author: ORFINGER, J.

text:
    Krishna KUMAR and Anupama Kumar, Appellants, v. U.S. BANK, N.A., Successor Trustee to Bank of America, NA, Successor in Interest to LaSalle Bank, NA, as Trustee on Behalf of the Holders of the Washington Mutual Mortgage, etc., et al., Appellees.
    Case No. 5D16-2889
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Rehearing Denied August 21, 2017

      Kelley A. Bosecker, St. Petersburg, for Appellants.
    Kristen M. Cresce.nti and Allison Morat, of Pearson Bitman LLP, Maitland, for Ap-pellee, U.S. Bank, N.A., Successor Trustee to Bank of America, NA, Successor in Interest to LaSalle Bank, NA, as Trustee on Behalf of the Holders of the Washington Mutual Mortgage, Etc.
    No Appearance for other Appellees.
   ORFINGER, J.

Krishna and Anupama Kumar appeal a final judgment of foreclosure entered in favor of U.S. Bank, N.A., successor in interest to LaSalle- Bank, N.A, as trustee for the holders of the Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2007-2 (collectively, “the Trustee”), after a bench trial. Because we find that the Trustee failed to prove it had standing at the inception of the foreclosure action, we reverse.

The Kumars executed a promissory note in favor of Amnet Mortgage, Inc., d/b/a American Mortgage Network of Florida, secured by a mortgage. After the Kumars defaulted on the loan, the Trustee filed a two-count complaint seeking to reestablish the note and foreclose the mortgage. The Trustee did not attach a copy of the note to the complaint, but alleged that it- was the “owner of said note,” although it no longer physically possessed the note, which was lost. The Kumars answered and raised various affirmative defenses, including the defense that the Trustee lacked standing to foreclose. Several years later, the Trustee filed the original note with an attached allonge containing an undated in-dorsement from Amnet to Washington Mutual. At the subsequent bench trial, a representative of the Trustee’s current loan servicer admitted that she did not know when the undated indorsement was placed on the note. Nor did the Trustee present testimony from any other witnesses or any evidence as to the date of the indorsement.

A party suing to foreclose a mortgage must establish that it has standing at the time the complaint is filed. Corrigan v. Bank of Am., N.A., 189 So.3d 187, 189 (Fla. 2d DCA 2016) (en banc). The Trustee asserted in its complaint and at the bench trial that it was the owner and holder of the note; To be a holder, the instrument must be payable to the person in possession or indorsed in blank. See § 671.201(5), (21), Fla. Stat. (2009). “If the note does not name the plaintiff as the payee, the note must bear a special [indorsement in favor of the plaintiff or a blank [indorsement.” McLean v. JP Morgan Chase Bank Nat'l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). When a plaintiff asserts standing based on an undated indorsement of the note, it must demonstrate that the in-dorsement occurred before the complaint was filed through additional evidence, Lloyd v. Bank of N.Y. Mellon, 160 So.3d 513, 515 (Fla. 4th DCA 2015).

Here, although the Trustee eventually filed the original note with the court, the attached allonge indorsing the note to Washington Mutual was undated and the Trustee did not provide any evidence indicating when the special indorsement was placed on the note. As such, the Trustee failed to show it had standing to foreclose at the inception of the lawsuit. See Schmidt v. Deutsche Bank, 170 So.3d 938, 941 (Fla. 5th DCA 2015) (holding that trustee failed to prove it was holder of note and allonge at time it filed foreclosure complaint to establish standing where original complaint included count to reestablish lost note that specifically alleged trustee did not physically possess note, and trustee’s only witness had no personal knowledge as to when trustee came into possession of note and allonge); Wright v. Deutsche Bank Nat'l Tr. Co., 152 So.3d 1289, 1289 (Fla. 4th DCA 2015) (holding that bank did not establish standing at time it filed complaint 'as copy of note attached to complaint listed different bank as lender, original note introduced into evidence contained indorsement to bank but witness did not know when undated indorsement was placed on note, and no other evidence was presented as to date of indorsement); McLean, 79 So.3d at 174 (finding that there was insufficient evidence to establish standing when original note, submitted after bank filed its foreclosure complaint, contained undated special indorsement).

Because the Trustee failed to establish standing at the time the complaint was filed, we reverse and remand for entry of an order of involuntary dismissal. See May v. PHH Mortg. Corp., 150 So.3d 247, 249 (Fla. 2d DCA 2014) (reversing final judgment and finding that bank’s failure to prove prima facie case warranted dismissal, as “none of the evidence adduced at trial demonstrated when, if at all, the bank came into possession of the note”).'

.REVERSED AND REMANDED with instructions.

COHEN, C.J. and WALLIS, JJ., concur.

      . The remaining issues asserted by the Ku-mars lack merit.

      . On appeal, the Trustee claims that it established standing as a nonholder in possession with the rights of a holder. However, the Trustee never pleaded this position, and it was not tried by consent. Therefore, it cannot be used as a basis to establish standing to enforce the note at the inception of the-foreclosure action. See Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989). Were we to consider the merits of this position, the Trustee did not establish its standing as a nonholder in possession. "A nonholder in possession may prove its right to enforce the. note through; (1) evidence of an effective transfer; (2) proof of purchase of the debt; or (3) evidence of a valid assignment.” Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So.3d 884, 885 (Fla. 4th DGA 2016), Here, the Trustee presented the original note with the undated allonge, a pooling and servicing agreement ("PSA”) with a March 1, 2007, cut-off date, and Ms, Holmes's testimony that the Kumars’ loan was purchased and placed in the trust by March 28, 2007, to support its position that it had sufficiently-established its standing as a nonholder in possession at the inception of the foreclosure lawsuit in February 2009. However, there was no evidence the loan was actually transferred into the trust at that time. Ms. Holmes admitted that she did not witness the transfer of the note to the trust prior to the closing date. While Ms. Holmes testified that the loan was -included on the mortgage loan schedule ("MLS”), and therefore, was part of the .loans transferred under the PSA to the trust, she did not identify the Kumars' loan in the MLS. Further, there is no specific reference to the Kumars’ loan "in the PSA nor does the MLS in the- record include the Ku-mars’ loan number. Hence, the Trustee did not prove standing as a nonholder in possession through the PSA.


source: Caselaw Access Project

author: HODGES, R.W., Associate Judge.

license: Public Domain

text:
    Jorge GONZALEZ, as Personal Representative of the Estate of Beatriz Gonzalez, Appellant, v. STONEYBROOK WEST GOLF CLUB, LLC, INC., Appellee.
    Case No. 5D16-2680
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Rehearing Denied August 21, 2017
    James C. Blecke, of The Haggard Law Firm, .P.A., Coral Gables,- for Appellant.
    Kathryn L. Ender, of Cole, Scott & Kis-sane, P.A., Miami, for Appellee.
   HODGES, R.W., Associate Judge.

Jorge Gonzalez (“Gonzalez”), as personal representative of the Estate of Beatriz Gonzalez (“the Decedent”), appeals from the final summary judgment entered in favor of Stoneybrook West Golf Club, LLC, Inc. (“Stoneybrook”). The standard of review of a trial court’s entry of final summary judgment is de novo. Volusia Cty. v. Aberdeen, at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. Because we find the existence of a genuine issue of material fact in this case, we reverse and remand.

Stoneybrook. is a golf club whose employees serve alcoholic beverages both inside the clubhouse and on the golf course. Nathan Hartman is a golfer who routinely played golf at Stoneybrook and purchased alcohol.from Stoneybrook employees..After playing a round of golf and consuming alcohol, Hartman caused an automobile crash that resulted in the death of the Decedent. At the time of the crash, Hartman had a blood alcohol content of .302. Gonzalez sought damages for the wrongful death of the Decedent against Stoneybrook pursuant to Florida’s reverse dram shop liability statute, codified at section 768.125, Florida Statutes (2014). This statute provides, in pertinent part, that a vendor serving alcoholic beverages is not liable for damages resulting from a purchaser’s intoxication unless the vendor serves the purchaser knowing that he or she is habitually addicted to alcohol. Id.

Stoneybrook filed a motion for final summary judgment, contending that there was no competent evidence of record that Hartman was habitually addicted to alcohol or, if so, that Stoneybrook had any knowledge of his alleged addiction. The trial court agreed and granted summary judgment.

Gonzalez had responded to the motion for summary judgment by filing the depositions of Hartman, a friend of Hartman named David Ziglar, and the relevant Sto-neybrook employees. The depositions established that Hartman had played golf at the club approximately seventy to eighty times over a three-year period prior to the crash. Ziglar testified in his deposition that Hartman was intoxicated virtually each time they played together at Stoneybrook. He added that Hartman normally started the day by drinking two strongly poured whiskey and Cokes in sixteen-ounce Styrofoam cups poured by bartenders who were familiar with Hartman. At the turn at the midpoint of the golf round, Hartman normally went to the Stoneybrook clubhouse and purchased another strongly poured sixteen-ounce whiskey and Coke and would often buy additional drinks from the “cart girl, a Stoneybrook employee.” Zig-lar testified that, on the day of the crash, Hartman had four such drinks, including approximately eight ounces of straight alcohol poured by the “cart girl” on the course. In addition, Gonzalez filed an affidavit from Dr. William Hearn, the former Laboratory Director of the Miami-Dade County Medical Examiner’s Department, in which he opined that Hartman’s blood alcohol content when he left Stoneybrook was over .27.

As this court previously noted in Evans v. McCabe 415, Inc., the Florida Supreme Court has found that under the habitual drunkard exception the plaintiff must present evidence that the vendor knew that the alcohol purchaser was a habitual drunkard. 168 So.3d 238, 239 (Fla. 5th DCA 2015) (citing Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1048 (Fla. 1991)). This knowledge element may be met by the presentation of sufficient circumstantial evidence. Ellis, 586 So.2d at 1048-49 (citing Sabo v. Shamrock Commc’ns, Inc., 566 So.2d 267, 269 (Fla. 5th DCA 1990), approved sub nom. Peoples Rest. v. Sabo, 591 So.2d 907 (Fla. 1991)). As stated in Ellis, “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Id. at 1048.

Based on our review of the record, we conclude that Gonzalez offered sufficient evidence to raise a factual dispute not resolvable by summary judgment as to whether Hartman was habitually addicted to alcohol and, if so, whether Stoneybrook knew of his addiction. Therefore, we reverse the summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER and LAMBERT, JJ., concur.


author: LAGOA, J.

text:
    Thomas CARLISLE, Appellant, v. U.S. BANK, NATIONAL ASSOCIATION, as Trustee FOR the Benefit of HARBORVIEW 2005-10 TRUST FUND, Appellee.
    No. 3D17-58
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017
    Rehearing Denied August 21, 2017

      Jacobs Keeley, PLLC, and Bruce Jacobs, Court E. Keeley, Amid U. Frey, and Anna C. Morales, for appellant.
    Akerman LLP, and Nancy M. Walla'ce (Tallahassee); Akerman LLP, and William P. Heller (Fort Lauderdale); Akerman, LLP, and Eric M. Levine (West. Palm Beach), for appellee.
    Before SUAREZ, LAGOA, and LUCK, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Thomas Carlisle (“Carlisle”) appeals from the denial of his motion to vacate final judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b), U.S. Bank, N.A. (“U.S. Bank”) moves to dismiss the appeal for lack of standing. We grant the motion and dismiss the appeal. .

I. FACTUAL AND PROCEDURAL BACKGROUND

U.S. Bank commenced an action to foreclose on property located in Miami-Dade County. Carlisle purchased the property from the original mortgagor sometime after the lis pendens was filed. Carlisle was not named as a party in the foreclosure action. Carlisle sought leave to intervene, and his motion to intervene was initially granted. Prior to trial commencing, however, the trial court sua sponte orally vacated the order granting leave to intervene and denied the motion. Following the trial’s conclusion, final judgment of foreclosure was entered in favor of-U.S. Bank. Carlisle filed a motion to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The trial court denied the motion, and this appeal ensued.

II. ANALYSIS

Only “a party or a party’s legal representative” may seek relief from a final judgment pursuant to Rule 1.540(b). SR Acquisitions-Fla. City, LLC v. San Remo Homes at Fla. City, LLC, 78 So.3d 636, 638 (Fla. 3d DCA 2011). In order for a non-party to bring a 1.540(b) motion, generally the non-party must first intervene and thereby become a party to the suit. In response to U.S. Bank’s motion to dismiss, Carlisle argues that pursuant to this' Court’s opinion in Pearlman v. Pearlman, 405 So.2d 764 (Fla. 3d DCA 1981), he should be found to have standing to set aside the final; judgment under Rule 1.540(b). While this Court has in the past recognized a limited exception in Pearlman that permits a non-party to seek relief under Rule 1.540(b), we do not find that limited exception applicable here.

Before this Court addresses the Pearlman exception, we note that Carlisle purchased the mortgaged property after the lis pendens was filed in this , action. As such, Carlisle was not named or made a party in the complaint below. Second, while Carlisle sought leave to .intervene and his motion was initially granted, that order was later vacated. As this Court has repeatedly stated, “a trial court has inherent authority to reconsider and modify its interlocutory orders,” AC Holdings 2006, Inc. v. McCarty, 985 So.2d 1123, 1125 (Fla. 3d DCA 2008), and as “an order granting intervention is necessarily interlocutory,” Superior Fence & Rail of N. Fla. v. Lucas, 35 So.3d 104, 105 n. 1 (Fla. 5th DCA 2010) (citing In re J.P., 12 So.3d 253, 254 (Fla. 2d DCA 2009)), the trial court had the inherent authority to reconsider and modify its order granting leave to intervene.

We now address whether Carlisle meets the limited exception set forth in Pearlman that permits a non-party to seek relief under Rule 1.640(b). In Pearlman, this Court held that an “unnamed party whose rights were directly and injuriously affected by a judgment fraudulently obtained may seek relief from that judgment either by motion or by independent collateral attack.” 405 So.2d at 766. This “Pearl-man standing,” which has been repeatedly recognized throughout the state, is a narrow exception that permits a non-party to use Rule 1.540 to seek relief from a judgment.

In Pearlman, the personal representative of the decedent’s estate'had allegedly colluded to obtain a judgment for a creditor against the estate he represented in order to deprive the decedent’s wife of her share of the estate. 405 So.2d at 765. Upon discovering this, the wife moved for relief from the creditor’s judgment against the estate on the.ground that the judgment had been fraudulently - obtained. Id. This Court found that the wife, who had a “right to a lawful share of her husband’s estate” and was “a known heir and devisee under the will” had “standing under Florida Rule of Civil Procedure 1.540(b) to move that the court set aside.the judgment.” Id. at 767.

The distinction between Pearlman (and its progeny) and the instant case is significant. The wife in Pearlman (and the non-parties in other’ Pearlman progeny) had rights which predated the litigation, which rights were directly affected by the judgment that had been- fraudulently obtained, and which arguably may have qualified the wife (and the non-parties in other Pearl-man progeny) to intervene pursuant to Florida Rule of Civil Procedure 1.230,

In contrast, as a purchaser post-lis pen-dens, Carlisle had no rights in the property at the timé the litigation commenced, and he purchased the property subject to and bound by any judgment rendered in the foreclosure action. See § 48.23(l)(d), Fla. Stat. (2016). Moreover, Carlisle was subject to the general rule that such purchasers are “not entitled to intervene in the pending foreclosure action,” Bymel, 159 So.3d at 347.

We therefore reject Carlisle’s argument, as it would require this Court to hold, on the one hand, that purchasers post-lis pen-dens are generally not entitled to intervene in a pending foreclosure action but hold, on the other hand, that purchasers post-lis pendens have “rights ... directly and injuriously affected by a judgment” giving them Pearlman standing to contest the judgment through a 1.540 motion. Cf. Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087, 1091-92 (Fla. 2d DCA 2015), reh’g denied (Apr. 29, 2016), review denied, SC16-945, 2016 WL 6998444 (Fla. Nov. 30, 2016) (“[A third-party purchaser’s] interest in this foreclosure proceeding is not a legally cognizable interest because even though it now holds legal title to the property, it purchased the property subject to [the bank’s] foreclosure proceeding and superior interest in the property.” (emphasis added)).

Instead, we find the instant case akin to YHT & Associates, Inc. v. Nationstar Mortgage LLC, 177 So.3d 641 (Fla. 2d DCA 2015). In that case, the Second District Court of Appeal, dealt with “the increasingly common situation in which title to property is transferred while the property is the subject of a foreclosure proceeding and a lis pendens.” Id. at 642. The trial court denied intervention to a purchaser and refused to allow the purchaser to participate at trial. Id. at 643. When the purchaser attempted to appeal the final judgment, the Second District Court of Appeal dismissed the appeal for lack of standing, faulting the purchaser for not timely appealing the earlier order denying intervention. Id. at 642-43. While there are some distinctions between YHT and the instant case, those distinctions (if significant at all) only strengthen the argument that purchasers post-lis pendens lack Pearlman standing. We see no reason to expand Pearlman’s application to permit a purchaser post-lis pendens to contest a judgment under Rule 1.540.

III. CONCLUSION

While this Court has recognized a limited exception in Pearlman regarding non-party standing, the general rule remains, and best practice requires, that a non-party must seek and be granted leave to intervene before it will have standing to pursue relief under a Rule 1.540(b). For a non-party who does not fall within Pearl-man’s exception, when leave to intervene is denied and that decision is not timely appealed, the non-party lacks standing to later file a 1.540(b) motion with the trial court. Because Carlisle did not timely appeal the order denying his motion to intervene and does not fall within Pearlman’s limited exception, we find that Carlisle lacks standing to appeal the trial court’s denial of his 1.540(b) motion, and dismiss the appeal.

Dismissed.

      . Because Carlisle failed to timely appeal the denial of his motion to intervene, we do not reach the merits of whether su<ph denial was proper, although we remind the parties of the general rule that "when property is purchased during a pending foreclosure action in which a lis pendens has been filed, the purchaser generally is not entitled to intervene in the pending foreclosure action,” Bymel v. Bank of Am., N.A., 159 So.3d 345, 347 (Fla. 3d DCA 2015).

      . E.g., Gotham Ins. Co. v. Matthew, 179 So.3d 437, 441 (Fla. 5th DCA 2015) (holding that non-party insurer had standing to move to vacate judgment as the insurer’s rights were directly affected by fraudulently amended judgment which could have a preclusive effect on insurer in later proceedings); Davis v. M & M Aircraft Acquisitions, Inc., 76 So.3d 1066, 1066 (Fla. 4th DCA 2011) (finding that non-party minority shareholder had standing to vacate final judgment fraudulently obtained by parties and which directly affected minority shareholder's rights); Chaluts v. Nagar, 862 So.2d 925, 927 (Fla. 2d DCA 2004) (upon learning that judgment in separate collection action dissipated marital asset, wife intervened in collection action, and collection action was consolidated with divorce proceeding; holding that trial court in divorce proceeding had authority to set aside judgment agreed to by husband in separate, collection action as trial court concluded that the judgment had been entered as a fraud upon the court; upon learning that judgment in separate collection action dissipated marital asset, wife intervened in collection action, and collection action was consolidated with divorce proceeding and transferred to trial court presiding over dissolution); Woginiak v. Kleiman, 523 So.2d 1209, 1210 (Fla. 3d DCA 1988) (holding that son had standing to seek to vacate order fraudulently obtained to establish posthumous marriage license in separate action as son had interest in father’s estate and marriage was disputed in separate, probate proceeding). But see State Airlines, Inc. Through Struve v. Menut, 511 So.2d 421, 424 (Fla. 4th DCA 1987) (finding that bankruptcy trustee did not have standing to set aside judgment allegedly procured by fraud as bankruptcy estate and creditors would not be affected by judgment.


author: WOLF, J.

text:
    Charles CANNON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5710
    District Court of Appeal of Florida, First District.
    Opinion filed July 20, 2017
    Rehearing Denied September 1, 2017

      Office of Jeffrey E. Lewis, Criminal Conflict & Civil Regional Counsel, Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his judgment and sentence. We agree with the State’s proper concession that appellant was illegally sentenced pursuant to a revised version of section 775.082(3), Florida Statutes, that was not yet in effect at the time appellant committed his crimes.

Pursuant to section 775.082(3)(b), Florida Statutes (2013), appellant should have been sentenced on each of the three counts of sexual battery by familial or custodial authority, a first-degree felony, to a term of imprisonment not exceeding 30 years. Appellant was improperly sentenced on each count to 30 years’ imprisonment followed by 15 years’ probation—a term longer than statutorily prescribed. Gonzales v. State, 816 So.2d 720, 721 (Fla. 5th DCA 2002) (“When a defendant is sentenced to a term in prison followed by probation, the combined times must not exceed the statutory maximum.”).

As to appellant’s conviction of two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition, all second-degree felonies, the maximum sentence on each count should have been 15 years’ imprisonment. § 775.082(3)(c), Fla. Stat. However, appellant was illegally sentenced to 15 years’ imprisonment to be followed by 15 years’ probation on each count.

Thus, as properly .conceded to by the State, appellant was illegally sentenced on all six counts. We, therefore, AFFIRM appellant’s convictions, but REMAND for resentencing on all counts.

On remand, the trial court should also address various scrivener’s errors noted by appellant, including a scrivener’s error in appellant’s criminal punishment code scoresheet that incorrectly notes appellant entered a plea. Additionally, the trial court should be cognizant that if it orders appellant to pay discretionary costs, fines, or surcharges on remand, it must give appellant notice and an opportunity to be heard. Brooks v. State, 676 So.2d 48, 48 (Fla. 1st DCA 1996).

ROWE and KELSEY, JJ., CONCUR.

      . Additional scrivener’s errors include that the written order of probation incorrectly stated appellant had been convicted of three counts of lewd or lascivious molestation, when he was actually convicted of two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition, and that the written judgment and sentence noted appellant, on the lewd or lascivious exhibition count, violated subsection 800.04(7)(c), Florida Statutes (2013), when appellant actually violated subsection 800.04(7)(b), Florida Statutes. However, because this case is being remanded for resentencing, a new order of probation and judgment and sentence will be entered.

      . When originally sentencing appellant, the court ordered a lump sum of court costs without giving appellant notice and an opportunity to be heard regarding the discretionary costs. That was improper. Giles v. State, 103 So.3d 1058, 1058 (Fla. 1st DCA 2013) (holding a fine pursuant to section 775.083 was discretionary, and because it and its accompanying surcharge pursuant to section 938.04 were not specifically announced during the sentencing hearing, they should be stricken).


author: M.K. THOMAS, J.

text:
    CAL-MAINE FOODS/BROADSPIRE, Appellant, v. Robert HOWARD, Appellee.
    CASE NO. 1D16-1789
    District Court of Appeal of Florida, First District.
    Opinion filed July 26, 2017
    Rehearing Denied September 14, 2017

      Christopher A. Thorne and Jennifer P. Killen of Thorne & Associates, P.A., Orlando, for Appellant.
    Nicolette E. Tsambis of Smith, Fedde-ler, Smith, P.A., for Appellee.
   M.K. THOMAS, J.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) rejecting multiple defenses to com-pensability of a work accident and related benefits. As to the E/C’s argument that the JCC erred in rejecting misrepresentation defenses, we agree and reverse. Accordingly, it is unnecessary to address the remaining issues on appeal.

I. Facts

On or about November 2, 2014, the Claimant was operating a front-end loader for the Employer. At a curve in the road, the brakes failed, and the Claimant jumped from the machine. Conflicting testimony exists as to whether the Claimant reported any injuries to the Employer. In August 2015, following termination by the Employer for reasons unrelated to the accident, the Claimant filed a Petition for Benefits (PFB) seeking payment of temporary total disability (TTD) or temporary partial disability (TPD) benefits, and authorization of a neurological/orthopedic physician to evaluate and treat his lower back symptoms. He listed the November 2, 2014, work accident as the basis for the injuries. In October 2015, the Claimant filed an Amended PFB requesting determination of compensability of the November 2, 2014, accident. The PFBs, both signed and attested by the Claimant as to accuracy, described the accident as follows:

CL WAS DRIVING A FRONT END LOADER THAT WAS HAVING MECHANICAL ISSUES. AS HE APPROACHED A BEND IN THE ROAD GOING TO A BRIDGE, HE LET OFF THE ACCELERATOR AND THE MACHINE STALLED. HIS STEERING AND BRAKES WENT OUT. BEFORE THE MACHINE WENT OVER THE SIDE OF THE ROAD, HE JUMPED. HE HIT THE TIRE, WHICH PUSHED HIS FACE INTO THE PAVEMENT AND THEN THE REAR TIRE HIT HIM IN THE HEAD.

During his first deposition in May 2015, the Claimant testified the injuries resulting from the work accident included a broken nose, orbital fractures, concussion with brain injury, and herniated discs of the neck and lower back. He requested surgery for facial fractures and treatment for his neck and back. The Claimant described that when he jumped from the machine, he hit his left shoulder on the rear left tire, which spun him around causing him to strike his face on asphalt. He described injuries specifically to the right eye and socket, as well as bleeding scrapes over his left eye. Seven months later, in his second deposition, the Claimant gave sworn testimony that his injuries from the accident included the eye socket, nose, neck, middle and lower back. However, he advised that as of the second deposition, his nose and eye injuries had resolved. He complained of constant neck pain.

The Claimant did not seek immediate medical treatment, but rather waited one month after his termination (and two months after the November 2014 work accident) to see a doctor. Initial medical treatment was received on January 22, 2015, at Shands Hospital. The Claimant reported a head injury/pain with frustrated memory and headaches due to being hit in the head with a baseball bat “eight days prior.” At his initial deposition, when confronted with the Shands records, the Claimant testified his description of the baseball bat incident was false and contrived. He asserted he later “corrected” this false account and told Shands’ staff the injuries actually occurred from an accident at work. He allegedly made the misrepresentation due to his belief he would not receive medical treatment if he reported a work-related accident. No “correction” was documented in the medical records.

On February 4, 2015, Claimant proceeded to the Wesley Chapel Hospital Emergency Room, where he was seen for left-sided facial pain, advising he received a facial fracture “one month earlier.” He requested pain medications and denied back pain or headaches. He did not report a work accident.

After the Claimant’s filing of a PFB in August 2015, the E/C scheduled an IME with Dr. Thomas Delgado, a neurosurgeon. The Claimant described to Dr. Delgado that he suffered injuries to his neck, face, and lower back as a result of the November 2, 2014, accident. The Claimant also completed patient intake/history forms at Dr. Delgado’s office. On the forms, the Claimant specifically denied any back pain, injuries, or sciatica before the work accident. The Claimant did not disclose to Dr. Delgado that he previously reported a “baseball bat” incident to Shands as the cause of his head and facial injuries. Dr. Delgado, after reviewing the Shands medical records (provided to him by the E/C), confronted the Claimant regarding his report of being struck in the head with a baseball bat. Per Dr. Delgado, the Claimant responded that he “wasn’t sure because he was kind of foggy when that happened.” At deposition, Dr. Delgado further testified that, contrary to the Claimant’s responses on the patient intake and history forms, medical records documented that the Claimant did, in fact, have a prior history of chronic back pain with treatment in 2006-2007, and lumbar and neck pain following an automobile accident in 1997.

The Claimant was evaluated by Dr. Robert Martinez, a neurologist, in March 2015. He complained of neck, middle and lower back pain, along with confusion as a result of the work accident. Likewise, the Claimant denied any history of neck or back pain, or similar injuries before the work accident. He did not disclose the earlier report of being struck in the head with a baseball bat.

The Claimant obtained an Independant Medical Exam from Dr. Jorge Inga, a neurosurgeon, on November 11, 2015. He complained of pain radiating down his right leg, lower back, cervical spine, shoulder and right facial pain. The Claimant described the origin of his symptoms as the November 2, 2014, work accident. He did not address the baseball bat incident.

In preparation for hearing, the E/C filed medical records in compliance with section 440.29(4), Florida Statutes. The admissible medical records documented the Claimant had a history of similar medical complaints and treatment prior to the work accident. The records documented: lower back injuries 1997 after an automobile accident; chronic back pain in 2006-2007; medical care and diagnostic studies in 2012 for constant neck pain only relieved by pain medications; injuries from a motorcycle accident, which required ongoing medical treatment for twelve years; and a previous recommendation for cervical surgery. In the pretrial stipulations, the Claimant listed the following physical conditions as related to the work accident: “face injuries, concussion w/ brain injury, back and neck.” However, at the final hearing, the Claimant announced he was seeking compensa-bility of the lower back injuries only, thus dropping other claims relating to facial and neck injuries, and concussion with brain injury.

During cross-examination at the merits hearing, the Claimant was questioned regarding his prior deposition testimony in which he described substantial injuries to his face and head following the November 2, 2014, work accident. The Claimant admitted that his prior statement at Shands of being struck in the head and face by a baseball bat was “not true.” Although the JCC determined the Claimant had committed multiple misrepresentations, she ultimately declined to terminate the Claimant’s entitlement to workers’ compensation benefits. Specifically, -the JCC held the misrepresentations were moot and not committed for the “purpose of obtaining workers’ compensation benefits.” We disagree and reverse.

II. Analysis

While this Court’ is deferential to the broad fact-finding powers of a JCC, such power is not without constraints. Fritz v. Courtyard Marriott, 592 So.2d 1167, 1169 (Fla. 1st DCA 1992). A JCC’s findings must be in accordance with the requirements of chapter 440 and be supported by competent, substantial evidence (CSE). Quiroz v. Health Cent. Hosp., 929 So.2d 563, 565 (Fla. 1st DCA 2006).

A JCC’s factual findings will be upheld if any CSE supports the JCC’s decision, regardless of whether “other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling.” Pinnacle Benefits, Inc. v. Alby, 913 So.2d 756, 757 (Fla. 1st DCA 2005) (emphasis in original). However, to the extent the issues raised on appeal concern statutory construction, a question of law is presented, and our review is de novo. Palm Beach Cty. Sch. Dist. v. Ferrer, 990 So.2d 13, 14 (Fla. 1st DCA 2008); Matrix Emp. Leasing v. Hernandez, 975 So.2d 1217, 1218 (Fla. 1st DCA 2008); Mylock v. Champion Int’l, 906 So.2d 363, 365 (Fla. 1st DCA 2005).

Sectioris 440.09(4) and 440.105, Florida Statutes, are often referred to as the mechanisms that created the “fraud defense.” This “misnomer appears to have narrowed the "application of the sanction beyond that intended by the legislature.” Village Apartments v. Hernandez, 856 So.2d 1140, 1141 (Fla. 1st DCA 2003). Not all prohibited acts in section 440.105 entail a “fraud” element. See § 440.105(4)(b)2.-3., Fla. Stat. In interpreting a statute, “full effect must be given to the language' selected by the' legislature.” Hernandez, 856 So.2d at 1141. Accordingly, per section 440.09(4), the commission of “any” act of an employee prohibited by section 440.105 results in forfeiture of benefits, not just those statutorily designated as “fraudulent.”'This Court has previously emphasized that the 2003 Amendments to section 440.09(4)(a), adding the phrase “or any criminal act,” broadened the subsection to cover not only acts described in section 440.105, but also other criminal acts, as long as “all of those acts are done for the purpose of securing workers’ compensation benefits.” Matrix Emp. Leasing, 975 So.2d at 1219.

Determining whether there has been a violation of section 440.105(4)(b) requires a two-part inquiry: 1) a finding as to whether a false (or fraudulent or misleading) oral or written statement was made by the person; and 2) a finding as to whether, at the time the statement was made, it was made with the required intent. Arreola v. Admin, Concepts, 17 So.3d 792, 794 (Fla. 1st DCA 2009). It is not necessary that the misrepresentation be material in actuality. “Rather, the relevant inquiry is whether a claimant’s misrepresentation—a misrepresentation the claimant thought would have a material impact on his case—was made with the intent to secure benefits.” Id.; Village of N. Palm Beach v. McKale, 911 So.2d 1282 (Fla. 1st DCA 2005). Furthermore, the statements are not required to have been made under oath so long as the Claimant knew at the time that the statements were false. Hernandez, 856 So.2d at 1142.

As to the first prong, it is undisputed here that the Claimant provided multiple false and/or misleading written and oral statements. The JCC acknowledged this. When confronted at hearing, the Claimant conceded he misrepresented the etiology of his injuries when seeking initial medical care at Shands. Further misrepresentations were made by the Claimant at Wesley Chapel Hospital and relating to pre-existing medical history. The misrepresentations occurred during depositions, IMEs (completing patient history forms), and medical treatment. Uncontroverted evidence supports multiple misrepresentations by the Claimant, thus satisfying the first prong.

As to the second prong, the JCC determined the E/C failed to prove the Claimant’s misrepresentations were made for the “purpose of obtaining workers’ compensation benefits.” Regarding the Claimant’s statements of inaccurate preexisting medical history, the JCC ruled,

Dr. Inga was aware that Claimant had a prior lumbar injury from a 1997 motor vehicle accident, and that Claimant had a history of chronic back pain from 2006-2007. (Inga depo. pp. 18-20). Accordingly, I find Claimant did not misrepresent his prior back condition.

(Emphasis. added.) Similarly, the. JCC found the following regarding the Claimant’s misrepresentations to Dr. Delgado,

Additionally, although Dr. Delgado was in possession of Claimant’s medical records indicating a back injury from the 1998-1999 auto accident, Dr. Delgado did not question Claimant about a prior back condition or any discrepancy in the intake form Claimant completed.

(Emphasis added.)

It is clear the JCC regarded the Claimant’s oral and/or written misrepresentation(s) to Drs. Inga and Delgado regarding prior medical history as excused or “nullified” because the doctors actually possessed accurate medical information, regardless of the source. The JCC erred in placing an affirmative duty, not statutorily mandated, on the evaluating physicians to interrogate the -Claimant regarding known misrepresentations. Furthermore, a plain reading of sections-440.105(4) and 440.09(4) provides no basis for the JCC’s exoneration of the misrepresentations. It matters not whether .the doctors were provided with accurate information regarding etiology of injuries or pre-existing medical conditions and treatment by a source other than the Claimant. The purpose of section 440.105(4) is to sanction “any person” who, with the requisite intent, .commits any of the enumerated, prohibited acts.

Regarding the Claimant’s misrepresentation that he was struck in the head with a baseball bat, the JCC reasoned that, because the Claimant never asked for the medical bills of Shands to be paid by the E/C or alleged the bat incident .occurred at work, the . false statements were not made for the.purpose of obtaining workers’ compensation benefits. In the Final Order, the JCC rated:

Although Claimant clearly misrepresen- ■ ted the cause of his facial/sinus condition at Shands, I find he did not do so for the purpose of obtaining workers’ compensation benefits. Specifically, he never claimed he was hit in the face with a baseball bat at work, nor did he seek to obtain treatment at Shands for the condition by asserting it was a work-related injury. Accordingly, Claimant’s misrepresentation to Shands regarding the cause of his sinus condition was not made for the purpose of the obtaining workers’ compensation benefits.

This reasoning misconstrues section 440.105(4) and requires an immediate causal nexus not contemplated by the legislature. Section 440.09(4)(a) mandates forfeiture of benefits if the misrepresentations were made for “the purpose of securing workers’ compensation benefits.” Section 440.105(4) details those acts regarded as having been committed for “the purpose of seeming workers’ compensation benefits.” Section 440.105(4)(b) declares that it “shall be unlawful for any person:”

1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
3. To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.

(Emphasis added.) Accordingly, the second prong of the misrepresentation analysis may be satisfied if any one of three subsections is triggered.

The Claimant, just a few days before the merits hearing, dropped his claims relating to the facial and head injuries and did not seek payment of the Shands’ medical bill. However, this formal dismissal of claims does not shield the Claimant from the reach of section 440.09(4). A party may not strategically manipulate pleadings to circumvent its sanctions. Contrary to the JCC’s reasoning, the ramifications of the Claimant’s misrepresentations regarding being struck in the head by a baseball bat were not isolated to liability for a Shands medical bill. The misrepresentations were material to claim investigation, compensa-bility, and causation.

Here, the Claimant maintained for months that his facial/sinus injuries were a result of the alleged work accident, and he provided sworn testimony to that effect. It was not until the filing of pre-trial legal memoranda several days before hearing that the Claimant advised he was not seeking benefits related to the facial/sinus injuries. The JCC erroneously required that for benefit denial under section 440.09(4), the E/C had to link the allegedly false or misleading statements directly to the particular injury for which benefits are sought—to the Claimant’s lower back in this instance. As this Court has previously explained, “such a requirement is not found in the law.” THG Rentals & Sales of Clearwater, Inc. v. Arnold, 196 So.3d 485, 487 (Fla. 1st DCA 2016). Furthermore, such an application is contrary to a plain reading of section 440.105(4).

“Honesty is not a luxury to be invoked at the convenience of a litigant.” Baker v. Myers Tractor Servs., Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000). The workers’ compensation system is designed to be efficient and self-executing. See § 440.015, Fla. Stat. It should not be incumbent upon litigants to undertake exhaustive investigation to flush out the mendacities of an adversary. The parties have a right to expect that all statements, whether written or oral, are truthful and adequately responsive.

The Claimant’s argument on appeal that the E/C waived, expressly or impliedly, the misrepresentation defenses during the course of the merits hearing is without merit. Pursuant to section 440.09(4)(a), and having violated section 440.105, the Claimant is not entitled to workers’ compensation benefits.

REVERSE AND REMAND.

B.L. THOMAS, C.J., and WETHERELL, JJ., CONCUR.

      . The Claimant was terminated by the Employer in December 2014, based on a positive ■drug test for methamphetamine and amphetamines, after driving a backhoe so far into the water that it had to be towed out.

      . Section 440.105, Florida Statutes, lists prohibited activities of employees, employers, insurance entities, licensed medical providers, attorneys, and a broad reference to "any person.” However,' section 440.09(4), Florida Statutes, provides the sanction for employees who violate section 440.105, Florida Statutes.


author: PER CURIAM.

text:
    Anthony Monroe HOOD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2123
    District Court of Appeal of Florida, First District.
    Opinion filed July 26, 2017
    Rehearing Denied August 31, 2017
    Anthony Monroe Hood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R. App. P. 9.141(c)(5)(A).

RAY, BILBREY, and KELSEY, JJ., CONCUR.


text:
    Brandon BROWN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-0013
    District Court of Appeal of Florida, First District.
    Opinion filed July 26, 2017
    Rehearing Denied September 15, 2017
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his convictions and sentences for sexual battery on a child less than 12 years of age, lewd or lascivious molestation, and lewd or lascivious exhibition. The trial court ruled appellant was competent but failed to enter a written order. We, therefore, AFFIRM but REMAND for entry of a nunc pro tunc order adjudicating appellant competent to proceed. See Merriell v. State, 169 So.3d 1287, 1288-89 (Fla. 1st DCA 2015).

WOLF, RAY, and BILBREY, JJ., CONCUR.


text:
    ALF SEVILLA HOME CARE CORP., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D17-1257
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Rehearing Denied August 23, 2017
    Lawrence E. Besser, for appellant.
    Tracy Cooper George, Chief Appellate Counsel (Tallahassee), for appellee.
    Before SALTER, FERNANDEZ and LUCK, JJ,
   PER CURIAM.

Affirmed on the authority of Florida Rule of Appellate Procedure 9.315(a). , Fla. R. App. P. 9.315(a) (“After service of the initial brief ... the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.”).


text:
    GULFSTREAM PROPERTY & CASUALTY INSURANCE Company, Appellant, v. David COLEY, Appellee.
    No. 3D16-885
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017.
    Rehearing Denied August 31, 2017

      Groelle '& Salmon, P.A., and Celeste B. Marcks (West Palm Beach), for appellant.
    Alvarez, Carbonell, Feltman, & DaSilva, PL, and Paul B. Feltman, for appellee.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

Gulfstream Property & Casualty Insurance Co. (“Gulfstream”) appeals the entry of summary judgment hi favor of its insured, David Coley (“Coley”), as to Count I of the Amended Complaint. Because the order under appeal is neither a final order nor an appealable non-final order, we dismiss for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL HISTORY

Coley filed a single count complaint against Gulfstream for breach of contract (Count I) related to a claim under his homeowner’s policy stemming from Hurricane Wilma. After the trial court granted Coley’s motion for summary judgment, Gulfstream sought to appeal the order twice. This Court dismissed both appeals for lack of jurisdiction. Gulfstream Prop. & Cas. Ins. Co. v. Coley, 195 So.3d 381 (Fla. 3d DCA 2015); Gulf Stream Prop. & Cas. Ins. Co. v. Coley, 208 So.3d 91 (Fla. 3d DCA 2015).

After it granted summary judgment, the trial court granted Coley leave to assert claims for bad faith under section 624.155, Florida Statutes (2016), and for negligence per se under section 825.102, Florida Statutes (2016). Coley filed an Amended Complaint asserting the following three counts: (1) breach of contract (Count I) (Coley’s original claim); (2) civil remedy of bad faith pursuant to section 624.155 (Count II); and (3) negligence per se pursuant to section 825.102 ’ (Count III). Several months later, the trial court entered a “Final Judgment” (hereinafter referred to as the “Order”) based on its earlier order granting summaiy judgment on the claim for breach of contract. In relevant part, the Order stated that Coley recover from Gulfstream “the gross sum of ... $24,168.60, of which the net sum of ... $19,334.88, payable to Mr. Coley by order of this Court, has since been satisfied by Defendant.” The Order further stated: “Plaintiff’s bad faith claim [Count II] ... is stayed until further order of this Court.” The Order did not mention Count III of the Amended Complaint (i.e., the negligence per se claim) and that count remains pending below. Gulfstream timely appealed the Order, and this appeal ensued.

II. ANALYSIS

Although neither party challenged this Court’s jurisdiction, we conclude that the Order appealed is neither a final 'order nor an appealable, non-final order as it suffers from several jurisdictional defects. First, while the Order stays the insured’s bad faith claim (Count II), it does not mention Coley’s negligence per se claim (Count III). No record evidence exists that Count III was intended to have been stayed as well. At oral argument, counsel for Gulfstream contended that this absence may be chalked up to a scrivener’s error. While “the court in its discretion may grant the parties additional time to obtain a final order from the lower tribunal,” Fla. R. App. P. 9.110(Z), we decline to do so in light of the second, more serious jurisdictional defect contained in the Order.

Pursuant to Florida Rule of Appellate Procedure 9.110(k), a partial final judgment is appealable if it “is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.” Because the negligence per se claim remains pending below and is interdependent with the facts giving rise to the breach of contract claim, the order on appeal cannot constitute a partial final judgment under Rule 9.110(k).

Often in the insurance context, a dissatisfied insured brings a breach of contract claim against his or her insurer. Once that claim has been brought to a final judgment, the insured may then litigate a bad faith claim against the insurer based on the insurer’s conduct subsequent to the initial breach of contract. Procedurally, this is usually accomplished by including the bad faith claim either in the initial complaint (in which case the bad faith claim is stayed pending the determination of the breach of contract claim) or an amended pleading after the final judgment in the breach of contract claim. See Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1229-30 (Fla. 2016). Generally then “a final ruling on coverage [the breach of contract claim] is appealable when a bad faith claim remains pending between the parties, with the rationale being that the coverage issue should be completely resolved before the bad faith claim proceeds.” North Am. Capacity Ins. Co. v. C.H., 173 So.3d 1075, 1077 (Fla. 2d DCA 2015). When other claims interdependent with the breach of contract claim remain pending, however, the order disposing of the breach of contract claim is not an appealable final judgment. GEICO Gen. Ins. Co. v. Perez, 199 So.3d 380, 380 (Fla. 3d DCA 2016) (dismissing appeal where order adjudicated only one of six counts against insurer and remaining counts were “intertwined with and not independent of, the adjudicated count”); GEICO Gen. Ins. Co. v. Pruitt, 122 So.3d 484, 487 (Fla. 3d DCA 2013) (dismissing appeal from partial summary judgment ruling on validity of Coblentz agreement while bad faith claim remains pending); Universal Underwriters Ins. Co. v. Stathopoulos, 113 So.3d 957 (Fla. 2d DCA 2013) (dismissing appeal from partial final judgment on declaratory count where breach of contract and bad faith claims against insurer remained pending).

The Fifth District Court of Appeal’s decision in Prudential Property & Casualty Insurance Co. v. Gerber, 773 So.2d 571, 571 (Fla. 5th DCA 2000), is instructive. In Gerber, the insurer for the tortfeasor in an automobile accident obtained a release from the automobile accident victim for “all bodily injury resulting from the accident.” Following the release, the automobile accident victim filed an independent suit against the tortfeasor for his negligence in causing the accident. Id. The automobile accident victim also proceeded to file suit against the insurer for its earlier actions in obtaining the release from the victim, which the victim alleged constituted exploitation of the elderly in violation of section 825.102, Florida Statutes. Id. The insurer moved to stay the action against it until the negligence action against the insured was concluded, which the trial court denied. Id at 572. The insurer filed a petition for certiorari before the Fifth District Court of Appeal claiming that the action against it was similar to a bad faith action and therefore did not accrue until the liability claim against the insured tort-feasor was decided. The district court denied the petition and concluded that the independent action was not akin to a bad faith claim for refusal to settle. Id.

Similar to the negligence action in Gerber, the negligence per se claim brought in this action under section 825.102 is not akin to the bad faith claim also alleged here. Instead, the negligence per se claim is interdependent with the breach of contract claim Coley initially brought against his insurer. Because the negligence per se claim is interdependent and intertwined with the breach of contract claim, the order at issue does not constitute a partial final judgment pursuant to Rule 9.110(k). Accordingly, this Court lacks jurisdiction to entertain this appeal and dismisses the appeal.

DISMISSED.

      . Irrespective of the caption of the trial court's order, the Order at issue here is non-final, as Count III remains pending and is intertwined with, and not independent of, Count I.

      . Rule 9.110(k) provides in part that: "A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.”


author: SCALES, J.

text:
    Prince Roy SECONG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2894
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Aubrey Webb, P.A., and Aubrey Webb, for appellant.
    Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney General, for appellee.
    Before LAGOA, FERNANDEZ and SCALES, JJ.
   SCALES, J.

Prince Roy Secong appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(b) motion to correct a sentencing error, which challenged the trial court’s imposition of an upward departure prison sentence for his violation of community control. For the following reasons, we affirm the trial court’s imposition of an upward departure sentence, but vacate the general sentence entered by the trial court and remand for entry of a separate, distinct sentence for each of the underlying counts to which Secong previously pled guilty.

On August 20, 2015, Secong pled guilty to five counts of uttering worthless checks in violation of section 832.05(2) of the Florida Statutes. The lower court sentenced Secong to two years of community control followed by three years of supervised, probation. The same day Secong was placed on community control, Secong failed to report to his probation officer and to submit to electronic monitoring, for which the State filed an affidavit of violation of community control. .The trial court issued a warrant for Secong’s arrest on August 27, 2015.

On October 10, 2015, Secong was arrested in Broward County under a false name for third degree grand theft and multiple counts .of criminal possession/use of another person’s identification, for which the State filed an amended affidavit of violation of community control. Based on this arrest, the amended affidavit included as an additional violation that Secong had associated with persons engaged in criminal activity. At a November 5, 2015 hearing, Secong admitted to all of the violations of his community control.

Prior to the sentencing hearing, the State filed a memorandum in support of an upward departure sentence. Among other things, the,.State’s memorandum recounted: (1) the circumstances surrounding Sec-ong’s prior convictions for' uttering worthless checks, including Secong’s brandishing a firearm to intimidate one of the .victims; (2) Secong’s numerous failures to comply with the requirements of his community control, which occurred the- instant he was released from jail; and (3) Secong’s October 10, 2015 arrest in Broward County under an alias for grand theft and criminal possession/use of another person’s identification, which the State asserted was part of an ongoing investigation into an organized’scheme to defraud cellular telephone providers and their customers.

On November 19, 2015, the trial court imposed an. upward departure sentence, sentencing Secong to a term of fifteen years on ,the five counts of uttering worthless checks, to run concurrently. On January 7, 2016, Secong filed his- rule 3.800(b) motion to • correct his sentence, arguing that the trial court had failed to comply with the requirements of • section 775.082(10) of the Florida Statutes by its not making any written findings justifying the upward departure sentence. The trial court denied Secong’s rule 3.800(b) motion and separately entered its Order of Written Findings on Imposition of Incarceration Pursuant to F.S. 775.082(10), nunc pro tunc to November 19, 2Ó15, the date of sentencing.

In the order, after reciting the same facts set forth by the State in its motion for an upward departure sentence, the lower court determined that Secong poses a danger to the public:

The crimes to which the Defendant pled guilty in the instant case and the crimes he was arrested for in Broward County share a common theme of dishonesty and deception to the public. Defendant defrauded the victim in the instant case, Dr. Elias Tobon, out of over $20,000 via a ruse that involved depositing five worthless checks, amounting to oyer $30,000, into the victim’s bank account. Despite pleading guilty to. the charges associated with his victimization of Dr. Tobon and committing to making restitution payments, the Defendant chose to victimize additional members of the community by using stolen identification to illegally purchase cellular phones. This type of identity theft victimizes multiple members of the public—the individual whose identification has been stolen, the proprietor of the establishment from which the phone was illegally purchased, and cellular customers as a whole, who are subject to price increases levied by their cellular company in order to offset the cost of financial losses from theft. Furthermore, each crime the Defendant commits potentially endangers the public as police resources are diverted to his location for an investigation, diminishing police protection in other parts of the community.
The Defendant’s continued crimes, of theft and fraud present a threat to the property and financial security of those in his community. The Defendant has demonstrated a pattern of behavior that indicates that he has no respect for this Court or the láws of this State, that he has no concern for the property rights or personal information of others, that he is incapable of complying with any court-imposed conditions that could preclude incarceration, and' is undeterred from victimizing the people of his community for his own personal economic gain. ,f.
THEREFORE IT IS ORDERED AND ADJUDGED that the term of incarceration imposed on .the. Defendant by the Judgment and.Sentence in this case is necessary and appropriate to protect the Public/Community.

Because the record supports the trial ■court’s written determination that the defendant poses a danger to the public, we conclude that the trial court did not err by imposing an upward departure sentence in accordance with section 775.082(10). See Porter v. State, 110 So.3d 962, 964 (Fla. 4th DGA 2013) (affirming the trial court’s imposition of an upward departure sentence under section 775.082(10) for a grand theft conviction that “was accomplished by means of writing a worthless check,” where the trial court found the defendant posed a threat to the public based upon the grand theft conviction and his extensive history of committing financial crimes, including prior convictions on nine worthless checks charges); McCloud v. State, 55 So.3d 643, 645 (Fla. 5th DCA 2011) (“The record supports the trial court’s implicit finding that McCloud is an habitual thief and presents a threat to property. The fact that police resources are diverted to his location also potentially endangers the public, as it diminishes police protection in other parts of the community.... There is nothing in the language of section 775.082(10) that suggests that the Legislature intended to limit the meaning of ‘danger to the public’ only to persons threatening physical violence or injury.”). We, therefore, affirm denial of Secong’s rule 3.800(b) motion.

Because, however, it appears on the face of the record that the court below erred by imposing a general sentence for the separate, distinct counts of uttering a worthless check, we vacate Secong’s general sentence and remand for the limited purpose of entering separate, distinct sentences for each count. See Holmes v. State, 100 So.3d 281, 283 (Fla. 3d DCA 2012) (“[A] trial court may not impose a single general sentence to cover multiple counts.... [T]he remedy for such an error is not the withdrawal of the underlying plea, but a vacation of the general sentence and entry of a separate, distinct sentence for each of the individual counts.”); see also State v. Jimenez, 173 So.3d 1020, 1024 n.4 (Fla. 3d DCA 2015) (“We note that on resentencing a court may impose consecutive sentences in order to effect the intent of the original sentencing court.”).

Affirmed in part, reversed in part, remanded with instructions.

      .With respect to the arrest warrant issued for Secong’s arrest after he violated his community control, the State recited the following:
      A probation violation warrant was issued for the Defendant on August 24, 2014 [sic], four days after he took a plea. The following day, the undersigned Assistant State Attorney received an email from the Defendant’s attorney indicating that the Defendant knew about the warrant and was going to turn himself in on August 27, 2015. The Defendant failed to turn himself in on that day.... Despite the fact that the Defendant owed the victim $21,750 and failed to appear numerous times in court to make good on his debt, the Defendant posted pictures of himself on his Instagram account with large stacks of $100 bills with the caption ‘ '#catchmei£youcan' ’.
      The next time this court heard from the Defendant, he had fled from this jurisdiction and was arrested in Broward County under a false name of Christopher Car-stens.
      (Citations omitted).

      . The record reflects this was a general sentence.

      . This statute provides:
      (10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that

        a nonstate prison sanction could present a danger to the public, the 'court may sentence the offender to a state correctional facility pursuant to this section.

      § 775.082(10), Fla. Stat. (2015) (emphasis added).


author: LOGUE, J.

text:
    Lorenzo CAMARGO, et al., Appellants, v. PRIME WEST, INC., et al., Appellees.
    No. 3D16-555
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017.
    Rehearing Denied August 23, 2017
    Patterson & Sweeny, PL, and John H. Patterson, Jr., for appellants.
    Perez & Rodriguez, P.A., and Javier J. Rodriguez, Johanna Castellon-Vega and Freddy X. Muñoz, for appellee Prime West, Inc.
    Before LOGUE, SCALES, and LUCK, JJ.
   LOGUE, J.

Lorenzo and Ana Camargo appeal the trial court’s orders granting summary judgment in favor of Prime West, Inc., and denying the Camargos’ motion for rehearing or clarification. Because claims remain unresolved in the trial court below, we dismiss for lack of jurisdiction.

In November 1998, the Camargos, owners of real property in Miami-Dade County, filed an action against adjoining landowner Prime West. The Camargos sought declaratory relief and an implied grant of way of necessity as to the real property owned by Prime West. Following a nonju-ry trial, the trial court entered a final judgment granting the Camargos declaratory relief by ordering Prime West to remove a fence that physically landlocked the Camargos’ property. The trial court denied the Camargos’ claim for an implied grant of way of necessity. This court affirmed the final judgment. Prime West, Inc. v. Camargo, 906 So.2d 1112 (Fla. 3d DCA 2005).

In March 2006, the Camargos filed an amended motion for supplemental relief seeking money damages for the time periods both before and after the final judgment was entered based on Prime West’s failure to remove the fence. In August 2015, Prime West moved for summary judgment with respect to any prejudgment damages.

The trial court entered summary judgment expressly denying the prejudgment damages. Despite no ruling as to the post-judgment damages sought by the Camar-gos, an administrative stamp on the order stated the following:

THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL PARTIES.

The Camargos filed a motion for rehearing or clarification. The motion was denied without a hearing, and the order was stamped with the statement, “CLERK TO RECLOSE CASE IF POST JUDGMENT.” This appeal followed. ■

We dismiss the Camargos’ appeal for lack of jurisdiction because the partial summary judgment granted in favor of Prime West is a nonfinal, nonappealable order. Prime West’s motion for summary judgment concerned only the prejudgment damages sought by the Camargos in their amended motion for supplemental relief, and the trial court’s order ruled solely on that issue. Notwithstanding the language of the order’s administrative stamp, there remains a pending claim for post-judgment damages. See, e.g., Northcutt v. Pathway Fin., 555 So.2d 368, 369-70 (Fla. 3d DCA 1989) (dismissing appeal because partial summary judgment is a nonfinal, nonap-pealable order); Raymond James & Assocs. v. Godshall, 851 So.2d 879, 880-81 (Fla. 1st DCA 2003) (dismissing appeal as premature because related claims were pending, even though the order contained traditional language of finality); Behavioral Healthcare Options, Inc. v. Charter Behavioral Health Sys. of Tampa Bay, Inc., 727 So.2d 1135, 1136 (Fla. 2d DCA 1999) (dismissing appeal and concluding an order of dismissal was nonfinal, nonappealable order because the dismissed claims were interrelated with two. remaining claims). The administrative stamp language alone is not enough to convert the order to a final, appealable order.

Dismissed.


text:
    Michael Wayne NELSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-464
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017.
    Rehearing Denied September 13, 2017
    Michael Wayne Nelson, East Palatka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Wayne Nelson (“Appellant”) appeals the denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant contends that the trial court’s oral pronouncement of his sentence conflicts with the written sentence.

Appellant alleges in his motion that the trial court erred in failing to attach a copy of the transcript of the sentencing hearing, suggesting that transcripts do exist. However, it appears, that the trial court based its denial of Appellant’s motion upon court minutes. Other than Appellant’s allegation in his motion, there is no indication whether a transcript of the hearing exists that would show whether there was a discrepancy between the oral pronouncement and the written sentence. If a transcript is not filed in the record in the trial court, it Is possible, as Appellant seems to allege, that he may have a transcript that was not filed. Therefore, we reverse the order under review and remand this case to the trial court. See Mallon v. State, 939 So.2d 198, 199 (Fla. 5th DCA 2006) (“On remand, the trial court shall determine whether the written sentence conforms to the oral pronouncement. If they do, the trial court shall attach written portions of the record conclusively refuting Mallon’s claim.”). If the trial court concludes that the sentencing transcript is not in the record and denies relief, it should do so without prejudice to Appellant filing an amended motion attaching the transcript if one exists.

REVERSED and REMANDED.

SAWAYA, WALLIS, and EISNAUGLE, JJ., concur.


author: PER CURIAM. WOLF, J.,

text:
    Eric Patrick WRIGHT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4331
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017
    Rehearing Denied September 19, 2017
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    ■ Pamela Jo Bondi, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

MAKAR and M.K. THOMAS, JJ., CONCUR; WOLF, J., CONCURS WITH OPINION.

WOLF, J.,

concurring.

I concur that there is no legal reason to overturn appellant’s conviction and 20-year mandatory minimum sentence for aggravated assault with a firearm. This case, however, is a classic example of how inflexible mandatory minimum sentences may result in injustices within the legal system that should not be tolerated. I, therefore, recommend that appellant apply for executive clemency pursuant to article IV, section 8 of the Florida Constitution and that the Governor and Cabinet act favorably upon this request.

At the time of the incident that led to the charges in this case, appellant was 24 years old with no prior record and had held the same job for 4 years. The charges arose from an incident where the victim barged, uninvited, into appellant’s home. They had been former lovers and shared a child. Appellant asked the victim to leave the residence, and a struggle ensued. The victim was bigger than appellant and continued to refuse to leave. Appellant then drew a gun and fired one shot. It is undisputed that the gun was not fired directly at the victim and was fired in an attempt to get victim to leave. Based on these facts, appellant was convicted of aggravated assault with a deadly weapon without intent to kill. The jury found appellant discharged a firearm during the commission of the offense. The trial court, as required by law, sentenced appellant to 20 years mandatory minimum with the Department of Corrections. The trial judge stated she would like not to sentence appellant to the mandatory minimum if she felt there was another option, stating she “[didn’t] disagree that the defendant shouldn’t be spending that kind of time in the Florida State Prison, but I, in my charge, I am bound by the law to do what the law says.”

Unfortunately for appellant, the offense was committed prior to July 1, 2014. Aggravated assault was an enumerated offense pursuant to the 10-20-Life statute, and the trial court had absolutely no discretion not to impose the 20-year mandatory minimum.

Section 775.087(6), Florida Statutes (2014), was enacted effective July 1, 2014. The amendment to the 10-20-Life statute provides:

Notwithstanding s. 27.366, the sentencing court shall not impose the mandatory minimum sentence required by subsection (2) or subsection (3) for a conviction for aggravated assault if the court makes written findings that:
(a) The defendant had a good faith belief that the aggravated assault was justifiable pursuant to chapter 776.
(b) The aggravated assault was not committed in the course of committing another criminal offense.
(c) The defendant does not pose a threat to public safety.
(d) The totality of the circumstances involved in the offense do not justify the imposition of such sentence.

Prior to the enactment of section 775.087(6), no exception was provided and trial courts were required to sentence defendants to the mandatory minimum sentence. Here, the trial court determined that statute could not be retroactively applied and sentenced appellant to 20 years in prison.

The statute was again amended on July 1, 2016, to remove aggravated assault from the list of convictions for which the 10-20-Life statute applies. See § 775.087, Fla. Stat. (2016).

Based upon appellant’s bad timing, the only relief that may be accorded to him from this inappropriate sentence is through the Governor and Cabinet.


text:
    Jerome J. FERRIER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2566
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017
    Rehearing Denied September 19, 2017
    Jerome J. Ferrier, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed. See Fla. R. App. P. 9.141(d)(5).

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Nicholas Alan NEHRING, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3252
    District Court of Appeal of Florida, First District.
    Opinion filed August 7, 2017
    Rehearing Denied September 15, 2017

      Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   GRIFFIS III, STANLEY H., ASSOCIATE JUDGE.

Appellant raises two issues on appeal. He argues that the trial court erred by failing to enter a written order determining his competence to stand trial, and he argues that the court abused its discretion when it allowed the state to impeach his only witness with seventeen-year-old felony convictions.

First, the trial court is required to enter a written order of competency. Mullens v. State, 197 So.3d 16, 37 (Fla. 2016). The trial court orally found Appellant competent to stand trial, but it failed to enter a written order memorializing that finding. Therefore, we remand for the trial court to enter a written order of competency nunc pro tunc. See id. at 37-38.

Next, Appellant argues that the court should not have allowed the state to impeach his only witness with felony convictions that were at least seventeen years old. The Florida rules of evidence allow a party in a civil trial to impeach a witness with a prior felony conviction or any conviction for a crime of dishonesty so long as the conviction is not so remote in time as to have no bearing on the present character of the witness. § 90.610(l)(a), Fla. Stat. (2016). The same rule applies in criminal trials. Pryor v. State, 855 So.2d 134, 137 (Fla. 1st DCA 2003). In the Federal Rules of Evidence, a felony conviction is admissible to impeach a witness who is not the defendant so long as its probative value is not substantially outweighed by its prejudicial effect. Fed. R. Evid. 609(a)(1). However, if more than ten years have passed since the witness was released from confinement for any conviction, the test for admissibility is inverted, meaning the conviction is admissible only if - its probative value substantially outweighs its prejudicial effect. Fed. R. Evid. 609(b). Florida lacks this inverted balancing test for remote convictions. Trowell v. J.C. Penney Co., Inc., 813 So.2d 1042, 1043 (Fla. 4th DCA 2002). The only test for the admissibility of a prior conviction is whether the conviction has any bearing on the witness’s credibility. See Pryor, 855 So.2d at 136-37. The remoteness of the conviction will most certainly be a factor in determining whether it bears on the witness’s credibility, but there is no bright-line rule for when a conviction becomes too remote to bear on the witness’s credibility. The determination is within the trial court’s discretion, see Trowell, 813 So.2d at, 1044, and a trial court abuses its discretion only when its decision is: arbitrary or fanciful. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980).

In this case, the witness had four felony convictions, one of which was for a crime of dishonesty. Though the convictions were rather remote in time, this Court is unable to say that the court’s decision to allow them was arbitrary or fanciful. Thus, we affirm Appellant’s judgment and sentence but remand for the trial court to enter an order nunc pro tunc finding Appellant competent to stand trial.

AFFIRMED and REMANDED with instructions.

WOLF and ROWE, JJ., CONCUR.

      . This balancing test does not apply to a conviction for a crime of dishonesty. Fed. R. Evid. 609(a)(2).


author: SUAREZ, J.

text:
    Samson HYLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-817
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Samson Hyland, in proper person.
    • Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER, and FERNANDEZ, JJ.
   SUAREZ, J.

We affirm without discussion the trial court’s Order denying Defendant Samson Hyland’s most recent 3,850 motion.

ORDER TO SHOW, CAUSE

Since 2014 Hyland has filed numerous petitions and appeals .to this Court regarding the legality of his sentence and the evidence presented at his trial, We recognize that incarcerated persons must be provided with a full panoply of procedural vehicles with which to challenge the lawfulness of their incarceration. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). On the other hand, successive motions which have been heard, considered, rejected and then raised again are an abuse of process, Concepcion v. State, 944 So.2d 1069, 1072 (Fla. 3d DCA 2006).

This Court has the authority to limit abuses of process by pro se litigants. Consequently, Hyland is hereby directed to show cause within forty-five days of this opinion, as to why he should not be prohibited from filing any further pro se appeals, petitions, motions or other pleadings related to his criminal conviction in circuit court case number F08-21027.

If Hyland does not demonstrate good cause, we will direct the Clerk. of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida Bar.

Additionally, and absent a showing of good cause, any further and unauthorized filings by Hyland will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action. See, § 944.279(1), Fla. Stat. (2016).

      . The following describe the many occasions this Court has reviewed Hyland’s related and unsuccessful motions and petitions related to circuit court case number F08-21027. Hyland v. State, 2017 WL 2211360 (Fla. 3d DCA Apr. 24, 2017); Hyland v. State, 2017 WL 1403603 (Fla. 3d DCA Mar. 30, 2017); Hyland v. State, 2017 WL 1423532 (Fla. 3d DCA Mar. 31, 2017); Hyland v. State, 211 So.3d 1048 (Fla. 3d DCA 2016); Hyland v. State, 199 So.3d 272 (Fla. 3d DCA 2016); Hyland v. State, 2015 WL 77988 (Fla. 3d DCA Jan. 7, 2015); Hyland v. State, 160 So.3d 439 (Fla. 3d DCA 2014); and Hyland v. State, 138 So.3d 454 (Fla. 3d DCA 2014).


text:
    WATERVIEW CONDOMINIUM ASSOCIATION, INC., Appellant/Cross-Appellee, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee/Cross-Appellant.
    Nos. 3D15-1760 & 3D15-2088
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Law Offices of Paul Morris, P.A. and Paul Morris; Alayon & Associates, P.A. and Richard A. Alayon; Diaz, Reus & Targ and Juan Ramirez, Jr., for appellant/cross-appellee.
    Methe & Rockenbach, P.A. and Kara Berard Rockenbach (West Palm Beach), for appellee/cross-appellant.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   PER CURIAM.

Appellant’s Waterview Condominium Association, Inc. appeals final judgment in favor of Citizens Property Insurance Corporation after jury trial on Appellant’s property damage claim related to Hurricane Wilma claim. We affirm that final judgment without discussion.

Citizens cross-appeals the trial court’s denial of its claim for attorney’s fees. We affirm the trial court’s denial of Citizen’s claim for attorney’s fees finding the general release attached to the proposal for settlement ambiguous. We further deny both parties motions for appellate attorney’s fees.

Affirmed.


text:
    Sharon Kay MAGNUSSON, Appellant, v. FLORIDA DEPARTMENT OF REVENUE and Marilyn Brett-Sheffield, Appellees.
    CASE NO. 1D15-120
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Rehearing Denied September 15, 2017
    Sharon Kay Magnusson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
   PER CURIAM.

AFFIRMED.

WINOKUR, JAY, and M.K. THOMAS, JJ„ CONCUR.

       We reject the concession of the Department of Revenue ("DOR”) that its final administrative support order must be vacated because it was entered without jurisdiction. The Administrative Law Judge relinquished jurisdiction in the case to DOR on December 12, 2014, not on December 16, 2014, as DOR claims in its brief. Accordingly, DOR did have jurisdiction to enter the December 15, 2014, final administrative support order.


author: WINOKUR, J.

text:
    Waymon KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4751
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017

      Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Michael J. Titus, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Trader, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Waymon Kirkland appeals a judgment and sentence for felony battery and aggravated battery with a deadly weapon. We reverse the felony battery conviction.

The State filed a two-count information charging Kirkland in Count I with aggravated battery with a deadly weapon upon Dedrick Hall and in Count II with aggravated battery with a deadly weapon upon Anterkeith Burns. The evidence at Kirkland’s bench trial showed that Kirkland struck both men with a stick, Hall on the leg and Burns on the head. The court found Kirkland guilty as charged on Count II, but guilty of the lesser offense of felony battery on Count I. The court acknowledged, and the State concedes on appeal, that there was no evidence of great bodily harm, permanent disability, or permanent disfigurement presented at trial to support the felony battery conviction, However, Kirkland did not object to the felony battery conviction on this ground, so we must find fundamental error in. order to reverse. See § 924,051(3), Fla. Stat.

We first observe that the lack' of evidence supporting Kirkland’s conviction for felony battery is not itself grounds for reversal. While no evidence was presented to prove one of the elements of felony battery (great bodily harm, permanent disability, or permanent disfigurement), there was evidence of a crime. Specifically,'the evidence showed that Kirkland committed a battery by striking Hall on the leg. Therefore, Kirkland’s failure to object precludes reversal on this ground. F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) (holding that a defendant can present an unpre-served claim of insufficiency on appeal in a noncapital case only when the evidence is “insufficient to show that a crime was committed at all”) (emphasis added).

However, we agree that it was fundamental error for the trial court to find Kirkland guilty of felony battery because not all of the elements of felony battery were charged in the information. The State charged two counts of aggravated battery. Aggravated battery is a battery where the defendant either 1) intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement, or 2) uses a deadly weapon. § 784.045(1), Fla. Stat. In the former situation, the charged crime includes all of the elements of felony battery, so felony battery is a necessarily lesser-included offense. In the latter situation—aggravated battery with a deadly weapon—felony battery is not a necessarily lesser-included offense because the element of great bodily harm is not contained within the charged crime.

Here, the State charged Kirkland with committing “a battery upon Dedrick Hall by Hitting with a Bat, a deadly weapon.” That is, the State charged Kirkland with aggravated battery with a deadly weapon. Because Kirkland was only charged with aggravated battery using a deadly weapon, it was fundamental error, in this specific context, to convict him of felony battery. See K.H. v. State, 763 So.2d 1187, 1188 (Fla. 4th DCA 2000). To do so violated his due process right to be notified of the specific charges against him-. See Ray v. State, 403 So.2d 956, 959-60 (Fla. 1981).

We recognize the rule regarding fundamental error set forth in Ray, where the Florida Supreme Court held as follows:

[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.

Id. at 961 (footnote omitted) (emphasis added). The rule in Ray applies where the defendant had an opportunity to object. A defendant tried at bench trial has limited opportunities to object ,to an erroneous lesser-included offense, primarily because there is no charge conference or verdict form. See Chambers v. State, 880 So.2d 696, 702 n.10 (Fla. 2d DCA 2004) (en banc) (observing that Ray was distinguishable from a case involving bench trial because defendant does not have opportunity to object to trial court’s consideration of inappropriate lesser offens.es); Nesbitt v. State, 819 So.2d 998, 994 n.l (Fla. 5th DCA 2002) (noting that Ray does not apply in cases involving bench trials because “those cases did not present the opportunity to object to the trier of fact’s consideration of inapT propriate lesser offenses in lieu of the main charge, an opportunity Ray finds to be significant”).

The Third District’s opinion in V.C. v. State, 63 So.3d 831 (Fla. 3d DCA 2011), is instructive. Like here, the State charged V.C. with aggravated battery with a deadly weapon and did not allege great bodily harm. Nevertheless, after a nonjury adjudicatory hearing, the trial court, found V.C. guilty of felony battery. The Third District concluded that the trial court erred, explaining that felony battery is a category two permissive lesser-included offense of aggravated battery and, as such, the State was required to charge all the requisite elements of felony battery in the information in order for V.C.’s adjudication to be valid. Id. at 835. The court further explained why the error was fundamental:

V.C.’s trial counsel did not have an opportunity to object to the trial court’s finding because, as this was a juvenile proceeding and the case was tried to the court rather than to a jury, no jury instructions were prepared. Additionally, the record reflects that V.C. did not request that the trial court consider any lesser included offenses, neither side argued that the evidence supported a finding that V.C. committed a felony battery, and V.C. took, no action that in any way invited the error.

Id. at 834-35.

We are unpersuaded by the State’s effort to distinguish V.C. on grounds that Kirkland, as an adult, had a right to a trial by jury affording him the opportunity to object within the meaning of Ray. Kirkland did not waive his due-process right to be adequately notified of the crimes of which he could be convicted by waiving his right to a jury trial.

We conclude that the trial court committed fundamental error by convicting Kirkland of a crime for which he was not charged. Moreover, Kirkland did not request the trial court to consider felony battery as a lesser-included offense, neither side argued for conviction of felony battery, and Kirkland did not in any way invite the error. We instruct the trial court to vacate the judgment- and sentence for felony battery and enter a judgment for the necessarily lesser-included offense of simple battery. V.C., 63 So.3d at 835. We affirm Kirkland’s conviction for aggravated battery with a deadly weapon.

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

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

       Felony battery consists of a simple battery (actually and intentionally touching or striking another person against the will of the other) that "[clauses great bodily harm, permanent disability, or permanent- disfigurement,” § 784.041(1), Fla. Stat.


text:
    Jeremiah BUTLER, Appellant, v. Julie L. JONES, Florida Department of Corrections, Appellee.
    CASE NO. 1D16-5779
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017

      Jeremiah Butler, pro se, Appellant.
    Kenneth Steely, General Counsel, Florida Department of Corrections, Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of his “Petition for Writ of Mandamus And Or Alternative Habeas Corpus.” The circuit court dismissed the Petition because it found it had no jurisdiction to consider what it deemed a collateral challenge to a judgment and sentence. The Petition is not a collateral challenge to a judgment and sentence, and we are therefore constrained to reverse for the circuit court’s further consideration.

Where a prisoner challenges the Department’s calculation or interpretation of his or her sentence, the prisoner must first exhaust administrative remedies through the Department. See Massey v. Crosby, 860 So.2d 529, 529 (Fla. 4th DCA 2003) (mem.) (citing Bedford v. State, 775 So.2d 402, 402 (Fla. 4th DCA 2000)); Brown v. State, 13 So.3d 1087, 1087 (Fla. 2d DCA 2009) (mem.). After, the prisoner may seek review of that administrative decision via extraordinary writ—mandamus if the prisoner is not seeking entitlement to immediate release. Head v. McNeil, 975 So.2d 583, 584-85 (Fla. 1st DCA 2008); see Bush v. State, 945 So.2d 1207, 1211 (Fla. 2006). The prisoner has one year from the date of exhausting administrative remedies to file the petition and venue is proper in Leon County— where the Department is located. Bush, 945 So.2d at 1213-14; Head, 975 So.2d at 584-85.

Appellant filed a Petition replete with references to how the Department calculated his gain time, forfeited gain time, and arrived at a tentative release date (TRD). Appellant further suggested the Department erred in failing to restore forfeited gain time due to an errant sexual offender classification. Appellant attached various administrative grievances and Department responses to the Petition—all discussing gain time and TRD calculations. Appellant calculated a 2036 TRD, the Department calculated 2058. Appellant was not collaterally challenging his judgment or sentence. He raised no issue as to the court, its rulings, dr the legality of his thirteen and fifty year sentences. His claims were directed at the Department and its implementation of sentences he agrees he has and does not challenge.

However inartful the Petition and whatever the merits may be, Appellant challenged the Department’s calculation of his TRD. The circuit court dismissed the Petition on the sole ground it was not the sentencing court and therefore lacked jurisdiction to hear a collateral challenge. This was error, and it requires our reversal.

Accordingly, the court’s dismissal order is REVERSED, and the cause is REMANDED for the circuit court’s further consideration.

WOLF and ROWE, JJ., and GRIFFIS III, STANLEY H., ASSOCIATE JUDGE, CONCUR.

      . For example, the first page of the Petition asserts Appellant is seeking review of orders entered in criminal cases and cites separation of powers and the ex post facto prohibition.

      . We express no opinion as to the merits of Appellant’s Petition. That is entirely for the circuit court.


text:
    Nino Chet TARTARINI, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1142
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Rehearing Denied September 19, 2017
    Nino Chet Tartarini, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Vreeland v. State, 72 So.3d 802 (Fla. 1st DCA 2011).

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Lavory W. HICKMON Sr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2894
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Rehearing Denied September 19, 2017

      Lavory W. Hickmon Sr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Spencer Lee SPEIGHTS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3001
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Rehearing Denied September 19, 2017
    Spencer Lee Speights, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.