author: Roberts, J.

text:
    Ryan Austin CALHOUN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4812
    District Court of Appeal of Florida, First District.
    November 20, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Roberts, J.

The appellant, Ryan Austin Calhoun, was one of two men charged and convicted of sexual battery by multiple perpetrators. The appellant makes two arguments on appeal. First, the appellant argues that the trial court erred in failing to give the jury instruction for the offense of unnatural and lascivious act, which he characterizes as a permissive lesser-included offense of sexual battery by multiple perpetrators. We find that the appellant failed to properly preserve this argument. Second, the appellant argues that the trial court erred when it imposed a fine and surcharge without specifically announcing the fine. We agree and are compelled to strike the fine and surcharge.

Preservation

With regards to the appellant's first issue, we find it unpreserved because the ground trial counsel argued at trial was different from the ground he argued in the motion for rehearing. In order to explain how the grounds are different, we first review what this Court has said about lesser-included offenses.

In Wright v. State , we explained,

Lesser included offenses fall into two categories: necessary and permissive. Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. Necessarily lesser included offenses are designated Category 1 offenses, whereas permissive lesser included offenses are designated Category 2 offenses. A permissive lesser included offense differs in that it cannot be determined to fall within Category 2 unless both the statutory elements and the facts alleged in the accusatory pleading are consulted.

983 So.2d 6, 9 (Fla. 1st DCA 2007) (internal citations omitted).

Given this background information on lesser-included offenses, we next examine trial counsel's arguments to the trial court. During a break in the trial, the parties began to discuss jury instructions. Trial counsel stated that the defense may request a jury instruction for the offense of unnatural and lascivious act, but informed the trial court that the offense of unnatural and lascivious act was not a Category 1 or a Category 2 offense. Then, trial counsel explained that the commentary to the jury instruction stated that some sex offenses may be supported by the evidence produced at trial, reaffirmed that an unnatural and lascivious act was not a Category 1 or a Category 2 offense, and requested to wait to further discuss the issue until all the evidence was presented.

Later, during the charge conference, counsel for the co-defendant asked the trial court to instruct the jury on all of the lesser-included offenses in addition to the instruction for the offense of unnatural and lascivious act. When the trial court asked for the State's position, the State objected and argued that the requested jury instruction was not for a Category 2 offense. When the trial court asked the appellant's trial counsel if the defense had any issues with the jury instructions, trial counsel simply requested the instruction for unnatural and lascivious act without elaboration. The trial court denied the request. Ten days later, the appellant filed a motion for new trial and argued that the trial court erred when it denied his request to instruct the jury on unnatural and lascivious act because unnatural and lascivious act was a permissive lesser-included offense of sexual battery by multiple perpetrators.

Based on trial counsel's statements to the trial court, we find that the appellant never requested the unnatural and lascivious offense instruction based on the ground that an unnatural and lascivious offense was a permissive lesser-included offense until he filed his motion for new trial. Because the ground stated in the motion for new trial was different from the ground stated to the trial court, the issue is not preserved for appeal. See Barton v. State , 704 So.2d 569, 572 (Fla. 1st DCA 1997) (finding that a defendant waived his argument on the grounds made in a motion for new trial when those grounds were not argued at trial). Accordingly, the appellant's judgment and prison sentence are affirmed.

Fine and Surcharge

With regards to the appellant's second issue on appeal, the State properly concedes error. Discretionary fines must be orally pronounced at sentencing. Lamoreaux v. State , 88 So.3d 379, 381 (Fla. 1st DCA 2012). When the trial court imposes a fine without specifically pronouncing it, the fine and any surcharge on that fine must be struck. Id.

During the appellant's sentencing, the trial court announced a lump-sum total of all the court costs and fines it was imposing. Included in the lump-sum total was a $700.00 fine pursuant to section 775.083, Florida Statutes (2015). Section 775.083 lists all of the fines a trial court may impose, but those fines are not mandatory. In addition to the $700.00 discretionary fine, the trial court also imposed a surcharge on that fine. Because the trial court imposed a discretionary fine without specifically pronouncing it, we are compelled to strike it and the surcharge. Therefore, we order the $700.00 fine and $35.00 surcharge imposed in this case be struck.

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

Ray and Kelsey, JJ., concur.

      The appellant and his co-defendant were tried together.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Timothy TOWNS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-686
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   SUAREZ, J.

Timothy Towns seeks to reverse the trial court's Order of Revocation of Probation, and his sentence of five years in prison. For the reasons set forth below, we reverse, in part, concluding that there is no competent and substantial evidence to support the trial court's finding that Towns willfully and substantially violated conditions (4) and (5) of his probation, possession of a firearm, and possession of cannabis with intent to sell, respectively. We affirm the trial court's finding that Towns willfully and substantially violated condition (6) of his probation by associating with persons engaged in criminal activity.

In 2013, Towns pleaded guilty to the offense of grand theft of a vehicle and was placed on three years of reporting probation, which in December 2016 was modified and extended for one year. In January 2017, while driving his own car, Towns was stopped by police for a traffic infraction. He was not alone in the car. Another person was in the passenger seat, and two persons were in the back seat. The officer who stopped the vehicle smelled marijuana emanating from within the car and ordered everyone out. Upon searching the vehicle, the officer found two clear baggies each containing multiple packages of marijuana and a handgun with an extended magazine all tucked under the middle of the back seat. A records check revealed that the handgun had been stolen. Towns and the two backseat passengers were arrested for possession of marijuana with intent to sell; the front passenger was allowed to leave.

Towns was charged with violation of probation for possession of the handgun, for possession of marijuana with intent to sell, for failing to pay the $10/month costs of supervision, and for associating with persons engaged in criminal activity. At Towns' probation violation hearing, the State alleged that he possessed both the handgun and the marijuana with intent to sell. The record shows that, upon arrest, Towns had stated he had no knowledge of the gun or drugs. The arresting officer testified that there was no evidence that Towns exercised dominion or control over the gun or bags of marijuana under the back seat, other than the fact Towns owned the car and the officer observed the driver's seat was reclined in such a way that the driver could have reached into the back seat area. The trial court concluded that Towns willfully and substantially violated his probation by possessing the firearm, possessing the marijuana with the intent to sell, and by associating with persons engaged in criminal activity, i.e., the two backseat passengers. The trial court revoked Towns' probation and sentenced him to five years in prison. Towns brought this timely appeal.

We review the trial court's ruling on revocation of probation for abuse of discretion. Thompson v. State, 172 So.3d 527 (Fla. 3d DCA 2015). In order to support revocation of probation, the trial court was required to determine whether Towns willfully and substantially violated the conditions of his probation. See State v. Carter, 835 So.2d 259 (Fla. 2002) (holding a violation of probation must be both willful and substantial before a defendant's probation may be revoked). We review the trial court's finding of a willful and substantial violation for whether it is supported by competent substantial evidence. Harris v. State, 898 So.2d 1126 (Fla. 3d DCA 2005) ; Savage v. State, 120 So.3d 619 (Fla. 2d DCA 2013).

To allow the court to find Towns willfully and substantially violated his probation by possessing the gun and marijuana, the State was required to prove that Towns had actual or constructive possession of this contraband. In this case, the State was unable to prove actual possession because the State could not establish that the gun and bags of marijuana were in Towns' hand, or on his person, or were within his "ready reach." See Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009). It is undisputed that Towns did not have the gun or baggies of marijuana on his person, and the record shows Towns was in the driver's seat while the gun and bags of marijuana were jammed under the back seat. The contraband was not "so close as to be within ready reach" and considered in Towns' actual possession. See Reynolds v. State, 983 So.2d 1192, 1194 (Fla. 3d DCA 2008) ; McCoy v. State, 840 So.2d 455, 456 (Fla. 4th DCA 2003) (citing Fla. Std. Jury Instr. (Crim.) 25.7 (2002) ).

As the State was unable to prove that Towns had actual possession of either the firearm or the drugs, the State had to establish Towns had constructive possession - that Towns knew of the contraband's presence, and that he exercised dominion and control over it. See Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997). To establish constructive possession, the State had to prove that: (1) the defendant knew that the contraband was within his presence; (2) the defendant had the ability to maintain control over the contraband; and (3) the defendant knew of the illicit nature of the contraband. Id. Additionally, if the property where the contraband is found is not in the defendant's exclusive control, the defendant's knowledge of the presence of the contraband must be established by independent proof. See Gonzalez v. State, 832 So.2d 898, 899 (Fla. 3d DCA 2002) ; Smith, 687 So.2d at 875. Independent proof may be established through the defendant's own statements, witness testimony or "incriminating circumstances other than mere proximity to the contraband." Tucker v. State, 198 So.3d 1011, 1014 (Fla. 2d DCA 2016) ; see also De La Cruz v. State, 884 So.2d 349, 351 (Fla. 2d DCA 2004) (holding if the drugs are not located inside the accused's exclusive possession, the State cannot infer his or her knowledge of the presence of and control over the drugs; the State must provide independent proof of knowledge); Johnson v. State, 456 So.2d 923, 924 (Fla. 3d DCA 1984) (holding that proximity to contraband, without more, is legally insufficient to establish constructive possession).

We find the evidence was insufficient to prove Towns had the ability to maintain control over the contraband items. As the driver, Towns did not have exclusive control over the backseat area where the contraband gun and marijuana were located, nor could he have reasonably reached underneath the back seat from his position in the driver's seat. This is particularly significant when two passengers occupied the back seat of the vehicle with easy access to the underside of the back seat where the gun and marijuana had been stuffed. Aside from there being insufficient proof of constructive possession, the record contains no independent proof that Towns controlled the weapon or the baggies of marijuana, which may have been placed there by the backseat passengers. The mere smell of marijuana is not proof that Towns had dominion and possession of the drugs.

We find there was, however, competent substantial evidence for the trial court's finding that Towns willfully and substantially violated condition 6 of his probation by associating with persons engaged in criminal activity. The police officer testified that there was a strong odor of marijuana coming from Towns' car, and the police found two clear baggies jammed under the back seat, each filled with marijuana packaged for sale. Two passengers were in the back seat within easy reach of the baggies. Even if Towns did not exercise physical dominion or control over the marijuana, the trial court was within its discretion to conclude that evidence of the strong odor of marijuana was sufficient to put Towns on notice that it was in his car. Based on these facts, there was competent substantial evidence to support the trial court's conclusion that the two backseat passengers were engaged in the criminal activity of possessing marijuana with intent to sell and that Towns consequently violated his probation by associating with them.

After careful review of the record, we conclude that the State's evidence was insufficient to prove that Towns exercised the required dominion or control over the gun and marijuana to prove constructive possession. We consequently reverse the order revoking Towns' probation for violating condition (4) and (5) of his probation and remand with instructions to strike the probation violation charges of possession of a firearm and possession of marijuana with intent to sell. We also find there was competent and substantial evidence to support the trial court's conclusion that Towns willfully and substantially violated condition (6) of his probation by associating with persons engaged in criminal activities. We therefore affirm that portion of the order and remand for reconsideration of the revocation of probation because the record does not make clear whether the trial court would have revoked Towns' probation and imposed the same sentence based on the sole remaining probation violation.

Reversed and remanded with instructions.

      Rather than impose a prison term, the trial court could reinstate probation, increase its length, or modify the conditions.

      We note the trial court determined that Towns did not violate probation condition (2) by failing to pay the monthly cost of supervision, and any written order on remand should reflect this determination.


author: ROTHENBERG, C.J.

text:
    STARBOARD CRUISE SERVICES, INC., Appellant, v. Thomas DEPRINCE, Appellee.
    No. 3D16-2009
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and Carolina A. Latour, Miami, for appellant.
    McDonald Hopkins, LLC, and Mario M. Ruiz and Joelle H. Dvir, Miami, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   ROTHENBERG, C.J.

INTRODUCTION

The defendant below, Starboard Cruise Services, Inc. ("Starboard"), appeals from the trial court's July 29, 2016 order denying its motion for attorney's fees, which was based on Starboard's proposal for settlement filed pursuant to section 768.79, Florida Statutes (2015), as implemented by rule 1.442, Florida Rules of Civil Procedure (2015). Because Starboard's offer to settle was conditioned on the plaintiff, Thomas DePrince ("DePrince"), releasing all claims asserted and dismissal with prejudice of all counts of the amended complaint, and DePrince's amended complaint contained both claims for monetary damages and equitable relief, the offer was not valid. Accordingly, we affirm the trial court's order denying Starboard's motion for attorney's fees.

BACKGROUND

Starboard operates retail concessions on cruise liners. On February 11, 2013, DePrince was a passenger onboard a cruise ship where Starboard operated a jewelry boutique. While on the ship, DePrince visited the shipboard jewelry boutique and requested a quote for a 15 to 20 carat loose diamond. Because the jewelry store did not keep such large diamonds in stock, the store manager contacted its corporate office to request information regarding pricing and the availability of such a large diamond. The corporate office reached out to its diamond vendor, who responded via email and provided pricing for two diamonds: (1) a 20.64 carat diamond which it priced at $235,000; and (2) a 20.73 carat diamond which it priced at $245,000.

DePrince's sister, a certified gemologist, warned DePrince that "something [was] not right" because a diamond of that size should be priced "in the millions." DePrince, however, agreed to purchase the 20.64 carat diamond, and paid for the diamond with a credit card. When Starboard submitted the order, the vendor clarified that its $235,000 quote was per carat , for a total of $4,850,400. Starboard immediately notified DePrince of the mistake and reversed the charge on his credit card. Shortly thereafter, DePrince filed the instant lawsuit against Starboard.

The amended complaint included the following counts: count I: specific performance, count II: breach of contract, and count III: conversion. In October 2015, Starboard served DePrince with a proposal for settlement pursuant to section 768.79 and rule 1.442, offering to settle counts II and III for $75,000. However, the proposal required a release and dismissal with prejudice as to all of DePrince's claims. Specifically, the proposal provided, in relevant part, as follows:

2. This proposal for settlement is to resolve all claims for damages that were asserted by DePrince against Starboard in this action, specifically, Counts II and III of the Amended Complaint.
3. There are no relevant conditions to this offer other than: (a) formal acceptance within the time period required by law; (b) the execution by DePrince of a release of the claims asserted by DePrince against Starboard in this action , in the form attached hereto as Exhibit "A"[;] and (c) execution and filing by DePrince of a notice of voluntary dismissal with prejudice of all counts of the Amended Complaint , with DePrince and Starboard each to bear its own attorneys' fees and costs.
4. Starboard proposes to settle Counts II and III in exchange for a payment by Starboard to DePrince in the amount of SEVENTY-FIVE THOUSAND DOLLARS AND NO CENTS (U.S. $75,000).

(emphasis added).

DePrince never responded to the proposal for settlement. Shortly before trial, DePrince voluntarily dismissed his claims for specific performance and conversion, leaving only his breach of contract claim. The case proceeded to trial and the jury returned a verdict in Starboard's favor. Thereafter, as the prevailing party, Starboard filed a motion for attorney's fees pursuant to section 768.79.

The trial court denied Starboard's motion and issued a very detailed order. Specifically, the trial court concluded that: (1) Starboard's proposal for settlement was unambiguous; (2) the acceptance of the proposal was conditioned on DePrince signing a release of all claims asserted in the lawsuit and dismissing all claims (monetary and nonmonetary) with prejudice; and (3) thus, the proposal was invalid under Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013).

We agree with the trial court's findings and, therefore, we affirm.

STANDARD OF REVIEW

Our standard of review is de novo because: (1) when determining entitlement to fees based on the interpretation of a statute, the standard of review is de novo , see Allstate Ins. Co. v. Regar, 942 So.2d 969, 971 (Fla 2d DCA 2006) ; and (2) the standard of review for proposals for settlement is also de novo . See Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002).

ANALYSIS

I. Starboard's Offer Was Unambiguous

DePrince's amended complaint asserted claims for specific performance, breach of contract, and conversion. Although Starboard's proposal for settlement offered to settle only the breach of contract and conversion claims for $75,000, the offer was contingent upon DePrince executing a release and dismissing with prejudice all of his claims. The trial court found that:

The offer proposed that DePrince would be paid $75,000 in satisfaction of his damage claims. In exchange[,] DePrince would release - and dismiss with prejudice - all claims asserted in the case. There were no conflicting terms; the proposal clearly articulated the claims that would be settled and the claims which would have to be released; it specified the precise amount to be paid; and it identified the proposed releaser and releasee. It was as simple and unambiguous as a proposal for settlement could possibly be.

The trial court, therefore, found that the offer of settlement was unambiguous and "capable of implementation without the need for any clarification." We agree.

II. Section 768.79 and Rule 1.442 Must Be Strictly Construed

Section 768.79 creates a substantive right to attorney's fees when, among other things, a plaintiff refuses to accept an offer of judgment from the defendant, and the resulting judgment is either one of no liability, MYD Marine Distrib., Inc. v. Int'l Paint Ltd., 187 So.3d 1285, 1286 (Fla. 4th DCA 2016), or if the judgment obtained by the plaintiff is at least twenty-five percent less than the amount of the offer. § 768.79. Rule 1.442 provides the procedural mechanism for application of section 768.79. Saenz v. Campos, 967 So.2d 1114, 1116 (Fla. 4th DCA 2007). When construing the language of section 768.79 and rule 1.442, the law is clear: both provisions must be strictly construed because they are in derogation of the common law rule that each party is responsible for its own attorney's fees. Campbell v. Goldman, 959 So.2d 223, 226 (Fla. 2007).

Section 768.79 provides that offers of judgment apply only to "any civil action for damages." Courts have consistently interpreted this phrase as being applicable to a claim in a civil action in which a party seeks only money damages.See Winter Park Imports, Inc. v. JM Family Enters., 66 So.3d 336, 340 (Fla. 5th DCA 2011) ; Beyel Bros. Crane & Rigging Co. of S. Fla., Inc. v. Ace Transp., Inc., 664 So.2d 62, 64-65 (Fla. 4th DCA 1995).

Although the Fifth District Court of Appeal in Winter Park held that strict construction of the phrase "in any action for damages" cannot include claims for equitable relief or claims that seek both monetary and nonmonetary relief, id. at 338-42, it left the door open for offers of judgment (proposals for settlement) that only offer to settle the monetary claims. Specifically, the Fifth District stated that it was not willing to conclude that "an offer (or demand) for judgment can never be utilized when a party has included separate claims for monetary and nonmonetary relief in the same pleading, and the offer (or demand) is directed only to the monetary claim." Id. at 341 (emphasis added). However, citing Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass'n, 22 So.3d 140 (Fla. 4th DCA 2009), the Fifth District found that " section 768.79 is inapplicable where a party's general offer of settlement is directed to a claim in which both damages and non-monetary relief is sought." Id. at 342.

III. Diamond Aircraft

After the Fifth District issued its opinion in Winter Park, the Florida Supreme Court decided Diamond Aircraft. In Diamond Aircraft, the plaintiff contracted to purchase an airplane. Diamond Aircraft, 107 So.3d at 365. A dispute arose and the plaintiff filed an action for specific performance, breach of contract, breach of the covenant of good faith and fair dealing, and deceptive trade practices under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). Id. The action, which was originally filed in state court, was subsequently removed to federal court. Id. Thereafter, Diamond Aircraft served the plaintiff with an offer of judgment in the amount of $40,000 "to resolve all claims that were or could have been asserted by plaintiff against defendant" in exchange for a dismissal with prejudice of all claims pending against Diamond Aircraft. Id. The offer was rejected, and summary judgment was ultimately entered in favor of Diamond Aircraft. Id. at 366. The remaining FDUTPA claim proceeded to trial and Diamond Aircraft prevailed on that claim as well. Id.

As the prevailing party, Diamond Aircraft moved for attorney's fees under section 768.79. Id. at 365. The United States District Court denied the motion, finding that section 768.79 was inapplicable because the plaintiff had asserted both an equitable claim for nonmonetary relief (specific performance) and, in the alternative, a claim for damages based on either breach of contract, breach of implied covenants, or deceptive trade practices. Id. at 365. Diamond Aircraft appealed to the Eleventh Circuit Court of Appeals. Id. at 364.

On appeal, the Eleventh Circuit examined Florida law with regard to requests for attorney's fees under FDUTPA and section 768.79. After concluding that Florida law had not specifically addressed this issue, the court certified four questions to the Florida Supreme Court. Id. The question certified which is at issue here was:

DOES FLA. STAT. § 768.79 APPLY TO CASES THAT SEEK EQUITABLE RELIEF IN THE ALTERNATIVE TO MONEY DAMAGES; AND, EVEN IF IT DOES NOT GENERALLY APPLY TO SUCH CASES, IS THERE ANY EXCEPTION FOR CIRCUMSTANCES IN WHICH THE CLAIM FOR EQUITABLE RELIEF IS SERIOUSLY LACKING IN MERIT?

Answering both parts of the certified question in the negative, the Florida Supreme Court found that section 768.79 does not apply to cases that seek both equitable relief and damages, and that there exists no exception to the rule for equitable claims that lack merit. Id. at 372. The Florida Supreme Court explained that Florida courts have routinely held that the phrase in section 768.79 which states "in any civil action for damages" is applicable to a claim in a civil action where a party seeks only money damages. See e.g. Beyel Bros. Crane & Rigging Co. of S. Fla. Ins. v. Ace Transp. Inc., 664 So. 2d 62, 64-65, 664 So.2d 62 (Fla. 4th DCA 1995) ; Nelson v. Marine Grp. of Palm Beach, Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996) (applying section 768.79 in a declaratory action where the only issue was entitlement to money held in escrow).

Thus, the Florida Supreme Court concluded that section 768.79 does not apply to an action in which a plaintiff seeks both damages and equitable relief, and where the defendant has served a general offer of judgment that seeks the release of all claims. Id. at 374.

IV. Application of Diamond Aircraft to Starboard's Offer of Settlement

A. The Offer

Starboard insists that Diamond Aircraft does not apply here, because its offer was not a general offer, as it was directed only to DePrince's monetary claims. We disagree. The trial court properly concluded that Starboard's offer was undeniably a general offer, as it required DePrince to release Starboard for all of the claims that were asserted in the case, not just Starboard's claims for breach of contract and conversion, and to dismiss with prejudice all counts of the amended complaint. In other words, the proposal for settlement was meant to resolve all claims, no matter their nature, arising from the parties' transaction. Although the structure of the proposal directed payment to only counts II and III (breach of contract and conversion), the proposal was conditioned upon a release and dismissal of DePrince's equitable claim seeking specific performance as well as his damages claims. See e.g., Palm Beach Polo Holdings, 22 So.3d at 144 (finding that offers of settlement that are directed to all claims [monetary and nonmonetary] contained in the complaint are general in nature).

B. True Relief

Starboard contends that its proposal for settlement was enforceable and that an award of attorney's fees is appropriate because the "true relief" sought by DePrince was monetary damages. Although we recognize that the "true relief" test is a valid and viable consideration in some cases, the record in the instant case does not support its application to the offer of judgment made by Starboard in this case.

The following are some examples where appellate courts have applied the "true relief" doctrine. In DiPompeo Constr. Corp. v. Kimmel & Assocs., Inc., 916 So.2d 17, 17-18 (Fla. 4th DCA 2005), the Fourth District Court of Appeal examined the validity of the plaintiff's offer of judgment in a case wherein the plaintiff had filed a declaratory action seeking a determination that no contract existed and thus, no money was owed to the defendant under the subject contract. The Fourth District looked at the nature of the claim and concluded that the "plaintiff's claim was in actuality an action in damages because the real issue before the court was whether the plaintiff owed money to the defendant," id. at 18-19, and thus the offer of judgment was valid. Id.

The Fourth District Court of Appeal reached the opposite result in National Indemnity Co. v. Consolidated Insurance Services, 778 So.2d 404 (Fla. 4th DCA 2001). The plaintiff in that case also filed an action for declaratory relief, however in that case the plaintiff had requested that the trial court declare whether an insurance policy was in full force and effect on the day that the underlying tort occurred. Id. at 406. The Fourth District concluded that the trial court had correctly found that the offer of judgment under section 768.79 in that case was not valid because the action was not a civil action for damages as contemplated by section 768.79. The Fourth District found that the "real issue" in that case was whether there was insurance coverage. Id. at 408. No money damages or payment of money had been requested, the claim was solely for equitable relief, and thus, section 768.79 was not applicable. Id.

The Florida Supreme Court specifically addressed: DiPompeo and National Indemnity in Diamond Aircraft, and noted, without disapproval, that the Fourth District had looked at the nature of the claims asserted and determined what the "real issue" was when deciding the applicability of section 768.79. Diamond Aircraft, 107 So.3d at 373. Armed with the apparent approval of the Florida Supreme Court in Diamond Aircraft, the Fourth District again applied the "true relief" test in MYD Marine Distributor v. International Paint Ltd., 187 So.3d 1285 (Fla. 4th DCA 2016).

In MYD, the plaintiff, consisting of several MYD entities ("MYD"), filed suit alleging that the defendants violated state antitrust laws by conspiring to oust MYD as a distributer of yacht products. Id. at 1286. Specifically, the complaint alleged several causes of action for conspiracy in restraint of trade and breach of contract. As to the conspiracy counts, MYD sought damages, costs and fees, as well as a permanent injunction. Id. The defendant ultimately obtained summary judgment and moved for attorney's fees pursuant to an offer of judgment and section 768.79. The trial court granted the defendants' motion because, in its view, MYD never really pursued its injunctive relief claim, and instead litigated only its money damages claim. Id. The Fourth District Court of Appeal affirmed because MYD never pursued nonmonetary relief during the course of the litigation. Id.

In Tower Hill Signature Insurance Co. v. Javellana, 238 So.3d 372 (Fla. 3d DCA 2014), this Court also applied the true relief test and concluded that the defendant, Tower Hill, was entitled to its fees pursuant to its offer of judgment, even though the complaint contained counts for both damages and equitable relief. Specifically Javellana's complaint contained three counts: one count alleging breach of contract and two counts seeking declaratory relief. However, this Court determined that the "true relief" sought by the plaintiff was monetary damages and thus Tower Hill's offer of judgment was valid. Id. at 373. In that case, the plaintiffs sustained water damage to their home and initiated a claim with Tower Hill, their homeowner's insurer. Id. After conducting an investigation and inspection, Tower Hill tendered payment in an amount that it deemed was the "actual cash value" of the loss. Id. The plaintiffs disagreed with the amount and argued that the claim was grossly underpaid. Thereafter, they sued to recover monetary damages under the insurance policy. Although the plaintiffs also sought declaratory relief, this Court held that "the count for declaratory relief was subsumed within the true relief sought in this case: whether Tower Hill breached the policy by failing to pay actual cash value and if so, the amount of damages for the breach." Id. at 377. That was clearly not the case here.

MYD, DiPompeo, and Tower Hill are clearly distinguishable from the instant case. In DiPompeo, the sole relief sought was in actuality a request for monetary relief; in MYD, the proposal specifically stated that the offer of judgment was directed solely to the plaintiffs' claim for money damages; and in Tower Hill, the count for declaratory relief was subsumed in the breach of contract claim. However, in the instant case, although Starboard's "proposal for settlement" under section 768.79 initially stated that the proposal was to resolve all claims for damages and specifically directed the proposal to counts II and III of the amended complaint (claims for breach of contract and conversion), the proposal also required DePrince to release all of the claims asserted by DePrince against Starboard in this action and to dismiss with prejudice all counts of the amended complaint. Additionally, the proposed release attached to the proposal for settlement contained similar language requiring DePrince to "release and forever discharge Starboard ... of and from all claims that were asserted by [DePrince] against [Starboard]" in the instant action, with prejudice as to counts I, II, and III. As count I was DePrince's claim for specific performance, the proposed release clearly required DePrince to also release and discharge DePrince's equitable claim against Starboard as a condition of the proposal for settlement.

Additionally, the record does not reflect, as Starboard claims, that despite DePrince's nonmonetary equitable claim for specific performance, the "true relief" being requested was for monetary damages. The record reflects that DePrince actively litigated his claim for specific performance. Starboard sought and obtained summary judgment of DePrince's specific performance claim, arguing that the diamond was not unique, Starboard did not have possession of the diamond, and therefore it could not deliver the diamond to DePrince. This Court reversed the summary judgment granted in Starboard's favor based on: DePrince's argument that Starboard had possession of the diamond by way of its consignment with its supplier; DePrince had submitted an unrebutted affidavit from his expert gemologist averring that the gem was unique; and whether the diamond was in fact unique was a factual issue not properly resolved on summary judgment. DePrince v. Starboard Cruise Servs., Inc., 163 So.3d 586, 598 (Fla. 3d DCA 2015). The record also reflects that: (1) DePrince was ready, willing, and able to pay for the quoted purchase price of the diamond; and (2) DePrince did not abandon his specific performance claim until just before trial, which was well after the proposal for settlement had been rejected by DePrince, and after DePrince had deposed Starboard's supplier, who testified, contrary to Starboard's representations, that it also never had possession of the diamond.

CONCLUSION

We conclude that Starboard's proposal for settlement was unambiguous, and the proposal was conditioned on DePrince releasing all of his claims asserted in the lawsuit and dismissal of all of his claims with prejudice. Because DePrince was seeking both monetary and nonmonetary relief, Starboard's proposal for settlement under section 768.79 was invalid. We, therefore, affirm the trial court's order denying Starboard's motion for attorney's fees based on its proposal for settlement.

Affirmed.

      The terms "proposal for settlement" and "offers of judgment" are used interchangeably, however section 768.79 uses the term "offers of judgment."


author: Conner, J.

text:
    Alicia L. MALDONADO, Appellant, v. Angela BUCHSBAUM, Proposed Personal Representative of the Estate of John Stephen Buchsbaum, Appellee.
    No. 4D18-1974
    District Court of Appeal of Florida, Fourth District.
    November 21, 2018
    Steven B. Dolchin of Steven B. Dolchin, P.A., Hollywood, for appellant.
    Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, and Allan Samuels of Law Offices of Allan Samuels & Associates, P.A., Boca Raton, for appellee.
   Conner, J.

Alicia L. Maldonado appeals a temporary injunction issued without notice in favor of the Estate of John Stephen Buchsbaum ("the Estate"). We affirm the injunctive relief granted, but determine the temporary injunction fails to comply with the requirement to endorse the date and hour of entry and to require a bond. We remand the case for the trial court to correct the deficiencies.

Background

Angela Buchsbaum, the personal representative of the Estate, was married to the decedent for over thirty years before his death. Prior to death, the decedent's mental capacity deteriorated to the point that home health aides were used to care for him. Maldonado became a full-time weekday aide caring for the decedent. In the year before he died, the decedent was hospitalized with extreme mental delusions, such as believing his wife wanted to kill him. The delusions continued after the decedent was discharged from the hospital.

Maldonado allegedly began fostering a relationship with the decedent and began alienating him from his wife. It is also alleged that Maldonado exerted undue influence over the decedent and succeeded in obtaining a power of attorney from him. By exerting undue influence, Maldonado allegedly persuaded the decedent to transfer various assets to her and change the beneficiary of various Estate assets. The decedent died unexpectedly.

After the decedent's death, his wife, as the personal representative of his Estate, filed a petition for a temporary injunction without notice. The petition sought to restrain Maldonado from taking possession of any Estate assets, destroying any financial documents of the Estate, and representing to others that she was the sole beneficiary of the Estate or a representative of the decedent. The petition also sought to freeze assets held in the decedent's name at various financial institutions. The petition alleged that Maldonado had already transferred considerable assets owned by the decedent to herself and that notice of the proceedings prior to issuance of the injunction would afford her the opportunity to transfer various assets to her relatives living out of the country. The trial court reviewed the petition, found it to be legally sufficient, and issued the temporary injunction without notice. Maldonado gave notice of appeal.

Appellate Analysis

"The standard of review of trial court orders on requests for temporary injunctions is a hybrid." E.I. DuPont De Nemours & Co. v. Bassett , 947 So.2d 1195, 1196 (Fla. 4th DCA 2007). "To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review." Id. (quoting Colucci v. Kar Kare Auto. Grp., Inc. , 918 So.2d 431, 436 (Fla. 4th DCA 2006) ).

"[A] party seeking a temporary injunction must establish that (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest." University Medical Clinics, Inc. v. Quality Health Plans, Inc. , 51 So.3d 1191, 1195 (Fla. 4th DCA 2011).

Maldonado did not file a motion to dissolve the injunction in the court below. "Since the injunction was issued ex parte and the enjoined party did not file a motion to dissolve, we will 'review only the legal sufficiency of the order, the complaint, and any supporting documents.' " Bookall v. Sunbelt Rentals, Inc. , 995 So.2d 1116, 1117 (Fla. 4th DCA 2008) (quoting Thomas v. Osler Med., Inc. , 963 So.2d 896, 900 (Fla. 5th DCA 2007) ).

Maldonado argues that the temporary injunction is improper under the law because the trial court: (1) failed to make specific findings of fact to show all four requirements were met to enter a temporary injunction; (2) failed to provide explicit reasons why the injunction was granted without giving notice; (3) failed to endorse the date and hour the injunction was entered and require a bond; and (4) imposed prior restraint in violation of her First Amendment rights. Upon reviewing the record, we determine the temporary injunction contains sufficient findings to show all four requirements established by the case law to justify entry of a temporary injunction were met and a sufficient explanation of why the injunction was granted without notice. We reject Maldonado's argument that the temporary injunction improperly imposed prior restraint because the two paragraphs addressing the issue were conclusory arguments and the issue was not preserved by a motion to dissolve the injunction. However, we find merit as to Maldonado's argument that the trial court failed to endorse the date and hour of entry and to require a bond.

"A temporary injunction without notice is an extraordinary remedy and the order must strictly comply with Rule 1.610 ." Bieda v. Bieda , 42 So.3d 859, 861 (Fla. 3d DCA 2010) (emphasis added); see also Smith v. Knight , 679 So.2d 359, 361-62 (Fla. 4th DCA 1996).

Florida Rule of Civil Procedure 1.610(a)(2) requires that: "Every temporary injunction granted without notice shall be endorsed with the date and hour of entry ...." Additionally, Rule 1.610(b) requires that: "No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined." The temporary injunction issued below is not endorsed with the date and hour of entry and does not require a bond. Those omissions render the injunction defective. Bieda , 42 So.3d at 861 (requiring strict compliance with Rule 1.610 to uphold a temporary injunction without notice); Lewis v. Sunbelt Rentals, Inc. , 949 So.2d 1114, 1115 (Fla. 2d DCA 2007) ("Where the complaint and order are insufficient under rule 1.610, this court will reverse."); Bellach v. Huggs of Naples, Inc. , 704 So.2d 679, 680 (Fla. 2d DCA 1997) ("The injunction is defective because Florida Rule of Civil Procedure 1.610(b) requires the movant to post a bond."); see also Fla. High Sch. Athletic Ass'n v. Rosenberg ex rel. Rosenberg , 117 So.3d 825, 827 (Fla. 4th DCA 2013) ("We do find error, however, in the trial court's failure to set a bond.").

We affirm the portions of the temporary injunction granting injunctive relief, but reverse and remand for the trial court to endorse with the date and hour of entry and to impose a bond in accordance with rule 1.610(a)(2) and (b). Lerner v. Dum , 220 So.3d 1202, 1203 (Fla. 4th DCA 2017).

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

Damoorgian and Forst, JJ., concur.


author: Per Curiam.

text:
    Jarrel Emmett MAPP, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4399
    District Court of Appeal of Florida, First District.
    November 21, 2018 Rehearing Denied December 28, 2018
    Jarrel Emmett Mapp, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Lewis, Wetherell, and Makar, JJ., concur.


author: SALTER, J.

text:
    COVENTRY HEALTH CARE OF FLORIDA, INC., Appellant, v. CROSSWINDS REHAB, INC., LLC, etc., et al., Appellees.
    No. 3D18-1342
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Shook Hardy & Bacon and Daniel B. Rogers ; Morgan, Lewis & Bockius and Matthew Papkin, Melissa M. Coates and Brian M. Ercole, Miami; Shapiro, Blasi, Wasserman & Hermann and Richard P. Hermann, II and David J. DePiano (Boca Raton), for appellant.
    The Moskowitz Law Firm and Adam Moskowitz, Coral Gables and Howard M. Bushman, and Adam A. Schwartzbaum and Joseph M. Kaye ; Fuerst Ittleman David & Joseph and Allan A. Joseph, Christopher M. David and Michael B. Kornhauser, Miami, for appellee 206 Golden LLC d/b/a Crossroads.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Coventry Health Care of Florida, Inc. ("Coventry"), appeals a circuit court order denying Coventry's motion to compel arbitration. Coventry sought arbitration of putative class action claims brought against Coventry by the appellee, 206 Golden, LLC ("206 Golden"). For the reasons which follow, we affirm the trial court order denying the motion.

It is undisputed that 206 Golden is not the same entity that entered into a participating provider agreement ("Agreement") with Coventry in 2012. Rather, the Agreement was signed by a prior provider operating the skilled nursing facility now operated by 206 Golden but still known as "The Crossroads."

It is also undisputed that the Agreement contains a binding arbitration provision between Coventry and the entity which signed the Agreement, and that the Agreement excluded long-term care services. Coventry argues that, since at least 2014, 206 Golden's submission of claims to, and receipt of payments from, Coventry, establishes that the Agreement is still operative and binds 206 Golden. It further argues that the arbitrator, not the trial court, should determine the enforceability and scope of the Agreement.

206 Golden responds that: (1) it never signed and never agreed to the terms in Coventry's Agreement with the prior entity; and (2) it has submitted the claims in controversy and has been paid by Coventry (a) exclusively for long-term care services, which are excluded under the express terms of the Agreement, and (b) only because 206 Golden "must" submit such claims to Coventry under section 409.982(2), Florida Statutes (2018), irrespective of any agreement or contract.

The first issue is dispositive and eliminates our need to address the long-term care exclusion in the Agreement. In Careplus Health Plans, Inc. v. Interamerican Medical Center Group, LLC, 124 So.3d 968 (Fla. 3d DCA 2013), as here, the agreement containing the mandatory arbitration provision was not signed by the entity against which the provision was sought to be enforced; this Court held that the trial court, not an arbitrator, was to determine the applicability of the arbitration provision based on the relationship of the parties.

Although the Agreement in the present case included a broad "successors and assigns" provision applicable to Coventry, no such provision applied to a successor owner or operator of the Crossroads facility.

The first element to be considered under the controlling case of Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999), is "whether a valid arbitration agreement exists." In this case, it does not, as between these parties. The record before us lacks competent substantial evidence supporting Coventry's contentions regarding (a) an implied assumption of such a provision by 206 Golden, or (b) estoppel as against 206 Golden.

For these reasons, the order denying Coventry's motion to compel arbitration is affirmed.

      During the hearing on the motion to compel arbitration, counsel for 206 Golden represented that its lawsuit "is solely regarding the long-term care program." That limitation was reiterated at oral argument before this Court.

      The subsection requires nursing homes and hospices that are enrolled Medicaid providers to participate in all eligible plans selected by the Agency for Health Care Administration in the region in which the provider is located.

      "References to 'Coventry' in [Section 5.2.1, the binding arbitration provision] includes [sic] its respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, under this or prior agreements with Provider." The Agreement also prohibited the assignment or transfer of the signatory Provider's rights without the prior written consent of Coventry, and disclaimed any intention to benefit any person or entity, "[o]ther than as expressly set forth in the Agreement."

      Counsel for the parties advised the trial court that Coventry's motion to compel arbitration could be decided without an evidentiary hearing.


author: PER CURIAM.

text:
    Janice S. TIDWELL, etc. and Mertice Linton, etc., Appellants, v. PHILIP MORRIS USA, INC., and R.J. Reynolds Tobacco Co., Appellees.
    Nos. 3D17-1920 & 3D17-1916
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Wasson & Associates, Chartered and Roy D. Wasson ; Howard M. Acosta (St. Petersburg), for appellants.
    King & Spalding LLP, William L. Durham II and Chad A. Peterson (Atlanta, GA); Arnold & Porter and Geoffrey J. Michael (Washington, D.C.), for appellees.
    Before SALTER, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See Gaff v. R.J. Reynolds Tobacco Co., 129 So.3d 1142, 1145 (Fla. 1st DCA 2013) ; see also Uffner v. Philip Morris USA Inc., 46 F.Supp.3d 1339, 1345 (M.D. Fla. 2014).


author: LOGUE, J.

text:
    CONDOTTE/DE MOYA JV, LLC, et al., Appellants, v. P & S PAVING, INC., etc., Appellee.
    No. 3D17-1310
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Vezina, Lawrence & Piscitelli, P.A., and W. Robert Vezina, III, Eduardo S. Lombard and Megan S. Reynolds (Tallahassee); Joseph W. Lawrence, II (Fort Lauderdale), for appellants.
    David A. Vukelja, P.A., and David A. Vukelja and Jarett A. de Paula (Ormond Beach), for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LOGUE, J.

The damages sought by P & S Paving, Inc. did not arise from the termination of the subcontract agreement. Accordingly, the remedy sought by P & S was not barred by the termination provision in the subcontract agreement. See Bernecker v. Bernecker, 60 So.2d 399, 406 (Fla. 1952) (Concluding that the law had been erroneously applied where it was determined that "the termination of the contract, even with proper notice, terminated rights already accrued under it at the time of such termination."); Chicago Title Ins. Co. v. Title Consultants, Inc., 472 So.2d 1380, 1381 (Fla. 2d DCA 1985) ("The termination of a contract in pursuance of a provision therein, even with proper notice, does not terminate the rights already accrued under it at the time of such termination.") (citation omitted). We affirm on all other points.

Affirmed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.


text:
    M.G., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1531
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    M.G., a juvenile, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See L.L. v. State, 189 So.3d 252 (Fla. 3d DCA 2016) (holding officer's testimony identifying substance in juvenile's possession as marijuana was admissible lay opinion based on officer's experience, personal knowledge, sensory perceptions, and everyday reasoning.) See also Smith v. State, 776 So.2d 957 (Fla. 3d DCA 2000) (holding that where contraband is within the exclusive possession of the defendant, knowledge of its presence may be inferred); Campbell v. State, 247 So.3d 102 (Fla. 2d DCA 2018) (same).


text:
    Joseph DIEUVIL, Appellant, v. ROYALE FLORIDA ENTERPRISES, INC., Appellee.
    No. 3D18-864
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Behren Law Firm, and Scott M. Behren (Weston), for appellant.
    COFFEY | BURLINGTON, and Susan E. Raffanello, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding: "When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.")


text:
    Hugo CONTRERAS and Marie N. Contreras, Appellants, v. The BANK OF NEW YORK MELLON, Appellee.
    No. 3D18-36
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Hugo Contreras and Marie N. Contreras, in proper persons.
    McCalla Raymer Leibert Pierce, LLC, and Curtis A. Wilson (Orlando), for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding: "When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.") See also New England Ins. Co. v. Int'l Bank of Miami, N.A., 537 So.2d 1025, 1025 (Fla. 3d DCA 1988) (holding: "Even though it consists only of citations of authority without further explanation, a per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court's opinion or not.")


text:
    Titus O. DODD, Petitioner, v. STATE of Florida and Cornita A. Riley as Chief of Orange County Corrections, Respondents.
    Case No. 5D18-3728
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 6, 2018
    Lisa J. Ramsey, of Ramsey Law PLLC, Lake Mary, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    No appearance for other Respondent.
   PER CURIAM.

Titus O. Dodd petitions this Court for a writ of habeas corpus seeking immediate release from the Orange County jail where he is presently incarcerated.

By way of background, Petitioner was previously arrested and found incompetent to proceed in cases 2017-CF-4793 and 2017-CF-7495. The trial court ordered the Agency for Persons with Disabilities to evaluate Petitioner to determine whether he could be restored to competency under conditional release. On June 29, 2018, the trial court rendered an amended order releasing Petitioner from custody based on its prior order adjudicating Petitioner incompetent to proceed because of intellectual disability or autism. The court found that Petitioner did not meet the criteria for commitment to a treatment facility but was in need of outpatient treatment. The court ordered Petitioner conditionally released.

On November 14, 2018, Petitioner was arrested on new charges for fleeing and attempting to elude, under case number 2018-CF-16199. At first appearance, the trial court set bond at $5000, and revoked his conditional release in case numbers 2017-CF-7495 and 2017-CF-4793.

This matter is controlled by Smith v. State , 247 So.3d 77 (Fla. 5th DCA 2018), where we stated:

[W]here ... a defendant has been found incompetent to proceed and is then released upon conditions and commits a new offense, section 916.17(2)[, Florida Statutes (2018),] leaves the trial judge with only two options: modify the conditions of release or involuntarily commit the defendant to DCFS for treatment.

Id. at 78 (quoting Douse v. State , 930 So.2d 838, 839 (Fla. 4th DCA 2006) ); accord Paolercio v. State , 129 So.3d 1174, 1175-76 (Fla. 5th DCA 2014) (citing Douse , 930 So.2d at 839 ).

Here, there is no evidence in the record as to whether Petitioner now meets the criteria for involuntary commitment. Therefore, the first appearance court's only option was to release Petitioner with the appropriate conditions. Nothing prevents the trial court from ordering a new evaluation to determine whether Petitioner now meets the criteria for involuntary commitment; however, Petitioner may not be held in jail solely to complete that determination.

For the reasons set forth above, we grant the petition and order the trial court to hold a hearing immediately to determine appropriate conditions of release and to consider ordering a new evaluation to determine whether Petitioner is now competent to proceed or whether he now meets the criteria for involuntary commitment.

PETITION GRANTED; IMMEDIATE HEARING ORDERED.

BERGER, EDWARDS and HARRIS, JJ., concur.


text:
    Susan SNITCOVSKY, Appellant, v. Craig SANGERMAN, Appellee.
    No. 3D17-2762
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellant.
    Egozi & Bennett, P.A., and Bernard L. Egozi and Isaac S. Lew, for appellee.
    Before LAGOA, LOGUE, and SCALES, JJ.
   PER CURIAM.

Finding there was no issue of material fact regarding Appellant's defenses, we affirm the summary judgment under review. Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.") (citations and quotations omitted); Roman v. Wells Fargo Bank, 143 So.3d 489, 490 (Fla. 5th DCA 2014) (Borrower's affidavit of non-receipt of default notice did not create genuine issue of material fact preventing summary judgment where note required only that notice be mailed and undisputed affidavit established notice was mailed); Parra de Rey v. Rey, 114 So.3d 371, 388 (Fla. 3d DCA 2013) (upholding summary judgment where party failed to establish material issue of fact regarding defense of duress).

Affirmed.


text:
    Abraham DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4951
    District Court of Appeal of Florida, First District.
    December 14, 2018
    Andy Thomas, Public Defender; Steven Seliger and Joel Arnold, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting judgment and sentence. However, we remand for the trial court to correct two scrivener's errors in the order of revocation. The order of revocation states Appellant committed two violations of condition 5. It should state that he violated conditions 9 and 32. The order of revocation also erroneously states that he "admitted to the violation allegations contained in the affidavit of violation." Instead, it should reflect that Appellant was tried and found guilty of violating probation.

AFFIRMED and REMANDED for entry of a corrected order.

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    Colandro Dewayne PETERS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-4668
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Colandro Dewayne Peters, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Lewis, Winokur, and Jay, JJ., concur.


text:
    Rodrick K. HOBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3750
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Rodrick K. Hobbs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Lewis, Winokur, and Jay, JJ., concur.


text:
    Chase Michael MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5141
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Andy Thomas, Public Defender, and L. Allen Beard, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Chase Michael Manning, appeals from a judgment and sentence on the charges of trafficking in methamphetamine, possession of a controlled substance, driving while license canceled, suspended, or revoked, possession of paraphernalia, resisting officer without violence, and leaving the scene of a crash involving damage. He raises two issues on appeal, as to the first of which we affirm without discussion.

Appellant's second issue is that chapter 893, Florida Statutes (2016), is unconstitutional on its face because it eliminates knowledge of the illicit nature of the controlled substance as an element of the offense. We affirm on the authority of State v. Adkins , 96 So.3d 412 (Fla. 2012).

AFFIRMED.

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Joseph M. WIPPEL, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D17-4912
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Joseph M. Wippel, pro se, Appellant.
    Norman Blessing, General Counsel, and Cristina Velez, Appellate Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   Per Curiam.

Wippel filed an appeal to the Reemployment Assistance Appeals Commission (RAAC) after he received two contradictory notifications concerning his application for reemployment assistance. RAAC dismissed the appeal as untimely, and Wippel now appeals that dismissal. RAAC concedes error, stating that it should not have dismissed the appeal if it was untimely due to overlapping agency orders. We accept this concession, and remand for a determination as to whether Wippel filed a belated appeal to RAAC due to confusion stemming from these orders. See Ellis v. Unemployment Appeals Comm'n , 73 So.3d 887, 890 (Fla. 4th DCA 2011).

REVERSED and REMANDED.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Michael MOBLEY, BY AND THROUGH His Father and Natural Guardian, David MOBLEY, Appellants, v. State of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D16-1502
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Floyd B. Faglie of Staunton & Faglie, PL, Monticello, for Appellants.
    Alexander R. Boler, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

This case is on remand from the Florida Supreme Court, which quashed our prior decision and directed reconsideration in view of its recent decision in Giraldo v. Agency for Health Care Administration , 248 So.3d 53 (Fla. 2018).

In Giraldo , the Florida Supreme Court held that federal law allows the Agency for Health Care Administration (AHCA) to lien only the past medical expenses portion of a Medicaid beneficiary's third-party tort recovery to satisfy its Medicaid lien. Id . at 56. Therefore, in accordance with the mandate from the supreme court, this cause is remanded to the Administrative Law Judge to reduce the awarded amount to $20,717.54 for satisfaction of AHCA's lien.

Rowe, Ray, and M.K. Thomas, JJ., concur.


text:
    Calvin Elvin COUNSIL, Appellant, v. Zeida ANDERSON, Appellee.
    No. 1D17-4049
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Robert Calvin Rivers, Law Offices of Robert Calvin Rivers, Jacksonville, for Appellant.
    Anadelle Marie Martinez-Mullen, Quigley House, Jacksonville, for Appellee.
   Per Curiam.

Appellant seeks review of the order extending a temporary injunction for protection against domestic violence for 90 days. We reverse because there was no factual basis to enter or extend the injunction because, as the trial court orally found, there had been no violence between the parties. Accordingly, even though the injunction has now expired, we remand for entry of an order vacating the injunction. See Pryor v. Pryor , 141 So.3d 1279, 1280 (Fla. 1st DCA 2014) (explaining that domestic violence injunctions are an exception to the usual rules of mootness because of the collateral consequences that flow from such injunctions) (quoting Rodman v. Rodman , 48 So.3d 1022 (Fla. 1st DCA 2010) ).

REVERSED and REMANDED with instructions

Lewis, Wetherell, and Wolf, JJ., concur.

      Appellant did not challenge the legal basis for extending the temporary injunction, so we need not decide that issue. However, for the trial court's benefit in subsequent cases, we note that "[s]ection 741.30 'does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction.' " Dietz v. Dietz , 127 So.3d 1279, 1280 (Fla. 1st DCA 2013) (quoting Bacchus v. Bacchus , 108 So.3d 712, 716 (Fla. 5th DCA 2013) ); see also § 741.30(5)(c), Fla. Stat. (authorizing the extension of a temporary injunction only when the final hearing is continued for good cause shown).


text:
    John Patrick TEEHAN, Appellant, v. FLORIDA EAST COAST RAILWAY, L.L.C., a Florida Corporation, Appellee.
    No. 1D18-430
    District Court of Appeal of Florida, First District.
    December 18, 2018
    James R. Holland II of Harrell & Harrell, P.A., Jacksonville, and Jessie L. Harrell of The Harrell Firm, Jacksonville, for Appellant.
    Thomas E. Bishop and Helen P. Roberson of Tanner Bishop, Jacksonville, and James F. Moseley, Jr., and Joni A. Poitier of Moseley, Prichard, Parrish, Knight & Jones, P.A., Jacksonville, for Appellee.
   Per Curiam.

John Teehan appeals a final summary judgment dismissing his Federal Employers' Liability Act action, see 45 U.S.C. § 51, in favor of Florida East Coast Railway, L.L.C. The trial court found that the statute of limitations barred Teehan's claim because he knew or should have known that he was injured more than three years before he filed suit. See 45 U.S.C. § 56. We find a factual dispute as to when Teehan should have discovered his injury that precludes summary judgment on this issue. See, e.g., Granfield v. CSX Transp., Inc. , 597 F.3d 474, 482-83 (1st Cir. 2010) ; see also Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000) ("Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law."). Because summary judgment may not be entered based on the statute of limitations, all evidentiary rulings premised on this issue are rendered moot.

REVERSED .

Lewis, Wetherell, and Winokur, JJ., concur.


author: Winokur, J.

text:
    Thomas E. KING, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-929
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Thomas E. King, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Thomas E. King appeals the denial of his second motion to correct illegal sentence.

We find that the trial court did not err in denying it, and affirm.

A jury found King guilty of aggravated battery, a second-degree felony normally punishable by up to fifteen years in prison. § 775.082(3)(d), Fla. Stat. In his commission of aggravated battery, the jury specifically found that he possessed a firearm, discharged a firearm, and caused great bodily harm, which required a twenty-five year minimum sentence and authorized a life sentence. § 775.087(2)(a), Fla. Stat. The State did not reclassify the aggravated battery to a first-degree felony under section 775.087(1), Florida Statutes. The trial court sentenced King to thirty years imprisonment, including a twenty-five year mandatory minimum sentence.

King filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), asserting that his sentence was illegal because his second-degree felony was not reclassified and he could not be sentenced in excess of the twenty-five year mandatory minimum. The trial court denied the motion, and we affirmed citing Hatten v. State , 152 So.3d 849, 850 (Fla. 1st DCA 2014) (" Hatten I "), which held that sentences in excess of the mandatory minimums under the 10-20-Life statute did not require any additional statutory authority. King v. State , 215 So.3d 1245 (Fla. 1st DCA 2016) (Table). Although we noted in the King opinion that Hatten I had been accepted for review by the Florida Supreme Court, King did not petition the supreme court for review of our decision. Hatten I was quashed by the supreme court, which held that any sentence in excess of the minimum mandatory must be supported by additional statutory authority. Hatten v. State , 203 So.3d 142, 146 (Fla. 2016) (" Hatten II ").

King then filed another Rule 3.800(a) motion, again contending that he could not be sentenced in excess of the twenty-five year mandatory minimum. King argued that our holding in Kelly v. State , 137 So.3d 2, 5 (Fla. 1st DCA 2014), did not comply with the language of the 10-20-Life statute. King never referenced his previous Rule 3.800(a) motion, or asserted that he was due relief based on our earlier opinion or Hatten II . When the trial court denied the motion as successive, King appealed.

If King is entitled to be resentenced under Hatten II , he did not make this argument to the trial court. Thus, the trial court did not err in denying his motion. See, e.g. , Martinez v. State , 211 So.3d 989, 992 (Fla. 2017) (holding that failure to argue a proper basis for relief in a Rule 3.800(a) motion does not permit relief on appeal).

Even if King made this argument, we would find that King is not entitled to relief. King's conviction was final before Hatten II was decided, so he is entitled to the benefit of that ruling only if Hatten II is retroactive. The supreme court discussed retroactivity in Mosley v. State , 209 So.3d 1248, 1276 (Fla. 2016), as follows:

[A] change in the law does not apply retroactively "unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance." ... Put simply, balancing fairness versus finality is the essence of a Witt retroactivity analysis.

Id. (quoting Witt v. State , 387 So.2d 922, 931 (Fla. 1980) ).

Hatten II , while emanating from the Florida Supreme Court, was not "constitutional in nature," but decided which interpretation of a statute best effected legislative intent. Additionally, it was not fundamentally significant nor did it seriously affect the fairness of sentences; it held that a first-degree felony was punishable by life in prison (or any term of years) if the twenty-five year mandatory minimum sentence of the 10-20-life statute applied, so long as whatever sentence the trial court wished to impose was called a mandatory minimum sentence. Hatten II, 203 So.3d at 146. Hatten II was not a significant development in this respect, since those entitled to resentencing under Hatten II could have the same sentences reimposed as a "mandatory minimum," which could actually lengthen their sentences by precluding gain-time. As such, King is not entitled to retroactive application of Hatten II . , Accordingly, the court did not err in denying King's motion.

AFFIRMED .

Bilbrey, J., concurs; Ray, J., concurs in result only.

      Abrogated by Hatten II .

      We do not decide whether the result here might have been different if King had sought supreme court review of our decision affirming the denial of his first Rule 3.800(a) motion. As it is, our decision in that case was final before Hatten II was decided.

      We make clear here that a defendant whose sentence is final before an opinion interpreting a relevant sentencing statute is issued may not receive the benefit of that opinion unless it is proved that the opinion requires retroactive application. A defendant may not simply argue that the new opinion renders his or her previously-imposed sentence "illegal," entitling the defendant to resentencing under Rule 3.800(a) (authorizing a "motion to correct illegal sentence") unless it is demonstrated that the new opinion is retroactive. Rule 3.800(a) does not provide a substitute for retroactivity analysis. See McCuiston v. State , 534 So.2d 1144, 1146 (Fla. 1988) (holding that a later construction of a statute, which would render particular sentences impermissible, does not entitle defendants to relief after their sentences became final unless the decision is deemed to apply retroactively). Generally, if the sentence was not illegal at the time it was imposed, the defendant is not entitled to relief under Rule 3.800(a) by virtue of a later-decided case. This is especially true where, as here, a binding opinion at the time of sentencing permitted the sentence.


text:
    Timothy THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0625
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Timothy Thompson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant, Timothy Thompson, appeals from an order denying a motion seeking additional jail credit brought pursuant to Florida Rule of Criminal Procedure 3.801. Insofar as the Appellant requests presentencing jail credit in Okaloosa County case 2015-CF-1626, the record reflects that he is due one additional day of credit, for a total of 328 days. In response to this Court's Toler order, the State conceded his entitlement to this credit. Therefore, we reverse and remand to permit the trial court to correct his credit in that case accordingly. As to the Appellant's remaining claims concerning case 2015-CF-1626 and all claims seeking credit in Okaloosa County case 2015-CF-0673, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED .

Wolf, Makar, and M.K. Thomas, JJ., concur.

      Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    Paul WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0853
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting judgment and sentence. However, we remand for the trial court to correct two scrivener's errors in the order of revocation. The order of revocation states Appellant violated condition 2 of the order of probation. It should state that he violated special condition 2. The order of revocation also erroneously states that he "admitted to the violation noted in the Violation/Affidavit." Instead, it should reflect that Appellant was tried and found guilty of violating probation.

AFFIRMED and REMANDED for entry of a corrected order.

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    Timothy HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4543
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Timothy Hutchinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED. See Daily v. Soloway , 125 So.3d 363 (Fla. 1st DCA 2013) (dismissing untimely appeal where appellant argued prison officials prevented him from timely filing appeal); Brigham v. State , 769 So.2d 1100 (Fla. 1st DCA 2000) (explaining that petition for belated appeal is proper avenue for relief where order on postconviction motion was not received until after time to appeal had expired).

Roberts, Ray, and Bilbrey, JJ., concur.


text:
    Charles CAUSEY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3486
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Brett S. Chase, of Chase Law Florida, P.A., St. Petersburg, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 3, 2016 order denying motion to withdraw plea and judgment and sentence rendered in Case No. 2015-CF-1345-A-X, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, WALLIS and HARRIS, JJ., concur.


text:
    Paul WHITE, Appellant, v. STATE of Florida, Julie L. Jones, Secretary, Florida Department of Corrections, et al., Appellees.
    No. 1D18-0585
    District Court of Appeal of Florida, First District.
    December 19, 2018
    Paul White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellees.
   Per Curiam.

AFFIRMED . James v. Jones , 244 So.3d 352 (Fla. 1st DCA 2018) ; Zuluaga v. State, Dep't of Corr. , 32 So.3d 674 (Fla. 1st DCA 2010).

B.L. Thomas, C.J., Jay, J., and Long, JR., Robert E., Associate Judge, concur.


text:
    Alonzo M. HEARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2906
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 18, 2018
    Alonzo M. Heard, Defuniak Springs, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Chapman v. State, 14 So.3d 273 (Fla. 5th DCA 2009).

ORFINGER, BERGER and HARRIS, JJ., concur.


text:
    Justin A. FRANCESCHI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3290
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Justin A. Franceschi, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Justin Franceschi appeals an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Franceschi raised three claims. The trial court properly denied Franceschi's first claim but failed to address claims two and three. Accordingly, we remand for the trial court to rule on these claims.

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

TORPY, EVANDER and EISNAUGLE, JJ., concur.


text:
    Adekemi Daniella AYENI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3226
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Daniel Martinez, of Law Offices of Daniel Martinez, PLLC, Melbourne, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Adekemi Daniella Ayeni appeals the summary denial of her Florida Rule of Criminal Procedure 3.801 motion for jail credit. The trial court's calculations are incorrect, and therefore, we reverse and remand for the correction of Ayeni's written sentence to reflect the proper amount of jail credit awarded.

Ayeni pled no contest to various charges and was sentenced to thirty-six months in prison with 196 days of time served credit. Ayeni filed a timely rule 3.801 motion, claiming entitlement to an additional 200 days of time served. The trial court denied the motion, concluding that Ayeni was only entitled to 182 days' credit but had actually received 196 days of time served credit. The trial court calculated the credit as follows:

April 8, 2017 to April 24, 2017 = 20 days
August 21, 2017 to March 1, 2018 = 162 days
Total: 182 days

"A court may correct a final sentence that fails to allow a defendant credit for all of the time he or she spent in the county jail before sentencing as provided in section 921.161, Florida Statutes." Fla. R. Crim. P. 3.801 ; see § 921.161, Fla. Stat. (2018) ("[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.").

The order revoking Ayeni's bond was rendered on August 18, 2017, although it is dated August 21, 2017. We assume the later date is a scrivener's error and that Ayeni's bond was revoked on August 18, 2017. That results in the following jail credit calculations:

April 8, 2017 to April 24, 2017 = 17 days
August 18, 2017 to March 1, 2018 = 196 days
Total: 213 days

Ayeni is entitled to a total of 213 days of credit time served and was only awarded 196 days. Therefore, we reverse for entry of a corrected written sentence that reflects the proper amount of jail credit awarded.

REVERSED and REMANDED.

ORFINGER, WALLIS and GROSSHANS, JJ., concur.

      These dates would actually allow credit of 17 days and 193 days for a total of 210 days.


text:
    Travis HOWARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-940
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    James S. Purdy, Public Defender, and Sean Kevin Gravel and Thomas J. Lukashow, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Travis Howard's convictions for attempted manslaughter by act and robbery with a firearm discharge without further comment. However, we remand for entry of an appropriate written competency order, nunc pro tunc, consistent with the trial court's oral findings. See Rumph v. State, 217 So.3d 1092, 1095 (Fla. 5th DCA 2017). Additionally, the judgment incorrectly lists attempted manslaughter by act as a life felony when it is a third-degree felony. See §§ 777.04(4)(a); 782.07(1), Fla. Stat. (2016). The judgment also lists robbery with a firearm as a first-degree felony when it is a first-degree felony punishable by life. § 812.13(2)(a), Fla. Stat. (2016). On remand, these scrivener's errors shall be corrected. No resentencing is required.

AFFIRMED and REMANDED.

ORFINGER, TORPY and EVANDER, JJ., concur.


text:
    E.M., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3048
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Pursuant to the State's appropriate concession of error, we remand for the trial court to conform the amended written disposition order entered in lower court case number 2016-CJ-2438 to its oral pronouncement regarding the term of confinement. E.M.'s amended disposition orders are otherwise affirmed.

AFFIRMED; REMANDED for correction of amended disposition order.

EVANDER, EDWARDS and HARRIS, JJ., concur.


text:
    Alford Jerome STATEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-938
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence imposed by the trial court following Appellant's violation of probation trial. However, we remand for the entry of a written order revoking Appellant's probation that specifies the condition of probation that Appellant was found to have violated. See Rey v. State , 904 So.2d 566, 566 (Fla. 4th DCA 2005) (remanding "for entry of a written order of revocation of probation specifying the conditions [of probation] appellant was found to have violated").

AFFIRMED; REMANDED for entry of written order of revocation of probation.

WALLIS, LAMBERT, and GROSSHANS, JJ., concur.


text:
    Jayadeva CHOWDAPPA, M.D., Appellant, v. PRIMECARE, LLC, Appellee.
    Case No. 5D18-1924
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 26, 2018
    Liben M. Amedie, of The Liben Law Firm, Tampa, for Appellant.
    Scott A. Frick, of Frick Law Group, P.A., Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Carter Realty Co. v. Roper Bros. Land Co. , 461 So.2d 1029 (Fla. 5th DCA 1985).

ORFINGER, EVANDER and EISNAUGLE, JJ., concur.


text:
    Paul BOUNAUITO and Diane Bounauito, Appellants/Cross-Appellees, v. PNC BANK, NATIONAL ASSOCIATION, Appellee/Cross-Appellant.
    Case No. 5D17-1324
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 26, 2018
    Beau Bowin, of Bowin Law Group, Indialantic, for Appellants/Cross-Appellees.
    William L. Grimsley, N. Mark New, II, Kimberly Held Israel, Joseph A. Apatov and Derek K. Mountford, of McGlinchey Stafford, Jacksonville, for Appellee/Cross-Appellant.
   PER CURIAM.

AFFIRMED. See In re Failla, 838 F.3d 1170 (11th Cir. 2016) ;

Rivera v. Bank of Am., N.A., 190 So.3d 267 (Fla. 5th DCA 2016).

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Edward Leonard COLTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5654
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Andy Thomas, Public Defender; Steven L. Seliger and Joel Arnold, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges an amended order revoking his probation based solely on a new law violation. We affirm the amended revocation order without comment. Appellant also challenges the trial court's denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion that requested additional jail credit on his violation of probation sentence. We reverse and remand on that issue. On remand, the trial court should calculate Appellant's jail credit from September 25, 2016, the date of arrest on the new law violation, to December 1, 2016, the date of sentencing. See § 921.161, Fla. Stat. (2016) ; Kendrigan v. State , 941 So.2d 529, 529 (Fla. 4th DCA 2006) ("Appellant is entitled to credit for time served in jail from the date of his arrest for the new offenses if the new offenses constituted the basis for the revocation of probation in the instant cases."); see also McCool v. State , 211 So.3d 304, 305 (Fla. 1st DCA 2017).

AFFIRMED in part, REVERSED in part, and REMANDED.

Roberts, Rowe, and Winokur, JJ., concur.

      We disagree with the State that awarding additional jail credit on Appellant's violation of probation sentence could result in improper pyramiding under the logic of Ransone v. State , 48 So.3d 692, 694 (Fla. 2010). See Bagley v. State , 96 So.3d 1119, 1121 (Fla. 5th DCA 2012) (Lawson, J., concurring specially) (recognizing under Ransone that the defendant was not entitled to additional jail credit on a violation of probation sentence that was imposed consecutively to a sentence on the new law violation that formed the basis for revocation of probation). Here, Appellant ultimately received concurrent sentences on the new law violation and violation of probation, rendering this case one of the exceptions discussed in Bagley . 96 So.3d at 1121 (recognizing an exception to Ransone in cases where the trial court imposes the violation of probation sentence concurrently with the sentence on the new law violation).


text:
    Cory KELSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2772
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Perez v. State , 919 So.2d 347, 359 (Fla. 2005) (noting that an issue never presented to the trial court in a motion to suppress or in the corresponding hearing is not properly preserved for appellate review).

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


author: PER CURIAM

text:
    IN RE: Frank Stanton HARDEE, III
    NO. 2018-B-1555
    Supreme Court of Louisiana.
    November 14, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent pleaded no contest to multiple misdemeanors arising from alcohol-related, offensive conduct, in violation of Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Frank Stanton Hardee, III, Louisiana Bar Roll number 30325, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be subject to a period of probation to coincide with the remaining term of his monitoring agreement with the Judges and Lawyers Assistance Program. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

CRICHTON, J., dissents, would reject petition for consent discipline, and assigns reasons:

I would reject the petition for consent discipline in this matter, as I find it unduly harsh. The Louisiana Constitution vests this Court with original jurisdiction in all "disciplinary proceedings against a member of the bar." La. Const. art. V, § 5 (B). Notwithstanding the fact that petitioner and the Office of Disciplinary Counsel have submitted this matter as a joint petition for consent discipline, I believe - as our Constitution provides - that the seven justices determine if violations of the Rules of Professional Conduct have been proven by clear and convincing evidence and, if so, the appropriate punishment after consideration of applicable aggravating and mitigating circumstances. While I do not condone Mr. Hardee's conduct in any form, in my view, he has satisfied all requirements imposed upon him as a result of these proceedings. Considering the lack of any previous disciplinary record and the positive contributions by Mr. Hardee to his community, I find that in this particular instance, as I have in others, the consent discipline is too severe in light of petitioner's misconduct. See In Re: John Roumain Peters III , 15-775 (La. 5/22/15), 165 So.3d 916 (Crichton, J., would reject petition for consent discipline as unduly harsh); and In Re: Jesse Phillip Terrell, Jr., 15-B-0499 (La. 5/1/15), 166 So.3d 238 (Crichton, J., would reject petition for consent discipline as unduly harsh). Thus, I would instead order a lesser punishment tailored to fit the circumstances surrounding the violations of Rules of Professional Conduct 8.4(a) and (b).

GENOVESE, J., dissents for the reasons assigned by Justice Crichton.


author: PER CURIAM:

text:
    STATE EX REL. Spencer GILMORE v. STATE of Louisiana
    No. 2018-KH-0011
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    SHAW A/C & ELECTRICAL, LLC v. LIBERTY BANK & TRUST COMPANY
    NO. 2018-CC-1101
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM

Granted. The district court abused its discretion in denying plaintiff's motion to exclude defendant's untimely opposition and in continuing the hearing on the motion for partial summary judgment. See La. Code Civ. P. art. 966(B)(2) ; Newsome v. Homer Memorial Medical Center , 10-0564 (La. 4/9/10), 32 So.3d 800 ; Buggage v. Volks Constructors , 06-0175 (La. 5/5/06), 928 So.2d 536.

Accordingly, the judgment of the district court denying plaintiff's motion to exclude the opposition is reversed. The case is remanded to the district court which is directed to conduct a hearing on the motion for partial summary judgment without consideration of the untimely opposition.

JOHNSON, C.J., would deny.

WEIMER, J., would deny.


text:
    STATE EX REL. Richard B. WOODS v. STATE of Louisiana
    No. 2017-KH-1945
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

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

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


text:
    STATE EX REL. Kevin Lamont LOGAN v. STATE of Louisiana
    No. 2017-KH-1849
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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

Crichton, J., recused.