author: WINOKUR, J. BOYER, TYRIE, Associate Judge,

text:
    BEACH CLUB TOWERS HOMEOWNERS ASSOCIATION, INC., Appellant, v. Chris JONES, Property Appraiser for Escambia County, Florida; Janet Holley, Tax Collector for Escambia County, Florida, Appellees.
    CASE NO. 1D15-5886
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017
    Rehearing Denied December 14, 2017

      Edward P. Fleming and R. Todd Harris of McDonald, Fleming, Moorhead, Pensacola, for Appellant.
    Thomas M. Findley and Robert J. Tel-fer, III of Messer Caparello, P.A., Tallahassee, for Appellees.
    Loren E. Levy and Jon F, Morris of the Levy Law Firm, Tallahassee, for Amicus Curiae The Property Appraisers’ Association of Florida, Inc., in support of Appel-lees.
   WINOKUR, J.

Beach Club Towers Homeowners Association, Inc. (“the Association”), as authorized representative of its individual members, appeals the trial court’s order granting summary judgment in favor of the Property Appraiser and Tax Collector of Escambia County (“the County”), The Association challenges the trial court’s conclusion that the Association’s members (“the unit owners”) are required to pay ad valorem property taxes on the land underlying Beach Club Towers because they are equitable owners of the land. Because we agree with the Association that the unit owners are not equitable owners of the underlying land, and reject the County’s alternate arguments under chapter 718, we reverse.

Í.

Santa Rosa Island is a forty-mile barrier island located off the coast of northwest Florida, the western part of which lies in Escambia County. Beach Club Towers is a condominium located on Santa Rosa Island in Escambia County. For purposes of property taxation, the County for a period of time drew a distinction between the land underlying Beach Club Towers and the condominium structures themselves. The County treated the former as exempt from ad valorem property taxes and the latter as taxable. The history behind this distinction’ has been recounted elsewhere and need not be repeated here.

It is enough here to state that decades ago the United States conveyed the land making up Santa Rosa Island to Escambia County, on the condition that it forever retain legal ''title, Since then, Escambia County has leased portions of the land to various entities and individuals, who, in turn, have subleased, and further subleased, the land. Possession of the land underlying Beach Club Towers changed hands a number of times before Beach Club Development, Inc., built Beach Club Towers and, as. sublessor, subleased a “condominium parcel” to each of Beach Club Towers’ ninety-two unit owners. Each condominium parcel included a leasehold interest in the condominium unit itself, and an undivided leasehold interest in the underlying land.

In 2011, the County stopped distinguishing between land and improvements, and began treating the condominium structures of Beach Club Towers and the underlying land the same for purposes of taxation; ’ ■ that is, it began assessing ad valorem property taxes on both. The County based its policy shift on this Court’s opinion in Accardo v. Brown, 63 So.3d 798 (Fla. 1st DCA 2011), which was approved in Accardo v. Brown, 139 So.3d 848 (Fla. 2014). In Accardo, as in this case, a group of condominium owners on Santa Rosa Island contended that the land underlying their condominiums was not subject to ad valorem property taxation because Escambia County owned the land. Id. at 849. Relying on the doctrine of equitable ownership, the supreme court held that, because their leases in the land were “perpetually renewable,” the condominium owners owned equitable title to the land and were liable to pay ad valorem property taxes. Id. at 856.

In light of Accardo, the County began assessing ad valorem property taxes on the land underlying Beach Club Towers. In. response, the Association filed a complaint seeking, among other things, a declaratory judgment that the land underlying Beach Club Towers is government-owned and not subject to ad valorem taxation, and injunctive relief enjoining the County from treating it differently. The Association alleged that, unlike the lessees in Accardo, its unit owners did not have perpetually-renewable leases. The Association also alleged that the County could not subject the condominium structures to ad valorem property taxation, but concedes on appeal that the structures are taxable. The Association and the County filed cross-motions for summary judgment. The trial court granted summary judgment-in favor of the County. '

II.

The outcome of this case turns on who owns the land underlying Béach Club Towers. If Escambia County owns it, then it is exempt from ad valorem taxation under section 196.199(1), Florida Statutes. In that event, the unit owners would-merely be lessees of the land, and the County could tax- the unit- owners’ leasehold interests only as intangible personal, property. § 196.199(2)(b), Fla. Stat. If the unit owners own the land, then it is subject to ad valorem property taxes, payable by the unit owners.

A person may be deemed the owner of property for taxation purposes even without legal title, based on the doctrine of equitable ownership. See Accardo, 139 So.3d at 856 (“Our case law regarding the application of the equitable ownership doctrine makes clear that the person or entity holding equitable title' to real property will be deemed the owner of the property for ad valorem tax purposes.”),'“The lessee is deemed to be the leased property’s equitable owner if the lessee holds ‘virtually all the benefits and burdens of ownership’ of the leased property.” Robbins v. Mt. Sinai Med. Ctr., Inc., 748 So.2d 349, 351 (Fla. 3d DCA 1999) (quoting Leon Cty. Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla. 1997)).

The County interpreted Accardo broadly to expand the doctrine of equitable ownership with regard to the property on .Santa Rosa Island, taking the position that lessees equitably own property even under those leases that are not perpetually renewable. Like the Third District recently held, we conclude this interpretation of Accardo “overreached.” Garcia v. Dadeland Station Assocs. Ltd., 218- So.3d 474, 475 (Fla. 3d DCA 2017).

In 1108 Ariola, LLC v. Jones, 139 So.3d 857 (Fla. 2014), decided, the same day as Accardo, the supreme court emphasized that its holding in Accardo was based on the fact that the leases were automatically renewable,' stating, “[o]ur holding in Ac-cardo that the taxpayers in that' case are the equitable owners of both'the improvements and the underlying land, turns on the fact that the leases are perpetually renewable.” Id. at 859. The subleases involved in this case are not perpetually renewable. Rather, each unit owner’s sublease flows from a ninety-nine year master lease with an option to renew “for an additional ninety-nine (99) years, terms arid conditioris to be renegotiated at such time.” Because renewal of each sublease is not automatic, but instead must be renegotiated, Accardo is inapplicable. The unit owners’ subleases do not bear the primary hallmarks- of equitable ownership described in Accardo, namely, the right to perpetually renew the lease, to purchase the underlyirig land for nominal consideration at the end of their sublease, or to otherwise exercise perpetual dominion over the property. See Island Resorts Invs., Inc. v. Jones, 189 So.3d 917 (Fla. 1st DCA 2016).

The dissent points out that in Island Resorts, where this Court decided that a lessee was not the equitable owner of land on Santa Rosa Island, the land at issue did not contain improvements. Because the land at issue here is improved, the dissent concludes that Island Resorts is distinguishable. We disagree. The fact that the land at issue in Island Resorts was unimproved was not why the lessee was not the equitable owner. The reason the Court in Island Resorts noted that the land was undeveloped was to show that 1108 Arlóla did not apply. Again, 1108 Arlóla holds that a lessee was the equitable owner of improvements made to real property — despite having no right to perpetually renew the lease — because the lessee presented no evidence that the probable useful life of the improvements would survive the initial lease term. See 1108 Ariola, 139 So.3d at 860. Of course, the rationale employed in 1108 Arlóla is inapplicable to land because, unlike buildings, land does not generally have a probable useful life. The issue presented does not turn on whether the land is improved.

III.

The County also makes two related but different arguments under chapter 718, Florida Statutes, the Condominium Act. First, the County argues that chapter 718 compels the conclusion that the unit owners own the underlying land because each unit owner owns a “condominium parcel” and “condominium parcel” is a parcel of real estate that necessarily includes a proportionate ownership interest in the underlying land. Second, the County argues that all of each unit owner’s condominium parcel — the unit and proportionate interest in the underlying land — must be subject to ad valorem taxation as real estate because section 718.120(1) mandates “that the land interest is not to be assessed separately by the Property Appraiser.” We conclude that both arguments are without merit.

Under chapter 718, “condominium parcel” is the name given to property that each condominium buyer acquires upon purchasing a condominium, and encompasses all rights associated with condominium ownership. It is a separate parcel of real property defined as “a unit, together with the undivided share in the common elements appurtenant to the unit.” § 718.103(12), Fla. Stat. The common elements of a condominium parcel include only what is subjected to condominium ownership. The “common elements” of a condominium parcel are defined as “the portions of the condominium property not included in the units,” and “condominium property” is defined as “the lands, leaseholds, and personal property that are sub- jected to condominium oumership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.” § 718.103(8), (13), Fla. Stat. (emphasis added). As such, if the land underlying a condominium is not subjected to condominium ownership, it is, by definition, not part of the condominium parcel.

Section 718.104, Florida Statutes,- describes the process, by which a condominium is created and how property is submitted to condominium ownership. In short, a condominium is created by executing a declaration of condominium complying with the requirements of chapter 718. Property is submitted to condominium ownership by including in the declaration a description of the property to be submitted and a statement submitting the property to condominium ownership. § 718.104(4)(a), (c), Fla. Stat. It is not necessary that the land underlying a condominium be submitted to condominium ownership; a leasehold estate in the underlying land may be submitted instead. § 718.104(1), Fla. Stat. (“A condominium may be created on land owned in fee simple or held under a lease complying with the provisions of s. 718.401.”).

Here, the declaration of condominium states that a leasehold estate in the underlying land was submitted to condominium ownership, not Escambia County’s fee simple estate. Indeed, Escambia County’s deed to the land restricted it from conveying its fee simple estate. Therefore, each unit owner’s condominium parcel includes an undivided interest in a leasehold estate in the underlying land, which is exempted from ad valorem property taxation pursuant to section 196.199(1), Florida Statutes. We reject the County’s contention that a condominium parcel must, by definition, include a proportionate ownership interest in the land underlying the condominium. The common elements of a condominium parcel include only the land, leaseholds, and personal property subjected to condominium ownership. If a fee simple estate in land is subjected to condominium ownership, then the unit owners acquire a proportionate ownership interest in the land. If a leasehold estate in land is subjected to condominium ownership, then the unit owners acquire a proportionate possessory interest in the land, The-latter occurred here.

We'also reject the County’s second argument under chapter 718. Counties have the authority to tax improvements upon real property separate from the land itself. See Broward Cty. v. Eller Drive Ltd. P’ship, 939 So.2d 130, 132 (Fla. 4th DCA 2006).' Indeed, as noted above, the County for a number of years’did just that, treating condominium structures as subject to ad valorem property taxation and the land underlying those same structures as subject only to taxation as intangible personal-property. Nevertheless, the County now argues that chapter 718 prohibits such taxation in this case. In support of its position, the County points to section 718.120(1), which provides in pertinent part as follows:

Ad valorem taxes, benefit taxes, and special assessments by taxing authorities shall be assessed against the condominium parcels and not upon the condominium property as a whole.... Each condominium parcel, shall be separately assessed for ad valorem taxes and special assessments as a single parcel.

However, chapter 718 does not change whether the Property Appraiser treats portions of property as being exempt. The definitional section of chapter 192, which governs taxation and finance, provides that ad valorem tax “means a tax based upon the assessed value of property.” § 192.001(1), Fla. Stat. The assessed value of property means an- annual determination of the just or fair market value. § 192.001(2), Fla. Stat. The Property Appraiser is-charged with “determining the value of all property within the county -... and with determining the -tax on taxable property after taxes have been levied.” § 192.001(3), Fla. Stat. The statute provides that “taxable value” means “the assessed value of property minus the amount of any applicable exemption provided under s. 3 or - s. 6, ■ Art. VII of the State Constitution and chapter 196.” § 192.001(16), Fla. Stat. We cannot conclude that section 718.120(1) eliminates any exemption that should otherwise be subtracted from the assessed value to reach the taxable value. Section 718.120(1) merely means that the County must assess each condominium parcel separately from other condominium parcels. See Calypso Developers I, LLC v. Pelican Props. of S. Walton, LLC, 109 So.3d 1214, 1217 (Fla. 1st DCA 2013).

IV.

Because the unit owners are not equitable owners of the underlying land, they are exempt from ad valorem property taxation. Accordingly, we REVERSE the trial court’s Final Judgment and REMAND for further proceedings -consistent with this opinion.

REVERSED and REMANDED.,

OSTERHAUS, J., CONCURS. BOYER, TYRIE, ASSOCIATE JUDGE, DISSENTS WITH OPINION.

BOYER, TYRIE, Associate Judge,

dissenting.

I respectfully dissent. I would find that the trial court correctly applied the doctrine of equitable ownership to find that Appellant’s leasehold interests in properties on' Santa Rosa Island are subject to ad valorem taxation as real property. That conclusion is compelled by the Florida Supreme Court’s -decisions in Accardo v. Brown, 139 So.3d 848 (Fla. 2014) and 1108 Ariola, LLC v. Jones, 139 So.3d 857 (Fla. 2014).

In Accardo, the Supreme Court held that lessees of property leased from Santa Rosa County under perpetually-renewable leases were the equitable owners of both land and improvements, so that both were subject to ad valorem taxation. Accardo, 139 So.3d at 855-56 (approving Ward v. Brown, 919 So.2d 462, 463 (Fla. 1st DCA 2005)). In Ward, this Court, after noting the perpetually-renewable nature of the leases at issue, supported its conclusion that the lessees -were equitable owners by noting that they

have the right to use or rent the improvements, encumber their interests, transfer their property rights, and realize any appreciation in value from sale or rental income. They must insure and maintain the improvements and are responsible for the payment of any taxes. Therefore, appellants are equitable owners of the property.

Ward, 919 So.2d at 463 (footnote omitted).

As the majority notes, Appellant argued below that, “unlike the lessees in Accardo, its unit owners did not have perpetually-renewable leases.” (Majority Op. at 568.) However,- perpetual renewability of a lease is not the only hallmark of equitable ownership. In 1108 Ariola, the Supreme Court held that equitable ownership does not depend on a right to acquire title for nominal consideration nor on a lease’s being perpetually renewable. 1108 Ariola, 139 So.3d 857, 859 (Fla. 2014). Instead, the court focused on whether the lessees held ‘virtually all the benefits and burdens of ownership’ of the improvements at issue.” Id. at 860 (quoting Leon Cnty. Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla. 1997)).

Valid “burdens and benefits” considered by Florida courts include the lessee’s obligation to insure, maintain and pay taxes on the leased property, as well as the lessee’s . option to purchase the leased property at the end of the lease term. None of these factors, including an option to purchase, convey to a lessee equitable title to leased property when considered individually. However, when these factors are considered in relation to one another, the courts may determine that a lessee is the equitable Owner of leased property.

Robbins v. Mt Sinai Med. Ctr., Inc., 748 So.2d 349, 351 (Fla. 3d DCA 1999)(internal citations omitted). The proper analysis, then, does not focus on individual factors, but considers all factors in relation to one another. At oral argument, the parties agreed that the leases at issue in this case are substantially identical to those at issue in Island Resorts Investments, Inc. v. Jones, 189 So.3d 917 (Fla. 1st DCA 2016). Those leas,e terms were summarized in Island Resorts as follows:

[the leaseholder] must pay lease fees; maintain liability, flood, windstorm, fire, and casualty insurance; pay all future ad valorem real property taxes, if any, and all other future taxes and assessments imposed on the subleased property; repair or rebuild any building or improvement in the event of damage or destruction; and pay for all its utilities. Appellant shall also have the right to assign, sublease, or otherwise convey or to mortgage all or portions of the subleased property. Title to any buildings or improvements on the leased property vests in Escambia County, and Appellant is required to deliver and surrender possession of the subleased - property upon the expiration or termination of the .lease. ,

Island Resorts, 189 So.3d at 918.

As in Accardo, 1108 Ariola, and Ward, the leases in this ease are not perpetually renewable.’ However, in this case, the leases are renewable once the terms are renegotiated; It is difficult to imagine why the unit owners would not want to renegotiate the terms of the leases for another 99 years, since the .unit owners have ownership interests in their condominiums. Perhaps the most plausible impediment to renewal of the leases, from Escambia County’s perspective, would be if the county were unable to collect ad valorem taxes from these unit owners.

Appellant conceded in the, trial court its ownership of, and liability for ad valo-rem taxes on, the improvements made to the properties at issue.- That concession, however, does not l’ender irrelevant those indicia of ownership — the burdens and benefits — which apply only to the improvements. The proper analysis remains the same — consideration of all factors in relation to one another, The indicia of ownership in the leases at issue here are similar to those present in Ward: “Appellants have the right to use or rent the improvements, encumber their interests, transfer their property rights, and realize any appreciation in value from sale or rental income. They must insure and maintain the improvements and are responsible for the payment of any taxes.” Ward, 919 So.2d at 463. And while, as noted, these leases are not perpetually renewable, they bear a more compelling similarity to those in Ward: their initial term of 99 years makes them eligible for homestead exemption under Article VII, section 6(a) of the Florida Constitution, which this Court in Ward characterized as an “express[ ] contemplation]” of equitable ownership. Id. at 465.

The Appellant’s reliance on Island Resorts is misplaced and that case is distinguishable because the property at issue in Island Resorts was unimproved. Island Resorts, 189 So.3d at 922 (“Neither does this case involve the taxation of improvements.”). Therefore, terms of the lease applicable to improvements, since none existed, did not enter into the analysis. In Ward, this Court stated that the Florida Constitution “expressly contemplates equitable ownership for leases with initial terms of 99 years .... ” Ward, 919 So.2d at 464. Consistent with Accardo, 1108 Ario-la, and Ward, I would affirm the judgment under review.

      , State v. Escambia Cty., 52 So.2d 125 (Fla. 1951); Straughn v. Camp, 293 So.2d 689 (Fla. 1974); Williams v. Jones, 326 So.2d 425 (Fla. 1975); Am Fi Inv. Corp. v. Kinney, 360 So.2d 415 (Fla. 1978); Bell v. Bryan, 505 So.2d 690 (Fla. 1st DCA 1987); Ward v. Brown, 919 So.2d 462 (Fla. 1st DCA 2005).

      . The supreme court held in 1108 Ariola that lessees may have equitable ownership of improvements on the leased property even if the leases are not perpetually renewable. Because the lessees there did not present any evidence regarding the useful life of the improvements, the County was justified in treating the lessees as the equitable owners of the improvements, regardless of whether the leases were perpetually renewable. 1108 Ariola, LLC v. Jones, 139 So.3d 857, 859-60 (Fla. 2014).

      . We do not analyze other factors generally relevant to equitable ownership because, as the dissent acknowledges, the parties properly agreed that the terms of the master lease are substantively the same as the lease involved in Island Resprts. See Island Resorts Invs., Inc. v. Jones, 189 So.3d 917 (Fla. 1st DCA 2016).

      . The County states in its brief that, "[b]y statute, the condominium parcel that must be assessed includes a proportionate interest in the common elements, including the underlying land, whether such land is leased or owned.” While true as far as it goes, this statement does not specify the type of land interest the County maintains each condominium parcel includes. Even a lessee is regarded as having an interest in land. Williams, 326 So.2d at 433 ("[I]t is well established that a valid lease for a term of years is a conveyance of an interest in land.”). Because this case hinges on who owns the land, it seems the County is arguing that a condominium parcel necessarily includes a proportionate ownership interest in the underlying land, as opposed to a possessory, leasehold interest. We have not found the "multiple legal authorities” that support this proposition, and conclude that it is irrelevant to the ultimate issue in any event.

      . While the lease terms are substantially identical, Island Resorts differs from the instant ■case in that the real property in Island Resorts was unimproved.

      . The Constitutional provision of homestead exemption and, therefore, equitable ownership, for leaseholds initially in excess of 98 years negates any reliance on Garcia v. Dadeland Station Associates, Ltd., 218 So.3d 474 (Fla. 3d DCA 2017). Garcia does not analyze benefits and burdens of ownership, but the court there concluded that a lease without perpetual renewabilily or a nominal purchase option, and an initial term of 90 years, was not equitable ownership.


source: Caselaw Access Project

author: SALARIO, Judge.

license: Public Domain

text:
    Kimberly GOODMAN, Appellant/Cross-Appellee, v. Sean GOODMAN, Appellee/Cross-Appellant.
    Case No. 2D15-2640
    2D15-5027
    District Court of Appeal of Florida, Second District.
    Opinion filed October 13, 2017

      Kimberly Goodman, pro se.
    Bernard T. King of Rubinstein, Holz & King, P.A., Fort Myers, for Appel-lee/Cross-Appellant.
   SALARIO, Judge.

Kimberly Goodman, the former wife, appeals from a final judgment of dissolution of marriage from which the former husband, Sean Goodman, cross-appeals. In a consolidated case, Ms, Goodman also appeals from an order dismissing with prejudice a partition action related to certain marital property. As to the dissolution judgment, based principally on the absence of findings concerning stock options awarded to the former husband, we reverse the equitable distribution, alimony, and child support determinations and remand for further proceedings as described in this opinion. We affirm the remaining portions of the final judgment and the entirety of the order dismissing the partition action without further comment.

The parties were married for slightly over sixteen years, and Mr. Goodman was the primary breadwinner. In 2013, Ms. Goodman filed a petition seeking a dissolution of the parties’ marriage, a determination as to custody of the parties’ minor children, and a determination as to support for those children. After making orders for the temporary support of Ms. Goodman and the children and attorneys’ fees for Ms. Goodman, the trial court conducted a nonjury trial during which Ms. Goodman elected to proceed without, counsel. After trial, the trial court received written closing arguments and rendered the final judgment of dissolution that is the basis of most of this appeal.

The final judgment awarded the wife durational alimony of $6500 per month for a period of eight years. As justification for that award, the trial court determined that the former wife’s monthly need was $10,000 and that $3500 of that sum could be met from sources other than the former husband. The trial court also determined that the former husband had the ability to pay $6500 a month of alimony based, in part, on a factual finding that the former husband- had annual income of $277,000 as evidenced by his reported 2013 earnings. That figure was also essential to the trial court’s determinations concerning the parties’ child support obligations.

- Mr. Goodman argues that the trial court improperly double-counted, both as a source of income for purposes of determining alimony and child support and as marital assets subject to equitable distribution, some portion of stock options he received as compensation. Mr. Goodman received a-stock option award from his employer every year. The options awarded were slated to vest on different dates both before and after Ms. Goodman’s filing of the dissolution petition. Mr. Goodman testified without contradiction that the $277,000 income figure upon which the trial court relied included at. least some portion of those stock option awards — whether it was some or all, or what portion if it was some, is not clear. At the same time, the trial court also distributed substantial portions of those options to Ms. Goodman as part of the equitable distribution scheme. Hence the potential, issue that Mr. Goodman’s stock options may have been double-counted both as sources of income and as distributed marital assets.

To Mr. Goodman’s point, our court has in fact recognized that if a trial court decides to treat a stock option as an asset, it cannot also treat' that same option as income, at least for the purposes of calculating alimony. See Seither v. Seither, 779 So.2d 331, 333 n.4 (Fla. 2d DCA 1999) (citing Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986)). On the other hand, it is also clear on this record that the trial court could have determined that some options at issue were income and others were assets or that portions were marital while other portions were not. See id. at 332-33; Jensen v. Jensen, 824 So.2d 315, 317-20 (Fla. 1st DCA 2002). The difficulty we have is that the final judgment contains no findings as to the extent to which the trial court regarded the stock options as a source of income, making them relevant' to the alimony and child support determinations, or as assets, making them relevant to the equitable distribution calculation, or both. The only indication we have of the trial court’s thinking is that the equitable distribution schedule attached to the final judgment determined that some percentage of each annual options award' was a marital asset and some portion was a non-marital asset. The equitable distribution schedule says that the support for that determination is on a separate schedule, but no such schedule is attached or is otherwise identifiable. The final judgment does not state whether some or all of the options awards were also included in the trial court’s income finding and why or why not.

Because we lack findings that, explain the trial court’s .determination of the character of the stock options — as either (or both) a source of income or marital or nonmarital assets — we are unable to review the trial court’s decision and are constrained to reverse. See Geoghegan v. Geoghegan, 969 So.2d 482, 485-86 (Fla. 5th DCA 2007) (discussing the complex factual determination a trial court must undertake to determine' the percentage of stock options that can be considered income for the purposes of alimony, recognizing that the trial court considered at least portions as income, and concluding that it could not “tell from the judgment or the record how the court got there”); see also Doganiero v. Doganiero, 106 So.3d 75, 78 (Fla. 2d DCA 2013) (requiring that “to ensure meaningful appellate review,” á final judgment must “set forth its rationale” for an alimony award); Pavese v. Pavese, 932 So.2d 1269, 1270 (Fla. 2d DCA 2006) (reversing final judgment that lacked sufficient findings to determine each party’s income and to classify marital assets and liabilities). On remand, the trial court should make specific findings that explain whether and to what extent the stock options represent a source of income or marital or nonmarital assets (or both), identify which portions of the options awards are each, and state the reasons for those determinations. Cf. Parry v. Parry, 933 So.2d 9, 17 (Fla. 2d DCA 2006) (remanding for trial court to allocate, value, and distribute marital portion of stock option awards).

In making these findings, we ask that the trial court consider our decisions in Ruberg v. Ruberg, 858 So.2d 1147 (Fla. 2d DCA 2003), and Parry, which address the treatment of stock option awards as marital or, alternatively, nonmarital assets. We further note that the findings we direct the trial, court to make involve fact-intensive questions, see, e.g., Ruberg, 858 So.2d at 1152-54, and to the extent the trial court needs to take additional evidence -to. resolve them, it is free to do so, see, e.g., Valente v. Barion, 146 So.3d 1247, 1250 (Fla. 2d DCA 2014).

This exercise will most likely require that the trial court adjust the alimony, child support, and equitable distribution calculations in the final judgment to comport with the results of the findings it is required to make. See, e.g., Thompson v. Malicki, 169 So.3d 271, 273 (Fla. 2d DCA 2015) (“We remand for the trial court to take further evidence on [the former wife’s income] and [to] recalculate the amount of child support as necessary.”); J.D.C. v. M.E.H., 118 So.3d 933, 936-37 (Fla. 2d DCA 2013) (requiring recalculation of child support obligations in light of irregularities in final judgment concerning father’s income). In that connection, we note that Ms. Goodman has raised numerous issues related to the trial court’s durational alimony award, including that the income imputed to her was unsupported, and has also argued that the trial court failed to award her permanent' alimony, retroactive alimony, and child support. While we find no error in the award of durational alimony or the imputation of income, there are related matters that the trial court should address on remand. First, Mr. Goodman argues that the trial court failed to include her imputed income and trust income in calculating how much of her monthly asserted need of $10,000 was met by her own income before awarding'the $6500 per month durational alimony amount. And Ms. Goodman is correct that to the extent she sought retroactive amounts, the final judgment fails to make the findings required regarding need and ability to pay. See § 61.08(2), Fla. Stat. (2013). The trial court on remand should consider and clarify any findings in.regard to her request for retroactive alimony for that time. See Alpert v. Alpert, 886 So.2d 999, 1002 (Fla. 2d DCA 2004). This will also allow the -trial court to consider Mr. Goodman’s argument that his former wife’s imputed income and trust income should be factored into any retroactive award. These issues will likewise bleed into the child support calculations, and we direct a similar determination of the issue of retroactive child support as well. See § 61.30,

We note further that Mr. Goodman correctly asserts that the trial court failed to 'include the imputed income of the former wife and only listed the support payments as her income in the calculations. See Broga v. Broga, 166 So.3d 183, 185 (Fla. 1st DCA 2015). He also correctly argues that her trust income is attributable as income for the purposes of child support calculations. See Beck v. Beck, 852 So.2d 934, 936 (Fla. 2d DCA 2003). Both of these issues, as well as Mr. Goodman’s argument that the trial court failed to apply .interest income from her trust, are within the scope of the recalculations the trial court must make due'to the necessary reconsideration of the distribution and income determinations discussed above and should be considered on remand. The former wife’s claims that, the trial court erred in its child support calculations by failing to deduct for the cost of her health insurance and in not correctly listing the former husband’s income including his in-kind income should likewise be considered on remand.

In sum, we reverse the final judgment of dissolution to the extent expressed in this opinion because the trial court failed to make findings that support its treatment of the stock options awarded to Mr. Goodman as a source of income and. marital assets. We remand for the additional proceedings described in this opinion. In all other respects, we affirm the final judgment of dissolution and the judgment on the related partition action.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and BLACK, JJ., Concur.

      . In a related but separate appeal, Mr. Goodman appeals from a final order denying his motion for sanctions against Ms. Goodman, pursuant to section 57.105, Florida Statutes, for proceeding with the partition action. By separate disposition rendered simultaneously with this one, we are affirming that order;


author: PER CURIAM.

text:
    Kelvin J. MACK, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-1829
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017.
    Kelvin J. Mack, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tayo Popoola and Thomas H. Duffy, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, Kelvin Mack, argues that his appellate counsel was constitutionally ineffective in the direct appeal of his convictions for home invasion robbery with a firearm, false imprisonment, and grand theft of a motor vehicle. We find the petition to be without merit and only address Mack’s claim that appellate counsel was ineffective for failing to challenge on appeal the trial court’s denial of the motion to suppress his confession.

Mack filed a motion to suppress his confession given while he was in police custody. In support of his motion, he claimed that law enforcement officers had threatened to arrest his girlfriend — whom Mack believed to be pregnant with his child — if Mack did not “come clean” and confess to the crimes that he had allegedly committed. The state responded that there was no indication that Mack’s confession was coerced, noting that the alleged threats were absent from the transcript of the police interrogation.

At the hearing on the motion to suppress, defense counsel elicited testimony .that Mack was interrogated for an extended period of time before the tape recorder was ever activated. Specifically, Mack* testified that the alleged coercion occurred between 2:36 p.m. and 3:22 p.m. — prior to the start of the recording — and as a result, the alleged threats were not included in the interrogation transcript. However, Mack confirmed during the recorded interrogation that he had not been threatened or promised anything, and the interrogating officers denied making any promises or threats to obtain the confession. At the conclusion of the hearing, the trial court simply denied the motion to suppress. ■

In his petition, Mack claims that appellate counsel was ineffective for failing to raise on appeal the trial court’s denial of his motion to suppress the confession. “In evaluating a claim of ineffective assistance of appellate counsel, this Court’s determination is limited to ‘first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.’” Groover v. Singletary, 656 So.2d 424, 425 (Fla. 1995) (quoting Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986)). We conclude that Mack’s claim fails both prongs because appellate counsel cannot be ineffective for failing to raise a meritless claim. See Rutherford v. Moore, 774 So.2d 637, 644 (Fla. 2000) (“The failure to raise a meritless claim does not render appellate counsel’s performance ineffective.”).

Mack’s suppression motion turned on the credibility of his hearing testimony, which the trial court implicitly rejected by denying the motion. Witness credibility determinations are not properly reviewed by this court on appeal. See Finkelstein v. State, 157 So.3d 1085, 1087 (Fla. 1st DCA 2015) (“This Court will not re-weigh the evidence considered by the trial court, nor will we disturb the trial court’s determination of credibility of the witnesses.”). Although there was no explicit finding as to witness credibility, this alone does not constitute reversible error. See Johnson v. State, 696 So.2d 326, 331 (Fla. 1997) (holding that the trial court’s failure to make specific findings of fact in ruling on the motion to suppress did not constitute reversible error where the issue of voluntariness was specifically before the court and the record, with unmistakable clarity, supported the conclusion that the trial court found defendant’s statement to be voluntary by a preponderance of the evidence).

This case is distinguishable from Dillow v. State, 884 So.2d 508 (Fla. 2d DCA 2004), in which the Second District reversed the trial court’s denial of the defendant’s motion to suppress because the trial court expressly refrained from making a crucial credibility determination as to the volun-tariness of the confession. Here, the trial court did not expressly decline to make the necessary credibility determination. Furthermore, trial counsel never objected to the absence of an express finding on credibility, thus failing to preserve the issue for appeal. Finally, we are confident that the trial court would have made such a finding if it had been requested to do so. Accordingly, the petition is denied. ■

PETITION DENIED.

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


author: KELLY, Judge.

text:
    Calvin FORMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5165
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017.
    Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Calvin Forman appeals from his judgment for aggravated battery and his twenty-five-year prison.sentence. We affirm the conviction without comment. We reverse "the sentence and remand for resentencing before a different circuit court judge.

At the. conclusion of jury selection, defense counsel told the trial judge, that For-man would enter a nolo contendere plea in exchange for a reduction in the charge to felony battery. When the prosecutor declined to reduce the charge, the trial judge said he might agree to a sentencing cap in exchange for a plea to aggravated battery. The trial judge then asked to go off record to further discuss the matter contrary to the directive in State v. Warner, 762 So.2d 507, 514 (Fla. 2000) (“A record must be made of all plea discussions involving the court.”). No agreement was reached and the trial proceeded to opening statements.

Midtrial, when the State encountered difficulties in producing a material witness, the trial judge initiated plea negotiations, which is also prohibited by Warner. Id. at 513 (“The trial court must not initiate a plea dialogue; rather, at its discretion, it may ... participate in such discussions upon request of a party.”) After discussions with defense counsel regarding what kind of plea Forman might agree to and what sentence the judge might be willing to impose, the judge asked the prosecutor if he would consider reducing the charge given the problem with the State’s witness. The prosecutor said he would consider it. The judge pressed the prosecutor further on this point and then directed defense counsel to find out if Forman would enter a plea to a reduced charge of felony battery as a habitual offender in exchange for 6.3 years in prison, which was at the bottom of Forman’s recommended sentencing guidelines range. The judge added that if Forman said no, he was going to continue the trial so the State' could secure the attendance of its witness. No further discussions regarding a possible plea appear in the record, but Forman obviously said “no” because the case was continued as promised. Ultimately, the jury convicted Forman as charged, and the judge sentenced him to twenty-five years in prison. The judge’s comments at sentencing offer no explanation of the grounds for the twenty-five-year sentence other than the nature of the crime and Forman’s extensive criminal history, all of which were known to the judge when he offered to accept a plea in exchange for a sentence of 6.3 years. See Warner, 762 So.2d at 514 (noting that a judge’s preliminary evaluation of the case is not binding if additional facts emerge prior to sentencing which affect the judge’s sentencing discretion).

The nature and extent of the trial judge’s involvement in the plea negotiations, the off-the-record discussion, and the subsequent imposition of a sentence that was significantly harsher than the one he had initially offered is sufficient to give rise to a presumption of judicial vindictiveness. See Wilson v. State, 845 So.2d 142, 156 (Fla. 2003) (“[I]f the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his or her comments appears to have departed from the role of a neutral arbiter, then these actions alone may give rise to a presumption of judicial vindictiveness ....”); Harris v. State, 903 So.2d 363, 366 (Fla. 2d DCA 2005) (concluding the. State had failed to overcome a presumption of vindictiveness where the trial court initiated off-the-record plea discussions, departed from its role as a neutral arbiter, and imposed a sentence significantly harsher than the plea offer). The State-points to nothing in the record that is sufficient to rebut that presumption. The totality of the circumstances leads us to conclude that Forman is entitled to relief pursuant to Wilson. We therefore reverse the sentence imposed and remand for resentencing before a different circuit court judge. See Wilson, 845 So.2d at 159.

Conviction affirmed, sentence reversed, case remanded for résentencing,

WALLACE and BADALAMENTI, JJ., Concur,


author: MORRIS, Judge.

text:
    Miguel AYALA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1174
    District Court of Appeal of Florida, Second District.
    Opinion filed December 6, 2017
    Miguel Ayala, pro se.
   MORRIS, Judge.

Miguel Ayala appeals an order denying his motion for correction of jail credit, which he filed under Florida Rule of Criminal Procedure 3.801. Because the record attachments to the postconviction court’s order do not conclusively refute Mr. Ayala’s claim, we reverse and remand for further proceedings.

Mr. Ayala was convicted of felony petit theft and criminal mischief in case number 2016-CF-1843 following a no contest plea. The trial court sentenced him to four years’ imprisonment for felony petit theft and time served for criminal mischief. The sentences for each count were to run concurrently with each other and with Mr. Ayala’s sentence in case number 2015-CF-6495. Even though the trial court sentenced Mr. Ayala to time served for the criminal mischief offense, it did not award him any jail credit for either offense in case number 2016-CF-1843.

Mr. Ayala thereafter filed a timely motion for jail credit, alleging that he was entitled to 247 days’ credit on the felony petit theft sentence based upon his incarceration at the Sarasota County Jail from October 13, 2015, to July 7, 2016, for that offense. Without ordering a response from the State, the postconviction court summarily denied the motion. Quoting Keene v. State, 500 So.2d 592, 594 (Fla. 2d DCA 1986), the court stated that Mr. Ayala “is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence.” The court found that the record “shows the Defendant was never arrested or other■wise taken into custody for the offenses charged in this case.” Instead, he “was apparently in custody in relation to the charges in Case No. 2015-CF-6495.” Thus the court concluded that the award of zero jail credit in case number 2016-CF-1843 was correct.

The record attachments to the postconviction court’s order do not establish when Mr. Ayala was taken into custody or that he was never arrested or in custody for his offenses in case number 2016-CF-1843. There are no warrants, arrest records, booking records, or summonses in the record. “Merely stating in the written order that a defendant is only entitled to credit for time spent in jail for each charge does not establish how the calculations were made and what the relevant dates are for each of the different cases.” Davis v. State, 219 So.3d 201, 202 (Fla. 3d DCA 2017).

Under Rule 3.801, if a defendant files a legally sufficient motion, the trial court should grant the additional credit or conduct an evidentiary hearing, unless the motion can be conclusively refuted either as a matter of law or by reliance upon the records in the case. If the summary denial is based on the records in the case, a copy of the portion of the files and records that conclusively proves that the defendant is not entitled to relief shall be attached to the final order.

Adkins v. State, 183 So.3d 1102, 1104 (Fla. 5th DCA 2015) (first citing Fla. R. Crim. P. 3.850(f)(5), (8); and then citing Fla. R. Crim. P. 3.801).

Because the record attachments to the postconviction court’s order do not conclusively refute Mr. Ayala’s claim, we reverse the order denying his motion for jail credit and remand for further proceedings. See Gibbs v. State, 175 So.3d 915, 918 (Fla. 2d DCA 2015). We note that even if the court correctly found that Mr. Ayala was not officially arrested for the offenses in case number 2016-CF-1843, it appears that he is entitled to some jail credit for his offenses in that ease. At a minimum, he would be entitled to credit for time that he was in custody after he was arraigned for those offenses. See Wade v. State, 125 So.3d 1002, 1003-04 (Fla. 2d DCA 2013) (holding that when a summons was served on a defendant in a criminal case and he was arraigned on those charges while in custody for other offenses, the defendant was entitled to jail credit for the time he spent in custody on his new offense prior to sentencing).

Accordingly, we reverse the order denying Mr. Ayala’s motion for jail credit and remand for further proceedings. If the court again summarily denies the motion, it must attach copies of the records that conclusively show that he is not entitled to relief.

Reversed and remanded.

BLACK and LUCAS, JJ., Concur.


text:
    T.K.O., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4154
    District Court of Appeal of Florida, Second District.
    Opinion filed December 6, 2017

      Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

T.K.O. appeals the disposition order finding that he committed the delinquént acts of trespass in an unoccupied conveyance and resisting' an officer without violence. The State has appropriately conceded that the evidence was legally insufficient to support the trespass offense, as the evidence failed to establish that T.K.O. knew or should have known that the ear from which he was seen fleeing was stolen. See E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003); P.W. v. State, 730 So.2d 422, 423 (Fla. 5th DCA 1999). We therefore reverse the trial court’s finding that T.K.O. committed that delinquent act and remand for the court to amend the disposition order accordingly. The court’s order is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, KHOUZAM, and SALARIO, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Pedro Luis RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-271
    District Court of Appeal of Florida, Second District.
    Opinion filed December 6, 2017
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S, Parnés, Assistant Attorney General, Tampa, for' Appellee.
   NORTHCUTT, Judge.

A jury convicted Pedro Luis Rodriguez of dealing in stolen property (organizing). However, the trial court should have granted Rodriguez’s motion for judgment of acquittal because the State failed to prove an element of that crime.

The State charged Rodriguez with dealing in stolen property in violation of section 812.019(2), Florida Statutes (2014). The charge stemmed from a controlled sale of stolen herbicide. Months previously, a local farmer had discovered that an employee was stealing fuel. The ■ farmer agreed not to press charges if-the employee repaid the cost of the fuel and cooperated with a Hendry County Sheriffs Office agricultural investigator, Detective White. The employee agreed to give Detective White the names of anyone attempting to purchase “discount” farm supplies, Rodriguez eventually propositioned the employee, and Detective White planned a controlled sale.

On the day of the controlled sale, Detective White provided three two-and-a-half-gallon containers of GlyStar Plus herbicide to the employee. Hidden camera footage showed Rodriguez meeting with the employee, transferring the herbicide from the employee’s truck into his own, and briefly discussing prospective deals.

At the close of the State’s case at trial, Rodriguez moved for a judgment of acquittal, arguing in part that the State failed to present evidence that Rodriguez trafficked in the herbicide. The trial court denied the motion, finding that the State had presented a prima facie case. The jury found Rodriguez guilty, and the trial court sentenced him to sixty days in county jail followed by thirty-six months’ probation.

In order to prove Rodriguez guilty of dealing in stolen property (organizing) the State had to show (1) that he initiated, organized, planned, financed, directed, managed, or supervised a theft of the herbicide and (2) that he trafficked in the herbicide. § 812.0X9(2). “Traffic" means “[t]o sell, transfer, distribute, dispense,, or otherwise dispose of property” or “[t]o buy, receive, possess, obtain control of, or use property with the intent to 'sell, transfer, distribute, dispense, or otherwise dispose of such property.” § 812.012(8)(a)-(b). During closing argument, the State posited that Rodriguez “made a phone call initiating the chain of events; the.getting of that herbicide; and that then the defendant purchased that with the intent to use it. You heard about his farm, his...equipment and he was using it.” (Emphasis added.) On appeal, the State.,acknowledges that although there was no evidence that Rodriguez sold the herbicide to another person, Rodriguez trafficked by using the herbicide for a commercial farming project and thereby placing it “into the -stream of commerce.” State v. Nesta, 617 So.2d 720, 721 (Fla. 2d DCA 1993) (holding that the sale of stolen jewelry to pawn broker constituted dealing .in stolen property notwithstandr ing defendant’s argument, that he stole the jewelry for personal use and did not intend to. place it into the stream of commerce). We disagree.

If Rodriguez organized the theft with the actual intent to use the herbicide on his own farm, his “intent to personally put the stolen items to their normal use of consumption,'constitutes only the crime of theft and not the crime of dealing in stolen property,” Williams v. State, 590 So.2d 515, 516 (Fla. 2d DCA 1991). The gravamen of section 812.019 is the prohibition against knowingly transferring stolen property to another. “The dealing in stolen property ‘statute was not designed to punish persons who steal for personal use. Rather it' was designed to dismantle the criminal network of thieves and fences who knowingly redistribute stolen property.’” Blackmon v. State, 121 So.3d 535, 542 (Fla. 2013) (emphasis added) (quoting State v. Camp, 596 So.2d 1055, 1057 (Fla. 1992)).

The State has not submitted any case law supporting its proposition that a defendant traffics in stolen goods tjy using them in an enterprise and later selling the product of that enterprise. Certainly, one who steals electricity with the intent to illuminate his marijuana grow house does not traffic in stolen electricity when he later sells cannabis grown under an illicitly powered sun lamp. We decline to expand the meaning of the trafficking statute through the artifice of the State’s “stream of commerce” theory; in fact, we are forbidden to do so. § 775.021(1), Fla. Stqt. (2014) (directing that provisions of the Florida Criminal Code “shall be strictly construed”).

At most, the evidence in this case indicated that Rodriguez put the stolen herbicide to the “normal use of consumption,”— i.e. controlling weeds on his farm. Williams, 590 So.2d at 516. Because the State failed to prove a prima facie case of dealing in stolen property, we reverse Rodriguez’^ conviction and vacate his sentence.

Judgment reversed; sentence vacated.

KELLY and CRENSHAW, JJ., Concur.

      . The State also charged Rodriguez with grand theft in violation of section 812.014, Florida Statutes (2014), but nolle pressed the charge at the beginning of trial.


text:
    Wilfred Paul MILLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-217
    District Court of Appeal of Florida, Second District.
    Opinion filed December 6, 2017
    Wilfred Paul Miller, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David E. Campbell, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Wilfred Paul Miller appeals the order denying in part and granting in part his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

Mr. Miller pleaded to attempted sexual battery of a child under twelve (count three), sexual battery of a child over twelve (count six), and four counts of committing a lewd, lascivious, or indecent assault or act upon or in the presence of a child (counts one, two, four, and five). The information reflects that counts one through three occurred between August 15, 1988, and August 15, 1992, and counts four through six occurred between December 6, 1996, and December 22, 1996. On January 5, 1998, the trial court sentenced Mr. Miller to concurrent probationary split sentences of ten years in prison followed by ten years of probation for the two first-degree felonies (counts three and six) and to probationary split sentences of five years in prison followed by ten years of probation for the second-degree felonies (counts one, two, four, and five). On March 28, 2007, the trial court revoked Mr. Miller’s probation and imposed concurrent twenty-year sentences for each conviction.

Mr. Miller filed a rule 3.800(a) motion asserting that the twenty-year sentences for the second-degree felony convictions are illegal because they exceed the fifteen-year statutory maximum. The postconviction court denied the motion, reasoning that Mr. Miller’s lowest permissible sentence for these crimes under the criminal punishment code is twenty years, making twenty years the appropriate sentence. This court reversed, explaining that the postconviction court erred as a matter of law because Mr. Miller’s offenses predated the criminal punishment code. Miller v. State, 177 So.3d 95, 97 (Fla. 2d DCA 2015).

On remand, the postconviction court granted the motion as to counts one and two but denied the motion as to counts four and five, reasoning: “The 1994 sentencing guidelines scoresheet was prepared for Counts 4, 5, and 6, and accounted for a recommended range between 210 months and 350 months. The Defendant’s sentence of 240 months on counts 4 and 5 was therefore legally imposed.”

However, the sentencing guidelines scoresheet that the postconviction court attached to its order is titled “October 1, 1995 Rule 3.991(A) Sentencing Guidelines Scoresheet.” The information attached to the postconviction court’s order reflects that Mr. Miller committed the crimes charged in counts four and five in December of 1996, so the postconviction record reflects that he is entitled to sentencing under the 1994 version of the guidelines. See Heggs v. State, 759 So.2d 620, 630-31 (Fla. 2000) (holding that the 1995 amendment to the sentencing guidelines was “void in its entirety” and remanding for resentencing in accordance with the valid laws in effect on the dates of his offenses); see also Trapp v. State, 760 So.2d 924, 928 (Fla. 2000) (holding that the window for challenging sentences imposed under the invalid amendment to the guidelines commenced on October 1, 1995, and closed on May 24, 1997). While the 1995 scoresheet shows that the guidelines recommended sentence exceeds the fifteen-year statutory maximum, see Mays v. State, 717 So.2d 515, 516 (Fla. 1998) (interpreting section 921.001(5), Florida Statutes (1995), to require the “true” recommended guidelines sentence be imposed, absent a departure, if it exceeds the statutory maximum), the postconviction record does not show that twenty years is a lawful sentence under the 1994 guidelines. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

SILBERMAN, MORRIS, and BADALAMENTI, JJ., Concur.

      . Mr. Miller appeals only that portion of the order that denied relief as to counts four and five. See Fla. R. App. P. 9.140(b)(1)(D).


author: BILBREY, J.

text:
    BAYVIEW LOAN SERVICING, LLC, Appellant, v. Debra A. NEWELL, et al., Appellee.
    CASE NO. 1D16-5173
    District Court of Appeal of Florida, First District.
    Opinion filed December 6, 2017

      David Rosenberg, Jarrett Cooper, and Cynthia L. Comras of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellant.
    Glorimil (Gloria) R. Walker and Judy Renee Collins, Three Rivers Legal Services, Inc., Gainesville, for Appellee.
   BILBREY, J.

Bayview Loan Servicing, LLC, appeals a final order denying its elaim for foreclosure and the trial court’s sua sponte entry of a money judgment under the promissory note. Because Bayview proved its foreclosure claim at the final hearing and no affirmative defenses to foreclosure were proven by Debra Newell, the borrower, we reverse the final order and remand for entry of a final judgment of foreclosure.

The initial complaint for foreclosure was filed by Bayview on November 7, 2014. The copies of the note and mortgage attached to the complaint both listed the street address of the property on South U.S. Highway 441, Micanopy, Florida 32667, as the property intended to secure the loan. The mortgage, in addition to the street address of the property, listed the Alachua County Property Appraiser’s parcel identification number. Finally, the mortgage referenced a metes and bounds description of the parcel, attached to the mortgage as exhibit A. The exhibit A metes and bounds point of beginning was “the Northwest corner of Lot 67 of the LEITNER TRACT” in Alachua County. However, the corner angles following the point of beginning were improperly notated. While the digits for the angles were correct, the degree symbols were missing, so that, for example,., what should have been “N, 85”26'Q3" W.” appeared in exhibit A as “N. 8526'03" W.”

Shortly after the commencement of the foreclosure action, a previous owner of the property who had been included in the original list of defendants sought to be dismissed from the action. To clarify that defendant’s position that he no longer held any interest in the securing real property and thus had no interest in the foreclosure case, he and the title company sought to correct the typographical errors in the déed to Ms. Newell which had been filed in the Official Records of Alachua: County. As a result, a corrective warranty deed which included the degree symbols in the notations of the angles in the metes and bounds description, was prepared, recorded in the Official Records, and filed in the foreclosure case on March 17, 2016. Ms. Newell’s grantor and the grantor’s formér spouse were then dropped as parties to the action. " ’

The case proceeded to final hearing upon Bayview’s second amended complaint, filed August 24, 2015. In her answer to the second amended complaint, Ms. Newell admitted the allegations of paragraph 3 — that she had executed and delivered the note and mortgage at issue, that the mortgage had been recorded, and that the mortgage encumbered the property described in the mortgage and owned and possessed by Ms. Newell. The only affirmative defenses asserted as to the second amended complaint were that the claim for reformation of the mortgage was time-barred by the statute of limitations and that Bayview had faded to mitigate its damages. No affirmative defense to foreclosure of the mortgage was asserted in the answer to the second amended complaint.

The case progressed to a final hearing before a general magistrate. See Pla. R. Civ. P. 1.491. Bayview presented documentary evidence authenticated by its witness, and the documents were admitted. Ms. Newell did not call any witnesses or present any evidence. During closing arguments, counsel for Ms. Newell argued that the mortgage was “clearly erroneous,” apparently referring to the lack of degree symbols in the metes and bounds description. Counsel for Ms.- Newell suggested that Bayview could recover a money judgment on the note rather than foreclosing on the mortgage, but counsel for Bayview did not agree and insisted that the error was “nothing but a scrivener’s error” and that Bayview sought foreclosure rather than a money judgment on the note alone.

The magistrate found that Bayview had established its standing to enforce the note via the foreclosure action and had presented competent substantial evidence to prove that the loan was in default and to prove the amounts due and owing. However, the magistrate did not recommend any disposition on Bayview’s foreclosure claim, recommended that Bayview’s claim for mortgage reformation be dismissed as untimely, and found that Bayview was “entitled to damages under the Promissory Note.” Bay-view’s exceptions to the magistrate’s report and recommendations, including its exception to the entry of a money judgment on the note rather than a judgment of foreclosure, were denied by the trial court. Bayview then moved for rehearing, reiterating its position that it sought foreclosure and not a money judgment and arguing that the mortgage did not need reformation of the metes and bounds description in order to support foreclosure. Bayview’s motion for rehearing was likewise denied. The final order on appeal denied foreclosure without explanation and entered a final money judgment on the note.

Bayview never requested a money judgment on the note in any pleading or motion, and objected consistently when this remedy was suggested by Ms! New-ell’s' attorney and recommended by the magistrate. “A trial court is without jurisdiction to award relief that was not requested in the pleadings or tried by consent.” Wachovia Mortg. Corp. v. Posti, 166 So.3d 944, 945 (Fla. 4th DCA 2015). Further, “granting relief, which was neither requested by appropriate pleadings, nor tried by consent, is a violation of due process.” Bank of Am., N.A. v. Nash, 200 So.3d 131, 135 (Fla. 5th DCA 2016) (citing Posti, 166 So.3d at 945-46). The money judgment on the note in this case amounts to the trial court’s sua sponte conversion of Bayview’s foreclosure claim into an un-pled claim for monetary relief. Accordingly, the portion of the final order entering a money judgment on the note must be reversed. See Heartwood 2, LLC, v. Dori, 208 So.3d 817 (Fla. 3d DCA 2017).

The denial of Bayview’s foreclosure claim must also be reversed. The magistrate’s finding that Bayview proved the elements for foreclosure, including its standing, was not challenged by exception and not rejected by the trial court. Ms. Newell never claimed, via affirmative defense or otherwise, that the typographical errors in the metes and bounds description of the real property rendered the mortgage ineffective to encumber the property with a lien for the mortgage. See § 697.02, Fla. Stat. (lien of mortgage covers the property described therein). The street address and property appraiser’s parcel identification number were never contested, and the defense never suggested that the omission of the degree symbols in the metes and bounds description would prevent either party or a surveyor from locating the property affected by the lien using the lot and tract information, address, or parcel identification number. See Dori, 208 So.3d at 821 (holding that “for a mortgage to create a valid lien, the mortgage must contain a sufficient description of the property to enable the parties to ascertain and locate the property affected by the lien”) {citing Sickler v. Melbourne State Bank, 118 Fla. 468, 159 So. 678, 679 (1935)).

Even if such defense had been raised, “Florida courts have repeatedly held descriptions of property in mortgages sufficient despite minor mistakes and irregularities where the description of the property intended to be encumbered could be determined from a review of the entire instrument.” Regions Bank v. Deluca, 97 So.3d 879, 884-85 (Fla. 2d DCA 2012). It was undisputed here that the correct lot and tract as well as street address were stated on both the note and the mortgage, and in addition the mortgage listed the parcel identification number.

In light of the foregoing, the final order denying Bayview’s action for foreclosure and entering a money judgment on the note is reversed, and this cause is remanded for entry of a judgment of foreclosure in favor of Bayview.

REVERSED and REMANDED.

ROBERTS and KELSEY, JJ., CONCUR.

      . The final order also dismissed Bayview’s claim for deed reformation (Count II of second amended complaint) and did not dispose of Bayview’s claim for mortgage reformation (Count III of second amended complaint). However, Bayview does not challenge these aspects of the final order.

      . Despite the filing of the corrected deed, Bayview’s second amended complaint retained a count for reformation of the deed. This count was properly deemed moot by the general magistrate, dismissed by the trial court, and such dismissal is hot challenged on appeal.


author: BADALAMENTI, Judge.

text:
    RBS CITIZENS N.A., Appellant, v. Douglas S. REYNOLDS a/k/a Douglas Reynolds and Ruth A. Reynolds, Appellees.
    Case No. 2D16-735
    District Court of Appeal of Florida, Second District.
    Opinion filed December 8, 2017
    .David Rosenberg, and Robert R. Edwards, of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellant.
    Mark P. Stopa of. Stopa Law Firm, Tampa,' for Appellees.
   BADALAMENTI, Judge.

RBS Citizens N.A. filed a verified foreclosure complaint against homeowners Douglas and Ruth Reynolds. The- trial court entered a nonfinal order granting the Reynoldses’ motion to dismiss. We relinquished jurisdiction to allow the trial court to enter an appealable, final order. The trial court subsequently entered an order dismissing RBS’s complaint, without leave to amend, solely on the basis that RBS’s certification of possession of the original promissory note was not notarized. We reverse because the operative statute imposes no such notarization requirement.

Section 702.015(4), Florida Statutes (2015), requires a foreclosure, plaintiff in possession of the original promissory note to file under penalty of perjury a certification that it is in possession of the original promissory note:

If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, ■ that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. . .

(Emphasis added.) Section 702.015(6) gives a trial court discretionary authority to sanction the plaintiff for failure to comply with this requirement.

Here, contemporaneously with the filing of its foreclosure complaint on April 16, 2015, RBS filed its certification of possession of the original promissory note. The certification included the location of the note; the name, title, and signature of the individual giving the certification who personally verified such possession; and the time and date on which the possession was verified. Directly above the signature appeared the statement: “Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true.” ...

The trial court dismissed RBS’s complaint “solely because the [section] 702.015(4) Certification of Possession attached to Plaintiffs Complaint is not notarized, which could allow for false statements to be made.” Section 702.015(4), however, merely requires a certification of possession of an original promissory note to be filed “under penalty of perjury” and does not require the certification to be notarized. Cf. § 92.525, Fla. Stat. (2015) (providing that when a document must be verified by law, such verification generally may be accomplished by either notarization or by the signing of the following written ‘ declaration: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true” (alteration in original)); In re Amendments to Fla. Rules of Civil Procedure, 153 So.3d 258, 262 (Fla. 2014) (adding Florida Rule of Civil Procedure 1.115(c) to implement section 702.015(4), and amending'form 1.944(a) to add a new section entitled “Certification of Possession of Originar Note,” which contains the following written declaration: “Under penalties of perjury, I declare that I have read the foregoing Certification of Possession of Original Note and that the facts stated in it are true”). Because section 702.015(4) does not require notarization, the trial court erred by dismissing RBS’s verified foreclosure complaint. Accordingly, we reverse the order of dismissal and remand for further proceedings consistent withthis opinion.

Reversed and remanded.,

SILBERMAN and SLEET, JJ., Concur.


text:
    IN the INTEREST OF BABY GIRL M., a child. Family Creations, Inc., Petitioner, v. N.E.M. and C.W.M., Respondents.
    Case No. 2D17-1311
    District Court of Appeal of Florida, Second District.
    Opinion filed December 13, 2017
    Cheryl R. Eisen-Yeary, Delray Beach, for Petitioner;
    John P. Fleck, Jr., Bradenton, for Respondent C.W.M.
    No appearance for Respondent N.E.M.
   PER CURIAM.

The petitioner’s petition for -writ, of cer-tiorari is granted. Because C.W.M. is an “unmarried biological father,” as the term is defined in section 68.032(19), Florida Statutes (2016), and he did not file a notarized claim of paternity form with the Florida Putative Father Registry before the mother executed her consent for adoption and the petitioner filed the petition to terminate parental rights, he “is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.” § 63.062(2)(e), Fla. Stat. (2016); see also § 63.062(l)(b)(5) (“The status of the father shall be determined at the time of the filing of the petition to terminate parental rights and may not be modified ... for purposes of his obligations and rights under this chapter by .acts occurring after the filing of the petition to terminate parental rights.”). The trial court’s order granting C.W.M.’s motion to intervene is quashed. The trial court shall expeditiously rule on the petitioner’s motion to set final hearing.

Petition granted; order quashed.

NORTHCUTT, VILLANTI, and MORRIS, JJ., Concur.


author: HARRIS, J., Associate Judge.

text:
    Walter GOLDEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-330
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017

      James S. Purdy, Public Defender, and Sean K. Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, J., Associate Judge.

Walter Golden appeals the denial of his petition for discharge from involuntary civil commitment under the Civil Commitment of Sexually Violent Predators Act (commonly known as the “Jimmy Ryce Act”), sections 394.910-.932, Florida Statutes (2016) (hereinafter “the Act”). Golden argues that the trial court qpplied an. incorrect stahdard of proof at tpial and, in so doing, improperly shifted the burden, of proof from the State to Golden. We agree and reverse.

In 1990, Golden was convicted of six counts of Sexual Battery On a Child by a Person in Familial or Custodial Authority and eight counts of Lewd/Lascivious Assault Upon a Child, and he was sentenced to prison. Upon his release from prison in 2001, Golden consented to sex offender treatment and was transferred to the Florida Civil Commitment Center (“FCCC”). He subsequently withdrew his consent, and in 2004, a jury determined that Golden was a sexually violent predator. He was then involuntarily committed to the FCCC for long-term control, care, and treatment.

Following an annual review hearing in 2014, the trial court, pursuant to section 394.918(3), Florida Statutes, found probable cause to believe that it was safe for Golden to be at large and that, if discharged, Golden would not engage in acts of sexual violence. Following that probable cause determination, the trial court properly set the matter for trial.

A non-jury trial took place on December 19, 2016. In such trials, “the [S]tate bears the burden of proving, by clear and convincing evidence, that the [committed] person’s mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.” § 394.918(4), Fla. Stat. (2016). In the instant case, the State submitted three expert reports, each concluding that Golden no longer met the criteria for involuntary civil commitment and recommending his release. At no point did any witness testify, nor did the State ever argue, that if released, Golden would be likely to engage in acts of sexual violence.

Following the trial, the court found that the reports and evaluations submitted by the State were stale as a matter of law and, thus, not competent substantial evidence. The court then “rejected the conclusions in the reports of the three experts that it is now safe for [Golden] to be at large” and entered its final order denying Golden’s motion for release from involuntary civil commitment.

In reaching this conclusion, the trial court found that there was no competent substantial evidence to support a finding that Golden’s condition had so changed that it would be safe for him to be at large. This not only improperly shifted the burden to Golden, it reconfigured the finding that the court must make in order to deny release from involuntary civil commitment.

We reverse the final judgment in this case and remand for a new trial.

REVERSED AND REMANDED.

SAWAYA and BERGER, JJ., concur.


author: Per Curiam.

text:
    J.K., the Mother, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-1381
    District Court of Appeal of Florida, Fourth District.
    December 20, 2017
    Sean Conway, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Children’s Legal Services, Fort Lauderdale, for appellee.
    Matthew Wilson, Guardian Ad Litem Program, Sanford; and Beth Kathryn Roland, Pro Bono, Guardian Ad'Litem Program, Friedman & Friedman, P.A., Lake Mary, for Guardian Ad Litem Program.
   Per Curiam.

J.K. appeals a final judgment of termination of parental rights and raises multiple arguments regarding the grounds upon which termination was based. We agree with J.K. on one ground, but otherwise affirm.

The trial court based termination in part on a finding that the petitioner had established grounds for termination under section 39.806(l)(j), Florida Statutes (2015), which provides for termination of parental rights where “[t]he parent or parents have a history of extensive, abusive, and chronic use of alcohol or a controlled substance which renders them incapable of caring for the child, and have refused or failed to complete available treatment for such use during the 3-year period immediately preceding the filing of the petition for termination of parental rights.” J.K. argues that there was no evidence of her refusal or failure to complete available treatment within the three-year period immediately preceding the filing of the petition. We agree.

The Department of Children and Families and the Guardian Ad Litem contend that an Aftercare/Family Support Plan filed with the court establishes that services were made available to J.K. But the record leaves it unclear whether anyone spoke to J.K. about the plan or otherwise communicated it to her. The plan is not signed by J.K., even though there is a space provided for her signature. Because there was no clear and convincing evidence that J.K. refused or failed to complete available treatment during the three-year period immediately preceding the filing of the petition, the’trial court erred in basing termination on this ground. We remand for the trial court to amend the termination judgment’ to exclude section 39.806(1)0) as a ground for termination.

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

Ciklin and Klingensmith, JJ., and Belanger, Robert E., Associate Judge, concur.


text:
    Christan STARKES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0479
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Christan Starkes, pro se; Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J.. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Christan Starkes appeals the denial of his original and supplemental rule 3.850 motions. The motions, filed in April and May 2016; challenged convictions entered on May 3, 2012, The trial court concluded the rule 3.850 motions were filed more than two years after the convictions became final, meaning they were untimely. See. Fla. R. Crim. P. 3.850(b) (establishing two-year deadline). But because Starkes appealed the two convictions (see Case No. 1D13-4795), the clock did not start running until this court affirmed and the mandate issued in March 2015. See Knowles v. State, 41 So.3d 332, 333 (Fla. 1st DCA 2010). Thus, Starkes’s rule 3.850 motions were timely filed in 2016. We therefore reverse and remand so that the trial court can address the motions on their merits.

REVERSED and REMANDED.

B.L. THOMAS, C.J., and OSTERHAUS and WINSOR,' JJ., CONCUR.

       Starkes. appealed after’ the court denied his motion to withdraw plea. Cf. Fla. R. App. P. 9.140(b)(2) (authorizing certain direct appeal's from' guilty pleas). The State argues'that ., Starkes’s motion to withdraw plea was not timely filed, but the State cites to "the wrong motion. Starkes filed a timely motion to withdraw plea in June 201?, which was' the subject of his earlier appeal, His later, untimely motion, is not at,issue.


author: WINSOR, J.

text:
    Chad A. BUTLER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0764
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017

      Chad A. Butler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   WINSOR, J.

The State charged Chad Butler with felony battery, false imprisonment, and criminal mischief. The first two charges were third-degree " felonies, and the last was a second-degree misdemeanor. As part of a plea agreement, Butler pleaded no contest to all three in exchange for a sentence of eighteen months’ prison followed by five years’ probation. He now appeals the trial court’s denial of his rule 3.800' motion, arguing that his sentences were illegal because they exceeded the statutory limit. But he is not entitled to the relief he seeks, so we affirm.

Butler is correct on several points. He correctly notes that the longest permissible sentence for a third-degree felony is five years. § 775.082(3)(e), Fla. Stat. (2015). With a split sentence (incarceration followed by probation) the total time cannot exceed five years. See Darling v. State, 886 So.2d 417, 418 (Fla. 1st DCA 2004). And Butler is right that trial courts cannot impose sentences exceeding statutory limits, even if the sentences follow negotiated jilea agreements. See Costin v. State, 46 So.3d 96, 97 (Fla. 1st DCA 2010); Darling, 886 So.2d at 418. Most importantly, Butler is correct that the trial court’s ’ written orders impermissibly imposed separate, identical sentences of eighteen months’ prison plus five years’ probation on each felony count.

But we cannot agree with Butler that he is entitled to a new sentence eighteen months shorter than what he agreed to and received. At the time, of his agreement, Butler faced a maximum total sentence of eleven years’ incarceration: two consecutive five-year sentences for the felonies and one year for the misdemeanor. See § 775.082(3)(e), (4)(a), Fla. Stat. (2015). His negotiated agreement was far below that maximum. Although the trial court could have (and should have) structured the sentences to comply with both the statutory limits and the plea agreement by using shorter, consecutive sentences, its failure to do so does not mean we must reduce Butler’s sentence to less than he bargained for. Cf. Shanks v. State, 429 So.2d 1366, 1367 (Fla. 1st DCA 1983) (affirming denial of motion to vacate judgment and sentence arising from negotiated plea agreement because “it affirmatively appears from the record that the defendant was sentenced to exactly that for which he bargained”). Had the trial court properly structured the sentences, Butler would face the same total sentence he agreed to — the same total sentence he faces now — and there would be no question about its legality. Yet Butler’s rule 3.800 motion did not ask the trial court to restructure his sentence by imposing consecutive sentences, a restructuring that would offer Butler little practical benefit. See Manning v. Tunnell, 943 So.2d 1018, 1020 (Fla. 1st DCA 2006) (recognizing general rule that an appellate court cannot address claims that were not raised below). What he sought instead was a reduced sentence, a sentence less than what the law allows and less that what he and the State agreed to. He is not entitled to that relief.

AFFIRMED.

WOLF and ROWE, JJ., CONCUR.

      . The written agreement called for time served for the misdemeanor. It also required Butler to pay restitution, complete anger management counseling, and apologize to his victim.

      . The court orally pronounced one total sentence of eighteen months' prison and five years’ probation, making no distinction between the two felony counts. This, notwithstanding the requirement “[a] sentence must be imposed for each offense.” Fla. R. Crim. P. 3.701(d)(12); see also Plummer v. State, 935 So.2d 35, 37 (Fla. 1st DCA 2006) (citing Fla. R. Crim. P. 3.701(d)(12) and directing that "[o]n remand, the trial court must announce a separate sentence on each count”).


text:
    Jay BARRINGER, Petitioner, v. FLA. DEPT. CORR., Respondent.
    CASE NO. 1D17-3915
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Jay Barringer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Jay Barringer has filed a petition for writ of habeas corpus claiming that he was being illegally held for a non-existent crime. We dismiss the petition as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004) (habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postcon-viction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his Pasco County conviction and sentence, this Court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Therefore, because petitioner’s repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Pasco County Circuit Court case numbers 00-CF-001041 and 00-CF-001042. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing, of The Florida Bar. Petitioner is warned that any filings that violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes.

DISMISSED.

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


text:
    Tawa MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1990
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017.
    Tawa Montgomery, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm the denial of grounds one, two, three and five. However, we reverse and remand the denial of ground four for further proceedings.

The appellant was convicted of being a felon in possession of a firearm after a jury trial and sentenced to 15 years in prison. In ground four of his postconviction motion, the appellant alleges that he rejected a favorable 3-year plea offer based on counsel’s mistaken advice that a 3-year term was the maximum he could receive if he went to trial and was convicted. He alleges that counsel did not tell him that if, convicted he faced the possibility of a 15-year sentence.

The appellant’s claim is facially sufficient. He properly alleged deficiency when he alleged counsel told him he could receive a maximum sentence of 3 years in prison even if convicted after trial, and failed to advise him of the 15-year statutory maximum he actually faced. He also properly alleged prejudice by alleging that he would have taken that offer, the state would not have withdrawn the offer, the trial court would have accepted it, and his sentence under the plea would have been less severe. See Alcorn v. State, 121 So.3d 419, 430 (Fla. 2013) (citing Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), which provided that to establish prejudice based upon misadvice in connection with a plea offer, a defendant must allege that “(1) he ... would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe”). Thus, the trial court could only deny the claim without an evidentiary hearing if it is refuted by the record. The trial court rejected the appellant’s claim based on a determination that (1) the record indicated the appellant wanted to go to trial and would therefore not have accepted the plea, as evidenced by his assertions of innocence and his request for counsel to investigate the charge,, conduct discovery and investigate witnesses, and (2) the court would not have accepted the plea, as evidenced by the fact that it sentenced the appellant to the maximum term, the appellant had’ 6 prior felonies, and the trial court stated that felons possessing firearms was a serious crime. We disagree with the trial court’s conclusion. Nothing in the record before this Court conclusively demonstrates that the appellant would still have rejected the plea had he been properly informed, or that the trial court would have rejected it: Merely asserting his innocence and asking counsel to investigate and challenge the evidence does not prove that the appellant would have rejected a 3-year plea deal had he been informed of the 15-year sentence he was facing, Likewise, the fact that the trial court imposed the maximum sentence and felt felons possessing a firearm is a serious offense does not prove it would have rejected a 3-year plea deal. Thus, we reverse and remand the denial of ground four for the trial court to attach other portions of the record conclusively demonstrating the appellant is not entitled to relief or to conduct an evidentiary hearing..

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

B.L. THOMAS, C.J., and JAY and M.K, THOMAS,' JJ., CONCUR.

       The trial judge who ruled on the postconviction motion was not the same judge who imposed the appellant’s sentence.


text:
    Charles BISHOP, Petitioner, v. Melinda COONROD, Chair of the Florida Commission on Offender Review, Respondent.
    CASE NO. 1D17-1037
    District Court of Appeal of Florida, First District.
    Opinion filed December 27, 2017
    Gary L. Luke and Nathan R. Ross, Orange Park, for Petitioner.
    Rana Wallace, General Counsel, and Mark J. Hiers, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Although the lower court found Bishop’s mandamus petition to be time barred under section 95.11(5)(f), Florida Statutes, we conclude that the petition was timely filed within one year of the Florida Commission on Offender Review’s action on March 16, 2016. See Blue v. Fla. Comm’n on Offender Review, 201 So.3d 808 (Fla. 1st DCA 2016). However, we further conclude that the lower court afforded due process and observed the essential requirements of law when it also denied the mandamus petition on the merits. Accordingly, we deny the petition for writ of certiorari on the merits, but do so without prejudice to the Commission’s considering the 2015 “corrected judgment” at Bishop’s subsequent interview scheduled for 2020.

B.L. THOMAS, C.J, and JAY and M.K. THOMAS, JJ., CONCUR.


text:
    David BROWN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2007
    District Court of Appeal of Florida, First District.
    Opinion filed December 27, 2017
    M. Blair Payne, Public Defender, Elise Blair Yates, Assistant Public Defender, Perry, for Petitioner.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Tallahassee, for Respondent.
   PER CURIAM.

DENIED on the merits. See Early v. State, 223 So.3d 1023, 1024 (Fla. 1st DCA 2017) (rejecting appellant’s reasoning regarding the repudiation of his “Stand Your Ground” defense, i.e., “that the evidence must be considered undisputed in his favor because the victim died, and because there were no eyewitnesses to the crime, leaving only his own testimony”).

WOLF, WINOKUR, and JAY, JJ., CONCUR.


text:
    Edward Michael KELLY, Appellant, v. CHEZ SOIS HOMEOWNER’S ASSOCIATION, INC., a Corporation, Appellee.
    CASE NO. 1D17-1619
    District Court of Appeal of Florida, First District.
    Opinion filed December 27, 2017
    David H. Abrams, Tallahassee, for Appellant.
    Kristin A. Gardner of Dunlap & Ship-man, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Because we agree with the appellee that the circuit court’s order below is not a non-final order that determined “the right to immediate possession of property,” we lack jurisdiction to hear this appeal. See Fla. R. App. P. 9.130(a)(3)(C)(ii).

DISMISSED.

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


text:
    Valerie Hays BROWN, Former Wife, Appellant, v. Ted K. BROWN, Former Husband, Appellee.
    No. 1D17-3893
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Jeanine B. Sasser, Jacksonville, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Dismissed. See Pool v. Bunger, 43 So.3d 837 (Fla. 1st DCA 2010) (dismissing appeal where issues decided in order on appeal were related to the remaining issue concerning support arrearages).

Makar, Osterhaus, and Winokur, JJ., concur.


author: PER CURIAM:

text:
    STATE EX REL. Charles MCDONALD v. STATE of Louisiana
    No. 16-KH-1802
    Supreme Court of Louisiana.
    01/13/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| Reconsideration granted; writ denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated at least four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La. C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of'a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


author: GENOVESE, J.,

text:
    IN THE MATTER OF THE SUCCESSION OF WILLIAM EWELL COOPER, JR.
    NO. 2017-CC-1700
    Supreme Court of Louisiana.
    12/15/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

GENOVESE, J.,

would grant and assigns reasons.

hi disagree with the majority’s denial of this writ. The appellate court reversed the trial court and ruled that “because more than five years have elapsed since the decedent’s will was filed for probate, Evan Cooper’s claims against defendants-in-intervention, Sarah Cooper and Burton Cooper, are prescribed.” In the Matter of the Succession of Cooper, Jr., 17-310, p. 1 (La. App. 1 Cir. 7/7/17), 2017 WL 2889247 (emphasis added). In my view, the five-year liberative prescriptive period for annulment of a testament pursuant to La.Civ. Code art. 3497 is five years from the date of the probate (not filing) of the will. See Succession of Dancie, 191 La. 518, 186 So. 14 (1939), and Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2 Cir. 1993), writ denied, 93-2655 (La. 1/7/94), 631 So.2d 445. The filing of the will is of no moment. It is the probate of the will which gives it ef-feet; hence, the five-year prescriptive period for annulment should commence upon probate, not filing of the will.


text:
    STATE of Louisiana v. Brandon S. BUTLER
    No. 17-KK-1533
    Supreme Court of Louisiana.
    12/15/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER !

PER CURIAM:

11Writ granted. “It is axiomatic that the limitation on First Amendment freedoms must be ‘no greater than is essential to the protection of the particular governmental interest involved.’ ” United States v. Brown, 218 F.3d 415, 429 (5th Cir. 2000) (quoting Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974)). We find that the gag order in the present case is not sufficiently- narrow to eliminate only that speech having a substantial, likelihood of materially impairing the district court’s ability to conduct a fair trial. Furthermore, it does not comport with the “general First Amendment principle that restrictions on speech should employ the least restrictive means possible.” Id. at 430. Accordingly, we vacate the district court’s order and remand for further proceedings.

REVERSED AND REMANDED