text:
    Donald Lamar SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1703.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2009.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Donald Lamar Smith, Appellant, appeals his judgment and sentence for grand theft in an amount of $300 or more, but less than $5,000. Appellant argues that the trial court erred in striking his post-sentence pro se motion to withdraw plea, which he filed while represented by counsel. Recently, in Sheppard v. State, 17 So.3d 275 (Fla.2009), the Florida Supreme Court adopted specific procedures for a trial court to follow when deciding whether to strike a post-sentence motion to withdraw a plea when it is filed pro se by a represented defendant. Under the principles announced in Sheppard, the record does not support the trial court’s decision to strike the motion in its entirety. As explained below, two of the grounds for plea withdrawal alleged in Appellant’s motion require further proceedings. Accordingly, we reverse and remand for reconsideration of those portions of Appellant’s motion in accordance with Sheppard.

Appellant pled nolo contendere to grand theft in an amount of $300 or more, but less than $5,000. Before accepting the plea, the trial court questioned Appellant regarding whether anyone had promised him a particular sentence. At the beginning of the plea colloquy, the trial court advised Appellant that if the plea was accepted, he could receive any legal sentence, including up to five years in prison. Appellant testified that he understood. Appellant further testified that no one had induced him to enter the plea by promising a particular sentence. Even after this assurance, the trial court emphasized to Appellant that no one could “possibly know” what sentence Appellant would receive because the sentencing judge himself did not know. Appellant again testified that he understood. Later, Appellant participated in a sentencing hearing.

After judgment and sentence were entered, Appellant filed a timely pro se motion to withdraw his plea, alleging the following:

It has come to my attention that my appointed counsel did not have my best interest at hand. When he advised me to accept a conviction to Grand Theft, [h]e sold me the idea that I would not get a prison sentence with not having prison sanction points. He advised me, it would be in my best interest.
Secondly, I never had a chance to examine! 1 my discovery exhibit and from my research F.S. 3.220 gives me the right to have examined all information the State had against me and be explained by my appointed coun[s]el. This is initial grounds to show ineffective counsel and just cause to withdraw plea agreement.
Furthermore, I asked counfsel] to explain to me [a] certain statu[t]e that seems to be relevant to my ... defense. My attorney stated to me that the statute was out dated and didn’t apply to my case. Movant, also asked attorney to show case law that could show me why it did not apply, he could not. The statu[t]e is FL St. 777.04 Attempts.... [T]he legislature] has not replaced [the] statu[t]e, nor has [The] Florida Supreme Court call[ed] into question the legality of the statu[t]e as it relates to Level 1 and Level 2 offenses. Moreover, the elements of 777.04[are] totally different in nature than the theft statu[t]e, and it described] the exact elements of what Prevention of a criminal Act, is the total opposite of what the theft statute does not.
And finally I asked counsel to argue the value of property that was taken. Without me seeing the discovery packet until the day before plea. I asked him how could just a list ... with price be sufficient without the merchandise in question. He told me it would not matter. But value would matter and how they [determine] the value.

Without holding a hearing to determine whether an adversarial relationship existed between Appellant and his attorney, the trial court struck the motion as an unauthorized pleading, declaring it null and without legal effect.

Ordinarily, any pro se motion filed by a represented party is indeed a nullity. See Logan v. State, 846 So.2d 472, 475 (Fla. 2003). Even before the Florida Supreme Court’s recent pronouncement in Sheppard, however, this rule was not without exceptions. See, e.g., Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973). In Sheppard, the Florida Supreme Court held that Florida courts must recognize an additional “limited exception” to this rule in any case where “a represented defendant files a pro se rule 3.170(i) motion based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.” 17 So.3d at 287. In any such case, the trial court must hold a limited hearing at which the defendant, defense counsel, and the State are present. Id. at 287. If the trial court then determines that an adversarial relationship exists between the defendant and defense counsel, it must appoint conflict-free counsel to represent the defendant, unless the record conclusively refutes the defendant’s allegations. Id.

The initial inquiry as to whether the motion’s allegations give rise to an adversarial relationship and the later inquiry as to whether the record conclusively refutes the motion’s allegations are both matters that may be decided on the basis of written materials alone. Accordingly, we have reviewed these matters de novo, see Hen-yard, v. State, 992 So.2d 120, 132 (Fla. 2008), to determine whether the trial court’s decision to strike Appellant’s motion may be affirmed under the tipsy coachman doctrine. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) ([I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.). In conducting this analysis, we have gleaned from Appellant’s motion four alleged grounds for withdrawal of his plea: (1) that his attorney erroneously advised him that he could expect not to receive a prison sentence if he entered a plea of nolo contendere; (2) that he was unable to review the evidence against him before entering his plea; (3) that his attorney erroneously advised him that section 777.04, Florida Statutes, was inapplicable to his defense and that there was no need to discuss it; and (4) that his attorney erroneously advised him that the value of the property at issue was irrelevant to the charge of grand theft and, accordingly, prospectively refused to raise any defense based on the value of the property.

First, we have considered whether the allegations in Appellant’s motion “give rise to an adversarial relationship” within the meaning of Sheppard, such that the trial court was required to conduct a limited hearing to determine whether an adversarial relationship actually existed. The Sheppard court listed three types of allegations as examples of those tending to give rise to an adversarial relationship: those concerning misadvice, misrepresentations, and coercion. 17 So.3d at 287. It also indicated that an adversarial relationship exists when the allegations of the motion are such that defense counsel will be unable to refute the allegations while continuing to represent his client’s interests. Id. at 286. Illustrating this principle, the Sheppard court noted that “a general allegation of a conflict of interest with the lawyer” would be insufficient to show an adversarial relationship. Id. at 286. It has also been recognized that where a defendant alleges an unfortunate circumstance leading to the entry of an uninformed plea, but does not blame the attorney for that circumstance, the allegation does not give rise to an adversarial relationship. See Wendt v. State, 19 So.3d 1024, 1027 (Fla. 3d DCA 2009) (finding no adversarial relationship where the defendant alleged only that she was “under the impression” that she would receive a shorter sentence than the one imposed, without alleging that counsel was the source of that impression).

In the instant case, three of the allegations were sufficient to give rise to an adversarial relationship, and one was not. Grounds (1), (3), and (4) of Appellant’s motion all concern misadvice. Thus, under Sheppard, there is no question that they are the types of allegations that give the initial appearance of an adversarial relationship and require a limited hearing to explore that appearance further. In contrast, ground (2) does not allege misadvice or any other circumstance giving rise to an adversarial relationship. Although Appellant used the word “ineffective” in his argument concerning ground (2), his factual allegations do not support his assertion or show any conflict with his attorney. In ground (2), Appellant alleged merely that he was unable to review the evidence against him. He did not assign blame to defense counsel for this circumstance. Thus, he failed to allege an adversarial relationship. If Appellant’s motion had alleged ground (2) alone, it would have been proper for the trial court to strike it without further consideration. However, because the allegations of grounds (1), (3), and (4) give rise to an adversarial relationship, the trial court should have held a hearing.

Our determination that grounds (1), (3), and (4) give rise to an adversarial relationship does not end our analysis. Although these allegations are sufficient to invoke the requirement to hold a limited hearing under Sheppard, we have considered whether the trial court’s failure to hold such a hearing was harmless error, due to the Sheppard court’s instruction that conflict-free counsel is not necessary when the motion’s allegations are conclusively refuted by the record. See Sheppard, 17 So.3d at 283-87.

It is well-settled that when a court determines whether an allegation is conclusively refuted by the record, it may rely on the sworn testimony the defendant has given in a plea colloquy. See Iacono v. State, 930 So.2d 829, 831 (Fla. 4th DCA 2006). Any allegations that contradict those answers should not be entertained. Id. As long as the defendant’s sworn testimony at the plea colloquy is specific enough to refute the allegations made in a post-plea motion, it may form the basis for a determination that the allegation is conclusively refuted by the record. Id.

Appellant’s allegation in ground (1), that his attorney convinced him that he would not receive a prison sentence, is conclusively refuted by the record, as shown through Appellant’s sworn testimony in the plea colloquy. However, grounds (3) and (4) are not conclusively refuted by the record before us. Therefore, we cannot hold that the trial court’s striking of the motion was harmless as to these two grounds.

In sum, Appellant’s allegation that he was unable to review the evidence against him before entering a plea is insufficient to invoke the Sheppard procedures, but the remaining allegations were sufficient to invoke those procedures. We conclude that the trial court’s striking of the motion as to Appellant’s allegation that his counsel mi-sadvised him regarding what sentence he could expect was harmless error because that ground is conclusively refuted by the record. Because the remaining allegations of misadvice appear to give rise to an adversarial relationship, and they are not conclusively refuted by the record, the trial court reversibly erred in failing to conduct at least a limited hearing to determine whether an adversarial relationship actually existed. Based on the newly adopted procedures outlined in Sheppard, the striking of Appellant’s motion as to these two grounds was at least premature. Accordingly, we reverse and remand Appellant’s judgment and sentence with instructions for the trial court to consider what we have characterized as grounds (3) and (4) of Appellant’s motion based on the procedures outlined in Sheppard v. State, 17 So.3d 275 (Fla.2009).

REVERSED and REMANDED with instructions.

WEBSTER, DAVIS, and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louis OAKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2221.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2009.
    Rehearing Denied Nov. 10, 2009.

      Louis Oakley, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Louis Oakley (defendant) appeals the final order entered by the trial court summarily denying his third motion for post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. The denial was based on the conclusion that the defendant’s motion was untimely, successive, and meritless. We affirm. The defendant is warned that the filing of any additional successive and frivolous pro se petitions or appeals attacking his convictions and sentences entered in Ninth Judicial Circuit Court Case No. 48-2003-CF-2533-0 will result in the issuance of an order to show cause why he should not be denied further access to this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

AFFIRMED.

GRIFFIN, PALMER, and ORFINGER, JJ., concur.


author: ROBERTS, J. THOMAS, J.,

text:
    Dawn Theresa WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5676.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.

      Dawn Theresa White, pro se, Appellant; Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Trisha Meggs Pate, Chief — Criminal Appeals; and Edward C. Hill, Jr., Special Counsel, Tallahassee, for Appellee.
   ROBERTS, J.

Because the trial court did not establish that the appellant waived counsel in a “knowing, intelligent, and voluntary” manner, we reverse and remand for a new restitution hearing.

The appellant was charged by information with one count of grand theft of over $100,000 from a McDonald’s restaurant. The appellant pled no contest and was sentenced to 10 years’ imprisonment to be followed by 20 years’ probation. The trial court ordered restitution but reserved jurisdiction to determine the amount.

After sentencing but before the restitution amount was determined, defense counsel filed a motion to withdraw. The trial court granted the motion. Subsequently, the appellant filed a pro se motion to modify her sentence. The appellant assumed responsibility for all restitution amounts and requested that the trial court adjust her sentence to allow her to pay her restitution.

The trial court held a hearing on the appellant’s motion to modify her sentence and to determine restitution. Although the appellant appeared pro se, the trial court did not offer assistance of counsel or conduct a Faretta inquiry. The appellant did not contest the restitution amount but argued that the trial court should consider her ability to pay as a mitigating circumstance. The trial court denied the appellant’s motion to modify her sentence and ordered restitution in the amount of $390,056.16.

The appellant argues that the trial court committed fundamental error by failing to offer assistance of counsel at the restitution hearing. This argument has merit. Once charged, a criminal defendant is entitled to decide at each crucial state of the proceedings whether assistance of counsel is required. Traylor v. State, 596 So.2d 957, 968 (Fla.1992). At the commencement of each stage, the trial court must inform the unrepresented defendant of the right to counsel and the consequences of waiver. Id. If a defendant waives the right to counsel, such waiver must be knowing, intelligent, and voluntary. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see Traylor, 596 So.2d at 968. To constitute a valid waiver, the record must affirmatively indicate that the defendant’s mental condition, age, education, and any other factor bearing on his capacity to choose self-representation was considered. Hadden v. State, 633 So.2d 486, 486-87 (Fla. 1st DCA 1994). Mere appearance before the trial court without counsel is insufficient to constitute a knowing, intelligent, and voluntary waiver. Williams v. State, 936 So.2d 663 (Fla. 4th DCA 2006) (finding that a defendant’s failure to request counsel at a subsequent hearing does not constitute a knowing waiver of his or her right to counsel).

If the right to counsel is waived, the waiver applies only to the present stage and must be renewed at each subsequent stage in the proceedings. Traylor, 596 So.2d at 968; see Tubwell v. State, 886 So.2d 433, 433 (Fla. 1st DCA 2004) (reversing for resentencing because the offer to provide appointed counsel was not renewed prior to the sentencing hearing); Moore v. State, 868 So.2d 683, 684 (Fla. 5th DCA 2004) (reversing and remanding because the trial court did not offer an indigent defendant assistance of counsel at a restitution hearing).

A restitution hearing is part of sentencing and requires the presence of counsel. Moment v. State, 645 So.2d 502, 503 (Fla. 4th DCA 1994). A defendant’s solvent status does not eliminate the need for a Faretta inquiry to ensure that the defendant choosing self-representation is capable of making an intelligent choice. Hadden, 633 So.2d at 487. The procedural rights of non-indigents “are at least coextensive with those of indigents.” Traylor, 596 So.2d at 970; see Morgano v. State, 439 So.2d 924, 925 (Fla. 2d DCA 1983) (holding that a trial court must advise a solvent defendant of the disadvantages of proceeding without representation to ensure a knowing, intelligent, and voluntary waiver of the right to counsel).

In the instant case, the appellant appeared pro se at the restitution hearing. The appellant was entitled to have counsel at the restitution hearing because restitution is considered part of sentencing and thus is a “crucial” stage in the proceedings. There is no indication from the record that the appellant waived her right to counsel. Assuming arguendo that the appellant had waived her right to counsel, the trial court was still obligated to offer assistance of counsel. See Tubwell, 886 So.2d at 433. Thus, the trial court committed fundamental error by failing to obtain a knowing, intelligent, and voluntary waiver.

Accordingly, we REVERSE and REMAND to the trial court for a new restitution hearing.

KAHN, J., concurs; THOMAS, J., concurring in result only.

THOMAS, J.,

concurring in result only.

I concur in result only because of our prior precedent in Hadden v. State, 633 So.2d 486 (Fla. 1st DCA 1994). In Hadden, this court reversed a conviction where the non-indigent defendant chose to represent himself rather than pay an attorney to represent him on what he considered to be false charges, and the trial court did not conduct a Faretta hearing. This court did not cite any controlling authority necessitating reversal in Hadden. In my view, a non-indigent defendant may choose to waive the right to counsel without imposing an obligation on the trial court to conduct a Faretta hearing in order to determine whether -the decision was made knowingly and intelligently. In fact, courts commit error when requiring a hearing.

Here, Appellant made no claim that she was indigent, nor did she ask for the assistance of counsel. She was previously represented by privately-retained counsel throughout the plea and sentencing process. After sentencing, Appellant filed a pro se motion to dismiss her counsel, and her defense attorney filed a motion to withdraw. Appellant then filed a pro se motion to modify her sentence. She did not take issue with the amount of restitution owed, but asked the court to look at her ability to pay and to modify her sentence accordingly. The trial court denied the motion, and Appellant filed a pro se notice of appeal. In my view, she was not deprived of the right to counsel.

I would not hold that a trial court commits fundamental error where a defendant appears pro se at a restitution hearing, makes no claim of indigence, and agrees to pay restitution. I disagree with the majority’s reliance on Williams and would decline to follow it here. In my view, the trial court did not fundamentally err in failing to offer assistance of counsel at Appellant’s restitution hearing.


text:
    Victor PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3340.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.
    Victor Parker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, LEWIS, and THOMAS, JJ., concur.


text:
    Lonnie RAMEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4440.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.

      Lonnie Ramey, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, LEWIS, and THOMAS, JJ., concur.


text:
    Hulon Ray PITTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4787.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.
    Hulon Ray Pitts, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, LEWIS, and THOMAS, JJ., concur.


author: ROTHENBERG, J.

text:
    Myer BERLOW, Appellant, v. Marlene BERLOW, Appellee.
    No. 3D09-690.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 2009.

      Broad and Cassel, and Beverly A. Pohl, Barbara Viota-Sawisch, Fort Lauderdale, and Mark F. Raymond, Miami, for appellant.
    Kluger, Kaplan, Silverman, Katzen & Levine and Alan Jay Kluger, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Myer Berlow (“former husband”) appeals from a non-final order finding him in contempt for failing to comply with the trial court’s order instructing him to provide Marlene Berlow (“former wife”) with an “irrevocable term life policy.” We reverse and remand for further proceedings.

The parties divorced in 1994. In June 2006, the parties entered into a post-dissolution agreement requiring the former husband to obtain, within ninety days, a $1,000,000 irrevocable term life policy, naming the former wife as the beneficiary. The former husband failed to secure the policy within the ninety-day period. Following a hearing addressing the former husband’s failure to obtain the insurance policy, Judge Fierro entered an order on September 18, 2006, granting the former husband an additional forty days to secure the policy.

In November 2006, the former wife filed a motion for contempt based on the former husband’s continued failure to furnish the life insurance policy. The matter was referred to a general magistrate, and on January 17, 2007, the general magistrate entered an Agreed Report and Recommendation, stating that the former husband was in contempt of Judge Fierro’s September 18, 2006, order “based on his willful failure to comply and his stipulated ability to pay.” Judge Fierro approved the Agreed Report and Recommendation on February 9, 2007.

In September 2007, the former husband delivered to the former wife a $1,000,000 Accidental Death and Dismemberment Policy (“AD & D Policy”), naming the former wife as the beneficiary. Following a hearing on the former wife’s renewed motion for contempt, Judge Siegel entered an order on September 12, 2008, finding that the AD & D Policy did not satisfy Judge Fierro’s September 18, 2006, order or the parties’ agreement, and granted the former husband an additional thirty days to obtain the life insurance policy.

In October 2008, the former husband executed a change of beneficiary form for an existing $500,000 life insurance policy, naming the former wife as the beneficiary. Thereafter, the former wife filed another motion for contempt, asserting that the former husband failed to fully comply with Judge Fierro’s order dated September 18, 2006. Following a hearing, Judge Siegel entered an order on February 17, 2009, finding that the former husband willfully disregarded its prior orders and ordering the former husband to pay a $5,000 fine to the Miami-Dade County Fine and Forfeiture Fund within thirty days and to furnish the required insurance policy to the former wife. The contempt order, however, does not contain a purge provision. The former husband paid the fine, subject to his appellate rights, and this non-final appeal followed.

The former husband contends, and the former wife properly agrees, that the February 17, 2009, order of contempt cannot be sustained as either a valid civil or criminal contempt order. The contempt order under review does not state whether the trial court was holding the former husband in civil or criminal contempt. “[D]etermining whether the contempt proceedings are civil or criminal is critical to the court and the parties because the nature of the contempt both determines the procedures for adjudication and sanctions that can be imposed.” Parisi v. Broward County, 769 So.2d 359, 364 (Fla.2000).

“The goal of civil contempt is remedial and for the benefit of the complainant, while the goal of criminal contempt is to vindicate the authority of the court or to otherwise punish offensive conduct.” In re Steffens, 988 So.2d 142, 144 (Fla. 5th DCA 2008); see also Parisi, 769 So.2d at 363-64; Jones v. Ryan, 967 So.2d 342, 344 (Fla. 3d DCA 2007). “In order for a sanction to qualify as one imposable for civil contempt, it must contain a purge provision that affords the contemnor the opportunity to avoid the sanction.” Lewis v. Nical of Palm Beach, Inc., 959 So.2d 745, 752 (Fla. 4th DCA 2007); see also Fla. Bar v. Forrester, 916 So.2d 647, 651 (Fla. 2005) (“[T]he hallmark of civil contempt is a purge provision allowing the contemnor to avoid the sanction imposed by complying with the court order.”); Parisi, 769 So.2d at 365 (“While there is a broad arsenal of coercive civil contempt sanctions available to the trial court, ... to be a valid civil contempt sanction the contempt order must include a purge provision.”); Jones, 967 So.2d at 344 (providing that a “civil contempt sanction must include a purge provision”). On the other hand, as “criminal contempt is ‘a crime in the ordinary sense,’ imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants.” Parisi, 769 So.2d at 364 (quoting Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968)). In addition, indirect criminal contempt may be punished only after strict compliance with the guidelines set forth in Florida Rule of Criminal Procedure 3.840, see Fiore, 9 So.3d at 1293; Jones, 967 So.2d at 344-45, and failure to strictly follow rule 3.840 “constitutes fundamental, reversible error.” Graham v. Fla. Dep’t of Children & Families, 970 So.2d 438, 441-42 (Fla. 4th DCA 2007).

In the February 17, 2009, contempt order, Judge Siegel found that the former husband willfully disregarded prior court orders requiring him to furnish the former wife with the required $1,000,000 life insurance policy. The trial court held the former husband in contempt, and ordered him to pay a $5,000 fine to the “Miami-Dade County Fine and Forfeiture Fund” and to furnish the required $1,000,000 life insurance policy to the former wife. The order does not provide that the former husband can avoid the $5,000 fíne by furnishing the life insurance policy to the former wife. As the contempt order did not contain a purge provision, the $5,000 fine is a “flat, unconditional fine,” which is “considered a criminal sanction because it does not allow the contemnor to purge the contempt through compliance.” Parisi, 769 So.2d at 365 (emphasis in original); see also In re Steffens, 988 So.2d at 144 (holding that a $1,000 fine was an indirect criminal contempt sanction because the order imposing the fine did not contain a purge provision). As the contempt order under review appears to be for indirect criminal contempt as it does not contain a purge provision, and the proceedings failed to comply with rule 3.840, we reverse the order under review, including the imposition of the $5,000 fine, and remand for further proceedings. Upon remand, the trial court may proceed with contempt if the former husband does not furnish the required insurance policy to the former wife, but the trial court must elect either civil or criminal contempt and comply with the rules regarding the selected measure.

Reversed and remanded.

      . Criminal contempt can be either direct or indirect. Direct criminal contempt results from conduct committed in the trial court's actual presence, whereas indirect criminal contempt results from conduct outside of the judge's presence. See Fiore v. Athineos, 9 So.3d 1291, 1293 (Fla. 4th DCA 2009). If the trial court intended to hold the former husband in criminal contempt, it was for indirect criminal contempt because the conduct did not occur in the trial judge’s presence.


text:
    Michael STALLWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3182.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2009.

      Michael Stallworth, pro se, Appellant.
    Bill McCollum, Attorney General, Jennifer J. Moore, and Ian M. Cotner, Assistant Attorneys General, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 seeking postconviction relief. Because we conclude that appellant’s allegations warrant an evidentiary hearing, we reverse.

Appellant alleges that the court found he violated probation by committing the new offense of battery on his wife. He alleges, further, that following the probation violation hearing, his wife recanted her testimony. He also alleges that, at the trial on the battery charge which occurred after his probation violation hearing, his wife testified that any physical contact by appellant was in self-defense; that she admitted lying to the police in her sworn statement and under oath at the probation violation hearing; and that the trial court granted his motion for a judgment of acquittal in the battery case. Appellant asserts that, because of his wife’s recantation of her testimony at the probation revocation hearing, the determination that he had violated probation should be reversed.

A defendant may be found to have violated probation even though the criminal case based on the same conduct resulted in acquittal. See Morris v. State, 727 So.2d 975, 977 (Fla. 5th DCA 1999). However, here, appellant is specifically alleging that he has newly discovered evidence in the form of a recantation that should change the outcome of his probation violation proceeding.

Recantation evidence is considered to be a type of newly discovered evidence. See Murrah v. State, 773 So.2d 622, 628 (Fla. 1st DCA 2000). Newly discovered evidence must be such that the appellant, his counsel or the trial court could not have discovered the facts at the time of trial through the exercise of due diligence, and must be such that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998). These determinations require an evidentiary hearing unless the recantation is inherently incredible or immaterial to the verdict. See Stephens v. State, 829 So.2d 945, 946 (Fla. 1st DCA 2002). In this case, the victim’s testimony found in the trial transcript for appellant’s battery charge clearly constitutes a recantation of her testimony at appellant’s probation violation hearing. Therefore, appellant is entitled to an evidentiary hearing to determine whether the recantation would probably produce a different result in the probation revocation proceeding. Accordingly, we reverse the trial court’s summary denial of appellant’s motion and remand for an evidentiary hearing.

REVERSED and REMANDED, with directions.

WEBSTER, DAVIS, and PADOVANO, JJ., concur.


text:
    Aundra AKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4805.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2009.
    Aundra Akins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, LEWIS, and THOMAS, JJ., concur.


text:
    J-II INVESTMENTS, INC., and Johnny Petrandis, II, Appellants, v. LEON COUNTY, Florida, A political subdivision of the State of Florida, Appellee.
    No. 1D08-5860.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2009.

      Thomas J. Guilday and Christina L. Scaringe, of Guilday, Tucker, Schwartz & Simpson, P.A., Tallahassee, for Appellants.
    Herbert W.A. Thiele, County Attorney, Tallahassee, for Appellee.
   PER CURIAM.

Appellants challenge a trial court order finding they had failed to purge an earlier contempt order and fining them accordingly. We affirm without comment the trial court’s finding that Appellants failed to purge their contempt. We write only to address Appellants’ argument that the trial court, by imposing the fine, converted the civil contempt proceeding into a criminal contempt proceeding without affording the proper constitutional protections. We reject this argument and affirm the trial court’s decision.

FACTS AND PROCEDURAL HISTORY

This case has a long and contentious history. It began in July 2003 when Ap-pellee Leon County filed a Verified Complaint for Temporary and Permanent In-junctive Relief against Appellants. The complaint alleged that Appellants had violated a Leon County ordinance by conducting unpermitted developmental activities on a parcel of their property. On June 28, 2004, the trial court granted Leon County’s motion for summary judgment. In the order, the trial court gave Appellants thirty days to implement a plan to remediate the damages to the subject property and sixty days to submit an application for a Standard Form Environmental Management Permit (an EMP application).

Appellants appealed the order, arguing Leon County did not have authority to enforce regulations related to agriculture, given a recent statute prohibiting counties from limiting farm operations. See J-II Invs., Inc. v. Leon County, 908 So.2d 1140 (Fla. 1st DCA 2005). We affirmed the summary judgment, finding the statute in question did not affect preexisting county ordinances. Id.

Despite being instructed by the trial court to expeditiously remediate the damages and submit an EMP application, Appellants took no such action. Accordingly, after nearly two years had passed, Leon County moved for Appellants to be found in contempt of the earlier order. The trial court agreed and, following a hearing, issued an order finding Appellants in contempt on May 31, 2006, nunc pro tunc to May 9, 2006. The order stated that Appellants could “purge themselves of contempt by submitting a complete application for [an EMP] on or before May 23, 2006.” The order went on to state:

Should the Defendants fail to purge themselves of contempt within the time prescribed herein, the Defendants shall pay a fine to Plaintiff, Leon County, Florida, in the total amount of $1,000.00 per day accruing from May 24, 2006 until such date, as the Defendants shall purge themselves of contempt in accordance herewith. [ ]
On June 3, 2006, the daily fine accrual shall increase to $5,000.00 per day, and the Defendants shall [] pay a fine to plaintiff, Leon County, Florida in the total [ ] amount of $5,000,00 per day accruing from June 3, 2006 until such date as the Defendants shall purge themselves of contempt in accordance herewith.

Appellants submitted an EMP application on May 23, 2006. However, Leon County found it incomplete and sent Appellants a letter listing ten deficiencies. A year passed. During this time, Appellants failed to submit an EMP application adequately addressing Leon County’s concerns. Consequently, in May 2007, Leon County moved to enforce the May 31, 2006, contempt order and requested that Appellants be fined for contempt.

The trial court held a hearing during which Appellants argued they had complied with the purge provision in the May 31, 2006, order and should not be fined. The trial court rejected this claim. It found Appellants’ progress in the EMP application process had been “almost de minimus” and there had been no “good faith effort” to comply with the purge provision in the earlier order. On September 19, 2007, the trial court issued an order granting Leon County’s motion to enforce the May 31, 2006, contempt order. After calculating the per diem fines which had accrued under the provisions of the May 31, 2006, order, the trial court imposed a monetary judgment against Appellants, jointly and severally, of $2,335,000.

Following this order, Appellants filed a motion for rehearing on several grounds. The trial court granted the motion on one narrow issue. In particular, it agreed with Appellants that, prior to imposing the contempt fine of $2,335,000, it should have considered their ability to pay this amount as well as whether this amount was commensurate with the damages they had caused. Accordingly, a series of hearings were held to determine Appellants’ financial status and the amount of harm caused by clearing the land.

On October 23, 2008, the trial court issued an order on the motion for rehearing. In the order, the trial court first rescinded the $2,335,000 in sanctions that it had imposed in the September 19, 2007, order. Second, it discussed the evidence concerning Appellants’ financial status and concluded they could afford to pay the cost of remediation, including Leon County’s legal fees. Third, after calculating the cost of restoring the land to its former condition and the amount of legal expenses that Leon County had incurred, the trial court ordered Appellants to pay a final judgment of $314,068.

ANALYSIS

Appellants now contend that the trial court committed reversible error by imposing a flat, unconditional fine without giving them the chance to purge their contempt. They argue this action converted the civil contempt proceeding into a criminal contempt proceeding, thereby entitling them to constitutional protections which they did not receive. This claim misconstrues what occurred below and infringes upon the trial court’s authority to enforce its contempt orders.

It is well settled that civil contempt proceedings and criminal contempt proceedings have different procedural and constitutional protections. See Parisi v. Broward County, 769 So.2d 359, 365 (Fla. 2000). In indirect criminal contempt proceedings, trial courts must strictly comply with Florida Rule of Criminal Procedure 3.840. See Wendel v. Wendel, 958 So.2d 1039, 1040 (Fla. 1st DCA 2007). Rule 3.840(a) requires the trial court to issue an Order to Show Cause informing the defendant that he/she is subject to criminal contempt and stating the essential facts constituting the contempt. Id. This rule also requires that the defendant be afforded a reasonable amount of time to prepare a defense. Id. Further, criminal contempt proceedings carry all due process protections which would apply in a criminal trial, including the right to representation, the right against self incrimination, and the requirement that guilt be proven beyond a reasonable doubt. See Parisi, 769 So.2d at 364; Jones v. Ryan, 967 So.2d 342, 344 (Fla. 3d DCA 2007).

By contrast, civil contempt sanctions are viewed as nonpunitive and avoidable, and do not merit such extensive procedural protections. See Parisi, 769 So.2d at 365; Channel Components, Inc. v. America II Elecs., Inc., 915 So.2d 1278, 1283 (Fla. 2d DCA 2005). Indeed, civil contempt may be imposed with only notice and an opportunity to be heard. See Parisi, 769 So.2d at 365. However, “[w]hile civil contempt sanctions do not require the same procedural and constitutional protections as criminal contempt, [ ] to be a valid civil contempt sanction the contempt order must include a purge provision.” Id.; Palmer v. Palmer, 530 So.2d 508 (Fla. 3d DCA 1988). “Without this critical protection, there is a danger that the contempt sanction could be transformed from a civil to a criminal contempt sanction without any other underlying procedural protections attendant to criminal proceedings.” Parisi, 769 So.2d at 365.

If a contempt order simply imposes a flat and unconditional fíne, it is considered a criminal sanction because the defendant is not given the opportunity to purge through compliance. See Parisi 769 So.2d at 365-66; In re Steffens, 988 So.2d 142, 144 (Fla. 5th DCA 2008); Levey v. D'Angelo, 819 So.2d 864, 868 (Fla. 4th DCA 2002). However, if the order imposes a fine, yet provides a way for the contemnor to reduce the amount imposed or avoid the fine altogether, it is considered a civil contempt fine. One example of a valid civil contempt fíne is a per diem amount imposed for each day the contemnor refuses to comply with the trial court’s order, provided that the requirement to pay any additional fines will be purged once the contemnor complies with the underlying order. See Parisi, 769 So.2d at 365.

Here, Appellants claim that the $314,068 imposed in the October 23, 2008, order was a flat, unconditional fine which transformed the civil contempt proceeding into a criminal contempt proceeding without the accompanying constitutional protections. Appellants are mistaken. The $314,068 fine mitigated the original contempt fine of $2,335,000 which the trial court had imposed in its September 19, 2007, order. To calculate the $2,335,000, the trial court had consulted the original order of contempt, which was issued on May 31, 2006. This original contempt order stated that Appellants would be fined on a per diem basis if they did not purge their contempt by submitting a completed EMP application on or before May 23, 2006. Therefore, the $314,068 fine was simply the result of Appellants’ failure to purge the earlier finding of contempt.

Considering the foregoing, it cannot be said that a flat, unconditional fine was imposed. According to the May 31, 2006, contempt order, Appellants had the opportunity to purge their contempt — and avoid future fines altogether — simply by submitting a completed EMP application within the given period. The fines imposed (i.e., the original fine of $2,335,000 and the mitigated fine of $314,068) were simply the result of Appellants’ failure to purge their contempt. Since Appellants were given the opportunity to avoid the fine, the matter remained a civil contempt proceeding, and Appellants received all constitutional protections that were required.

CONCLUSION

We uphold the trial court’s finding that Appellants failed to purge their contempt as well as its imposition of a $314,068 fine. We emphasize that trial courts have the authority to exercise their contempt power when, as here, a party has been given ample time and opportunity to comply with a court order yet fails to do so. For the foregoing reasons, the trial court’s order is

AFFIRMED.

VAN NORTWICK and THOMAS, JJ., and HANKINSON, JAMES C., Associate Judge, concur.

      . In particular, the complaint alleged Appellants had cleared approximately sixty acres of forested land encroaching upon a floodplain and destroying animal habitats in the process.

      . The May 23, 2006, deadline had been originally imposed in a hearing held on May 9, 2006.

      . In other words, the trial court’s order on the motion for rehearing reduced the fine against Appellants from $2,335,000 to $314,068.


author: SALTER, J.

text:
    Leonardo RAMOS, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Appellee.
    No. 3D08-1694.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Mark A. Dienstag, Miami, for appellant.
    Juliet M. Roulhac, Miami, for appellee.
    Before RAMIREZ, C.J., and LAGOA and SALTER, JJ.
   SALTER, J.

Leonardo Ramos appeals a final summary judgment in favor of Florida Power & Light (FPL) regarding his second amended complaint for gross negligence. Ramos alleged that FPL was grossly negligent when it terminated electrical service to his farm and family residence, and that the wrongful power cutoff resulted in substantial losses to his ornamental plant crops and livestock. FPL maintained that it had already prevailed on a critical element of Ramos’ claim — the question of whether Ramos engaged in meter tampering and electric current diversion — in a prior administrative proceeding before the Florida Public Service Commission (PSC), with the result that Ramos was precluded as a matter of law from establishing his claim in the later circuit court case. The circuit court agreed with that analysis and entered the final summary judgment in favor of FPL.

We reverse, finding that the PSC’s limited authority to conduct administrative fact-finding regarding billing disputes and rates for electric power does not preclude a trial court’s adjudication of a gross negligence claim for compensatory damages based on the totality of FPL’s conduct regarding its customer. In particular, the PSC’s administrative determination that FPL’s written report provided “sufficient evidence of an unauthorized meter and meter tampering at Mr. Ramos’ address” — a conclusion based on nothing but hearsay presented to the PSC, and vigorously disputed by Ramos (then a self-represented party with no legal training)— does not bar the adjudication of that question in a later court proceeding.

The Farm and the Meters

During the period 1989-97, Ramos used electrical power supplied by FPL to operate his family farm. FPL alleges, but Ramos has denied, that from 1993 to 1997, FPL removed six different unauthorized meters from Ramos’ farm. When a billing and meter-related dispute arose in 1997, FPL could not produce (a) those allegedly-unauthorized meters or (b) any prior written notices to Ramos that his meters were unauthorized or had been tampered with.

In April 1997, an FPL meter reader discovered what he believed to be an unauthorized meter number at Ramos’ property. He also noted that the outer seal on the meter was missing, but he did not determine whether the inner seal was missing. FPL’s “revenue protection department” investigated the matter and concluded that the meter had been switched several times over the last five years.

A meter specialist then visited the property in May 2007 to remove the recently-discovered and allegedly-unauthorized meter for further testing. During this visit, however, yet another meter number was found at the property, and this one was reportedly missing the outer and inner seals. This meter was tested at FPL’s meter test center and was allegedly a “foreign” meter with evidence of meter tampering. FPL then reviewed Ramos’ billing history and allegedly found significantly less usage during the period of the allegedly-unauthorized meters. Thereafter, and applying the methodology specified in its official tariff, FPL billed Ramos approximately $17,800 for allegedly-unauthorized use of electricity over the preceding five and one-half years.

Ramos received a back bill for this amount in July 1997. FPL and Ramos made various offers and counter-offers on settling the alleged backcharges but were unable to reach agreement. In November 1997, FPL disconnected electrical service to Ramos’ property. The following month, Ramos filed a complaint with the PSC alleging unfair baekbilling for meter tampering and disputing FPL’s allegations that Ramos had used an unauthorized meter.

Although the PSC received FPL’s written report regarding those issues, it did not conduct an evidentiary hearing. The PSC determined, however, that “because of the particular circumstances of this case, we believe that the fair and reasonable amount of backbilling is $1,386.82.” The PSC’s order also stated “FPL has indicated that it agrees with this amount.”

The order detailed FPL’s difficulties in substantiating its allegations of multiple unauthorized meters and tampering:

Between September 13, 1993 and January 9, 1997 six different meters have been identified at this address. At no time during this period did FPL initiate a current diversion investigation. When Commission staff asked FPL to explain why it had not acted when each of the six different meters were discovered, it responded that the company was going through a period of reorganization and the policy in place at the time called for the meter reader to input whatever meter was found at an address as the new meter of record if there were no obvious signs of meter tampering. The Company further stated that after 1995 their procedures were modified to minimize this type of problem. Even though FPL indicated that their procedures changed after 1995, the same problem occurred on January 9, 1997, when the sixth foreign meter was found and FPL again entered it as a new meter set and meter of record. We believe FPL failed to provide adequate proof of meter tampering prior to January 9, 1997. FPL had ample opportunity to notice any alleged meter tampering when six new meters were recorded on the customer’s account in a four year time period. We find it problematic that so many unauthorized meter changes did not trigger an investigation on FPL’s part. However, FPL did not test, nor was it able to locate, any of the six meters in question.

In 2000, Ramos commenced a circuit court lawsuit against FPL alleging that the termination of power to his home and farm was grossly negligent, and that he suffered a foreclosure of the property, loss of crops, and other compensatory damages as a result. After pretrial discovery and two amendments to the complaint, FPL’s motion for final summary judgment was heard and granted.

The PSC, the Rules, and the Tariff

Section 366.04, Florida Statutes (1997), grants to the PSC jurisdiction “to regulate and supervise each public utility with respect to its rates and service....” Section 366.05(1) grants to the PSC “power to prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, and service rules and regulations to be observed by each public utility,” and further authorizes the PSC to promulgate rules to implement and enforce these powers. The PSC has promulgated such rules, including a set of rules in Part VI of Chapter 25-6, Florida Administrative Code, “Customer Relations,” that are pertinent to the billing dispute between Ramos and FPL. In addition, FPL and other public utilities promulgate a set of rates, rules, and regulations collectively referred to as a “tariff,” subject to review and approval by the PSC. The FPL Tariff contains several provisions addressing “unauthorized re-metering,” meter tampering, billing disputes, and discontinuance of service.

Exclusive PSC Jurisdiction and the “Nature of the Relief Sought”

Citing Storey v. Mayo, 217 So.2d 304 (Fla.1968), and Richter v. Florida Power Corp., 366 So.2d 798 (Fla. 2d DCA 1979), FPL argues that the PSC’s regulations and fact-finding powers regarding its dispute with Ramos are exclusive, and that PSC’s resolution of the “consumer dispute” with Ramos in 1998 were thus preclusive, binding, and final. This Court has followed that reasoning when a consumer’s circuit court lawsuit required the court to determine whether the consumer “was properly charged for its electricity consumption,” holding that such a determination is exclusively within the jurisdiction of the PSC. Fla. Power & Light Co. v. Albert Litter Studios, Inc., 896 So.2d 891, 894 (Fla. 3d DCA2005).

In Albert Litter Studios, we held that “[i]n order to resolve the jurisdictional issue, we must first look to the nature of the relief sought by the plaintiff because it is the nature of the relief sought, not the language of the complaint, that ultimately determines which tribunal has jurisdiction over the claim.” Id., 896 So.2d at 893. The nature of the relief sought by Ramos is those consequential damages that allegedly flowed from a grossly negligent claim of meter tampering and electrical cutoff, not merely a dispute about the charges for electricity. Although FPL maintains that the “customer complaints” sections of the Florida Administrative Code and the FPL Tariff provided Ramos with “available and adequate remedies,” we disagree.

Chapter 366, the Florida Administrative Code, and the FPL Tariff do not specify that the PSC has exclusive jurisdiction to conduct evidentiary hearings or other tests on meters to find, as a matter of fact, that a meter has been improperly replaced, tampered with, or altered for the purpose of .stealing electrical power. Nor ' does that regulatory scheme authorize the PSC to award compensatory damages (as opposed to a credit for an unfounded charge on a monthly bill) if the utility’s claim is disproven and FPL’s cutoff to the property is thus shown to have been improper.

This case involves serious allegations, substantial resulting losses, and conceded error by FPL regarding the care, custody, and testing of the allegedly-tampered meters. FPL’s computation of backcharges was reduced by over 92% by the PSC, but that is not the critical factual issue in Ramos’ second amended complaint. The controlling questions are whether FPL’s claims of meter tampering can be proven by competent substantial evidence — not by an unauthenticated, hearsay report — and whether FPL’s disconnection of electrical power to the Ramos’ residence and farm was based on facts rather than allegations.

Regarding those factual determinations outside the sphere of exclusive PSC jurisdiction, Ramos had no obligation to seek judicial review or exhaust all remedies relating to the PSC’s October 1998 order: “[T]he doctrine of exhaustion of administrative remedies is not applicable in this situation; in any event, it is clear that pursuit of an administrative remedy by [plaintiff] would be to no avail, since the PSC does not have any authority to award money damages.... ” S. Bell Tel. & Tel. Co. v. Mobile Am. Corp., Inc., 291 So.2d 199, 201 (Fla.1974).

The Economic Loss Rule

FPL also argues that the economic loss rule bars Ramos’ claims, citing such cases as Florida Power & Light Co. v. Westinghouse Electric Corp., 510 So.2d 899 (Fla.1987), and Casa Clara Condominium Ass’n, Inc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla.1993). In this case, however, Ramos’ claims specifically involve alleged acts and property damages that are “independent of any contractual breach.” Am. Express Travel Related Servs. Co., Inc. v. Symbiont Software Group, Inc., 837 So.2d 434, 435 (Fla. 3d DCA 2002), review denied, 851 So.2d 729 (Fla.2003). The harm claimed by Ramos is “above and beyond disappointed expectations” or the “benefit of the bargain” based on the FPL Tariff. Casa Clara Condo. Ass’n, 620 So.2d at 1246. Such tort claims are a recognized exception to the economic loss rule. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 537 (Fla.2004).

Conclusion

Based on the second amended complaint and the pretrial discovery submitted in opposition to FPL’s motion for summary judgment, this case is not a routine consumer billing dispute falling fairly within the FPL Tariff and subject to the exclusive jurisdiction of the PSC. Because genuine issues of material fact exist and FPL is not entitled to judgment as a matter of law, the final summary judgment is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

      . In Re: Complaint by Ramos, 98 FPSC 10:464 (1998) (emphasis supplied).

      . Such allegations, investigations, and conclusions by FPL may also culminate in criminal charges; see section 812.14, Florida Statutes (2009).


text:
    Robert WHITNEY, D.C. d/b/a 127th Street Intracoastal Chiropractic Center, Appellant, v. A AVENTURA CHIROPRACTIC CARE CENTER, INC., and Pembroke Pines Chiropractic Care Center, Inc., Appellees.
    No. 3D08-2546.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    W.J. Barnes, Boca Raton, for appellant.

      Cohen & Owens, and Scott D. Owens, Hollywood, for appellees.
    Before RAMIREZ, C.J., and SHEPHERD and SALTER, JJ.
   SALTER, J.

This is an appeal from an order denying a motion filed in 2007 to set aside a default final judgment entered and recorded in 1993. We affirm because the motion and affidavit fail to assert excusable neglect, due diligence, or the existence of a meritorious defense. Lazcar Int’l Inc. v. Caraballo, 957 So.2d 1191 (Fla. 3d DCA 2007).

The appellant argued below and here that he never received various pleadings and the default final judgment in 1992 and 1993. The circuit court file on the case was destroyed in 1998, however, and the appellant has not been able to obtain and file copies of the pleadings to support his allegations. “The appellant has the burden to submit to this court a record adequate to support the appeal.” Chisholm v. Chisholm, 538 So.2d 961, 962 (Fla. 3d DCA 1989) (citations omitted).

Moreover, the final judgment was recorded among the public records in 1993. The appellant has advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990. And although an amended complaint apparently was filed after appellant’s counsel withdrew, there was no obligation to serve it by process upon appellant if that pleading did not contain “new or additional claims.” See Fla. R. Civ. P. 1.080(a); Scheb v. Shalam Imports, Inc., 656 So.2d 956 (Fla. 2d DCA 1995).

The cautionary message to parties who have been sued and then elect to proceed without legal representation is this: keep a watchful eye on the case, whether by inspecting the court file or checking the on-line docket. The fact that a self-represented person does not receive further mailings regarding the case does not itself protect her or him from an adverse judgment, because certificates of service by counsel are presumptively valid. Ignoring a lawsuit after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile.

The order denying the motion to vacate is affirmed.

      . The electronic docket for the case contains an entry indicating that an amended complaint was authorized in early 1993.


text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, on behalf of the BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT FUND, Appellant, v. Everett G. WEST, et al., Appellees.
    No. 3D08-2819.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Rehearing Denied Dec. 2, 2009.

      Bill McCollum, Attorney General, and J.A. Spejenkowski, Assistant Attorney General, for appellant.
    James S. Mattson, Key Largo and Andrew M. Tobin, Tavernier, for appellees.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

The State of Florida, Department of Environmental Protection, on behalf of the Board of Trustees of the Internal Improvement Fund, (“the State”) appeals final judgments entered on jury verdicts awarding compensation to property owners in condemnation proceedings. We affirm.

This case involved the condemnation of two parcels of land in North Key Largo, Florida (“Parcels 1 and 2”). Between 1950 and 1977, Everett G. West, R. Furman Richardson, and others (collectively “the landowners”) bought Parcels 1 and 2. After buying these parcels, the landowners did not apply for permits or other use authorization for their properties.

Beginning in 1982, the State showed an intent to acquire Parcels 1 and 2, among other areas, for habitat conservation. The State did not file eminent domain actions, however, until March, 1995. In response, the landowners filed affirmative defenses and inverse condemnation counterclaims, litigating the issue of just compensation.

The parties stipulated to de jure taking dates for the parcels in 2004. The issue of proper compensation for the takings went to a jury trial. The trial court instructed the jury to determine the fair market value of each parcel as of the 2004 de jure taking dates according to the highest and best uses the parcels would have had in 1982. The jury returned verdicts valuing Parcel 1 at $5,060,000, and Parcel 2 at $480,000. The State appeals the final judgments awarding these amounts.

On appeal, the State, among other grounds, contends the trial court’s valuation rulings authorized inverse condemnation claims outside the four-year time period for filing such actions. The landowners, on the other hand, assert that the trial court properly instructed the jury on the applicable valuation principles. We agree with the landowners.

A taking occurs when governmental regulation substantially denies the landowner of all economically beneficial or productive use of his or her property. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54 (Fla.1994). Generally, the governmental entity institutes eminent domain proceedings to effectuate a formal taking.

Where no formal exercise of eminent domain power is undertaken, a property owner may file an inverse condemnation claim to recover the value of property that has been de facto taken. See Collins v. Monroe County, 999 So.2d 709 (Fla. 3d DCA 2008); City of Pompano Beach v. Yardarm Restaurant, Inc., 641 So.2d 1377 (Fla. 4th DCA 1994). In such cases, the inverse condemnation claim must be filed within four years of the taking date. § 95.11(3)(p), Fla. Stat (2008); New Testament Baptist Church, Inc. of Miami v. State, Dep’t of Transp., 993 So.2d 112, 113 (Fla. 4th DCA 2008).

However, a property owners compensation must await the actual taking of his or her property. See Dept, of Transp. v. Gefen, 636 So.2d 1345, 1346 (Fla.1994). Additionally, the compensation is based on the value of the property without the effects of “the debilitating threat of condemnation.” State Road Dept, of Fla. v. Chicone, 158 So.2d 753, 758 (Fla.1963); see also Dade County v. Still, 377 So.2d 689 (Fla.1979); Brown v. Dept, of Transp., 884 So.2d 116 (Fla. 2d DCA 2004); Savage v. Palm Beach County, 912 So.2d 48 (Fla. 4th DCA 2005). This is what is commonly referred to as “condemnation blight valuation.”

Here, contrary to the States position, the trial court correctly determined that this was not an inverse condemnation claim because the State filed eminent domain proceedings. The actual taking did not occur until 2004. However, in compensating the landowners the jury had to consider the effect of the States pre-condem-nation action on the property value. Thus, applying “condemnation blight” principles, the trial court correctly instructed the jury to consider the properties highest and best uses in 1982.

Accordingly, we affirm the final judgments entered below.

Affirmed.


text:
    FORD MOTOR COMPANY, Petitioner, v. Joan HALL-EDWARDS, Individually and as Personal Representative of the Estate of Lance Crossman Hall, Respondents.
    No. 3D08-3220.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.

      Carlton Fields, and Wendy F. Lumish and Cristina Alonso, Miami, for petitioner.
    Denney & Barrett, and Richard L. Den-ney, Oklahoma; Gustavo Gutierrez; Easter & Lynch, and Bruce Easter, Ocala; Alters, Boldt, Brown, Rash & Culmo, and Eimberly L. Boldt, Boca Raton, for respondents.
    Before COPE, LAGOA, and SALTER, JJ.
   SALTER, J.

Ford Motor Company seeks a writ of certiorari quashing an interlocutory circuit court “Order Determining Public Hazard Pursuant to Florida Statute § 69.081.” The respondent, plaintiff below, sued Ford following the death of her son in 1997. Her son was a passenger in a 1996 Ford Explorer in a “rollover” traffic accident.

We grant the petition and quash the order because (1) the trial court departed from the essential requirements of law and (2) the order causes irreparable harm to Ford that should not await determination via a later and plenary appeal.

The Case and Motion

The respondent’s lawsuit was filed in 1999. In 2007, this Court reversed a jury verdict and judgment against Ford because the trial court permitted, over objection, “testimony referencing other rollover accidents involving the Ford Explorer without requiring a showing of substantial similarity between those accidents and Hall’s.” Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 856 (Fla. Bd DCA 2007), review denied, 984 So.2d 1250 (Fla.2008). In three later cases here, we have considered (and in two of them, quashed) orders after remand, noting that “[t]his case appears to have gone astray after we reversed and remanded.” Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1152 (Fla. 3d DCA 2008).

This latest petition relates to a motion, hearing, and order after the case was remanded for a new trial. The respondent filed a “Notice of Public Hazard Pursuant to § 69.081 and Motion to Prevent the Court from Entering Order Concealing Public Hazard” and noticed the motion for a one-hour evidentiary hearing. The motion asked the trial court to make a finding that “the Ford Explorer” is a “public hazard” under section 69.081, Florida Statutes (2008), and to “enter no order concealing the ‘public hazard’ from the public and prevent Ford Motor Company from concealing any information related to the Ford Explorer, including but not limited to trade secrets and other protected, confidential, and/or privileged documents.” (Footnote added).

At the time the motion was filed, the trial court did not have pending before it a request by Ford to limit disclosure of case-related documents. The respondent also acknowledges that she is bound by the terms of a confidentiality order entered in federal multi-district litigation (MDL) involving Ford Explorer rollover lawsuits and pending in the United States District Court for the Southern District of Indiana. The record does not disclose any motion by the respondent in the MDL case to vary the terms of that order based on the allegedly-applieable Florida “public hazard” law.

Ford repeatedly asked the respondent to disclose any witnesses, documents, or other evidence to be relied upon by the respondent at the hearing on her motion. Two days before the hearing, the respondent provided Ford’s counsel a listing, allegedly of 223 other Ford Explorer lawsuits, a graph showing deaths nationwide and in other countries (not previously produced), deposition excerpts from other cases (including the federal MDL case), and the affidavit of a statistician who had not previously been listed as a witness. Ford moved to strike the respondent’s motion and notice on a number of grounds (including the alleged unconstitutionality of section 69.081).

At the hearing, the trial court declined to hear Ford’s witnesses. A review of the transcript of the hearing discloses that it was not an evidentiary hearing in any traditional sense of that term, but rather a lengthy colloquy between the respondent’s counsel and the trial court, a limited amount of questioning directed by the court to Ford’s counsel, and then a review by the court of documents that were not authenticated or introduced into evidence. Nonetheless, the trial court found that it had previously heard sufficient evidence of the dangerousness of the Ford Explorer (presumably in the hearing on the respondent’s motion to amend the complaint to add a claim for punitive damages and regarding the admissibility of “other similar incident” evidence), and it therefore granted the respondent’s motion. The trial court’s order on the notice and motion found “Ford Explorer Models UN 46, UN 105, and UN 150” to be “public hazards” under section 69.081, which “have caused and are likely to cause additional injury to the motoring public.” The order also found that the statute was constitutional. Ford’s petition to this Court followed.

The Statute

Section 69.081, captioned “Sunshine in litigation; concealment of public hazards prohibited,” prohibits a court from entering an order or judgment concealing “a public hazard or any information concerning a public hazard” or “any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.” A party seeking confidentiality for such information, including trade secrets, must file a motion and show good cause for the request, at which point the court “shall” examine the disputed information or materials in camera.

The statute does not invite notices or motions simply to determine that a particular “device, instrument, person, procedure, product, or condition [of a device, etc.]” is a public hazard. As the caption and contents of the provision make clear, and as it pertains to this record, the statute governs attempts by a litigant to avoid disclosure of specific information or documents to the public. See Goodyear Tire & Rubber Co. v. Schalmo, 987 So.2d 142 (Fla. 2d DCA 2008).

The statute also does not address an important aspect of the record here, in which a federal court with jurisdiction over the MDL case has entered a confidentiality order by which the respondent admits she is bound. The respondent and the trial court apparently believed that the MDL court need not be advised of, and need not grant consent to, the respondent’s attempt to alter the federal confidentiality order. Nor does the statute suggest what happens when the allegedly-confidential documents sought to be disclosed on “public hazard” grounds are subject to the attorney-client privilege or work product doctrine. The respondent’s motion expressly asked the state trial court to apply the statute so as to prevent Ford from concealing information including “trade secrets and other protected, confidential, and/or alleged privileged documents.” These questions might have been considered if the respondent made such a motion with respect to particular categories of documents rather than in a vacuum devoid of such details.

The Second District has held in a similar case that the parties must be afforded an opportunity to present evidence when the statute is sought to be invoked in this fashion. E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226 (Fla. 2d DCA 1995).

Analysis

First, Florida’s Sunshine in Litigation Act, § 69.081, Fla. Stat. (2008), is applicable only if the trial court has entered a confidentiality order, or if there is a pending motion by the defending party for a confidentiality order. See id. § 69.081(3); Goodyear Tire & Rubber Co. v. Jones, 929 So.2d 1081, 1084 (Fla. 3d DCA 2005). The trial court has never entered a confidentiality order in this case, nor is there a pending motion for a confidentiality order filed by Ford. The respondent’s motion under section 69.081 should have been summarily denied.

Second, the respondent acknowledges that she is bound by a confidentiality order entered by the United States District Court for the Southern District of Indiana in MDL litigation. Florida’s Sunshine in Litigation Act does not override the terms of the federal court order. If the respondent wishes to have relief from the federal order, she must apply to the federal district court.

Third, the respondent failed to provide Ford with adequate notice of (a) those documents the respondent sought to have examined in camera pursuant to the statute and (b) those witnesses and documents that would be relied upon by the respondent at the noticed evidentiary hearing to demonstrate that the Ford Explorer is a public hazard. The trial court did not conduct a formal, trial-like evidentiary hearing at which each side was permitted to offer evidence, make objections, and create a traditional evidentiary record. The respondent did not prepare, file, or serve a witness and exhibit list or a designation of specific testimony sought to be introduced. Testimony, deposition excerpts, and documents were not offered, admitted, or catalogued into the record of the hearing. The hearing transcript plainly demonstrates that Ford was not afforded the basic elements of reasonable notice of the evidence to be offered, a chance in court to object to the admissibility of deposition testimony and exhibits, and then a chance to present its own case in opposition. Lambert, 654 So.2d at 228.

Fourth, the respondent’s motion and the order are overbroad, covering three model types and eleven model years (1990-2000), though the vehicle involved in the lawsuit was only one of the model types and model year 1996. These infirmities are, both individually and collectively, a departure from the essential requirements of law.

We also find irreparable injury that should not await review until a plenary appeal. The label “public hazard” is not to be affixed to an allegedly-dangerous product “like you would buckle a collar on a bird dog or paste a tag on an express package that is being forwarded to a friend.” Attention to a proper evidentiary hearing and due process are plainly required. Such a label has significant and far-reaching consequences in a day when court orders can make it around the world before the sun sets on the day they are filed. The respondent’s counsel, who include lawyers and firms involved in many other lawsuits against Ford, wasted no time in disseminating the order. The statute was intended to preclude the concealment of specific information about a “public hazard,” not simply to provide a tactical pejorative for counsel to use in other cases.

Finally, although Ford has raised and preserved substantial questions regarding the constitutionality of the statute, both on its face and as applied, we decline to address those issues because of the well-settled principle of judicial restraint applicable to constitutional claims. Here, as in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612, 640 (Fla.2003), “resolution of those claims is unnecessary for the disposition of this case.”

Conclusion

For all these reasons, we grant the petition and quash the circuit court “Order Determining Public Hazard Pursuant to Florida Statute § 69.081” dated November 19, 2008.

Petition granted.

      . Ford Motor Co. v. Flall-Edwards, 990 So.2d 1073 (Fla. 3d DCA 2008) (denying a petition for prohibition following the trial court’s denial of a motion to disqualify); HaLl-Edwards, 997 So.2d 1148 (granting a petition for prohibition regarding privileged documents and work product); Ford Motor Co. v. Hall-Edwards, 5 So.3d 786 (Fla. 3d DCA 2009) (granting a petition for certiorari, without prejudice, regarding plaintiffs amendment to add a claim for punitive damages). The quotation appears in the second of these cited cases, 997 So.2d at 1152.

      . Subsection (2) of the statute defines “public hazard" to mean "an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure, or product, that has caused and is likely to cause injury."

      . The respondent maintains that Ford was invited to put on evidence and did not. Because the hearing was an evidentiary proceeding in name only, Ford correctly complained that it did not know what evidence the plaintiff had actually introduced, what matters had been considered by the trial court, and what exhibits were in the record.

      .These codes represent Ford Explorer model years 1990-94 (UN 46); 1995-97 (UN 105); and 1998-2000 (UN 150). The vehicle involved in this case was, as noted, a 1996 Ford Explorer.

      . Subsection (4) of the statute, though not implicated in this proceeding, also invalidates agreements or contracts concealing public hazards or information useful to the public in protecting themselves from injury that may result from the public hazard.

      . Lee v. Sas, 53 So.2d 114, 116 (Fla. 1951). Justice Terrell referred to slushy evidence about an alleged lien rather than an allegedly-defective product, but his description is apt.


author: SCHWARTZ, Senior Judge.

text:
    Haim TURGMAN, Appellant, v. MM WORLD ENTERTAINMENT, LLC, et al., Appellees.
    No. 3D09-44.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Gary Silberman, Coconut Grove, for appellant.
    Fine & Licitra and Edward A. Licitra, Coral Gables; Peter Mayas, Miramar, for appellees.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal by the seller from an adverse summary judgment in favor of a real estate broker in an action for a commission which was deemed earned as a matter of law notwithstanding that (1) the deal did not close and (2) the commission agreement — prepared by the broker himself — provided that

[i]n case of transaction will be realized between Prospective Seller and Prospective Purchaser, Agent will be entitled and shall receive a commission of 4% from the total amount of the Purchase Agreement by the Prospective Seller.

(emphasis added). We reverse.

At least, the emphasized condition was ambiguous and thus permitted the admission of extrinsic testimony of the parties’ intent as to whether it referred to an actual closing, as indicated in the seller’s affidavit that the broker specifically told him was the case, or, as the broker, supported by no evidentiary showing argued below and as the trial court ruled, that it meant only the contract for purchase and sale., See Land O’Sun Realty Ltd. v. REWJB Gas Investments, 685 So.2d 870, 872 (Fla. 3d DCA 1996) (“Our system entrusts the resolution of factual conflicts ..., including those involving the terms and operation of written contracts, to the jury.”), review dismissed, 710 So.2d 978 (Fla.1998). At most, properly read against the drafter, the “transaction” referred to a closing as a matter of law. See id. at 872 n. 8 (“Contract interpretation is for the court as a matter of law, rather than the trier of fact, only when the agreement is totally unambiguous, or when any ambiguity may be resolved by applying the rules of construction to situations in which the parol evidence of the parties’ intentions is undisputed or non-existent.”).

In either event, the summary judgment for the broker cannot stand and the judgment is therefore reversed and remanded for further proceedings.

Reversed and remanded.

      . The seller relies on the line of cases holding that if the agreement so provides the broker does not earn his commission until a condition precedent is satisfied, notwithstanding that he has produced a buyer ready, willing and able to purchase the property. See Hanover Realty Corp. v. Codomo, 95 So.2d 420 (Fla.1957); MacGregor v. Hosack, 58 So.2d 513 (Fla.1952); Lehr v. Baron's of Surfside, Inc., 550 So.2d 74 (Fla. 3d DCA 1989); Ha-gans Co. v. Mania, 534 So.2d 750, 751-52 (Fla. 3d DCA 1988).

      . The broker relies on the line of cases holding that, unless the agreement provides otherwise, a broker earns his commission merely by producing a ready, willing and able buyer. See Acheson v. Smith’s, Inc., 110 Fla. 240, 148 So. 576 (1933); Harding Realty, Inc. v. Tumberry Towers Corp., 436 So.2d 983 (Fla. 3d DCA 1983); Schumacher v. Wellman, 415 So.2d 120 (Fla. 4th DCA 1982).

      . The broker does not explain why, if he were entitled to the commission anyway, it was necessary or appropriate to place the specified condition in the contract nor why the condition referred to the "realization” apparently of a future contract between the "prospective” buyer and purchaser.

      .The trial court may entertain a motion for summary judgment on the theory that the contract should be construed against the drafter. If the matter cannot properly be resolved on summary judgment, then the interpretation of the contract must be resolved by the trier of fact.


text:
    Eugene MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1688.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Rehearing Denied Nov. 18, 2009.

      Eugene Mack, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and LAGOA and SALTER, JJ.
   SALTER, J.

Eugene Mack appeals a circuit court order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. We affirm.

The State’s response, supplemental response, and appendix were a part of the record below and are before us. Those documents, which include the pertinent trial transcripts, conclusively refute the appellant’s claims of ineffective assistance of trial counsel.

In this ease, the appellant had been identified by eyewitnesses and had confessed. The allegation that there is a reasonable probability that the outcome of the trial would have been different, but for the allegedly deficient performance of trial counsel, is refuted by the overwhelming and duly-admitted evidence of guilt. We therefore affirm under the ineffective assistance standards set forth in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the principle that the trial court “need not determine whether counsel’s performance was deficient when it is clear that the alleged deficiency was not prejudicial.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324 (Fla.1994).

Affirmed.


author: COPE, J.

text:
    Jorge Sueiro HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2433.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Rehearing Denied Dec. 3, 2009.
    Jorge Sueiro Hernandez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN and SUAREZ, JJ.
   COPE, J.

This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

According to the motion, defendant-appellant Hernandez entered a plea to the offense of burglary of an unoccupied dwelling, and was sentenced to fifteen years as a Prison Releasee Reoffender (“PRR”). The crime date was October 8, 2004. The defendant contends that burglary of an unoccupied dwelling is not a qualifying offense for purposes of the PRR statute.

The trial court was entirely correct in denying the claim. The PRR statute was amended in 2001 so that burglary of a dwelling, whether occupied or unoccupied, is a qualifying offense. Ch. 2001-239, § 1, Laws of Fla.; Tumblin v. State, 965 So.2d 354, 355 (Fla. 4th DCA 2007); Bradshaw v. State, 891 So.2d 1184, 1184 n. 1 (Fla. 2d DCA 2005). The statutory version applicable to this defendant is section 775.082(9)(a)1.2., Florida. Statutes (2004).

Affirmed.


text:
    Guy J. STRATTAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09—4929.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2009.
    Guy J. Strattan, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, BENTON, and CLARK, JJ., concur.


text:
    Hubert BABB, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4917.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2009.
    Hubert Babb, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

KAHN, BENTON, and CLARK, JJ., concur.


text:
    James SEARS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4603.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2009.

      James Sears, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, BENTON, and CLARK, JJ., concur.


text:
    Andre Sean UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2654.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2009.
    Andre Sean Underwood, Ocala, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

PALMER, LAWSON and JACOBUS, JJ., concur.


author: TAYLOR, J.

text:
    Anthony BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4121.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 2009.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The issue in this appeal is whether the trial court erred in applying the 1.5 multiplier for the presence of a child under sixteen when sentencing the defendant for domestic aggravated battery, where the information failed to set forth the facts or statutory authority for such sentence enhancement. We find no error and affirm.

During the evening hours of February 13, 2006, Cassandra Krause entered her neighbors’ house through their laundry room and screamed for help. Her neighbors, Laurie and George Hussar, saw that Cassandra’s mouth was swollen, her shirt was stained with blood, and her left arm was injured. She was hysterical and crying. Cassandra told Laurie that the defendant, who was her boyfriend and the father of her children, had hit her. She also complained that the children were in the house at the time. Laurie promptly called 911.

George went to check on the children and saw Cassandra’s car heading down the street. He followed the car for several miles to make sure the children were not in the car and called the police. After determining the kids were not in the car, George returned home to find an ambulance taking Cassandra to the hospital.

Deputy Lerner testified that he responded to Laurie’s 911 call and that Cassandra was distraught and visibly shaken when he met with her. She had blood on her face and was clutching her red and swollen arm while she screamed and cried. Cassandra told the deputy that the defendant, her live-in boyfriend, beat her, threatened to kill her, and then fled the residence and stole her vehicle.

The defendant was charged by information with domestic aggravated battery (Count I) and domestic aggravated assault with a deadly weapon (Count II). Count I cited the applicable aggravated battery statute, section 784.045(l)(a)l and 2, Florida Statutes (2006), but it made no statutory or factual references regarding the defendant’s commission of the aggravated battery in the presence of a child.

At trial, Cassandra testified that on the day of the incident she and the defendant had gotten into an argument. While she was seated in a chair, the defendant came up to her and started hitting her in the head with his fists. Next, he threw a shoe at her, striking her in the head. He repeatedly hit her until she fell to the floor and then kicked her. When Cassandra tried to get away from the defendant, he followed her to the other side of the house, pushed her, and continued to beat her. The defendant repeatedly threatened to kill Cassandra. Although she could not recall at trial whether he had a knife, in earlier statements made shortly after the incident, she said that he grabbed a knife from the kitchen and said he was going to slit her throat with it. The defendant forced Cassandra to clean up the blood from the floor, and she eventually fled to her neighbors’ house.

Cassandra’s three-year-old son and four-month-old daughter were in the house at the time of the attack. Cassandra was struck in front of the infant, who was seated in a carrier on top of the kitchen counter. Deputy Lerner confirmed that after speaking with Cassandra, he went over to her house, where he found the children alone. One child was in a carrier on top of the kitchen counter, and the other child was asleep in his bedroom.

The jury found the defendant guilty as charged of aggravated battery, and guilty of assault, a lesser included offense of domestic aggravated assault. The jury also made a finding on a verdict interrogatory that the battery and assault occurred in the presence of a child under sixteen years of age.

According to the Criminal Punishment Code (CPC) scoresheet, the defendant’s sentencing points totaled 77. The state requested that an aggravator of 1.5 be applied to the defendant’s sentence because the offenses occurred in front of children. After the 1.5 multiplier for domestic violence was applied, the total points increased to 115.5. This resulted in the lowest permissible prison sentence of 65.625 months. The trial court sentenced the defendant to time served on the assault count. On the aggravated battery count, the trial court utilized the multiplier and sentenced the defendant to eight years in prison with credit for time served. The defendant filed a Rule 3.800(b)(2) motion to correct sentencing error, which we deem denied in the absence of a timely ruling on the motion.

The defendant argues that, because the state failed to plead the sentencing enhancement in the criminal information, his due process rights were violated when the trial judge utilized the enhancement during sentencing. The state correctly counters that “not every fact with a bearing on sentencing must be alleged in the charging document”; instead, the charged facts must only make the defendant aware of the heaviest punishment he may face. The state further points out that “the presence of a child under the age of sixteen” was not an element of the offense, and thus did not need to be alleged in the information.

Under Florida Rule of Criminal Procedure 3.704(d) (28) (2006),

[i]f the primary offense is a crime of domestic violence as defined in section 741.28, Florida Statutes, which was committed in the presence of a child under 16 years of age who is a family household member as defined in section 741.28(2) with the victim or perpetrator, the subtotal sentence points are multiplied by 1.5.

“Domestic violence” means any assault or aggravated battery “resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. A “family or household member” includes “persons who are parents of a child in common regardless of whether they have been married.” § 741.28(3), Fla. Stat. (2006).

The purpose of a criminal information is “to fairly apprise defendant of the offense with which he is charged.” Leeman v. State, 357 So.2d 703, 705 (Fla. 1978) (citation omitted). Additionally, “[a]n information must allege each of the essential elements of a crime to be valid.” State v. Dye, 346 So.2d 538, 541 (Fla.1977). As the Second District explained:

It remains true — and of salient significance for the instant case — that “not all facts affecting the defendant’s punishment are elements,” and therefore that not “every fact with a bearing on sentencing must be found by a jury,” or alleged in the charging instrument.

Rogers v. State, 963 So.2d 328, 334-35 (Fla. 2d DCA 2007) (quoting Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) and Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215,143 L.Ed.2d 311 (1999)).

In support of his contention that the information should have included the facts necessary to sentence him with the domestic violence multiplier, the defendant cites Inmon v. State, 932 So.2d 518 (Fla. 4th DCA 2006) (holding that reference in the information to the statute authorizing twenty-year minimum mandatory sentence was insufficient to provide notice to defendant that he was charged with discharge of a firearm where information alleged only that defendant “carried” a firearm, and statute also contained other provisions, including ten-year minimum mandatory sentence for possession of a firearm).

Inmon, however, involved sentencing under the 10/20/life statute, section 775.087(2), Florida Statutes, and is distinguishable from this case because “[t]he factors relevant to sentencing under various versions of section 775.087(2) have been treated as ‘essential elements’ ” of the crime charged. Rogers, 963 So.2d at 335 (citing Jackson v. State, 852 So.2d 941, 943 (Fla. 4th DCA 2003)). As we explained in Inmon, possessing a firearm carries a different mandatory sentence than discharging a firearm. Thus, how the gun was used during the commission of a crime is an essential element of the crime under the statute.

Here, the defendant was charged with domestic aggravated battery in violation of section 784.045(l)(a), Florida Statutes. A review of that statute shows that the presence of a child under the age of sixteen is not an element of the offense or a part of the essential facts constituting the charged offense. It is a sentencing factor, rather than an element of the crime, which did not increase the penalty for the crime beyond the prescribed statutory maximum and, as such, did not need to be alleged in the information. As the Harris Court explained:

Yet not all facts affecting the defendant’s punishment are elements. After the accused is convicted, the judge may impose a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements.

Harris, 536 U.S at 549,122 S.Ct. 2406.

Applying the domestic violence multiplier is akin to assessing victim injury points on CPC scoresheets. It is well-settled, for instance, that penetration need not be alleged in the information charging lewd and lascivious battery in order to enhance a sentence with victim injury points; penetration is not an element or functional equivalent of an element of that offense. Rogers, 963 So.2d at 336. Rather, penetration is a “circumstance” that supports the imposition of a sentence within the statutory range and authorized by a jury finding. Id. Similarly, the presence of a child is not an element but a circumstance which permits a greater sentence within the statutory range. The information set forth all the essential elements for aggravated battery and, thus, satisfied due process notice requirements by making the defendant “aware of the ‘heaviest punishment’ ” he faced if convicted. See Harris, 536 U.S at 562,122 S.Ct. 2406.

Because the trial court properly considered the domestic violence multiplier when determining the defendant’s guidelines sentence range and sentenced the defendant within the fifteen-year statutory maximum for aggravated battery, we affirm the sentence imposed.

Ajfirmed.

HAZOURI, J., and BEACH, MARCIA, Associate Judge, concur.