author: Taylor, J.

text:
    Mark Gordon ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4676
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee,
   Taylor, J.

Mark Gordon Anderson appeals his conviction and sentence for lewd or lascivious molestation of a victim under 12 by a person 18 years of age or older. We affirm appellant’s conviction, but reverse the trial court’s imposition of a lump sum of $2,269 in costs in the order of probation without providing a breakdown of the costs and an explanation as to what they represent.

The following facts are relevant to the issues on appeal. Before trial, the State fíled a notice of intent, to introduce child hearsay statements. Appellant filed a written objection to any child hearsay statements being admitted at trial, but did not elaborate on the "legal grounds for the objection. At the evidentiary hearing on the child hearsay issue, defense counsel argued that the child hearsay statements were unreliable and lacked corroboration. The trial court entered a written order finding the child hearsay to be' admissible.

At the beginning of trial, defense counsel renewed his “objection to the inclusion of child hearsay.” The trial court noted that it had issued a written order on that issue.

The victim testified regarding the facts giving rise to the molestation charge. When the victim’s hearsay statements were introduced during trial through other witnesses, defense counsel did not object. Defense counsel’s trial strategy—both in his opening statements and during closing argument—was to emphasize the inconsistencies in the victim’s story.

' The jury found appellant guilty as charged. The trial court sentencéd appellant to 25 years in prison followed by sex offender probation for life. The probation order states that appellant shall pay “court Costs, Fees, and Fines” in the amount of $2,269.

In appellant’s first issue on appeal, he argues that the trial court erred by allowing the state to introduce repetitive child hearsay statements of the victim. Appellant complains that the state presented not only the victim’s testimony, but also (1) the written statement the victim gave to her mother, (2) the victim’s statement to an officer, and (3) the victim’s recorded statement to a detective. Appellant contends that under section 90.403, Florida Statutes, the prejudicial impact of the' victim’s repeated hearsay statements substantially' outweighed any probative valué of the evidence.

We find that this specific challenge to the admission of the victim’s child hearsay statements was not preserved for appellate review. It is well-established that a child victim’s hearsay statement which qualifies for the statutory exception in section 90.803(23) is subject to the balancing test found in section 90.403. See Pardo v. State, 596 So.2d 665, 667-68 (Fla. 1992). Here, however, appellant never objected below on the ground that the probative value of the child hearsay was substantially outweighed by the danger of unfair prejudice or the needless presentation of cumulative evidence. Therefore, appellant failed to preserve this issue for appellate review. See Reynolds v. State, 660 So.2d 778, 780 (Fla. 4th DCA 1995) (the defendant’s “cumulative” objection failed to preserve the argument that the trial court failed to apply the balancing test required by section 90.403 before admitting the victim’s child hearsay statements through four witnesses); Bass v. State, 35 So.3d 43, 46 (Fla. 1st DCA 2010) (the defendant failed to preserve the argument that child hearsay statements were inadmissible under section 90.403 where' defense counsel never alerted the trial -court “that his objection was based upon the contention that the testimony’s probative value was substantially outweighed by the needless presentation of cumulative evidence”).

Even if this issue had been properly preserved, the trial court did not' abuse its discretion in admitting the victim’s child hearsay statements through three different witnesses. The probative valúe of the child hearsay was not substantially outweighed by the danger of unfair prejudice, particularly where defense counsel argued that there were inconsistencies in the .vic-timas-story'and that she was-not credible. See Bass, 35 So.3d at 46 (“Had the appellant’s argument been properly preserved, we would conclude that his argument does not merit reversal because the probative value of the witnesses’ testimony was not substantially outweighed by the presentation of similar evidence of the out-of-court statement by multiple witnesses, especially since the defense counsel was allowed to attack the credibility of several of the witnesses at trial.”); Moore v. State, 943 So.2d 296, 297 (Fla. 1st DCA 2006) (the trial court did not abuse its discretion in allowing three witnesses to testify concerning the child victim’s hearsay statements where the trial court found that the probative value.of the statements was no.t substantially outweighed by the danger of presenting cumulative evidence).

In short, no error—let alone fundamental error—occurred in the trial court’s admission of the victim’s child hearsay statements through three-different witnesses.

Appellant next argues that the trial Court improperly assessed court costs, fees, and fines without referencing the statutory authority to support the assessments. Appellant also complains that the order of probation does not contain a breakdown of these assessments or the basis for the assessments.

A trial court’s ruling on a motion to correct a sentencing error is reviewed de novo. Smith v. State, 143 So.3d 1023, 1024 (Fla. 4th DCA 2014).

As a preliminary matter, a claim that the trial court improperly assessed costs in a sentencing order is an error that may be preserved in a Rule 3.800(b) motion. Jackson v. State, 983 So.2d 562, 572-74 (Fla. 2008). Here, appellant’s challenge to the costs was properly preserved in his Rule 3.800(b) motion.

Turning to the merits, we reject appellant’s argument to the extent appellant contends that the trial court erred in imposing assessments without referencing the statutory authority to support the assessments. We have repeatedly held that it is unnecessary for a trial court to refer to the specific statutory authority for imposing costs in a written sentencing order. See Johnson v. State, 944 So.2d 474, 477 (Fla. 4th DCA 2006); Lyons v. State, 837 So.2d 540, 541 (Fla. 4th DCA 2003); I.B. v. State, 806 So.2d 610, 612-13 (Fla. 4th DCA 2002), abrogated on other grounds as stated in D.G. v. State, 896 So.2d 920, 921-22 (Fla. 4th DCA 2005).

Indeed, this court has explicitly rejected the Second District’s contrary decision in Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994), which does impose such a requirement. See I.B., 806 So.2d at 612-13 (rejecting Sutton for the reasons stated in the concurring opinion, which concluded that Sutton “imposed a technical requirement beyond that required in any statute”).

Nonetheless, it is improper for a trial court to impose costs in a sentencing order without providing an explanation in the record as to what the costs represent, so as to permit a reviewing court to determine the statutory authority for the costs. See Bradshaw v. State, 638 So.2d 1024, 1025 (Fla. 1st DCA 1994) (declining to adopt “a requirement as broad as that adopted by the Second District,” but concluding that “it is improper to impose additional court costs without reference to statutory authority, or an explanation in the record as to what the additional costs represent, which is sufficiently clear to permit a reviewing court to determine the statutory authority for the costs”) (emphasis added); I.B., 806 So.2d at 613 (Gross, J. concurring) ’(“[A] court cannot willy nilly assess $1,000 in costs in a criminal case; it must specify what the costs are for and have the legal authority to.,impose them. The order in this ease does not run afoul of [cases standing for that proposition], since it identifies and breaks down the costs and the court had the statutory authority to impose them.”); see also Osterhoudt v. State, 214 So.3d 550, 551 (Fla. 2017) (holding that “trial courts must individually pronounce discretionary fees, costs, and fines during a sentencing' hearing to comply with due process requirements”).

Here, the trial court -improperly imposed a lump sum of $2,269 in assessments in the probation order without providing an explanation as to what the assessments represent. It is thus impossible to conduct meaningful appellate review of the undifferentiated assessments. While the trial court was not required to cite the specific statutory authority for each assessment imposed, the trial court was required to provide a breakdown of the assessments and identify what they represent, so as to permit this court to determine the statutory authority for each assessment. Although appellant waived a hearing as to the discretionary costs, the $2,269 lump sum figure appears to be significantly in excess of the sum of the statutorily mandated costs and the discretionary costs that were individually pronounced at the sentencing hearing.

Accordingly, we affirm appellant’s conviction, but reverse and remand for the trial court to correct the probation order by providing a breakdown of the statutorily mandated costs and the orally-pronounced discretionary assessments.

Affirmed in part, Reversed in part arid Remanded.

May and Kuntz, JJ.; concur.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    Katherine Jane SOUZA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-2809 & 4D16-2814
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew- Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges the facial constitutionality of Section 948.06(8)(e)2., Florida Statutes (2016), as violative of Apprendi v. New Jersey, 630 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the extent that it directs a judge, rather than a jury, to make a factual finding of dangerousness, which she .contends increases the minimum penalty for a crime. Because the right to trial by jury is not required in a revocation proceeding, and the court’s finding that the probationer is a danger to the community only prevents the court from again allowing probation, we hold that the statute is not facially unconstitutional.- Appellant also contends the trial court committed reversible error in failing to make written findings as to how she posed a danger to the community. The State properly concedes this error, and for this reason, we affirm the revocation of probation but remand for the court to make such written findings.

Appellant- was charged with robbery with a weapon and later with possession of cocaine and other drugs. She was sentenced for both and received a downward departure sentence of probation for three years on all counts. As to the robbery count, she was declared a habitual felony offender.

Shortly’ after sentencing, the State charged appellant' with violating her probation by changing her address without the consent of her probation officer. She admitted her violation. Because she .qualified as a “violent felony offender of special concern,” section 948.06(8)(e)2., Florida Statutes (2016), required the trial court to determine whether she “pos[ed] a danger to the community” before determining her sentence. The court held a danger hearing and then a sentencing hearing. At sentencing, appellant asked -for reinstatement to community supervision, while the State argued that the minimum sentence pursuant to her scoresheet was 62.7 months. The trial court found that appellant was a danger to the community based upon the offenses for which she was being sentenced as well as her criminal history, which revealed an escalating-pattern of behavior. The court then revoked her probation and sentenced her to the minimum sentence of 62.7 months in prison, concurrent for both sentences. Later, the court reduced the sentence to 56.85 months based upon a scoresheet error. Appellant appeals the sentence.

Although she did not-raise the issue in the trial court, on appeal appellant argues that Section 948.06(8)(e)2. is facially unconstitutional because in directing that the trial court make the danger finding, it is contrary-to Apprendi and its progeny, which hold that to guarantee a defendant’s Sixth Amendment right to a jury trial, a judge can only impose a sentence based on facts found by a jury or admitted by the defendant. See Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

The Sixth Amendment, however, does not apply to probation revocation pro-, ceedings. Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (noting that a probation revocation proceeding is not a criminal proceeding, and there is “no right to a jury trial before probation may be revoked.”); State ex rel Roberts v. Cochran, 140 So.2d 597 (Fla. 1962) (finding trial by jury is-not required generally in a probation revocation proceeding). Therefore, Apprendi does not apply.

A Section 948.06(8)(e)2, danger finding is not an element, for sentencing purposes. The statute provides requirements on the trial court in determining revocation of probation:

a. If the court has found that a violent felony offender of special concern poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.
b. If the court has found that a violent felony offender of special concern does not pose a danger to the community, the court' may revoke,, modify, or continue the probation or community control or may place the probationer into community control as provided in this section.

The grant of probation is “a matter of grace, not of right” and rests within the discretion of the judge. Martin v. State, 243 So.2d 189, 190-91 (Fla. 4th DCA1971). The revocation of probation is not itself, a sentence, but merely the determination that the probationer has violated the terms of probation and requires the court to determine a . sentence for the original charges. The statute simply limits the trial court’s discretion on whether or not to again extend this act of grace for certain offenders.

The sentence imposed in this case was the lowest permissible, sentence pursuant to the scoresheet. The “danger to the community” finding did not increase the punishment beyond the statutory maximum. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Nor did it increase the floor of a sentencing range. Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). It merely removed the trial court’s discretion to grant additional “grace” to the appellant; The statutory requirement that the judge make this finding rather than a jury does not render it unconstitutional.

The' State concedes that the court only made oral findings that appellant posed a danger to-the community and that her probation should be revoked. Section 948.06(8)(e)l., Florida Statutes (2016), requires “written findings as to whether or not the violent felony offender of special concern poses a danger to the community?’ Because' the record provides the necessary information to enter such an order, we remand for-entry of a .written order conforming to the court’s oral findings. Arnone v. State, 204 So.3d 556 (Fla. 4th DCA 2016).

Affirmed but remanded for entry of written order.

Damoorgian and Levine, JJ., concur.


author: Forst, J.

text:
    Francisco HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1708
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Francisco Henry was charged, along with a co-defendant, of forcing four teenagers at gunpoint to surrender their personal items and involuntarily engage in multiple sexual acts with each other. He was found guilty of four counts of false imprisonment, three counts of robbery with a firearm, and seventeen counts of sexual battery with a firearm. He raises ten issues on appeal. We affirm the trial court on eight of these challenges without discussion. This opinion is limited to discussing Appellant’s contentions that: (1) assuming he was at the crime scene, the trial court erred by denying his motion for judgment of acquittal because there was insufficient evidence that he performed or ordered any of the sex acts or threatened or pointed a gun at anyone, and (2) the trial court’s decision is flawed in finding seventeen counts of sexual battery with a firearm, as the evidence at best only supports nine counts. As set forth below, we affirm the trial court on all issues:

Background

Four high school students (three males, one female) were playing cards and smoking marijuana in an abandoned house. A man (“the co-defendant”) joined them in playing cards and texting until Appellant arrived. The co-defendant produced a gun and ordered the victims to put their possessions on a table. He ordered the female student to remove her pants, and he penetrated, her vagina with a pencil. The co-defendant and Appellant took turns holding the gun while they forced the students to perform, eight nonconsensual sex “scenes” with each other in various pairings (the term scene is used rather than act, as there were two acts/actions and two victims involved within each of the eight scenes). Eventually, a third man entered the house, confronted Appellant and the co-defendant, and told the victims to leave.

The first count of sexual battery was for the co-defendant’s act of penetrating the female victim’s vagina with a pencil. The other sixteen counts of sexual battery were based on the eight sex scenes. Each sex scene involved two victims; thus generating one count for each victim. For example, counts two and three involve one of the boys being forced to perform oral sex on the girl. Count two named the girl as the victim, and. count three named the boy. As noted above, Appellant was convicted of seventeen counts of sexual battery. ...

Analysis

I. Appellant’s motion for judgment of acquittal

Motions for judgment of acquittal are reviewed de novo. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). The evidence is viewed in a light most favorable to the State. Id.

A defendant is considered “a principal in first' degree” as follows: •

'Whoever commits any criminal offense 'against the state, whether felony or misdemeanor, or' aids, abets, counsels, hires, Or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal' in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such'offense.

§ 777.011, Fla. Stat. (2010); see also Charles v. State, 945 So.2d 579, 581-82 (Fla. 4th DCA 2006) (holding that “á defendant will be treated as if he did all the acts performed by the others involved in the perpetration of a crime if (1) the defendant . !ha[d] a conscious intent that the crime be .done’ and (2) the defendant ‘d[id] some act- or sa[id] some -word .which was intended to and d[id] incite,, cause, encourage, assist, or advise another person to actually commit the crime.’-” (alterations in original) (quoting R.J.K. v. State, 928 So.2d 499, 503 (Fla. 2d DCA 2006))).

On appeal, Appellant • maintains that there was no-evidence he was aiding and abetting the co-defendant in sexual battery or that Appellant - had the intent required for sexual battery to be committed. He likens this situation to that in Lovette v. State, 636 So.2d 1304 (Fla. 1994). In that case, the sexual battery was not a feature of the original felony (armed robbery of a store), defendant “did not participate in the sexual battery,” and he wasn’t, in the room with his co-defendánt and the victim when the co-defendant committed the crime of sexual battery. Id. át 1307. In the instant case, on the other hand, all four of the victims testified to there being multiple perpetrators of.the. sexual battery. The ..victims used the term “they” when-identifying who- made the victims perform sex acts on each other. One victim specifically testified that Appellant forced the victims to engage in sex acts. The victims further testified that Appellant laughed With the co-defendant as the victims performed the sex acts, Appellant and the co-defendant took turns holding the gun, and Appellant helped clean up the crime scene,

Viewing the evidence in a light most favorable to the State, Appellant was more than merely present; he was a participant. For any sex act Appellant did not order at gun point, his co-defendant was acting in “furtherance ... of the[ir] common design,” Charles, 945 So.2d at 582 (quoting Bryant v. State, 412 So.2d 347, 350 (Fla. 1982)), encouraged and assistéd by Appellant. Accordingly, the trial court correctly denied Appellant’s motion for judgment of acquittal.

II. The State presented sufficient evidence to prove each of the seventeen sexual battery claims

Sufficiency of the evidence- is reviewed de novo. Sigler v. State, 805 So.2d 32, 34 (Fla. 4th DCA 2001). The question of statutory interpretation presented-here is also subject to de novo review. State v. Hackley, 95 So.3d 92, 93 (Fla. 2012) (citing Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1220 (Fla. 2010)).

Appellant challenges the fact that he was charged for two counts of sexual battery for each scene. For example, when child A was forced to perform a sexual scene with child B, there were two counts, with child A being the victim' for one count, and child B being the victim for the other. Appellant failed to preserve his argument below regarding being charged with two counts of sexual battery for each sexual offense. His initial brief appears to concede this lack of preservation, arguing that being convicted on eight’ of, the charges was fundamental error, citing to Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998) (“A conviction is fundamentally erroneous when the facts'affirmatively proven by the State simply do not constitute the charged offense as a matter of law.”).

Appellant was charged with sexual battery. The pertinent statutory provisions are found in section 794.011, Florida Statutes (2010).

(l)(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ....
(3) A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony ....

§ 794.011(l)(h), (3), Fla. Stat. (2010). The prototypical sexual battery case under this statute would be the defendant committing the penetration or union on a single victim; but subsection (l)(h) can be read as “oral, anal or vaginal penetration by [one victim], or union [of one victim] with, the sexual organ of another [victim].”,,This construction is in line with prior case law interpreting the statute, as well as with the purpose of Chapter 794 of the Florida Statutes, which “shows a clear intent to protect an individual’s sexual privacy from violence.” Aiken v. State, 390 So.2d 1186, 1187 (Fla. 1980) (emphasis added) (quoting State v. Aiken, 370 So.2d 1184, 1185 (Fla. 4th DCA 1979)); see also Bautista v. State, 863 So.2d 1180, 1186 (Fla. 2003) (“To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.” (quoting State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000))); Surace v. State, 378 So.2d 895, 899 (Fla. 3d DCA 1980) (Schwartz, J., concurring) (“[A] violation of the sexual battery statute occurs whenever .., there is an intentional,' non-consensual intrusion into the sexual privacy of another.”). Here, since neither victim consented, there are two life felonies being committed for each scene. For instance, Count two charged Appellant with committing an act of sexual battery on Victim A by forcing her to have union of her vagina-with B’s mouth. Count three charged Appellant with committing an act of sexual battery on Victim B by forcing him to have union of his mouth with A’s vagina.

The statute does not, by its terms, require that the defendant be a direct party to the nonconsensual union or penetration covered by subsection (l)(h). Moreover, the following physical actions are covered by this subsection, so long as it was involuntary with respect to one or both' of the parties: oral, anal, or vaginal union of one person with the “sexual organ” (vagina or penis) of another; oral, anal or vaginal penetration by a male’s sexual organ; and anal or vaginal pen- etmtion (mere “union” is insufficient, see Watkins v. State, 48 So.3d 883, 884 (Fla. 1st DCA 2010)) by “any other object.” Thus, the penetration of a victim’s vagina by a pencil is covered; the. union of another person’s mouth with the victim’s vagina or penis (“sexual organs”) is also covered, In the instant case, there were two victims and two offenses for each of the sexual scenes that involved two of the teenagers (which would cover every sexual offense other than the pencil penetration, which had one victim).

As Appellant threatened (directly or in concert with the co-defendant) the four teenagers at gunpoint to perform the eight sexual scenes, with two victims for each scene, the sixteen convictions (plus the additional conviction for the penetration of the victim’s vagina by a pencil) are appropriate under the statute, and affirmable.

Conclusion

By all accounts, the criminal offenses at issue here occurred in the span of less than an hour, though the trauma to the victims and the punishment of the perpetrators may last a lifetime. Items were taken, at gunpoint, from three of the victims, and all four victims were forced, at gunpoint, to perform nonconsensual sexual acts upon each other. Appellant was identified by the victims (one of whom was previously acquainted with Appellant) as an active participant to these crimes. As the evidentiary findings and legal analysis support the trial court’s final judgment, we affirm with respect to all issues raised by Appellant on appeal.

Affirmed.

Conner and Klingensmith, JJ., concur.

      . The same boy and girl were involved as a pair in one more of the eight sexual "scenes” (with each "scene” having two, coerced, actors). Appellant does not challenge each specific scene (there were eight), as distinct from each pairing (there were six), giving rise to a separate count. The practice does not violate double jeopardy. Graham v. State, 207 So.3d 135, 137 (Fla. 2016) (charging two counts of sexual battery for the- acts of penetrating the victim's mouth and vagina during a single criminal episode did not violate double jeopardy).


author: VILLANTI, Chief Judge.

text:
    BETHANY TRACE OWNERS’ ASSOCIATION, INC., a Florida nonprofit corporation, Appellant, v. WHISPERING LAKES I, LLC, a Florida limited liability company; and Watermen-Pinnacle, Inc., a Florida corporation, f/k/a Bethany Trace Estates, Inc., Appellees.
    Case No. 2D13-2792
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017

      Matthew S. Toll of Toll Law, Cape Coral, for Appellant.
    P. Brandon Perkins of Rogers Towers, P.A., Fort Myers, for Appellee Whispering Lakes I, LLC.
    No appearance for Appellee Watermen-Pinnacle, Inc.

      . Judge Crenshaw was substituted for Judge Davis, who served on the original panel. '

   ORDER ON APPELLEE WHISPERING LAKES’ MOTION TO REVIEW GRANT OF APPELLANT’S MOTION FOR APPELLATE ATTORNEY’S FEES

VILLANTI, Chief Judge.

By motion filed pursuant to Florida Rule of Appellate Procedure 9.400(c), Whispering Lakes I, LLC, seeks review of the trial court’s order that granted the motion for appellate attorney’s fees filed by Bethany Trace Owners’ Association, Inc; (the Association), and awarded it fees in the arhount of $15,000. We grant the motion for review, reverse the trial court’s appellate fee award, and remand for further proceedings.

• On December 3, 2014, this court issued its opinion in Bethany Trace Owners’ Ass’n v. Whispering Lakes I, LLC, 155 So.3d 1188 (Fla. 2d DCA 2014). That decision reversed a summary judgment in favor of Whispering Lakes and codefendant Waterman-Pinnacle,' Inc., in a case- that arose out of the ownership of certain land associated with the Bethany Trace subdivision. The reversal was based on our determination that the trial court’s interpretation of the Association’s Covenants, Conditions, Restrictions & Easements' (CCR & Es) was legally erroneous. As a result, we remanded for further proceedings.

On the issue of appellate attorney’s fees* this court initially entered an order on December 3, 2014, that granted appellate attorney’s fees to the Association outright as the prevailing party on appeal. Waterman-Pinnacle filed a .timely motion for rehearing on the issue of appellate attorney’s fees, and Whispering Lakes filed an untimely motion for rehearing. This court struck Whispering Lakes’.untimely motion for rehearing, but we granted Waterman-Pinnacle’s motion for rehearing, withdrew the December 3, 2014, order, and . issued a new fee order on January 23, 2015, that authorized an award of appellate attorney’s fees but only if judgment was ultimately entered in favor of the Association.

After further proceedings on remand, the trial court entered an- order granting summary judgment in favor of the Association on the issue of liability only. The order left open the issue of damages, which was to be- set for trial. In the. same order, the trial court found that the Association was the prevailing party for purposes of an award of attorney’s fees under section 10.4 of the OCR & Es as against Whispering Lakes, but it left the question of the amount of trial court; attorney’s fees to be determined.

On the same day, the trial court entered a separate judgment awarding the Association $15,000 in appellate attorney’s fees against Whispering Lakes. The purported basis for this fee judgment was the .order granting summary judgment to the Association on the-issue of liability, this court’s December 3, 2014, order that provided for an award of appellate attorney’s fees-in the Association’s favor, and the trial. court’s determination that this, court’s January 23, 2015, fee order requiring entry of a judgment in the Association’s favor did not apply to Whispering Lakes. Whispering Lakes timely filéd a motion for rehearing of the appellate fee award, which was denied. This timely motion for review pursuant to rule 9.400(c) followed.

In its motion for review, Whispering Lakes notes that there is no judgment in favor of the Association in the underlying case because damages are still pending. Rather, there is only an order granting a summary judgment on the issue of liability. Therefore, Whispering Lakes contends that the Association is not yet entitled to an award of appellate attorney’s fees since an order granting summary judgment on liability is not a “judgment” and this court’s January 23, 2015, award of appellate fees was conditioned on the entry of a judgment. In 'opposition, the Association argues that, as against Whispering Lakes, it does not need to have a judgment entered in. its favor because this court’s December 3, 2014, order granting appellate attorney's fees outright applies to .Whispering Lakes and the January 23, 2015, order qualified with the “judgment” language applied only to Waterman-Pinnacle.

Thus, as teed up by the motion for review and response, there are two issues in play: first, whether this court’s award of appellate attorney’s fees against Whispering Lakes was contingent on a judgment being entered in favor of the Association, and second whether there has been a judgment entered in favor of the Association sufficient to warrant an award of appellate attorney’s fees. The answer to the first question is yes while the answer to the second is no.

As to the first question, the language of this court’s January 23, 2015, order on appellate attorney’s fees is dispositive. In that order, this court withdrew the order of December 3, 2014, which awarded appellate attorney’s fees to the Association outright. In its place, this court issued a new order that awarded appellate attorney’s fees “contingent on the ultimate entry of judgment in favor of’ the Association. Since the December ,3, 2014, was specifically withdrawn and replaced with the new order, the language of the January 23, 2015, order controls and is binding on all parties and the trial court. The trial court’s determination that our fee order of December 3, 2014, continued to apply to Whispering Lakes despite having been withdrawn by this court is thus, clearly incorrect.

As to the second question, Whispering Lakes is correct that there has been no entry of a trial court judgment sufficient to entitle the Association to an award of appellate attorney’s fees at this juncture. An order that simply grants a motion for summary judgment is not a “judgment” because such an order contemplates further judicial labor. See, e.g., Better Gov’t Ass’n of Sarasota Cty., Inc. v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001); Harris v. Mosteller, 258 So.2d 275, 275 (Fla. 2d DCA 1971); see also Judgment, Black’s Law Dictionary (7th ed. 1999) (defining a “judgment” as “[a] court’s final determination of the rights and obligations of the parties”). While an order granting summary judgment may ultimately lead to entry of a “judgment,” it is not a “judgment” in and of itself.

Here, the order at issue does not purport to enter judgment in favor of the Association; it merely grants-a motion for summary judgment on the issue of liability. However, our January 23, 2015, order required entry of a judgment before appellate fees could be awarded. Since the contingency required by our order, i.e., entry of a judgment in favor of the Association in the underlying case, has not yét occurred, the award of appellate attorney’s fees was premature.

Therefore, we grant Whispering Lakes’ motion for review and quash the order awarding the Association $15,000 in appellate attorney’s fees. On remand, the Association may still be entitled to such an award if and when the trial court enters judgment in its favor.

KELLY and CRENSHAW, JJ„ Concur.

      . Apparently, the Association Settled the case with Waterman-Pinnacle, so there is no issue of fees as between those two parties.


author: PER CURIAM.

text:
    Nathaniel BROWN, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D16-4480
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Nathaniel Brown, pro se, Appellant. ■
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Nathaniel Brown appeals the final order denying his petition for writ of mandamus, entered on. September 9, 2016 by the circuit court in Brown v. Florida Department of Corrections, Case No. 2016 CA 000708 (2d Cir., Leon Cnty.). Because Mr. Brown fails to demonstrate that the circuit court abused its discretion in denying the extraordinary relief, the order is affirmed. Rosado v. State, 1 So.3d 1147, 1148 (Fla. 4th DCA 2009) (“An appellate court reviews a trial court’s decision on a petition for writ of mandamus under the abuse of discretion standard of review.”); see also Topps v. State, 865 So.2d 1253, 1257 (Fla. 2004) (“Since the nature of an extraordinary writ is not of absolute right, the granting of such writ lies within the discretion of the court.”).

We note that based on his numerous, repetitive appeals to this court from the trial court’s denials of postconviction relief after his judgment and sentence were affirmed, Mr. Brown was sanctioned by this court in Brown v. State, 35 So.3d 72 (Fla. 1st DCA 2010). Mr. Brown was prohibited from filing “any future appeals, petitions, motions, pleadings, or filings” challenging his judgment and sentence in case number 2005 CF 001831 (4th Cir., Duval Cnty.), unless such filings were signed by a member of the Florida Bar.

Subsequently, Mr. Brown embarked on a course of filing civil actions for extraordi-. nary writs, directed towards the Florida Department of Corrections and the State of Florida. None of his appeals of the denials of these complaints and petitions were successful in this court. In Brown v. State, 186 So.3d 625 (Fla. 1st DCA 2016), this court denied Mr. Brown’s petition for writ of prohibition on the merits and warned him that future frivolous or successive filings in the court “may result in the imposition of sanctions against him,” including additional limitations on his ability to file pro se appeals and petitions in this court.

In light of Appellant’s active litigation record in this and the circuit courts of this state, and of this court’s existing sanctions against and warning to Mr. Brown, in addition to affirming the order on appeal, we expressly retain jurisdiction to pursue any additional sanctions against him pursuant to rule 9.410, Florida Rules of Appellate Procedure and section 944.279, Florida Statutes. See Steele v. State, 998 So.2d 1146 (Fla. 2008); Walker v. Fla. Parole Comm’n, 70 So.3d 665 (Fla. 1st DCA 2011).

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


author: SALTER, J.

text:
    Rachel VANCELETTE, Appellant, v. BOULAN SOUTH BEACH CONDOMINIUM ASSOCIATION, INC., et al., Appellees.
    Nos. 3D16-1632 & 3D16-1338
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2017

      LaValle, Brown & Ronan and Kenneth J. Ronan and Anthony Brown and John Schwencke and Nicole C. Seropian (Boca Raton), for appellant. '
    • Carlton Fields and Sylvia H. Walbolt (Tampa) and David L. Luck; Shendell Pollock and Gary R. Shendell, Kenneth. S. Pollock and Ivan J. Reich (Boca Raton); Conroy Simberg and Diane H. Tutt (Hollywood); Bartlett, McDonough & Monaghan and Marybeth Cullinan (Fort Lauderdale); Quintairos, Prieto, Wood & Boyer and Thomas A. Valdez (Tampa), for appellees.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   SALTER, J.

Rachel Vancelette appeals five final summary judgments entered in favor of seven' defendant/appellees regarding personal injuries when she tripped and fell on an unmarked curb at the far side of a sidewalk access ramp. In case No. 3D16-1632, Ms. Vancelette appeals a final summary judgment in favor of Boulan South Beach Condominium Association, Inc. (“Association”). In case No. 3D16-1338, she appeals final summary judgments in favor of: Park Place Development, LLC' (“Developer”); Soares Da Costa, CS, LLC (“Contractor”); Master Excavators, Inc., and Curb Masters, LLC (collectively, “Subcontractors”); and Schwebke-Shiskin Associates, Inc., and Hernando J. Navas (collectively, “Engineers”).

Ms. Vancelette’s injury occurred in December 2011. The undisputed facts establish that the ramp and curb on which she tripped were part of a renovation project undertaken by the Florida Department of Transportation (“DOT”). DOT issued a permit for the Developer to repair the crosswalk, and it approved plans for the work in 2009'. The work was performed by the Subcontractors under a contract with the Contractor. The Engineers drew, the plans and inspected the work,:

( There is also no genuine dispute .that (a) DOT accepted the work in August 2010, fourteen months before Ms. Vancelette suffered her injury, and (b) the alleged defect in the project was patent rather than latent. Ms. Vancelette raises two issues on appeal. First, she argues that her motion for continuance of the hearing on the motions for summary judgment, filed less than two weeks before the scheduled hearing and three months after Ms. Van-celette’s counsel notified the trial court that she was ready for trial (and two years, ten months, after the lawsuit was filed) should have been granted. Second, she argues that the case is not subject to the “Slavin doctrine,” Slavin v. Kay, 108 So.2d 462 (Fla. 1958), regarding the legal effect of an owner’s acceptance of the work. We find no error regarding the 'trial court’s analysis of either of these issues.

The trial court’s denial, of the motion for continuance is reviewed under the abuse of discretion standard., Ms. Van-celette has not advanced any reason why she could not have completed the discovr: ery before the summary judgment hearing, particularly in light of her own notice of X’eadiness for trial months earlier and the lengthy pendency of the action. Crespo v. Fla. Entm’t Direct Support Org., Inc., 674 So.2d 154, 155 (Fla. 3d DCA 1996); Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990).

Absent a non-moving party’s demonstration of diligence, good faith, and the materiality of the discovery sought to be completed, a trial court cannot be faulted for denying a, motion to continue a long-scheduled hearing on the motions for summary judgment. See, e.g., Smith v. Smith, 734 So.2d 1142, 1144-45 (Fla. 5th DCA 1999) (“after a motion for summary judgment is filed and scheduled, non-moving parties cannot thwart the summary judgment hearing by initiating discovery”); Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37 (Fla. 3d DCA 2008); Carbonell v. BellSouth Telecomms., Inc., 675 So.2d 705 (Fla. 3d DCA 1996).

Regarding the merits of the motions'for summary judgment, the Slavin doctrine holds that acceptance of the completed work by the owner relieves the construction and design defendants of further liability as to alleged patent defects. Ms. Vancelette’s reliance on a punch list email by the Engineers, “Ramp not constructed as per plans. (Possible tripping hazard),” is misplaced. The email was dated March 19, 2010, five months before DOT accepted the completed work. The Slavin doctrine applies to such a scenario. Gustinger v. H.J.R., Inc., 573 So.2d 1033 (Fla. 3d DCA 1991); Foster v. Chung, 743 So.2d 144 (Fla. 4th DCA 1999).

The final summary judgments in favor of thése seven appellee/defendants are affirmed.

      . The two appeals were consolidated for all purposes in this Court.


author: PER CURIAM.'

text:
    Bridget HUFFMAN, Appellant, v. Lorraine BEAN, etc., et al., Appellees.
    No. 3D16-2327
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2017

      Densborn Blachly and R. Brock Jordan (Indianapolis, IN); Russomanno & Borrel-lo, Herman J. Russomanno, Robert J. Bor-rello and Herman J. Russomanno III, for appellant. ■ • ■
    Dunwody White & Landon and Jack A. Falk, Jr.; Duane Morris, and Marsha G. Madorsky; Carlton Fields Jorden Burt' and Thomas Meeks, for appellees.
    Before EMAS, LOQUE and SCALES, JJ.
   PER CURIAM.'

Affirmed. See Soriano v. Manes, 177 So.3d 677 (Fla. 3d DCA 2015); Strulowitz v. Cadle Co., II, Inc., 839 So.2d 876 (Fla. 4th DCA 2003).


author: SCALES, J.

text:
    Samuel RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1007
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2017
    Samuel Rivera, in proper person.
    Pamela Jo Bondi; Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SCALES and LÚCK, JJ.
   SCALES, J.

On April 29, 2016, Appellant Samuel Rivera filed with this "Court a “Notice for Belated Appeal Nunc Pro Tunc Motion.” We grant Appellee State of Florida’s motion to dismiss this motion. We dismiss Rivera’s related May 26, 2017 “Motion to Deny the State Attorney General’s Motion tp Dismiss.” Further, we issue an order to show cause as. described below.

ORDER TO SHOW CAUSE

In 1987, Rivera was convicted of first degree murder and armed robbery, His conviction, and life sentence on the- first degree murder count were upheld on direct appeal,' although his sentence for armed, robbery was reversed by this Court with an order to re-sentence Rivera on this count. Rivera v. State, 526 So.2d 1046 (Fla. 3d DCA 1988). The trial court re-sentenced Rivera in 1989. Since then, Rivera has filed twelve post-conviction appeals and petitions with this Court. After Rivera filed similar motions and petitions in the circuit court, the circuit court issued a November. 2012 order requiring Rivera to show cause as to why Rivera should not be barred from filing future pro se pleadings. After Rivera filed a response, the trial court entered a December 21, 2012 order prohibiting Rivera from filing further pro se pleadings in lower court case number 85-25037.

It appears that Rivera’s purported belated appeal in the instant case is an effort to appeal not only Rivera’s original conviction, but also the trial court’s 2012 show cause order and the resulting prohibition order preventing Rivera from further pro se filings. Rivera has already unsuccessfully appealed the trial court’s 2012 show cause and sanctions orders, as well as his original conviction. We, therefore, grant the State’s motion and dismiss the instant case.

Further, Rivera is hereby directed to show cause, within forty-five days from the date of this order, why he should not be prohibited from filing any further pro se appeals, petitions, motions or other proceedings related to his criminal sentencing in circuit court case number 85-25037.

If Rivera does not demonstrate good cause, any such further and unauthorized filings by Rivera will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including forfeiture of gain time. See § 944.279(1), Fla. Stat. (2015).

State’s motion granted; Rivera’s motion dismissed. Order to show cause issued.

      . Rivera v. State, 189 So.3d 780 (Fla. 3d DCA 2015) (table); Rivera v. State, 162 So.3d 1021 (Fla. 3d DCA 2014) (table); Rivera v. State, 117 So.3d 423 (Fla. 3d DCA 2012): Rivera v. State, 112 So.3d 495 (Fla. 3d DCA 2013) (table); Rivera v. State, 109 So.3d 1168 (Fla. 3d DCA 2013) (table); Rivera v. State, 83 So.3d 734 (Fla. 3d DCA 2012) (table); Rivera v. State, 49 So.3d 1278 (Fla. 3d DCA 2010) (Table); Rivera v. State, 31 So.3d 789 (Fla. 3d DCA 2010) (table); Rivera v. State, 12 So.3d 233 (Fla. 3d DCA 2009) (table); Rivera v. State, 795 So.2d 70 (Fla. 3d DCA 2001) (table); Rivera v. State, 639 So.2d 1124 (Fla. 3d DCA 1994); Rivera v. State, 581 So.2d 1325 (Fla. 3d DCA 1991) (table).

      . Rivera v. State, 109 So.3d 1168 (Fla. 3d DCA 2013).


text:
    Willie Earl JOHNIGAN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2289
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017.
    Rehearing Denied July 21, 2017
    Willie Earl Johnigan, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    Eddie Lee ATKINS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4399
    District Court of Appeal of Florida, First District.
    Opinion filed July 14, 2017.

      Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Eddie Lee Atkins appeals his judgment of conviction and sentences for sexual battery, attempted sexual battery, burglary of a conveyance, and carjacking raising several issues. We find only one merits mention.

Appellant argues that his dual convictions for burglary of a conveyance and carjacking constitute double jeopardy. In' furtherance of this argument he urges this Court to adopt the reasoning of Judge Sharp who dissented in Green v. State, 828 So.2d 462 (Fla. 5th DCA 2002). Instead, we concur with the majority’s decision in Green which held that dual convictions for burglary of a conveyance and carjacking do not constitute double jeopardy because the offenses do not share identical elements and because neither is subsumed in the other. Id. at 464.

Because none of the issues raised on appeal warrant reversal, we AFFIRM the judgment and sentences.

LEWIS, BILBREY, and WINOKUR, JJ., CONCUR. :


text:
    Robert John DOYLE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1351
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017
    Rehearing Denied October 2, 2017
    Robert John Doyle, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

We treat the pleading filed by appellant Doyle as a Petition for Certiorari ‘and deny the petition finding the trial court’s order prohibiting Robert John Doyle from filing further pro se pleadings, motions, or petitions challenging his conviction and sentence in case number 84-005121 entirely proper.

ORDER TO SHOW CAUSE

Further, Robert John Doyle has filed numerous postconviction appeals regarding his conviction and sentence in lower tribunal case number 84-00512Í. Our preliminary review of those prior postconviction proceedings evidences that Robert John Doyle has engaged in the filing of appeals on claims that were successive, time-barred, or otherwise wholly without merit. We therefore order Robert' John Doyle within thirty (30) days from the date of this order, to file a response and to show cause why this Court should not prohibit him from submitting further pro se appeals, petitions, motions or other pleadings regarding case number 84-005121, unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing.


author: CASANUEVA, Judge.

text:
    Sidney Deon REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5271
    District Court of Appeal of Florida, Second District.
    Opinion filed August 2, 2017.
    Sidney Deon Reynolds, pro se.
   CASANUEVA, Judge.

Sidney Deon Reynolds appeals the post-conviction courts order summarily denying his motion for postconviction relief in three separate cases. In his motion, he asserted three claims of error. Claims one and two sought postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Finding no error, we affirm the postconviction court’s order summarily denying claims one.and two.

. The third and remaining claim asserted an illegal sentence claim pursuant to Florida Rule of Criminal Procedure 3.800(a). Specifically, Mr. Reynolds alleged that the enhancement of his mandatory minimum sentence resulted in an illegal sentence.

Rule 3.800(a)(1) provides that “[a] court may at any time correct an illegal sentence imposed by it.” To the extent that the postconviction court’s order can be read to bar this claim as untimely, that basis is incorrect. Alternatively, to the extent that the order can be read as failing to rule upon this claim, a remand for disposition is appropriate.

In remanding this matter for further proceedings, we are not suggesting the remaining claim is meritorious. Rather, that decision remains to be made by the postconviction court.

Affirmed in part; reversed in part; remanded for further proceedings.

WALLACE and BADALAMENTI, JJ., Concur.


text:
    COASTWIDE SERVICES, LLC, Appellant, v. Carolyn GOLDBERG, Appellee.
    No. 3D17-1162
    District Court of Appeal of Florida, Third District.
    Opinion filed August 2, 2017

      Robert C. Meyer, for appellant.
    Jerome L. Tepps and William A. Treco (Sunrise), fon appellee.
    Before SUAREZ, SALTER and LOGUE, JJ.
   SALTER, J.

Coastwide Services, LLC (“Coastwide”), defendant and mortgagor in a circuit court foreclosure action, appeals orders denying its right to exercise its statutory right of redemption (section 45.0315, Florida Statutes (2016)). The mortgagée and plaintiff below, Carolyn Goldberg, and Best Investment, LLC (“Best Investment”), a third-party purchaser at the'foreclosure- sale conducted by'the circuit court Clerk, opposed Coastwide’s efforts to redeem.- -

We affirm in part, and reverse and remand the orders in part, based on the plain language of the redemption statute and the tangled procedural occurrences at and after the foreclosure sale. The pertinent events were:

1, The final judgment of foreclosure specified that the encumbered property would be sold by electronic sale beginning at 9:00 a.m. on February 15, 2017. The trial court denied a last-ditch motion % Coastwide to reschedule the sale earlier that morning.

2. The sale records report that the property was sold to Best Investment for $140,300.00 at 10:08 a.m. on that date. The final judgment amount in favor of Ms. Goldberg was $82,164.08.

3. At 10:09 a.m. on the same date, a co-owner of the encumbered property, Blackstone Capital Strategies (“Blackstone”), filed a Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern District of Florida. On February 23, 2017, Blackstone filed an objection to the foreclosure sale of the property to Best Investment based on the Blackstone bankruptcy filing, alleging that the bankruptcy filing occurred prior to the conclusion of the electronic sale.

4. The bankruptcy filing was irregular (Blackstone was a corporation and the petition, completed in handwriting, was filed by a non-lawyer agent of Blackstone) and the petition was later determined by the Bankruptcy Court to have been filed in bad faith. In the order ultimately dismissing and closing the Blackstone case, the Bankruptcy Court vacated the automatic stay, 11 U.S.C. § 362, nunc pro tunc to the date the petition was filed. In effect, this rendered the bankruptcy a nullity insofar as the foreclosure action was concerned.

5. Meanwhile, the Clerk of Court did not issue the certificate of sale of the property to Best Investment, presumably because the Clerk had been made aware of the Blackstone bankruptcy. Coastwide’s officer maintains that he made multiple efforts to vacate the sale and to redeem the property at the Clerk’s office. Coastwide’s officer filed an objection to the sale and a motion to vacate the sale and certificate of sale on February 24, 2017.

6. The trial court denied these motions and a subsequent motion by Coastwide to exercise the right of redemption. Ms. Goldberg filed motions to ratify the February 15, 2017, foreclosure sale to Best Investment and to award her post-judgment interest and attorney’s fees.

The trial court denied the Coastwide motions, ratified the sale, and granted Ms. Goldberg’s motion to direct the Clerk to issue the certificates of sale and title. Coastwide appealed, and we stayed the trial court orders pending further order of this Court.

Analysis

Coastwide’s co-owner, Blackstone, plainly disrupted the normally-routine foreclosure sale process. The Clerk is alleged to have declined to allow a redemption payment without a court order in light of the bankruptcy stay and other concerns. But when the smoke cleared, (a) Coastwide has not yet demonstrated a true “tender” of the redemption amount computed in accordance with the final judgment of foreclosure, and (b) no certificate of sale has been “filed” within the meaning of section 45.0315. On such a record, the trial court and this Court are presently unable to apply the statute according to its plain meaning.

We thus affirm the trial court’s ratification of the foreclosure sale conducted by the Clerk without knowledge of the Blackstone bankruptcy, but we reverse and remand the orders insofar as they deny Coastwide an opportunity to redeem the property before the certificate of sale is actually filed. See De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928, 931 (Fla. 4th DCA 2015); In re Hill, 305 B.R. 100, 111 (Bankr. M.D. Fla. 2003). On remand, the parties may file further motions to: (1) compute the adjusted redemption amount (awarding post-judgment interest and, to the extent applicable, Ms. Goldberg’s attorney’s fees and costs incurred as a result of the delays and proceedings following the sale), and (2) direct the Clerk to issue and file the certificate of sale to Best Investment if the adjusted redemption amount has not been paid to the Clerk within ten days after the order fixing the adjusted redemption amount has been entered. We vacate our order granting Coastwide’s emergency motion for stay pending appeal entered June 8,2017.

Affirmed in part; reversed and remanded for further proceedings in accordance with this opinion.

      . § 45.0315. Right of Redemption,
      At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a' foreclosure sale by paying the amount of moneys specified ih the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

      . If the adjusted redemption amount is not timely paid, the certificate of title will also follow as provided by section 45.031(5), Florida Statutes (2016).


author: SUAREZ, J.

text:
    Pierre-Jean NGUYEN, Petitioner, v. Natalia NGUYEN, Respondent.
    No. 3D17-1515
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Barry S. Franklin & Associates, P.A. and Barry S. Franklin, for petitioner.
    Hinshaw & Culbertson, LLP and Elizabeth Baker; Barakat Law, P.A. and Brian Barakat, for respondent.
    Before SUAREZ, SCALES and LUCK, JJ.
   SUAREZ, J.

Petitioner Pierre-Jean Nguyen seeks the issuance of a writ of prohibition following an order denying, as legally insufficient, an initial motion for disqualification of the trial judge. The standard of review of a trial court’s determination on a motion to disqualify is de novo. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990); Wade v. Wade, 123 So.3d 697 (Fla. 3d DCA 2013).

The Florida Rules of Judicial Administration provide for the disqualification of a judge when “the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1). The legal sufficiency of a motion to disqualify depends on “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983); State v. Borrego, 105 So.3d 616, 619 (Fla. 3d DCA 2013). The allegations of fact that are contained in the motion must be taken as true, Masten v. State, 159 So.3d 996, 997 (Fla. 3d DCA 2015), and “the question of disqualification focuses not on what the judge intended, but rather how the message is received and the basis of the feeling.” Great Am. Ins. Co. of N.Y. v. 2000 Island Blvd. Condo. Ass’n, 153 So.3d 384, 390 (Fla. 3d DCA 2014) (citing Livingston, 441 So.2d at 1086).

Having reviewed the petition and the transcript of the hearing referred to therein, we conclude that the facts • alleged in the motion to disqualify, which rtiust be taken as true, “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Rodriguez v. State, 919 So.2d 1252, 1274 (Fla. 2005).

We grant the writ of prohibition. We withhold formal issuance of the writ, confident that the trial judge will promptly issue an order of disqualification. We remand this cause for reassignment to a successor judge and .for further proceedings consistent with this opinion.


author: LOGUE, J.

text:
    LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.
    No. 3D17-1421
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Rehearing Denied October 2, 2017
    Herssein Law Group, and Reuven Hers-sein, for petitioners.
    Shutts & Bowen LLP, and Frank A. Zacherl and Patrick G. Brugger, for respondent. - , ■

      Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

The Law offices of Herssein and Hers-sein, P.A. (Herssein Firm) and Reuven Herssein, petition this court for a writ of prohibition to disqualify the .trial court judge below. We deny the petition. Although Petitioners raise three grounds, we write only to address the petitioners’ argument that the trial court judge .should be disqualified because the judge is a Face-book “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

The Herssein Firm sued its' former client, United Services Automobile Association (USAA), for breach of contract and fraud. In the course of the litigation, Hers-sein accused one of USAA’s executives of witness tampering and has indicated that the executive is a potential witness and a potential defendant. In response, USAA hired Israel Reyes, an ex-circuit court judge, to represent the executive.

On June 8, 2017, the Herssein Firm filed a motion to disqualify the trial judge. The motion is based in part on the fact that Reyes is listed as a “friend” on the trial judge’s personal Facebook page. In support of the motion, Iris J. Herssein and Reuven Herssein, president and vice president of the Herssein Firm, signed affidavits in which, they swore, “[bjecause [the trial judge] is Facebook friends with Reyes, [the executive’s] personal attorney, I have a well-grounded fear of not receiving a fair and impartial trial. Further, based on [the trial judge] being Facebook fi*iends with Reyes, I .., believe that Reyes, [the executive’s] -lawyer- has influx enced [the trial judge].” The trial court denied the disqualification motion, and the Herssein Firm.filed this petition for writ of prohibition.

The test for determining the legal sufficiency of a motion for disqualification is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial,” Molina v. Perez, 187 So.3d 909, 909 (Fla. 3d DCA 2016) (quoting Brofman v. Fla. Hearing Care Ctr., Inc., 703 So.2d 1191, 1192 (Fla. 4th DCA 1997)). Our review of the facts focuses on “the reasonable effect on the party seeking disqualification, not' the subjective intent of the judge.” Haas v. Davis, 37 So.3d 983, 983 (Fla. 3d DCA 2010) (quoting Vivas v. Hartford Fire Ins. Co., 789 So.2d 1252, 1253 (Fla. 4th DCA 2001)).

. The issue in this case is therefore whether, a reasonably prudent person would fear that he or. she could not get a fair and impartial trial because the judge is ,a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit., At ,the outset, we note as a general matter, that “allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge.” Smith v. Santa Rosa Island Auth., 729 So.2d 944, 946 (Fla. 1st DCA 1998), Indeed, the, Florida Supreme Court has noted:

There are countless factors which may cause some members of the community to think that a judge would be, biased in favor of a litigant or counsel for a litigant, e.g., friendship, member of the same church or religious congregation, neighbors, former classmates or fraternity brothers. However, such allegations . have been found legally. insufficient when asserted in a motion for disqualification.

MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1338 (Fla. 1990). And as Justice, Overton explained in denying a request for recusal, “[i]f friendship alone with a lawyer or member of a firm is a basis for disqualification, then most judges in rural and semi-rural areas and many in metropolitan areas would be subject to disqualification in a large number of cases.” Hayes v. Rogers, 378 So.2d 1212, 1220 (Fla. 1979).

Nevertheless, this authority does not foreclose the possibility that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. Indeed, in Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), the Fourth District held that recusal was required when 'a judge was a Facebook “friend” with the prosecutor. The Fourth District based its holding on a 2009 Judicial Ethics Advisory Committee Opinion. Fla. JEAC Op. 2009-20 (Nov. 17, 2009). In its Opinion, the Committee advised that judges were prohibited from adding lawyers who appear before them as “friends” on their Facebook page or from allowing lawyers who appear before them to- add them as “friends” on the lawyers’ Face-book pages. The Committee focused on the fact that a judge on Facebook' has an active role in accepting or rejecting potential “friends” or in inviting another to accept them as “friends.” Id. “It is this selection and communication process,”- the Committee advised, “that violates Cannon 2B, because the judge, -by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.” Id.

A minority of the’ Committee disagreed. The minority believed that “the listing of lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page does hot reasonably convey to others the impression that these lawyers are in a special position to influence the judge.” Id. They reasoned “the term ‘friend’ on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a’ person is a ‘friend’ in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard.” Id.

In 2010, the Committee advised that candidates for judicial office may add lawyers as “friends” on a social networking site even if those lawyers would later appear before them should the candidate be elected. Fla. JEAC Op. 2010-05 (March 19, 2010). It also reaffirmed, however, the advice in its 2009 advisory opinion that a judge may not be Facebook “friends” with a lawyer who appears before her, although a minority believed the committee should recede from its 2009 opinion. See Fla. JEAC Op. 2010-06 (March 26, 2010).

More recently, the Fifth District signaled disagreement with the Fourth District’s Domville decision. In Chace v. Loisel, 170 So.3d 802, 803-04 (Fla. 5th DCA 2014), the Fifth District held that, in a dissolution of marriage case, a judge who sent the wife a Facebook friend request during the proceedings, which the wife rejected, made an ex-parte communication and was required to recuse himself. In so ruling, however, the Fifth- District noted, ‘‘[w]e have serious reservations about the court’s rationale in Domville.” Id. Defining the word “friend” on Facebook as a “term of art,” the Fifth District explained:

A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.

Id.

We agree "with the Fifth District that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” We do so for three reasons. First,, as the Kentucky Supreme. Court noted, “some people have thousands of Facebook ‘friends.’ ” Sluss v. Commonwealth, 381 S.W.3d 215, 222 (Ky. 2012). In Sluss, the Kentucky Supreme Court held the fact that a juror who was a Facebook “friend” with a family member of a victim, standing alone, was not enough evidence to presume juror bias sufficient to require a new trial. In Sluss, the juror in question had nearly two thousand Facebook “friends.” Id. at 223. Another recent out-of-state case involved a trial judge with over fifteen hundred Facebook “friends” who was allegedly a Facebook friend with a potential witness, a local university basketball coach, who himself had more than forty-nine hundred Facebook “friends.” State v. Madden, No. M2012-02473-CCA-R3-CD, 2014 WL 931031, at *1-2 (Tenn. Crim. App. Mar. 11, 2014) (holding trial judge did not abuse his discretion under Tennessee law in refusing to recuse himself because he was allegedly Facebook “friends” with potential witness).

■ Second, Facebook members often cannot recall every person they have accepted as “friends” or who have accepted .them as “friends.” In a recent case, a student, who had over one thousand Facebook “friends,” did not know he was a Facebook “friend” with another student he was accused of assaulting. Furey v. Temple Univ., 884 F.Supp.2d 223, 241 (E.D. Pa. 2012). In another case, a juror did not recognize a victim’s name even though a member of the victim’s family was one of her over-a-thousand Facebook “friends.” Slaybaugh v. State, 47 N.E.3d 607, 608 (Ind. 2016) (affirming trial court’s denial of mistrial when “juror testified she was a realtor, had more than 1000 ‘friends’,on Facebook— most of whom she had ‘friended’ for networking purposes—but she had not recognized the victim’s name during voir dire, did not recognize the victim when she testified, and did not know the victim or her family”).

Third, many Facebook “friends” are selected based upon Facebook’s data-mining technology rather than personal interactions. Facebook data-mines its members’ current list of “friends,” uploaded contact lists from smart phones and computers, emails; names tagged in uploaded photographs, internét groups, networks such as schools and employers, and other publicly or privately available information. This iri-formation is analyzed, by proprietary algorithms that predict associations. Facebook then suggests these “People You May-Know” as potential “friends.”

The use of data mining and networking algorithms, which are also revolutionizing modern marketing and national security systems, reflects an astounding development in applied mathematics;' it constitutes a powerful tool to build personal and professional' networks; and it has nothing to do with close or intimate friendships of the sort that would require recusal. This common method of selecting Facebook “friends” ’ undermines the rationale of Domville and the 2009 Ethics Opinion that a judge’s selection of Facebook “friends” necessarily “conveys or' permits others ‘to convey the impression that they are in a special position to influence the judge,”

To be sure, some of a member’s Face-book “friends” are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Face-book “friends” probably belongs ,to casual friend; an acquaintance; an old- classmate; a person with whom the member shares a common hobby; a “friend of a friend;” or even, a local celebrity like a coach. An assumption that all Facebook “friends” rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.

In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Face-book - “friend” may well once have given the impression of close friendship and affiliation. .Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with á lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or-that the judge is under the influence of the 'Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.

Petition denied.

      . See, e.g., Mocombe v. Russell Life Skills & Reading Found., Inc., No. 12-60659-CIV, 2014 WL 11531914, at *1 (S.D. Fla. Oct. 31, 2014) (noting "Plaintiff had more than 5,000 Facebook friends.”); Banken v. Banken, No. All-2156, 2013 WL 490677, at *9 (Minn. Ct. App. Feb. 11, 2013) (noting a party had “more than 1000 friends” on Facebook).

      . Because Facebook members sometimes cannot be expected to know everyone they have accepted as "friends” or who have accepted them as “friends,” the American Bar Association, when advising judges that they should disclose Facebook friendships when appropriate, expressly advised that a judge need not review his or her list of "friends” when doing so. American Bar Association, Judge’s Use of Electronic. Social Networking Media, Formal Opinion 462 (Feb. 21, 2013) ("[N]othing requires a judge to search all of the judge’s ESM [electronic social media] connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”).

      . Facebook, Where do People You May Know suggestions ''come front? https://www.facebook.com/help/163 810437015615 Phelpref=search &=1&query.= howcloesfacebookcome-upwithfriendsuggestions (visited August 2, 2017).


author: . LOGUE, J.

text:
    J.B., The Mother, and M.W., The Father, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    Nos. 3D17-919 & 3D17-906
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Rehearing Denied October 2, 2017

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert,’ Assistant Regional Counsel, for appellant J.B., The Mother; Thomas J. Butler, for appellant M.W., The Father,
    Karla Perkins, for appellee Department of Children and Families;' Laura J. Lee (Sanford), for appellee Guardian ad Litem Program.
    Before SALTER, LOGUE, and SCALES, JJ.
   . LOGUE, J.

In this consolidated appeal, a mother and father appeal a final judgment terminating their parental rights. Because the final order is supported by competent substantial evidence and the trial court did not abuse its discretion in admitting the child’s hearsay statements, we affirm.

The mother and father argue that the trial court erred in admitting several child hearsay statements. Section 90.803(23)(a), Florida Statutes (2016), provides—under specific circumstances—for the admission of hearsay statements from a child “with a physical, mental, emotional, or developmental age of 16 or less” if those statements describe “any act of child abuse or neglect.” In order for a statement to be deemed admissible, the trial court must conduct a hearing and find that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” § 90.803(23)(a)(l). If the child is unavailable to testify as a witness, the statement is admissible only if “there is other corroborative evidence of the abuse or offense.” § 90.803(23)(a)(2)(b).

Here, the trial court made the requisite findings of reliability and corroborative evidence under the statute in a separate written order on the Department’s motion for admission of the child’s hearsay statements. Finding no error in that order, we. hold the trial court acted within its discretion in admitting the statements.

The trial court ultimately found, “[t]he child has waited his entire life for the parents to learn to keep him safe and nurtured,, the parents have failed and the child desperately needs permanency.” Because the trial court’s detailed, twenty-five page final order is supported by competent substantial evidence, there is no basis for reversal.

Affirmed.


text:
    William H. EVANS, Jr., Petitioner, v. Ryan SHAPIRO, et al., Respondents.
    No. 3D17-1807
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Rehearing Denied September 28, 2017
    William H. Evans, Jr., in proper person.
    ■ Law Offices of Jonathan A. Heller, P.A., and Jonathan A. Heller, for respondents.
    Before SUAREZ, SALTER, and SCALES, JJ.
   PER CURIAM.

Petitioner, plaintiff below, seeks a writ of mandamus compelling: (i) the clerk of the lower court to enter a default, and (ii) the trial court to enter a default judgment, both against those defendants who were served with petitioner’s complaint in late December 2016.

While the trial court docket reveals that petitioner filed his motion for default and default judgment on February 13, 2017, the defendants filed a motion to dismiss three days later, on February 16, 2017. The defendants’ filing of this February 16, 2017 motion to dismiss—prior to the clerk entering any default—precludes the clerk from entering a default. See Fla. R. Civ. P. 1.500(c) (“A party may plead or otherwise defend at any time before default is entered.”); Carder v. Pelican Cove W. Homeowners Ass’n, Inc., 595 So.2d 174, 175 (Fla. 5th DCA 1992) (“The filing of the motion to dismiss precludes any subsequent entry of default in respect to any complaint pending at that time.”).

Mandamus relief is therefore improper here. See Dep’t of Health & Rehab. Servs. v. Hartsfield, 399 So.2d 1019, 1020 (Fla. 1st DCA 1981) (“In order to show entitlement to the extraordinary writ of mandamus, the petitioner must demonstrate a clear legal right on his part, an indisputable legal duty on the part of the respondents, and that no other adequate remedy exists.”).

Petition denied.

      . Petitioner initially filed this petition in the Florida Supreme Court, which, pursuant to Harvard v. Singletary, 733 So.2d 1020 (Fla. 1999), transferred the petition to this Court.

      . The lower court docket also reveals that petitioner filed a response to the defendants' motion to dismiss on February 28, 2017.


text:
    Okeshi MCKINNEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1703
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017

      Okeshi McKinney, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Minor v. State, 707 So.2d 1184, 1184 (Fla. 3d DCA 1998) (finding that the defendant’s conviction for the lesser included offense of manslaughter with a firearm was subject to reclassification as a first-degree felony under section 775.087(1) of the Florida Statutes where a firearm was used “[bjecause the use of a weapon or firearm is not an element of the offense of manslaughter”); see also Roberts v. State, 923 So.2d 578, 581 (Fla. 5th DCA 2006) (“[I]t is clear that there is no double jeopardy prohibition against applying a habitual offender enhancement to a felony already reclassified under section 775.087(1).”).


text:
    David BROWN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D17-1685 & 3D17-1565
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    David Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   PER CURIAM.

In these consolidated cases, we review (1) an order of June 17, 2017, barring the appellant, David Brown, from filing further pro se postconviction pleadings (Case No. 3D17-1685), and (2) an order of April 27, 2017, denying Mr. Brown’s third pro se motion and amended motion for postcon-viction relief (Case No. 3D17-1565).

We affirm the orders below in each case. In Case No. 3D17-1685, however, we remand the circuit court case to the trial court for the limited purpose of issuing an amended order to correct scrivener’s errors. In paragraph 1, page 3 of the order of June 20, 2017, “Case No. F03-21028B” is to be conformed to the correct lower tribunal case number, F03-21018A (as shown in the caption, page 1 of the order). In paragraph 2, line 3 of that order, “Case No. F03-21018B” is to be . conformed as well to “F03-21018A.” The corrected order shall then be transmitted to the Department of Corrections in accordance with paragraph 3 of the order of June 20, 2017.


text:
    Victor GARRETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1970
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2017
    Victor Garrett, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Victor Garrett appeals the trial court’s order denying his Florida Rule of Criminal Procedure 3.801 motion to correct- his jail credit. We affirm because on the face of the record Garrett’s sentence became final on May 7, 2016, and his June 21, 2017 jail credit motion was untimely. See Fla. R. Crim. P. 3.801(b) (‘‘No motion shall be filed or considered pursuant to this rule if filed more than 1 year after -the sentence becomes final.”). We also affirm because in his memorandum brief Garrett conceded he filed a previous jail credit motion that was denied on the merits, making this most-recent motion successive. See Id. R. 3.801(d) (“No successive motions for jail credit will be considered.”).

Affirmed.

      . Although Garrett labeled his motion as a motion to correct illegal sentence pursuant to Rule 3.800(a), the trial court properly treated it as a jail credit motion under Rule 3.801 because it sought to correct a miscalculation in his jail credit after his sentence became final. See In re Amends. to Fla. R. of Crim, P., 204 So.3d 944, 944-45 (Fla. 2016) (explaining that the 2016 amendments to rules 3,800 and 3,801 "make clear that jail credit matters can be litigated in either a motion filed under rule 3.800(b) while a defendant’s direct appeal is pending, or in a motion filed under rule 3.801 after a defendant's sentence has become final”).


text:
    Rashane L. JONES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3103
    District Court of Appeal of Florida, First District.
    Opinion filed September 25, 2017.
    Rehearing Denied November 14, 2017
    Rashane L. Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Robert Mark GREENE, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D17-3434
    District Court of Appeal of Florida, First District.
    Opinion filed October 3, 2017
    Rehearing Denied November 14, 2017
    Robert Mark Greene, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

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


text:
    Mey TAYARA and Najib Tayara, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, etc., et al., Appellees.
    No. 3D16-2122
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017.
    Maspons, Sellek, Jacobs and Kai E. Jacobs, for appellants. !
    Carlton Fields Jorden Burt, Michael K. Winston and Dean A. Morande (West Palm Beach), for appellee HSBC Bank USA, N.A.

      Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See McCuin v. Review Fin. Printers, Inc., 582 So.2d 176 (Fla. 3d DCA 1991); Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983).


text:
    Jesus MAQUEIRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1976
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   PER CURIAM.

Affirmed. McMillian v. State, 214 So.3d 1274, 1287 (Fla. 2017), and Crossley v. State, 596 So.2d 447, 450 (Fla. 1992) (orders regarding consolidation and severance under Florida Rules of Criminal Procedure 3.150 and 3.152 are reviewed for an abuse of discretion); Spencer v. State, 645 So.2d 377, 381-82 (Fla. 1994) (crimes separated by a substantial lapse of time can be causally related when “they all stem from the same underlying- dispute and involve the same parties”); Brunner v. State, 683 So.2d 1129, 1131 (Fla. 4th DCA 1996) (affirming denial of motion to sever count charging aggravated stalking, “which occurred on dates prior to the murder,” with count charging first degree murder).


author: LAGOA, J.

text:
    WALGREEN CO. and Holiday CVS, LLC, Petitioners, v. Jonathan L. RUBIN, Respondent.
    No. 3D17-282 Consolidated: 3D17-273
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017.

      Hinshaw & Culbertson, LLP, and James H. Wyman, for petitioner Walgreen Co.
    Fowler White Burnett P.A., and Marc J. Schleier and Christopher E. Knight, for petitioner Holiday CVS, LLC.
    Goldberg & Rosen, P.A., and Brett M. Rosen and Mustafa H. Dandashly, for respondent.
    Before LAGOA, SCALES, and LUCK, JJ.'
   LAGOA, J.

In this wrongful death suit, the defendants below, Walgreen Co. (“Walgreens”) and Holiday CVS, LLC (“CVS”), petition this Court for writs of certiorari, seeking to quash the trial court’s order ‘ denying their requests to shift to the plaintiff the defendants’ cost of reviewing documents responsive to the plaintiffs request for production. Because neither petitioner has met the threshold jurisdictional requirement that the trial court’s order creates irreparable harm, we dismiss the petitions for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent, the plaintiff below, Jonathan L. Rubin (“Rubin”), as the personal representative of the Estate of Sharon R. Rubin, brought suit against Walgreens and CVS alleging that Ms. Rubin died of multiple-drug toxicity due to the alleged negligence of the pharmacies in dispensing'prescription medications. The first amended complaint alleged that in the three years or so leading up to Ms. Rubin’s death, Walgreens filled approximately 275 different prescriptions issued by eighteen different physicians and CVS filled approximately 95 different prescriptions issued by ten different physicians. Many of the prescriptions at issue in the complaint appear to be narcotics.

Shortly after filing suit, Rubin'propounded document requests on Walgreens requesting the “personnel files of all persons actually working in the pharmacies of the Walgreens Pharmacy where the prescriptions were filled at the time of the fills at issue in* this lawsuit.” Rubin propounded a similar document request on CVS.

Walgreens moved to have Rubin bear the costs of its counsel reviewing and redacting financial and health information from the personnel files of the forty-five pharmacists it had identified. CVS moved to have Rubin make appropriate arrangement for. payment, in advance, for unspecified costs associated with assembling the personnel files of the eighteen pharmacists it had identified. Rubin,, while not objecting to that information being redacted, opposed the attempt to shift the cost of reviewing and redacting the files and cross-moved to compel production.

In support of its motion, Walgreens submitted to the trial court the unsworn statement of its in-house paralegal stating that it would take Walgreens, employees 283 hours to pull and prep the 45 files at an average hourly pay of $20.34, and that it would take 90 hours for a junior associate from outside counsel to review and redact the files at an hourly rate of $175. Wal-greens asserted that it would cost over $21,000 to produce the documents. In contrast, CVS did not provide a cost estimate or any other information regarding time needed to compile the responsive documents, in support of its motion.

The trial court granted Rubin’s motion to compel, directed Walgreens and CVS to produce the files for an in camera inspection to address ancillary privacy issues not relevant here, and declined to have Rubin, at that time, bear the fees and costs of production. Walgreens and CVS separately and timely petitioned for writs of certiora-ri.

II. ANALYSIS

The requirements for a writ of cer-tiorari are familiar:

A writ of certiorari, is an extraordináry " type of relief that is granted in very limited circumstances. To be entitled to certiorari, the petitioner is required to establish the following three elements: ■. (1) a departure from the essential requirements of .the', law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal. The last two elements, often referred to as “irreparable harm,” are jurisdictional. If a petition fails ■ to. make a threshold showing of irreparable harm, this Court will dismiss the petition..

Coral Gables Chiropractic PLLC v. United Auto, Ins. Co., 199 So.3d 292, 294 (Fla. 3d DCA 2016), reh’g denied (Aug. 17, 2016) (citations and internal quotations marks omitted) (quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014); Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011); Nucci v. Target Corp., 162 So.3d 146, 151 (Fla. 4th DCA 2015)). As discussed below, petitioners failed to satisfy their burden of establishing irreparable harm.

We first note that the trial court correctly disregarded the unsworn statement from Walgreens’s paralegal, as an unsworn statement does not constitute evidence. Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1199 (Fla. 4th DCA 2000) (“There is obviously no error in overruling this kind of objection when it is not supported by record evidence, such as an affidavit detailing the basis for claiming that the onus of supplying the information or documents is inordinate.” (citing Allstate Ins. Co. v. Boecher, 733 So.2d 993, 994 (Fla. 1999))); cf. State ex rel. Hawkins v. Bd. of Control, 53 So.2d 116, 118-19 (Fla. 1951) (“[M]otion is not in and of itself proof, of the averments therein contained.”); Waliagha v. Kaiser, 989 So.2d 660, 661 (Fla. 2d DCA 2008) (“Documents attached as exhibits to a motion are not evidence.”); Eight Hundred, Inc. v. Fla. Dept of Revenue, 837 So.2d 574, 576 (Fla. 1st DCA 2003) (“Representations by an attorney for one of the parties regarding the facts, and documents attached as exhibits to a motion, do not constitute evidence.”); Viking Superior Corp. v. W.T. Grant Co., 212 So.2d 331, 334 (Fla. 1st DCA 1968) (“It appears to be . the settled law.of this state that unless a motion, is grounded on facts that are either apparent from the face of the record or papers filed in the case, or within the judicial knowledge of the court, it must be supported by affidavits or other proofs.”). The record therefore does not contain- evidence supporting Walgreens’ position and is insufficient to establish irreparable harm.

Even if the unsworn statement constituted evidence which could be properly considered by the trial court or this Court, the record still fails to establish irreparable harm to Walgreens in order to obtain certiorari jurisdiction. Florida’s courts are consistent in holding that undue burden or expense arising from a discovery order does not constitute irreparable harm. Allstate Ins. Co. v. Hodges, 855 So.2d 636, 639-40 (Fla. 2d DCA 2003) (“Most economic concerns regarding the cost of litigation do not involve the essential requirements of the law or a violation of a clearly established principle of law resulting in a miscarriage of justice.”); Topp Telecom, 763 So.2d at 1200 (citing Haines City. Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla. 1995)) (“The fact that a party may. be forced to furnish discovery when the cost to do so is deemed inordinate does not involve, a failure ‘to afford procedural due process’ and “whether the circuit court applied the correct law;’ An erroneous ¡order compelling discovery when the cost and effort to do so is burdensome but not destructive is simply not ‘sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiora-ri.’ ”); cf. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla. 1987) (“Litigation of a non-issue will always be inconvenient and entail considerable expense of timé and money for all parties in the case. The authorities are clear that this type of harm is not sufficient to permit certiorari review”). The usual remedy available to a-party that has incurred burdensome discovery costs is to recoup them through taxation of costs, not via certiorari. See Topp Telecom, 763 So.2d at 1201 n.5. (“Of course the mere fact that a trial judge has allowed burdensome discovery to proceed does not forestall later reallocation of the costs incurred when the prevailing party seeks to tax costs at the end of the case.”).

Walgreens relies on the recent Florida Supreme Court opinion, Worley v. Central Florida Young Men’s Christian Association, Inc., 228 So.3d 18, 2017 WL 1366126 (Fla. Apr. 13, 2017), timely mtn. for reh’g filed (Apr. 28, 2017), to support its arguments that: (1) the trial court’s order causes irreparable harm, and (2) the “financial ruin test” of Topp Telecom and its progeny is no longer the test for certiorari review of discovery orders. Walgreens’s arguments fail, and we address each one separately.

With respect to the first argument, the facts of Worley are distinguishable from the facts of this instant case. In Worley, the Supreme Court found as unduly burdensome a discovery order in a routine slip-and-fall case which would have imposed over $90,000 in costs while the damages sought totaled $66,000. Id. at 26, (“[W]e find that 200 hours and over $90,000 in costs to discover the collateral issue of bias in a case where the damages sought total $66,000 is unduly burdensome.”) (emphasis added). Moreover, unlike in Worley, the instant case is a wrongful death action, and, though no specific demand for damages was made in the complaint, we presume that the damages sought by respondent will be significantly higher than those in Worley. Additionally, the discovery at issue in Worley related to a collateral issue; here, no such argument can be made, as the discovery sought from Walgreens and CVS relates to the question of negligence. With respect to the second argument raised by Walgreens, Worley did not explicitly overrule the “financial ruin test” or otherwise question its applicability. As such, this Court declines to hold that Worley, explicitly or implicitly, overruled the “financial ruin test” articulated in Topp Telcom.

Based on the proposition that in Florida jurisprudence undue burden or expense normally are insufficient to establish the irreparable harm needed for certiorari jurisdiction, the “financial ruin test” simply refers to an exception to that general rule, i.e., the extraordinary case where the undue burden or expense of discovery are so great as to cause irreparable harm and warrant certiorari jurisdiction.

III. CONCLUSION

Because neither petitioner has met the threshold jurisdictional requirement establishing that the trial court’s order creates irreparable harm, we dismiss the petitions for lack of jurisdiction.

Petitions dismissed.

      . For appellate purposes, the Court consolidates case numbers 17-282 and 17-273 as they involve the same trial court order.

      . A fortiori, CVS, which failed to present any evidence or even an unsworn statement to the trial court regarding its burden, failed ,to establish irreparable harm.

      . Walgreens and CVS argue that even if they prevail against Rubin, they would be unable to recover document production costs under the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Those Guidelines are advisory, and the petitioners have not cited to any cases holding that the Guidelines would preclude recovery. Based on the record before this Court, Walgreens and CVS's legitimate complaints about the costs of discovery do not establish certiorari jurisdiction.

      . Unlike the instant case, the record in Wor-ley contained sworn affidavits regarding the costs. Id.