author: LEWIS, J.

text:
    ST. JOHNS INVESTMENT MANAGEMENT COMPANY, Appellant, v. David T. ALBANEZE, Appellee.
    No. 1D09-2766.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.

      Peter Hargitai, Zachary R. Potter, Ricardo A. Bedoya of Holland & Knight LLP, Jacksonville, and Gigi Rollini of Holland & Knight LLP, Tallahassee, for Appellant.
    Leslie A. Wickes and Matthew P. McLauchlin, of Volpe, Bajalia, Wickes, Rogerson & Wachs, P.A., Jacksonville, for Appellee.
   LEWIS, J.

Appellant, St. Johns Investment Management Company (“St. Johns”), appeals the trial court’s denial of its motion for a temporary injunction that sought enforcement of noncompete provisions in an employment agreement against David Alba-neze, Appellee. In denying the motion, the trial court concluded that St. Johns failed to demonstrate a substantial likelihood of success on the merits because the agreement expired upon the termination of Albaneze’s four-year employment term. St. Johns contends that because the plain meaning of the language in the contract demonstrates that the parties intended the noncompete covenants to survive the expiration of the employment agreement, the provisions are enforceable against Alba-neze. We agree. Accordingly, we reverse and remand with instructions to enter a temporary injunction.

St. Johns is an investment advisory and wealth management firm. In November 2002, St. Johns and Compass Bancshares, Inc. entered into a merger agreement wherein Albaneze, St. Johns’ majority shareholder, sold his ownership interest in the company and entered into a separate employment agreement with St. Johns. The agreement dictated that St. Johns would employ Albaneze as Chief Executive Officer for a four-year term beginning December 1, 2002, but provided no further employment guarantees.

In Section 5(c) of the agreement, the parties prohibited competition in four areas as follows:

Employee ... agrees not to and shall not indirectly or directly
(i) hire, employ, or engage any past or present employee, or employee hired during the Term, of Employer, Compass or their affiliates ...
(ii) compete for or solicit financial advisory or asset management services for or on behalf of any ... financial services entity with a place of business in the Market area ...
(iii) compete for or solicit financial advisory or asset management business from any customer of Employer, Compass, or then.* affiliates ...; or
(iv) use ... any proprietary list or other information concerning customers ... developed by Compass, Employer, or their affiliates.

After defining the four areas of prohibited competition, the agreement provided that the covenants were applicable from the date of the agreement and throughout the “Restriction Period.” The Restriction Period, defined in Section 5(d) of the agreement, dictated the duration in which Albaneze was precluded from competing with St. Johns. The agreement contained four different Restriction Periods, but only Section 5(d)(i) is applicable to the instant case. It is the construction of this subsection that remains central to this dispute. Section 5(d)(i) stated as follows:

[The Restriction Period] shall mean: in the event Employee is employed by Employer throughout the Term, [the period shall be] twenty-four (24) months following the date Employee resigns ... or Employee is terminated by Employer; provided, however, that the provisions of subsection 5(c)(ii) shall terminate at the expiration date of the Term.

After the expiration of the four-year term, Albaneze remained a St. Johns employee for almost two more years, but the relationship was not formalized in a written document. In October 2008, Albaneze resigned and began working for LBA Wealth Management, LLC, another financial advisory and asset management firm.

Upon Albaneze’s resignation, he sought a declaratory judgment regarding his rights and duties under the employment agreement. After Albaneze’s filing, but before the trial court’s determination, he admitted to soliciting financial advisory or asset management business from former St. Johns customers for his new employer. In response, St. Johns sought enforcement of the noncompete covenants contained in Section 5(c)(i), (iii), and (iv) via a motion for a temporary injunction, among other forms of relief.

Generally, the party seeking a temporary injunction must establish four factors. See Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1261 (Fla. 5th DCA 2009). However, at the hearing on the motion, the parties stipulated to three of the four factors. As a result, the trial court only considered the remaining factor: whether St. Johns established a substantial likelihood of success on the merits. After the hearing, the trial court entered an order holding that, based on the four corners of the agreement, the parties’ failure to include express language providing that the noncompete covenants in Section 5(c) survived the expiration of the four year-term rendered the noncom-pete covenants unenforceable post-term. Accordingly, the trial court denied St. Johns’ motion, concluding that St. Johns failed to establish a substantial likelihood of success on the merits.

The propriety of the trial court’s order denying St. Johns’ motion for a temporary injunction depends on whether it correctly concluded that Sections 5(c) and (d)(i) did not contain survival language warranting commencement of the twenty-four month Restriction Period upon Albaneze’s resignation. Our review is de novo. Bookall v. Sunbelt Rentals, Inc., 995 So.2d 1116, 1117 (Fla. 4th DCA 2008) (noting that review of a trial court’s order granting or denying a temporary injunction is hybrid in nature: legal conclusions are reviewed de novo, while factual findings implicate the abuse of discretion standard); see also Nelson Tree Serv., Inc. v. Gray, 978 So.2d 198, 200 (Fla. 1st DCA 2008) (stating that “in the instant case, the denial [of the injunction] rests on purely legal matters and is, therefore, reviewed de novo”); Carter, 9 So.3d at 1263 (indicating that in an appellate court’s review of a trial court’s grant or denial of a temporary injunction based on the interpretation of a noncompete covenant, the court may independently evaluate the provisions to determine their meaning).

Before issuing a temporary injunction, a trial court must determine that the petition or pleadings demonstrate a prima facie, clear legal right to the relief requested. Colonial Bank, N.A. v. Taylor Morrison Servs., Inc., 10 So.3d 653, 656 (Fla. 5th DCA 2009). To demonstrate a prima facie case for a temporary injunction the petitioner must establish four factors: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) that a temporary injunction would serve the public interest. Carter, 9 So.3d at 1261. As the party moving for a temporary injunction, St. Johns had the burden of providing substantial, competent evidence satisfying each of the elements necessary to obtain a temporary injunction. Zupnik v. All Fla. Paper, Inc., 997 So.2d 1234, 1238 (Fla. 3d DCA 2008) (citation omitted). Because the parties stipulated to factors one, two, and four in the proceedings below, the third factor is dispositive of the instant case.

In employment agreements, as with all contracts, courts must apply the “most commonly understood meaning” with respect to the subject matter and circumstances of the contract. Gold Coast Media, Inc. v. Meltzer, 751 So.2d 645, 646 (Fla. 3d DCA 1999). Accordingly, whenever possible, contracts must be construed according to their plain language. Hand v. Grow Constr., Inc., 983 So.2d 684, 687 (Fla. 1st DCA 2008); see also Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 877 (Fla. 2d DCA 2005) (noting that courts -will not interpret a contract in a manner that renders provisions meaningless “when there is a reasonable interpretation that does not do so.”). Further, it is well-settled that “[a] party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract.” Brooks v. Green, 993 So.2d 58, 61 (Fla. 1st DCA 2008). This principle applies even where the terms of the contract are “harsh” or “out of the ordinary.” Id. at 61. (citations omitted). In addition, to give proper meaning to a specific contract provision, a court must consider it in the context of the entire contract. Hand, 983 So.2d at 687.

When an employment agreement contains a noncompete covenant, the restriction survives the termination of the agreement if the agreement contains express language demonstrating that the parties intended its survival. Brenner v. Barco Chems. Div., Inc., 209 So.2d 277, 278 (Fla. 3d DCA 1968) (holding that non-compete provisions survived the expiration of an employment agreement where (1) the contract expressly provided that the provisions would continue to apply if the employee continued working; and (2) the noncompete clause expressly stated it would continue to be in effect after the expiration or termination of employment). Where the parties expressly provide that the employee’s rights and obligations outlast the expiration of the “term,” the contract does not expire and enforcement of the noncompete provisions is warranted. Id. at 278; see also Century 21 Real Estate of S. Fla., Inc. v. Braun & May Realty, Inc., 706 So.2d 878, 879 (Fla. 3d DCA 1997) (approving Brenner, holding that agreement did not lapse where its terms provided for its post-term survival); cf. Gray v. Prime Mgmt. Group, Inc., 912 So.2d 711, 713 (Fla. 4th DCA 2005) (where a written employment agreement expires and the employee continues at-will via an oral agreement, a noncompete provision in the original written contract “cannot always be enforced”).

The parties dispute the impact of Albaneze’s continued employment post-term. Albaneze asserts that upon the expiration of the four-year term, the employment agreement was fully performed, the contract expired, and that, as a result, the noncompete covenants no longer applied to him. In contrast, St. Johns argues that the plain meaning of Section 5(d)(i) indicates that the twenty-four month non-competition period did not commence until Al-baneze resigned from St. Johns in October 2008. We agree with St. Johns.

The terms of the employment agreement included rights and obligations that survived Albaneze’s four-year term. In Section 5(d)(i), the parties expressly contemplated the duration of the Restriction Period in the event that Albaneze remained employed by St. Johns for the entire four-year term. Because Section 5(d)(i) is central to our analysis, its language bears repeating:

[The Restriction Period] shall mean: in the event Employee is employed by Employer throughout the Term, [the period shall be] twenty-four (24) months following the date Employee resigns ... or Employee is terminated by Employer; provided, however, that the provisions of subsection 5(c)(ii) shall terminate at the expiration date of the Term.

(emphasis added). For the purposes of this analysis, we refer to the language before the semicolon as clause one, and the language after the semicolon as clause two.

Notably, the parties isolated Section 5(c)(ii) in clause two, providing that the noncompete covenants contained therein expired at the end of the four-year term. As a result, clause one only applied to the noncompete covenants contained in Section 5(c)(i), (iii), and (iv), the covenants St. Johns seeks to enforce here.

Clause one of the agreement plainly provides that, if Albaneze remained employed by St. Johns for the full four-year term, his post-term resignation or termination would trigger commencement of the twenty-four month Restriction Period. In order for Albaneze to “resign” or be “terminated” following his employment “throughout the term,” he must remain employed by St. Johns for more than four years. Thus, by its terms, Section 5(d)(i) contemplated a situation wherein Albaneze remained a St. Johns employee in the absence of a written agreement. Moreover, it would not be possible for Albaneze to “resign” or be “terminated” after working “throughout the Term” if he did not remain employed by St. Johns after the four-year term expired. In sum, accepting the trial court’s interpretation of the agreement would render clause one meaningless. Because working for the entire four-year term constituted a condition precedent to the application of Section 5(d)(i), it necessarily applied to Albaneze’s post-term employment relationship, as his resignation or termination could occur at any time following satisfaction of the condition precedent.

In our view, it is clear that the parties intended the noncompete covenants contained in Section 5(e)(i), (iii), and (iv) to apply to Albaneze for twenty-four months after his resignation. As noted above, the parties provided that, depending on the noncompete covenant implicated, one of two Restriction Periods would apply. Had they intended to utilize the same Period, the parties would not have provided in clause one that the Period would commence “twenty-four months following the date Employee resigns ... or Employee is terminated” and instructed in clause two that the Period “shall terminate at the expiration date of the Term.” This language reflects that, had the parties intended the application of all noncompete covenants — rather than one — to terminate at the end of the four-year term, the parties were aware of the language that would accomplish that result. Rather, the parties provided that upon Albaneze’s post-term resignation or termination, the non-compete covenants contained in Section 5(c)(i), (iii), and (iv) remained intact for the following twenty-four months. The parties used different language because they intended a different result. Therefore, because the Restriction Period commenced upon Albaneze’s October 2008 resignation, the noncompete covenants in Section 5(c)(i), (iii), and (iv) survive the four-year term of the employment agreement and apply to Albaneze until October 2010.

Because the trial court’s construction of Section 5(d)(i) conflicts with the plain meaning of the provision, the trial court reversibly erred in holding that the non-compete covenants did not apply to Alba-neze, and that, as a result, St. Johns failed to demonstrate a substantial likelihood of success on the merits. Accordingly, we reverse the order of the trial court and remand for entry of a temporary injunction.

REVERSED and REMANDED with instructions.

WEBSTER and THOMAS, JJ„ concur.


source: Caselaw Access Project

author: PADOVANO, J. HAWKES, C.J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Stuart SIMONS, Appellee.
    No. 1D08-1611.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Office of the Attorney General, Tallahassee; Sydney L. Taylor, Assistant State Attorney, Office of The State Attorney, Pensacola, for Appellant.
    Eric D. Stevenson of David Lee Sellers, P.A., Pensacola, for Appellee.
   PADOVANO, J.

We hold that the trial court had authority to dismiss the criminal charges against the defendant in this case as a remedy for the state’s refusal to comply with a settlement agreement. The record does not reveal any breach of the agreement on the defendant’s part or any justification for the state’s refusal to comply. For these reasons, we affirm the order of dismissal.

The defendant, Stuart Simons, was accused of three criminal offenses: theft of a trade secret, taking and disclosing trade secrets, and grand theft. The state alleged that he had appropriated a quilting machine and computerized business records belonging to the alleged victim, who was then the defendant’s employer. The quilting machine was manufactured from a proprietary design owned by the victim, and the business records included supplier lists, customer lists, and other business information alleged to be trade secrets. At the time these criminal charges were filed, the defendant and the victim were engaged in civil litigation over the same controversy.

The parties entered into an agreement for a full settlement of the criminal case, as well as a related civil case. They agreed that the defendant would be admitted to the pretrial intervention program on the charge of disclosing a trade secret, that the two other charges would be dismissed, and that the defendant would make restitution to the victim in the amount of $4,500.00. As a part of the agreement, the victim agreed to release the defendant from civil liability and to dismiss the civil suit. The agreement was reduced to writing and signed by the assistant state attorney, the defendant’s lawyer, the defendant, the victim, and the victim’s lawyer in the civil case.

The trial judge approved the agreement and incorporated it into an order directing the parties to comply. A short time later, the defendant sent the victim a restitution check in the amount of $4,500.00. With the restitution in hand, the victim attempted to back out of the settlement by refusing to sign the consent form for the defendant’s admission to the pretrial intervention program.

This abrupt change in position prompted the defendant to file a motion to enforce the settlement agreement. The prosecutor opposed the motion but did not offer any evidence or argument to excuse the victim’s noneomplianee. At one point in the hearing, the prosecutor suggested that after the agreement had been signed, the defendant committed an act that “could be construed as a criminal offense.” This rather speculative remark had something to do with the fact that the defendant had attended a trade show in another state, but it is not apparent from the record why this would have been unlawful. The prosecutor offered no evidence or explanation.

The trial judge entered an order granting the defendant’s motion to enforce the settlement agreement and allowed the state two weeks to nolle pros the charges in the information. When it became apparent that the state would not enter a nolle pros, the trial judge entered an order dismissing the case. The state filed a timely appeal to this court to seek review of the order.

The state argues that the agreement was not enforceable because the trial judge had no authority to compel the prosecutor to place the defendant in a pretrial intervention program. It is correct as a general principle that prosecutors have sole discretion to admit a defendant to pretrial intervention, see Batista v. State, 951 So.2d 1008 (Fla. 4th DCA 2007); State v. Board, 565 So.2d 880 (Fla. 5th DCA 1990), but the trial judge in this case did not order the state to enroll the defendant in the program. Pretrial intervention was merely one part of a comprehensive settlement agreement that contained many other provisions. The judge directed the state to comply with the agreement it had made with the defendant or to suffer a dismissal of the case.

This decision did not encroach on the prosecutor’s discretion. The entire agreement was not voidable at the option of the prosecutor merely because it contained a pretrial intervention agreement among its terms. If that were the case, the settlement agreement would be nothing more than a set of illusory promises. The agreement would be enforceable by the state and the victim but not by the defendant.

Reduced to its essence, the state’s argument in this case is: (1) the prosecution has a right to decide whether a defendant may enter or remain in a pretrial intervention program; (2) the defendant was the one who breached the settlement in this case because he did not complete the pretrial intervention agreement; and (3) the defendant’s breach justified the state’s failure to comply with the settlement agreement. This is a circular argument. The only reason the defendant did not enroll in the pretrial intervention program is that he was denied enrollment by the state. There was no real breach of the agreement by the defendant and therefore no justification for the state’s refusal to honor it.

It is significant that the state attempted to withdraw from the settlement agreement after the defendant had partly performed the agreement by making restitution. If that conduct is acceptable, the promise of pretrial intervention could be used as a device to collect restitution and could then be withdrawn once the restitution is paid. This possibility is particularly troubling in a case like this one, which is closely related to a civil dispute between the defendant and the alleged victim. It is not fair to allow the alleged victim to withdraw his agreement in the criminal case after he has successfully employed the threat of prosecution to collect the money that was at issue in the civil case.

The trial judge did not break any new ground by enforcing the agreement the parties made in this case. To the contrary, it is a settled principle of criminal procedure that, if the government fails to honor a plea agreement, the court may either enforce the agreement or allow the defendant to withdraw the plea. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Tillman v. State, 522 So.2d 14 (Fla.1988); Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993); State v. Borrego, 445 So.2d 666 (Fla. 3d DCA 1984); Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972). As the Supreme Court explained in Santobello, the appropriate remedy in a given case is within the discretion of the trial judge.

In some situations it may be proper to allow the defendant to withdraw the plea, but in others the only fair remedy is to enforce the agreement. For example, Florida courts have held that specific performance is a proper remedy if the defendant has partly performed the agreement, see Williams v. State, 341 So.2d 214 (Fla. 2d DCA 1976) (the state breached its promise after the defendant had assisted the police), or if withdrawal of the plea would deprive the defendant of the benefit of the bargain, see Buffa v. State, 641 So.2d 474 (Fla. 3d DCA 1994) (the state breached its promise to recommend a more lenient sentence). As these cases illustrate, justice is not always served merely by allowing the defendant to withdraw the plea and start over.

The power to enforce an agreement between the prosecution and defense applies not only to plea agreements, but also to settlement agreements that do not require the defendant to enter a plea. See State v. Davis, 188 So.2d 24 (Fla. 2d DCA 1966); Butler v. State, 228 So.2d 421 (Fla. 4th DCA 1969). The underlying principle is the same. When the parties agree to settle a case they should be bound by their agreement. The incentive to settle a case by plea bargaining or by an agreement not requiring a plea would quickly disappear if one party could renege on an agreement without any consequence.

On the facts of this case, we support the trial judge’s decision to enforce the agreement. The defendant had partially complied by making restitution and he was prepared to comply with all of his other obligations. He was prevented from doing so only because the victim backed out of the agreement without justification.

Affirmed.

ROBERTS, J., concurs; HAWKES, C.J., dissents with opinion.

HAWKES, C.J.,

dissenting.

I respectfully dissent. The majority seems to find two aspects of this case so significant as to trigger a special limitation on the state’s discretion involving pretrial intervention (PTI). First, the majority emphasizes there was a “settlement agreement” in which the state agreed to offer the defendant PTI. Second, the majority emphasizes that through this “settlement agreement,” the criminal ease against Si-mons was inexorably tied to the simultaneous civil proceeding. The crux of the majority’s opinion is that once the state signs a written offer to a criminal defendant that includes PTI, it is irrevocably bound to allow the defendant to enter the PTI program, even if the offer is withdrawn before the defendant’s enrollment. The majority misconstrues the governing statute and the prosecutor’s discretion in regards to PTI.

PTI is a grant of prosecutorial grace as it serves as an alternative to criminal prosecution. See Cleveland v. State, 417 So.2d 653, 654 (Fla.1982); S.K. v. State, 881 So.2d 1209, 1212 (Fla. 5th DCA 2004). It is governed by section 948.08, Florida Statutes (2007), which gives the state complete discretion to administer the program. Whenever it is offered — and indeed it must always be offered before it can be accepted — the State is giving the defendant an opportunity to resolve the case without a criminal conviction. Thus, every case resolved through PTI has an offer and an acceptance, and therefore involves a “settlement agreement,” regardless of whether the offer or acceptance is reduced to writing. The majority’s insistence that this case is different because the offer was called a “settlement agreement,” therefore resulting in special limitations on the state, is contrary to the statute. Written offers, whether named “settlement agreements,” “offers,” or anything else, that involve PTI are all subject to the same statutory rules. The nomenclature chosen by the parties does not amend the statute or deprive the state of its prosecutorial discretion.

The question thus becomes whether the state had the statutory authority under section 948.08 to withdraw its offer. Section 948.08 grants the state broad discretion to withdraw an offer of PTI under almost any circumstances, especially in a case such as this one. The majority’s decision to strip the state of that discretion is flawed. There are three reasons why.

First, the majority emphasizes that the state cannot withdraw its offer because the defendant had partially performed under the settlement agreement. The majority finds partial performance because the defendant offered to pay the $4,500 in restitution he owed to the victim. There are two problems with this premise.

Problem one is that any offer of payment made by the defendant was premature. The majority seeks to bind the state to the settlement agreement, but they do not choose to hold the defendant to the same strict compliance. The pertinent portion of the settlement agreement would have required the defendant to pay “$4,500 restitution to Martelli Enterprises ... at a rate established by PTI.” (emphasis added). In other words, the settlement agreement or offer stated that restitution would not be paid until after the defendant successfully enrolled in PTI. How the restitution payments were to be made during PTI would be incorporated into the PTI agreement. The defendant never enrolled in PTI. Therefore, his offer of the restitution check was not “partial performance.” The majority is using the defendant’s premature, unilateral actions to bind the state outside the terms of the agreement.

Problem two with the majority’s premise that partial performance triggers immutable rights for the defendant is that no performance ever occurred. Although the defendant offered to pay restitution by tendering the restitution check, the victim chose not to cash the check and allowed it to expire. Because the check was never cashed, restitution was never paid. Since restitution was never paid, there cannot be partial performance.

Second, the majority justifies its decision to deprive the state of discretion by arguing that, in the future, the state might take advantage of criminal defendants by offering PTI, getting restitution paid (making victims whole), and then withdrawing the PTI offer. This is absurd. Regardless of whether the defendant pled guilty, was convicted, or actively enrolled in PTI, he still would have been required to reimburse the $4,500 he criminally deprived the victim of. The majority’s concern that the state’s conduct here is akin to “swindling” the defendant is not supported by the record.

Third, and perhaps most important, even assuming the defendant had partially performed under the settlement agreement, and even if the state’s decision to void the agreement by withdrawing the offer was unfair, the state has the statutory authority to withdraw its offer of PTI at any time. Section 948.08(4) permits the state to resume prosecution “at any time[,]” even after PTI has been entered into, if it (the state) finds: (1) “the offender is not fulfilling his or her obligations under the plan” or (2) “public interest so requires.” Under section 948.08(4), the state alone has the discretion to decide if the “public interest” warrants the withdrawal of a PTI offer. See Batista v. State, 951 So.2d 1008, 1009 (Fla. 4th DCA 2007) (finding “the statute explicitly recognizes the [S]tate’s discretion ... to admit or to terminate PTI”); Virgo v. State, 675 So.2d 994 (Fla. 3d DCA 1996) (finding the state has “non-reviewable” discretion to terminate a defendant’s PTI at any time, even after the program has begun); State v. Rubel, 647 So.2d 995, 996 (Fla. 2d DCA 1994) (finding the state’s termination of a defendant’s PTI is a prosecutorial decision to be kept free from judicial interference); State v. Board, 565 So.2d 880, 881 (Fla. 5th DCA 1990) (finding “the statute creating the PTI program places no limitations on the state’s discretion to reinstate prosecution after PTI has been approved”). Each of the other District Courts of Appeal recognize the state’s sole discretion to withdraw PTI offers or to terminate PTI. The statute places no limits on situations where the PTI offer is in writing and restitution is part of the offer. In section 948.08(4), the legislature gave complete discretion to the state attorney and denied the courts any role in PTI decisions.

The majority skirts the authority of section 948.08 — indeed it does not even mention the statute — by arguing general principles of contract law and “fairness.” But statutes trump principles of contract law and “fairness.” When the defendant agreed to the settlement agreement, he agreed to the terms of the statute. To allow the defendant to rewrite the settlement agreement by prematurely offering to pay restitution, and then to allow the defendant’s unilateral act to rewrite section 948.08, is the true unfairness.

For the foregoing reasons, I would reverse.

      . I am compelled to point out that this is not a case where the defendant had actually entered or completed PTI only to have the state decide to resume prosecution. The offer of PTI was withdrawn before enrollment and after the defendant engaged in some out-of-state conduct that raised serious concerns for the victim and the state. The timeline is revealing. The defendant had a chance for prosecutorial grace (i.e. PTI), engaged in questionable — perhaps criminal — behavior out-of-state, and as a consequence the PTI offer was withdrawn. All of this is consistent with the statute and prosecutorial discretion.


author: PER CURIAM.

text:
    Odilon MUNIZ, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2911.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.
    Odilon Muniz, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the judgment and sentence rendered on January 9, 2009, in Escambia County Circuit Court case number 2007-CF-004560-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

VAN NORTWICK and PADOVANO, JJ„ and BROWNING, JR., EDWIN B., Senior Judge, concur.


text:
    James BRODIE and Lucille Brodie, Appellants, v. Louis Park BRADY and Gayle Brady, Appellees.
    No. 1D09-3074.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.
    R. Scott Whitehead, Destín, for Appellants.
    Theodore R. Howell, Barron, Redding, Hughes, Fite, Sanborn & Kiehn, P.A., Panama City, for Appellees.
   PER CURIAM.

The motion to dismiss, filed July 31, 2009, is hereby granted. The appeal is DISMISSED. See Raymond James & Assocs. v. Godshall, 851 So.2d 879, 880 (Fla. 1st DCA 2003); Jensen v. Whetstine, 985 So.2d 1218 (Fla. 1st DCA 2008).

HAWKES, C.J., WOLF, and CLARK, JJ., concur.


text:
    John C. PERRYS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5194.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.
    Steven Wisotsky, Miami, for Petitioner.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

John C. Perrys petitions this court for a writ of habeas corpus, contending that his continued pretrial detention under the unique facts of this case contravenes controlling statute and rule, and violates his rights under the state and federal constitutions. Although we do not find he is entitled to immediate release, we grant relief in part and hold that petitioner is entitled to notice and opportunity to be heard in the trial court.

Perrys was charged with armed burglary with assault/battery, aggravated battery, and criminal mischief. Pretrial detention was originally ordered but on March 23, 2009, the circuit court granted a request for pretrial release. A monetary bond was required, a GPS monitor would be attached to the petitioner, and he would be confined to his parents’ home in Dade County. While in Dade County, he would be supervised by the Pretrial Services Office (PTS) in that jurisdiction. On May 6, 2009, counsel for petitioner moved to modify the conditions of pretrial release because officials in Dade County had informed counsel that a defendant who was not charged in that county could not be supervised by the PTS there. Thirteen days later, counsel emailed the presiding judge and informed him that the factual premise of the motion to modify was incorrect and that, in fact, Dade County PTS could supervise the petitioner. That same day the motion to modify conditions of pretrial release was denied and pretrial release was revoked.

Petitioner argues, and we agree, that he was entitled to notice and opportunity to be heard before the trial court revoked the pretrial release that had previously been ordered, even if such release had never been effectuated. Although State v. Paul, 783 So.2d 1042 (Fla.2001) is factually distinguishable from the instant case because there the defendant had been released and committed a violation, we find that the reasoning of Paul requires the result we reach. If a new hearing must be held to determine what conditions, if any, will permit pretrial release after a violation, a defendant such as petitioner, who discovers that compliance with a term of his release may be impossible, is entitled to no less.

Upon consideration of the above, we grant the petition, quash the order which denied petitioner’s motion to modify pretrial release, and direct that further proceedings on the motion to modify be conducted in the lower tribunal.

PETITION GRANTED.

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


text:
    Ulysses BROWN, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-3141.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.

      Ulysses Brown, pro se, Appellant.
    Bill McCollum, Attorney General, Office of the Attorney General, and Kathleen Von Hoene, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Ulysses Brown, challenges the denial of his petition for writ of habeas corpus. Because this is Appellant’s sixteenth action in this court, we ordered him to show cause why this court should not summarily affirm the order on review, under rule 9.315, Florida Rules of Appellate Procedure; why Appellant should not be sanctioned pursuant to rule 9.410, Florida Rules of Appellate Procedure for filing a frivolous appeal; and why such sanctions should not include a direction to the Clerk of this Court to reject any future filings Appellant submits to this Court relating to his convictions and sentences. Appellant responded by requesting that this appeal be voluntarily dismissed.

“A reviewing court has discretion to retain jurisdiction and proceed with the appeal even where a notice of voluntary dismissal is timely filed.” Washington v. State, 982 So.2d 1207, 1208 (Fla. 5th DCA 2008); see also, State v. Schopp, 653 So.2d 1016 (Fla.1995). In this case, we decline to dismiss the appeal.

This appeal is frivolous because it has no arguable basis in law or fact. See § 57.085(9)(a), Fla. Stat. Appellant’s argument that the trial court erroneously failed to consider his “Petition for Writ of Habeas Corpus” as a motion for post-conviction relief is without merit. The writ of habeas corpus is available only if the petitioner shows probable cause to believe that he or she is detained without lawful authority. § 79.01, Fla. Stat. Appellant is currently detained by the Florida Department of Corrections under the lawful authority of two judgments and sentences. State v. Brown, Case No. 82-6820-CF (4th Cir., Duval Co. Fla.); State v. Brown, Case No. 82-6845—CF (4th Cir., Duval Co. Fla.).

When a motion for post-conviction relief would be untimely, dismissal of a petition for writ of habeas corpus is the appropriate disposition. See Baker v. State, 878 So.2d 1236 (Fla.2004). Appellant’s judgments and sentences were entered in 1983, and except for the minimum mandatory provisions, affirmed on direct appeal in 1984. Brovin v. State, 447 So.2d 321 (Fla. 1st DCA 1984). The 2-year limitation imposed by rule 3.850(b), Florida Rules of Criminal Procedure would thus have expired, with only limited exceptions, over twenty years ago.

Appellant’s response did not show cause why this court should not limit his ability to file pro se actions and papers in this court. Considering Appellant’s incessant initiation of proceedings in this court, and finding this appeal frivolous, we find that Appellant has abused the judicial process and hindered the ability of this Court to devote its resources to the timely consideration of genuine disputes and color-able claims by those who have not abused the system. See Pettway v. McNeil, 987 So.2d 20 (Fla.2008).

The order on appeal is AFFIRMED. In addition, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Ulysses Brown, DC# 089244, that are related to his convictions and sentences in Case No. 1982 CF 06820 and 1982 CF 06845, unless signed by a member in good standing of The Florida Bar. If Mr. Brown violates this order, he may be subject to further appropriate sanctions. See § 944.279(1), Fla. Stat.

It is so ordered.

ROBERTS and CLARK, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


text:
    Barbara Ritch JACKSON, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee, Caribbean Conservation Corporation, Inc., d/b/a Sea Turtle Survival League, Intervenor.
    No. 1D08-6383.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.

      William L. Hyde of Gunster, Yoakley, and Stewart, P.A., Tallahassee, for Appellant.
    Kelly L. Russell, Senior Assistant General Counsel, Florida Department of Environmental Protection, Tallahassee, for Ap-pellee; and Brett M. Paben of WildLaw, St. Petersburg, for Intervenor.
   PER CURIAM.

Barbara Ritch Jackson appeals a final order of the Department of Environmental Protection (Department) pursuant to section 120.68, Florida Statutes (2008). A reviewing court shall set aside agency action if such action depends on “any finding of fact ... not supported by competent, substantial evidence .... ” § 120.68(7)(b), Fla. Stat. (2008). We affirm.

Appellant began construction on a coastal armoring system in front of her single-family, seafront residence after Hurricane Dennis made landfall in July 2005. After issuing a notice of intent to deny appellant’s permit application for maintenance of a permanent armoring structure, the Department referred the matter to the Division of Administrative Hearings, which conducted a final hearing pursuant to appellant’s request.

In paragraphs 104 and 105 of his Recommended Order, the Administrative Law Judge found that appellant’s project did not meet all of the permitting criteria of Florida Administrative Code Rules 62B-33.005 and 62B-33.0051 because the project extended farther seaward than would an alternative type of armoring structure and did not adequately minimize adverse impacts on the beach-dune system. The Department adopted these findings and denied appellant’s permit application. We must affirm because appellant has not demonstrated that the findings underlying paragraphs 104 and 105 of the Recommended Order were not based on competent substantial evidence.

AFFIRMED.

KAHN, BENTON, and CLARK, JJ., concur.


text:
    Clayton WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1136.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2009.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Clayton Williams, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See § 9.140(b)(2)(A)(ii), Fla. R.App. P.; § 924.06(3), Fla. Stat. (2009).

MONACO, C.J., SAWAYA and EVANDER, JJ., concur.


author: VILLANTI, Judge.

text:
    Connie Kaye LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5316.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2009.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Connie Kaye Lowery appeals her five-year sentence for possession of cocaine, arguing that it violated her negotiated plea agreement. We agree. Therefore, we reverse and remand with directions that the trial court sentence Lowery consistent with the plea agreement.

Lowery was charged with possession of cocaine, possession of cannabis, and possession of drug paraphernalia. On August 4, 2008, the court accepted Lowery's negotiated best interests guilty plea, which capped at eighteen months' imprisonment any sentence to be imposed for the cocaine charge. At counsel’s request, the court postponed sentencing until September 17, 2008, at 8:30 a.m. Lowery was present when the court set the date and time for sentencing. However, there is no record evidence that the court discussed with Lowery the potential consequences of her failure to timely appear at sentencing or that the plea agreement contained any provision indicating that the court would not honor the sentencing cap if Lowery failed to timely appear at sentencing.

As of 9:49 a.m. on the day of sentencing, Lowery was not in court, although her attorney indicated that he was waiting for her. The trial judge then, sua sponte, stated that he had warned Lowery about the consequences of her willful nonappearance at sentencing:

THE COURT: I was fairly clear with Miss Lowry [sic], as I am with every man or woman that enters a plea and asking [sic] for a deferred sentencing that, indeed, if there was some willful nonappearance at court — ....
In any event, clearly, Miss Lowry [sic] is not here at this point. I have no information as to whether or not her nonattendance is willful and yet certainly if there’s some indication or evidence presented at some later date, I can always entertain a motion to resen-tence.
THE COURT: Miss Lowry [sic] just — it’s just unfortunate. I did warn her, I did tell her, and I’m certain you did, [defense counsel], as you would with every client, and have for the last almost 14 years that you’ve practiced in front of this Court ... in any event, having accepted Miss Lowry’s [sic] plea I adjudicate her guilty. I sentence her to five years Florida state prison on Count I.

(Emphasis added.) The trial judge also stated that he had warned Lowery during a “frank discussion” that “this could result” and had “begged her to be here.” Neither the plea hearing transcript nor the written plea agreement contains any such warnings or discussions with Lowery; it appears that the trial court was mistaken in its recollections of this particular case. Despite the lack of record evidence about these alleged discussions between the trial court and Lowery, Lowery’s counsel agreed with the court’s comments, responding, “I was here, I remember.”

The trial court sentenced Lowery in ab-sentia to the maximum possible sentence for the crime charged — five years in prison. — based on its erroneous belief that Lowery had agreed to this consequence if she willfully failed to timely appear at sentencing. Yet, the court acknowledged that there was no evidence that Lowery’s failure to appear was willful. Therefore, the court indicated that it would consider a motion to modify sentence if there was evidence of exigent circumstances causing Lowery’s nonappearance. Even though the court’s sentence exceeded the agreed-upon cap, about which Lowery’s counsel reminded the court at the sentencing hearing, counsel did not formally object to the harsher sentence and did not move to withdraw the plea. Instead, he immediately moved to withdraw from representing Lowery, and the court immediately granted his request.

At noon that same day, Lowery appeared in court, claiming that she had been waiting outside the courtroom since 8:25 a.m. A different assistant public defender indicated that she “did talk to [Lowery] before the break.” The trial court simply responded: “[Defense counsel] was here; you weren’t here, Ms. Low-ry [sic]. Five years Florida State prison. Take her away.” Despite its prior ac-knowledgement that it had no evidence that Lowery’s nonappearance was willful and its previous commitment to reconsider her sentence if her nonappearance had been caused by exigent circumstances, the court took no evidence, refused to listen to Lowery, and made no findings regarding willfulness. As a result, Lowery now sits in prison serving the maximum sentence for possession of cocaine, a charge to which she entered a “best interests” plea. On appeal, she seeks to enforce the agreed-upon plea.

The State argues that this issue was not preserved for appellate review because Lowery did not file a motion to withdraw her plea. A defendant who enters a guilty or nolo contendere plea can appeal only under limited circumstances. See Fla. R.App. P. 9.140(b)(2)(A)(i)-(ii). One such circumstance is when the defendant has filed a timely motion to withdraw her plea based on a violation of the plea agreement. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(b); Ruff v. State, 840 So.2d 1145, 1146-47 (Fla. 5th DCA 2003). However, even if the defendant fails to file a motion to withdraw the plea, the appellate court can consider a direct appeal such as Lowery’s “where the record on its face establishes ineffective assistance of trial counsel.” Smith v. State, 988 So.2d 1258, 1260 (Fla. 5th DCA 2008).

In Smith, the defendant entered a plea which included a sentence cap. 988 So.2d at 1259. As in this case, the court accepted Smith’s plea but postponed sentencing. Id. at 1260. When Smith failed to appear at sentencing, the court imposed a sixty-month sentence. Id. Smith’s counsel did not object to the harsher sentence. Id. On appeal, the Fifth District addressed whether it had jurisdiction to consider Smith’s appeal where he had not filed a motion to withdraw the plea. It concluded that “in a circumstance like this, jurisdiction may still exist where the record on its face establishes ineffective assistance of trial counsel.” Id. at 1260. Because Smith’s trial counsel had not filed a motion to withdraw the plea despite the court’s enhanced sentence, ineffectiveness was apparent on the face of the record. Id. The court concluded that “when an enhanced sentence for failure to appear in court at a later time is not part of the negotiated plea, a court must allow the defendant an opportunity to withdraw the plea before it imposes the more severe sentence.” Id. at 1261. Because Smith was not given that opportunity, the court reversed and remanded to allow him to withdraw the plea or accept his sentence. Id.; see also Barber v. State, 901 So.2d 364, 364 (Fla. 5th DCA 2005) (“Because the agreed upon sentence was not conditioned on [defendant’s] appearance at sentencing, and because the failure of [defendant’s] trial counsel to seek relief in the trial court amounts to an inadequacy of counsel on the face of the record, we are compelled to reverse.”).

In Taylor v. State, 919 So.2d 669 (Fla. 2d DCA 2006), this court reached a similar conclusion, albeit under different facts. In Taylor, the defendant entered into a negotiated plea agreement which included three years’ probation and capped his sentence at nine months in jail. Id. at 670. The court accepted Taylor’s plea and postponed sentencing. Id. At the sentencing hearing, the defendant’s newly appointed counsel incorrectly represented to the court that Taylor had entered “a straight up plea” rather than a negotiated plea. Id. at 671. As a result, the trial court imposed a five-year prison sentence, exceeding the agreed-upon cap. Id. Yet, Taylor’s counsel did not bring the error to the trial court’s attention. Id. When Taylor filed a direct appeal without filing a motion to withdraw the plea, this court held that it could consider the error on direct appeal because the record on its face reflected ineffective assistance of counsel. Id. at 670-71. Trial counsel had provided the trial court incorrect information about Taylor’s plea agreement, and Taylor had “been obviously prejudiced by this ineffectiveness as he [was] currently in state prison instead of having already finished a nine-month county jail sentence.” Id. at 671. We reversed and remanded to allow Taylor the opportunity to withdraw his plea. Id.

In this case, as in Taylor and Smith, we find ineffective assistance of counsel on the face of the record. The trial court accepted Lowery’s negotiated plea, which included an eighteen-month cap on prison time. Although the trial court apparently believed that it had postponed Lowery’s sentencing on the condition that the agreed-upon cap would not be honored if she failed to timely appear at sentencing, this condition was not articulated as part of the plea. Thus, there was no agreement between the trial court and Lowery that the court could impose a greater-than-agreed-upon sentence if she failed to appear at sentencing. See Smith, 988 So.2d at 1261 (noting that the trial court accepted the plea without warning the defendant of the consequences of failure to appear at sentencing and without an agreement that it could impose a greater sentence if the defendant failed to appear for sentencing). As in Smith and Taylor, the ineffectiveness of Lowery’s counsel is evident on the face of the record: he failed to formally object when the court imposed a harsher sentence, and he did not file a motion to withdraw the plea. Even though the trial court stated that it would entertain a motion to modify Lowery’s sentence based on exigent circumstances, counsel withdrew from the case without even discussing with Lowery the possibility of filing such motion. Moreover, counsel actually agreed with the court’s erroneous recollection of the plea bargain. Lowery was obviously prejudiced by this ineffectiveness, as she received the maximum prison sentence possible for the crime charged. Therefore, she is entitled to relief.

While we recognize that in Taylor and Smith the district courts reversed and remanded with directions that the defendants simply be given the opportunity to withdraw their pleas, remand for enforcement of Lowery’s agreed-upon plea is the appropriate remedy in this case. See, e.g., Ingmire v. State, 9 So.3d 1278, 1282 (Fla. 2d DCA 2009) (reversing and remanding case with directions that defendant be sentenced according to the plea agreement); Orange v. State, 983 So.2d 4, 6 (Fla. 3d DCA 2007) (ordering the trial court to sentence the defendant in accordance with plea agreement); Lee v. State, 471 So.2d 195, 195 (Fla. 4th DCA 1985) (remanding case for enforcement of plea agreement where record did not contain evidence of willful failure to appear at sentencing and the only evidence on the record indicated that defendant’s failure to appear was accidental).

We further note that, even if we were to accept the trial court’s statements that it had discussed with Lowery the perils of nonappearance at sentencing, our conclusion would be the same. The written plea and the plea hearing transcript clearly establish that no such discussion took place either before the plea was accepted or as part of Lowery’s plea. That only leaves the possibility that such discussion took place after the court accepted Lowery’s plea. However, merely advising Lowery after the plea agreement had been accepted that her sentence would be enhanced if she failed to appear at sentencing was insufficient to justify a sentence which exceeded the agreed-upon plea. See Smith, 988 So.2d at 1261.

Moreover, the trial court was required to make a factual determination as to whether Lowery’s failure to appear at sentencing was willful. “ ‘[Wjhere timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.’ ” Robinson v. State, 946 So.2d 565, 567 (Fla. 2d DCA 2006) (quoting Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)); see also Ingmire, 9 So.3d at 1281 (holding that defendant did not forfeit his right to agreed-upon sentence when evidence was insufficient to establish that he willfully failed to appear for sentencing). Here, the trial court did not give Lowery an opportunity to explain why she had failed to timely appear at sentencing, and it received no evidence and made no findings on the issue of willfulness. The record itself also contains no evidence of willful nonappearance — the only evidence of record is Lowery’s unrefuted statement that she had been in the courthouse waiting since 8:25 a.m. the morning of sentencing. In the “absence of positive evidence to establish willfulness,” reversal and remand with instructions that Lowery be sentenced according to the plea agreement accepted by the trial court is appropriate. See Ingmire, 9 So.3d. at 1282 (enforcing plea agreement terms where there was no evidence that defendant’s failure to appear at sentencing was caused by anything other than human error). Cf. Garcia v. State, 10 So.3d 687, 689 (Fla. 2d DCA 2009) (“[Ijf Mr. Garcia’s failure to appear is found to be non-willful, he would be entitled to the bargained-for mitigation of his sentence.”). Based upon the unusual circumstances of this case, we reverse the judgment and sentence with directions that the trial court resentence Lowery in accordance with the plea agreement.

Reversed and remanded with directions.

NORTHCUTT and LaROSE, JJ., Concur.

      . The other two charges were misdemeanors, each carrying a maximum penalty of 364 days in county jail.

      . This type of understanding is commonly referred to as a “Quarterman agreement,” for the supreme court decision which approved this practice. See Quarterman v. State, 527 So.2d 1380 (Fla.1988) (affirming enforcement of plea agreement which provided for the release of the defendant between entry of plea and sentencing but allowed an upward departure sentence if defendant failed to appear at sentencing); Smith v. State, 988 So.2d 1258, 1261 (Fla. 5th DCA 2008).


author: MORRIS, Judge.

text:
    In re COMMITMENT OF Darren GOODE. State of Florida, Appellant, v. Darren Goode, Appellee.
    No. 2D08-4705.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Hwan-Yul Lee, Assistant Attorney General, Tampa, for Appellant.
    Julianne M. Holt, Public Defender, and Robert S. Mactavish, Assistant Public Attorney, Tampa, for Appellee.
   MORRIS, Judge.

The State appeals an order dismissing an involuntary civil commitment petition against Darren Goode as a sexually violent predator. Because the trial court erred by applying the doctrine of res judicata to the State’s petition, we reverse and remand.

I. Background

In 1999, the State filed its original petition for civil commitment. However, that petition was dismissed due to the State’s failure to bring Goode to trial within thirty days as required by section 394.916(1), Florida Statutes (1999). The State appealed, and on a certified question from this court, the Florida Supreme Court affirmed the dismissal of the original petition on the ground that the thirty-day period was mandatory in nature, though not jurisdictional. See State v. Goode, 830 So.2d 817, 823, 830 (Fla.2002).

During the pendency of the State’s appeal, Goode was released from detention. He was subsequently arrested for two counts of failure to register as a sex offender. In September 2002, he was found in violation of his probation and sentenced to 44.25 months in prison; his scheduled release date was June 18, 2005. However, on June 2, 2005, the State filed the petition for civil commitment at issue in this case. Thereafter, Goode filed his motion to dismiss wherein he argued that the dismissal of the original petition operated as an adjudication on the merits pursuant to Florida Rule of Civil Procedure 1.420 and that res judicata precluded the State from filing the second petition. After a hearing, the trial court entered its order granting Goode’s motion to dismiss on the grounds stated therein and requiring his immediate release.

On appeal, the State contends that the dismissal of the original petition was not a determination on the merits because it rested on the State’s failure to comply with a procedural rule — that is, to bring Goode to trial within thirty days. The State also contends that in Osborne v. State, 907 So.2d 505 (Fla.2005), the Florida Supreme Court clarified that a failure to bring a detainee to trial within the required thirty-day period should result in a dismissal without prejudice. Thus, according to the State, its second petition was not barred by the doctrine of res judicata.

II. The dismissal of the original petition was not an adjudication on the merits, and therefore res judicata does not preclude the State from filing another petition for civil commitment against Goode as a sexually violent predator.

Initially, we note that Goode contends that the State failed to preserve its challenge to the application of res judicata below. However, we reject that contention because a careful reading of the record reflects that the issue was properly preserved. We similarly reject Goode’s contention that the State is attempting to take an inconsistent position on appeal.

Turning to the merits, we note that the question of whether res judicata was properly applied is a pure question of law which we review de novo. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006).

In the supreme court’s Goode opinion, the court was asked to determine whether a dismissal of a civil commitment petition was required where the State failed to bring a detainee to trial within the thirty-day time period set forth in section 394.916(1). In affirming the dismissal of the original petition filed against Goode, the court held that the thirty-day time period was mandatory. 830 So.2d at 823, 830. However, the court also held that “the thirty-day period was [not] intended as a rigid jurisdictional bar to further proceedings.” Id. at 828.

Subsequently, in Osborne, the court clarified its holding as espoused in Goode. In Osborne, the court addressed the question of whether a dismissal for failure to abide by the thirty-day requirement should be with or without prejudice. 907 So.2d at 507-08.

In determining that a dismissal with prejudice would be incongruous with the court’s prior interpretation of the thirty-day rule, the court noted that “[a] dismissal of a petition with prejudice would terminate the case on procedural grounds, essentially divesting the circuit court of jurisdiction.” Id. at 508 (emphasis added). The court explained that such an outcome was contrary to its prior determination that the thirty-day period was not jurisdictional. Id. Thus the court went on to hold that “absent a demonstration of prejudice, the dismissal should be without prejudice and the respondent should be released.” Id.

The Osborne requirement that a dismissal for failure to abide by the thirty-day rule be without prejudice indicates that such a dismissal does not operate as an adjudication on the merits. That interpretation is consistent with the opinion in Goode’s prior case where the supreme court indicated that the thirty-day time period was not intended as a “rigid jurisdictional bar to further proceedings.” Goode, 830 So.2d at 828. Although Goode asks us to construe the thirty-day time period as a sort of statute of limitations, we decline to do so. Where the State fails to bring a detainee to trial within the thirty-day period, the petition for civil commitment must be dismissed and the detainee must be released. However, unlike the running of a statute of limitations, the expiration of the thirty-day period does not forever foreclose the State from filing a new petition for civil commitment. Rather, it acts as a procedural bar to the continued detention of the detainee at that time. If the detainee is subsequently imprisoned for another offense, the State is free to file a new petition. See Ward v. State, 986 So.2d 479, 481 (Fla.2008) (holding that Jimmy Ryce Act applied to defendant who had been released from prison for sex offense but was subsequently rein-carcerated for burglary offenses). Accordingly, we hold that a dismissal of a petition for civil commitment for failure to abide by the thirty-day rule is a procedural dismissal and that neither rule 1.420(b) nor the doctrine of res judicata are applicable.

Because the trial court erroneously applied rule 1.420(b) and the doctrine of res judicata to bar the State’s petition for civil commitment, we reverse and remand for proceedings in conformance with this opinion.

Reversed and remanded.

FULMER and KHOUZAM, JJ., Concur.

      . Section 394.916(1) provides that "[w]ithin 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” The statute allows for the trial to be continued upon a request of either party and a showing of good cause, see § 394.916(2), but no such showing was made in Goode's case.

      . See Black’s Law Dictionary 1450 (8th ed. 2004) (defining a statute of limitations as "[a] law that bars claims after a specified period”).


text:
    Gregory RAMSEY, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY and F.A. Richard and Associates, Appellees.
    No. 1D07-5932.
    District Court of Appeal of Florida, First District.
    Nov. 18, 2009.
    Michael H. Stauder of Michael H. Stau-der, P.A., North Palm Beach, for Appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

REVERSED and REMANDED. See Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008).

HAWKES, C.J., BENTON and THOMAS, JJ., concur.


text:
    Marcia F. WORELL, Franklin Franco, and Gustavo Franco, individually and as Beneficiaries of the Estate of Sarah Gomez, Deceased, Appellants, v. Xavier FRANCO, individually and as Personal Representative of the Estate of Sarah Gomez, deceased, Appellees.
    No. 3D08-2713.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Josie Perez Velis, for appellants.
    Michael Cummings, Orlando, for appel-lees.
    Before SUAREZ, CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. Diaz v. Ashworth, 963 So.2d 731 (Fla. 3d DCA 2007).


author: GERBER, J.

text:
    Linwood LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-295.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Rehearing Denied Jan. 5, 2010.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant below, Linwood Lewis, appeals his convictions for first degree murder and attempted robbery with a fee-arm. Lewis raises three issues: (1) an alleged inadequate Richardson hearing; (2) an alleged improper denial of his motion for judgment of acquittal; and (8) an alleged erroneous jury instruction. Finding no error, we affirm.

On January 20, 2007, Marc Thiebault went outside the front of his house to call in his son for the night. While Thiebault was outside, his wife Sylvia heard three gunshots. Sylvia ran outside, saw three young men running away, and found her husband on the ground, shot and bleeding. Three weeks later, Thiebault died from his wounds.

The police initially arrested Leotis Lester as one of the men involved in the incident. After the police arrested Lester, their investigation led them to Lewis as one of the other men involved. The police interviewed Lewis. He denied any involvement.

The police later interviewed Lewis again, and his story changed. Lewis said, on the night in question, Lester called and said to come with him and another man named Federick Tavares Lee. Lester said they were “fittin’ to go to handle something,” and wanted Lewis to “watch out” for Lester. During the car ride, Lester and Lee told Lewis that they were “fittin’ to go get this money,” and that Lewis would get some of the money. According to Lewis, Thiebault’s daughter told Lester there was a lot of money in a closet in her house. Later that night, the three men drove to Thiebault’s gated community. They jumped over the gate to get into the community. Lester and Lee had guns. The three men walked up to a house which Lester identified. They stood across the street for about ten to fifteen minutes. Lester and Lee told Lewis to “stand right here, just stand over here, man, just watch me so ain’t nothing happen, so nobody coming up, security.” Lewis stood in the grass on the side of the house, about ten feet from the other two men. Lewis heard Lester ask Lee what he wanted to do, and Lee responded that they would “run up on him.” Lewis understood that “running up on someone” meant robbing that person. Lewis saw a man walk out of the garage and all three men went towards him, with Lewis stopping by a truck in the driveway. Lester, with his gun drawn, approached the man. When the man tried to hit the gun away, Lester fired. Lewis ran back to the car with Lester and Lee, and they fled the scene.

The state charged Lester and Lewis with first degree murder with a firearm and attempted robbery with a firearm, and the court below held separate trials for each defendant. At Lewis’s trial, the state relied on Lewis’s statements to argue that he aided and abetted Lester and Lee in an attempt to rob the victim, and that, during the attempted robbery, Lester or Lee shot and killed the victim. Lewis’s defense was that, while he was present when Lester and Lee committed the crimes, he did not aid and abet their commission.

During the state’s case, Thiebault’s wife Sylvia testified that, when she ran outside, she saw all three men standing very close together on her lawn before they ran away. Lewis objected, alleging that, during discovery, the state failed to disclose this statement. The prosecutor told Lewis’s counsel that neither the state nor the police ever had any such statement in their possession. Lewis requested the trial court to conduct a Richardson hearing. The trial court did not determine whether the state committed a discovery violation. Instead, the trial court asked Lewis, if the state committed a discovery violation, how he was prejudiced. Lewis responded that he would have called his investigators as witnesses and he would have recalled a state witness whose testimony was consistent with Sylvia’s statement. The trial court concluded that Lewis was not prejudiced. The court then proceeded with the trial.

After the state rested, Lewis moved for a judgment of acquittal. Lewis argued that, while he was present when the crimes occurred, the state did not prove he acted as a principal in the crimes. Specifically, Lewis contended the state did not prove that he participated in the crimes, that he had a conscious intent for the crimes to be committed, or that he did something to assist Lester and Lee to commit the crimes. The trial court denied the motion.

During the charge conference, Lewis objected to the following portion of the state’s proposed felony murder instruction:

In order to prove a robbery, the state must prove these elements beyond a reasonable doubt: that Linwood Lewis and/or Leotis Lester and/or Federick Tavares Lee took something from the person or custody of Mark [sic] Thie-bault.

Lewis argued that the instruction should not include the other men’s names because the other men were not on trial. According to Lewis, the jury should decide its verdict based upon his name and the instruction on principals. The trial court overruled the objection.

The jury found Lewis guilty on both counts. The trial court sentenced Lewis to life in prison for first degree murder and to a concurrent fifteen-year term for attempted armed robbery.

On appeal, Lewis raises three arguments: (1) the trial court did not conduct an adequate Richardson hearing; (2) the trial court should have granted his motion for judgment of acquittal; and (3) the felony murder jury instruction should not have included the other men’s names joined by the “and/or” conjunction. We will address each of Lewis’s arguments in turn.

Once a trial court has notice of an alleged discovery violation, the trial court is obligated to conduct a Richardson hearing. Duest v. State, 12 So.3d 734, 742 (Fla.2009). “The focus of this hearing is to determine ‘whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.’ ” Id. at 742-43 (citation omitted). “In the past, the court’s failure to conduct a Richardson hearing was per se reversible error.” Smith v. State, 7 So.3d 473, 505 (Fla.2009). However, “[i]n State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995), [the supreme court] concluded that ‘there are cases ... where a reviewing court can say beyond a reasonable doubt that the defense was not prejudiced.’ ” Smith, 7 So.3d at 505. “When the reviewing court makes such a determination, then the discovery violation is deemed harmless and reversal is not warranted.” Id. at 505-06. “The inquiry is whether the violation ‘materially hindered the defendant’s trial preparation or strategy.’ ” Id. at 506 (citation omitted).

Here, the trial court did not conduct an adequate Richardson hearing. The court never determined whether the state committed a discovery violation. See Tarrant v. State, 668 So.2d 223, 225 (Fla. 4th DCA 1996) (where trial court did not make formal finding on the record whether there was a discovery violation, trial court’s inquiry was inadequate). Specifically, the court never determined whether the state or the police ever possessed Sylvia’s statement that she saw all three men standing very close together on her lawn before they ran away. See id. (“It is well-settled that the state is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers.”).

However, we can say beyond a reasonable doubt that, if the state committed a discovery violation in not disclosing Sylvia’s statement regarding where the men stood, Lewis was not prejudiced. Lewis’s response below has not persuaded us that the alleged non-disclosure affected his trial preparation or strategy. In his brief to this court, Lewis now argues that he may have: (1) explored the three men’s interaction and how it supported his defense; (2) investigated ways to impeach Sylvia’s testimony; or (8) decided against pursuing his chosen line of defense. Even if Lewis had raised these arguments below, we remain unconvinced that Lewis was procedurally prejudiced. Sylvia’s testimony did not relate to Lewis’s chosen defense, and she made no contradictory statements by which Lewis could have impeached her testimony. Thus, on Lewis’s first ground for appeal, we affirm.

On Lewis’s second ground for appeal, “[t]he standard for reviewing a trial court’s ruling on a motion for judgment of acquittal is de novo.” Straway v. State, 13 So.3d 1100, 1101 (Fla. 4th DCA 2009). In ruling on a motion for judgment of acquittal, a court’s proper task is to review the evidence “to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state.” Hill v. State, 958 So.2d 549, 551 (Fla. 4th DCA 2007) (citation omitted). “In order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Id. (citation omitted). “We recognize that mere knowledge that an offense is being committed does not equate to participation with criminal intent, and mere presence at the scene, including ... a display of questionable behavior after the fact, is not, alone, sufficient to establish participation.” Id. “The focus in a felony murder charge is not on the accused’s participation in the murder but in the underlying felony.” Hodge v. State, 970 So.2d 923, 927 (Fla. 4th DCA 2008).

From our review of the record, we find the evidence was sufficient to establish that Lewis aided and abetted Lester and Lee in the attempted robbery and, as a result, a jury reasonably could have found Lewis guilty of both attempted robbery and felony murder. The jury reasonably could have inferred that Lewis consciously intended to commit a robbery because he heard Lester’s statement that they were “fittin’ to go get this money,” he was told he would get some of the money, he joined Lester and Lee in jumping over a gate into the community, and he knew that Lester and Lee had guns. The jury also could have inferred that Lewis assisted Lester and Lee in attempting to commit the robbery when he watched out while they “ran up” on Thie-bault. Thus, on Lewis’s second ground for appeal, we affirm.

On Lewis’s third ground for appeal, “ ‘[generally speaking, the standard of review for jury instructions is abuse of discretion.’ ” Newman v. State, 976 So.2d 76, 78 (Fla. 4th DCA 2008) (citation omitted). “[H]owever, discretion, as with any issue of law is strictly limited by case law.” Id. (citation omitted). “A trial court ‘should not give instructions which are confusing, contradictory, or misleading.’ ” McKenzie v. State, 830 So.2d 234, 236 (Fla. 4th DCA 2002) (citation omitted). “Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading.” Id. at 236-37. “The test is not whether a particular jury was actually misled, but instead the inquiry is whether the jury might reasonably have been misled.” Id. at 237.

We find that a jury would not reasonably have been misled by an instruction regarding the state proving robbery by “Linwood Lewis and/or Leotis Lester and/or Federick Tavares Lee” even though Lester and Lee were not tried as codefendants. In Garzon v. State, 980 So.2d 1038, 1043-45 (Fla.2008), our supreme court held that a trial court’s use of the “and/or” conjunction between the names of codefen-dants in jury instructions was not fundamental error so as to warrant a new trial. There, the trial court instructed the jury that it could not convict one defendant on the actions of another unless the law of principals was met. Instead, the supreme court’s greater concern appeared to be whether the trial court correctly instructed the jury on the elements of the crime and on the law of principals. Id. at 1043-44. In this case, the trial court gave such correct instructions. But see Gilley v. State, 996 So.2d 936, 939 (Fla. 2d DCA 2008) (trial court erred in repeatedly referring to defendant “and/or” two codefendants who were being tried separately).

Even if the instruction in question was error as found in Gilley, “[a]n error is deemed harmless where there is no reasonable possibility that the faulty instruction contributed to the verdict.” Hunter v. State, 8 So.3d 1052, 1071 (Fla.2008). Here, any error was harmless. The state presented evidence which showed beyond a reasonable doubt that Lewis intentionally participated in, and aided and abetted, an attempted robbery. Thus, on Lewis’s third ground for appeal, we affirm.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . It appears that, at the time of trial, the police had not apprehended Lee.

      . In their briefs, the parties disputed whether Lewis preserved his objection not only to the use of Lester's and Lee’s names in the instruction, but also to the use of the "and/or” conjunction between their names and Lewis's name. Without further comment, we find that Lewis preserved his objection and, therefore, have addressed the issue's merits above.