraw plea in which he alleged that the trial court committed a sentencing error in imposing sentence and that his plea was involuntary based on affirmative misadvice of counsel concerning the sentence he would receive. On October 27,2014, the trial court denied the amended motion to withdraw plea as untimely because it was not filed within thirty days of sentencing. Sanders contends on appeal that it was error for the trial court to consider the amended motion untimely.

Rule 3.170(í) provides as follows:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

The appellate rule includes an involuntary plea and a sentencing error as grounds that a defendant may raise. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(c), (d).

For a trial court to have jurisdiction over a defendant’s motion to withdraw plea under rule 3.170(7), the defendant must file the motion within thirty days after rendition of sentence. See James v. State, 12 So.3d 1290, 1290 (Fla. 2d DCA 2009); Feazell v. State, 115 So.3d 1045, 1045 (Fla. 4th DCA 2013); Golden v. State, 84 So.3d 396, 398 (Fla. 1st DCA 2012). Sanders timely filed his original motion to withdraw plea. Thus, the trial court had jurisdiction to entertain the motion. The trial court determined that the motion to withdraw plea was facially insufficient and denied the motion without prejudice to file an amended motion within twenty days.

The State contends that once the thirty-day window passes, Sanders “cannot confer jurisdiction on the court by waiver, acquiescence, estoppel or consent.” Golden, 84 So.3d at 398 (quoting State v. Schafer, 583 So.2d 374, 376 (Fla. 4th DCA 1991)). In Golden, the defendant had filed a timely but unauthorized pro se motion to withdraw plea. See id. at 397. The trial court struck the motion as unauthorized because the defendant was still represented by counsel and also denied the motion as insufficient. Later, Golden’s counsel filed a motion to withdraw plea outside the thirty-day period and sought to adopt and modify the earlier pro se motion. Because the trial court had already stricken and denied the pro se motion, counsel’s late-filed motion could not revive the pro se motion and there was no pending motion to adopt. Id. at 398. In Golden, no authorized, timely motion to withdraw plea was ever filed.

This court has considered a pro se letter filed three months after a pro se motion to withdraw plea as an amendment to the earlier timely motion. See Davis v. State, 126 So.3d 1257, 1258 (Fla. 2d DCA 2013). Here, Sanders’ counsel filed a timely motion to withdraw plea under rule 3,170(Z). Because the trial court denied the original motion, the State treats the amended motion as a second motion to withdraw plea filed outside the jurisdictional time limits. The original motion filed by counsel satisfied the jurisdictional time requirement of rule 3.170(Z). However, the trial court did not simply deny the original timely motion but also expressly stated that it was without prejudice to file an amended motion within twenty days. Sanders filed, through different counsel, his amended motion within the twenty days.

Under these circumstances, where the original motion was timely and the trial court permitted amendment, the trial court erred in determining that the amended motion was untimely. Therefore, we reverse the order of October 27, 2014, that determines the amended motion is untimely and remand for the trial court to consider the amended motion to withdraw plea on the merits.

The State also argues that any error is harmless because Sanders is not prejudiced by the denial of his amended motion to withdraw plea because he can file a rule 3.850 motion for postconviction relief. However, unlike a postconviction motion, a motion to withdraw plea is a critical stage of the proceedings during which the defendant is entitled to counsel. See Pagan v. State, 110 So.3d 3, 5 (Fla. 2d DCA 2012); Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003). Therefore, we reject the State’s contention that the error is harmless.

Reversed and remanded.

BLACK and BADALAMENTI, JJ„ Concur.


author: LaROSE, Judge.

text:
    Quartez M. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-19.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2016.
    Graylin Cory Chastang of Norgard, Norgard & Chastang, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Quartez Davis appeals the revocation of his community control and the fifteen-year sentence imposed for his underlying convictions. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(D). The trial court found Mr. Davis guilty of technical (Condition 16) and new law violations (Condition 5) of the terns of his community control. The trial court proceeded on the Condition 5 violations despite the State’s decision to proceed only on the Condition 16 violation. Consequently, we reverse, in part. We affirm on all other issues raised by Mr. Davis without further discussion.

The trial court originally sentenced Mr. Davis for multiple felony offenses as a youthful offender to four years in prison, followed by two years of community control. Mr. Davis served his prison time and was serving his community control when he was charged with violating Condition 16 by failing to remain in his residence and Condition 5 by committing new law violations of armed burglary, possession of burglary tools, and possession of a firearm. While Mr. Davis was awaiting trial on the new law violations, the trial court held an evidentiary hearing on the alleged community control violations.

At the start of the hearing, defense counsel advised the trial court that “there’s an agreement between the State and I that we’re going forward only on the Condition 16 violation, not on the new charges.” The State did not contest this representation. Accordingly, the trial court acknowledged its “understanding that we’re not going to proceed on Condition 5, only on the Condition 16?”

Mr. Davis admitted to violating Condition 16, but offered testimony in an effort to mitigate the sentence that the trial court might impose. Apparently, Mr. Davis was not in his approved residence because his family kicked him out. Thereafter, and despite the prior understanding that the State would not proceed on the alleged Condition 5 violations, the following exchange occurred:

COURT: Ms. Hill[,] [d]o you have witnesses on these Condition 5 violations?
STATE: I do, Judge.
COURT: Well, why can’t we proceed on these Condition 5 violations?
STATE: We can.
DEFENSE: I believe we had an agreement we were going to proceed only on the Condition 16 before the Court.
STATE: Well, Judge, if Mr. Menden-hall was not prepared—
COURT: I don’t even know—
STATE:—out of reliance on or indication that we weren’t going to do the full [VOP] of the Condition 6 that’s fine. I mean, some of the information regarding that Condition 5 offense I think is relevant to the Condition 16, as well, so—
COURT: Oh, sure. And not only that, so that it’s very clear here, the State didn’t set this hearing. The Court set the hearing. And the Court entered the order that directed the parties to be here, to have their witnesses available. And I specifically put it in the order the parties shall be responsible for summoning all witnesses they wish to present. There isn’t any agreement with the Court and no discussion with the Court not to have a hearing on the violations. So let us proceed....

The trial court then proceeded to hear evidence on the alleged Condition 5 violations.

Mr. Davis argues that the trial court erroneously assumed a prosecutorial role by requiring the State to present evidence on the alleged new law violations. It seems clear to us that the State decided to proceed only on the alleged violation of Condition 16. The new law violations were going to trial whether or not the trial court found that Mr. Davis violated his probation.

The record does not disclose why the State chose not to proceed on the Condition 5 violations. We do know that when Mr. Davis later went to trial and was convicted on the new charges of burglary and felon in possession of a firearm, the trial court sentenced him to ten years concurrent with his fifteen-year sentence here. However, had the trial court allowed the parties to proceed as they agreed on only the Condition 16 technical violation, Mr. Davis’ maximum sentence after revocation of probation for the technical violation would have been a maximum of six years as a youthful offender. See § 958.14, Fla. Stat. (2010).

The State unreservedly agreed not to proceed on the Condition 5 violations. The State -withdrew those alleged violations of community control. Thus, the State effectively “nolle prossed” the Condition 5 violations. The trial court should not have forced the State to proceed on those withdrawn allegations.

The State has the exclusive and absolute discretion to determine the charges it will prosecute. Barnett v. Antonacci, 122 So.3d 400, 405 (Fla. 4th DCA 2013) (citing State v. Cain, 381 So.2d 1361, 1367, 1367 n. 8 (Fla.1980)). “A judge has no supervisory control over a prosecutor’s decision not to prosecute.” Barnett, 122 So.3d at 406 (holding State has exclusive discretion to decide whether to discontinue prosecution with a nolle prosse). Similarly, the State may withdraw an allegation of violation of probation during a violation hearing. See, e.g., Johnson v. State, 60 So.3d 1045, 1048 (Fla.2011) (“At the hearing, the State withdrew the allegation that Johnson had committed new substantive offenses.... ”); Martin v. State, 937 So.2d 714, 715 (Fla. 1st DCA 2006) (“At the hearing on the violation of probation, the prosecutor withdrew the allegation of violation of condition number 5 (the new law violation).”), disapproved on other grounds in Del Valle v. State, 80 So.3d 999 (Fla. 2011).

In the context of a criminal jury trial, the State may announce a .nolle prosse of a charge at any time before the jury is sworn. Wilkins v. State, 90 So.3d 305, 306 (Fla. 1st DCA 2012); State v. Aguilar, 987 So.2d 1233, 1234-35 (Fla. 5th DCA 2008). The State does not need the trial court’s permission. Wilkins, 90 So.3d at 306; Aguilar, 987 So.2d at 1235. A nolle prosse is self-executing upon its announcement and immediately terminates the proceeding. Aguilar, 987 So.2d at 1235. Any subsequent action is a nullity because the defendant was no longer charged with that offense and the trial court had no authority to try the defendant on that charge. Sadler v. State, 949 So.2d 303, 305 (Fla. 5th DCA 2007); see Wilkins, 90 So.3d at 306; Aguilar, 987 So.2d at 1235.

We have found no on-point case in the probation context involving a challenge to a revocation based on an allegation withdrawn by the State. Nevertheless, numerous cases hold that it is trial court error to revoke probation for conduct not alleged in the charging document. See, e.g., McRae v. State, 88 So.3d 384, 385 (Fla. 2d DCA 2012); Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997) (“[I]t is improper to find a probationer has violated a condition of his probation that he has not been charged with violating.”). Even if we construed the prosecutor’s action here as trying to retract the withdrawal when she acquiesced to the trial court’s decision to proceed with a hearing on Condition 5, that action had no effect to resurrect what the State had already terminated. Cf. Sadler, 949 So.2d at 304-05 (holding that State’s “withdrawal” of nolle prosse had no effect because nolle prosse ended the proceeding on that charge and the subsequent conviction was a nullity).

The trial court erred in proceeding with the Condition 5 violations. This was fundamental error. See McRae, 88 So.3d at 385 (holding it was fundamental error to revoke probation on uncharged allegations); Freccacreto v. State, 291 So.2d 630, 631 (Fla. 4th DCA 1974) (holding that trial court committed fundamental error by convicting defendant of crime that State had nolle-prossed); Wise v. State, 833 So.2d 882, 883 (Fla. 2d DCA 2003) (holding that it was fundamental error to convict defendant for crime not charged and that verdict was a nullity). We do not know whether the trial would have revoked community control based solely on a technical violation of Condition 16. Therefore, we reverse and remand for a new hearing based upon only the Condition 16 technical violation of community control.

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

WALLACE and MORRIS, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    Andrew C. BALAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-2286.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.
   NORTHCUTT, Judge.

Andrew C. Balas appeals the order summarily disposing of his motion and amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Balas raised three grounds for relief. We affirm the dismissal of grounds two and three without further comment. However, we reverse the summary denial of Balas’s amended ground one because the postconviction court overlooked his timely supplement to his amended ground one.

Balas entered an open guilty plea to one count of causing death or serious bodily injury by carelessly or negligently operating a motor vehicle while his driver’s license was revoked. See § 322.34(6)(b), Fla. Stat. (2010). The trial court sentenced Balas to 90.75 months’ imprisonment, which the sentencing transcript indicates was the lowest permissible sentence that he could receive under his Criminal Punishment Code (CPC) scoresheet. Ba-las appealed, but on July 3, 2013, this court granted his motion to voluntarily dismiss his appeal.

On June 6, 2014, Balas filed his original rule 3.850 motion raising three grounds for relief. The postconviction court reserved ruling on grounds two and three, and it struck ground one as facially insufficient. Ground one asserted that counsel’s misad-vice rendered Balas’s plea involuntary and that counsel performed ineffectively at sentencing. The court granted Balas leave to amend the claims set forth in ground one. See Fla. R. Crim. P. 3.850(f)(3). It then granted a motion for extension of time, which directed Balas to file his amended motion on or before March 16, 2015.

On February 4, 2015, Balas filed a motion amending his claims in ground one and providing additional details regarding his counsel’s alleged misadvice and deficient performance. Balas further expanded his allegations from ground one with the filing of another amended motion on March 6, 2015.

On March 31, 2015, the postconviction court issued an order addressing the original motion and the February motion. The postconviction court denied amended ground one as conclusively refuted by the record, and it dismissed grounds two and three as not cognizable in a rule 3.850 motion. The court failed to address the March motion.

Any claims in the March motion that related to amended ground one in the February motion were timely filed under the postconviction court’s order extending the period for Balas to amend that claim. Further, any new claims raised in either the February or March motions were timely filed within two years following the voluntary dismissal of Balas’s direct appeal. See Fla. R. Crim. P. 3.850(b); Cabrera v. State, 721 So.2d 1190, 1191 (Fla. 2d DCA 1998) (holding that the two-year time period to file a rule 3.850 motion begins when the district court grants a motion to voluntarily dismiss a direct appeal). Therefore, the court should have addressed those new claims on the merits because it had never ruled on the merits of Balas’s original motion. See Fla. R. Crim. P. 3.850(e); Pritchett v. State, 884 So.2d 417, 418 (Fla. 2d DCA 2004) (holding that the postconviction court erred in denying a motion to supplement a rule 3.850 motion because both the original and amended motions were filed within the statutory two-year time limitation and the postconviction court had not issued a final order disposing of the claims in the original motion); cf. Hempstead v. State, 980 So.2d 1254, 1258 (Fla. 2d DCA 2008) (holding that amendments made to a motion after the postconviction court ruled on the original motion were improper, successive motions).

Accordingly, without commenting on the merits or facial sufficiency of any of the amended or new claims in the February and March motions, we reverse the order denying amended ground one in the February motion and remand for the postcon-viction court to reconsider the February motion in conjunction with its consideration of the March motion.

Affirmed in part; reversed in part; remanded.

LaROSE and SLEET, JJ., Concur.

      . In fact, the circuit court docket reflects that the postconviction court has yet to dispose of the March motion.


text:
    Brian J. BLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-2757.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Brian James Bland appeals an order dismissing his motion to withdraw plea after sentencing. See Fla. R. Crim. P. 3.170(Z). Because the motion was facially sufficient, we reverse and remand for the trial court to conduct an evidentiary hearing on Mr. Bland’s motion.

The State charged Mr. Bland in two separate cases with aggravated battery with intention to cause great bodily harm and aggravated battery with a deadly weapon. See § 784.045(l)(a)(l), (l)(a)(2), Fla. Stat. (2011). He entered a negotiated plea to the first charge in exchange for the dismissal of the second charge. He agreed to a sentence of 52.5 months in prison, followed by four years’ probation. The trial court accepted Mr. Bland’s plea as freely and voluntarily made and sentenced him according to the plea agreement.

Mr. Bland filed a pro se motion to withdraw his plea after sentencing. See Fla. R. Crim. P. 3.170(Z). He asked the trial court to appoint conflict-free counsel and allow him to withdraw his plea because the plea was involuntary. The trial court denied the motion, finding that it was insufficient and conclusory. The trial court noted that the motion “fails to meet the requirements of rule 3.170(Z) by failing to allege a legally enumerated ground which sets forth any factual basis to support his conclusory allegations.”

Mr. Bland’s motion is not conclusory. He alleged that before he entered the negotiated plea, his counsel told a defense ■witness that the State was going to drop one of the cases. Allegedly, counsel withheld this information from Mr. Bland. Mr. Bland asserts that had he known, he would not have entered a plea in exchange for the State nolle-prossing a charge that it had already decided to drop. If true, Mr. Bland may be entitled to relief.

The trial court erred in dismissing the motion as insufficient. We reverse and remand for an evidentiary hearing, with appointed conflict-free counsel, on the motion to withdraw the plea. See Smith v. State, 849 So.2d 485, 485-86 (Fla. 2d DCA 2003) (“An indigent defendant has the right to court-appointed counsel to assist in filing a rule 3.170(Z) motion.”).

Reversed and remanded with directions.

NORTHCUTT and SLEET, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Venita L. OLSON, as personal representative of the Estate of Claire W. Olson, deceased, Appellant, v. FLORIDA LIVING OPTIONS, INC.; Second Florida Living Options, LLC; and Vernon J. Zeger (as to Hawthorne Health & Rehabilitation Center of Brandon), Appellees.
    No. 2D15-5687.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.

      Megan L. Gisclar, Isaac R. Ruiz-Carus, and Lydia D. Wardell of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Donna J. Fudge, Connolly C. McArthur, and Rebecca O’Dell Townsend of Fudge & McArthur, P.A., St. Petersburg, for Appel-lees.
   CASANUEVA, Judge.

Venita Olson, as personal representative of the Estate of Claire Olson, appeals a nonfinal order granting a motion to compel arbitration of an action filed against appel-lees Second Florida Living Options (the SNF), a skilled nursing facility doing business as Hawthorne Health and Rehabilitation; parent company Florida Living Options; and administrator Vernon Zeger (collectively the SNF defendants). The Estate filed an action against the SNF defendants alleging various claims of negligence and breach of duty during Mr. Olson’s stay at the SNF. The SNF defendants sought to compel arbitration based on an arbitration agreement signed when Mr. Olson became a resident of Hawthorne Inn of Brandon (the ALF), an assisted living facility located in the same retirement community, Hawthorne Village. Because we conclude that the claims raised by the Estate in its action against the SNF defendants are not within the scope of the arbitration agreement, we reverse.

I. FACTS AND PROCEDURAL HISTORY

On or about January 13, 2015, the Estate filed suit against the SNF defendants, alleging that Mr. Olson sustained injuries during his residency at the SNF. In response to the complaint, the SNF defendants filed a motion to compel arbitration, relying on an arbitration agreement that was entered into when Mr. Olson was admitted to the ALF on March 13, 2013.

The arbitration agreement states that it is made

by and between the Parties, Resident Claire Olson ... and the Facility Hawthorne Inn of Brandon, its management, affiliates, subsidiaries, joint ventures and joint venture partners, employers, employees, owners, officers, directors, administrators, partners, members and incorporators, and all other persons natural or corporate in privity with them, (hereafter referred to collectively as “Facility”), [and] is an Agreement intended to require that Disputes (as defined below) be resolved by binding Arbitration.

Paragraph II of the arbitration agreement defines “Disputes” as follows:

This Arbitration Agreement shall apply to and include within its scope any and all claims or controversies arising out of or in any way relating to this Agreement, the Admission Agreement or any of the Resident’s stays at this Facility, including, but not limited to, any claims for breach of fiduciary duty, fraud or misrepresentation, common law or statutory negligence, gross negligence, malpractice or any other claims based on any departure from accepted standards of medical or nursing care (including any personal injury or wrongful death claims) and any claims involving breach of contract, payment, non-payment, or refund for services rendered to the Resident by the Facility (referred to collectively herein as “Disputes”).

The Admission Agreement referenced above is a lease agreement between Mr. Olson and the ALF, entered into on March 13, 2013, contemporaneously with the arbitration agreement.

Paragraph II goes on to state:

It is further contemplated between the Resident and the Facility that the Resident may be transferred to and from the facility during the course of this residency and may be readmitted to the Facility after discharge. As such it is understood and intended that this Arbitration Agreement applies to this and all future admissions by the Resident to the facility-

The SNF defendants presented evidence of their affiliation with the ALF as part of the same retirement community. For example, Vernon Zeger is the administrator of both the SNF and the ALF, and Florida Living Options is the sole member of both the SNF and the ALF. However, it was undisputed that the ALF and the SNF are separate facilities with separate admissions procedures.

After an evidentiary hearing, the trial court granted the motion to compel arbitration, relying in large part on the future admission language in paragraph II of the arbitration agreement. The trial court found that the arbitration agreement specifically “applies to the then-current and all future admissions to the facility,” and the trial court rejected any contention “that the absence of a separate, standalone arbitration agreement for Mr. Olson’s subsequent admission to the skilled nursing facility requires denial” of the motion to compel.

II. LAW AND ANALYSIS

In determining whether to grant a motion to compel arbitration, there are three elements the court must consider: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); see also Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 398 (Fla.2005). “The intent of the parties to a contract, as manifested in the plain language of the arbitration provision and contract itself, determines whether a dispute is subject to arbitration. Courts generally favor such provisions, and will try to resolve an ambiguity in an arbitration provision in favor of arbitration.” Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013) (citation omitted).

A. Parties to the arbitration agreement

In this case, the Estate challenged the first and second Seifert elements, arguing that the arbitration agreement signed when Mr. Olson entered the ALF cannot be utilized by the SNF defendants to force arbitration of the claims raised in this lawsuit. As a general rule, “a non-signatory to a contract containing an arbitration agreement cannot compel a signatory to submit to arbitration.” Allscripts Healthcare Sols., Inc. v. Pain Clinic of Nw. Fla., Inc., 158 So.3d 644, 646 (Fla. 3d DCA 2014) (quoting Rolls-Royce PLC v. Royal Caribbean Cruises LTD., 960 So.2d 768, 770 (Fla. 3d DCA 2007)). However, a nonsignatory may invoke an arbitration provision where the nonsignatory falls within an identified class of persons expressly intended to benefit from the arbitration agreement, i.e., a third-party beneficiary. Henderson v. Idowu, 828 So.2d 451, 452-53 (Fla. 4th DCA 2002).

In Henderson, Idowu signed an employment agreement which contained an agreement to submit to arbitration all claims and disputes related in any way to his employment or termination of his employment with Tenet (the parent company of his employer FMC) or its employees. Id. at 452. Though appellant was a nonsigna-tory to the arbitration agreement, she was deemed to be entitled to its benefits as a third-party beneficiary and thus entitled to invoke the arbitration provision.

The arbitration agreement here, although between [Idowu] and FMC, was expressly intended to benefit an identified class of persons, i.e., an employee of Tenet or one of its affiliated companies or entities. Appellant fell within the identified class and, thus, she may benefit from the agreement as a third-party beneficiary.

Id. at 452-53 (footnote omitted). The court further concluded that the claims asserted by Idowu were “based upon the precise matter which was agreed to be submitted to arbitration.” Id. at 453.

In this case, the arbitration agreement provides as follows regarding third-party beneficiaries:

The Parties intend that this Agreement shall inure to the direct benefit of and bind the Facility, its owner(s), affiliates, subsidiary companies, landlords, managers, officers, employees, consultants, contract service providers, agents, attorneys, representatives, or other stakeholders ....

The SNF defendants argue that they presented competent, substantial evidence that they are intended third-party beneficiaries of the arbitration agreement based on their relationship with the ALF and thus, even if not named parties to the arbitration agreement, they are intended direct beneficiaries.

Assuming without deciding that the SNF defendants fall within a class of intended third-party beneficiaries to the arbitration agreement, our analysis does not stop there. We must consider whether the claims asserted against the SNF defendants in this cause of action are within the scope of the arbitration agreement, i.e., matters which were agreed to be submitted to arbitration. See id. It is on this point that the SNF defendants cannot prevail.

B. Scope of the arbitration agreement

Whether or not an arbitrable issue exists is determined by the scope of the particular arbitration provision, and determination of the scope “requires consideration of the relationship between the contract and the claim at issue.” Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 759 (Fla. 2d DCA 2005). Where an arbitration provision contains the words “relating to” rather than just “arising from” or “arising out of’ in reference to the claims covered, courts will construe the arbitration provision as having a broader scope. Id. “The addition of the words ‘relating to’ broadens the scope of an arbitration provision to include those claims that are described as having a ‘significant relationship’ to the contract....” Jackson, 108 So.3d at 593.

[A] significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship.

Id. (citations omitted).

In CarePlus Health Plans, Inc. v. Interamerican Medical Center Group, LLC, 124 So.3d 968 (Fla. 3d DCA 2013), Care-Plus and Interamerican entered into a contract in 2004 requiring payment of certain amounts from CarePlus to Interamerican; that contract did not contain an arbitration provision. In 2010, Interamerican entered into a separate agreement with Humana. Included within the “Humana” designation were “affiliates” of the named Humana entities. Id. at 970. Unlike the 2004 contract, the 2010 contract contained an arbitration clause; the clause was broad in scope and applied retroactively. Id. at 972.

CarePlus, asserting that it was an affiliate of Humana, sought to compel arbitration of an action filed by Interamerican alleging breach of the 2004 contract. The Third District rejected CarePlus’s argument that it was entitled to enforce the 2010 arbitration provision against Interam-erican. First, the court noted that the 2004 contract allowed amendment only by writing that made specific reference to the 2004 contract, which the Humana contract did not do. Additionally, the court found that CarePlus failed to establish the existence of an arbitrable issue, noting: “[E]ven in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Id. at 972 (quoting Seifert, 750 So.2d at 638). The court concluded that CarePlus was unable to satisfy this prong,

as there is no nexus between the 2010 Agreement and the claims in dispute. The dispute revolves around the terms, and the alleged breach, of the 2004 Agreement. In attempting to establish the claims asserted in its complaint, In-teramerican need not rely upon, refer to, construe or introduce any portion of the 2010 Agreement.

Id. at 973.

In Sunsplash Events Inc. v. Robles, 150 So.3d 1194 (Fla. 4th DCA 2014), Robles entered into an employment agreement with Sunsplash. The employment agreement included a noncompete provision, prohibited Robles from owning a competing business, and required arbitration of “all differences, claims or matters of dispute relating to the performance of duties and/or benefits arising between the Parties to this Agreement contained herein.” Contemporaneous with executing the employment agreement, the parties entered into a bill of sale agreement whereby Robles sold his current business assets to Sunsplash. The bill of sale agreement required that Robles cease and desist the operation of his business. That agreement contained no arbitration provision. Id. at 1195-96.

The Fourth District found that the arbitration provision was broad and concluded that the bill of sale claims asserted in Robles’ complaint fell within the scope of the employment agreement’s arbitration provision. The complaint alleged that Sunsplash failed to pay Robles under both the employment agreement and the bill of sale agreement and that Robles was fraudulently induced into both agreements. The court noted that “resolution of the plaintiffs claims relating to the bill of sale agreement requires the construction and consideration of duties arising under the employment agreement,” such as the cease and desist obligation in the bill of sale agreement and the noncompete obligations in the employment agreement. Id. at 1198. The court found that the claims relating to the bill of sale agreement “have a significant relationship to the claims relating to the employment agreement” and “are inextricably intertwined with the transaction from which the employment agreement emanated and the employment agreement itself.” Id.

Turning to the language of the arbitration agreement at issue here, the arbitration agreement states that it “applies] to and include[s] within its scope any and all claims or controversies arising out of or in any way relating to this Agreement, the Admission Agreement or any of the Resident’s stays at this Facility.” The agreement is broad in scope in that it includes the language “arising out of or in any way relating to.” However, the scope covers claims and controversies arising out of or relating to the arbitration agreement, the ALF Admission Agreement, or any of Mr. Olson’s stays at “this Facility.” The facility named in both the arbitration agreement and the Admission Agreement is Hawthorne Inn of Brandon, the ALF.

The Admission Agreement is the residency agreement whereby the ALF leased a suite to Mr. Olson. It makes reference to and was signed contemporaneously with the arbitration agreement. By contrast, a separate “Contract” was entered into when Mr. Olson was later admitted to the SNF on March 19, 2013, and that Contract neither includes nor references an arbitration provision.

There is no dispute that the claims alleged in the complaint are based on Mr. Olson’s stay at the SNF, not the ALF. The SNF defendants do not argue, and there are no facts in our record to suggest, that the claims alleged in the complaint against the SNF defendants have any nexus to the ALF Admission Agreement or Mr. Olson’s stay at the ALF. Under these facts, we must reject the SNF defendants’ argument that the scope of disputes covered by the arbitration agreement includes claims relating not only to Mr. Olson’s stay at the ALF but also to his stay at any of the ALF’s unnamed affiliates.

Finally, we note that the language applying the arbitration agreement to “this and all future admissions by the Resident to the facility,” relied on by the trial court in granting the motion, is inapplicable. The claims here do not involve a readmission to the ALF but an admission to the SNF, which the parties agree is a separate facility.

III. CONCLUSION

The resolution of the claims asserted in the complaint does not require either reference to, or construction of, a portion of the ALF Admission Agreement, and the SNF defendants have not claimed that such a link exists. The claims asserted by the Estate arise out of and are related to Mr. Olson’s stay at the SNF and have no nexus to the ALF Admission Agreement or Mr. Olson’s stay at the ALF. Accordingly, we conclude that the Estate’s claims against the SNF defendants do not fall within the scope of the arbitration agreement, and the trial court erred in granting the motion to compel arbitration.

Reversed and remanded for further proceedings.

VILLANTI, C.J., and LUCAS, J., Concur.

      . The court declined to reach the issue of whether CarePlus, as an "affiliate'' of Huma-na, and therefore a member of the identified class of parties to the 2010 agreement, "can seek to compel arbitration of the 2004 Agreement by way of the 2010 Agreement to which it was neither a party nor a signatory.” Careplus Health Plans, 124 So.3d at 972 n. 1.

      . The SNF defendants did not argue below that the dispute over arbitrability should be resolved by arbitration rather than the court.


text:
    Yogendra S. DHANIK and Bharti Y. Dhanik, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Luminent Mortgage Trust 2007-2, Appellee.
    No. 2D13-5292.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.

      Michael E. Rodriguez of Foreclosure Defense Law Firm, P.L., Tampa, for Appellants.
    Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.
   LaROSE, Judge.

Yogendra and Bharti Dhanik appeal a final judgment of foreclosure. The Dhaniks argue, and HSBC Bank USA concedes, that the bank failed to present sufficient trial evidence of standing at the time it filed the complaint.

“This court reviews the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.” Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1040 (Fla. 4th DCA 2015).

“A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed.” Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015) (quoting Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014)). “If the plaintiff is not the payee of the original note, the plaintiff must also prove that the original note contains an [ejndorsement in favor of the plaintiff (special [ejndorsement) or an [ejn-dorsement in blank.” Id. To establish standing, the endorsement “must have been made prior to the filing of the lawsuit.” Id.

Although the bank attached a copy of the mortgage and note to the complaint, those copies lacked any endorsement to the bank or a blank endorsement. The note introduced at trial contained a blank endorsement. However, the bank offered no evidence as to when the blank endorsement was placed on the note. Thus, there was no evidence before the trial court that the bank had standing at the time the foreclosure complaint was filed. “The bank’s failure to prove a prima facie case warrants dismissal.” May v. PHH Mortg. Corp., 150 So.3d 247, 249 (Fla. 2d DCA 2014).

As in Russell and May, we reverse and remand for the trial court to enter an order of involuntary dismissal based on the bank’s lack of standing at the time it filed the complaint.

Reversed and remanded with instructions.

NORTHCUTT and SLEET, JJ„ Concur.