author: FERNANDEZ, J.

text:
    Luis Orlando Pizarro ORTIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-441
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Luis Orlando Pizarro-Ortiz, the defendant, appeals the trial court’s denial of Pizarro-Ortiz’s motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.850(b)(2). We reverse and remand.

The State charged sixteen-year old Pizarro-Ortiz in 1981 with first degree murder, armed robbery, and armed burglary. Pizarro-Ortiz pled guilty to second degree murder with a dangerous weapon and armed robbery with a deadly weapon. The trial court dismissed the armed burglary count. In 1982, the trial court sentenced Pizzaro-Ortiz to concurrent life terms on each count.

Pizarro-Ortiz filed a 3.850(b)(2) motion for post-conviction relief on October 15, 2015. He sought to vacate his life sentences on the authority of Miller, Graham, and Falcon. He argued that he was sixteen-years old when the offenses occurred and had been in prison for the last thirty-four years. Pizzaro-Ortiz contended that his life sentences were contrary to Graham, Miller and Falcon. He further argued that he should receive an individualized resentencing hearing pursuant to Falcon and chapter 2014-220, Laws of Florida— the new juvenile sentencing legislation. In addition, Pizarro-Ortiz argued that he was entitled to a determination as to whether he killed, intended to kill, or actually killed the victim, which would determine the minimum punishment he could receive under chapter 2014-220.

In response, the State argued that the life sentence for second-degree murder-did not violate Miller because it was discretionary. The State further argued, in reliance on the Fourth District Court of Appeal’s 2013 decision in Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013) that Pizarro-Ortiz was not entitled to relief under Miller or Graham because his sentences for the offenses included parole eligibility. In 2016, the trial court denied the motion for post-conviction relief, and Pizzaro-Or-tiz appealed.

Based on the Florida Supreme Court’s decision in Atwell v. State, 197 So.3d 1040 (Fla. 2016) and our recent decision in Miller v. State, 208 So.3d 834 (Fla. 3d DCA 2017), Pizzaro-Ortiz is entitled to judicial review and resentencing. We therefore reverse Pizzaro-Ortiz’s life sentences and remand to the trial court for the appropriate resentencing under sections 775.082(1)(b)(1), 921.1401, and 921.1402 Florida Statutes (2016).

Reversed and remanded with directions.

      . Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)(holding that the imposition of a mandatory life sentence without the possibility of parole for a defendant who commits a homicide while a juvenile is unconstitutional); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)(holding that a life sentence without the possibility of parole for a juvenile convicted of a non-homicide offense is unconstitutional); and Falcon v. State, 162 So.3d 954 (Fla. 2015).

      . In his initial brief, Pizarro-Ortiz requested this Court issue an opinion citing to Atwell and Landrum, in the event it denied Pizarro-Ortiz relief, so as to ensure that his case would be in the Atwell and Landrum pipelines before the Florida Supreme Court. The Florida Supreme Court has since decided At-well and Landrum. See Atwell v. State, 197 So.3d 1040 (Fla. 2016)(holding that under the existing parole process, imposing a mandatory sentence of life with parole on a juvenile violates Miller, and finding that the failure to provide juveniles with individualized consideration at sentencing and throughout the parole process renders such a sentence unconstitutional); Landrum v. State, 192 So.3d 459 (Fla. 2016)(holding that a discretionary life without parole sentence violates Miller).


source: Caselaw Access Project

author: ROTHENBERG, C.J.

license: Public Domain

text:
    Keon CHAMBERS a/k/a Keion Chambers, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1100
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017.
    Rehearing Denied August 17, 2017
    Keon Chambers a/k/a Keion Chambers, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   ROTHENBERG, C.J.

Keon Chambers a/k/a Keion Chambers (“the defendant”) appeals the trial court’s order: (1) denying his rule 3.800(a) motion to vacate or set aside what the defendant claims is an illegal sentence; and (2) prohibiting the defendant from filing any further pro se pleadings. Because the defendant’s arguments regarding the legality of the'sentences imposed is without merit, we affirm the portion of the trial court’s order denying the defendant’s motion to vacate or set aside his sentence. We, however, reverse the second portion of the trial court’s order as there is nothing in the record demonstrating that prior to prohibiting the defendant from filing any further pro se pleadings related to the instant case, the trial court followed the procedures required to impose such a restriction. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

Under Spencer, the Florida Supreme Court recognized the need to balance the court’s ability to devote its time and resources to legitimate, non-frivolous claims, with the litigant’s right of access to the courts. Spencer, 751 So.2d at 48. The Florida Supreme Court, therefore, empowered the courts to prohibit further pro se pleadings in appropriate circumstances, but only after providing the litigant with notice and an opportunity to be heard through the issuance of an order to show cause. Id. at 48. Not only does this procedure allow the litigant the opportunity to present an argument as to why he or she should not be prohibited from further filings, it also serves to generate a more complete record. Id. at 48-49.

Because there is nothing in the record to reflect that this procedure^ was followed, we reverse the portion of the trial court’s order prohibiting the defendant from filing further pro se pleadings in' this case without prejudice to the trial court, if it still wishes to preclude the defendant from filing further pro se pleadings in the instant case, to issue the appropriate notice and to provide the defendant with an opportunity to be heard.

Affirmed, in part; 'reversed, in part.


author: PER CURIAM.

text:
    FABRICA DE FIDEOS RIVOLI, S.A., Appellant, v. FAMEX INVESTMENTS LIMITED, Appellee.
    No. 3D17-10
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017.
    Dorta Law, and Matías R., Dorta, for appellant.
    Jones & Adams, P.A, and Matthew L. Jones, for appellee.
    Before LAGOA, SCALES and LUCK, JJ.
   PER CURIAM.

Fabrica de Fideos Rivoli, S.A., the defendant below, appeals a non-final order denying its motion to dismiss the instant action for lack of personal jurisdiction. Concluding that the trial court correctly applied the two-prong test for determining whether personal jurisdiction may be exercised over a nonresident defendant, we affirm. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989) (providing that personal jurisdiction over a nonresident defendant exists where: (1) the complaint alleges sufficient jurisdictional facts to satisfy Florida’s long-arm statute, section 48.193 of the Florida Statutes; and (2) the nonresident defendant has sufficient minimum contacts with Florida to satisfy constitutional due process concerns).

Affirmed.


author: LAGOA, J.

text:
    DMB INVESTMENT TRUST and SKB Investment Trust, Petitioners, v. ISLAMORADA, VILLAGE OF ISLANDS, a Florida municipality, Respondent.
    No. 3D16-2894
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017

      John A. Jabro, for petitioners.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Jeffrey L. Hochman (Fort Lauderdale), for respondent.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   LAGOA, J.

Petitioners, DMB Investment Trust and SKB Investment Trust (“Petitioners”), petition this Court for a writ of certiorari to quash a decision of the appellate division of the Sixteenth Judicial Circuit Court affirming a final order of an Islamorada, Village of Islands Code Compliance Hearing Officer. Because the appellate division of the circuit court properly applied the unambiguous provisions of the Islamorada, Village of Islands Code of Ordinances and Petitioners do not dispute that they were afforded procedural due process, we deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

The Petitioners own property located at 139 Gimpy Gulch Drive, Islamorada, Florida. Petitioners sought to install a swim buoy system adjacent to and waterward of the mean high water line of their property in order to provide themselves a protected swimming area. On March 2, 2015, the Florida Department of Environmental Protection issued a letter to the Petitioners authorizing the installation of the buoy system. The letter also stated that it did “not relieve you from the responsibility of obtaining other federal, state, or local authorizations that may be required for the activity.” On June 3, 2015, the United States Army Corps of Engineers issued a similar letter, authorizing the installation of the buoy system, but stating that “[tjhis Department of the Army permit does not give absolute authority to perform the work as specified on your application. The proposed work may be subject to local building restrictions.”

Jerry Sanders (“Sanders”), a Code Compliance Officer for appellee, Islamorada, Village of Islands (the “Village”), received a complaint about the buoy system. Sanders determined that no permit had been issued by the Village for the installation of the buoys. On July 9,2015, the Village sent a letter to Don Horton (“Horton”), who the Petitioners had hired to assist with permit applications, stating that the “buoys and rope system that were installed must be removed within seven (7) days of this action or Code Enforcement will occur.” The Village’s letter stated that a June 16, 2015, permit issued by the Village to the Petitioners solely authorized the removal of four concrete pier bases, and that it did not authorize the installation of a buoy system, “irrespective of what approvals have been received from the Army Corps of Engineers and the Department of Environmental Protection.” The buoy system was not removed.

On August 25, 2015, the Village issued a Notice of Warning to the Petitioners, notifying them that the property was in violation of Village ordinances. On November 3, 2015, the Village issued a Notice of Violation to the Petitioners. The Notice of Violation stated that the property was in violation of sections 30-681(b)(2) and 30-1543(a), (c) of the Village Code of Ordinances (“Village Code”), and that in order to bring the property in compliance with the Village Code, the Petitioners needed to remove the buoy system.

The Petitioners did not remove the buoy system, and the matter proceeded to a code compliance hearing in front of a Hearing Officer on December 15, 2015. At the hearing, Sanders testified that no permits had been submitted for the buoy system and that the Petitioners needed to remove the system in order to gain compliance. Horton testified that a building official for the Village told him that a permit was not needed for the buoys. Horton also testified that prior to submitting the application for the June 16, 2015, permit to remove the concrete pier bases he obtained approval for the buoy system from the Army Corps of Engineers and the Department of Environmental Protection.

On January 27, 2016, the Hearing Officer entered a Findings of Fact, Conclusions of Law, and Amended Order (the “Final Order”). The Hearing Officer found the Petitioners “to be in violation of Section 30-1543(a) and Section 30-1543(c) of the Village Code, entitled, ‘Shoreline environmental and development criteria,’ and Section 30—681(b)(2) of the Village Code, entitled, ‘Purpose; uses generally; districts established’ by installing a rope and buoy system without a permit from the Village.” The Petitioners were ordered to remove the buoy system within sixty days.

The Petitioners appealed to the appellate division of the circuit court. The Petitioners argued that the Final Order was “erroneously based upon the very general provisions of Section 30-681(b)(2),” and that pursuant to rules of statutory construction, the Hearing Officer was instead required to apply the more specific provision of section 30-1543, which specifically enunciates shoreline environmental and development criteria and requires approval only from the Army Corps of Engineers and the Department of Environmental Protection. Indeed, the Petitioners asserted that section 30-i543(c) excluded “any other permitting requirements.”

The circuit court found that the Hearing Officer applied section 30-681(b)(2) correctly, and affirmed the Hearing Officer’s ruling that the buoy system was in violation of section 30-681(b)(2). With regard to section 30-1543, however, the circuit court found that the Petitioners, complied with section 30-1543(c) because they obtained approval from the Army Corps of Engineers and the Department of. Environmental Protection, and therefore reversed the Hearing Officer’s ruling that the Petitioners were in violation of sections 30-1543(a) and (c).

The Petitioners then filed a petition for writ of certiorari in this Court, seeking to quash that part of the circuit court’s decision finding them in violation of section 30-681(b)(2).

II. ANALYSIS

“The standard governing the disposition of a petition for second-tier certio-rari in a district court is narrow: ‘[T]he district court must determine whether the decision of the circuit court ... is a departure from the essential requirements of law resulting in a miscarriage of justice.’” Dep’t of Highway Safety & Motor Vehicles v. Fernandez, 114 So.3d 266, 269-70 (Fla. 3d DCA 2013) (quoting Nader v. Fla. Dep’t of Highway Safety and Motor Vehicles, 87 So.3d 712, 725 (Fla. 2012)). A district court’s analysis of whether a circuit court’s decision constitutes a departure from the essential requirements of the law is limited to whether the parties were afforded procedural due process and whether the circuit court applied the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995). District courts should consider the seriousness of the error involved, only granting certiorari in the “few extreme cases where the appellate court’s decision is so erroneous that justice requires that it be corrected.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1094 (Fla. 2010) (quoting Combs v. State, 436 So.2d 93, 95 (Fla. 1983)).

Because a second-tier certiorari proceeding “cannot be used to grant a second appeal to correct the existence of mere legal error,” the Florida Supreme Court has cautioned that “a district court should exercise' its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Custer, 62 So.Sd at 1092-93; accord Sutton v. State, 975 So.2d 1073, 1081 (Fla. 2008) (stating that “[a] departure from the essential requirements of the law is not mere legal error, but instead, involves a ‘gross miscarriage of justice’ ”).

Where the issue before the circuit court involves statutory construction, a writ of certiorari may be . appropriate where the circuit court does not apply the plain and unambiguous language of the relevant statute, resulting in an egregious error. See Nader, 87 So.3d at 723 (“[A] district court may grant a writ of certiorari after determining that the decision is in conflict with the relevant statute, so long as the legal error is also ‘sufficiently egregious or fundamental to fall within the limited scope’ of certiorari jurisdiction.” (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003))); see also Fernandez, 114 So.3d at 272 (holding that circuit court’s failure to apply statute according to its clear and unambiguous terms amounted to failure to apply clearly established law); Justice Admin. Comm’n v. Peterson, 989 So.2d 663, 665 (Fla. 2d DCA 2008) (“When the circuit court does not apply the plain and unambiguous language of the relevant statute, it departs from the essential requirements^ of law.”); Orange Cty. v. Lewis, 859 So.2d 526, 529 (Fla. 5th DCA 2003) (granting petition for certiorari where circuit court ignored plain language of Orange County Code).

Here, the Petitioners argue that the circuit court failed to properly apply the rules of statutory construction in its review of the Final Order. Specifically, the Petitioners assert that the circuit court failed to apply the rule of statutory construction that a specific statute covering a particular subject area controls over a more general statute.

Legislative intent is the polestar that guides a court’s statutory construction analysis, and “[t]o discern legislative intent, a court must look first and foremost at the actual language used in the statute.” Larimore v. State, 2 So.3d 101, 106 (Fla. 2008). “It is a fundamental principle of statutory construction that where the language of a statute is plain and unambiguous there is no occasion for judicial interpretation.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992). “The Legislature must be understood to mean what it has plainly expressed and this excludes construction. The Legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.” Id. (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918)); see also Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules , of statutory construction to ascertain intent.” (citation omitted)); Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931))).

“In ascertaining the legislative intent, a court must consider the plain language of the' statute, give effect to all statutory provisions, and construe related provisions in harmony with one another.” See Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003); see also Forsythe, 604 So.2d at 455 (“Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”); Howarth v. City of De Land, 117 Fla. 692, 158 So. 294, 298 (1934) (“The courts, in construing a statute, must, if possible, avoid such construction as will place a particular statute in conflict with other apparently effective statutes covering the same general field.”).

While the Petitioners are correct that an accepted rule of statutory construction provides that “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms,” McKendry v. State, 641 So.2d 45, 46 (Fla. 1994), this rule applies when statutes are in conflict with each other. See Fla. Virtual Sch. v. K12, Inc., 148 So.3d 97, 102 (Fla. 2014) (“When reconciling statutes that may appear to conflict, the rules of statutory construction provide that a specific statute will control over a general statute ....”); Palm Beach Cty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla. 2000) (“[W]here two statutory provisions are in conflict, the specific statute controls the general statute.”); McKendry, 641 So.2d at 46 (applying rule that more specific statute is considered an exception to the general statute where statutes contain conflicting provisions).

A comparison of the plain language of section 30-681(b)(2) and section 30-1543(c) indicates that the two sections are not in conflict with each other. Section 30-1543(c) addresses state and federal approval for “[a]ll development waterward of the mean high-water line,” and requires approval by the U.S. Army Corps of Engineers and the Florida Department of Environmental Protection. Section 30—681(b)(2), in turn, addresses the Village’s local permitting requirements, i.e, the requirement to obtain use permits for “[u]ses not specifically listed herein as a permitted or conditional.” One section does not necessarily exclude the other, nor does one render the other meaningless. Giving effect to both sections and read in harmony with one another, the most obvious reading of the two sections is that when land use pursuant to section 30-681(b)(2) involves development waterward of the mean high-water line, section 30-1543(c) requires that state and federal approval must also be obtained.

“If the language of the statute is clear and unequivocal, then the legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended.” Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla. 1960). Here, both the Village and the Petitioners agree that the relevant sections of the Village Code are unambiguous. Accordingly, the circuit court was obligated to apply the plain language of the Village Code. See Forsythe, 604 So.2d at 454; Daniels, 898 So.2d at 64; Holly, 450 So.2d at 219.

III. CONCLUSION:

Because sections 30-681(b)(2) and 30-1543(c) of the Village Code do not conflict with each other, the circuit court was not required to apply the rule of statutory construction instructing that a more specific statute controls over a more general one in order to harmonize the two sections. The circuit court properly construed the Village Code in a manner consistent with its plain and unambiguous language. As the circuit applied the correct law and the Petitioners do not dispute that they were afforded procedural due process, we deny the petition for certiorari.

Petition denied.

      . Horton is a licensed contractor, certified building official, and former director of code enforcement for the Village.

      . Section 30-681(b)(2) provides:
      Sec. 30-681.'—Purpose; uses generally; districts established.
      (a) Purpose. In order to ensure that all development is consistent with the goals and objectives of the comprehensive plan, it is necessary and proper to establish a series of zoning districts to establish use and bulk regulations that control the use of land in each district consistent with this chapter. All development within each zoning district shall be consistent with the purposes stated for that district in this division.
      (b) Uses generally.

      (1) No structure or land in the village shall hereafter be developed, used or occupied unless expressly authorized in a zoning district in this division.
      (2) Uses not specifically listed herein as a permitted or conditional use are prohibited, unless the director of planning and development services determines by written interpretation that the proposed use exhibits similar characteristics to a listed permitted use, in which case the proposed use shall be permitted in the same manner as the use with similar characteristics.

      . Section 30-1543(a),(c) provides:
      Sec. 30-1543.—Shoreline environmental and development criteria.
      (a) The purpose of this section is to allow for reasonable access between the land and water, protect marine and terrestrial natural resources, assure good water quality, provide a consistent community character, protect structures from the effects of long-term sea level rise, protect beaches and shores from erosion, avoid adverse impacts on navigation and provide secure boat storage.

      (c)All development waterward of the mean high-water line shall require approval by the U.S. Army Corps of Engineers and state department of environmental protection.

      . Petitioners do not argue that the circuit court failed to afford them procedural due process.

      . The Petitioners also assert, in a one-sentence argument, that the circuit court failed to find that the notice of violation was defective as to the remedy for compliance under section 30-681(b)(2) because the notice did not request that the Petitioners apply for the required permits for the buoy system, but instead only mandated removal. This Court, however, cannot consider the issue because it was not raised by the Petitioners in their brief before the circuit court. See State Farm Fire & Cas. Ins. Co. v. Best Therapy Ctr., 69 So.3d 1059, 1061 (Fla. 3d DCA 2011) (stating that review of decision rendered by the appellate division of circuit court is limited to issues raised in the circuit court appeal).


text:
    Dale BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1902
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   LAGOA, J.

Dale Brown (“Brown”) appeals from an order revoking his probation and sentencing him to three years in state prison followed by fifteen years of probation. Because Brown failed to raise his claim of sentencing error below, we affirm without prejudice to Brown filing an appropriate motion under Florida Rule of Criminal Procedure 3.800(a).

I. FACTUAL AND .PROCEDURAL HISTORY

In 2002, Brown pled guilty in case numbers F01-14494, F01-19356, and F01-19357 to numerous counts of lewd or lascivious molestation against a victim under the age of twelve and lewd or lascivious conduct, with a victim under the age of sixteen. Brown was sentenced to three years in prison followed by fifteen years of probation.

In^ 2015, the State filed an affidavit of violation of probation claiming that Brown had been arrested for solicitation to..commit lewd or lascivious conduct and thereby violated a term of his probation. The trial court subsequently conducted a probation violation hearing and found that Brown violated his probation. Of significance to this appeal, the trial court at the sentencing hearing orally pronounced the following two different sentences:

I think a fair sentence would be three years in Florida [sjtate prison for the defendant followed by fifteen years of probation .... I think that would be a fair sentence right .now ....
So that is my sentence, 3 years Florida [s]tate prison, credit for time served, followed by 10 years of probation.

The written order revoking Brown’s probation and imposing sentence reflects that the trial court sentenced Brown in accordance with the first of its two oral pronouncements—three years in state prison followed by fifteen years of probation. Brown appeals from the final order revoking his probation and imposing sentence.

II. ANALYSIS

On appeal, Brown argues that because the trial court’s oral pronouncement of two different sentences is ambiguous and internally inconsistent, this Court should either impose the lower sentence or remand for the trial court to clarify the sentence.

It is well established that “a court’s oral pronouncement of sentence controls over the written document.” Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003); accord Williams v. State, 957 So.2d 600, 603 (Fla. 2007). For that reason, “[w]here there is an ambiguity in the oral pronouncement, the proper remedy is for the trial court to clarify' the sentence imposed.” Chapman v. State, 14 So.3d 273, 274 (Fla. 5th DCA 2009); see also Franklin v. State, 969 So.2d 399, 401 (Fla. 4th DCA 2007) (remanding trial court’s denial of post-conviction motion with diréctions to resolve conflict between written sentence and ambiguous, inconsistent oral pronouncements made at sentencing).

The State concedes that the- trial court orally pronounced two different sentences, one of which conflicts with the written sentenced imposed, and that clarification is required. The State asserts, however, that Brown’s failure to raise the error below precludes this Court from considering the issue on direct appeal, arid that the only remedy available to Brown is through a rule 3.800(a) motion. We agree. “A sentencing error may not be. raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” Fla. R. App. P. 9.140(e).

A written sentencing order that deviates from the oral pronouncement of sentence constitutes a “sentencing error” subject to rule 3.800(b). See Jackson v. State, 983 So.2d 562, 572 (Fla. 2008) (recognizing a written order which deviates from the oral pronouncement as a “sentencing error” subject to rule 3.800(b)). Here, it is undisputed that Brown did not raise a contemporaneous objection before the trial court at the time.of sentencing. Additionally, Brown did pot file a timely rule 3.800(b) motion in the trial court raising the inconsistency in the trial court’s oral pronouncement and the written sentence. Because Brown did not challenge his sentence in the trial court, this Court cannot address his claim on direct appeal.

' We find, however, that Brown may seek relief in the trial court by filing a legally sufficient motion pursuant to rule 3.800(a). See Williams, 957 So.2d at 601 (“[A] claim asserting a discrepancy between an oral and written sentence is cognizable in a rule 3.800(a) proceeding for correction of an illegal sentence.”); Lluis v. State, 187 So.3d 918 (Fla. 3d DCA 2016) (affirming defendant’s conviction and sentence without prejudice to the filing of a rule 3.800(a) motion where written sentence did not conform to oral pronouncements and stating that “the trial court must correct the written sentences pursuant to a Rule 3.800(a) motion”); Robertson v. State, 134 So.3d 548, 549 (Fla. 3d DCA 2014) (“Affirmed without prejudice to the filing of a Florida Rule of Criminal Procedure 3.800(a) motion to correct the sentence imposed to accurately reflect the trial court’s oral pronouncement.”); Sanders-Bashui v. State, 124 So.3d 1041, 1042 (Fla. 3d DCA 2013). (affirming defendant’s sentence on direct appeal without prejudice to her filing a rale 3.800(a) motion in the trial court where State conceded claim was meritorious but defendant did not challenge sentence in trial court).

As the State concedes that the written order does not conform to the trial court’s oral pronouncements, we affirm the trial court’s order revoking probation and the resulting sentence without prejudice to Brown filing in the trial court a legally sufficient motion under Florida Rule of Criminal Procedure 3.800(a).

Affirmed without prejudice.

      . Rule 3.800(b) permits the filing of a motion to correct "any sentencing error” during the time provided for the filing of a notice of appeal, or, if an appeal is pending, before the first brief is filed.


author: EDWARDS, J.

text:
    Cody Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-842
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017.
    Rehearing Denied August 25, 2017
    Cody Lee White, Raiford, pro se.
    No Appearance for Appellee.
   EDWARDS, J.

Cody. White appeals the summary denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.'We affirm as tó grounds one, two, three, four, six, and seven, However, we reverse, as to ground five because it is not conclusively refuted by the record. We remand to the .trial court either to attach records that conclusively refute ground five or to conduct an evidentiary hearing on that ground.

AFFIRMED in part; REVERSED in part; and REMANDED.

WALLIS and EISNAUGLE, JJ., concur.


author: BERGER, J.

text:
    HOUGH ROOFING, INC., Appellant/Cross-Appellee, v. DON FACCIOBENE, INC. and Digiacinto Holdings, LLC, Appellees/Cross-Appellants.
    Case No. 5D15-2878
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Rehearing Denied August 18, 2017
    See also 2017 WL 3091578.
    Ruth C. Rhodes, of Rhodes Law, P.A., Melbourne, for Appellant/Cross-Appellee.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee/Cross-Appellant Don Facciobene, Inc.
    No Appearance for Digiacinto Holdings, LLC.
   BERGER, J.

Hough Roofing, Inc. (HRI), a licensed subcontractor, appeals and Don Facciob-ene, Inc. (DFI), a licensed general contractor, cross-appeals the trial court’s order denying their respective motions for attorney’s fees after a non-jury trial on HRI’s breach of contract claim against DFI and DFI’s counterclaim against HRI. Because HRI was the prevailing party on significant issues below, we reverse the order denying its request for attorney’s fees. As to DFI’s cross-appeal, we affirm.

The underlying case involved a breach of contract claim filed by HRI against DFI for DFI’s failure to pay HRI for roofing work it was subcontracted to perform and, in fact, completed, as well as a counterclaim filed by DFI against HRI for work performed to repair a leak in the roof due to faulty installation by HRI. The trial court denied both parties’ motions for attorney’s fees finding that the subcontract’s attorney’s fees provision cannot apply retroactively before the subcontract was executed and that when applied prospectively neither party prevailed on significant issues. This was error.

Although there may be circumstances where neither party is the prevailing party, that is not the case here. See Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1201 (Fla. 2009) (quoting Prosperi v. Code, Inc., 626 So.2d 1360, 1362 (Fla. 1993)); Hutchinson v. Hutchinson, 687 So.2d 912, 913 (Fla. 4th DCA 1997) (citing Lucite Ctr., Inc. v. Mercede, 606 So.2d 492 (Fla. 4th DCA 1992)) (finding that, in a breach of contract action one party must prevail in the absence of compelling circumstances).

At trial, HRI was the prevailing party based on the trial court’s finding that DFI breached the implied covenant of good faith and fair dealing and because HRI was entitled to recover damages when it had been paid nothing by DFI before that point. While DFI prevailed on its counterclaim, the $180 it was awarded was only a small fraction of its $7378.80 request, and it was not substantial enough to override the outcome on HRI’s complaint. See id. (quoting Prosperi, 626 So.2d at 1362); Scutti v. Daniel E. Adache & Assocs Architects, P.A., 515 So.2d 1023, 1024 (Fla. 4th DCA 1987); Kirou v. Oceanside Plaza Condo. Ass’n, 425 So.2d 650, 651 (Fla. 3d DCA 1983).

Accordingly, we reverse the order denying HRI’s motion for attorney’s fees and remand for the trial court to determine the amount. In all other respects, we affirm.

AFFIRMED, in part, REVERSED, in part, and REMANDED. .

WALLIS and LAMBERT, JJ., concur.

      . In a separate appeal regarding the same subcontract and parties, we, concluded that the subcontract applied retroactively. Don Facciobene, Inc. v. Hough Roofing, Inc., No. 5D15-1527, 225 So.3d 323, 2017 WL 3091578 (Fla. 5th DCA July 21, 2017). Based on that holding, the trial court abused its discretion in determining that neither party prevailed under the attorney’s fees clause.


text:
    DON FACCIOBENE, INC., Appellant/Cross-Appellee, v. HOUGH ROOFING, INC., and Digiacinto Holdings, LLC, Appellees/Cross-Appellants.
    Case Nos. 5D15-1527
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Rehearing Denied August 18, 2017

      Allan P. Whitehead, of Frese,. Hansen, Anderson, Anderson, Heuston & Whitehead, . P.A., Melbourne, for Appellant/Cross-Appellee.
    Ruth C. Rhodes, of Rhodes Law, P.A., Melbourne, for Appellee/Cross-Appellant, Hough Roofing, Inc..
    No Appearance for Digiacinto Holdings, LLC.
   BERGER, J.

Don Facciobene, Inc. (DFI), a licensed general contractor, and its subcontractor, Hough Roofing, Inc. (HRI), appeal the amended final judgment entered by the trial court on HRI’s breach. of contract claim and DFI’s counterclaim after a non-jury trial. DFÍ asserts, inter alia, that the trial court err,ed in finding that its subcontract with HRI did not .apply retroactively and that, consequently, HRI was barred from receiving any payment at all due to noncompliance with the conditions precedent to progress payments and final payment in section '8 of the subcontract. HRI filed a.cross-appeal seeking, inter alia, payment for the full value of its subcontract. We agree with DFI that the trial court erred in failing to apply the subcontract retroactively. However, we find no merit in DFI’s argument that HRI was barred from receiving payment for failing to comply with conditions precedent. To the contrary, we agree with HRI on its cross-appeal and conclude it was entitled to the full value of its subcontract, minus certain setoffs. Accordingly, we reverse the amended final judgment. '

In late 2010, DFI contracted with Digia-cinto Holdings, LLC, (Owner) to perform various renovations to a house in Melbourne, Florida, known locally as the Nannie Lee House or the Strawberry Mansion (Mansion), as part of Owner’s preparations to open a restaurant on the premises. The Mansion, erected in 1905, needed a new roof. As general contractors are not permitted to place a new roof on an existing structure, DFI subcontracted the roofing work to HRI, a licensed roofing subcontractor. HRI provided an estimate and proposed statement of work to DFI in mid-March 2011. DFI’s project manager, Jim Monarchy, signed. HRI’s proposal on April 5, 2011, as well as an additional expanded proposal on April 11, 2011. The proposals stated that payment was due on completion. HRI began work on the roof on April 15, 2011. However, the parties did not actually sign the subcontract until June 8, 2011, and, by that time, the project was nearly complete. The subcontract price was $21,051.

Under section 8 of the subcontract, HRI was due progress payments, minus a ten percent retainage, for work completed in a particular month on the twentieth day of the following month. Final payment- was not due until thirty days after the completion of the entire renovation. Monarchy testified that the final payment amounted to the payment of the accrued teii percent retainage. Section 8 of the subcontract also imposed several conditions precedent to progress payments and final payments. For progress payments, DFI had tó (1) receive payment from Owner for HRI’s work that was due for the progress payment and (2) HRI had to provide, upon request from DFI, a sworn statement listing the parties who furnished labor and materials to HRI , with their names and addresses and documentation showing that HRI paid them. The conditions precedent to final payment included the conditions precedent for progress payments and additional requirements that HRI’s work was at least ninety-eight percent complete and that HRI submit unspecified closeout documents to DFI for approval and provide a final lien waiver and release to DFI.

HRI had mostly finished its work by the end of May 2011, and on Juñe 8, 2011, it submitted its first “final” invoice for $22,370. Due to disputes over some of HRI’s charges, DFI never paid HRI anything for its work on the Mansion even though it received payment for HRI’s work from Owner on July 15, 2011, final payment for the entire project from owner on December 21, 2011, and concluded the renovations on December 30, 2011. As a result, a claim of lien was filed against the property, and on December 6, 2011, HRI filed its complaint for breach of contract against DFI and Owner. On December 27, 2011, DFI notified HRI that Owner had discovered a leak in the roof. Despite this, Owner refused to give HRI permission to come onto the premises and repair the leak until May 2012. Consequently, DFI undertook repairing the roof, without a roofing license, and filed a counterclaim seeking damages for the estimated cost of repairing the leak. DFI also answered HRI’s breach of contract claim by asserting, as an affirmative defense, noncompliance with unspecified conditions precedent.

The case proceeded to trial, at which both parties presented expert witness testimony concerning the leak. DFI’s expert, Luke Miorelli, testified that while most of the roof was installed correctly, there were potential problems with the roof installation on the south and west dormers and estimated repairs would cost $7378.80. HRI’s expert, Joseph Horschel, testified that only the portion of the roof with the active leak needed to be redone and estimated that the issue could be fixed by two laborers working about six hours each.

On April 7, 2015, the trial court issued its amended final judgment. It found that both parties did not sign the subcontract until June 8, 2011, and that by that point, HRI’s performance was more than ninety percent complete. The trial court determined that “to retroactively apply the language to the work performed prior to the Contract being fully executed is not required since the total work called for by the Contract was substantially performed prior to the written Contract being signed.” The trial court ruled that DFI breached the implied covenant of good faith and fair dealing by cutting off communications with HRI and deciding not to pay HRI in late June 2011. For damages, the trial court awarded HRI the uncontested charges of $10,720 for the metal roofing panels, $4100 for the plywood sheathing, $2635 for the thirty-one pitch pockets, and $2333.50 for the flat roof and base sheet. After offsetting the $1440 HRI owed DFI for the crane rental and the ten percent retainage of $1978.85, the trial court ruled that DFI should have paid HRI $16,369.65 in July 2011. The trial court further found that DFI could not recover on the unlicensed repair work it performed on the roof and that its expert’s testimony was not credible on the cost to repair the leak. The trial court found that HRI’s expert’s testimony was credible on that point and awarded DFI only $180 on the counterclaim based on six hours of labor by two workers being paid $15 per hour. It also awarded DFI an offset for the $750 cost of bonding the lien off the property resulting in a $15,439.65 award in favor of HRI plus postjudgment interest. The trial court further ruled that HRI was barred from recovering the balance of the contract price because it did not comply with the conditions precedent to final payment.

We find multiple errors in the amended final judgment that warrant reversal. First, the trial court’s decision not to apply the subcontract retroactively was error in light of the merger clause found in section 18 of the subcontract. The merger clause requires retroactive application because it acts to replace the original contract with the new one. See Katz v. Fifield Realty Corp., 746 F.Supp.2d 1265, 1269 (S.D. Fla. 2010); Aly Handbags, Inc. v. Rosenfeld, 334 So.2d 124, 126 (Fla. 3d DCA 1976) (“The well established rule of law is that a contract may be discharged or extinguished by merger into a later contract entered into between the parties in respect to the same subject which replaces the original contract.” (citing 7 Fla. Jur. Contracts § 166 (1956))). Here, failing to apply the subcontract retroactively resulted in HRI being barred by the conditions precedent from collecting the final payment but not being barred from receiving a progress payment for work performed before the subcontract was executed.

DFI asserts that applying the subcontract retroactively will bar HRI from receiving any payment at all due to HRI’s failure to comply with the conditions precedent. We disagree. The fact that the subcontract applies retroactively does not mean that HRI is barred from receiving payment by the conditions precedent to progress payments and. final payment in section 8 of the subcontract. In its complaint, HRI alleged that it had “fully performed all of its obligations under the Contract or has been excused from performance.” In its amended answer, DFI asserted, as an affirmative defense, that HRI “has failed to allege, nor can it establish that it had meet [sic] each and every condition precedent to recovering payment in this cause pursuant to its Complaint.” Contrary to the requirements in Florida Rule of Civil Procedure 1.120(c), DFI did not specify which conditions precedents HRI did not comply with or how HRI failed to comply with them. Consequently, DFI’s answer to the complaint failed to preserve its right to demand proof that HRI complied with the conditions precedent to progress payments and final payment. See Fla. R. Civ. P. 1.120(c); Deutsche Bank Nat’l Tr. Co. v. Quinion, 198 So.3d 701, 703-04 (Fla. 2d DCA 2016) (“[T]o construct a proper denial under the rule, a defendant must, at a minimum, identify both the nature of the condition precedent and the nature of the alleged noncompliance or nonoccurrence.”); Bank of Am., Nat'l Ass’n v. Asbury, 165 So.3d 808, 810-11 (Fla. 2d DCA 2015); Cooke v. Ins. Co. of N. Am., 652 So.2d 1154, 1156 (Fla. 2d DCA 1995); Paulk v. Peyton, 648 So.2d 772, 774 (Fla. 1st DCA 1994).

Second, while awarding HRI the uncontested charges of $10,720 for the metal roofing panels, $4100 for the plywood sheathing, and $2635 for the thirty-one pitch pockets was appropriate, the trial court should have also awarded HRI> the ten percent retainage, $2600 out of the $3590 charged for the flat roof and base sheet installation, and $275 for the eleven torch patches. Moreover, because this case involves liquidated damages, the trial court also erred in failing to award prejudgment interest from July 20, 2011, for the progress payment and January 29, 2012, for the final payment. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214-15 (Fla. 1985); Metro. Dade Cty. v. Bouterse, Perez & Fabregas Architects Planners, Inc., 463 So.2d 526, 527 (Fla. 3d DCA 1985) (citing Jockey Club, Inc. v. Bleemer, Levine & Assocs. Architects & Designers, Inc., 413 So.2d 433, 434 (Fla. 3d DCA. 1982)). Finally, although the trial court was correct in offsetting the award by $1440 for the crane rental,, and $180 for DFI’s counterclaim, it erred in including an offset for the $750 cost DFI incurred in bonding off Hough’s lien. DFI did not request the $750 in bond costs as relief. Therefore, the trial court erred in granting relief outside the pleadings. See Wachovia Mortg. Corp. v. Posti, 166 So.3d 944, 945 (Fla. 4th DCA 2015) (citing. S. Indus. Tire, Inc. v. Chicago Indus. Tire, Inc., 541 So.2d 790, 791 (Fla. 4th DCA 1989)); Bank of N Y. Mellon v. Reyes, 126 So.3d 304, 309 (Fla. 3d DCA 2013); Cardinal Inv. Grp., Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002) (citing Pond v. McKnight, 339 So.2d 1149 (Fla. 2d DCA 1976)).

In total, HRI was owed $20,330, including retainage, before the offsets. Ninety percent of the total, $18,297, was due on July 20,. 2011. The ten percent retainage, $2033, minus the $1440 offset for the use of DFI’s crane and the $180 counterclaim results in a $413 final payment, which was due to HRI on January 29, 2012. In total, HRI was due $18,710 plus prejudgment interest running from the date specified above.

For the foregoing reasons, we reverse the amended final judgment and rémand for entry of a final judgment consistent with this opinion,

REVERSED AND REMANDED.

WALLIS and LAMBERT, JJ., concur.

      . In a separate appeal, HRI challenged the trial court’s order denying its motion for attorney’s fees for the trial proceedings. DFI filed a cross-appeal claiming that it was entitled to attorney’s fees. Hough Roofing, Inc. v. Don Facciobene, Inc., No. 5D15-2878, 225 So.3d 322, 2017 WL 3091223 (Fla. 5th DCA July 21, 2017).

      . This amount included $10,720 for metal roofing panels, $4100 for plywood sheathing, $3590 for the'flat roof and base sheet, $2635 for thirty-one pitch pockets, $275 for eleven torch patches, and $1050 for Owner requested items.

      . DFI disputed the $3590 charge for the flat roof and base sheet, seeking a credit reducing the charge to $2333.50, the eleven torch patches and the owner requested items. DFI also sought a credit for HRI’s use of DFI’s crane. On August 15, 2011, HRI amended its invoice to grant DFI credits of $1440 for the crane rental and $290 for the flat roof and base sheet installation. HRI also removed the owner requested items. These changes reduced HRI’s invoice to $19,590.

      . DFI's notice of termination of renovations stated that it had paid all of its subcontractors in full.

      . DFI transferred the lien from the property by posting bond. The bond cost DFI $750. Alan Hough, owner of HRI, canceled the lien in December 2011.

      . Owner first reported the leak to DFI in July 2011, but Monarchy was instructed by the owner of DFI not to mention the leak to HRI.

      . Miorelli is a licensed general contractor who designs and sometimes installs roofs but he is not certified or licensed in roofing.

      . Horschel is a licensed general contractor who also holds a roofing license.

      . After issuing the final judgment, the trial court granted DFI’s motion for reconsideration, in part, and amended the final judgment.

      . DFI’s argument that HRI did not request a progress payment in its complaint ignores the fact that the testimony during the trial established that the final payment consists of the ten percent retainage while the remaining ninety percent would normally be disbursed as progress payments. HRI attached a copy of its August 15, 2011 final invoice to its complaint, in which it requested full payment, thus implicitly requesting both the progress payment and final payment. This attachment is part of the complaint for all purposes. Fla. R. Civ. P. 1.130(b).

      . We take no position on the parties' other arguments regarding the conditions precedent to progress payments and final payment.

      . The record indicates that DFI acted, albeit wrongfully, under section 5 of the subcontract when it installed the flat roof base sheet without informing HRI. Any wrongful termination under section 5 is, pursuant to paragraph L, construed as a termination for the convenience of the general contractor. When this happens, paragraph L states that HRI is entitled only to compensation "for the reasonable cost of, and a reasonable overhead and profit on, the acceptable work performed and/or materials furnished ...." Hough testified that his. costs, overhead, and profit for the work performed on the flat roof and base sheet amounted to $2600,

      . The testimony at trial indicates that the eleven torch patches were necessary to conform the work to the contract plans and specifications and did not constitute an alteration or addition to the contract. See Acq. Corp. of Am. v. Am. Cast Iron Pipe Co., 543 So.2d 878, 880 (Fla. 4th DCA 1989) (citing City of Miami v. Nat Harrison Assocs., 313 So.2d 99, 100 (Fla. 3d 1975)).

      . We affirm the trial court’s factual findings on the counterclaim and its credibility determinations as to the expert witnesses as they were supported by competent, substantial evidence. See Flood v. Union Planters Bank, 878 So.2d 407, 411 (Fla. 3d DCA 2004) (citing Iden v. Kasden, 609 So.2d 54, 57 (Fla. 3d DCA 1992)); Ross v. J.E. Hill Contractors, 410 So.2d 638 (Fla. 1st DCA 1982).

      . Final payment was due thirty days after the renovations’were completed.


text:
    Ralph MONROE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4672
    District Court of Appeal of Florida, First District.
    Opinion filed July 24, 2017.
    Michael Ufferman, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Respondent.
   PER CURIAM.

As the issue raised in the instant petition has been considered and rejected by this Court in Andrews v. State, 218 So.3d 466 (Fla. 1st DCA 2017), we deny the petition. However, as we did in Andrews, we certify the following question as one of great importance:

WHETHER AN INDIGENT DEFENDANT WHO IS REPRESENTED BY PRIVATE COUNSEL PRO BONO IS ENTITLED TO FILE MOTIONS PERTAINING TO THE APPOINTMENT AND COSTS OF EXPERTS, MITIGATION ' SPECIALISTS, AND INVESTIGATORS EX PARTE AND UNDER SEAL, WITH SERVICE TO THE JUSTICE ADMINISTRATIVE COMMISSION AND NOTICE TO THE STATE ATTORNEY’S OFFICE, AND TO HAVE ANY HEARING ON SUCH MOTIONS EX PARTE, WITH ONLY THE DEFENDANT AND THE COMMISSION PRESENT.

PETITION DENIED.

LEWIS, ROBERTS, and BILBREY, JJ., CONCUR.


author: LOGUE, J.

text:
    Claudia V. MERINO, Appellant, v. PENNYMAC CORP., Appellee.
    No. 3D17-615
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017.
    Claudia V. Merino, in proper person.
    McCalla Raymer Leibert Pierce, LLC, and Raymond Hora (Orlando), for appel-lee.
    Before SUAREZ, LAGOA and LOGUE, JJ.
   LOGUE, J.

Appellee, PennyMac Corp., filed the underlying foreclosure action against appellant, Claudia V. Merino. Following the denial of her motion to quash service of process, Ms. Merino appealed. After the briefing was completed, PennyMac filed a notice in this Court indicating that it voluntarily dismissed the underlying action without prejudice and filed a release of lis pendens in the trial court. Ms. Merino has filed no response to this notice. In light of the fact that the underlying action has been voluntarily dismissed, we dismiss this appeal as moot.

Dismissed.


author: EMAS, J.

text:
    Roberto Suarez LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1998
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Rehearing Denied July 26, 2017
    George J. Vila, P.A., and George J. Vila, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and LOGUE, JJ.
   ON MOTION FOR REHEARING

EMAS, J.

We deny appellant’s motion for rehearing, withdraw our previous opinion, and substitute the following in its stead.

Roberto Suarez Lopez was a passenger in a vehicle that was improperly parked in a no parking zone. A police officer approached the passenger side of the vehicle and asked the driver for his driver’s license and registration. After noticing that Lopez, the passenger, was exhibiting odd behavior and appearing nervous and shaking, the officer directed Lopez to exit and step to the rear of the vehicle. The officer then asked the driver to exit through the passenger side of the vehicle. As the driver was complying, Lopez “took off’ from the scene in a full sprint. As Lopez ran, the officer observed Lopez take from his pocket a baseball-sized object, wrapped in a white napkin, throw it over a fence, and keep running.

The officer gave chase, eventually catching'and arresting Lopez. The officer recovered the object, which was later determined to be cocaine. Lopez was charged with' possession with intent to deliver cocaine, tampering with evidence, and resisting an officer without violence.

Lopez filed a motion to suppress evidence. Lopez concedes that the officer had the authority to order Lopez out of the vehicle. Lopez contends, however, that once Lopez exited the vehicle, he was free to leave and that, in the absence of reasonable suspicion, the officer could not lawfully require Lopez to remain at the scene for the duration of the traffic stop. Lopez contends that the action of the officer in detaining Lopez, by ordering him to remain at ■ the rear of the vehicle, violated the Fourth Amendment. The trial court denied the motion to suppress. Thereafter, Lopez entered a negotiated plea, reserving the right to appeal the dispositive order denying his motion to suppress.

In D.N. v. State, 805 So.2d 63, 65 (Fla. 3d DCA 2002), we held that “in order to protect officer safety, a law enforcement officer conducting a traffic stop may order any passenger, as well as the driver, to exit the vehicle during the traffic stop.” (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). Such a minimal intrusion does not violate the reasonableness requirement of the Fourth Amendment, when balanced against the competing interest in officer safety and the need for the officer to control-the traffic stop. We conclude that the same interest of officer safety compels the conclusion that an officer may order the exiting passenger to remain at the scene for the duration of the traffic stop. To hold otherwise would not simply thwart this interest, but would increase the potential danger to the officer. A passenger whose movements at the scene cannot be restricted would be free not simply to leave the scene, but also to reposition himself to any location at the scene (for exainple, directly behind the officer), requiring the officer to divide his attention to monitor the movements and actions of both driver and passenger, while also conducting and completing the traffic stop within a reasonable time. This potential danger is magnified if multiple passengers are directed to exit the vehicle but whose movements thereafter cannot lawfully be restricted pending completion of the traffic stop.

Lopez urges us to follow the Fourth District’s decision in Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999). In that case, Wilson was a passenger in a vehicle stopped for a traffic violation. Once the vehicle was stopped, Wilson exited the vehicle and began walking toward a bar located only a few feet away. The officer stopped Wilson from entering the bar and ordered him to return t.o and remain inside the vehicle during the traffic stop. Wilson complied and later on during the stop, the officer observed Wilson trying to conceal a pipe (containing marijuana) in the floorboard of the vehicle. During a subsequent search, cocaine was found on his person.

Wilson was charged with possession of cocaine, marijuana and drug paraphernalia. He' moved to suppress the evidence, contending that, absent reasonable suspicion, the officer could not order a passenger to return to the stopped vehicle. The trial court denied the motion to suppress.

The Fourth District reversed and, distinguishing between the driver of a lawfully stopped vehicle and its passenger, observed:

[A] command preventing an innocent passenger from leaving the scene of.a traffic stop to continue on his independent way is a greater intrusion upon personal liberty than an order simply directing a passenger out of the vehicle. Such an arbitrary interference with the freedom of movement of one who is not suspected of any illegal activity whatsoever cannot be classified as a de minim-is intrusion.”

Id. at 1111-12.

The court held:

[A] police officer conducting • a lawful stop,may not, as a matter of course, order a passenger who has left the stopped vehicle ,to return to and remain in the vehicle until completion of the stop. The officer must have an articula-ble founded suspicion of criminal activity or a reasonable belief that the passenger poses a. threat to the safety of the officer, himself, or others before ordering the passenger to return to and remain in the vehicle.

Id. at 1113.

The United States Supreme Court, in Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) and Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) have addressed this question and have determined that the Fourth Amendment is not violated under these circumstances.

As the Supreme Court observed in Brendlin:

It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), we held that dur-mg a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415, 117 S.Ct. 882; cf. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that “ ‘{t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.’” Wilson, supra, at 414, 117 S.Ct. 882 (quoting Michigan v. Summers, 452 U.S. 692, 702-703, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)). What we have said in these opinions probably reflects a societal expectation of “‘unquestioned [police] command’” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414, 117 S.Ct. 882.

Brendlin, 551 U.S. at 258, 127 S.Ct. 2400.

In Johnson, the Court reaffirmed its Fourth Amendment holding ⅛ in Brendlin:

For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.

Johnson, 555 U.S. at 327, 129 S.Ct. 781.

We decline Lopez’s invitation to follow Wilson. Although' our prior decision in D.N. did not expressly reach the discrete issue raised here, we 'Conclude .that the rationale for our decision in D.N., together with, the United States Supreme Court’s decisions in Brendlin and .Johnson, lead inexorably to the conclusion that a police officer, consistent with the reasonableness requirement of the Fourth Amendment, may order a passenger to exit a lawfully stopped vehicle and may detain the passenger at the scene, during the completion of the traffic stop. Qur holding in. the instant case is consistent with, and supported by, the. decisions and analyses of two of our sister courts who have also addressed this issue. See Presley v. State, 204 So.3d 84 (Fla. 1st DCA 2016) (review granted, SC16-2089, oral argument held June 7, 2017); Aguiar v. State, 199 So.3d 920 (Fla. 5th DCA 2016) (en banc).

Affirmed.

      . The officer testified he directed the driver to exit through the passenger side só he would be better able to see if the driver had any weapons on him.

      . We note, however, that the length of the detention may convert an otherwise reasonable temporary detention into an unreasonable one:
      If either the stopping of the car, the length of the passenger's detention thereafter, the scope of investigation directed at the passenger, or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit.
      6 W. LaFave, Search and Seizure § 11.3(e), text accompanying notes 294-96 (5th ed. and Supp. 2016) (cited with approval in Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)). See also Rodriguez v. United States, — U.S. —, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (holding that "the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop... and attend to related safety concerns,’’ and concluding that a dog sniff is not an ordinary incident of a traffic stop and prolonging the duration of a traffic stop for this purpose without reasonable suspicion violates the Fourth Amendment).

      . The court in Wilson acknowledged that it had earlier held, in Borski v. State, 712 So.2d 787 (Fla. 4th DCA 1998), that a police officer could require a driver to return to his vehicle for the remainder of a lawful traffic stop. Distinguishing that case, the Wilson court noted:
      We have no difficulty determining, as we did in Doctor [v. State, 573 So.2d 157 (Fla. 4th DCA 1991)] and Borski, that the traffic violation sufficiently justifies subjecting the driver to detention—in or outside the vehicle. There is a legitimate need for adequate police control over the traffic violator for the time necessary to conclude the business of the stop. The restraint on the liberty of the blameless passenger is, in contrast, an unreasonable interference.
      Wilson, 734 So.2d at 1112.

      . The Florida Constitution Contains a provision protecting against unreasonable searches and seizures. See Art. I, § 12, Fla. Const. (providing in part: "The right of-the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures... shall not be violated.”). However, that same section contains a' conformity clause: “This fight shall be construed in conformity with the 4th Amendmeát to the United States Constitution, as interpreted by the United States Supreme Court.”

      . Importantly, Wilson was decided in 1999, prior to the United States Supreme Court’s decisions in Brendlin and Johnson. To the extent that the Fourth District's decision survives Brendlin and Johnson, we acknowledge that our decision in the instant case is in conflict with Wilson. We also acknowledge that our decision, is in conflict with the Second District's decisions in J.R.P. v, State, 942 So.2d 452 (Fla. 2d DCA 2006) and Faulkner v. State, 834 So.2d 400 (Fla. 2d DCA 2003), which agreed with Wilson and were likewise decided before Brendlin and Johnson,


author: SUAREZ, J.

text:
    The STATE of Florida, etc., Appellant, v. Elifet J. DORCE, Appellee.
    No. 3D16-1714
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General (Tallahassee), for appellant.
    Elifet J. Dorce, in proper person.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SUAREZ, J.

The Department of Revenue [“DOR”] appeals from the denial of its motion to vacate an order granting modification of child support. We reverse the order, and remand for a determination on the merits of the motion to vacate.

In August of 2015, the trial court set the Father’s, Elifet Dorce, monthly child support obligation at $951.64. He did not move for rehearing or to vacate, and did not appeal. In October of 2015, Dorce filed a petition for modification of child support. He did not allege any change in circumstances, but merely claimed he was unable to pay the ordered monthly support.

At the January 2016 hearing on Dorce’s petition, both parties submitted financial affidavits, but the record indicates Dorce did not argue a substantial change in circumstances necessary to justify a downward modification, pursuant to section 61.30(b), Florida Statutes (2016). The court applied the guidelines and came up with a reduced support obligation of $835.91, and granted Dorce’s petition for modification of child support. That order was signed on February 22, 2016, but not rendered until March 1, 2016.

The DOR filed its motion to vacate the Modification Order on March 9, 2016. The trial court denied it as untimely filed, because the court erroneously used the date the order was signed, rather than the date it was rendered to determine timeliness. That was error.

The DOR’s motion to vacate was timely filed on March 9, 2016. The record shows that, while the trial court signed the underlying written order on February 22, 2016, the order was not filed with the clerk of court until March 1, 2016. As such, the order on appeal was not “rendered” for purposes of the ten-day filing period for a motion to vacate until March 1, 2016, the date the order was filed with the clerk. Fla. R. Civ. P. 9.020(i) (2016) provides that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” See e.g. Amos v. Reich, 208 So.3d 796 (Fla. 3d DCA 2016). Therefore, the DOR’s motion to vacate was timely filed within ten days from the date the child support modification order was rendered. Although the Family Law Rule uses the language “date of entry,” this does not contradict FRCP 9.020’s definition of rendition. Finally, the DOR’s appeal from the modification order is premature. The trial court must first address the substance of the DOR’s arguments on its motion to vacate the modification order.

We therefore reverse the order denying the DOR’s motion to vacate the order granting modification of child support and l'emand with instructions to determine the merits of the motion.

      . Florida Family Law Rule of Procedure 12.491(f) provides, in part: Entry of Order and Relief from Order. Upon receipt of a recommended order, the court shall review the recommended order and shall enter an order promptly unless good cause appears to amend the order, conduct further proceedings, or refer the matter back to the hearing officer to conduct further proceedings. Any party affected by the order may move to vacate the order by filing a motion to vacate within 10 days from the date of entry.


text:
    Timothy MALONE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1358
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and EMAS, JJ.
   PER CURIAM.

The defendant, Timothy Malone, appeals his convictions for burglary of an unoccupied dwelling and petit theft. We affirm, but remand for correction of the judgment to reflect that the conviction for petit theft is a second-degree misdemeanor, not a second-degree felony. As counsel for the defendant candidly admits that the error was a scrivener’s error, not judicial error, which when corrected will not affect the defendant’s sentence (which was credit for time served), the judgment may be corrected without conducting a new sentencing hearing.

Affirmed, with instructions.


text:
    MID-CONTINENT CASUALTY COMPANY, Appellant, v. FLORA-TECH PLANTSCAPES, INC., Appellee.
    No. 3D16-1260
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017

      Hinshaw & Culbertson LLP, and James H. Wyman and Ronald L. Kammer, for appellant.
    Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman and Bryant Paris, for appellee, Flora-Tech Plantscapes, Inc.
    Before, ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   LAGOA, J.

Mid-Continent Casualty Company (“MCC”).appeals from the trial court’s order granting Flora-Tech Plantscapes, Inc.’s (“Flora-Tech”) motion for summary judgment to the extent it declares that MCC has a “duty to defend” Flora-Tech against claims brought by Coastal Construction of Miami-Dade, Inc. (“Coastal”) and The Palace Management Group, LLC (“Palace”). Because the order is a non-final, non-appealable order, we dismiss MCC’s appeal for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL HISTORY

This action began as a personal injury litigation against, inter alia, Coastal and Palace. After Flora-Tech was brought in as a third-party defendant, Flora-Tech filed a fourth-party complaint against MCC, its insurer, under a commercial general liability policy (the “Policy”) for declaratory relief seeking a “judicial declaration that MCC must defend and indemnify” Flora-Tech for claims asserted against it by Coastal and Palace. MC^ in turn, filed an amended counterclaim against Flora-Tech and a crossclaim against both Coastal and Palace for declaratory relief asserting that it had no duty to defend and, therefore, no duty to indemnify Flora-Tech for Coastal’s Third-Party Complaint and Palace’s Amended Crossclaim.

Flora-Tech and MCC filed cross motions for summary judgment and, after a hearing, the trial court entered a comprehensive order (the “Order”) denying MCC’s motion and granting Flora-Tech’s motion “to the éxtént it seeks a declaration finding that [MCC] has a ‘duty to defend’ it against the claims asserted by Coastal and Palace.” The trial court, however, specifically found that it was not deciding “[t]he question of whether [MCC] has a duty to indemnify Flora-Tech against any damages ultimately awarded.” This appeal ensued. Upon reviewing the Order on appeal, this Court sua sponte issued an order asking the parties why this appeal should not be dismissed for lack of jurisdiction.

II, ANALYSIS

At the outset, we note that the order does not constitute an appealable final order. See Ball v. Genesis Outsourcing Solutions, LLC, 174 So.3d 498, 499 (Fla. 3d DCA 2015) (“An order that merely grants a motion for summary judgment is not a final order.”); Lidsky Vaccaro & Montes, P.A., v. Morejon, 813 So.2d 146, 149 (Fla. 3d DCA 2002) (“[A]n order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review.”). The trial court’s Order merely grants summary judgment in favor of Flora-Tech “to the extent it seeks a declaration finding that [MCC] has a ‘duty to defend’ it against claims asserted by Coastal and Palace,” and it does not enter judgment. “An order granting only summary judgment merely establishes an entitlement to judgment, but is not itself a judgment.” Lidsky, 813 So.2d at 149. Because the order appealed from does not enter judgment, it is not an appealable final order.

MCC concedes as much, and instead argues that this Court has jurisdiction to entertain this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). MCC asserts that an order finding a duty to defend falls into that category of non-final orders that “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.” Fla. R. App. P. 9.130(a)(3)(B). Because the Order does not on its face “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions,” MCC argues that, as a practical matter, the Order should be construed as one that grants an injunction. In support, MCC relies upon Allstate Insurance Co. v. Arvida Corp., 421 So.2d 741 (Fla. 4th DCA 1982).

In Arvida, the insured cross-claimed against its insurer for coverage defending the suit against the insured. Id. at 742. On a motion for summary, judgment on the insurance claim, the Fourth District Court of Appeal noted that the trial court, in “a curious order ... proceeded to rule that ‘from the date of this Order hence, [the insurer] shall assume the defense of this matter.” Id. (emphasis added). As a result of the trial court’s specific language, the Fourth District Court of Appeal held that it had jurisdiction to entertain the appeal as the order was appealable as a final judgment granting specific performance, as a non-final order granting an injunction, or as an order determining liability in favor of a party seeking affirmative relief. Id. at 742-43.

MCC argues that “[b]y finding that MCC had a duty to defend Flora-Tech, the trial court’s order here did no less” than the order in Arvida. We find, however, that the Order at issue here is distinguishable from the order in Arvida. Unlike the order in Arvida, the Order here contains no such command or directive to MCC to defend Flora-Tech in the underlying litigation. At most, the Order merely declares that MCC “has a ‘duty to defend’ [Flora-Tech] against the claims asserted by Coastal and Palace.” While, as a practical matter, many insurers may choose to defend their insured after such a judicial declaration, the trial court’s determination that MCC has a contractual duty to defend in no way constitutes an injunction commanding an act to be done or prohibiting their commission.

MCC admits that no Florida case other than Arvida has determined that an order declaring that the insurer has a duty to defend is appealable under Rule 9.130(a)(3)(B). As such, MCC asks this Court to also consider federal law, arguing that several federal courts “have found [appellate] jurisdiction to review nonfinal orders determining an insurer’s duty to defend” under 28 U.S.C. § 1292(a)(1). We find MCC’s arguments unpersuasive as, in each of the federal cases cited by MCC, the appeals were taken from orders compelling the insurer to defend. We therefore find that those cases are distinguishable for the same reason as Arvida, supra. See Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 669 (3d Cir. 2016) (“[Prospectively, Westfield shall provide defense to Ramara in the underlying action ....”); Church Mut. Ins. Co. v. Ma’Afu, 657 Fed.Appx. 747, 751 (10th Cir. 2016) (“[T]he court ordered Church Mutual to defend Mr. Ma’Afu .... ”); W Holding Co., v. AIG Ins. Co.-Puerto Rico, 748 F.3d 377, 378 (1st Cir. 2014) (concluding that “order requiring Chartis Insurance Company to advance defense costs” constituted an injunction); Abercrombie & Fitch Co. v. Fed. Ins. Co., 370 Fed.Appx. 563, 566 n.6 (6th Cir. 2010) (“Federal is hereby ORDERED to advance payment for the following categories of costs ....”); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Sahlen, 999 F.2d 1532, 1535 (11th Cir. 1993) (“National Union was required to pay the Insureds’ defense costs in the underlying suits until its claim for rescission was resolved.”); Gon v. First State Ins. Co., 871 F.2d 863, 866 (9th Cir. 1989) (noting that “original order directing] First State to pay defense expenses in the FSLIC litigation as they were incurred .... met the general definition of an injunction”).

Moreover, we find persuasive the opinions from our sister courts, which held, although for other reasons, that a summary judgment order merely construing a duty to defend under an insurance policy is not an appealable order. The Fourth District Court of Appeal in Nationwide Mutual Insurance Co. v. Harrick, 763 So.2d 1133 (Fla. 4th DCA 1999), a case decided after its own Arvida decision, dismissed the appeal and held that the trial court’s order determining that the insurer had a duty to defend but denying the insured’s motion as to coverage was not an appealable order. Id. at 1134. Significantly, in Nationwide, the Fourth District Court of Appeal made no mention of its Arvida decision.

Additionally, the Second District Court of Appeal in Florida Farm Bureau General Insurance Co. v. Peacock’s Excavating Service, Inc., 186 So.3d 6, 10 (Fla. 2d DCA 2015), dismissed an appeal and held that an order granting summary judgment in the insured’s favor finding that the insurer had a duty to defend but not ruling on the duty to indemnify was not an appealable order under Rule 9.130. Id.

As our sister court stated in Florida Farm Bureau, “we recognize that the duty to defend poses a unique and critical issue in many insurance disputes and may well be the most pressing concern in a coverage claim .... But we cannot create jurisdiction for the sake of expediency.” This Court’s jurisdiction to review non-final orders is limited to those matters specifically enumerated in Florida Rule of Appellate Procedure 9.130, and the order on appeal does not fall within any of those enumerated .categories. This Court is not át liberty to assume jurisdiction which has not been conferred upon it.

III. CONCLUSION

Because the order ait issue merely grants summary judgment but does not enter judgment, we find that the order appealed from is a non-final, non-appeal-able order. Moreover, we find that the trial court’s order granting Flora-Tech’s motion for summary judgment “to the extent it seeks a declaration finding that [MCG] has- a ‘duty to defend’ it against the claims asserted by Coastal and Palace” does not constitute an injunction pursuant to Rule 9.130(a)(3)(B). We therefore dismiss the appeal for lack of jurisdiction.

Appeal dismissed.

      . After the appeal was filed, MCC filed a Notice of Voluntary Dismissal advising the Court that MCC, Coastal and Palace had reached a settlement and MCC had dismissed its claims against Coastal and Palace. As such, only Flora-Tech remains as an Appellee in this matter.

      . This Court considered other possible grounds for jurisdiction and concluded that this Court lacks jurisdiction under those avenues as well. Pursuant to Florida Rule of Appellate Procedure 9.110(lc), a partial final judgment is appealable if it "is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.” Because the indemnification issue remained pending below at the time the Order was entered, the Order cannot be characterized as a "partial final judgment.” See Florida Farm Bureau Gen. Ins. Co. v. Peacock's Excavating Serv., Inc., 186 So.3d 6 (Fla. 2d DCA 2015) (holding that partial final judgment which determined only duty to defend but not duty of indemnification not an appealable order); Nationwide Mut. Ins. Co. v. Harrick, 763 So.2d 1133 (Fla. 4th DCA 1999) (holding order determining only duty to defend not appealable under Rule 9.110).
      The Court also considered Rule 9.110(m), which provides for an appeal of "[¡judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130.” We conclude that the Order is not appealable under Rule 9.110(m) because that provision, by its terms, does not apply here as the Order is neither a "judgment” nor does it determine the issue of coverage (only the duty to defend). See National Assurance Underwriters, Inc., v. Kelley, 702 So.2d 614, 615 (Fla. 4th DCA 1997) (This "rule, by its clear and unambiguous terms, is limited to ‘judgments.’ ”). Additionally, Rule 9.110(m) has been held not to create jurisdiction. Universal Underwriters Ins. Co. v. Stathopoulos, 113 So.3d 957, 959 (Fla. 2d DCA 2013); Centennial Ins. Co. v. Life Bank, 953 So.2d 1, 4 (Fla. 2d DCA 2006) (concluding that "the purpose of rule 9.110(m) is simply to provide a more expeditious procedure for appeal of judgments deciding coverage disputes when a claim has been made against an insured. It does not expand the district courts’ jurisdiction to entertain appeals of non-final orders. That being the case, the rule is purely procedural.”).


author: LUCK, J.

text:
    Hugo MONTERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-0392
    District Court of Appeal of Florida, Third District.
    Opinion filed July 26, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg and Bradley Hor-enstein, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before LAGOA, SCALES and LUCK, JJ.
   LUCK, J.

After punching a nightclub manager in the head causing him to suffer permanent brain damage, Hugo Montero, convicted of aggravated battery, contends the trial court should have acquitted him of that charge because he didn’t intend to hurt the manager so badly. Having told the manager he was going to kill him, and almost doing so, we conclude there was competent substantial evidence supporting the-jury’s verdict that Montero intended., to cause great bodily harm.

On the evening of June 29, 2015 (and into the early morning hours of June 30), Montero was at the Fox Hole bar in South Beach. In an effort to talk to women at the bar, Montero followed one particular female patron to the restroom. The manager, after receiving a complaint, spoke to Montero and Montero agreed to stop bothering the woman he followed.

But he didn’t stop. Montero, again, bothered the same woman he had followed to the restroom. The manager asked Montero to leave the bar; when Montero refused, the manager had the security guard escort Montero outside. Montero became angry, screamed that he was not leaving the bar, spit in the security guard’s face, and threatened to kill the manager and -security guard.

Montero eventually calmed down and walked outside the bar with the security guard, but then Montero turned around to walk back in. The security guard told Montero to leave; in response, Montero was irate, screamed profanities at the security guard and manager, again threatened to kill the security guard, and punched the security guard in the face. The security guard—not a small man át six feet, one inch tall and weighing three hundred fifty pounds—held his arm out to keep Montero away but Montero punched at the security guard’s arm, got in a fighter’s stance with his fists out, and taunted the security guard to fight. Montero then calmed down, and tried to get back into the bar, but the security guard stood in the way.

The manager, in the meantime, went inside the bar and called law enforcement. As he came back outside, Montero punched the manager’s head. The punch knocked the manager unconscious, causing the manager to fall back and hit his head on the ground. A CAT scan showed that the manager’s brain was bleeding, bruised, and swollen. A medicál expert testified at Montero’s. trial that the manager suffered a permanent injury to his brain. The manager, still, has language and memory problems, migraines, blurry vision, and tinnitus.

Montero’s sole contention on appeal is that the trial court erred in failing to grant his motion for judgment of acquittal. The aggravated battery statute, Montero argues, required that the state prove he intended to cause the manager great bodily harm, and because there was no evidence he had such an intent, his punch was only worth a felony battery.

“[W]e review the trial court’s denial of [the defendants motion for judgment of acquittal de novo, reversing only where the conviction is not supported by competent, substantial evidence. The conviction is supported by sufficient evidence where a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in the light most favorable to the State.” Knight v. State, 186 So.3d 1005, 1012 (Fla. 2016).

Florida statute section 784.045, the aggravated battery statute Montero was convicted of violating, provides that “[a] person commits aggravated battery who, in committing battery ... intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement.” § 784.045(1)(a)1., Fla. Stat. (2015). The Florida Supreme Court has separated this out into two elements in the standard jury instruction for aggravated battery:

1. The defendant intentionally touched or struck the victim against his will; and

2. The defendant, in committing the battery, intentionally or knowingly caused great bodily harm to the victim, or permanent disability. Fla. Stnd. Jury Instr. (Criminal) 8.4.

Montero, concedes he intentionally punched the manager against his will. The question for us is whether there is competent substantial evidence supporting the jury’s finding that Montero intended his punch to cause great bodily harm or permanent disability to the manager. We conclude that there was.

In reviewing the defendant’s intent, which is “generally a jury question,” we look to the “extent and nature of a victim’s injuries,” the “circumstances peculiar to each situation,” the “amount of force used,” and “the manner of attack.” State v. Gee, 624 So.2d 284, 285 (Fla. 2d DCA 1993); McKnight v. State, 492 So.2d 450, 451 (Fla. 4th DCA 1986). Even a single punch to the face, reviewing these factors, can be enough to constitute an aggravated battery. See Gee, 624 So.2d at 285 (reversing trial court’s dismissal where the facts showed “[a] crowded barroom confrontation culminated with defendant - striking the victim with a single blow to the right side of his face, causing him to fall to the floor”); McKnight, 492 So.2d at 451 (affirming aggravated battery conviction where “only a single blow was struck”).

In Gee, for example, the defendant and victim were in a crowded barroom, and in the midst of a confrontation, when the defendant hit the victim in the face, causing the victim to fall to the floor. Gee, 624 So.2d at 285. The victim suffered a broken neck and complete paralysis. Id. In McKnight, the defendant struck a seventy year old victim, resulting in a serious brain injury. McKnight, 492 So.2d at 451. And in Sagner v. State, 791 So.2d 1156 (Fla. 4th DCA 2001), where the defendant threw a bottle at his victim resulting in an aggravated battery conviction, he and his target were in a “heated discussion,” they were “name calling,” and the defendant stared him down. Id. at 1159. The bottle, moreover, was thrown “pretty hard.” Id.

Here, too, we have many of the same facts showing that Montero intended to cause the manager great bodily harm. Montero angrily confronted the manager and security guard about being thrown out of the bar and cursed at them. Montero spit and hit the security guard and kept coming at him even after Montero was pushed away. Montero hit the manager after the manager left to call the police because Montero refused to leave. The force of Montero’s punch was hard enough, the manager’s doctor testified, to cause the concussion and the permanent brain damage that followed.

Finally, Montero told the manager and security guard that he would kill them. Unsurprisingly, the Florida courts have held that a defendant’s statement, “I will kill you,” is evidence of the defendant’s intent to kill the victim. See Blanco v. State, 447 So.2d 939, 940 (Fla. 3d DCA 1984) (defendant’s statement, “next time I’ll kill you,” was evidence of intent to commit attempted first degree murder); see also Provenzano v. State, 497 So.2d 1177, 1181 (Fla. 1986) (finding sufficient evidence of premeditation where the defendant “removed a loaded shotgun from a pocket inside his coat, and screamed ‘I’m going to kill you, M_ F_, I’m going to kill all of you,’ and fired the fatal shot when Wilkerson was two to three feet away.”); Caraker v. State, 84 So.2d 50, 51 (Fla. 1955) (“The intent to kill may be established by a number of circumstances, such as, the fact that the weapon is directed at some vital spot on the assaultee’s body as was done here, or the intent may be affirmatively shown by the actual expressions of the one committing the assault, such as, T am going to kill you.’ ” (citation omitted)); Duba v. State, 446 So.2d 1167, 1168 (Fla. 5th DCA 1984) (finding “sufficient competent evidence for the charge of attempted kidnapping to go to the jury and from which the jury could infer (as it did) that the defendant had the specific mental intent to inflict bodily harm upon, or to terrorize, the victim as required by the kidnapping statute” where the defendant “driving a van, pointed an air pistol at a victim and said, ‘Get in the van or I’ll kill you.’ ”). While Montero did not kill the manager—he only caused a bleeding, bruised, and swollen brain, permanent brain damage, slurred speech, migraines, and blurry vision—his statements that he wanted to are also competent substantial evidence supporting the jury’s verdict that Montero intended to cause the manager great bodily harm and permanent disability.

Montero responds with the I-didn’t-really-mean-it defense. Quoting from the movie Twelve Angry Men, where one character says I’m going to kill you and doesn’t actually mean it, Montero contends that he, too, didn’t mean it when he told the manager he was going to kill him; it was just a figure of speech. Montero misunderstands the standard of review. On a judgment of acquittal motion, we view the evidence in the light most favorable to the state in determining whether there’s competent substantial evidence supporting the verdict. Here, viewing the I-will-kill-you threat that way, Montero meant what he said that he will kill the manager. This was competent substantial evidence of Monte-ro’s intent to cause great bodily harm.

Montero also contends, relying on T.S. v. State, 965 So.2d 1288 (Fla. 2d DCA 2007), that his punch was reflexive and he therer-fore did not have the intent to cause great bodily harm when he’hit the manager. In T.S., the defendant punched the victim in “a quick, almost reflexive response to having tea thrown in his' facé.” Id. at 1290. We have no trouble distinguishing T.S. from this case. Here, unlike in T.S., the manager did nothing to provoke a response from Montero other than walking out the front door of the bar. The manager did not throw anything at Montero; the manager did not try to hit Montero or restrain him. Montero’s punch was not a reflex to something the manager did. Also here, unlike in T.S., Montero and the manager had much more than a verbal argument before the battery. Montero was warned about bothering women at the bar; he was kicked out of the bar; he fought with and curséd at the manager and security guard; he spit; punched the security guard; had to be restrained; tried to get back into the bar; threatened to kill the manager and security guard; and punched the manager in the face so hard that the force could have caused a concussion and brain swelling.

This, together, was competent substantial evidence from which the jury could find that Montero intended to cause great bodily harm or permanent disability when he punched the manager. Montero’s conviction and sentence are, therefore, affirmed.

Affirmed.

      . "Tinnitus is generally defined as a subjective sensation of sound, such as ringing or buzzing, in one or both ears.” Rumminger v. Astrue, No. 2:10-CV-682-FTM-29, 2011 WL 6004078, at *1 (M.D. Fla. Nov; 30, 2011).

      . In Knight, the defendant conceded there was direct evidence of his dominion and control over contraband. Knight, 186 So.3d at 1012. With that concession, the Florida Supreme Court explained, his "case cannot be considered wholly circumstantial—despite the circumstantial evidence of the knowledge element. Therefore, the circumstantial evidence standard of review does not apply.” M. Here, too, there was direct evidence that Montero intentionally struck the manager (the first element): the manager testified that he did; so did the security guard; and there was a video of the punch. Because there was direct evidence of one element, the circumstantial evidence reasonable-hypothesis-of-innocence standard does not apply.


author: Per Curiam.

text:
    Ceyron PASCOE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0010
    District Court of Appeal of Florida, Fourth District.
    August 2, 2017
    Ceyron Pascoe, Jasper, pro se.

      ' Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges the denial of his postconviction motion for additional jail credit brought pursuant to Florida Rule of Criminal Procedure 3.801. We reverse and remand.

Appellant seeks additional jail credit in accordance with a plea agreement. The State represents that the sentencing court awarded appellant the credit he seeks consistent with his plea; therefore, he must seek relief through the Department of Corrections. Cooper v. State, 186 So.3d 1115 (Fla. 4th DCA 2016). The trial court summarily denied the legally sufficient motion without explaining or attaching record documents to refute the claim of entitlement to credit. Shea v. State, 97 So.3d 861, 862 (Fla. 4th DCA 2012) (recognizing that this practice is improper).

While the State furnishes the sentencing documents to this Court, it is not permitted to supplement the record on appeal. Vega v. State, 110 So.3d 965 (Fla. 4th DCA 2013); Runge v. State, 24 So.3d 768, 769 (Fla. 4th DCA 2009). Consequently, we reverse and remand. Should the trial court summarily deny this claim again, it must attach record documents conclusively demonstrating that appellant received all of the jail credit such that his proper remedy is with the Department. Cooper, 186 So.3d at 1115.

Reversed and remanded.

Damoorgian, Conner and Klingensmith, JJ., concur.