author: EVANDER, J.

text:
    Scott Henry WHEELER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-867
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017

      Thomas D. Sommerville, of Law Offices of Thomas D. Sommerville, P.A., and Stuart I. Hyman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Scott Wheeler appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that the postconviction court erred in summarily denying Wheeler’s claim that trial counsel was ineffective in failing to file a legally sufficient motion to disqualify the trial judge. Although this claim was insufficiently alleged, Wheeler should have been afforded an opportunity to amend. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). We otherwise affirm the trial court’s order.

Failure to timely file a motion to disqualify a judge, or to file a legally sufficient motion to disqualify a judge; may be the basis for a postconviction claim of ineffective assistance of counsel. See Thompson v. State, 990 So.2d 482, 489 (Fla. 2008) (failure to file timely motion); Kleppinger v. State, 884 So.2d 146, 149 (Fla. 2d DCA 2004) (failure to file legally sufficient motion). However, the Strickland standards for deficiency and prejudice still apply to the failure to file these motions. Thompson, 990 So.2d at 489. That is, a defendant must demonstrate both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Here, Wheeler adequately alleged that his trial counsel was ineffective in failing to file a legally sufficient motion to disqualify. The motion and amended motion to disqualify the trial judge filed by Wheeler’s counsel shortly before trial were properly determined to be legally insufficient. See Keitel v. Agostino, 162 So.3d 88, 90 (Fla. 4th DCA 2014) (“A legally sufficient motion for disqualification cannot be based upon rumors or gossip about what the trial judge allegedly said to unidentified people, at unidentified times, and under unidentified circumstances.”). In his postconviction motion, Wheeler adequately alleged that his trial counsel was in possession of information that, if included in a motion or amended motion to disqualify, would have been sufficient to require the trial court to grant the motion.

However, Wheeler failed to adequately allege that he was prejudiced as a result of his trial counsel’s alleged ineffectiveness. Wheeler simply alleged, in a con-clusory manner, that as a result of his counsel’s ineffectiveness, he was subject to trial proceedings conducted by a “biased” judge who bore animosity towards Wheeler and his counsel. Wheeler was required to set forth specific factual allegations as to how the lower court proceedings were affected by the trial judge’s bias.

A mere conclusory allegation that the outcome would have been different is insufficient to state a claim of prejudice under Strickland; the defendant must demonstrate how, if counsel had acted otherwise, a reasonable probability exists that the outcome would have been different—that is, a probability sufficient to undermine confidence in the outcome.

Jones v. State, 998 So.2d 573, 584 (Fla. 2008).

In Thompson, the supreme court emphasized that a determination that counsel performed deficiently in failing to file a legally sufficient motion to disqualify the trial judge did not, in and of itself, entitle a defendant to postconviction relief. 990 So.2d at 490. A defendant is further required to demonstrate that the result of his trial court proceeding “has been rendered unreliable” and that confidence in the outcome of the trial proceeding “has been undermined by counsel’s deficiency.” Id. On remand, the trial court shall afford Wheeler the opportunity to amend his claim, if he is able to do so in good faith.

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

BERGER, J. and JACOBUS, B.W., Senior Judge, concur.

      . The trial judge did preside over the postcon-viction proceeding.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . In Thompson, the Florida Supreme Court ultimately concluded that there was nothing in the record that undermined its confidence in the jury’s determination of guilt, but that counsel’s failure to timely disqualify the trial judge rendered the result of the defendant’s sentencing unreliable. 990 So.2d at 491.


source: Caselaw Access Project

author: LAMBERT, J.

license: Public Domain

text:
    DEPARTMENT OF REVENUE, O/B/O Erin MEEKER, Petitioner, v. Robert SILVA, Respondent.
    Case No. 5D16-2470
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Petitioner.
    Richard L. Trionfo, of Richard L. Trion-fo, P.A., Brandon, for Respondent.
   LAMBERT, J.

The Florida Department of Revenue (“DOR”) seeks certiorari review of an order directing the parties and minor child to submit to scientific paternity testing in a proceeding brought by DOR to register and enforce a child support obligation previously ordered by a court in the State of Texas. Concluding that the order departs from the essential requirements of law and will cause irreparable harm that cannot be cured on plenary appeal, we grant the petition and quash the order.

On August 16, 2006, Erin Meeker (“Meeker”) gave birth to the minor child, V.S., in Texas. The following day, the Respondent, Robert Silva (“Silva”), who was not married to Meeker, executed an affidavit acknowledging the paternity of V.S. On August 19, 2008, an order was issued by the Texas court finding Silva to be the father of V.S. and establishing Silva’s child support obligation for his child. Thereafter, on October 7, 2009, Silva’s child support obligation to V.S. was modified by the Texas court, which entered an “Agreed Order in Suit for Modification of Support Order and to Confirm [Silva’s] Support Arrearage.”

Meeker subsequently moved with the minor child to Maine, where she and the child continue to reside. Silva now resides in Florida. In July 2013, DOR registered the October 7, 2009 Texas order (modifying child support) in Florida pursuant to the Florida Uniform Interstate Family Support Act. In response, Silva filed a motion pursuant to section 742.12, Florida Statutes (2014), requesting scientific paternity testing, asserting that he believed he may not be the biological father of V.S. based upon his “investigation of [Meeker’s] behavior during the time of conception of the minor child.” Following a hearing at which no testimony was taken, the trial court entered the unelaborated order now under review, granting Silva’s motion.

To be entitled to certiorari relief, DOR must establish that the circuit court order departs from the essential requirements of law and that the order will cause irreparable harm that cannot be cured on plenary appeal. State, Dep’t of Rev. ex rel. Carnley v. Lynch, 53 So.3d 1154, 1156 (Fla. 1st DCA 2011) (citations omitted). Here, the irreparable harm requirement allowing this court to exercise jurisdiction has been met because any error in an order requiring a child to submit to paternity testing cannot be corrected on plenary appeal once the genetic testing is completed. See State, Dep’t of Rev. ex rel. Striggles v. Standifer, 990 So.2d 659, 661 (Fla. 1st DCA 2008) (“[S]ubjecting the mother and child to a potentially intrusive paternity test threatened irreparable harm that could not be remedied on plenary appeal.” (additional citations omitted) (citing State Dep’t of Rev. ex rel. Sharif v. Brown, 980 So.2d 590 (Fla. 1st DCA 2008))); see also Dep’t of Rev. ex rel. T.E.P. v. Price, 958 So.2d 1045, 1046 (Fla. 2d DCA 2007) (“Because this error cannot be corrected through a direct appeal, for the improper genetic testing requiring a blood draw would have already been completed, the error must be corrected through certiorari proceedings.” (citing State v. Bjorkland, 924 So.2d 971, 975 (Fla. 2d DCA 2006))).

Having certiorari jurisdiction to review the order, we next address whether the order departs from the essential requirements of law. For purposes of cer-tiorari relief, an order departs from the essential requirements of law when it violates clearly established principles of law which can come from “controlling case law, rales of court, statutes, and constitutional law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). For the following reasons, we conclude that the instant order violates these principles.

First, the proceeding before the circuit court was to register and enforce a child support order entered in another state after paternity had been conclusively established. Section 88.3151, Florida Statutes (2015), provides that “[a] party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this act.” Second, Silva filed his motion for scientific paternity testing pursuant to section 742.12, which, by its own terms, is not applicable to the present proceeding as this statute pertains to “any proceeding to establish paternity.” § 742.12(1), Fla. Stat. (2014) (emphasis added). Paternity regarding this minor child was established long ago. Third, although there are circumstances under which a male may seek to disestablish paternity or terminate a child support obligation when he is not the biological father of the child, to do so requires the filing of a petition and affidavit with specific pleading requirements. See § 742.18(1), Fla. Stat. (2014). However, Silva has not filed such a petition. Additionally, Silva acknowledged in his response to DOR’s certiorari petition that he is not requesting that the Florida court disestablish paternity if the testing shows that he is not the biological father of V.S. and “understands that ... he would have to go to the court that has jurisdiction to go forward with his action to disestablish paternity.”

Simply put, there was no basis for the circuit court to order paternity testing because no paternity action was pending before it. Under these circumstances, the court order compelling scientific paternity testing was akin to a discovery order. However, “no party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy" and (2) ‘good cause’ exists for the testing.” Fla. Dep’t of Rev. ex rel. Corbitt v. Alletag, 156 So.3d 1110, 1112 (Fla. 1st DCA 2015) (quoting Lynch, 53 So.3d at 1156-57). Here, the trial court made no finding of “good cause” in the challenged order nor was there any testimony or evidence presented that could have supported such a finding. Thus, if construed as a discovery order, it was improvidently entered.

Accordingly, we grant DOR’s petition for a writ of certiorari and quash the trial court’s order that directed the parties and the minor child to make themselves available for scientific paternity testing.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER QUASHED.

BERGER, J., and JACOBUS, B.W., Senior Judge, concur.

      . The modification order reflects that Silva personally appeared before the court and agreed to the entry of this order.

      . Chapter 88, Florida Statutes (2013).


author: CRENSHAW, Judge.

text:
    Jennifer C. MYRICK, Appellant, v. Dennis M. MYRICK, Appellee.
    Case No. 2D15-3181
    District Court of Appeal of Florida, Second District.
    Opinion filed March 24, 2017

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Virginia R. Vetter, Tampa, for Appellee.
   CRENSHAW, Judge.

The former wife appeals the trial court’s order denying her request for attorney fees and costs and requiring her to pay the former husband’s attorney fees and costs incurred in this post-dissolution modification proceeding. We affirm the denial of the former wife’s fees and costs without further comment. Because the trial court erred in ordering the former wife to pay nearly all of the former husband’s attorney fees in this matter apparently as a sanction for the former wife’s litigation conduct, we reverse.

The parties’ marriage was dissolved by a final judgment entered in 2012 which incorporated the parties’ Marital Settlement Agreement (MSA). Under the MSA, the parties agreed to have shared parental responsibility with respect to their minor child. They also agreed to a parenting plan and timesharing schedule wherein the former wife would have the majority time-sharing with the child. The MSA provided that “[i]n the event that the Husband shall relocate his residence to within a ten (10) mile radius of the Wife’s current residence, the parties agree to revisit the Parenting Plan and Timesharing Schedule with the minor child taking into consideration the Husband’s proximity to the child.”

In January 2013, the former husband relocated to within a ten mile radius of the former wife’s residence and tried to revisit the timesharing agreement with the former wife. When the former wife apparently refused to amicably revisit the issue, the former husband obtained counsel who then filed a petition for modification in February 2013, seeking primary residential responsibility of the child, or, alternatively, joint rotating timesharing as well as a corresponding change to his child support obligation. Over the course of the proceedings, the former husband obtained new counsel and expanded his requests for relief. In response to the former husband’s evolving requests, the former wife eventually suggested a 50/50 timesharing arrangement in October 2013. Nevertheless, the litigation continued and in his Second Amended Supplemental Petition for Modification filed in June 2014, the former husband sought sole parental responsibility and a majority of the timesharing. The case proceeded to a final hearing on the former husband’s latest modification petition in July and September of 2014, after which the trial court awarded the former husband 100% of the overnights with the child and ultimate parental responsibility regarding the child’s educational and mental health issues. The former wife’s contact with the child was restricted to alternate weekend days and Wednesday dinners after school.

Both parties then moved for attorney fees and costs. In his motion for attorney fees and costs, the former husband-alleged that he did not have sufficient funds to pay his fees, that the former wife did have the ability to pay, and that she “should be required to do so, especially because of the unreasonable position she took in this case.” The motion did not mention section 61.16, Florida Statutes (2014), Rosen v. Rosen, 696 So.2d 697 (Fla. 1997), or any other basis for the award. After a hearing, the trial court denied the former wife’s request for fees and costs and ordered the former wife to pay all of the former husband’s fees and costs, totaling $99,876.24, Although the trial court did not explicitly state the basis for its award to the former husband, the court’s findings and the cases cited in its order suggest that it awarded the fees under the inequitable conduct doctrine. See Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla. 1998). The trial court subsequently granted the former wife’s motion for rehearing to the extent that the court reduced the former husband’s fee award by $3550—representing the work of the former husband’s first áttorney— bringing the total amount to $96,326.24.

The former wife now argues that the fee award must be reversed because the trial court failed to make sufficient findings to justify the award under the inequitable conduct doctrine. Regardless of the lack of findings, she contends that her behavior in this litigation did not rise to the level warranting application of the inequitable conduct doctrine. We agree.

“We review an award of attorney’s fees ... for abuse of discretion.” Arena v. Arena, 103 So.3d 1044, 1045 (Fla. 2d DCA 2013). “Any determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody begins with section 61.16, Florida Statutes .... ” Rosen, 696 So.2d at 699.

Under' this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frústrate or stall); and the existence and course of prior or pending litigation.

Id. at 700. Distinct from this scheme, the trial, court also has the inherent authority under the inequitable conduct doctrine to award attorney fees as a sanction where one party has exhibited egregious conduct or acted in bad faith. See Bitterman, 714 So.2d at 365; Rogers v. Wiggins, 198 So.3d 1119 (Fla. 2d DCA 2016); Hahamovitch v. Hahamovitch, 133 So.3d 1020 (Fla. 4th DCA 2014). “Such awards are rarely applicable and should be reserved for extreme cases in which a party litigates vexatiously and in bad faith.” Hallac v. Hallac, 88 So.3d 253, 259 (Fla. 4th DCA 2012). “When a court uses its inherent authority to assess attorney’s fees, the court must make an express finding of bad faith and include facts justifying the imposition of the award,” Hahamovitch, 133 So.3d at 1025; see also Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002) (“[A] finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.”). The trial court must also explicitly apportion the amount of the award that is directly related to the attorney fees and costs that the opposing party incurred as a result of the additional work caused by the specific bad faith conduct of the other party. Heiny v. Heiny, 113 So.3d 897, 903 (Fla. 2d DCA 2013). Unlike the scheme under section 61.16, when proceeding under the inequitable conduct doctrine the trial court does not need to make an express finding of need and ability to pay. Becker v. Becker, 778 So.2d 438, 439 (Fla. 1st DCA 2001).

Although the trial court did not explicitly state the basis for its award, it is evident that the court awarded the fees under the inequitable conduct doctrine. For instance, the trial court made no mention of section 61.16 in the portion of the order awarding the former husband his fees and costs, nor did it make any findings regarding need and ability to pay. The trial court also found several cases discussing the inequitable conduct doctrine “instructive,” including Mettler v. Mettler, 569 So.2d 496 (Fla. 4th DCA 1990), and its progeny. Finally, many of the trial court’s findings suggest that it was proceeding under the inequitable conduct doctrine:

The Court specifically finds that this entire case, since it began at the Former Husband’s relocation on January 9, 2013, was made necessary by the Former Wife’s conduct, her actions, and her life choices.... [T]he Court specifically finds a pattern of excessive, expensive, and needless litigation.... [T]he Court finds that the Former Wife’s actions have been abusive of the judicial system, not of taking up this Court’s time, but to the two years of the parties’ respective fives and that of their young son.

Having identified the trial court’s basis for the award, we conclude that the trial court failed to make the specific findings to justify the award under the inequitable conduct doctrine. Nowhere in the order did the trial court make a finding that the former wife acted in bad faith. On the contrary, the trial court found that it did not know why the former wife litigated the case:

The Court does not know why [the former wife] has kept up the litigation and can only suppose that it may be in some manner related to the mental problems or perhaps it is just an obstinate refusal to appreciate that she is not a good person to parent the parties’ child.

And with the exception of a finding relating to additional work caused by the former wife’s “apparent decision to remain un- or under-employed,” the court failed to adequately describe how any specific misconduct caused additional work. In essence, the trial court determined that all of the former husband’s second attorney’s work in this case constituted additional work caused by the former wife’s “conduct, her actions, and her life choices.” The trial court’s blanket finding simply lacks the “high degree of specificity” required by Moakley, 826 So.2d at 227.

Apart from the lack of findings, the fee award constitutes an abuse of discretion because the former wife’s conduct in this case does not rise to the level of conduct that the inequitable conduct doctrine was intended to punish. See Rogers, 198 So.3d at 1122 (“While the trial court viewed the mother’s actions as selfish and contrary to the best interests of the child, those findings in and of themselves do not support an award of fees as a sanction under the inequitable conduct doctrine.”). The trial court found that “[i]f the Former Wife, when the Former Husband came back into town, had agreed to a 50/50 time-sharing arrangement, an agreement would have been prepared for about a thousand dollars and the matter would be over.” But the former wife’s refusal to accede to the former husband’s request for increased timesharing out of court does not constitute bad faith or vexatious litigation and the former wife cannot be ordered to pay the former husband’s fees and costs simply because she refused to settle the case. See Hallac, 88 So.3d at 260-61 (“[T]he trial court abused its discretion in awarding fees to the husband to be assessed against the wife, because the refusal to settle the case in and of itself cannot be the basis for an award of attorney’s fees against the refusing party.”). Moreover, the MSA only provided that the parties would revisit the timesharing issue—it did not specify what new arrangement would be considered. Indeed, the fact that the former husband’s first petition for modification requested more than just a 50/50 timesharing arrangement and the fact that the former husband continued the litigation after the former wife agreed to a 50/50 arrangement belie the contention that the former wife could have avoided the litigation entirely.

Accordingly, we affirm the denial of attorney fees and costs to the former wife and reverse the award of attorney fees and costs to the former husband.

Affirmed in part and reversed in part.

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Declining to "elevate form over substance,” this court has explained that the failure to recite the specific words "bad faith” is not per se reversible error where the order "details the specific conduct at issue” and "clearly state[s] that [the sanctioned party's] actions were ‘improper and deliberate’ and resulted in a miscarriage of justice.” Robinson v. Ward, 203 So.3d 984, 990 (Fla. 2d DCA 2016). But unlike Robinson, which involved an attorney’s intentional and purposeful violations of the trial court's prior rulings, here the trial court made no findings that the former wife intentionally and purposefully violated its rulings, nor did the court detail the specific improper conduct justifying the award.

      . Although the trial court found that the former wife’s conduct caused all of the work in this case, both the former husband and his second attorney suggested at the fee hearing that the former wife was responsible for only "95[%] of everything that was done in this case.”


author: Damoorgian, J.

text:
    Faron JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-0846
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017
    Valerie Masters of Valerie Masters, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

Damoorgian, J.

Appellant, Faron Jones, appeals an order denying his motion to withdraw his plea. Appellant was charged with one count of armed sexual battery and one count of false imprisonment. Pursuant to a negotiated plea, Appellant pled guilty to the lesser charge of sexual battery (a second degree felony) and to the false imprisonment charge. In exchange for his guilty pleas, Appellant was sentenced to concurrent terms of ten years in prison followed by ten years of probation on the sexual battery count, and to five years in prison on the false imprisonment count. After sentencing, Appellant filed a pro se motion to withdraw his plea based on alleged ineffective assistance of counsel. The court denied the motion and this appeal followed.

For procedural reasons not relevant to our opinion, the issue before us is the legality of the sentence imposed on the sexual battery count. Appellant argues that the sentence on that count is illegal. The State properly concedes error.

Sexual battery is a second degree felony. § 794.011(5), Fla. Stat. (2010). Second degree felonies are punishable “by a term of imprisonment not exceeding 15 years.” § 775.082(3)(c), Fla. Stat. (2010). The “term of imprisonment” calculation includes probation time. See Schmidt v. State, 884 So.2d 471, 471 (Fla. 4th DCA 2004). The sentence imposed totaled twenty years—ten years in prison followed by ten years of probation. This exceeded the fifteen year statutory maximum and was, therefore, illegal. See Weeks v. State, 696 So.2d 1319, 1319 (Fla. 1st DCA 1997) (fifteen years in prison followed by five years of probation was an illegal sentence for the second degree felony of sexual battery); see also, Barthel v. State, 862 So.2d 28, 29 (Fla. 2d DCA 2003) (“An illegal sentence cannot be imposed pursuant to a negotiated plea and an illegal sentence is subject to correction at any time, including collaterally.”).

Accordingly, we reverse the sentence imposed on the sexual battery count. “[0]n remand the state can agree to correction of the sentence on this particular count or [A]ppellant must be permitted to withdraw the plea in its entirety.” Kelly v. State, 957 So.2d 108, 109 (Fla. 4th DCA 2007).

Reversed and remanded.

May and Conner, JJ., concur.


author: Per Curiam.

text:
    Todd MCKNIGHT and Irina McKnight, Appellants, v. CHASE HOME FINANCE LLC, Appellee.
    No. 4D16-2645
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017
    Steven M. Selz of Selz & Muvdi Selz, P.A., Jupiter, for appellants.
    Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for ap-pellee.
   Per Curiam.

Appellants Todd and Irina McKnight appeal the trial court’s order to the clerk of court to issue a certifícate of title following the judicial sale of Appellants’ property. Appellants argue that the trial court was required to conduct an evidentiary hearing on their objections to the sale, which included an allegation that the sale price was inadequate due to irregularities in the sale process. Appellee has confessed error on this issue.

Section 45.031(8), Florida Statutes (2014), allows a party to serve an objection to a sale based on the winning bid price. “If timely objections to the bid are served, the objections shall be heard by the court.” Id. (emphasis added). This Court has previously held that it is error to deny the party objecting under section 45.031(8) an evidentiary hearing. Regner v. Amtrust Bank, 71 So.3d 907, 907-08 (Fla. 4th DCA 2011). The record on appeal indicates that no hearing on Appellants’ objections occurred. We therefore accept Appellee’s confession of error and remand with directions to the trial court for it to: (1) vacate its order to the clerk to issue the certificate of title; (2) vacate the certificate of title that was improperly issued; and (3) hold an evidentiary hearing on Appellants’ objections. As in Regner, Appellants bear the burden to establish their claims at this hearing. Id. at 908. We offer no comment on the merits of Appellants’ objections.

Reversed and remanded for further proceedings consistent with this opinion.

DAMOORGIAN, LEVINE and FORST, JJ., concur.


author: VILLANTI, Chief Judge.

text:
    Juan Francisco VEGA, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    Case No. 2D16-3065
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017.

      Juan Francisco Vega, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jay E. Silver, Assistant Attorney General, Tampa, for Respondent.
   VILLANTI, Chief Judge.

Juan Francisco Vega, who is civilly committed to the custody of the Department of Children and Families pursuant to the Jimmy Ryce Act, initiated this case by filing a petition for writ of habeas corpus in the circuit court. Vega argued that he was entitled to immediate release because the Department had not been conducting the annual mental health examinations required by section 394.918(1), Florida Statutes (2015). The circuit court denied Vega’s petition, and he appealed.

We converted the appeal to a petition for writ of mandamus, see Jackson v. State, 802 So.2d 1213, 1218 (Fla. 2d DCA 2002), and we ordered the Department to show cause why this court should not issue a writ directing it to comply with section 394.918(1). In response, the Department filed copies of treatment progress reports, as well as letters it had provided to Vega informing him of his right to have an independent mental health evaluation. Vega replied by filing copies of transcripts of the annual review hearings held by the court pursuant to section 394.918(3).

It is clear from both the treatment progress reports filed by the Department and the hearing transcripts filed by Vega that, since his commitment, Vega has affirmatively refused to be examined by the Department’s mental health evaluators for purposes of the required annual review. But axiomatically, Vega may not affirmatively refuse to be examined and then use the lack of an examination report to argue that the Department is not fulfilling its statutory obligations under section 394.918(1). Therefore, we deny the petition for writ of mandamus.

Petition denied.

CASANUEVA and KELLY, JJ., Concur.

      . §§ 394.910-.932, Fla. Stat. (2015).


author: PER CURIAM.

text:
    Larry MARSHALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1095
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Larry Marshall appeals the order denying his motion seeking to vacate his sentence under Florida Rule of Criminal Procedure 3.850(b)(2), which provides an exception to the two-year time limit for filing a postconviction motion on the ground that a newly-established constitutional right has been held to apply retroactively. We reverse and remand for re-sentencing.

In his motion, Marshall argued that his concurrent sentences of ninety-nine years’ imprisonment for breaking and entering and robbery, which were imposed in 1976, are de facto life sentences that are unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), as interpreted by our supreme court in Henry v. State, 175 So.3d 675, 680 (Fla. 2015) (holding that Graham prohibits sentencing juvenile nonhomicide offenders to sentences that ensure their imprisonment without a meaningful opportunity for release based on demonstrated maturity and rehabilitation), and Gridine v. State, 175 So.3d 672, 673 (Fla. 2015) (holding that a juvenile nonhomicide offender’s sentence of seventy years’ imprisonment is unconstitutional under Graham for the reasons explained in Henry). Marshall asserted that he was entitled to be resentenced under chapter 2014-220, Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014). See Horsley v. State, 160 So,3d 393, 408-09 (Fla. 2015) (holding that a juvenile whose sentence is unconstitutional under the Eighth Amendment is entitled to be resen-tenced under chapter 2014-220, Laws of Florida).

After the State filed a response, Marshall filed a motion asking that the post-conviction court hold his case in abeyance pending the supreme court’s review of Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013). The postconviction court declined to do so. The court then denied Marshall’s motion, finding that his sentence was not unconstitutional under Graham because he is statutorily entitled to parole consideration.

The supreme court has now clarified that a juvenile’s eligibility for parole does not remove his sentence from the purview of Graham and Miller v. Alabama, 567 U.S. 460, 132 S.Ct 2455, 183 L.Ed.2d 407 (2012). Atwell v. State, 197 So.3d 1040, 1049 (Fla. 2016). In Atwell, the court quashed the Fourth District’s opinion holding that Miller was inapplicable to a juvenile’s life sentence with parole eligibility. Id. at 1042. The court concluded “that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that, his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.” Id. at 1041. The court held that juveniles sentenced to life with the possibility of parole are entitled to reséntencing in conformance with chapter 2014-220, Laws of Florida. Id. at 1050 (citing Horsley, 160 So.3d at 399). While Atwell was convicted of murder, a homicide offense to which Miller is applicable, the supreme court noted that Atwell’s life sentence for armed robbery was clearly unconstitutional under Graham, which is applicable to nonhomicide offenses. Id. at 1043 n.1 (declining to address Atwell’s sentence for armed robbery because he had not challenged it in the trial court).

This case presents yet another wrinkle in juvenile sentencing—whether a juvenile’s sentence to a term of years with parole eligibility can violate the Eighth Amendment. Although the supreme court has not squarely addressed this issue, we believe that an affirmative answer flows logically from the court’s decisions in Henry and Atwell. It is clear under Henry that Marshall’s ninety-nine-year sentence is unconstitutional. The supreme court found that Henryks sentence of ninety years’ imprisonment was unconstitutional under Graham;

[W]e believe that the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of “life in prison.” Instead, we have determined that Graham applies to ensure that juvenile non-homicide offenders will not be sentenced to terms of imprisonment without affording them a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation.

175 So.3d at 680 (citing Graham, 560 U.S. at 75, 130 S.Ct. 2011); see Kelsey v. State, 206 So.3d 5, 10 (Fla. 2016) (noting that the supreme court has declined to require that term-of-years sentences be de facto life sentences for Graham to apply). The Henry court concluded “that the Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating this special class of offenders for demonstrable maturity and reform in the future .... ” 175 So.3d at 680. In At-well, the supreme court explained that Florida’s parole system was not the appropriate review mechanism for juvenile offenders because it “entirely fails to recognize” “how children are different,” 197 So.3d at 1042 (quoting Miller, 132 S.Ct. at 2469), and it fails to consider “the diminished culpability of youth at the time of the offense ...id. at 1047. The court noted that after Graham and Miller, the legislature enacted a distinct sentencing framework for juvenile offenders rather than using parole as the means for complying with the Supreme Court’s decisions. Id at 1049. Thus, it follows from Henry and Atwell that a nonhomicide juvenile offender’s term-of-years sentence with the possibility of parole can violate the Eighth Amendment.

Accordingly, we reverse the postconviction court’s denial of Marshall’s motion and remand for resentencing in conformance with chapter 2014-220, Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014). See Horsley, 160 So.3d at 395.

Reversed and remanded for resentenc-ing.

KELLY, KHOUZAM, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Marshall filed his motion in case no. 76-49, but he noted the trial court ordered his sentence to run consecutively with his sentence in case no. 76-69, which resulted in a total sentence of 119 years’ imprisonment. Marshall argued that his total sentence of 119 years’ imprisonment is a de facto life sentence that is unconstitutional under Graham.


text:
    Henry Martin DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5723
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017.
    Valdoston Shealey, Jr., of The Shealey Firm, P.A., Mullica Hill, New Jersey, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten Jensen, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Henry Martin Davis appeals the order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a) seeking relief under Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment forbids a life sentence without parole for a juvenile offender who committed a nonhomicide offense), and Atwell v. State, 197 So.3d 1040 (Fla. 2016). We reverse and remand for resentencing.

In 1972, Davis was sentenced to concurrent terms of life imprisonment for rape and robbery. At that time, a defendant sentenced to life imprisonment was eligible for parole. See § 947.16(1), Fla. Stat. (1971). In Atwell, the supreme court concluded that Florida’s existing parole system does not provide for individualized consideration of a defendant’s juvenile status at the time of his or her offense. 197 So.3d at 1041. As a result, a life sentence with parole eligibility is virtually indistinguishable from a life sentence without parole. Id. The court held that the remedy for such an unconstitutional sentence is resentencing in conformance with chapter 2014-220, Laws of Florida. Id. at 1050 (citing Horsley v. State, 160 So.3d 393, 399 (Fla. 2015)).

Accordingly, we reverse the order denying Davis’s rule 3.800(a) motion and remand for resentencing under sections 921.1401 and .1402, Florida Statutes (2016), which codified chapter 14-220.

Reversed and remanded for resentenc-ing.

WALLACE, LaROSE, and ROTHSTEIN-YOUAKIM, JJ„ Concur.


text:
    Shawn Patrick ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5286
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017
    John H. Trevena, Trevena, Pontrello & Associates, Largo, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to the appellant’s right to file a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(a).

WALLACE, LaROSE, and LUCAS, JJ., Concur.


text:
    STATE of Florida, Petitioner, v. Richard L. GRESHAM, Respondent.
    Case No. 5D17-0665
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Aramis D. Ayala, State Attorney, and Kaley Lauren Austin-Aronson, Assistant State Attorney, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The State of Florida petitions for a writ of prohibition following the denial of its motion to disqualify the senior trial court judge from presiding over Richard Gresham’s case. Because the motion was legally sufficient and timely, we grant the writ. See Fla. R. Jud. Admin. 2.330.

This case involves the prejudgment of a motion to suppress by a senior judge temporarily assigned to the case. After a review of the record, we conclude the comments were sufficient to put a reasonably prudent person in well-founded fear of not receiving a fair or impartial hearing or trial. See Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1215 (Fla. 5th DCA 2001) (holding that fear of judicial bias giving rise to disqualification motion must be objectively reasonable (citation omitted)); see also Pilkington v. Pilkington, 182 So.3d 776, 779 (Fla. 5th DCA 2015) (“Disqualification based upon comments by a judge is required only when they indicate the judge has prejudged the case or is biased.” (citing Wargo v. Wargo, 669 So.2d 1123, 1124-25 (Fla. 4th DCA 1996))); Minaya v. State, 118 So.3d 926, 929 (Fla. 5th DCA 2013) (“Although a judge may form mental impressions and opinions during the course of hearing evidence, he or she may not prejudge the case.” (emphasis added) (citing Wargo, 669 So.2d at 1124-25)).

Thus, the only question that remains is whether the motion was timely. We conclude that it was. The initial hearing took place on January 23, 2017. It was at that hearing that the senior judge made the comments providing the basis for the motion. The State did not file the motion to disqualify at that time because the judge told defense counsel:

Okay. The reason I say is that I am not going to be—I won’t see this case again. So the next judge may look at the facts differently than mine [sic]. ...

A new hearing was set and subsequently reset after the State had difficulty securing a witness. The senior judge was not assigned to hear the motion. Therefore, the issue was moot.

The case was set for trial on February 6, 2017 and unexpectedly reassigned to the senior judge. On February 7, 2017, the State filed its motion to disqualify the senior judge. The motion was denied as legally insufficient, citing Florida Rule of Judicial Administration 2.330(e), which is the timeliness subsection. On February 8, 2017, the State filed an amended motion, specifically arguing that the necessity to file the motion after the initial hearing became moot once the senior judge was not assigned to hear it. On February 10, 2017, the motion was denied as legally insufficient and successive.

Rule 2.330(e) provides:

Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

Because the senior judge was only temporarily assigned to hear the motion to suppress on January 23, and there was no indication he would be presiding over the case after that day, there was no need for the State to file the motion to disqualify at that time. The matter only became an issue once the senior judge was reassigned to the case on February 6. We therefore conclude the motion was timely as the 10-day time-limit under the rule did not begin to run until February 6, 2017. Accordingly, we grant the writ of prohibition.

PETITION GRANTED.

SAWAYA, PALMER and BERGER, JJ., concur.

      . The prejudgment was so clear that Gresham was persuaded to abandon a favorable plea agreement and continue with the motion.


text:
    Victor ROLLE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0067
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Victor Rolle, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 9, 2016 judgments and sentences in Case No. 2015-CF-9466-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER and BERGER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Michael G. STAVRIS, II, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4140
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Michael G. Stavris, II, Lake City, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vineent-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 26, 2016, judgments and sentences in Case No. 2014-CF-270, in the Circuit Court in and for Flagler County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, WALLIS, and EDWARDS, JJ., concur.


text:
    Roger D. SEELEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3793
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Roger D. Seeley, Florida City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Roger Seeley appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In November of 1996, Seeley was convicted of capital sexual battery and sentenced to life in prison. His judgment and sentence were affirmed. Seeley v. State, 701 So.2d 1278 (Fla. 5th DCA 1997).

In Seeley’s rule 3.800(a) motion, he alleges that his offense occurred between January 1, 1994 and December 17, 1995. These dates span two different sets of guidelines, and he contends that he should have been sentenced under the more lenient version of the guidelines. In 1994, capital sexual battery was punishable by life in prison with the possibility of parole after twenty-five years’ incarceration. § 775.082(1), Fla. Stat. (1993); § 775.082(1), Fla. Stat. (1994) (effective May 25, 1994), Effective October 1, 1995, parole was abolished for capital felonies, and capital sexual battery was punishable by life in prison. § 775.082(1), Fla. Stat. (1995). Here, under the rule of lenity, See-ley should have been sentenced pursuant to the 1993 version of the statute to life with the possibility of parole after twenty-five years. See Duffy v. State, 874 So.2d 1242, 1243 (Fla. 2d DCA 2004); see also Robinson v. State, 955 So.2d 1230 (Fla. 5th DCA 2007).

Seeley only attached one page of his sentence to his motion, and it reflects that he was sentenced to “natural life.” There is no indication on this page that he is eligible for parole after twenty-five years. However, it is not clear whether eligibility for parole is provided for elsewhere in the judgment and sentence. Therefore, this matter is reversed and remanded to the trial court to either attach the judgment and sentence reflecting that Seeley did receive a life sentence with eligibility for parole after a minimum mandatory twenty-five year term, or the trial court may correct the sentence to reflect his parole eligibility after completion of the twenty-five year minimum mandatory term.

REVERSED and REMANDED.

PALMER and LAMBERT, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Rigoberto GARCIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3270
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Rigoberto Garcia, Bonifay, pro se
    John S. Zaleskie, Jr., Assistant Regional Counsel, Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the final order denying Appellant’s Florida Rule of Criminal Procedure 3.850 amended motion for postconviction relief filed in circuit court Case No. 2012-000451-CFAWS, but we do so without prejudice to Appellant seeking post-conviction relief in circuit court Case Nos. 2012-002927-CFAWS, 2012-000312-CFAWS, 2012-002998-CFAWS, 2012-002945-CFAWS, 2012-002973-CFAWS, and 2012-002936-CFAWS, if he can do so in good faith.

AFFIRMED.

SAWAYA, PALMER, and LAMBERT, JJ., concur.


author: EDWARDS, J.

text:
    J.J.N., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2404
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017

      James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

J.J.N., a child, (“Appellant”) pleaded no contest to one count of burglary of a dwelling and one count of grand theft of a motor vehicle. Appellant was ordered to pay restitution to the victim. Appellant disputes the trial court’s valuation of the foreign currency stolen from the victim, but does not contest the remainder of the restitution order.

Appellate courts review restitution orders for abuse of discretion. See Koile v. State, 934 So.2d 1226, 1229 (Fla. 2006). The evidence for a restitution order “must be competent and substantial.” J.L.C. v. State, 189 So.3d 260, 261 (Fla. 2d DCA 2016). “[A] mere ‘guesstimate’ of value ... does not constitute competent, substantial evidence that will support a restitution order.” Id. at 262; see also Duncan v. State, 192 So.3d 654, 657 (Fla. 2d DCA 2016); Gonzalez v. State, 948 So.2d 892, 895 (Fla. 5th DCA 2007).

Here, the victim’s testimony at the restitution hearing provided a sufficient evidentiary basis, rather than a “guesstimate,” for a value ranging from a minimum of $2000, based on ten envelopes each containing foreign currency worth approximately $200, to a maximum value of $3600, based on twelve envelopes, each containing $300 worth of foreign currency. However, the victim’s testimony did not support the trial court’s finding that Appellant stole $5000 in foreign currency.

On the lone issue appealed, we reverse and remand for a new restitution hearing solely to determine the value of the foreign currency that Appellant stole from the victim and for entry of a new restitution order, consistent with this opinion. See Duncan, 192 So.3d at 658.

REVERSED AND REMANDED.

COHEN, C.J. and TORPY, J., concur.


text:
    T.M., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4244
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

T.M. appeals his adjudication of delinquency after the trial court found that he committed felony cruelty to animals. T.M. raises two issues on appeal, contending that the trial court erred in: 1) denying his motion for judgment of acquittal on the ground that T.M. did not demonstrate an intent to harm the dog; and 2) failing to enter an order finding him competent to proceed to an adjudicatory hearing. As to the first issue, we affirm without further discussion.

As to the second issue, the trial court had previously found that T.M. was incompetent to proceed to an adjudicatory hearing. On October 2, 2015, the trial court held a subsequent hearing and orally found that T.M. was competent to proceed. However, as the State concedes, the record of this appeal does not contain a written order with this finding entered following the hearing. See Hunter v. State, 174 So.3d 1011, 1015 (Fla. 1st DCA 2015) (“[T]he record decidedly lacks a written order from the trial court adjudicating Hunter competent for trial, as required by [Florida Rule of Criminal Procedure] 3.212(c)(7) ... we simply remand to the trial court to enter the needed written adjudication nunc pro tunc.”). Therefore, we remand with instructions for the trial court to enter an order, nunc pro tunc, finding T.M. competent to proceed to an adjudicatory hearing.

AFFIRMED; REMANDED with instructions.

SAWAYA, PALMER and TORPY, JJ., concur.


text:
    Jose Alejandro PEREZ-FLORES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3965
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Jennifer M. Manyen, of Appeals Law Group, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Jose Alejandro Perez-Flores appeals his convictions and sentences following a jury trial for attempted manslaughter by act with a weapon and aggravated battery with a deadly weapon or causing great bodily harm. We affirm his convictions, but reverse his sentence on the aggravated battery and remand for further proceedings.

Perez-Flores argues, and the State properly concedes, the trial court improperly reclassified Perez-Flores’s conviction for aggravated battery with a deadly weapon or causing great bodily harm from a second-degree felony to a first-degree felony, and thereafter, imposed a twenty-year sentence. Reclassification of aggravated battery is not permitted when, as here, it is not clear whether the defendant was found guilty based on a finding that he caused great bodily harm or that he used a deadly weapon. While aggravated battery inflicting great bodily harm is subject to enhancement if a weapon is used, aggravated battery using a deadly weapon is not because use of a deadly weapon is an essential element of the crime. See, e.g., Lareau v. State, 573 So.2d 813, 815 (Fla. 1991); Brady v. State, 65 So.3d 599, 601 (Fla. 5th DCA 2011); Hernandez v. State, 30 So.3d 610, 612 (Fla. 3d DCA 2010); Benjamin v. State, 8 So.3d 460, 460 (Fla. 4th DCA 2009); Webb v. State, 997 So.2d 469 (Fla. 2d DCA 2008). Here, the jury was instructed on both forms of aggravated battery and it is unclear whether the jury found Perez-Flores guilty of one or the other form of aggravated battery. Thus, reclassification was improper. Accordingly, we reverse and remand for re-sentencing with the aggravated battery classified as a second-degree felony.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

PALMER and ORFINGER, JJ., and BOATWRIGHT, J., Associate Judge, concur.


text:
    Rico Juhwan HUDSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0734
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Rico Juhwan Hudson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as successive. See Fla. R. App. P. 9.141(d)(6)(C).

ROBERTS, C.J., LEWIS and WINSOR, JJ., CONCUR.


text:
    Clarence COPELAND, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0639
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Clarence Copeland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

ROBERTS, C.J., LEWIS and WINSOR, JJ., CONCUR.


text:
    D’angelo SHIPMAN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0839
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017.
    D’angelo Shipman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

ROBERTS, C.J., LEWIS and WINSOR, JJ., CONCUR.


text:
    Irving BROWN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0053
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Irving Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the order denying motion for post-conviction relief in Escambia County Circuit Court case number 2012-CF-5447 B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal.

ROBERTS, C.J., LEWIS and WINSOR, JJ., CONCUR.


text:
    Femi ADEOYE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5707
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017.
    Femi Adeoye, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the circuit court’s December 9, 2016, Order Denying Motion to Correct Sentencing Error, which treated appellant’s motion as seeking relief pursuant to Florida Rule of Criminal Procedure 3.800(a). Because appellant’s direct appeal of judgment and sentence is pending, the trial court was without jurisdiction to rule on appellant’s motion. See Buckhalter v. State, 168 So.3d 348 (Fla. 1st DCA2015).

Accordingly, we quash the order denying appellant’s motion.

ORDER QUASHED.

ROBERTS, C. J., LEWIS and WINSOR, JJ., CONCUR.

      . The trial court concluded that no appeal was pending at the time appellant filed the motion to correct sentencing error because appellant's pro se appeal, proceeding under case number 1D16-3666, was dismissed by the Court on October 20, 2016. However, the appeal of appellant's judgment and sentence remains pending in case number 1D16-3432.


text:
    Harbiya K. ABU-KHADIER and RHHA, Inc., Appellants, v. The CITY OF FORT MYERS, Florida, a Florida Municipal Corporation, Appellee.
    Case No. 2D16-755
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017
    John N. Bogdanoff and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellants.
    Theodore L. Tripp, Jr., and Allison B. Christensen of Hahn Loeser & Parks LLP, Fort Myers; and Grant W. Alley, City Attorney, Fort Myers, for Appellee.
   PER CURIAM.

We affirm the final summary judgment upholding the City of Fort Myers’ Nuisance Abatement Board’s order directing closure of a grocery store operated by RRHA, Inc., on property owned by Abu-Khadier, the Appellants. However, because genuine issues of material fact exist regarding Appellants’ entitlement to compensation following the closure, we reverse the final summary judgment in favor of the City of Fort Myers on Appellants’ complaint.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, CRENSHAW, and ROTHSTEIN-YOUAKIM, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    Anthony MCCARTHY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1511
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017.
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The circuit court revoked Anthony McCarthy’s probation in four cases. Although McCarthy’s sentencing scoresheet prescribed a nonstate prison sanction, the court sentenced him to prison pursuant to section 775.082(10), Florida Statutes (2010). We conclude that the court’s findings were insufficient to establish the required nexus between sentencing McCarthy to a nonstate prison sanction and any resulting danger to the public. Therefore, we reverse and remand for the imposition of a nonstate prison sanction.

In each of two separate cases, McCarthy pleaded to one count of obtaining property in return for a worthless check, in violation of section 832.05(4)(c), Florida Statutes (2010). In each of two other cases, he pleaded to one count of failure to return leased property with a value of $300 or more, in violation of section 812.155(3), Florida Statutes (2010). All of the offenses are third-degree felonies. McCarthy was placed on probation in all four cases.

In the instant proceeding, the amended affidavit of violation of probation alleged that McCarthy failed to report to the probation officer, a violation of condition one; that McCarthy changed his residence without first obtaining the consent of the probation officer, a violation of condition three; that McCarthy changed his employment without first obtaining the consent of his probation officer, a violation of condition three; that McCarthy failed to submit to a urinalysis test on April 21, 2014, a violation of condition eleven; and that McCarthy committed the offense of sexual battery on at least four occasions, a violation of condition five.

McCarthy’s probation officer was the only witness at the revocation hearing. There was no testimony whatever regarding the alleged new law violations. The circuit court found that McCarthy violated condition one by failing to report, condition three by changing his residence without permission, and condition eleven by failing to submit to a urinalysis test. The court imposed a five-year prison sentence in each case, with the sentences to run concurrently.

Section 775.082(10) states:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a. forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

In Reed v. State, 192 So.3d 641, 648 (Fla. 2d DCA 2016), we noted that written findings sufficient to permit an upward departure under this statute “must do more than just describe the defendant’s criminal conduct. The circuit court must make findings to establish a nexus between sentencing an offender to a nonstate prison sanction and the resulting danger that nonstate prison sanction could present the public.” Here, McCarthy scored 20.5 points on the Criminal Punishment Code scoresheet. None of the third-degree felonies was a forcible felony or a violation of chapter 810. Thus, the circuit court was required to sentence McCarthy to any nonstate prison sanction unless it made sufficient written findings that satisfied the requirements of Reed. See Reed, 192 So.3d at 647-49. When sentencing McCarthy to prison, the court placed the following notation on the Criminal Punishment Code scoresheet: “ANSP would be a danger to the public—no compliance with orders/new law violation] absconding.”

Manifestly, the court’s written findings merely described McCarthy’s conduct in the most general of terms. They did not establish a nexus between sentencing McCarthy to a nonstate prison sanction and a resulting danger to the public. Moreover, the court’s reference to McCarthy’s alleged new law violation was unsupported by evidence. In Rodriguez-Aguilar v. State, 198 So.3d 792, 796 (Fla. 2d DCA 2016), this court held:

[A] prediction of future danger to the public that allows for a prison sentence under section 775.082(10) cannot be established by proof of alleged prior offenses when the proof falls below the standard of preponderance of the evidence; proof that merely reaches the level of probable cause or reasonable suspicion is not sufficient.

Here, there was no testimony presented at the revocation hearing regarding any.new law violation. Thus, the court could not base the prison sentence on this finding.

We reverse the sentences in all four cases and remand for McCarthy to be sentenced to a nonstate prison sanction. See Reed 192 So.3d at 648-49 (reversing and remanding for imposition of a nonstate prison sanction).

Reversed and remanded.

SLEET and SALARIO, JJ., Concur.


text:
    Jeffrey W. DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3253
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017
    Jeffrey W. Davis, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jeffrey W. Davis appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of postconviction relief except on one ground.

In ground one, Davis alleged ineffective assistance of his trial counsel for failure to explain to him the availability of a defense to the charge of lewd or lascivious molestation of a child on the basis of voluntary and involuntary intoxication. The trial court properly denied ground one insofar as it asserted counsel was ineffective for failing to present a voluntary intoxication defense. Voluntary intoxication is not a defense in Florida. See § 775.051, Fla. Stat. (2014). However, involuntary intoxication is a valid defense. Stimus v. State, 995 So.2d 1149 (Fla. 5th DCA 2008). Thus, as for the ineffective assistance claim asserted in ground one based on involuntary intoxication, we reverse and remand for an evi-dentiary hearing or the attachment of portions of the record conclusively showing Davis is not entitled to relief either on the merits or because the motion is successive.

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

ORFINGER, WALLIS and EDWARDS, JJ., concur.


text:
    Charles L. PALM, Appellant, v. Ashley PALM n/k/a Ashley Plonk, Appellee.
    Case No. 5D16-2368
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017
    Charles L. Palm, Moore Haven, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Charles L. Palm appeals the trial court’s denial of his petition to dissolve a final judgment of injunction for protection against domestic violence. Palm argues that the trial court erred in summarily denying the petition and that the trial court should have held a hearing. We agree. See Reed v. Reed, 816 So.2d 1246, 1247 (Fla. 5th DCA 2002); Baker v. Pucket, 139 So.3d 954, 955-56 (Fla. 4th DCA 2014); Carrozza v. Stowers, 153 So.3d 340, 341 (Fla. 2d DCA 2014). Thus, we reverse the order under review and remand with instructions for the trial court to hold a hearing on Palm’s petition.

REVERSED and REMANDED.

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


author: PALMER, J.

text:
    Frances FAWCETT, Appellant, v. John C. GAINEY, Appellee.
    Case No. 5D16-582
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017
    Edward E. Emrick, of Rohe Twyman P.A., Tavares, for Appellant.
    Barbara A. Eagan, of Eagan Appellate Law, PLLC, Orlando, for Appellee.
   PALMER, J.

Frances Fawcett (the wife) appeals the final order entered by the trial court dissolving her marriage to John Gainey (the husband). We affirm in all respects except one.

The wife claims that the trial court reversibly erred in equitably distributing her jewelry. She maintains that the trial court’s $10,000.00 valuation of her jewelry for purposes of equitable distribution is not supported by substantial competent evidence. We agree.

The husband listed jewelry valued at $10,000.00 on his financial affidavits, in his pre-trial memorandum, and in his proposed equitable distribution schedule. Yet, during trial, the husband’s counsel conceded:

Okay. And I think we can all agree that [$]3,500 to [$]4,000 of [the $10,000.00] is a non-marital engagement ring that was given to her before the marriage. So

that drops it down to about six grand. However, in the final dissolution order, the trial court ruled:

9. WIFE’S JEWELRY. The wife has jewelry with an approximate marital value of $10,000.00 as of the date of filing. That jewelry should remain the property of the wife as equitable distribution.

Since the husband agreed that the wife’s engagement ring was a pre-marital gift and, thus, a nonmarital asset, and he agreed that the remaining jewelry was valued at $6,000.00, we reverse and remand for the entry of an amended final judgment increasing the husband’s equalizing payment by $2,000.00.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, J., and BOATRIGHT, J., Associate Judge, concur.


text:
    Jadarion Devonte JACKSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-599
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017

      Jadarion Devonte Jackson, Crawford-ville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 8, 2016, judgments and sentences in Case Nos. 2013-CF-006537-A-0, 2012-CF-004569-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, TORPY, LAMBERT, JJ., concur.


text:
    Willie Fred GRANT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0274
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017.
    Willie Fred Grant, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The “petition for writ of error according to common law” is treated as a petition for writ of habeas corpus, and is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

WETHERELL, BILBREY, and JAY, JJ., CONCUR.


text:
    Roger D. MCDANIEL, Appellant, v. Ralph WHITFIELD, Appellee.
    CASE NO. 1D16-4572
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017
    Roger D. McDaniel, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order granting a motion for extension of time to respond to the complaint. Within the appeal, appellant filed a petition for writ of certiorari. The order is not appealable and we decline to treat the notice of appeal as invoking the Court’s certiorari jurisdiction because appellant has failed to show any harm that is incurable by a final appeal. See Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (“If petitioner has failed to make a prima facie showing of irreparable harm, we lack jurisdiction and will enter an order dismissing the petition.”) The appeal is hereby DISMISSED.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.


text:
    Shakur MALIK, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3198
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017
    Shakur Malik, pro se.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying in part and dismissing in part defendant’s amended motion for postconviction relief and second amended motion for postconviction relief, rendered on or about February 3, 2016, in Duval County Circuit Court case number 16-2009-CF-004609-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

B.L. THOMAS, OSTERHAUS, and • BILBREY, JJ., CONCUR.


text:
    Lidale R. KELLUM, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-2482
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017
    Henry Mark Sims, Public Defender, Laura McCarthy and Caroline Greene, Assistant Public Defenders, Panama City, for Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on January 22, 2016, and the amended order of revocation of probation rendered on February 15, 2016, in Bay County Circuit Court case number 09-3525-C, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.


author: Kuntz, J.

text:
    Marie Magloire BRUSSOT, Appellant, v. Duval BRUSSOT, Appellee.
    No. 4D16-0834
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017
    Larry R. Fleurantin of Fleurantin, Francois & Antonin, P.A., North Miami Beach, and Parnel D. Auguste of Bernard & Auguste, P.A., Delray Beach, for appellant.
    Troy William Klein, West Palm Beach, for appellee.
   Kuntz, J.

In this appeal of a final order in a contested divorce proceeding, the Former Wife argues the court erred when it summarily awarded the former couple’s Lake Worth residence to the Former Husband without making any findings to support the award. We agree.

The court was required by statute, see § 61.075(3), Fla. Stat. (2013), to make written findings determining whether the property is a marital asset and, if so, the court was required to make written findings valuing and equitably distributing the property. See, e.g., Crooks v. Crooks, 967 So.2d 969, 970 (Fla. 4th DCA 2007).

Because the court did not make the required findings, we reverse the portions of the court’s order relating to the Lake Worth residence, and remand for written findings regarding that property. We have considered and affirm without comment the other issues raised by the Former Wife.

Affirmed in part; reversed in part.

Ciklin, C.J., and Gross, J., concur.


text:
    C.W., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1023
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2017
    James S. Purdy, Public Defender, and Wilbur L. Cooke, II, Assistant Public Defender, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana R. Esposito, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

C.W. petitions for a writ of habeas corpus for his release from his involuntary confinement at the Halifax Health Medical Center (“Medical Center”) in Daytona Beach, Florida. C.W. was admitted to the Medical Center for involuntary examination under the Baker Act on February 11, 2017. At a hearing held on February 17, 2017, the circuit court determined that C.W. met the criteria for involuntary commitment and issued an order for involuntary inpatient placement at the Medical Center under section 894.467(1), Florida Statutes (2016).

On March 28, 2017, Appellant petitioned the circuit court for a writ of habeas corpus. The circuit court held a hearing on the petition on March 80, 2017. The circuit court heard testimony from C.W.’s doctor, Dr. Chaiffetz, that C.W. would benefit from “extended stabilization” and that there was a risk of “decompensation” without the structured environment of the Medical Center. Dr. Chaiffetz noted that C.W. had been released previously only to relapse and be readmitted a short time later. The circuit court denied the petition stating that it believed involuntary placement in the Medical Center was “a lifeboat” for C.W. The circuit court explained that C.W. needed to “stay in this lifeboat a little bit longer” and that the court was “trying desperately to get [C.W.] to do that.”

C.W. contends that he is entitled to immediate release because the record does not contain clear and convincing evidence that he is a danger to himself or others. The State properly concedes error and agrees that the writ of habeas corpus should be granted. Accordingly, we grant C.W.’s petition for writ of habeas corpus and order his immediate release. See § 394.467(1)(a), Fla. Stat. (2016); In re Lehrke, 12 So.3d 307, 308-09 (Fla. 2d DCA 2009) (citing Blue v. State, 764 So.2d 697, 698 (Fla. 1st DCA 2000)). No motion for rehearing will be entertained.

PETITION GRANTED.

PALMER, BERGER and EDWARDS, JJ., concur.

      . § 394.463(2)(a)3., Fla. Stat. (2016).

      . The involuntary placement proceeding occurred in Case No. 2017-10248-MHDL while the habeas corpus petition was docketed as Case No. 2017-10474-CIDL.


text:
    BANK OF NEW YORK MELLON f/k/a Bank of New York Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee FOR the STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST, etc., Appellant, v. Donald L. VESSELS, Jr., Karen D. Vessels and Catalina Isles/ Skylark Homeowners Association, Inc., Appellees.
    Case No. 5D15-4248
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Nancy M. Wallace, of Akerman LLP, Tallahassee, William P. Heller, of Aker-man LLP, Fort Lauderdale, and Eric M. Levine, of Akerman LLP, West Palm Beach, for Appellant.
    No Appearance for Appellees.
   EVANDER, J.

The Bank of New York Mellon f/k/a The Bank of New York Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee for the Structured Asset Mortgage Investments II Trust Mortgage Pass-Through Certificates, Series 2006-AR3 [“the Bank”], appeals the final judgment of foreclosure entered in its favor, and against Donald and Karen Vessels, with regard to the calculation of damages. The Bank contends that the trial court erred in denying, on hearsay grounds, the admission of loan payment history records of prior servicers of the mortgage. As a result of this eviden-tiary ruling, the Bank submits that the trial court’s determination of the damages award was also erroneous. We reverse and remand for a new trial solely on the issue of damages.

This court has previously held that loan payment histories of prior mortgage servi-cers are admissible under the business records hearsay exception where they are relied upon by a successor servicer who establishes that it adequately verified the accuracy of the payment histories and that its verification procedures demonstrate that the records are trustworthy. See, e.g., Bank of N.Y. Mellon v. Johnson, 185 So.3d 594, 598 (Fla. 5th DCA 2016); Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 213-215 (Fla. 5th DCA 2015); Le v. U.S. Bank, 165 So.3d 776, 778 (Fla. 5th DCA 2015).

Here, the Bank presented detailed testimony of the “on-boarding” process utilized by the current servicer in verifying the information received from prior servicers. The testimony was sufficient to meet the predicate necessary for admission of the prior servicers’ loan payment histories. Accordingly, we conclude that the trial court abused its discretion in excluding these records. See Johnson, 185 So.3d at 598; Berdecia, 169 So.3d at 216.

REVERSED and REMANDED for new trial on the issue of damages consistent with this opinion.

BERGER and EDWARDS, JJ., concur.

      . § 90.803(6), Fla. Stat. (2014).


text:
    PLANNED PARENTHOOD OF GREATER ORLANDO, etc., Appellant, v. MMB PROPERTIES, etc., Appellee.
    Case No. 5D14-2920
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Donald E. Christopher and Kyle A. Dia-mantas, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., Orlando, for Appellant.
    Derek J. Angelí and Dennis R. O’Con-nor, of O’Connor & O’Connor, LLC, Winter Park and Maureen A. Arago and Keith P. Arago, of Arago Law Firm, Kissimmee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In accordance with the mandate from the Florida Supreme Court, the temporary injunction entered by the trial court is quashed. Planned Parenthood of Greater Orlando v. MMB Prop., 42 Fla. L. Weekly S204, 211 So.3d 918, 2017 WL 709484 (Fla. Feb. 23 2017) (Case No. SC15-1655). The stay entered by this Court is lifted, and the matter is remanded back to the trial court to conduct permanent injunction proceedings.

REVERSED and REMANDED with directions.

PALMER and EVANDER, JJ, and JACOBUS, B.W., Senior Judge, concur.


text:
    Damien DAVIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4554
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017.
    Damien Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of the motion, and write to address one of the appellant’s claims.

In 2008, following a plea, the appellant was convicted of second-degree murder and attempted robbery and sentenced to terms totaling 35 years’ imprisonment. In his motion, he alleged that he is entitled to be resentenced pursuant to chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes, because he was a juvenile at the time he committed the crimes. Chapter 2014-220 was created by the Legislature in response to the supreme court’s decisions in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that the constitutional prohibition on cruel and unusual punishment is violated when a juvenile offender is sentenced to life imprisonment without the possibility of parole for a nonhomicide offense, and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), which held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Chapter 2014-220 provides for individualized sentencing consideration pri- or to the imposition of a life sentence on a juvenile offender, and also provides for judicial review of certain sentences imposed upon juveniles who commit capital, life, or first-degree felonies punishable by life. However, the appellant’s 35-year total sentences do not violate either Graham or Miller, as the appellant was not sentenced to a life, mandatory life, or a de facto life sentence. See Kelsey v. State, 183 So.3d 439 (Fla. 2015) (holding that a 45-year sentence imposed upon a defendant who was 15 at time of crime was not a de facto life sentence), quashed, 206 So.3d 5 (Fla. 2016) (holding that 45-year sentence imposed after resentencing pursuant to Graham was improper where trial court did not resentence pursuant to chapter 2014-220: a defendant whose initial sentence violates Graham is entitled to new resen-tencing under the framework of chapter 2014-220).

Accordingly, we AFFIRM the summary denial of the appellant’s motion for post-conviction relief.

B.L. THOMAS, RAY, and KELSEY, JJ., CONCUR.


text:
    FLORIDA DEPARTMENT OF REVENUE and Elsey Teresa Flores, Appellants, v. Sergio VAN EDWARDS, Appellee.
    CASE NO. 1D16-3160
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

We hold that the Division of Administrative Hearings had subject matter jurisdiction to enter an order of child support. See Dep’t of Revenue v. Graczyk, 206 So.3d 157, 161 (Fla. 1st DCA 2016) (“Section 409.2563 confers concurrent jurisdiction on DOR/DOAH to establish child support obligations when there is no court order of support”) (emphasis added). Accordingly, we reverse and remand for the Administrative Law Judge to order such child support as is appropriate.

REVERSED and REMANDED.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Charleston LONG, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1454
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017.
    Charleston Long, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Charleston Long appeals an order summarily denying his amended motion for postconviction relief alleging claims of ineffective assistance of counsel. With the exception of the claim discussed below, we conclude that the postconviction court properly denied his motion.

Long was found guilty of one count of aggravated battery with a deadly weapon and one count of aggravated assault by threat. His convictions stemmed from a shooting at an apartment complex. In his postconviction motion, Long alleged that his trial counsel was ineffective for failing to obtain the surveillance video at the apartment complex, which would have shown that Long was not the shooter. The postconviction court denied this ground, concluding that it “appeared” it was trial counsel’s strategy to argue that the State had not done a thorough job of investigating by failing to obtain the surveillance video. The court further found that, in any event, neither the State nor defense counsel would have been able to obtain the surveillance video because the record indicates that it does not exist.

Accepting Long’s claim as true, the record attachments provided by the postcon-viction court do not clearly establish that defense counsel’s failure to obtain the surveillance video was a reasonable trial strategy. Although defense counsel is entitled to broad deference regarding trial strategy and tactics, “a finding that some action or inaction by defense counsel was taetical is generally inappropriate without an eviden-tiary hearing.” Thomas v. State, 634 So.2d 1157, 1157 (Fla. 1st DCA 1994).

Additionally, the record attachments do not conclusively refute Long’s allegation regarding the existence of a surveillance video. The record demonstrates that there was conflicting testimony on this point and the postconviction court was not in the position to weigh the evidence absent an evidentiary hearing. See Williams v. State, 647 So.2d 996, 997 (Fla. 1st DCA 1994) (“If the record does not conclusively show that the defendant is entitled to no relief, the court should hold an evidentiary hearing and make appropriate findings of fact and conclusions of law.”).

Accordingly the order is affirmed in part and reversed in part. We remand for the postconviction court to conduct an eviden-tiary hearing limited to the issue of the surveillance video.

AFFIRMED in part; REVERSED in part; and REMANDED.

RAY, KELSEY, and WINOKUR, JJ., CONCUR.


text:
    Derek Todd DENNISON, Appellant, v. April A. MUNIZ, Appellee.
    CASE NO. 1D16-1353
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017.
    Andrew Michael Bonderud of The Bon-derud Law Firm, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Werner v. Scharlop, 867 So.2d 1172 (Fla. 4th DCA 2004) (affirming an injunction where the evidence showed that a defendant’s harassment caused substantial emotional distress to the stalking victim).

OSTERHAUS, BILBREY, and WINOKUR, JJ., CONCUR.


text:
    DYCK-O’NEAL, INC., Appellant, v. Heather LANHAM, Appellee.
    CASE NO. 1D16-1624
    District Court of Appeal of Florida, First District.
    Opinion filed April 24, 2017.
    Susan B. Morrison of the Law Offices of Susan B. Morrison, Tampa, for Appellant.
    Rick A. Savage of Savage Law Office, Tallahassee, for Appellee.
   PER CURIAM.

Because the circuit court lacked subject matter jurisdiction to consider Appellant’s independent action at law for a deficiency decree in this post-foreclosure proceeding, the order on appeal is void, and hereby quashed. See Higgins v. Dyck-O’Neal, Inc., 201 So.3d 157, 166-67 (Fla. 1st DCA 2016) (holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment). In so ruling, we certify conflict with Garcia v. Dyck-O’Neal, Inc., 178 So.3d 433 (Fla. 3d DCA 2015); Dyck-O’Neal, Inc. v. Hendrick, 200 So.3d 181 (Fla. 5th DCA 2016); Gdovin v. Dyck-O’Neal, Inc., 198 So.3d 986 (Fla. 2d DCA 2016); Dyck-O’Neal, Inc. v. McKenna, 198 So.3d 1038 (Fla. 4th DCA 2016).

WOLF, RAY, and MAKAR, JJ., CONCUR.


text:
    Sarah Rebecca STRAWITCH, Appellant, v. Frederick STRAWITCH III, Appellee.
    CASE NO. 1D16-3230
    District Court of Appeal of Florida, First District.
    Opinion filed April 24, 2017.
    Richard A. Fillmore, Pensacola, for Appellant.
    Travis R. Johnson of Meador, Johnson & Bushnell P.A., Pensacola, for Appellee.
   PER CURIAM.

Sarah and Frederick Strawitch, once husband and wife, ended their marriage in 2007. The final judgment of dissolution incorporated the parties’ marital settlement agreement, which detailed their respective obligations regarding their minor child. Under the agreement, the husband was to provide the child’s health insurance, pay child support of some $800 per month, and pay for medical expenses not covered by insurance.

Five years later, the husband petitioned for a modification. According to the petition, the husband had become involuntarily unemployed. Subsequently, the husband began receiving Social Security disability income. The trial court found that there was a substantial change in circumstances and granted the modification. The trial court reduced the husband’s child support obligations retroactively, ordered, repayment of overpayments, and provided that the child’s uncovered medical expenses would be allocated based on the parties’ “respective percentages of income.” Although the wife does not dispute the trial court’s determination of a substantial change in circumstances, she challenges certain aspects of the modification order.

We. affirm in all respects but one. In determining the amount of the husband’s overpayment, the trial court accepted the figures the husband’s counsel provided, without any evidence of how much the husband actually paid. Absent agreement of the parties, the trial court needed an evidentiary basis for the amount of the overpayment. See Cheek v. Hesik, 73 So.3d 340, 345 (Fla. 1st DCA 2011) (“Although a trial court is free to reject even unrebutted testimony, there must be some evidentiary basis for its findings.”). We therefore reverse and remand for- additional proceedings.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

OSTERHAUS, JAY, and WINSOR, JJ., CONCUR.