author: Per Curiam.

text:
    SCHOOL BOARD OF PALM BEACH COUNTY, Appellant, v. FLORIDA DEPARTMENT OF EDUCATION; Renaissance Charter School, Inc.; and Renaissance Charter High School of Palm Beach, Appellees.
    No. 4D16-2207
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    JulieAnn Rico, General Counsel, A. Denise Sagerholm and Sean Fahey, Assistant General Counsel, Office of General Counsel, The School Board of Palm Beach County, Florida, West Palm Beach, for appellant.
    Stephanie Alexander and Edward J. Pozzuoli of Tripp Scott, P.A., Fort Lauderdale, for appellees Renaissance Charter School, Inc., and Renaissance Charter High School of Palm Beach.
   Per Curiam.

Renaissance Charter School, Inc. and Renaissance Charter High School of Palm Beach (collectively, "Renaissance") sought to open a charter school and submitted their application to the School Board of Palm Beach County ("the School Board"). After the School Board rejected the application, the Charter School Appeal Commission ("CSAC") recommended that Renaissance's appeal be granted, and the State Board of Education adopted the recommendation and reversed the School Board's denial of the application. The School Board took this appeal, wherein it raises evidentiary issues and also challenges the constitutionality of the charter school appeal statute, section 1002.33(6)(c), Florida Statutes (2015). We affirm on the constitutional challenge, but we reverse and remand for CSAC to make factual findings necessary for review of the evidentiary issues raised on appeal.

The School Board's challenge of section 1002.33(6)(c), Florida Statutes, was entertained by this court in another appeal and found to be without merit. See Sch. Bd. of Palm Beach Cty. v. Fla. Charter Educ. Found., Inc. , 213 So.3d 356, 359-61 (Fla. 4th DCA 2017), rev. denied , No. SC17-958, 2017 WL 4129202 (Fla. Sept. 19, 2017). We elaborate no further on that issue.

With respect to the other issues raised on appeal, CSAC's findings are inadequate for meaningful review. In School Board of Palm Beach County , 213 So.3d at 359, CSAC's written recommendation stated "that the School Board did not have competent substantial evidence to support its denial of the Charter School Application based on the Applicant's failure to meet the standards for the Education Plan pursuant to 1002.33, Florida Statutes, and State Board of Education Rule 6A-6.0786, Florida Administrative Code." This court recognized that section 1002.33(6)(e) 5., Florida Statutes (2016), requires CSAC to include a fact-based justification in its written recommendation to the State Board of Education, and it found that CSAC's finding was a "legal conclusion, not a fact-based justification," and as such, meaningful review was not possible. Id. at 362. This court further noted that CSAC members failed to engage in discussion and fact-finding during their meeting. Id.

Here, CSAC's written recommendation contained only legal conclusions:

[T]he School Board did not have competent substantial evidence to support its denial of the Charter School Application based on the Applicant's failure to meet the standards for the Educational Plan pursuant to Section 1002.33, Florida Statutes, and State Board of Education Rule 6A-6.0786, Administrative Code.... the Organizational Plan pursuant to Section 1002.33, Florida Statutes, and State Board of Education Rule 6A-6.0786, Florida Administrative Code.... [and] the Business Plan pursuant to Section 1002.33, Florida Statutes, and State Board of Education Rule 6A-6.0786, Florida Administrative Code.

Although CSAC members posed questions to the parties during the CSAC meeting, their questions do not shed light on CSAC's fact-based justification for its recommendation.

Based on the foregoing, we reverse and remand for CSAC to make factual findings consistent with section 1002.33(6)(e) 5., Florida Statutes (2015).

Reversed and remanded with instructions.

Warner, Ciklin and Klingensmith, JJ., concur.

      In the other appeal, this court cited to the 2016 version of the statute. This appeal involves the 2015 version of the statute, but the subsections at issue are the same in both versions of the statute.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    Rick CLAYTON, Appellant, v. Don POGGENDORF and Marilyn Thomas, Appellees.
    No. 4D17-488
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    James D. Tittle and M. Daniel Logan of Tittle, Kairalla & Logan, PL, West Palm Beach, for appellant.
    Marshall J. Osofsky of the Law Office of Paul A. Krasker, P.A., West Palm Beach, for appellees.
   Warner, J.

In this appeal of a final judgment enforcing a settlement agreement, appellant contends that the trial court erred in concluding that notice of late payment sent to the attorney who represented him in the underlying litigation was sufficient notice to appellant to accelerate the debt due under the settlement agreement. He also claims that the court erred in finding the agreement ambiguous and taking testimony from the appellees to explain their view of the settlement agreement and amounts due. We hold that the court did not err in concluding that the attorney who accepted notice was acting with apparent authority, but the court erred in determining that the agreement was ambiguous as to the amounts due.

Appellant Clayton purchased a business from appellees Poggendorf and Thomas, executing a stock purchase agreement obligating Clayton to make payments to appellees. When he failed to make payments, appellees filed suit. That litigation resulted in a settlement agreement between the parties. The agreement provided for a schedule of payments to be made by appellant to appellees. Specifically those provisions stated:

WHEREAS, the Parties agree to fully and completely resolve all claims by and between them and hereby mutually release and waive any and all claims they had, have, or may have in the future in any way related to the purchase and sale of Sun Dome, the Contract, the Promissory Note and the Litigation, and agree to voluntarily dismiss their claims in the Litigation under the following terms:
1. Payments to Plaintiffs: In full settlement of this dispute, Clayton will make payments to Thomas and Poggendorf as follows ("Settlement Payment"):
A.) A down payment of Thirty Thousand Five Hundred and 00/100 Dollars ($30,500.00) concurrently with the signature of this Agreement;
B.) Periodic Payments to Plaintiffs as follows:
$4,592.51 by September 1, 2015;
$4,592.51 by October 1, 2015;
$4,592.51 by November 1, 2015;
$4,592.51 by December 1, 2015;
$4,592.51 by January 1, 2016;
$4,592.51 by February 1, 2016;
$4,592.51 by March 1, 2016;
$4,592.51 by April 1, 2016
Payments of $3,592.51 on the first day of each month from May 1, 2016 through the last payment on April 1, 2022.
The parties agree that the Settlement Payment is sufficient and adequate consideration for this Agreement.
Clayton shall wire transfer all periodic payments hereunder to Plaintiffs' TD Bank bank account [Routing number and account number omitted].
Time is of the essence for all payments hereunder. However, Clayton shall be entitled to five (5) calendar days' notice of any late payments. There shall be no further requirement of any written notice for any material breaches or defaults hereunder.
Breach for Non-Payment and Acceleration and Consent Judgment: Clayton's failure to may any payment hereunder when due, or within five calendar (5) days of written notice of the late payment, time being of the essence, shall entitle Plaintiffs to file a motion with the Court seeking entry of an agreed Consent Judgment for the total amount of $235,629.80 plus interest at 5.5% less any payments received up to the date of the breach under this Agreement.

The agreement contained typical provisions explaining that the agreement embodied the full agreement between the parties and all representations were merged into the agreement, which could not be modified except by written agreement signed by all parties.

The parties thereafter filed a joint stipulation for dismissal, with the court retaining jurisdiction to enforce the settlement agreement. Clayton made the initial $30,500 payment and then made several periodic payments. On January 1, 2016, however, he failed to make the periodic payment. On January 5, 2016, Attorney Jason Maier, acting on behalf of Poggendorf and Thomas, emailed to Clayton's attorney in the litigation, James Tittle, a notice of nonpayment with five days opportunity to cure, advising Clayton of the default. The notice was sent via email. Counsel for Clayton responded the next day from a different email address and advised Maier:

Jason: A TD Bank wire has been sent, please advise if it is not received by January 7th.
My understanding is that the bank did not process remote wire transfers over the weekend. Thanks and please let me know when the wire arrives.

Following this email, Poggendorf and Thomas received payment. Thereafter, Clayton failed to make a periodic monthly payment on March 1. On March 7, 2016, counsel for Poggendorf and Thomas emailed to attorney Tittle another notice of default and notice to cure regarding Clayton's failure to pay. Thereafter, Clayton wired the March payment on March 11, 2016.

In April and June 2016, Clayton again did not send timely payments, and Maier sent an email notice to Tittle on April 7, 2016, and June 6, 2016, advising of the default. As with the prior notices, Clayton wired payments to Poggendorf and Thomas within the five-day cure time. In each of these emails, there was a notation that the email was being sent to Tittle in his capacity as attorney for Clayton. Maier asked that if Tittle was no longer representing Clayton to advise him, and he would send a letter directly to Clayton. There was no response from Tittle or Clayton.

On July 1st when Clayton did not send the payment, Maier again sent the notice of late payment to Tittle. This time, however, no payment arrived within the five day cure period. As a result, Maier filed a motion for entry of consent final judgment against Clayton pursuant to the terms of the Settlement Agreement. Maier sent an email to Tittle and attached a proposed final judgment asking that Clayton agree to its entry. Four days later, Tittle responded. He stated that he had been out of town and asked if they could schedule a telephone conference for the next day, which occurred. The day after the phone call, Tittle sent an email advising that he was not representing Clayton, but then followed up later that same day with an email advising that he had been retained to represent Clayton. Tittle indicated that there was a problem with the notice and the calculations in the proposed final judgment and that an evidentiary hearing would be needed. Maier, on behalf of Poggendorf and Thomas, then moved for an evidentiary hearing to obtain a final judgment.

At the evidentiary hearing, Clayton argued that he had not received proper notice of late payments, because they were sent to Tittle, who was not representing him at the time of the notice of default. However, based upon the various email correspondence, as well as testimony, the court found that Poggendorf and Thomas had complied with the notice provision of the Agreement by sending the notices to Tittle. As to the amounts, over objection the trial court allowed Thomas to explain how the amounts in the settlement agreement were calculated, and from that evidence concluded that the agreement was ambiguous as to whether the initial payment of $30,500 should be deducted from the Consent Final Judgment Amount. The court determined that it should not be deducted. The court then entered final judgment for $184,519.68 plus interest. The judgment was calculated by deducting periodic payments made from the Consent Final Judgment amount set forth in the settlement agreement. The court did not deduct the $30,500 initial payment. From this judgment, Clayton appeals.

Clayton argues that the court erred in enforcing the settlement agreement when he had not received proper notice of late payment pursuant to the agreement. He contends that notice was required to be sent to him and not Tittle, who he claimed was not his attorney after the termination of the litigation. The court, however, decided that Clayton had received notice through Tittle which complied with the Settlement Agreement. Because we conclude that there was competent substantial evidence to support the court's finding that Tittle acted with apparent authority of Clayton when dealing with the notices of default, the court did not err in enforcing the agreement.

It is axiomatic that an agent has the authority to bind a principal. Even where there is no express agent/principal relationship, a principal may be bound by the acts of an agent acting with apparent authority. In Stiles v. Gordon Land Co. , 44 So.2d 417, 421-22 (Fla. 1950), our supreme court explained apparent authority as follows:

The authority of an agent to bind a principal may be real or it may be apparent only, and members of the public acting in good faith may rely on either, unless in the case of apparent authority the circumstances are such as to put a reasonable person on inquiry. By apparent authority is meant, such authority as the principal wrongfully permits the agent to assume or which the principal by his actions or words holds the agent out as possessing. Apparent authority rests on the doctrine of estoppel and arises from the fact of representations or actions by the principal and a change of position by a third person who in good faith relies on such representations or actions.

(citations omitted); see also Denton v. Good Way Oil 902 Corp. , 48 So.3d 103, 107 (Fla. 4th DCA 2010). Apparent authority arises from the authority a principal knowingly tolerates or allows an agent to assume, or which the principal by his actions or words holds the agent out as possessing. Regions Bank v. Maroone Chevrolet, L.L.C. , 118 So.3d 251, 255 (Fla. 3d DCA 2013). "[A]pparent agency exists only where the principal creates the appearance of authority." Id. The focus is on the conduct of the principal, not the agent. Id.

Although Clayton asserts that he, as the principal, did nothing to give Tittle apparent authority to act for him as his agent, the trial court found to the contrary, and there is competent substantial evidence to support its judgment. As Poggendorf and Thomas point out, four notices of default were sent in six months prior to the July default which triggered the acceleration. After attorney Maier sent the January 2016 default notice to attorney Tittle, the principal (Clayton) responded by wiring the required amounts. Tittle followed this payment up with an email to Maier to make sure the payment was received. After each of the next three notices was sent to Tittle, Clayton acted appropriately by making the required payment within the five day cure period, thus showing by his conduct that Tittle had authority to receive the notice on his behalf. Each email specifically asked Tittle to advise Maier if he was no longer representing Clayton. Thus, whether or not Tittle was formally retained to represent him, by Clayton's conduct in curing the default each time a notice of default was sent to Tittle, he vested Tittle with the authority to accept the notices of default on which Poggendorf and Thomas relied in good faith.

Apparent authority rests on the doctrine of estoppel. Estoppel requires: 1) representation of a material fact by the party estopped (Clayton) to the party claiming the estoppel (Poggendorf and Thomas) that is contrary to the fact later asserted by the estopped party; 2) reliance on that representation by the party claiming the estoppel; and 3) the party claiming estoppel detrimentally changed their position due to such reliance. Zurstrassen v. Stonier , 786 So.2d 65, 68-69 (Fla. 4th DCA 2001). Clayton, by his conduct in allowing Tittle to accept the notices of default, represented that the notices of default complied with the Settlement Agreement. Poggendorf and Thomas clearly relied on that representation by continuing to send the email notices to Tittle. Finally, Poggendorf and Thomas changed their position by not sending the notices directly to Clayton. The trial court did not err in finding that Poggendorf and Thomas had complied with the provisions of default under the settlement agreement.

With respect to the amount of the final judgment, Clayton argues that the trial court erred in concluding that the Settlement Agreement was ambiguous as to the deduction of the initial payment of $30,500 from the Consent Judgment amount. We agree with Clayton that there was no ambiguity, and the court erred in failing to reduce the Consent Judgment by the initial payment.

In Nationstar Mortgage Co. v. Levine , 216 So.3d 711, 715 (Fla. 4th DCA 2017), we addressed what is meant by an ambiguity in an agreement:

An agreement is ambiguous if as a whole or by its terms and conditions it can reasonably be interpreted in more than one way. See Fla. Power & Light Co. v. Hayes , 122 So.3d 408, 411 (Fla. 4th DCA 2013) (quoting Miller v. Kase , 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001) ). Contractual ambiguities are either "patent" or "latent." Prime Homes, Inc. v. Pine Lake, LLC , 84 So.3d 1147, 1151 (Fla. 4th DCA 2012).
"Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways." Id. at 1151-52. A patent ambiguity is intrinsically apparent on the face of the document due to "the use of defective, obscure, or insensible language." Emergency Assocs. of Tampa, P.A. v. Sassano , 664 So.2d 1000, 1002 (Fla. 2d DCA 1995). A latent ambiguity, on the other hand, "arises when the language in a contract is clear and intelligible, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two or more possible meanings." Riera v. Riera , 86 So.3d 1163, 1166 (Fla. 3d DCA 2012) (quoting GE Fanuc Intelligent Platforms Embedded v. Brijot Imaging Sys., Inc. , 51 So.3d 1243, 1245 (Fla. 5th DCA 2011) ); see also Taylor v. Taylor , 183 So.3d 1121, 1122 (Fla. 5th DCA 2015) ("A latent ambiguity exists where the language of an agreement is facially clear but an extrinsic fact or extraneous circumstance creates a need for interpretation or reveals an insufficiency in the contract or a failure to specify the rights or duties of the parties in certain situations."); Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC , 915 So.2d 657, 659 (Fla. 2d DCA 2005) (explaining that a latent ambiguity can only be "brought to light when extraneous circumstances reveal 'an insufficiency in the contract not apparent from the face of the document' " (quoting Hunt v. First Nat'l Bank , 381 So.2d 1194, 1197 (Fla. 2d DCA 1980) ) ).

As noted in Emergency Assocs. of Tampa, P.A. v. Sassano , with respect to patent ambiguities,

Florida courts have consistently declined to allow the introduction of extrinsic evidence to construe such an ambiguity because to do so would allow a trial court to rewrite a contract with respect to a matter the parties clearly contemplated when they drew their agreement. The end result would be to give a trial court free reign to modify a contract by supplying information the contracting parties did not choose to include.

664 So.2d at 1002 (citations omitted). Indeed, the Supreme Court put it more bluntly in Hamilton Constr. Co. v. Bd. of Pub. Instruction of Dade Cty. , 65 So.2d 729, 731 (Fla. 1953) :

The parties selected the language of the contract. Finding it to be clear and unambiguous, we have no right-nor did the lower court-to give it a meaning other than that expressed in it. To hold otherwise would be to do violence to the most fundamental principle of contracts.

On the other hand, latent ambiguities arise where an extrinsic or collateral fact make the contract ambiguous. "If a contract fails to specify the rights or duties of the parties under certain conditions or in certain situations, then the occurrence of such condition or situation reveals an insufficiency in the contract not apparent from the face of the document." Hunt, 381 So.2d at 1197.

Reviewing the contract, the language is unambiguous. As set forth above, Paragraph 1 of the Settlement Agreement starts with a representation that the payments listed in that paragraph are the "Settlement Payment." That consists of both the initial payment of $30,500 as well as the periodic payments, listed in 1(A) and 1(B) respectively. The sentences and paragraphs which follow the enumeration of the specific amounts of payments do not pertain solely to 1(B), as argued by appellees. For instance, the second sentence states: "The parties agree that the Settlement Payment is sufficient and adequate consideration for this Agreement." (emphasis added). The Settlement Payment consisted of both the initial payment as well as all of the periodic payments. The provision on breach, which is bolded in the original agreement, states that if Clayton fails to pay any payment within five days of notice of nonpayment, Plaintiffs may file "a motion with the Court seeking entry of an agreed Consent Judgment for the total amount of $235,629.80 plus interest at 5.5% less any payments received up to the date of breach under this Agreement. " (emphasis added). The Consent Judgment amount is thus reduced by any payment under the agreement, which would include the $30,500. There is nothing ambiguous in the language of the agreement, and to limit the amounts reducing the Consent Judgment amount to only those under paragraph 1(B) would require the court to ignore the specific language of the agreement. If the parties had intended to deduct only the periodic payments, they would have said "any periodic payment."

Before determining the issue of ambiguity, the trial court allowed Thomas to testify to the settlement negotiations and how the amounts were calculated for the settlement agreement. This evidence was not "extrinsic" to the contract, as is required to clarify a latent ambiguity. Instead, it went to the heart of the negotiation of the agreement. Then the court relied on this parol evidence to determine that the agreement must be ambiguous, because the Plaintiffs would not be made whole if the $30,500 payment were deducted. The court erred by looking to the parol evidence to determine that the agreement was ambiguous.

Furthermore, the merger clause of the agreement provides that terms may not be added to the agreement: "This Agreement and the documents and Exhibits attached hereto represent the full and complete terms between the parties and no prior, subsequent, or other terms shall be deemed to control, except any written subsequent modification to this Agreement which references this agreement and is signed and notarized by the Parties." By construing the breach clause as allowing the deduction of only periodic payments, the court added terms to the agreement contrary to this clause.

The court was motivated by the parol evidence from Thomas that they would not be made whole if the $30,500 were deducted from the amount in the agreement. But this was a settlement agreement. Parties frequently settle lawsuits for less than they are owed simply to reduce the expense and uncertainty of litigation. There is no showing that the agreement was so inequitable as to justify the court's interference with its express terms.

Because the agreement was unambiguous, the court erred in failing to reduce the consent judgment by the initial payment of $30,500. While we affirm the judgment to the extent that the court enforced the judgment, we reverse and remand for the trial court to correct the final judgment by reducing it by $30,500 and adjusting the interest calculation accordingly.

Taylor and Damoorgian, JJ., concur.


author: PER CURIAM.

text:
    Oliver AGUERO, VI, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 3D17-0171
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017 Rehearing Denied January 4, 2018
    Oliver Aguero, VI, in proper person.
    Matthew R. Daley, Assistant General Counsel (Tallahassee), for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ.
   PER CURIAM.

Upon review of Appellant's initial brief, we find no preliminary basis for reversal has been demonstrated. We, therefore, summarily affirm the order on appeal. See Fla. R. App. 9.315(a).


text:
    Kahena Kristine GALLERANI, Appellant, v. Cristiano PIQUET, Appellee.
    No. 3D16-2932
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017 Rehearing Denied December 29, 2017
    Jason B. Giller, P.A., and Tricia Neimand ; Keith D. Silverstein, for appellant.
    Michael Lascelle, P.A., and Jeffrey Greenhaus, for appellee.
    Before SALTER, EMAS, and LOGUE, JJ.
   PER CURIAM.

"Valid prenuptial agreements regarding post-dissolution support are contracts." Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla. 2005). Because courts have recently enforced similar provisions, see Weymouth v. Weymouth, 87 So.3d 30, 32 (Fla. 4th DCA 2012), we reverse the trial judge's determination that the provision of the prenuptial agreement at issue is void against Florida's public policy, hold that Ms. Gallerani has met the conditions of that provision, and remand for entry of a revised final judgment of dissolution of marriage ratifying, incorporating, and enforcing the prenuptial agreement including the provision at issue.

Reversed and remanded with instructions.


author: SALTER, J.

text:
    FIST CONSTRUCTION, INC., Appellant, v. Santos OBANDO, Appellee.
    No. 3D16-2706
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017 Rehearing Denied December 29, 2017
    Conroy Simberg and Diane H. Tutt (Hollywood), for appellant.
    Wasson & Associates, Chartered, and Annabel C. Majewski ; DLD Lawyers and Frank L. Labrador, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   SALTER, J.

Fist Construction, Inc. ("Fist Construction"), appeals a partial summary judgment in favor of an injured laborer (plaintiff below), Santos Obando, precluding Fist Construction from relying on its affirmative defense of workers' compensation immunity. We have jurisdiction to review the order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v).

Another defendant in the action below was the general contractor for a residential construction project in Homestead, Florida. Yet another defendant was subcontracted to perform roofing work at the project, and that subcontractor further subcontracted with Fist Construction to perform some or all of that work. A foreman and supervisor for Fist Construction, Hector Lopez (also a defendant below), hired Mr. Obando as a laborer to perform part of the roofing work that had been subcontracted to Fist Construction.

Mr. Obando alleges that he was injured while performing roof work at the project in January 2014. Through counsel, Mr. Obando filed petitions for workers' compensation claims with the general contractor and the prime roofing subcontractor (not Fist Construction), but these claims were denied on the basis that Mr. Obando was not an employee of either of those companies at the time of the accident. Following the denial, Mr. Obando filed circuit court tort claims against the general contractor, the prime roofing subcontractor and its principal, Fist Construction, and Mr. Lopez.

Several months after Mr. Obando commenced his lawsuit, the prime roofing contractor's attorney contacted a claims adjuster for Fist Construction's workers' compensation carrier and notified her that Mr. Obando had been injured, with "multiple employers involved." Mr. Obando testified that he had no knowledge of, or contact with, Fist Construction (only with Mr. Lopez), and the owner of Fist Construction initially provided a letter on behalf of the company disclaiming any knowledge of Mr. Obando:

This firm has no knowledge of who this person is, as he has never been employed by us. There never been [sic] an application for employment filed under that name with this Company. So, we have no records to produce or forward to anyone.

Subsequently, however, Mr. Obando submitted a petition for workers' compensation benefits to Fist Construction's workers' compensation carrier. In its response to the petition, the carrier agreed to pay Mr. Obando's medical bills and expenses from the hospital emergency room "once they have been submitted and reviewed," and to authorize additional treatment at a health center.

Fist Construction asserted workers' compensation immunity as an affirmative defense to Mr. Obando's second amended complaint, and each party filed a motion for partial summary judgment on that issue. The trial court granted Mr. Obando's motion, which argued that Fist Construction's words and actions had waived the immunity defense under such cases as Ocean Reef Club v. Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012), and Timmeny v. Tropical Botanicals Corp., 615 So.2d 811 (Fla. 1st DCA 1993). Fist Construction's appeal from that order followed.

Analysis

On this record of subcontracts, handshake agreements, and a laborer hired for cash by the supervisor of a subcontractor (rather than the subcontractor itself), the identity of the "statutory employer" and related questions of estoppel and waiver involve disputed facts inappropriate for summary judgment. In the present case, it cannot be said that the facts are "so crystallized that nothing remains but questions of law." Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). Critical facts which are not in dispute include these: Mr. Obando's injury occurred in the course and scope of his work on the residential roofing project; Mr. Obando's compensation and direction came via Fist Construction and its supervisor; Fist Construction had in force a policy of workers' compensation insurance; and that insurer accepted Mr. Obando's claim as compensable and provided benefits following the identification of the insured entity and the submission of a petition for workers' compensation benefits.

Any penalty accruing because of Fist Construction's delay in reporting Mr. Obando's claim in this case is an issue for consideration within the statutory administrative process applicable to workers' compensation claims. And an initial denial of liability or benefits does not automatically estop an employer from asserting workers' compensation immunity. Fly & Form, Inc. v. Marquez, 19 So.3d 403 (Fla. 3d DCA 2009).

The primary case advanced by Mr. Obando's counsel before the trial court, Ocean Reef Club, Inc. v. Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012), is distinguishable. In that case, the workers' compensation insurer denied two employees' claims based on a position that the employees' illnesses did not occur during the course and scope of employment. "The claims also were denied because the statute of limitations had run." Id. at 2. In the employees' subsequent civil action, the employer took the opposite position, contending that the alleged injuries were work-related and that the employer was immune from suit. The trial court correctly denied the employer's motion for summary judgment on grounds of workers' compensation immunity, and this Court affirmed.

Similarly, Mr. Obando's counsel urged the trial court to grant the motion for partial summary judgment on grounds of estoppel based on Timmeny v. Tropical Botanicals Corp., 615 So.2d 811 (Fla. 1st DCA 1993). That case also involved a different set of controlling facts than the case at hand. The estoppel in Timmeny was imposed because the employer failed to notify the employee claimant of possible coverage, but then attempted to invoke the statute of limitations as a defense when the employee filed a lawsuit. The First District held that estoppel applied because the employer had the same knowledge as the claimant regarding the possible cause and compensability of the injury or disease, but failed to provide the employee with information regarding the potentially compensable nature of the claim.

In the present case, the claims were not denied by the carrier once the parties' investigation identified the employer and carrier. The owner of Fist Construction initially denied knowing Mr. Obando or having any records regarding him, but there was never a denial that Mr. Obando's injury was work-related, that Fist Construction's foreman at the time hired and paid Mr. Obando, and that Fist Construction had workers' compensation insurance in place. The statute of limitations was not an issue addressed in Mr. Obando's motion for summary judgment.

For these reasons, we reverse the partial summary judgment order and the trial court's determination that, as a matter of law, Fist Construction could not assert workers' compensation immunity. We remand the case to the trial court for further proceedings.

      There was deposition testimony in the record, a part of the summary judgment evidence, that Mr. Lopez hired and paid Mr. Obando in cash as an independent contract laborer, and that Mr. Lopez received the funds for those payments from Fist Construction. Mr. Obando contends that Fist Construction was not his "employer" for purposes of the workers' compensation statutes.


author: EMAS, J.

text:
    MERCO GROUP AT AKOYA, INC., Appellant, v. GENERAL COMPUTER SERVICES, INC., Appellee.
    No. 3D16-1132
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017. Rehearing Denied December 29, 2017
    Billbrough & Marks and Geoffrey B. Marks, for appellant.
    Arthur J. Morburger ; John C. Mullin, Jr., for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   EMAS, J.

INTRODUCTION

Merco Group at Akoya, Inc. (Merco Group), the defendant below, appeals from a final judgment in favor of plaintiff, General Computer Services (GCS), following a jury trial on damages only, on GCS's claim for breach of contract. We reverse and remand for a new trial, because the trial court's construction of the terms of the underlying contract resulted in erroneous evidentiary rulings and prevented the jury from considering relevant evidence on the issue of damages.

FACTS AND BACKGROUND

The Akoya is a high-rise residential condominium that was completed in 2005.

Merco Group at Akoya was the developer of the project. In 2003, GCS met with Merco Group and advised that it had a computer system which would increase the value of the Akoya property. The computer system would provide internet cabling and software to allow communication between the condominium units, front desk, valet parking, and other areas outside the building (such as doctors, dry cleaners, cafeterias and other services). GCS's computer system was called the BeCruising System. In September 2003, the parties entered into a contract.

The written contract between the parties provides in pertinent part:

Contract
This service contract is entered by Merco Group (Client) and/or its successors ... and General Computer Services Inc. (GCS) ....
I-GCS will offer the following products and/or services:
1) GCS will provide one computer system and the Becruising System software for each unit subscribing to our Becruising System.
2) GCS will provide additional hardware required for the Becruising System (i.e. System Components for Concierge service and Valet Parking services). These two systems total $3000.00. Paid for by the Client and/or its successors.
3) GCS will provide two printers required for the Concierge service and Valet Parking services as a courtesy, at no cost to the Client and/or its successors.
II The Client will commit itself to the following points:
1) The Client and/or its successors will commit, thru its own sales force and within its main showroom, to illustrate and sell Becruising System to all owners and possible buyers.
2) The Client and/or its successors will purchase any additional hardware required for the Becruising System (i.e. System Components for Concierge service and Valet Parking services). This may include any hardware items needed by the Client and/or its successors to implement the Becruising System and the Becruising System Services (currently the Concierge service and Valet Parking services, etc.). These two systems total $3000.00. Paid for by the Client and/or its successors before installation.
3) The price per system for each computer with the Becruising System software installed is $3900.00 per unit, payable to GCS. The Client and/or its successors, and/or the Salesperson, will collect, on beha[lf] of GCS, full payment from each owner at the time of sale. Full payment from unit owners for each individual system sold is due upon execution of sale by the Client and/ or its successors, and/or the Client's Salesperson. Checks collected from the Client and/or its successors, and/or the Client's Salesperson for each sale are to be picked up by GCS daily.
III-Payment Form:
1) This contract will commence upon signing by both parties.
2) Client's Commissions : The Client and GCS agree that for each com plete Becruising System sold by the Client and/or its successors and the Client's sales force, to unit owners and new buyers, a sales commission of $1000.00. Commissions will be paid each month for systems sold the previous month .
3) Salesperson's Commission : The Client and GCS agree that for each complete Becruising System sold by the Client and/or its successors and the Client's sales force, to unit owners and new buyers, a sales commission $200.00 to the Salesperson. Commissions will be paid each month for systems sold the previous month.
4) Cancelled Sales : Any commissions earned on sales voided by individual unit owners will be credited back to GCS. If commissions have been paid on a voided sale, all commissions for said sale must be returned to GCS by the Client and/or its successors, and the Client's Salesperson.
IV-General Agreement:
1) Any extra cost for upgrades required by the individual unit owners, will be charged directly to each owner at the prices negotiated between GCS and each individual owner based on each owner's own requirements. Said upgrades will only be done under a signed contract and is to be paid for before any work is commenced.

(Italics and underlining added.)

One month later, the parties executed an addendum to the contract:

Contract Addendum
This is an addendum to the contract signed on September 10, 2003 between Merco Group at Akoya Inc. (the client)... and General Computer Services Inc. (GCS) ....
Both parts [sic] agree as follow:
1. Property : The equipment Tablet PC Serial Number OP024600121 View Sonic Tablet PC v l 100 model vsmw24888-lw (from now on the equipment) is a property of General Computer Services Inc.
2. Location : The equipments [sic] will be in the sales center in the trailer to be seen by owners of the apartments of Akoya Buildings and new buyers.
3. Responsibility:
a. The equipment will be under the protection of the client and if the equipment is damaged or lost the client will pay General Computer Services Inc $2900.00.
b. Only General Computer Services Inc. will be able to use the equipment to make demonstrations in other locations outside the trailer.
c. The product cannot be taken out of the trailer unless General Computer Services Inc. gives written consent to Merco Group at Akoya Inc.
4. The client agrees to promote exclusively the BeCruising System in the Akoya Building. This is an Information System based on software that communicates the apartments with the front desk, valet parking, and other public areas of the building that can be included later in the system and with other services outside the building with the objective to serve the residents and the management of the building. Also the BeCruising Systems can manage the security camera system for the apartments and the building certified by General Computer Services Inc.

(Italics and underline added.)

Prior to trial, the parties entered into a written stipulation, which Merco Group sought to read to the jury: "Unit owners and potential purchasers ... were not obligated to purchase the BeCruising smart system from General Computer Services, Inc." Nonetheless, at trial, GCS argued, and the trial court agreed, that under the terms of the parties' contract, Merco Group was obligated to sell the GCS computer system, at a cost of $3900 per system, to every individual purchasing a condominium unit at Akoya (as well as to existing condominium unit owners).

Accordingly, although GCS voluntarily entered into the pre-trial stipulation, it objected when Merco Group sought to introduce the stipulation into evidence during trial. The trial court sustained the objection, finding that such evidence would merely confuse the jury because whether unit owners were obligated to buy the system, and whether Merco Group in fact sold any of the computer systems, was irrelevant to the question of damages suffered by GCS. The trial court also excluded or otherwise limited certain testimony from Merco Group's witnesses regarding how many computer systems were actually sold to unit owners.

Thus, GCS contended at trial the damages to which it was entitled under the contract could be calculated in rather straightforward fashion by multiplying the number of condominium units by the cost of each computer system. The jury returned a verdict in favor of GCS on the breach of contract claim and awarded damages in the amount of $1,360,800.

ANALYSIS

The construction of the terms of a contract is subject to de novo review. See NCP Lake Power, Inc. v. Fla. Power Corp., 781 So.2d 531, 536 (Fla. 5th DCA 2001) (holding: "The interpretation of a contract is a question of law and, therefore, we are not bound by the conclusions reached by the trial court regarding construction of the [c]ontract"). Evidentiary rulings are reviewed under an abuse of discretion standard. Linde v. Linde, 199 So.3d 1102, 1104 (Fla. 3d DCA 2016).

We read the contract and the addendum together, and construe the contract as a whole in determining the agreement of the parties. See Therrien v. Larkins, 959 So.2d 365, 367 (Fla. 5th DCA 2007). A review of this contract clearly illustrates that Merco Group did not guarantee the sale of a computer system to every individual condominium unit owner. Rather, reading the contract and contract addendum as a whole, it is plain that Merco Group agreed to exclusively promote GCS' BeCruising System and use its best efforts in selling that system to each individual purchasing a condominium unit at Akoya. Were we to construe the contract as urged by GCS, Merco Group would in essence be obligated to pay GCS for a BeCruising System for each condominium unit, regardless of whether the unit owner actually bought the system. If this were so, it would require us to ignore in the contract the provision regarding "Cancelled Sales" (section III (4)), which provides:

Cancelled Sales : Any commissions earned on sales voided by individual unit owners will be credited back to GCS. If commissions have been paid on a voided sale, all commissions for said sale must be returned to GCS by the Client and/or its successors, and the Client's Salesperson.

In addition, under the construction urged by GCS, and adopted by the trial court, the provision in section III (2) that a $1000 commission would be paid " for each complete Becruising System sold by the Client" and that such commissions are to "be paid each month for systems sold the previous month," would be superfluous.

Our review of these and other provisions in the contract leads us to conclude that Merco Group did not agree to guarantee the sale of, or be responsible to pay GCS for, a BeCruising System for every individual who purchased a condominium unit regardless of whether that condominium owner actually bought the BeCruising System.

Given our construction of these terms of the contract, it necessarily follows that the pretrial stipulation was relevant to the question of damages allegedly suffered by GCS as a result of the breach. The trial court abused its discretion in excluding the stipulation that unit owners and potential buyers were not obligated to purchase the BeCruising smart system from General Computer Services, and in limiting, as irrelevant, the testimony of Merco Group's witnesses regarding the number of sales of the BeCruising System.

We therefore reverse the judgment and remand for a new trial on damages.

REVERSED AND REMANDED.

      In an earlier appeal, Merco Group appealed the trial court's order denying its motion to vacate a default final judgment awarding damages to GCS. See Merco Grp. at Akoya, Inc. v. Gen. Comput. Servs., 45 So.3d 971 (Fla. 3d DCA 2010). We affirmed the trial court's order insofar as it denied the motion to vacate the default judgment, but reversed that portion of the final judgment awarding damages. We remanded for a trial on damages only, holding that the damages claim was unliquidated and required a factual determination. Id.

      Merco Group had already been selling condominium units prior to the date the parties entered into this contract; therefore, the contract included sales of the BeCruising System to existing condominium unit owners as well as prospective buyers of condominium units.

      See Fla. Std. J. Inst. (Civ.) 301.1d. (the following standard jury instruction is to be given to the jury before a stipulation is read into evidence: "Members of the jury, the parties have agreed to certain facts. You must accept these facts as true. (Read the agreed facts)."

      There was some dispute regarding the actual number of condominium units and whether certain "cabana units," or only residential condominium units, should be included in the calculation of damages. Also, there were some setoffs (e.g., the "commissions" payable for the sale of each unit), as well as other payments previously made by Merco Group to GCS.

      As indicated at note 2 supra , Merco Group had already been selling condominium units prior to the date the parties entered into this contract; under GCS's proposed construction of the contract, Merco Group would also have been obligated to pay GCS for each (unsold) BeCruising System for these existing unit owners as well.

      Merco Group invites this court to reach the question of what the proper measure of damages should be, and further urges us to hold that the case should have been tried upon a damages theory of lost profits. We decline the invitation, as we need not and therefore do not, reach this question, but instead limit our holding to the construction of that portion of the contract necessary to our decision, and address only the erroneous evidentiary rulings that flowed from the trial court's construction of the contract.

      As a matter of policy, the law encourages and upholds stipulations, which serve to narrow the issues and expedite the resolution of disputes. A stipulation properly entered into, and relating to a matter to which it is appropriate to stipulate, is binding upon the parties and should be strictly enforced by the court. LPI/Key West Assocs., Ltd. v. Beachcomber Jewelers, Inc., 77 So.3d 852 (Fla. 3d DCA 2012). A party seeking relief from a pretrial stipulation must make a reasonable motion to withdraw the stipulation supported by a showing of good cause. Id. at 855 ; Lopez v. Dublin, 489 So.2d 805, 807 n. 3 (Fla. 3d DCA 1986).

      We note in passing that GCS had also sought damages on a quantum meruit theory, and the jury returned a verdict of $699,611 in favor of GCS on that claim as well. Posttrial, Merco Group filed a motion for remittitur of the quantum meruit award. The trial court reduced the amount of that award, but Merco Group objected to the amount of the remitted award, and the trial court granted a new trial on damages as to the quantum meruit claim. Thereafter (and before the notice of appeal was filed with this court), GCS voluntarily dismissed the quantum meruit claim. Therefore, on remand, only the count for breach of contract remains pending for a new trial on damages.


text:
    Thomas R. JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1169
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Thomas R. James, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before FERNANDEZ, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See State v. Harris, 129 So.3d 1166, 1168 (Fla. 3d DCA 2014) ("Harris first argued in his 3.800(a) motion that the sentence for count 5 was illegal because the trial court did not orally pronounce the sentence.... [T]he record reflects that Harris completed these sentences. This issue is thus moot."); see also Miller v. State, 996 So.2d 954, 954 (Fla. 1st DCA 2008) ("Christopher Miller seeks review of a trial court order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Appellant's sentence for grand theft has expired, his case is hereby dismissed as moot.").


text:
    Nancy LUMA, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT PROGRAM, Appellee.
    No. 3D16-2293
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017 Rehearing Denied January 12, 2018
    Nancy Luma, in proper person.
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair (Tallahassee), Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980).


text:
    Arthur DEBOSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-606
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Arthur Debose, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Arthur Debose appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. For the following reasons, we reverse as to the denial of ground three of the instant motion alleging ineffective assistance of trial counsel. Finding no error as to the denial of the remaining claims of ineffective assistance raised therein, we affirm without discussion.

Debose was convicted and sentenced for one count of second degree murder and one count of unlawful possession of a firearm while engaged in a criminal offense. On direct appeal, this Court affirmed Debose's convictions and sentences without prejudice to Debose raising ineffective assistance of trial counsel in a timely rule 3.850 motion. See Debose v. State, 163 So.3d 715 (Fla. 3d DCA 2015).

On September 6, 2016, Debose filed the instant rule 3.850 motion, later amended, raising therein what amounts to ten separate claims of ineffective assistance of trial counsel. After ordering a response from the State, the trial court entered an order denying all ten of the ineffective assistance claims, finding them to be either legally insufficient, not cognizable in a postconviction motion, or conclusively refuted by the record. Based on the record before us and the State's proper and commendable confession of error, we reverse as to the denial of ground three only.

In ground three, Debose claims that the general life sentences he received for his convictions for second degree murder and unlawful possession of a firearm while engaged in a criminal offense violate principles of double jeopardy. "The State cannot, consistent with double jeopardy principles, charge, convict and sentence a defendant with two substantive offenses for the single act of possession of one weapon." Williams v. State, 109 So.3d 831, 832 (Fla. 3d DCA 2013). Because it does not appear on the record before us that Debose's conviction for unlawful possession of a firearm while engaged in a criminal offense was ever vacated, we agree with the State that the record does not conclusively refute this claim.

We therefore remand for the trial court, with respect to ground three only, either to grant an evidentiary hearing or to attach the necessary portions of the record that conclusively show that Debose is not entitled to relief. We affirm the denial of the remainder of Debose's ineffective assistance of trial counsel claims without discussion.

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

      To this, the State notes that Debose previously filed a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800, raising this double jeopardy violation issue. The July 15, 2015 order denying Debose's rule 3.800 motion reflects that the trial court denied relief because the court had "suspended entry of [Debose's] sentence on count two, unlawful possession of a firearm while engaged in a criminal offense." We agree with the State the record before us does not demonstrate that the lower court entered an order "suspend[ing] entry" of Debose's sentence on count two.


author: LAGOA, J.

text:
    Brandon BURKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-175
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Brandon Burks, in proper person.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

Brandon Burks ("Burks") appeals from the trial court's order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and from the trial court's subsequent order denying his motion for rehearing. Notwithstanding Burk's sentence as a prison releasee reoffender under section 775.082(9)(a)(3)(a), Florida Statutes (2007), the trial court had a nondiscretionary duty to sentence Burks to a mandatory minimum term of imprisonment under section 775.087(2)(a)(3), Florida Statutes (2007), and therefore, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On November 9, 2007, Burks was charged by information with aggravated assault with a firearm, attempted first degree murder with a firearm, and resisting an officer without violence. A jury found Burks guilty on all counts. The jury also made a specific finding that during the commission of the offense of attempted first degree murder with a firearm, Burks possessed a firearm, which he discharged causing great bodily harm.

The trial court sentenced Burks to a twenty-year minimum mandatory term on the charge of aggravated assault with a firearm, and to a term of 364 days, time served, on the charge of resisting an officer without violence. As to the charge of attempted first degree murder with a firearm, the trial court sentenced Burks to a term of natural life under the Prison Releasee Reoffender ("PRR") statute, specifically section 775.082(9)(a)(3)(a), Florida Statutes (2007). Of significance to this appeal, although the jury found that Burks discharged a firearm causing great bodily harm during the commission of the attempted first degree murder, the trial court did not sentence Burks under section 775.087(2)(a)(3), Florida Statutes (2007)-commonly known as the "10/20/Life" statute-which provides that a "convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison" when a defendant discharges a firearm inflicting death or great bodily harm during the commission or attempted commission of enumerated felonies. With regard to its unwillingness to impose a mandatory minimum sentence under section 775.087(2)(a)(3), the trial court stated:

He is serving life with no possibility of parole; so there is no reason at this point to impose that. For some reason it comes back on appeal as to P.R.R. ot [sic] being valid, then obviously, we will look at the 25 min. mand. to possibly life at 10, 20.

This Court affirmed Burks's convictions and sentences on direct appeal. Burks v. State, 57 So.3d 972 (Fla. 3d DCA 2011).

In October 2016, Burks filed the instant 3.800(a) motion arguing that his sentence on the attempted first degree murder with a firearm conviction was illegal because the trial court failed to impose the statutory twenty-five year mandatory minimum sentence for discharging a firearm causing great bodily harm pursuant to section 775.087(2)(a)(3). The State filed a response, acknowledging that the imposition of a "concurrent twenty-five (25) year sentence under F.S. 775.087... would have been proper," but asserting that Burks's sentence was not illegal because his mandatory life sentence was "proper on the case of the record." The trial court denied Burks's motion, concluding that because Burks's sentence of life imprisonment as a prison releasee reoffender did not exceed the statutory maximum authorized by law, it was legal on its face. The trial court subsequently denied Burks's motion for rehearing, and this timely appeal ensued.

II. STANDARD OF REVIEW

" 'Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo.' " Brooks v. State, 199 So.3d 974, 976 (Fla. 4th DCA 2016) (quoting Smith v. State, 143 So.3d 1023, 1024 (Fla. 4th DCA 2014) ).

III. ANALYSIS

A court "may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief." Fla. R. Crim. P. 3.800(a) ; see also Martinez v. State, 211 So.3d 989, 991 (Fla. 2017). "A rule 3.800(a) motion to correct an illegal sentence is intended to address cases in which the sentence imposes 'a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.' " Rutherford v. State, 93 So.3d 1132, 1132 (Fla. 1st DCA 2012) (quoting Carter v. State, 786 So.2d 1173, 1178 (Fla. 2001) ); see also State v. McMahon, 94 So.3d 468, 477 (Fla. 2012) (quoting State v. Akins, 69 So.3d 261, 268-69 (Fla. 2011) ).

Here, the trial court sentenced Burks to a term of natural life for the offense of attempted first degree murder with a firearm pursuant to the PRR statute, specifically, section 775.082(9)(a)(3)(a), Florida Statutes (2007). That statute provides, in relevant part, that a prison releasee reoffender who commits a felony punishable by life "is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows: a. For a felony punishable by life, by a term of imprisonment for life." Id. A defendant sentenced as a prison releasee reoffender also "shall not be eligible for parole, control release, or any form of early release" and "must serve 100 percent of the court-imposed sentence." § 775.082(9)(b), Fla. Stat. (2007).

On appeal, Burks contends that the trial court erred in failing to sentence him under Florida's 10/20/Life statute, specifically section 775.087(2)(a)(3), and that the failure to do so rendered his sentence illegal. Section 775.087(2)(a)(3) provides for mandatory minimum terms of imprisonment where a defendant discharged a firearm in the commission or attempted commission of a felony resulting in death or great bodily harm and states in relevant part:

(2)(a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
....
3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a "firearm" or "destructive device" as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison .

§ 775.087(2)(a)(3), Fla. Stat. (2007) (emphasis added).

Burks is correct that the trial court was required to sentence him under section 775.087(2)(a)(3), the relevant provision of the 10/20/Life statute. Section 775.087(2)(d), Fla. Stat. (2007), specifically states that "[i]t is the intent of the Legislature that offenders who actually possess ... firearms ... be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted." (emphasis added). A trial court, therefore, has no discretion in deciding whether to sentence a defendant under section 775.087(2) when a defendant possessed or discharged a firearm during the commission of an enumerated felony. See Dunbar v. State, 89 So.3d 901, 906 n.5 (Fla. 2012) ("[N]o discretion is given to trial courts in deciding whether to impose mandatory minimum terms under section 775.087(2)...."); Termitus v. State, 86 So.3d 1179, 1181 (Fla. 5th DCA 2012) (reversing denial of a rule 3.800(a) motion to correct illegal sentence where the trial court failed in its nondiscretionary duty to impose required mandatory minimum sentences under section 775.082(2) ); Johnson v. State, 53 So.3d 360, 362 (Fla. 5th DCA 2011) ("[T]he imposition of a mandatory minimum sentence under section 775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant qualifies for mandatory minimum sentencing."). Accordingly, "[w]here the judge has no discretion in imposing a mandatory minimum sentence, the failure to do so makes the sentence illegal." Vargas, 188 So.3d at 916 (finding defendant's sentences illegal where they were not imposed as mandatory minimum sentences as required by section 775.087(2) ).

The State argues that the trial court's failure to impose a sentence under section 775.087(2)(a)(3) did not render Burks's sentence illegal because of the "precedence" given to sentencing under the PRR statute, section 775.082. The State's argument, however, is contrary to Florida Supreme Court precedent that the specific provisions of section 775.087(2) control over the general provisions of section 775.082 regarding statutory maximums.

In McDonald v. State, 957 So.2d 605, 607 (Fla. 2007), McDonald was sentenced as a prison releasee reoffender to concurrent mandatory life sentences under the PRR statute, section 775.082(9), Florida Statutes (2000). In addition, the trial court imposed concurrent ten-year mandatory minimum sentences on the same counts for possession of a firearm during the commission of the offenses under the 10/20/Life statute, section 775.087, Florida Statutes (2000). Id. The trial court denied McDonald's subsequent rule 3.800(a) motion challenging the imposition of the mandatory minimum sentences, and the Fourth District Court of Appeal affirmed. McDonald v. State, 912 So.2d 74 (Fla. 4th DCA 2005). In approving the Fourth District's decision, the Florida Supreme Court determined that the appellate court properly relied upon the plain meaning of section 775.087(2)(c), which states:

(c) If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082 , s. 775.084 , or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section .

McDonald, 957 So.2d at 609 (emphasis in original) (quoting § 775.087(2)(c), Fla. Stat. (2000) ). The Florida Supreme Court agreed with the Fourth District that the language of section 775.087(2)(c)"plainly requires that the mandatory minimum sentence be imposed concurrently with the minimum mandatory sentence of the PRR statute even though the 10-20-LIFE sentence is less than the PRR sentence." Id. at 611. The Florida Supreme Court also found that "the Fourth District properly concluded that the more specific provisions contained in the 10-20-LIFE statute should control over the more general provisions of the PRR statute." Id. Finally, the Florida Supreme Court acknowledged that the imposition of a sentence under the 10/20/Life statute concurrent with a greater sentence under the PRR statute will have "very little, if any, practical effect in most cases," but "[b]ecause the Legislature clearly intends that criminals using firearms to commit violent crimes receive the maximum sentence, the mandatory minimum 10-20-LIFE sentence must be imposed even if it is less than another sentence that runs concurrently." Id. at 611-12. As such, the Florida Supreme Court, in addressing concurrent sentencing under the PRR statute and the 10/20/Life statute, held that "the minimum sentence mandated by the 10-20-LIFE statute must be imposed concurrently with the PRR sentence even when the 10-20-LIFE sentence is the lesser sentence. Id. at 613.

Subsequently, in Mendenhall v. State, 48 So.3d 740 (Fla. 2010), the Florida Supreme Court addressed the issue of "whether the mandated 'minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison' under section 775.087(2)(a)(3) gives the trial court the discretion to impose a sentence anywhere within the range of twenty-five years to life, even if that sentence exceeds the statutory maximum" under section 775.082(2). Id. at 745. The Florida Supreme Court held "that the specific provisions of the 10-20-Life statute with regard to mandatory minimums control over the general provisions of section 775.082 regarding statutory maximums" and concluded "that the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082." Id. at 742.

In reaching its conclusion that Mendenhall was properly sentenced to thirty-five years with a thirty-five-year mandatory minimum, notwithstanding the relevant statutory maximum of thirty years contained in section 775.082 for Mendenhall's offense, the Florida Supreme Court relied upon its analysis in McDonald and stated that "[i]n resolving any perceived conflict between the statutory maximum in the general sentencing statute and the mandatory minimum range of twenty-five years to life, we conclude that the specific provisions of section 775.087(2)(a)(3) prevail over the general provisions of the 775.082 regarding statutory maximums." Id. at 748.

Accordingly, because the specific provisions of the 10/20/Life statute control over the general sentencing maximums set forth in section 775.082, we hold that the trial court was required, pursuant to section 775.087(2)(a)(3), to sentence Burks concurrently under the 10/20/Life statute, notwithstanding his sentence as a prison releasee reoffender under section 775.082(9)(a)(3)(a). The trial court's failure to do so rendered Burks's sentence illegal. Cf. Pitts v. State, 202 So.3d 882, 885 (Fla. 4th DCA 2016) (stating that where trial court was required to sentence defendant to life imprisonment under section 775.082(1), the trial court was also required to impose a concurrent mandatory minimum sentence within the range of twenty-five years to life under section 775.087(2)(a)(3) ).

Reversed and remanded for resentencing.

      As the Fifth District Court of Appeal stated in Vargas v. State, 188 So.3d 915, 916 n.1 (Fla. 5th DCA 2016), "[m]otions seeking to impose mandatory minimums are typically filed by the State, but nothing prohibits a defendant from filing such a motion."

      The 2007 versions of the statutes at issue are unchanged from the 2000 versions considered in McDonald.


text:
    Oscar RUA-TORBIZCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2293
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Oscar Rua-Torbizco, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

Rua-Torbizco appeals from the trial court's order denying his motion for leave to file a second motion under Florida Rule of Criminal Procedure 3.850. We affirm, without prejudice, and set forth the reasons for our decision.

On June 7, 2016, Rua-Torbizco filed his first pro se postconviction motion. The trial court denied the motion, and Rua-Torbizco appealed that denial order, which is currently pending in this court. Rua-Torbizco v. State, 3D17-1595.

On September 6, 2017, and while that appeal was pending, Rua-Torbizco filed with the trial court his motion for leave to file a second 3.850 motion. In the motion for leave, Rua-Torbizco asserts that he does not read or speak English, was not aware of the contents of his first motion (allegedly written by a fellow inmate), and that he would like to raise additional 3.850 issues. It should be noted that, at the time his motion for leave was filed, Rua-Torbizco was still within the two-year window for the timely filing of a motion for postconviction relief. See Fla. R. Crim. P. 3.850(b) (establishing a general two-year time limitation for motions filed pursuant to rule 3.850 ).

On September 28, 2017, the trial court entered an order summarily denying the motion for leave without elaboration, which is the order on appeal before us.

This court held in Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966), that once the notice of appeal of the order denying the first motion for postconviction relief has been filed, the trial court is without jurisdiction to consider the second motion for postconviction relief while that appeal remains pending. This appears to remain the law in our district, and is supported by the Florida Supreme Court's decision in State v. Meneses, 392 So.2d 905 (Fla. 1981), holding that "while appeal proceedings or certiorari proceedings are pending in an appellate court, the trial court is without jurisdiction to entertain a motion to vacate."

The instant case differs slightly from Gobie in that the trial court in the instant case did not actually "entertain a motion to vacate," as no motion to vacate had yet been filed. Instead, the trial court merely ruled upon and denied the defendant leave to file a second motion.

While, under Gobie and Meneses, the trial court was without jurisdiction to entertain and rule upon the motion to vacate until the first appeal was resolved, surely the defendant was authorized to file the second motion for postconviction relief. What the trial court could have done (instead of simply denying the motion for leave) was to permit Rua-Torbizco to file the motion (Rua-Torbizco did not require the trial court's permission to file the motion in any event), and hold the motion in abeyance to await the outcome of the first appeal before proceeding on the second motion or ruling on its legal sufficiency, timeliness, or merits.

We note that the Florida Supreme Court has held that a trial court has the authority to dismiss (for lack of jurisdiction) a second 3.850 motion while an appeal is pending on a prior 3.850 motion. Tompkins v. State, 894 So.2d 857 (Fla. 2005). In doing so, however, the Tompkins Court recognized that a dismissal of the second motion could unintentionally result in a defendant being time-barred from filing his second motion if he has to await the outcome of the appeal of the order denying his first motion:

We recognize that due to this Court's denial of Tompkins' motion to relinquish, a procedural dilemma now arises because Tompkins is time-barred from filing a new postconviction motion raising his newly discovered evidence claims. See Glock v. Moore, 776 So.2d 243, 251 (Fla. 2001). ("[A]ny claim of newly discovered evidence in a death penalty case must be brought within one year of the date such evidence was discovered or could have been discovered through the exercise of due diligence."). Accordingly, although we affirm the trial court's order, we conclude that Tompkins should be permitted 60 days to refile his successive postconviction motion nunc pro tunc to February 5, 2003, the date his prior motion was filed in the trial court. To avoid this procedural dilemma in the future, we conclude that if an appeal is pending in a death penalty case and this Court denies a motion to relinquish jurisdiction for the trial court to consider a new claim, the trial court should hold any successive postconviction motion in abeyance until the appeal process is completed.

Id. at 859-860 (emphasis added.)

It seems to us that this same reasoning should apply to motions for postconviction relief in non-capital cases as well. This rationale has been acknowledged by our sister courts. See, e.g., Bryant v. State, 102 So.3d 660 (Fla. 2d DCA 2012) (recognizing that, by accepting the filing of the second motion while an appeal is pending on the first motion, "the postconviction court has protected the defendant from the risk of procedural default under the two-year time limit"); Jackman v. State, 88 So.3d 325 (Fla. 4th DCA 2012).

We therefore affirm the trial court's denial of Rua-Torbizco's motion for leave to file a second 3.850 motion, without prejudice to the filing of a second motion for postconviction relief within sixty days from the date of issuance of this opinion. If filed within that sixty-day period, the motion shall be deemed filed nunc pro tunc to September 7, 2017 (the date Rua-Torbizco filed his motion for leave). The trial court shall hold this second motion in abeyance until the conclusion of the pending appeal in 3D17-1595, after which the trial court may entertain the motion.

Affirmed without prejudice and remanded with directions.

      We note that this is a meritless position. See Fla. R. Crim. P. 3.850(n)(1) and (2), which provide:
      (1) By signing a motion pursuant to this rule, the defendant certifies that: the defendant has read the motion or that it has been read to the defendant and the defendant understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court; and, the facts contained in the motion are true and correct.
      (2) The defendant shall either certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understands. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant. Failure to include this information and certification in a motion shall be grounds for the entry of an order dismissing the motion pursuant to subdivision (f)(1), (f)(2), or (f)(3).

      That rule provides in pertinent part that "a motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final...." Rua-Torbizco's judgment and sentence became final on December 4, 2015, when the mandate issued on his direct appeal in 3D14-2647, and he therefore had until December 4, 2017 to file a timely motion under rule 3.850.

      More recent decisions from our sister courts have held that the trial court has concurrent jurisdiction to address a second 3.850 motion raising issues unrelated to those presented in the first motion that is the subject of a pending appeal. See, e.g., Siskos v. State, 163 So.3d 739 (Fla. 5th DCA 2015) ; Bryant v. State, 102 So.3d 660 (Fla. 2d DCA 2012) ; Jackman v. State, 88 So.3d 325 (Fla. 4th DCA 2012). This panel is bound by this court's prior decision in Gobie on the jurisdictional question, but we suggest that the unintended consequence (i.e., a procedural bar) which could follow from a trial court's order dismissing a second motion for lack of jurisdiction may easily be avoided by simply abating the second motion until the conclusion of the appeal from the order on the first motion.


text:
    Mark EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2253
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Mark Evans, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

Mark Evans appeals an order summarily denying his motion for correction of jail credit under Florida Rule of Criminal Procedure 3.801. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

"The award of jail time credit is mandatory under section 921.161, Florida Statutes, unless the record clearly shows that the defendant waived his or her entitlement to such credit." Briggs v. State, 929 So.2d 1151, 1153 (Fla. 5th DCA 2006). A "waiver of jail credit will not be presumed and the state has the burden to clearly establish a waiver occurred." Id.; see also Ryan v. State, 837 So.2d 1075, 1076 (Fla. 3d DCA 2003). Because the record now before us fails to make the required showing, we reverse the order and remand for attachment of records conclusively showing that the appellant is not entitled to relief. Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007). If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts, including a sentencing transcript and plea colloquy, conclusively showing that the appellant is not entitled to jail credit for time served.

Reversed and remanded for further proceedings.


text:
    Stephen D. LEONARD, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1383
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017 Rehearing Denied December 22, 2017
    Stephen D. Leonard, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before ROTHENBERG, C.J., and LAGOA and SCALES, JJ.
   LAGOA, J.

Petitioner, Stephen Leonard, filed a pro se petition for writ of habeas corpus for claims including ineffective assistance of counsel. We dismiss the petition as unauthorized.

"Habeas corpus is a collateral remedy, and is no substitute for a direct appeal." Gilbert v. Singletary, 632 So.2d 1104, 1105 (Fla. 4th DCA 1994). Petitioner's direct appeal of his conviction and sentencing is currently pending before this Court in Case Numbers 3D16-2298 and 3D16-2203. Moreover, Petitioner is represented by the Office of the Public Defender in those appeals. Accordingly, the petition for writ of habeas corpus is hereby dismissed as unauthorized. See Douglas v. State, 146 So.3d 1187 (Fla. 3d DCA 2014) (unpublished table decision).


text:
    Lazaro RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1529
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Lazaro Rodriguez, in proper person.
    Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

Appellant, Lazaro Rodriguez ("Rodriguez"), appeals from the denial of a motion to dismiss the pending amended violation of probation ("VOP") affidavit. Because the order denying Rodriguez's motion is not an appealable order, we dismiss the appeal.

Rodriguez alleges that a Monroe County circuit judge issued a warrant for violation of probation but that no hearing has been held. The State contends that an order denying an inmate's motion for violation of probation hearing is neither a final judgment adjudicating guilt nor an order revoking or modifying probation under Florida Rule of Appellate Procedure 9.140. We agree. See Torres v. State, 700 So.2d 1247, 1248 (Fla. 5th DCA 1997).

The proper procedure is for Rodriguez to petition the circuit court in the Twentieth Judicial Circuit for a writ of habeas corpus as he is incarcerated in the Charlotte Correctional Institution located in Punta Gorda, Florida. Pursuant to section 79.09, Florida Statutes (2016), only the circuit court within the county where an inmate is incarcerated has jurisdiction to consider a writ of habeas corpus. See Alachua Reg'l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla. 1996).

We therefore dismiss the appeal without prejudice to Rodriguez filing a petition for writ of habeas corpus in the Twentieth Judicial Circuit.

Dismissed without prejudice.


text:
    William Shaun JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-333
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    William Shaun Jordan, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Magaly Rodriguez, Assistant Attorney General, Miami, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

William Shaun Jordan ("Jordan") appeals the denial of his third Rule 3.800(a) post-conviction motion arguing that his sentences are illegal because of the "stacking" of his three mandatory minimum sentences. For the reasons stated below, we affirm.

I. PROCEDURAL HISTORY

In 1996, during a drug sweep in South Miami Heights, Jordan used a firearm against one police officer and brandished it against two others. Jordan was charged with one count of attempted first degree murder of a law enforcement officer and two counts of aggravated assault on two different law enforcement officers. Following trial, Jordan was convicted of: (1) attempted second-degree murder of a law enforcement officer with a firearm (upon Officer Macken); (2) aggravated assault of a law enforcement officer with a firearm (upon Sergeant Gallagher); and (3) aggravated assault of a law enforcement officer with a firearm (upon Officer Guerrier).

The trial court sentenced Jordan to thirty years in prison on the attempted second-degree murder conviction (Macken), a consecutive five years in prison on the aggravated assault (Gallagher), and another consecutive five years in prison on the aggravated assault (Guerrier), for a total of forty years. Each conviction carried a three-year firearm minimum mandatory sentence to run consecutively, thereby, "stacking" to a nine-year minimum sentence.

On March 10, 2015, Jordan filed a motion (through counsel) to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Jordan contended that the stacking of the minimum mandatory portions of the three sentences was impermissible because the evidence did not show that each use of the firearm by Jordan was a separate transaction or episode. The motion was summarily denied by the trial court in its order. That order was timely appealed to this Court, and this Court reversed, as we could not "determine from the record provided whether the consecutive three-year mandatory minimum sentences for multiple counts of aggravated assault with a firearm were allegedly committed during a single criminal episode and whether such sentences are illegal." Jordan v. State, 182 So.3d 819, 821 (Fla. 3d DCA 2016). This Court remanded "for the [trial] court to conduct any further hearing as necessary or to enter an order with record attachments conclusively establishing Jordan is not entitled to relief." Id.

On remand, on March 15, 2016, the trial court entered a detailed order denying Jordan's motion for post-conviction relief, and attached portions of the record conclusively establishing that Jordan was not entitled to relief. This appeal ensued.

II. ANALYSIS

On appeal, Jordan argues the same issue raised in his March 10, 2015, motion, namely whether the "stacking" of mandatory minimum sentences is permitted under the circumstances of this case. The answer turns on whether the incidents in the instant case consisted of separate criminal episodes, or alternatively, if a single criminal episode, the incidents caused injury to multiple victims or multiple injuries to one victim, thus bifurcating the episode for sentencing purposes.

A. Legal Standard for Stacking Mandatory Minimums

As recognized by the Florida Supreme Court, "[a]ny discussion as to this issue should begin with our decision in Palmer v. State, 438 So.2d 1 (Fla.1983)." State v. Sousa, 903 So.2d 923, 924 (Fla. 2005). In Palmer, the defendant walked into a funeral parlor, brandished a gun, and simultaneously robbed thirteen people, though with no injury or discharge of the gun. Palmer, 438 So.2d at 2. The trial court imposed the three-year mandatory minimum consecutively as to each of the 13 counts of robbery for which the defendant was convicted. Id. The Florida Supreme Court reversed on the ground that the Legislature had not authorized the stacking of mandatory minimums for multiple offenses committed in the same criminal episode. Id. at 3-4 (implicitly finding that all the offenses occurred in the same episode). The Florida Supreme Court, however, left open the possibility of "consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places." Id. at 4.

Next, in State v. Thomas, 487 So.2d 1043 (Fla. 1986), the Florida Supreme Court limited Palmer's holding with regard to multiple offenses in the same criminal episode, specifically permitting stacking of mandatory minimums "where a defendant committed two separate and distinct offenses involving multiple victims during one criminal episode." Sousa, 903 So.2d at 925 (describing the holding in Thomas ). In Thomas, the defendant shot a woman in her bedroom, but that victim managed to escape outside before the defendant shot her again. Thomas, 487 So.2d at 1044. The victim's son attempted to intervene outside the trailer, but the defendant fired his gun at the son (and missed). Id. The Florida Supreme Court upheld the stacking of the mandatory minimum for the attempted murder of the woman and the aggravated assault of the son. Id. at 1044-45.

In State v. Christian, 692 So.2d 889 (Fla. 1997), during a bar fight, the defendant shot the first victim three times from behind, then shot and wounded the second victim, who had attempted to intervene. Id. at 890. The Florida Supreme Court rejected the argument that stacking was not permitted because these offenses occurred in the same criminal episode. Id. Generally,

for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim. The injuries bifurcate the crimes for stacking purposes. The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.

Id. at 890-91 (footnotes omitted).

The Florida Supreme Court again addressed stacking in Sousa. In Sousa, the defendant committed two counts of attempted murder with a firearm and one count of aggravated assault with a firearm in rapid succession. Sousa, 903 So.2d at 924. The Florida Supreme Court upheld the stacking of the mandatory minimums for the two attempted murders with a firearm and the aggravated assault with a firearm. Id. at 928.

Under Florida law, stacking minimum mandatory sentences is therefore generally permissible when separate criminal episodes occur and generally not permissible when all offenses occur as part of a single criminal episode. But, when such offenses occur as part of a single criminal episode, "stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim. The injuries bifurcate the crimes for stacking purposes. The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon." Christian, 692 So.2d at 890-91 (footnotes omitted). We now apply these legal standards to the case before us.

B. Application to the Instant Case

In the instant case, the facts established at trial show that Jordan's offenses were not committed as part of a single episode. In relevant part, on the day in question, Sergeant Gallagher (the supervisor), Officer Macken (the driver), and Officer Guerrier (the rookie) were conducting a drug sweep operation of the South Miami Heights area in a black Chevy Blazer. As they turned on SW 113th Place, they observed four males standing together, one of whom was holding what appeared to be a marijuana cigarette. Macken stopped the vehicle, and Gallagher and Guerrier exited from the right side, with Macken's exit being delayed as he waited for a vehicle to pass.

Gallagher and Guerrier approached and gestured for two of the males to place their hands on a vehicle parked nearby. The two males complied and were searched while Jordan and the fourth male stood by and watched. After the approaching car passed the Blazer, Macken exited. As he did so, Gallagher instructed Jordan to place his hands on the vehicle too, but Jordan turned and fled west, first running behind, then around, a residence. Macken unholstered his firearm and pursued Jordan on foot, yelling at him to stop and identifying himself as police.

As Jordan finished his route around the residence and returned to 113th Place, he ran northeasterly towards 189th Street, and then easterly along 189th Street. Somewhere along this path, Jordan turned and pointed a gun at Macken. Macken fired a shot at Jordon and missed. Jordan ran a few more steps, turned, fired a shot, and missed. Jordan then ran south between two residences and positioned himself along the east side of a wall separating the patio area of the duplex homes. Macken ran to the west side of the wall and leaned his back against it. Macken and Jordan exchanged demands that the other surrender.

Macken reached around the wall with his right hand holding his gun. Jordan fired a sequence of shots along the wall, striking Macken in the face. Macken retreated northwest to the corner of the residence, away from the patios and the separating wall. A few minutes later, Jordan appeared from behind the wall and ran southeasterly. Jordan looked back and fired a sequence of shots at Macken, some of which struck Macken in the leg.

While Macken was pursuing and exchanging fire with Jordan, Gallagher and Guerrier were arresting and placing the two males into the Blazer. Gallagher and Guerrier entered the vehicle, and Gallagher began driving easterly along SW 189th Terrace. Jordan suddenly emerged from between two houses. As the Blazer approached and passed by, Jordan raised the gun with one hand, pointing it at the vehicle and continuing to walk. Seeing the gun, Gallagher accelerated past and away from Jordan. As Gallagher watched Jordan in the side view mirror, Jordan raised his other hand to the gun and tracked the Blazer. Jordan eventually lowered his gun and walked off to the north.

Gallagher stopped the vehicle at the end of the block, instructed Guerrier to stay with the vehicle, and ran back to the location he last saw Jordan. Gallagher observed Jordan leaning up against the wall of a nearby home, fiddling with his gun (possibly reloading or clearing a jam). Jordan saw Gallagher running towards him and raised his gun with both hands. Gallagher fired four shots at Jordan, all missing. However, Jordan fell to the ground and slipped away back north towards 189th Street.

After a brief confrontation with Officer Tookes, who was protecting the injured Macken, Jordan fled east along 189th Street, then southeasterly towards 189th Terrace east of 113th Avenue. By this time, Guerrier was driving the vehicle with the two men held in the blazer. Jordan reappeared near Guerrier in the vehicle. As he ran past Guerrier in the vehicle, he pointed his gun at her.

We therefore find that the record evidence presented at trial conclusively refutes Jordan's argument that each of the offenses for which Jordan was convicted were committed during a single criminal episode. Cf. Jordan v. State, 182 So.3d 819, 821 (Fla. 3d DCA 2016) ("[W]e cannot determine from the record provided whether the consecutive three-year mandatory minimum sentences for multiple counts of aggravated assault with a firearm were allegedly committed during a single criminal episode and whether such sentences are illegal."). Accordingly, the stacking of the mandatory minimums was permissible, and the trial court properly denied Jordan's rule 3.800(a) post-conviction motion.

AFFIRMED.

      While both the trial court and the State characterize the March 10, 2015, motion as pro se, the motion appears to have been signed by Clayton R. Kaeiser as attorney for defendant.

      We note that the March 10, 2015 motion was Jordan's third Rule 3.800(a) motion, and his fifth motion for post-conviction relief.

      On February 14, 2017, this Court granted Jordan's petition for a belated appeal of the March 15, 2016 order, as Jordan had timely placed his appeal into the hands of prison officials.

      "In Wilson [v. State, 467 So.2d 996 (Fla.1985) ], where the defendant possessed a gun while kidnapping the one victim and then taking her by car a short distance and sexually assaulting her, we held that the offenses occurred during a single episode. In State v. Ames, 467 So.2d 994 (Fla.1985), where the defendant possessed a gun while breaking into a woman's house, robbing her in one room and raping her in another, we held that the three offenses occurred during a single episode." State v. Thomas, 487 So.2d 1043, 1044 (Fla. 1986).

      Subsequent to Christian, the Florida Legislature amended section 775.087, Florida Statutes, to add new subsection (2)(d), which reads:
      It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.
      § 775.087(2)(d), Fla. Stat. (1999). While this provision does not apply to the instant case, as Jordan was sentenced prior to the amendment, the Florida Supreme Court has held that the amendment is consistent with its decisions predating the amendment, particularly Christian and Thomas. See Sousa, 903 So.2d at 927.

      In Sousa, it is clear that two of the victims were shot in a single criminal episode. The opinion, however, is unclear as to whether the offense against the third victim occurred in the same or a separate criminal episode.

      The record is unclear as to the whereabouts of the fourth male.

      Jordan was arrested later that day after significant intervening events not relevant to this appeal.