author: ROTHENBERG, C.J.

text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Vincent DIAZ, et al., Appellees.
    No. 3D16-1927
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017.

      Robertson, Anschutz & Schneid, PL, and Robert R, Edwards, David Rosenberg, and Jarrett Cooper (Boca Raton), for appellant.
    Carrera & Amador, P.A., and Juan M. Carrera, for appellee AG 07 Investments, LLC..
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Nationstar Mortgage, LLC appeals from an order denying its amended motion to vacate the final judgment of foreclosure as void pursuant to Florida Rulé of Civil Procedure 1.540(b)(4) and/or motion for an evidentiary hearing on its prior motion to vacate pursuant to rule 1.640(b)(1). Be-causé the final judgment of foreclosure is not “void,” we affirm.

' FACTS

. Nationstar filed a foreclosure action against Vincent Diaz (“Vincent”), who executed both the mortgage and note, and Deisel Diaz (“Deisel”), who executed the mortgage. The initial and amended complaints alleged that the amount of principal due and owing on the note was $428,128.73,. but the complaints did not reference nor plead as due and owing the amount of $319,496.36, based on a streamline modification of the note and/or mortgage. .

On August 10, 2015, Deisel filed an un-sworn and unverified answer and affirmative defenses to the amended complaint. Vincent, however, did not defend the foreclosure action in any respect.

The following day, August 11, 2015, Na-tionstar filed a motion for an order to show cause to be issued for the entry of a final judgment of foreclosure pursuant to section 702.10(1), Florida Statutes (2015), which sets forth a procedure to expedite foreclosure cases that are not being materially defended. The proposed final judgment attached to the motion for the order to show cause provided that the amount due and owing under the note was $428,128.73, but does not reference a streamline modification of that amount, or that Nationstar was due an additional $319,496.36. Therefore, the final judgment of foreclosure was consistent with Nations-tar’s initial and amended complaints. Thereafter, the trial court issued the order to show cause, attaching Nationstar’s proposed final judgment, and setting a hearing for October 7, 2015.

On August 25, 2015, prior to the defendants being served with the order to show cause, the trial court entered the final judgment of foreclosure attached to the order to show cause.' The parties did not move for rehearing or appeal the final judgment of foreclosure. Instead, Nations-tar moved to cancel the scheduled hearing on the order to show cause, asserting that a final judgment’ of foreclosure had been entered and that the partiés would not be prejudiced by the cancellation of the hearing.

A day prior to the scheduled October 7th hearing on the order to show cause, Nationstar filed a motion to amend the final judgment of foreclosure nunc pro tunc by interlineation pursuant to rule 1.540(a) (“motion to amend”), asserting that when preparing for the foreclosure sale, it discovered that the final judgment mistakenly omitted the $319,496.36 streamline modification, and therefore, the total amount due and owing to Nationstar was actually $834,010.90.

As the trial court had not ruled on the motion to cancel the hearing on the order to show cause, the parties appeared at the scheduled October 7th hearing. However, the trial court did not hear argument relating to the order to show cause because Deisel’s counsel informed the trial court that his client had conceded and consented to the final judgment of foreclosure and did not oppose the entry of the final judgment.

Nationstar withdrew its motion to amend the final judgment on October 21, 2015, and on that same day, Nationstar filed a motion to vacate the final judgment of foreclosure pursuant to rule 1.540(b)(1) based on mistake, inadvertence, or excusable neglect, asserting that, after the trial court entered the final judgment, Nations-tar discovered it had not included the streamline mortgage in the final judgment executed by the trial court. In December 2015, following a non-evidentiary hearing, the trial court denied the motion to vacate. Nationstar did not file a motion for rehearing or appeal the denial of its rule 1.540(b)(1) motion to vacate.

Nationstar’s attempt to vacate the final judgment of foreclosure continued. In December 2015, Nationstar filed another motion to vacate the final judgment, but this time, the motion claimed that the final judgment was void pursuant to Florida Rule of Civil Procedure 1.540(b)(4), and requested an evidentiary hearing on its prior motion to vacate filed pursuant to rule 1.540(b)(1), which had been previously denied by the trial court. Although Na-tionstar’s second motion to vacate the final judgment was still pending, Nationstar did not seek a stay of the foreclosure sale, and the foreclosed property was sold at a foreclosure sale to AG 07 Investments, LLC, for $533,900. AG 07 Investments is not affiliated with the foreclosing lender or foreclosed owner, and at the time of the foreclosure sale, there was no lis pendens filed in the official records regarding Na-tionstar’s rule 1.540(b)(4) motion to vacate.

Nationstar’s rule 1.540(b)(4) motion to vacate arguments were premised not on a violation of Nationstar’s rights, but rather upon alleged violations of the defendants’ rights. For example, Nationstar argued that the trial court lacked authority to enter the final judgment of foreclosure pursuant to section 702.10 because an answer and affirmative defenses had been filed, and that the defendants’ (as opposed to Nationstar’s) due process rights were denied because the final judgment of foreclosure was entered prior to the scheduled October 7th hearing on the order to show cause. Thus, Nationstar argued that the final judgment was void. Nationstar’s counsel, however, acknowledged at the October 7, 2015 hearing, that Deisel’s counsel had informed the trial court that Deisel had consented to, conceded to, and did not oppose the entry of the final judgment, and that Deisel was now also consenting to the entry of the amended final judgment and did not oppose Nationstar’s rule 1.540(b)(4) motion to vacate. The trial court continued the hearing to June 24, 2016.

Prior to the continued hearing, Nations-tar filed an amended motion to vacate the judgment as void pursuant to rule 1.540(b)(4) and/or a motion for an eviden-tiary hearing on its prior motion to vacate pursuant to rule 1.540(b)(1) (“amended rule 1.540(b)(4) motion to vacate”), asserting that AG 07 Investments was opposing the amended rule 1.540(b)(4) motion to vacate. Nationstar argued that any party affected by a void judgment could challenge the void judgment; Nationstar has an interest in vacating the allegedly void final judgment; and Nationstar discovered that it mistakenly did not include the streamline modification in the final judgment when preparing for the order to show cause hearing.

At the June 24, 2016 hearing on the amended rule 1.540(b)(4) motion to vacate, the trial court noted that the defendants were not claiming a due process violation, and that Nationstar waived its due process rights by submitting the proposed final judgment with the order to show cause. The trial court denied Nationstar’s amended rule 1.540(b)(4) motion to vacate and/or motion for an evidentiary hearing. Na-tionstar’s appeal followed.

ANALYSIS

Nationstar contends that the final judgment of foreclosure is void because it was entered without notice and an opportunity to be heard, and therefore, the parties’, including Nationstar’s, due process rights were violated. As such, the trial court erred, as a matter of law, by denying Nationstar’s amended rule 1.540(b)(4) motion to vacate. Based on the facts of this case, we conclude that the parties’ due process rights were not violated, and therefore, the trial court did not err by denying Nationstar’s amended rule 1.540(b)(4) motion to vacate as the final judgment was not void.

A trial court’s ruling on a rule 1.540(b) motion for relief from judgment is usually reviewed on appeal for an abuse of discretion. See Epstein v. Bank of Am., 162 So.3d 159, 161 (Fla. 4th DCA 2015). However, “[a] decision whether or not to vacate a void judgment is not within the ambit of a trial court’s discretion; if a judgment previously entered is void, the trial court must vacate the judgment.” Wiggins v. Tigrent, Inc., 147 So.3d 76, 81 (Fla. 2d DCA 2014); see also Horton v. Rodriguez Espaillat y Asociados, 926 So.2d 436, 437 (Fla. 3d DCA 2006) (holding that the trial court must vacate a void judgment). As a trial court’s ruling on whether a judgment is void presents a question of law, an appellate court reviews the trial court’s ruling de novo. See Vercosa v. Fields, 174 So.3d 550, 552 (Fla. 4th DCA 2015) (“Whether a judgment is void is a question of law reviewed de novo.”).

“A void judgment is so defective that it is deemed never to have had legal force and effect.” Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007). Generally, a judgment is void if: (1) the trial court lacks subject matter jurisdiction; (2) the trial court lacks personal jurisdiction over the party; or (3) if, in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard. Tannenbaum v. Shea, 133 So.3d 1056, 1061 (Fla. 4th DCA 2014).

In the instant case, Nationstar argues that the parties’, including its own, due process guarantees of notice and an opportunity to be heard were violated because the trial court entered the final judgment of foreclosure prior to the defendants being served with the order to show cause and prior to a hearing on the order to show cause. In making this argument, Na-tionstar, however, ignores that, after the final judgment was entered, Deisel’s counsel informed the trial court that Deisel consented to and did not oppose the entry of the final judgment; Vincent never defended the foreclosure action in any manner; the final judgment entered by the trial court was the exact final judgment proposed by Nationstar; and the final judgment was consistent-with Nationstar’s. amended complaint because the amended complaint only asserted - that the amount due and owing on the note was $428,128.73 and did'.not in any respect reference the streamline modification, or that Nationstar was also due an additional $319,496.36. Under these circumstances, we conclude that the trial court -properly denied Nations-tar’s amended rule 1.540(b)(4) motion to vacate the judgment as void. Accordingly, we affirm the order under review.

Although we’have concluded that the final judgment of foreclosure is not void, we - nonetheless . address section 702.036, Florida Statutes (2016),- titled “Finality of mortgage foreclosure judgment,” which protects a. purchaser of foreclosed property under certain circumstances and in a limited manner, .when a party challenges the validity of a final judgment of foreclosure of a mortgage. Specifically, section 702.036(l)(a) provides:

(l)(a) In any action or proceeding in which a party seeks to set aside, invalidate,- or challenge the validity of a final judgment of foreclosure of a.mortgage- ,.., the court shall treat such request solely as a claim for monetary damages and may not grant relief that adversely affects the quality or character of the title to the property, if:
1. The party seeking relief from the final judgment- of foreclosure of the mortgage was properly served in the foreclosure lawsuit as provided in chapter 48 or chapter 49,
2. The final judgment of foreclosure of the mortgage was entered as to the property.
3. All applicable appeals periods have , run as to the final judgment of foreclosure of the mortgage with no appeals having been taken or any appeals having been finally resolved.
4. The property has been acquired for value, by a person not affiliated with the foreclosing lender or the foreclosed owner, at’ a time in which no lis pendens regarding the suit to set aside, invalidate, or challenge the foreclosure appears in the official records of the county where the property was located.

In the instant case, it is undisputed that all parties were properly served, the final judgment of foreclosure was entered as to the property, all applicable appeal periods have run, no appeals were taken, and' the property was acquired for value by a person not affiliated with the foreclosing lender or the foreclosed owner. Therefore, under the circumstances, the trial court, at best, could* have treated Nationstar’s request to vacate the final judgment of foreclosure as a claim for monetary relief.

Affirmed.

      . Finding no abuse of discretion, we affirm the denial of the motion for an evidentiary hearing on prior motion to vacate pursuant to rule 1.540(b)(1) without further discussion.


source: Caselaw Access Project

author: SUAREZ, J. LUCK, J.,

license: Public Domain

text:
    Jose Antonio ORTIZ, Appellant, v. Samantha ÓRTIZ, Appellee,
    No. 3D16-1772
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017

      The Bravo Law Firm, PLLC and Jason Bravo; Garcia-Menocal Irías & Pastori LLP and Jorge Garcia-Menocal, for appellant.
    Gallardo Law Office, P.A. and Natalia Timmons and Leisy Jimenez, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.
   SUAREZ, J.

Jose Ortiz, former husband, appeals from an order denying his motion for reconsideration of the trial court’s award of the former wife’s statutory pre-judgment attorney’s fees. We affirm in part and reverse in part and remand for further proceedings.

The former husband asserts on appeal that the Final Judgment of Dissolution of Marriage erroneously awarded the former wife prejudgment attorney’s fees. Prior to the final dissolution hearing, the parties entered into a Mediated Settlement Agreement (Partial Agreement) solely resolving issues concerning the minor child. The Agreement specifically stated, “Parties hereby agree to reserve on any issues not specifically addressed herein.” It also stated “Each party shall be responsible for his/her own attorney’s fees and/or costs associated with the present litigation.” The former husband argued for the first time during his motion for reconsideration below that pursuant to that language the former wife had waived any claim to any attorney fees for the entire litigation. The trial court correctly rejected this argument. Parties to a marriage cannot contract away or waive temporary support and attorney’s fees before a final judgment is entered. Belcher v. Belcher, 271 So.2d 7 (Fla. 1972); see also Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005); Schecter v. Schecter, 109 So.3d 833 (Fla. 3d DCA 2013). We therefore affirm the trial court’s order that the former wife did not waive her claim for statutory pre-dissolution attorney’s fees

The next question is whether the former wife is entitled to such fees and, if so, the amount. The standard for the trial court’s award of attorney’s fees in a dissolution action first depends upon the financial need of the requesting party and the financial ability to pay of the other party. Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005); § 61.16, Fla. Stat. (2016). After making that determination, the trial court then must determine whether the fees requested are reasonable. In determining the reasonableness of attorney’s fee, courts should consider the following factors:

(1) the time and labor required, the novelty and difficulty of the issues, and the legal skill required; (2) the likelihood that the representation will preclude other employment by the lawyer; (B) the customary fee; (4) the result obtained; (5) the time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyers; and (8) whether the fee is fixed or contingent.

Campbell v. Campbell, 46 So.3d 1221, 1222-23 (Fla. 4th DCA 2010); Schwartz v. Schwartz, 965 So.2d 832, 833-34 (Fla. 1st DCA 2007). “Where there is nothing in the trial court’s order that allows the appellate court to discern whether any of the above factors were considered in determining a reasonable attorney’s fee, a fee award simply taking the amount charged by the attorney and determining it to be reasonable is improper and an abuse of discretion.” Campbell, 46 So.3d at 1223. “[T]he trial court must make specific factual findings— either at the hearing or in the written judgment—supporting its determination of entitlement to an award of attorney’s fees.” Perez v. Perez, 100 So.3d 769, 771 (Fla. 2d DCA 2012). And “if the trial court determines that there is an entitlement to fees, the court must ‘set forth findings regarding the factors that justify the specific amount awarded.’” Id.; Rowe v. Rodriguez-Schmidt, 128 So.3d 158, 159 (Fla. 2d DCA 2013).

The absence of factual findings in this record as to the parties’ need' and ability to pay, and reasonableness of fees makes it impossible for us to review the propriety of the trial court’s award of fees. Therefore, we remand solely for the trial court to apply the necessary analysis and make the required written findings of the parties’ needs, ability to pay, reasonableness of fees, and factors justifying the attorney’s fees requested.

Affirmed in part, reversed and remanded in part.

ROTHENBERG, C.J., concurs.

LUCK, J.,

concurring in part and dissenting in part:

The majority opinion (1) affirms the final judgment of dissolution because the “[p]ar-tiés to a marriage cannot contract away or waive temporary support and attorney’s fees before a final judgment is entered,” and (2) reverses and remands because “[t]he absence of factual findings in this record as to the parties’ need and ability to pay, and the reasonableness of fees makes it impossible for us to review the propriety of the trial court’s award of fees.” I concur in the first conclusion, but respectfully dissent from the second one because it is contrary to our precedent and inconsistent with how we review alleged errors where the appellant does not provide us with a sufficient record.

“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).

Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived .the law as to require reversal. The trial court should have been af.firmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

Id.

Here, the majority opinion correctly explains that the “trial court must make specific factual findings—either at the hearing or in the written judgment—supporting its determination of entitlement to an award of attorney’s fees.” Maj. Op. at 733 (emphasis added) (quoting Perez v. Perez, 100 So.3d 769, 771 (Fla. 2d DCA 2012)). The appellant,, the former husband, however, did not include a transcript of the final judgment hearing where the attorney’s fees were awarded as part of the record in this case. Without a transcript, as in Applegate, we cannot resolve whether the trial court made the factual findings it was required .to make at the. hearing. From the lack of transcript, the majority opinion presumes the trial court did not make the factual findings and remands'for it do so. Because we must presume the correctness of the trial court’s order, and it is the appellant’s burden to demonstrate reversible error, I would do as Applegate commands and affirm.

Our precedent, too, seems to dictate that we affirm. In E & A Produce Corp. v. Superior Garlic International, Inc., 864 So.2d 449 (Fla. 3d DCA 2003), as here, the appellant “claim[ed] that none of the orders on appeal state the requisite findings for an award of .attorney’s fees, and because no statute was cited: in the orders or judgment,- it is unclear whether 'the trial court awarded attorney’s fees pursuant to sections 772.11 or 57.105.” Id., at 451-52. “We are unable,” we explained, “to.determine under what grounds-the attorneys’ fees here were awarded and whether or not the trial court made the requisite findings because there is no transcript of the hearing on the entitlement to attorneys’ fees.” Id. at 452. “Without a transcript,” we continued, “the record is inadequate for us to review [the appellant’s] contention, and we cannot find that the trial court abused its discretion in making the award.” Id. Citing Applegate, we concluded the “[t]rial court’s orders and judgment must therefore stand.” Id.

To me, .there is no meaningful distinction between this case and E & A Produce. As long as the trial court is permitted to make its attorney’s fees findings on the record at the hearing, and the appellant does not provide us with a transcript of the hearing, we should not presume the trial court failed to do its job. Because the former husband has not shown the trial court committed reversible error, I would affirm the final judgment of dissolution is all respects.

      . We note that former husband’s counsel conceded in his motion for reconsideration of the attorney's fee issue that he failed to raise the issue or object to the wife's proposed attorney’s fees during the final dissolution hearing.

      . But see Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 940 (Fla. 4th DCA 1997) (“In the instant case, the lack of a transcript does not hinder this court's ability to review the trial court's order, because on its face it fails to satisfy Rowe by not making any specific findings as to hourly rate or number of hours reasonably expended. The order merely provides that, ‘The Court awards a lump sum for reasonable attorney’s fees and costs in the total amount of $3,200.00.’ ”); Fowler v. First Fed. Sav. & Loan Ass'n of Defuniak Springs, 643 So.2d 30, 33 (Fla. 1st DCA 1994) ("While the award of attorney fees may very well have been based on competent, substantial evidence, the lack of a transcript and the absence of any specific findings in the final judgment supporting the award, compels reversal. Therefore, on remand, the trial judge should make the required findings, or in the alternative, hold an evidentiary hearing, (citation omitted)); Macarty v. Macarty, 29 So.3d 434, 435 (Fla. 2d DCA 2010) ("[A]n award of attorney’s fees without adequate findings justifying- the amount of thé award is reversible even where the appellant has provided an inadequate record of the trial court proceedings. Accordingly, we remand for the trial court to make the necessary written findings required by [Rowe].” (quotation omitted; alteration in original)). In Macarty, for the third time, the Second District certified this question of great public importance:
      IS AN ORDER AWARDING ATTORNEY’S FEES PURSUANT TO FLORIDA PATIENT'S COMPENSATION FUND V. ROWE, 472 So,2d 1145 (Fla. 1985), THAT LACKS THE REQUIRED FINDINGS REGARDING THE NUMBER OF HOURS REASONABLY EXPENDED AND THE REASONABLENESS OF THE HOURLY RATE CHARGED FUNDAMENTALLY ER.RONEOUS ON ITS FACE, THUS REQUIRING REVERSAL, EVEN WHEN THE'APPELLATE RECORD DOES NOT INCLUDE A TRANSCRIPT OR APPROVED STATEMENT OF THE PROCEEDINGS BELOW? Id.


author: LINDSEY, J.

text:
    Clara DIAZ, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D16-613
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017.

      Duboff Law Firm and Joshua A. Black-sten, for appellant.
    Methe & Rockenbach, P.A., and Kara Berard Rockenbach and Kristi Bergemann Rothell (West Palm Beach), for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   LINDSEY, J.

This is an appeal by an insured homeowner from a final judgment entered following a jury verdict in favor of Appellee, Citizens Property Insurance Corporation (“Citizens”). For the reasons set forth below, we affirm in part and dismiss in part.

At trial, Appellant, Clara Diaz, testified that she woke up on August 20, 2011 and put her feet on the floor into water. She further testified that a leaking water heater was the source of that water. Ms. Diaz filed a claim with Citizens for damage to her home resulting therefrom. Citizens determined that there was coverage and paid a total of $5,307.99 on the claim. Unhappy with Citizens’ payment, Ms. Diaz sued Citizens for breach of insurance contract. The jury found that Citizens paid Ms. Diaz the reasonable costs to repair the direct physical loss to her property caused by the August 20, 2011 water leak. The jury declined to award Ms. Diaz any money for the additional damages she was claiming as a result of the covered loss.

Thereafter, the trial court entered a final judgment, in favor of Citizens and against Ms. Diaz, awarding costs and attorney’s fees pursuant to section 768.79 of the Florida Statutes and rule 1.442 of the Florida Rules of Civil Procedure in an amount to be determined at a later time. The final judgment specifically ordered that Ms. Diaz would “take nothing by this action” and that Citizens “shall go hence without delay.” This language constitutes the requisite finality necessary to invoke this Court’s jurisdiction. See, e.g., Stanberry v. Escambia County, 813 So.2d 278, 280 (Fla. 1st DCA 2002) (citing Monticello Ins. Co. v. Thompson, 743 So.2d 1215, 1215-16 (Fla. 1st DCA 1999) (holding that even an order that “establishes entitlement to a judgment [is not final unless it] ... actually enters or renders a judgment ... or includes specific ‘language of finality" necessary for a judgment ... to be considered ‘final’ for purposes of an appeal.”)). See also HSBC Bank USA, N.A. v. Buset, 216 So.3d 701 (Fla. 3d DCA 2017) (declining to dismiss entire appeal on grounds that portion of final judgment reserving jurisdiction to award prevailing party fees rendered order on appeal non-final and therefore premature).

With regard to the issues raised on appeal relating to the trial and the jury verdict, we find no error and affirm.

In contrast, we are without jurisdiction to address the portion of the appeal relating to attorney’s fees. This is so because no amount has been fixed by the trial court and the part of the final judgment that finds entitlement thereto is not ripe for our review. See Kling Corp. v. Hola Networks Corp., 127 So.3d 833 (Fla. 3d DCA 2013) (citing Alexopoulos v. Gordon Hargrove & James, P.A., 109 So.3d 248, 250 (Fla. 4th DCA 2013) (order that merely finds entitlement to attorney’s fees but does not set an amount is non-final and non-appealable); Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005) (“An award of attorneys’ fees does not become final, and, therefore, appealable until the amount is set by the trial court.”); Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997) (stating that an order awarding entitlement to attorney’s fees does not become final until the amount of the fee is set)). “Nor is such an order one of the enumerated appealable non-final orders set forth in Florida Rule of Appellate Procedure 9.130.” Id. (citing Fla. R. App. P. 9.130(a)(3)). Accordingly, because the part of the final judgment finding entitlement to attorney’s fees is non-final and non-appealable, the appeal with respect to attorney’s fees is dismissed without prejudice.

Affirmed in part; dismissed in part.


text:
    Leslie B. NELSON, Petitioner, v. Daniel JUNIOR, etc., et. al., Respondent.
    No. 3D17-2065
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for respondent.
    Before EMAS, LOGUE and LINDSEY, JJ.
   LINDSEY, J.

Leslie Nelson (“Petitioner”) petitions this Court to issue a writ of habeas corpus and order his release from custody on the ground that the State’s failure to file an information within forty days of his arrest entitles him to release on his own recognizance> Following Hurricane Irma, and in accordance with an administrative order iggued by the Florida Supreme Court) In re: Closure of Fla. State Court in Preparation for Hurricane Irma, Order No. AOSC17-46 (Fla. Sup. Ct. Sept. 6, 2017), the trial Court extended the time period by which the State is required to file an information on Nelson, who remains in custody. For the reasons set forth below, we deny the Emergency Petition for Writ of Habe-as Relief.

I.BACKGROUND

Nelson, a Pennsylvania resident, was arrested in Miami Beach, Florida on August 9, 2017. Nelson was charged with four counts: 1) Possession of less than twenty grams of marijuana; 2) Possession of cocaine; 3) Possession of cocaine with intent to sell or deliver; and 4) Possession of marijuana with the intent to sell or deliver.

Courts in Miami-Dade County closed on September 7, 2017 and reopened on September 18, 2017 due to Hurricane Irma. As of September 18, 2017, the State had not filed an information. During a hearing on September 18, 2017, the State requested additional time and explained that due to Hurricane Irma, the crime lab analyzing the drugs at issue was backlogged and unable to complete the requisite analysis by the 40th day. The State also argued that because the 33rd day fell within the window of the Administrative Order, September 18, 2017 no longer constituted the 40th day. In response, Petitioner argued that the Administrative Order was inapplicable because it specified that the extensions apply only when the last day—which they claimed was the 40th day, September 18, 2017—falls within the time extended. Petitioner also argued that even if the State’s reason for failing to file an information constituted good cause, the fact that no information had been filed by the 40th day meant that he was entitled to be released regardless of the reason for delay.

The trial court denied Petitioner’s request for release on his own recognizance, found that the State had provided good cause for its failure to formally charge Petitioner by the 40th day, and allowed the State until September 25, 2017 to file an information. The trial court found good cause based on the storm, “the fact that there was no power to [the crime lab] those facilities” and based on the fact that “the Court system has been shut down basically for the last 10 to 15 days.” The trial court found that “at least under the Supreme Court order that five of [the last ten or eleven days that the facilities were shut down] were covered and actually perhaps seven.”-The trial court intended to grant the State five additional days after the hearing to file an- information. However, because September 23, 2017 falls on a Saturday, the trial court reset it for September 25, 2017.

This Emergency Petition for Writ of Habeas Relief follows.

II. JURISDICTION

This Court has original jurisdiction to issue writs of habeas corpus under Article V, § 4 (b)(3), Fla. Const. and Fla. R. App. P. 9.030(b)(3).

III. ANALYSIS

Rule 8.134 of the Florida Rules of Criminal Procedure, which prescribes the time for filing formal charges, provides:

The state shall file formal charges on defendants in custody by information, or indictment ... within 30 days from the date on which the defendants are arrested or from the date of the service of capiases upon them. If the defendants remain uncharged, the court on the 30th day and with notice to the state shall:
(1) Order that the defendants automatically be released on their own recognizance on the 33rd day unless the state files formal charges by that date; or
(2) If good cause is shown by the state, order that the defendants automatically be released on their own recognizance on the 40th day unless the state files formal charges by that date.
In no event shall any defendants remain in custody beyond 40 days unless they have been formally charged with a crime.

Fla. R. Crim. P. 3.134 (emphasis added). Thus, for purposes of Rule 3.134, the-30th day would have fallen on September 8, 2017, the 33rd day would have fallen on September 11, 2017, and the 40th day would have fallen on September 18, 2017.

However, on September 6, 2017, the Florida Supreme Court issued Administrative Order No. SC17-46 governing the closure of Florida state courts in preparation for Hurricane Irma. The Administrative Order states, in pertinent part, that:

2. Statewide, all time limits prescribed or allowed by rule of procedure, court order, statutes applicable to court proceedings, or otherwise pertaining to court proceedings are extended from the close of business on Thursday, September 7, 2017, until the close of business on Monday, September 11,2017.
4. The extension of time periods under .this order shall apply only when the last . day of those periods falls within the time extended. The suspension of time limits under the speedy trial procedure restores additional days equal to the number stated herein.
5. This Court recognizes that there may be instances where, because of this emergency, these and other time limits applicable to matters in the state courts could not be met even upon application of the periods stated above. If such a claim is made, it shall be resolved by the court in which jurisdiction is vested on a case-by-case basis when a party demonstrates that the lack of compliance with the requisite time periods was directly attributable to this emergency and that equitable remedy is required.

In re: Closure of Fla. State' Courts in Preparation for Hurricane Irma, Order No. AOSC17-46 (Fla. Sup. Ct. Sept. 6, 2017) (emphasis added).

The trial court found good cause resulting from Hurricane Irma related closures. As instructed by the Administrative Order, we - review on a ‘ case-by-case basis the claim that because of this emergency, the time limits could not be met even upon application of the periods stated in the Administrative Order. Here, the State’s inability to comply with the requisite time periods was directly attributable to this emergency, as the court system and crime lab facilities were shut down for’ 11 days as a result of Hurricane Irma. Accordingly, the equitable remedy of an extension of time, as expressly authorized by the Administrative Order, was appropriate. The trial court merely extended the deadline for the State to file an information by five days, excluding the weekend.

IV. CONCLUSION

Accordingly, in light of the Administrative Order and the trial court’s finding of good cause, we deny the Emergency Petition for Writ of Habeas Corpus.

Denied.

      . Although not necessary to our decision, we note that the Florida Supreme Court, in a subsequent Administrative Order, increased the extension of time period from “the close of business on Tuesday, September 5, 2017, until the close of business on Monday, September 18, 2017.'' In re: Emergency Request to Extend Time Periods under all Fla. Rules of Procedure for Miami-Dade County in the Eleventh Judicial Circuit, Order No. AOSC17-71 (Fla. Sup. Ct. Sept. 19, 2017) (emphasis added).


author: PER CURIAM.

text:
    Y.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-825
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    Y.C., a juvenile, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See L.L. v. State, 189 So.3d 252 (Fla. 3d DCA 2016)


author: MORRIS,Judge.

text:
    AHF-BAY FUND, LLC, Appellant, v. CITY OF LARGO, Florida, a municipal corporation, Appellee.
    Case No. 2D14-408
    District Court of Appeal of Florida, Second District.
    Opinion filed September 27, 2017

      Joseph H. Lang, Jr., and Christopher W. Smart of Carlton Fields Jorden Burt, P.A., Tampa, for Appellant.
    Elizabeth W. Neiberger of Bryant Miller Olive P.A., Tallahassee, and Alan S. Zim-met and Nicole C. Nate of Bryant Miller Olive P.A., Tampa, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

MORRIS,Judge.

In City of Largo v. AHF-Bay Fund, LLC, 215 So.3d 10 (Fla. 2017), the Florida Supreme Court quashed, in part, our decision in AHF-Bay Fund v. City of Largo, 169 So.3d 133 (Fla. 2d DCA 2015). Accordingly, the mandate of this court issued in this case on July 31, 2015, is withdrawn; the opinion and judgment of this court filed on April 22, 2015, is withdrawn and vacated insofar as it is in conflict with or fails to conform to the views expressed in the opinion and judgment of the Florida Supreme Court; and the opinion and judgment of the Florida Supreme Court are adopted and made part of the opinion and judgment of this court. We adhere to our prior judgment and opinion except as it is withdrawn and vacated. On remand, we now solely consider the third issue raised by AHF-Bay Fund (AHF) in the prior appeal, which we previously declined to address due to our decision on another issue.

I. Background

For purposes of this appeal on remand, only a brief recitation of the underlying facts is necessary. This case involves the City of Largo’s claims for -breach of contract and enforcement of a covenant at law. The action was based on a PILOT agreement entered into by AHF’s predecessor in interest, RHF Brittany Bay, LLC (RHF), and the City. A PILOT agreement is an agreement which requires an entity that is otherwise exempt from ad valorem taxation to make “payments in lieu of taxes” to a local government. In this case, RHF entered into the PILOT agreement with the City in return for the City’s assistance in obtaining financing so that RHF could develop the subject property to provide affordable housing for persons with low to moderate income.

The PILOT agreement did not indicate that it was a covenant running with the land, but it did specify that it was binding on. any subsequent owners of the subject property as long as certain conditions were met. The PILOT agreement was not recorded in the official public records. However, there is no dispute that simultaneously with the execution of the PILOT agreement, the parties executed a memorandum of agreement that was properly recorded in the official public records. The memorandum indicated that the PILOT agreement was available for inspection in the City clerk’s office and that it imposed certain covenants running with the land. Attached to the memorandum was a copy of the property’s legal description.

AHF acquired the property in November 2005 but failed to make the annual payments required by the PILOT agreement beginning in 2006, denying knowledge of either the PILOT agreement or the memorandum of agreement. AHF asserted that the documents were not shown to be exceptions to coverage in its title insurance policy and that the documents were not referenced in the special warranty deed by which AHF took title.

The City ultimately filed suit based on AHF’s refusal to make the required payments. The trial court granted the City’s motion for summary judgment'in part and entered a final judgment in favor of the City. The City was awarded $685,158.23 in damages and prejudgment interest.

In the prior appeal, AHF argued that the trial court erred for three reasons: (1) the PILOT agreement was not a covenant running with the land; (2) the PILOT agreement was contrary to Florida law as well as Florida’s public policy; and (3) AHF could not be held liable for the payments under the PILOT agreement because it was neither a party nor a beneficiary under the PILOT agreement. We summarily rejected the first argurnent. AHF-Bay Fund, LLC, 169 So.3d at 134. However, we agreed with AHF on the second issue, concluding that the PILOT agreement hot only violated public policy but also violated section 196.1978, Florida Statutes (2000), and article VII, § 9(a) of the Florida Constitution. We also certified a question to the Florida Supreme Court based on our resolution of the second issue. Finally, because we concluded that the resolution of the second issue was disposi-tive, we-declined, to address AHF’s-third issue.

The' City of Largo sought review -in the Florida Supreme Court, and the court answered the < certified question in the negative and quashed our prior opinion based only on our resolution of the-second issue. AHF-Bay Fund, LLC, 215 So.3d at 17-18. The Florida Supreme Court did not address the first issue as it was beyond the scope of the certified question. Id. Thus that portion of our prior opinion and judgment remains valid. We are now asked to determine the merits of AHF’s third argument that it should not be held liable under the PILOT agreement.

II. Analysis of the case on remand.

AHF argues that it cannot be sued for breach of the PILOT agreement because it was not a party to or a third-party beneficiary of the contract and because it did not assume or agree to the terms of the contract. AHF raises this issue as distinct and separate from the issue of whether the PILOT agreement was a covenant running with the land. But as we explain, AHF was bound by the PILOT agreement regardless of whether the agreement was a covenant running with the land,

A breach of contract action may be based on a party’s breach of a covenant. Cf. A.R. Holland, Inc. v. Wendco Corp., 884 So.2d 1006, 1007-08 (Fla. 1st DCA 2004) (involving breach of contract action 'based on breach of a restrictive covenant). And here, the memorandum of agreement was filed in the public records, specifically referenced the PILOT agreement, and noted that the PILOT agreement imposed covenants running with the land. Consequently, AHF was—at the very least—on constructive notice of the PILOT agreement when it purchased the property. Having been properly filed in the public records, the memorandum of agreement with the attached legal description of the property provided subsequent purchasers with facts that, had they been investigated, would have led a prudent man to discover the existence and contents of the PILOT agreement. See Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127-28 (1932); see also Regions Bank v. Deluca, 97 So.3d 879, 883 (Fla. 2d DCA 2012) (“Constructive notice is a legal inference, and it is imputed to ... subsequent purchasers by virtue of any document filed in .... the official records.” (quoting Dunn v. Stack, 418 So.2d 345, 349 (Fla. 1st DCA 1982))). AHF is therefore bound by the provisions of the PILOT agreement. Cf. Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Ass’n, 245 So.2d 609, 611 (Fla. 1971), (recognizing that parties are bound by restrictive agreements where they take property with notice of the contract because “[i]n such a case, the person violating the agreement, though not a party to it, is a privy in conscience with the maker” (quoting Langenback v. Mays, 207 Ga. 156, 60 S.E.2d 240,241 (I960))); Vetzel v. Brown, 86 So.2d 138, 140-41 (Fla. 1956) (affirming dismissal of appellants’ complaint where they had constructive notice of recorded restrictive covenants and implied actual notice because of a statement in their deed that the title was subject to easements and restrictions of record); A & P Inv. Grp. v. Circle Prop. Owners Ass’n, 741 So.2d 1139, 1139 (Fla. 4th DCA 1998) (affirming trial court’s finding that an unrecorded, agreement as to shared expenses of recreation facilities executed by the appellant’s predecessor in title was binding on the appellant because the appellant had notice of the agreement when it purchased the property).

The fact that AHF’s title insurance company failed to locate the memorandum of agreement and, as a result, the PILOT agreement itself during the title search is unfortunate, but it does not relieve AHF from its- obligation- under the PILOT agreement, AHF’s remedy lies with the title insurance company. Similarly, while AHF’s special warranty deed may not have referenced the PILOT agreement, any dispute over that issue is between AHF and RHF. It does not relieve AHF from its obligation to make the required payments to the City.

Moreover, we note that even if AHF had not been provided with constructive notice of the PILOT agreement, our conclusion regarding the binding ¿aturé of the PILOT agreement would remain the same because we previously rejected AHF’s argument that the PILOT agreement was not a covenant running with the- land. See Silver Blue Lake Apartments, Inc., 245 So.2d at 611 (recognizing that a restrictive agreement that runs with the land is binding on a subsequent purchaser “regardless of notice”).

Affirmed.

SILBERMAN. and BLACK, JJ., Concur.

      . A full recitation of the facts can be read in our prior opinion. AHF-Bay Fund, 169 So.3d 133.

      . As an alternative reason for why it could not be held personally liable for breach of contract, AHF argued that governments are limited to imposing a tax lien against a party that fails to pay ad valorem taxes. However, due to the Florida Supreme Court's conclusion that the payments due under the PILOT agreement are not taxes, AHF-Bay Fund, LLC, 215 So.3d at 17, we find no merit to this argument and do not address it further.

      . Our record includes correspondence from a title insurance company to AHF indicating that the title insurance company had agreed to make a payment to AHF based on the City's claim for payment, though not in the amount for which AHF was ultimately held liable to the City, A copy of a check from the title insurance company to AHF is also included in our record.


author: Klingensmith, J.

text:
    STATE of Florida, Appellant, v. Amanda Marie DAHL, Appellee.
    No. 4D16-3001
    District Court of Appeal of Florida, Fourth District.
    September 27, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   Klingensmith, J.

Amanda Marie Dahl (“Appellee”) entered a guilty plea to one count of leaving the scene of a crash involving death, a first degree felony. She was sentenced to 364 days in jail and ten years’ probation with several special conditions. Over the State’s objection, the trial court entered an order withholding adjudication of guilt. The State appealed this order under Florida Rule of Appellate Procedure 9.140(c)(l)(L).

After the State’s notice of appeal was filed, the trial court recognized its mistake, entered an order that its previous withhold of adjudication was now “converted” to an adjudication of guilt, issued a new sentencing order, and amended the judgment to adjudicate Appellee guilty. Thereafter, the State filed its motion to quash the amended judgment and sentencing order, arguing that the trial court did not have jurisdiction to enter an amended judgment adjudicating Appellee guilty because the State already filed a notice of appeal and an appellate case number was assigned. The court denied that motion without a hearing. Our review is de novo. Cromartie v. State, 70 So.3d 559, 563 (Fla. 2011).

As Appellee concedes, the trial court erred in this case because section 775.08435(l)(a), Florida Statutes (2015), prohibits a court from withholding adjudication of guilt for “[a]ny capital, life, or first degree felony offense.” See also State v. Foster, 114 So.3d 422, 422 (Fla. 5th DCA 2013) (reversing trial court’s withhold of adjudication on a first degree felony, and remanding for an adjudication of guilt).

Further, the trial court lacked jurisdiction to enter its corrected sentencing order and amended judgment because the trial court was divested of jurisdiction when the State filed its appeal. See Gonzalez v. State, 384 So.2d 57, 58 (Fla. 4th DCA 1980) (filing notice of appeal vested exclusive jurisdiction in appellate court and trial court was prohibited from modifying sentence after appeal was filed).

Accordingly, we reverse the trial court’s withhold of adjudication and remand for entry of an adjudication of guilt.

Reversed and Remanded.

Conner and Forst, JJ., concur.


text:
    Casey Stuart MATTINGLY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1014
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Rehearing Denied October 17, 2017

      Andy Thomas, Public Defender, and Terry Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court properly handled Appellant’s competency issues throughout this proceeding, and we find that the hearing addressing competency on September 23, 2014, at which the trial court orally adjudicated Appellant competent, satisfied the requirements of due process. However, we find well-taken the State’s confession of error in the lack of a written order of competency following that hearing. Accordingly, we affirm Appellant’s judgment and sentence, but remand solely for entry of an order of competency nunc pro tunc to the date of that hearing. See Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016) (requiring court to enter a nunc pro tunc order of competency if appellant was competent at the time of hearing, whereupon the judgment and sentence need not change).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

RAY and KELSEY, JJ., and DOUGLAS, WESLEY R., ASSOCIATE JUDGE, CONCUR.


text:
    T.M., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3053
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 29, 2017
    Robert Wesley, Public Defender, and Stephanie Nicole Osman, Assistant Public Defender, Orlando, and Sarah L. B. Jordan, Assistant Public Defender, Kissim-mee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus, alleging that he is being wrongfully detained in secure detention. Petitioner pled to lewd and lascivious conduct on a victim less than twelve years of age, and the trial court ordered Petitioner held in secure detention while awaiting an opening in a non-secure residential commitment program. Petitioner did not score high enough for secure detention on his risk assessment instrument, and the State concedes that the trial court did not enter any written findings otherwise justifying secure detention.

Generally, determinations regarding placement of a minor in secure detention are based on the risk assessment. § 985.245(1), Fla. Stat. (2016). However, section 985.255 permits the court to otherwise order secure detention based upon written findings. See § 985.255, Fla. Stat. (2016). However, “[w]here a statute requires a written order giving findings and reasons, the transcript of the proceedings upon which the order was based cannot act as a substitute.” A.D. v. State, 45 So.3d 575, 576 (Fla. 4th DCA 2010) (quoting R.B.S. v. Capri, 384 So.2d 692, 696 (Fla. 3d DCA 1980)).

Although the trial court made findings of fact at the hearing sufficient to support secure detention, the trial court failed to enter a vmtten order reflecting those findings as required by statute. Therefore,- we direct the trial court to either enter a written order justifying Petitioner’s secure detention, or to order Petitioner’s release therefrom, by 5:00 p.m, on the second business day following the date of issuance of this opinion. See A.D. v. State, 45 So.3d at 576.

PETITION GRANTED.

ORFINGER, EDWARDS, and EISNAUGLE, JJ., concur.


author: BROWN, JOHN T., Associate Judge.

text:
    Adam Lloyd SHEPARD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3836
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017

      Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus, Bryan E. DeMag-gio, Jesse B. Wilkison, and Amanda J. Woods of Sheppard, White, Kachergus & DeMaggio, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Tayo Popoola, Matthew Pavese, and Robert Morris III, Assistant Attorneys General, Tallahassee, for Appellee.
   BROWN, JOHN T., Associate Judge.

Adam Lloyd Shepard appeals following his convictions of manslaughter with a weapon and leaving the scene of a crash involving death. We address two issues raised by Appellant and affirm the remaining issues without comment. Appellant first challenges the reclassification of his manslaughter conviction from a second-degree felony to a first-degree felony based on his use of a “weapon,” when the “weapon” was an automobile. The second issue is whether the trial court improperly considered Appellant’s lack of remorse while sentencing him. We affirm Appellant’s manslaughter conviction, acknowledging and certifying conflict with the Second District Court of Appeal’s definition of a “weapon” as to section 775.087(1), Florida Statutes. We agree with Appellant’s argument that the trial court improperly considered Appellant’s lack- of remorse while sentencing him, vacate his sentence, and remand with instructions that Appellant be resentenced on both of his convictions before a different judge.

Facts

On January 22, 2011, Appellant was drinking and watching a basketball game at a bar with the victim. Appellant and the victim got into a tussle at the bar, after which Appellant was escorted out of the bar by staff. The victim, who was still at the bar, began receiving phone calls from Appellant and ultimately the victim answered one phone call before leaving the bar,

A witness at trial, who had been at the bar that evening and had been invited by the victim to his apartnlent to meet his girlfriend, testified that she saw a white vehicle (later confirmed to be Appellant’s) parked in the rear of a shopping eenter across the street from the entrance of the victim’s apartment complex. The witness said that the white car flashed its lights. The victim pulled into the parking lot, exited his car, and rushed toward the white automobile while pulling off his jacket. The white automobile advanced towards the victim and struck him. Appellant left the parking lot and was apprehended two weeks later in Chicago. The victim sustained head injuries and ultimately succumbed to those injuries the following day.

A jury found Appellant guilty of one count of manslaughter with a weapon and one count of leaving the scene of a crash involving a death. Appellant’s Criminal Punishment Code Seoresheet indicated 147.3 months as the lowest permissible prison sentence, with the maximum sentence on each count" being thirty years. During sentencing the court noted that it was clear that-Appellant had “no remorse or acceptance of responsibility in the two weeks after” the incident, and that items found on Appellant when he was apprehended in Chicago indicated an intent to continue to evade arrest and demonstrated that Appellant had “no acceptance of responsibility and no remorse.” Additionally, the court, referring to a letter submitted by Appellant for consideration during sentencing, stated, “[If Appellant] is suggesting he was not aware that he struck [the victim] the jury rejected that finding and so do I, and to the extent that he is suggesting that this was an accident that he learned of later I reject that as well and those statements are of great concern to the Court.” Appellant was sentenced to thirty years on the manslaughter count and fifteen years on the leaving the scene of a crash count. The sentences were imposed to run consecutively for a total of a forty-five years.

Reclassification

Questions of statutory interpretation are subject to de novo review. State v. Burris, 875 So.2d 408, 410 (Fla. 2004).

The reclassification statute, section 775.087(1), Florida Statutes, enhances the degree of a felony to a degree greater when during the commission of the felony the defendant “carries, displays, uses, threatens to use, or attempts to use any weapon or firearm.” The statute does not provide a definition of “weapon.” See State v. Houck, 652 So.2d 359, 360 (Fla. 1995). Without a statutory definition of the word “weapon,” courts must turn to the “common or ordinary meaning of the word.” Id.

Appellee argues that an automobile, when used in the manner Appellant used it, constitutes a weapon in the common and ordinary meaning of the word. We agree with this “use” argument.

Recently, the Second District Court of Appeal concluded that an automobile was not a weapon under section 775.087(1). Gonzalez v. State, 197 So.3d 84, 86 (Fla. 2d DCA 2016). In Gonzalez, the appellant was convicted of manslaughter and failing to stop or remain at the scene of a crash resulting in death. 197 So.3d at 84. The victim left the bar with the appellant the night before she was found sitting in the road barely alive. Id. The evidence demonstrated that the victim had been hit by the appellant’s car once while it was moving forward slowly and then again as he backed over her. Id. On appeal, the appellant argued that the reclassification of the second-degree manslaughter conviction to a first-degree felony was error. Id. at 85. Our sister court agreed and held that an automobile is not a weapon under section 775.087(1). Id. at 86. The Second District concluded the case was controlled by the Florida Supreme Court’s decision in Houck. Gonzalez, 197 So.3d at 85. We agree that our case is controlled by Houck, but disagree with the Gonzalez court’s interpretation of the definition of a weapon.

In Houck, the Florida Supreme Court approved the Fifth District’s en banc decision concluding that “it is for the court to determine whether what is used in the commission of a felony is a weapon within the meaning of the [reclassification] statute.” 652 So.2d at 360 (emphasis added). In Houck, the supreme court looked to the dictionary to provide the common definition of weapon: “[a]n instrument of attack or defense in combat, as a gun or sword ... [or] [a] means used to defend against or defeat another.” Id. We conclude that an automobile falls within the second definition of a weapon as a “means used to defend against or defeat another.” Id. (emphasis added).

The Gonzalez court found the following language in State v. Burris to be significant: “Like the pavement used by the offender in Houck, an automobile is not commonly understood to be an instrument for combat against another person. Though certainly capable of inflicting death or injury, as with the pavement in Houck, the ordinary purpose of automobiles is not as instruments for combat.” Gonzalez, 197 So.3d at 85-86 (quoting Burris, 875 So.2d at 413 (Fla. 2004)).

We disagree with the Second District’s conclusion that the “ordinary purpose” , is dispositive. The Second District’s holding in Gonzalez is not unreasonable based on its reliance of the quote from Burris. However, we note that the question before the Burris court was expressly limited to whether an automobile could be “carried” “as a deadly weapon under section 812.13(2)(a) of the robbery statute” to allow an enhanced conviction. Burris, 875 So.2d at 410. In dicta, the supreme court in providing a comparison to an automobile being “carried” discussed the pavement in Houck. Unlike the statute at issue in Burris, which enhances a robbery conviction when a deadly weapon is “carried,” section 775.087(1), Florida Statutes, states that “whenever a person is charged with a felony ... and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm ... the felony for which the person is charged shall be reclassified.” (emphasis added).

We are applying the common definition of a weapon as Houck requires. Many objects commonly understood to be weapons, such as kitchen knives or baseball bats, would not be classified as weapons under the Gonzalez court’s approach because their ordinary purpose is not for combat. Gonzalez, 197 So.3d at 85-86. We find there is a distinct difference between an immobile object, such as the pavement in Houck, and a movable object, such as the car used by Appellant.

We accordingly affirm Appellant’s conviction and certify conflict with Gonzalez v. State, 197 So.3d at 85 (Fla. 2d DCA 2016).

Lack of Remorse

The parties agree that this issue was not properly preserved below.

Unpreserved arguments in the sentencing process are reviewed for fundamental error. Jackson v. State, 983 So.2d 562, 574 (Fla. 2008). This Court has held that fundamental error occurs when a trial court bases a sentence on impermissible grounds. Dumas v. State, 134 So.3d 1048, 1048 (Fla. 1st DCA 2013). “Although an appellate court generally may not review a sentence that is within statutory limits under the Criminal Punishment Code, an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence.” Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010).

This Court has stated, “A lack of remorse or failure to accept responsibility may not be considered by the trial court when fashioning an appropriate sentence.” Dumas, 134 So.3d at 1048; see also K.Y.L. v. State, 685 So.2d 1380 (Fla. 1st DCA 1997) (“[L]ack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence.”), disapproved on other grounds, State v. J.P.C., 731 So.2d 1255 (Fla. 1999). While remorse and an admission of guilt may be grounds for mitigation of a sentence, the lack of these factors cannot be used to increase a defendant’s sentence and such reliance violates the defendant’s due process rights. Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004).

Because we agree with Appellant that the court should not have considered his lack of remorse when sentencing him, we reverse Appellant’s sentence and remand for resentencing on both counts before a different judge. See Dumas, 134 So.3d at 1049; Ritter, 885 So.2d at 415.

MAKAR and WINSOR, JJ., CONCUR.


text:
    Tashauna SIMPSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2007
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    Tashauna Simpson, Ocala, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted.’ A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 22, 2016, judgments and sentences in Case Nos. 2015-CF-003187-A-O, 2015-CF-004451-A-O, in the Circuit Court in and for Órange County, Florida. See Fla. R. App. P. 9.14l'(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and EDWARDS, JJ., concur.


author: PER-CURIAM.

text:
    Velton Devontay CORBETT, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2949
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    Robert Wesley, Public Defender, Orlando, and, Steven S. Graves, Assistant Public Defender, Orlando, for Petitioner.
    ,No appearance for Respondent.
   PER-CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court, and be treated as the notice of appeal from the judgment and sentence in Case No. 2016-CF-5069-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App., P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, ORFINGER, and WALLIS, JJ., concur.


text:
    Michael FULGHAM, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2766
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    Michael Fulgham, Sneads, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed ■with the trial court and be treated as the notice of appeal from the July 6, 2017 order denying Petitioner’s pro se motion to correct sentence, filed in Case No. 2016-CF-1201-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, BERGER and LAMBERT, JJ., concur.


text:
    Anthony J. SELVESTER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2402
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    Anthony J. Selvester, Wewahitchka, pro se.
    Pamela Jo, Bondi, Attorney General Tallahassee, and, Kaylee D.Tatman, Assistant Attorney General, Daytona Beach, for Respondent. , ■, , .
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and'be treated as the notice of appeal from the June 29, 2016, judgments and sentences in Case No. 2016-CF-1177, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

Additionally, a copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from, the March 8, 2016, violation of probation judgments and sentences in Case No. 2015-CF-284, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D). Notices of appeal shall be treated separately.

PETITION GRANTED.

TORPY, WALLIS and EISNAUGLE, JJ., concur.


text:
    Paul BOATMAN, Petitioner, v. Julie L. JONES, as Secretary of the Florida Department of Corrections, et al., Respondents.
    CASE NO. 1D17-3696
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017
    Paul Boatman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kenneth S. Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

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

This Court reserves jurisdiction to consider the imposition of sanctions.

ROWE, MAKAR, and BILBREY, JJ., CONCUR.


text:
    EMERALD COAST UTILITIES AUTHORITY, Appellant, v. BEAR MARCUS POINTE, LLC; a Florida Limited Liability Company, Appellee.
    CASE NO. 1D15-5714
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.
    Rehearing Denied October 6, 2017

      Bradley S. Odom and Richard D. Barlow of Odom & Barlow, P.A., Pensacola, for Appellant.
    Major B. Harding and Erik M. Figlio of Ausley & McMullen, Tallahassee; William A. Fixel of Fixel & Willis, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION OF QUESTION

PER CURIAM.

Appellant’s Amended Motion for Rehearing, Rehearing En Banc, and Certification of Question is denied, but we withdraw our previous opinion and substitute the following opinion in its place.

In this appeal from an order denying its motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b), appellant claims that the trial court abused its discretion in not vacating and reentering its order assessing attorneys’ fees, which appellant alleged to have never received, so that appellant could file a timely notice of appeal. Finding no abuse of discretion, we affirm.

On March 18, 2014, the trial court rendered an order assessing attorneys’ fees against appellant in an eminent domain proceeding. On March 20, 2014, the clerk of the court served the order by email sent to the email addresses designated by counsel for each party. On May 12⅛ 2014, appellant filed a motion for relief from the order, requesting the trial court to vacate and reenter the order to allow appellant to file a timely notice of appeal because appellant did not receive a copy of the order until after expiration of the time to appeal.

At the hearing on appellant’s motion, Lendy Davis, the IT director for the clerk of the court, testified that the log from the clerk’s e-service system indicated that emails containing the order were sent to the primary and secondary email addresses designated by appellant’s attorneys at 7:28 p.m. on March 20, 2014. The clerk’s email server contacted the email serverfor the domain of these addresses and handed off the messages to the recipient server. Davis explained that if the email had not been accepted by the recipient server, an error message would have been generated notifying the clerk’s office that the email had not been delivered. The log contained no such error message. Davis did not know what happened after the email was accepted by the recipient server.

William Hankins testified that he provided IT consulting services for appellant’s counsel—-the law firm of Odom & Barlow P.A.—beginning in 2007. In 2011, about two months after the firm installed its Microsoft Exchange server with a built-in email filtering system, the email filtering system was configured to drop and permanently delete emails perceived to be spam without alerting the recipient that the-email was deleted. Hankins advised Richard Barlow that the firm’s email system should not be configured to permanently drop'and delete emails without alerting the recipient>that. the email was dropped because the built-in. spam filtering on the server was very unreliable and created the risk, of identifying and filtering legitimate emails as spam (false positives), Although. Hankins believed that it was,better, to hire, a third party that handled spam filtering on a full-time basis, Barlow rejected his recommendation to use a third-party ven-, dor .because he did not want to spend the extra money.

Hankins reviewed the transaction logs from the clerk’s server- to Odom & Barlow’s server and concluded that the order assessing attorneys’ fees was properly delivered to the Odom & Barlow server. Hankins opined that it was possible that the server deleted the email as spam. .

In 2015, Hankins recommended that, the firm get- an online backup system that would -have cost approximately $700 to $1200 a year. This -recommendation was rejected. Eventually, Hankins stopped working for Odom & Barlow because the firm rejected his.recommendations.

Stephen Reyes testified that he was a shareholder in the firm of Saltmarsh, Cleveland & Gund and managed the information system consulting arms of the firm. Reyes reviewed the email log printouts provided by the clerk’s office and saw no evidence that the clerk’s office made any mistake or was negligent in the service of the emails in question. He also reviewed five work stations and a server at the law firm of Odom & Barlow, did not find any of the emails, and did not find any evidence of destruction of the emails.

Reyes conceded that it was fairly unusual for a company to configure their system to not create any email logs and that if the server had been configured differently, he could have had complete logs from the period in question to determine whether the server had received the. emails from the clerk’s server. He also noted that the server was not configured to back up data or configuration files and that it was unusual for a business to operate a server system with absolutely no back up or disaster recovery process. If the server had backup data or configuration files, this would have provided information about additional emails and correspondence and changes in the email system itself. He suggested that a law firm that maintained confidential and highly sensitive information for clients have a backup or disaster recovery process.

Reyes could not make a definitive determination whether the emails from the clerk’s office were received by Odom & Barlow’s server because the firm did not maintain logs or archive or backup emails. If he had complete logs, he would have been able to determine whether the emails had been received. However, Reyes acknowledged that the absence of any error messages, bounce-backs, or retries in the clerk’s server logs made it more likely that the emails were received by Odom & Barlow’s server. Moreover, if Odom & Barlow’s server had received other emails from the clerk’s server, this would indicate that there was effective communication between the two systems. Given the totality of the information he had, Reyes believed that it was more likely than not that the server received the emails.

James Todd testified that he helped design, implement,, and support email systems. Todd explained that when sending an email, the sending server would look up the recipient server and establish a connection with the recipient server to make sure it was there and accepting messages. If there were no issues, the recipient server would send an “okay” message for the sending server to transmit the data. Once the data was received, the recipient server would send an “okay” message letting the sending server know that it got the data. This activity was referred to as a “handshake,” after which everything was under the control of the recipient. Todd testified that this was the equivalent of placing a piece of mail into a mailbox.

Todd reviewed the transaction logs from the clerk’s server to Odom & Barlow’s server and concluded that an email attaching an order assessing attorneys’ fees was properly delivered to and received by the Odom & Barlow server on March 20, 2014, without any error messages or bounce-backs. According to Todd, after the handshake, an email went through any email filtering system that was in place. An email filtering system could be configured to delete emails perceived to be spam and to alert recipients of the receipt of email identified as spam. These settings were in the exclusive control of the email recipient. Thus, after a handshake occurred, the email could be filtered out as spam or delivered to the recipient.

Based on the information he reviewed, Todd concluded that the law firm of Odom & Barlow did not properly implement and utilize its email filtering system. It was his understanding that Odom & Barlow’s email filtering system was set to drop and delete emails identified as spam. He did not recommend this setup to any business of any kind because it resulted in data loss. In fact, he testified that he would require the client to sign a waiver exonerating' him from responsibility if the client insisted on implementing such an email filtering system.

Joe Fixel, lead counsel for appellee, testified that his firm filed a motion for attorneys? fees that was the subject of a hearing in January 2013. At the conclusion of the hearing, the trial court asked the parties to submit proposed orders. The court did not enter its own orders until March 2014. While they were waiting for the-court to act, Fixel’s office had a protocol where an assigned paralegal would check the court’s website every three weeks to see if the court had taken any action or entered any orders. Fixel also contacted opposing counsel, Richard Barlow, and suggested they file a joint motion for a case management conference to make sure the case had not slipped through the cracks. When Barlow categorically refused to join such a motion, he consulted with co-counsel who filed a motion for status conference. However, before the status conference occurred, the orders were received by email by all three attorneys and the paralegal who were assigned to the ease at his firm. When the attorneys’ fees award had not been paid within thirty days as ordered by the court, his paralegal contacted opposing counsel, whose office requested copies of the orders.

At the hearing, appellant argued that it was entitled to relief from the attorneys’ fees order because it never received the order in time to file a timely appeal. Appel-lee responded that appellant was not entitled to relief because appellant’s ability to file a timely appeal was not hindered by any action attributable to the trial court or the clerk, but was attributable to the actions of appellant’s counsel. Afterwards, the trial court entered an order denying relief. This appeal followed.

Under Florida Rule of Civil Procedure 1.540(b), Florida courts have discretion to set aside a final judgment, decree, order, or proceeding based on “mistake, inadvertence, surprise or excusable neglect.” Handel v. Nevel, 147 So.3d 649, 651 (Fla. 3d DCA 2014). In Pompi v. City Of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004), this court held that the appellants’ failure to file a timely appeal constituted excusable neglect entitling appellants to relief from judgment under rule 1.540(b) where appellants’ counsel made a mistake in reading the file stamp on the judgment, which was much less noticeable than the recording stamp. Id. at 933. While agreeing that the clerk bore no responsibility for counsel’s error, this court noted “the fact that a deputy court clerk made precisely the same mistake when reporting the filing date on the telephone is at least some indication that counsel’s error was excusable.” Id.

Subsequently, in Hollifield v. Renew & Co., Inc., 18 So.3d 616 (Fla. 1st DCA 2009), this court observed that the trial court had no authority to grant relief from judgment where the neglect in failing to take a timely appeal occurred entirely within the office of the party’s counsel and no action attributable to the court or its personnel contributed to counsel’s neglect to take a timely appeal. Id. at 617 (citing David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 280 (Fla. 2d DCA 2008)). In doing so, this court distinguished Pompi, “whose holding applied to cases where the court or court staff substantially contributed to counsel’s failure to file a timely notice of appeal.” Id.

We agree with appellant that this language is dicta in light of the true holding in Hollifield that rule 1.540(b) did not authorize the trial court to grant relief from an interlocutory order. Id. However, because we conclude that appellant failed to demonstrate excusable neglect—or any other basis for relief under the rule—it is unnecessary to address whether rule 1.540(b) requires proof that some action attributable to the court or its personnel contributed to counsel’s neglect to take a timely appeal.

“Excusable neglect is found ‘where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’ ” Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010) (quoting Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)). However, “[t]he law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.” John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385 (Fla. 4th DCA 1980). “A conscious decision not to comply with the requirements of law cannot be ‘excusable neglect’ under the rule or any other equivalent requirement.” Peterson v. Lake Surprise II Condo. Ass’n, 118 So.3d 313 (Fla. 3d DCA 2013). Likewise, gross neglect is not excusable. Brivis Enters., Inc. v. Von Plinski, 8 So.3d 1208, 1209 (Fla. 3d DCA 2009); Hornblower v. Cobb, 932 So.2d 402, 406 (Fla. 2d DCA 2006); Lehner v. Durso, 816 So.2d 1171, 1173 (Fla. 4th DCA 2002); Otero v. Gov’t Emps. Ins; Co., 606 So.2d 443, 444 (Fla. 2d DCA 1992).

Although appellant claims that its counsel received no notice of the order assessing attorneys’ fees until after expiration of the time to appeal, Lendy Davis, William Hankins, and James Todd testified that they reviewed emails logs from the clerk’s server -and concluded that the emails attaching the order assessing attorneys’ fees were electronically served by the clerk’s office on March 20, 2014, and received without error by Odom & Barlow’s server. Although Stephen Reyes testified that he could not make a definitive determination whether the emails were received by Odom <& Barlow’s server because the firm maintained neither email logs nor archive or backup emails, he conceded that it was more likely than not that the server received the emails. Based on this evidence, the trial court could conclude that the order assessing attorneys’ fees was received by Odom & Barlow’s server, which was the equivalent of placing a physical copy of the order in a mailbox.

In addition, testimony was presented that the spam filter of Odom & Barlow’s server was deliberately configured in such a way that it could delete legitimate emails as spam without notifying the recipient, despite Odom & Barlow being warned against this configuration. Specifically, William Hankins advised against this configuration because the built-in spam filtering on the server was very unreliable and created the risk of identifying and filtering legitimate emails as spam. Hankins also recommended that Odom & Barlow hire a third party to handle spam filtering on a full-time basis and purchase an online backup system. However, these recommendations were rejected because the firm did not want to spend the additional money. Stephen Reyes noted that the server had the ability to generate email logs, but was specifically configured not to create logs in order to save drive space.

Based on this testimony, the trial court could conclude that Odom & Barlow made a conscious decision to use a defective email system without any safeguards or oversight in order-to save money. Such a decision cannot constitute excusable neglect. See Onwuchekwe v. Okeke, 404 Fed. Appx. 911, 912 (5th Cir. 2010) (“Even if the district court credited the claim that email settings deflected the notice away from counsel’s inbox, it-was not'an abuse of discretion to conclude that sending court communications to the spam folder ⅛ inexcusable neglect.”); Crocker v. Child Dev. Sch. Inc., No. 3:10-CV-759-WKW, 2011 WL 4501560, at *5 (M.D. Ala. Sept. 29, 2011) (“Mr. Wiley’s evidence on-the cause for the delay is the digital age equivalent of ‘the dog ate my homework.’ Mr. Wiley claims- that e-mail- difficulties prevented discovery of C.D.S.’s pending motion, but this evidence demonstrates that these difficulties were entirely self-created. ... An inability to manage an office e-mail system to properly receive notices of filing does not qualify as excusable neglect.”); Bequer v. Nat’l City Bank, 46 So.3d 1199 (Fla. 4th DCA 2010) (reversing an order • setting aside a default final judgment based on excusable neglect where the bank’s inaction was- not the result of a “system gone awry,” but rather of a “defective system altogether”).

Finally, testimony was presented that opposing counsel, Joe Fixel, had a protocol where an assigned paralegal would check the court’s website every three- weeks- to see if the court had taken any action or entered any orders. If Odom & Barlow-had a similar procedure in place, the firm would have received notice of the order assessing attorneys’ fees in time to appeal. The neglect of Odom & Barlow’s duty to actively check the court’s electronic docket was not excusable where the parties knew that the trial court would be Issuing a final order subject to appeal within jurisdictional time limits. See. Yeschick v. Mineta, 675 F.3d 622, 629-30 (6th Cir. 2012) (holding that counsel’s neglect in not checking the docket was not excusable because the parties had an affirmative duty to monitor the docket to keep apprised of.the entry of orders that they may wish to appeal); Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 413 (4th Cir. 2010) (holding that counsel’s computer problems did not constitute excusable neglect where counsel failed to actively monitor the court’s docket or find some other .means by which to stay informed of docket activity); PNC Bank, Nat’l Ass’n v. Lucmaur, LLC, No. 6:14-cv-238-Orl-37KRS, 2015 WL 1020604, at *2 (M.D. Fla. Mar. 9, 2015) (denying defendants’ motion to vacate an order based on “mistake, inadvertence and/or excusable neglect” because counsel’s e-mail service flagged and filtered the court’s “Notice of Electronic Filing” as spam, noting that if defendants or their counsel had checked the docket they would have seen at least one potentially case-dispositive motion pending and would have known that failure to timely respond might result in the court granting the motion unopposed); Pinks v. M & T Bank Corp., No. 13 Civ. 1730(LAK), 2014 WL 2608084, at *1 (S.D.N.Y. June 5, 2014) (“The fact is that all sorts of things go awry in the electronic universe in which we- now live, and lawyers are obliged to protect their clients’ interests even if that requires something more than blind reliance on the proper and timely transmission, receipt and filing of computer generated electronic mail, Thus, even if one were to characterize- as excusable the error attributed to the IT staff, the lawyer’s failure to check the docket sheet, knowing that he had a motion pending before the magistrate judge and that an adverse recommendation would have to be objected to within fourteen days of its entry,-was not.”); Moncier v. Jones, 939 F.Supp.2d 854, 862 (M.D. Tenn. 2013) (concluding that “Plaintiffs failure to respond to the motion to dismiss as a result of his computer difficulties does not constitute excusable neglect” where “Plaintiff should have expected the filing of an answer or motion to dismiss by the Defendants and owed an affirmative duty to check the court’s docket to remain informed about this action”).

Counsel has a duty to have sufficient procedures, and protocols in place to ensure timely notice of appealable orders. This includes use of an email spam filter with adequate safeguards and independent monitoring of the court’s electronic docket. In cases where rendition of an appealable order has been delayed for a significant period of time, it might also include the filing of a joint motion for a case management conference to ensure that the order has not slipped through the cracks. Odom & Barlow made no effort to do any of these things, reflecting an overall pattern of inaction and disengagement. In short, there was an absence.of “any meaningful procedure in place.that, if followed,- would have avoided the unfortunate events that resulted in a significant judgment against” appellant, Hornblower, 932 So.2d at 406. Accordingly, the trial court did not abuse its discretion in denying appellant’s rule 1.540(b) motion.

AFFIRMED.

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


text:
    Ralph FLINT, III, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1212
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.
    Ralph Flint, III, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee. ■
   PER CURIAM.

The appellant appeals the denial of a motion to correct illegal sentence challenging his designation as a sexual predator. The appellant was convicted of kidnapping and three counts of sexual battery without force likely to cause serious personal injury. As the State has conceded, the appellant’s prior convictions do not qualify him to be designated as a sexual’ predator. The appellant’s kidnapping conviction does not qualify him for designation as a sexual predator because the victim was not a minor. See § 775.21(4)(a)1.a., Fla. Stat. (2010); Maceo v. State, 870 So.2d 852 (Fla. 3d DCA 2003) (conviction for life felony of armed kidnapping did not qualify him for classification as sexual predator where victim was not a minor). Additionally, the appellant’s three convictions for violating section 794.011(5), Florida Statutes (2010), do not qualify as they are second-degree felonies and he does not have any prior enumerated convictions. See § 775,21(4)(a)1.b., Fla. Stat. (2010); Lupianez v. State, 909 So.2d 600 (Fla. 2d DCA 2005) (holding that an offender who violates section 794.011(5) must have a prior enumerated conviction to qualify as a sexual predator). Accordingly, we reverse the denial of the appellant’s motion and remand for the lower court to vacate the order designating him a. sexual predator.

REVERSED and REMANDED with directions.

ROBERTS, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR


text:
    Jerry Layne ROGERS, Sr., Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D16-1378
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017.
    Jerry Layne Rogers, Sr., pro se, Appellant. . ■
    Kenneth Steely, General Counsel, Department of Corrections, Tallahassee; Pamela Jo Bondi, Attorney General and Donna LaPlante, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Relying on this Court’s decision in Green v. Cottrell, 172 So.3d 1009 (Fla. 1st DCA 2015), the trial court dismissed a negligence action filed by Appellant Jerry Layne Rogers, Sr., as time-barred under the one-year limitation period of section 95.11(5)(g), Florida Statutes (2011). However, the Florida Supreme Court quashed our decision in Green, determining that the four-year statute of limitations under section 768.28(14), Florida Statutes (2011), governs actions where a prisoner alleges “physical injury due to the negligent or wrongful acts or omissions of the employees of a government entity.” Green v. Cottrell, 204 So.3d 22, 29 (Fla. 2016). As such, Appellant’s negligence claim should not have been dismissed under section 95.11(5)(g). We, therefore, reverse and remand this case for further proceedings.

ROBERTS, WINOKUR, and M.K. THOMAS, JJ., CONCUR.

       We affirm the trial court’s dismissal of Appellant’s claim of medical malpractice as time-barred under section 95.11(4)(b), Florida Statutes (2011).


text:
    Oscar HANSON, Petitioner, v. Julie JONES, Secretary, Department of Corrections, Respondent.
    CASE NO. 1D17-0029
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017
    Oscar Hanson, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Greene v. Tucker, 113 So.3d 45 (Fla. 2d DCA 2012).

ROWE, MAKAR, and BILBREY, JJ., CONCUR. ,


text:
    Haley BOWDEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1770
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017.
    Haley Bowden, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 27, 2016, judgment and sentence in Walton County Circuit Court case number 13000105CFAXMX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal.

See Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel the trial court shall appoint counsel to represent petitioner on appeal.

ROBERTS, KELSEY, and JAY, JJ., CONCUR.


text:
    Romeo WARD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1526
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017
    Romeo Ward, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because the trial court has ruled on the pleading pending below, the petition for writ of mandamus is dismissed as moot. See Ward v. State, 770 So.2d 206 (Fla. 1st DCA 2000) (dismissing a petition for writ of mandamus as moot where the trial court had ruled on the pleading pending below).

ROBERTS, KELSEY, and JAY, JJ., CONCUR.


text:
    G.H., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D17-1701
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
    Karla Perkins, for appellee Department of Children and Families; Laura J. Lee, Anthony C. Musto and Thomasina F. Moore (Sanford), for appellee Guardian ad Litem Program.
    Before LAGOA, EMAS and SCALES, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

G.H. is the mother of the minor child, D.E.B., who was born on January 4, 2016. The Department of Children and Families removed D.E.B. from G.H.’s custody and, on May 10, 2017, the Department filed a petition for termination of G.H.’s parental rights as to D.E.B. under section 39.806(l)(b) of the Florida Statutes, based on her purported abandonment of D.E.B. The trial court conducted an advisory hearing on the petition on May 31, 2017, which G.H. did not attend. Based on G.H.’s failure to attend the advisory hearing, the trial entered a consent to the termination of G.H.’s parental rights on behalf of G.H. as to D.E.B. See § 39,801(3)(d) of the Florida Statutes (2016) (“If the person served with noticé under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice.”). The trial court entered a Final Judgment of Termination of Parental Rights and Disposition as to the Mother on June 14,2017. G.H. appealed.

Based on the Department’s commendable confession of error, we agree that the final judgment must be reversed because the' .Department failed to personally serve G.H. with: (i). a. copy of the Department’s petition to terminate her parental rights;, and (ii) a summons containing the required notice of the date, time and place of the advisory hearing:on the petition, and specifying that G.H.’s failure to personally appear at the advisory -hearing would constitute G.H.’s consent to the termination of her parental rights of D.E.B. See § 39.801(3), Fla. Stat. (2016); M.J.W. v. Dep’t of Children & Families, 826 So.2d 1038, 1040 (Fla. 1st DCA 2002) (“Under, section 39.801(3)(a), notice of the advisory hearing and a copy of the petition to terminate parental rights must be personally served upon the parents.”).

Accordingly, we reverse the final judgment terminating G.H.’s parental rights as to D.E.B. and remand so that the Department may personally serve G.H. with both a copy of the petition and a summons in compliance with section 39.801(3),

Reversed and remanded for proceedings consistent with this opinion.


text:
    Clay M. GREER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2479
    District Court of Appeal of Florida, First District.
    Opinion filed October 12, 2017.
    Clay M. Greer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Elijah L. UNION, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3628
    District Court of Appeal of Florida, First District.
    Opinion filed October 12, 2017

      Elijah L.-Union, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Dwight Alan MURPHY-STRICKLAND, Petitioner, v. Major Jeff CLOUTIER, Director, Alachua County Department of the Jail, Respondent.
    CASE NO. 1D17-3573
    District Court of Appeal of Florida, First District.
    Opinion filed October 12, 2017
    Stacy A. Scott, Public Defender, and Rachael J. O’Brién, Assistant Public Defender, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Respondent. .
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits; '

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


text:
    Cedrick A. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3011
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 13, 2017
    Robert Wesley, Public Defender, Orlando, and Peter C. Schmer, Assistant Public Defender, Orlando, for. Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and .be treated as the notice of appeal from the July 12, 2017, judgment and sentence in Case No. 2017-CF-2865-A-0, in the Circuit Court in and

for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA, EISNAUGLE, JJ., concur.


text:
    Jillian ROBERTS, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    Case No. 5D17-1058
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 13, 2017
    Matthew G. Struble and Christine M. Deis, of Struble, P.A., Fort Lauderdale, for Appellant,
    Kara Berard Rockenbach, of Methe & Rockenbach, P.A., West Palm Beach, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

Based on Citizens Property Insurance Corporation’s Concession of Error, we reverse the trial court’s “Order on Defendant’s Motion to Dismiss or Alternative Motion for Summary Judgment and Plaintiffs Motion to Continue” and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER, WALLIS, and EDWARDS, JJ., concur.


text:
    DYCK-O’NEAL, INC., Appellant, v. David A. LYTLE, Appellee.
    CASE NO. 1D17-1288
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.
    David M. Snyder, David M. Snyder Professional Association, Tampa, Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore of the Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Jonathan M. Smith, Duss, Kenney, Safer, Hampton & Joos, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment); see also Dyck-O’Neal, Inc. v. Lanham, 214 So.3d 802 (Fla. 1st DCA 2017) (certifying conflict between this Court’s decision in Higgins and decisions by the other four district courts of appeal).

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