author: Bilbrey, J.

text:
    Dianya MARKOVITS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 1D17-1623
    District Court of Appeal of Florida, First District.
    January 3, 2018
    Rehearing Denied February 5, 2018
    Julie A. Fine and Cherie H. Fine of Fine, Farkash & Parlapiano, PA, Gaines-ville, for Appellant.
    Susan M. Seigle of Alvarez, Winthrop, Thompson and Storey, P.A., Gainesville, for Appellee.
   Bilbrey, J.

Appellant, Dianya Markovits, was injured in an automobile crash and brought suit against Appellee, State Farm Mutual Automobile Insurance Company, for uninsured motorist benefits under her insurance policy. She served a proposal for settlement on State Farm which was not accepted. After trial, Markovits obtained a final judgment in her favor which was more than 25 percent greater than the amount demanded in the proposal for settlement, and she then moved for attorneys’ and paralegals’ fees based on the rejected proposal. See § 768.79(1), Fla. Stat. (2014). State Farm disputed .her entitlement to fees contending that the proposal was served prematurely. See Fla. R. Civ. P. 1.442(b). The trial court agreed with State Farm and held that Markovits, was not entitled to an award of fees. Based on our. case law .which establishes that service on an insurer is perfected when the Chief Financial Officer of the State of Florida (CFO) is served as an insurer’s “attorney to receive service of all legal process issued against it in any civil action or proceeding in this state,” we hold that the proposal was not premature, and that Mar-kovits is entitled to reasonable attorneys’ and paralegals’ fees. § 624.422(1), Fla. Stat. (2014). We therefore reverse and remand for a hearing to determine the amount of fees to be awarded to Marko-vits.

As required by law, the complaint was served on the CFO. See §§ 48.151, 624.422, 624.423, Fla. Stat. (2014). The CFO was served on February 4, 2014, and his office forwarded the complaint to State Farm on February 7, 2014. See § 624.423(1), Fla. Stat. On May 6, 2014, Markovits • served the proposal for settlement on State Farm. Rule 1.442(b), Florida Rules of Civil Procedure, states in part that a “proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant." State Farm was served with .the proposal 91, days after service of the complaint on the CFO but 88 days after the complaint was forwarded by the CFO to. State Farm. Markovits argues that service was perfected when .the CFO was served, and therefore the proposal complied with rule. 1.442(b). State Farm argues that service was not perfected until the CFO forwarded the complaint to State Farm, and therefore the proposal was premature and invalid. Both parties cite certain statutory language in support of their .positions.

Markovits points to section 624.422, which states,

(1) Each licensed insurer, whether domestic, foreign, or alien, shall b.e deemed to have appointed the Chief Financial Officer and her or his successors in office as its attorney to receive service of all legal process issued against, it in any civil action or proceeding in this state; and process so served shall be valid and binding upon the insurer.

(Emphasis added).

. While State Farm points to section 624.423, which, states,

(3) Process served upon the. Chief Financial Officer, and copy thereof forwarded as in this section provided shall for all purposes constitute valid and binding service thereof upon the insurer. ,

(Emphasis added). .

In Centex-Rodgers Construction Company v. Hensel Phelps Construction Com pany, 591 So.2d 1117, 1117 (Fla. 1st DCA 1992), we discussed “whether service on a foreign corporation and its surety is perfected through service on the Insurance Commissioner’s office, as agent of the surety.” At the time, the Insurance Commissioner was the statutory agent under sections 48.151, 624.422, and 624.423, but the statutes were otherwise almost identical to the 2014 versions. Although Centex-Rodgers involved the question of which circuit court had jurisdiction when competing lawsuits were brought in different circuits, our holding there was broader. We stated:

The dispute in this case is whether service of process upon the Insurance Commissioner as agent of the surety constitutes perfected service, or whether such service is complete only upon transmission by the Insurance Commissioner and receipt by the surety. The general rule in this context is that service of process upon the Insurance Commissioner constitutes actual service of process.

Id. at 1119.

In Centex-Rodgers we discussed and distinguished Home Life Insurance Company v. Regueira, 243 So.2d 460 (Fla. 2d DCA 1970). Regueira involved the Insurance Commissioner’s failure, after receiving the summons and complaint, to forward them to the insurer as required by law. Id. at 461. The insurer was defaulted for failing to answer, and the insurer then challenged service. Id. The-court in Re-gueira held that “no valid or binding service of process was effected.” Id. at 463. As in Centex-Rodgers, “[w]e conclude that the Regueira decision is inapplicable in the circumstances of this case.” Centex-Rodg-ers, 591 So.2d at 1119. Just as in Centex-Rodgers, “[h]ere, proper notice and an opportunity to defend is not at issue.” Id.

We did note in Centex-Rodgers that “the sole question is whether service of process upon the Insurance Commissioner constitutes valid and binding service upon the insurer, for jurisdictional purposes.” Id. The trial court perceived the “for jurisdictional purposes” clause as a limitation which made Centex-Rodgers inapplicable. However, this overlooked the earlier statement in Centex-Rodgers that in general serving the statutory agent—there the Insurance Commissioner, here the CFO— “constitutes actual service of process.” Id. We do not find this language to be dicta, and being bound by Centex-Rodgers, hold that once service was perfected on the CFO, the running of the 90-day period started, after which it was permissible for a proposal for settlement to be served on State Farm.

Our holding is also based on section 48.151(1), which states that “[w]hen any law designates a public officer, board, agency, or commission as agent for service of process” and the person or entity so designated is served with process, then “service is valid service for all purposes on the person for whom the public officer, board, agency, or commission is statutory agent for service of process.” (Emphasis added). Since the proposal was served on the CFO on the 91st day after service of process and was “valid for all purposes” as to State Farm when served, the proposal was not premature under rule 1.442(b).

Therefore, the order denying Markovits entitlement to attorneys’ and paralegals’ fees is Reversed, and this matter is Remanded for a hearing to determine the amount of reasonable fees to be awarded.

Lewis and M.K. Thomas, 33., concur.

      . Rule 1.442, Florida Rules of Civil Procedure, uses the term proposal for settlement while section 768.79, Florida Statutes (2014), uses the terrtx offer of judgment when made by a defendant or demand for judgment when made by a plaintiff. For the sake of simplicity and consistency the demand for judgment from Markovits is referred to as the proposal for settlement or proposal.

      . Following trial, in a separate motion Mar-kovits moved for and was awarded costs as a prevailing party. See § 57.041, Fla. Stat. (2014). Therefore, although section 768.79 would also provide„for an award of costs, the motion at issue here sought only fees.

      . Markovits also argues that we should apply Kuhajda v. Borden Dairy Company of Alabama, LLC, 202 So.3d 391 (Fla. 2016), so as not to give a strict reading to rule 1.442 and thereby' defeat the substantive right to fees created by section 768.79. Based on our holding that service on State Farm was perfected when the CFO was served, we do not reach that isstie.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Marlinda LOWE, on behalf of herself and all others similarly situated, Appellant, v. NISSAN OF BRANDON, INC., d/b/a Autonation Nissan Brandon, a Florida corporation, Appellee.
    Case No. 2D17-1104
    District Court of Appeal of Florida, Second District.
    Opinion filed January 5, 2018

      Brian W. Warwick of Varnell & Warwick, P.A., Lady Lake; and William C. Bielecky of William C. Bielecky, P.A., Tallahassee, for Appellant.
    Moisés Melendez of GrayRobinson, P.A., Fort Lauderdale; and Richard A. Ivers of Law Offices of Richard A. Ivers, Coral Springs, for Appellee.
   BLACK, Judge.

Marlinda Lowe challenges the circuit court’s order compelling Ms. Lowe to arbitrate her claims against Nissan of Brandon, Inc., d/b/a Autonation Nissan Bran-, don. We .affirm; we write to explain our reasoning and to certify conflict with existing cases addressing similar issues.

I. Facts

As relevant to this appeal, Ms. Lowe executed three separate documents when she purchased her vehicle from Nissan of Brandon: a Retail Purchase Agreement (Purchase Agreement), a Retail Installment Sale Contract (Installment Contract), and an Arbitration Agreement. Her complaint below was filed as a class action; she alleged, in pertinent part, that Nissan’s inclusion of $98.75 in the purchase price of the vehicle—itemized on the Purchase Agreement as a “Tag Agency/Electronic Filing Fee” (Fee)—violates' Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) and that the Fee constitutes unjust enrichment. The Purchase Agreement included a specific line-item charge for the Fee, and Ms. Lowe alleged that the Installment Contract included the Fee in the line-item “Cash Price” for the vehicle. Ms. Lowe’s claims are solely based upon the $98.75 Fee,

The Purchase Agreement provides that “Agreement" means the Purchase Agreement together with “any documents, incorporated into this Agreement by reference, whether such reference is made in the Agreement or the document itself.” It also provides, in paragraph ten, that “[t]he front and back of this Agreement and any documents incorporated herein by reference comprise the entire agreement .affecting this sale. You agree to sign any and all documents necessary to complete the terms of this sale.” (Emphasis added.) Further, paragraph ten expressly .incorporates the Arbitration Agreement: “If you have executed an Arbitration Agreement in conjunction with this Agreement such Arbitration Agreement shall be incorporat-. ed herein by reference and made a part of this Agreement.”

Paragraph fifteen of the Purchase Agreement states that the Agreement “shall survive the consummation of your purchase of the vehicle.” Paragraph sixteen provides that the Purchase Agreement is not binding on Nissan until “accepted by [Nissan’s] authorized manager, and if a credit purchase (1) appropriate financing disclosures are made and (2) a retail installment contract and purchase money security agreement is executed by you and [Nissan].” Paragraph sixteen further provides: “If this Agreement is part of a credit purchase, this offer is only an offer to purchase the vehicle .... A credit purchase is subject to credit approval of a third party financing institution and acceptance of the retail installment contract by a financing institution.”

Notwithstanding paragraph ten and its incorporation of the Arbitration Agreement, paragraph eighteen of the Purchase Agreement provides:

The sole and exclusive venue for any dispute or litigation arising under or concerning this Agreement shall be the courts located in and for the county in which [Nissan] is located, and the parties irrevocably consent to the jurisdiction óf said courts. Any and all arbitration proceedings shall also take place in the county where [Nissan] is located, unless agreed otherwise by the parties. ... In the event of any dispute or litigation arising under or concerning this Agreement, the prevailing party shall be entitled to recover its costs and expenses including court costs and reasonable attorney’s fees.

Finally, paragraph nineteen of the Purchase Agreement provides that if the “sale of the vehicle described in this Agreement is conditioned upon an agreement by a third party financing institution (‘finance institution’) to purchase the retail installment contract entered into between you and [Nissan] (‘contract’) and if [Nissan] cannot sell the contract to a finance institution within a reasonable: time period ... [Nissan] may ... cancel the contract.”

The pertinent'terms of the Installment Contract include that the “Seller-Creditor” is Nissan and the merger clause: “This contract contains the entire agreement between you and [Nissan]' relating to this contract. Any change to this contract must be in writing and [Nissan] must 'sign it.” (Emphasis added.) The Installment Contract also provides that “if [Nissan] is unable to assign this contract within [the time period stated to assign the contract] to any one of the financial institutions with whom [Nissan] regularly does business under an assignment acceptable to [Nissan], [Nissan] may cancel this contract.”

The third pertinent document executed by Ms. Lowe was the Arbitration Agreement. By its. terms, the Arbitration Agreement applies to “customers” who purchase a vehicle. It defines “customer/dealership dealings” as “reviewing, negotiation or executing any documents or agreement during the course of interactions with the dealership.” The Arbitration. Agreement also provides that “arbitration will be the sole method of resolving any elaim, dispute, or controversy (collectively, ‘claims) that either party has arising from Customer/Dealership Dealings.” It then presents five groupings of' claims to which arbitration applies. Finally, ' the Arbitration Agreement states that it is “entered into contemporaneously' with your Retail Installment Sale Contract.” ■

Upon being served with Ms. Lowe’s complaint, Nissan filed á motion to compel arbitration and to stay, the case, contending that the Arbitration Agreement controlled Ms. Lowe’s claims. The court held a hearing and ultimately entered an order granting the motion to compel arbitration and staying the court case. The circuit court found that “agreements and documents signed at or near the same time and as part of the same transaction should be read and construed together,” citing Phoenix Motor Co. v. Desert Diamond Players Club, Inc., 144 So.3d 694 (Fla. 4th DCA 2014), and Collins v. Citrus National Bank, 641 So.2d 458 (Fla. 5th DCA 1994). The court also cited Kendall Imports, LLC v. Diaz, 215 So.3d 95 (Fla. 3d DCA 2017), which held, in part, that the alleged conflicts between provisions in two documents signed as part of a vehicle'purchase could be reconciled. However, the court did not provide a finding attendant to the Kendall Imports citation, and we can only presume it is cited for the reconciliation holding.

As she. did, below, Ms. Lowe contends that the merger clause in the Installment Contract necessitates that the Installment Contract is the controlling document and that because the Installment Contract does not reference arbitration or incorporate any document by reference, there is no agreement to arbitrate her claims.

II. Analysis

“[T]he existence of a valid agreement to arbitrate is a question of law, [and] we review the trial court’s determination de novo.” Avatar Props., Inc. v. Greetham, 27 So.3d 764, 766 (Fla. 2d DCA 2010). Absent a valid written agreement to arbitrate, no party may be forced to arbitrate a. claim. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999). At issue here is whether there was an agreement to arbitrate a dispute arising from the sale price of the vehicle.

Ms. Lowe contends that two cases are directly on point and require reversal: HHH Motors, LLP v. Holt, 152 So.3d 745 (Fla. 1st DCA 2014), and Duval Motors Co. v. Rogers, 73 So.3d 261 (Fla. 1st DCA 2011). Both cases involve vehicle purchases and multiple, contemporaneously executed documents; however, HHH Motors and Duval Motors have either facts distinguishing them from this case or no discussion of facts critical to resolution of this ease.

In HHH Motors, the retail purchase agreement contained an arbitration provision as well as a clause stating that the purchaser agreed to execute all additional contracts and any retail installment sales contract required. 152 So.3d at 746. The retail installment sales contract did not contain an arbitration clause but did have a merger clause identical to ours. Id. at 746-47. There was no dispute that the purchasers signed the retail purchase agreement beforé they executed' the retail installment sales contract; there was likewise' no dispute that the documents were executed contemporaneously as part of the same transaction. In. that regard, the HHH Motors court noted that the retail purchase agreement “would have been binding but for the execution of the [retail installment sales contract], which was entered concurrently.” Id. at 748. However, the court concluded that “HHH motors [was] being held to the language of its own concurrently-signed documents. If it intended for credit buyers to be subject to the arbitration clause, then it could have said so in the [retail installment sales contract], but it did not.” Id. (citation omitted). And while it recognized that when documents are executed contemporaneously in the same transaction and concerning the same subject, “they should be read and construed together,” the court found “no legal error in the trial court’s conclusion that the [retail installment sales contract] and its merger clause operated to negate the arbitration clause in the [retail purchase agreement].” Id. at 748-49. The HHH Motors court held that the merger clause of the retail installment sales contract precluded consideration of the retail, purchase agreement and that as a result there was no valid agreement to arbitrate. Id.

Importantly, the claims against HHH Motors were for violations of FDUTPA “relating to electronic titling/registration filing fees that HHH Motors charge[d] its customers.” Id. at 747. However, the court did not discuss whether or how the claims, at issue might determine whether there was an agreement to arbitrate those claims. Ms. Lowe raises FDUTPA claims seemingly identical to those raised in HHH Motors; her claims rest on the $98.75 Fee charged by Nissan which is only identified in the Purchase Agreement.

In Duval Motors, the retail buyer’s order contained the same conditional language regarding the retail installment sales contract that our Purchase Agreement contains. 73 So.3d at 264. The retail installment sales contract ■ contained the identical merger clause at issue in our case and did not reference arbitration. Id. at 263. Further, the retail installment sales contract in Duval Motors identified other pertinent financing information regarding the purchase, including the down payment, total sale price, and amount financed. Id. That financing information was particularly relevant because the claims raised by the purchaser in Duval Motors arose from the seller’s demand of an additional down payment. Id. at 264. The trial court denied the motion to compel arbitration and the Duval Motors court agreed “[biased on the merger clause.” Id.

The Duval Motors court reiterated the general rule that “evidence outside the contract language, which is known as parol evidence, may be considered only when the contract language contains a latent ambiguity.” Id. at 265. It further stated that “[t]he purpose of a merger clause is ‘to affirm the parties’ intent to have the parol evidence rule applied to their contracts.’ ” Id. (quoting Centennial Mortg., Inc. v. SG/SC Ltd., 772 So.2d 564, 564 (Fla. 1st DCA 2000)). Applied to the facts of the Duval Motors case, the court stated that it was “immaterial whether any prior representations sought to be excluded [were] oral or written; anything that [did] not constitute part of ‘this contract’ [as used in the merger clause of the retail installment sales contract] is not part of the parties’ agreement related to the contract.” Id at 266. That is, “whether the [retail buyer’s order] should be considered depends on whether it is part of ‘this contract’ as that phrase is used in the merger clause.” Id. The court held that it was clear “that ‘this contract’ referred] only to the [retail installment sales contract]. By its title, ‘Retail Installment Sale Contract,’ [it] purports to represent the parties’ contract. More importantly, the [retail installment sales contract] does not refer to any other document as part of the contract.” Id. The Duval Motors court then determined that the retail buyer’s order was not a contract because it “referred] to itself as ‘this order’ throughout the document.” Id Finally, the court found no merit in the argument that the retail installment sales contract was not a fully integrated document because it did not contain all of the essential terms of the agreement. Id. Disagreeing with the seller’s argument, the Duval Motors court concluded that the items not listed in the retail installment sales contract but listed in the retail buyer’s order were either included in the retail installment sales contract’s figures or not essential because they were not required “to show that there was an agreement by the buyers to purchase the vehicle and an agreement by the seller to deliver the vehicle.” Id. The Duval Motors court went on to conclude that while documents executed concurrently—in the course of one transaction and concerning the same subject matter—should be read and construed together, there were no Florida cases applying that principle when one. of the documents; contained a merger clause. Id. at 267 (distinguishing. Dodge City, Inc. v. Byrne, 693 So.2d 1033 (Fla. 2d DCA 1997), for its lack of information as to the existence of a merger clause).

Ms. Lowe relies on the HHH Motors and Duval Motors cases for their holdings based on the retail installment sales contracts’ merger clauses. Neither HHH Motors nor Duval Motors- indicates that .the respective purchase agreement also contained a merger clause nor that the purchase agreement was otherwise only an offer to purchase until the retail installment sales contract was executed, at which time the purchase agreement would become a binding contract. Further, neither HHH Motors nor Duval Motors indicates that the respective purchase agreement included an' incorporation by reference provision. Duval Motors does, however, state that the purchase was conditioned on subsequent purchase of the retail installment sales contract by a financing institution. 73 So.3d at 264.

Because both the Purchase Agreement and the Installment Contract in this case identify as contracts and contain merger provisions, but only one of them incorporates the Arbitration Agreement, we must determine which of the two documents is the operative contract.

The general contract principle regarding construing contemporaneously executed documents together has been reiterated in many cases. See, e.g., Dodge City, 693 So.2d at 1035; Phoenix Motor Co., 144 So.3d at 696 (quoting Collins, 641 So,2d at 459). “But if the parties execute ‘two separate contracts and only one contract contains an arbitration clause, the parties cannot be compelled to arbitrate-disputes arising from the contract that does not call for arbitration.’” Phoenix Motor Co., 144 So.3d at 696 (quoting Lee v. All Fla. Constr. Co., 662 So.2d 365, 366 (Fla. 3d DCA 1995)). The exception is where the contract with the arbitration clause incorporates by reference the contract which does not contain an arbitration clause, such that the latter could be “interpreted as part of the [former] contract.” Id. at 697 (citing Affinity Internet, Inc, v. Consol. Credit Counseling Servs., Inc., -920 So.2d 1286, 1288-89 (Fla. 4th DCA 2006)).

To incorporate by reference a collateral ■document, the incorporating document must (1) specifically provide “ ‘that it is subject to the incorporated [collateral] document’ ” and (2) -the collateral document to be incorporated must be “ ‘sufficiently described or referred to in the incorporating agreement’” so that the intent of the parties may be ascertained, Kantner v. Boutin, 624 So.2d 779, 781 (Fla. 4th DCA 1993) (quoting Hurwitz v. C.G.J. Corp., 168 So.2d 84, 87 (Fla. 3d DCA 1964)). The [s]upreme [c]ourt set forth the second requirement for incorporation by reference in OBS Co. v. Pace Construction Corp., 558 So.2d 404, 406 (Fla. 1990): “It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to'be interpreted as part of the writing.”

BGT Grp., Inc. ,v. Tradewinds Engine Servs., LLC, 62 So.3d 1192, 1194 (Fla. 4th DCA 2011) (first alteration in original); cf. Jenkins v, Eckerd Corp,, 913 So.2d 43, 51 (Fla. 1st DCA 2006) (“The contract must contain more than a mere reference to the collateral document, but it need not state that it is ‘subject to’ the provisions of the collateral document to incorporate its terms. It is sufficient if the general language of the incorporating clause reveals an intent to be . bound by the terms of the collateral document.” (quoting Mgmt. Comput. Controls, Inc, v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999))).

In our case, although there is no indication of the order in which the documents were executed, there is no dispute that the documents were executed contemporaneously. And given the express language of the documents and the fact that Ms. Lowe purchased the vehicle through credit, the Purchase Agreement was only an offer to purchase until she executed the Installment Contract;. further, the purchase was subject to the condition that the Installment Contract be accepted by a financing institution. The Installment Contract’s execution, was a condition precedent to the formation of the Purchase Agreement. The Installment Contract does not reference arbitration or the Purchase Agreement;. nor does it include an incorporation by reference clause or othei’wise indicate that other documents may be incorporated into the Installment Contract. Thus, upon execution of the Installment Contract by both Ms. Lowe and Nissan and acceptance of the Installment Contract by a financing institution, the Purchase Agreement became an agreement to purchase no longer "subject to any conditions. The Purchase Agreement is the operative document.

That the Installment Contract contained a merger clause is not determinative; the law remains that “the existence of a merger clause does not per se establish that the integration of the agreement is total.” Duval Motors, 73 So.3d at 265 (quoting Jenkins, 913 So.2d at 53). Where, as here, the Purchase Agreement merger clause states that the Purchase Agreement “comprise[s] the entire agreement affecting this sale,” the Purchase Agreement is the operative document governing the entire “sale” or transaction. The Purchase Agreement specifically incorporates the Arbitration Agreement.

Further, the merger clause of the Installment Contract at issue here mandates that the Installment Contract controls “this contract”—the financing terms and conditions contract. Cf. HHH Motors, 152 So.3d at 748; Duval Motors, 73 So.3d at 266. And a merger clause in one document contemporaneously executed with others does not necessarily preclude actions not' contemplated by that document. Michael Anthony Co. v. Palm Springs Townhomes, 174 So.3d 428, 433 (Fla. 4th DCA 2015), review denied, No. SC15-1831, 2016 WL 375006 (Fla. Jan. 29, 2016); see also Hahamovitch v. Delray Prop. Invs., Inc., 165 So.3d 676, 678 (Fla. 4th DCA 2015) (“As to' the first claim, the merger clause would not bar a cause of action for fraud, and in this case the fraud involved the closing of the property and

not the subsequent participation interests to which.the merger clause applied”). “The test for determining arbitrability of a particular claim, under a broad arbitration provision is whether a ‘significant relationship’ exists between the claim and the agreement containing the arbitration clause, regardless of the legal label, attached to the dispute.” Murphy v. Courtesy Ford, LLC, 944 So.2d. 1131, 1133 (Fla. 3d DCA 2006) (quoting Seifert, 750 So.2d at 637-38).

Ms.. Lowe specifically challenges part of the sale price of the vehicle. Regardless of whether she financed the purchase or paid cash, the Fee she is challenging remains the same. And while Ms. Lowe claims that the Fee was incorporated into the sale price of the vehicle as listed in the Installment Contract, without the Purchase Agreement she cannot establish the necessary facts to proceed on her claims. But see HHH Motors, 152 So.3d at 748-49. The Purchase Agreement contains the essential terms of the contract for the FDUTPA claim Ms. Lowe raises. See Murphy, 944 So.2d at 1133 (“[T]he arbitration clause in the buyer’s purchase order applies to [the] claim under the FDUTPA.”); Ritter v. Grady Auto. Grp., Inc., 973 So.2d 1058, 1062 (Ala. 2007); cf. Duval Motors, 73 So.3d at 266 (“[T]he only item on Appellant’s list that is not included in the [retail installment sales contract] is the ‘cost of a vehicle maintenance plan.’ However, this item is not an essential term, as such a plan is not required to show that there was an agreement by the buyers to purchase the vehicle and an agreement by the . seller to deliver the vehicle.” (footnote omitted)). Ms. Lowe can establish both’ the explanation for the Fee and the Fee amount only through the Purchase Agreement. The Purchase Agreement contains the essential term for purposes of the claims raised.

Thus, given the terms of the Purchase Agreement and the Installment Contract and the claims raised by Ms. Lowe, the controlling document is the Purchase Agreement. The merger clause in the Installment Contract applies to financing claims not to claims which rest upon terms in the Purchase Agreement. The Purchase Agreement and its incorporation of the Arbitration Agreement control. To the extent that the First District’s decisions in HHH Motors and Duval Motors conflict with our conclusion, we certify conflict with those decisions.

Affirmed; conflict certified.

NORTHCUTT and SALARIO, JJ., Concur.

      . Neither party has otherwise contested the language of the Purchase Agreement.


author: KHOUZAM, Judge.

text:
    Alex Carlos BAEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2905
    District Court of Appeal of Florida, Second District.
    January 05, 2018
    Rehearing Denied February 20, 2018

      John M. Weinberg of John M. Weinberg, P.A., Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Darla Dooley, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Alex C. Baez appeals his conviction and sentence for first-degree murder. Because the court erred in excluding portions of jailhouse informant Rico Cielo’s testimony and we cannot say that the error was harmless, we reverse and remand for, a new trial.

Baez was found guilty of the murder of Jose Santos, also known as “Sugarbaby.” Santos disappeared on the night of November 6, 2012. At the time, he had been staying with his girlfriend, Barbara Pan-dolfo, and her family—which included her brother, Charles Pandolfo. Santos left the residence after getting into an argument with Barbara, and he never returned. Several days later, on November 11, Santos’ body was discovered buried in a nearby orange grove. He had been shot in the back of the head. The murder weapon was never found. The debris in the grove was checked for fingerprints, but none were found.

The State’s theory of the case was that Baez had committed the murder with Charles Pandolfo’s help. The defense’s theory, on the other hand, was that Charles had committed the murder alone and met up with Baez afterwards to go on a drive and smoke marijuana. Much evidence was presented that could have been interpreted to support either of these theories. A surveillance video of the entrance of the neighborhood from the night of the crime was introduced. The video showed someone—identified by Santos’ cousins as Charles Pandolfo—wearing a hoodie, holding a bag, and walking around the neighborhood shortly after 2:00 a.m. on November 7. The video then showed what appeared to be Charles’ car make a U-turn in front of the gate and after that what appeared to be Baez’s car driving toward the Pandolfo residence. Santos’ cousins were particularly concerned by the surveillance video because members of the Pandolfo family repeatedly told them that they had all been in bed by 1:00 a.m. that night.

Santos’ cousins testified that they searched the orange grove with Barbara and Charles Pandolfo, looking for the victim. They indicated that Charles’ behavior was suspicious because he did not appear to be seriously looking and he shooed them away from a specific area. According to Santos’ cousins, the Pandolfos did not approve of the relationship between Santos and Barbara. The cousins described the relationship as toxic and violent.

A neighbor of - the Pandolfos testified that he was outside smoking a cigarette between 2:00 and 3:00 a.m. on November 7 when he saw Santos and another man walking down the street. They walked between two houses toward the orange grove. The neighbor—who did not know Charles Pandolfo but was familiar with Baez from around the neighborhood—did not recognize the man walking with Santos but believed the man was wearing a-hood-ie. At about 10:30 a.m. the next morning, the neighbor walked through the orange grove on his way to work. He noticed a big patch of fresh dirt marked like a grave with a wooden cross. He thought a dog may have been buried there. The patch of dirt had not been there the day before.

Another neighbor testified that she saw Charles Pandolfo physically attack Santos in. September 2012, approximately two months before the murder. Santos had walked to the neighbor’s house from the Pandolfo residence. The Pandolfos suddenly pulled up in a car. Charles ran at Santos, attacking him and stabbing him with a screwdriver. Barbara held Santos to the ground^ and Charles was on top of him. When the neighbor tried to break up the' fight, Charles and Barbara’s mother pulled her back by the hair.

Baez’s sister testified that on the night of the murder she was hanging out with Baez at his apartment. Between 12:00 a.m. and 1:00 a.m., Charles—who was a friend of hers—began texting her that he was at a breaking point, that he felt like he was going crazy, and that he was involved in a situation he could not control. She later became aware that Baez was on the phone with Charles. Baez appeared a little bothered, but it was nothing out of the ordinary. She believed his change in demeanor may have been because he and. Charles had previously had a falling out. After they hung up, she texted Charles, telling- him not to do anything stupid. She was concerned because she knew that Charles and Santos had at one point gotten into a physical fight; however, she never suspected that Charles would commit murder. At around 2:00 a.m,, Baez drove his sister home.

Baez’s sister also testified that her brother sold marijuana with Wilfredo Diaz and Mark-; .Rodriguez. Baez would often take Charles Pandolfo on “J-rides”—a term for driving around and smoking marijuana. Similarly, Mark Rodriguez testified that he,-: Baez, and Diaz had formed a business partnership to sell marijuana. They had a meeting after Santos went missing and resolved to ‘stay away from the Pandolfos’ neighborhood because of the increased police presence. None of the partners made any kind of admission that they were involved in Santos’ disappearance—they decided to stay away from the area only because they were involved in the sale of .illegal drugs.

•' After Baez was arrested, he' called Rodriguez from jail and asked him to “clean up.” According to, Rodriguez, this was a request for him to take care of the group’s marijuana plants and business dealings. Immediately after Baez made this request, Rodriguez and Diaz went to their marijuana patch and “cleaned up.” Baez contacted Rodriguez instead of Diaz because Baez had recently had a falling out with Diaz.

Records from Charles Pandolfo’s cell phone showed a number of incoming calls from and outgoing calls to Baez’s number between approximately 1:00 a.m. and 10:00 a.m. on November 7. There were also text messages between the two numbers during-this timeframe. A note was also written in the note-taking application on Charles’ cell phone at 4:13 a.m. on November 7 stating: “I feel a whole new darkness. I can’t believe this shit. Please lord forgive me for my sins. Please lord watch over my family,. Please lord ... I’m sorry.”

The phone data showed that in the days following Santos’ disappearance, Baez; text-ed Charles several times to tell .him to lay low. On November 9, Baez texted Charles: “Bruh, they have choppers out here and all that. I’m on my way to your house.” On November 10, Baez texted Charles: “Man, stay ducked out of here like I told you. Don’t let nobody know you out in Polk .,. Nobody. Anybody hit you up, you in Tampa.” Later on November 10, Baez texted Charles: “Just talking about the video, telling them how you was coming to my house to fuck, but she canceled, so you went back home. Honestly they think it’s yo sister, bro.” The phone data also included an October 5, 2012, voice message from Baez to Charles asking whether Charles was still looking for a pistol and offering to connect him with someone who was selling one.

Texts between Baez and one of Santos’ cousins were introduced into evidence. After searching the orange grove :on November 7, Santos’ cousin texted Baez that she had a feeling that Charles did something to Sugarbaby. She said Charles was acting funny. She felt like he was lying to her face, and Charles and Barbara were switching stories. “And he would do something because he stabbed my cousin before,” she said. “If my cousin shows up missing, dead, I swear to God,'shit gone get real.” She asked Baez to tell her if he found out that Charles did something. These texts had been deleted on Baez’s phone, but investigators were able to recover them. ■

In addition to all of this evidence that could have been'interpreted to support either the State’s - or the defense’s version of events, each side had a key witness whose testimony was the crux of its ease. Both of these witnesses claimed that the killer had confessed to them. The conflicting testimony from these two witnesses was by far the strongest'evidence presented at trial. . ■ ■ -, -

The State called Wilfredo Diaz, who'had known Baez for several years. He stated that they would smoke marijuana together. One day Diaz went to Baez’s apartment to purchase marijuana, and the topic of someone named “Sugarbaby” came up. Baez told Diaz that they had gone to high school together, but Diaz did not remember him even after Baez pulled up a picture on Facebook. Baez told Diaz that he and Charles Pandolfo—who Diaz knew as an acquaintance—had killed Sugarbaby.,Baez told Diaz that Sugarbaby was in,an abusive, relationship with. Charles’ sister and had also attempted to sexually assault Baez’s girlfriend. Baez and -Charles dug a hole in . the orange grove, and Charles lured the victim there by asking for-his help disposing of a shotgun in the grove. Baez hid near the hole until they arrived. He then sneaked up behind the victim- and shot him in the head. The body fell into the hole, they covered it with dirt, and they left. The gun was- dismantled, and Baez disposed of it in lakes around the Orlando area. Diaz also testified that he helped Rodriguez destroy some marijuana plants about a Week after Baez told him about the murder.

The defense called Rico Cielo, who had formed a relationship with Charles Paridol-fo when, for about twelve days, they were placed in isolation'together at Polk County Jail due to a shared medical ailment. During this time, Charles told Cielo that he had , committed the perfect murder. Charles told Cielo that he had killed Santos, who he called “Sugarbaby,” after finding out that Santos was going to move to Kissimmee with Charles’ sister. The murder took place during the early morning hours of November 7. The day before, Charles dug a hole in the orange grove deep enough for a body. He then asked Sugarbaby for help disposing of a gun by burying it in the orange grove. They waited until everyone in the Pandolfo residence was asleep before setting off toward the orange grove. Charles had a gun in the pocket of his hoodie jacket. Sugarbaby stopped briefly to talk to a man wearing a black hoodie, but Charles kept walking toward the grove, and Sugarbaby caught up with him. As they entered the grove, Sugarbaby started complaining that sand was getting in his slides and that his feet were getting dirty. Once they arrived at the hole, Sugarbaby looked down into it and Charles shot him. Charles saw the flash from the gun, and Sugarbaby fell to the side of the hole. Charles looked down at Sugarbaby and could hear him gurgle, then take his last breath. Charles dragged the body by the feet into the hole and buried it with a shovel that he had left nearby. After he filled in the hole, he saw some dark spots of blood, so he made sure to get rid of those. He tamped down and smoothed out the dirt on top of the grave and then walked home in a different direction in case someone had seen him on the way there. Despite recounting the murder in such vivid detail, Charles did not mention anyone else being involved in the killing. He never said that there was anyone lying in wait near the hole or that anyone else shot Sugarbaby.

As soon as he got home, Charles put his clothes and the gun in separate bags and hid them in the garage. He then went inside and deleted messages off of a phone that Sugarbaby had left at the house. He went upstairs and put on a fresh set of clothes. Because he was nervous about what he had done, he decided to go get a pack of cigarettes. But as he was driving away, he realized that he left the shovel at the gravesite. So he made a U-turn and went back to retrieve the shovel. He took it home, cleaned bloodstains off of it, put it on top of a cabinet in the garage, and covered it with some bags. He decided not to go out again because he did not want to arouse the neighbors’ suspicion. But he convinced a friend to come over and bring him marijuana. The two of them went cruising around, smoking a joint to relax.

Further testimony from Cielo was excluded but proffered outside the jury’s presence. In the proffered testimony, Cielo stated that Charles told him that he was getting away with the perfect murder:

A. He just said that—he told me that they got the wrong person. He said, they’re fucking idiots, Grady Judd and his detectives are some fucking idiots, he goes. He goes, my lawyer told me all I have to do, Rico, is just keep my fucking mouth shut and I’ll get away with this.

Charles never told Cielo who the “wrong guy” was, but he did clarify as follows:

Q. When he says he got the wrong guy, was he trying to tell you—or did you accept that he was trying to tell you that there was somebody else involved and they got the wrong guy or they just got the wrong guy because they haven’t charged him?
A. They got the wrong guy because they didn’t charge him.

Baez argues on appeal that the trial court erred in excluding this proffered testimony from Cielo.

We review a trial court’s eviden-tiary rulings for an abuse of discretion, but the trial court’s discretion is limited by the rules of evidence. Masaka v. State, 4 So.3d 1274, 1279 (Fla. 2d DCA 2009). Section 90.804(2)(c), Florida Statutes (2012), creates a hearsay exception for statements against interest made by an unavailable declarant:

(c) Statement against interest.—A statement which, at the time of its mak-mg, was so far contrary to the declar-ant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

“The Florida Supreme Court has held that the test for admissibility under this section is (1) whether the declarant is unavailable, and if so (2) whether the statements are relevant, (3) whether the statements tend to inculpate the declarant and exculpate the defendant, and (4) whether the statements are corroborated.” Masaka, 4 So.3d at 1279. Under prong (4), the trial court must consider whether the circumstances surrounding the statement suggest that it is trustworthy and whether the statement is consistent with the defendant’s theory of the case as well as the other evidence presented at trial. Id. at 1282. Where proffered testimony meets these admissibility requirements, it is up to the jury to determine its weight. Id. at 1279.

Here, it is undisputed that prongs (1) and (2) were met. The court declined to admit the proffered testimony based on prongs (3) and (4) because Charles did not identify the “wrong guy.” But to satisfy prong (3), a statement does not need to amount to a full confession by the declarant and a complete exoneration of the defendant; rather, the statement must, when taken in context, be against the declarant’s interest and tend to exculpate the defendant. See id. at 1281-82. Because Baez was indeed arrested and charged for the murder, Charles’ statement that the police had, the “wrong guy” certainly tended to exculpate Baez. And the statement was sufficiently inculpatory because it was made in the context of Charles saying that he was going to get away with the perfect murder—thus implying that he was the one who committed the crime.

The proffered testimony was- also sufficiently corroborated' as required under prong (4). First, the circumstances .of Charles’ statement to Cielo were sufficiently trustworthy to go to the jury. Cielo and Charles were isolated together in jail for twelve days. During that time, they got to know each other and had ample opportunity to talk in confidence. The statement was clearly against Charles’ own interest because it exposed him to criminal liability.

Second, the statement was consistent with the defense’s theory of the case, which was that Charles had committed the murder alone and that Baez met up with him afterwards to go on a “J-ride.’’ Much of the evidence presented could have been interpreted to support this theory. For example, the surveillance video appeared to show Charles walking and driving around the neighborhood during the time-frame that Santos went missing. Though Baez’s car is also seen on the video, he could have merely been giving Charles a “J-ride.” A neighbor saw Santos walking through the neighborhood toward, the orange grove with an unknown male, who could have been Charles. This person was wearing a hoodie,- as Charles was in the surveillance video. Another neighbor had observed Charles attack Santos, stabbing him with a screwdriver, about two months prior to the murder. Several witnesses stated that Charles did not like Santos because Santos was abusive toward Charles’ sister, Barbara. Phone records revealed notes, messages, and texts suggesting that on the night of the crime, Charles was extremely distraught, felt he was in an out-of-control situation, and asked God for forgiveness for his actions. These records also showed that Charles was looking to buy a gun about a month before the murder and was hiding from the police in the days following Santos’ disappearance. This evidence could have been interpreted to support the statement that the police had the “wrong guy.” Because the proffered testimony met the admissibility requirements, it was error for the.trial court to exclude it from the jury’s consideration.

And finally, we cannot say that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict dr, alternatively stated, that there'is no reasonable possibility that the error contributed to the conviction.”). Cielo’s testimony at trial that Charles had confessed to the shooting left open the. possibility that Baez was ah accomplice, The excluded testimony went one step further by clearly suggesting that the police had “the wrong guy.” Accordingly, we cannot say beyond a reasonable doubt that the erroneous exclusion of this testimony did not contribute to the verdict, and we must reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and SLEET, JJ., Concur.


author: Per Curiam.

text:
    David FLINT, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-3026
    District Court of Appeal of Florida, First District.
    January 5, 2018
    Rehearing Denied February 15, 2018
    David Flint, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari, is denied on the merits.

Jay, Winsor, and M.K, Thomas, JJ., concur.


author: PER CURIAM.

text:
    Demetrius Carter COOPER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 12, 2018

      Demetrius Carter Cooper, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, Bonnie Jean Parrish and Douglas ■ 'Squire, Assistants Attoriiey General, Day-tona Beach, for Appellee.
   PER CURIAM.

Demetrius Carter Cooper appeals the denial of a “Motion to Correct Illegal Sentence.” In 2009, Cooper was charged with aggravated battery, a second-degree felony, and was sentenced under the Youthful Offencjer Act. See § 958.04, Fla. Stat. (2009), The Act subjects an offender to a maximum incarceration period of 6 years. See id. § 958.04(2), Cooper was sentenced to 479 days in the Department of Corrections (“DOC”), followed by 18 months of . community control and a subsequent term of 18 months of probation. After the revocation of his community control for a substantive violation, the trial court, sentenced Cooper to a minimum mandatory term of 20 years with the, DOC pursuant to section ■775.087(2)(a), Florida Statutes (the 10-20-Life statute). The judgment and sentence were affirmed on direct appeal. Cooper v. State, 56 So.3d 783 (Fla. 5th DCA 2011). Cooper’s sentence was later amended to reflect that he maintained his youthful offender status. /

.Cooper has filed several appeals related to his sentence. In this appeal, he challenges the denial of his “Motion to Correct Illegal Sentence.” In the motion, he claimed that the minimum mandatory term was illegal because it exceeded the maximum' sentence he could have received for, a second-degree felony. See § 775.082(3)(d), Fla. Stat. (providing 15-year maximum sentence for second-degree felony).

Florida Rule of Criminal Procedure 3.800(a) provides, in relevant part:

(a) Correction.
(1) Generally a court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a'direct appeal.

Rule 3.800(a) “is intended to balance the need for finality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the requirements of law.” Carter v. State, 786 So.2d 1173, 1176 (Fla. 2001). “[A] sentence is ‘illegal’ if it ‘imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.’ ” Id. at 1178 (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)).

Section 958.14, Florida Statutes, addresses a youthful offender’s violation of probation or community control:

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty

(Emphasis added). Section 958.14 dictates that violations are subject to the provisions of section 948.06, which provides, in relevant part:

If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless ■ he or she has previously been adjudicated guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.

§ 948.06(2)(b), Fla. Stat. (emphasis added).

In Christian v. State, 84 So.3d 437 (Fla. 5th DCA 2012), this Court addressed whether the State was required to file new charges to support a finding of a substantive violation of probation under the Youthful Offender Act. Concluding the State did not, we thoroughly analyzed the sentencing options under the Act. 84 So.3d at 441-45. Included in that analysis was the applicability of minimum mandatory terms to youthful offenders. Id. at 442. We explained that Florida’s minimum mandatory statutes did not apply to a sentence imposed on a youthful offender because a youthful offender sentence is “[i]n lieu of other criminal penalties authorized by law.” Id. (quoting Mendez v. State, 835 So.2d 348, 349 (Fla. 4th DCA 2003); § 958.04(2), Fla. Stat. (2001)). “[Ojnce a defendant is sentenced as a youthful offender, the sentencing features (and limitations) of the Youthful Offender Act apply to future sentencing proceedings on that same offense .... ” Id. (citing State v. Arnette, 604 So.2d 482 (Fla. 1992)). Thus, we concluded that although the 6-year maximum youthful offender sentence was inapplicable following a substantive violation of probation, classification as a youthful offender “is particularly significant in cases where the charge would carry a minimum mandatory prison term if the trial judge had not originally opted for a youthful offender sentence.” Id. at 443.

In Eustache v. State, 199 So.3d 484 (Fla. 4th DCA 2016), the Fourth District certified conflict with Christian and certified the following question as a matter of great public importance:

WHERE A DEFENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS 958.14 AND 948.06(2), FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE?

The Florida Supreme Court accepted jurisdiction, Eustache v. State, SC16-1712, 2017 WL 3484317, at *1 (Fla. Feb. 17, 2017), and recently held oral arguments.

We recognize that in Christian, the question of whether a minimum mandatory term applied to a sentence imposed on a youthful offender after revocation of probation or community control was answered in dicta. However, we adhere to the analysis in Christian, which involved a question of statutory construction at its heart. The sentencing options for youthful offenders are limited. Section 948.06 does not, on its face, alter the sentence that the court “might have originally imposed” on a youthful offender. When read together, sections 958.04, 948.06, and 958.14 permit the trial court to sentence a youthful offender who substantively violates probation or community control to a prison sentence in excess of 6 years but do not allow the court to impose a minimum mandatory term. Further, the reasoning in Christian comports with our prior holdings in Hill v. State, 692 So.2d 277 (Fla. 5th DCA 1997) (explaining youthful offender would be sentenced in excess of 6-year cap for substantive probation violation), and Kelly v. State, 739 So.2d 1164, 1165 (Fla. 5th DCA 1999) (holding 3-year minimum mandatory term could not be imposed on youthful offender).

Accordingly, we reverse the denial of Appellant’s motion and certify conflict with Eustache v. State, 199 So.3d 484 (Fla. 4th DCA 2016).

REVERSED and REMANDED. CONFLICT CERTIFIED.

COHEN, C.J., and ORFINGER, J., concur.

PALMER, J., dissents without opinion.


author: MORRIS, Judge.

text:
    Victor Taylor LOVE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-76
    District Court of Appeal of Florida, Second District.
    Opinion filed January 12, 2018

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public, Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General,' Tallahassee, and Lisa Martin, Assistant, Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Victor Love challenges his concurrent sentences of twelve years in prison imposed after a jury convicted him of carjacking and robbery. Love argues that his due process rights were violated because the State presented evidence of impermissible sentencing factors and his sentence may have been based, at least in part, on those impermissible factors." We agree and reverse for resentencing.

At the sentencing hearing, the defense noted that the State would be “bringing a number of witnesses” to show that Love “runs with people that are allegedly members of gangs.” Defense counsel objected on the basis that “it wasn’t proven at trial.” The defense then argued for a sentence close to the bottom of the guidelines. Love’s lowest permissible sentence was 39.75 months—3.31 years—in prison. The trial court then heard from Love’s father and mother.

The State argued for a sentence ,of fifteen years in prison and then introduced the testimony of several detention deputies from the jail. The first deputy testified that Love was involved in a physical altercation with other, inmates at the jail. A second deputy testified that he found papers in Love’s cell indicating that he was “affiliated with the Latin Kings, which is a known gang in the jail.” A third deputy testified that Love was involved in a battery at the jail, and defense counsel object-, ed “to this as being part of the basis for sentencing” because there had not “been any Williams Rule notice” and this was. an “unrelated crime.” The trial court overruled the objection. A fourth deputy testified that on one occasion, Love and other inmates refused to comply with the deputy’s order for the inmates to return to their cells. They only returned to their cells after the deputy “sprayed them,” and the inmates were “all gang members.” The State called a fifth law enforcement officer to testify regarding a report she had prepared about Love, his qualifications as a gang member, and his recent associates. Defense counsel objected on the basis of hearsay, and the trial court sustained the objection. The State also read a written statement from the victim in which she described the negative impact the offenses had on her life and she asked the trial court “to-impose the maximum sentences as requested by the prosecutors.”

The trial court adjudicated Love guilty. Looking at the scoresheet, the trial court stated it would not consider a pending charge of grand theft of a motor vehicle “because it’s not resolved.” The trial court then imposed the concurrent twelve-year sentences without any further comment.

On appeal, Love argues that the State presented evidence intended to prove that Love committed new' crimes and other misconduct while in jail awaiting trial on these charges and that it is reasonable to conclude that Love’s sentences resulted in part from the trial court’s consideration of these factors.

In Norvil v. State, 191 So.3d 406, 410 (Fla. 2016), the supreme court established a “bright line rale for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.” This court held that the type of error addressed in Norvil is fundamental error that may be considered - on appeal despite a lack of objection below. Fernandez v. State, 212 So.3d 494, 496 (Fla. 2d DCA 2017). In Fernandez, this court reversed for resen-tencing because “[t]he State has the burden ‘to show that the trial court did not rely on-the pending charge resulting from the subsequent arrest,’ ” id. at 497 (quoting Norvil, 191 So.3d at 409), and the trial court had explicitly stated that the sentence was at least in part based on a new offense, id.

Here, defense counsel objected to the State’s presenting evidence “about Mr. Love’s associations, that he runs with people that are allegedly members of gangs” on the basis that it was not proven at trial and again when the State offered evidence of an “unrelated crime.” To the extent that these objections were insufficient to preserve the issue for appeal, Fernandez establishes that an objection was not necessary.

Even though there is no indication that Love was arrested for or charged with the incidents at the jail, the reasoning in Norvil applies here. Indeed, prior to Norvil, this court held that incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, were impermissible sentencing factors. Mosley v. State, 198 So.3d 58, 59-60 (Fla. 2d DCA 2015). This case turns on the question of how the State meets its burden of “showing] that the' trial court did not rely on the” evidence of Love’s misconduct at the jail. Fernandez, 212 So.3d at 497 (quoting Norvil, 191 So.3d at 409). In Fernandez, the State did not meet its burden where the trial court had explicitly referred to the new offense before imposing sentence. Id. at 496. In Norvil, the State did not meet its burden because “the trial court emphasized and relied upon the subsequént arrest and its related charge ... in sentencing Norvil on the primary offense.” 191 So.3d at 409. In Mosley, this court explained that '

[t]he.State bears the burden to show from the record as a whole that the trial court did not consider impermissible factors in rendering its sentence. Nusspickel v. State, 966 So.2d 441, 444-45 (Fla. 2d DCA 2007). We must examine the record to determine whether it “may reasonably be read to suggest” that a defendant’s sentence, was the result, at least in part, of the consideration of impermissible factors. See Moorer v. State, 926 So.2d 475, 477 (Fla. 1st DCA 2006).

198 So.3d at 60 (holding that “the sentence, and record before us reflect that the court did not completely foreclose its consideration of the [subsequent misconduct]” where trial court remarked that it was primarily looking at the charged offense but that it may have also considered other factors); see also Mirutil v. State, 30 So.3d 588, 590-91 (Fla. 3d DCA 2010) (reversing for resentencing where “testimony regarding the new offenses was the central feature of the sentencing hearing” and the trial court commented that the State had shown probable cause for the new offenses).

Here, the trial court made no comment indicating that it had considered Love’s subsequent misconduct in imposing his sentences.' However, the trial court did hear from several witnesses concerning Love’s misconduct at the jail. This case is similar to Gray v. State, 964 So.2d 884 (Fla. 2d DCA 2007), which was approved by the supreme court in Norvil, 191 So.3d at 407, 410. In Gray, defense counsel objected to the trial court’s consideration of new charges but argued that if they were to be considered, the trial court should consider exhibits rather than testimony from the officers involved. 964 So.2d at 885. “The trial court agreed to review the State’s exhibits, which consisted of numerous photographs relating to the new charges.” Id. This court reversed for re-sentencing because “the State’s presentation and argument before the trial judge centered on the new charges.” Id

When the trial court imposed sentence here, the trial court did not specifically mention- the incidents of misconduct that occurred after the charged offense. However, the trial court did not announce any factors that it had considered. In looking at the record as a whole, we cannot conclude that the trial court did not consider the incidents of misconduct when imposing sentence. See id. The testimony of the detention deputies took up the majority of the sentencing hearing, and the trial court specifically stated that it would not consider the hearsay report or the pending grand theft charge, suggesting that it would consider the other evidence offered by the State. Love scored 3.31 years in prison, but the trial court sentenced him to twelve years. The record may reasonably be read to suggest that the sentence was based, at least in part, on the impermissible factors argued by the State.

Accordingly, we reverse Love’s sentences and remand for resentencing before a different judge. See Fernandez, 212 So.3d at 497; Gray, 964 So.2d at 885.

LaROSE, C.J., and SILBERMAN, J., Concur.

      . We note that the trial court would have been permitted to consider evidence that Love is- associated with a gang engaged in criminal activity. See § 921.231(g), (j), Fla. Stat. (2015); Crouse v. State, 101 So.3d 901, 903 (Fla. 4th DCA 2012). Two of the detention deputies offered general testimony that Love is associated with a gang in jail, but Love does not challenge the testimony as inadmissible evidence of gang association. Nonetheless, the State presented testimony from two other deputies that Love had engaged in a fight and had committed a battery while in jail, and we cannot say that the trial court did not considér these factors in imposing sentence.


author: SILBERMAN, Judge.

text:
    AMICA MUTUAL INSURANCE COMPANY, Appellant, v. Sylvia WILLIS, Appellee.
    Case No. 2D16-2319
    District Court of Appeal of Florida, Second District.
    Opinion filed January 17, 2018.
    Douglas M. Fraley of Molhem & Fraley, P.A., Tampa, for Appellant.
    Kristin A. Norse and Stuart C. Mark-man of Kynes, Markman & Felman, P.A., Tanipá; and Anthony T. Martino of Clark & Martino, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

In September 2014, Sylvia Willis was walking on a paved pathway in Sun City Center when she was hit' by an underin-sured golf cart. Her underinsured/unin-sured motorist (UM) insurance carrier, Arnica Mutual Insurance Company, denied benefits because the golf cart was not an “uninsured motor vehicle” under a policy exclusion. Arnica and Willis took the dispute to court, and the court entered final summary judgment in favor of Willis. The court ruled that the exclusion was invalid as against the public policy requiring UM coverage to be reciprocal to its liability coverage. We affirm.

The insurance policy provides liability coverage to an “insured” which it defines as “[y]ou or any family-member for the ownership, maintenance or use of any auto or trailer.” It contains an exclusion for vehicles “designed mainly for use off public roads” with an exception for “any non-owned golf cart.” Thus, the policy provides liability coverage for -certain damages caused by an insured’s use of a non-owned golf cart.

The policy provides corresponding UM coverage for certain damages sustained by an insured or any family member that “arise out of the ownership, maintenance or use of the uninsured motor vehicle.” It contains an exclusion for vehicles ,“[d]e-signed mainly for use off public roads while not on public roads.” However, unlike the liability portion of the policy, the exclusion does not provide an exception for non-owned golf carts. Thus, the policy excludes UM coverage for damages sustained by an insured that arise out of the use of an uninsured,, non-owned golf cart while not on public roads.

The underlying action was filed by Arni-ca as a declaratory judgment action seeking a ruling regarding coverage. Willis filed a counterclaim seeking entitlement to coverage. Arnica maintained that, the UM exclusion for vehicles “[djesigned mainly for use off public roads while not on public roads” applied, and Willis maintained that it was. invalid as inconsistent with the policy of the UM statute as set forth in section 627.727, Florida Statutes (2014). Both parties eventually filed motions for summary judgment.'

Willis asserted that the UM exclusion was inconsistent with the statutory intent that policies provide UM coverage that is reciprocal to liability coverage. Willis argued that because her policy provided liability coverage for damages she caused while operating a non-owned golf cart, the UM provision could not exclude coverage for bodily injury she sustained from an uninsured motorist operating a non-owned golf cart. In support of her argument, Willis cited this court’s decision in Sommerville v. Allstate Insurance Co., 65 So.3d 558 (Fla. 2d DCA 2011). Arnica asserted that the' case was controlled by Carguillo v. State Farm Mutual Automobile Insurance Co., 529 So.2d 276 (Fla. 1988).

• The trial court determined that Willis was entitled to UM coverage. Among other things, the court found merit in Willis’ argument that, under Sommerville, the UM policy exclusion was invalid because there was no reciprocal limitation on liability coverage. The court entered a final judgment awarding Willis $50,000 in UM benefits. - -■

We conclude that the trial court properly relied on Sommerville to determine that the UM exclusion was invalid. The issue of the validity of a UM exclusion is a question of law that this court reviews de novo. Travelers Commercial Ins. Co. v. Harrington, 154 So.3d 1106, 1108 n.2 (Fla. 2014).

Section 627.727(1) states that “[n]o motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued” unless UM coverage is also provided. Furthermore, “[t]he limits of uninsured motorist coverage shall not be less than the limits of bodily injury liability insurance purchased by the named insured.” § 627.727(2). These provisions apply and protect the insured unless the insured rejects them or selects lower limits in writing. § 627.727(1).

Section 627.727(9) sets forth several limitations that may be included in UM policy provisions., “An insurance policy may contain other general conditions affecting coverage or exclusions on coverage as long as the limitations are unambiguous and ‘consistent with the purposes of the UM statute.’” Varro v. Federated Mut. Ins. Co., 854 So.2d 726, 728-29 (Fla. 2d DCA 2003) (quoting Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla. 2002)).

UM coverage was intended to enable an insured to receive the same recovery that would have been available had the tortfeasor been covered by an automobile liability policy that complied with the Financial Responsibility Law (FRL). Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1, 3 (Fla. 1972); Mullis v. State Farm Auto. Ins. Co., 252 So.2d 229, 236 (Fla. 1971). Stated another way, UM coverage is intended to provide the reciprocal of liability coverage. Flores, 819 So.2d at 744; Mullis, 252 So.2d at 237-38.

“As a creature of statute rather than a matter of contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer- to limit or negate that protection.” Salas, 272 So.2d at 5. “It was enacted to provide relief to innocent persons who are injured through the negligence of an uninsured motorist; it is, not to. be ‘whittled away1 by exclusions and exceptions.” Mullis, 252 So.2d at 238; see also Flores, 819 So.2d at 745; Young v. Progressive Se. Ins. Co., 753 So.2d 80, 83 (Fla. 2000).

In Sommerville, this court applied these general principles to determine that a UM exclusion for persons occupying rented autos was invalid. 65 So.3d at 563. The insurance policy at issue provided both liability and UM coverage to “[ajnyone ‘occupying’ a covered ‘auto.’” Id. at 561. While the policy provided liability coverage for injuries the insured caused while operating a rented auto, it excluded UM coverage for injuries the insured sustained while occupying a rented auto. Id.

This court concluded that the UM exclusion was inconsistent with the policy of the UM statute by defining “covered autos” more narrowly than in the liability provision. Id. at 563. The court recognized that section 627.727(9) of the UM statute authorized certain limitations on- coverage but explained that section did not provide for the exclusion of particular insured vehicles. 65 So.3d at 562.

As in Sommerville, the insurance policy in this case contains a UM limitation that excludes particular vehicles. The policy provides liability coverage for. injuries Willis causes while operating a non-owned golf cart, but it excludes UM coverage for injuries she sustains from an.uninsured motorist operating a non-owned golf cart. However, section 627.727(9) does not provide for the exclusion of particular uninsured vehicles. By failing to. provide Willis UM coverage that is reciprocal .to its liability coverage, the, UM exclusion is inconsistent with the policy of the U.M statute. See also Mullis, 252 So.2d at 231, 238 (holding invalid a UM . exclusion for “bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident- of -the same household, if such vehicle is not an ‘insured automobile’ ”).

Arnica argues that the UM exclusion does not violate the intent of the UM statute because the FRL does not require liability insurance for a golf cart. See § 324.021(1), Fla. Stat. (2014) (defining “[m]otor vehicle” for purposes of the FRL). Thus, the exclusion of golf carts from UM coverage would not reduce UM coverage below that which would have been available if the tortfeasor had liability insurance that complied with the FRL. In support of this argument, Arnica cites Carguillo, 529 So.2d 276.

In Carguillo, the supreme court upheld a decision finding that coverage was precluded by a UM exclusion for vehicles “designed for use mainly off public roads except while on public roads.” 529 So.2d at 277. The Carguillo court recognized that the UM statute was intended to enable an insured to receive “at least the same amount of protection” that would have been available had the tortfeasor been covered by a policy that complied with the FRL. Id. at 278. However, the FRL did not require the tortfeasor to maintain liability insurance on the uninsured motor vehicle, which was an offroad motorcycle, because it did not meet the definition of a “motor vehicle” under the law. Id. Therefore, the UM exclusion did not reduce the UM coverage below that which would have been available under the FRL. Id

At first glance, it would appear that Carguillo controls because it addressed the validity of a UM exclusion virtually indistinguishable from that in this case. However, the Carguillo analysis involved circumstances different from the particular facts of this case. In Carguillo, there is no suggestion that the insured actually had liability coverage for vehicles that are used on public roads even though they are designed for- use mainly off public roads. Thus, Carguillo did not address the validity of a UM exclusion that reduced UM coverage below the policy’s liability coverage.

We are not convinced that an exclusion that leaves in place the minimum UM coverage required by the FRL is sufficient to satisfy the intent of the UM statute when the insured purchases liability insurance in excess of those requirements. In such cases, the UM exclusion does not protect innocent persons who are injured by uninsured motorists by providing the reciprocal of the liability coverage. As the supreme court has explained, the policy of providing for UM coverage is to protect Florida’s citizens against uninsured motorists by providing broad protections and not to create exceptions. Salas, 272 So.2d at 4.

We find support for this conclusion in case law from other states with analogous UM laws that have concluded that UM coverage must be the reciprocal of liability coverage which exceeds that required by law. See, e.g., Bartning v. State Farm Fire & Cas. Co., 162 Ariz. 344, 783 P.2d 790, 794 (1989) (In banc); Mission Ins. Co. v. Brown, 63 Cal.2d 508, 47 Cal.Rptr. 363, 407 P.2d 275, 276 (1965) (en banc); State Farm Mut. Auto. Ins. Co. v. Marquez, 130 N.M. 591, 28 P.3d 1132, 1134-35 (N.M. Ct. App. 2001).

In Bartning, the Arizona Supreme Court declared invalid a UM provision that did not extend coverage to losses occurring in Mexico because the liability provision provided such coverage. 783 P.2d at 794. The court, recognized that state law did not require liability coverage in Mexico but concluded that UM coverage must be coextensive with the actual liability coverage that was purchased. Id. at 792, 793. The court adopted the following reasoning:

Taking the minimum area requirement for issuing liability policies and imposing it as an uninsured motorist coverage area restriction ... overlooks the remedial purpose of the uninsured motorist statute and the policy that it be liberally construed to effectuate that purpose .... Efforts by insurers to frustrate this statute by writing limitations into their policies ... should not be validated.
Uninsured motorist coverage reasonably follows liability coverage. Thus, the statute sets no boundaries because at a minimum, they must coincide with the liability policy boundaries in view of the statutory language that “no” liability policy is to issue without uninsured motorist coverage.

Id. at 792 (quoting Transamerica Ins. Co. v. McKee, 27 Ariz.App. 158, 551 P.2d 1324, 1328 (1976) (Hathaway, J., specially concurring)). The court concluded with language mirroring that used by the Florida Supreme Court: “The statute clearly does not contemplate a piecemeal whittling away of liability ... territorially ... for injuries caused by uninsured motorists.” Id. at 793 (quoting Brown, 47 Cal.Rptr. 363, 407 P.2d at 277).

In this case, as in Bartning, the insured obtained liability coverage that exceeded the minimum required by law. Because UM coverage follows liability coverage, the UM policy was required to provide reciprocal coverage. A narrower interpretation would not be consistent with the supreme court’s express prohibition against a piecemeal whittling away of the UM statute. See Flores, 819 So.2d at 745; Young, 753 So.2d at 83; Mullis, 252 So.2d at 238.

We therefore conclude that the trial court properly determined that the UM exclusion for vehicles “[designed mainly for use off public roads while not on public roads” is invalid under the circumstances of this case. Thus, we affirm the final summary judgment awarding Willis UM benefits under the terms of her policy.

Affirmed.

BLACK and SALARIO, JJ., Concur.

      . Both Arnica’s complaint and Willis’ counterclaim included issues regarding personal injury protection and med pay benefits. However, those issues have been resolved and are not a subject of this appeal.

      . The trial court also concluded that the term “public road” was ambiguous and that the ambiguity should be resolved in favor of coverage. And the court ruled that the accident took place on a public road. While Arnica challenges these findings on appeal, our determination that the UM exclusion is invalid renders these issues moot.


author: LAMBERT, J.

text:
    Marcsene UTILE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2668
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 19, 2018

      Marcsene Utile, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

Marcsene Utile appeals the postconviction court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 amended motion for postconviction relief. For the following reasons, we reverse and remand with directions to grant Utile an evidentiary hearing on his claim of newly discovered evidence.

In 2006, Utile was convicted after trial of second-degree murder and attempted second-degree murder, with the jury making separate, specific findings that Utile actually possessed and discharged a firearm that caused the death of one victim and great bodily harm, to the second victim. On direct appeal, this court affirmed Utile’s convictions without opinion. Utile v. State, 992 So.2d 271 (Fla. 5th DCA 2008).

In July 2016, Utile filed the instant rule 3.850 motion for postconviction relief that he later amended. In grounds one and two, Utile alleged that he had newly discovered evidence from two separate witnesses that will result in an acquittal on retrial, and he attached to his motion their sworn statements that Utile’s brother, and not Utile, was the shooter. Neither witness testified at trial, explaining in their statements that they did not do so out of fear of retaliation by the victims’ families. In his third ground, Utile alleged that his trial counsel was ineffective for failing to object to the manslaughter by intentional act jury instruction found to be fundamentally flawed in State v. Montgomery, 39 So.3d 252 (Fla. 2010).

In summarily denying the first two grounds of Utile’s, motion, the postconviction court, who did not preside over the trial, described in its order certain eyewitness testimony provided at trial that supported the verdicts and concluded that it was unlikely that the newly discovered testimony would have outweighed this trial evidence or produced an acquittal on retrial. In denying the third ground, the court determined that because Utile was convicted of offenses that required a finding that he committed an intentional act, the manslaughter jury instruction “that required intent would only have helped [Utile]*’ as it gave the jury an option to . find him guilty of a lesser included crime “when they believed he committed an intentional act.” Thus, the court reasoned that this instruction did not prejudice Utile and, further, that any objection by his trial counsel to the standard instruction would have been meritless.

Rule 3.850(b)(1) provides that no motion shall be filed or considered pursuant to this rule if filed moré than two years after the judgment and sentence became final, unless it alleges that the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, and that the claim is made within two years of the time the new facts were or could' have been discovered with the exercise of due diligence. In addition to showing that the evidence was unknown and could not have been uncovered by due diligence, the mov-ant must establish that the evidence is of a nature that it would probably produce an acquittal on retrial. Nordelo v. State, 93 So.3d 178, 184 (Fla. 2012) (citing Jones v. State, 591 So.2d 911, 915 (Fla. 1991)).

The decision of a posteonviction court to deny an evidentiary hearing on a rule 3.850(b) motion based on newly discovered evidence is subject to de novo review because it “is ultimately based on review of written documents ..., making the trial court’s ruling a pure question of law.” Simpson v. State, 100 So.3d 1258, 1259 (Fla. 4th DCA 2012) (citing Nordelo, 93 So.3d at 184). To uphold the summary denial' of the motion, it must either be facially invalid or the claims must be conclusively refuted by the record. Id. (citing McLin v. State, 827 So.2d 948, 954 (Fla. 2002)). Moreover, “[i]n undertaking this review, the factual allegations of the motion must be accepted as true unless refuted by the record.” Id. (citing Nordelo, 93 So.3d at 184; McLin, 827 So.2d at. 956).

When adjudicating a rule 3.850 motion based on newly discovered. evidence, the postconviction court is tasked with considering “all newly discovered evidence which would be admissible” at trial and determining “whether such evidence, had it been introduced at trial, would have probably resulted in an acquittal. In reaching this conclusion, the judge will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Nordelo, 93 So.3d at 185 (quoting Jones, 591 So.2d at 916). As a result, these types of factual matters generally require an evidentiary hearing to allow the court to test the credibility of the newly discovered evidence and whether the movant acted with due diligence, “unless the affidavit is inherently incredible or obviously immaterial to the verdict and sentence.” Id. (quoting Davis v. State, 26 So.3d 519, 526 (Fla. 2009)).

Here, the witnesses’ affidavits provided evidence that would have been material to the question of' whether Utile committed these crimes. Additionally, the postconviction court did not find the affidavits to be “inherently incredible,” nor would it appear appropriate for the court to do so. See Simpson, 100 So.3d at 1260; see also Coley v. State, 74 So.3d 184, 185 (Fla. 2d DCA 2011) (finding that characterizing an exculpatory affidavit as inherently incredible merely due to contradictory trial testimony is an improper basis for a summary denial of a postconviction claim, as this requires credibility determinations that only an evidentiary hearing can resolve). Accordingly, while we understand that these affidavits produced approximately twelve years after the shooting may be suspect, we nonetheless conclude that the court erred in summarily denying grounds one and two of Utile’s amended motion without conducting an evidentiary hearing to address Utile’s due diligence and to assess the credibility of the witnesses’ statements exculpating Utile from these crimes.

As to ground three of the amended motion, Utile argued.that his trial counsel was ineffective for failing to object to the then-standard manslaughter by act jury instruction that the Florida Supreme Court later held, in Montgomery, to be fundamentally erroneous because it required the jury to find that the defendant intended to kill the victim. 39 So.3d at 258. Utile further asserted that this error was not separately cured by the jury in his case having also been instructed on manslaughter by culpable negligence because the trial evidence would not have reasonably supported a finding of manslaughter by culpable negligence. See State v. Dominique, 215 So.3d 1227, 1236-37 (Fla. 2017) (holding that erroneous instruction for manslaughter by act was not per se fundamental error requiring reversal of conviction for second-degree murder if the jury was also instructed on manslaughter by culpable negligence and the trial evidence supported this crime).

Although ground three is successive to Utile’s earlier rule 3.850 motions, see Fla. R. Crim. P. 3.850(f), the postconviction court elected to address its merits. The court ruled that Utile was not entitled to relief because by finding him guilty of second-degree murder and attempted second-degree murder, the jury necessarily determined that Utile committed intentional acts and thus, by inference, was not culpably negligent. However, because Utile was convicted of second-degree murder, which is one step removed from the lesser included offense of manslaughter, and, .as concluded by the lower court, Utile’s actions were found to be intentional and not culpably negligent, Utile would have been prejudiced by the use of the fundamentally erroneous manslaughter by act instruction that required proof of an intent to kill the victim. See Montgomery, 39 So.3d at 259.

We nevertheless affirm the .summary denial of ground three but not for the reasons provided in the order. See Foss v. State, 24 So.3d 1275, 1276-77 (Fla. 5th DCA 2009) (affirming an order denying a rule 3.850 motion under the “tipsy coachman” rule because the trial court reached the right conclusion, albeit for the wrong reasons). Utile’s reliance on Montgomery is misplaced because Montgomery was not decided by the Florida Supreme Court until 2010. In Harricharan v. State, 59 So.3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied, 92 So.3d 213 (Fla. 2012), we held that Montgomery does not apply to cases that were final before Montgomery was decided. Accord Mendoza v. State, 93 So.3d 458 (Fla. 4th DCA 2012); Rozzelle v. State, 29 So.3d 1141 (Fla. 1st DCA 2009). Utile’s convictions were final in 2008 when this court issued its mandate on his direct appeal and he pursued no further relief with the Florida Supreme Court. See Anton v. State, 976 So.2d 6, 8 (Fla. 2d DCA 2008) (holding that a- defendant’s. judgments and sentences become final upon the issuance of the appellate court’s mandate). Moreover, Utile’s trial counsel would have been unsuccessful in arguing against the use of the then-standard manslaughter by act jury instruction at his trial because the controlling precedent from our district at the time of Utile’s trial provided that an essential element of the crime of voluntary manslaughter was' an intent' to kill. See Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987), quashed in part on other grounds, 523 So.2d 152 (Fla. 1988). Furthermore, the First District Court of Appeal’s decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), that the use of the standard manslaughter by act jury instruction constituted fundamental error in a prosecution for second-degree murder, later approved by the Florida Supreme Court, was not issued until after Utile’s direct appeal was final. Thus, Utile’s trial counsel was not ineffective for failing to make an argument or objection based on a case that was not in the “pipeline” or by otherwise failing to anticipate á change in the law.

In sum, we reverse and remand with directions to hold an evidentiary hearing on grounds one and two of Utile’s motion, consistent with this opinion, and we affirm the denial of ground three.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY and EDWARDS, JJ., concur.

      . This is Utile’s third rule 3.850 motion. The first two motions were denied, and Utile’s appeals of the denial orders were affirmed. Utile v. State, 78 So.3d 554 (Fla. 5th DCA 2012); Utile v. State, 63 So.3d 782 (Fla. 5th DCA 2011).

      . Utile raised a fourth ground for relief in his motion, asking that the lower court "do a cumulative analysis on the above two grounds of newly discovered evidence.” Ground four has not been separately briefed, and thus, appellate review of this ground has not been preserved. See Ward v. State, 19 So.3d 1060, 1061 (Fla. 5th DCA 2009). Moreover, in light of our decision today on grounds one and two, ground four is immaterial and moot.


text:
    Joseph VERRIER, Appellant, v. Phoebe E. OAKS f/k/a Phoebe E. Verrier, Appellee.
    Case No. 2D17-1027
    District Court of Appeal of Florida, Second District.
    Opinion filed January 19, 2018
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    Brian J. Kruger of Luis E. Insignares, P.A., Fort Myers, for Appellee.
   PER CURIAM.

Joseph Verrier appeals a final judgment on his former wife, Phoebe Oaks’ supplemental petition to modify parenting plan. After careful review, we cannot conclude that the circuit court abused its discretion when it determined that a substantial, material, and unanticipated change' in circumstances had occurred which justified a modification. However, the restrictions on Mr. Verrier’s timesharing the circuit court imposed—essentially terminating any contact whatsoever between Mr. Verrier and his children for at least two years and possibly longer—were not supported by any evidence. See Coyne v. Coyne, 895 So.2d 469, 473 (Fla. 2d DCA 2005) (“While a trial court has broad discretion to restrict visitation when necessary to protect the welfare of the children, restrictions on visitation should be supported by some evidence in the record showing that they are necessary,”); Goodman v. Goodman, 571 So.2d 23, 23-24 (Fla. 2d DCA 1990). Rather, it appears that the circuit court simply adopted every one of the restrictions Ms. Oaks' proffered.

Accordingly, the provisions in the final judgment prohibiting all visitation or contact between Mr. Verrier and the minor children are reversed. On remand, the- circuit court shall enter a judgment that allows Mr. Verrier telephonic contact and, as conceded by Mr. Verrier during the underlying proceeding, some form of supervised timesharing with the minor children. The circuit court shall also reconsider the restrictions located at paragraphs 23, 24, 26, and 27 of the final judgment to the extent that they may interfere with a revised visitation schedule.

We note that the circuit court declined to set forth any findings regarding the factors under section 61.13(3), Florida Statutes (2016), when it rendered its judgment. While not required, we would encourage the circuit court, as we did in Straney v. Floethe, 58 So.3d 374, 375 (Fla. 2d DCA 2011), to set forth factual findings relating to any restrictions it imposes on remand and explain how such restrictions are in the children’s best interests. Cf. § 61.13(3) (“A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.”). Such additional findings are indeed helpful to all concerned “to better understand the trial court’s reasons for exercising its discretion.” Straney, 58 So.3d at 375. We affirm the final judgment in all other respects.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT, MORRIS, and LUCAS, JJ., Concur.