author: ROTHENBERG, J.

text:
    UNIVERSITY HOUSING BY DAYCO CORP., Appellant, v. Rogelio FOCH, etc., Appellee.
    No. 3D16-1268
    District Court of Appeal of Florida, Third District.
    Opinion filed May 17, 2017
    Rehearing Denied June 15, 2017

      Coffey Burlington, P.L., and Robert K. Burlington and Daniel F. Blonsky, for appellant.
    DLA Piper LLP, and Ryan D. O’Quinn and Michael A. Greenfield,, for appellee.

      Before ROTHENBERG, SÁLTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

University Housing by Dayco Corporation (“UHDC”) appeals the trial court’s entry of a final summary judgment in favor of Rogelio Foch (“Foch”), as guardian of the person and property of Redovaldo Foch, on UHDC’s breach of contract and unjust enrichment claims. For the reasons that follow, we affirm.

BACKGROUND

On May 17, 2013, Foch entered into a Memorandum of Agreement (“MOA”) with Dayco Properties, LLP (“Dayco”). Pursuant to Article II of the MOA, Dayco was required to file the Articles of Organization for a new development company, obtain financing to construct a fifteen story student housing complex, and obtain a payment and performance bond in favor of the development company. Contemporaneous with Dayco’s funding of the construction loan, the MOA obligates Foch to transfer title of real property owned by Foch’s ward (“the Guardianship Property”) to the new development company. However, on June 28, 2013, prior to forming and filing the Articles of Organization for a development company or obtaining the funding required under the MOA, Dayco purportedly assigned its interest in the yet to be formed development company to UHDC.

On July 3, 2013, Luis D’Agostino, the sole shareholder and sole director of UHDC, filed the Articles of Organization of the new development company, the Suites at University City, LLC (“The Suites”). Neither Dayco nor UHDC has provided the funding for the project, as required by the MOA.

Despite'the failure of either Dayco or UHDC to fund the construction project, UHDC demanded' that Foch convey the Guardianship Property to The Suites and invoked Article III of the MOA, which permits Dayco or, based on the assignment, UHDC to “dispose” of its membership interest in the development company, The Suites, and to require Fóch to likewise “dispose”' of his membership interest in The Suites. Foch'refused to convey the Guardianship Property to The Suites based on, among other grouhds, Dayco’s and/or UHDC’s failure to fund the construction of the project. '

On September 2, 2014, UHDC filed suit against Foch, and in its second amended complaint sought specific performance of the MOA based on Foch’s failure to convey the Guardianship Property to The Suites. In the alternative, UHDC pled an unjust enrichment claim based upon the alleged benefit UHDC claims Foch has received as a result of UHDC’s efforts regarding the project. Foch filed a motion for summary judgment on all of UHDC’s claims, arguing, among other things, that: (1) UHDC lacked standing to bring a breach of contract action; (2) Foch was not obligated to transfer the Guardianship Property because UHDC failed to comply with conditions precedent in the MOA; and5 (3) UHDC’s claim for unjust enrichment fails because Foch did not receive any benefit from UHDC.

The trial court, interpreting the MOA, found that “the sine qua non of [Foch’s] performance under the MOA was the conveyance of real property contingent upon performance of the enumerated specified conditions precedent by Dayco for purposes of complying with the requirements of the Capital Contribution provisions of the MOA.” However, instead of filing the Articles of Organization for The Suites and performing its capital contribution obligations by securing funding for the project, Dayco assigned its interests to UHDC. The trial court also found that the purported assignment from Dayco to UHDC was invalid because, at the time of the assignment, Dayco’s interest in The Suites did not exist and UHDC had not been created. Accordingly, the trial court concluded that Dayco never performed its obligations under the MOA and that UHDC lacked standing to bring this suit. The trial court additionally found that UHDC could not prevail on its unjust enrichment claim because all of the alleged benefits benefited The Suites and/or UHDC, not Foch, because The Suites is solely owned by UHDC. The trial court thus entered an order granting final summary judgment as to all of UHDC’s causes of action, and UHDC appeals that order.

ANALYSIS

We review the trial court’s ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”). Where the resolution of the issues in the lawsuit depends on the construction and legal effect of a contract, “the question at issue is essentially one of law only and determinable by entry of summary judgment.” Id. at 131 (quoting Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1096 (Fla. 1st DCA 1999)).

“Under well established contract law, a condition precedent is a condition which calls for the performance of an act after a contract is entered into, upon the performance or happening of which its obligation to perform is made to depend.” Racing Props., L.P. v. Baldwin, 885 So.2d 881, 882-83 (Fla. 3d DCA 2004). “A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006). “Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty.” Land Co. of Osceola Cty., LLC v. Genesis Concepts, Inc., 169 So.3d 243, 247 (Fla. 4th DCA 2015) (emphasis in original) (quotation omitted).

In the instant case, the MOA contains the following conditions precedent: “Upon execution of this AGREEMENT •[Dayco] shall cause to be filed ... Articles of Organization for the Development Company, and to thereafter cause both private equity investment and commercial financing to be funded (‘CONSTRUCTION LOAN’) sufficient to complete the PROJECT in the manner agreed by the PARTIES.” Section 2.02(B) contains a list of obligations which are to be performed “Contemporaneous with funding the CONSTRUCTION LOAN.” (emphasis added). One of the obligations to be performed contemporaneous with the funding of the construction loan is Foch’s transfer and conveyance of the Guardianship Property to the development company.

Based on these unambiguous provisions in the MOA, the trial court correctly concluded that Dayco’s obligation to secure financing for the project was the sine qua non of Foch’s performance under the MOA. Specifically, Foch is not required to transfer the Guardianship Property until Dayco secures full funding for the project. The record reflects, however, that Dayco failed to perform its funding obligation, and instead assigned its interests to UHDC. UHDC has also failed to fund the project pursuant to the MOA. The failure to perform this condition precedent in the MOA by either Dayco or UHDC precludes recovery for breach of contract against Foch for his failure to transfer the Guardianship Property.

Although neither UHDC nor Dayco obtained the requisite funding for the project, UHDC argues that Section 3.02(F) of the MOA provides an alternative to the funding of the project. Section 3.02(F), provides that Dayco (and thus, UHDC) may dispose of its interest by selling the project, and requires Foch to likewise dispose of his interest in the project. Thus, UHDC contends that it can sell the project, even if the project has not been fully funded, and it can force Foch to convey the Guardianship Property to The Suites.

Section 3.02(F), however, only provides for the disposition of the parties’ “membership interests” in The Suites. Section 2.02(B)(4) specifies that Foch is to receive his membership interest contemporaneous with Dayco’s performance of its obligation to obtain funding for the project. Because the project has not been funded, Foch has not obtained a membership interest in The Suites, and thus he has no membership interest to convey. Based on the plain language in the MOA, Section 3.02(F) is only triggered after the initial funding of the project occurs.

As to UHDC’s claim for unjust enrichment, the trial court correctly concluded that any efforts made by UHDC inured to the benefit of The Suites, which is solely owned by UHDC. Because there is no evidence that Foch has received any benefit from UHDC’s efforts, the trial court properly granted summary judgment as to UHDC’s unjust enrichment claim. See Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 404 (Fla. 3d DCA 2009).

CONCLUSION

Because neither Dayco nor UHDC complied with the MOA’s condition precedent of securing the requisite funding for the project, Foch was not required to transfer the Guardianship Property. Accordingly, Foch cannot be liable for breach of contract based upon his failure to transfer the Guardianship Property. Additionally, we find that summary judgment was properly entered on UHDC’s unjust enrichment claim. UHDC’s remaining arguments are without merit.

Affirmed.

      . During the pendency of this appeal, Redo-valdo Foch passed away, and Rogelio Foch, as personal representative of Redovaldo Foch’s estate, has been substituted as the Ap-pellee.

      . 'Although the trial court also ruled on other ‘ motions for summary judgment in the same order, those rulings are ' not before us on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julius Latavius SIMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-382
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017.
    Rehearing Denied June 8, 2017

      Julius Latavius Simpson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. We treat this appeal as one taken from an order denying a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and affirm the-trial court’s ruling below.


author: ROTHENBERG, J. SUAREZ, C.J.

text:
    Diya SALAME, Petitioner, v. 1ST PRIORITY RESTORATION, INC., Respondent.
    No. 3D16-2200
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017
    Rehearing Denied June 20, 2017

      Jay M. Levy, P.A., and Jay M. Levy, for petitioner.
    Perry & Neblett, PA, and David Avel-lar Neblett and John Wynn, for respondent.
    Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

- Diya Salame (“Salame”) petitions- this Court to grant second-tier certiorari relief and quash the circuit court appellate division’s (“appellate division”) per curiam af-firmance of the -county court’s order awarding attorney’s fees to 1st Priority Restoration, Inc. (“1st Priority”). Because we do not find any miscarriage of justice, we deny the petition.

BACKGROUND

This dispute first arose in 2007, when 1st Priority provided Salame with water extraction services following a flood that damaged Salame’s property. Salame signed a work authorization contract (“the contract”), which provides for attorney’s fees in the event that 1st-Priority prevails in a collection lawsuit. The contract also contains an - interest provision, which provides that in the event of nonpayment, Salame will be responsible for service charges in the amount of 1.5% per month or the highest - amount allowed by law.

Salame ultimately failed to pay the invoice and claimed, among other things, that one of the rugs that 1st Priority cleaned and returned pursuant to the contract had been damaged by 1st Priority in the process. 1st Priority subsequently filed its complaint in circuit court against Salame for breach of contract, quantum meruit, civil theft, and check fraud. Sa-lame answered the complaint and alleged, inter alia, an affirmative defense that any claim or judgment that 1st Priority obtains against Salame should be set-off by the loss of and damage to Salame’s property for which 1st Priority is responsible. Ultimately, 1st Priority moved for and obtained, an order granting summary judgment in its favor as to the breach of contract claim, but the circuit court reserved ruling on the issues of damages and the amount of attorney’s fees owed in connection with the breach of contract. Salame subsequently moved for , and obtained an order granting summary judgment in his favor on 1st Priority’s remaining claims because the claims were all .barred by the economic loss rule. In the same order, the circuit cpurt transferred the case to county court because the remaining claims did not meet the circuit court’s jurisdictional threshold of $15,000.

Once in county court, 1st Priority moved for the entry of a final judgment and to determine attorney’s fees. After a lengthy special set hearing on 1st Priority’s motion, the county court entered an order: (1) granting final judgment for 1st Priority; (2) finding that 1st Priority “is the prevailing party on all significant issues’in this litigation and is considered the prevailing party for attorney’s fees and costs and is entitled to reasonable attorney’s fees and eosts” from Salame pursuant to the • contract; and (3) determining the amount that Salame owes 1st Priority in attorney’s fees and costs. Salame appealed this order to the appellate division, arguing, in part, that the county court erred by determining which party was the prevailing party in the litigation prior to adjudicating Salame’s entitlement to a set-off. The appellate division issued a per curiam affirmance of the county court’s order, Thereafter, Salame filed the instant petition for second-tier certiorari review of the appellate division’s affirmance.

ANALYSIS

Although this litigious conflict has been ongoing for the better part of a decade, the case is before this Court on a second-tier certiorari petition. Thus, this court’s review is very limited. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (stating that the district court’s decision on a petition for certiorari seeking review of the circuit court’s appellate decision is limited to whether thé circuit court “departed from the essential requirements of the law”); City of Ctr. Hill v. McBryde, 952 So.2d 599, 601 (Fla. 5th DCA 2007) (“A ruling constitutes a departure from the essential requirements of law when it amounts to a violation of a clearly established principle of law resulting in a miscarriage of • justice.”) (internal quotation omitted). Specifically, the limited issue in this petition for second-tier certiorari review is whether the trial court violated “a clearly established principle of law resulting in a miscarriage of justice” by finding that 1st Priority is the prevailing party on all substantial issues in the litigation while Salame’s affirmative defense of set-off is still pending. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010) (quoting Combs v. State, 436 So.2d 93, 96 (Fla. 1983)).

As a general rule, a trial court cannot determine the prevailing party in the litigation without first resolving all of the substantial pending issues in the litigation. Kapila v. AT & T Wireless Servs., Inc., 973 So.2d 600, 603 (Fla. 3d DCA 2008) (holding that “[b]eeause stated causes of action remain in the instant lawsuit, it is impossible to determine the ‘substantially prevailing’ party until such time as all pending counts are resolved”); Burnstein v. 5838 Condo., Inc., 430 So.2d 572, 572 (Fla. 3d DCA 1983) (“There can be no prevailing party for the purpose of awarding attorney’s fees until there is an end to the litigation as by judgment or other dispositive order.”) (emphasis added). Thus, the county court erred by determining the prevailing party prior to adjudicating the pending set-off issue.

However, this error has not resulted in a miscarriage of justice, warranting the exercise of our certiorari power. Custer Med. Ctr., 62 So.3d at 1093 (stating that “this Court has definitively expressed that certiorari cannot be used to grant a second appeal to correct the existence of mere -legal error”); City of Ctr. Hill, 952 So.2d at 601 (stating that “[s]econd-tier certiorari review is not a matter of right”). The record reflects that the initial invoice for ■ the services performed, plus the amounts accrued pursuant to the contractually required 1.5% per month service charge, exceeds even the highest possible valuation Salame alleges for his set-off against the judgment. Even if Salame were to.succeed in his set-off defense, he would not prevail in the litigation.

In sum, even after viewing the facts and all of the reasonable inferences in the light most favorable to Salame, there is no way for Salame to prevail based on his set-off defense. Accordingly, although the trial court erred by prematurely determining the prevailing party in this litigation, we conclude that such error has not resulted in a miscarriage of justice. We, therefore, deny the petition. We find that Salame’s remaining arguments are without merit, and therefore decline to specifically discuss them.

Certiorari denied.

EMAS, J., concurs.

SUAREZ, C.J.

(dissenting)

I respectfully dissent.

This matter arises out of an attorney’s fee dispute of a very highly contested matter originating in county court and ending up after appeal in the circuit court Appellate Division. That panel affirmed a final judgment of the county court awarding 1st Priority Restoration its attorney’s fees and costs. It therefore comes to us on second tier certiorari and the majority is correct that our standard of review is extremely limited. Applying that limited standard of review I conclude the petitioner correctly asserts that the Circuit Court Appellate Division’s per curiam affirmance of the county court’s decision departed from the essential requirements of the law.

The majority correctly points out that the county court determined the prevailing party without first determining the merits of the underlying set-off issues to arrive at appropriate damages, in order to then determine appropriate attorney’s fees. This matter has already been before us on appeal. In dismissing that appeal for lack of jurisdiction, this Court concluded that the damages amount (invoice amount already awarded, less any setoff for the alleged failure to return property) had not yet been adjudicated and reduced to a final judgment. When remanded, the county court failed to make such evidentiary findings before determining the prevailing party and granting fees.

The majority re-weighs the record evidence: “even after viewing the facts and all of the reasonable inferences in the light most favorable to Salame,” and arrives at the factual conclusion that “even if Salame were to succeed in his set-off defense, he would not prevail in the litigation.” Although the majority may be correct in that factual analysis, it is an analysis we cannot make under our second tier standard of review. This Court is limited to determining whether the appellate decision of the circuit court has violated a clearly established principle of law resulting in a miscarriage of justice. A district court should grant second-tier certiorari “only when there has been a violation of a clearly established principle of law resulting in the miscarriage of justice.” Wekiva Springs Reserve Homeowners v. Binns, 61 So.3d 1190, 1191 (Fla. 5th DCA 2011) (quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010); United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009).

Because the county court did not make the required factual findings regarding set-off prior to determining the prevailing party for purposes of attorney’s fees, I consider this to be a violation of a clearly established principle of law resulting in the miscarriage of justice. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995) (“A departure fi’om the essential requirements of law is equivalent to a failure to apply the correct law.”).

I would grant the petition for certiorari, reverse the circuit court appellate decision and remand to the county court to make the required factual findings regarding set-off prior to determining the prevailing party and to reduce those issues to a final judgment.


author: FERNANDEZ, J.

text:
    BEACON HILL HOMEOWNERS ASSOCIATION, INC., et. al., Appellants, v. COLFIN AH-FLORIDA 7, LLC, Appellee.
    No. 3D16-1185
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017.
    Rehearing Denied June 23, 2017
    Paige Law Group, P.A., and Robert E. Paige, for appellants.

      Law Offices of Jonathan J. Alfonso, P.A, Jonathan J. Alfonso and Carolina Maria Dutriz, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Beacon Hill Homeowners Association, Inc. and Old Cutler Lakes by the Bay Community Association, Inc. (collectively, the Associations) appeal the trial court’s summary final judgment in favor of Coffin Ah-Florida 7, LLC, as well as the respective parties’ motions for rehearing or reconsideration. We affirm, adopting the Fourth District Court of Appeal’s decision in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., 169 So.3d 145 (Fla. 4th DCA 2015).

On October 24, 2011, JPMorgan Chase Bank, National Association filed a foreclosure action in Miami-Dade County Circuit Court against a property owner. On February 10, 2015, the Miami-Dade County Clerk of the Court issued the Certificate of Title to appellee, Coffin AH-Florida 7, LLC, who was the successful bidder of the underlying property at the foreclosure sale. Pursuant to the recorded declarations of each associations, Coffin was not liable for any amounts owed by the previous owners of the property.

For example, Beacon Hill’s Declaration provided:

Section 9. SUBORDINATION OF THE LIEN TO MORTGAGES. The lien of the assessments provided for herein shall be a lien superior to all other liens save and except tax liens and mortgage liens, provided said mortgage liens are first liens against the property encumbered thereby, subject only to tax liens, and said first mortgage secures an indebtedness which is amortized on monthly or quarter-annual payments over a period of not less than ten (10) years. The sale or transfer of any Lot pursuant to the foreclosure or any proceeding in lieu thereof of a first mortgage meeting the above qualifications, shall extinguish the lien of such assessments, as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.

Old Cutler’s Declaration stated:

Section 10: Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be a lien superior to all other liens save and except tax, liens and mortgage liens, provided said mortgage liens are first liens against the property encumbered thereby, subject only to tax liens, and said first, .mortgage secures an indebtedness which is. amortized on monthly or quarter-annual payments over a period of not less than ten (10) years. The sale or transfer of any Lot pursuant to the foreclosure or any proceeding in lieu thereof of a first mortgage meeting the above qualifications, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof, ■

In May 2015, Coffin received a claim of lien letter from each association. The first letter claimed Coffin owed $7,463.25 to Beacon Hill for $1,268.25 in assessments, $6,025.00 in attorney’s fees, and $170.00 in costs. The second lien letter claimed Coffin owed $8,072.40 to Old Cutler for $1,998.40 in assessments, $6,024.00 in attorney’s fees, and $50.00 in costs. Coffin filed a complaint to quiet title and for a declaratory judgment, contending that the Declaration prohibited collection of the amounts the Associations claimed were owed.

The trial court held a hearing on Colfin’s Motion for Summary Judgment. Colfín contended that the Declarations prohibited the collection of the amounts the Associations claimed were owed. The Associations argued that language in the Declarations allowing the Associations to exercise any powers afforded to a corporation amounted to what is referred to as “Kaufman” language, referencing Kaufman v. Shere, 347 So.2d 627 (Fla. 3DCA 1977). The Associations further argued that their Declarations incorporated future changes in the law, and thus the joint and several liability provision of section 720.3085(2)(b) Florida Statutes (2016) was incorporated into the terms of their Declarations. At the conclusion of the hearing, the trial court ruled in favor of Colfin, finding that the Declaration of the Association of each of the associations controlled. The Associations’ separate motions for rehearing were denied. The Associations now appeal these rulings.

The standard of review on appeal for a motion for summary judgment based on a quiet title action is de novo. Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000). The standard of review on appeal of a motion for rehearing is abuse of discretion. Villas at Laguna Bay Condo. Assn. Inc. v. Citimortgage, Inc., 190 So.3d 200 (Fla. 5th DCA 2016).

The Associations contend that they are allowed to avoid the Declarations which govern them. We disagree and follow our previous ruling in Garden of Kendall Condominium v. Valores Agregados, 187 So.3d 252 (Fla. 3d DCA 2016), which adopted the Fourth District Court of Appeal’s decision in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., 169 So.3d 145 (Fla. 4th DCA 2015), by citation in a per curiam affirmance.

In Pudlit, the plaintiff/appellant Pudlit 2 Joint Venture, LLP purchased two properties, at a foreclosure sale, located within communities maintained by defendant/ap-pellee Westwood Gardens Homeowners Association, Inc. Westwood demanded payment for all unpaid association assessments left unpaid prior to Pudlit’s ownership. Id. at 147.

Pudlit sued Westwood for breach of declaration and declaratory relief, alleging that any liens for past due assessments were extinguished by the foreclosure judgments pursuant to the terms of the association’s Declaration of Covenants, Conditions, and Restrictions. Id. Westwood cross-moved for summary judgment, arguing that section 720.3085, Florida Statutes (2013), mandated that Pudlit was jointly and severally liable with the prior owners for all unpaid assessments on the subject properties. Id. Pudlit contended that “section 720.3085 did not impose liability upon appellant, because the declaration’s express terms were not invalidated by the statute or waived by appellant, and imposition of the statute against the declaration’s express terms would unconstitutionally impair its contractual rights.” Id. The trial court denied Pudlit’s summary judgment motion and granted Westwood’s cross-motion. Id.

On appeal, the Fourth District Court of Appeal sided with Pudlit, stating:

The association’s argument that the legislature’s enactment of section 720.3085 amended the declaration is without merit. A declaration can be amended according to the procedure outlined within the declaration, or according to statute, by two-thirds’ approval of the homeowners. See Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1090 (Fla. 3d DCA 2014). Generally, “repeal or invalidation by implication [of restrictions and provisions in a declaration] is not favored and generally will not be presumed absent a clear legislative intent.” United States v. Forest Hill Gardens E. Condo. Ass’n, 990 F.Supp.2d 1344, 1349 (S.D. Fla. 2014). The declaration here provides the following amendment procedures:
[A]s long as Declarant controls the Association, the Declarant may make and file any amendment hereto required by the Declarant or by the Federal National Mortgage Association or Veteran’s Administration or Federal Housing Administration or Federal Home Loan Mortgage Corporation or any governmental body with jurisdiction over the Property, provided said amendment does not materially, adversely affect the rights of a Lot Owner, as determined solely by the Declarant, by an instrument executed only be the Developer. Such amendment need not be signed or executed in the manner otherwise provided for herein.
The only provisions in the declaration providing for automatic amendment based on legislative action are limited to amendments which are “required” by the plain language of the legislation. Nothing in the language of section 720.3085(2)(b) demonstrates that it is “required” to be adopted by Florida homeowners’ associations. Thus, the association cannot argue that section 720.3085, as enacted by the Florida legislature, automatically amended the association’s declaration.

The case before us is exactly on point with Pudlit. The joint and several liability of section 720.3085(2)(b) was not incorporated into the terms of the Associations’ Declarations. Accordingly, under the language adopted by the Associations in their Declarations, Colfin was not liable for any past due assessments, attorney’s fees, or costs of the prior owner when it purchased the property in question at the foreclosure sale, for the reasons set forth in Pudlit.

We thus affirm the trial court’s summary final judgment entered in favor of Colfin. We further affirm the trial court’s denial of Beacon’s motion for rehearing and reconsideration and the denial of Old Cutler’s motion for rehearing, as the trial court did not abuse its discretion in denying these motions.

Affirmed.

      . Section 720.3085((2)(b) provides that a third party purchasing a property is jointly and severally liable with the previous owner "for all unpaid assessments that came due up to the time of transfer of title.”

      . The Associations claim that language contained in their Declarations asserting that the Associations "have and exercise any and all powers, rights, and privileges which a corporation ... may now or hereafter exercise,” is Kaufman language. However, we do not agree because the language in the Declarations only references what constitutes the legal activities which the Associations can engage in pursuant to Chapter 617, which allows for not-for-profit corporations. As Coffin points out, in order for the Associations’ language to be considered Kaufman language, the Associations would have to specifically incorporate the Homeowner’s Association Act, as amended from time to time. However, there is no such language in the Associations’ Declarations.


author: BADALAMENTI, Judge.

text:
    Yancy Scott RICHARDS, Appellant, v. Krista L. WEBER, f/k/a Krista L. Richards, Appellee.
    Case Nos. 2D15-4586
    2D16-2162
    District Court of Appeal of Florida, Second District.
    Opinion filed May 24, 2017.
    . Karol Williams, of Karol K. Williams, P.A., Tampa, for Appellant.
    Mark A. Neumaier, Tampa, for Appel-lee.
   BADALAMENTI, Judge.

Yancy Scott Richards (Former Husband) appeals multiple aspects of the temporary alimony- award, the durational alimony award, the final judgment of dissolution, and the partial award of attorney’s fees and costs to his ex-wife, Krista L. Weber (Former Wife). We affirm as to all issues raised by Former Husband without comment, save for one—the trial court’s order that Former Husband pay 70% of Former Wife’s attorney’s fees and costs.

Section 61.16(1), Florida Statutes (2016), requires that the court consider “the relative financial resources of the parties” in-fashioning an award for attorney’s fees, suit money, and costs in a dissolution case. Our supreme court has explained that in evaluating whether an award of fees is appropriate, courts are to “look to each spouse’s need for suit money versus each spouse’s respective ability to pay.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997). As such, this court has explained that “the trial court cannot award fees based solely on disparity of income.” Arena v. Arena, 103 So.3d 1044, 1046 (Fla. 2d DCA 2013) (first citing Balko v. Balko, 957 So.2d 15, 16 (Fla. 2d DCA 2007); then citing Bohner v. Bohner, 997 So.2d 454, 457 (Fla. 4th DCA 2008)).

Here, the trial court, found that “Consistently throughout the parties’ eight (8) year marriage,” Former Husband earned approximately 70% of the parties’ combined gross annual income. The trial court then- ordered that Former Husband pay 70% of Former Wife’s attorney’s fees and costs as follows: “Based upon the parties’ disparate incomes the Respondent/Former Husband has the financial ability to contribute towards the Petitióner/Former Wife’s attorney fees and costs.”

The trial court abused its discretion by ordering Former Husband to pay 70% of Former Wife’s attorney’s fees and costs because, on the record before us, the trial court based its award solely on the relative incomes of the parties and did not indicate that it considered anything besides the parties’ disparate' incomes. See Balko, 957 So.2d at 16 (citing Stoler v. Stoler, 679 So.2d 837, 838 (Fla. 2d DCA 1996)).

Although the trial court may have considered the parties’ relative financial resources beyond their disparate income, such considerations are not apparent on the record before us. Thus,*, we-reverse the trial court’s award of attorney’s fees and costs. We remand to the trial court for reconsideration of its award of attorney’s fees and costs taking into consideration the overall- relative financial resources of, the parties and to make findings of fact that will allow for review of. its decision. See id. If necessary, the court may take additional evidence on this issue. See id. We affirm the trial court’s award of durational alimony and final judgment of dissolution in all respects.

Affirmed in part; reversed -in part; remanded with instructions.

WALLACE and KHOUZAM, JJ., Concur.


author: ORFINGER, J.

text:
    Craig JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-255
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017

      Craig Johnson, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Craig Johnson appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which allows a court “at any time to correct an illegal sentence ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief.” We reverse.

Following a jury trial, Johnson was convicted of possession of oxycodone (count 1) and possession of cocaine with intent to sell (count 3). The trial court sentenced Johnson to five years in prison on count 1 and fifteen years in prison on count 3, to be served concurrently. Johnson subsequently filed a partially successful motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which resulted in the trial court vacating Johnson’s conviction and sentence on count 3. Rather than face a retrial, Johnson entered a plea on that count and was sentenced to five yeafs in prison concurrent with any other active sentence. Shortly thereafter, Johnson filed the present rule 3.800(a) motion, arguing that when the trial court resentenced him on count 3, it improperly modified his sentence on count 1 to provide that his five-year sentence on count 1 was consecutive to any active sentence even though the court had originally sentenced him to five years in prison concurrent to any active sentence.

In response, the trial court entered an amended order on count 3, which sentenced Johnson to “5 yrs concurrent w/ct 1 but consecutive w/anytime [sic] currently serving.” The trial court then denied the rule 3.800(a) motion, disagreeing

that there was a “re-sentencing” on Count I. The Court’s statement regarding Count 1 was merely stating the obvious: that after Count III was vacated, Count I remained as 5 years in the DOC with CTS consecutive to his sentence in 2006-‘CF-265. Just as the Defendant has urged, Count I remained as originally sentenced and was untouched. Thus, the Defendant’s sentence is not illegal. (It is also noted that on November 28, 2016, rather than face a re-trial on Count III, the Defendant pleaded no contest to Count III and was resentenced on Count III to a 5 years [sic] term concurrent to Count I, but it is still consecutive to the sentence in case number 2006-CF-265.)

Johnson then served a motion for rehearing, arguing that the “judgment and sentence order clearly shows that defendant was sentenced to (5) years on count one to run concurrent to any currently sentence serving.” The motion was denied after the trial court concluded that rule 3.800 does not allow for a motion for rehearing. This appeal followed.

The State’s response does not address the merits of Johnson’s claim. Rather, the State incorrectly asserts the appeal is untimely. A motion for rehearing may be filed within fifteen days of the date of service of an order on a rule 3.800 motion. See Fla. R. Crim. P. 3.800(b)(1)(B) (“A party may file a motion for rehearing of any signed, written order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order.”). An additional three days is provided for service by mail, for a total of eighteen days. Fla. R. Crim. P. 3.070. “A. timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing.” Fla. R. Crim. P. 3.800(b)(1)(B).

In this case, the order denying the rule 3.800(a) motion was rendered on December 7, 2016. Thus, Johnson had until December 25, 2016, to serve a timely motion pursuant to the mailbox rule. However, December 25, 2016, was a Sunday, and December 26, 2016, was a court holiday. Hence, Johnson had until December 27, 2016, to timely serve his motion for rehearing. See Fla. R. Jud. Admin 2.514. The motion for rehearing reflects a prison mailing stamp of December 27, 2016, and was timely. The order denying the rehearing motion was rendered January 12, 2017, and the notice of appeal was timely filed on January 23, 2017. Consequently, the appeal is timely.

Turning to the merits of Johnson’s claim, when a defendant challenges one count in a postconviction motion and that count is vacated, the trial court is without authority to modify a sentence on an unchallenged count. See Fasenmyer v. State, 457 So.2d 1361, 1366 (Fla. 1984) (“We conclude that the concept of aggregate sentencing on interdependent offenses as it relates to a trial judge’s desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court.”); Hughes v. State, 177 So.3d 689, 693 (Fla. 5th DCA 2015) (en banc) (“[Wjhen the court is not effectuating the terms of a plea bargain, Fasenmyer precludes the restructuring of a sentence imposed for counts not successfully challenged on appeal.”).

A review of this Court’s record of Johnson’s direct appeal confirms that on count 1, the court orally pronounced: “Count one will be five years Department of Corrections, concurrent with Count Three, concurrent with any time presently serving.” (Emphasis added). This supports Johnson’s claim that his original sentence on count 1 was orally pronounced to run concurrent to any active sentence, not consecutive. However, our records reflect that the original oral pronouncement did not match the original written sentence on count 1, which provided that Johnson’s five-year sentence was to run concurrent with count 3, but consecutive to any active sentence being served. But, this discrepancy did not become an issue until count 3 was vacated. At that time, the court indicated that count 1 was consecutive to any other active sentence, rather than concurrent as originally orally pronounced. Johnson attempted to raise this issue in this rule 3.800(a) motion, and the court determined the sentence on count 1 never changed. Johnson clarified the issue in his motion for rehearing, but again the trial court denied- relief. The motion. should have been granted and the sentencing documents amended to reflect that counts 1 and 3 are to be served concurrently with each other and any active sentence being served. See Marshall v. State, 78 So.3d 72, 73 (Fla. 4th DCA 2012) (“ ‘[A] court’s oral pronouncement of a sentence controls over the written sentencing document. When the written document results in a sentence that is more severe than the sentence announced in court, ... ’ the sentence is illegal.” (quoting Williams v. State, 957 So.2d 600, 603 (Fla. 2007))).

REVERSED and REMANDED FOR CORRECTION OF SENTENCE.

WALLIS, J., and JACOBUS, B.W., Senior Judge, concur.


author: PER, CURIAM.

text:
    Jimmy VELA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0808
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017
    Jimmy Vela,'in'proper person.
    Pamela Jo Bondi, Attorney- General, for appellee.
    Before SALTER,,FERNANDEZ, and LUCK, JJ.
   PER, CURIAM.

Affirmed. See Joyner v. State, 988 So.2d 670, 672-73 (Fla. 3d DCA 2008) (holding that a stipulation in a plea agreement for jail credit from a specific date waives any claim to credit for prior time served); Hines v. State, 906 So.2d 1137, 1138 (Fla. 3d DCA 2005) (“A review of the plea colloquy reflects that the defendant waived credit for time served prior to December 24, 2002 when he specifically agreed to a forty-eight month prison sentence with credit for time served from December 24, 2002. As the defendant clearly waived any additional gain time as a condition to his negotiated plea and he .was awarded the forty-six days he served from .December 24, 2002 to February 26, 2003, he received all the credit for time served for which he was entitled pursuant to his negotiated plea”).


text:
    Sarah Lee SANDERS, Appellant, v. DRIVETIME CAR SALES COMPANY, LLC, d/b/a Drivetime, Appellee.
    CASE NO. 1D16-5406
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017
    Rehearing Denied July 18, 2017

      William C. Bielecky of William C. Bie-lecky, P.A., Tallahassee; Brian W. Warwick of Varnell & Warwick, P.A., The Villages, for Appellant.
    Robert E. Sickles and Nancy J. Stewig of Broad & Cassel, Tampa, for Appellee.
   PER CURIAM.

This appeal involves an arbitration agreement. We write only to address the portions of the agreement that prohibit the parties from bringing private attorney general actions. The appellant argues that such a ban-precludes her from raising her Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claims as part of the arbitration. The appellant further argues that if her FDUTPA claims are precluded in arbitration under the agreement, such agreement is void as a violation of public policy. It is not necessary to address whether such a provision would be void as a violation of public policy because we find such a claim is not a private attorney general action. ;

FDUTPA states that a cause of ¡action can be brought by a. person who has suffered a loss or has been aggrieved by a violation of FDUTPA, an interested party, or an enforcing authority. See §§ 501.206, 501.207, & 501.211, Fla. Stat. (2015). An interested party is defined as a person who has been affected by a violation of FDUT-PA or by an order of the enforcing authority. § 501.203(6), Fla. Stat. (2015). An enforcing authority is defined as the office of the state attorney or the Department of Legal Affairs depending upon the situation as stated in section 501.203(2), Florida Statutes (2015). Based on the definition, an individual does not qualify as an enforcing authority. Thus, an individual’s private claims for violations of FDUTPA cannot be deemed a private attorney general action since a person has no statutory right to represent the enforcing agency or another person under FDUTPA.

AFFIRMED.

ROBERTS, O.J., MAKAR, AND JAY, JJ., CONCUR.


author: WINOKUR, J.

text:
    TAYLOR ENGINEERING, INC. & Robert J. Wagner, P.E., Appellants, v. DICKERSON FLORIDA, INC., a Florida corporation, Appellee.
    CASE NO. 1D15-4782
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017

      George R. Truitt and Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, for Appellants.
    Peter A. Robertson, Erin Rohan Smith, William Douglas Stanford, Thomas J. Tol-lefsen, and William Collins Cooper of the Robertson Firm, St. Augustine; James C. Hauser of Attorney’s Fees in Florida PL, Maitland, for Appellee.
   WINOKUR, J.

Appellants (collectively “Taylor”) filed a post-trial motion for attorneys’ fees and costs pursuant to section 768.79(1), Florida Statutes, and Florida Rule of Civil Procedure 1.442. The trial court denied the motion on the authority of Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015) (holding that a proposal for settlement must strictly comply with the content requirements of rule 1.442(c)(2) in order to entitle the movant to attorneys’ fees and costs). Taylor appealed. However, while this appeal was pending, the Florida Supreme Court quashed our decision in Borden Dairy. Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016). Based on the supreme court’s decision, Appellee (“Dickerson”) concedes that the trial court erred in holding that Taylor’s proposal for settlement was invalid for failing to strictly comply with the content requirements of rule 1.442. Accordingly, we reverse and remand for the trial court to reconsider Taylor’s motion in light of the supreme court’s decision in Kuhajda.

The Kuhajda decision does not, however, fully resolve this appeal. Dickerson also argued that Taylor’s proposal for settlement was a nominal offer that was not made in good faith, and for this reason the trial court should disallow an award of costs and attorneys’ fees. § 768.79(7)(a), Fla. Stat. The parties contend that this Court has made inconsistent rulings concerning the standard in determining whether a nominal offer is made in good faith. While we find that the case law is not inconsistent, we reiterate that, for purposes of the offer of judgment statute, a nominal offer is made in good faith where the offeror has a reasonable basis to believe that its exposure to liability is minimal.

The apparent inconsistency in the good-faith standard involves Arrowood Indemnity Co. v. Acosta, Inc., 58 So.3d 286 (Fla. 1st DCA 2011), and General Mechanical Corp. v. Williams, 103 So.3d 974 (Fla. 1st DCA 2012). The Arrowood court noted “[i]n the context of a nominal offer of judgment, this court has held that where the offeror has a reasonable basis to believe that exposure to liability is minimal, a nominal offer is appropriate.” Arrowood, 58 So.3d at 289 (emphasis supplied). However, in the same context, we held in General Mechanical that “a reasonable basis [for a nominal offer] exists only where the undisputed record strongly indicates that the defendant had no exposure.” Gen. Mech., 103 So.3d at 976 (emphasis supplied). At first glance, it appears that the General Mechanical court would disqualify a nominal offer from the offer of judgment statute unless the defendant had “no exposure” at all to liability, whereas the Arro-ioood court would permit a nominal offer under the statute as long as the defendant’s exposure to liability could be characterized as “minimal.” However, a review of the relevant case law reveals no such inconsistency.

The offer of judgment statute provides in pertinent part as follows:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him ... from the date of filing of the offer if the judgment is one of no liability[.]
(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.

§ 768.79(1) & (7)(a), Fla. Stat.

In determining whether a nominal offer was made in good faith, we have previously applied the standard articulated in Arrowood. See Zachem v. Paradigm Prop. Mgmt. Team, Inc., 867 So.2d 1263 (Fla. 1st DCA 2004) (“A nominal offer is appropriate where the offeror has a reasonable basis to believe that exposure to liability is minimal.”). See also Connell v. Floyd, 866 So.2d 90, 94 (Fla. 1st DCA 2004) (Benton, J., dissenting) (stating that the rule is that “a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal”). The apparently different standard used by this Court in General Mechanical cites for that rule to Event Services America, Inc., v. Ragusa, 917 So.2d 882 (Fla. 3d DCA 2005). In fact, Event Services does not necessarily set a different standard.

The Event Services court held as follows:

A reasonable basis for a nominal offer exists only where “the undisputed record strongly indicated] that [the defendant] had no exposure” in the case. Therefore, a nominal offer should be stricken unless the offeror had a reasonable basis to conclude that its exposure was nominal.

Id. at 884 (citations omitted; emphasis supplied) (citing Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So.2d 292, 300 (Fla. 3d DCA 1997)). In other words, Event Services appears to utilize both the no-exposure and the minimal-exposure standard. However, we find that Event Services can be reasonably read as using the phrase “no exposure” as synonymous with “nominal exposure.” This conclusion is bolstered by the fact that, aside from Event Services and Peoples Gets, the Third District has consistently held that the standard is whether there is a reasonable basis to indicate that a defendant’s exposure was nominal. See, e.g., Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208 So.3d 718 (Fla. 3d DCA 2015) (holding that good faith exists as a matter of law where at the time an offer was made the offeror had a reasonable basis to conclude that its exposure was nominal); Isaias v. H.T. Hackney Co., 159 So.3d 1002, 1004-05 (Fla. 3d DCA 2015) (footnote omitted) (“The determination of whether a ‘nominal’ offer is in good faith requires the trial court to consider whether the offeror had a reasonable basis to conclude, at the time of making the offer, that its exposure was nominal.”); Downs v. Coastal Sys. Int'l Inc., 972 So.2d 258 (Fla. 3d DCA 2008) (applying standard requiring a reasonable belief of nominal exposure); Dep't of Highway Safety & Motor Vehicles, Fla. Highway Patrol v. Weinstein, 747 So.2d 1019, 1020 (Fla. 3d DCA 1999) (applying standard requiring reasonable belief of nominal exposure). Moreover, the fact that the Third District has not seen fit to address the seeming discrepancy supports the proposition that it does not consider Event Services or Peoples Gas to be inconsistent with its other cases.

Even if Event Services did set a “no exposure” standard, we continue to follow the “minimal exposure” standard. The Fourth District has suggested that Event Services did specifically establish a no-exposure standard for a good-faith offer, but has rejected that standard. In Citizens Property Insurance Corp. v. Perez, the Fourth District distinguished Event Services and clarified that it had'consistently held that “[t]he rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the pfferor had a reasonable basis to conclude that its exposure was nominal.” 164 So.3d 1, 3 (Fla. 4th DCA 2014) (quoting State Farm. Mut. Auto. Ins. Co. v. Sharkley, 928 So.2d 1263, 1264 (Fla. 4th DCA 2006) (emphasis original)). The Fourth District opined that - the no-exposure standard is “too onerous.” Id. at 3; see also Sharaby v. KLV Gems Co., 45 So.3d 560, 564 (Fla. 4th DCA 2010) (Warner, J., concurring) (disagreeing with the Event Services standard and also stating she did not “think that Peoples Gas intended to set a rule that requires an undisputed record, showing no.liability, in order to prove that a minimal offer was made in good faith”).

The Second and Fifth District Courts of Appeal also apply the standard articulated in Arrowood. See, e.g., Gawtrey v. Hayward, 50 So.3d 739, 743 (Fla. 2d DCA 2010) (“In assessing whether Ms. Gawtrey’s nominal offer was made in'good faith, the trial court was required to look at whether Ms. Gawtrey had a reasonable basis when the offer was made to conclude that her exposure in the case was nominal.”); Gurney v. State Farm Mut. Auto. Ins. Co., 889 So.2d 97, 99 (Fla. 5th DCA 2004) (explaining that a nominal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal).

In summary, it appears that the no-exposure standard articulated in General Mechanical originated from language in Peoples Gas, which was then adopted in Event Services—but neither opinion clearly adopts this standard. In turn, this Court cited Event Services in explaining the appropriate standard to determine whether a nominal offer is made in- good faith. Because this Court and other district courts have generally applied the Arrowood minimal-exposure standard, and because Event Services—the case on which General Mechanical relies—appears to be a deviation from the standard generally used in the Third District, the appropriate standard is whether the offeror had a reasonable basis to conclude that his/her exposure was nominal or minimal. This is the standard the trial court should apply on remand to determine whether Taylor’s offer of judgment was made in good faith, pursuant to section 768.79(7)(a).

REVERSED AND REMANDED.

OSTERHAUS and BILBREY, JJ., CONCUR.

      . Similarly, Florida Rule of Civil Procedure 1.442(h)(1) provides that the court may "determine that a proposal [for settlement] was not made in good faith” and "disallow an award of costs and attorneys’ fees.”

      . While this observation was made in a dissenting opinion, the majority based its ruling on the lack of particularity of the settlement offer, not the lack of exposure to liability.

      . We also note the well-established rule that “a three-judge panel of a district court should not overrule or recede from a prior panel’s ruling on an identical point of the law." In re Rule 9.331, 416 So.2d 1127, 1128 (Fla. 1982). The General Mechanical panel would not have been authorized to overrule Arrowood without an en banc proceeding. See Adams v. State, 188 So.3d 849 (Fla. 1st DCA 2012).


author: EMAS, J.

text:
    Emmett Timothy COX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2647
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017
    Rehearing Denied June 27, 2017

      Emmett Timothy Cox, in proper person.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   EMAS, J.

Emmett Timothy Cox appeals from the trial court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, because Cox failed to meet the burden imposed on him when seeking to correct or vacate an illegal sentence pursuant to rule 3.800(a).

On October 9,1998, Cox entered a negotiated plea to the charges of armed robbery with a firearm (three counts) and aggravated battery (one count), and was sentenced as a habitual felony offender to life imprisonment. As part of the negotiated plea, Cox expressly stipulated in writing that “he qualifies as a habitual felony offender pursuant to the statutory requirements set forth in 775.084,” and further stipulated that he had previously been convicted of qualifying predicate felonies in case numbers 89—47912, 89-47604, 89-47603, 89-47602 (each a conviction for armed robbery) and in case number 89-6004B (a conviction for burglary). Cox further stipulated in writing that “at least one of the above prior convictions was within five years of the cases for which the defendant is presently charged,” and that none of these prior convictions had been set aside, nor a pardon granted.

In 2016, Cox filed a pro se motion to correct illegal sentence, alleging that the sentence (and in particular, the habitual offender designation) was illegal because his prior convictions were not sequential as required by section 775.084(5). However, in his negotiated plea Cox expressly stipulated that he had been convicted of these prior predicate felonies and that he qualified as a habitual felony offender under section 775.084. In doing so, Cox knowingly and voluntarily waived the procedural requirements of section 775.084 and, with it, the State’s obligation to present evidence establishing that Cox qualified as a habitual felony offender. See Irving v. State, 627 So.2d 92 (Fla. 3d DCA 1993); White v. State, 60 So.3d 1101 (Fla. 5th DCA 2011).

Moreover, and as the State correctly argues, Cox failed to satisfy the burden imposed on him when seeking to correct an illegal sentence under rule 3.800(a). Unlike a motion for postconviction relief pursuant to rule 3.850, a motion .to correct illegal sentence pursuant to rule 3.800(a) places the burden on the defendant, who must “affirmatively allege[ ] that the court records demonstrate on their face an entitlement to relief....” Fla. R. Crim. P. 3.800(a). The burden is not upon the State to demonstrate that the records conclusively show that the defendant is entitled to no relief. In meeting his burden on a motion to correct illegal sentence, the defendant may not rely on facts beyond the face of the record. Johnson v. State, 60 So.3d 1045 (Fla. 2011). In the instant case, Cox has failed to affirmatively identify court records which, on their face, demonstrate the existence of- an illegal sentence or an entitlement to relief under rule 3.800(a). Indeed, on its, face, the record below (which includes the written plea agreement and the sentencing transcript) undermines Cox’s claim that he did not qualify as a habitual felony offender.

Affirmed.

      . This was part of a negotiated global plea in five separate cases; in the other four cases, Cox was charged with, inter alia, armed robbery (two counts); attempted armed robbery (one count); burglary with an assault or battery (one count); and fleeing a law enforcement officer. As part of this negotiated global plea, the sentences imposed in all five cases were ordered to be served concurrently.
      In addition, on April 17, 1998 (six months prior to the global plea) Cox had been sentenced to life in prison as a habitual felony offender in case number 97-12328 (three counts of armed robbery). As part of the parties' negotiations, the sentences imposed pursuant to the global plea were also ordered to be served concurrently with the sentences previously imposed in 97-12328.

      . The actual language of the 1997 habitual felony offender statute required inter alia, that:
      The felony for which the defendant is to be sentenced was committed:
      ... [w]ithin 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.
      § 775.084(l)(a)2.b„ Fla. Stat. (1997).

      .In 1997, section 775.084(5), Florida Statutes (1997) provided:
      In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.

      . Had Cox not entered such a stipulation and waived the procedural requirements, the State would have been required to present the necessary testimony and evidence (including judgments, sentences and, if applicable, prison release information) to establish that Cox qualified as a habitual felony offender.

      . A motion for postconviction relief under rule 3.850 is generally subject to a two-year time limit, and contemplates an evidentiary hearing when necessary to resolve disputed factual issues. On appeal from an order which denies the motion without an evidentiary hearing, the order shall be reversed "unless the record shows conclusively that the appellant is entitled to no relief.” Fla. R. Crim. P. 9.141(b)(2)(D).
      By contrast, a motion to correct illegal sentence under rale 3.800(a) may be filed at any time, but must be determined as a matter of law, without an evidentiary hearing, based upon an error apparent on the face of the court record. Given the absence of any time limitation for filing such a motion, and the unavailability of an evidentia-ry hearing, the burden is on the movant to demonstrate that the trial court's error and the defendant’s entitlement to relief are apparent from the face of the record. Williams v. State, 957 So.2d 600 (Fla. 2007); Porkolab v. State, 187 So.3d 945 (Fla. 3d DCA 2016); McClain v. State, 157 So.3d 528 (Fla. 1st DCA 2015); Casteel v. State, 141 So.3d 624 (Fla. 4th DCA 2014); Smart v. State, 124 So.3d 347 (Fla. 2d DCA 2013); Jarrett v. State, 89 So.3d 293 (Fla. 5th DCA 2012).


author: WARNER, J.

text:
    Gary R. NIKOLITS, as Property Appraiser for Palm Beach County, Appellant, v. Franklin L. HANEY, Emeline W. Haney And Anne M. Gannon, as Tax Collector for Palm Beach County, Florida, Appellees.
    No. 4D15-4464
    District Court of Appeal of Florida, Fourth District.
    May 31, 2017

      Neil B. Jagolinzer and Jeffrey M. Cly-maii, West Palm Beach, for appellant.
    Jane Kreusler-Walsh and Stephanie L. Serafín of Law Office of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Christopher M. Larmoyeux of Larmoyeux & Bone, P.L., West Palm Beach, for appellees Franklin L. Haney and Emeline W. Haney.
    Pamela Jo Bondi, Attorney General, and Jeffrey M. Dikman, Assistant Attorney General, Tallahassee, for Amicus Curiae State of Florida Department of’Revenue.
   WARNER, J.

The property appraiser appeals a final judgment in favor of homeowners declaring null and void corrections in property value made by the appraiser for tax years 2011-13 on the appellees’ homestead property, due to the appraiser’s successful appeal of the Value Adjustment Board’s lowering of the value for the 2010 assessments; The appraiser argues that the corrections made to the 2011-13 tax year assessed values as a result of the circuit court’s upward adjustment of the value of the homestead for 2010 were ministerial and allowable. We agree that the statutes and rules allow for corrections to subsequent years’ values, which constitute mathematical corrections. However; the homeowners had the right to challenge the corrected valuations as being greater than market value, of which right they were deprived. We thus reverse and remand to allow for the correction of the valuations and also for new notifications to allow the homeowners their right to petition the Value Adjustment Board to contest the new valuations.

In 2008, the appellee homeowners purchased property in Palm Beach County for $23,500,000 and expended another $2,800,000 for improvements. They were given a homestead tax exemption for 2009. In 2010, the property appraiser’s office assessed the property at a market value of $19,780,167, which prompted the homeowners to petition the Value Adjustment Board (“VAB”) to reduce the assessment. Even though they had invested more than $24,000,000 in the property, they claimed that their homestead was worth only $12,000,000 due to a downturn in the real estate market. The VAB reduced the market value to $12,000,000. As required by section 193.122(3), Florida Statutes (2010), the property appraiser re-certified the tax roll after the VAB revision to $12,000,000. Exercising the right to challenge the VAB decision, the property appraiser filed an original action in the circuit court pursuant to sections 193.122(4) and 194.036(l)(a), Florida Statutes (2010).

Because the property was a- homestead, the Save Our Homes provision of section 193.155(1), Florida Statutes (2010), applied to any increases in the property’s value. The Save Our Homes cap allows an annual increase of only 3% in the assessed value of property, or the yearly increase in the Consumer Price Index, whichever is less. Under section 193.165(2),-Florida Statutes, if the capped value exceeds the -market value in a given year, the capped value will be reduced to the market value. Thus, the 2010 capped value of the homeowners’ homestead was lowered from $19,780,167 to $12,000,000.

While the property, appraiser’s suit challenging, the, VAB- reduction in value was pending, the property appraiser’s office applied the Save Our Homes cap to the VAB value of $12,000,000 for subsequent years so that the property’s value for tax purposes was capped at $12,180,000 in 2011, $12,545,400 in 2012, and $12,758,672 in 2013. Despite this reduction in valuation due to the VAB change, the property appraiser’s office still provided Truth in Millage (“TRIM”) notices to the homeowners showing the market (just) value of the property to be $17,865,887 in 2011, $17,762,500 in 2012, and $19,614,912 in 2013. The TRIM notices thus provided three' different values for the property: the market value estimated by the Property Appraiser, the capped or assessed value, and the taxable value.

The pending suit by the property appraiser led to a final judgment.in 2014 rejecting the VAB’s $12,000,000 assessment, as well as the property appraiser’s assessment of $19,780,167. The court found that the proper market value was $17,150,000. Neither side appealed the court’s judgment.

Thereafter, the property appraiser concluded that the capped values for 2011 through 2013 required recalculation since they had initially been calculated- based on the now-discarded $12,000,000 assessment. The property appraiser filed three Certificates of Correction to revise the 2011,2012 and 2013 tax rolls. This changed the 2010 market value and assessed values to $17,150,000, and the capped valuations for the ensuing years were raised accordingly. As a result of the Certificates of Correction, the homeowners’ taxes increased over $90,000 for each of the three tax years.

The homeowners then filed a declaratory judgment action against the property appraiser and tax collector to dispute the right to the additional taxes. The property appraiser responded by pointing out that the final judgment had increased the market value assessment in 2010 from $12,000,000 to $17,150,000. Revision of the subsequent years’ valuations constituted a mathematical cori*ection authorized by Florida Administrative Code Rule 12D-8.021(2)(a)6, through the issuance of a Certificate of Correction.

In its ruling on the declaratory judgment, the court rejected the property appraiser’s argument that he was seeking to correct a clerical, administrative, mathematical, or factual error other than an error in judgment. The court found it was not an “error of omission or commission” under Florida Administrative Code Rule 12D-8.021(2)(a)(12), concluding that the rule seeks to prevent issuance of Certificates of Correction for errors of judgment. The court reasoned that the VAB, as well as the final judgment, were simply correcting an error in judgment as to the original valuation by the property appraiser, and the subsequent corrections were “seeking to make corrections based on a change in value due to an error in judgment.” The court also concluded that the property appraiser violated due process because he failed to provide the homeowners with notice and opportunity to challenge the corrections for 2011-13. The court found that under Florida Administrative Code Rule 12D-8.021(7) and (9), the homeowners were entitled to notice and an opportunity to seek review with the VAB for the 2011-13 years. From these rulings, the property appraiser appeals.

The question of whether the property appraiser’s reassessment of the homeowners’ property and the Certificates of Correction complied with Florida law is a question of law, thus subject to de novo review. Holland v. Gross, 89 So.2d 255, 258 (Fla. 1956). Statutory construction and interpretation of administrative rules are also legal issues subject to de novo review. W. Fla. Reg'l Med. Ctr. v. See, 79 So.3d 1, 8 (Fla. 2012).

Property taxes are collected on all nonexempt properties in Florida as a means of funding counties, school boards, and local governments. All non-exempt properties are subject to taxation, and the Florida Constitution provides that statutes and regulations must “secure a just valuation of all property!)]” Art. VII, § 4, Fla. Const. To that end, section 197.122(1), Florida Statutes (2013), provides for revision of property taxes where mistakes may be made in the assessment or collection of taxes:

An act of omission or commission on the part of a property appraiser, tax collector ... does not defeat the payment of taxes, interest, fees, and costs due and may be corrected at any time by the party responsible in the same manner as provided by law for performing acts in the first place. Amounts so corrected shall be deemed to be valid ab initio and do not affect the collection of the tax.

Further, Florida Administrative Code Rule 12D-13.006(2) provides:

The payment of taxes shall not be excused because of any act or omission or commission on the part of any property appraiser, tax collector, value adjustment board ....

Additionally, Florida Administrative Code Rule 12D-8.021(2)(a) lists the types of errors which shall be subject to correction by the property appraiser. Among the twenty-six types of errors which can be corrected are “4. Error[s] in extending the amount of taxes due” and “6. Mathematical errors.” Fla. Admin. Code R. 12D-8.021(2)(a). As it is used in number 4, “extending” means the arithmetic computation of converting millage to the taxable value of property to determine the tax. See § 192.001(6), Fla. Stat. (2013). In addition, the rule provides that “[t]he correction of errors shall not be limited to the preceding [twenty-six] examples, but shall apply to any errors of omission or commission that may be subsequently found.” Fla. Admin. Code R. 12D-8.021(2)(b).

On the other hand, the property appraiser cannot correct certain errors which amount to changes in the property appraiser’s judgment. Fla. Admin. Code R. 12D-8.021(2)(d). These include “[a]ny error of judgment in land or improvement valuation.” Fla. Admin. Code R. 12D-8.021(2)(d)(5). In this context, the term “judgment” means, in part, “the opinion of value, arrived at by the property appraiser based on the presumed consideration of the factors in Section 198.011, F.S.” Fla. Admin. Code R. 12D-8.021(2)(d).

As applied to this case, the changes in value in the 2011-13 years constitute changes necessitated by the final judgment which established the initial homestead valuation in 2010 as $17,150,000. For the years thereafter, the property appraiser had to adjust the assessed value as required by the Save Our Homes cap. This constituted a strictly mathematical calculation. It did not amount to an opinion on value based upon the factors of section 193.011, Florida Statutes. It amounted to either a mathematical error, an error “extending the amount of taxes due,” or it falls within the catch-all category of errors “of omission or commission that may be subsequently found” and made necessary so as not to “defeat the payment of taxes” required of all property owners. Fla. Admin. Code R. 12D-8.021(2)(a).

In Smith v. Krosschell, 937 So.2d 658 (Fla. 2006), the supreme court considered the effect of a .data entry error which significantly undervalued homestead property by eliminating improvements on the property. The court held that the property appraiser could correct such an error at any time pursuant to section 197.122(1), Florida Statutes. Smith, 937 So.2d at 661. The court explained that the data entry error which eliminated improvements on the property was not a “just value” and did not reflect the “fair market value” of the property. Id. at 662. The court noted:

[T]he Save Our Homes cap does not forever “lock in” the erroneous data and resulting assessment, thereby allowing property owners to forever pay artificially reduced taxes as long as they own the property. Instead, we conclude that section 197.122(1) applies to correct this error, thereby allowing the appraiser to correct the erroneous data previously entered and erroneously changed to establish forever a “true just value” upon which the cap can be applied to tax increases in future years.

Id. Similarly, in the present case, the 2010 erroneous valuation does not forever “lock in” a reduced valuation for subsequent years. Once the valuation is corrected pursuant to the final judgment, it allows the appraiser to correct the mathematical calculation of the Save Our Homes valuation in subsequent years. Therefore, the court erred in concluding that the correction constituted an error of judgmént. The error was correctable under the statute and applicable rule.

The property appraiser had the authority to-issue Certificates of Correction for the years 2011-13. Notice of the certificates was furnished to the homeowners, who then sought review before the VAB. Unfortunately, the VAB rejected the petitions. In the declaratory judgment, the homeowners sought a declaration of their rights in that they have been denied the ability to challenge the corrected assessments. They contended that the property value continued to fall during the years in question. Thus, they would seek to prove that the market or just value of the property was less than the Save Our Homes capped value for each year. We agree with the trial court that they should be allowed to make that challenge and were denied due process.

The Taxpayer Bill of Rights, section 192.0105, Florida Statutes (2016), gives to the taxpayer the right of due process in the assessment and tax collection process. It allows the taxpayer the right to be sent notices of proposed property taxes and assessments, as well as the right to both an. informal conference with the property appraiser regarding valuation as well as the right to petition .the VAB regarding objections to assessments. Id, Tp effectuate these rights in connection with the property appraiser’s ability to correct errors in assessed valuations, rule 12D-8.021 contains notice and remedy provisions:

(9) The property appraiser shall notify :the property owner of the increase in the assessed valuation. The notice to the property owner by the property appraiser shall state that the property owner shall have the right to present a petition to the value adjustment board relative to the correction, except when the property appraiser has served a notice of intent to record a lien when property has improperly received homestead exemption.
(10) If the value adjustment board has adjourned, the property owner shall be afforded the following options when an error has beenmade which, when corrected, will have the effect of increasing the assessed valuation ahd, subsequently the taxes. The options are:
(b) The property owner may refuse to waive the - right to petition the value adjustment board at which time the property appraiser shall notify the proper owner and tax collector that the correction shall be placed on the current year’s tax roll and also at such time as the subsequent year’s tax roll is prepared, the property owner shall have the right to file a petition contesting the corrected assessment,
(c) If the value adjustment board has adjourned for the year or the time for filing petitions has elapsed, a back assessment shall be considered made within the calendar year if, prior to the end of the calendar year, a signed Form DR-409, Certificate of Correction (incorporated by reference in Rule 12D-16.002, F.A.C.) or a supplemental assessment roll is tendered to the tax collector and a notice of proposed property taxes with notice of the right to petition the next scheduled value adjustment board is mailed or delivered to the property owner.

Fla. Admin. Code R. 12D-8.021.

On this record, the VAB:had:adjourned for the years in question and option “c” was the only available option for the petitioners. The property appraiser had furnished the Certificate of Correction. As required by the rule, the notice of proposed property taxes “with notice of the right to petition the next scheduled value adjustment board”- should have -been mailed to the property owner. Fla. Admin. Code R. 12D-8.021(10)(c). Then the homeowners would have been entitled to contest the corrected assessments at the “next schedule value adjustment board.” Id. The homeowners are entitled to this relief. On remand, the property appraiser shall furnish the notice, and the next scheduled VAB shall consider any petition to the prior years’ corrected assessments as they may file.

Reversed and remanded for proceedings consistent with this opinion.

Gerber and Kuntz, JJ., concur.


author: WOLF, J.

text:
    David Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1559
    District Court of Appeal of Florida, First District.
    Opinion filed June 1, 2017

      Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges the trial court’s order revoking his probation for two violations: committing the new law violation of failure to register as a sex offender by failing to register a cell phone number, and using intoxicants to excess. Appellant raises several arguments, but we find only two merit discussion: (1) whether the State presented sufficient evidence that appellant used the cell phone to the extent that he was required to register it; and (2) whether the probation officer’s testimony that appellant was intoxicated during a visit was sufficient to show that he used intoxicants to excess. We find there was sufficient evidence on both counts and affirm.

Facts

In November 2014, appellant pled no contest to the offense of failure to register as a sex offender, and the court sentenced him to 60 months’ probation. In February 2016, the State filed an affidavit of violation of probation alleging that appellant both committed the new law violation of failure to register as a sex offender and violated the probation condition that he “not use intoxicants to excess.”

At a hearing, appellant’s probation officer testified that she and a United States marshal conducted a drop-in visit on appellant. The probation officer testified that upon arrival, she saw a white cell phone sitting next to appellant. She “asked him could I see his cell phone, and he handed me that” white phone. Appellant said “the phone belonged to his wife and he did not put it in his name because then he would have to register it.” The U.S. marshal similarly testified that appellant said “the phone was in his wife’s name, and that they did that purposefully, because if they left it in his wife’s name he would not have to register it.”

Additionally, appellant’s probation officer testified that appellant seemed intoxicated during the encounter. When she asked him to produce his identification, he •handed her his credit card. She testified that “[h]is eyes were glassed over and he was leaning back and forth. He said'he had júst drunk a couple of beers.” She stated there was a beer sitting on the ground right next to appellant. There was also catnip on the couch, and someone had used the cell phone to conduct a search on the effects of smoking catnip.

Appellant’s wife testified that she had two phones, one of which was the number that appellant had registered as belonging to him and the other she used for herself. She testified that on the day in question, her phone was dead, so she left it on the charger and took appellant’s phone. On cross-examination, she stated that although she usually left appellant with the phone that was registered as belonging to him, sometimes they would swap and he would use her phone. She testified that appellant would text and call his friends on her phone.

Appellant testified the cell phone had been in his hand when he answered the door because he had been playing a game on it, and the probation officer immediately asked for it. Appellant testified he told the officer and the marshal that the phone belonged to his wife, and he had been drinking and did not understand their questions. When asked if it was “unusual” for him to use his wife’s phone, he testified that he “play[ed] the games all the time” on it. He further testified that when he was at home, his wife would leave the phone so that she could call him and wake him up for work. He stated that “sometimes” he would take the phone to work with him so that he and his wife could call each other.

Appellant conceded that although he claimed the phone found in his' possession belonged to his wife, her name was listed in the phone’s contacts. The number that was listed as belonging to her was the number that appellant had registered as his own phone number.

The court found that appellant violated the terms of his probation both by committing the new law' violation of failure to register as a sex offender and by using intoxicants to excess. The court revoked appellant’s probation and sentenced him to 60 months in prison.

Analysis

“ ‘To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.’ ” White v. State, 76 So.3d 410, 411 (Fla. 1st DCA 2012) (quoting Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996)). Where the State alleges that the probationer violated the terms of probation by committing a new law violation, “[pjroof sufficient to support a criminal conviction is not required .... The state need only show by a preponderance of the evidence that the defendant committed the offense charged.” Robinson v. State, 609 So.2d 89, 90 (Fla. 1st DCA 1992) (citing Griffin v. State, 603 So.2d 48, 50 (Fla. 1st DCA 1992)).

The trial court has “ ‘broad judicial discretion to determine whether the conditions of the probation have been violated, and, therefore, whether the revocation of probation is in order.’ ” Lawson v. State, 969 So.2d 222, 229 (Fla. 2007) (quoting State ex rel. Roberts v. Cochran, 140 So.2d 597, 599 (Fla. 1962)). Thus, this court reviews the ultimate decision to revoke probation for an abuse of discretion. Id. However, we first assess whether the factual findings supporting the court’s decision are supported by competent, substantial evidence. Rodgers v. State, 171 So.3d 236, 238 (Fla. 1st DCA 2015); Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013).

1. Failure to Register

Appellant argues that the trial court erred in finding he committed the new law violation of failure to register as ,a sex offender because the State’s evidence was insufficient to prove that the cellular phone in his possession during the drop-in visit belonged to him or that he used the phone frequently enough to be required-to register that phone’s number under section 943.0435, Florida Statutes (2014).

Section 943.0435(2)(b) requires the offender to register in the county in which he was convicted within 48 hours after conviction and to provide “... all home telephone numbers and cellular telephone numbers required to be provided pursuant to paragraph (4)(e).” (Emphasis added). Subsection (4)(e)(2) states that the offender “shall register ah. changes to home telephone numbers and cellular telephone numbers, including added and deleted numbers.” § 943.0435(4)(e)(2), Fla. Stat. (emphasis added).

Here, appellant argues the phone did not belong to him, and the State did not show that he used the phone frequently enough to be required to register it under section 943.0435. However, under the plain language of the statute, there is no minimum-use or frequency threshold required to trigger the registration requirement. The plain language of the statute states that all phone numbers must be registered. § 943,0435(4)(e), Fla. Stat. Evidence that an offender had control over a phone and used that phone can be sufficient to trigger the registration requirement.

Here, there was competent, substantial evidence to prove appellant had control over and used the phone that he alleged was his wife’s. Appellant’s wife testified that she would sometimes leave the unregistered phone with appellant for him to use, and he used it to text and call his friends. Further, the probation officer and the U.S, marshal testified that appellant admitted to willfully failing to register the phone; he stated that he purposefully placed the phone in his wife’s name so that he would not have to register it.

Appellant also conceded during his testimony that although he claimed the phone belonged to his wife, her name was listed in the phone’s contacts, and the number that was listed as belonging to her was the number that appellant had registered as -his own phone number. Thus, there was competent, substantial evidence that appellant willfully and substantially-violated the conditions of his probation by intentionally failing to register the cellular telephone’s number in violation of section 943.0435. Therefore; we affirm as to this issue.

2. Using Intoxicants to Excess

Appellant argues the trial court erred in finding he violated the condition of his probation that he “not use intoxicants to excess” because the State’s evidence .that he was intoxicated during a single occasion—the visit by his probation officer—was insufficient to prove a viola7 tion of this condition. Appellant relies on Alston v. State, 646 So.2d 184 (Fla. 1994), to support this assertion. However, we find his reliance is misplaced.

In Alston, a community control, officer observed Alston standing on a street corner on a day he should have been working, so the officer required Alston to report to the probation office where he was subjected to a drug test. He tested positive for cocaine. The State alleged that he violated the condition of his supervision that he “not use intoxicants to excess.” Id However, the supreme court held that the “use of cocaine, as evidenced by a single drug test, did not violate 'the community control condition requiring him to refrain from using intoxicants to, excess.” Id. at 185 (emphasis added). The court noted that. “[t]he plain language of the condition indicates that only ‘excessive’ use of an intoxicant is prohibited. We do not believe a single positive drug test, without more, is sufficient evidence to find a violation of this particular community control condition.” Id.

Appellant asserts that here, as in Alston, evidence that he was -intoxicated on a single- occasion was not sufficient evidence that he used intoxicants to excess. He argues the testimony of the probation officer and the U.S. marshal that they saw him with a beer and their testimony regarding his manner and physical state was insufficient. While he concedes that beer may be an “intoxicant,” he argues the excessive-use condition cannot be met without more.

However, the State argues that Alston is distinguishable because the case at hand did not involve a single positive drug test. Instead,' the State argues this case is more similar to Smith v. State, 100 So.3d 253, 254 (Fla. 3d DCA 2012), in which the Third District found evidence that officers observed Smith in an intoxicated state on a single occasion was sufficient to support the trial court’s finding that Smith violated the terms of his probation by using intoxicants to excess.

Smith argued evidence that he was intoxicated on that single instance was insufficient to prove that he used intoxicants to excess, relying on Alston. Id. However, the Third District found Alston could not have intended to hold that a single instance of intoxication could never prove use of intoxicants to excess because Alston cited with approval Scott v. State, 524 So.2d 1148 (Fla. 3d DCA 1988). In Scott, the Third District held evidence that a probationer was observed staggering down the street in an intoxicated state on a single occasion was sufficient to prove he used intoxicants to excess. Smith, 100 So.3d at 254 (citing Scott, 524 So. 2d 1148). The Smith court concluded that “[u]nder Alston, therefore, even a single use of an intoxicant can qualify as excessive when there is also evidence that the use caused the probationer to become drunk, inebriated, or otherwise mentally or physically impaired.” Id.

We agree with the Third District’s conclusion that Alston did not hold that evidence of a single use of an intoxicant can never be enough to prove use of intoxicants to excess. Rather, the Alston decision turned on the fact that a positive drug test proves • only use, not use to excess. Alston, 646 So.2d at 185 (emphasizing that “only ‘excessive’ use of an intoxicant is prohibited”).

In other words1, in Alston, evidence was presented to' show only that - Alston had ingested cocaine—not that he was physically or mentally impaired as a result. Here, the probation officer’s observation of appellant in an intoxicated state was sufficient to prove that he used intoxicants to excess. The officer testified that appellant seemed intoxicated because when she asked for his identification, he handed her his credit card; She stated his eyes were glassed over, he was leaning back and forth, and there was a beer next to him. Further, during the hearing, appellant conceded that he told the officer and the marshal that he had been drinking and did not understand their questions. This evidence was competent, substantial evidence that supported the trial court’s finding that appellant used intoxicants to excess.

As such, we AFFIRM.

ROBERTS, C.J., and THOMAS; J., CONCUR.


author: SALARIO, Judge.

text:
    Rochelle Lee JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5331
    District Court of Appeal of Florida, Second District.
    Opinion filed June 2, 2017.
    Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SALARIO, Judge.

Rochelle Jones challenges the revocation of her drug-offender probation and resulting. sentences in this appeal that is proceeding pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm without comment and remand solely to have the .trial cpurt enter ,a written revocation order that matches its oral pronouncement . after the violation hearing..

In September 2015, Ms. Jones’ probation officer filed an affidavit of violation , of probation charging Ms. Jones with one violation of condition nine for her failure to comply with the instructions of her probation officer and two violations of condition eleven for twice refusing to submit to random testing as directed by her probation officer. The violations stemmed from an incident during which Ms. Jones attempted to “defraud a drug test” and, failed to remain at the probation office to take a subsequent test despite receiving instructions from her probation officer to do so.

After an evidentiary hearing on November 5, 2015, the trial court orally pronounced that Ms. Jones had violated condition eleven of her drug-offender probation and sentenced her to forty-four months’ prison. The written order of revocation subsequently entered by the trial court, however, states that Ms. Jones committed one violation of condition- nine and two violations of condition twelve. “A written order of revocation must conform to the oral pronouncement at the hearing.” Narvaez v. State, 674 So.2d 868, 869 (Fla. 2d DCA 1996); see also Margolis v. State, 148 So.3d 532, 532 (Fla. 2d DCA 2014) (remanding for the entry of a. corrected order of revocation to reflect the conditions of probation the defendant admitted violating). Thus, although we affirm the trial court’s decision to revoke Ms. Jones’ probation, we remand with instructions to enter a revocation order that conforms to the oral pronouncement that Ms. Jones was found to have committed a single violation of condition eleven of her drug offender probation. See Symes v. State, 193 So.3d 1067 (Fla. 2d DCA 2016); Narvaez, 674 So.2d at 869.

Affirmed; remanded with instructions.

NORTHCUTT and KELLY, JJ., Concur.