author: LOGUE, J.

text:
    Edelmo ESCALONA SOCARRAS, Appellant, v. Nadja Marcela BAZAN VASSALLO, Appellee.
    No. 3D17-2579
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    The Law Offices of Lizette Reboredo, P.A., and Lizette Reboredo, Miami, for appellant.
    Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   LOGUE, J.

Edelmo Escalona Socarras, the Former Husband, appeals entry of a final judgment dissolving his marriage to Former Wife Nadja Marcela Bazan Vassallo. We agree with the Former Husband that the trial court erred in concluding that an equity line of credit secured by the former husband's Miami Property, a nonmarital asset, effectively commingled funds and transformed the Former Husband's Miami Property into a marital asset. We reverse the trial court's classification of the Miami Property as a marital asset and its award of a fifty percent interest in the Miami Property to the Former Wife.

"A trial court's determination that an asset is marital or nonmarital involves mixed questions of law and fact. Although we defer to the trial court's factual findings if they are supported by competent, substantial evidence, we review the trial court's legal conclusions de novo." Gromet v. Jensen, 201 So.3d 132, 135 (Fla. 3d DCA 2015) (citing Valladares v. Junco-Valladares, 30 So.3d 519, 523 (Fla. 3d DCA 2010) ).

In 2003, the Former Husband purchased the Miami Property with nonmarital funds before he married the Former Wife. The couple married in late 2005. In 2007, the Former Wife moved from Peru to the United States and the Miami Property served as the marital home, but remained owned by, and titled in, the Former Husband's name alone. During the marriage, the Former Husband was the sole source of income and made all mortgage payments on the Miami Property. No evidence was presented that the Former Wife enhanced the value of the property through marital labor, made improvements to the home, or contributed financially.

During the marriage, the Former Husband obtained an equity line of credit in the amount of $89,000 for an investment in Peru, using the Miami Property as collateral. The investment did not yield any profit and resulted in financial loss. Approximately $72,000 of the investment was recovered, but $14,000 remained outstanding on the balance of the loan. The monies that were obtained from the equity line of credit were returned to that same line of credit, without the commingling of any marital funds.

Consequently, at trial, the Former Wife failed to establish that the Former Husband's Miami Property had been "transformed" to a marital asset. See Kaaa v. Kaaa, 58 So.3d 867, 872-73 (Fla. 2010) (concluding that a marital home that is nonmarital property is not transformed into a marital asset when encumbered by mortgage paid for with marital funds);

Higgins v. Higgins, 226 So.3d 901 (Fla. 4th DCA 2017) (concluding that use of marital funds to satisfy a marital debt secured by nonmarital property was not commingling, did not transform property into a marital asset, or cause property to lose nonmarital character); Fashingbauer v. Fashingbauer, 19 So.3d 401, 402 (Fla. 1st DCA 2009) (concluding that husband's use of nonmarital property to obtain a line of credit used to purchase marital property did not transform nonmarital property into marital property).

On these facts, only an enhancement in value of the Miami Property, if any, minus any indebtedness, would become a marital asset for equitable distribution purposes. See Kaaa, 58 So.3d at 871 (quoting Martin v. Martin, 923 So.2d 1236, 1238-39 (Fla. 1st DCA 2006) ) (holding "only the 'enhancement in value and appreciation' ... becomes a marital asset"); Higgins, 226 So.3d 901 (same); Macleod v. Macleod, 82 So.3d 147, 149 (Fla. 4th DCA 2012) (same).

Accordingly, we reverse the judgment on appeal to the extent it classifies the Miami Property as a marital asset and relies upon this classification in determining equitable distribution. We remand with directions to treat the Miami Property as the Former Husband's nonmarital asset. On remand, the Miami Property must be classified as a nonmarital asset and the trial court shall revisit the equitable distribution. The Former Wife is entitled to her share of the appreciation, if any, in value of the marital interest in the Miami Property. We affirm the remainder of the matters in the Final Judgment that are not impacted by this decision without further discussion.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Laura Ann CANCIO n/k/a Laura Ann Davis, Appellant, v. Juan Manuel CANCIO, Appellee.
    No. 3D18-345
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Law Offices of Robin Bresky, and Robin Bresky and Jeremy Dicker (Boca Raton), for appellant.
    Juan Manuel Cancio, in proper person.
    Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

Finding the issues raised in the current appeal virtually identical to the issues raised by appellant in her prior appeal which was affirmed, Cancio v. Cancio, Case No. 17-2774, 2018 WL 2230038 (Fla. 3d DCA May 16, 2018), we affirm here as well.

Affirmed.


author: EMAS, C.J.

text:
    David AUERBACH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2873
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Rachel Kamoutsas, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
   EMAS, C.J.

INTRODUCTION

David Auerbach appeals from a judgment and sentence for one count of second-degree murder (of his father) and two counts of aggravated elderly abuse (upon his mother and father). On appeal, Auerbach contends the trial court erred in failing to make an independent determination that he was competent to proceed to trial. The State concedes the trial court committed error and further concedes Auerbach is entitled to relief. However, the parties disagree over the nature of that relief: Auerbach contends he is entitled to a new trial (if and when he is properly determined competent); the State contends we should remand, not for a new trial, but for a nunc pro tunc competency determination. For the reasons that follow, we reverse and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND

This case arises from a physical altercation between David Auerbach and his elderly parents. Weeks after the altercation, Auerbach's father died, and Auerbach was charged with second-degree murder and two counts of aggravated abuse on an elderly person.

Following his arrest in July 2012, the trial court ordered psychological evaluations of Auerbach. Three doctors performed evaluations and submitted written reports on their findings. On January 9, 2013, the trial court held a hearing at which it was advised that two doctors agreed Auerbach was incompetent and the third doctor found Auerbach competent to proceed.

The matter was set for a formal competency hearing, which the trial court held on April 18, 2013. The three doctors' written reports were in the court file. No testimony was taken at the competency hearing. The State and defense simply stipulated to the contents of the doctors' reports and the judge thereafter concluded:

So, we've [sic] going to have a stipulation to incompetency in light of the reports by the doctors; that they would come in and testify consistent with their reports.

This oral finding of incompetency was followed by a written order adjudicating Auerbach incompetent to proceed, and Auerbach was committed to a forensic hospital.

Several months later, Auerbach returned from the hospital and was reevaluated by two of the doctors from his original competency evaluations. These evaluations were performed, and written reports prepared, in July 2013. One doctor opined Auerbach was competent, while the other doctor found him incompetent to proceed. A third doctor was appointed, and found Auerbach competent to proceed. The three doctors filed their written reports, and a final competency hearing was held on October 15, 2013. During the hearing, both parties stipulated that (1) the doctors would have testified consistently with their reports; and (2) Auerbach was competent to proceed. Judge Venzer found Auerbach competent to proceed to trial "based upon the stipulation of the parties." No written order was rendered adjudicating Auerbach competent.

In May 2015, Judge Venzer sua sponte disqualified herself from the case. Judge Tinkler-Mendez was assigned as the successor judge, and presided over the trial, which was held in June 2016, thirty-two months after the October 2013 competency hearing. The jury found Auerbach guilty on all counts.

ANALYSIS

"The procedure for determining a defendant's competency is governed by Florida Rules of Criminal Procedure 3.210 through 3.215." Hawks v. State, 226 So.3d 892, 893 (Fla. 4th DCA 2017). We review the lower court's judgment and its compliance with these rules de novo. Id.

As a general rule, an accused "is presumed sane when he enters the courtroom." Moreno v. State, 232 So.3d 1133, 1136 (Fla. 3d DCA 2017). However, once a trial court finds a defendant incompetent, the defendant is "presumed to remain incompetent until adjudicated competent to proceed by a court." Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014) (quotation omitted). A defendant who is adjudicated incompetent "may be committed for treatment to restore his competency to proceed." Id. at 677. That is precisely what happened here-Auerbach was found incompetent following a hearing, committed to a forensic hospital, and (several months later) reevaluated to determine whether he had been restored to competency.

When notified that a defendant's competency has been restored, a trial court must hold a hearing to make such a determination. Id. at 676. The hearing generally requires presentation of live testimony from experts, an independent determination of competency by the trial court, and entry of an order. Id.

In lieu of live testimony, however, the parties can stipulate that the expert witnesses, if called to testify at the hearing, would testify consistent with their written reports. Id. Importantly, the parties are not "stipulating" to competency. It remains for the trial court to make an independent legal determination of the defendant's competency in consideration of "the expert testimony or reports and other relevant factors." Moulton v. State, 230 So.3d 934, 937 (Fla. 2d DCA 2017) (quoting Dougherty, 149 So.3d at 678). Indeed, this court recently elaborated on this point in Hernandez v. State, 250 So.3d 183, 186-87 (Fla. 3d DCA 2018) :

There is nothing in the record to suggest that the trial court reviewed or considered the expert's report, or made an independent assessment or finding of Hernandez's competency. The record (and the single excerpt above) indicates instead that the trial court found Hernandez competent based solely upon the parties' stipulation. However, such a stipulation, while not unusual, is also not sufficient by itself for a valid determination of competency. In other words, a stipulation that the expert, if called as a witness, would testify consistently with the report, is not a stipulation to competency. Indeed, the parties cannot "stipulate" to a defendant's competency (or incompetence), as it is an independent legal determination for the trial court to make after consideration of the expert testimony or reports, and other relevant factors. Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014) ; Shakes v. State, 185 So.3d 679, 681 (Fla. 2d DCA 2016). The trial court's acknowledgment and acceptance of the parties' stipulation was insufficient to satisfy the requirements of rule 3.212 and principles of due process. More was required:
At the competency hearing, the court must make its own independent finding of competence or incompetence. If the parties and the court agree, the court may decide the issue based on the experts' reports without receiving any testimony. However, the court must regard the reports as advisory only. Further the court is not permitted to merely accept a stipulation of competence. In fact, acceptance of a stipulation is improper even when all the experts have opined that the defendant is competent, as other evidence may indicate incompetence.

(Quotations omitted).

The State properly and commendably concedes that the trial court failed to make an independent determination of Auerbach's competency, and that reversal is required. Therefore, the only remaining issue is the proper remedy on remand.

At the commencement of this appeal, both parties agreed the remedy on remand should be for a hearing on whether a retroactive competency determination is possible, specifically whether the trial court can discern from the record whether Auerbach was competent at the time of his June 2016 trial. The availability of such a remedy-under the appropriate circumstances-was recognized by the Florida Supreme Court in Dougherty, 149 So.3d at 678-79 :

Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial , if deemed competent to proceed on remand. A new trial is not always necessary where the issue of competency was inadequately determined prior to trial; a retroactive determination of competency is possible . However, as we have previously noted, the United States Supreme Court has cautioned that determining competency to stand trial retrospectively is inherently difficult, even under the most favorable circumstances. The chances of conducting a meaningful retrospective competency hearing decrease when experts must rely on a cold record. Nevertheless, in Mason, this Court held that a nunc pro tunc competency evaluation could be done where there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing . In Mason, this Court noted that [s]hould the trial court find, for whatever reason, that an evaluation of Mason's competency at the time of the original trial cannot be conducted in such a manner as to assure Mason due process of law, the court must so rule and grant a new trial. Thus, the remedy for a trial court's failure to follow the procedures discussed above depends on the circumstances of each case.

(Emphasis added, internal citations and quotations omitted). The parties also agreed that, should the trial court be unable to make such a determination, a new trial is required once the trial court formally determines Auerbach is competent to proceed.

However, the parties' agreement on the appropriate remedy was altered by this court's opinion in Losada v. State, 260 So.3d 1156 (Fla. 3d DCA 2018), issued after oral argument was held in this case. Based on the substantial similarity between this case and Losada, we ordered supplemental briefing on whether our decision in Losada requires us to reverse and remand for a new trial, or whether the trial court may still be permitted an opportunity to make a retroactive competency determination. Having considered the supplemental briefing, and upon our review of the entire record, we agree with Auerbach that Losada is indistinguishable in all relevant circumstances from the instant case, and that we are compelled to reverse and remand for a new trial.

Losada was charged in both Miami and Palm Beach with numerous counts of possession and transmission of child pornography. Id. at 1159-60, 2018 WL 6786818 at *1. In October 2012, the Palm Beach Circuit Court found Losada incompetent to proceed based on an expert report. The Miami-Dade Circuit Court relied on the same report to adjudicate Losada incompetent to stand trial.

In January 2014, after the Palm Beach Circuit Court found Losada was restored to competency, Losada was tried, found guilty, and sentenced.

Losada was then transferred to Miami-Dade for trial on his separate charges pending there. The Miami-Dade Circuit Court, having previously adjudicated Losada incompetent, appointed two doctors to examine Losada and evaluate whether he was now competent to proceed. Each doctor opined, in written reports prepared in late October and early November 2013, that Losada was competent to proceed to trial.

In December 2013, with the parties in possession of the doctors' reports, the trial court held a hearing at which Losada's attorney stated:

[Losada has] been evaluated by two different doctors. At this time both finding that he is competent. I will stipulate to the reports.

Id. at 1160-61, 2018 WL 6786818 at *2. Based on counsel's stipulation, the trial court found Losada competent to proceed to trial. No written order on the competency determination was rendered, nor did the trial court indicate it had reviewed the reports or made an independent determination of competency.

Twenty-eight months later, in April 2016, the case proceeded to trial where Losada was found guilty and sentenced.

Like Auerbach, Losada appealed his conviction and sentence arguing, in part, that the trial court failed to make an independent determination of his competency to stand trial. In Losada, we recognized that "there are situations where a new trial is unnecessary if the trial court can make a retrospective competence determination on remand, based on evidence available at the time of the trial." Id. at 1163, 2018 WL 6786818 at *4 (citing Dougherty, 149 So.3d at 679 ). Nevertheless, we rejected such a remedy, remanding instead for a new trial and concluding that, under these facts, a nunc pro tunc competency hearing "would not ensure that Losada's constitutional due process rights are met." Id. at 1164, 2018 WL 6786818 at *7.

Most significant to our analysis in Losada was the twenty-eight month gap in time between Losada's competency hearing (December 2013) and his trial (April 2016). "The competency hearing," we explained, "was not contemporaneous to trial." Id. at 1163, 2018 WL 6786818 at *4 (quoting Dougherty, 149 So.3d at 679 ). We also noted that the only evidence available to the trial court in making a nunc pro tunc competency determination would be the doctors' reports issued three years before trial. And like the competency hearing itself, those doctors' reports were not "contemporaneous with the trial" and, therefore, could not appropriately form the basis of a retroactive competency determination. Id. at 1163-65, 2018 WL 6786818 at *5 (quoting Dougherty, 149 So.3d at 679 ).

The case before us presents circumstances strikingly similar to those in Losada:

• In the instant case, as in Losada, Auerbach was initially found incompetent to proceed, and later found competent following an inadequate competency hearing.

• In the instant case, as in Losada, the trial court failed to make an independent competency determination, relying instead on a "stipulation" of competency by the parties.

• In the instant case, as in Losada, the trial court failed to render a written order on this determination.

• In the instant case, as in Losada, the doctors' evaluations were conducted, and reports prepared, nearly three years before trial; these medical experts did not "examine[ ] or observe[ ]" Auerbach "contemporaneous with the trial," meaning any nunc pro tunc hearing would require the trial court to "rely on a cold record." Id. at 1163, 2018 WL 6786818 at *4 (quoting Dougherty, 149 So.3d at 679 ).

• Finally, and most significantly, in the instant case, as in Losada, the ill-fated competency hearing was held years before the trial- a gap of twenty-eight months in Losada and a gap of thirty-two months in the instant case.

CONCLUSION

As the Florida Supreme Court reaffirmed in Dougherty, 149 So.3d at 679, a nunc pro tunc competency determination is appropriate where "there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing." (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986) ).

In the instant case, as in Losada, a nunc pro tunc competency determination is neither appropriate nor possible upon the record before us. We can find no principled basis upon which to distinguish Losada or to justify a remand for a nunc pro tunc competency determination. We therefore reverse and remand for a new trial following the trial court's proper determination that Auerbach has been restored to competency.

      Auerbach also asserts on appeal that: 1) the trial court failed to conduct a proper Faretta inquiry before permitting Auerbach to proceed pro se; and 2) his conviction for aggravated abuse upon his father should be vacated on double jeopardy grounds. Because we are reversing and remanding for a new trial on the competency issue, (and because Auerbach is represented by counsel) these two claims are moot.

      Review of the record shows that no additional competency evaluation was performed before or during trial.

      Lastly, we suggested that the reports' contents showed the doctors "were unaware of Losada's medical history or behavioral difficulties" from the original Palm Beach, competency determination. This factor is not pertinent to the facts in this case.


author: SCALES, J.

text:
    Carlos Luis Vasallo TOME, et al., Appellants, v. Victor HERRERA-ZENIL, etc., Appellee.
    No. 3D18-1391
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019.
    Dorta & Ortega, P.A., and Omar Ortega, Evelyn Reyes and Nicole Ruesca, Coral Gables, for appellants.
    FORS|Attorneys at Law, and Jorge L. Fors, Jr., for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   SCALES, J.

Carlos Luis Vasallo Tome, Cine Nostalgia, Inc. and Cine Estelar, Inc., the defendants below, appeal a non-final order denying their Florida Rule of Civil Procedure 1.061 motion to dismiss on forum non conveniens grounds. The order on review is an unelaborated order denying the appellants' rule 1.061 motion "for the reasons stated in the record," which we review for an abuse of discretion. See Rolls-Royce, Inc. v. Garcia, 77 So.3d 855, 859 (Fla. 3d DCA 2012).

The appellants argue that the trial court denied their rule 1.061 motion, which was supported by affidavits, without conducting the required analysis set forth in Kinney Systems, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996) (codified in rule 1.061 ). We agree. Where, as here, the trial court's written order failed to set forth any "meaningful analysis" addressing each of the Kinney factors, the hearing transcript on the rule 1.061 motion must reflect that the trial court engaged in "an adequate analysis of the Kinney factors during the hearing itself ...." Camperos v. Estrella, 126 So.3d 351, 351 (Fla. 3d DCA 2013) (quoting ABA Capital Mkts. Corp. v. Provincial de Reaseguros C.A., 101 So.3d 385, 388 (Fla. 3d DCA 2012) ); Levinson & Lichtman, LLP v. Levinson, 35 So.3d 182, 182 (Fla. 3d DCA 2010) (concluding the trial court abused its discretion in granting a rule 1.061 motion "because neither the order granting the motion nor the hearing transcript on the motion demonstrates the trial court performed a Kinney analysis"). The May 2, 2018 hearing transcript does not reveal a consideration of the Kinney factors.

The appellants further argue that the trial court should have held an evidentiary hearing to resolve purported conflicts between the parties' competing affidavits. On this point, we disagree. While, on remand, the trial court is free to conduct an evidentiary hearing, the lower court may decide a forum non conveniens motion "upon the submission of affidavits rather than live testimony." See Rolls-Royce, Inc., 77 So.3d at 859 n.4.

Accordingly, we reverse the trial court's order and remand the case so that the trial court may articulate its findings on each of the Kinney factors.

Reversed and remanded for further proceedings consistent with this opinion.

      This Court has recognized a limited circumstance that permits de novo appellate review where "the trial court did not address (and therefore did not exercise any discretion) regarding one or more of the Kinney factors." Ryder Sys., Inc. v. Davis, 997 So.2d 1133, 1135 (Fla. 3d DCA 2008). "In that situation, this court has the latitude to address the previously-unaddressed Kinney factors for the first time on appeal in the interest of judicial economy and efficiency." Id. We decline the appellants' invitation to conduct a de novo review in this case.

      In such an instance, the presumption of correctness given the trial court's finding is lessened "because the appellate court has everything the trial court had before it." Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 621 (Fla. 4th DCA 1999) (quoting Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA 1997) ); see Rolls-Royce, Inc., 77 So.3d at 859 n.4 ; Ryder Sys., Inc. v. Davis, 997 So.2d 1133, 1135 (Fla. 3d DCA 2008) ("Although we acknowledge that the presumption of correctness given to a trial court's ruling is lessened where ... the trial court's findings are based on affidavits rather than live testimony, we still give substantial deference to the trial court's decision, where its balancing of the Kinney factors is reasonable." (quoting Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 916 (Fla. 4th DCA 2008) ).


author: HENDON, J.

text:
    Juan ALLENDE, Appellant, v. Felicita VELOZ, Appellee.
    No. 3D18-10
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019.
    Law Offices of Karim Batista, P.A., and Karim Batista, for appellant.
    Felicita Veloz, in proper person.
    Before SALTER, LINDSEY, and HENDON, JJ.
   HENDON, J.

Juan O. Allende ("Father") appeals from an order, which among other things, denies his emergency motion for physical custody of his minor child ("Child") and to suspend the time-sharing of the Child's mother, Felicita Veloz ("Mother"). For the reasons that follow, we affirm.

The Mother and the Father divorced in 2010. Their final judgment of dissolution of marriage incorporated a mediated settlement agreement, which provides, in part, that they have shared parental responsibility pursuant to section 61.13 of the Florida Statutes ; sets forth a time-sharing plan; and provides that "[a]ny relocation of the Child is subject to and must be sought in compliance with section 61.13001, Florida Statutes."

In November 2015, the Mother relocated to Orlando with the Child after obtaining the Father's oral consent. This oral agreement, however, did not comply with section 61.13001, Florida Statutes (2015), which requires the relocating parent to: (1) obtain a written and signed agreement from the non-relocating parent consenting to the relocation, and thereafter, seek a court order ratifying the agreement, § 61.13001(2) ; or (2) file a petition to relocate containing specific information, which must be served on the non-relocating parent, and thereafter, obtain permission to relocate from the court, § 61.13001(3).

In November 2017, while the Child was in the Father's care for the Thanksgiving holiday pursuant to the parties' time-sharing plan, the Father filed an emergency motion, through counsel, alleging that based on his own observations and/or information provided to him by the Child, the Child was malnourished, did not maintain proper hygiene while in the Mother's care, and was having nightmares ("emergency motion"). In the emergency motion, the Father requested that the trial court enter an order that: (1) grants the Father physical custody of the Child; (2) suspends the Mother's time-sharing; (3) appoints a guardian ad litem to investigate the allegations in the emergency motion; and (4) refers the child to Family Court Services for individual therapy.

On November 26, 2017, the Father failed to return the Child to the Mother as scheduled. The following day, the Mother filed a verified emergency motion seeking an order to pick up the Child ("emergency pick-up motion").

On November 29, 2017, the trial court conducted a hearing on the Father's emergency motion and the Mother's emergency pick-up motion. Following the arguments of counsels, the trial court: (1) denied the Father's motion for physical custody of the Child; (2) denied the Father's motion to suspend the Mother's time-sharing, but modified the parties' time-sharing plan to address the transportation of the Child; (3) granted the Father's motion to appoint a guardian ad litem for the purpose of investigating the allegations and making appropriate recommendations to the trial court; (4) granted the Father's motion for referral to Family Court Services for the Child to begin individual therapy; and (5) denied the Mother's emergency pick-up order. In making its rulings, the trial court stated as follows:

I do not want to reward in any way the mother's violation of law. On the other hand, I loathe to disrupt the child's life by taking him out of the school, the place where he has resided with the father's acquiescence, and bring him to Miami for an indefinite period of time when we don't know whether there is going to be a relocation hearing, whether there's going to be an agreement reached, et cetera.

The trial court specifically found that it was permitting the child to go back to Orlando with the Mother "solely" because it was "the least disruptive means of dealing with the child at this time and is in the best interest of the child." The trial court further stated: "I am specifically finding that this is not an oral granting [of] a temporary relocation." Prior to the completion of the hearing, the trial court obtained a commitment from the Mother's counsel that the Mother would be filing a petition to relocate under section 61.13001 as soon as possible to bring this matter to a final resolution. On December 1, 2017, the trial court entered a written order consistent with its oral pronouncements, which states, in part: "This order shall not be construed as an order retroactively granting temporary relocation of the child, as no such petition or motion has ever been filed."

Two weeks after the hearing, the Mother, as promised, filed a petition to relocate under section 61.13001. Thereafter, the Father timely appealed the December 1, 2017 order.

The Father contends that the trial court's decision to allow the Child to remain with the Mother in Orlando pending final disposition amounts to a "temporary relocation" of the Child under section 61.13001(6)(b), and that the trial court erred by granting the "temporary relocation" because a "temporary relocation" cannot be granted unless a petition to relocate has been filed. We disagree.

As stated above, the Mother relocated with the Child without a written agreement of the parties or court approval, as required by sections 61.13001(2) and (3). Section 61.13001(3)(e) sets forth the consequences for relocating a child without complying with the statutory relocation procedures. Section 61.13001(3)(e) provides that the failure to comply with the statutory relocation procedures subjects the violating party to either (1) contempt proceedings, or (2) other proceedings to compel the return of the child. Although section 61.13001(3)(e) provides that the violating party is subject to these proceedings, the statute does not mandate a specific result. Thus, the trial court's determinations as to whether the violating parent should be held in contempt or whether to compel the return of the child are discretionary.

Section 61.13001(6)(a) also addresses the relocation of a child without a written agreement of the parties or court approval. Specifically, a court is authorized, but not required, to enter a temporary order requiring "the return of the child, if a relocation has previously taken place." § 61.13001(6)(a) (providing that "[t]he court may ... order the return of the child, if a relocation has previously taken place") (emphasis added). Further, section 61.13001(6)(a) 2. authorizes a court to "order other appropriate remedial relief, if the court finds: ... 2. That the child has been relocated without a written agreement of the parties or without court approval[.]" (emphasis added).

In the instant case, as stated earlier, the trial court denied the Father's motion for physical custody of the Child and motion to suspend the Mother's time-sharing, but granted the Father's motion to appoint a guardian ad litem and motion for referral to Family Court Services. During the hearing, the trial court stated that it would allow the Child to remain with the Mother in Orlando because it did not want to disrupt the Child's schooling and it was "the least disruptive means of dealing with the child at this time and is in the best interest of the child." The trial court's order further states: "This order shall not be construed as an order retroactively granting temporary relocation of the child, as no such petition or motion has ever been filed." Thus, based on the trial court's statements and the order under review, it appears that the trial court was attempting to fashion "other appropriate remedial relief" as permitted by section 61.13001(6)(a) 2., and was not granting a temporary relocation under section 61.13001(6)(b).

Section 61.13001(6)(b) provides that a trial court is permitted to grant a "temporary order permitting the relocation pending final hearing" if the trial court finds that the relocating parent has filed a proper petition to relocate under section 61.13001(3) and , following an evidentiary hearing, the trial court finds that there is a "likelihood that on final hearing" it "will approve the relocation of the child[.]" Although the Father is correct that a trial court cannot grant a "temporary relocation" under section 61.13001(6)(b) unless a petition to relocate has been filed, it appears that the trial court recognized this-"This order shall not be construed as an order retroactively granting temporary relocation of the child, as no such petition or motion has ever been filed"-and instead may have been attempting to fashion "other appropriate remedial relief" under section 61.13001(6)(a) 2. Prior to the conclusion of the hearing, the trial court recognized that removing the Child from his school in Orlando would be disruptive; obtained a commitment from the Mother that she would file a petition to relocate; acknowledged that the appointment of a guardian ad litem was necessary to investigate the allegations in the Father's emergency motion; and in the interim, referred the Child to Family Court Services for individual therapy.

In support of his argument, the Father cites to cases for the proposition that a trial court cannot grant a "temporary relocation" unless the relocating parent has first filed a proper petition to relocate under section 61.13001(3). However, those cases are distinguishable because the "temporary relocation" was pursuant to section 61.13001(6)(b). For example, in Raulerson v. Wright, 60 So.3d 487 (Fla. 1st DCA 2011), the mother verbally notified the father of her intent to relocate with the child. In response, the father filed an emergency motion to enjoin the relocation. Raulerson, 60 So.3d at 488. A few days later, the mother hand-delivered to the father an unsworn "Notice of Intent to Relocate With Child," but did not file the notice with the court. Id. The following day, the mother and child relocated. Id. On the same day of the relocation, the father served a notice of hearing on the mother noticing the father's emergency motion to enjoin. Id. Prior to the scheduled hearing, the father filed a motion for contempt and a motion for return of child to the father. Id. However, the motion for contempt and motion for return of child were not noticed for hearing. Id.

At the scheduled hearing, the parties limited their testimony to the father's motion to enjoin and did not address whether relocation would be in the best interest of the child. Id. However, at the hearing, the mother verbally requested permission to relocate. In response, the father argued that the granting of a temporary relocation would be improper because the mother had not complied with the requirements of section 61.13001. Id. The trial court granted the mother's oral request to temporarily relocate, stating that the mother had "substantially complied" with the requirements of section 61.13001, and there was a likelihood that the relocation of the mother and the child would be granted at the final hearing. Id. at 488-89. The father's appeal followed.

The First District addressed whether the trial court properly granted the mother's oral motion to relocate under section 61.13001(6)(b), which provides as follows:

(6) Temporary order.-
....
(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and
2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.

The First District reversed the portion of the order granting the mother's oral motion to relocate, concluding as follows:

The [m]other's efforts in this case were inadequate because she failed to comply with the threshold requirement of properly filing a sworn petition [to relocate] with the trial court. See § 61.13001(6)(b) 1. Rather, she merely hand-delivered to the [f]ather an unsworn "Notice of Intent to Relocate With Child" one day before relocating. The [m]other did not file any form of documentation with the court, despite the statute's explicit directive to file a sworn petition. Thus, she failed to comply with the statute and should not have been granted permission to relocate.

Raulerson, 60 So.3d at 490.

Raulerson is distinguishable from the instant case. In the instant case, it appears that the trial court's decision to allow the Child to remain with the Mother was not pursuant to section 61.13001(6)(b). First, the Mother did not request that the trial court grant a temporary motion to relocate under section 61.13001(6)(b). Second, the trial court recognized that it could not grant a temporary relocation under section 61.13001(6)(b) because the Mother had not filed a petition to relocate-"This order shall not be construed as an order retroactively granting temporary relocation of the child, as no such petition or motion has ever been filed."

In the instant case, it appears that the trial court was traveling under section 61.13001(6)(a) 2., which provides, in part, as follows: "(6) The court may ... order other appropriate remedial relief, if the court finds: 2. That the child has been relocated without a written agreement of the parties or without court approval[.]" Thus, the Father's reliance on Raulerson is misplaced.

In conclusion, sections 61.13001(3)(e) does not mandate that a child must be returned to the non-violating parent when the other parent relocates without following the requirements of section 61.13001. Thus, the trial court has certain discretion in fashioning appropriate relief in such situations. In the instant case, the trial court did not abuse its discretion in denying the Father's emergency motion to for physical custody of the Child and to suspend the Mother's time-sharing. The trial court recognized that (1) the Child relocated with the Father's acquiescence two years earlier; (2) requiring the Child to return to Miami would disrupt his schooling; and (3) appointing a guardian ad litem was necessary to address the allegations in the Father's emergency petition. Further, although the allegations in the Father's emergency petition are serious, the trial court had before it the Child's medical records, which gave no indication that the Child was malnourished, and the Child's school records, which indicates that he was doing well in school at the time of the hearing. Finally, prior to the conclusion of the hearing, the trial court obtained a commitment from the Mother that she would file a proper petition to relocate under section 61.13001(3). Accordingly, we affirm the non-final order under review.

Affirmed.

      At the hearing, the Child's medical and school records were introduced. The medical records do not reflect any concerns regarding the Child, and the school records reflect that the Child is performing well in school.

      The written order does not refer to the Mother's oral commitment to file a petition to relocate.

      Although the Mother filed a petition to relocate two weeks later, at the time of the hearing, there was no pending petition to relocate.

      Section 61.13001(3)(e) provides:
      Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or postjudgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule as:
      1. A factor in making a determination regarding the relocation of a child.
      2. A factor in determining whether the parenting plan or the access or time-sharing schedule should be modified.
      3. A basis for ordering the temporary or permanent return of the child.
      4. Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorney's fees incurred by the party objecting to the relocation.
      5. Sufficient cause for the award of reasonable attorney's fees and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child.

      In addition to being subject to "contempt and other proceedings to compel the return of the child," section 61.13001(3)(e) also provides that the fact that a parent relocated without complying with the relocation procedures "may be taken into account by the court in any initial or postjudgment action seeking a determination or modification of the parenting plan or access or time-sharing schedule[.]" (emphasis added).

      The record before this Court indicates that the Mother filed her petition to relocate prior to the Father filing his notice of appeal. Had the Father not appealed, the trial court by now would have most likely made a final determination as to the Mother's petition to relocate.


text:
    Luis A. BENITES, Appellant, v. David BARRERA III, Appellee.
    No. 3D18-0008
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Luis A. Benites, in proper person.
    David Barrera III, in proper person.
    Before SALTER, SCALES and MILLER, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1980) (holding that, in the absence of an adequate record of the proceedings below, an appellate court must affirm the trial court's judgment).


author: LINDSEY, J.

text:
    Monique ABITBOL, Appellant, v. Alberto BENARROCH, Turnberry Isle North One Corporation, et al., Appellees.
    Nos. 3D17-1725 3D17-1053
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Becker & Poliakoff, P.A., and Evan B. Berger, Allen M. Levine, and Daniel L. Wallach (Ft. Lauderdale), for appellant.
    Rosenthal, Rosenthal, Rasco, LLC, and Eduardo I. Rasco, and Steve M. Bimston, for appellees.
    Before EMAS, C.J., and SALTER and LINDSEY, JJ.

      Chief Judge Emas did not participate in Oral Argument.

   LINDSEY, J.

Monique Abitbol ("Abitbol") appeals two amended orders granting motions to dismiss with prejudice various counts from her Second Amended Complaint for Equitable Relief and Damages (the "Second Amended Complaint"). For the reasons set forth below, we affirm.

I. INTRODUCTION

In Case No. 3D17-1053, Abitbol appeals the trial court's September 27, 2018 Amended Order Granting Motion to Dismiss Counts II, III, VI, VII, VIII, IX, X, XII, XIII, and XV with Prejudice as against Defendants Las Princesas Corp. ("Las Princesas"), Turnberry TS2 Corp. ("TS2"), Turnberry Isle 8D Corp. ("8D"), Alberto Benarroch ("Alberto"), and Esser Melul ("Melul").

In Case No. 3D17-1725, Abitbol appeals the trial court's September 27, 2018 Amended Order Granting Motion to Dismiss with Prejudice Counts VII, VIII, IX, X, XIV, and XV as against Defendants Turnberry Isle North One Corp. ("North One"), Turnberry Isle North Two Corp. ("North Two"), North 7C Corp. ("7C"), Turnberry 8C Corp. ("8C"), Miami Alone Properties Corp. ("Miami Alone"), Isaac Industries, Inc. ("Isaac"), and Molly and David Avan (the "Avans"). By order of this Court, the cases were consolidated for all appellate purposes.

II. FACTUAL AND PROCEDURAL HISTORY

Alberto Benarroch and Monique Abitbol were married in 1994. At the time, Abitbol was a Canadian resident living in Canada and Alberto, a resident of both Canada and Venezuela, was living in Venezuela. Shortly after the wedding, however, Abitbol decided to move to Venezuela to be with Alberto. The couple remained in Venezuela for approximately six years until safety concerns led Abitbol to move to the United States. From thereon, Abitbol and the couple's children moved back and forth between Miami, Venezuela, and Ontario while Alberto remained in Venezuela. Their marriage began to deteriorate and the couple separated in 2013. Two years later, Alberto commenced marriage dissolution proceedings in Ontario, Canada, where Abitbol and the couple's children had been residing for the previous six years.

In her Answer in the divorce proceedings, Abitbol sought full custody of the five youngest children, child support, spousal support, exclusive possession of the marital home, and a greater than equal share of the net family properties. Abitbol also requested that a worldwide preservation order be entered against Alberto and his close associates. Based on information and belief, Abitbol alleged that in the years leading up to the divorce, Alberto diverted and concealed his income and assets for the purpose of defeating any entitlement that she might claim.

She alleged that he used the named entities and his close associates to hold his assets in trust. Those parties were Jacob Benarroch ("Jacob"), Louis R. Montello ("Montello"), HPI Administrative Services LLC ("HPI"), Hercules Products Inc. ("Hercules"), TS2, Miami Alone, Plasticos Hercules CA ("Plasticos"), Productos Hercules CA ("Productos"), Las Princesas, and Rafael Benarroch ("Rafael"). As proof, she pointed to the fact that the named entities were either in Alberto's, Jacob's, Rafael's, or Montello's name. Jacob, who was 83 years old and retired at the time, is Alberto's father, Rafael is Alberto's brother, and Montello is Alberto's lawyer.

On November 26, 2015, the Ontario Family Court granted Abitbol's ex parte motion and issued a Mareva injunction. The Mareva injunction prohibited Alberto, Jacob, Rafael, Montello, HPI, Hercules, TS2, Miami Alone, Plasticos, Productos, and Las Princesas from "transferring, alienating, assigning, mortgaging, encumbering, pledging, disposing of, or otherwise dealing with any property of any kind in any jurisdiction worldwide" in which Abitbol may claim an interest. The order also listed an adjournment date of December 7, 2015.

The following day, Abitbol filed a complaint in Miami-Dade County to enforce the Mareva injunction as it pertains to property interests in Florida. Yet, Abitbol did not seek enforcement alone. She also brought claims for violations of Florida's Uniform Fraudulent Transfer Act ("FUFTA"), conspiracy to commit violations of FUFTA, constructive fraud, unjust enrichment, and injunctive relief. The complaint named six defendants. Of those listed, only Alberto, Jacob, TS2, and Las Princesas were also named in the Mareva injunction. The remaining two defendants, Melul and 8D, had no involvement with the proceedings in Canada prior to being named a party defendant in the Florida action.

On December 7, 2015, the Ontario Family Court reconvened. Pursuant to that hearing, the court filed an endorsement removing TS2 and Miami Alone from the scope of the Mareva injunction. The court removed both corporations having found "no connection" between Alberto and them. The injunction was still preserved with respect to other parties, including Alberto, Jacob, and Las Princesas. Following the endorsement, Abitbol filed an amended complaint. The Amended Complaint was substantively indistinguishable from the original Complaint but added a claim seeking to enforce the Mareva injunction as to Jacob.

On September 16, 2016, Alberto, Las Princesas, TS2, 8D, and Melul filed a Motion to Stay or Abate the case pending final determination of the marriage dissolution proceedings in the Ontario Family Court. Abitbol opposed the proposed stay, arguing that because the Ontario Court has no jurisdiction through its interlocutory injunction over the disputed property in Florida, "a stay order would prevent [her] from reversing the fraudulent transfers." Then, on December 5, 2016, Abitbol filed a Motion to File a Second Amended Complaint, which the trial court subsequently granted the following day. The Second Amended Complaint sought to add seven new parties after Abitbol discovered five additional properties she contends were owned by Alberto despite being titled in the name of other individuals and shell corporations. Based on those contentions, Abitbol asserted claims against North One, North Two, 7C, 8C, Miami Alone, Isaac, and the Avans.

In total, the Second Amended Complaint asserted 15 causes of action against Alberto and 13 other defendants. On its face, all claims alleged in the Second Amended Complaint were based on Abitbol's marital relationship with Alberto. Specifically, Abitbol alleged therein that she has brought this action "for numerous causes of action against Alberto and his nominees for their participation in the intentional dissipation and misappropriation of marital assets in this jurisdiction." She sought to "preserve assets and properties equitably owned by [her] that Defendants are purposefully concealing and depriving her from through systematic fraudulent transfers, evasive titling of assets, and corporate formations intended to shield martial assets from Monique's lawful and equitable claims."

On the same day that Abitbol filed the Second Amended Complaint, Las Princesas, TS2, 8D, and Melul withdrew the Motion to Stay or Abate. The motion was withdrawn one day shy of the trial court's special set hearing scheduled for December 6, 2016. Soon thereafter, Alberto, Las Princesas, TS2, 8D, and Melul filed a Motion to Dismiss Counts II, III, VI, VII, VIII, IX, X, XII, XIII, and XV of the Seconded Amended Complaint with Prejudice. The Motion to Dismiss sought dismissal only as to the counts unrelated to the Mareva injunction. Specifically, the Motion to Dismiss argued: (1) Abitbol is attempting to expand the scope of the Mareva injunction by including parties not named therein; (2) Florida law does not recognize civil claims predicated on the intentional dissipation of marital assets; and (3) Abitbol's only option is to seek equitable distribution of the marital estate under section 61.075, Florida Statutes (2018), but that option is not available because Florida law requires all claims regarding the marital estate to be litigated within a single action. Defendants did not seek dismissal of Count I (Las Princesas) or Count IV (Alberto) because Las Princesas and Alberto were named in the Mareva injunction.

The trial court agreed and on April 7, 2017 entered an order granting Alberto, Las Princesas, TS2, 8D, and Melul's Motion to Dismiss with Prejudice. On May 2, 2017, after denying Abitbol's Motion for Rehearing, the trial court entered a Corrected Order granting the Motion to Dismiss. The trial court found there was nothing to enforce as against those parties because "the Ontario Court had not made any rulings concerning such entity or individual that would be entitled to enforcement as a matter of comity." Additionally, the Ontario Court had "expressly rejected" the TS2 property as a marital asset.

Furthermore, the trial court found that Abitbol's second amended counts were "entirely based upon [her] marital relationship with Alberto." Based upon these findings, the trial court concluded that Abitbol's approach was precluded for two reasons: (1) "the principle of priority prohibits [Abitbol] from pursuing duplicative litigation which merely parallels pending litigation in a foreign jurisdiction involving the same parties and subject matter" and (2) "Florida law precludes general civil claims premised upon a spouse's intentional dissipation of marital assets."

On May 18, 2017, North One, 7C, North Two, 8C, Miami Alone, Isaac Industries, and the Avans filed a substantially similar motion seeking to dismiss with prejudice counts of the Second Amended Complaint, specifically, Counts VII, VIII, IX, X, XIV, and XV. The trial court granted that motion on June 27, 2017, dismissing those defendants from the counts for the same reasons set forth in the Corrected Order of May 2, 2017. Abitbol filed two timely notices of appeal as to both trial court orders. This Court, however, dismissed the consolidated cases, without prejudice, for lack of jurisdiction as both trial court orders were non-final.

Consequently, Abitbol filed a Motion for Rehearing. After granting Abitbol's Motion for Rehearing, this Court relinquished jurisdiction to the trial court to enter a final appealable judgment. On September 27, 2018, the trial court entered two Amended Orders granting the Motion to Dismiss and entered final judgment as it pertains to all Defendants except Alberto and Las Princesas. Abitbol filed both orders in this Court two days later.

III. JURISDICTION

The trial court's final judgment contains the requisite language of finality and the notice of appeal was timely filed, therefore, this Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

IV. STANDARD OF REVIEW

A trial court's decision to order or deny a stay based on the principle of priority is reviewed for an abuse of judicial discretion. See Pilevsky v. Morgans Hotel Grp. Mgmt., LLC, 961 So.2d 1032 (Fla. 3d DCA 2007). However, an order granting a motion to dismiss presents a pure question of law and is subject to de novo review. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla. 2002). The factual allegations of the complaint are to be taken as true and considered in the light most favorable to the non-moving party. Id.

V. ANALYSIS

The sole challenge on appeal is the trial court's alleged failure to stay the Florida proceedings pending the outcome of the Canadian proceedings. Principles of comity, Abitbol argues, required the trial court to stay the subsequently-filed Miami-Dade action as it parallels litigation pending in a foreign jurisdiction involving substantially similar parties and subject matter. She further argues that the trial court's decision not to postpone this case in favor of the Ontario Family Court, which first exercised jurisdiction, was an abuse of discretion. We disagree.

Granting a stay would not change the fact that Abitbol failed to assert viable claims under Florida law. See Levy v. Levy, 862 So.2d 48, 53 (Fla. 3d DCA 2003) ("[W]here there is no specific transaction or agreement between spouses, the dissolution of marriage statute provides the exclusive remedy where one spouse has intentionally dissipated marital property during the marriage." (citing Beers v. Beers, 724 So.2d 109, 116 (Fla. 5th DCA 1998) ("In our view, there simply is no cognizable tort claim for constructive fraud for a concealed dissipation of marital assets.") ) ).

On its face, the entirety of Abitbol's Second Amended Complaint is expressly based on her marital relationship with Alberto. Thus, the trial court correctly dismissed, rather than stayed, the subsequently-filed Miami-Dade case because the Ontario Family Court had already exercised jurisdiction over the dissolution proceedings and, as such, the Florida proceedings were ancillary to the Ontario proceedings. Abitbol's right to seek enforcement of the Mareva injunction as to those parties named therein, however, is still preserved. See Cermesoni v. Maneiro, 144 So.3d 627 (Fla. 3d DCA 2014) (affirming Florida trial court's decision to carry out the cross-border request for assistance by recognizing the Argentinian Court's ruling and entering the injunction directed to specific Florida assets in marital dissolution action first-filed in Argentina where Florida's jurisdiction was ancillary, not primary (citing Cardenas v. Solis, 570 So.2d 996 (Fla. 3d DCA 1990) ).

VI. CONCLUSION

For the reasons set forth above, we affirm both orders on appeal.

Affirmed.

      Named after the second English case to issue one, a Mareva injunction is a freezing order "designed to prevent a defendant from dissipating or hiding his assets at the outset of a case thus making any judgment subsequently rendered against him either worthless or difficult to enforce." Guinness PLC v. Ward, 955 F.2d 875, 900 (4th Cir. 1992) (citing Mareva Compani Naviera, S.A. v. Int'l Bulk Carriers, S.A., 2 Lloyd's Rep. 509 (Eng. C.A. 1975) ). Mareva injunctions are available under both English and Canadian law, among other common law jurisdictions. See SEC v. Cavanagh, 445 F.3d 105, 117 n.27 (2d Cir. 2006).

      Abitbol subsequently recorded a supplement to the original Lis Pendens recorded just one month prior with respect to the five additional parcels of property.

      Counts I-VI seek to enforce the Mareva injunction as to Las Princesas, TS2, 8D, Alberto, Jacob, and Melul, respectively. Count VII asserts a cause of action against all defendants for violation of the UFTA. Count VIII asserts a cause of action against all defendants for conspiracy to commit a violation of the UFTA. Count IX asserts a cause of action against all defendants for constructive fraud. Count X asserts a cause of action for unjust enrichment as against Las Princesas, 8D, TS2, North One, North Two, 7C, 8C, and Miami Alone. Count XI asserts a cause of action against Jacob for unjust enrichment. Count XII asserts a cause of action against Alberto for unjust enrichment. Count XIII asserts a cause of action against Melul for unjust enrichment. Count XIV asserts a cause of action against Isaac and the Avans for unjust enrichment. Count XV seeks preliminary and permanent injunctive relief as against all defendants. The causes of action asserted against each defendant are as follows:
      DEFENDANT SPECIFIC COUNTS Alberto Benarroch IV, VII, VII, IX, XII, XV Las Princesas I, VII, VIII, IX, X, XV Turnberry TS2 III, VII, VIII, IX, X, XV Turnberry Isle 8D II, VII, VIII, IX, X, XV Jacob Benarroch V, VII, VIII, IX, XI, XV Esser Melul VI, VII, VIII, IX, XIII, XV Turnberry Isle North One VII, VIII, IX, X, XV Turnberry Isle North Two VII, VIII, IX, X, XV North 7C VII, VIII, IX, X, XV Turnberry Isle 8C VII, VIII, IX, X, XV Miami Alone Properties VII, VIII, IX, X, XV Isaac Industries VII, VIII, IX, XIV, XV Molly Avan VII, VIII, IX, XIV, XV David Avan VII, VIII, IX, XIV, XV

      Appellees allege Jacob was never served with process, which is why they did not seek to dismiss Count V and nothing in the record suggests that he was served. As the Defendants added in the Second Amended Complaint had not been served with process at that time, they did not join in moving to dismiss the complaint.

      The Corrected Order issued by the trial court is identical to the original Order entered on April 7, 2017, except for a clarification that the Order was "not final as to all parties."

      Nothing herein preludes Abitbol from seeking to add additional parties and claims in the Ontario Family Court case and to then seek enforcement of any orders entered with respect thereto in Miami-Dade.


text:
    Claudia BURNEO, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D18-2268
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Mark J. Feldman, P.A., and Mark J. Feldman, Miami, for petitioner.
    Michael J. Neimand, for respondent.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   EMAS, C.J.

In this petition for second-tier certiorari, Claudia Burneo seeks review and quashal of two orders of the circuit court, sitting in its appellate capacity.

As to the first order, which affirmed per curiam an order of the county court denying a motion to enforce an alleged settlement agreement between the parties, we deny the petition. See Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (Fla. 1910) ; Restatement (Second) of Contracts, § 39, cmts. a, b (1981). At best, Burneo has established the existence of mere legal error, for which second-tier certiorari relief is unavailable. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010) ; Priority Med. Rehab., Inc. v. United Auto. Ins. Co., 227 So.3d 672, 673-74 (Fla. 3d DCA 2017).

However, as to the circuit court's second order, which conditionally granted United Auto's motion for appellate attorney's fees, we grant the petition and quash that order, as the circuit court departed from the essential requirements of law in ordering that United Auto was entitled to appellate attorney's fees "conditioned upon prevailing below."

As United Auto properly and commendably concedes, its motion for appellate attorney's fees was premised not upon a "prevailing party" provision, but upon a proposal for settlement served upon Burneo. United Auto further concedes that the order granting entitlement to appellate attorney's fees must be conditioned upon the trial court's determination that United Auto satisfied the requirements of section 768.79, Florida Statutes (2018) and Florida Rule of Civil Procedure 1.442. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 377 (Fla. 2013) (requiring strict compliance with section 768.79 and rule 1.442).

We therefore deny the petition in part, grant the petition in part, quash the order of the circuit court which granted United Auto's motion for appellate attorney's fees "conditioned upon prevailing below," and remand this cause to the circuit court, in its appellate capacity, for further proceedings.

      In addition, we note that the circuit court's order granting United Auto's motion for appellate attorney's fees was the "first ruling on the question." Therefore, as to that order, this proceeding is more properly considered by us as the "first tier of appellate review," such that the narrowed requirements of second-tier review, established in Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2010), do not directly apply. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174, 1175-76 (Fla. 3d DCA 2011). Regardless of whether our review of this order is characterized as first-tier or second-tier, it is clear that the circuit court departed from the essential requirements of the law, as there was no statutory, contractual or other basis upon which the circuit court could have premised its award of appellate attorney's fees to United Auto as a "prevailing party."


author: MILLER, J.

text:
    Luis GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1147
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Chief Assistant Regional Counsel, for appellant.
    Ashley Moody, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before SALTER, SCALES, and MILLER, JJ.
   MILLER, J.

In this direct appeal, appellant Luis Alberto Gomez claims he received ineffective assistance of counsel. "Because appellant's claims are not apparent on the face of the record, they must be addressed by motion for post-conviction relief." Latson v. State, 193 So.3d 1070, 1071 (Fla. 1st DCA 2016), citing Beazley v. State, 148 So.3d 552, 554 (Fla. 1st DCA 2014) ("Generally, a claim of ineffective assistance of counsel may not be raised on direct appeal."); see also Aversano v. State, 966 So.2d 493, 494-95 (Fla. 4th DCA 2007) ("With rare exceptions, ineffective assistance of counsel claims should be raised in a motion for post-conviction relief because they are generally fact-specific."); Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002) (ineffective assistance of counsel claims may be considered on direct appeal only "when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation of the conduct is inconceivable.").

Appellant further asserts that the trial court committed reversible error by failing to conduct a Nelson inquiry prior to proceeding to trial. After carefully reviewing the record, "we conclude that the trial court conducted a proper and adequate inquiry before finding that [a]ppellant lacked good cause to discharge court-appointed counsel under Nelson." Miller v. State, 764 So.2d 640, 644 (Fla. 1st DCA 2000).

With regard to the remaining claims of error, as trial counsel made no specific and contemporaneous objections and the asserted errors "did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection," we conclude that affirmance is warranted. Brown v. State, 124 So.2d 481, 484 (Fla. 1960) (articulating the standard for fundamental error); see also Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) ("Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.").

For the foregoing reasons, we affirm appellant's convictions and sentences.

Affirmed.

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


text:
    Elvis SIMEON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1875
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019.
    Law Offices of Richard Rosenbaum, and Richard L. Rosenbaum (Fort Lauderdale), for appellant.
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

Elvis Simeon appeals a July 18, 2017 order denying, without an evidentiary hearing, his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of trial counsel. In the rule 3.850 motion, Simeon alleged that defense counsel provided him with inadequate representation at his October 15, 2015 probation violation hearing. Although the trial court correctly found that most of the grounds set forth in Simeon's rule 3.850 motion were either refuted by the record or legally incorrect , in its July 18, 2017 order, the trial court did not address one facially sufficient ground alleged in Simeon's motion, which, on remand, the trial court should address.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

In September 2006, Simeon was charged by information with second degree murder with a deadly weapon and possession of a firearm by a convicted felon. In August 2009, Simeon pled guilty and was sentenced, as a habitual felony offender, to seven years in prison, with a three-year mandatory minimum, followed by six years of probation. After serving his prison sentence, Simeon started serving his six-year probation on November 1, 2012.

The record reflects that, in July 2015, the State filed an amended affidavit of violation of probation based on technical violations for Simeon's failure to report to his probation officer and for Simeon's moving from his residence without permission. At the probation revocation hearing, after acknowledging that Simeon "had some mental problems" and that Simeon had been "Baker Act[ed] at some time," defense counsel stated that Simeon intended to admit to the technical violations. After Simeon was duly sworn and he admitted to the technical violations of his probation, the trial court sentenced Simeon to the twenty-five year mandatory sentence on the underlying convictions (i.e., for second degree murder with a firearm and possession of a firearm by a convicted felon).

In June 2017, Simeon, now represented by different counsel, filed a sprawling, twenty-page rule 3.850 motion asserting multiple grounds. In this sworn motion, Simeon asserted, among other things, that his prior defense counsel was ineffective for failing to investigate and, at the probation violation hearing, offer evidence of, Simeon's mental illness. Specifically, Simeon alleged that he had been "diagnosed as having a bi-polar disorder and a major depressive disorder" for which he had been put on several medications to treat. According to Simeon, he stopped taking his medications for lack of money after he lost his job, and after he was "kicked out of his house." Simeon, therefore, was purportedly not on his prescribed medications when he (a) changed his residence without permission, (b) failed to report to his probation officer, and (c) entered the open plea at his violation of probation hearing. Simeon's rule 3.850 motion asserts that Simeon's counsel was ineffective for failing to adequately investigate and advise Simeon of possible defenses associated with Simeon's mental health issues. The trial court summarily denied Simeon's motion without addressing this insular claim.

II. ANALYSIS AND CONCLUSION

On this record, we conclude that, albeit somewhat buried in his motion, Simeon did raise a facially sufficient claim of ineffective assistance of counsel, and the trial court's order did not address this claim. See Medrano v. State, 892 So.2d 508, 509 (Fla. 3d DCA 2004) (holding that defense counsel was ineffective for failing to offer evidence of the defendant's mental illness and treatment at the probation violation hearing where the defendant's "mental illness prevented him from willfully or knowingly violating the terms of his probation"). Accordingly, we remand to allow the trial court to address this claim in Simeon's motion. If, on remand, the trial court denies the claim without conducting an evidentiary hearing, then, in its order, the trial court should attach those portions of the record conclusively showing Simeon is not entitled to relief. See Fla. R. Crim. P. 3.850(f)(5).

Affirmed in part, reversed in part, and remanded.

      We affirm the denial of these other grounds without discussion.

      Simeon's rule 3.850 motion is labeled as a "Successive Petition for Post-Conviction Relief Based upon Manifest Injustice." We note that this was Simeon's first post-conviction motion in lower tribunal case number 05-32390.

      "The standard of review of a summary denial of a rule 3.850 motion is de novo ." Lebron v. State, 100 So.3d 132, 133 (Fla. 5th DCA 2012). "To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record." Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (citation omitted).

      "A violation that causes a revocation of probation must be both willful and substantial." Copeland v. State, 864 So.2d 1197, 1199 (Fla. 1st DCA 2004). "[M]ental illness ... can render a technical violation of probation 'not substantial or willful because a mental .... illness can be debilitating to the point that a probationer cannot comply with the terms of probation.' " Id. (quoting Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001) ).

      We express no opinion on the merits of this claim.


text:
    Jeffrey DOLAND, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-2794
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 29, 2019
    Jeffrey Doland, pro se, Petitioner.
    Kenneth S. Steely, General Counsel; Gayla Grant and Eric Salvatore Giunta, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

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

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


author: Per Curiam.

text:
    CAPE MEMORIAL HOSPITAL, INC. d/b/a Cape Coral Hospital, Appellant, v. State of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D16-5310
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied May 28, 2019
    Joanne B. Erde and Donna Holshouser Stinson of Duane Morris LLP, Miami, for Appellant.
    Tracy Cooper George of the Agency for Health Care Administration, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Cape Memorial Hospital, Inc., challenges a final order issued by the Agency for Health Care Administration ("AHCA"), finding it was overpaid with Medicaid funds for services provided to undocumented aliens. As AHCA is barred from conducting a retrospective review of prior authorized claims pursuant to section 409.905(5)(a), Florida Statutes, the Final Order is reversed and no overpayment is owed by Appellant. Lee Mem'l Health Sys. Gulf Coast Med. Ctr. v. State of Fla., Agency for Health Care Admin. , 1D16-1969, (Fla. 1st DCA Feb. 27, 2019).

REVERSED and REMANDED for entry of an order consistent with this opinion

B.L. Thomas, C.J., and Jay and M.K. Thomas, JJ., concur.


text:
    LEE MEMORIAL HEALTH SYSTEM d/b/a Lee Memorial Hospital, Appellant, v. STATE of Florida, Agency for Health Care Administration, Appellee.
    No. 1D16-3975
    District Court of Appeal of Florida, First District.
    February 27, 2019
    Joanne B. Erde and Donna Holshouser Stinson of Duane Morris LLP, Miami, for Appellant.
    Tracy Cooper George of the Agency for Health Care Administration, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Lee Memorial Health System, challenges a final order issued by the Agency for Health Care Administration ("AHCA"), finding it was overpaid with Medicaid funds for services provided to undocumented aliens. As AHCA is barred from conducting a retrospective review of prior authorized claims pursuant to section 409.905(5)(a), Florida Statutes, the Final Order is reversed and no overpayment is owed by Appellant. Lee Mem'l Health Sys. Gulf Coast Med. Ctr. v. State of Fla., Agency for Health Care Admin. , 1D16-1969, 272 So.3d 431, 2019 WL 942995 (Fla. 1st DCA Feb. 27, 2019).

REVERSED and REMANDED for entry of an order consistent with this opinion

B.L. Thomas, C.J., and Jay and M.K. Thomas, JJ., concur.


author: Per Curiam. Winokur, J., concurring in part and dissenting in part.

text:
    Earl C. OGDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4040
    District Court of Appeal of Florida, First District.
    March 13, 2019 Rehearing Denied May 28, 2019
    Earl C. Ogden, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of a final order summarily denying his motion for postconviction relief, which raised two claims of ineffective assistance of counsel. We affirm the summary denial of Appellant's first claim without discussion. However, we reverse the summary denial of Appellant's second claim that defense counsel was ineffective for failing to advise Appellant that he was facing a mandatory life sentence as a prison releasee reoffender when the State made a plea offer of fifteen years in prison as a prison releasee reoffender, which it later withdrew.

Appellant alleged that if defense counsel had advised him of the maximum sentence he faced when the State made the plea offer, he would have accepted the offer instead of leaving the offer open, which resulted in the offer being withdrawn. If true, defense counsel's failure to advise Appellant of the maximum sentence when discussing the plea offer constituted deficient performance. As this court has observed:

Our precedent requires attorneys to inform their clients of the maximum sentences they may face when advising them as to whether to reject a plea offer. Although counsel in the instant case was advising his client to leave an offer open, rather than to reject it outright , knowledge of the statutory maximum was vital to an informed decision as to whether to accept the offer or leave it open, thus risking its withdrawal.

Pennington v. State , 34 So.3d 151, 156 (Fla. 1st DCA 2010) (emphasis added). Furthermore, Appellant sufficiently alleged that he was prejudiced because (1) he would have accepted the plea offer if he had been properly advised; (2) the prosecutor would not have withdrawn the offer; (3) the court would have accepted the offer; and (4) the sentence would have been less severe than the sentence that was in fact imposed. Alcorn v. State , 121 So.3d 419, 430 (Fla. 2013).

Contrary to the trial court's conclusion, Appellant's claim is not conclusively refuted by the record of Appellant's subsequent plea because " '[p]rejudice ... is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice .' " Armstrong v. State , 148 So.3d 124, 126 (Fla. 2d DCA 2014) (quoting Alcorn , 121 So.3d at 432 ) (emphasis in original); accord Smith v. State , 219 So.3d 978, 979 (Fla. 1st DCA 2017) ; see also Wilson v. State , 189 So.3d 912, 913 (Fla. 2d DCA 2016) (holding that "events occurring after Mr. Wilson rejected the plea offer could not cure counsel's alleged failure to provide him with all of the information necessary to make an informed decision concerning the offer").

Accordingly, we reverse the summary denial of Appellant's second claim and remand for an evidentiary hearing. See Smith , 219 So.3d at 979 (reversing the summary denial of the defendant's postconviction claim that defense counsel was ineffective for failing to advise him that he qualified for a mandatory sentence under the prison releasee reoffender statute prior to his rejection of two plea offers); Armstrong , 148 So.3d at 126 (reversing the summary denial of the defendant's postconviction claim that counsel was ineffective for failing to inform him of the maximum sentence and the possibility of a fifteen-year mandatory minimum sentence as a prison releasee reoffender during plea negotiations, resulting in the rejection of a favorable plea of forty-eight months in prison); Mathis v. State, 848 So.2d 1207, 1208-09 (Fla. 1st DCA 2003) (reversing the summary denial of the defendant's postconviction claim that defense counsel was ineffective for failing to advise him that he could be sentenced as a prison releasee reoffender if convicted at trial, resulting in the rejection of the State's plea offer to a lesser included offense).

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

Bilbrey and Jay, JJ., concur; Winokur, J., concurs in part and dissents in part with opinion.

Winokur, J., concurring in part and dissenting in part.

I agree with the majority that the part of the order regarding the affirmative defense should be affirmed. I disagree, however, that Ogden is entitled to an evidentiary hearing on his claim regarding the plea offer.

In Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court ruled that a defendant who does not accept a plea offer due to deficient performance of counsel may, in some circumstances, demonstrate ineffective assistance of counsel. The Florida Supreme Court adopted the prejudice analysis of Frye and Lafler in Alcorn v. State , 121 So.3d 419 (Fla. 2013). Due to the relative recency of these decisions, I believe it is important to define specifically the duties of counsel with regard to a plea offer made by the State. In my view, counsel's failure to advise Ogden of the effect his status as a prison releasee reoffender (PRR) had on his possible sentence, at the time that Ogden claims his counsel should have informed him, is insufficient to establish an ineffective-assistance claim. As such, I believe the trial court was correct in denying this claim without an evidentiary hearing.

I.

Ogden was charged with armed burglary of a dwelling, a first-degree felony punishable by life imprisonment (PBL). § 810.02(2)(b), Fla. Stat. He qualified for sentencing as a PRR and a habitual felony offender. PRR sentencing on the charged crime would have required a life sentence. § 775.082(9)(a)3.a., Fla. Stat. At arraignment, Ogden alleged that the assistant state attorney offered to reduce the charge to burglary of a dwelling (a second-degree felony), which would carry a fifteen-year sentence as a PRR, in exchange for a guilty plea. §§ 810.02(3)(b), 775.082(9)(a) 3.c., Fla. Stat. Ogden claimed that counsel did not advise him at that time that if the State sought PRR sentencing after trial on the charged crime it would carry a mandatory life term, rather than a maximum life term. Based on this omission, Ogden alleged that he "told [t]rial counsel to ask for more time to think about it."

About seven weeks later, a new prosecutor took over the case. After various continuances and several months passing (and one more change of prosecutor), Ogden's counsel submitted a written proposal to accept the offer, almost nine months after the offer was made. Ogden alleged that the then-current prosecutor (twice removed from the prosecutor who made the offer) rejected the offer and counteroffered twenty years as a habitual felony offender with fifteen years mandatory as a PRR, in exchange for a guilty plea to burglary of a dwelling. Ogden claims he accepted in light of the mandatory life provision of the PRR. He claims that he would have accepted the first offer back at arraignment if counsel had advised him that he faced mandatory life as a PRR. The trial court rejected the claim without evidentiary hearing.

II.

Frye sets forth the standard to be applied "where a plea offer has lapsed or been rejected because of counsel's deficient performance." 566 U.S. at 147, 132 S.Ct. 1399. Thus, the Frye standard, adopted by the Florida Supreme Court in Alcorn , applies when there has been a lapse of a plea offer or a rejection of a plea offer. Here, Ogden did not allege that he rejected the plea offer, much less rejected it because of counsel's deficient performance. However, it is arguable that the offer lapsed, in that the prosecutor refused to accept the offer some nine months later. But this is not what the Supreme Court meant by "lapse." In Frye , the defendant alleged that counsel failed to convey a plea offer to him. Id. at 138-39, 132 S.Ct. 1399. Counsel's performance was deficient not because the offer lapsed before the defendant accepted it, but because it lapsed before counsel even told the defendant about it. Indeed, the only Florida case that discusses ineffective assistance for a "lapsed" plea offer is Mitchell v. State , 197 So.3d 1271 (Fla. 2d DCA 2016), which also involved an allegation that counsel failed to convey a plea offer. In fact, cases around the country that discuss ineffective assistance for allowing a plea offer to lapse involve counsel failing to convey the offer to the defendant.

Lafler , in contrast, involved a defendant who explicitly rejected a plea offer due to misadvice of counsel. Lafler , 566 U.S. at 161, 132 S.Ct. 1376 (holding that counsel for defendant, charged with assault with intent to murder, was ineffective for advising the defendant to reject the state's plea offer on the false premise that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist). Thus, Frye and Lafler together stand for the proposition that counsel can be ineffective for 1) failing to convey a plea offer to the defendant before it lapses ( Frye ) or 2) misadvising the defendant to reject a plea offer ( Lafler ). Put another way, unless the defendant alleges that counsel failed to convey a plea offer, the only way to demonstrate ineffective assistance for failing to accept a plea offer is to allege that the offer was rejected due to misadvice.

III.

Ogden has failed to demonstrate that Frye , Lafler , or Alcorn apply here. As such, he has not alleged a legally-sufficient claim that counsel was ineffective. Counsel neither failed to convey the plea offer to Ogden before it lapsed, nor counseled him to reject the plea offer based on misadvice or lack of advice. In most cases, I believe that we should require such allegations in order to clearly establish what is expected of counsel with respect to plea offers: convey all plea offers to the defendant before they lapse, and do not advise rejection of a plea offer based on misinformation or lack of required information. Without generally requiring that the bad advice leads the defendant to reject the offer, we are left with no guidance as to when and exactly what counsel is required to inform a defendant regarding a plea offer.

It is not enough for a movant claiming ineffective assistance for failure to take a plea offer to allege that he or she would have accepted the offer but for bad advice or lack of advice. The movant must also allege that the bad advice or lack of advice constituted deficient performance. Deficient performance is defined as "particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards." Schoenwetter v. State , 46 So.3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright , 490 So.2d 927 (Fla. 1986) ). An actual rejection of a plea offer based on misadvice constitutes a particular act or omission that a counsel can know is deficient performance. Conversely, an amorphous requirement for counsel to promptly inform the defendant provides no clear guidance on what constitutes deficient performance or what is expected of counsel.

I find that it is especially important in this type of case to require specific action on the part of the defendant that was caused by counsel's deficient performance. As a counterexample, defendants who claim that they accepted plea bargains due to misadvice actually have something to lose if they prevail on the claim. If a guilty plea is withdrawn, a defendant might end up with a worse sentence than the plea agreement had provided. Conversely, defendants like Ogden, making the opposite claim, have nothing to lose by making their claim. Ogden took a later, less favorable plea offer. It comes as no surprise that he believes now that he should have taken the earlier fifteen-year offer, now that he has a twenty-year sentence. And unlike the defendant who claims ineffective assistance for accepting a plea offer, he has nothing to lose by alleging that counsel is to blame for his failure to take the fifteen-year offer. For this reason, this type of claim should be limited to what the supreme court held, which is to permit an ineffective assistance claim when a plea is not conveyed to the defendant or it has been "rejected because of counsel's deficient performance." Alcorn , 121 So.3d at 427 (citing Lafler , 566 U.S. at 147, 132 S.Ct. 1399 ) (emphasis supplied).

IV.

Even if we were to impose a requirement that counsel must inform the defendant of all relevant factors regarding a plea offer before it lapses, regardless of rejection, I do not believe such a requirement should be applied here.

A.

First, Ogden does not allege when the offer lapsed, other than indicating that the prosecutor refused to honor it nearly nine months later. Ogden himself asked for "more time" to consider the offer, but it is unknown how long the offer remained. Specifically, Ogden alleged counsel should have notified him at arraignment of the mandatory provisions of the PRR.

The majority holds that this allegation is sufficient, that counsel had an obligation to inform Ogden of the "maximum sentence" (setting aside whether a PRR sentence is a "maximum sentence") "when the State made the plea offer," and that counsel's failure to do so "resulted in the offer being withdrawn." Maj. op. at 1, 2. Does this mean that counsel was obligated to present information to Ogden about the effect of PRR sentencing (bearing in mind that the State had not actually sought PRR sentencing at the time) right there at arraignment, and that failure to do so constituted deficient performance? This is, in fact, what Ogden alleged: "[H]ad Trial Counsel advised Defendant of the [effects of PRR sentencing] on July 11, 2011, Arraignment date , he would had affirmatively accepted said plea offer at that point in time " (emphasis supplied). But I submit that we hold defense counsel to an unreasonable standard when we find that failure to fully advise a client regarding possible sentencing on the very day the offer is made is "outside the broad range of reasonably competent performance under prevailing professional standards."

It is not enough to say that an evidentiary hearing could flesh these matters out, by gathering evidence of how long the offer lasted, whether counsel knew when the offer lapsed, whether counsel informed Ogden of the lapse date, and so on. A postconviction defendant is entitled to an evidentiary hearing only when the motion presents "allegations constituting a prima facie case for relief." Rivera v. State , 995 So.2d 191, 200 (Fla. 2008). An evidentiary hearing is not required to allow a defendant to fill out his claim for relief by adding facts that do not appear in the motion. If the movant's allegations do not support an actual basis for relief, as opposed to a possible basis for relief, then the court must deny the motion as legally insufficient. Ogden alleged that his counsel was required to provide information regarding PRR sentencing on the day of arraignment , not some unknown future time before the offer expired. I believe this is an insufficient allegation of deficient performance.

Moreover, I do not dispute the majority's contention that a plea offer can be impliedly rejected, by permitting it to expire before it is accepted, without an explicit rejection. First, if this occurred, it would still involve advice by counsel to the client, resulting in a decision not to accept the offer. If that decision involves misinformation or lack of required information, it could support an ineffectiveness claim. Nothing shows that this occurred here. Second and more importantly, Ogden did not allege "failure to accept the offer before it was withdrawn." Maj. op. at 2 n.*. He alleged only that counsel should have advised him on the day of arraignment and alleged nothing about when the offer was withdrawn.

B.

Second, a court is justified in finding it unreasonable that a defendant who was willing to "think about" a mandatory fifteen-year plea offer when he was facing life imprisonment if he had gone to trial would have immediately accepted the offer at arraignment if he had known he would face mandatory life imprisonment instead of the possibility of life imprisonment. This unreasonableness is a basis to deny Ogden's motion without evidentiary hearing. See , e.g. , Montero v. State , 996 So.2d 888, 891 (Fla. 4th DCA 2008) (holding that a court need not hold an evidentiary hearing on a postconviction motion "where the allegations are 'inherently incredible' "); Evans v. State , 843 So.2d 938, 940 (Fla. 3d DCA 2003) (finding that a postconviction movant's claim that he would not have entered his plea was "so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing").

C.

Finally, I disagree that Florida Rule of Criminal Procedure 3.171(c)(2)(B) establishes an effective-assistance standard for defense counsel to observe in the plea-offer context. This rule requires counsel to advise a defendant of "all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof." I do not believe this subsection establishes a standard to apply to these cases for three reasons. First, this subsection only requires advice about plea choices and their effects. In other words, before a defendant enters a plea, defense counsel is required to discuss these matters with the client. The subsection says nothing about advice requirements regarding plea offers. Second, the rule was amended in 1977 to require counsel to advise the defendant of "all plea offers." Fla. R. Crim. P. 3.171(c)(2)(A). See The Florida Bar , 343 So.2d 1247, 1253 (Fla. 1977). The fact that subsection (A) specifically mentions "plea offers" suggests that subsection (B) is not meant to apply to plea offers. Third, even if this subsection did establish a standard, it is not inconsistent with the position that a claimant cannot establish ineffective assistance for failure to take a plea offer unless bad advice has led to a rejection of the offer.

V.

Because Ogden did not allege that counsel failed to convey the plea offer, or advised him to reject the offer based on misadvice or lack of required advice, I do not believe that he made a sufficient claim of ineffective assistance of counsel. We should affirm that portion of the trial court's order.

      To the extent that the dissent advocates a "bright line" rule prohibiting any claim of ineffective assistance of counsel unless a defendant alleges either counsel's failure to convey a plea offer or misadvice urging the rejection of a plea, this unduly limits defense counsel's duty to "advise defendant of ... all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant." Fla. R. Crim. P. 3.171(c)(2)(B) ; see also Odegaard v. State , 137 So.3d 505, 508 (Fla. 2d DCA 2014) ; Rivera v. State , 128 So.3d 876, 877 (Fla. 2d DCA 2013). The dissent alleges that Appellant's claim is legally insufficient because he never alleged that he rejected the State's plea offer due to counsel's lack of proper advice. However, the fact that Appellant alleged that he asked for more time to consider the plea offer-rather than rejecting it outright-is a distinction without a difference. In both cases, the alleged prejudice is the same, i.e., Appellant failed to accept a more favorable plea offer due to counsel's alleged ineffectiveness. It matters not whether the failure to accept was an outright rejection of the offer or failure to accept the offer before it was withdrawn. Pennington , 34 So.3d at 156. In fact, it could be argued that Appellant's request for more time makes for a more compelling claim because it suggests that Appellant was seriously considering the offer and might have accepted it before it was withdrawn if he had been properly advised. Different from the dissent's assertion, there is nothing facially unreasonable about this allegation such that it would be proper to summarily deny it without an evidentiary hearing.

      The cases cited by the majority involve plea offers rejected due to misadvice, so they do not apply. See Smith v. State , 219 So.3d 978 (Fla. 1st DCA 2017) ; Wilson v. State , 189 So.3d 912 (Fla. 2d DCA 2016) ; Armstrong v. State , 148 So.3d 124 (Fla. 2d DCA 2014) ; Pennington v. State , 34 So.3d 151 (Fla. 1st DCA 2010) ; Mathis v. State, 848 So.2d 1207 (Fla. 1st DCA 2003). These cases do not suggest that counsel has a nebulous requirement to give advice quickly enough to beat out a potential (but again unknown) withdrawal of the offer. Such a requirement does not exist and, as stated, should not exist. Instead, these cases involve advice that leads the defendant to actually reject a plea offer. Pennington does not hold otherwise. Pennington merely states what counsel must do "when advising [a client] as to whether to reject a plea offer." 34 So.3d at 156. Any implication that this case imposes a duty on counsel to impart information to the client at some unknown time, regardless of whether counsel advises the client to reject the offer, is belied by Pennington's testimony that "trial counsel advised him to reject the offer." Id. at 154.

      See , e.g. , Payton v. State , --- So.3d ----, ----, 2018 WL 3853511, at *2 (Miss. Ct. App. Aug. 14, 2018) ; Helmedach v. Comm'r of Corr. , 168 Conn.App. 439, 148 A.3d 1105, 1117 (2016), aff'd , 329 Conn. 726, 189 A.3d 1173 (2018) ; Robinson v. State , 2016 Ark. 110, 486 S.W.3d 201 (2016) ; Smith v. State , 443 S.W.3d 730 (Mo. App. S.D. 2014) ; Chapa v. State , 407 S.W.3d 428, 434 (Tex.App.-Hous. (14 Dist.) 2013).

      It should be noted that Alcorn , where the Florida Supreme Court specifically adopted Frye and Lafler , also involves actual rejection of a plea offer: "This case involves ineffective assistance of counsel claims arising out of counsel's failure to correctly inform the defendant of the maximum penalty he faced before rejecting a plea offer ." Alcorn , 121 So.3d at 421-22 (emphasis supplied). Alcorn stands for the proposition that rejection of a plea offer caused by lack of proper advice can support an ineffective-assistance claim.

      The same is true for defendants who reject plea deals and proceed to trial, where they are convicted.

      In addition to failing to allege when the offer lapsed or was withdrawn, I note that Ogden also did not allege that counsel knew when the offer would lapse or had lapsed. So even if counsel had an obligation to inform Ogden of the consequences of a PRR sentence, regardless of whether he advised Ogden to reject it, the motion is insufficient because it fails to allege that counsel ineffectively allowed the offer to expire or ineffectively failed to inform him that the offer would expire.