text:
    George PETTIS, Appellant, v. Leshaun Merritt CHRISENTERY, unknown Heirs of Henry Pittman and Fannie Pittman, his Wife, both deceased, unknown Heirs of Fred Pittman and Mary Pittman, his Wife, both deceased, unknown Heirs of Lucinda Hester, a Widow, deceased, unknown Heirs of Ulysee Pittman, deceased, unknown Heirs of Robert Pittman, deceased, Jessie Pittman (know Heir of Ulysee Pittman), Gertrude Pittman, Elizabeth Pittman Robertson, unknown Heirs of Chance Johnson, deceased, Josie Lee Johnson (known Heir of Chance Johnson), Sadie R. Johnson, Lucille Bently, Ulysees Johnson or unknown Heirs if deceased, Benjamin Johnson or unknown Heirs if deceased, Lucille J. Bell or unknown Heirs if deceased, William Johnson or unknown Heirs if deceased, Longsworth Johnson or unknown Heirs if deceased, Marcus L. Lewis or unknown Heirs if deceased, The Jackson County School Board, the unknown Spouses, Heirs, Devisees, Grantees, Creditors and all Other Parties Claiming by through Ned Pittman and/or Lucille Pittman Hadley, or Edward Andrew Johnson, and all Other Parties Claiming by through, under or against them and all unknown Natural Persons if alive, and if dead or not known to be dead or alive, their several and respective unknown Spouse, Heirs, Devisees, Grantees and Creditors or Other Parties Claiming by through or under those unknown natural Persons; and all Claimants, Persons or Parties, Natural or Corporate, or whose exact legal status is unknown, claiming under any of the above Names or Described Defendants or Parties or Claiming to have any right, Title or Interest in and to the Lands hereafter described, Appellees.
    CASE NO. 1D17-506
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    Martha S. Eskuchen of Marianna, for Appellant.
    Elizabeth M. Simpson of Marianna, for Appellees.
   PER CURIAM.

George Pettis, the plaintiff below, appeals the adverse final judgment in this convoluted dispute over the ownership of 60 acres of land located in “the East 1/2 of the Southeast 1/4 of Section 10 in Township 3 North, Range 10 West” in Jackson County. Pettis’ claim of ownership is based on a chain of title that dates back to 1898 but contains deeds with multiple problems, including 1942 and 1955 deeds that have obvious scrivener’s errors in their legal descriptions and a “root of title” deed that, on its face, conveys an estate in" the land that the grantor did not own. Pettis' sought to reform the deeds, quiet his title, and, if necessary, partition the property between himself and Appellees.

The trial court denied the reformation claim, concluding that it was barred by the 20-year statute of limitations in section 95.231(2), Florida Statutes. This was error. The plain language of this statute only bars claims “against the claimants under the' deed ... or their successors in title.” Herd, Pettis is a successor in title under the deeds he is seeking to reform, and unlike the plaintiffs, in the cases relied on by the trial court and Appellees, Pettis is seeking relief in conformance with—and not adverse to—the interests of the claimr ants under the deeds. Thus, Pettis’ reformation claim is not barred by section 95.231(2). See Moyer v. Clark, 72 So.2d 905, 907-08 (Fla. 1954) (holding that quiet title claim of. successor in title was not barred by section 95.23, Florida Statutes, because the claim was not adverse to the recorded deed), repudiated in part bn other grounds by Reed v. Fain, 145 So.2d 858, 871 (Fla. 1961).

Accordingly, we reverse the final judgment and remand for further proceedings on the reformation claim. And because the trial court’s ruling on Pettis’ other claims hinged on its ruling on the reformation of the legal descriptions in the 1942 and 1955 deeds, the trial court will also need to reevaluate the other claims—and the impact of the Marketable Record Title Act— on remand.

REVERSED and REMANDED for further proceedings.

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.

      . The 1942 deeds described the property being conveyed as the grantors’ interests in the South 1/2 of the Southeast 1/4 of Section 10, rather than the East 1/2 of that quarter-section. The 1955 deed described the property as being located in Township 6 North, rather than Township 3 North.

      .The 1955 deed—which Pettis contends is the-root of his title for purposes of the Marketable Record Title Act—purported to convey fee simple title to an unspecified 60 acres, rather than the undivided 6/8 interest in 80 acres actually owned by the grantor.

      . See Inglis v. First Union Nat’l Bank, 797 So.2d 26 (Fla. 1st DCA 2001); Rigby v. Liles, 505 So.2d 598 (Fla. 1st DCA 1987); Holland v. Hattaway, 438 So.2d 456 (Fla. 5th DCA 1983).

      . The substance of section 95.23 was later transferred to section 95.231(2), Florida Statutes. See ch, 74-382, § 17, at 1214, Laws of Fla.


source: Caselaw Access Project

author: SALARIO, Judge.

license: Public Domain

text:
    Joseph WEITZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D16-4703
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017

      . Joseph .Weitz, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   SALARIO, Judge.

Joseph Weitz has filed a petition under Florida Rule of . Appellate. Procedure 9.141(d) arguing three grounds of ineffective assistance of . appellate counsel. We grant relief on ground one, which is based upon Mr. Weitz’s assertion that appellate counsel failed to argue,that Mr. Weitz’s dual convictions for transmitting material harmful to minors under section 847.0138, Florida Statutes (2012), and unlawfully using a two-way communications device under section 934.215, Florida Statutes (2012), violate double jeopardy. We deny grounds two and three without comment.

A jury convicted Mr. Weitz of one count of transmitting material harmful to minors and one count of unlawfully using , a two-way communications, device. Both counts alleged that Mr. Weitz committed the offenses in Polk County “on or about March 2, 2012.” The evidence at trial was that Mr. Weitz engaged-in a lengthy series of sexually-explicit text messages with a fourteen-year-old neighbor. The trial court sentenced Mr. Weitz to ten years’ imprisonment as a habitual felony offender (HFO) for the transmitting offense and to a concurrent noñ-HFO sentence of five years’ imprisonment for the unlawful use offense. We affirmed his convictions. See Weitz v. State, 196 So.3d 466, 466, (Fla. 2d DCA 2016).

In ground one of his petition, Mr. Weitz argues that his appellate counsel was ineffective for failing to argue that his convictions violate double jeopardy. Because a double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal, Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014), the.failure to raise a double jeopardy violation on appeal can constitute ineffective assistance of appellate counsel, see Perri v. State, 154 So.3d 1204, 1205 (Fla. 2d DCA 2015).

To determine whether Mr. Weitz is entitled to relief, we must first ask whether his appellate counsel rendered deficient performance by failing to argue that his dual convictions for unlawful use of a two-way communications device and transmitting harmful material to a minor violate double jeopardy. See Smith v. State, 19 So.3d 417, 418 (Fla. 2d DCA 2009). At the time appellate counsel filed the initial brief in Mr. Weitz’s direct appeal, this court had applied the Blockburger same-elements test to hold that multiple convictions under the two-way communications device statute and three other statutes violate double jeopardy when the charges arise from the same criminal episode. See Exantus v. State, 198 So.3d 1 (Fla. 2d DCA 2014); Mizner, 154 So.3d 391. These statutes all involve the use of electronic methods of communication and sexual activity involving minor's. In Mizner, we held that convictions for soliciting a parent to consent to sex with a minor in violation of section 847.0135(3)(b), traveling to have sex with a minor in violation of section 847.0135(4)(b), and unlawful use of a two-way communications device violated double jeopardy when the charges arise from the same episode because the statutory elements' of each offense were subsumed by the statutory elements of every other offense charged in that case. 154 So.3d at 399-400. Thereafter, in Exantus, 198 So.3d at 2, we said the same thing about dual convictions for receiving information about a minor in violation of section 847.0135(2)(d) and unlawful-use of a two-way communications device. See also Batchelor v. State, 193 So.3d 1054, 1058 (Fla. 2d DCA 2016) (holding, after briefing and argument in Mr. Weitz’s direct appeal, that convictions for soliciting and unlawful use of a two-way communications device violate double jeopardy when the charges arise out of the same episode).

Although Mizner and Exantus did not address a charge of transmitting harmful material to a minor in violation of section 847.0138, the question of whether the statutory elements of that offense are subsumed by the statutory elements of, unlawful use of a two-way communications device is so close to the questions answered in Mizner and Exantus that a reasonable appellate lawyer would have raised the argument in Mr. Weitz’s direct appeal. Cf. Kist v. State, 900 So.2d 571, 572 (Fla. 2d DCA 2004) (finding appellate counsel ineffective for failing to raise a double jeopardy argument based on relevant cases from other district courts of appeal). In that connection, we note that during the sentencing in this case, Mr. Weitz’s trial counsel stated on the record that our then-recent decision in Mizner presented a double jeopardy argument that Mr. Weitz should raise on appeal.

The State argues that counsel’s performance cannot be deemed deficient because the two charges in this case did not arise from the same criminal episode. This is at least a close call that reasonable counsel would have argued against on appeal. The State pleaded a single count for each offense and alleged that each offense took place over the same period of time—“on or about March 2, 2012.” On similar facts, we rejected a similar argument by the State in Mizner because “[t]he State did not charge the offenses as occurring during separate criminal episodes; rather, it charged them as occurring during a single criminal episode.” 154 So.3d at 400; see also Shelley v. State, 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014) (rejecting, before the initial brief was filed in Mr. Weitz’s direct appeal, the argument that dual convictions for soliciting and traveling arose out of different criminal episodes where the charges were “based on a solicitation occurring on the same date as the traveling offense”), approved, 176 So.3d 914 (Fla. 2015). Accordingly, we conclude that Mr. Weitz’s appellate counsel was deficient.

For substantially the same reasons, we also find that the deficiency prejudiced Mr. Weitz. Because the double jeopardy issues resolved in Mizner and Exantus—both of which were on the books at the time of Mr. Weitz’s direct appeal—are both very favorable to Mr. Weitz and very similar to the double jeopardy issues this case presents, we conclude that the failure to raise the issue “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Lowe v. State, 2 So.3d 21, 42 (Fla. 2008).

Accordingly, we grant the petition as to ground one and grant Mr. Weitz a new appeal on the double jeopardy issue that ground presents. Within thirty days from the date of the issuance of the mandate in this case, the trial court shall appoint an appellate attorney to file a brief on the double jeopardy issue outlined above. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal. See Kist, 900 So.2d at 572. In all other respects, we deny Mr. Weitz’s petition.

Petition granted in part and denied in part.

WALLACE and MORRIS, JJ., Concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see also § 775.021(4)(a), Fla. Stat. (2012).

      . This is not to say that the questions are identical or .that Mizner and Exantus will ultimately control the application of the same elements test here. There are, for example, differences between the transmitting statute and the statutes at issue-in Mizner and Exan-tus. The traveling and solicitation offenses in Mizner required use of "a computer online service, internet service, local bulletin board, or any other device capable of electronic data storage or transmission," § 847.0135(3)(b), (4)(b), which we found were subsumed within the two-way communications device statute's requirement of "a two-way communications device.” 154 So.3d at 399. In Exantus, we similarly held, in essence, that both the receiving and tw.o-way communications device statutes required use of a two-way communications device, such that each offense was subsumed by the other. See 198 So.3d at 2. In contrast, the transmitting harmful material statute requires sending harmful material "to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138(1)(b) (emphasis added). Although we have held that the term electronic mail embraces text messages and so would apply to Mr. Weitz's conduct here, see Duclos-Lasnier v. State, 192 So.3d 1234, 1239 (Fla. 2d DCA 2016), it is arguable that the term "electronic mail” does not subsume the term “two-way communications device” such that the same elements test would preclude dual convictions for the transmitting and two-way communications device charges.


author: Per Curiam.

text:
    Jeremy BELSER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2484
    District Court of Appeal of Florida, Fourth District.
    October 25, 2017

      Jeremy Belser, Okeechobee, pro se.
    No brief filed for appellee,
   Per Curiam.

Affirmed. See Baker v. State, 904 So.2d 505 (Fla. 4th DCA 2005).

. Gerber, C.J., Warner and Gross, JJ., concur.


author: PER CURIAM.

text:
    Roderick FARLIN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3982
    District Court of Appeal of Florida, First District.
    Opinion filed October 26, 2017
    Roderick Farlin, pro se, Petitioner.
    Pamela Jo Bondi,. Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ„ CONCUR.


author: EISNAUGLE, J.

text:
    Rodney HURD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1802
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017

      Rodney Hurd, White City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EISNAUGLE, J.

Appellant, Rodney Hurd, appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant argues that the trial court illegally reclassified his convictions for attempted- voluntary manslaughter and resisting an officer with violence pursuant to section 775.087(1), Florida Statutes (2010), based on his use of an automobile as a weapon, citing to Gonzalez v. State, 197 So.3d 84 (Fla. 2d DCA 2016). We find no error and affirm.

In Gonzalez, our sister court held, as a matter of law,- that an automobile is not a weapon as that term is used in section 775.087(1). 197 So.3d at 86. In that case, the trial court-reclassified a manslaughter conviction, pursuant to section 775.087(1), because the defendant used an automobile as a weapon when he backed over his victim. Id. at 84-85. On appeal, the second district reversed, relying on the supreme coúrt’s analysis in State v. Houck, 652 So.2d 359 (Fla. 1995), and State v. Burris, 875 So.2d 408 (Fla. 2004).

In Houck, the jury found the defendant guilty of manslaughter with a weapon where the defendant beat the victim’s head against the pavement resulting in the victim’s death. 652 So.2d at 359. The trial court reclassified the offense to a first-degree felony pursuant to section 775.087(1) based on the defendant’s use of the pavement as a weapon. Id. On appeal, this court reversed, holding that pavement is not a weapon pursuant to section 775.087(1), and-certified the issue as one of great public importance. Id. at 359-60. In so doing, we observed that “[ojther jurisdictions have strictly construed their statutes to conclude that pavement and other stationary fixtures are not dangerous or deadly weapons.” Houck v. State, 634 So.2d 180, 182-83 (Fla. 5th DCA 1994) (emphasis added).

On review, the supreme court agreed and held that pavement is not a “weapon” as that term is used in section 775.087(1). Houck, 652 So.2d at 360. The statute does not define the term, so the court consulted the American Heritage College Dictionary, which defined “weapon” as: “1. An instrument of attack or defense in combat, as a gun or sword.... 3. A means used to defend against or defeat another.” Id. (quoting American Heritage College Dictionary 1529 (3d ed. 1993)). Thus, the court reasoned that a paved surface is not commonly understood to be an “instrument for combat against another person.” Id. However, the court also invited the Legislature to amend the statute if it intended for pavement and “similar passive objects” to be considered weapons. Id.

Later in Burris, the supreme court considered whether an automobile could be “carried” as a “deadly weapon” for purposes of the robbery statute. 875 So.2d at 410. In that case, the defendant grabbed the victim’s purse as he drove by, dragging her with his pickup truck. Id. at 409. The defendant was charged by information alleging that he “used” his truck as á deadly weapon. Id. He moved to dismiss the charge, arguing that the robbery statute only prohibited “carrying” a weapon, not “using” one, but the trial court denied the motion. Id. On appeal, this court reversed and held that an automobile could not be “carried” as that term is used in the robbery statute. Id. at 410.

The supreme court agreed, after considering several dictionary definitions for the term “carry.” Id. at 411-12. In its opinion, the court reasoned that “[l]ike the pavement used by the offender in Houck, an automobile is not commonly understood to be an instrument for combat against another person.” Id. at 413. At the same time, the court also recognized that automobiles have been held to be “deadly weapons in other criminal statutes.” Id. (citations omitted). In distinguishing those cases, the court noted that “those statutes under which automobiles are deemed deadly weapons proscribe the ‘use’ of a deadly weapon as an element of either aggravated assault or aggravated battery.” Id. Thus, the court instructed that “[b]y contrast, the requirement in the robbery statute that an offender ‘carry,’ as opposed to ‘use,’ a deadly weapon tends to exclude automobiles as deadly weapons.” Id.

Although Houck and Burris did not squarely address the issue before us here, they are consistent with a conclusion that an automobile can be a weapon as that term is used in section 775.087(1), Florida Statutes. Section 775.087(1) reclassifies certain felonies if “during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm.” § 775.087(1), Fla. Stat. (emphasis added). We agree with Burris that one cannot “carry” an automobile as a weapon. However, unlike the robbery statute at issue in Bums, which proscribed only the “carrying” of a weapon, the statute here also clearly proscribes the “use” of a weapon. We find the reasoning in Burris, which distinguished between statutes that proscribe the “carrying” of a weapon from those which proscribe the “use” of a weapon, persuasive.

We also agree with Houck’s holding that pavement is not a weapon. In that case, while the supreme court considered whether stationary objects like pavement could be considered a weapon for purposes of section 775.087(1), it did not decide whether an automobile is a weapon. Unlike the pavement in Houck, which is clearly not an “instrument,” an automobile is not a stationary or “passive object,” and as the facts here demonstrate, an automobile can be wielded as an “instrument of attack ... in combat.”

Although some of the dicta used in Houck and Bums, when considered in isolation, support the decision in Gonzalez, we cannot agree with our sister court’s conclusion. In Gonzalez, the second district emphasized the analysis in Bums that “[l]ike the pavement used by the offender in Houck, an automobile is not commonly understood to be an instrument for combat against another person.” 197 So.3d at 85-86. Had the supreme court stopped there, Gonzalez might stand on firmer ground. However, Burris then recognized that an automobile is considered a weapon for purposes of some statutes. Importantly, Gonzalez does not account for the distinction made in Burris between statutes proscribing the carrying of a weapon and those proscribing the use of a weapon. See Burris, 875 So.2d at 413. As Burris recognizes, an automobile can be a weapon in the context of a statute that proscribes a weapon’s “use,” like section 775.087(1) at issue here.

Having concluded that Houck and Bums did not decide the issue before us, we turn to the plain and ordinary meaning of the term “weapon.” “Where, as here, the [L]egislature has not defined the words used in a [statute], the language should be given its plain and ordinary meaning.” Debaun v. State, 213 So.3d 747, 751 (Fla. 2017) (quoting Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla. 2009) (second ah teration in original)). “When a 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 such intent.” Brook v. State, 999 So.2d 1093, 1097 (Fla. 5th DCA 2009) (citing Cherry v. State, 959 So.2d 702, 713 (Fla. 2007)).

When considering the plain meaning of an undefined statutory term, Florida courts may corisult dictionaries to derive the term’s ordinary definition. Debaun, 213 So.3d at 751 (citation omitted). Merriam-Webster’s Collegiate Dictionary defines the term “weapon” as “1 : something (as a club, knife, or gun) used to injure, defeat, or destroy” and “2 : a means of contending against another.” Merriam-Webster’s Collegiate Dictionary 1417 (11th ed. 2003) (emphasis added). Similarly, the Oxford American Desk Dictionary & Thesaurus defines the term “weapon” as “a thing used to cause physical harm or damage.” Oxford American Desk Dictionary & Thesaurus 870 (3d ed. 2010) (emphasis added).

Perhaps an automobile is not designed to inflict bodily harm, but in this case, Appellant’s automobile became an “instrument of attack ... in combat” when he attempted to use it as a battering ram against an officer. Just as an automobile’s primary purpose is for transportation, the primary purpose of a steak knife or baseball bat is for use as cutlery or sporting equipment. Yet no one could reasonably dispute that those items are also “commonly understood” as “instrumentfe] for combat against another person” when used as such. See, e.g., Aroche v. State, 993 So.2d 568, 569-70 (Fla. 3d DCA 2008) (holding that defendant’s sentence was properly enhanced where he was “charged, convicted, and his sentences were enhanced pursuant to section '775.087 because he was armed with and did use a deadly weapon during commission of these offenses (a bat and/or knife)”). Accordingly, we hold that an automobile can be used as a weapon for purposes of section 775.087(1), and certify conflict with Gonzalez v. State, 197 So.3d 84 (Fla. 2d DCA 2016).

AFFIRMED.

TORPY and LAMBERT, JJ., concur,


author: EDWARDS, J.

text:
    Michael BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3437
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach,.for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

Appellant Michael Lee Brown appeals the postconviction court’s summary denial of ground one of his Florida Rule of Criminal Procedure 3.850 motion. Appellant alleged that his trial attorneys did not adequately advise him as to the “details and the strength” of the State’s case and that had he been properly advised, he would have accepted the State’s plea offer of fifteen years’ imprisonment, instead of proceeding to trial. We agree that the. court erred in summarily denying ground one without attaching refuting documents.

The minor victim in this "case told her mother that Appellant, who is the victim’s father, had sexual intercourse with her on different dates and at different places. The mother told the police, and later took her daughter to the doctor where it was determined that the victim was pregnant. Under the circumstances, the victim chose to terminate the pregnancy. ■ The police had DNA testing performed on the aborted fetus, which initially identified no foreign DNA and showed results only for.the victim’s DNA. A second test identified Appellant as the father of the fetus with a 98.9% level of confidence.

Appellant was arrested, charged with, and convicted of three counts of sexual battery on a person twelve to eighteen years old by a person in familial/custodial authority, two counts of lewd/lascivious molestation of a child twelve to sixteen years old, and one count of lewd/lascivious exhibition by a person eighteen years or older.

Appellant claimed in ground one of his motion for1 postconviction relief that his counsel assured him that he had a strong case because, among other things, the DNA evidence was inconclusive and they would be able to introduce evidence of the victim’s other sexual encounters. Shortly before trial, the trial court granted the State’s motion in limine pursuant to the rape shield laws. Appellant claims that ruling should have made it clear to his counsel that what Appellant understood to be an important part of his defense had been defeated before trial commenced. Further, it was clear prior to trial that the DNA results from the second test were unquestionably consistent with Appellant being the father of the aborted baby. Appellant alleges that, following' the ruling on the rape shield issue and with knowledge of the damning DNA test results, the State made a plea offer of a fifteen-year sentence in return for a guilty plea. Appellant asserted in ground one that his trial counsel, armed with the information discussed above, did not revise the case evaluation nor did they advise' him to accept that fifteen-year offer, rather 'than risk the 135-year prison sentence he received following his jury trial conviction.

The postconviction court summarily denied ground one but held’ an evidentiary hearing on grounds that are not the subject matter of this appeal. The issues to be addressed in ground one were whether counsel, following the rape shield ruling and receipt of the DNA test results, were ineffective by failing to revise their assessment of the strength of Appellant’s case or by failing to advise Appellant to accept the State’s fifteen-year prison offer. Rather than address those issues directly as to ground one, the postconviction court instead found that Appellant was not prejudiced because defense trial counsel had “subjected the State’s case to a meaningful adversarial testing.” . . ,¡

“A claim that . misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel.” Gray v. State, 220 So.3d 464, 466 (Fla. 5th DOA 2017) (quoting Colon v. State, 909 So.2d 484, 490 (Fla. 5th DCA 2006)). “If a ground’s allegations are facially sufficient (pled in sufficient detail), the trial court must grant an evidentiary hearing unless the allegations are legally invalid (legally insufficient on their'face) or records in the court’s file conclusively show that the defendant is entitled to no relief.” Lebron v. State, 100 So.3d 132, 133 (Fla. 5th DCA 2012) (citations omitted). We reverse the order as to 'ground one because the post-conviction court did not hold an evidentia-ry hearing nor did it attach any records addressing Appellant’s ground one claims. Accordingly, we remand and instruct the postconviction court to either • conduct an evidentiary hearing on the issues material to, ground one or attach documents that conclusively refute those issues.

REVERSED AND REMANDED WITH INSTRUCTIONS.

SAWAYA and ORFINGER, JJ., concur.


text:
    Raymond GARCIA, Appellant, v. R. A. G. BY AND THROUGH Mary HURD, Appellee.
    Case No. 5D17-718
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    Raymond Garcia, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, an inmate at a correctional facility, filed a motion to dissolve an injunction for protection against domestic violence. Simultaneously with that filing, he filed a motion seeking a telephone hearing on his motion to dissolve. Instead of granting the telephone hearing, the trial court entered an order scheduling a hearing at which “both parties shall be present.” Due to his incarceration, Appellant did not appear at the hearing, and. the trial court denied the requested relief. Had Appellant. timely appealed that ruling, we likely would have concluded that the failure to grant Appellant’s request for a telephone hearing was error. See Hubsch v. Howell Creek Reserve Cmty., 155 So.3d 474 (Fla. 5th DCA 2015) (holding that trial court denied incarcerated homeowner due process by failing to allow him to appear telephonieally at summary judgment hearing). When Appellant sought to file an untimely appeal, claiming that he was not served with the challenged order until forty-eight days after it was entered, we advised him that his only course of action was to file a motion in the trial court pursuant to Florida Rule of Civil Procedure 1.540(b). See Snelson v. Snelson, 440 So.2d 477, 477 (Fla. 5th DCA 1983) (holding that where no notice of entry of order was given to parties, relief is through rule 1.540(b) motion filed in trial court coupled with request for entry of new order).

This appeal involves the summary denial of Appellant’s rule 1.540(b) motion, in which he alleged under oath that he did not receive the challenged order until forty-eight days after its entry.. Appellant sought to set aside the prior order and obtain a new order that he could timely appeal. The trial court denied the motion, without setting it for hearing. In its order, the trial court did not address the merits of Appellant’s contention that he did not receive the prior order in time to file an appeal. Instead, it addressed the merits of its original order. Because the rule 1.540(b) motion was facially sufficient, the trial court should have conducted an evi-dentiary hearing to determine whether Appellant was entitled to relief, the disposi-tive issue being whether Appellant failed to receive the challenged order in a timely manner through no fault of his own. See Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So.3d 688, 691 (Fla. 2d DCA 2016) (holding that where rule 1.540(b) motion sets forth colorable claim for relief, trial court should conduct evi-dentiary hearing to determine whether relief should be granted (citing Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004))).

On remand, the trial court shall conduct a hearing on Appellant’s rule 1.540(b) motion, permitting Appellant’s attendance by telephone if he is still incarcerated.

REVERSED AND REMANDED.

ORFINGER, TORPY and WALLIS, JJ., concur.

      . Because the Family Law Rules of Procedure, adopted in 1995, apply to actions involving domestic violence injunctions, our prior order should have directed Appellant to rule 12.540, which is almost identical to rule 1.540(b).


text:
    Jerry Jerome HOLMES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-140
    District Court of Appeal of Florida, First District.
    Opinion filed October 31, 2017.

      Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jerry. Jerome Holmes, appeals his convictions and sentences for aggravated battery with a deadly weapon and possession of cannabis, and argues that the trial court reversibly erred by denying his request to represent himself. Finding that the trial court incorrectly denied Appellant’s request for self-representation, we reverse and remand for,a new trial.

At a May 8, 2014, hearing, the trial court conducted a Faretta inquiry, during which it explained to Appellant the advantages of having a lawyer and the disadvantages of self-representation. Appellant testified that he Was fifty-two years old, he can read and write, he has -no difficulty understanding English, he has a tenth grade education, he was not currently under the influence of drugs or alcohol, he was diagnosed with and treated for bipolar disorder and manic depression in 2001, he did not have any physical problems that would hinder self-representation, he had never represented himself at trial, and he had read very little about the law' and rules governing a trial. When. the trial court asked Appellant whether he was certain that he did not want an attorney, he stated, “No, sir, I’m not certain, but I know I’m illiterate to the law The trial court found Appellant competent to waive his right to counsel, and found that he did so knowingly and intelligently. At the end of the hearing, however, Appellant changed his mind and accepted counsel.

At a May 28, 2014, hearing, the trial court conducted another Faretta inquiry. Appellant again testified that he can, read and write, he has no difficulty understanding English, he was'not currently under the influence of any drugs or alcohol, he had no physical problems that would hinder self-representation,' and he' had never represented himself at trial and had not read anything about the law or rules governing trial. Appellant further testified that he has a tenth grade education, but then corrected himself and stated he has an eighth grade education;, he had been diagnosed with and treated for paranoid schizophrenia and manic depression, but had never been hospitalized because of those illnesses; and he was certain he did not want an appointed attorney. This time, the trial court denied Appellant’s request for self-representation and announced its ruling as follows:

The last time we were in court, I think was two or three weeks ago, you told me that you did not feel competent to represent yourself in this case. Based on the questions and answers youive given today, and based on that statement less than a month ago, I’m going to find that you are not competent to waive counsel

A jury convicted Appellant of aggravated battery with a deadly weapon, and he pled nolo contendere to possession of cannabis. This appeal followed.

A trial court’s decision on a request for self-representation is reviewed for an abuse of discretion. McGirth v. State, 209 So.3d 1146, 1157 (Fla. 2017). A person accuséd of a crime has a constitutional right to represent himself or herself. Neal v. State, 132 So.3d 949, 950 (Fla. 1st DCA 2014) (citing Faretta, v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Pasha v. State, 39 So.3d 1259 (Fla. 2010)). A defendant seeking to waive the right to counsel must be competent to waive the right, but need not be competent to represent himself or herself. State v. Bowen, 698 So.2d 248, 251 (Fla. 1997). The exception to the general rule is when the accused suffers from severe mental illness to the point where he.or,she is not competent to conduct trial proceedings by himself or herself. Neal, 132 So.3d at 950-51 (explaining that “[t]he accused need have no legal experience nor any special ability. It is enough that the accused understand the right to. be represented by counsel and decide voluntarily to proceed without counsel, assuming severe mental illness does not preclude self-representation’’ (citing Indiana v. Edwards, 564 U.S, 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008)). Thus,

it is error to deny a defendant’s unequivocal request to represent himself, regardless of his legal skills or .the complexity of the case, if. the trial court determines that the defendant made a knowing and intelligent waiver of the right to counsel and “does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself.'”

Id. (citing Fla. R. Crim. P. 3.111(d)(3)).

In Neal,' we reversed the appellant’s convictions because the trial court failed to apply the correct legal standard'in denying his request to proceed pro se where it did not even 'find whether his request was knowing and intelligent or whether he suffered from severe mental illness to the point that he was not competent to conduct trial proceedings by himself. 132 So.3d at 951. Similarly, in Williams v. State, we remanded for a new trial upon finding that the trial court failed to conduct a legally sufficient Faretta hearing where it “did ndt consider whether Williams’ waiver of counsel was knowing and intelligent and whether he r was mentally competent to represent himself, and impermissibly • denied Williams’ self-representation request based on a perceived lack of legal training and experience.” 163 So.3d 740, 741 (Fla. 1st DCA 2015); see also Wilson v. State, 201 So.3d 203, 205 (Fla. 2d DCA 2016) (“[T]he judge focused on the defendant’s legal knowledge and denied the request to proceed pro se expressly because the defendant was not qualified to represent himself. The court.made no finding as to the correct standard—whether the defendant was knowingly and intelligently waiving his right to counsel., Accordingly, we must reverse .”); Williams v. State, 163 So.3d 694, 697-98 (Fla. 4th DCA 2015) (remanding for a new trial upon concluding that the, trial court applied the incorrect legal standard in denying the appellant’s request for .self-representation where it based its ruling on a finding that he lacked competence to represent himself, due to insufficient legal knowledge and, never made findings as to whether he knowingly, voluntarily, and intelligently sought waiver of his right to counsel and whether he suffered from severe mental illness to the point where he was incompetent to conduct the proceedings by himself).

As such, Appellant correctly argues that the.trial court applied the.incorrect legal standard in denying his request for self-representation. First of all, the trial court did not make findings as to whether Appellant sought to waive his right to counsel knowingly and intelligently or whether he suffered from severe mental illness to the point where he was not competent to conduct trial proceedings by himself. Rather, the trial court expressly based -its ruling on Appellant’s statement at the May 8th hearing that he did not feel competent to represent himself and his .answers at the May 28th hearing.

Given that Appellant did not state during the May 8th hearing that he did not feel competent to represent himself, the trial court may have been referencing his statement about being “illiterate to the law.” Appellant’s lack of legal training and experience, however, was an impermissible • basis for denying his request for self-representation. See Bowen, 698 So.2d at 251; Williams, 163 So.3d at 697; Williams, 163 So.3d at 741.

Additionally, the trial court did not specify which of Appellant’s answers at the May 28th hearing led to its finding that he was not competent to waive counsel, contrary to its finding twenty days earlier. The State argues on appeal that Appellant’s conflicting testimony about his education level and testimony about his mental illnesses justified the denial of his request for self-representation. With regard to Appellant’s conflicting testimony about his education level, the trial court made no statement indicating that such testimony led to the change in its finding or played any role in its ultimate decision. In fact, Appellant’s • conflicting testimony about his education seems insignificant given that he was recalling events from decades earlier; he-Indicated he could read, write, and understand English; and the hearing transcripts reflect that he was articulate and understood the consequences of his decision. See McKinney v. State, 850 So.2d 680, 682 (Fla. 4th DCA 2003) (“If lack of education and legal skills were a basis for denying self-representation, few, if any, criminal defendants would ever qualify to represent themselves.”). Cf. State v. Bowen, 698 So.2d 248, 252 (Fla. 1997) (“[N]o citizen can be denied the right of self-representation-or any other constitutional right-because he or she has only a high school diploma.”).

As for Appellant’s testimony about his mental health diagnoses, the State relies on the distinguishable cases of Visage v. State, 664 So.2d 1101 (Fla. 1st DCA 1995), and Da Silva v. State, 966 So.2d 1013 (Fla. 4th DCA 2007). In Visage, we held that the trial court did not err by denying the appellant’s request for self-representation because the record indicated that he “was handicapped by more than merely a lack of legal experience.” 664 So.2d at 1101-02. A suggestion of mental incompetency had been filed, the trial court had a psychiatric report prepared and was aware that the appellant had a psychiatric history that included a suicide attempt and hospitalization, and, “[m]ore importantly, the appellant had been diagnosed with bipolar disorder for which he was presently taking antidepressant, tranquilizing and anti-manic medications.” Id. at 1102 (rejecting the appellant’s assertion that the trial court did not rely on his mental condition in rending its ruling). Likewise, in Da Silva, the Fourth District found no error in the trial court’s denial' of the appellant’s request to represent himself where the court relied on the “reports of medical experts that he suffers from schizophrenia.” 966 So.2d at 1015-16.

Here, in contrast, the trial court did not rely on Appellant’s mental illnesses in rendering its ruling—the court did not mention Appellant’s mental health, much less make a finding that he suffered from severe mental illness that rendered him incompetent to conduct the trial. In fact, the trial court granted Appellant’s request for self-representation during the May 8th hearing, while being aware that he had been diagnosed with certain mental disorders. Nor could the trial court have relied on Appellant’s diagnoses of mental illnesses in denying his request to proceed pro se because there was no evidence that, at the time of the hearing, he suffered from severe mental illness to the point where he was not competent to conduct trial proceedings by himself. Appellant received his diagnoses in 2001, well over a decade prior to the hearing; he was never hospitalized for those illnesses; there were no psychiatric reports; and there was no evidence indicating that he was presently suffering from any mental illness.

For the foregoing reasons, we conclude that the trial court erred by denying Appellant’s request to proceed pro se. Therefore, we reverse Appellant’s convictions and remand for a new trial.

REVERSED and REMANDED.

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    E.S., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, and the Guardian Ad Litem Program, Appellees.
    No. 4D17-2183
    District Court of Appeal of Florida, Fourth District.
    November 1, 2017
    Crystal J. Marsh of Marsh Law Firm, P.A., Port Saint Lucie, for appellant.
    Laura J. Lee, Sanford, for appellee Guardian ad Litem Program.
    Kelley Schaeffer, Bradenton, for appel-lee Department of Children and Families.
   Per Curiam.

In a fifty-five page final judgment terminating the parental rights of the mother to her son, the trial court reviewed the extensive evidence of medical neglect and the mother’s breach of her case plan. The mother primarily argues on appeal that competent, substantial evidence does not support the trial court’s detailed findings, nor is the evidence clear and convincing. We affirm.

On review, the task of the appellate court:

is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact. Instead, we will uphold the trial court’s finding “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of- terminating- ... parental rights.”

In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla. 1995) (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993)). This record is replete with evidence to support the findings of the trial court.

Appellant’s challenges to the expert witnesses on the extent of the records they reviewed to support their opinions were not preserved. In any event, this would go to the weight of their testimony, not to its. admissibility. See Nat Harrison Associates, Inc. v. Byrd, 256 So.2d 50, 53 (Fla. 4th DCA 1971). As to her claim that non-experts were' allowed to give" speculative expert opinions, these issues were also not preserved, nor does the record support appellant’s claim that the witnesses-were not sufficiently qualified to offer their opinions.

The court found, and the record supports: the grounds for termination; that termination was the least restrictive means to prevent further harm to the child;' and' that it is manifestly in the child’s best interest that the mother’s rights be terminated. We commend the trial court for its thorough, well-reasoned final judgment, which we affirm.

Warner, Gross and Taylor, JJ., concur.


text:
    Dustin PURDEE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2418
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 3, 2017
    Dustin Purdee, Orlando, pro se,
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent,
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 24, 2016 judgment and sentence in Case No. 2013-102945-CFDL, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER, and EDWARDS, JJ., concur.


text:
    William Turner MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-892
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 3, 2017
    James S. Purdy, Public Defender, and Robert Jackson Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for. Appellee.
   PER CURIAM.

-William Martin was convicted, after a jury trial, of- burglary of a dwelling and grand theft. On appeal, he argues that the trial court erred in denying his motion for judgment of acquittal on the grand theft charge because the State failed to prove that the value of the stolen items was over $300. We agree. See C.G. v. State, 123 So.3d 680, 681-82 (Fla. 5th DCA 2013) (holding that evidence was insufficient to establish value of stolen cellular telephone at $100 or more, and thus was insufficient to support conviction for first-degree petit theft, notwithstanding victim’s testimony that he paid approximately $200 for phone six months before theft, that he purchased case for phone and protective screen for glass right after purchasing it, and that phone was in good condition at time it was stolen; phone’s value was not so obvious as to defy contradiction, state did not attempt to establish value of cell phone through direct testimony, and state did not present evidence regarding depreciation in value).

Accordingly; we affirm Martin’s burglary conviction, but revérse Martin’s judgment and sentence for grand 'theft and remand-with instructions for the trial court to enter a judgment of guilt for petit theft. See Chappell v. State, 200 So.3d 159, 160 (Fla. 5th DCA 2016); Smith v. State, 955 So.2d 1227, 1229 (Fla. 5th DCA 2007).

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER, BERGER and WALLIS, JJ., concur,.


author: COHEN, C.J.

text:
    John O. RILEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4037
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 3, 2017
    William Douglas Stanford, Jr., St. Augustine, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee,. and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, C.J.

Appellant John Riley appeals an order summarily denying his motion for return of personal property. Appellant sought the return of a vehicle and • other personal property seized upon his arrest. We reverse.

Motions for return of personal property are “governed by procedures similar to those used in postconviction proceedings.” Shade v. State, 55 So.3d 722, 723 (Fla. 5th DCA 2011) (quoting Bolden v. State, 875 So.2d 780, 783 (Fla. 2d DCA 2004)). A facially sufficient motion alleges that: (1) the movant owns the property; (2) the property is not the fruit of criminal activity; and (3) the State is not holding the property as evidence. Scott v. State, 922 So.2d 1024, 1026 (Fla. 5th DCA 2006). It also specifically identifies the property. Id. Appellant’s motion was facially sufficient in this case; thus, the trial court was required to hold an evidentiary hearing or attach records conclusively demonstrating that Appellant was entitled to no relief. Bolden, 875 So.2d at 782-83.

The State disputes that Appellant owns the subject property, namely the vehicle listed in Appellant’s motion.' However, the records submitted by the State, and relied on by the trial court, do not conclusively demonstrate that Appellant has no ownership or possessory interest in the property. Therefore, the trial court erred in summarily denying the motion. On remand, the trial court must attach records conclusively refuting Appellant’s claim to the property or hold an evidentiary hearing on the motion. “[I]f the State is ‘unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property, it should be re-tened to [Appellant] or to such person(s) as he may designate.’ ” Id at 783 (quoting Stone v. State, 630 So.2d 660, 661 (Fla. 2d DCA 1994)).

REVERSED AND REMANDED.

TORPY and LAMBERT, JJ., concur.


text:
    John Alexis CAPELLAN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3122
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017
    John Alexis Capellán, Perry, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy- of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 19, 2017 order denying Petitioner’s pro se motion for post-conviction relief, filed in Case No. 14-2692-CFA in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, EVANDER and WALLIS, JJ., concur.


text:
    Glendalee RODRIGUEZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2616
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017
    Glendalee Rodriguez, Ocala, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 12, 2015 judgment and sentence in Case No. 2014-CF-15530-A, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., EVANDER and BERGER, JJ., concur.


text:
    Norman BABERS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2490
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017
    Norman Babers, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vinceni>-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is-granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 16, 2016 order denying Petitioner’s pro se motion for post-conviction relief, filed in Case No. 2003-CF-2939, in the Circuit Court in and for Lake County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, WALLIS and EISNAUGLE, JJ., concur.


author: LAMBERT, J.

text:
    Rhonda Arlene BRADY, Appellant, v. Guy Anthony BRADY, Appellee.
    Case No. 5D17-1370
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017

      ■ John N. Bogdanoff, of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    No Appearance for Áppelleé.
   LAMBERT, J.

Rhonda Brady (“Former Wife”) appeals the final judgment dissolving her marriage to Guy Brady (“Former Husband”), raising several issues' for review. Because we find merit in three of her arguments, we reverse the. judgment, in part, and, remand for further proceedings.

First, Former Wife challenges the $800 per month permanent periodic alimony awarded to Former Husband and the $22,400 awarded to Former Husband for retroactive- alimony computed at $800 per month over the twenty-eight-month period from the filing of the petition for dissolution, of marriage to trial. Former Wife correctly argües that the trial court erred in basing the alimony award on the parties’ respective gross incomes and not théir net incomes. See Gilliard v. Gilliard, 162 So.3d 1147, 1154 (Fla. 5th DCA 2015) (“A party’s ability to pay alimony should be based on the party’s net income; not gross income.” (citing Kingsbury v. Kingsbury, 116 So.3d 473, 474 (Fla. 1st DCA 2013)). On remand, the trial court must first determine the parties’ respective monthly net incomes and thereafter make a specific determination as to whether Former Husband has the need for alimony and whether Former Wife has the ability to pay alimony, not only prospectively but also for an award of retroactive alimony. See Motie v. Motie, 132 So.3d 1210, 1213-14 (Fla. 5th DCA 2014) (holding that the trial court erred in not making any findings of fact regarding the one spouse’s need or the payor spouse’s ability to pay during the retroactive period).

Second, Former Wife contends that the trial court erred in requiring that she maintain a $500,000 life insurance policy as security for her alimony obligation. Section 61.08(3), Florida Statutes (2015), permits the trial court to order a party to purchase or maintain a life insurance policy as security for payment of alimony. However, to do so, the trial court must make findings in the final judgment as to the spouse’s insurability, the cost of the proposed insurance, the ability of the spouse to afford the insurance, and whether appropriate circumstances exist to justify ordering the spouse to maintain this life insurance. See Bracero v. Bracero, 849 So.2d 388, 390 (Fla. 5th DCA 2003) (citing Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003); Lopez v. Lopez, 780 So.2d 164 (Fla. 2d DCA 2001)). These factual findings are lacking in the present final judgment. Thus, if the trial court again awards Former Husband permanent periodic alimony on remand, it may, in its discretion, require Former Wife to maintain an appropriate amount of life insurance as security for her alimony obligation, but it must make the required findings to support that determination.

Third, Former Wife argues that the trial court abused its discretion in ordering her to pay $5000 in attorney’s fees to Former Husband. We agree. “The standard for the trial court’s award of attorney’s fees in a dissolution action first depends upon the financial need of the requesting party and the financial ability to pay of the other party.” Ortiz v. Ortiz, 42, 227 So.3d 730, 2017 WL 4158857 (Fla. 3d DCA Sept. 20, 2017) (citing Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005); § 61.16, Fla. Stat. (2016)). Moreover, if the trial court finds that an entitlement to an award of attorney’s fees has been established based upon the need and the ability to pay, the court must then make factual findings that justify the specific amount of fees awarded. Id.

The trial court made no findings as to a reasonable hourly rate for Former Husband’s attorney’s services nor a reasonable number of hours for the attorney to have expended in representing Former Husband. The only basis provided by the court in its final judgment for this award is that Former Husband testified that he owes his attorney $5000 for taking this case to trial and asked that Former Wife be required to pay these fees. However, simply awarding the amount charged by an attorney without additional findings of fact is improper and an abuse of discretion. Id. (quoting Campbell v. Campbell, 46 So.3d 1221, 1223 (Fla. 4th DCA 2010)). On remand, after first addressing alimony, if the trial court thereafter finds that Former Husband is entitled to an award of attorney’s fees, cf. Galligar v. Galligar, 77 So.3d 808, 813 (Fla. 1st DCA 2011) (holding that trial court abused its discretion in awarding attorney’s fees where an equitable distribution of the marital property has been achieved and the trial court has equalized incomes through its alimony award), then it must also make the required factual findings to support the amount of the attorney fee award.

Finally, Former Wife asserts that the trial court committed three separate errors in its equitable distribution of the parties’ marital assets and liabilities. Our standard of review of a trial court’s determination of equitable distribution is abuse of discretion. Coleman v. Bland, 187 So.3d 298, 299 (Fla. 5th DCA 2016) (quoting Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th DCA 2008)). We find no abuse of discretion in the trial court’s distribution of the marital assets and liabilities, but we conclude that the trial court made a mathematical error in the final judgment that must be corrected. In its equitable distribution of the marital assets and liabilities, the net amount distributed to Former Wife exceeded Former Husband’s net benefit by $28,407.27. To rectify this uneven distribution, the trial court ordered that Former Wife pay an “equalizing payment” to Former Husband of $28,407.27 to achieve an equal division of the assets and liabilities. However, this equalizing payment merely switched the parties’ positions so that Former Husband’s net benefit from the equitable distribution now exceeds Former Wife’s by the same $28,407.27. The mathematically correct equalizing payment is $14,208.64. Therefore, on remand, the trial court is directed to amend the final judgment to reduce Former Wife’s equalizing payment to Former Husband to $14,203.64. See Smith v. Smith, 39 So.3d 458, 459-60 (Fla. 2d DCA 2010) (finding that when it is clear from the face of the final judgment that the trial court intended an equal distribution but, due to a mathematical error, the court effected an unequal distribution, reversal of the final judgment is necessary).

In sum, we reverse the portion of the final judgment that (1) awards Former Husband alimony, (2) requires Former Wife to maintain life insurance as security for the alimony, (3) awards Former Husband attorney’s fees, and (4) directs Former Wife to pay Former Husband the sum of $28,407.27 to equalize the court’s distribution of the marital assets and liabilities, and we remand for further proceedings on these matters consistent with this opinion. The trial court may take additional evidence as necessary. As to all other matters, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

SAWAYA and EVANDER, JJ, concur.

      . The court may consider whether $500,000 in life insurance is needed to fully secure any alimony awarded. Former Husband was fifty-seven years old at the time of the final judgment, and Former Wife was 'fifty-two. At the previous rate of $800 per month, it would have taken Former Wife just over fifty-two years to pay $500,000 in alimony.


text:
    Ben Lamont DENSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4337
    District Court of Appeal of Florida, First District.
    Opinion filed November 9, 2017
    Ben Lamont Denson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(d)(5).

WINOKUR, JAY, and WIÑSOR, JJ., CONCUR.


text:
    Ronald Durell DURR Jr., Petitioner, v. Major Jeff CLOUTIER, Director, Alachua County Department of the Jail; State of Florida, Respondents.
    CASE NO. 1D17-4130
    District Court of Appeal of Florida, First District.
    Opinion filed November 14, 2017
    Stacy A. Scott, Public Defender, and Danielle Broome Muller, Assistant Public Defender, Gainesville, for Petitioner,
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Respondent's.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

WINOKUR, JAY, and WINSOR, JJ., CONCUR.


text:
    David FORTHUBER, Appellant/Cross-Appellee, v. FIRST LIBERTY INSURANCE CORPORATION, Appellee/Cross-Appellant.
    Case No. 5D16-2599
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 17, 2017

      • James C. Hauser, of Attorney’s Fees in Florida . PL, Maitland, and Hewett G. Woodward, of The Woodward Law Firm, Orlando, for Appellant/Cross-Appellee.
    C. Ryan Jones and Scot E". Samis of Traub Lieberman Straus & Shrewsberry, LLP, St. Petersburg, for Appellee/Cross-Appellant.
   PER CURIAM.

Appellant challenges the adequacy of his attorney’s. fee award, pursuant to section 627.428, Florida Statutes (2010), rendered in this first-party insurance dispute. As the first of two issues raised on appeal, we address whether the trial court erred by refusing to' consider the hours expended by Appellant’s attorney while he was working at a prior law firm—the firm that originated the claim on Appellant’s behalf. The trial court categorically rejected these hours because that firm had withdrawn from representing Appellant before conclusion of the case, thereby waiving any claim to a fee. We hold that the trial court erred in failing to consider these hours in its award of a reasonable fee “in favor of the insured,” as provided in section 627.428. We also agree with Appellant that the trial court erred in limiting its prejudgment interest calculation by only including interest accruing through the date of the evidentiary fee hearing rather than the date it entered judgment. On cross-appeal, Appellee challenges a portion of the hours awarded by the trial court, claiming that they are attributable to time expended by Appellant’s counsel while employed by a different prior firm. We affirm the issue raised on cross-appeal without further discussion.

Appellant was represented by three different law firms during the course of the proceedings below, although the same lawyer, Hewett G. Woodward, handled the case throughout the six-year dispute. Initially, Woodward worked for Latham, Shuker, Eden & Beaudine, LLP. He then switched to another law firm before starting his own firm. When Woodward left the Latham firm, the firm advised Appellant in writing that he had two options: (1) hire Woodward to complete the case or (2) engage a different lawyer of his choosing. For reasons that are not in the record, the letter did not offer Appellant the option of continuing with the Latham firm. The fee agreements between Appellant and all firms were contingent on a successful outcome and required payment of the greater of a percentage of the recovery or a statutory reasonable fee.

Appellant signed and returned the letter to the Latham firm, indicating his intent to continue with Woodward as his attorney. The Latham firm then filed a notice of charging lien and subsequently obtained court permission to withdraw as Appellant’s counsel of record. During the resolution of a dispute between Appellant and the Latham firm concerning the merits of the firm’s charging lien, the Latham firm’s letter to Appellant was introduced into evidence. The trial court concluded that the Latham firm had forfeited or waived its entitlement to a fee by withdrawing from Appellant’s representation before the occurrence of the contingency. This ruling was apparently not challenged by the Latham firm and is conceded as correct by the parties to this proceeding.

After Appellant and Appellee settled the underlying dispute, Appellee agreed that Appellant was entitled to a reasonable fee. It contended, however, that the trial court should disregard the 247.2 hours logged by Woodward while he was employed by the Latham firm because that firm had forfeited its fee. The trial court agreed. Accordingly, it refused to consider whether all or any portion of those 247.2 hours were reasonably incurred and could be included in its determination of a reasonable fee under the statute. Appellant challenges this conclusion, which we review de novo.

We begin our analysis with a discussion of the applicable statute. Section 627.428 provides that a trial court “shall adjudge or decree against the insurer and in favor of the insured [who prevails] ... a reasonable sum as fees or compensation for the insured’s ... attorney.” § 627.428, Fla. Stat. (2010) (emphasis added). “[T]he statute is a one-way street offering the potential for attorneys’ fees only to the insured.” Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla. 1994). As the plain language of section 627.428 clearly establishes, the fees owed under the statute belong to “the insured not the insured’s attorney.” Fortune Ins. Co. v. Gollie, 576 So.2d 796, 797 (Fla. 5th DCA 1991). The statute does not specify the methodology of calculating the “reasonable sum [or] fees” to which the insured is entitled. Accordingly, courts typically determine the amount by multiplying the reasonable number of hours expended by a reasonable hourly rate. Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1150-51 (Fla. 1985).

The fee agreement between a lawyer and client, no matter how reasonable, does not control the amount of fees assessed against a third-party under a fee-shifting statute. For example, even though a lawyer and client may appropriately agree to a percentage-based fee agreement, where the contractual fee results in an effective hourly fee that greatly exceeds a customary and' reasonable hourly -rate, a third-party cannot be assessed a fee based upon the percentage formula. See, e.g., Kaufman & Broad Home Sys., Inc. v. Sebring Airport Auth., 366 So.2d 1230 (Fla. 2d DCA 1979) (where contingency contract resulted in hourly fee over three times reasonable hourly rate, award of fees based on contingency formula was excessive). The converse is also true. When a party is not contractually obligated to pay her lawyer or is obligated to pay the lawyer less than market rate, the party may still recover a reasonable fee using the Rowe formula under a fee-shifting statute. See, e.g., Rogers v. Vulcan Mfg. Co., 93 So.3d 1058, 1061 (Fla. 1st DCA 2012) (prevailing party could recover fees even though paid by employer); Wright v. Acierno, 437 So.2d 242, 244 (Fla. 5th DCA 1983) (reasonable fee not limited to amount paid by city to salaried attorney); see also Aspen v. Bayless, 564 So.2d 1081, 1082 (Fla. 1990) (fact that insurer paid costs did not preclude recovery under offer of judgment statute).

Although there are circumstances where the contractual relationship between a lawyer and client might cap the fees that may be recovered under a fee-shifting statute, here, the fee agreements did not establish a cap because they contained “alternative fee recovery clauses,” under which Appellant agreed to pay the greater of a percentage of the recovery or the statutory fee. Under this fee arrangement, the contractual agreement does not operate as a cap on statutory fees. This principle is illustrated in First Baptist Church of Cape Coral, Florida, Inc. v. Compass Construction, Inc., 115 So.3d 978 (Fla. 2013). There, the attorney defended an action pursuant to an hourly fee contract with the prevailing party’s insurer. First Baptist Church, 115 So.3d at 979. The contract specified an hourly rate of $170 and contained no contingency. Id. However, the fee contract also contained an “alternative fee recovery clause” authorizing a rate of $300 per hour (or higher as determined by a court) in the event the fee was ultimately paid by a third party under a fee-shifting contract or statute. Id. at 979-80. In reinstating the trial court’s .award of $350 per hour in fees, the Florida Supreme Court concluded that its prior precedents capping fees to the “fee agreement reached by the attorney and his client” did not apply to a fee contract containing an “alternative fee recovery clause.” Id. at 979, 983 (citation omitted).

In his thoughtful dissent in First Baptist Church, Justice Lewis argued that a distinction should be made between statutory fee-shifting provisions and- a contractual provision for indemnification, such as the one in First Baptist Church. In the latter situation, Justice Lewis urged that the fee should be limited to what the prevailing party is obligated to pay because indemnity is, by its nature, a “reimbursement obligation.” Id. at 989-90 (Lewis, J., dissenting). Fee shifting statutes, on the other hand, are not predicated on a reimbursement theory; they are based on the public policy. Although this' distinction did not carry the day in First Baptist Church, Justice Lewis’s analysis highlights the fact that the court rejected the notion that fee-shifting remedies are grounded in an indemnity theory. If they were so grounded, in a case such as Kaufman, the prevailing party would be entitled to reimbursement of a percentage fee, even if this were to result in an effective hourly rate far exceeding the prevailing hourly rate.

Applying these principles ' here, we conclude that the trial court should have considered all of the hours reasonably expended by all of Appellant’s attorneys in its calculation of a fee to be awarded to the insured. Under' the plain language of the statute and our controlling precedent, the entitlement to a reasonable fee is Appellant’s right, not his attorney’s. Appellant’s legal obligation to his attorneys had no bearing on the methodology for calculating a reasonable fee. Ap-pellee-’s argument that the fee-shifting statute only permits the court to “reimburse [Appellant] for the attorney’s fees incurred” ignores the plain language of the statute and distorts its objective. Indemnity is not the objective of this statute. This statute is calculated to level the playing field so that aggrieved insureds can find competent counsel to represent them. This is especially true in small cases such as this one, where,a percentage formula alone would not provide the incentive for a lawyer to undertake a case involving the potential commitment of many hours and substantial costs. The statute is also intended to dissuade insurers from delaying or denying the payment of legitimate claims.

We have not overlooked Appellee’s argument that our decision might result in a windfall to Appellant if he recovers fees that he is not obligated to pay either his past- or present attorneys. The factual basis for this assertion is unclear on this record. Nevertheless, we' note that the flip-side is that an insurer might reap a windfall if it is ordered to pay a fee that is less than the “reasonable sum” mandated by the 'statute. In the rare circumstance 'that this Hobson’s choice actually occurs, we think ’the statutory language mandates that any alleged windfall inure to the insured. See Buckley Towers Condo., Inc. v. Katzman Garfinkel Rosenbaum, LLP, 519 Fed.Appx. 657, 666 n.12 (11th Cir. 2013) (explaining that client should be entitled to excess amount resulting from difference between attorney’s fee recovered and attorney’s fee due),

REVERSED AND REMANDED, as to appeal; AFFIRMED as to cross-appeal.

TORPY, EDWARDS and EISNAUGLE, JJ„ concur.

      . As we have previously held, when an attorney is employed on a contingency basis, unless he is discharged by the client without cause before the contingency occurs, he forfeits his right to a fee by withdrawing before the contingency occurs. Kirschner v. Biritz, 843 So.2d 349, 350 (Fla. 5th DCA 2003). The only exceptions to this rale are when the attorney's continued representation is “legally impossible” or when the "client’s conduct would cause the attorney to violate the law or an ethical rule of conduct.” DePena v. Cruz, 884 So.2d 1062, 1063-64 (Fla. 2d DCA 2004).

      . The trial court did not apply a multiplier here, a ruling that is not challenged.

      . On this basis we distinguish Liberty Mutual Insurance Co. v. Holbrook, 861 So.2d 1216 (Fla. 2d DCA 2003), upon which Appellee relies. In that case, the attorney, who had forfeited her fee by withdrawing, intervened in the action and-asserted entitlement to a fee in her own right. Holbrook, 861 So.2d at 1217, Consistent with our precedents in Fortune Insurance Co. v. Gollie, 576 So.2d 796 (Fla. 5th DCA 1991), and Kirschner v. Biritz, 843 So.2d 349 (Fla. 5th DCA 2003), our sister court properly rejected the attorney’s claim to fees. Holbrook did hot address the situation we have here, where the insured is the party seeking the fee to which the insured is statutorily entitled.

      . The fact that this case is one of first impression suggests that this is a rare circumstance and that law firms more often offer the client served by a departing lawyer the opportunity to continue with the firm, providing the form of notice authorized by Rule Regulating The Florida Bar 4-5.8(d).


author: PER CURIAM. EVANDER,. J.,

text:
    AUSTIN & LAURATO, P.A., Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    Case No. 5D15-3616
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 17, 2017

      Michael V. Laurato, Kimberly Hendee and Hannah E. Austin, of Austin <& Laura-to, PA, Tampa, for Appellant. • •
    Scot E. Samis, of Traub Lieberman Straus & Shrewsberry LLP, St. Peters-burg, for Appellee.
   PER CURIAM.

In this sinkhole case, Austin & Laurato, P.A. (“Law Firm”) appeals the final judgment on entitlement to attorney’s fees that the trial court entered in favor of State Farm Florida Insurance Company (“State Farm”) as a sanction for filing a frivolous complaint under section 57.105(1), Florida Statutes (2012). The final judgment imposed attorney’s fees jointly and severally against Law Firm and its client, Armelle Cleophat. We reversé.

Orders awarding attorney’s fees as a sanction under section 57.105(1) for raising frivolous claims or defenses are reviewed for an abuse of discretion. Jean-Pierre v. Glaberman, 192 So.3d 613, 613 (Fla. 4th DCA 2016) (quoting Lago v. Kame By Design, LLC, 120 So.3d 73, 74 (Fla. 4th DCA 2013)). Under this standard, “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980).

Section 57.105(1) permits a prevailing party to seek an award of attorney’s fees, including prejudgment interest, against the losing party and the losing party’s attorney in equal amounts if the court finds that the losing party and its attorney knew or should have known that the claim or defense “[w]as not supported by the material facts necessary to establish the claim or defense” or “[w]ould not be supported by the application of then-existing law to those material facts.” However, monetary sanctions may not be awarded “if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.” § 57.105(3)(a), Fla. Stat. (2012). A trial court’s findings on imposing attorney’s fees as a sanction under section 57.105(1) must “be based upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial record.” Blue Infiniti, LLC v. Wilson, 170 So.3d 136, 140 (Fla. 4th DCA 2015) (quoting Montgomery v. Larmoyeux, 14 So.3d 1067, 1073 (Fla. 4th DCA 2009)).

An order awarding attorney’s fees as a sanction under section 57.105(1) “must include findings by the trial court to support the award.” Goldberg v. Watts, 864 So.2d 59, 60 (Fla. 2d DCA 2003) (citing Mason v. Highlands Cty. Bd., 817 So.2d 922, 923 (Fla. 2d DCA 2002)). “[T]he trial court must find that there were no justicia-ble' issues of law or fact and that the losing party’s attorney did not act in good faith based on the representations of his or her client.” Siegel v. Rowe, 71 So.3d 205, 211 (Fla. 2d DCA 2011) (quoting Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1143 (Fla. 4th DCA 2001)). Findings are also required to justify the amount of attorney’s fees awarded in the case. Jackson v. Jackson, 177 So.3d 639, 641 (Fla. 2d DCA 2015) (citing Perez v. Perez, 100 So.3d 769, 771 (Fla. 2d DCA 2012)). These findings cannot be made by the appellate court, and, in their absence, the case must bé remanded tó the trial court for it to make the findings. Boca Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla. 2005) (quoting Kurzweil v. Larkin Hosp. Operating Co., 684 So.2d 901, 903 (Fla. 3d DCA 1996)).

Here, the order on entitlement to attorney’s fees contains a recitation of the facts of the case, but only two findings related to sanctions. The first,-in paragraph 14, was that after the motion for sanctions was served on them, Cleophat and Law Firm “refused to take corrective action and pursued the lawsuit without pause,” The second, found in paragraph 18, was that “the [plaintiff and her attorneys failed to show any good faith basis for the action.”. Standing alone, such findings are insufficient to assess attorney’s fees against an attorney for the losing party as there must also be a finding that counsel knew or should have known at the time the complaint was filed that the claims against State Farm were not' supported by material facts necessary to establish the claims or were not supported by the application of then-existing law to the material facts. See Ballack, 783 So.2d at 1143. The trial court must also consider whether the claim was “initially presented to the. court as a good faith argument, for, the extension, modification, or reversal of existing law or the establishment of new.law” because such a finding would preclude sanctions under section 57.105. See § 57.105(3)(a), Fla. Stat.

Although we are unwilling to com elude that the trial court abused its discretion in awarding attorney’s fees to State Farm as a sanction, see Canakaris, 382 So.2d at 1203 (“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of- the trial judge and should apply the ‘reasonableness’' test to determine whether the trial judge abused his discretion.”), we are compelled to reverse because the trial court failed to make the requisite factual findings in its order. The trial court also erred in imposing joint and several liability on Law Firm and Cleophat as, under these circumstances, each could only be responsible for fifty percent of the attorney’s fees sanction. See § 57.105(1), Fla. Stat.

Accordingly, we revérse the order on entitlement to attorney’s fees and the final judgment entering attorney’s fees jointly and severally against Law Firm and Cleophát, and remand for further consideration.

REVERSED and REMANDED.

BERGER, J., and PAULK, G.T., Associate Judge, concur.

EVANDER, J., concurs in part, dissents in part, with opinion.

EVANDER,. J.,

concurring in part, dissenting in part.

I agree that the trial court’s order must be reversed. However, I believe that it was an abuse of discretion to grant section 57.105 sanctions in the instant case.

Cleophat filed a breach of contract action against State Farm, alleging that State Farm had failed to pay for sinkhole damages covered under the homeowners insurance policy issued by State Farm to Cleophat. State Farm never filed an answer to the complaint, but did file a motion for summary judgment. In its motion, State Farm alleged that Cleophat did not comply with- certain policy provisions in that she did not immediately notify State Farm of the loss, did not timely file a sworn proof of loés, and did not appear for a scheduled examination under oath.

The summary judgment evidence supported State Farm’s contention that Cleop-hat had failed to comply with post-loss provisions set forth in the insurance policy. However, the summary judgment evidence was woefully lacking (from both parties) as to whether State Farm had been prejudiced by Cleophat’s lack of compliance. The record suggests that the trial court gave little, if any, consideration to -the prejudice issue. Our court per curiam affirmed the final summary judgment entered in favor of State Farm. Cleophat v. State Farm Fla. Ins. Co., 166 So.3d 803 (Fla. 5th DCA 2015).

Where an . insured has failed to comply with a condition subsequent (such as failing to appear for a scheduled examination under oath), the general rule is that the insurer has the burden to establish that it was prejudiced by the insured’s noncompliance. See State Farm Mut. Auto. Ins. Co. v. Curran, 83 So.3d 793, 802-06 (Fla. 5th DCA 2011), approved, 135 So.3d 1071, 1078-79 (Fla. 2014); see also Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla. 1985) (citing Nat’l Gypsum Co. v. Travelers Indem. Co., 417 So.2d 254 (Fla. 1982)). Where the insured has failed to comply with a notice of loss provision, there is a rebuttable presumption of prejudice. Macias, 475 So.2d at 1218. Given the scarcity of the summary judgment evidence addressing the issue of prejudice, I would suggest that the final summary judgment entered in favor of State Farm was affirmed only because, with regard to the noncompliance with notice of loss provisions, Cleophat failed to overcome the presumption of prejudice. See id. Cleophat’s failure to overcome the rebuttable presumption of prejudice in this case does not support a finding that she or her attorneys knew or should have known that her claim “[w]as not supported by material facts necessary to establish [her] claim.” § 57.105(1), Fla. Stat. (2012). Thus, it was error to impose section 57.105 sanctions.

      . State Farm eventually reached a settlement with Cleophat, and the appeal as to her was voluntarily dismissed.

      . Here, although the complaint was not supported by then-existing law in this district, see Starling v. Allstate Floridian Ins. Co., 956 So.2d 511 (Fla. 5th DCA 2007), the law was shifting on the issue of prejudice. See State Farm Mut. Auto. Ins. Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011); Whistler's Park, Inc. v. Fla. Ins. Guar. Ass'n, 90 So.3d 841 (Fla. 5th DCA 2012).

      . Notably, joint and several liability would impose the entire amount, of-the judgment on both Law Firm and Cleophat. There is no authorization in section 57.105 for that outcome. While section 57.105 contemplates situations where either the client or the attorney may be liable for one hundred percent of the fee award, it does not permit both to be held liable for the entire award.

      . In the event the trial court concludes sanctions are appropriate on repiand, State Farm is not entitled to recover attorney's fees incurred litigating the amount of attorney’s fees, see Wood v. Haack, 54 So.3d 1082, 1084 (Fla. 4th DCA 2011), and is not entitled to appellate attorney’s fees incurred in the first appeal. See Santiago v. Sunset Cove Invs., Inc., 198 So.3d 658, 659 (Fla. 2d DCA 2015).

      . I would also suggest that Cleophat could have made a good faith argument that the law should be modified to require insurers to establish prejudice for breach of notice of loss provisions as well as breach of cooperation clauses. See § 57.105(3)(a), Fla. Stat. (2012).


author: PER CURIAM:

text:
    STATE EX REL. Rodney MASON, Jr. v. STATE of Louisiana
    No. 2016-KH-1570
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST

PER CURIAM:

|T Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr,P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated at least one application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P, art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully ^litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Drew ARNOLD v. STATE of Louisiana
    No. 2016-KH-1554
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

I,Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to-federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-convic.tion procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application 12applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: PE £ CURIAM:'

text:
    STATE EX REL. Charles H. LEE, Jr. v. STATE of Louisiana
    No. 2016-KH-1457
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PE £ CURIAM:'

| denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claims' are'not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated at least three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the-narrow circumstances provided in. La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the | ^legislature in 2013 La. Acts 251 amended, .that article to make the procedural bars against successive filings mandatory. Relator’s claims have nQW been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Eric Paul MCCLAIN v. STATE of Louisiana
    No. 2016-KH-1434
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY

PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant in part and deny in part.


text:
    STATE EX REL. Albert HUEY v. STATE of Louisiana
    No. 2016-KH-1338
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OP EAST BATON ROUGE

PER CURIAM:

| ¶ Denied. Relator shows no error by the lower courts. Cf. State v. Hawkins, 96-0766, p. 8 (La. 1/14/97), 688 So.2d 473, 480 (“An incomplete record may be adequate for full appellate review”).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. . Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Eric D. HARRISON v. STATE of Louisiana
    No. 2016-KH-1420
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON

PER CURIAM:

| ¾ Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-cónviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article, to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Bradley G. WOOD
    NO. 2017-B-1949
    Supreme Court of Louisiana.
    11/22/2017
   ORDER

^[¿Considering the Joint Petition for Interim Suspension filed by respondent, Bradley G. Wood, and the Office of Disciplinary Counsel,

,IT IS, ORDERED that Bradley G. Wood, Louisiana Bar Roll number 34162, be and he hereby is suspended from the practice of law, on an interim basis pursuant-to Supreme Court Rule XIX, § 19.3,. pending further orders of this court. Pursuant to .Supreme Court Rule XIX, § 26(E), this order is effective immediately.


author: PER CURIAM: '

text:
    STATE EX REL. Tyrone Tyrell JOHNSON v. STATE of Louisiana
    No. 2016-KH-1418
    Supreme Court of Louisiana.
    11/17/2017
   ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE

PER CURIAM: '

I denied. Relator fails to show that he is entitled to an out-of-time appeal-pursuant to State v. Counterman, 476 So.2d 336(La. 1986); Cf. La.C.Cr.P. art. 930.2. In addition, he fails to show that he .received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 act. 2062, 80 L.Ed.2d 674 (1984).

Relator has iiow fully litigated his application for post-cónviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his -right to state collateral review. The . district court is ordered to record a minute entry consistent with this per curiam.


text:
    Ronald OHLSSON v. STATE of Louisiana
    No. 2016-KP-1186
    Supreme Court of Louisiana.
    11/17/2017
   ON WRIT OF CERTIORARI TO THE FIFTH CIRCUIT COURT OF APPEAL, PARISH OF JEFFERSON

PER CURIAM:

hWrit granted. The court of appeal’s ruling is reversed and the district court’s ruling dismissing relator’s application for post-conviction relief as untimely pursuant to La.C.Cr.P. art. 930.8 is reinstated.' Though this court issued an order denying relator’s writ after the court of appeal affirmed his convictions and sentences on direct review, see State ex rel. Ohlsson v. State, 13-1583 (La. 1/17/14), 130 So.3d 343, his writ was nonetheless untimely pursuant to La.S.Ct.R. X, § 6(a). In accordance with La.C.Cr.P. art. 922,' his convictions and sentences became final 14 days after the Fifth Circuit affirmed them in State v. Ohlsson, 12-0708 (La. App. 5 Cir. 4/24/13), 115 So.3d 54. See, e.g., State v. Jones, 04-0879 (La. 11/15/04), 888 So.2d 766.

Relator then had two years, or until' May 8, 2015, to file any claims for post-conviction relief in the district court. Instead, he waited until 2016. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-laconviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4' and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this‘'denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.