author: THOMAS, J.

text:
    Joseph Edward TETREAULT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4452.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant seeks review of his convictions and sentences for sexual battery and lewd and lascivious molestation on a child 12 years of age or older but less than 16 years of age. Appellant alleges that the trial court erred in allowing the State’s peremptory strikes of four prospective male jurors. In addition, Appellant argues that the trial court reversibly erred in admitting the victim’s prior testimony, as it constituted improper prior consistent statements. Finally, Appellant argues that the trial court erred in admitting testimony by a law enforcement investigator that he did not arrest every person accused of a sex offense.

We agree with Appellant on all three issues and reverse and remand for a new trial. We write only to address the jury selection issue, which moots the other evi-dentiary issues. We reject without comment Appellant’s argument regarding closing argument.

Appellant was charged with two counts of sexual battery by use or force not likely to cause serious personal injury (counts I and II), two counts of lewd or lascivious molestation on a child 12 years of age or older but under 16 years of age (counts III and IV), and one count of lewd or lascivious molestation of a child under 12 years of age (count V). Count V was severed from counts I-IV for the purposes of trial.

A jury was selected for trial as to counts I-IV. Of the twenty-one prospective jurors, six were male and fifteen were female. Originally, three men were picked for the jury, including Jurors McCall and Walstedt. The State utilized backstrikes on the three men, however, and the defense sought gender-neutral reasons for the strikes. The State offered that Wal-stedt was struck because he did not contribute to voir dire, and McCall was struck because the prosecutor was concerned that he was a student, was not working, had worked with kids “giving advice or something,” and the State did not feel comfortable with him. The trial court accepted the State’s reasons as gender-neutral.

Florida follows a three-step procedure when one party objects to another’s use of a peremptory challenge on the basis of gender. See Melbourne v. State, 679 So.2d 759 (Fla.1996); Welch v. State, 992 So.2d 206 (Fla.2008). First, the objecting party must make a timely objection, requesting that the striking party provide its reason for the strike. Melbourne, 679 So.2d at 764. The defense made such objections here. Second, the burden shifts to the proponent of the strike to present a “gender-neutral explanation” for striking the disputed juror. Id. Here, the State responded with facially gender-neutral explanations for the use of the strikes. Third, the court must determine, given all the attendant circumstances, whether the proffered explanation is pretext for a discriminatory motive. Id.

In Melbourne, the Florida Supreme Court provides the following guidance for this last inquiry:

The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.... Accordingly, reviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a non-discriminatory manner. Second, the trial court’s decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.

Id. at 764-65 (footnotes omitted).

The trial court properly proceeded to step three, which considers whether the proffered explanation is genuine or a pretext. In allowing the strikes, however, the trial court did not make express rulings explaining why it found that the State’s reasons for striking the prospective jurors were genuine. Instead, with respect to the strikes of McCall and Walstedt, the court stated, “I’ll accept the State’s gender — reasons for gender-neutral selection.”

Implicit in its allowance of peremptory strikes are findings that the explanations were genuine. See Fleming v. State, 825 So.2d 1027, 1029 (Fla. 1st DCA 2002) (stating that “we must conclude that, by overruling the defense’s objections, the lower court made an implicit finding that the state’s strikes were genuine.”); Bowden v. State, 787 So.2d 185, 188 (Fla. 1st DCA 2001). In Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006), however, this court held that the record did not indicate that the trial court reached the third step in the Melbourne analysis because when the defense challenged the prosecution’s reason for striking a potential juror, the trial court stated, “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” Simmons, 940 So.2d at 582. This court continued, “By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.” Id. at 582-83.

Like Simmons, the court below bypassed the third step in the Melbourne analysis and focused solely on the fact that the State’s reasons behind its peremptory strikes were gender-neutral. It did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine.

Accordingly, because the record does not indicate that the trial court engaged in the required third step of the Melbourne analysis, we are required to reverse and remand for a new trial. See Simmons, 940 So.2d at 583 (citing Jones v. State, 787 So.2d 154 (Fla. 4th DCA 2001)).

REVERSED and REMANDED.

HAWKES, C.J., and BENTON, J., concur.


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. David Lee BARNES, Appellee.
    No. 1D08-5150.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   LEWIS, J.

The State appeals the trial court’s order granting David Lee Barnes’ motion for post-conviction relief and awarding a new trial. The State argues that the trial court erred in concluding that Barnes’ trial counsel rendered ineffective assistance by failing to request a jury instruction on the justifiable use of non-deadly force. For the reasons expressed below, we agree and reverse.

Barnes was charged by amended information with the second-degree murder of Michael Speights (“the victim”). The information alleged that Barnes unlawfully killed the victim by stabbing him with a knife without a premeditated design. At trial, Barnes’ trial counsel argued in his opening statement that Barnes held out the knife only to “ward off’ the victim after the victim lunged at him and, as a result, the victim was accidentally wounded. Trial counsel asserted that because Barnes armed himself in self-defense, Barnes’ actions amounted to “lawful homicide, either excusable homicide or justifiable use of deadly force.”

Charles Smith, an eyewitness to the altercation preceding the stabbing, testified that he saw Barnes and the victim exit his neighbor’s home, wrestle, fall over a railing, and land near the victim’s truck door. According to the Smith, after the victim opened his truck door and walked to the front of the vehicle, Barnes followed the victim and pulled out a knife. The victim backed away and circled around the vehicle. Barnes followed. When the victim stopped moving, Barnes approached the victim. Both men remained next to the vehicle for a few minutes. Later, Smith observed the victim fall to the ground, but did not see Barnes stab the victim.

Investigator Mark Bailey testified that he interviewed Barnes at the Gulf County Sheriffs Office after Barnes was apprehended. The interview, which was taped, was played for the jury. In the interview, Barnes repeatedly stated that he acted in self-defense. He explained that the victim chased him, pinned him to the ground, and was carrying two knives. Barnes also stated it was possible that he “cut [the victim] with his own knife” but could not remember because “everything was ... a blur.” After the tape ended, Bailey testified that Barnes never explained the basis of his self-defense claim.

In his defense, Barnes took the stand and testified that the victim was the aggressor and began the fight by throwing Barnes down the stairs of a mutual friend’s home. After he reentered the home and later decided to leave, Barnes grabbed a knife to use as “a deterrent” because he was afraid the victim would try to fight him again. When he left the house to walk to his car, Barnes heard the victim’s fast-approaching footsteps. As he turned, Barnes held out the knife with an outstretched arm and saw the victim with his hand raised in a striking position. Barnes maintained that he did not realize that as he turned, the knife penetrated the victim, accidentally impaling him.

In his closing argument, trial counsel argued that the evidence presented, and credible testimony confirmed, that Barnes’ use of deadly force in self-defense was reasonable because he was in imminent fear of harm.

At the charge conference, trial counsel requested an instruction on the justifiable use of deadly force, but he did not request an instruction on the justifiable use of non-deadly force. The trial court granted the request for the instruction. Trial counsel did not object to the instructions as read. The jury ultimately found Barnes guilty of the lesser-included offense of manslaughter. Barnes was convicted and sentenced to ten years in prison and five years of probation with credit for 105 days’ time served. We per curiam affirmed the conviction and sentence on direct appeal. Barnes v. State, 935 So.2d 501 (Table) (Fla. 1st DCA 2006).

Barnes filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing in part that trial counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. Barnes alleged that the non-deadly force instruction supported his theory that the victim accidentally impaled himself. The trial court denied the motion and Barnes’ subsequent motion for rehearing. Barnes appealed. Because the trial court’s order denying relief together with the attachments did not conclusively refute Barnes’ allegations, we reversed the trial court’s denial with respect to the ineffective assistance claim and remanded with instructions to attach portions of the record that conclusively refuted Barnes’ claims or to conduct an evidentiary hearing. Barnes v. State, 983 So.2d 47, 47-48 (Fla. 1st DCA 2008). On remand, the trial court appointed counsel for Barnes and conducted an evidentiary hearing.

At the evidentiary hearing, trial counsel testified that he believed that Barnes’ version of the events, particularly Barnes’ statements to police, constrained him to advancing a theory of justifiable homicide, which would require a deadly force instruction, rather than an accidental impalement theory, which would require a non-deadly force instruction. In support of his decision, trial counsel drew upon his jury trial experience, explaining that juries are often skeptical of theories of accidental homicide. Further, he noted that when he used an accidental homicide theory in another trial, the argument was unsuccessful. Trial counsel also compared Barnes’ case to an accidental homicide case in which he requested a non-deadly force instruction. In that case, trial counsel argued that the defendant “was justified in pointing a gun at the victim and then the victim grabbed the gun and the gun went off accidentally.” In distinguishing the instant case, trial counsel pointed to Barnes’ self-defense claims during the police interview. He believed that those statements precluded him from arguing accidental homicide and, as a result, did not warrant requesting a non-deadly force instruction. Ultimately, trial counsel testified that his decision to request only the deadly force instruction was successful “to some effect” because Barnes was convicted of manslaughter, not second-degree murder.

After the hearing, the trial court issued an order granting Barnes’ motion for post-conviction relief and ordered a new trial. The trial court found that evidence was presented during trial that supported two defensive theories of the case: (1) the defendant stabbed the victim in self-defense; and (2) accidental impalement. The trial court concluded that, even though the only evidence supporting the impalement theory was Barnes’ testimony, “a defendant is entitled to a jury instruction on his theory of the case if there is any evidence to support it.” Accordingly, the trial court found that trial counsel rendered ineffective assistance because “any strategy behind failing to request the instruction was not reasonable under the circumstances.” This appeal followed.

The State argues that the trial court erred in concluding that trial counsel rendered ineffective assistance by failing to request a jury instruction on the justifiable use of non-deadly force because this decision constituted trial strategy. Further, the State asserts that Barnes failed to demonstrate that trial counsel’s failure to request the instruction was prejudicial to his defense. Barnes argues that the trial court correctly determined that trial counsel rendered ineffective assistance. He argues that the testimony and evidence presented at trial support the trial court’s determination that he was also entitled to the non-deadly force instruction. Additionally, Barnes asserts that he demonstrated that trial counsel’s failure to request the additional instruction was prejudicial to his defense. We agree with the State that trial counsel’s strategic decision not to request the instruction was not deficient.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Florida Supreme Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be met. Floyd v. State, 18 So.3d 432, 443 (Fla.2009). First, the defendant must establish that counsel’s performance was deficient. Id. at 443. Second, the defendant must establish that counsel’s deficient performance was prejudicial to him or her. Id. (citations omitted). When a defendant fails to establish one prong, it is unnecessary to consider the remaining prong. Stewart v. State, 801 So.2d 59, 65 (Fla.2001).

To establish deficiency under Strickland, the defendant must show that counsel’s performance was unreasonable under “prevailing professional norms.” 466 U.S. at 688, 104 S.Ct. 2052. To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Both prongs of the Strickland test involve mixed questions of law and fact. Floyd, 18 So.3d at 443; Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). As a result, a mixed standard of review is required: deference to the trial court’s factual findings supported by competent, substantial evidence and de novo review of legal conclusions. Floyd, 18 So.3d at 443; Stephens, 748 So.2d at 1033.

There is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. To fairly assess attorney performance, every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Id. at 689, 104 S.Ct. 2052; Mansfield v. State, 911 So.2d 1160, 1174 (Fla.2005) (counsel is not ineffective for strategic decisions that, in hindsight, did not work to the defendant’s advantage). The defendant bears the burden of proving a claim of ineffective assistance at an eviden-tiary hearing on a Rule 3.850 motion. Williams v. State, 974 So.2d 405, 407 (Fla. 2d DCA 2007) (citation omitted). The defendant must “overcome the presumption that ... the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)); Gray v. State, 972 So.2d 1066, 1066 (Fla. 1st DCA 2008) (applying standard to ineffective assistance claims based on trial counsel’s failure to request a jury instruction). As a result, judicial scrutiny of trial counsel’s performance is highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Floyd, 18 So.3d at 443. An attorney’s strategic decision does not “constitute ineffective assistance if alternate courses of action have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Chavez v. State, 12 So.3d 199, 207 (Fla.2009).

We conclude that Barnes failed to meet the first prong outlined in Strickland. Trial counsel was not deficient when he made the strategic decision not to request a jury instruction on the justifiable use of non-deadly force. Trial counsel’s testimony at the evidentiary hearing demonstrates that he considered requesting a non-deadly force instruction but ultimately ■discarded this option for several reasons. He pointed to Barnes’ statements during the police interview and to credible conflicting testimony and evidence presented at trial in support of his decision not to request the instruction. Additionally, trial counsel testified that, in his experience, accidental homicide theories are not often successful in jury trials. He also compared the instant case to a case in which he requested a non-deadly force instruction. In distinguishing the instant ease, trial counsel explained that because he opted not to pursue the accidental impalement theory, he believed the non-deadly force instruction did not apply. Trial counsel’s strategic decision was reasonable under norms of professional conduct. Therefore, trial counsel’s failure to request the jury instruction did not render his assistance deficient.

Because Barnes failed to establish the deficiency prong of Strickland, we need not consider the prejudice prong. Accordingly, we conclude that the trial court erred in finding that trial counsel rendered ineffective assistance by failing to request the additional jury instruction and reverse the trial court’s grant of post-conviction relief.

REVERSED.

KAHN and WETHERELL, JJ., concur.


text:
    Robert Eugene COURSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1248.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Nancy A. Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant seeks review of his sexual offender designation and argues that he qualifies for exemption from the registration requirements under section 943.04354, Florida Statutes (2008), known as the “Romeo and Juliet Law.” Because Appellant was convicted of sex crimes in two separate cases, however, he is ineligible for exemption. We affirm the trial court’s order.

Appellant was charged with lewd and lascivious battery of a victim over 12 but under 16 years of age, in violation of section 800.04(4), Florida Statutes. Appellant was also charged with the same offense in a separate case and with a different victim. Appellant entered pleas of guilty to the lesser included offense of lewd or lascivious conduct in both cases. He entered his pleas with the understanding that if the trial judge denied his motion for exemption from the requirement that he register as a sexual offender under section 943.04354, he would be allowed to withdraw his guilty pleas. At sentencing, Appellant argued that he qualified for the exemption; the State argued that he had two separate and distinct convictions of lewd and lascivious conduct, which disqualified him. The trial court denied Appellant’s motion for exemption, and he was sentenced to three years of incarceration, followed by five years of probation, and designated a sexual offender.

On appeal, Appellant argues that he qualifies for exemption from the registration requirement under section 943.04354 because, although he was charged and convicted in two separate cases, requiring him to register as a sexual offender will lead to an absurd result where the Legislature intended to “keep ordinary individuals involved in young love from forever being branded ‘sexual offenders.’ ” The State argues that, because Appellant has convictions in two separate cases, section 943.04354 prohibits exemption from registration based on the plain meaning of the statute. Both parties agree that Appellant qualifies for exemption in all other respects.

Section 943.04354, Florida Statutes, provides for removal of the requirement for registration as a sexual offender or sexual predator under certain circumstances where registration would otherwise, be mandated. Section 943.04354 provides:

(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:
(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011, s. 800.04, or s. 847.0135(5) or the person committed a violation of s. 794.011, s. 800.04, or s. 847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, or s. 847.0135(5);
(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and
(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.

§ 943.04354, Fla. Stat. (2008).

‘“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.’ ” Kasischke v. State, 991 So.2d 803, 807 (Fla.2008) (citation omitted). One of the first rules of statutory construction is that the plain meaning of the statute is controlling. Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 329 (Fla. 1st DCA 2002). If the language is clear and unambiguous, there is no need to engage in statutory construction, and the statute should be given its plain and obvious meaning. Id.

Section 943.04354 includes a requirement that “the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, or s. 847.0135(5)” and “[i]s required to register as a sexual offender or sexual predator solely on the basis of this violation.” A plain reading of the statute reveals that offenders with multiple sex crime convictions are ineligible for exemption from the registration requirement. Appellant argues that this reading of the statute is contrary to the Legislative intent, and the State acknowledges that this result may be an unintended consequence of Appellant’s separate cases with joint dispositions. Regardless, [t]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968).

Where the plain meaning of the statute excludes Appellant from qualifying for an exemption from the registration requirement, we are without authority to construe the law any differently. Appellant’s sexual offender designation is affirmed.

AFFIRMED.

LEWIS and WETHERELL, JJ., concur.


author: WETHERELL, J.

text:
    Ronald L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6125.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of the trial court’s denial of his rule 3.850 motion, which raised 20 claims of ineffective assistance of counsel. The trial court summarily denied nine of the claims, and denied the remaining 11 claims after an evidentia-ry hearing. On appeal, Appellant only challenges the trial court’s rulings on four of the summarily denied claims (1, 2, 3, and 18) and five of the claims denied after an evidentiary hearing (6, 9, 10, 14, and 20). We affirm the trial court’s denial of claims 6, 9, 10, 14, and 20, without discussion, and for the reasons that follow, we also affirm the trial court’s denial of the other claims.

The state’s answer brief did not respond to the argument in Appellant’s initial brief concerning the summarily denied claims. In response to our order to show cause pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state conceded error as to the trial court’s failure to attach portions of the record refuting claims 1, 2, and 3, but the state argued that the summary denial of claim 18 should be affirmed because the Spera issue raised by Appellant with respect to that claim was not properly preserved.

We decline to accept the state’s concession of error with respect to claims 1, 2, and 3, because we conclude that claim 2 is legally insufficient on its face and claims 1 and 3 are refuted by the record attached to the final order. With respect to claim 18, we agree with the state that Spera does not require reversal under the circumstances of this case.

In claim 18, Appellant alleges that his trial counsel was ineffective for failing to call a particular witness. The trial court found the claim to be facially insufficient because it “does not provide, specifically, what the witness would have testified, and how this testimony would have changed the outcome of the trial.” Appellant does not argue on appeal that the claim was facially sufficient (and we agree with the trial court that it was not, see Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004)); rather, Appellant argues that under Spera, he should have been given an opportunity to amend the claim.

In Spera, the supreme court explained that “the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend [a facially deficient post-conviction] motion” and the court held that “the proper procedure is to strike the motion with leave to amend within a reasonable period.” 971 So.2d at 761. Here, the trial court did not affirmatively provide Appellant leave to amend the claim, but under the circumstances of this case, we conclude that the trial court’s failure to do so was not an abuse of discretion.

Appellant filed his rule 3.850 motion pro se in July 2005. The trial court’s order summarily denying some of the claims in the motion, including claim 18, was issued in September 2005. The state reported to the trial court in October 2005 that an evidentiary hearing would be required on the remaining claims, and Appellant thereafter retained counsel to represent him at the hearing. The hearing was originally scheduled for November 29, 2005, but it was continued numerous times at the request of the parties.

In March 2007, Appellant, through counsel, filed a motion to amend and supplement the original rule 3.850 motion. The motion did not mention Spera (as the decision had not yet been issued) or claim 18 specifically, but it did seek to “enlarge[] issues already pled” and to “organize the claims and delineate the claims more clearly.” The trial court asked Appellant’s counsel about the motion to amend at the outset of the evidentiary hearing on April 12, 2007. Appellant’s counsel did not seek a ruling on the motion and essentially acknowledged that the motion had been abandoned by stating “[w]e never submitted any memorandum or supplement so that the motion was never set for hearing, was never acted upon after the filing of it.” The evidentiary hearing was not completed until February 4, 2008, and Appellant’s counsel did not renew the motion to amend or otherwise seek leave to amend claim 18 (or any other aspect of the original rule 3.850 motion) while this matter was pending before the trial court.

In Watson v. State, 975 So.2d 572 (Fla. 1st DCA 2008), we held that a defendant who fails to address the applicability of S-pera in his appellate brief waives the issue. Likewise, in this case, we conclude that a defendant who files, but then abandons, a motion to amend his post-conviction motion to more clearly delineate the claims raised therein has waived any claim he may have under Spera. We need not consider in this case, and therefore leave for another day the issue of whether the defendant is required to ask the trial court for leave to amend his post-conviction motion in order to preserve the Spera issue for review. Cf. Rodriquez v. State, 998 So.2d 152, 154 (Fla. 1st DCA 2008) (Wolf, J., concurring in part and dissenting in part); Watson, 975 So.2d at 574-75 (Wolf, J., concurring).

Our holding in this case is consistent with our decision in Nelson v. State, 977 So.2d 710 (Fla. 1st DCA 2008), which included a detailed discussion of Spera. In that case, we stated that Spera does not require the trial court to provide more than one opportunity to amend an insufficient claim, id. at 711, and we reversed the trial court’s summary denial of the appellant’s ineffective assistance of counsel claim because “it is unclear whether the trial court allowed Appellant leave to amend [the] insufficient claim.” Id. at 712. Here, the record reflects that Appellant had the opportunity to amend his post-conviction motion, which he abandoned. Under these circumstances, Appellant is not entitled to another opportunity to amend claim 18 under Spera.

AFFIRMED.

HAWKES, C.J., and WOLF, J., concur.

      . Although Toler involved only summarily denied claims, we have previously issued “Toler orders” in cases, such as this, involving both summarily denied claims and claims denied after an evidentiary hearing. See, e.g., Bentley v. State, 867 So.2d 515 (Fla. 1st DCA 2004). The policy rationale for issuing Toler orders is stronger in cases involving only summarily denied claims than it is in cases such as this because the state is not required to file a brief in cases involving only summarily denied claims whereas briefing is required in cases that also involve claims denied after an evi-dentiary hearing. Compare Fla. R.App. P. 9.141(b)(2)(C) ("No briefs or oral argument shall be required with Fla. R.App. P. 9.141(b)(3)(C) (establishing deadline for the initial brief and providing that "[a]dditional briefs shall be served as prescribed by rule 9.210”). The effect of issuing a Toler order in cases such as this is to give the state a second opportunity to respond to the summarily denied claims after briefing has ended. Not only is this unfair, but it causes unnecessary delay in the processing of these types of appeals. Therefore, in future cases under rule 9.141(b)(3) which also involve summarily denied claims, we strongly encourage the state to address the summarily denied claims in its answer brief in the event that we choose not to issue a Toler order prior to rendering our decision.

      . Spera v. State, 971 So.2d 754 (Fla.2007).


author: WEBSTER, J.

text:
    FLORIDA DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, o/b/o Tammy J. BAKER, Appellant, v. Harvey BAKER, Appellee.
    No. 1D09-1929.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   WEBSTER, J.

The Florida Department of Revenue seeks review of a child support order which it asserts improperly restricted the Department’s ability to intercept or retain appellee’s future federal income tax refund to satisfy past-due child support under the tax refund intercept program (TRIP). We agree and reverse.

In January 2009, appellee, who owed back child support, sent a letter to the trial court requesting to “get [his] tax return back” so that he could pay his bills and to claim his youngest child as a dependent on his taxes. The judicial hearing officer treated appellee’s letter as a “pro se Motion for Temporary Relief of Child Support and request to claim the minor child on income tax” and scheduled a hearing. At the hearing, appellee did not dispute that his child support arrearage was $26,547.03, but requested the ability to claim the dependency exemption and to keep the Department from intercepting or retaining his Internal Revenue Service (IRS) tax refund to pay his back child support. The Department’s counsel objected to the court hearing the matter of the Department’s ability to intercept or retain any IRS tax refund because it had not been properly pled by appellee or properly noticed for hearing, thus depriving the court of jurisdiction. The Department’s objection was overruled, and the judicial hearing officer entered a report and recommendation that “[i]f [appellee] is able to file his taxes for 2008 and successfully claim the dependency exemption for the child ..., [the Department], should they intercept any of [appellee]’s 2008 federal income tax refund, will be limited to retain up to $1,000.00 of any funds intercepted to apply to his arrearage.” The trial court subsequently approved and adopted the hearing officer’s report and recommendation as an order of the court. This appeal follows.

The tax refund intercept program (TRIP) was established pursuant to Title IV-D of the Social Security Act and the Internal Revenue Code. Rogers v. Bucks County Domestic Relations Section, 959 F.2d 1268, 1270 (3d Cir.1992).

TRIP is a federal program designed to aid state and local governments in collecting delinquencies from parents who fail to meet state court orders enforcing the parents’ state obligations to support their children. State and local governmental units administer the program in cooperation with the United States Internal Revenue Service (IRS). Under TRIP, federal income tax refunds due persons who owe past-due child support can be intercepted by the IRS and ultimately sent instead to the state in which the children live. The state can then apply the refund money against welfare benefits previously paid to the delinquent’s children or distribute it to the person who has lawful custody of the children.

Anderson v. White, 888 F.2d 985, 987 (3d Cir.1989). In Florida, the Department of Revenue is the state agency responsible for administration of the program. §§ 409.2554(1) & 409.2557(1), Fla. Stat. (2008). The Department must certify any delinquent parent who owes at least $500 in past-due child support. Fla. Admin. Code R. 12E-1.014(5)(b). At the Department’s request, the Federal Office of Child Support Enforcement must send a notice informing the delinquent parent that he or she (1) must pay the past-due support amount in full to the Department within 30 days of the date of the notice in order to avoid the interception of the parent’s IRS income tax refund and (2) has the right to contest the determination of the amount of the past-due support by contacting the Department at the address or telephone number provided in the notice within 30 days from the date of the notice. Fla. Admin. Code R. 12E~1.014(3). If the parent timely requests a review, the Department will attempt to resolve the matter informally and, if it is unable to do so, the parent may request an administrative review conducted by the Department of Children and Family Services, Office of Administrative Hearings. Fla. Admin. Code R. 12E-1.014(4)(a)-(b). If the parent fails to make a timely review request, the parent is deemed to have waived the right to contest the certification, and the Federal Office of Child Support Enforcement must notify the United States Department of the Treasury of the past-due support owed by the parent. Fla. Admin. Code R. 12E-1.014(4)(d). The Secretary of the Treasury is required to withhold from a tax refund “an amount equal to the past-due support.” 42 U.S.C. § 664(a)(l)-(2). The Department shall retain the intercepted tax refund “up to the amount of past-due support assigned to the department as a condition of eligibility for temporary cash assistance, but not to exceed the total amount of temporary cash assistance provided to the family,” and “the excess will be mailed to the obligee.” Fla. Admin. Code R. 12E-1.014(5)(d)l. Accord 42 U.S.C. § 657(a)(l)-(2).

Initially, the Department claims that the trial court erred in restricting its ability to intercept or retain appellee’s future IRS tax refund under TRIP because the interception of any future IRS tax refund was not properly pled or noticed for hearing. We agree that the lack of a proper pleading or notice to the Department precluded the trial court from restricting the Department’s ability to intercept or retain appellee’s future IRS tax refund under TRIP. See State Dep’t of Health & Rehab. Servs. ex rel. Davis v. Canady, 473 So.2d 273, 274 (Fla. 2d DCA 1985) (holding that the trial court erred, in the absence of a proper pleading, in can-celling child support arrearages and in ordering the Department to amend its income tax refund interception certifícate). See also Geiger v. Geiger, 632 So.2d 693, 696 (Fla. 1st DCA 1994) (holding that the propriety of an order modifying child support without proper pleading, notice, and opportunity to be heard may be raised for the first time on appeal).

The Department further claims that the trial court erred in restricting its ability to intercept or retain appellee’s future IRS tax refund because appellee failed to exhaust his administrative remedies under TRIP. We agree that appellee was required to pursue his administrative remedies under TRIP before challenging any interception of his IRS tax refund in court. See Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 689 So.2d 1127, 1129 (Fla. 1st DCA 1997) (holding that if adequate administrative remedies are available, it is improper to seek relief in court before those remedies are exhausted); Gulf Coast Home Health Servs. of Fla., Inc. v. State, Dep’t of Health & Rehab. Servs., 513 So.2d 704, 706 (Fla. 1st DCA 1987) (same).

Finally, the Department claims that the trial court had no authority under TRIP to restrict its ability to intercept or retain appellee’s future IRS tax refund to satisfy past-due child support. We agree. In Department of Revenue ex rel. Jackson v. Nesbitt, 975 So.2d 549 (Fla. 4th DCA 2008), the Fourth District held that the trial court lacked authority to order the Department to lift federally mandated restrictions on the father’s passport due to the father’s child support arrearages in excess of $5,000 because the trial court could not interfere with the statutory authority delegated to the Department to certify to the Secretary of Health and Human Services that the father was eligible for passport restrictions. This court followed Nesbitt in State, Department of Revenue v. Walton, 12 So.3d 921 (Fla. 1st DCA 2009). These cases are applicable here because the passport restriction and tax refund intercept programs are all part of a comprehensive child support enforcement scheme. See generally State ex rel. Pittman v. Stanjeski, 562 So.2d 678, 677-78 (Fla.1990). The trial court was without authority to place restrictions on the interception or retention of appellee’s IRS tax refund because this interfered with the authority delegated to the Department under TRIP. Accordingly, we reverse that part of the trial court’s order which restricted the Department’s ability to intercept or retain appellee’s future IRS tax refund.

REVERSED.

PADOVANO and ROWE, JJ., concur.


author: ROWE, J.

text:
    Rachel Michelle EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1548.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle D. Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   ROWE, J.

The appellant raises two issues: 1) Whether the trial court erred in denying her motion to suppress the firearm seized from her vehicle; and 2) whether the trial court erred in denying her motion for judgment of acquittal on the charge of carrying a concealed firearm. We affirm as to both issues. The first issue is affirmed without discussion; our reasoning for affirming the trial court’s denial of the motion for judgment of acquittal under the second issue is set forth in this opinion.

Under section 790.01(2), Florida Statutes, “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree....” In Ensor v. State, 403 So.2d 349 (Fla.1981), the Florida Supreme Court construed the term “on or about the person” to mean “physically on the person or readily accessible to him.” Id. at 354. However, Florida District Courts of Appeal have disagreed on whether a firearm is “on or about the person or readily accessible” in cases involving traffic stops where firearms are found in the vehicle after the driver has exited the vehicle.

In the instant case, Deputy Goodwin testified at trial that he observed a white pick-up truck which matched a description provided by dispatch based on a 911 call, and he observed the truck swerving “rather badly.” The 911 caller provided the name of the appellant as the driver of the white pick-up, and the caller stated that the appellant possessed a firearm, had been drinking, and had threatened to kill her boyfriend. Deputy Goodwin initiated a traffic stop and asked the appellant to get out of the vehicle; at that time the deputy asked whether she had a firearm, and the appellant told him she had a firearm in the car. The deputy testified that the appellant had bloodshot eyes, slurred speech, smelled of alcohol, and failed the field sobriety tests. He also testified that prior to placing the appellant under arrest for driving under the influence, she became combative. Deputy Goodwin handcuffed the appellant, placed her in his car, and found the firearm in the front passenger seat under some papers.

In traffic stop cases resulting in arrests under section 790.01(2) for carrying a concealed firearm, the First and Second Districts have held that the evidence was not sufficient to support a conviction for possession of a concealed firearm where the concealed firearm was found in the vehicle after the appellant had exited, finding that the firearm was not “on or about the person or readily accessible” at the time of arrest. White v. State, 902 So.2d 887 (Fla. 1st DCA 2005); Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996). However, in J.E.S. v. State, 931 So.2d 276 (Fla. 5th DCA 2006), the Fifth District construed section 790.01(2) under very similar' facts as those in the instant case and held that the evidence was sufficient to support a conviction for carrying a concealed firearm.

In White, this court found that the evidence was not sufficient to support a conviction for possession of a concealed firearm where “although appellant had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it.” Id. at 888. Likewise in Lamb, where the appellant was taken into custody outside his parked automobile and the firearm was subsequently found beneath the driver’s seat, the court held that the evidence was not sufficient to support a conviction for carrying a concealed firearm where the appellant’s firearm was not readily accessible to him at the time of his arrest: “[N]o view of the undisputed evidence supports the conclusion that he carried a concealed firearm ‘on or about his person’ in this instance.” Id. at 668.

In J.E.S., the Fifth District held just the opposite of this court’s decision in White, holding instead that the evidence was sufficient to support a conviction for carrying a concealed firearm where the appellant was ordered out of the vehicle and a subsequent search of the vehicle revealed a firearm hidden under the seat. In J.E.S., the court found that the factual scenario in White was unclear, but since the White opinion stated that the facts were “practically identical” to those in Lamb, the court looked to the facts set out in Lamb. J.E.S., 931 So.2d at 279-280. The Fifth District distinguished the cases by the fact that the appellant in J.E.S. was sitting in the vehicle with the concealed firearm at the time the police officer approached the vehicle, but the appellant in Lamb had been outside the vehicle for some period of time before the firearm was found. Id.

The instant case is factually very similar to J.E.S., and it can be distinguished from this court’s prior decision in White in the same way that the court in J.E.S. distinguished White and Lamb. In J.E.S., as in the instant case, the appellant was inside the vehicle with the concealed firearm at the time the law enforcement officer approached; the appellant was ordered out of the vehicle; and the firearm was found concealed in the vehicle immediately after.

Here, as in J.E.S., the concealed firearm had been “readily accessible” to the appellant immediately prior to the appellant being ordered out of the vehicle; the appellant was in the driver’s seat of the vehicle with the concealed firearm readily accessible to her in the passenger seat. Moreover, the record in the instant case demonstrates that Deputy Goodwin had reason to believe the driver was armed prior to stopping the vehicle and asking the appellant to get out. As argued by the appellee, it is contrary to reason to require a law enforcement officer to approach a vehicle containing an armed, angry, and intoxicated suspect in order to fulfill the statutory requirements of section 790.01(2), Florida Statutes.

AFFIRMED.

BARFIELD and CLARK, JJ., concur.


author: PADOVANO, J. WOLF, J., THOMAS, J.,

text:
    Roger J. GONZALEZ, Appellant, v. Dawn Elizabeth CLAYWELL, Appellee.
    No. 1D09-1421.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Alan R. Horky of Fuller, Johnson, Ke-hoe, Horky & Terrig, LLC, Pensacola, for Appellant.
    Warren R. Todd and Erick M. Drlicka of Emmanuel, Sheppard & Condon, Pensacola, for Appellee.
   PADOVANO, J.

Roger Gonzalez, the defendant in an automobile negligence case, appeals a final judgment entered on a jury verdict in favor of the plaintiff, Dawn Claywell. The defendant contends that the trial court should have granted his motion for summary judgment on the defense of accord and satisfaction, because the parties had entered into a binding settlement agreement. We conclude that the defendant’s motion was properly denied and we therefore affirm the judgment. The pertinent documents in the record reveal that the plaintiff did not agree to the terms of the release proposed by the defendant’s insurer. Hence, we conclude that the parties were not bound by an agreement and that the trial judge correctly rejected the defense of accord and satisfaction.

The defendant’s claim that a settlement agreement existed is based on a series of letters between the plaintiffs lawyer and the defendant’s insurer, GEICO. On September 29, 2005, the plaintiffs lawyer sent a letter to GEICO offering to settle the case for $26,336.16, an amount representing the policy limit for bodily injury, $25,000.00, and additional compensation for property damage. The lawyer informed GEICO that the plaintiff would be willing to sign a release form that “releases only [the defendant] Gonzalez and the co-owners of the vehicle he was driving and does not include any indemnification language.” The letter stated that the offer would be open until October 31, 2005, and that it could be accepted only by complete performance.

GEICO responded on October 27, 2005, by sending the plaintiff’s lawyer a check in the amount of $26,336.16. However, the release form included with the check required the plaintiff to release GEICO, as well as the defendant Gonzalez. The letter the adjuster sent with the check and release form states, “Prior to negotiating the check, please have your client sign the enclosed release and return this release to GEICO as soon as possible.” The letter goes on to say, “If you feel that there is any aspect of the enclosed document, which does not reflect our settlement of your claim(s), please contact me immediately so that we can see that the document is revised to reflect the exact terms of our agreement.”

The plaintiffs lawyer wrote back on November 1, 2005, informing the insurance adjuster that the plaintiff would not sign the release, because it “deviates from the terms of [her] offer.” He returned the check that GEICO had tendered along with the proposed release and informed the adjuster that he intended to file suit against the defendant.

After the suit had been filed, the adjuster wrote to the plaintiffs lawyer and asked him to review the case again. In this letter, dated November 16, 2005, the adjuster explained that it was an error on his part to include GEICO on the release form. He said that he meant to delete GEICO from the release form as the plaintiffs lawyer had requested. He included with the letter a new check for $26,336.16 and a new release form releasing only the defendant Gonzalez. The plaintiffs lawyer wrote the adjuster back on November 22, 2005 and informed him that the plaintiff rejected the offer.

Based on these documents, the trial court denied the motion for summary judgment. The court reasoned that the condition that GEICO be released from liability was not contemplated by plaintiffs offer. Thus the trial court concluded that GEICO’s letter of October 27, 2005, was not an acceptance of the plaintiffs offer, but rather that it was in the nature of a counteroffer.

The case proceeded to trial and the jury returned a verdict finding that the defendant had operated his vehicle negligently and that his negligence was the cause of the loss sustained by plaintiff. The verdict was reduced to a judgment against the defendant in the amount of $394,029.71, and he filed a timely appeal to this court to seek review of the judgment.

Here, as in the trial court, the defendant argues that the parties had entered into an enforceable settlement agreement. He points out that it would have been customary to release the insurance carrier in a case like this and that the plaintiff had no good reason to insist that GEICO be excluded from the release. These observations may be accurate, but neither of them would support a conclusion that the parties made an enforceable contract. It is not the prerogative of this court to question the reasons a party has given for refusing to sign a contract. Nor is it proper for the court to rewrite a contract by including terms that one of the parties expressly rejected.

The plaintiffs offer was specific. She agreed to release “only [the driver] and the co-owner(s) of the vehicle he was driving” and she made it clear that this was a “unilateral offer” that could be accepted only by “complete performance.” GEICO tendered a check for the agreed amount but sent along a proposed release form releasing itself, as well as the driver and owner of the vehicle. The plaintiff returned the check and the unsigned release form to GEICO, explaining that the proposed release deviated from the terms of her offer.

The only logical conclusion to be drawn from this sequence of events is that the parties did not enter into a settlement agreement. As the trial judge stated, GEICO’s proposal to add itself to the release was a counteroffer, not an acceptance of the original offer. Because the plaintiff immediately rejected the counteroffer by sending the check back and declining to sign the proposed release, there was no agreement. See Mercury Ins. Co. of Fla. v. Fonseca, 3 So.3d 415, 417 n. 2 (Fla. 3d DCA 2009) (an insured’s immediate rejection of the insurer’s release provides evidence that a contract was not formed). The question here is not whether the plaintiff should have accepted the check. All we need to know to conclude that there was no contract is that she did not.

It is true that a document releasing an insurer is ordinarily included as a part of a settlement agreement, but the precedents the defendant cites for this general proposition are distinguishable from the present case. The cases he refers to all involve situations in which the courts supplied essential terms that were implied but not mentioned in the original offer. See, e.g., Mercury Ins. Co., 3 So.3d at 417; Erhardt v. Duff, 729 So.2d 529, 529 (Fla. 4th DCA 1999); Nichols v. Martell, 612 So.2d 657, 658 (Fla. 3d DCA 1993). In contrast, the contract term at issue here, whether GEI-CO would be released from liability, cannot be added to the contract by implication because it was expressly rejected by the language of the offer itself.

The trial court’s order denying the defendant’s motion for summary judgment is also supported by our decision in Nichols v. Hartford Ins. Co. of the Midwest, 834 So.2d 217 (Fla. 1st DCA 2002). There we concluded that disputed indemnification language in a release was an essential term of the settlement agreement. We explained that if “the language of a release is disputed and the parties fail to reach an agreement as to the character, nature, or type of release to be used, an essential element of the agreement is not established.” Id. at 220 (quoting Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001)). Here, as in Nichols, the parties failed to make a binding settlement agreement because they did not agree on the language of the release.

For these reasons, we conclude that the parties did not reach a settlement agreement and that the trial court correctly denied the defendant’s motion for summary judgment.

Affirmed.

WOLF, J., concurs with opinion; THOMAS, J., Dissents with opinion.

WOLF, J.,

Concurring.

While I am sympathetic with the views expressed in Judge Thomas’s opinion, I agree with Judge Padovano that this court cannot impose a contract by adding terms that were expressly rejected by the language of the offer itself.

I would add, however, if the offer in this case was made in order to set up a bad faith claim, absent extraordinary circumstances, it is not readily apparent how a request by an insurance carrier to be added to a release can constitute bad faith.

THOMAS, J.,

Dissenting.

I respectfully dissent. The majority opinion erroneously affirms the trial court’s ruling that a binding settlement was rendered invalid on the sole basis that the insurer inserted a meaningless term into the agreement that could have had no legal consequence under the applicable Florida law, and no practical effect on the parties. The majority opinion will now allow Appellee to seek a bad faith judgment and damages in excess of the policy limits, despite the valid settlement agreement of the parties. Florida law strongly prefers settlements, and by holding otherwise here, the majority opinion incorrectly interprets the essential elements of the agreement. Because the inclusion of GEI-CO in the release could not in any legal manner affect the settlement, I would reverse.

Under section 627.4136, Florida Statutes, before a party can sue an insurer, the party must obtain a judgment against the insured party. Thus, whether GEICO included itself in the release had no meaningful consequence whatsoever; therefore, by definition, this term of the offer could not constitute an essential element of the settlement agreement.

Because Florida law requires that a party who enters a settlement agreement with another party cannot sue that party’s insurer, an insurance company tendering payment on behalf of its insured can include itself as a releasee as an inherent and usual term of the settlement agreement. Here, by agreeing to release Appellant, the insured party, Appellee had no further claim against GEICO, and by including itself in the release, GEICO did not alter an essential element of the settlement agreement. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985) (holding that unilateral inclusion of additional term was “mere contingency” that did not alter settlement); Mercury Ins. Co., 3 So.3d 415, 417 (Fla. 3d DCA), rev. denied, 14 So.3d 1003 (Fla.2009) (holding that, when tendering policy limit with request for release, insurer did not make a counter-offer but, instead, accepted the offer to settle).

Courts must employ an objective test, not a subjective evaluation, when deciding whether parties have entered into a contracted settlement agreement. The essential terms here are quite simple: GEICO would pay the policy limits, and Appellee would release the insured. Whether Ap-pellee would hypothetically later attempt to file a meritless claim against GEICO is not an essential term of the agreement, but a “mere contingency” which did not defeat the settlement agreement. Robbie, 469 So.2d at 1385.

In accepting an offer, an insurance company can generally require the offeror to sign “usual” settlement documents. Grant v. Lyons, 17 So.3d 708, 710 (Fla. 4th DCA 2009) (citing Nichols v. Martell, 612 So.2d 657, 658 (Fla. 3d DCA 1993)). One such “usual” document implicit in any settlement is a release of the insurance company from liability or claims arising from the incident for which the company is tendering the full policy limits. Mercury Ins. Co., 3 So.3d at 417.

In Lyons, by contrast here, the insurer required the offeror to hold other potential defendants harmless and to demonstrate that all hospital liens had been satisfied; thus, the Fourth District correctly concluded that the insurer had proposed a counter-offer. In reaching its decision, however, the court cited Mercury Insurance Company to hold that “an insurance company that accepts an offer can require the plaintiff to sign the ‘usual settlement documents.’ ... As an example, ‘[a] document releasing an insurance company from liability for claims arising from the same incident for which the full policy limits were tendered, particularly where the injured party is permitted to modify such a release, is the kind of usual settlement document implicit in any settlement agreement.’ ” Id. at 711 (internal citations omitted).

GEICO’s inclusion of itself in the release did not transform the acceptance into a counter-offer. Appellee asserts that one reason it attempted to exclude GEICO from the release is that GEICO was potentially liable for a third vehicle’s claims, yet Appellee did not raise this below or offer any evidentiary support for this claim.

It would be irrational for an insurance company “to tender its policy limits if there remain[s] a possibility that it could still be liable for further claims ... arising from the same incident.” Erhardt v. Duff, 729 So.2d 529, 530 (Fla. 4th DCA 1999). In Erhardt, the trial court rejected the argument that an insurance company cannot require execution of a release, stating “ ‘that’s not how the real world works.’ ” Id. at 530.

The same logic applies with equal force here. I would find that GEICO’s inclusion of its company’s name on the release was nothing more than a mere formality. Id. (citing Boyko v. Ilardi, 613 So.2d 103, 104 (Fla. 3d DCA 1993)). Thus, the trial court erred in finding that Appellant and Appel-lee had not entered into an enforceable pre-suit settlement agreement. I would reverse with directions to grant the summary judgment motion filed by Appellants prior to trial on the basis of accord and satisfaction.


text:
    William AIREY, Appellant, v. WAL-MART/SEDGWICK, Appellees.
    No. 1D09-2578.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Wilbur W. Anderson of Wilbur W. Anderson, P.A., Jacksonville, and Terry L. Byrd, Jacksonville, for Appellant.
    Laurence Leavy of Laurence Leavy & Associates, Fort Lauderdale, and Andrea White, Winter Park, for Appellees.
   WEBSTER, J.

In this workers’ compensation case, claimant seeks review of a final order dismissing his petition for benefits filed on February 15, 2007, as time-barred pursuant to section 440.19, Florida Statutes (2003). Because we conclude that the judge of compensation claims erred as a matter of law in dismissing the petition as time-barred, we reverse.

The pertinent facts are undisputed. Hence, the issue is one purely of law, subject to de novo review. See McBride v. Pratt & Whitney, 909 So.2d 386, 387 (Fla. 1st DCA 2005).

It is undisputed that the petition for benefits was timely filed. While not entirely clear from the final order, it appears that the decision was based on the conclusion that the petition had been pending for too long—i.e., that it should have been resolved at some earlier time. This was error.

A properly drafted petition for benefits tolls the statute of limitations as long as it remains pending. See § 440.19(3), Fla. Stat. (2003). Accord Rice v. Reedy Creek Improvement Dist., 924 So.2d 882, 885 (Fla. 1st DCA 2006); McWilliams v. Americana Dutch Hotel, 595 So.2d 253, 254 (Fla. 1st DCA 1992); John Ringling Towers v. Klein, 573 So.2d 154, 155 (Fla. 1st DCA 1991). It is undisputed that the petition in this case met the statutory requirements. Moreover, once filed, a petition for benefits remains “pending until withdrawn by claimant, or acted upon, or dismissed upon motion.... ‘Passage of time does not itself terminate the pen-dency of a proceeding.’ ” Turner v. Keller Kitchen Cabinets, S., Inc., 247 So.2d 35, 40 (Fla.1971) (quoting from Munsinger v. Edge, 1 F.C.R. 103, cert. denied, 85 So.2d 757 (Fla.1955)). Accord Strack v. Executive Motors, Inc., 500 So.2d 703, 704 (Fla. 1st DCA 1987) (citing Turner). There is, likewise, no dispute about the fact that the petition remained pending, and that claimant had not received the benefits sought. Accordingly, as a matter of law, the statute of limitations remained tolled.

To the extent the judge of compensation claims dismissed the petition based on his belief that it had been pending too long, the proper procedure would be to invoke section 440.25(4)(i), Florida Statutes (2008). That provision permits a judge of compensation claims to “dismiss a petition for lack of prosecution if a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown.” However, such action may only be taken in response to a motion by a party or the judge. Dismissal for lack of prosecution would not have been appropriate here, because no motion was filed requesting such action, and motions had been filed, hearings held and depositions taken in the 12 months prior to the order of dismissal. See Sherertz v. Key West Oceanside Marina, 477 So.2d 70, 71 (Fla. 1st DCA 1985) (holding that a claim may not be dismissed for lack of prosecution if record activity has occurred within the time specified by the statute).

Because the petition for benefits was timely filed and remained pending, it was error to conclude that it was barred by section 440.19. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

PADOVANO and ROWE, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Jay Alan ODOM, Appellee. State of Florida, Appellant, v. Raymond E. Sansom, Appellee.
    Nos. 1D09-5158, 1D09-5160.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, for Appellant.
    James P. Judkins and Larry D. Simpson of Judkins, Simpson & High, Tallahassee, for Appellee Odom.
    Stephen S. Dobson, III, and Richard H. Smith of Dobson, Davis & Smith, Tallahassee, for Appellee Sansom.
   PER CURIAM.

Citing in its notice of appeal to section 924.07, Florida Statutes (2009), as its jurisdictional authority for doing so, the state appeals the lower tribunal’s “Order on Motions to Dismiss” in two related criminal proceedings. Appellees move to dismiss the appeals for lack of jurisdiction, asserting that the order is not final and not ■within the class of nonfinal orders appeal-able by the state under the statute and corresponding rule of appellate procedure. We sua sponte consolidate the cases for disposition by this opinion, and dismiss the appeals for lack of jurisdiction.

Appellees were the subject of a grand jury investigation into certain alleged instances of misconduct. In brief, the grand jury found that at the request of and for the benefit of his friend Odom, Sansom arranged with codefendant Richburg, President of Okaloosa-Walton Community College (now known as Northwest Florida State College), to secure a legislative appropriation to fund the construction of a hanger facility at the Destín airport. The plan was to have the college construct the building, include some classrooms in the space so it could be called an educational facility for purposes of securing funding, then lease the bulk of the space to Odom for his private use in connection with his aviation business. Because of his positions as Chair of the House Appropriations Committee and Speaker-Designate, San-som was able to bypass the normal screening procedures and secure the appropriation.

Based on these findings, the grand jury returned indictments against Odom and Sansom for official misconduct in violation of section 839.25(l)(b). In material part, the indictments alleged that appel-lees participated in the falsification of “an official record or official document, the 2007-2008 General Appropriations Act and/or the Joint Use Project Note, with corrupt intent to obtain a benefit for any person, or to cause harm to another.... ” The grand jury also indicted Sansom for perjury, alleging that he made false sworn statements when “he testified that the building that was the subject of the Grand Jury investigation was not intended for private use and/or the increased funding in 2008 to Northwest Florida State College was at the request of the college.... ” Appellees moved to dismiss the indictments and following a hearing, the trial court entered the order for which the state now seeks review. As to the official misconduct charge, the court found that with regard to the alleged falsification of the Appropriations Act, “acts of legislation cannot, as a matter of law, be falsified ... by the misrepresentations of a single member [of the legislature] as to the act’s purpose.” The circuit court thus concluded that the motions to dismiss as to the charges of official misconduct for falsifying the Appropriations Act would be granted. However, as to the alternative allegation that the Joint Use Project Note had also been falsified, the circuit court found as follows:

The record before me is simply inadequate for me to make a determination as to whether a falsification of this document may constitute a violation of the statute. The facts relative to this document are not set forth in the motions to any degree, nor is there any argument related to it. I cannot tell from the record what exactly it is and how it relates to the Appropriations Act.

Additionally, the court ruled that appel-lee Sansom’s grand jury testimony regarding the intention of the appropriation was an expression of opinion and could not form the basis of a perjury prosecution, although the alleged statement that the increased funding was requested by the college was a statement of fact, and thus could support the perjury charge.

The decretal portion of the circuit court’s order thus provided:

For the reasons set forth above, it is ORERED (sic) AND ADJUDGED that the motions as to the charges of Official Misconduct for falsifying the Appropriations Act, and the perjury charge against defendant Richburg are hereby granted. In all other respects, the motions are denied.

In support of their motions to dismiss the state’s appeals, appellees argue that although section 924.07(l)(a) and Florida Rule of Appellate Procedure 9.140(c)(1)(A) contain identical language authorizing the state to appeal from orders “dismissing an indictment or information or any count thereof,” the indictments here have not been dismissed nor has any count of those indictments been dismissed. The only reported instances where the state has been permitted to appeal without an outright dismissal of charges are distinguishable on their facts because they involved orders in which the trial court reduced the original charge to a Iesser-included offense as a result of pretrial motions to dismiss. In that situation, the appellate court viewed the trial court’s action as being the “functional equivalent of a dismissal of an information or any count thereof.” See State v. Smulowitz, 482 So.2d 1388, 1389 (Fla. 3d DCA 1986); see also State v. Hankerson, 482 So.2d 1386, 1387 (Fla. 3d DCA 1986) (finding that “[a]nalytically, an order reducing a charge set forth in the information or indictment to some Iesser-included offense is, despite its label, an order dismissing the charge in the information.”). Moreover, the same court subsequently relied on this reasoning in another ease to conclude that the state could likewise appeal an order that reduced charges post-trial, but the Supreme Court reversed in Exposito v. State, 891 So.2d 525 (Fla.2004), holding that section 924.07(1) does not grant the state the right to appeal from an order that “effectively” dismisses an information that is “in legal effect a judgment of acquittal.” Id. at 531. The court noted that equating a reduction of charges to a dismissal or judgment of acquittal conflicts with the well-established rule that courts are not at liberty to add words to statutes and must give the statutory language its plain and ordinary meaning.

Although Expósito did not expressly overrule Hankerson or Smulowitz, it casts doubt on their continued viability. Be that as it may, we conclude that Han-kerson and Smulowitz are nonetheless not controlling because the rationale employed in those cases depended on the conclusion that the trial courts had “dismissed” charges made in the respective informa-tions, albeit merely by reduction to Iesser-included offenses. In contrast, the trial court’s order here did not operate to dismiss, by reduction or otherwise, the official misconduct and perjury charges lodged against appellees in the grand jury’s indictments. The state’s right to appeal is a limited one that is strictly governed by statute. See State v. Gaines, 770 So.2d 1221 (Fla.2000). Statutes affording the state the right to appeal should be narrowly construed, and as the court recognized in Expósito, the statutory language must be given its plain and ordinary meaning. Expósito at 528. Plainly, the circuit court’s order here does not dismiss an indictment or any count thereof, and because there is otherwise no statutory authority for the state to appeal in this circumstance, we are without jurisdiction.

APPEALS DISMISSED.

BARFIELD, WOLF, and LEWIS, JJ., concur.

      . The state's appeal of the order as it relates to the dismissal of the perjury charge against Richburg remains pending and is unaffected by this opinion.


text:
    MITCHELL BROTHERS, INC., Edward Mitchell, Jr., and Roberta Mitchell, Appellants, v. WESTFIELD INSURANCE COMPANY and State of Florida, Department of Transportation, Appellees.
    No. 1D08-5559.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Thomas J. Guilday and Christina L. Scaringe, Guilday, Tucker, Schwartz & Simpson, P.A., Tallahassee, for Appellants.
    Bruce Charles King and Lindsay Erin Levin, Carlton Fields, P.A., Miami, for Ap-pellees.
   PER CURIAM.

The appellants appeal the trial court’s entry of summary judgment in favor of the appellee/surety as to liability based on an indemnity agreement and which awarded the appellee more than three million dollars in damages. We affirm, without further discussion, the summary judgment granted in favor of appellee as to its entitlement to indemnification. However, for the reasons discussed below, we reverse and remand for further proceedings to determine damages. Below, the appellee relied on the affidavit of a corporate representative and an attached schedule of payments to establish its damages, including attorneys’ fees. The appellants objected on the ground that the affidavit and attached schedule of payments (which appellants argued was hearsay) was insufficient to establish damages on summary judgment. We agree. The affidavit and attached list of payments is insufficient to award summary judgment as they constitute hearsay. Cf. Roggemann v. Boston Safe Deposit and Trust Co., 670 So.2d 1073 (Fla. 4th DCA 1996) (holding that “a trial court cannot rely on affidavits at the hearing to assess attorney’s fees, since they are hearsay”). The appellee failed to establish that the schedule of payments was an admissible business record. Cf. Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999) (holding that in order to be admissible, a business record must be shown to have been: (1) made at or near the time of the event; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record). Further, the appellee failed to introduce any other admissible evidence conclusively establishing the amount of damages and the reasonable attorneys’ fees it incurred. Thus, we reverse and remand for further proceedings to determine the amount of damages, including reasonable attorneys’ fees, as established by admissible non-hearsay evidence.

AFFIRMED in part, REVERSED and REMANDED in part.

BARFIELD, CLARK, and ROWE, JJ., concur.


text:
    Autie M. McCALLUM, Ward, Appellant, v. Teresa EHRISMAN, Guardian, Appellee.
    No. 1D08-2651.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Andrew L. Granger, Tallahassee, for Appellant.
    Carolyn T. Leboeuf of Carolyn T. Le-boeuf, P.A., Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s order denying the motion for substitution of counsel because it is clear that, given the facts of this case, the trial court did not abuse its discretion. See generally In re Guardianship of Bockmuller, 602 So.2d 608, 609 (Fla. 2d DCA 1992) (concluding that, where the ward’s right to contract had been removed by an order determining incapacity, the ward had no power to contract with an attorney to represent her). Because appellant’s attorney was not legally authorized to represent her in either the trial court or this appeal, we dismiss the remaining issues raised by the attorney. See In re Guardianship of Graham, 963 So.2d 275, 280 (Fla. 4th DCA 2007).

AFFIRMED IN PART and DISMISSED IN PART.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


text:
    Tillie COLSON, Ward, Appellant, v. Teresa EHRISMAN, Guardian, Appellee.
    No. 1D08-2660.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Andrew L. Granger, Tallahassee, for Appellant.
    Carolyn T. Leboeuf of Carolyn T. Le-boeuf, P.A., Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s order denying the motion for substitution of counsel because it is clear that, given the facts of this case, the trial court did not abuse its discretion. See generally In re Guardianship of Bockmuller, 602 So.2d 608, 609 (Fla. 2d DCA 1992) (concluding that, where the ward’s right to contract had been removed by an order determining incapacity, the ward had no power to contract with an attorney to represent her). Because appellant’s attorney was not legally authorized to represent her in either the trial court or this appeal, we dismiss the remaining issues raised by the attorney. See In re Guardianship of Graham, 963 So.2d 275, 280 (Fla. 4th DCA 2007).

AFFIRMED IN PART and DISMISSED IN PART.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: CLARK, J.

text:
    PACE PROPERTY FINANCE AUTHORITY, INC., The Pace Water System, Inc., and Ampam Commercial Southeast, Inc., f/d/b/a Nelson Mechanical Contractors, Inc. and Continental Casualty Company, Appellants, v. Roy JONES and Karen Jones, Appellees.
    No. 1D08-4359.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Beggs & Lane, Pensacola, for Appellants.

      Diane M. Longoria of Hammons & Lon-goria, P.A., Pensacola, for Appellees.
   CLARK, J.

The appellants present several issues in connection with an order awarding damages on the appellee’s action for trespass and breach of contract. The appellees cross-appeal, presenting additional issues. However, the only error shown is with regard to the court’s limited award of prejudgment interest, which should have been awarded on the full measure of the compensatory damages.

The appellees’ trespass and breach of contract action was based on damage the appellants caused to the appellees’ land, when the appellants repeatedly entered onto the appellees’ property and destroyed trees and other vegetation, while also causing further damage. The appellees had given the appellants permission to use a small portion of the land for a utility easement, but the appellants did not confíne their activities to the easement area and wrongfully trespassed onto other portions of the appellees’ land, in violation of the easement agreement. The appellees thus brought the trespass and breach of contract action, and the appellants admitted liability whereupon a trial was had to assess damages, with the jury awarding both compensatory and punitive damages. The court entered a judgment for the appel-lees, with prejudgment interest on part, but not all, of the compensatory damages.

In limiting the award of prejudgment interest the court cited Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002), and observed that the appellees did not have out-of-pocket expenditures on the trespass. The court further cited Brewster v. Alachua Tire & Fuel Services, Inc., 442 So.2d 313 (Fla. 1st DCA 1983), and observed that there was no jury finding expressly fixing a date when the appellants’ obligation to pay for the damage became due. But neither of those factors precludes the award of prejudgment interest. As the supreme court indicated in Alvarado v. Rice, 614 So.2d 498, (Fla.1993), prejudgment interest is awardable upon the loss of a vested property right. See also Underhill Fancy Veal, Inc. v. Padot, 677 So.2d 1378 (Fla. 1st DCA 1996). And there does not have to be a special verdict as to the date of loss, where the loss is established by the verdict and the pertinent date can be ascertained from the evidence. See e.g. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985); Bergen Brunswig Corp. v. Department of Health and Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982); see also Pine Ridge at Haverhill Condominium Assoc., Inc. v. Hovnanian of Palm Beach II, Inc., 629 So.2d 151 (Fla. 4th DCA).

Because the present case involves both the loss of a vested property right, and a date of loss ascertainable from the evidence as to when the property damage occurred, prejudgment interest should have been awarded on the full measure of the compensatory damages. The appealed order is therefore reversed as to the partial denial of prejudgment interest. The order is otherwise affirmed, and the case is remanded.

BARFIELD and ROWE, JJ., concur.


text:
    James L. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4572.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    James L. Murphy, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion brought pursuant to Florida Rule of Criminal Procedure 3.850. It is apparent that the appellant’s prior rule 3.850 motion only addressed the appellant’s convictions resulting from his plea agreement and the appellant’s instant rule 3.850 motion only addresses his convictions following his jury trial. Because there were separate judgments and sentences entered in the appellant’s ease, the instant motion does not appear to be successive. Accordingly, we reverse and remand to the lower court to address the appellant’s claims on the merits.

REVERSED.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


text:
    STUDENTS FOR ONLINE VOTING, Thomas F. Jardon, Sam A. Miorelli, Kyle Huey, and Mark McShera, Jr., Petitioners, v. Bernard MACHEN, as President of the University of Florida and Agent of the University of Florida Board of Trustees, Respondent.
    No. 1D09-4214.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    James H. Sullivan, III, and Joseph W. Little, Gainesville, for Petitioners.
    Amy M. Hass, Associate University Counsel, of the University of Florida Office of Vice President and General Counsel, Gainesville, for Respondent.
   PER CURIAM.

Respondent, an agency of the State of Florida subject to the Administrative Procedure Act, issued a final order but refuses to properly render it by filing it with the clerk. See § 120.52(7), Fla. Stat. (2009); Bank of Port St. Joe v. State, Dep’t of Banking and Fin., 362 So.2d 96 (Fla. 1st DCA 1978). The petitioners’ appeal from that order was previously dismissed because the order had not been rendered. Students for Online Voting v. Student Gov’t of the Student Body of the Univ. of Fla., 10 So.3d 709 (Fla. 1st DCA 2009). Having considered the petition for writ of mandamus and the response thereto, we find that petitioners are entitled to relief. See Tucker v. Ruvin, 748 So.2d 376 (Fla. 3d DCA 2000). Respondent argues in opposition to the petition that the petitioners lacked standing to obtain relief from the agency and that the individual who issued the order did not have authority to grant the relief sought. These are issues to be resolved in the appeal and do not justify respondent’s failure to perform its statutory duty to render the order. We therefore grant the petition and direct respondent to properly render the final order of February 22, 2008, by filing it with the agency clerk. The respondent shall also provide copies of that order to the petitioners, with indication of the date of filing, within 10 days of issuance of our mandate in this cause.

PETITION GRANTED.

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    C.A.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3700.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because Appellant, a juvenile, was not present for the first session of a two-part restitution hearing, and because there is nothing in the record to suggest a voluntary and intelligent waiver of his right to attend, the juvenile is entitled to a new restitution hearing. J.C. v. State, 1 So.3d 1196 (Fla. 5th DCA 2009); I.M. v. State, 955 So.2d 1163 (Fla. 1st DCA 2007).

In addition, the record contains no determination by the trial court that the restitution amount did “not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.” § 985.437(2), Fla. Stat. (2009); M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006).

We reverse the amended restitution order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

BARFIELD, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Daniel Noel PRESLEY, former husband, Appellant, v. Jennifer Michelle PRESLEY, former wife, Appellee.
    No. 1D09-2644.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Lawrence J. Siemer, Orange Park, for Appellant.
    Neal L. Betancourt of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the former husband, raises two issues on appeal. We find one has merit: whether the trial court failed to make sufficient findings regarding the husband’s ability to pay $50,000 at a rate of $1,000 per month towards the wife’s attorney’s fees.

After entry of the final judgment in this case, the husband moved for rehearing. Among the issues raised was the failure to make specific factual findings concerning the reasonableness of the wife’s attorney’s fees and the husband’s ability to pay $1,000 per month towards the wife’s fees. The trial court granted rehearing, making specific factual findings concerning the reasonableness of the fees, but failed to address the husband’s ability to pay the fees.

Because it is not readily apparent from the record that the husband has the ability to make the required payments, we reverse that portion of the order granting attorney’s fees and direct the trial court to readdress the issue.

HAWKES, C.J, WOLF and DAVIS, JJ., concur.


author: JACOBUS, J.

text:
    Donald H. FOSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3394.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Donald H. Foss, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

The Appellant appeals the summary denial of his rule 3.850 motion. We affirm, albeit not for the reason given by the lower court. The Appellant was charged initially with four counts of capital sexual battery. Pursuant to a plea agreement, the State filed an amended information reducing the charges to three counts of attempted sexual battery. The scoresheet for the amended information, including points for sexual penetration, provided that the minimum permissible prison sentence was 25.087 years. The Appellant signed a waiver of rights and a plea agreement in which he agreed to a 25-year sentence for the first two counts, followed by 10 years’ sex offender probation for the third count, in exchange for his no contest plea. However, the court’s order accepting the agreement reflects that 25 years was crossed out and 25.075 years was written in. The Appellant was sentenced in accordance with the agreement on June 20, 2003. He did not appeal, and his judgment and sentence became final on Monday, July 21, 2003. As a result, the Appellant had until July 21, 2005, to file a timely rule 3.850 motion. See Fla. R.Crim. P. 3.850(b).

The rule 3.850 motion that is the subject of this appeal was filed on August 20, 2009, and was dismissed by the trial court as untimely. Since the grounds raised in the motion claimed lack of subject matter jurisdiction by the court and newly discovered evidence, the motion was not per se untimely. See id. We therefore address the merits of Appellant’s two post conviction claims.

First, the Appellant claims the court lacked subject matter jurisdiction in that the information was filed by the State without first obtaining a sworn statement from a material witness in the case. This claim, as raised by the Appellant, is without merit because “no objection to an information on the ground that it is not signed or verified can be entertained ‘after the defendant pleads to the merits.’ ” Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009) (quoting rule 3.140(g)).

The Appellant’s second point in his rule 3.850 motion is that he has found newly discovered evidence. His assertion is based on the fact that he successfully filed a rule 3.800(a) motion, which resulted in a recalculation of his scoresheet that lowered the minimum sentence to 15.3688 years. The Appellant argues that this is newly discovered evidence and that he would not have pled to the 25-year sentence had he known the minimum sentence was substantially lower. Again, this argument is without merit. The Appellant does not allege, nor can he demonstrate, that he could not have discovered the error in the scoresheet within the two-year period in which to file a timely rule 3.850 motion. See Coppola v. State, 938 So.2d 507, 511 (Fla.2006) (explaining that a newly discovered fact for purposes of rule 3.850(b)(1) is “evidence that tends to prove or disprove guilt or innocence”). In the context of this case, that issue is therefore untimely. Accordingly, the summary denial of these claims was warranted, and we affirm on “tipsy coachman” grounds. See Sullivan v. State, 913 So.2d 762 (Fla. 5th DCA 2005).

AFFIRMED.

ORFINGER and TORPY, JJ„ concur.

      . Fla. R.Crim. P. 3.850.

      . Fla. R.Crim. P. 3.140(g).

      .Fla. R.Crim. P. 3.800(a).


text:
    Keith Dion JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5469.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered August 17, 2009, in Duval County Circuit Court case number 16-2009-CF-005093-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, DAVIS, and PADOVANO, JJ., concur.


text:
    The JUSTICE ADMINISTRATIVE COMMISSION, A State Agency, Petitioner, v. James J. CONNOR, Esquire, Respondent.
    No. 1D09-5107.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Christian D. Lake, for Petitioner.
    James J. Connor, pro se, Appellee.
   PER CURIAM.

We agree with petitioner, the Justice Administrative Commission (“JAC”), that the trial court departed from the essential requirements of the law in awarding respondent, court-appointed counsel, attorney’s fees where the JAC was not served with respondent’s motion for fees and where the trial court did not conduct a hearing on the motion. See § 27.5304, Fla. Stat.

Accordingly, we GRANT the petition for writ of certiorari, QUASH the order awarding fees, and REMAND for further proceedings.

BARFIELD, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Ramon A. PICHARDO, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D09-4701.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Craig A. Brand of The Brand Law Firm, P.A., Orlando, for Appellant.
    Ephraim Livingston, General Counsel, and Brittany Adams Long, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s unopposed motion for temporary relinquishment of jurisdiction to vacate the final order, we hereby quash the final order and remand the cause for further proceedings.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.