text:
    Eneida REYES, Appellant, v. BAG HOME LOANS SERVICING L.P., Appellee.
    Case No. 2D15-3495
    District Court of Appeal of Florida, Second District.
    Opinion filed September 6, 2017

      David D. Sharpe of The Law Office of Dario Diaz, P.A., Tampa, for Appellant.
    Jessica Conte and Kimberly N. Hopkins of Shapiro, Fishman & Gaché, LLP, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Eneida Reyes appeals from a final summary judgment of foreclosure in favor of Plaintiff, BAC Home Loans Servicing, L.P. Specifically, she argues that the trial court erred in denying her motion to amend her answer and affirmative defenses and subsequently granting BAC’s motion for summary judgment. We agree with Reyes and reverse.

FACTS

Reyes bought her Tampa home in 1983. In 2007, at the age of seventy-four, she refinanced the mortgage on her home for approximately $100,000. Before the refinance, her monthly principal and interest payment (P & I) was about $250. After the refinance, her monthly P & I was about $885.

BAC filed its foreclosure complaint on January 21, 2010, alleging that Reyes had last paid her mortgage in September 2009. After BAC moved for summary judgment on September 1, 2011, Reyes retained counsel, who successfully moved to vacate a previously entered default and filed an answer that included eleven affirmative defenses. In December 2012, following a hearing, the trial court struck eight of the affirmative defenses without prejudice and gave Reyes thirty days to file an amended answer and affirmative defenses. Reyes did not file an amended answer and affirmative defenses within those thirty days. Instead, the parties engaged in discovery and a failed attempt at mediation.

Finally, a hearing on BAC’s still-pending motion for summary judgment was scheduled for May 19, 2015. Shortly before the hearing, Reyes filed an affidavit in opposition to the motion for summary judgment, a transcript of the recent deposition of BAC’s corporate representative, a motion to amend her answer and affirmative defenses, and a memorandum of law on her affirmative defense of predatory lending. In the motion to amend, Reyes’s counsel explained that he had “just recently uncovered the fact that the affirmative defenses were not re-pleaded.” He also asserted that the parties had been engaged in ongoing settlement efforts, that Reyes had made reasonable attempts to resolve the case but BAC had been uncooperative, and that the deposition testimony of BAC’s corporate representative supported Reyes’s affirmative defense of predatory lending. At the May 19, 2015, hearing, the trial court denied Reyes’s motion to amend, granted BAC’s motion for summary judgment, and entered a Uniform Final Judgment of Foreclosure.

Reyes timely moved for rehearing. At the July 6, 2015, hearing on that motion, Reyes’s counsel reiterated the trial court’s apparent rationale for denying the motion to amend: “[T]he court was not satisfied with the length of time that had elapsed since ... [the]' order striking most of the Affirmative Defenses .... ” Counsel explained that he had drafted the amended pleading in 2011 and Reyes had verified it at that time, but, due to his own oversight, it had never been filed. He characterized his oversight as “excusable neglect” and argued that BAC would suffer no prejudice if the court were to grant the motion to amend because the affirmative defenses were essentially the same defenses that Reyes had raised previously, albeit more fully developed, Unswayed, the court stated: “I’m going to - stand by my original ruling. I find no excusable neglect for late filing of the Amended Affirmative Defenses until a week before [the héaring on the motion for summary judgment].” This appeal followed.

ANALYSIS

As noted above, there1 is no transcript of the May 19, 2015, hearing on Reyes’s motion to amend and BAC’s -motion for summary judgment. Although BAC urges this court to affirm in light of the lack of a transcript, we are not constrained to do so if there is error apparent on the face of the record. See Celebrity Cruises, Inc. v. Fernandes, 149 So.3d 744, 749 n.3 (Fla. 3d DCA 2014) (explaining that, although appellant’s failure to provide transcript generally dictates affirmance, appellate court may review lower court’s judgment for error apparent on its face notwithstanding, absence of .transcript). Here, the- record comprises, among other things, BAC’s complaint, Reyes’s original answer and affirmative defenses, Reyes’s motion to amend and her proposed amended answer and affirmative defenses, BAC’s response to Reyes’s motion for rehearing, and a transcript of the July 6, 2015, hearing on. Reyes’s motion for rehearing, which included a “recap” of the May 19 hearing on the motion to amend. Under these circumstances, the lack of a transcript of the May 19 hearing does not impede our consideration of Reyes’s challenge to the trial court’s denial of her motion to -amend and ensuing grant of BAC’s motion for summary judgment. See Houk v. PennyMac Corp., 210 So.3d 726, 730-31 (Fla. 2d DCA 2017) (holding that absence of transcript was not critical to determination of appeal where record was sufficient to determine whether trial court had properly entered summary judgment).

The trial court denied Reyes’s motion to amend because Reyes filed it two weeks before the scheduled hearing on BAC’s motion for summary judgment and because the court found that counsel had failed to establish “excusable neglect” for the delay. But the bare timing of a motion to amend and whether counsel’s failure to seek amendment sooner constituted “neglect,” excusable or otherwise, are,' at most, ancillary to the primary considerations of prejudice to the opposing party, abuse of the privilege, and futility of the proposed amended pleading. Laurencio v. Deutsche Bank Nat’l Tr. Co., 65 So.3d 1190, 1193 (Fla. 2d DCA 2011) (“A trial court’s refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party, (2) the privilege to amend has been abused, or (3) the amendment would be futile.” (quoting S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So.3d 56, 62-63 (Fla. 2d DCA 2011))); see also RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So.3d 915, 917 (Fla. 3d DCA 2016) (“If such dangers cannot be clearly established, the trial court abuses its discretion by denying the party’s motion for leave to amend the pleading.” (citing Cobbum v. Citimortgage, Inc., 158 So.3d 755, 756 (Fla. 2d DCA 2015))). Indeed, this court has repeatedly noted that “ ‘[p]ublic policy favors the liberal amendment of pleadings so that cases may be decided on their merits,’ ” S. Developers, 56 So.3d at 62 (quoting EAC USA, Inc. v. Kawa, 805 So.2d 1, 5 (Fla. 2d DCA 2001)), and that “[a]ll doubts must be resolved in favor of allowing the amendment of pleadings,” Id. (citing EAC USA, Inc., 805 So.2d at 5); see also Fla. R. Civ. P. 1.190(a) (“Leave of court [to amend a pleading] shall be given freely when justice so requires.”).

The record does not establish any of the dangers that would support the denial of Reyes’s motion to amend. First, as this was her first request to do so, it did not constitute an abuse of the privilege. See, e.g., Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996) (“Since Life General had not sought to amend its pleadings before the instance we now review, it cannot be said that the appellant has abused the-privilege.”); cf. Alvarez v. DeAguirre, 395 So.2d 213, 217 (Fla. 3d DCA 1981) (“While we stress that it is not the number of amendments which determines the abuse, it has been held that ‘[gjenerally three ineffective attempts to state the same cause of action or defense are enough,’ ... and the ‘liberality in permitting amendments decreases as the action progresses and as the number of amended pleading[s] increases.’ ” (quoting Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure §§ 14-2 & 14-3 (1980 ed.))) (first alteration in original).

Moreover, BAC failed to establish that it would have been prejudiced by the amendment. Although it questioned whether Reyes’s neglect was excusable and complained generally about the “last minute” timing of Reyes’s motion and its frustrated expectations concerning how the summary judgment proceeding would unfold, the crux of its objections was that the motion simply was “untimely,” which the courts of appeal have rejected as sufficient basis for denying leave to amend. See, e.g., RV-7 Prop., 187 So.3d at 917 (no prejudice where motion to amend was filed two days before summary judgment hearing); Crown v. Chase Home Fin., 41 So.3d 978, 980 (Fla. 5th DCA 2010) (no prejudice where proposed amended answer was filed after filing of motion for summary judgment even though it raised several affirmative defenses not addressed in motion for summary judgment); Carib Ocean Shipping, Inc. v. Armas, 854 So.2d 234, 235-37 (Fla. 3d DCA 2003) (no prejudice where proposed amended answer raising new affirmative defense was filed “shortly before trial” and despite defendant’s concession that the failure to include defense in previous pleading “was pure negligence”); Leavitt v. Garson, 528 So.2d 108, 111 (Fla. 4th DCA 1988) (no prejudice where motion to amend was made before hearing on motion for summary judgment and before case was set for trial).

Finally, the record does not establish that amendment would have been futile. “Any doubt with respect to futility should be resolved in favor of allowing the amendment, especially when leave to amend is sought at or before the summary judgment hearing.” RV-7 Prop., 187 So.3d at 917. We decline to conclude that amendment would have been futile when the trial court struck Reyes’s original affirmative defenses without prejudice and specifically provided how she could re-plead one of those defenses. Reyes repleaded her affirmative defenses with additional facts and specificity, and while we do not say whether she should ultimately prevail on any of them, neither the record nor BAC’s arguments below or on appeal refute them potential viability as a matter of law.

Because the trial court erred in denying Reyes’s motion to amend, it necessarily erred in granting BAC’s motion for summary judgment. In concluding that reversal is warranted on procedural grounds, however, we decline to address Reyes’s substantive challenges to the court’s rejection of her affirmative defenses regarding BAC’s standing, BAC’s asserted failure to comply with conditions precedent, and BAC’s asserted failure to comply with 12 U.S.C. § 1701x(c)(5).

CONCLUSION

The trial court abused its discretion in denying Reyes’s motion to amend her answer and affirmative defenses and, consequently, erred in granting BAC’s motion for summary judgment. Accordingly, we reverse the final judgment of foreclosure and remand for vacatur of the order denying Reyes’s motion to amend and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

SILBERMAN and KELLY, JJ„ Concur.

      . Our record lacks, among other things, a transcript of the May 19, 2015, hearing, an order denying Reyes’s motion to amend, an order granting BAC’s' motion for summary judgment (although the first paragraph of the final judgment of foreclosure states, "[BAC’s] Motion for Summary Judgment is -GRANT- - ED”), and Reyes’s motion for rehearing.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Lapar Donta CONLEY, DOC #166923, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5417
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017

      Lapar Donta Conley, pro se.
   WALLACE, Judge.

Lapar Donta Conley appeals the order summarily denying his pro se motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in which he raised five grounds of ineffective assistance of trial counsel. We affirm without comment the postconviction court’s denial of grounds one, three, four, and five. Ground two of Mr. Conley’s motion was facially insufficient but could be corrected to state a facially sufficient claim. For this reason, we reverse the postconviction court’s summary denial of ground two and remand for the postcbnviction court to strike Mr. Conley’s motion with regard to ground two and to grant him sixty days to file an amended motion with regard to that ground."

A jury convicted Mr. Conley of two first-degree felonies: count one, trafficking in oxycodone (between 28 grams and 30 kilograms); and count two, conspiracy to .traffic in oxycodone (between 28 grams and 30 kilograms). The trial court sentenced Mr. Conley on each count to concurrent terms of twenty-six years in prison with a twenty-five-year mandatory minimum, followed by one year of probation.

Mr. Conley timely filed his post-conviction motion under rule 3.850, In ground two of his motion, Mr. Conley alleged that his trial counsel provided ineffective assistance by failing to move for a hearing in accordance with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the validity of the affidavit used to obtain the arrest warrant. Mr. Conley argued that trial counsel should have moved for a Franks hearing because the affidavit executed by the investigating officer included: (1) the officer’s allegedly false statement that the confidential informant had no known criminal history; and (2) the officer’s allegedly false statement that there were 720 oxyco-done pills, even though—as the evidence at trial proved—there were only 360 pills.

In summarily denying ground two of Mr. Conley’s motion, the postconviction court acknowledged that Mr. Conley’s pleading was deficient for failing to allege that the investigating officer intentionally included the allegedly false statements in the affidavit used to obtain the arrest warrant. Nevertheless, the postconviction court denied ground two on its merits as conclusively refuted by the record. Specifically, the postconviction court found that a challenge to the arrest warrant would not have changed the outcome of the trial because a forensic chemist’s testimony established that 360 oxycodone pills would have been sufficient to provide probable cause for Mr. Conley’s arrest. The postconviction court attached to its order a portion of the trial transcript where the forensic chemist testified that the weight of 360 of the oxycodone pills was 44.952 grams. The postconviction court did not attach to its order the affidavit for the arrest warrant that is the subject of this claim, nor did the postconviction court address Mr. Conley’s claim regarding the officer’s allegedly false statements about the confidential informant’s known criminal history.

We review the summary denial of a rule 3.850 motion by de novo review, and we “accept the [defendant’s] factual allegations as true to the extent that they are not refuted by-the record.” Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013) (citing Occhicone v. State, 768 So.2d 1037, 1041 (Fla. 2000)). To sufficiently plead an ineffectiveness claim premised on counsel’s failure to move for a Franks hearing, the defendant must allege sufficient facts indicating that: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defendant, he., that there is a reasonable probability that counsel’s deficient performance affected the outcome of the proceeding or undermined the result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that counsel’s performance was deficient, the defendant must sufficiently allege both prongs of the Franks test: (1) that the officer misstated the information knowingly and intentionally, or with a reckless disregard for the truth, rather than through mere negligence or an innocent mistake; and (2) that “the remaining allegations are insufficient to support a probable cause finding.” State v. Petroni, 123 So.3d 62, 64 (Fla. 1st DCA 2013) (citing Franks, 438 U.S. at 168, 171-72, 98 S.Ct. 2674); see also Marquardt v. State, 156 So.3d 464, 480 (Fla. 2015) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674); Wade v. State, 156 So.3d 1004, 1015 (Fla. 2014) (“[T]he postconviction court correctly concluded that because trial counsel could not have successfully challenged the search, warrant, trial counsel did not perform deficiently by not filing a , motion to suppress or objecting to the admission of the evidence.”). As the First District explained in Petroni, the facts alleged to support the first prong of the Franks test must indicate that “police conduct [rose] to the level of hoodwinking or bilking, duping the issuing judge or magistrate into signing the warrant.” Petroni, 123 So.3d at 65. In other words, the defendant must allege that the false information or omission “amounted to deceptive behavior on the part of the police intended to sway the judge.” Id.

Here, Mr. Conley’s claim was insufficiently pleaded. As the postconviction court correctly observed, Mr. Conley failed to allege sufficient facts to meet the first prong for a Franks hearing—the officer’s intent. Mr. Conley was required to allege that the officer “cherry-picked specific information, while leaving out other pertinent, material information, all the while intending that the issuing judge would thus be duped into signing the warrant [he or] she otherwise would not have signed.” See Petroni, 123 So.3d at 66. Instead, Mr. Conley’s claim in ground two of his motion amounted to nothing more than a concluso-ry allegation that the officer included false information in the affidavit used to obtain the arrest warrant. See United States v. Rodriguez, 414 F.3d 837, 842 (8th Cir. 2005) (“Conclusory allegations of falsehood are insufficient to make a substantial preliminary showing that a false statement was intentionally or recklessly included in the affidavit.” Mr. Conley failed to allege that the officer included the false information, intending to deceive the issuing judge to sign the warrant he or she otherwise would not have signed.

Accordingly, the postconviction court erred by summarily denying the motion rather than dismissing it and granting Mr. Conley sixty days to file a facially sufficient amended motion. See Fla. R. Crim. P. 3.850(f)(2) (“If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.”); Spera v. State, 971 So.2d 754, 755 (Fla. 2007) (“[A] court abuses its discretion in failing to allow the defendant at least one opportunity to correct [a pleading] deficiency unless it cannot be corrected.”). Therefore, we reverse the postconviction court’s order in part and remand with directions to strike Mr. Conley’s motion in part and to grant him sixty days to file an amended motion with regard to ground two. If Mr. Conley timely files an amended claim that is facially sufficient and the postconviction court again denies the claim as conclusively refuted by the record, the postconviction court. must address claim two of Mr. Conley’s motion and attach sufficient record excerpts to its order to refute the claim—including the affidavit executed by the investigating officer to obtain the arrest warrant. In all other respects, we affirm the order under review. .

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

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . We note that a postconviction court could find a defendant's claim of prejudice for failing to obtain a Franks hearing meritless if ' there was sufficient evidence for a conviction that was independent of the arrest. See Darby v. State, 502 So.2d 1358, 1359 (Fla. 5th DCA 1987) ("The invalidity of a given arrest, even if establishable, may not suffice to defeat a prosecution where there is sufficient evidence of the offense independent *of the .arrest,”).


author: BLACK, Judge.

text:
    Neha PATEL, Appellant, v. Rasesh PATEL, Appellee.
    Case No. 2D16-4488
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017

      William J. Lobb and Howardene Garrett of Law Office of William J, Lobb, Bartow, for Appellant.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   BLACK, Judge.

We affirm the order on modification of final judgment of dissolution of marriage, which denies Neha Patel’s motion to modify the final judgment as it relates to time-sharing. Competent substantial evidence supports the trial court’s finding that Ms. Patel met her burden of establishing a substantial, material, and unanticipated change in circumstances since the entry of the final judgment of dissolution of marriage. See Wade v. Hirschman, 903 So.2d 928, 934 (Fla. 2005) (“A decree for purposes of the substantial change test includes both a decree that has incorporated a stipulated agreement concerning child custody and a decree awarding custody after an adversarial hearing.”). And we find no error in the court’s determination that modification was not in the child’s best interests at the time of the evidentia-ry hearing.

However, we remand with directions that the trial court strike the language of paragraph eleven following its finding that it is not in the minor child’s best interests to modify the current timesharing and parental responsibility “at this time.” The trial court may neither determine the child’s best interests prospectively, see Eisele v. Eisele, 91 So.3d 873, 874-75 (Fla. 2d DCA 2012), nor delegate its statutory duties to a parent or expert, Grigsby v. Grigsby, 39 So.3d 453, 457 (Fla. 2d DCA 2010). Future motions to modify the final judgment with regard to timesharing are governed by the statutory requirements to establish a “substantial, material, and unanticipated change in circumstances” since entry of the final judgment—which has been met in this case—and that “modification is in the best interests of the child.” See § 61.13(3), Fla. Stat. (2016); see also Howell v. Howell, 207 So.2d 507, 511-12 (Fla. 2d DCA 1968) (discussing the law of the case doctriné).

Affirmed; remanded with instructions.

SILBERMAN and CRENSHAW, JJ., concur.

      . We note that the modification order contains two paragraphs numbered eleven. Our direction on remand is specific to the second paragraph eleven.


author: LaROSE, Chief Judge.

text:
    Ryan J. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3871
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017.
    Ryan J. Simmons, pro se.
   LaROSE, Chief Judge.

Ryan J. Simmons, pro se, appeals the postconviction court’s order summarily denying his motion for return of property. See Fla. R. App. P. 9.141(b)(2); Bolden v. State, 875 So.2d 780, 782 n.3 (Fla. 2d DCA 2004). The postconviction court denied the motion as untimely but failed to attach the judgment and sentence. We reverse and remand for the postconviction court to attach portions of the record that conclusively refute Mr. Simmons’ claim or hold an evidentiary hearing on the matter. See Almeda v. State, 959 So.2d 806, 809 (Fla. 2d DCA 2007) (“[I]f the circuit court deemed the motion’s allegations to be facially sufficient, the circuit court should have either attached portions of the record that conclusively refuted Mr. Almeda’s claim or held an evidentiary hearing.”); Stevens v. State, 929 So.2d 1197, 1197 (Fla. 2d DCA 2006).

Reversed and remanded with instructions.

MORRIS and SALARIO, JJ., Concur.


author: LUCAS, Judge.

text:
    U.S. BANK N.A., as Trustee, ON BEHALF OF the HOLDERS OF the J.P. MORGAN ALTERNATIVE LOAN TRUST 2007-S1 MORTGAGE PASS-THROUGH CERTIFICATES, Appellant, v. Earl HOLBROOK, Appellee.
    Case No. 2D16-3286
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017
    Allison Morat of Pearson Bitman LLP, Maitland, for Appellant.
    Jan T. Govan of Govan Law Group, P.A., Clearwater, for Appellee.
   LUCAS, Judge.

In this residential mortgage foreclosure case, U.S. Bank, N.A., as Trustee, on behalf pf the holders of the J.P. Morgan Alternative Loan Trust 2007-SI Mortgage Pass-Through Certificates (U.S. Bank), appeals the circuit court’s final summary judgment entered against it on the bank’s complaint to reform and foreclose a mortgage on Earl Holbrook’s property. We review a ruling on summary judgment de novo, Treasure Coast Marina, LC v. City of Fort Pierce, 219 So.3d 793, 802 n.13 (Fla. 2017); ALS Maxim I LLC v. Katsen-ko, 218 So.3d 472, 473 (Fla. 2d DCA 2017). As we observed in Katsenko:

Summary judgment is appropriate “only if there is no genuine .issue of material fact and if the moving party is entitled to judgment as a matter of law.” Reed v. Schutz Litig. LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013) (quoting MarElia v. Yanchuck, Berman, Wadley & Zervos, P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007)). The moyant “has the burden to establish irrefutably that the nonmoving party cannot prevail, were a trial to be held.” Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011).

218 So.3d at 473.

At the. time the circuit court entered summary judgment, Mr. Holbrook had not filed an answer, nor had he responded to any of U.S. Bank’s discovery requests. Indeed, Mr. Holbrook had adamantly refused to sit for his deposition, necessitatinjg the filing of a contempt motion against him, which, at the time of the summary judgment hearing, was still pending. On this record, then, it is clear to us that the circuit court’s entry of summary judgment was premature. See Brandauer v. Publix Super Mkts., Inc., 657 So.2d 932, 933 (Fla. 2d DCA 1995) (“As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery.”); Colby v. Ellis, 562 So.2d 356, 357 (Fla. 2d DCA 1990) (“As a general rule, it is premature to grant a motion for summary judgment where the opposing party has not completed its discovery and there are discovery motions pending before the court.”); Settecasi v. Bd. of Pub. Instruction of Pinellas Cty., 156 So.2d 652, 654 (Fla. 2d DCA 1963) (“Although a plaintiff may move for summary judgment before the defendant has answered, the motion should not be granted unless it is clear that an, issue of material fact cannot be presented.”). Furthermore, the circuit court’s summary judgment relied upon evidence concerning a prior civil proceeding and adjudication that Mr. Holbrook submitted for the first time at the summary judgment hearing. The circuit court’s consideration of that evidence was also error. See Fla. R. Civ. P. 1.510(c) (“The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court.”); Verizzo v. Bank of New York, 28 So.3d 976, 977-78 (Fla. 2d DCA 2010) (reversing summary judgment of foreclosure where plaintiff failed to serve defendant with summary judgment evidence until eleven days before the hearing); Mack v. Commercial Indus. Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989) (holding that moving party’s summary judgment exhibits that were not served upon the non-moving party prior to the hearing could not be considered). Accordingly, we must reverse the circuit court’s summary judgment.

Reversed and remanded.

CASANUEVA and BADALAMENTI, JJ., Concur.

      . The mortgage contains a parcel identification number and street address but not a formal legal description of the property.

      . Although these procedural errors necessitate reversal, we would note, for the benefit of the circuit court on remand, that U.S. Bank’s foreclosure of this mortgage may not necessarily depend upon reforming it, as this instrument appears to contain a valid street address and parcel identification number. Cf. Maynard v. Miller, 132 Fla, 269, 182 So. 220, 221 (1938) ("It is well settled in this jurisdiction that if the description of the land conveyed in a deed is such that a surveyor, by applying the rules of surveying, can locate the same, such description is sufficient, and the deed will be sustained if it is possible from the whole description to ascertain and identify the land intended to be conveyed.” (citing Walker v. Lee, 51 Fla. 360, 40 So. 881, 882-83 (1906))); Mendelson v. Great W. Bank, F.S.B., 712 So.2d 1194, 1196 (Fla. 2d DCA 1998) ("The rule is that a description is sufficient if, by relying on the description read in light of all facts and circumstances referred to in the instrument, a surveyor could locate the land.” (emphasis omitted) (citing Burns v. Campbell, 131 Fla. 630, 180 So. 46 (1938))); 37 Fla. Jur. 2d Mortgages § 67 (2017) (observing that "the rules as to descriptions of real estate in mortgages conform to those prevailing with respect to descriptions in deeds.” (emphasis omitted)). This would appear to hold true regardless of the prior adjudication that may have been entered against the bank concerning this same mortgage in an earlier lawsuit. Cf. Desylvester v. Bank of New York Mellon, ex rel. the Holders of the Alt. Loan Tr., 219 So.3d 1016 (Fla. 2d DCA 2017); Bollettieri Resort Villas Condo. Ass’n, Inc. v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016). We cannot definitively'resolve the substance of this controversy, however, because the circuit -court’s precipitous entry of summary judgment forestalled its development below.


author: PER CURIAM.

text:
    IN the INTEREST OF E.L.-S., a Child. Department of Children and Families, Petitioner, v. J.G., W.K., and Guardian ad Litem Program, Respondents.
    Case No. 2D17-1385
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Petitioner.
    Corey Linick of Law Office of Corey D. Linick, P.A., Lutz, for Respondent J.G.
    Ita M. Neymotin, Regional Counsel, Fort Myers, Ngozi C. Acholonu, Assistant Regional Counsel, Clearwater and Joseph Thye Sexton, Assistant Regional Counsel, Bartow for Respondent W.K
    Wendie M. Cooper and David Paul Krupski, Sanford, for Respondent Guardian ad Litem Program.
   PER CURIAM.

The petitioner’s petition for writ of cer-tiorari is denied.

SILBERMAN, BLACK, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: SILBERMAN, Judge

text:
    Tito MORELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5514
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017

      Tito Morell, pro se.
   SILBERMAN, Judge

Tito Morell timely appeals an order dismissing his claims for postconviction relief. The postconviction court entered the order pursuant to an agreement between the parties that resolved Mr. Morell’s claims. We affirm.

In his postconviction motion, Mr. Morell asserted multiple claims, and the postcon-viction court granted an evidentiary hearing on several of them. At the evidentiary hearing, the State and Mr. Morell announced an agreement for entry of amended sentences and dismissal of the balance of Mr. Morell’s claims. The postconviction court accepted the agreement and imposed the agreed-upon sentences. The court later entered its final order dismissing Mr. Mo-rell’s remaining claims with prejudice.

Mr. Morell appealed the final order of dismissal, but he does not assert any error as to that order. Instead, he argues that the agreed-upon sentences are illegal because they exceed the statutory maximum sentences allowed for his convictions. In its answer brief, the State concedes that Mr. Morell’s sentences are illegal.

Because Mr. Morell does not assert that the trial court erred in its order of dismissal, which is the order now before us, we affirm. Although he raises a valid argument concerning the illegality of his amended sentences, the sentencing orders are not within the scope of our review because Mr. Morell did not initiate an appeal from those orders. Further, he did not preserve the issue for appellate review by filing a motion to correct the illegal sentences in the postconviction court. See Jackson v. State, 983 So.2d 562, 568-69, 572-73 (Fla. 2008). Accordingly, our affir-mance is without prejudice to Mr. Morell filing a motion under Florida Rule of Criminal Procedure 3.800(a) in the post-conviction court.

Affirmed without prejudice.

LUCAS and BADALAMENTI, JJ., Concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    B.R.W., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-664
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017.

      Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   ROTHSTEIN-YOUAKIM, Judge.

B.R.W. appeals the disposition order adjudicating him delinquent for burglary of an unoccupied conveyance. See § 810.02(l)(b)(l), (4)(b), Fla. Stat. (2014). He argues that the trial court erred in denying his motion for a judgment of dismissal because the evidence failed to establish the ownership of the conveyance alleged to have been burglarized. We agree, reverse B.R.W.’s disposition, and remand for dismissal of the delinquency petition.

Background

The State charged B.R.W. with unlawfully entering or remaining in “a certain conveyance, to-wit: vehicle, the property of WILLIAM WHETSTONE, with intent to commit an offense therein.” The evidence at the disposition hearing, viewed in the light most favorable to the State, established the following:

In the early morning of April 10, 2015, Johnny Mays was outside of his apartment building when he heard what sounded like a car crash. In the distance, Mays saw someone, later identified as B.R.W., rummaging through the passenger compartment and then the trunk of a vehicle. Mays called the police. Although B.R.W. left the area during the course of Mays’s call, officers apprehended him a short time later based on a description and other information that Mays provided.

An unidentified law enforcement officer went to William Whetstone’s residence and told him that police had apprehended someone who had broken into his vehicle. Whetstone subsequently inspected his vehicle and confirmed that someone had, in fact, broken into the passenger compartment and trunk.

■ In moving for a judgment of dismissal, B.R.W. argued that the State failed to establish that the vehicle through which Mays had allegedly seen him rummaging was Whetstone’s vehicle. Acknowledging only that the State had failed to establish “the make and model” of the vehicle, the trial court denied B.R.W.’s motion.

The trial court found B.R.W. guilty of burglary of an unoccupied conveyance, adjudicated him delinquent, and issued a judicial warning. B.R.W. timely appealed.

Analysis

To establish burglary of an unoccupied conveyance, the State must prove, among other things, “the allegation of ownership of the conveyance ... as alleged in the detention petition or information, since it is a material element of the crime.” L.D.S. v. State, 784 So.2d 1227, 1228 (Fla. 2d DCA 2001); see also D.S.S. v. State, 850 So.2d 459, 461 (Fla. 2003) (“Ownership of the building or structure is a material element of the crime of burglary.” (citing In re M.E., 370 So.2d 795, 796 (Fla. 1979))). This court reviews de novo the trial court’s denial of a motion for a judgment of dismissal and will reverse an adjudication of delinquency if competent, substantial evidence, viewed, in the light most favorable to the State, does not support each element beyond a reasonable doubt. See B.M. v. State, 212 So.3d 526, 528 (Fla. 2d DCA 2017); J.A.M. v. State, 75 So.3d 816, 816 (Fla. 2d DCA 2011).

Although B.R.W. does not dispute that Mays saw him rummaging through some vehicle outside Mays’s apartment building, he argues that the State failed to present sufficient evidence that it was Whetstone’s vehicle. The State responds not by directing us to evidence in the record establishing this element but by contending that “it is readily apparent that everyone concerned was testifying regarding the same vehicle.”

To the contrary, it is far from readily apparent. The State failed to establish the make, model, color, license-plate number, vehicle identification number, or any other distinguishing characteristic of either the vehicle through which Mays saw B.R.W. rummaging or Whetstone’s vehicle. There was no evidence at all concerning where Whetstone lived, let alone establishing that he lived in Mays’s apartment complex or anywhere near Mays’s apartment complex or that he at least had parked his vehicle there. Although Whetstone testified that he knew B.R.W. from “seefing] him a couple of times on the street walking around,” there was no evidence of where that street was' or of any other connection between Whetstone and B.R.W. And, most strikingly, no witness testified concerning the chain of events that culminated ih the police knocking on Whetstone’s door. If not for the bare fact that Mays and Whetstone were testifying at the same tidal about a vehicle burglary that had occurred :on April 10, 2015, there would be no indication whatsoever that they were testifying about the same burglary. In short, there was an utter failure of proof on the element of ownership.' '

Conclusion

Because no competent, substantial evidence established that Whetstone owned the Vehicle through which' Mays saw B.R.W. rummaging, the trial court erred in denying B.R.W.’s motion for judgment of dismissal. Accordingly, we reverse B.R.W.’s delinquency adjudication and remand for the trial court" to dismiss the petition.

Reversed and remanded with directions.

MORRIS and SLEET, JJ., Concur.

      . The most that we can glean from the record about the location of any of the events pertinent to this appeal is that Mays lived in an apartment complex somewhere around 42nd Street in Hillsborough County and that police apprehended B.R.W. near 42nd Street and Deleuil Avenue.

      . It is unclear whether law enforcement officers contacted Whetstone in the early morning hours or the late evening hours of April 10, 2015. Whetstone merely testified that the officer had contacted him "that night.”


author: KHOUZAM, Judge.

text:
    Ulysses L. BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2791
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Ulysses L. Brown appeals his judgment and sentence for direct criminal contempt. The State concedes, and we agree, that the trial court erred by finding Mr. Brown in direct criminal contempt. Accordingly, we reverse the judgment and sentence and remand with directions to vacate Mr. Brown’s conviction.

On November 16, 2015, the State charged Mr. Brown with third-degree felony possession of cocaine, first-degree misdemeanor possession of marijuana, and possession of drug paraphernalia. His case was scheduled for trial on March 21, 2016. When the case was called that morning, Mr. Brown’s counsel asked the eourt to pass the case so he could discuss with Mr. Brown the possibility of a plea agreement. The prosecutor advised the trial court that she would seek a continuance if she and Mr. Brown could not reach an agreement. When the case was recalled, Mr. Brown’s counsel told the court that he had not had an opportunity to speak with Mr. Brown about a potential counteroffer but that it was unlikely the case would be resolved that morning.

The prosecutor asked to approach the bench, where the following discussion occurred:

THE PROSECUTOR: Your Honor, it came to my attention that Mr. Brown is too impaired this morning to have any meaningful conversation with his attorney about a counteroffer or a resolution.
THE COURT: Impaired by what?
DEFENSE COUNSEL: I don’t know. I just have reservations about entering into any type of plea agreement this morning.
THE COURT: Do you smell alcohol on him? Do you smell alcohol on him?
DEFENSE COUNSEL: Your Honor, I smell alcohol in the general vicinity including by his friend.
THE COURT: All right.

The trial court put Mr. Brown under oath and asked if he was under the influence of narcotics or alcohol. Mr. Brown responded no, and the trial court ordered him to be taken into custody and immediately tested for drugs and alcohol.

When the case was again recalled, Mr. Brown’s counsel objected, asserting that the trial court did not have the authority to take Mr. Brown into custody based on hearsay and that the test results should not be used against him. Defense counsel further asserted that even if Mr. Brown were under the influence of alcohol, it would not violate a condition of his pretrial release. Additionally, he pointed out that Mr. Brown arrived on time, he was dressed appropriately, and after he was taken into custody, “he was able to explain not only why he was here, but he said that he was prepared and ready for trial, that he understood the potential outcomes in his case.” The prosecutor responded that she “brought to the court’s attention through Mr. Brown’s attorney and [sic] the fact that he was unable to communicate with him to the point of having a conversation with him about plea options and not being able to proceed with court this morning.” Mr. Brown’s counsel disputed the prosecutor’s characterization of his statement to her and told the trial court that he had informed her that he did not think they would be able to resolve the case that day and that she should seek a continuance as she intended. The trial court ruled:

THE COURT: [DEFENSE COUNSEL], one thing we don’t need to do is beat around the bush. You approached the bench. The state said that he was in no condition, being Mr. Brown was in no condition to carry on a meaningful conversation with you because of his condition.
I asked you if the man had been drinking. You were hesitant. It was clear by your impressions towards me that you thought he had been drinking, that you could not carry on a logical conversation with him. You told me that you smelled alcohol around him.
It was clear to the court by what you said to me at the bench and your reaction that he had been drinking and he was in no condition or at least drinking and or on some type of a narcotic that he was in no condition to assist you in his defense for preparation of trial this morning. That’s why the court had taken him into custody and ordered that he be drug tested as well as given an alcohol breath test.

When the case was again recalled, the trial court informed the attorneys: “He blew a .176 twice at the jail. I asked your client under oath whether or not he had consumed any alcoholic beverages or was under the influence of any narcotics or drugs. He told me no. He clearly is drunk.” The trial court asked Mr. Brown to show cause why he should not be held in direct criminal contempt. Mr. Brown responded:

Your Honor, I did drink last night, Your Honor, because I was scared, Your Hon- or. Your Honor, I done been to prison. I don’t want to go back to prison again. I did drink last night, Your Honor, and I did—when you say under the influence, I’m thinking you saying did I drink today. No. But last night, yes, I did, Your Honor.

The trial court then found: ‘You drank enough—whether you’re telling me the truth or not, you drank enough to blow a .176 at 10:48 this morning and another at 10:51 this morning.” The trial court held Mr. Brown in direct criminal contempt and sentenced him to thirty days in jail. On April 12, the trial court rendered a written order finding Mr. Brown in direct criminal contempt.

In Plank v. State, 190 So.3d 594, 606 (Fla. 2016), the Supreme Court of Florida directed the vacation of an order finding a prospective juror in direct criminal contempt under circumstances somewhat similar to those in Mr. Brown’s case. Mr. Plank made it clear during questioning that he did not want to serve as a juror, and he fell asleep at some point during the selection process. Id. at 596-97. Other prospective jurors complained that he smelled of alcohol and was difficult to awaken during a break. Id. at 597. At the trial court’s direction, a probation officer administered a breathalyzer test outside the presence of the trial court. Id.

An hour later, the trial court held a contempt hearing. Id. The probation officer testified that the results from the breathalyzer test demonstrated that Mr. Plank had a blood-alcohol level of 0.111 and that he smelled of alcohol. Id. The trial court informed Mr. Plank that although he arrived for jury duty at 11:30 a.m., his blood-alcohol content was still 0.111 more than three hours later, suggesting that his blood-alcohol level had been even higher before he arrived. Id. The trial court provided Mr. Plank with the opportunity to explain why he should not be held in contempt, and Mr. Plank responded that he was up late the night before, he started work at 5:00 in the morning, and he could not afford to take time off of work to serve as a juror. Id. at 598. He admitted that he had driven himself to the courthouse. Id. The trial court found Mr. Plank in direct criminal contempt:

All right. I’m going to find that you’re in direct criminal contempt for not only coming to the courthouse drunk but it was also—in doing that, you disrupted the jury selection here this afternoon and distracted other jurors. Other jurors obviously noticed that you smelled of alcohol, were drunk. So I am finding you in contempt.

Id. The trial court sentenced Mr. Plank to thirty days in jail. Id. at 599.

Mr. Plank sought review of the order, and the First District certified as an issue in conflict whether an individual is entitled to counsel in direct criminal contempt proceedings before incarceration is imposed as punishment. Plank v. State, 130 So.3d 289, 290 (Fla. 1st DCA 2014), decision approved in part, quashed in part, 190 So.3d 594 (Fla. 2016). After addressing the issue in conflict, the supreme court held that because, the allegedly contemptuous conduct for which Mr. Plank was incarcerated did not occur in the presence of the trial court, the trial court erred in finding Mr. Plank in direct criminal contempt. Id. at 605-06.

The supreme court explained that for conduct to be considered direct criminal contempt, “all' of the acts underlying ' the contemptuous conduct must be committed in open court in the presence of the judge.” Id. at 606. “If the judge needs to rely on statements and testimony from others regarding their knowledge ..about the contemptuous acts, the misconduct is no longer considered direct criminal contempt because additional testimony or explanation is. necessary.” Id Because the trial judge took testimony from a probation officer regarding Mr. Plank’s blood-alcohol level after the officer administered a breathalyzer test, relied on off-the-record statements from the jurors that Mr. Plank smelled of alcohol, and relied on Mr. Plank’s own admissions that he drank before attending jury duty and drove himself to the courthouse, the trial court abused its discretion by finding Mr. Plank in direct criminal contempt. Id. at 606-07. “Whenever a judge must take testimony during a criminal contempt proceeding or rely on additional evidence not directly observed by the trial judge, the proceeding is no longer direct criminal contempt but becomes indirect criminal contempt.” Id. at 607.

As in Plank, the trial court abused its discretion in this case by finding Mr. Brown in direct criminal contempt. The trial court did not observe Mr. Brown drink alcohol nor behave inappropriately in his presence. The breathalyzer tests' occurred outside of the trial court’s presence, and the trial court relied on statements made by Mr. Brown’s counsel' and the prosecutor to find that Mr. Brown was intoxicated. Mr. Brown seems to have untruthfully answered, “No. .sir,” when the trial court asked whether he was under the influence of alcohol. But when the trial court asked him to show cause, Mr. Brown explained that he drank the previous night and that he interpreted the trial court’s questions as asking if he drank alcohol or used drugs that morning. ' •

Moreover, the transcript of the hearing demonstrates that Mr. Brown did not disrupt the court proceedings or embarrass the court—the type of behavior that a finding of criminal contempt is intended to address. See Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla. 1977) (“[A] criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court”). The prosecutor told the court that she intended to ask for a continuance if she could not negotiate a plea agreement that morning. Mr. Brown’s intoxication might have delayed this negotiation, but it certainly did not prevent the prosecutor from requesting a continuance.

Based on the foregoing, we reverse Mr. Brown’s judgment for direct criminal contempt and remand with directions to vacate Mr. Brown’s conviction.

LAROSE, C.J., and BADALAMENTI, J., Concur.

      . Though Mr. Brown challenges again on appeal the trial court’s authority to take him into custody and order him to take a breathalyzer test, we do not reach this question.

      . Mr. Brown filed a petition for writ of habe-as corpus in this court. We granted the petition on March 31, 2016, and the trial court ordered Mr. Brown to be released on April 1, 2016.

      . This opinion issued four days before the trial court found Mr. Brown in direct' criminal contempt.

      . In Pole v. State, 198 So.3d 961, 965 (Fla. 2d DCA 2016), this court explained that because three justices joined in the portion of the Plank opinion concluding that there is no right to counsel in a direct criminal contempt proceeding as long as any incarceration does not exceed six months, one justice concurred in result only, and three justices dissented to that portion of the majority opinion, "the supreme court, apparently, did not resolve the certified conflict,” In contrast, six justices concurred that Mr, Plank's behavior did not constitute direct criminal contempt. Id.

      . We note that the trial court did not receive testimony from the person who conducted the breathalyzer test. It relied on Mr. Brown’s counsel’s statement that he smelled alcohol in the vicinity of Mr, Brown and his friend as well as on the prosecutor’s characterization of an off-the-record comment that Mr. Brown’s attorney made to her. Because it is not necessary to the resolution of this case, we do not address the constitutional implications of the trial court’s reliance on such information to impose a criminal judgment and 'sentence of incarceration. See amends. VI, XIV, § 1, U.S, ' Const.; Art. I, §§ 9, 16, Fla. Const.


text:
    Todd S. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2459
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017
    Todd S. Williams, Lake Butler, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 11, 2017, order denying Petitioner’s pro se motion for postconviction relief, filed in Case No. 2012-CF-1164-A, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA and EDWARDS, JJ., concur.


text:
    Felipe GARCIA-ROQUE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2334
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017
    Felipe Garda-Roque, Madison, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 9, 2017, order denying Petitioner’s pro se motion for postconviction relief, filed in Case No. 09-CF-006698-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Brian K. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2328
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017
    Brian K. Johnson, Malone, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 27, 2017, order denying Petitioner’s pro se motion for post-conviction relief, filed in Case No. 2015-CF-354, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and EISNAUGLE, JJ., concur.


author: PER CURIAM

text:
    Daniel J. CARSON, Appellant, v. Elizabeth A. CARSON, Appellee.
    Case No. 5D17-56
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017

      Cheri A. Russell, of Cheri A. Russell, P.A., Ocala, for Appellant.
    No Appearance for Appellee.
   PER CURIAM

Daniel J. Carson (“Former Husband”) appeals the trial court’s order directing him and Elizabeth A. Carson (“Former Wife”) to complete an eight-week cooperative parenting and divorce program together. The order was the result of Former Husband seeking relief from the trial court because Former Wife refused to allow him to have their children on his court-ordered weekends. Only Former Wife' was non-compliant with the court-ordered time-sharing plan. Accordingly, we reverse the portion of the order that required Former Husband to complete a parenting or divorce course, but we affirm the order insofar as it orders Former Wife to satisfactorily complete appropriate parenting and divorce courses.

The parties’ marriage was dissolved in 2008. The final judgment incorporated thejr mediated settlement agreement, which provided shared parental responsibility for their two minor children, with Former Husband to exercise timesharing every other weekend. In November 2015, the court entered a supplemental final judgment that reduced Former Husband’s timesharing to the first weekend of each month and modified his holiday timeshar-ing as well. Approximately one year later, Former Husband moved for Former Wife to be held in indirect civil contempt for her repeated, willful failure to comply with the amended timesharing schedule by refusing to allow Former Husband to have the children on his court-ordered schedule. Former Husband also sought make-up time-sharing and an award of attorney’s fees.

Following a hearing on Former Husband’s motion in 2016, the trial court issued an order directing both parties to complete a cooperative parenting and divorce program together. Neither party requested that program in their pleadings. In a later order, the trial court granted Former Husband’s motion for indirect civil contempt, awarded him 32 days of makeup parenting time with the children, and ordered Former Wife to comply with each and every term of the supplemental final judgment. This later ■ order restated the requirement for both parties to enroll in and jointly attend a cooperative parenting and divorce program. The trial court was aware that the parties live 209 miles from each other. Former Husband argues that it would create an undue hardship, as he would have to leave work at least three hours early on each Tuesday of the eight-week program.

Section 61.13(4)(c), Florida Statutes (2016), authorizes a court to order a parent who does not comply with a timesharing order to attend a parenting course. However, Former Husband was compliant with the timesharing order, even though he would not permit the children to engage in their desired activities on his designated weekends or holidays. At this stage of the proceedings, a compliant parent can be ordered to attend such a course only if there is a modification of a final judgment involving a parenting plan or modification of a timesharing schedule. § 61.21, Fla. Stat. (2016).

There had been a previous modification of the parties’ timesharing in connection with the entry of the 2015 supplemental final judgment. However, ■ there' was no further modification ordered in connection with granting Former Husband’s motion. Indeed, the trial court found Former Wife in contempt and ordered her to comply with the timesharing provisions set forth in the existing supplemental final judgment. The trial court had authority to order Former Wife to attend parenting classes. However, even though Former Husband’s relationship with, his children might benefit from attending a parenting class, the trial court lacked authority to order him to attend under these circumstances.

Accordingly, we affirm that portion of the order requiring Former Wife to attend appropriate parenting and divorce classes, but we reverse that portion of the order requiring Former Husband to attend.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

WALLIS, EDWARDS, and EISNAUGLE, JJ., concur. ■


author: PER CURIUM.

text:
    Jarmal N. BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4210
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora. Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIUM.

In ■ this Anders ■ appeal, Jarmal N. Brown (the defendant) appeals his judgment and sentence. We affirm because the defendant pled no contest and his sentence is legal. See Fla. R. App. P. 9.140(b). However, the judgment contains a scrivener’s error that must be corrected.

The defendant pled no contest to two offenses, including burglary- of an occupied structure under section 810.02(3)(c), Florida Statutes (2016),, but his judgment reflects a conviction for burglary of an occupied structure under section 810.02(3)(d). Accordingly,- we remand for correction of the judgment to reflect the defendant’s actual conviction. See Johnson v. State, 84 So.3d 452 (Fla. 5th DCA 2012).

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER’S ERROR.

PALMER, WALLIS and LAMBERT, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Canda ALSTON, Appellant, v. John VAZQUEZ, Appellee.
    Case No. 5D16-3917
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017
    Gary S. Israel, of Gary Israel, PA, Orlando, for Appellant.
    John Vazquez, Orlando, pro se.
   PER CURIAM

Canda Alston appeals a final judgment of paternity that included a child support order and parenting plan. We affirm the trial court’s thorough, thoughtful, and well-documented final judgment as to all but one of the issues Appellant raised. As part of the final judgment, the trial, court ordered that Appellant would have the income tax benefits of claiming the parties’ child as a dependent in even-numbered years, while Appellee, the child’s father, would have those same tax benefits in odd-numbered years. “The trial court had the discretion to transfer the dependency exemption to the noncustodial parent,” Vick v. Vick, 675 So.2d 714, 719 (Fla. 5th DCA 1996). However, the trial court erred in not conditioning each party’s right to claim the child as a dependent on being current with child support payments. See Salazar v. Salazar, 976 So.2d 1155, 1158 (Fla. 4th DCA 2008). We remand with instructions for the trial court to enter an amended final judgment containing that condition for the right to claim their child as a dependent for tax purposes in alternating years. In all other respects, the final judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

SAWAYA, ORFINGER, and EDWARDS, JJ., concur.


author: ORFINGER, J.

text:
    Elna F. MCINTOSH and Christopher Hallman, Appellants, v. WELLS FARGO BANK, N.A. and Bellalago and Isles of Bellalago Community Association, Inc., Appellees.
    Case No. 5D16-2189
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 18, 2017

      Andrew B. Greenlee, of Andrew B Greenlee, P.A., Sanford, and Anthony N. Legendre, II, of Law Offices of Legendre & Legendre, PLLC, Maitland, for Appellants.
    Kimberly S. Mello and Laura J. Bassini, of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker, of Greenberg Traurig, P.A., Ft. Lauderdale, for Appellee, Wells Fargo Bank, N.A.
    No Appearance for Appellee, Isles of Bellalago Community Association, Inc.
   ORFINGER, J.

Elna F. McIntosh and Christopher Hall-man (collectively “Borrowers”) appeal a final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A., following a non-jury trial. On appeal, Borrowers contend that the trial court erred by concluding that United States Department of Housing and Urban Development (HUD) regulations were not conditions precedent to bringing the foreclosure action, denying Borrowers’ motions for involuntary dismissal, and entering a final judgment of foreclosure. We agree and reverse.

In April 2010, Borrowers executed a note to FBC Mortgage, LLC, and secured its payment with a mortgage. The Federal Housing Administration (FHA) insured the loan. Eventually, Wells Fargo became the holder of the note and mortgage. In its operative complaint, Wells Fargo generally alleged that it had complied with all conditions precedent to filing the lawsuit. In their answer, Borrowers denied that Wells Fargo had satisfied all conditions precedent and asserted several affirmative defenses, including that Wells Fargo failed to comply with the HUD requirement to send proper delinquency notices under 24 C.F.R. § 203.602 (2016). Ultimately, the case proceeded to trial. After Wells Fargo rested its case, Borrowers moved for an involuntary dismissal, asserting several grounds, only one of which has merit— Wells Fargo’s failure to demonstrate compliance with applicable HUD regulations prior to filing suit.

The mortgage in this case specifically incorporates HUD regulations as limitations on acceleration and foreclosure. Paragraph 9 of the mortgage states, in pertinent part:

9. Grounds for Acceleration of Debt, (a) Default. Lender may, except as limited by regulations issued by the Secretary [of Housing and Urban Development], in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument ...
(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender’s rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.

Paragraph 6(B) of the note similarly provides:

(B) Default
If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest. Lender may choose not to exercise this option without waiving its rights in the event of any subsequent default. In many circumstances regulations issued by the Secretary will limit Lender’s rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, “Secretary” means the Secretary of Housing and Urban Development or his or her designee.

Wells Fargo concedes that pursuant to Palma v. JPMorgan Chase Bank, 208 So.3d 771 (Fla. 5th DCA 2016), compliance with certain HUD regulations is a condition precedent to bringing a foreclosure action when, as here, the regulations are incorporated into the terms of -the loan. In Palma, we held that a promissory note specifically incorporated HUD regulations by stating that “[i]f Borrower defaults ... then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require- immediate payment in full .... This Note does not authorize acceleration when not permitted by HUD regulations.” 208 So.3d at 773. Palma also held that the burden rests with the plaintiff to prove compliance with conditions precedent if asserted in the complaint and denied in the answer, but with the defendant if raised instead as an affirmative defense in the answer. Id. at 774. Here, Borrowers raised noncompliance with § 203.602 and the terms of the note and mortgage as both a specific denial and an affirmative defense. Thus, the burden remained on Wells Fargo to demonstrate compliance with the applicable HUD regulations. See id. at 775 (holding that specific denial that bank complied with all conditions precedent shifted burden back to bank to prove at trial that it complied).

Compliance with HUD regulations was a condition precedent to bringing a foreclosure action in this case. Wells Fargo’s argument that it substantially complied with the HUD regulations is unavailing. Accordingly, we reverse and direct the trial court to enter an order of involuntary dismissal.

REVERSED and REMANDED.

WALLIS and EDWARDS, JJ., concur.

      . This Court decided Palma after the trial and after Wells Fargo filed its initial brief in this case.

      . Compliance with HUD regulations 24 C.F.R. §§ 203.604 and 203.605 is also required.


text:
    Quayshaun HEATH, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2411
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017

      Quayshaun Heath, pro se, Petitioner,-.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the March 1, 2017, Order Denying Motion for Postconviction Relief in Duval County Circuit Court case number 16-2011-CF-8018-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Daniel HODGES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1911
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017.
    Daniel Hodges, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Appellant is warned that the filing of any other pleadings deemed by the court to be meritless may result in sanctions, including but not limited to a prohibition on pro se filings and a referral to the Department of Corrections for disciplinary action under section 944.279, Florida Statutes’. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


author: PER CURIAM^

text:
    Reganol COBB, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3352
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017.
    Reganol Cobb, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM^

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

WETHERELL, MAKAR, and WINOKUR, JJ., CONCUR. .


author: BERGER, J.

text:
    JUSTICE ADMINISTRATION COMMISSION, Petitioner, v. James R. JUPENA, Esquire and J.K., Father of C.C., a Child, Respondents.
    Case No. 5D17-559
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 22, 2017

      Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, of The Justice Administrative Commission, Tallahassee, for Petitioner.
    James R. Jupena, of Law Office of James R. Jupena, Altamonte Springs, for Respondent, James R. Jupena, Esquire.
    Wendie Michelle Cooper, of Guardian ad Litem Program, Sanford, for Guardian ad Litem.
    No Appearance for other Respondent.
   BERGER, J.

The Justice Administration Commission (JAC) petitions this Court for a writ of certiorari to quash the lower court’s “Order Approving Payment of Attorney’s Fees, Costs, or Related Expenses” entered on behalf of James R. Jupena, Esq., relating to his representation of J.K. (Father), the father of C.C., a child. Because the trial court’s order was entered in violation of section 27.5304(6)(a), Florida Statutes (2016), without the requisite findings required by section 27.5304(12), Florida Statutes (2016), we grant the petition.

Jupena was appointed by the trial court to represent Father, who was found to be indigent, in dependency proceedings as to Father’s four minor children, M.K., J.K., M.K., and A.K. Thereafter, the trial court proceeded to disposition as to the four children and directed Father to enter into a case plan. Following the disposition hearing, Jupena submitted a billing request to the JAC for the statutory initial flat fee of $800. See § 27.5304(6)(a)l., Fla. Stat. (2016). The JAC processed this billing and remitted payment to Jupena.

The following year, the trial court held the first judicial review of the dependency case as to M.K., J.K., M.K., and A.K. The trial court found Father was non-compliant with his case plan, and the case plan as to the four children was set for its next judicial review five months later. Following the hearing, Jupena submitted a billing request to the JAC for the flat fee amount of $200 for the second year of the dependency case. See § 27.5304(6)(a)2., Fla. Stat. (2016). The JAC processed this billing and remitted payment to Jupena.

While the dependency proceeding was pending, paternity of a fifth child, C.C., was being disputed by Father. At the same judicial review hearing regarding M.K, J.K., M.K., and A.K., the trial court found Father to be the legal parent of C.C. and entered an order appointing Jupena to represent Father in the dependency proceedings related to this child as well. As to C.C., the trial court held a disposition hearing, approved the case plan, and proceeded to disposition. Thereafter, Jupena submitted another billing request to the JAC for another initial flat fee of $800 for his representation of Father in the disposition proceeding as to C.C. The JAC rejected the billing on the basis that it had previously paid Jupena $1000 in accordance with his representation of Father in all of Father’s dependency eases. See § 27.5304(6)(a), Fla. Stat.

When the JAC. rejected the billing, Jupena filed a “Motion for Attorney’s Fees and In the Alternative, to Exceed Statutory Attorney Fee Limit.” In his motion, Jupena. acknowledged that C.C. had been added to Jupena’s existing representation of Father, and that Jupena sought the $800 as the statutory initial flat fee, or in the alternative, as extraordinary compensation. The JAC filed a response, explaining that section 27.5304(6)(a) precluded Jupena from receiving a second statutory initial flat fee of $800. The JAC also argued that Jupena’s motion violated his contract with the JAC and also failed to comply with section 27.5304(12) because Jupena had failed to provide the requisite documents, including his hourly billing, to justify his request for extraordinary compensation.

Thereafter, Jupena withdrew his motion and filed a second motion seeking the initial flat fee of $800 or, in the alternative, to exceed the statutory fee limit set forth in section 27.5304. His second motion was identical to the first, except that Jupena did not specifically request extraordinary compensation. The JAC objected, relying on section 27.5304(6). After a hearing on the matter, the trial court determined.the fee was “appropriate and reasonable” and entered an order directing the JAC to pay Jupena the additional $800 fee. The JAC now seeks review of that order.

' [2-4] “[T]o obtain a writ of certiorari, there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the ease (3) that cannot be corrected oh postjudgment appeal.” Dep’t of Child. & Fams. v. Carmona, 159 So.3d 165, 166-67 (Fla. 2d DCA 2015) (quoting In re Commitment of Reilly, 970 So.2d 453, 455 (Fla. 2d DCA 2007)). “A ruling constitutes ‘a departure from the essential requirements of the law’ when it amounts to ‘a violation of á clearly established principle of law resulting in a miscarriage of ‘justice.’” Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 457 (Fla. 1st DCA 2006) (quoting Combs v. State, 436 So.2d 93, 96 (Fla. 1983)). The elements of material injury and the absence of adequate remedy on appeal sérve as jurisdictional requirements for certiorari relief. Gonzalez v. State, 15 So.3d 37, 39 (Fla. 2d DCA 2009).

Section 27.5304(6)(a) provides the following for payment to private court-appointed counsel in dependency cases:

(6) For compensation for representation pursuant to a court appointment in a proceeding under chapter 39:
(a) At the .trial level, compensation for representation for dependency proceedings shall not exceed $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the-number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an adjudication of dependency, shall be completed by the trial attorney and is considered compensated by the flat fee for dependency proceedings.
1. Counsel may bill the flat fee not exceeding $1,000 following disposition or upon dismissal of the petition.
2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year following the date of appointment and each year thereafter as long as the case remains under protective supervision.
3. If the court grants a motion to reactivate protective supervision, the attorney shall receive the annual flat fee not exceeding $200 following the first judicial .review and up to an additional $200 each year thereafter.
4. If, during the course of dependency proceedings, a proceeding to terminate parental rights is initiated, compensation shall be as set forth in paragraph (b). If counsel handling the dependency proceeding is not authorized to handle proceedings to terminate parental rights, the counsel must withdraw and new counsel must be appointed.

(Emphasis added). The plain reading of section 27.5304(6)(a) precludes Jupena from seeking an additional initial flat" fee of $800 from the JAC for his representation of the Father as it relates to C.C. absent a pleading by Jupena and a finding by the trial court that the case required extraordinary or unusual effort. See § 27.5304(12), Fla. Stat. •

Section 27.5304(12) provides in relevant part:

(12) The Legislature recognizes that on rare occasions an attorney may receive a case that requires extraordinary and unusual effort.
(a) If counsel 'seeks compensation that exceeds the limits prescribed by law, he or she must file a motion with the chief judge for ah order approving payment of attorney fees in excess of these limits.

The purpose of this section is to “ensure that indigent defendants are not receiving incompetent and ineffective representation due to low fee rates.” Watts v. Just. Admin. Comm’n, 135 So.3d 357, 358 (Fla. 2d DCA 2013) (citing White v. Bd. of Cty. Comm’rs of Pinellas Cty., 537 So.2d 1376, 1379-80 (Fla. 1989)).

Under section 27.5304(12), when private court-appointed counsel files a motion seeking payment of attorney’s'-fees or extraordinary compensation, the motion must specify whether the JAC objects to any portion of the billing or to the sufficiency of the documentation, and the motion must include the JAC?s letters stating its objection. § 27.5304(12)(a)2., Fla. Stat. The attorney bears the burden to prove the entitlement to attorney’s fees, costs, or related expenses. Id, * at § 27.5304(12)(b)(l).

First, the trial court must determine whether “counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts.” Just. Admin. Comm’n v. Lenamon, 19 So.3d 1158, 1162 (Fla. 2d DCA 2009) (quoting § 27.5304(12)(d), Fla. Stat. (2007)); accord Makemson v. Martin Cty., 491 So.2d 1109, 1115 (Fla. 1986) (holding that trial court has “inherent power” to allow “in extraordinary and unusual cases” a departure from statutory fee guidelines “when necessary”).' The trial court is required to make findings that consider the time an attorney spent on the case and the impact of the case on the attorney’s availability to other clients. See Ally v. Just.Admin. Comm’n, 124 So.3d 1036, 1038 (Fla. 4th DCA 2013), rev, denied, 147 So.3d 520 (Fla. 2014) (citing Watts v. Just. Admin. Comm’n, 115 So.3d 431, 433 (Fla. 2d DCA 2013)). The trial court must also include its findings as to the number of hours “reasonably expended by the attorney to determine whether the fee award was confiscatory.” Ally, 124 So.3d at 1038 (citing Zelman v. Just. Admin. Comm’n, 78 So.3d 105, 107 (Fla. 1st DCA 2012)); accord Watts, 135 So.3d at 358. If the trial court finds the attorney has met his burden, the trial court may grant or award compensation up to two hundred percent of the applicable flat fee. See § 27.5304(12)(d), Fla. Stat.

Here, the JAC has established that the trial court’s order constitutes a departure from the essential requirements of the law for two reasons: first, under section 27.5304(6)(a), counsel is not entitled to an additional $800 flat fee for representing Father in the dependency case related to C.C. because the plain meaning of the statute precludes it; and second, to the extent counsel sought additional compensation pursuant to section 27.5304(12), the order fails to include the required findings regarding Jupena’s “extraordinary” time and effort or reasonable hours expended related to his representation of Father in the dependency proceedings related to C.C. Accordingly, we grant the petition and quash the order under review.

PETITION GRANTED.

SAWAYA and WALLIS, JJ., concur.

      . A petition for certiorari review is the appropriate vehicle to seek review of an order awarding fees to a private court-appointed attorney. See Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 928 n.3 (Fla. 2002); Ally v. Just. Admin. Comm'n, 124 So.3d 1036, 1039 n.1 (Fla. 4th DCA 2013); see also, e.g., Hagopian v. Just. Admin. Comm'n, 18 So.3d 625, 636-37 (Fla. 2d DCA 2009) (noting JAC’s challenge to trial court’s order directing JAC to pay an attorney an hourly rate with interim billings for complicated RICO case was properly raised in petition for certiorari review).

      . The JAC contract executed by Jupena states in Paragraph XVIII(6) that, "[i]n an ongoing Ch. 39 or Ch. 63, F.S., case, an additional child is not a new appointment or a new case for billing purposes.”

      . Although a transcript of the hearing does not appear in the record, it is not fatal to the JAC's claim because the error is apparent on the face of the order. See Hirsch v. Hirsch, 642 So.2d 20, 21 (Fla. 5th DCA 1994) (deciding that if error appears on face of the order at issue, failure to provide transcript is not fatal).


text:
    Javier MADERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4352
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 22, 2017
    James S. Purdy, Public Defender, and Allison A Havens, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences but do so without prejudice to Appellant filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) or 3.850 on his claim that the imposition of drug offender probation in this case is illegal. Appellant failed to preserve this claim for review on direct appeal by either contemporaneously objecting to the alleged sentencing error or by filing a motion pursuant to rule 3.800(b)(2). See Jackson v. State, 983 So.2d 562, 569 (Fla. 2008).

AFFIRMED.

COHEN, C.J., LAMBERT and EDWARDS, JJ., concur.