author: KELSEY, J.

text:
    STATE of Florida DEPARTMENT OF CORRECTIONS, Northwest Florida Reception Center Annex/Division of Risk Management, Appellants, v. Andrew JUNOD, Appellee.
    CASE NO. 1D15-5259
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017
    Rehearing Denied May 18, 2017

      Colleen Cleary Ortiz of Colleen Cleary Ortiz, P.A., Pensacola, for Appellants.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
   KELSEY, J.

The Employer/Carrier appeals a final order of the Judge of Compensation Claims holding that Claimant is entitled to benefits under the heart-lung statute, section 112.18 of the Florida Statutes. We reverse.

Claimant’s Employment and Heart Attack.

After applying for a job as a correctional officer trainee, Claimant completed a pre-employment medical history questionnaire, and underwent a pre-employment physical at a local walk-in clinic in December of 2008. On the questionnaire, he denied having ever been diagnosed with vascular disorders, high blood pressure, heart disease, heart murmur, or obesity. He was 5 feet, 8 inches tall and weighed 210 pounds. He disclosed that he had a family history of heart disease or heart attack. He had a normal electrocardiogram. The lab report revealed elevated glucose, but no other abnormalities. among the factors tested. His blood labs did not include a lipid panel, so the pre-employment physical included no information about cholesterol levels. There was also no indication of his blood pressure. The examining physician nevertheless checked boxes indicating that his examination did not reveal evidence of tuberculosis, heart disease, or hypertension.

Claimant accepted a position as a correctional officer trainee beginning January 9, 2009. It was undisputed below that trainees are not correctional officers. Trainees do not engage in “supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution.” § 943.10(2), Fla. Stat. (2009) (defining correctional officers). After his initial hire date in January of 2009, Claimant participated in a training program based away from the correctional facility compound. During training, he injured his back and was unable to complete the training program, in an incident that the E/C accepted as compensable. His employer gave him light-duty work réading mail in the mail room for about four months. When he was deemed fully recovered from the back injury, he returned to the training program and completed it successfully, becoming a certified correctional officer on January 6,2010.

Just over three months after becoming certified and beginning work as a correctional officer, Claimant suffered a heart attack while asleep at home. He notified his employer of the heart attack, and returned to work within a couple of weeks. A captain asked Claimant if the heart attack was work-related, and Claimant said it was not. He continued to work at that correctional facility until December of 2011, when he left to take another job. He did not assert a claim for benefits arising out of the heart attack before leaving this job, nor within the year after he left and worked elsewhere. He was re-hired at the correctional facility in December of 2012.

Claimant first made a claim for benefits arising out of his 2010 heart attack in December of 2014—four years and eight months after the heart attack. He asserted that he did not know until November of 2014 that hi's heart attack might be covered under the heart-lung statute. He argued that the statute of limitations did not begin to run until November of 2014 when he claims he first became aware of the heart-lung statute. The JCC accepted this argument and found the claim to be timely—a finding that we do not reach. We conclude that even if the claim was timely, the claim should have been denied because the E/C successfully rebutted the presumption of compensability under the heart-lung statute and there was no competent, substantial evidence of occupational causation.

Claimant’s First Report form and his first Petition for Benefits did not rely on any sudden accident or unusual exertion as causing his heart attack. Rather, Claimant asserted in both documents that he “developed disabling arterial and cardiovascular hypertension and or heart disease over course of career as a certified corrections officer which became disabling on or about 4/19/2010 [the date of his heart attack].” (Emphasis added.) The E/C denied the claim in its entirety on grounds of expiration of the statute of limitations, untimely notice, failure to meet the statutory presumption, and rebuttal of the statutory presumption.

Independent Medical Examiners (IMEs).

Claimant’s IME, Dr. Borzak, reviewed Claimant’s medical records without examining Claimant. Dr. Borzak acknowledged Claimant’s non-occupational risk factors, and concluded that he was not able to determine the cause of Claimant’s heart attack.

The E/C’s IME, Dr. Pedone, reviewed Claimant’s medical records and examined Claimant. Dr. Pedone concluded within a reasonable degree of medical certainty that Claimant developed atherosclerosis over a period of years prior to his employment as a correctional officer, and that the atherosclerosis in turn was caused by Claimant’s multiple risk factors unrelated to his employment. These risk factors included a history of heavy smoking—between two and three-and-a-half packs a day for 20 years, ending ten years before he took the trainee job; male gender; over age 45 (age 55); family history of early-onset heart disease as evidenced by his mother’s cardiac bypass surgery at age 55 and subsequent heart transplant and death; obesity; dyslipidemia; increased abdominal girth; and elevated glucose levels. The E/C’s IME concluded within a reasonable degree of medical certainty that these factors, and not Claimant’s employment, caused Claimant’s heart attack.

Expert Medical Advisor (EMA).

Although there was no conflict between the IME opinions because one physician could not determine a cause and the other opined that the cause was non-occupational, the JCC made no findings on the IME opinions, and the parties, agreed to the appointment of an expert medical advisor (EMA). The JCC appointed Dr. Leonard Pianko as an EMA to evaluate Claimant and advise the JCC. Dr. Pianko recognized Claimant had several coronary risk factors traditionally associated with coronary artery disease, but concluded that the predominant etiology of the heart disease was work-related. By the time Claimant saw Dr. Pianko on August 18, 2015, it had been five years and four months since Claimant’s heart attack. Dr. Pianko. admitted that when he examined Claimant, and prepared the EMA report, he did not know that Claimant had worked as a correctional officer for only about three months before the heart attack. Instead, he assumed Claimant had worked as a correctional officer for “several years” or about “2 years” after passing his December 2008 pre-em-ployment physical. Given that mistaken factual foundation, the E/C objected to the EMA’s opinion and moved to strike it.

The EMA also opined that Claimant’s heart attack was work-related based on articles by Dr. Stefanos Kales, describing epidemiological studies covering only police officers and firefighters. These articles are not in the record, but the EMA described them as showing “a markedly increased incidence of coronary artery disease” among police and firefighters compared to the general population. The EMA acknowledged that the Kales articles did not cover correctional officers, and he knew of no studies that did pertain to correctional officers. He nevertheless considered the Kales articles analogous based on his own experience, primarily in Dade County. There was no evidence of studies or Dr. Pianko’s experience involving correctional officers with work tenures of only a few months. Dr. Pianko acknowledged that Claimant had other risk factors, but expressly based his opinion of occupational causation directly on the Ka-les articles.

At the EMA’s deposition and at trial, the E/C objected to the EMA’s opinion on the grounds that the EMA improperly relied on the Kales articles and failed to satisfy the requirements of section 90.702 of Florida’s Evidence Code and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Claimant did not request a pretrial ruling on the Daubert objection, and did not request the assignment of an alternate EMA.

The Heart-Lung Statute.

Florida’s heart-lung statute was enacted in 1965, covering firemen only. § 112.18, Fla. Stat. (1965) (codifying Ch. 65-480, Laws of Fla. (Senate Bill 149)). An earlier Florida Supreme Court decision held that medical incidents such as heart attacks could be compensable events even without the occurrence of a literal “accident,” if they resulted from unusual work-related exertion. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 588-89 (Fla. 1961) (On Rehearing Granted). Subsequent changes in the law broadened applicability of the statutory presumption of compensa-bility. See Ch. 73-125, § 1, at 196, Laws of Fla. (abolishing previous requirement that the presumption operated only in regard to pension and retirement benefits); Caldwell v. Div. of Ret., 372 So.2d 438, 440-41 (Fla. 1979) (broadening compensability to encompass firemen’s disabilities accruing over a period of time as hazards are “constantly faced” over the course of a career); Ch. 2002-236, § 3, at 1720, Laws of Fla. (adding law enforcement officers and correctional officers as covered occupations); Ch. 2010-175, § 2, at 2184, Laws of Fla. (amending statute to add correctional probation officers, impose time limits on claims, and eliminate the presumption of occupational causation for claimants who have materially departed from a prescribed medical course of treatment resulting in aggravation of a covered condition).

The first paragraph of the 2009 statute in effect when Claimant had his heart attack was otherwise largely unchanged from the original law, providing as follows:

Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such firefighter or law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. Such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance, unless the insurer and insured have negotiated for such additional benefits to be included in the policy contract.

§ 112.18(1), Fla. Stat. (2009).

Rebutting the Statutory Presumption.

The heart-lung statute provides that the E/C can rebut the statutory presumption with competent evidence of non-occupational causation. Id. (“unless the contrary be shown by competent evidence”). The Florida Supreme Court in Caldwell described the presumption created in section 112.18 as an expression of social policy, and thus held that it affects the burden of proof. 372 So.2d at 440. Caldwell held that the statutory presumption can be rebutted with medical evidence that “some other specific hazard or non-occupational factor was the cause of the disease.” Id. at 441.

We have held that, if the claimant relies solely on the statutory presumption, the E/C can rebut that presumption with competent evidence; but if the claimant adduces competent evidence of occupational causation in addition to the presumption, the E/C must have clear and convincing evidence to rebut the presumption. Punsky v. Clay Cty. Sheriffs Office, 18 So.3d 577, 584 (Fla. 1st DCA) (On Rehearing En Banc) (certifying question of great public. importance as to the E/C’s proper burden of proof), review denied, 22 So.3d 539 (Fla. 2009). The E/C’s rebuttal evidence must be medical evidence established to a reasonable degree of medical certainty. Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009). If the JCC’s ultimate conclusion is not supported by competent, substantial evidence, we must reverse. Punsky, 18 So.3d at 584.

The E/C Successfully Rebutted the Presumption.

Although the E/C raises several issues on appeal including statute of limitations, which we do not reach, we reverse because the E/C successfully rebutted the statutory presumption with competent medical evidence; and the JCC’s conclusion of occupational causation was not supported by competent, substantial evidence. See id. Dr. Borzak, Claimant’s IME, performed a records review only, with no personal interaction with Claimant. He could provide no opinion regarding causation. In contrast, the E/C’s IME, Dr. Pe-done, examined Claimant and his records, and testified -with the requisite degree of medical certainty that Claimant suffered from multiple pre-existing risk factors that, alone or in combination, caused Claimant’s atherosclerosis and resulting myocardial infarction. He excluded any work-related causes.

Although there was no conflict between the two IME opinions, because Claimant’s IME physician had no opinion regarding causation, the JCC nevertheless appointed Dr. Pianko as EMA. Dr. Pianko acknowledged Claimant’s coronary risk factors traditionally associated with coronary artery disease, but concluded that the predominant cause of Claimant’s heart disease was work-related. An EMA opinion is presumptively correct to the extent it addresses disagreements in the opinions of healthcare providers. § 440.13(9)(c), Fla. Stat. (“The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.”). However, an EMA opinion also must comply with the Florida Evidence Code, including Daubert. See U.S. Sugar Corp. v. Henson, 823 So.2d 104, 107 (Fla. 2002) (“First, the Florida Evidence Code applies in workers’ compensation proceedings.”) (citing Alford v. G. Pierce Woods Mem’l Hosp., 621 So.2d 1380, 1382 (Fla. 1st DCA 1993)); Giaimo, 154 So.3d at 387. Under the Evidence Code as amended in 2013 to codify Dgu-bert, expert testimony must be “based on sufficient facts or data”; be “the product of reliable principles and methods”; and be applied “reliably to the facts of the case.” § 90.702, Fla. Stat. We conclude that the E/C’s Daubert objection to Dr. Pianko’s opinion was well-founded, because the opinion (1) lacked an accurate factual basis, and (2) relied on improper bolstering. It therefore provided no legally sufficient evidentiary basis for the JCC’s ruling in favor of Claimant, and required judgment for the E/C. Punsky, 18 So.3d at 584.

(1) Inaccurate Factual Foundation.

We have held that an expert must establish accurate essential foundation facts in support of the expert’s opinion. Lang Pools v. McIntosh, 415 So.2d 842, 843 (Fla. 1st DCA 1982) (rejecting expert’s opinion based on premise that claimant suffered a fall, when claimant’s own testimony was to the contrary, rendering the expert’s factual foundation erroneous); see also Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561-62 (Fla. 1957) (“It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value.”). Dr. Pianko admitted that when he examined Claimant in August of 2015, he was not aware that Claimant had worked as a correctional officer for only about three months before suffering the heart attack at issue. Rather, the doctor had assumed that Claimant had worked as a correctional officer for several years or at least two years before the heart attack. He related that Claimant had talked to him about the stresses of working as a correctional officer.

By the time of this examination and discussion, however, Claimant was describing the experiences of nearly five years in that job. Dr. Pianko admitted that it was important to his analysis that he thought Claimant had worked under the real and anticipatory stress of the correctional officer job for several years prior to his heart attack, and that he was mistaken. This was a significant factual error that went to the very heart of Dr. Pianko’s causation opinion, rendering that opinion incompetent. See Daubert, 509 U.S. at 591, 113 S.Ct. 2786 (requiring accurate connection between expert testimony and the actual facts of the case to satisfy requirement of relevance); Shartz v. Miulli, 127 So.3d 613, 620-21 (Fla. 2d DCA 2013) (rejecting as legally insufficient an expert’s causation testimony that relied on conjecture to extrapolate several years back in time to determine the decedent’s then-existing medical condition). Dr. Pianko’s opinion, materially lacking an accurate factual foundation, could not support the JCC’s ruling. Punsky, 18 So.3d at 584.

(2) Improper Bolstering. We also find that Dr. Pianko improperly bolstered his opinion. Experts are prohibited from bolstering their opinions by reference to the opinions of non-testifying experts or opinions expressed in treatises authored by others. § 90.706, Fla. Stat.; Linn v. Fossum, 946 So.2d 1032, 1039 (Fla. 2006). These principles apply in workers’ compensation cases under either Daubert or Frye. Henson, 823 So.2d at 109 (adopting for application in workers’ compensation cases the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that expert testimony must be based on precepts generally accepted in the scientific community); Booker v. Sumter Cty. Sheriffs Office, 166 So.3d 189, 194 (Fla. 1st DCA 2015) (rejecting, after Legislature’s adoption of Daubert, pure opinion testimony based only on clinical experience and training, and requiring expert opinions to be based on scientific knowledge to assure relevance and reliability). In this case, Dr. Pianko’s testimony was not competent evidence, because he improperly bolstered his opinion.

Dr. Pianko as EMA admitted that Claimant had several risk factors for heart disease, including male gender, family history of heart disease, and personal history of heavy cigarette smoking. However, he found these factors less significant than factors addressed in articles written by another expert, dealing with firefighters and law enforcement officers. Dr. Pianko’s written EMA report stated as follows with respect to his reliance on such articles (emphasis added):

I have reviewed several articles that have looked at police officers and firefighters written by Kales, which on an epidemiological basis shows a markedly increased incidence of coronary artery disease in the general population. [Claimant’s] development of heart attack 2 years later appeared to be work related based on the epidemiological data of [KJales.

At his deposition, which was admitted into evidence for purposes of the final evi-dentiary hearing, Dr. Pianko admitted that the Kales articles did not deal with correctional officers. He nevertheless testified that in his opinion, based in part on conversations he has had with other unspecified experts, the articles involving police officers in particular should relate to correctional officers. When asked specifically whether this opinion was supported by any medical treatises or journals, he said he was relying on his own experience, particularly in Dade County.

Dr. Pianko was not entitled to bolster his opinion by reference to other experts’ opinions or publications. The seminal case on improper bolstering is Linn v. Fossum, which prohibits experts from bolstering their opinions by reference to other experts or treatises. 946 So.2d at 1039. We have applied Linn to prohibit experts from using published materials or hearsay consultations to bolster their opinions. Duss v. Garcia, 80 So.3d 358, 364 (Fla. 1st DCA 2012); Hargrove v. Howell, 884 So.2d 960, 962 (Fla. 1st DCA 2004); see also Liberatore v. Kaufman, 885 So.2d 404, 407 (Fla. 4th DCA 2003) (collecting cases prohibiting bolstering of expert opinions on direct examination). This result flows from section 90.706 of the Florida Evidence Code, which prohibits the use of authoritative literature except on cross-examination. The EMA’s reliance on the Kales articles as well as other unspecified publications and discussions was improper, and rendered the EMA opinion incompetent and not a valid evidentiary basis for the JCC’s finding in favor of Claimant. Punsky, 18 So.3d at 584.

Conclusion.

Because the E/C successfully rebutted the statutory presumption of section 112.18, and the EMA’s opinion was not competent, substantial evidence of occupational causation, Claimant was not entitled to benefits under the heart-lung statute.

REVERSED and REMANDED for entry of judgment in favor of the E/C.

ROWE and JAY, JJ., CONCUR.

      . Before correctional officers were added to the heart-lung statute in 2002, the law required firefighters and law enforcement officers to successfully pass a physical examination upon entering service, before being entitled to benefits under the statute. § 112.18(l)(a), Fla. Stat. (2001). In 2007, the pre-employment physical requirement was extended to cover correctional officers and correctional probation officers under § 943.13(6).

      . ' Under an amendment to the statute enacted in 2010, the presumption does not apply if a claim for benefits is not made "prior to or within 180 days after leaving the employment of the employing .agency." § 112.18(1)(b)4., Fla. Stat. (2010). This Court in Scherer v. Volusia Cty. Dep’t of Corr., 171 So.3d 135, 139-40 (Fla. 1st DCA 2015), by a 2-1 vote, construed this provision as not applying to claims arising before July 1, 2010. Because we resolve this appeal on other grounds, we do not reach this issue.

      . In light of Claimant's own concessions in the report form and PFB that he had worked in a qualifying occupation for only about three months before having a heart attack while sleeping at home, we have examined the employment tenures involved in our previous heart-lung opinions, and in records on appeal for cases dating back as far as we have retained records (2006). We have found no cases applying the heart-lung presumption that involved an employment tenure of less than 10 years, and cases involving careers of up to 33 years. See Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 804-05 (Fla. 1st DCA 2009) (10 years); City of Jacksonville Fire & Rescue Dep't v. Battle, 148 So.3d 795, 796 (Fla, 1st DCA 2014) (33 years). Nevertheless, section 112.18 on its face does not impose an express tenure requirement. Claimant himself refused to sign the report form that asserted he “developed” disabling conditions "over course of career as a certified corrections officer.” Above the signature block on the report form is the caution that “Any person who, knowingly and with intent to injure, defraud, or deceive ... files a statement of claim containing any false or misleading information commits insurance fraud .... ” The signature line bears the words "refused to sign.”

      . We are aware of the Florida Supreme Court’s decision declining to adopt Daubert “to the extent it is procedural.” In re: Amends. to the Fla. Evid. Code, 210 So.3d 1231 (Fla. 2017). See also Anderson v. State, 220 So.3d 1133, 2017 WL 930924 (No. SC12-1252, 14-881) (Fla. Mar. 9, 2017) (describing Daubert as "more lenient” than Frye). We reaffirm that Daubert continues to apply in workers compensation proceedings as we held in Giaimo v. Fla. Autosport, Inc., 154 So.3d 385, 388 (Fla. 1st DCA 2014). See also Baricko v. Barnett Transp., Inc., 42 Fla. L. Weekly D174, 2017 WL 163692 (Fla. 1st DCA Jan. 17, 2017) (Wetherell, J., concurring) (noting that supreme court's failure to adopt the procedural aspects of Daubert "will have no impact whatsoever on the applicability of the Daubert test in workers' compensation proceedings”). On the facts of this case, as we explain herein, we conclude that the result here would be the same under either Daubert or Frye; but that comparative analysis should not be construed as suggesting any departure from Giaimo.

      . An EMA opinion is admissible as provided in § 440.25(4)(d), Fla. Stat., when there is a conflict in the medical evidence. However, an EMA opinion is not presumptively correct under § 440.13(9)(c) to the extent that it exceeds the scope of any identified disagreement between other authorized medical opinions. Lowe’s Home Centers, Inc. v. Beekman, 187 So.3d 318, 322 (Fla. 1st DCA 2016) (“Therefore, the opinions intended to carry the presumption of correctness are only those that address already identified .disagreements in medical opinions; all other medical opinions expressed by the EMA carry the same weight as that of an independent medical examiner or an authorized treating physician.”). In that situation, the EMA opinion is no more than a potential "source of assistance to the JCC.” Id. (quoting Fitzgerald v. Osceola Cty. Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008)).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold Joseph LAWLER, III, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, Respondent.
    CASE NO. 1D16-4138
    District Court of Appeal of Florida, First District.
    Opinion filed April 18, 2017.

      Andrew B. Greenlee, Sanford, Fritz Joseph Scheller, Orlando, for Petitioner.
    Sarah Young Hodges, General Counsel, Florida Department of Health, Tallahassee, for Respondent.
   PER CURIAM.

Harold Joseph Lawler III, M.D., petitions for review of an order of emergency restriction of license (ERO) issued by the Department of Health, prohibiting him from prescribing scheduled medications. Dr. Lawler argues that the Department has not met its burden of alleging sufficient facts on the face of its order that demonstrate the elements necessary for the issuance of an ERO, which are that: (1) there is an immediate serious danger to the public; (2) the complained of conduct is likely to continue; (3) the order is necessary to stop the emergency; and (4) the order is narrowly tailored to be fair. See Nath v. Dep’t of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012); Kaplan v. Dep’t of Health, 45 So.3d 19, 20-21 (Fla. 1st DCA 2010); Field v. Dep’t of Health, 902 So.2d 893, 895 (Fla. 1st DCA 2005); § 120.60(6), Fla. Stat. (2016).

The ERO in this case fails because it makes general, conclusory allegations that are not supported by particularized facts. For example, it alleges that Dr. Lawler’s treatment of the patient at issue failed to adhere to the minimum standard of care and was of a “deliberate nature,” and that he engaged in “deceitful practices” and “deceitful schemes.” But the ERO fails to provide specific facts in support of these assertions. Further, while the ERO alleges cursory and inadequate physical examinations in the patient’s follow-up visits, it does not mention the nature of the initial examination. Moreover, the allegation that Dr. Lawler failed to obtain an adequate medical history is wholly conclu-sory because no specific deficiencies were identified.

Because the Department may not rely on general or conclusory statements to support the issuance of an ERO, the Department has failed to meet its burden of alleging the necessary facts to satisfy the elements for the issuance of an ERO. See Field, 902 So.2d at 895 (“The agency’s stated reasons for [issuing an ERO] cannot be general or conclusory, but ‘must be factually explicit, and persuasive concerning the existence of a genuine emergency.’ ”) (quoting Commercial Consultants Corp. v. Dep’t of Bus. Reg., 363 So.2d 1162, 1165 (Fla. 1st DCA 1978)). While the alleged course of treatment as to this patient is distressing, and if proven may be a basis for discipline, the factual support for a genuine emergency to the public is lacking. Therefore, we grant Dr. Lawler’s petition for review and quash the ERO.

PETITION GRANTED; ORDER QUASHED.

WOLF, RAY, and MAKAR, JJ„ CONCUR.


text:
    Stephen A. HENDERSON, Jr., Appellant, v. ONEWEST BANK, FSB, Appellee.
    CASE NO. 1D16-2670
    District Court of Appeal of Florida, First District.
    Opinion filed April 18, 2017

      Stephen A. Henderson, Jr., pro se, Appellant.
    W. Bard Brockman of Bryan Cave LLP, Atlanta GA, for Appellee.
   KELSEY, J.

Appellant raises multiple issues in this case involving foreclosure on his late mother’s reverse mortgage. We affirm on all issues except one, that one being the award of attorneys’ fees, as to which we reverse and remand for further proceedings.

Appellee’s representative testified at the bench trial that the amount of attorneys’ fees reflected in a proposed final judgment—$8,976.70—was accurate according to Appellee’s records. The proposed final judgment was not entered into evidence at the trial. Shortly before the bench trial, an attorney with Appellee’s law firm executed an “Affidavit as to Time, Effort, and Costs,” stating a total of $13,753.50 in fees were due for the representation, based on a blend of flat-rate and hourly fees. The affidavit was filed with the trial court before trial, and thus appears in the appellate record, but was never admitted into evidence or even mentioned at the trial; and neither the affiant nor any other representative of the law firm, nor any expert, testified at the trial. On these facts, Appel-lee may be entitled to attorneys’ fees, but it first must adduce additional competent and substantial evidence in support of the fees claimed.

Mortgage foreclosure plaintiffs seeking attorneys’ fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rates are reasonable. Absent a stipulation or waiver, the party seeking fees should present testimony from the lawyer who performed the services or an authorized representative of the law firm, and an expert as to reasonableness of the rates and fees. Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So.3d 958, 960-61 (Fla. 4th DCA 2014). If the record reflects some evidence supporting the fee award, but not testimony from the lawyer or law firm or an expert, the proper remedy is to remand for further proceedings. Id.) see also Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040-41 (Fla. 2d DCA 2015) (remanding for evidentiary hearing where record included fee and cost affidavits filed with the trial court but not admitted into evidence at trial) (citing Wagner v. Bank of Am., N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014)).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for the trial court to take additional evidence on attorneys’ fees.

ROWE and JAY, JJ., CONCUR.


author: Taylor, J.

text:
    James Earl CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3922
    District Court of Appeal of Florida, Fourth District.
    April 19, 2017

      Carey Haughwout, Public Defender, and Jesse Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

James Earl Chambers appeals his conviction and sentence for robbery with a deadly weapon. We conclude that the trial court properly denied appellant’s motion for judgment of acquittal and affirm his conviction. However, we reverse for resen-tencing due to a scoresheet error and the imposition of indigent defense fees and state investigative costs.

The state’s evidence showed that a masked robber fled from the scene of the convenience store robbery in appellant’s vehicle. Appellant argues that the state failed to prove the identity of the robber and rebut his hypothesis of innocence. We disagree. Appellant’s attempt to cash a lottery ticket that was stolen during the robbery, his admission that he was at the scene of the crime and changing explanations for his whereabouts during the robbery, and his initial failure to report to law enforcement his version that he was carjacked and held under duress while one of the carjackers robbed the store, all constituted evidence inconsistent with his hypothesis of innocence. The state proved more than appellant’s “mere presence” at the scene, and it was within the province of the jury to disbelieve appellant’s version of events. The trial court properly denied appellant’s motion for judgment of acquittal and allowed the jury to resolve the inconsistency between the state’s evidence and appellant’s theory of innocence. See Boyd v. State, 910 So.2d 167, 181 (Fla. 2005).

Appellant raises several issues regarding his sentence. We first address appellant’s argument that the trial court improperly based his 20-year prison sentence on a desire to send a message to would-be offenders. Although the trial court did not use the exact phrase “send a message to the community,” it expressly considered general deterrence as a basis for appellant’s sentence, stating: “We sentence for a specific deterrent, and general deterrent, especially in Saint Lucie County. People need to know if you commit a crime with a firearm, there’s going to be a pretty serious consequence. Even if it’s your very first crime.”

In Charles v. State, 204 So.3d 63, 67 (Fla. 4th DCA 2016), we recently held that “it is not impermissible for a sentence to be used as a means of general deterrence.” There, we explained that “deterrence, both general (‘send a message to the community) and specific (send a message to the individual being sentenced), is not merely one factor amidst the sea of relevant sentencing considerations; it is a key component of punishment itself—the ‘primary purpose’ of sentencing under the CPC [Criminal Punishment Code].” Id. Thus, where a sentence comports with the sentencing guidelines, a trial court’s consideration of deterrence as a sentencing factor does not violate a defendant’s due process rights. Id. at 66-67.

Along similar lines, appellant also argues that the trial court improperly treated the offense’s location in St. Lucie County as a sentencing aggravator. As mentioned above, when sentencing appellant, the trial court stated: “We sentence for a specific deterrent, and general deterrent, especially in Saint Lucie County.”

Recently, in Andrews v. State, 207 So.3d 889 (Fla. 4th DCA 2017), we held that the trial judge erred in basing the defendant’s sentence on the fact that the defendant was from out-of-town. There, the trial judge, who is the same judge who presided over this case, commented: “[T]he point being is that what you might get away with down in Broward we—we try to send a message up here to stay out of the Nineteenth Circuit, don’t break into our homes ... because it’s different up here.” Id. at 890.

We explained in Andrews that, though a variety of factors may be considered when sentencing a defendant within the statutory range, “the CPC is unambiguous concerning the factors a trial court may consider in sentencing a defendant.” Id. (quoting Norvil v. State, 191 So.3d 406, 409 (Fla. 2016)). Because out-of-county residence is not a permissible sentencing factor, we reversed the defendant’s sentence and remanded for resentencing before a different judge. Id. at 891.

Andrews is factually distinguishable from this case because appellant was not from another county. He resided in St. Lucie County. Nonetheless, appellant argues that the trial judge sentenced him more harshly based on the offense’s location in St. Lucie County, which is not a valid sentencing factor under the CPC.

Although we agree with appellant that the county in which a crime is committed is not a valid sentencing consideration under the CPC, we do not interpret the trial judge’s comments to mean that he was sentencing appellant more harshly because the crime was committed in St. Lucie County. Rather, it appears that the trial judge was merely observing that specific and general deterrence, which are permissible sentencing considerations, are important sentencing policies in St. Lucie County. Given this construction of the trial court’s comments, we cannot conclude that the court improperly considered the offense’s location as a sentencing factor.

Appellant next argues that he must be resentenced because his CPC score-sheet erroneously included 18 points for possessing a firearm. The state concedes this scoresheet error, but argues that the error was harmless. The state points out that, although the minimum sentence of 61.65 months was reflected on the score-sheet, the trial court sentenced appellant to 20 years followed by 10 years of probation. Thus, the state contends that a reduction in the minimum sentence to 49.50 months would not result in a different sentence.

Whether the scoresheet error was harmless is a close issue. When a score-sheet error is challenged on direct appeal, the error “is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.” Brooks v. State, 969 So.2d 238, 241 (Fla. 2007).

In Somps v. State, 183 So.3d 1090 (Fla. 4th DCA 2015), we found that a scoresheet error was not harmless error, even though: (1) there was only a slight difference between the lowest permissible sentence utilized by the trial court and the lowest permissible sentence on the defendant’s corrected scoresheet, and (2) the trial court imposed a 48-month sentence, which was well above the lowest permissible sentence of 13.05 months on the defendant’s original scoresheet. We explained:

Moreover, the trial court imposed a sentence well above the lowest permissible sentence—forty-eight months. While this certainly suggests that the trial court would have imposed the same sentence using the corrected scoresheet, the record does not conclusively establish that the trial court would have imposed the same sentence ....

Id. at 1093.

Similarly, the Fifth District held that the erroneous inclusion of points on the defendant’s scoresheet “affected the minimum sentence which could be imposed and, even though the minimum sentence was not imposed, this court cannot determine that the trial court would have imposed the sentence it did had it correctly calculated the scoresheet when [the defendant] was originally sentenced.” Espiet v. State, 797 So.2d 598, 604 (Fla. 5th DCA 2001).

Here, we cannot say that the record conclusively establishes that the trial court would have imposed the same sentence with a corrected scoresheet. As the state suggests, it is highly probable that the trial court would have imposed the same sentence, in light of the roughly 15-year difference between appellant’s prison sentence and the lowest permissible sentence on the original scoresheet, coupled with the trial court’s intent to impose a lengthy sentence based on the seriousness of the crime and expressed goal of providing a deterrent. However, as we stated in Somps, while the trial court’s imposition of a sentence well above the minimum “certainly suggests that the trial court would have imposed the same sentence using the corrected scoresheet, the record does not conclusively establish that the trial court would have imposed the same sentence.” 183 So.3d at 1093. Accordingly, we reverse and remand for resentencing on this issue.

We affirm on all other sentencing issues raised in this appeal, but reverse the trial court’s imposition of a lien for indigent defense fees above the $100 minimum allowed under section 938.29(l)(a), Florida Statutes (2015), because the trial court did not give appellant notice of his right to a hearing to contest the amount of the lien and make factual findings supporting the higher amount of fees. See Forbes v. State, 127 So.3d 826, 826 (Fla. 4th DCA 2013); Maestas v. State, 76 So.3d 991, 993 (Fla. 4th DCA 2011). We reverse on this issue and direct the trial court to strike the $2,000 lien for indigent defense fees without prejudice to re-imposing the lien on remand “after the proper procedure is followed.” Forbes, 127 So.3d at 826.

We also reverse the trial court’s imposition of a $50 charge for investigative costs where the record does not demonstrate that the state requested reimbursement for these costs. See Felton v. State, 939 So.2d 1159, 1159 (Fla. 4th DCA 2006). On remand, the trial court shall strike imposition of these costs, but because the state did not request these investigative costs below, the trial court may not reimpose these costs. See Mills v. State, 177 So.3d 984, 988 (Fla. 1st DCA 2015).

Affirmed in part, Reversed in part, and Remanded.

Conner and Forst, JJ., concur.

      . Here, because robbery is an enumerated felony under section 775.087(2), Florida Statutes, it was error to include 18 points on appellant’s scoresheet for possession of a firearm. See Kelly v. State, 796 So.2d 578, 579 (Fla. 2d DCA 2001).

      . The trial court previously ruled that, due to a defect in the charging document, appellant was not subject to the 10-year mandatory minimum sentence under the 10-20-Life statute.


text:
    Jorge GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2598
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017.

      Jorge Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Gonzalez v. State, 152 So.3d 69 (Fla. 3d DCA 2014).


text:
    BABYLON INTERNATIONAL, INC., Petitioner, v. CITY OF MIAMI, Respondent.
    No. 3D16-2328
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017
    Bilzin Sumberg Baena Price & Axelrod LLP, and Jose M. Ferrer and Yasmin Fernandez-Acuña, Miami, for petitioner.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, for respondent.
    Before SUAREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

Babylon International, Inc. (“Babylon”) seeks certiorari review of the trial court’s order denying Babylon’s amended emergency motion for writ of mandamus, in which Babylon sought to compel the City of Miami (“City”) to issue a demolition permit. As Babylon did not possess a clear legal right to the issuance of a demolition permit by the City, see De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957) (holding that mandamus is a “proceeding to enforce a clear legal right to the performance of a clear legal duty”), there was no departure from the essential requirements of law. See Holmes Reg’l Med. Ctr. v. Dumigan, 151 So.3d 1282, 1283 (Fla. 5th DCA 2014) (stating that a petitioner must establish, among other things, a departure from the essential requirements of law to obtain certiorari relief). Accordingly, we deny Babylon’s petition for writ of certiorari.

Denied.


author: Kuntz, J.

text:
    Michael LEVANDOSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4801
    District Court of Appeal of Florida, Fourth District.
    April 19, 2017

      Joshua LeRoy of LeRoy Law, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Michael Levandoski appeals the court’s order denying his post-conviction motion to correct his sentence. Levandoski argues that his written sentence was illegal because it included “sex offender probation” even though the individual components of sex offender probation were not orally pronounced at sentencing. We conclude that the court’s oral pronouncement that Le-vandoski would be subject to “sex offender probation” was sufficient to impose each of the components. Therefore, we affirm.

We also recognize that the First District reached a different result in Snow v. State (Snow I), 157 So.3d 559, 561 (Fla. 1st DCA 2015), clarified on remand, 193 So.3d 1091 (Fla. 1st DCA 2016), and certify conflict with that decision.

I. Factual Background

In 2010, Levandoski pleaded guilty to charges of lewd computer solicitation of a child and traveling to meet a minor for unlawful sexual activity. At sentencing, the court orally stated that “I’m going to sentence him to 48 months in the Department of Corrections on count I, followed by one year of sexual offender probation, and count II, 48 months incarceration in the department of corrections followed by 16 years of sex offender probation.” The court immediately corrected itself, stating: “I’m sorry, I misspoke. ... I’m imposing one year on count one and followed by 15-year sex offender probation on count two for a total of 16 [years].”

When asked to confirm the sentence by counsel for defendant, the court stated “it’s 48 months on count one, followed by a year, and then 15 years of sex offender probation on count II.” Shortly thereafter, the court acknowledged sex offender probation was “available, but ... not mandatory,” and that the probation “will be subject to the conditions of sex offender probation.”

As a precaution, the court also pronounced that “I will make it a special condition of his probation that he is prohibited from—this is part of the sex offender probation anyway, but just to make the record clear, should there be any change in the law as of the time of his release, he’s prohibited from accessing the internet, possessing a computer or any electronic device that can access the internet, and he’s prohibited from having an email address or other similar type of address that allows him to participate in conversations with anyone over the internet by whatever name that may be known here or in the future until his probation is concluded.” As the court stated when reviewing the sentencing transcript at the hearing on the instant motion, “it was the intent of all the parties, even defense counsel ... , that sex offender probation would be imposed” and that “it was the intent of the court and of the parties that he be imposed sex offender probation.”

Three days before Levandoski was released from the ■ Department of Corrections, the State filed a “motion to clarify conditions of sex offender probation.” In the motion, the State stated that “the court sentenced the defendant on October 15, 2010 [to] one year of ‘sex offender probation’ on Count I and to 15 years ‘sex offender probation’ to run consecutive on Count II,” The State also asserted that “the record is clear that the intent of the court was that the defendant should comply with all the applicable conditions of sex offender probation under [Florida Statutes section] 984.30.” The State’s motion to clarify was neither heard nor ruled on by the court.

Sixteen months after the State filed its motion to clarify, Levandoski filed a “motion to strike sex offender conditions of probation, or, in the alternative, to modify probation.” In his motion to strike, Levan-doski argued that the court did not orally pronounce the special, conditions of his probation at sentencing and, therefore, he argued the sex offender probation conditions must be stricken from his sentence. The court held a hearing and concluded that based upon its interpretation of Sturges v. State, 980 So.2d 1108 (Fla. 4th DCA 2008), it did not have the authority to sentence Levandoski to sex offender probation. However, the court also concluded that it “was not prohibited from imposing conditions of sentence that may be included in sex offender probation if they were relevant to the crime charged, which I clearly believed.” Based upon' these conclusions, the court denied thé motion. Levandoski appeals.

II, Analysis

Levandoski argues that the court’s written probation order imposed each of the conditions of “sex offender probation” but that the court only imposed certain of those conditions at the oral pronouncement of his sentence. Therefore, we treat this as an appeal of an order denying a motion to correct an illegal sentence pursuant to Florida Rule Criminal Procedure 3.800(a). Williams v. State, 957 So.2d 600, 601 (Fla. 2007) (“[A]sserting a discrepancy between an oral and written sentence is cognizable in a rule 3.800(a) proceeding for correction of an illegal sentence”). We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(D).

Because a sentencing error involves a pure issue of law, this court’s standard of review is de novo, Parkerson v. State, 163 So.3d 683 (Fla. 4th DCA 2015).

In this case, Levandoski acknowledges that the court orally imposed “all standard conditions of sex offender probation at sentencing.” However, because sex offender probation was not mandatory he argues that the court was required to individually state each of the separate conditions of sex offender probation. With regard to those conditions not individually stated, Levan-doski argues that they are illegal and must be stricken.

To support his argument, Levandoski relies on both Sturges and Snow I, In Sturges, the trial court imposed a sentence that included sex offender probation but did so on the mistaken belief that it was required to include sex offender probation for the crimes at issue. 980 So.2d at 1109. As our supreme court has since explained, “[in Sturges ], the sex offender probation conditions had been imposed mandatorily pursuant to section 948.30” in a situation where they were not mandatory. Villanueva v. State, 200 So.3d 47, 50 (Fla. 2016). Sturges held that a court cannot impose sex offender probation as a mandatory condition of probation when it is not mandated by statute. 980 So.2d at 1109. However, Sturges clearly left open the possibility that sex offender probation could be imposed as a special condition of probation. Id.

In Snow I, the First District concluded that sex offender probation can be applied even when not mandatory. 157 So.3d at 561. However, the court held that only those conditions of sex offender probation that are specifically stated can be imposed. Id. The court held that “those conditions not orally pronounced at sentencing must be stricken.” Id. at 561-62; see also Snow v. State (Snow II), 193 So.3d 1091, 1091 (Fla. 1st DCA 2016) (“In addition, as explained in our original opinion, we reverse and remand with directions that the trial court strike those special conditions of sex offender probation not orally pronounced at sentencing.”). We disagree with our sister court.

Our supreme court has explained that special conditions of probation must be orally pronounced in order to satisfy due process. Lawson v. State, 969 So.2d 222, 227 n.3 (Fla. 2007). An oral pronouncement is required because a probationer is imputed with notice as to those conditions that are based upon statute but not as to those conditions that were uniquely drafted for purposes of his or her probation.” Id. In order to satisfy due process and provide adequate notice to the defendant, “the trial court must orally pronounce any special condition at sentencing.” Id.

“Sex offender probation” is a term of art describing certain conditions of probation that must be applied pursuant to statute in certain instances. See § 948.30, Fla. Stat. (2010). However, sex offender probation may also be imposed as a special condition of probation for an offense not enumerated in the statute. Villanueva, 200 So.3d at 53. When imposed as a special condition of probation, the court must state at sentencing that it is imposing sex offender probation. Parkerson, 163 So.3d at 692. In Parkerson, the sentencing “court did not orally pronounce that ‘sex offender conditions apply to the defendant’s community control and probation terms.” Id. In that situation, where “sex offender probation” was not orally pronounced, it cannot be imposed as the defendant was not on notice.

In this case, Levandoski was on notice that the court sentenced him to “sex offender probation.” Prior to entering his plea, Levandoski acknowledged a prior offer from the State that sought to impose sex offender probation. After sentencing, Levandoski filed two motions in the circuit court stating that he had been sentenced to sex offender probation. And, on direct appeal, his counsel filed an Anders brief in this Court acknowledging that he had been sentenced to one year of sex offender probation on count I and a consecutive 15 years of sex offender probation on count II. Unlike Parkerson, the court in this case orally imposed “sex offender probation” at sentencing.

Due process is satisfied, and the defendant is put on notice, when the court states at sentencing that it is imposing sex offender probation. When a court clearly imposes sex offender probation as a special condition of probation, it need not individually specify each item contained within the umbrella of sex offender probation conditions. Unlike Parkerson, where the sentencing court did not orally sentence the defendant to sex offender probation, and Sturges, where the court wrongly imposed “mandatory” sex offender probation when it was not mandatory, the court here exercised its discretion and clearly imposed sex offender probation as a special condition of probation. We find no conflict between the oral pronouncement and the written sentence.

III. Conclusion

When appropriate, a court may impose sex offender probation as a special condition of probation without stating the various components that term encompasses. Therefore, the trial court’s order is affirmed. We also certify conflict with the First District’s opinion in Snow I, 157 So.3d 559 (Fla. 1st DCA 2015), clarified on remand, 193 So.3d 1091 (Fla. 1st DCA 2016).

Affirmed and conflict certified.

Warner and Gerber, JJ., concur.


author: LOGUE, J.

text:
    Luis Lazaro CAMEJO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1798
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

Luis Lazaro Camejo appeals his conviction and sentence after a jury found him guilty of the sale of cocaine. On appeal, Camejo argues that his conviction and sentence should be reversed and a new trial granted because the Nelson hearing conducted by the trial court was not adequate. We disagree and affirm.

We review for abuse of discretion whether a trial court conducted a proper Nelson inquiry. Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004). A Nelson inquiry is appropriate when a defendant expresses a desire to discharge court-appointed counsel before trial. Id. When these circumstances arise, the trial court must determine “if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance.” Id. If the defendant’s complaints do not indicate ineffective assistance of counsel, then no further inquiry is required. Id.

After a thorough review of the record and transcript of the Nelson hearing at issue on appeal, we agree with the trial court’s conclusion that Camejo failed to offer any legal basis as to why his counsel should be discharged. Because Camejo’s claims do not demonstrate ineffective assistance of counsel, we conclude that the trial court conducted a proper Nelson inquiry.

Affirmed.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: SALTER, J.

text:
    Y.C., the Mother, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2220
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017.

      Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and SALTER and LOGUE, JJ.
   SALTER, J.

Y.C., the mother of a child in proceedings for permanent custody (brought by the father) and termination of guardianship (with Y.C.’s mother, the child’s grandmother, as the permanent guardian), appeals a final judgment of conviction and sentence for criminal contempt. Y.C. disrupted the hearing before the trial court, was directed to leave the courtroom, and did not do so when directed.

At the contempt hearing which followed, the trial court described a series of behaviors that were the basis for the contempt hearing. When directed to show cause why she should not be held in contempt, Y.C. did not do so. The court then entered the order under review finding Y.C. guilty of direct criminal contempt based on “the Court’s own observation of the Mother’s conduct in the presence of the Court.” The trial court sentenced Y.C. to serve three days in a Miami-Dade County jail, which she completed. This appeal from the adjudication of contempt followed.

Y.C. raises three points on appeal. First, she argues that the trial court did not apply the correct standard in evaluating whether her behavior was an intentional violation of a lawful court order which hindered the administration of justice beyond a reasonable doubt. Smith v. State, 954 So.2d 1191 (Fla. 3d DCA 2007). Second, she asserts that she was not given a meaningful opportunity to show cause that her behavior was not contemptuous, or to present mitigating evidence, in violation of Y.C.’s due process. Searcy v. State, 971 So.2d 1008, 1014 (Fla. 3d DCA 2008). Third, Y.C. argues that her conviction must be set aside because the order fails to recite specific facts upon which the conviction was based, relying upon Florida Rule of Criminal Procedure 3.830.

In response, the state argues, and we agree, that orders of direct contempt are reviewed for an abuse of discretion. Michaels v. Loftus, 139 So.3d 324, 327 (Fla. 3d DCA 2014). Under Rule 3.830, and following our review of the record, we find no merit in Y.C.’s first two points on appeal.

Regarding Y.C.’s third point, however, that the order under review lacks the required recital of those facts upon which it is based, the state commendably concedes that a reversal and remand is required. Escoto v. State, 178 So.3d 945, 946 (Fla. 3d DCA 2015). We agree.

Reversed and remanded solely for the trial court to enter an amended judgment setting forth the specific facts upon which the adjudication of contempt was based.


text:
    D.N.K. a/k/a D.N.P., the Father, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D16-2822
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017.
    Steven Grossbard, for appellant.
    Karla Perkins, for appellee Department of Children & Families; Laura J. Lee (Sanford), for appellee Guardian ad Litem Program.
    Before ROTHENBERG, SALTER, and SCALES, JJ.
   PER CURIAM.

Affirmed. § 39.806(l)(c), Fla. Stat. (2016); S.M. v. Fla. Dep’t of Children & Families, 202 So.3d 769 (Fla. 2016); C.G. v. Dep’t of Children & Families, 67 So.3d 1141, 1143 (Fla. 3d DCA 2011).


text:
    Angelo Demetri CUFF, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-892
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017
    Evan Crawford, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Angelo Demetri Cuff appeals the revocation of his probation and the resulting fifteen-year concurrent prison sentences for several offenses. Because Cuff failed to raise his arguments challenging the sentences below, we affirm without prejudice to Cuffs right to file an appropriate motion under Florida Rule of Criminal Procedure 3.800(a). See Brannon v. State, 850 So.2d 452 (Fla. 2003); Sanders-Bashui v. State, 124 So.3d 1041 (Fla. 3d DCA 2013).

Affirmed.


text:
    M.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1794
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Stephen Con-teagiiero, Certified Legal Intern, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and . FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Deparvine v. State, 995 So.2d 351 (Fla. 2008); M.J. v. State, 994 So.2d 485 (Fla. 3d DCA 2008).


text:
    Matthew WAYNE, Appellant/Cross-Appellee, v. Susan EINSPAR a/k/a Susan Ellyn Einspar-Wayne, Appellee/Cross-Appellant.
    Case No. 5D15-3392
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Rehearing Denied May 19, 2017

      Richard J. Feinberg, of Law Office of Richard Feinberg, Indialantic, for Appellant/Cross-Appellee.
    Mark S. Peters, of Eisenmenger, Blaue & Peters, P.A., Viera, for Appellee/Cross-Appellant.
   PER CURIAM.

In this appeal, Matthew Wayne contests the Final Judgment for Dissolution of Marriage regarding himself and his former wife, Susan Einspar. Wayne has raised ten issues, contending that the trial court erred in: 1) distributing certain assets and debts between the parties, including their son’s school and automobile loans; 2) failing to credit Wayne for temporary alimony payments made to Einspar between August 2011 and April 2013; 3) awarding retroactive alimony to Einspar; 4) awarding permanent alimony to Einspar; 5) determining the amount of permanent alimony; 6) placing undue emphasis on the “lifestyle” factor in determining the amount of permanent alimony; 7) declining to impute income to Einspar; 8) calculating Wayne’s net monthly income; 9) requiring Wayne to carry a life insurance policy with Einspar as the beneficiary to secure his alimony obligation; and 10) excessively delaying the entry of the final judgment following the conclusion of trial. Einspar filed a two-issue cross-appeal, contending that the trial court erred in: 1) awarding credits to Wayne for payments he made towards the parties’ property after the petition for dissolution of marriage was filed; and 2) including a particular promissory note in equitable distribution. We reverse regarding Wayne’s first two issues but affirm without further discussion regarding all other issues.

Wayne argues first that the trial court erred in failing to categorize the parties’ son’s student and automobile loans as marital obligations and include them in equitable distribution. Both parties testified at trial that Einspar and their son cosigned on the car loan and Wayne cosigned on the student loans. “All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities.” Wagner v. Wagner, 136 So.3d 718, 719 (Fla. 2d DCA 2014). Therefore, because Wayne and Einspar entered into these loans before the petition for dissolution of marriage was filed, they were marital debts that should have been included in the equitable distribution. See id. at 720 (finding that college loans taken out unilaterally by a husband for an adult daughter the week before the wife filed a petition of dissolution of marriage were marital obligations and reversing for the trial court to adjust its equitable distribution). We note parenthetically that Einspar conceded during oral argument that it was error not to classify the student and automobile loans as marital obligations. Upon remand, the trial court is directed to modify the equitable distribution in this case accordingly.

Wayne’s second argument is that the trial court erred in failing to award him credits for temporary alimony payments that he made to Einspar from August 2011 to April 2013. We agree. See Serbousek v. Lucas, 191 So.3d 539, 541 (Fla. 5th DCA 2016) (“Although ... Former Husband paid some temporary support during the pendency of the dissolution, the trial court set out no findings on this matter. We remand for further consideration of this issue.”). However, the record is unclear as to which months during this time period Wayne made alimony payments. Accordingly, we reverse and remand for the trial court to determine how many payments were made and the total amount of credits due to Wayne.

AFFIRMED in part; REVERSED in part; REMANDED.

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


author: PALMER, J.

text:
    Suzanne FOUCHE, Appellant, v. PILOT CATASTROPHE SERVICES, INC., Appellee.
    Case No. 5D16-848
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Suzanne Fouche, Orlando, pro se.
    Marc A.' Sugerman, of Allen, Norton & Blue, P.A., Winter Park, for Appellee.
   PALMER, J.

Suzanne Fouche appeals the order entered by the trial court enforcing this court’s mandate which directed the court to send this matter to arbitration. We reverse the trial court’s order dismissing, rather than staying, Fourche’s lawsuit pending arbitration. We otherwise affirm.

In the previous appeal, we reversed the trial court’s order denying the motion to compel arbitration filed by appellee, Pilot Catastrophe Services, Inc. We remanded the matter to the trial court with instructions to submit the case to arbitration. On remand, Fouche filed a motion for entry of an order on remand. After a hearing, the trial court entered an order submitting the case to arbitration and dismissing Fouche’s lawsuit without prejudice. Fouche contends that the trial court erred in dismissing, rather than staying, her lawsuit. We agree.

Pursuant to section 682.03 of the Florida Statutes, the imposition of a stay, not an order of dismissal, is the appropriate disposition when a matter is sent to arbitration. The statute reads, in pertinent part, as follows:

682.03. Proceedings to compel and to stay arbitration
(7) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration.

§ 682.03(7), Fla. Stat. (2015). Our court recently recognized the appropriate disposition under facts similar to the instant case. In Timber Pines Plaza, LLC v. Zabrzyski, No. 5D16-3275, 211 So.3d 1147, 2017 WL 951869 (Fla. 5th DCA March 10, 2017), we reversed the trial court’s order denying a motion to compel arbitration and remanded with instructions to send the matter to arbitration and to stay the litigation, citing to section 682.03(7).

Accordingly, the trial court’s order is reversed in part and this matter is remanded with instructions to vacate the dismissal language and to impose a stay of the instant lawsuit. In all other respects, the order is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . Pilot Catastrophe Servs., Inc. v. Fouche, 145 So.3d 151 (Fla. 5th DCA 2014).


author: WEISS, K, Associate Judge.

text:
    BANK OF NEW YORK MELLON f/k/a Bank of New York, as Trustee FOR the CERTIFICATEHOLDERS OF the CWABS, INC., Asset-Backed Certificates, Series 2007-2, Appellant, v. Joseph A. SWAIN and Victoria Swain, Appellees.
    Case No. 5D16-139
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017

      Roy A. Diaz, of SHD Legal Group, P.A., Fort Lauderdale, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, LLC, Tampa, and Latasha Scott, of Lord Scott, PLLC, Tampa, for Appellees.
   WEISS, K, Associate Judge.

Bank of New York Mellon (“the Bank”) appeals from an order granting a “motion to adjudicate finality” that purported to enter final summary judgment of foreclosure in favor of Joseph and Victoria Swain (“the Swains”). This order followed a written order issued several months earlier, which granted summary judgment in the Swains’ favor and dismissed the case without prejudice to the Bank filing a new lawsuit. The Swains have filed á motion to dismiss the appeal, arguing that the Bank’s appeal is untimely because the initial summary-judgmént order was a final, appealable order, rendering the .order on the motion to adjudicate finality a nullity. We agree.

If an order merely grants a motion for summary judgment, without doing more, it is not an appealable, final order. Boyd v. Goff, 828 So.2d 468, 469 (Fla. 5th DCA 2002) (quoting McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001)). However, when, as here, there is evidence of finality on the face of the summary judgment order, it will be deemed a final order for appellate purposes. Getman v. Tracey Const., Inc., 62 So.3d 1289, 1291 (Fla. 2d DCA 2011); Boyd, 828 So.2d at 469. “An order dismissing an action without prejudice and without granting leave to amend is a final appealable order.” Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010). That is the situation here. The focus is on “what a court order does” and not “how the order is labeled.” Boyd, 828 So.2d at 469.

A notice of appeal must be filed within thirty days of rendition of the order to be reviewed; otherwise, this Court lacks jurisdiction to entertain the appeal. See Fla. R. App. P. 9.110(b); Rayburn v. Bright, 163 So.3d 735, 737 (Fla. 5th DCA 2015). The initial summary-judgment order was a final, appealable order from which the Bank did not timely appeal. The Bank filed its appeal more than nine months after that initial order—and more than three months after the denial of the motion for rehearing. Accordingly, we dismiss this appeal for lack of jurisdiction.

DISMISSED.

PALMER and ORFINGER, JJ., concur.

      . The Bank filed a motion for rehearing as to the initial order, which the trial court denied more than three months before the Bank moved to "adjudicate finality.”


author: PER CURIAM. MAKAR, J.,

text:
    BAY COUNTY BOARD OF COUNTY COMMISSIONERS, Petitioner, v. Eartha SEELEY, Respondent.
    CASE NO. 1D16-2829
    District Court of Appeal of Florida, First District.
    Opinion filed April 24, 2017
    J. Andrew Talbert and Jennifer T. Bisk-ner, Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Petitioner.
    John Booth, Walborsky & Bradley, PLLC, Pensacola, for Respondent.
   PER CURIAM.

DISMISSED. See Stemerman, Lazarus, Simovitch, Billings, Finer & Ginsburg, M.D.’s P.A. v. Fuerst, 4 So.3d 55, 57 (Fla. 3d DCA 2009).

WOLF and RAY, JJ., CONCUR; MAKAR, J., CONCURS WITH OPINION.

MAKAR, J.,

concurring.

Eartha Seeley sued Bay County Board of County Commissioners for the negligence of its emergency management personnel when she fell off a stretcher while being wheeled from her home to the awaiting ambulance. Seeley initially failed to comply with the requirements of Florida’s medical presuit notice statute, but sought to do so after the trial court concluded that her claim was for medical negligence. At issue is whether sending her notice of intent to initiate litigation via certified mail to the County before the expiration of the statute of limitations (here, one business day) complied with presuit notice requirements even though it was not received by the County until two business days thereafter.

The trial judge ruled that the notice was served timely, relying on (a) the language of section of the presuit notice statute, which says that the “notice of intent to initiate litigation shall be served within [the statute of limitations]”); section 766.106(4), Florida Statutes (2013) (emphasis added); and (b) rule 1.650(d)(1), Florida Rules of Civil Procedure (2008), which says the notice of intent “shall be served by certified mail, return receipt requested, prior to the expiration of any applicable statute of limitations or statute of repose. If an extension has been granted under section 766.104(2), Florida Statutes, or by agreement of the parties, the notice shall be served within the extended period.” (emphasis added). It also relied on caselaw concluding that—for purposes of determining the timeliness of the notice of intent— the relevant focus is whether the notice was served before the limitations period expired. Baxter v. Northrup, 128 So.3d 908, 912 (Fla. 5th DCA 2013) (noting that rule 1.650(d)(1), which has remained unchanged, “merely mandates that service of the notice of intent by certified mail must be accomplished before expiration of the statute of limitations”).

The Fifth District’s decision in Baxter conflicts with Bove v. Naples HMA, LLC, 196 So.3d 411, 415 (Fla. 2d DCA 2016), reh’g denied (July 29, 2016), which held that “it is the date that the notice is received—rather than the date that the notice is mailed—that is relevant for purposes of determining whether the statute of limitations has been tolled.” The Second District found significance in the fact that rule 1.650(d)(1) provides that service of the notice of intent via certified mail must be “return receipt requested,” which it felt bolstered its conclusion that the date of receipt is relevant. But that overlooks a harmonizing view of the rule’s language, making it more reasonable to conclude that sending the notice via certified mail satisfies the requirement of “service” for statute of limitations purposes, and that the requirement of a return receipt provides a date certain for computing the length of a tolling period. As our supreme court explained long ago:

Service of the presuit notice by certified mail, return receipt requested, simply assures reliable verification of 1) timely service and 2) the date of receipt. Verification of timely service serves to reduce contention and litigation concerning compliance with the general notice requirement. ... Likewise, verification of the date of receipt serves to reduce disputes concerning compliance with various time periods that begin to run after presuit notice is received.

Patry v. Capps, 633 So.2d 9, 12 (Fla. 1994) (citation omitted); see also Hillsborough Cty. Hosp. Auth. v. Coffaro, 829 So.2d 862, 866 (Fla. 2002) (holding that the date a defendant receives a notice of intent starts the tolling of the limitations period) (citing Boyd v. Becker, 627 So.2d 481, 483-84 (Fla. 1993) (limitations period tolled when defendant receives notice of intent, rather than time it was mailed)).

For these reasons, the Fifth District’s approach is the most defensible. The timely service of a notice of intent satisfies the requirement of general notice, while a defendant’s receipt of the notice ensures that the full ninety days of tolling is available thereafter so that defendants may evaluate plaintiffs’ claims. Boyd, 627 So.2d at 483-84 (“To hold otherwise could substantially restrict the time the defendant in a medical malpractice suit has to evaluate the merits of the claim.”). In addition, our supreme court has repeatedly said that the presuit statute, even with its contradie-tions, must be interpreted in a way that allows plaintiffs access to courts and allows defendants sufficient time upon receipt of a notice of intent to evaluate it. Coffaro, 829 So.2d at 865 (noting that the presuit statute “should be liberally construed to allow the parties access to courts”); Boyd, 627 So.2d at 484 (“If the ninety-day investigation period were measured from the date the plaintiff mailed the notice of intent to initiate litigation, the defendant would never receive a full ninety days in which to investigate.”).

Because the trial court did not depart from the essential requirements of law, relief to the County is not warranted, but certifying conflict with the Second District in Bove is appropriate.


text:
    Mitchell SIMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-668
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.
    Mitchell Simpson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Mitchell Simpson (“the defendant”) appeals the trial court’s order denying his motion for postconviction relief, in which he alleged four grounds that cumulatively support his claim for ineffective assistance of trial counsel, requiring a new trial. As we conclude that the defendant’s arguments are without merit and/or refuted by the record, and the defendant has failed to meet his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm.

Affirmed.


author: FERNANDEZ, J.

text:
    AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC, d/b/a Eulen America, Appellant, v. Luis Rodriguez LOPEZ, et al., Appellees.
    No. 3D16-2329
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.
    Holland & Knight, LLP, Christopher N. Bellows and Joseph Mamounas, for appellant.
    Dorta Law and Matías R. Dorta; Dimond Kaplan & Rothstein, P.A., David A. Rothstein and Lorenz Michel Prüss; Kula & Associates, P.A., Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellees.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

American Sales and Management Organization LLC, etc. (“ASMO”) appeals an Omnibus Order on appellees Luis Rodriguez Lopez’s and Brent Blake’s motions for partial summary judgment, and an Order on Joint Motion to Determine Amount of Expenses that ASMO must “Advance” and to Establish a Going-Forward Protocol Regarding “Advancement” in the defense of the underlying lawsuit. We affirm because the parties’ Operating Agreement obligates ASMO to advance expenses.

The Operating Agreement contains an advancement provision that is clear and unambiguous. Section 5.15(b) of the parties’ Operating Agreement requires that ASMO shall indemnify and hold harmless any person it sues by reason of the fact that such person was a manager or officer of ASMO. Section 5.15(f) requires that expenses subject to indemnification shall be paid by ASMO in advance of such proceedings’ final disposition.

ASMO sued by reason of the fact that the appellees Rodriguez and Blake served as officers and managers of ASMO. ASMO alleged in its Fourth Amended Complaint and Demand for Jury Trial that its claims arose from a multi-year scheme developed and executed by Rodriguez and Blake while they simultaneously served as ASMO’s two highest-ranking officers, managers, and agents. ASMO alleged that Rodriguez and Blake breached their duties of loyalty and care in their capacity as officers and managers of ASMO.

The trial court therefore correctly found that, pursuant to the clear and unambiguous language of the advancement provision, ASMO must advance expenses. See Andersen Windows, Inc. v. Hochberg, 997 So.2d 1212, 1214 (Fla. 3d DCA 2008)(stat-ing that a contract must be enforced as written when it is clear and unambiguous).

Affirmed.

      . Advancement, as distinct from indemnification, involves the advance payment of litigation expenses regardless of whether indemnification is later determined.


author: EMAS, J.

text:
    K.A., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D16-2739
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017
    Jiulio Margalli, for appellant.
    Karla Perkins, Appellate Counsel for Department of Children and Families; Laura J. Lee (Sanford), Appellate Counsel for Guardian ad Litem Program, for appel-lees.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   EMAS, J.

On the second day of the adjudicatory hearing on a petition for termination of parental rights, appellant sought to call a witness to testify. However, appellant never listed this witness as required by Florida Rule of Juvenile Procedure 8.245(b)(2)(A) and (b)(3). Further, appellee was unaware of the existence of this witness or appellant’s intent to call this witness at the hearing. Appellee had never spoken with or had an opportunity to depose this witness or to prepare for the proffered testimony.

Appellee objected and asserted that this witness, and the proffered testimony, came as a complete surprise and caused prejudice, as the adjudicatory hearing had already been proceeding for two days, and appellee had no way of anticipating or preparing for this proffered evidence. The trial court agreed with appellee and, in the exercise of its discretion, prohibited appellant from presenting this witness at the hearing. We find no abuse of discretion in the trial court’s determination and ruling. See S.S. v. Dep’t of Children & Family Servs., 784 So.2d 479 (Fla. 4th DCA 2001).

Affirmed.

      . Appellant proffered that this witness would testify “to the extremely narrow issue as to the mother’s psychological issue [and] returning back with the father of the children despite alleged inciden[ts] of domestic violence.” While it is unclear whether this witness would even have been qualified to offer expert opinions in this regard, it is clear that such testimony was not reasonably related to the issues being adjudicated at this termination of parental rights hearing, providing an alternative basis for the court’s exclusion of the witness.


text:
    COPPER CHIMNEY, INC., Appellant, v. STATE OF FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 3D16-1549
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.
    Kogan Prober, P.A., and Pavel Kogan (Ft. Lauderdale), for appellant.
    Pamela Jo Bondi, Attorney General, and Ryann E. White (Tallahassee), Assistant Attorney General, for appellee.
    Before LAGOA, SALTER, and LOGUE, JJ.
   LOGUE, J.

Appellant, Copper Chimney, Inc., seeks review of the Department of Revenue’s Final Order revoking its Certificate of Registration for failure to remit sales taxes collected from its customers. The appellant argues that his due process rights were violated. “A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard.” Jennings v. Dade Cty., 589 So.2d 1337, 1340 (Fla. 3d DCA 1991). Given our review of the record, and under the facts of this case, there was no violation of the appellant’s due process rights.

Affirmed.


author: LAGOA, J.

text:
    Jorge RIOS, Appellant, v. MIAMI’S GARAGE, INC., a Florida Corporation, and Professional Lien and Title Service Corp., a Florida Corporation, Appellees.
    No. 3D17-300
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017

      Law Offices of Yoder & Ohanian, LLC, and Sebastian Ohanian, for appellant.
    Richard Lorenzo, for appellees.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Jorge Rios (“Rios”) appeals from a non-final order denying his motion for summary judgment. Appellees, defendants below, Miami’s Garage, Inc. (“Miami’s Garage”), and Professional Lien and Title Service, Corp. (“Professional Lien”) (collectively “Defendants”), move to dismiss the appeal for lack of jurisdiction. We grant the motion and dismiss the appeal.

I. FACTUAL AND PROCEDURAL HISTORY

Rios filed an action against Defendants for the purported taking and titling of a Lamborgini. The parties agree that Rios and Miami’s Garage entered into an agreement to repair the vehicle. The parties do not agree on what occurred next. Rios asserted that Miami’s Garage ceased working on the vehicle over a dispute about the amount of time the repairs were taking and Miami’s Garage asserted that Rios was responsible for supplying the parts to repair the vehicle but failed to do so. Both parties agree that Miami’s Garage hired Professional Lien to place a lien on the vehicle and to auction the vehicle at a public auction. Because no bids were made on the vehicle in excess of the lien amount, Miami’s Garage prevailed on the lien claim. Following the auction, Professional Lien made an application for title to the vehicle, which was subsequently approved in the name of Miami’s Garage.

Rios and the Defendants filed cross-motions for summary judgment. A hearing was held on the cross-motions and the trial court entered an order that stated: “Plaintiffs motion for summary judgment ... is denied [and] Defendants’ cross motion for summary judgment is taken under advisement.” This appeal ensued.

II. ANALYSIS

Defendants move to dismiss this appeal as taken from a non-final, non-appealable order. In response to the motion to dismiss, Rios contends that the trial court’s order is an appealable order because it denies him immediate possession of property under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).

We are unpersuaded by Rios’s argument, as the trial court’s order did not determine that any party was entitled to immediate possession of the vehicle. See Profile Invs., Inc. v. Delta Prop., Inc., 957 So.2d 70 (Fla. 1st DCA 2007) (dismissing appeal of order as non-final and non-ap-pealable where “order [did] not directly determine the immediate right to possession of property”); cf. Thunderbird, Ltd., v. Great Am. Ins. Co., 470 So.2d 2, 3 (Fla. 1st DCA 1985) (denying motion to dismiss appeal and finding that interlocutory order that ordered receiver to take exclusive possession of property was an appealable non-final order pursuant to Rule 9.130(a)(3)(C)(ii)). Indeed, the order merely denies Rios’s motion for summary judgment and reserves ruling on Defendants’ motion for summary judgment. An order denying a motion for summary judgment does not fall within any of the categories as appealable, non-final orders set forth in Rule 9.130(a)(3). See Taggart v. Morgan, 943 So.2d 250 (Fla. 3d DCA 2006). Accordingly, we dismiss the appeal for lack of jurisdiction.

Appeal Dismissed.

      . Rule 9.130(a)(3) permits review of non-final orders that:
      (A) concern venue;
      (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;
      (C) determine
      (i) the jurisdiction of the person;
      (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of re-plevin, garnishment, or attachment;
      (iii) in family law matters:
      a. the right to immediate monetary relief;
      b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or
      c. that a marital agreement is invalid in its entirety;
      (iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;
      (v) that, as a matter of law, a party is not entitled to workers' compensation immunity;
      (vi) whether to certify a class;
      (vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;
      (viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001 (6)(a), Florida Statutes;
      (ix) the issue of forum non conveniens;
      (x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes; or
      (xi) that, as a matter of law, a party is not entitled to sovereign immunity.
      (D)grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership.


text:
    Claudio LISMAN, an individual, Appellant, v. Jose Sanchez GUILLOID, an individual, and Maria de las Mercedes Santamaria de Sanchez, an individual, Appellees.
    No. 3D16-1169
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017
    Genovese Joblove & Battista, and Armando Lacasa, Jesus M. Suarez, and Jessica Serell Erenbaum, for appellant.
    Luis Fernandez, for appellees.
    Before ROTHENBERG, FERNANDEZ, and LUCK, JJ.
   PER CURIAM.

The plaintiff below, Claudio Lisman, appeals from a final order granting the defendants’ motion to dismiss his operative complaint with prejudice. Although we find no merit in the plaintiffs argument regarding the dismissal of the operative complaint, based on the defendants’ proper confession of error, we reverse the portion of the order dismissing with prejudice the plaintiffs counts for breach of contract, breach of fiduciary duty, conversion, and unjust enrichment, and remand for the entry of an order allowing the plaintiff to amend these counts.

Affirmed in part; reversed in part; and remanded with instructions.

      . The plaintiff’s operative complaint included five counts—breach of contract, breach of fiduciary duty, conversion, unjust enrichment, and fraud. The plaintiff, however, is not appealing the dismissal of the fraud count. Thus, this opinion relates solely to the four other counts.


text:
    Antonio GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-397
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE, and SCALES, JJ.
   LOGUE, J.

The defendant seeks review of the trial court’s order revoking his probation and his consequent sentence pursuant to a previously entered plea agreement. We affirm the revocation, but remand to have the written order of revocation amended to reflect the trial court’s oral pronouncement.

In May 2013, the defendant entered into a plea agreement as to five separate criminal cases and was sentenced to a prison term followed by ten years of probation. While the defendant was serving his probation, the State filed an information which ultimately served as the basis for revoking the defendant’s probation. The information alleged: (1) third degree vehicular grand theft; (2) forgery or alteration of certificate of title or cancellation of lien; and (3) operating a business without a license.

Following the probation revocation hearing, the trial court orally pronounced its findings that the defendant committed a willful and substantial violation of probation by perpetrating vehicular theft and title fraud. No findings relating to the count of operating a business without a license appear in the transcript of the court’s oral pronouncement. The written order of probation revocation, however, reflects that the defendant committed all three of the alleged probation violations. The written order of revocation must correctly reflect the trial court’s oral pronouncement. See Harvey v. State, 129 So.3d 1165, 1166 (Fla. 3d DCA 2014); Salvatierra v. State, 691 So.2d 32, 32 (Fla 3d DCA 1997) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.”). Accordingly, we remand for correction of the written order of revocation so that it conforms to the court’s oral pronouncement.

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