author: ORFINGER, J.

text:
    Curran Fritz LANE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3679
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017

      Henry G. Gyden, of Gyden Law Group, Tampa, and Warren Hope Dawson, of Dawson & Associates, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Curran Fritz Lane timely appeals the denial of his motion to withdraw plea, arguing that his plea was involuntary because he was unaware of a valid defense to the alleged violation of probation. We conclude Lane is entitled to an evidentiary hearing and reverse.

After Lane was originally placed on sexual offender probation with electronic monitoring, an affidavit of violation of probation was filed, alleging that he violated his probation when his electronic monitor failed to record his location for twenty-six minutes. Lane admitted the violation at his arraignment. He explained that he was only outside the range of the GPS because when he came home from work, he found that continuous rain from Tropical Storm Colin caused his pool and backyard to overflow with water, threatening to enter the home through the back doors. Lane claimed that he placed the GPS unit on the counter to keep it dry while he went outside to prevent the home from flooding. Despite this explanation, the trial court revoked Lane’s probation and sentenced him to eighty-six months in state prison. Lane timely filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(2), claiming, among others, that his plea was involuntary as his counsel had not explained to him that he had an available defense because his violation had to be willful and substantial. The trial court denied the motion without an evidentiary hearing.

Florida Rule of Criminal Procedure 3.170(l) applies to motions to withdraw a plea made after sentencing and provides:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

Lane’s claim, that his plea was involuntary, is a recognized ground under rule 9.140(b)(2)(A)(ii).

Once a sentence has been imposed, a defendant must demonstrate manifest injustice or prejudice in order to withdraw a guilty plea. “This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice.” Powell v. State, 929 So.2d 54, 55 (Fla. 5th DCA 2006). A defendant who files a facially sufficient motion to withdraw a plea is entitled to an eviden-tiary hearing on the issue unless the record conclusively refutes the allegations. Puentes v. State, 58 So.3d 912, 921 (Fla. 3d DCA 2011); Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006); Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003). If the trial court does not hold an evidentiary hearing, the allegations of the defendant’s motion must be taken as true, except to the extent that they are conclusively rebutted by the record. Snodgrass, 837 So.2d at 508.

Here, Lane stated a colorable claim for relief under Florida law, which requires that pleas be voluntarily and knowingly entered. The trial court erred in denying Lane’s motion without holding an evidentiary hearing because nothing in the record conclusively shows that Lane was not entitled to relief on this claim. See e.g., Panchu v. State, 1 So.3d 1243, 1245-46 (Fla. 4th DCA 2009) (holding that defendant was entitled to evidentiary hearing where she stated colorable claim in rule 3.170(£) motion that her plea was not voluntarily, knowingly, and intelligently entered when she alleged that she received no advice or inadequate advice as to available defenses to her charges); Daniel v. State, 865 So.2d 661, 661 (Fla. 2d DCA 2004) (reversing denial of rule 3.170(l) motion to withdraw plea that alleged counsel misadvised him regarding sentencing, and remanding for evidentiary hearing because record failed to show that defendant was not entitled to relief).

We find no merit in Lane’s remaining claims of error. We affirm, in part, and reverse, in part, the trial court’s order denying Lane’s rule 3.170(l) motion to withdraw his plea. On remand, the trial court must hold an evidentiary hearing on Lane’s claim of failure to advise of an available defense.

AFFIRMED in part; REVERSED in part; and REMANDED.

WALLIS and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony I. PROVITOLA and Kathleen A. Provitola, Appellants, v. Dennis L. COMER, Appellee.
    Case No. 5D16-3027
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017
    Anthony I. Provitola of Anthony I. Pro-vitola, P.A., DeLand, for Appellants.
    Lindsay R. Dunn, of First American Law Group, Largo, and F. A. (Alex) Ford, Jr., of Landis Graham French, P.A., De-Land, for Appellee.
   PER CURIAM.

We affirm the final order dismissing Appellants’ second amended complaint with prejudice. See Bozeman v. City of St. Petersburg, 74 Fla. 336, 76 So. 894, 896 (1917) (holding that plaintiff could not maintain action to enjoin obstruction of public street where plaintiffs allegations were insufficient to show that he suffered “some special damage to his property or injury to him different not only in degree but in kind from the damage sustained by the community at large” (quoting Robbins v. White, 52 Fla. 613, 42 So. 841 (1907))); Wedner v. Escambia Chem. Corp., 102 So.2d 631, 632 (Fla. 1st DCA 1958) (“The unauthorized obstruction of a public way is a common or public nuisance. It is not in itself ground upon which to maintain a private suit for injuries occasioned thereby. In order to maintain such a suit it must be shown that the party seeking relief has suffered some special injury, differing not only in degree, but in kind from that sustained by the community at large.”).

We dismiss, without prejudice, Appellants’ appeal of the trial court order determining that Appellee was entitled to recover attorney’s fees under section 57.105, Florida Statutes (2016). An order that determines entitlement to attorney’s fees without setting the amount is a non-final, non-appealable order. Adlow, Inc. v. Mauda, Inc., 632 So.2d 714, 714 (Fla. 5th DCA 1994).

AFFIRMED, in part;- DISMISSED, in part.

EVANDER and EDWARDS, JJ., and ATKIN, J.E., Associate Judge, concur.

      . The other issues raised on appeal are rendered moot by our affirmance of the trial court’s order of dismissal.


text:
    Brian JENSEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0525
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017.
    Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Gomez v. State, 137 So.3d 1037, 1038 (Fla. 3d DCA 2014) (“[Wlhether or not the sentencing order contains language reflecting the eligibility for parole after serving twenty-five years is immaterial to the legality of the sentencing, as the statute is self-executing.”).


text:
    Norberto JAMBRINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-75
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Norberto Jambrina, in proper person,

      Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

This is an appeal from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.801(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. The trial court shall expedite its review. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: LUCK, J.

text:
    Charles Kyle WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2270
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizensteih, Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LAGOA, SCALES and LUCK, JJ.
   LUCK, J.

Charles Kyle Williams appeals his aggravated battery conviction and sentence, following a jury trial, because (1) of improper statements made by the state during closing argument and (2) the trial court’s sentence was unconstitutionally vindictive. After review of the record and briefs, and with the benefit of oral argument, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 18, 2013, Michelle Emmanuel (a student at Miami-Dade College) went to the college computer lab to visit her boyfriend, Williams, who was a Miami-Dade College employee working in the lab. The couple discussed a fight which had occurred several days before when Emmanuel discovered pictures of another woman on Williams’ phone. After hours talking and sitting in the lab, Williams suggested that they go to the next room, a “testing area.” The computer lab and testing area were separated by a sliding partition and “steal door.”

Upon entering the room, Emmanuel sat in the “far corner of the testing room” and Williams proceeded to go through her cellular telephone. Williams “got mad” when he found a text message conversation between Emmanuel and her “good friend” Richard Pearson. Williams directed Emmanuel to call Pearson and the two men spoke on the telephone. After hanging up with Pearson, Williams told Emmanuel that she disrespected him and punched her on the eye “repeatedly.” He also hit her on the mouth twice with an open palm, busting her lip. He then spit on her.

After the attack, Williams gave Emmanuel a napkin for her bloody lip and opened a separate door so that she would not have to walk through the computer lab. Only a few people were working in the lab during the altercation. Emmanuel went to the bathroom to clean up and was eventually picked up by Pearson who took her to the college’s public safety office' to report the attack.

Prior to voir dire, the following exchange occurred between Williams and the trial court:

Court: The State has indicated that if you are convicted in this case, the minimum that the Court can give you, absent statutory mitigating circumstances is 44.7 month's in state prison.
The maximum, of course, as charged is fifteen years in state prison absent any announcement the State filed prior to sentence, do you understand that?
Williams: Yes.
Court: Is there any offer in this case?
Assistant State Attorney: I’ll offer him seven years state prison absent hearing defense counter.
Court: They- are offering you seven years in state prison at this time, are you interested in that offer?
Williams: No, ma’am.
Court: Do you need any additional time to speak with the attorney regarding any negotiations in this case?
Williams: No, ma’am.
Court: All right. Very good.

After rejecting the state’s plea offer, Williams proceeded to trial. .

At trial, three state-witnesses testified to either seeing Emmanuel in the lab the day of the beating or seeing a young woman with a bloodied rag over her face leave the building around the time of the attack. The witnesses present in the lab at the time testified they did not hear screaming coming from the testing area.

The defense’s theory of the case was that the parties were not dating (as Williams was married), and that, in fact, Williams defended Emmanuel from an attack by Pearson which took, place across the street , from the college at .the Wal-greens parking lot. In support of its theory, the defense presented two witnesses: Brenda Pearsall and Stanley Collins, an engaged couple, who testified to an altercation in the Walgreens parking lot across the street from the college on March 18. They both testified that Williams told an unidentified-man not to hit the woman. Pearsall admitted that she was a five time convicted felon; and Collins admitted that he had been convicted of twelve prior felonies. On cross examination, the couple also testified that, months after the battery took place, Williams’ wife contacted Collins about testifying in the case.

Following- closing arguments, defense counsel moved for a mistrial “based on [the] [s]tate’s rebuttal,- based on multiple inStance[s of denigration] of [the] defense, based on- statement of the law with regards to burden of proof. Multiple instances of burden shifting.” The motion was denied. The jury returned a verdict of guilty as charged for-aggravated battery.

The trial court subsequently held a sentencing hearing. During the hearing, Williams stipulated that he had been convicted of two prior felonies: one from Texas for aggravated robbery with a firearm; and one from Broward County for possession of a weapon (a dagger) by a convicted felon. He also stipulated to one prior misdemeanor conviction for driving without a valid driver’s license. Emmanuel was present at sentencing and-the state read a statement from her detailing the continuing physical and emotional effects, of the attack.

The .state, asked the trial court to sentence Williams to the fifteen year statutory maximum because of Williams’ prior convictions which involved the use of weapons (firearm and knife), and the victim’s testimony regarding her injuries. After commenting on the evidence presented at the hearing, the trial court sentenced Williams to thirteen years’ imprisonment, followed by one year of community control and one year of probation.

STANDARD OF REVIEW

“A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion. We look at the closing argument as a whole to determine whether that discretion was abused.” Merck v. State, 975 So.2d 1054, 1061 (Fla. 2007) (citation omitted). “Where counsel failed to raise a contemporaneous objection when improper closing argument comments were made, the unobjected-to comments must rise to the level of fundamental error, which has been defined as error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance- of the alleged error.” Evans v. State, 177 So.3d 1219, 1234 (Fla. 2015) (quotation omitted). On the other hand, “[t]he issue of whether a defendant’s sentence is vindictive is a question of law subject to de novo review.” Simplice v. State, 134 So.3d 555, 556 (Fla. 5th DCA 2014); see also Vardaman v. State, 63 So.3d 925, 926 (Fla. 4th DCA. 2011) (“Whether a defendant’s sentence is vindictive is a question of law subject to de novo review.”); Baxter v. State, 127 So.3d 726, 734 (Fla. 1st DCA 2013) (“Our analysis of whether a defendant’s sentence is the product of judicial vindictiveness .involves a question’of law subject to de novo review.”). .

DISCUSSION

Williams, on., appeal, challenges more than twenty statements made by the state during its first and second closing arguments, and contends that his sentence was unconstitutionally vindictive. We address each of these arguments below.

1. Improper Comments .During Closing Argument

Williams claims the state made approximately twenty improper comments during its two closing arguments. For the vast majority of these alleged errors, Williams did not raise a contemporaneous objection, and they were not errors at all. For example, in its rebuttal closing, the state argued: “The defendant savagely, maliciously, and intentionally beat [Emmanuel] causing great bodily injury in this case.” This was a reasonable inference from the evidence, and a fair reply to Williams’ argument in his closing that:.

The State wants to charge that Mr. Williams intentionally caused great bodily harm by striking Miss Emmanuel with a closed fist. That’s not intentionally causing great bodily harm unarmed. ■Hitting someone three times that’s not intentional. That’s felony battery at best.

See Watson v. State, 50 So.3d 685, 686 (Fla. 3d DCA 2010) (“[A] proper rebuttal argument is limited to a reply to what has been brought out in the defendant’s closing argument.”), .

As part of its burden to prove that Williams committed aggravated battery on Emmanuel, the state had to’ show that Williams “[intentionally or knowingly cause[d] great bodily harm, permanent disability, or permanent disfigurement.” § 784.045(1)(a)1., Fla. Stat. (2013), Given that Williams’ defense, in part, was that his beating of Emmanuel did not intentionally cause her great bodily harm, the state was entitled to argue, using synonyms of “intentional” and “great bodily harm,” that the state met its burden to prove this essential element of the crime.

The evidence, moreover, supported the inference that the beating was savage, malicious, and intentional. Emmanuel testified that after getting off the telephone with Emmanuel’s friend, Pearson, Williams told Emmanuel that she disrespected him and then punched her repeatedly on the eye, hit her on the mouth twice, busted her lip open, and spat on her. Emmanuel was bleeding as she fled the computer lab, and the next day, because it hurt to even open her eye, she had to go to the hospital. Emmanuel ultimately was diagnosed with a fractured left eye. The jury saw pictures of Emmanuel’s beaten face. Because Williams’ intent was a jury question, State v. Gee, 624 So.2d 284, 285 (Fla. 2d DCA 1993) (“[Ijntent is generally a jury question that in most instances cannot be ascertained by direct evidence but only inferred .... ”), and he put intent at issue in his closing argument, there was a reasonable inference to be made that beating a woman until she’s bleeding, her lip is busted, her eye cannot open, she has to go to the hospital, breaking her eye socket, and spitting on her, all because she disrespected Williams, was savage and malicious.

Williams also contends that it was improper for the state to argue in its rebuttal closing that:

[Emmanuel] didn’t cry out. She didn’t yell out for help. She was victimized by this thirty-eight year old defendant at the time who was romantically involved with a twenty year old little girl. ... The victim in this case didn’t cry loud. She didn’t scream out.
She was a mouse on that witness stand. I submit to you members of the jury she was a mouse on that day. She couldn’t cry out. She couldn’t scream for help. She was paralyzed with fear.
When she cried, she cried softly and took it.

This, too, was a reasonable inference from the evidence, and a fair reply to Williams’ argument that the beating did not happen in the computer lab as Emmanuel testified because no one heard her scream. Williams argued in closing that:

The State would have you believe that while this brutal attack took place, which Miss Emmanuel was crying out to the point that Mr. Williams was allegedly hitting her more for how loud she was being that no one in that room heard it.
The fact that Miss Moore and Miss Holliman [two witnesses] were there and heard nothing is reasonable doubt.

The evidence supported the inference that Emmanuel was a quiet person. The two witnesses in the computer lab testified that she was. Emmanuel came off that way on the witness stand. See Parker v. State, 641 So.2d 483, 485 (Fla. 5th DCA 1994) (where a witness takes the stand, “he subjects] himself, as does every witness, to opposing counsel’s comments regarding his credibility and demeanor as a witness.”); Fla. Stnd. Jury Instr. (Crim.) 3.9 (the standard criminal jury instruction on credibility states that the jury should “consider how the witnesses acted, as well as what they said”). Emmanuel testified that her focus, after being hit, was on “just leaving and getting away.” And Detective Harris testified that domestic violence victims are sometimes reluctant to come forward. The purpose for describing Emmanuel as a mouse was not to evoke sympathy for her, as Williams claims on appeal, but rather to rebut Williams’ argument that no one heard her scream. This was a fair explanation in response to the defense’s closing argument that others in the computer lab did not hear Emmanuel being beaten.

Williams contends the state denigrated the defense when it said the defense witnesses’ testimony was “out of thin air,” and “[b]y the way between the two of [them] we have got seventeen felony convictions.” These statements were reasonable inferences from the evidence, and a fair reply to Williams’ closing argument. Williams’ defense, in part, was that he did not beat Emmanuel in the computer lab, but that Pearson beat Emmanuel at the Walgreens parking lot across the street and Williams tried to stop it. Williams argued in his closing:

You can believe [the defense witnesses’] testimony, not only because it is consistent with each other. Not only because these two people have no reason to lie about this. They have no stake in this, but because they were honest with you.

It was a fair reply for the state to respond that the defense witnesses had a reason to lie about their testimony, and were not being honest with the jury. The defense witnesses’ testimony was contradicted by others who saw Emmanuel together with Williams at the computer lab (and had seen them together in the past), and saw Emmanuel nan from the computer lab with a bloody napkin in front of her face. The defense witnesses, moreover, were solicited to testify by Williams’ wife, and only came forward at her prompting. Ms. Pear-sall admitted she was a five time convicted felon, and Mr. Collins testified he was a twelve time convicted felon. See Fla. Stnd. J. Instr. (Crim.) 3.9 (‘You should consider how the witnesses acted, as well as what they said. Some things you should consider are ... Has the witness been convicted of a felony ....”).

It is not burden shifting for the state to comment on the lack of evidence supporting a defense theory where the defendant puts on a case and argues that a third person committed the crime. The “out of thin air” and “seventeen felony convictions” comments, in context, were a fair reply by the state to the credibility of the defense witnesses and the lack of evidence supporting the Walgreens’ defense theory. See Concepcion v. State, 188 So.3d 5, 9 (Fla. 3d DCA 2016) (“The record, however, demonstrates that the State’s arguments were responsive, and were directed to the evidence, and were not personal attacks of defense counsel or improper denigration of the defendant’s theory of defense. The State merely argued that the case was about a child who had been victimized by the defendant, and that the evidence did not suggest that the mother had concocted a story or that VDR was lying about what happened that day. These arguments were fair responses to defense counsel’s closing arguments and were based on the evidence introduced at trial.”).

And so on. None of the alleged errors, separately or together, was an abuse of discretion (for preserved errors) or fundamental error (for the unpreserved ones) that reached down into the validity of the trial itself such that a guilty verdict could not have been obtained without the assistance of the alleged error. For the unpre-served errors, the evidence of Williams’ guilt was strong. The jury had Emmanuel’s testimony with pictures of her injuries. Two independent witnesses saw Emmanuel in the computer lab around the time of the attack. And a third independent witness saw a woman with a bloody rag on her face leaving the computer lab building. The unpreserved errors alleged by Williams did not reach down to the validity of this evidence supporting that Emmanuel was beaten at the computer lab, where Williams worked, and not at the Wal-greens across the street.

2. Vindictive Sentence

Williams contends that his thirteen year sentence should be reversed because it was unconstitutionally vindictive.

[W]hen a claim of vindictive sentencing is raised, the reviewing court must examine all of the surrounding circumstances of a rejected plea and the sentence imposed to ' determine whether they create a presumption of vindictiveness. If the totality of the circumstances give rise to a presumption of vindictiveness, then the burden shifts to the State to produce evidence to dispel the pré-sumption. However, if the totality of the circumstances do not give rise to a presumption of vindictiveness, the burden never shifts to the State and the defendant must satisfy his burden to prove actual vindictiveness.

Concepcion, 188 So.3d at 9 (citations omitted). In determining whether the totality of the circumstances give rise to a presumption of vindictiveness, we begin by applying the Wilson v. State, 845 So.2d 142 (Fla. 2003) factors:

(1) Whether the trial judge initiated the plea discussions with the defendant • • • • >
(2) Whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as' an impartial arbiter by either urging- the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial;
(3). The disparity between the plea offer and the ultimate sentence imposed; and
(4) The lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Concepcion, 188 So.3d at 9-10 (quotation omitted).

a. Initiating plea discussions. The trial court did not initiate plea discussions with Williams. -Before jury selection, the trial court went over the sentencing guidelines and maximum penalties with Williams, and asked if there were any outstanding plea offers in' the case-. Once the state indicated that it had a plea offer, the trial- court asked if Williams wished to accept the offer and whether he needed more time to discuss it with his attorney.

There is no presumption of vindictiveness from the trial court’s pre-trial colloquy with the defendant. See Floyd v. State, 198 So.3d 718 (Fla. 2d DCA 2016) (stating it was not a violation of Warner for judge to ask if defendant was aware of state’s plea offer, explain the state’s offer, and inform defendant of his sentencing exposure as long as it is done impartially and not while advocating for the state offer); Hornbuckle v. State, 864 So.2d 1203, 1205 (Fla. 5th DCA 2004) (finding no vindictiveness where “[t]he only discussion involving the plea centered around whether Mr. Hornbuckle. wanted to accept the State’s offer, or plead open to the court”); Vondervor v. State, 847 So.2d 610, 614 (Fla. 5th DCA 2003) (“Prior to trial, a judge may ask the attorneys if a plea offer has been extended, and may ask the defendant if he is aware of a pending plea offer without violating Warner’s' restrictions. The judge can even tell the defendant at the same time of his or her maximum exposure if convicted at trial.” (citation omitted)). Indeed, the experienced trial court did what we would commend all trial courts do prior to jury selection: ask the parties whether any plea offers had been extended; ensure the offers have been communicated to the defendant by counsel; confirm the defendant is aware of the maximum and minimum penalties and the sentencing guidelines; -and inquire whether the defendant is rejecting the plea offer. See Rosado v. State, 129 So.3d 1104, 1109 (Fla. 5th DCA 2013) (“[A] presumption, of vindictiveness does not arise because the trial judge neither initiated the plea discussions nor departed from her role of neutrality. Rather, as most experienced trial judges do, prior to jury selection, she inquired of the parties as to whether any plea offers had been tendered and ensured that they had been communicated to Rosa-do. The judge further inquired whether Rosado had rejected that offer and was aware of the potential maximum sentence.”).

Defendants have a constitutional right to be advised of plea offers and to have the effective assistance of counsel in deciding whether to accept or reject them. See Missouri v. Frye, 566 U.S. 134, 145, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (“[D]efense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”); Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. During plea negotiations defendants are ‘entitled to the effective assistance of competent counsel.”’ (citations omitted)). For this reason, it is wise and appropriate for the trial courts to ensure that defendants’. plea-offer rights are being protected, in the same way that trial judges make sure defendants are knowingly, voluntarily, and intelligently accepting a plea. See Fla. R. Crim. P. 3.170(k) (“No plea of guilty or nolo contender shall be accepted by a court without the court first determining .,. that the circumstances sounding the plea reflect a full' understanding of. the significance qf the plea and its voluntariness and that there is .a factual basis for the plea of guilty.”). Just as trial courts have a standard plea colloquy with defendants before entering a guilty plea, so too should trial courts colloquy a defendant before trial about knowingly, voluntarily,, and intelligently rejecting a plea offer. Doing so is not initiating plea discussions, .and is. not vindictive.' ..

b. Comments on the record. The trial court did not urge Williams to accept the plea. And the trial court did not state or. imply that Williams’ sentence would hinge on whether he exercised his right to trial.The trial court asked Williams if he wished to accept the offer and if he needed more time with his trial counsel. Once Williams said he was rejecting the plea offer, the trial court said, “All right. Very good,” and then proceeded to. trial. Without more, there can be no presumption of vindictiveness. See Concepcion, 188 So.3d at 10 (finding no presumption of vindictiveness where “[t]he trial court did not recommend or urge the defendant to accept the State’s plea offer or imply that upon a conviction, the defendant’s sentence would be increased because he exercised his right to a trial”).

c. Disparity. The disparity referred to in the third Wilson factor is the disparity between the trial court’s plea offer to resolve the case, and after defendant rejects the court-extended offer, the trial court’s ultimate post-trial sentence. See Wilson, 845 So.2d at 158 (“Turning to Wilson, this case involves a- violation of probation where the trial judge offered to sentence Wilson to 128 months if he pled guilty. ..'. This implication is heightened by the fact that immediately after ,the hearing, which was held shortly after the plea discussions, the judge imposed a 150-month sentence without explanation.” (citation omitted)); id. at 157-58 (“[T]he trial judge exceeded the limits of Warner by both urging Byrd to accept the plea offer of thirty years and stating that if Byrd chose to go to trial he ‘certainly’ would not get that low. ... Further, there is an extremely large disparity between the offered thirty-year sentence and the seventy-five year sentence imposed.” (citation omitted)). Here, because the trial court did not make a plea offer to Williams, there was no disparity. The trial court did not indicate any preference before the trial began, or urge the defendant to accept a particular plea, to compare to the ultimate sentence.

d. Explanation for the sentence. The trial court explained that its sentence was based on the jury’s verdict, the statements from members of the community, including Emmanuel, and Williams’ “very serious prior criminal history,” including the facts of his prior cases from Texas and Broward County. The Florida Supreme Court cited these same factors as ones that could justify an increased sentence from the one offered by the trial court pre-trial but rejected by the defendant. Id. at 157 (quoting Prado v. State, 816 So.2d 1155, 1164 (Fla. 3d DCA 2002) (Sorondo, J., concurring)) (“Factors such as the nature of the defendant’s prior convictions, the degree of violence employed by the defendant during the commission of the crime, the sophistication with which the charged offense was committed, and/or the physical or psychological suffering endured by the victim(s), are some factors that might lead the court to increase what it originally considered to be an acceptable sentence.”). The trial court, here, gave a detailed explanation for her sentence based on objective factors that it did not have at the time of its pretrial plea colloquy.

In sum, none of the Wilson factors indicate a presumption of vindictiveness. “[Wlhere,” as here, “the trial court merely confirms that the defendant understands the terms of the plea offer and the potential sentences he is facing, there exists no presumption of vindictiveness.” Concepcion, 188 So.3d at 10. Likewise, “[t]he disparity between the State’s pre-trial plea offer and the sentence imposed by the trial court after trial, standing alone, does not create a presumption of vindictiveness nor require resentencing.” Id. Here, as in Concepcion, other than the fact the trial court’s sentence was higher than the state’s pretrial plea offer, Williams has presented no evidence that the sentence was vindictive. Even as to this fact, however, there is nothing in the record to indicate the trial court would have accepted, or urged the defendant to accept, the state’s seven-year plea offer. There is nothing in the record to indicate the trial court penalized Williams for exercising his right to go to trial. And the trial court explained the reasons for its sentence, which included information it did not have at the time of the pre-trial plea colloquy: the details of Williams’ prior criminal history; the remarks made at the sentencing hearing, including Emmanuel’s statement of the emotional and physical impacts the beating had on her; and facts of the case supporting the jury’s verdict, including the extent of Emmanuel’s injuries. These facts, even where the trial court makes a plea offer and the presumption of vindictiveness arises, may support an increased sentence. Without the presumption of vindictiveness, it is not enough for Williams to meet his burden to show the trial court’s sentence was actually vindictive.

CONCLUSION

For these reasons, Williams’ conviction and sentence for aggravated battery are affirmed.

Affirmed.


text:
    John Ceasar HAZELTON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-1847
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Harold Long, Jr., for petitioner.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for respondent.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Following review of the petition for writ of habeas corpus and the response and reply thereto, it is ordered that said petition is hereby granted and remanded for resentencing. See Johnson v. State, 215 So.3d 1237 (Fla. 2017); Kelsey v. State, 206 So.3d 5 (Fla. 2016).


author: SUAREZ, J.

text:
    Titus L. HENLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1418
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Titus. L Henley, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SCALES, and LUCK, JJ.
   SUAREZ, J.

Titus L. Henley appeals from an order revoking his probation and seeks appointment of appellate counsel. It. appears from the record that Henley was represented by court-appointed counsel at the probation violation hearing, case no. F09-16471A. The probation revocation sentencing order states that the defendant has a right to assistance of counsel in taking an appeal from that order.

In the context of a pending criminal proceeding where it is clear that the defendant is currently represented, by counsel and hasn’t explicitly sought to discharge counsel in those proceedings, then dismissal per Logan would be appropriate. See Logan v. State, 846 So.2d 472 (Fla. 2003); see also Murray v. State, 1 So.3d 407, 408 (Fla. 2d DCA 2009) ( holding that prohibition on pro se motions by defendants who are represented by counsel only extends to the proceedings in which counsel represents the defendant). Here, however, the criminal proceeding has concluded and the order revoking Henley’s probation and imposing sentence has been rendered. The Order itself states that the court advised the defendant of his right “to the assistance of counsel in taking said appeal at the expense of the State upon showing indigence.”' There is nothing in the record before us to indicate that defendant’s counsel—appointed for the violation of probation hearing—was also appointed for purposes of appeal from that sentencing order. We therefore remand to the trial court for determination of Henley’s eligibility to have counsel appointed for purposes of appeal from the revocation of probation and sentence.


author: Per Curiam.

text:
    Travis M. CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-936
    District Court of Appeal of Florida, Fourth District.
    August 9, 2017
    Travis M. Carroll, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Travis Carroll appeals the trial court’s order summarily denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant is correct, and the State agrees, that the trial court erred in failing to enter separate sentencing orders for each count m his underlying cases. Holmes v. State, 100 So.3d 281 (Fla. 3d DCA 2012); Brazley v. State, 871 So.2d 986 (Fla. 3d DCA 2004). We reverse and remand for the trial court to correct the sentencing documents. Appellant need not be present for this ministerial act. Jordan v. State, 143 So.3d 335, 339 (Fla. 2014); Bowen v. State, 196 So.3d 567 (Fla. 4th DCA 2016); see also Jordan v. State, 42 Fla. L. Weekly D897, 2017 WL 1403592 (Fla. 3d DCA Apr. 19, 2017).

Reversed and remanded.

May, Levine and Forst, JJ., concur.


text:
    Kenneth WRIGHT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2337
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017

      Kenneth Wright, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for. postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one through three of the appellant’s motion. However, we reverse and remand the denial of ground four for the trial court to give the appellant an opportunity to plead a facially sufficient claim.

According to the appellant’s allegations, he was convicted of robbery in 1974, for a crime that he committed as a juvenile, and was sentenced to life in prison. In ground four of his motion, the appellant alleged that his life sentence for robbery violates the Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which forbids mandatory life without parole sentences for juvenile offenders who commit homicide. However, Miller does not apply because the appellant was not sentenced to a mandatory term of life in prison for a homicide offense. The appellant is really challenging his sentence under 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 punishments prevents a juvenile offender from being sentenced to life in prison for a nonhomicide offense without having a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Here, the appellant has failed to allege that he has never been released on parole and that he has no meaningful opportunity for release within his lifetime based upon demonstrated maturity and rehabilitation. See Currie v. State, 219 So.3d 960 (Fla. 1st DCA 2017) (holding that a defendant sentenced to life in prison for a sexual battery committed when he was a juvenile was not entitled to relief pursuant to Graham where he was released on parole when he was 25 years old and was then reincarcerated, and where the Commission on Offender Review has assigned him a presumptive parole release date, as the defendant was afforded a meaningful opportunity to obtain release); Rooks v. State, 224 So.3d 272, 42 Fla. L. Weekly D1573a, 2017 WL 2960766 (Fla. 3d DCA July 12, 2017) (holding that a defendant who was released on parole and violated the parole is not entitled to resentencing under Florida’s newly-enacted juvenile sentencing law). We reverse and remand for the lower court to give the appellant an opportunity to allege that he has never been released and has no meaningful opportunity to obtain release within his lifetime based on demonstrated maturity, if he can do so in good faith.

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

WOLF, RAY, and MAKAR, JJ, CONCUR.


author: EDWARDS, J.

text:
    Shannon HEATHCOCK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2112
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 11, 2017

      Andrew B. Greenlee, of Andrew B. Greenlee, PA, Sanford, Fritz Scheller, of Fritz Scheller, P.L., Orlando, and George A. Couture, of Decatur, GA, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

Following a jury trial, Shannon Heath-cock (“Appellant”) was convicted of attempted sexual battery upon a physically helpless person. Appellant raises several issues on appeal, only one of which has merit. He correctly claims that the jury was erroneously instructed that he was charged with attempt to commit attempted sexual battery, which is a non-existent crime. Appellant’s trial counsel did not bring the jury instruction mistake to the trial court’s attention by a contemporaneous objection. Nevertheless, we are compelled to reverse and remand for a new trial because the erroneous jury instruction constitutes fundamental error.

The trial testimony established that Appellant was literally caught with his pants down. The State presented evidence that the victim, after drinking with Appellant and some colleagues, passed out flat on the ground in the grass next to the parking lot of the bar where they were drinking. Appellant and two other co-workers carried the victim, who was unable to walk, to a van owned by a co-worker. They propped the victim up in the front seat, where she remained essentially non-responsive. The victim was fully dressed and the van door was open when her co-workers and Appellant went back inside the bar. After a while, Appellant returned to the parking lot, supposedly to check on the victim. A few minutes later, the van’s owner went to check on the victim. As she got closer, she noticed the van door was now closed. She opened the door to her van, and saw Appellant, with no pants on, standing over the half-naked victim, whose pants and underwear were now pulled down. She screamed at Appellant to get out of her van. The victim did not respond.

Appellant did not testify at trial. However, the jury heard post-incident phone calls, initiated by the victim and recorded by the police, in which Appellant admitted that he attempted and probably did try to have sex with her. Thus, the jury had sufficient evidence to base its verdict that Appellant committed the crime of attempted sexual battery and to reject Appellant’s defense that the victim consented to have sex with him.

However, a mistake was made in crafting the jury instructions, which resulted in the jury repeatedly being improperly instructed about the crime charged and its elements. The jury was instructed that Appellant was being charged with attempt to commit Attempted Sexual Battery, as follows:

In order to prove that the defendant attempted to commit the crime of Attempted Sexual Battery upon a Physically Helpless Person, the State must prove the following beyond a reasonable doubt:
1. [Appellant] did some act toward committing the crime of Attempted Sexual Battery upon a Physically Helpless Person that went beyond just thinking or talking about it.
2. He would have committed the crime except that someone prevented him from committing the crime of Attempted Sexual Battery upon a Physically Helpless Person or he failed,

(emphasis added).

The State concedes that the “attempting to commit attempted sexual battery” language- in the jury instructions was erroneous, but claims that Appellant’s lack of a contemporaneous objection waived the issue. Jury instructions “are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So.2d 643, 644 (Fla. 1991) (citations omitted). “To justify not imposing the contemporaneous objection rule, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” Id. at 644-45 (citation omitted).

Here, Appellant was charged with attempted sexual battery, but the jury was instructed that he could be found guilty if he “attempted” to commit attempted sexual battery. However, there is no crime in Florida of “attempt” to commit attempted sexual battery. “If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.” King v. State, 339 So.2d 172, 172 (Fla. 1976). Further, if a literal reading of an erroneous jury instruction lessens the’ State’s burden of proving that the defendant committed the crime charged, it constitutes fundamental error. See Gilley v. State, 996 So.2d 936, 939 (Fla. 2d DCA 2008). Here, a literal reading of the erroneous instructions in this case lessens the State’s burden of proof because it would permit the jury to convict if it somehow believed that any of Appellant’s acts, such as buying the victim and her friends several drinks, one of which they all thought may have been spiked, was more than “simply thinking or talking about” committing the crime of attempted sexual battery.

The State argues that the jury’s verdict should stand, as everything in the case from voir dire to closing arguments, other than the erroneous instructions, was clearly focused on whether Appellant committed the crime of attempted sexual battery. Thus, the State continues, it is unlikely. that the jury got confused. “[Wjhether the evidence of guilt, is overwhelming or whether the prosecutor has or has not made an inaccurate instruction a feature of the prosecution’s argument are not germane to whether the error is fundamental.” Reed v. State, 837 So.2d 366, 369 (Fla. 2002). “It is fundamental error if the inaccurately defined ,.. element is disputed ..., and the inaccurate definition, ‘is pertinent or material to what the jury must consider in order to--convict.’” Id. (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982)).

Under these circumstances, we find that the erroneous instructions to the jury constitute fundamental error. Accordingly, we reverse Appellant’s conviction and remand for a new trial. The other issues raised by Appellant lack merit.

REVERSED AND REMANDED FOR NEW TRIAL. .

EVANDER, J, and ATKIN, J.E., Associate Judge, concur.


text:
    William Edward BUBB, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1778
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 11, 2017
    James S. Purdy, Public Defender,- and Andrew C. Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After a jury trial, William Bubb was convicted of sexual battery on a person less than twelve years of age and lewd or lascivious molestation. On appeal, he argues that the trial court violated his Sixth Amendment right of confrontation by permitting the victim’s Child Protection Team (“CPT”) interview video to be admitted into evidence after the child took the witness stand but refused to testify. We affirm. This alleged error was not preserved below. See Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010) (“While no magic words are required to make a proper objection, ... the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error.” (citations omitted)); Mungin v. State, 932 So.2d 986, 1003 (Fla. 2006) (holding appellant’s confrontation issue unpreserved for appeal).

We further conclude that any error in the admission of the CPT interview video would not have been fundamental. Indeed, as to the sexual battery charge, any error would have been harmless given: (1) Bubb admitted in a post-arrest interview that he had penetrated the child’s vagina with his penis; (2) similar out-of-court statements from the victim were admitted without objection through the testimony of the nurse examiner; (3) forensic evidence established the existence of semen in the victim’s underwear; and (4) immediately after the events in question, a witness Observed that Bubb was “red, sweaty, and very nervous,” and the witness was told by the victim, who was walking awkwardly, that her “Cindy” (a term the family used for vagina) had been touched.

AFFIRMED.

EVANDER, BERGER and WALLIS, JJ., concur.

      . Amend. VI, U.S. Const.


text:
    NIEVES FINANCIAL INVESTMENT CORP., Appellant, v. U.S. BANK, N.A., Appellee.
    No. 3D16-1978
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    A.R.A. Law Group and Armando R. Alfonso, for appellant.
    SHD Legal Group and Roy A. Diaz (Fort Lauderdale), for appellee.
    Before SUAREZ, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Curbelo v. Ullman, 571 So.2d 443, 444 (Fla. 1990) (observing: “As correctly noted by the Fourth District Court of Appeal in Fiber Crete Homes, Inc., v. Division of Administration, 315 So.2d 492, 493 (Fla. 4th DCA 1975), ‘rule 1.540 was intended to provide relief from judgments, degrees or orders under a limited set of circumstances.’ This rule was not ‘intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error.’ ”) See also Havanatur, S.A., v. 747 Travel Agency, Inc., 463 So.2d 404, 405 (Fla. 3d DCA 1985) (holding that “‘the general rule—universally— is that intervention may not be allowed after final judgment,’ save ‘in the interests of justice’ ”) (quoting Dickinson v. Segal, 219 So.2d 435, 436-37 (Fla. 1969)).


text:
    Idelfonso CARDELLE, Appellant, v. HSBC BANK USA, NA, Appellee.
    No. 3D16-2768
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Idelfonso Cardelle, Jr., in proper person.
    McGuire Woods, Sara F. Holladay-Tobi-as and Emily Y. Rottmann (Jacksonville), for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Appellant, Idelfonso Cardelle, appeals from the trial court’s order which 1) vacated an earlier default entered against appellee, HSBC Bank USA; and 2) dismissed Cardelle’s complaint with prejudice.

We affirm without further discussion the trial court’s order insofar as it vacated the default previously entered against HSBC Bank, as appellant has failed to demonstrate that the trial court grossly abused its discretion. See M.W. v. SPCP Grp. V, LLC, 163 So.3d 518 (Fla. 3d DCA 2015).

However, we find merit in Cardelle’s claim that the trial court, at that same hearing, erred in dismissing Cardelle’s complaint with prejudice. The trial court entered its order of dismissal sua sponte, at a hearing that was scheduled for the purpose of addressing the default and the request for entry of a default final judgment. Cardelle would have no reason to anticipate (and was provided no notice) that the hearing would include consideration of dismissal of Cardelle’s complaint. The sua sponte dismissal of the complaint, in the absence of proper notice, violated Cardelle’s due process rights by expanding the scope of the hearing and making a determination on matters not noticed for that hearing. See Pinnock v. Whyte, 209 So.3d 71 (Fla. 3d DCA 2016); Shah v. Shah, 178 So.3d 70 (Fla. 3d DCA 2015); Epic Metals Corp. v. Samari Lake East Condo. Ass’n, Inc., 547 So.2d 198 (Fla. 3d DCA 1989).

We therefore affirm the trial court’s order insofar as it vacated the default against HSBC Bank, but reverse the trial court’s order insofar as it dismissed Car-delle’s complaint with prejudice.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . We do not reach the merits of the trial court’s basis for dismissing the complaint with prejudice.


author: FERNANDEZ, J.

text:
    Thomas E. STRINKO, Appellant, v. Sontha S. STRINKO, Appellee.
    No. 3D16-2432
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Thomas E. Strinko, in proper person.
    Hinshaw <& Culbertson, LLP and Elizabeth S. Baker, for appellee.
    Before ROTHENBERG, C.J., and SALTER, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Thomas Strinko appeals the trial court’s dismissal of Strinko’s petition to domesticate and modify an Ohio judgment on the basis that Florida does not permit a Florida court to grant grandparents visitation. We reverse and remand, as the Ohio order awarding Strinko grandparent’s visitation rights is entitled to enforcement under the Full Faith and Credit Clause of the United States Constitution.

Strinko filed a petition seeking domestication of a judgment entered by the Ohio Court of Common Pleas, Juvenile Division, in Butler County, Ohio. The judgment granted Strinko supervised visitation with his granddaughter, K.C. KC.’s mother, Sontha Sue Strinko, moved to dismiss the petition on the basis that grandparent visitation ordered by a foreign court is unenforceable in Florida as a matter of law. The trial court granted the motion and dismissed the petition, and Strinko now appeals.

Subsequent to the trial court’s decision, the Florida Supreme Court decided the issue of enforcement of a similar order from a sister state based on the Full Faith and Credit clause of the United States Constitution, Clearly, the trial court did not have the benefit of this decision when it entered its order dismissing Strinko’s petition. In LeDoux-Nottingham v. Downs, 210 So.3d 1217 (Fla. 2017), the Florida Supreme Court held that Full ‘Faith and Credit, rather than comity principles, governs the domestication and enforcement of the judgment of a sister state entered by a court of competent jurisdiction. The Court further held that despite Florida’s privacy laws and their effect on grandparent visitation, the properly domesticated judgment of a sister state allowing grandparent visitation is enforceable in Florida, and a trial court has no discretion but to enforce such a properly entered and domesticated judgment. Id.

Accordingly, we reverse the trial court’s order dismissing Strinko’s petition and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.


author: PER CURIAM. LOGUE, J.,

text:
    Vivian DE LOS MILAGROS CASTELLAT, Appellant, v. Gisela Lissette PEREIRA, Appellee.
    No. 3D16-1855
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    The Carlyle Appellate Law Firm and Christopher V. Carlyle (The Villages), for appellant.
    The Perez Matos Law Firm and Cecilia Perez-Matos (Delray Beach),' for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Russell v. Pasik, 178 So.3d 55 (Fla. 2d DCA 2015); Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006).

SCALES and LUCK, JJ., concur.

LOGUE, J.,

concurring.

This case involves an area of law—regarding. how advances in reproductive technology, impact the definition of the modern family—which is struggling to catch up with and reflect the rapid changes taking place in society. In this case,‘ a same-sex couple arranged to'have a child together. When the couple separated, the birth mother blocked all contact between the child and the former partner. The former partner filed a petition in the lower court to establish her parental rights regarding the_ child, including visitation. The case presents the issue, of whether the birth mother’s constitutional right to privacy protects her decision to sever the child’s ties with her former partner when the former partner is npt the biological or legal parent of the child.

I. BACKGROUND

In reviewing a motion to dismiss, the truth of the allegations are assumed. See Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012) (“In ruling on a motion to dismiss, all well-pled facts in the complaint are accepted as true ....”). The Appellant, Vivian de los Milagros Castellat, filed the petition in the court below seeking to establish parental rights. For ten years she was the domestic partner of the Appel-lee, Gisela Lissette Pereira, the birth mother of the child who was the subject of the petition. During that time, the parties presented themselves as a married couple, but never actually wed. Ms. De los Milagros Castellat, whom we will refer to as the “former partner,” and the birth mother utilized assisted reproductive technology to have a -child. They agreed Pereira, the Appellee, would be the birth mother.

In 2009, the birth mother gave birth to twins: a boy and a girl who were bom prematurely. The boy survived only two days. The girl lived but continued to have special needs. Both children were given the former partner’s surname, but the birth mother alone was listed as the mother on the birth certificates.

The parties raised the child together for approximately four years, The parties and the child celebrated holidays together. Both the birth mother and the former partner took the child to her many doctor appointments, which included physical therapy, speech therapy, and occupational therapy. For the duration of their time together with the child, the parties lived in a home that was jointly owned by the birth mother and the former partner. The parties twice consulted with an adoption attorney regarding the process for the former partner to adopt the child, but no adoption took place.

In late 2013, the parties separated. Following the separation, the birth mother severed all ties between the child and the former partner. The birth mother also changed the child’s surname to her own, without notice to the former partner. The former partner, seeking .to continue her relationship with the child, filed, the petition which contained six counts:, Count I sought a determination of parentage pursuant to Chapter 743, Florida Statutes; Count II sought a determination of parentage pursuant to common law implied contract; Count III sought a determination of parentage pursuant to equitable estoppel; Count IV sought declaratory relief that the appellant had standing pursuant to Chapter 42; Count V sought the establishment of visitation consistent with principles of common law, implied contract and equitable estoppel; and Count VI sought a determination of parentage pursuant to the due process clause of the United States and the Florida Constitution.

The birth mother filed a motion to dismiss the petition for lack of subject matter jurisdiction and for failure to state a cause of action. Following a hearing, the trial court entered its final order dismissing the petition with prejudice. This appeal followed.

II. ANALYSIS

At one time, the common law of Florida empowered judges to award child visitation against the will of the birth, biological, or legal parent when the judge found that visitation was in the best interest of the child because a non-parent qualified as a “psychological parent.” See, e.g., Cone v. Cone, 62 So.2d 907 (Fla. 1953) (upholding award of child custody to grandmother against claim of the biological father); Wills v. Wills, 399 So.2d 1130, 1131 (Fla. 4th DCA 1981) (holding that a psychological parent could qualify for the parental status of the biological and legal father: “It seems to us that if an adequate record can be made demonstrating that it is in the child’s best interest that such visitation be authorized the trial judge’s discretion in the matter is sufficiently broad to allow him to authorize visitation with a non-parent.”).

But these cases lost all efficacy once courts began taking into consideration Florida’s right to privacy: “Although these earlier cases recognized the concept of a psychological parent and awarded custody or visitation to the psychological parent based upon the best interests of the child, they did so without addressing the issue of the biological or adoptive parent’s fundamental or constitutionally protected right of privacy .... ” Kazmierazak v. Query, 736 So.2d 106, 109 (Fla. 4th DCA 1999) (declining to follow Wills because “no mention is made of the father’s fundamental and constitutionally protected right of privacy”). See Richardson v. Richardson, 766 So.2d 1036, 1043 n.9 (Fla. 2000) (noting “to the extent [Cone, 62 So.2d at 907] granted custody of the minor children to the grandmother absent a showing of detrimental harm to the children if custody were to be awarded to the children’s natural father, [Cone] has been impliedly overruled by this Court’s [privacy] decisions.”)

The Florida Constitution’s express right to privacy states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life, except as provided herein.” Art. I, § 23, Fla. Const. “In enacting this freestanding constitutional provision, the citizens of Florida opted for more protection from governmental intrusion than that afforded under our federal constitution. The state constitutional right to privacy is much broader in scope, embraces more privacy interests, and extends more protection to those interests than its federal counterpart.” Von Eiff v. Azicri, 720 So.2d 510, 514 (Fla. 1998) (citations and quotations omitted).

Florida’s constitutional right to privacy recognizes the zone of autonomy around a nuclear family into which a judge, legislator, or official, no matter how well intentioned, simply cannot go. This zone protects “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” D.M.T. v. T.M.H., 129 So.3d 320, 336 (Fla. 2013) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). The only exception occurs if one of the members of the family is at risk of significant harm. In this regard, the Florida Supreme Court has held that “[n]either the legislature nor the courts may properly intervene in parental decisionmaking absent significant harm to the child threatened by or resulting from those decisions.” Von Eiff, 720 So.2d at 514. Under these principles, it is violation of a parent’s right to privacy for the legislature to confer on non-parents, even biological relatives such as grandparents, the right to visit minor children against the parents’ will. See Beagle v. Beagle, 678 So.2d 1271, 1277 (Fla. 1996) (holding that the State cannot impose grandparent visitation upon a minor child “without first demonstrating a harm to the child”).

Under this body of law, the trial court properly dismissed the former partner’s complaint to establish parental rights and visitation. The former partner is not the birth mother. She is not a biological parent of the child in that she did not contribute biological or genetic material, such as an egg, as part of the child’s conception. She has not adopted the child. And she was not married to the birth mother at the time the child was born. Regarding parental rights, “the law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents.” Russell v. Pasik, 178 So.3d 55, 59 (Fla. 2d DCA 2015).

Indeed, the facts in this case are remarkably similar to Wakeman v. Dixon, 921 So.2d 669, 671 (Fla. 1st DCA 2006), in which the First District affirmed the dismissal of a former partner’s complaint seeking to establish parental rights. Wake-man and Dixon were a lesbian couple who had children pursuant to sperm donation agreements designating both Wakeman and Dixon as co-parents of the children, and providing that the non-birthing parent’s relationship with the children would be secured. Pursuant to the agreements, Dixon gave birth to two children. Ultimately the couple separated and Dixon severed all ties between Wakeman and the children. Wakeman later filed a complaint against Dixon seeking a declaration recognizing her parental rights to the children.

The trial court dismissed Wakeman’s complaint and the First District affirmed, holding “absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and that agreements providing for visitation by a non-parent are unenforceable.” Id. at 669. The court observed, “[t]he Florida Supreme Court has held that, under the privacy provision in the Florida Constitution, a third party, even a grandparent, cannot be granted by statute the right to visitation with minor children, because, absent evidence of a demonstrable harm to the child, such a grant unconstitutionally interferes with a natural parent’s privacy right to rear his or her child.” Id. at 671.

Here, as the trial court correctly pointed out, there simply has been no showing of any harm to the child that would warrant government interference with the birth mother’s right as the parent to control who has access to her child.

The former partner contends her position is supported by the Florida Supreme Court’s decision of D.M.T. v. T.M.H., 129 So.3d at 320. D.M.T. involved a parental rights dispute between a lesbian couple where one partner was the biological mother because she contributed her egg, while the other partner was the birth mother. The court held the constitutional right to privacy meant that the partner who contributed the egg could not be bound by a form contract she signed as part of the reproductive procedure in which she waived her parental rights. In doing so, the court emphasized that the form was intended to apply to anonymous egg donors and the facts clearly showed the couple intended to bear and raise the child together.

In the present case, the former partner seizes on this reasoning and notes she and the birth mother in the instant case also intended to bear and raise the child together. But the former partner is not the biological mother or birth mother. In D.M.T., the Florida Supreme Court expressly approved Wakeman’s holding that the lesbian partner who was the birth mother had parental rights protected by the constitution that prevailed over the claims of a partner who was neither the biological nor legal mother, even though the couple clearly intended to raise the children-together. Id. at 346.

As our Supreme Court has held, “[tjhere may be many beneficial relationships for a child, but it is not for the government to decide with whom the child builds these relationships. This concept implicates the very core of our constitutional freedoms and embodies the essence of Florida’s constitutional right to privacy.” Von Eiff, 720 So.2d at 516. The child’s life may well be enhanced-by the additional financial, social, spiritual, and emotional support the former partner might provide. But whether the benefits of such support, from a former partner who is neither the biological or legal parent, outweigh possible detriments lies in the hands of the birth mother: the State of Florida cannot wrest that choice from her. ,

      . During the time of the parties’ relationship, same-sex couples could not marry in Florida. As the trial court remarked, however, a marriage in one of the states recognizing same-sex marriage would likely have been entitled to full faith and credit in Florida. Art. IV, § 1, U. S. Const. See Brandon-Thomas v. Brandon-Thomas, 163 So.3d 644 (Fla. 2d DCA 2015) (holding, in the context of a divorce proceeding, that the Full Faith and Credit Clause required Florida to recognize a same-sex marriage legally obtained in another state even though Florida law at the time did not recognize same-sex.- marriages performed in Florida). The marital status of the parties does not play a role in our analysis of the facts presented in this case,


author: EMAS, J.

text:
    Frederick Marzouka SOLER, Appellant, v. Wanda Cesarina Rivera DULUC, Appellee.
    No. 3D15-2841
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017.
    Andrew M. Kassier, for appellant.
    No appearance for appellee.
    Before RQTHENBERG, C.J., and SUAREZ and EMAS, JJ.
   EMAS, J.

Affirmed. See Fla. R. Civ. P. 1.540(b)(4); Reyes v. Aqua Life Corp., 209 So.3d 47 (Fla. 3d DCA 2016); Park Finance of Broward, Inc. v. Jones, 94 So.3d 617 (Fla. 4th DCA 2011).


author: SCALES, J.

text:
    NEW DAY MIAMI, LLC, Appellant, v. BEACH DEVELOPERS, LLC, et al., Appellees.
    No. 3D17-1071
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017

      Richard L. Barbara,' P.A., and' Richard L. Barbara, for appellant.
    Law Offices of Robert P. Frankel, P.A., and Robert P. Frankel (Plantation), for appellee Beach Developers, LLC; Russell A. Cohen, P.A., and ’ Russell A. Cohen; Tables‘Law Group, P.A., and Ryan Tables (Hollywood), for appellee Brepega, LLC.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   On Motion for Reconsideration

SCALES, J.

I. Relevant Procedural Background

The circuit court entered a final judgment of foreclosure on October 4, 2016, in the case of Beach Developers, LLC v. Brepega, LLC, lower tribunal case number 15-9283. Appellant New Day Miami, LLC (“NDM”) was the successful bidder at a November. 17,-2016 foreclosure sale. Two of the named defendants in the foreclosure action moved, pursuant to Florida Rule of CiviL Procedure L540, to vacate the October 4, 2016 judgment of foreclosure and to set- aside the sale to NDM.

On March 10, 2017, the trial court entered an order granting these two defendants’ rule 1.540 motion, thus vacating the judgment and setting aside the sale to NDM. Rather than appealing this March 10, 2017 order, NDM filed a motion for rehearing pursuant to rule 1.530. On April 17, 2017, the trial court denied NDM’s motion for rehearing, and NDM filed its notice of appeal in this Court on May 9, 2017, challenging both the March 10, 2017 order and the April 17, 2017 order denying rehearing.

Appellee, plaintiff below, Beach Developers, LLC moved to dismiss NDM’s appeal as untimely. Beach Developers argued that, pursuant to the express provisions of Florida Rule of Appellate Procedure 9.130(a)(5), NDM’s rule 1.530 motion for rehearing did not toll the rendition date of the trial court’s March 10, 2017 order granting the rule 1.540 motion; and therefore, NDM’s May 9, 2017 notice of appeal was untimely as it was not filed within thirty days of rendition as required by Florida Rule of Appellate Procedure 9.130(b).

NDM did not respond to Beach Developers’s motion to dismiss, and on June 9, 2017, we granted the motion and dismissed NDM’s appeal. NDM then filed with this Court the instant motion for reconsideration. In the instant motion, NDM argues that the trial court’s March 10, 2017 order—vacating the foreclosure sale and setting aside NDM’s certificate of title—constituted a final judgment as to NDM, despite being manifested in a rule 1.540 order. NDM maintains that, because it was a third-party bidder at the foreclosure sale, rather than a party to the underlying foreclosure action, NDM’s motion for rehearing of the March 10, 2017 order was both timely and authorized, thereby delaying “rendition” of the March 10, 2017 order until NDM’s rehearing motion was adjudicated on April 17, 2017. Fla. R. App. P. 9.020(i)(1). NDM argues that its May 9, 2017 notice of appeal is therefore timely, and adequately invokes this Court’s jurisdiction to review both (i) the March 10, 2017 order, and (ii) the April 17, 2017 order denying NDM’s rehearing motion.

II. Analysis

A. March 10, 2017 Order on Rule 1.540 Motion

We are not unsympathetic to the peculiar situation in which NDM finds itself. We agree that the March 10, 2017 order is “final” as to NDM. While this order has reopened the underlying foreclosure case, which remains to be litigated, no further adjudication remains with regard to NDM in this case. See Miami-Dade Water & Sewer Auth. v. Metro. Dade Cty., 469 So.2d 813, 814 (Fla. 3d DCA 1985) (“In determining the finality of an order, judgment, or' decree, the test employed by the appellate court is whether the order appealed constitutes an end to judicial labor in the trial court, and nothing further remains to be done to terminate the dispute between the parties directly affected.”). We also agree with NDM that, generally, pursuant to rule 9.020(i)(1), an authorized and timely motion seeking relief from a final order delays rendition of the final order until the rehearing motion can be adjudicated. Yet, rule 9.020(i)’s tolling provision is applicable “unless another rule of procedure specifically provides to the contrary.” Fla. R. App. P. 9.020(f). Rule 9.130(a)(5) expressly provides that rehearing motions directed toward orders on motions seeking relief from judgment do not toll the rendition of such orders.

In the instant motion, NDM argues that it is somewhat arbitrary that NDM’s rehearing motion would not delay rendition of the March 10, 2017 “final order” simply because this March 10, 2017 “final order” happens to be manifested in an order entered “on an authorized and timely motion for relief from judgment” so as to bring it within the scope of rule 9.130(a)(5)’s express tolling prohibition. In sum, NDM argues that rule 9.130(a)(5)’s tolling provision should be inapplicable to NDM’s appeal because the trial court’s March 10, 2017 order is “final” as to NDM and rule 9.130(a) is applicable only to non-final orders.

The plain and unambiguous language of the relevant provision of rule 9.130, however, belies NDM’s argument. Rule 9.130(a)(5) expressly governs procedures applicable to “[ojrders entered on an authorized and timely motion for relief from judgment.” The rule is thus applicable to all orders granting or denying a party’s rule 1.540 motion, irrespective of whether the order is “final” or “non-final.”

It is not disputed that the March 10, 2017 order challenged by NDM is an order entered on an authorized and timely motion seeking relief from the October 4, 2016 final foreclosure judgment. As such, the plain and unambiguous text of rule 9.130(a)(5)’s second sentence provides that NDM’s motion seeking rehearing of the March 10, 2017 order did “not toll the time for filing a notice of appeal” of that March 10, 2017 trial court order.

Thus, absent tolling, in order for this Court to have jurisdiction to review the March 10, 2017 order, NDM was required to file its notice of appeal within thirty days of March 10, 2017. Fla. R. App. P. 9.110(b). Because NDM’s notice of appeal was not filed until May 9, 2017, we lack jurisdiction to review the trial- court’s March 10, 2017 order. Peltz v. Dist. Ct. of Appeal, Third Dist., 605 So.2d 865, 866 (Fla. 1992).

B. Trial Court’s April 17, 2017 Order Denying Rehearing of March 10, 2017 Order

Having concluded that we lack jurisdiction to review the trial court’s March 10, 2017 order, we ordinarily would be precluded from separately reviewing the trial court’s April 17, 2017 order denying rehearing of that order by virtue of rule 9.130(a)(4). Indeed, rule 9.130(a)(4) generally prohibits appellate review of orders on motions for rehearing of final orders separately from appellate review of the underlying final order. Ricardo v. Wells Fargo Bank Nat’l Ass’n, 166 So.3d 967, 968 (Fla. 3d DCA 2015); Christ v. Christ, 103 So.3d 1056, 1057 (Fla. 1st DCA 2013); Bastida v. Vitaver, 590 So.2d 1092, 1092-93 (Fla. 3d DCA 1991).

But rule 9.130(a)(4)’s “separate review” prohibition is not absolute; a careful reading of the relevant text of rule 9.130(a)(4) reveals that the rule’s appellate prohibition is limited only to. those orders on motions for rehearing that “suspend rendition” of the underlying final order. Fla. R. App. P. 9.130(a)(4). Hence, the rule is inapplicable to prevent separate review of -an order on an authorized, timely rehearing motion that does not suspend rendition of the- underlying final order. The long line of cases holding that a district court lacks jurisdiction to review an order on an unauthorized motion seeking rehearing of a non-final order is inapposite.

As discussed above, pursuant to rule 9,020(i), authorized and timely motions for rehearing of final orders generally suspend rendition of the final order until the rehearing motion has been adjudicated; except, as also discussed above, pursuant to the express provisions of rule 9.130(a)(5), a rehearing motion directed toward an order on a party’s rule 1.540 motion—whether that order is final or non-final—does not suspend rendition of the order.

Because rule 9.130(a)(4)’s “separate review” prohibition applies only to orders on motions that suspend rendition, and because NDM’s timely and authorized rehearing motion did not suspend rendition of the .March 10, 2017 order, rule 9.130(a)(4)’s “separate review” prohibition does not preclude this Court from reviewing the trial court’s April 17, 2017 order, notwithstanding that this Court lacks jurisdiction to review the underlying March 10, 2017 order..

III. Conclusion

While NDM’s March 24, 2017 rehearing motion—directed toward the trial court’s March 10, 2017 rule 1.540 order—was both timely and, under- the facts of this case, authorized, it did not toll the rendition of the trial court’s March 10, 2017 order, pursuant to rule 9.130(a)(5). Because NDM did not timely appeal that March 10, 2017 order, we lack jurisdiction to review that order. We deny NDM’s instant motion seeking reconsideration of this Court’s June 9, 2017 order dismissing NDM’s appeal of the March 10,2017 order.

Because NDM timely appealed the trial court’s April 17, 2017 order denying NDM’s rehearing motion, we vacate that portion of our June 9, 2017 dismissal order that dismissed NDM’s appeal of the trial court’s April 17, 2017 order. Within fifteen days of this order, NDM shall file its Initial Brief, accompanied by an appendix as prescribed by Florida Rule of Appellate Procedure 9.220. Additional briefs shall be served as prescribed by Florida Rule of Appellate Procedure 9.210. We emphasize that, for the reasons stated above, the issue on appeal is limited strictly to whether the trial court erred in entering its April 17,2017 order.

Motion for reconsideration granted in part and denied in part.

      . These two named defendants are Brepega, LLC and Josemar Francisco. While the purpose of their motion to vacate the foreclosure judgment is not immediately relevant to the issues discussed in this opinion, the lower court docket reveals that their- motion was based on their not having received notice of hearing of the final judgment, which deprived them of the opportunity to argue to the trial court that the plaintiff allegedly had breached a settlement agreement.

      . Sometime prior to the February 27, 2016 hearing on the rule 1.540 motion, NDM intervened in the case below, and the record suggests that NDM participated in the hearing.

      . Rule 9.130(a)(5) provides: "Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule. Motions for rehearing directed to these orders will not toll the time for filing a notice of appeal.” (Emphasis added).

      . Rule 9.020(i)(1) provides, in relevant part, as follows: "An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. However unless another applicable rule of procedure specifically provides to the contrary ... if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for ... rehearing ... the following exceptions apply: (1) If such a motion or motions have been filed, the final order shall not be deemed rendered as to any existing party until the filing of a signed, written order disposing of the last of such motions.” (Emphasis added).

      . Indeed, the title of rule 9.130 indicates that the rule applies to some species of final orders: Proceedings to Review Non-Final Orders and Specified Final Orders. (Emphasis added). Prior to the 2008 amendment of rule 9.130(a)(5), the rule specifically identified those orders on expressly scheduled post-judgment motions, such as orders on rule 1.540 orders, to which rule 9.130’s appellate procedures applied. The 2008 amendment replaced the specific reference to those post-decretal motions with "Orders entered on an authorized and timely motion for relief from judgment ...” Yet, the Court did not amend the rule’s title’s reference to "specified final orders.” See In Re Amendments to Fla. Rules of Appellate Procedure, 2 So.3d 89 (Fla. 2008).

      . An order on a party's rule 1.540 motion seeking relief from judgment may be final or non-final. Such an order granting a party’s rule 1.540 motion seeking relief from a judgment may be "non-final” if it vacates a judgment, i.e., the adjudication of the parties’ dispute continues. Conversely, a trial court’s denial of such a motion may be "final,” i.e., the previously entered judgment remains undisturbed. Under the unique procedural posture of the instant case, the trial court’s granting of the rule 1.540 motion is non-final as to the parties involved in the foreclosure (it vacates the judgment allowing the underlying foreclosure action to proceed), but final as to NDM (it vacates the foreclosure sale of the property to NDM). Rule 9.130(a)(5)'s tolling prohibition applies to all orders on rule 1.540 motions, whether the motion is granted or denied, and whether the effect of the order on the appellant is final or non-final.

      . Rule 9.130(a)(4) provides: "Orders dispos- ' mg of motions that suspend rendition are not reviewable separately from a review of the final order; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110.”

      . We are mindful that the committee notes purporting to explain our Supreme Court's 2008 amendment to rule 9.130(a)(5) characterize rehearing motions directed toward rule 1,540 motions as unauthorized. Those notes read, in relevant part, as follows: "Subdivision (a)(5) has been amended to recognize the unique nature of the orders listed in this subdivision and to codify the holdingsi of all of Florida’s district courts of appeal on this subject. The amendment also clarifies that motions for rehearing directed to these particular types of orders are unauthorized and will not toll the time for filing a notice of appeal.” Fla. R. App, P. 9.130(a)(5) committee notes (2008). Committee notes, however, are not binding authority. D. K. D. v. State, 470 So.2d 1387, 1389 (Fla. 1985). Given the unique posture of the instant case, these'committee notes seem in direct conflict with our Supreme Court’s holding in Clearwater Federal Savings & Loan Ass’n v. Sampson, 336 So.2d 78 (Fla. 1976), Clearwater 'Savings expressly holds that a motion for rehearing directed toward a post-decretal order adjudicating an issue not adjudicated in the final judgment, such as NDM’s rehearing' motion, is authorized. Id. at 79. While the Clearwater Savings Court went on to hold that Clearwater Savings’s rehearing motion did toll the rendition of the underlying order, Clearwater Savings was not confronted, as is NDM, with a plain and unambiguous rule precluding tolling. Id. at 80.