author: Gerber, J.

text:
    U.S. BANK NATIONAL ASSOCIATION as Trustee FOR BAFC 2007-4, Appellant, v. Mindy ROSEMAN, Delia H. Jimenez, Mario Restrepo, Parkside at Royal Palm Homeowners Association, Inc., Unknown Tenant in Possession 1, and Unknown Tenant in Possession 2, Appellees.
    No. 4D16-876
    District Court of Appeal of Florida, Fourth District.
    March 15, 2017

      Amelia Hallenberg of McCalla Raymer Pierce, LLC, Orlando, for appellant.
    F. Scott Fistel of Fistel Law Group, P.A., Fort Lauderdale, for appellees Delia H. Jimenez and Mario Restrepo.
   Gerber, J.

The bank appeals from the trial court’s final order of involuntary dismissal of the bank’s foreclosure action against the homeowners. The bank argues the trial court erred in two respects: (1) by denying the admissibility of the original note into evidence; and (2) by involuntarily dismissing the bank’s foreclosure action as a result. We agree with both arguments and reverse for a new trial.

We present this opinion in five parts:

1. the parties’ pleadings;
2. the trial proceedings;
3. the trial court’s error in denying the original note’s admissibility;
4. the trial court’s error in involuntarily dismissing the bank’s action; and
5. why the defendants’ argument in support of affirmance lacks merit.

1. The Parties’ Pleadings

The bank filed its verified complaint to foreclose on the defendants’ mortgage. The verified complaint alleged as follows. Defendant Jimenez executed a promissory note payable to SunTrust Mortgage, Inc. (“the lender”). On the same date, the defendants executed a mortgage in the lender’s favor to secure payment of the note. The defendants later defaulted on the note and mortgage. Before the bank filed the foreclosure action, the lender assigned the note and mortgage to the bank.

Attached to the verified complaint was the bank’s “Certification Regarding Possession of Original Promissory Note” pursuant to section 702.015(4), Florida Statutes (2013). In the certification, the bank’s representative stated, in pertinent part: “[Attached hereto is a correct copy of the original note and allonge(s), if any.”

The attachment contained copies of the note and an allonge. On the signature page of the note, just beneath defendant Jimenez’s signature, appeared an endorsement stating that the note was payable from the lender to the bank. However, stamped on top of the endorsement was the word “VOID.” In any event, the allonge stated that the note was payable from the lender to the bank. The allonge contained a date which preceded the bank’s filing of the verified complaint.

The defendants filed their answer and affirmative defenses. The defendants’ first affirmative defense stated:

Pursuant to 673.3081, Florida Statutes, Defendants specifically deny the authenticity of any document presented as the original promissory note. Defendants also specifically deny the authenticity of any signatures, and the authority of any person or persons making them, on the promissory note and mortgage and any documents related to them, including, but not limited to, any endorsement of the note or signature on the assignment of mortgage.

2. The Trial Proceedings

At the non-jury trial, the bank presented as its witness a “default service officer” who worked for the lender since before the lender issued the loan. The witness testified that the lender continued to service the loan on the bank’s behalf, as evidenced by a power of attorney which the bank provided to the lender. The bank introduced the power of attorney into evidence without objection.

The witness then identified the original note and allonge. The witness testified that the original note contained defendant Jimenez’s signature. The witness also testified that the note’s signature page contained not only the voided endorsement, but also another undated blank endorsement, as well as the attached allonge from the lender to the bank. The witness further testified that the lender’s allonge to the bank pre-dated the bank’s filing of the verified complaint and certification.

When the bank sought to introduce into evidence the original note and allonge, the defendants objected. The defendants did not state a traditional “legal” basis for their objection. Instead, the defendants argued that the original note should be inadmissible because its signature page differed from the signature page of the note’s copy which the bank attached to the verified complaint and certification, in that the original note’s signature page, besides showing the voided endorsement shown on the note’s copy attached to the verified complaint and certification, also showed, on the opposite side of that page, the lender’s undated blank endorsement.

Before the bank could respond to the defendants’ objection, the defendants requested to voir dire the bank’s witness about the discrepancy. The trial court permitted the voir dire. During the voir dire, the bank’s witness testified she did not know when the undated blank endorsement was placed on the original note.

The defendants resumed their objection to introduction of the original note based on the discrepancy between the signature page on the note’s copy versus the signature page on the original note. The following discussion occurred:

DEFENDANTS’ COUNSEL: What is important, Your Honor, is the law requires a certification, and if you look at the complaint, there is also a certification ....
And if you look at the [certification], [the signatory] certified that [the attachment] ... was [a copy of] the original Note and you will see that the endorsement is missing. So, sometime after the Complaint was filed and the presentation of the [original] Note [at trial], an endorsement popped up. ... And this has nothing to do with an allonge, Your Honor. This has to do with what appears to be a Fraud on the Court because this endorsement would have been [included on the copy of the note]... attached to the Complaint.
Florida Statute requires, 702.015, that the bank must certify ... they have the original Note at the time of filing the Complaint and they are supposed to attach it to their certification.
Your Honor, the [undated blank] endorsement is not there [on the note copy attached to the verified complaint and certification].
COURT [speaking to the witness]: Do you know how it came to be that [undated blank endorsement] was placed on [the original note] or when it was placed on there?
WITNESS: I do not have any idea when the [undated blank endorsement] was placed on [the original note]. I really don’t.
.COURT [speaking to the bank’s coun: sel]: Any other questions.
BANK’S COUNSEL: I would still like to remind the Court that the copy of the Note that was attached to our Complaint as Exhibit A does bear an allonge from the original lender to [the bank].
COURT: But that was not the point that [the defendants’ counsel] was raising.

After the foregoing discussion, the trial court sustained the defendants’ objection to the admission of the original note, without stating a traditional “legal” basis for sustaining the objection. Shortly thereafter, the following discussion occurred:

DEFENDANTS’ COUNSEL: [A]t this time, I would like to move for an Involuntary Dismissal, Your Honor, because without the Note they have no case.
BANK’S COUNSEL: Your Honor, I do not believe that is appropriate at this time. If you would allow. me to elicit some more testimony from the witness.
COURT: Sure, but if you do not have the Note in [evidence] ... there is a problem.

The bank then sought, through the witness’s testimony, to lay the foundation to admit the original note into evidence under the business records exception to the hearsay rule. After laying the foundation, the bank requested to admit the original note into evidence. The defendants objected without stating any basis. The trial court sustained the objection, also without stating any basis.

The bank then requested to admit the original note into evidence as a self-authenticating document. The defendants again objected without stating any basis. The trial court sustained the objection, but this time stating: “[The original note] is not coming [into evidence], because no one knows how, when, or where [the undated blank endorsement] was placed on there, and clearly it was placed there after the filing [of the verified complaint and certification].”

After the trial court’s ruling on the note being inadmissible, the following discussion occurred which brought the trial to a premature end:

BANK’S COUNSEL: You will also [see] that there is an allonge attached to the Note from ... the original lender to [the bank]. That allonge transfers the Note and the date of the allonge is ... prior to the filing of this action. ... The existence of the [undated blank endorsement] on the bottom of the [original note’s] Signature Page which the Court has taken notice of is inconsequential because [the lender] has already transferred their interest in that—
COURT:—[W]hy was [the undated blank endorsement] placed there after filing [the verified complaint and certification]?
BANK’S COUNSEL: Your Honor, mistakes happen. We cannot answer that. You elicited testimony from the witness on that.
DEFENDANTS’ COUNSEL: And my argument is that it perpetrated a Fraud on the Court.
COURT: I’m going to Involuntarily Dismiss the case.
And so the record is clear, there is no Fraud on the Court as far as I am concerned, zero, but I don’t think that the [original note] should be introduced into evidence. It is different than [the copy of the note] that was attached to the Complaint. It is also clear after argument and testimony that [the undated blank endorsement] was placed [on the original note] sometime after the filing [of the complaint] ... but [the original note] is not coming into evidence and [the bank] cannot prove [its] case without [the original note].
BANK’S COUNSEL: Your Honor, would you also acknowledge that the allonge to the Note from the original lender—
COURT: The record is clear as to what the allonge says.

This appeal followed. The bank argues the trial court erred in two respects: (1) by denying the admissibility of the original note into evidence; and (2) by involuntarily dismissing the bank’s foreclosure action as a result. We agree with both arguments. We address each in turn.

3. The Trial Court’s Error in Denying the Original Note’s Admissibility

Although the defendants did not state a basis for their objection to the original note’s admissibility, it appears their objection, and the trial court’s sustaining of that objection, was based on the note’s authenticity. Put another way, the defendants appear to have argued, and the trial court appears to have found, that the original note was not authentic based on the discrepancy between the signature page on the note’s copy filed with the verified complaint and certification, which did not contain the undated blank endorsement, and the signature page on the original note presented at trial, which contained the undated blank endorsement.

We review the trial court’s denial of the admissibility of the original note, on the basis of authenticity, for an abuse of discretion, limited by the rules of evidence. See Maslak v. Wells Fargo Bank, N.A., 190 So.3d 656, 659 (Fla. 4th DCA 2016) (“We review the admissibility of evidence for an abuse of discretion, limited by the rules of evidence.”) (citation omitted).

Applying the rules of evidence, the trial court erred in denying the admissibility of the original note on the basis of authenticity. Section 90.902(8), Florida Statutes (2015), provides: “Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for ... [c]ommercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code.”

Under the Uniform Commercial Code, the placement of the undated blank endorsement on the original note after the filing of the verified complaint and certification did not affect the original note’s authenticity and enforceability. Section 673.4071, Florida Statutes (2015), entitled “Alteration,” provides, in pertinent part:

(1) The term “alteration” means:
(a) An unauthorized, change in an instrument which change purports to modify in any respect the obligation of a party, ...
(2) ... [A]n alteration fraudulently made discharges a party whose obligation is affected by the alteration unless that party assents or is precluded from asserting the alteration. No other alteration discharges a party, and the instrument may be enforced according to its original terms.

(emphasis added).

Applying section 673.4071 here, the placement of the undated blank endorsement on the original note after the filing of the verified complaint and certification did not constitute an “alteration.” No evidence existed to show that the endorsement was “unauthorized” or “purported to modify in any respect the obligation of a party” (in this case, defendant Jimenez). § 673.4071(l)(a), Fla. Stat. (2015). As such, the original note “may be enforced according to its original terms.” § 673.4071(2), Fla. Stat. (2015).

A similar ease is Peacock v. Farmers and Merchants Bank, 454 So.2d 730 (Fla. 1st DCA 1984). There, the mortgagors appealed from a final judgment of foreclosure on real property mortgaged as security for two loans secured from the appellee bank. Id. at 732. The mortgagors contended, among other things, that the bank materially altered the two notes upon which their obligations to the bank were based. Id. at 733. The First District concluded that the differences in the various copies of the two notes (the addition of charges for credit life insurance and an alleged alteration of interest rates) were not material. Id. at 734-35. The First District further concluded that, even assuming the notes were materially altered, the mortgagors’ argument still failed. Id. at 735. According to our sister court:

Section 673.407(2)(a), Florida Statutes [the predecessor to section 673.4071], requires proof that the alteration in question was undertaken for fraudulent purposes. Absent such a finding, a guarantor will not be discharged from his obligation. [The mortgagors] made no showing that the bank supplied additional terms or materially altered the notes for a fraudulent purpose. On the contrary, the evidence is easily susceptible to the interpretation that all of [the bank’s] actions with respect to the notes were taken in accordance with the intention of the parties.

Id. (infernal citations omitted).

The instant case is similar to Peacock. Here, the difference between the note’s copy filed with the verified complaint and certification, which did not contain the undated blank endorsement, and the original note presented at trial, which contained the undated blank endorsement, was not material. The placement of the undated blank endorsement on the original note after the bank filed the verified complaint and certification was superfluous given the existence of the allonge from the lender to the bank which pre-dated the filing of the verified complaint and certification. Even assuming the undated blank endorsement materially altered the original note, the defendants made no showing that the bank altered the original note for a fraudulent purpose. On the contrary, the evidence is easily susceptible to the interpretation that the undated blank endorsement was placed on the original note by someone unaware of the existence of the allonge from the lender to the bank.

Based on the foregoing, the trial court erred in denying the original note’s admissibility.

Jp. The Trial Court’s Error in Involuntarily Dismissing the Bank’s Action

As is plain from the record excerpts above, the trial court- involuntarily dismissed the bank’s action before the bank completed its presentation of evidence because the trial court believed the bank could not show a prima facie case without the original note being admitted into evidence.

For example, when the bank’s counsel objected to the defendants’ motion for an involuntary dismissal by arguing “I do not believe that is appropriate at this time,” that is, before the bank completed its presentation of evidence, the trial court responded, “Sure, but if you do not have the Note in [evidence] ... there is a problem.”

Then, when the trial court ultimately granted the defendants’ motion for involuntary dismissal before the bank completed its presentation of evidence, the trial court reasoned: “It is .., clear after argument and testimony that [the undated blank endorsement] was placed [on the original note] sometime after the filing [of the complaint] ... but [the original note] is not coming into evidence and [the bank] cannot prove [its] case without [the original note].”

We review de novo the trial court’s granting of the defendants’ motion for involuntary dismissal before the bank completed its presentation of evidence. See Wells Fargo Bank, N.A. v. Gonzalez, 186 So.3d 1092, 1098 (Fla. 4th DCA 2016) (where trial court granted the defendant’s motion for involuntary dismissal before the plaintiff completed its case in chief, the appellate court’s standard of review was de novo).

Applying de novo review, we conclude that the trial court erred in involuntarily dismissing the bank’s foreclosure action before the bank completed its presentation of evidence. Florida Rule of Civil Procedure 1.420(b) (2015), which governs involuntary dismissals in a nonjury trial, provides, in pertinent part:

Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under rule 1.090(d). After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence.

Fla. R. Civ. P. 1.420(b) (2015) (emphasis added).

Applying rule 1.420(b)’s plain language emphasized above, we consistently have held that “a trial court may not order an involuntary dismissal of a case before a plaintiff rests its case.” Wachovia Mortg., FSB v. Montes, 156 So.3d 1105, 1106 (Fla. 4th DCA 2015). See also Gonzalez, 186 So.3d at 1098 (“[I]t was improper to grant the motion for involuntary dismissal before the plaintiff completed its case in chief.”); Deutsche Bank Nat. Trust v. Stone, 174 So.3d 550, 550 (Fla. 4th DCA 2015) (trial court reversibly erred in involuntarily dismissing foreclosure action before the bank rested its case).

Here, regardless of the trial court’s incorrect denial of the original note’s inadmissibility, the trial court erred by granting the defendants’ motion for involuntary dismissal where the bank had not rested its case or otherwise indicated it had completed its presentation of evidence. This error was merely compounded by the fact that the trial court based its decision on its incorrect denial of the original note’s admissibility. Cf. Stone, 174 So.2d at 550 (trial court’s error in involuntarily dismissing foreclosure action before bank rested its case “was compounded by the fact that the trial court based its decision to involuntarily dismiss the foreclosure action on its incorrect ruling regarding the admissibility of the notice of default letter”); Montes, 156 So.3d at 1106 (“[The bank] had scarcely begun presenting . its case when the court noticed that the original note was not in the court file and, as a result, granted the defendants’ motion for involuntary dismissal. [The bank] was denied the opportunity to present any evidence in support of its claim, let alone finish its case-in-chief. The trial court erred in granting the defendants’ motion ....”).

Based on the foregoing, the trial court erred in involuntarily dismissing the bank’s action before the bank completed its presentation of evidence.

5. Why the Defendants’ Argument in Support of Affirmance Lacks Merit

Despite the errors described above, the defendants seek affirmance based on their claim that they moved for involuntary dismissal of the bank’s action not on thé fact that the bank could not prove its ease without the original note being admitted into evidence, but on the basis of rule 1.420(b)’s first sentence (“Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.”). According to the defendants, their motion for involuntary dismissal was based on the bank’s alleged failure to comply'with section 702.015(4), Florida Statutes (2015), and its implementing rule, Florida Rule of Civil Procedure 1.115(c) (2015).

The defendants’ argument is belied by the record. The record, as shown above in this opinion, indicates that although the defendants mentioned section 702.015 in their arguments to the trial court, they did so merely to describe the reason for the existence of the certification, as a prelude to what ultimately became their authenticity objection to the original note’s admissibility. The record further indicates that, upon the trial court sustaining the defendants’ objection, the defendants’ motion for involuntary dismissal was not based upon rule 1.420(b)’s first sentence (“Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.”), but upon rule 1.420’s third sentence (“After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief .... ”). The defendants’ counsel argued: “[The defendants] would like to move for an Involuntary Dismissal, Your Honor, because without the Note [the bank has] no case.” (emphasis added). The trial court granted the defendants’ motion on that basis alone, reasoning: “It is ... clear after argument and testimony that [the undated blank endorsement] was placed [on the original note] sometime after the filing [of the complaint] ... but [the original note] is not coming into evidence and [the bank] cannot prove [its] case without [the original note]." (emphasis added).

Conclusion

Based on the foregoing, we reverse and remand for a new trial, at which the trial court shall admit the original note into evidence as a self-authenticating document, and shall proceed with the trial accordingly.

Reversed and remanded for new trial.

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


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Charles VISCITO, Appellant/Cross-Appellee, v. Barbara VISCITO, Appellee/Cross-Appellant.
    No. 3D15-786
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017

      Crabtree & Auslander and John G. Crabtree, Charles M. Auslander, George R. Baise, Jr. and Brian C. Tackenberg, for appellant/cross-appellee.
    Richard A. Schurr; Christy L. Hertz and Katie Gill, for appellee/cross-appellant.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   On Motion for Rehearing

SALTER, J.

On consideration of the appellant’s motion for rehearing and the response, we grant the motion, withdraw our opinion in this case issued December 21, 2016, and replace it with the opinion which follows.

Charles Viscito (“Former Husband”) appeals two aspects of an amended final judgment of dissolution of his marriage to Barbara Viscito (“Former Wife”). The Former Wife cross-appeals certain determinations within the amended final judgment as well. Finding no error, we affirm the trial court’s amended final judgment.

Issues

The Former Husband argues that the trial court’s computation of his equitable interest in a Key Biscayne condominium was erroneous. On cross-appeal, the Former Wife argues that the trial court’s award of passive, market-driven appreciation relating to the condominium was erroneous because an incorrect valuation date was used. This argument, however, was withdrawn by the Former Wife before the case was heard at oral argument.

The Former Husband’s second claim asserted here, but not below, is for some form of alimony other than permanent periodic alimony. The Former Wife’s second point on cross-appeal challenges any such claim by the Former Husband.

Analysis

“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th DCA 2008) (quoting Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2008)). The issues addressed by the trial court were not unalloyed issues of law, but rather mixed issues of law and fact.

In the present case, many of the facts regarding the parties’ equitable interests in the Kéy Biscayne condominium (which served as the marital residence during the marriage) were not in dispute. The Former Wife and her sister purchased the condominium four years before the Former Wife married. The Former Husband and Former Wife bought the Former Wife’s sister’s 50% ownership interest six years into the marriage. The condominium was titled exclusively in the name of the Former Wife, however, and the marital funds invested in the condominium were exceeded by refinancing proceeds expended in substantial part because the Former Husband had a secret gambling problem and was unemployed. These problems culminated in a Chapter 13 bankruptcy proceeding during the marriage.'

The trial court determined, based on competent and largely undisputed evidence, that the fair market value of the condominium at the date of marriage was $255,000.00, at which time the mortgage balance was $133,000.00. At the time of trial, the fair market value of the condominium was $690,000.00, and the mortgage balance was $224,448.00.

.[1] Applying the provisions of section 61.075, Florida Statutes (2015), governing equitable distribution of marital assets and liabilities, the trial court concluded that only 50% of the passive, market-driven appreciation during the marriage should be awarded to the Former Husband. The Former Wife retained title to the condominium and exclusive liability for the mortgage debt encumbering it.

The trial court computed the passive appreciation as specified in Kaaa v. Kaaa, 58 So.3d 867 (Fla. 2010), and section 61.075(6)(a)l.b, Florida Statutes (2015). The loan-to-value ratio computed at the time of the marriage (.522 in this case) was multiplied by the current fair market value ($690,000.00), yielding the amount of $360,180.00. The current mortgage amount, $224,448, was subtracted from that amount, yielding a total passive appreciation figure of $135,732.00. The trial court found that although marital funds had been used for part of the acquisition of the Former Wife’s sister’s 50% interest in the condominium and to make certain mortgage payments, the aggregate mortgage debt had also increased as a result of the Former Husband’s gambling and losses and voluntary unemployment. Accordingly, the Former Husband’s award of passive, market-driven appreciation of the condominium was reduced to half of the total, or $67,866.00.

We reject the Former Husband’s argument that he should be awarded a higher figure based on a computation allowing him one-half of the net fair market value of the condominium, plus one-half of the passive, market-driven appreciation on the Former Wife’s non-marital interest, plus certain mortgage payments from marital funds that allegedly reduced the mortgage debt on the non-marital interest in the condominium. The Former Husband’s computation does not take into account the increases in the mortgage debt caused by the Former Husband’s gambling losses and unemployment. The Former Husband’s calculation also does not follow the algorithm detailed in Kaaa, which adjusts the allocation by accounting for the loan-to-value ratio of the property at the time of the marriage.

We find no abuse of discretion in the trial court’s decisions regarding equitable distribution relating to the condominium, particularly given the use of the Former Wife’s non-marital property to obtain refinancing proceeds in an effort to stanch the Former Husband’s conceded gambling losses and the impact of his voluntary unemployment.

The Former Husband’s second issue is directed to the denial of his request for permanent periodic alimony. He argues that the marriage of 21 years, his unemployment since 2001 (and status as a stay-at-home father for 12 years of the marriage), and the Former Wife’s income required such an award or some other form of alimony. The trial court did not abuse its discretion on this point, however, as there was competent evidence that (a) 'the Former Husband was employable but voluntarily remained unemployed, and (b) the Former Husband’s gambling debts and misapplications of marital funds adversely affected the family’s financial position and lifestyle. See § 61.08(2), Fla. Stat. (2015).

On cross-appeal, the Former Wife also argues that the Former Husband is confined by his pleadings to a claim for permanent periodic alimony, i.e., that he may not now claim some other form of alimony as specific relief that was not prayed for in any of his pleadings or by amendment at trial. Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3d DCA 1983). The Former Wife’s position is well taken on this point as well.

The Amended Final Judgment of Dissolution of Marriage is affirmed in all respects.

      . The trial court found, based on expert vocational evaluation testimony, that the Former Husband's unemployment after late 2001 was voluntary.

      . The Former Husband was also awarded one of two parking space and one of two storage units at the condominium, as the trial court concluded that these property interests were acquired with proceeds of a refinancing during the marriage. Neither party challenged that determination here.


author: KHOUZAM, Judge.

text:
    Ob Akeem Rendell ARNOLD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2275
    District Court of Appeal of Florida, Second District.
    Opinion filed March 17, 2017

      Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Ob Akeem Rendell Arnold appeals his convictions and sentences for robbery while wearing a mask and resisting an officer without violence. We affirm in all respects but remand for the entry of a written competency order.

Arnold argues that he was deprived of due process because the circuit court failed to conduct a sufficient competency hearing and instead relied solely on the parties’ stipulation that he was competent. In Dougherty v. State, 149 So.3d 672 (Fla. 2014), the Florida Supreme Court delineated the appropriate procedure for addressing a defendant’s competency, emphasizing that “it is necessary for courts to observe the specific hearing requirements set forth in the rules in order to safeguard a defendant’s due process right to a fair trial and to provide the reviewing court with an adequate record on appeal.” Id. at 676. The supreme court held that

[although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant’s competency, and must enter a written order if the defendant is found competent to proceed.

Id. at 679. A defendant cannot simply stipulate that he is competent, even when all of the experts agree that he is competent, because “[a]ccepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant’s competency to stand trial.” Id. at 678. “In particular, the rules do not contemplate such stipulations where the trial court has previously concluded that a particular defendant is incompetent and his competency has yet to be restored.” Id.

In the instant case, Arnold was never found to be incompetent. And even though the parties did stipulate to the findings contained in the doctor’s report, the trial court specifically stated that it was finding Arnold competent “based on the report and the findings contained therein,” as opposed to simply accepting the parties’ stipulation. So the record shows that the court made an independent determination regarding Arnold’s competency.

However, the court did fail to enter a written order. Accordingly, we must remand for the entry of a nunc pro tunc order adjudicating Arnold competent to proceed. See Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016).

Affirmed; remanded with instructions.

LUCAS and SALARIO, JJ., Concur.


author: PER CURIAM.

text:
    Drinel JOSEPH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2442
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017
    Drinel Joseph, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Drinel Joseph appeals the summary denial of his amended motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised ten grounds in his motion for post-conviction relief. We reverse as to ground five because it is not conclusively refuted by the records attached to the order of denial. We remand for the postconviction court to either attach records refuting the claims set forth in ground five or to schedule an evidentiary hearing. We affirm, without further discussion, the postconviction court’s rulings on the remaining grounds.

Appellant was convicted following a jury trial of two counts of first-degree murder and sentenced to two concurrent life sentences. He initially presented a false alibi to police: that he was in Homestead, Florida, where he lived, on the day that his former girlfriend and her co-worker were murdered in Orlando. However, cell phone usage evidence presented to the jury demonstrated that Appellant’s phone pinged towers as he drove from Homestead to Orlando and back to Homestead on the day of the murders. There was additional cell phone data evidence that placed him near the murder scene around the time of the murders. At trial, witnesses testified that Appellant was a jealous, possessive boyfriend who had twice threatened his former girlfriend with a gun. Although Appellant’s former girlfriend continued to see him occasionally, she was sufficiently scared of Appellant to kick him out of her apartment, change the locks, arid repeatedly change phone numbers. She also wrote notes, in which she stated that if anything ever happened to her, Appellant would be the culprit.

In ground five, Appellant alleged that defense counsel was ineffective by discouraging, and thereby interfering with, his right to testify. Appellant claims that his counsel incorrectly advised him that the jury would hear the “specific nature” of his prior convictions, instead of learning only the number of his prior convictions. Affirmative misadvice regarding impeachment with prior convictions is a cognizable claim. See Rodriguez v. State, 909 So.2d 955, 956 (Fla. 3d DCA 2005). Appellant claims that but for this misadvice, he would have testified, even though his testimony would have included an admission that he liéd to the police about his alibi because he was on probation and was not supposed to leave Dade County. He claims that he would have told the jury that his sole reason for going to Orlando was to purchase half a kilo of cocaine for resale, as he supplemented his income by selling drugs. Appellant alleges that he would have testified that1 he made numerous calls to his cocaine connection as he drove around Orlando, which would explain why his cell phone pinged towers near the murder scene. Although he admits that all the other witnesses testified differently, he was prepared to testify that his relationship with his former girlfriend was good and that she was not afraid of him. Finally, Appellant claims he would have testified that he was not near the murder scene at the time of the murders and did not kill the victims. He asserts that his testimony would have led to an acquittal because, as he claims, the State’s case was entirely circumstantial and was based on the bad relationship between him and his former girlfriend.

While we agree with the postconviction court that this proposed testimony may not have resulted in an acquittal, it was Appellant’s decision whether or not to testify in his own defense. The trial court did not attach any records to its order of denial to refute Appellant’s claim set forth in ground five, that his attorney affirmatively misadvised him not to testify because the nature of his prior offenses, rather than only the number of the prior offenses, would be made known to the jury. Appellant is entitled to a timely hearing on ground five, unless portions of the record that conclusively refute this claim can be attached to a supplemental order of denial.

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

PALMER, TORPY, and EDWARDS, JJ., concur.


author: ROWE, J.

text:
    Rick SCOTT, in his official capacity as Governor of the State of Florida, Petitioner, v. Gail FRANCATI, Respondent.
    CASE NO. 1D16-3942
    District Court of Appeal of Florida, First District.
    Opinion filed March 20, 2017.

      Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General, Tallahassee, for Petitioner.
    Joanna Greber Dettloff, Gary L. Wim-bish, and Megan L. Giselar of Wilkes & McHugh, Tampa, for Respondent.
   ROWE, J.

Governor Rick Scott petitions this Court for a writ of prohibition to bar further proceedings in the trial court because he is not a proper defendant and because no justiciable case or controversy exists. For the reasons that follow, we grant the petition.

Background

Gail Francati, a former nursing home resident, seeks a declaration regarding the constitutionality of the 2014 amendments to section 400.023, Florida Statutes. Fran-cati argues that the amendments violate the separation of powers doctrine by creating new procedural rules singling out nursing home residents and violate her right to access to courts by limiting the parties that can be named as defendants in an action brought by a nursing home resident alleging negligence or a violation of residents’ rights. She named the State of Florida and Rick Scott, in his capacity as Governor, as defendants in her complaint. Governor Scott and the State moved to dismiss the complaint on two grounds: (1) they were not proper parties to the suit; and (2) the complaint failed to state an actual case or controversy. After a hearing, the trial court granted the State’s motion to dismiss but ruled that Francati’s suit against Governor Scott could proceed. Governor Scott petitions this Court for a writ of prohibition to prevent further proceedings in the circuit court.

Whether the Governor is a Proper Defendant

The determination of whether a state official is a proper defendant in a declaratory action challenging the constitutionality of a statute is governed by three factors. The determination begins with ascertaining whether the named state official is charged with enforcing the statute. Haridopolos v. Alachua Cty., 65 So.3d 577, 578 (Fla. 1st DCA 2011); see also Marcus v. State Senate for the State, 115 So.3d 448, 448 (Fla. 1st DCA 2013) (holding that state legislators were not proper parties to an action challenging a statute that preempted county and municipal regulation of firearms and ammunition because the legislators were not designated as the enforcement authority); Walker v. President of the Senate, 658 So.2d 1200 (Fla. 5th DCA 1995) (holding that the Senate President and Speaker of the House were not proper parties to a declaratory-action challenging certain operations of the Department of Corrections). If the named official is not the enforcing authority, then courts must consider two additional factors: (1) whether the action involves a broad constitutional duty of the state implicating specific responsibilities of the state official; and (2) whether the state official has an actual, cognizable interest in the challenged action. Atwater v. City of Weston, 64 So.3d 701, 703 (Fla. 1st DCA 2011); see also Coal, for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 403 (Fla. 1996) (holding that the governor was a proper party to an action challenging the failure to adequately fund the public education system due to his position as chief executive officer and chairperson of the Board of Education); Brown v. Butterworth, 831 So.2d 683, 689-90 (Fla. 4th DCA 2002) (holding that the attorney general and the president of the Florida Senate were proper parties to, an action challenging the constitutionality of a redistricting plan). Applying these factors to Francati’s complaint, we conclude that Governor Scott is not a proper defendant to her suit.

Specifically, Francati challenges the constitutionality of section 400.023(3), Florida Statutes (2015), which provides:

(3) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors, unless, after a motion for leave to amend hearing, the court or an arbitration panel determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that:
(a) The individual or entity owed a duty of reasonable care to the resident and that the individual or entity breached that duty; and
(b) The breach of that duty is a legal cause of loss, injury, death, or damage to the resident.
For purposes of this subsection, if, in a proposed amended pleading, it is asserted that such cause of action arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the proposed amendment relates back to the original pleading.

A review of the statute reveals that Governor Scott is not charged with enforcing the statute. Indeed, Francati never argues that Governor Scott is an enforcing authority under the statute. Neither does she allege that the nursing home pre-suit statute involves a broad constitutional duty of the state implicating specific responsibilities of Governor Scott or that Governor Scott has an actual, cognizable interest in the challenged action. Rather, Francati argues that she is not required to demonstrate any of these factors because, unlike the statutes challenged in Marcus, Harido-polos, Atwater, and Walker, the statute challenged in her declaratory action is self-executing. She posits that the Governor is a proper defendant in a suit challenging the constitutionality of a self-executing statute by virtue of his general executive duty to execute and enforce the laws of Florida. We find no merit in this argument.

While we .recognize that Atwater involved a statute that identified a specific enforcement authority, the holding in that case is equally applicable to an action challenging the constitutionality of a self-executing statute, such as section 400.023. The question of whether a state official is a proper defendant to a suit challenging the constitutionality of a statute does not turn on whether the statute is self-executing. Rather, as our court instructed in Atwater, our analysis focuses on whether the named defendants have an actual interest in the outcome of the lawsuit, necessary for the court to exercise its jurisdiction to render a declaratory judgment:

Even though the legislature has expressed its intent that the declaratory judgment act [chapter 86, Florida Statutes] should be broadly construed,, there still must exist some justiciable controversy between adverse parties that needs to be resolved for a court to exercise its jurisdiction. Otherwise, any opinion on a statute’s validity would be advisory only and improperly considered in a declaratory action.

Id. at 704-05 (quoting Martinez v. Scanlan, 582 So.2d 1167, 1170-71 (Fla. 1991)) (emphasis in original).

Contrary to Francati’s assértion and the trial court’s order, the Governor’s general executive power, standing alone, does not render him a proper defendant in a challenge to the constitutionality of a self-executing statute. Harris v. Bush, 106 F.Supp.2d 1272, 1276-77 (N.D. Fla. 2000). Article IV, section 1 of the Florida Constitution requires Governor Scott, as Chief Executive Officer of the State, “to take care that the laws be faithfully executed.” It is absurd to conclude that the Governor’s general executive power under the Florida Constitution is sufficient to make him a proper defendant whenever a party seeks a declaration regarding the constitutionality of a state law. Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003) (“If a governor’s general executive power provided a sufficient connection to state law to permit jurisdiction over him, any state statute could be challenged simply by naming the governor as a defendant.”). With regard to Francati’s action, Governor Scott has no enforcement authority over the statute she challenges. And there is no relief the court could order Governor Scott to provide to remedy the constitutional violation alleged in the complaint. Where it is clear, as here, that the plaintiff cannot allege any. proper basis for naming the Governor as a party defendant, the court should decline to assert jurisdiction.

Whether Francati Has Alleged a Justiciable Controversy

Governor Scott also argues that the trial court lacks subject matter jurisdiction over this case' because Francati failed to allege a justiciable controversy that would entitle her to declaratory relief. “Declaratory'judgment is appropriate only, when there is an actual controversy before the court; a court otherwise lacks jurisdiction.” Yell v. Healthmark of Walton, Inc., 772 So.2d 568, 570 (Fla. 1st DCA 2000). Thus, Francati was required to allege a justiciable controversy before the trial court could reach the merits of her constitutional claim. Apthorp v. Detzner, 162 So.3d 236, 240 (Fla. 1st DCA 2015). Specifically, Francati was required to allege “a present controversy based on articulated facts which demonstrate a . real threat of immediate injury.” Id.

Although she has been presented with multiple opportunities tó do so, Fran-cati fails to allege a violation of section 400.023. She does not allege that an individual or entity-other than the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors-breached a duty of reasonable care that caused her to suffer some sort of injury or loss. Instead, Fran-cati contends that her complaint alleges a present controversy because section 400.023 directs the procedures she must follow, takes away her common law right to bring a suit for negligence, and limits her remedies in violation of her constitutional rights of due process and access to courts. These general allegations are insufficient to demonstrate a justiciable controversy. “To be entitled to a declaratory judgment, ‘the dispute must be justiciable in the sense that it is based upon some definite and concrete assertions of right, the contest therefore involving the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought.’ ” Id. at 241 (quoting Colby v. Colby, 120 So.2d 797, 799 (Fla. 2d DCA 1960)). Francati merely raises a general challenge to the constitutionality of section 400.023; she fails to allege any concrete injury or how the statute actually infringes on any of her rights. These deficiencies in her complaint prevent her from presenting a justiciable controversy and deprive the trial court of subject matter jurisdiction.

Prohibition is an Appropriate Remedy in this Case

“Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction.” Mandico v. Taos Const., Inc., 605 So.2d 850, 853 (Fla. 1992). Prohibition “does not he to prevent mere error in the exercise of the inferior tribunal’s jurisdiction.” Haridopolos v. Citizens for Strong Sch., Inc., 81 So.3d 465, 468 (Fla. 1st DCA 2011). The supreme court has explained:

prohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction; nor may it be used to test the correctness of a lower tribunal’s ruling on jurisdiction where the existence of jurisdiction depends on controverted facts that the inferior tribunal has jurisdiction to determine.

Id. (citing English v. McCrary, 348 So.2d 293, 297 (Fla. 1977)).

Rather, prohibition must be used “only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy.” Id. Thus, the writ has very limited application:

Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction. It is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do. Its purpose is to prevent the doing of something, not to compel the undoing of something already done.

Roberts v. Brown, 43 So.3d 673, 677-78 (Fla. 2010) (quoting English, 348 So.2d at 296-97). And with regard to appellate review of non-final orders not designated as appealable under Florida Rule of Appellate Procedure 9.130(a)(3), such as motions to dismiss, the supreme court has admonished that extraordinary relief is available only in very limited circumstances. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344, 349 (Fla. 2012). Those circumstances include when another court or administrative body has jurisdiction over the subject matter, when the trial court proceeds in a case where it has lost jurisdiction, and when the order on review turns on an issue of law and the trial court lacks subject matter jurisdiction.

First, a writ of prohibition may be granted when a trial court acts outside of its jurisdiction. For example, prohibition is appropriate when another court or administrative body has jurisdiction over the subject matter. Roberts, 43 So.3d at 673 (granting a writ of prohibition challenging the denial of a motion to dismiss a pre-election challenge to a proposed citizen-initiative amendment because the supreme court has exclusive jurisdiction over such matters); Dep’t of Agric. & Consumer Servs. v. Bonanno, 568 So.2d 24 (Fla. 1990) (granting a writ of prohibition challenging the denial of a motion to dismiss a citrus canker lawsuit because the state removed jurisdiction over those cases from the circuit court and required them to be heard through the administrative hearings process); Durham v. Butler, 89 So.3d 1023 (Fla. 3d DCA 2012) (granting a writ of prohibition challenging the trial court’s denial of a motion to dismiss a paternity complaint because a similar action was still pending in a Missouri court).

Second, prohibition is appropriate when the circuit court attempts to proceed in a case when it has lost jurisdiction. State, Dep’t of Highway Safety & Motor Vehicles v. Lopez, 188 So.3d 95 (Fla. 3d DCA 2016) (granting a writ of prohibition where the trial court lost jurisdiction over a case after the plaintiff failed to challenge a ruling within the statutory timeframe); Travelers Cas. & Sur. Co. of Am. v. Culbreath Isles Prop. Owners Ass’n, 103 So.3d 896 (Fla. 2d DCA 2012) (granting a writ of prohibition where the trial court exceeded its jurisdiction by allowing a party to proceed on a supplemental third-party claim filed after entry of final judgment).

Finally, prohibition is a proper remedy when the order being reviewed turns on an issue of law, the facts are uncontroverted, and the lower tribunal is poised to proceed without subject matter jurisdiction. Nikolits v. Hanna, 92 So.3d 299 (Fla. 4th DCA 2012) (granting a writ of prohibition where it was undisputed that the plaintiffs failed to comply with a statutory. requirement to bring a suit to challenge a tax assessment): DHL Express (USA), Inc. v. State, ex rel. Grupp, 60 So.3d 426, 428 (Fla. 1st DCA 2011) (granting a writ of prohibition where there was no disputed issue of fact and it was clear that the court lacked subject matter jurisdiction over the proceeding). On the other hand, when the question of the trial court’s jurisdiction rests on controverted facts and the court has jurisdiction to make a factual determination, a writ of prohibition may not be granted. See Dressier v. Dressier, 967 So.2d 1009, 1010 (Fla. 4th DCA 2007) (denying á writ of prohibition in a dissolution of marriage proceeding because any attack on the validity of the parties’ marriage would not affect the trial court’s subject matter jurisdiction).

We conclude that the third circumstance is present here. Governor Scott seeks to prevent more than a mere error in the exercise of the trial court’s jurisdiction; rather, he seeks to prevent the trial court from proceeding in a case where it lacks subject matter jurisdiction and where no amendment to Francati’s complaint would cure the jurisdictional defects of lack of a proper defendant and lack of a justiciable controversy. Cf. Hernando Cty. v. Mills, 114 So.3d 1026, 1027 (Fla. 5th DCA 2012) (denying a writ of prohibition where it was possible that a complaint could be amended to assert a claim that would fall within the jurisdiction of the circuit court). Francati has failed to allege a justiciable claim, and she cannot argue, in good faith, that she can allege any of the factors enunciated in Atwater that would allow her to name the Governor as a defendant in her constitutional challenge to section 400.023. Under this unique set of facts, we find that prohibition is warranted to prevent the trial court from exceeding its jurisdiction and to afford Governor Scott adequate relief. Accordingly, we GRANT the petition for writ of prohibition and QUASH the order denying Governor Scott’s motion to dismiss.

RAY, and M.K. THOMAS, JJ., CONCUR.

       Dismissal of the action against Governor Scott does not deprive Francati of a means of testing the constitutionality of the statute. She may bring suit against a specific defendant, who she alleges has acted negligently or violated residents’ rights. Should that defendant then move to dismiss the suit by invoking the statute, Francati could then argue that the statute is unconstitutional as applied.


author: VILLANTI, Chief Judge.

text:
    Daniel BAIR and Quality Boats of Clearwater, Inc., Appellants, v. Laura BAIR, Appellee.
    Case No. 2D16-272
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2017.

      Michael J. Park and Joseph R. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellant Daniel Bair.
    Stephen 0. Cole and Nancy S. Paikoff of Macfarlane Ferguson & McMullen, Clear-water, for Appellant Quality Boats of Clearwater, Inc.
    Peter N. Meros, St. Petersburg, for Ap-pellee.
   VILLANTI, Chief Judge.

Daniel Bair (the Husband) appeals various aspects of the final judgment of dissolution of his marriage to Laura Bair (the Wife). Because the trial court made errors of law in determining the value of the marital portion of the Husband’s interest in his nonmarital business, Quality Boats of Clearwater, Inc., and because the trial court improperly applied the supreme court’s decision in Zold v. Zold, 911 So.2d 1222 (Fla. 2005), when determining the Husband’s income, we reverse the portions of the final judgment dealing with equitable distribution, alimony, and child support and remand for further proceedings.

Facts

The Husband filed his petition for dissolution in October 2012, after almost fourteen years of marriage. Prior to trial, the parties agreed on a time-sharing schedule with their three minor children and on the allocation of certain expenses relating to the children. They also agreed on the disposition of the marital home and the division of the household furnishings. However, the parties disagreed on the value of the marital portion of the Husband’s non-marital business, the distribution of certain other marital assets and liabilities, and the amount and duration of alimony payable to the Wife.

The trial court held a three-day hearing on these issues in February 2015. At the close of the hearing, the trial court requested that the parties submit -written closing arguments and proposed final judgments, which the parties did during March 2015. However, for reasons not apparent from the record, the trial court did not enter the final judgment of dissolution until October 26, 2015. The Wife filed a timely motion for rehearing, which the trial court granted in part. The court entered a supplemental final judgment addressing the issues on rehearing on December 7, 2015. The Husband then filed this appeal, challenging several aspects of the supplemental final judgment.

Equitable Distribution

The Husband raises two issues relating to the equitable distribution of the parties’ assets and liabilities, both of which have merit. The trial court’s errors on these two issues require us to reverse the equitable distribution scheme and remand for rede-termination of the value of the marital portion of the Husband’s nonmarital business and for redistribution of the parties’ assets and liabilities.

I. Valuation of Quality Boats

The largest asset at issue in this dissolution proceeding was the marital portion of the Husband’s nonmarital interest in his family business, Quality Boats. Testimony at the hearing established that the Husband’s father started Quality Boats when the Husband and his siblings were young children. As teenagers, the Husband and his brother began working at Quality Boats. Over time, they took on more responsibility, and the Husband’s father gifted them small amounts of stock in the company.

When the parties married, the Husband was working full-time for Quality Boats and owned a small share of the company’s stock. When the Husband’s father later passed away, he left the company to his three children—the Husband, his brother, and his sister. The Husband, who sits on the board of directors and owns 47.5% of the company stock, runs the service side of Quality Boats and also deals with all the financial and administrative aspects of the business while his brother, who also sits on the board and owns another 47.5% of the-stock, is in charge of sales. Their sister, who owns the remaining 5% of the stock, is not involved in any day-to-day operations of the company; however, her interests are represented by a third member of the company’s board of directors, who is also the company’s long-time outside accountant. .

During the dissolution proceedings, there was no dispute that the Husband’s ownership interest in Quality Boats was nonmarital; however, there was also no dispute that the Husband’s marital labor had contributed to an increase in the value of Quality Boats during the marriage. This increase in value resulting from the Husband’s marital labor constitutes a marital asset under section 61.075(6)(a)(l)(b), Florida Statutes (2012), which defines “marital assets” to include “[t]he enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during the marriage.” Hence, the trial court was required to determine the amount of the increase in the value of Quality Boats that occurred during the marriage due to the Husband’s marital labor and equitably distribute that increase as a marital asset.

Almost two full days of the three-day final hearing were devoted to testimony from the parties’ respective experts concerning the 2012 value of Quality Boats and the amount of appreciation due to the Husband’s marital labor. Ultimately, the trial court accepted the 2012 valuation of Quality Boats proposed by the Wife’s expert, which-was approximately $1 million more than the valuation proposed by the Husband’s expert. The trial court also accepted certain positions advanced by the Wife’s expert about how to calculate the portion of the increase that was due to the Husband’s marital labor.

In this appeal, the Husband contends that the trial court made five separate errors of law when determining the marital portion of the increased value of Quality Boats. While we agree with the Husband as to only two of these alleged errors, these two errors require us to reverse the valuation and remand for the trial court to redetermine the increased value of Quality Boats, recalculate the marital portion of that increased value, and revise the equitable distribution scheme accordingly.

A. Quality Boats’ Real Property

The Husband first correctly contends that the trial court erred by failing to include the value of the real property owned by Quality Boats in its valuation of the company. This egregious error of law, standing alone, requires us to reverse the equitable distribution scheme.

The evidence at the hearing showed that Quality Boats owns two parcels of real property in Pinellas County which, together with the buildings thereon, comprise the sales and service locations. Despite undisputed evidence that Quality Boats owns this real property, the Wife’s expert refused to include the value of the real property in his valuation of the company because he believed that the value of the real property had changed solely due to passive market forces rather than due to the Husband’s active management. Regardless of whether this is true as a factual matter, the exclusion of this real property from the value of Quality Boats constituted an error of. law for two reasons.

First, excluding a major asset owned by a company from the valuation of that company is legally incorrect because the value of any company comprises all the company’s assets and liabilities. To attempt to value a company while excluding several major assets owned by it, as the trial court did here, is plain error. See, e.g., Randolph v. Randolph, 626 So.2d 342, 343 (Fla. 5th DCA 1993) (noting that the value of a corporation is determined by both the value of all its assets and the amount of its liabilities and that it is error to exclude either one). In other words, the sum of all parts, not a select few, is what encompasses a business’s “value.”

Second, excluding the appreciation or depreciation of certain company assets as “passive” is improper when one party’s marital labor contributed to the change in value of the company as a whole. As the Fourth District has explained, “asset appreciation constitutes a marital asset subject to equitable distribution where marital labor contributes to its value,.notwithstanding that the increased value is primarily created passively by inflation, market conditions, or the conduct of others.” Chapman v. Chapman, 866 So.2d 118, 119 (Fla. 4th DCA 2004) (emphasis added) (quoting Pagano v. Pagano, 665 So.2d 370, 372 (Fla. 4th DCA 1996)).

For both of these reasons, the trial court’s decision to exclude the value of Quality Boats’ real property when valuing Quality Boats as an asset constituted legal error. The trial court had no discretion to pick and choose which company assets to include'in its valuation of the company as a whole. Further, even if some of the appreciation or depreciation of some of the assets of Quality Boats resulted from passive market forces, the overall appreciation of Quality Boats resulted from the Husband’s marital labor, at least in part, and so the portion of the overall appreciation resulting from the marital labor was subject to equitable distribution.

We recognize that there are times when the active or passive nature of appreciation does determine whether that appreciation constitutes a marital asset. For example, if the Husband—rather than Quality Boats— owned the real property, any passive appreciation or depreciation in the value of that real property might be excluded from the definition of “marital assets.” See Kaaa v. Kaaa, 58 So.3d 867, 872 (Fla. 2010) (explaining when passive appreciation of nonmarital real property may constitute a marital asset); see also Pagano, 665 So.2d at 372 (noting that a purely passive change in the value of a nonmarital asset not enhanced by marital labor is not a marital asset subject to equitable distribution). But here, the asset at issue is Quality Boats, the value of which was indubitably increased by the Husband’s marital labor. Because of that marital labor, the law relating to purely passive increases in the value of nonmarital assets simply does not apply.

In sum, we hold that the trial court erred as a matter of law by excluding the value of the real property owned by Quality Boats from its valuation of the company. And because it was undisputed that the value of the real property on U.S. 19 had decreased significantly due to the construction: of a huge overpass directly in front of the sales location, this error resulted in the trial court overstating the value of Quality Boats on the date of filing by almost $1 million. Therefore, we reverse the equitable distribution scheme and remand for the trial court to recalculate the value of Quality Boats as of the date of filing, including all of its assets and liabilities as required by Florida law, to determine the marital portion of any- increase in the value of Quality Boats, and to distribute that asset equitably.

R Retained Earnings

Next, the Husband contends that the trial court erred by including the value of the retained earnings , of Quality Boats in its valuation of the company but then also requiring Quality Boats to liquidate those retained earnings and distribute them to the shareholders. We agree that the trial court made legal errors on this issue as well.

As noted above, the issue facing the trial court was a determination of the value of Quality Boats as a company, which requires valuation of all of the company’s assets, including any retained earnings. “Retained earnings” are “[a] corporation’s accumulated income after dividends have been distributed.” Retained Earnings, Blacks Law Dictionary (10th ed. 2014) (emphasis added). “If the corporation retains assets acquired from earnings ... rather than distributing them as dividends to shareholders, the value of the outstanding capital stock should appreciate .... ” Anson v. Anson, 772 So.2d 52, 54-55 (Fla. 5th DCA 2000). As a corollary, if earnings are distributed rather than retained, the value of the company should be lower as it holds fewer assets. Hence, proper valuation of the company requires an upfront determination of whether earnings are retained or distributed.

Here, if the court wanted to value Quality Boats including the retained earnings it held and distribute that value, it could do so. But having done so, it could not then order distribution of the retained earnings while still valuing Quality Boats as if the retained earnings were retained as this would result in impermissibly including the same asset twice. See Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla. 1986) (noting that injustice will result if a trial court is permitted to consider the same asset twice, such as for both property distribution and support obligations); cf. Ghen v. Ghen, 575 So.2d 1342, 1348-44 (Fla. 4th DCA 1991) (reversing dissolution judgment in which the trial court both reduced the value of the husband’s business by the amount of a particular liability and then also reduced his income by the same liability). By both including the retained earnings in the value of Quality Boats and then ordering them liquidated and distributed, the trial court erroneously “double dipped” in favor of the Wife.

Moreover, the trial court’s order regarding the “distribution” of Quality Boats’ retained earnings represents a fundamental misunderstanding of what retained earnings actually are. The trial court treated the retained earnings account of Quality Boats as if it were some type of corporate savings account, which it is not. As has been explained:

1.The retained earnings account of a corporation is a bookkeeping account maintained to keep a historical record of net income, net losses, dividend distributions, and other matters affecting the equity of a corporation. It is not a cash or asset account, nor does it reflect any amounts of cash or funds available for distribution to stockholders. In fact, a corporation could have a balance in a retained earnings account, yet have no cash to pay any dividends.
2. A balance in a retained earnings account does not mean that dividends must be paid to stockholders. In order to conduct a business, a corporation m[u]st always maintain working capital, purchase fixed assets, maintain accounts receivable, and maintain inventory among other things, all of whieh[ ] reduces cash available for dividends. The extent to which these requirements must be maintained fluctuates from year to year.
3. A corporation is a recognized separate legal entity capable of owning its own assets and managing its own business. A stockholder has certain rights in a corporation, but those rights do not include a direct interest in any corporate asset or income nor do these rights include an interest in a corporate bookkeeping account.

Anson, 772 So.2d at 56-57 (Peterson, J., concurring) (emphasis added). Moreover, “[ajssets acquired through corporate earnings are corporate assets until payments are made for services or as dividends.” Id. at 54.

Given all of these basic principles, it is evident that it was error for the trial court to treat Quality Boats’ entire retained earnings account balance as if it were cash and order its distribution. This is particularly true because it was undisputed that the retained earnings account included substantial amounts for inventory and accounts receivable. It was also error for the trial court to proceed as if the Husband— unquestionably a minority shareholder— had a direct interest in the retained earnings of Quality Boats and the legal ability to order distribution of those earnings, contrary to both corporate law and the long-established business practices of Quality Boats. These two errors resulted in a valuation of Quality Boats that was calculated in a legally impermissible manner. Therefore, on remand the trial court must reconsider the valuation of Quality Boats after applying the proper legal standards for valuing retained earnings.

C. Amount of Appreciation Due to the Husband’s Labor

Next, the Husband contends that the trial court erred by adopting the Wife’s expert’s determination of the percentage of the appreciation of Quality Boats that was attributable to the Husband’s efforts. On the facts presented here, we disagree.

As noted above, the Husband owns 47.5% of the shares of Quality Boats, his brother owns 47.5% of the shares, and his sister owns 5% of the shares. The Husband’s sister performs no services for the business, and it is run entirely by the Husband and his brother. While the business has other employees, it was clear from the testimony that the Husband and his brother control the business operations, albeit with some input from the third member of the board of directors.

The Wife’s expert testified that he valued the Husband’s share of the appreciation of Quality Boats by multiplying the Husband’s ownership interest of 47.5% by the total appreciation during the marriage. He did not reduce or adjust this figure to account for any effort or labor of anyone else working for the business. The Husband takes exception to this methodology, pointing out that ownership interest is not necessarily the same as the amount of effort that went into the business to cause the appreciation. While the Husband is correct when this assertion is considered as a broad proposition, he is not correct that this assertion resulted in reversible error on the facts as presented here.

For the appreciation of an otherwise nonmarital asset to constitute a marital asset, the appreciation must “result! ] ... from the efforts of either party during the marriage.” § 61.075(6)(a)(l)(b). When “distributing such a marital asset, the court is required to make specific findings regarding the value of the enhancement and appreciation during the marriage, including which portion of that enhanced value is attributable to marital labor.” Hall v. Hall, 962 So.2d 404, 405 (Fla. 2d DCA 2007) (emphasis added). The question for the court when considering the appreciation of an ownership interest in a business is how much the marital labor actually contributed to the enhanced value of the business—not who “owns” what percentage of that enhanced value given the business’s corporate structure. Certainly, as the Husband properly asserts, ownership interest is not necessarily dispositive of appreciation due to marital effort.

In this case, however, it is clear that the trial court did not abuse its discretion in finding that the portion of the enhanced value attributable to the Husband’s marital labor was coincidentally the same as his ownership interest. The evidence at the hearing showed that the Husband and his brother run Quality Boats in essentially a 50/50 fashion. There is no silent partner who is not contributing any actual effort despite having a significant ownership interest. If that were the case, further adjustments to account for “marital labor” might be needed. But here, where the effort of the Husband and his brother in running the business and enhancing its value appears to be approximately equal, the trial court’s decision to base the calculation of appreciation due to marital effort on the Husband’s 47.5% ownership share of the business was factually appropriate and therefore did not constitute an abuse of discretion.

D. Discount for Lack of Marketability

Next, the Husband contends that the trial court abused its discretion by using the Wife’s expert’s discount for lack of marketability and control (19%) rather than the Husband’s expert’s discount for lack of marketability and control (30%). We disagree. Both experts testified that they applied a discount based on their experience and assessment of the nature of the marketability and control of the business. Given this testimony, the trial court had the discretion to choose either expert’s determination of the appropriate discount. See Erp v. Erp, 976 So.2d 1234, 1237-39 (Fla. 2d DCA 2008) (noting that Florida courts have generally accorded discretion to the trial court as to whether a marketability discount should be applied to a closely held corporation and in what amount). Here, the trial court chose, to use the Wife’s expert’s discount, and its decision to do so on these facts did not constitute an abuse of discretion.

E. Exclusion of Personal Goodwill

Finally, the Husband contends that the trial court abused its discretion by not including some amount for the personal goodwill of the Husband in its valuation of the business. Again, there was conflicting evidence from the two experts on this issue, and the trial court was entitled to believe, or disbelieve, either witness. While the Husband argues that the Wife’s expert did not have a sufficient basis for his opinion on this matter, this dispute ultimately was a credibility issue for the trial court to address. See Thompson v. Thompson, 576 So.2d 267, 270 (Fla. 1991) (“The determination of the existence and value of goodwill is a question of fact and should be made on a case-by-case basis with the assistance of expert testimony.”). On. the record here, we cannot say that the trial court abused its discretion in adopting the position advocated by the Wife’s expert.

F.Holding

In sum, we conclude that the trial court’s valuation of the marital appreciation of the Husband’s nonmarital interest in Quality Boats was improperly determined due to two errors of law: the improper exclusion of the real property owned by Quality Boats from the valuation of the company, and the improper double-counting of its retained earnings. Because of these two errors, we must reverse the equitable distribution award and remand for the trial court to redetermine the appreciation of Quality Boats in accordance with Florida law and then equitably distribute that appreciation. In doing so, the trial court may continue to use the 47.5% allocation of appreciation, the 19% discount for lack of marketability and control, and the zero value for personal goodwill.

II. Distribution of Dissipated Marital Assets

Next, the Husband contends that the trial court erred by charging him in the equitable distribution scheme with marital assets that had been dissipated during the course of the dissolution proceedings. This argument also has merit and requires reversal.

This court has held that it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings unless there has been misconduct during the proceedings that results in the dissipation. See Roth v. Roth, 973 So.2d 580, 584-85 (Fla. 2d DCA 2008). We have also defined what “misconduct” qualifies:

The misconduct necessary to support in- • elusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998). Instead, to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. Levy [v. Levy], 900 So.2d [737] at 746 [ (Fla. 2d DCA 2005) ] (reversing award of dissipated asset because the wife’s testimony that she used the asset for attorney’s fees and living expenses during the dissolution proceedings was unrebutted and the trial court did not find the wife guilty of misconduct); Cooper [v. Cooper], 639 So.2d [153] at 155 [ (Fla. 2d DCA 1994) ] (reversing award of dissipated asset when the husband’s testimony that he used the IRA funds to pay temporary support obligations and his own living expenses was unrebutted and there was no finding of. misconduct); Bush [v. Bush], 824 So.2d [293] at 294 [(Fla. 4th DCA 2002) ] (reversing award of dissipated asset when the evidence showed that the husband exercised his stock options to pay the parties’ financial obligations during the dissolution proceedings); Knecht [v. Knecht], 629 So.2d [883] at 886 [ (Fla. 3d DCA 1993) ] (reversing award of dissipated asset when no evidence contradicted the wife’s testimony that she expended the funds in her IRA for support during the dissolution proceedings).

Id. at 585 (emphasis added). If there is uncontradicted evidence in the record that the dissipated funds were used to pay marital expenses during the dissolution proceedings and if there is no evidence of misconduct, then it is an abuse of discretion to include the dissipated funds in the equitable distribution scheme. Id. at 586; see also Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005); Cooper v. Cooper, 639 So.2d 153, 154-55 (Fla. 2d DCA 1994).

Significantly here, the trial court specifically found that neither the Husband nor the Wife had acted improperly with respect to either assets or liabilities and that “neither party was guilty of intentional dissipation, waste, depletion, or destruction of marital assets.” Nevertheless, the trial court distributed marital assets to the Husband that had been used by him during the course of the dissolution proceedings to pay his living expenses, his temporary support obligations to the Wife, and his and the Wife’s attorney’s fees. Additionally, the trial court charged the Husband with the entire balance of the parties’ line of credit on the marital home , even though the only evidence was that the Husband had used the funds from this line of credit to pay family living expenses. Because this marital liability was incurred to pay the parties’ living expenses during the dissolution proceedings, it was error to charge the Husband with .the entire amount of this liability.

In addition, the court required the Husband to repay the Wife for “her half’ of the 2013 income tax refund received during the course of the litigation. However, the undisputed evidence showed that the funds from this refund were used to pay the Wife’s attorney’s fees in this litigation. Hence, this asset, which was depleted during the dissolution proceedings to pay the parties’ expenses, should not have been resurrected in the final judgment and distributed again. Given the explicit findings of no intentional dissipation, this “distribution” was error.

Accordingly, because of the improper inclusion of dissipated assets and the une-quitable distribution of marital liabilities, we must reverse the equitable distribution scheme. On remand, the trial court must redistribute the parties’ assets and liabilities without including the depleted assets and increased liabilities that resulted from the payment of the parties’ expenses during the course of the litigation.

Alimony

Finally, the Husband contends that the trial court erred by determining that his K-l income, which reflected his share of the business income whether distributed to him or not, was his income for purposes of calculating his support obligations to the Wife. While the trial court properly recognized that this issue was controlled by the supreme court’s decision in Zold, the trial court misapplied Zold’s holding to the evidence in this case. Therefore, we must reverse the alimony award and remand for further proceedings.

In Zold, the supreme court explained the general operation and limitations of an S corporation relating to distributions:

The Subchapter S Revision Act of 1982 (the “Act”) allows a small business corporation to elect to have all of the corporation’s income, deductions, losses, and credits pass through to the shareholders of the corporation for income tax purposes in accordance with each shareholder’s pro rata share of ownership in the corporation. See 26 U.S.C.A. § 1366 (West Supp. 2005). This “pass-through” income is then taxed to the shareholders directly on the shareholders’ individual federal income tax returns. See 26 U.S.C.A. § 1363 (West Supp. 2005). Corporations are generally treated as separate legal entities from their shareholders for tax purposes. See S. Rep. No. 97-640, at 5, reprinted in 1982 U.S.C.C.A.N. 3253, 3257. Without an election to be treated as an S corporation, income earned by the corporation is taxed to the corporation and distributions from the corporation are taxed separately to the shareholders. See id. The Subchapter S Revision Act of 1982 was enacted to prevent double income taxation at the corporate and shareholder levels for small business corporations. See id.
Although an S corporation’s net income is taxed directly to the shareholders under the Act, the shareholders do not necessarily receive distributions in an amount equivalent to what is taxed pursuant to the Subchapter Selection. In Florida, an S corporation’s authority to make distributions to shareholders is limited by the corporation’s articles of incorporation and section 607.06401, Florida Statutes (2004). Section 607.06401 prohibits a corporation from making distributions in certain circumstances and provides in pertinent part that
(3) No distribution may be made if, after giving it effect:
(a) The corporation would not be able to pay its debts as they become due in the usual course of business; or
(b) The corporation’s total assets would be less than the sum of its total liabilities plus (unless the articles of incorporation permit otherwise) the amount that would be needed, if the corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution.
§ 607.06401(3), Fla. Stat. (2004). Thus, section 607.06401(3) prohibits distributions that would render the corporation unable to fulfill its corporate duties to its debtors [sic] and shareholders. In those circumstances, a corporation must retain its income and cannot make a distribution to shareholders without violating Florida law.

Zold, 911 So.2d at 1227-28 (emphasis added) (footnote omitted). After reviewing the various sections of chapter 61 dealing with alimony, child support, and attorney’s fees, the supreme court held that “undistributed ‘pass-through’ income that has been retained by a corporation for corporate purposes does not constitute income within the meaning of chapter 61” because “the undistributed ‘pass-through’ income will be used by the corporation to maintain corporate operations and therefore cannot be used by a shareholder-spouse to satisfy financial obligations imposed upon dissolution of marriage.” Id. at 1231 (emphasis added). However, if undistributed pass-through income “has been retained for noncorporate purposes, such as to shield this income from the reach of the other spouse during dissolution, the improper motive for its retention makes it available ‘income.’” Id. at 1231-32 (emphasis added).

Here, there was simply no evidence that the undistributed pass-through income reflected on the Husband’s K-l was being retained by Quality Boats for any noncor-porate purpose. Hence, there was no legal basis upon which the trial court could treat that pass-through income as available for purposes of calculating the Husband’s support obligations: Nevertheless, the trial court did so, basing its alimony and child support calculations on an income to the Husband of over $1 million annually when he never actually received more than $250,000 to $300,000 in annual distributions during the entire course of the marriage. This error requires reversal of the alimony award.

In this appeal, the Wife argues that the trial court had the discretion to find that the entire amount of pass-through income was available to the Husband because he and his brother run the company. However, that is not the legal standard set forth in Zold. Instead, Zold requires the trial court to consider several factors when determining whether pass-through income is “available” for support:

In determining whether the shareholder-spouse has met his or her burden of proving that the undistributed “pass-through” income was retained for corporate purposes, the trial court should consider (1) the extent to which a shareholder-spouse has access to or control over “pass-through” income retained by the corporation, (2) the limitations set forth in section 607.06401(3) governing corporate distributions to shareholders, and (3) the purpose(s) for which the “pass-through” income has been retained by the corporation. Although a shareholder-spouse’s ownership interest should be considered, it is not dispositive even where the spouse is a sole or majority shareholder in the corporation and has the ability to control the retention and distribution of the corporation’s income. Ownership of capital stock does not entitle shareholders to income that has been retained by an S corporation because shareholders do not have a right to an interest in the corporation’s income.

Zold, 911 So.2d at 1233 (emphasis added).

In this case, the final judgment does not directly address these factors, but instead relies on the Wife’s expert’s opinion that Quality Boats was holding “excess” retained earnings. This opinion was based solely on the expert’s assertion that the percentage of retained earnings held by Quality Boats was higher than that of other boat dealers and the expert’s rejection of Quality Boats’ business model of paying cash for inventory rather than financing it. But even if the expert’s opinion concerning the extent of the retained earnings could be dispositive, that opinion does not demonstrate that earnings are being retained for a noncorporate purpose—only that they are being retained for a corporate purpose with which the expert does not agree. This disagreement does not constitute evidence sufficient to permit the trial court to attribute undistributed pass-through income to the Husband for purposes of calculating alimony and child support.

In the final judgment, the trial court also opined that permitting Quality Boats to retain its earnings to continue to purchase inventory on a cash basis and to fund the expansion of a new Sarasota location was impermissible because those decisions required the Wife to, in essence, fund the corporate objectives. But this finding improperly considers the company’s income to be the Husband’s income, ignoring the fact that the company is a separate legal entity from the Husband and that its income is not his income. It also ignores the fact that the purchase of inventory and the expansion of the business are corporate purposes. While the trial court may not agree with the company’s business decisions, these decisions further the corporate interests and are not simply an effort “to shield this income from the reach of the other spouse.” Id. at 1281. To the extent that the trial court’s ruling relies on its disagreement with the decisions of Quality Boats’ board of directors, it is an improper application of Zold.

For all of these reasons, we must reverse on this issue and remand for recalculation of the Husband’s alimony obligation in accord with the income he receives through actual wages and actual distributions and without consideration of the undistributed pass-through income. And because the trial court’s calculation of the Husband’s income also affected the determination of child support, we must reverse that award as well and remand for reconsideration.

Conclusion

In sum, we reverse the equitable distribution scheme and remand for the trial court to properly determine the increased value of the Husband’s nonmarital interest in Quality Boats that resulted from his marital labor. The trial court must also amend the equitable distribution scheme to eliminate marital assets that were depleted for marital purposes and to equitably distribute marital liabilities that were incurred for marital purposes during the course of the litigation. We also reverse the award of alimony and remand for the trial court to recalculate it using only the income actually received by the Husband. And because the Husband’s income must be redetermined, the trial court will need to revisit the award of child support.

Reversed and remanded for further proceedings as directed.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . The Husband also argued on appeal that tire trial court’s eight-month delay in signing the final judgment after the final hearing required reversal. While we are concerned with this lengthy delay, we do not find this to be an independent ground for reversal in this case, which involves nine alleged factual inaccuracies in a 52-page final judgment, none of which were critical to the disposition of the parties’ assets and only one of which was critical to the determination of alimony. Compare McGoldrick v. McGoldrick, 940 So.2d 1275, 1276 (Fla. 2d DCA 2006) (reversing final judgment entered eight months after the hearing because its findings were "inconsistent, confusing, and contradictory”), with McCartney v. McCartney, 725 So.2d 1201, 1202 (Fla. 2d DCA 1999) (finding an eight-month delay in issuing a final judgment "not acceptable” but declining to reverse for a new trial because it "would only cause additional time, delay, and expense for the litigants”).

      . Quality Boats had been valued for estate tax purposes when the Husband inherited his interest, and the parties accepted that valuation for purposes of determining the “starting value” of the Husband’s interest. Thus, the testimony at the hearing was directed solely to the value of Quality Boats as of the date of filing the dissolution petition in 2012. The difference between the "starting value” and the 2012 value was the total appreciation that occurred during the marriage. From that total appreciation, the trial court was to determine the portion resulting from the Husband’s marital labor, which amount would constitute the marital asset subject to distribution.

      . There was evidence that Quality Boats made additional distributions to each of the shareholders in amounts sufficient to cover the income taxes payable on the amount of the pass-through income attributable to them. These distributions, while nominally made to the Husband, are not available to him as income as they are committed' to the IRS.


text:
    Andre SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1319
    District Court of Appeal of Florida, First District.
    Opinion filed March 23, 2017
    Nancy A. Daniels, Public Defender, and Joel.Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Previously, in Sheffield v. State, 177 So.3d 699 (Fla. 1st DCA 2015), this court reversed appellant’s prison releasee reof-fender sentence for possession of cocaine (count III) and remanded for resentencing because possession of cocaine was not a qualifying offense under the prison releas-ee reoffender statute. In this subsequent appeal, appellant correctly claims that the trial court erred in resentencing him based on an erroneously calculated guidelines scoresheet. Accordingly, we reverse and remand for resentencing.

The 1995 guidelines scoresheet improperly included aggravated assault on a law enforcement officer (count I) as the “primary offense” and resisting an officer with violence (count II) as an “additional offense” because appellant was sentenced for those charges under the prison releas-ee reoffender statute, which is not governed by the sentencing guidelines. See § 775.082(8)(a)2., Fla. Stat. (1997) (providing that “[u]pon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines.... ”). In similar cases, Florida appellate courts repeatedly have held that when the trial court imposes a habitual offender sentence for an offense, the trial court removes that offense from sentencing under the guidelines and cannot include that offense either as a primary or additional offense on the guidelines score-sheet. See Olsen v. State, 791 So.2d 558, 560 (Fla. 2d DCA 2001); Drayton v. State, 744 So.2d 584, 585-86 (Fla. 2d DCA 1999); Alexander v. State, 680 So.2d 635 (Fla. 4th DCA 1996); Byrd v. State, 643 So.2d 1209 (Fla. 1st DCA 1994); Eaddy v. State, 626 So.2d 291 (Fla. 4th DCA 1993); Ricardo v. State, 608 So.2d 93, 94-95 (Fla. 2d DCA 1992); Silliker v. State, 598 So.2d 133, 134 (Fla. 5th DCA 1992); Wyche v. State, 576 So.2d 884, 886 (Fla. 1st DCA 1991).

Accordingly, counts I and II should not have been included on the scoresheet, leaving count III as the primary offense. Since possession of cocaine is not a violation of the Law Enforcement Protection Act, the scoresheet should not have included a multiplier for law enforcement protection. See Fla. R. Crim. P. 3.703(d)(22) (requiring imposition of a multiplier if the primary offense is a violation of the Law Enforcement Protection Act under section 775.0823, Florida Statutes). Accordingly, we reverse and remand for resentencing on count III using a corrected scoresheet. See Ricardo, 608 So.2d at 95. This disposition moots appellant’s claim that the written sentence did not conform to the trial court’s oral pronouncement regarding the award of credit for time served.

REVERSED and REMANDED for re-sentencing.

OSTERHAUS, JAY, and WINSOR, JJ., CONCUR.