author: HAWKES, C.J.

text:
    Chelsey SEAWELL, Former Wife, Appellant, v. Francis C. HARGARTEN, Former Husband, Appellee.
    No. 1D09-2602.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2010.

      David A. Garfinkel and Paige A. Wagner, of Gray Robinson, P.A., Jacksonville, for Appellant.
    Elliot Zisser and Corrine A. Bylund, of Zisser, Robison, Brown, Nowlis, Maciejew-ski & Cabrey, P.A., Jacksonville, for Ap-pellee.
   HAWKES, C.J.

In this appeal, we consider a dispute regarding the parties’ property settlement agreement. The Former Wife challenges the trial court’s order denying her motion to enforce the parties’ Consent Final Judgment. The Wife argues the trial court erred by ordering the Former Husband to transfer 100% of the shares in a mutual fund, that had depreciated in value, to her in satisfaction of the Husband’s financial obligations. The Wife argues the terms set forth in the Final Judgment required the Husband to transfer 50% of the shares from the fund, prior to the fund’s depreciation, plus to pay an additional $16,443 in cash. According to the Husband, the lower court acted appropriately because an email exchange between the parties’ attorneys created a novation, altering the terms of the Final Judgment. Not only does the Husband err in arguing the parties formed a new contract, his failure to comply with the Final Judgment caused financial harm to the Wife. We reverse.

FACTS

The portion of the Final Judgment at issue here required the Husband to pay to the Wife a total of $65,470 in cash and to also transfer 50% of the shares from an Oppenheimer Mutual Fund. The Husband had until August 1, to transfer the assets at issue in this appeal.

Prior to the deadline, the Husband sent the Wife two checks; the first in the amount of $24,700 and the second in the amount of $24,327. After receipt of both checks, the balance owing to the Wife was $16,443. In addition to the outstanding cash obligation, the Husband was still required to transfer 50% of the shares from the Oppenheimer Fund.

On July 31, the Husband sent a letter authorizing his broker to transfer 100% of the shares in the Fund to the Wife. At the time the authorization letter was sent, the trial court found the Oppenheimer Fund had a value of $29,477.84. In offering the Wife 100% of the shares, the Husband was attempting to apply the cash value of the additional 50% of the Fund ($14,738.92), which was not required by the terms of the judgment, toward the outstanding $16,443 he still owed the Wife. If the Husband was credited with the full value of the stock when the letter was sent, there would have only been a balance owed to the Wife of $1,704.08.

According to the Husband, before he sent the authorization letter, he informed his attorney that he did not have enough cash to pay the $16,443 owed to the Wife. Evidently, an exchange of emails occurred between attorneys where the Husband’s attorney specifically asked the Wife’s attorney if his client would accept stock from the Fund toward the outstanding balance. The Wife’s attorney responded that it did not matter how the Wife got her money “as long as she got all of it.” As a result, the Husband’s attorney advised the Husband to transfer all of the shares in the mutual fund to the Wife.

On August 1 the Wife submitted a letter of authorization to the Husband’s broker accepting 50% of the Fund. Since the authorization letters sent by the parties did not match, the broker did not transfer any shares from the Fund to the Wife. No other payments or offers of payment were made by the Husband.

On October 17 the Wife filed a motion requesting, among other things, that the original settlement agreement be enforced. The court denied the Wife’s motion and entered an order finding that:

[Cjlearly the former Wife could have accepted one-half of the value and, in fact, could have accepted 100% of the value of those funds, leaving only a small deficit which could then have been dealt with, rather than through this Motion. The value of the 100% 2788.821 shares of the Oppenheimer funds have declined to $18,015.78 as of the date of the hearing. It is not the fault of the former Husband that they have declined in that fashion.

The court ordered the Husband to transfer all of the shares from the Oppenheimer Fund to the Wife (with credit based on the July 31 value) and pay a balance of $1,704.08, plus interest, from August 1.

The Property Settlement Agreement was Non-modifiable

A property settlement agreement that has been incorporated into a final judgment of dissolution of marriage is non-modifiable, regardless of either party’s financial position. See Braswell v. Braswell, 881 So.2d 1193, 1199 (Fla. 3d DCA 2004); see also Bridges v. Bridges, 848 So.2d 403, 404 (Fla. 2d DCA 2003) (reversing the trial court when, in an attempt to enforce the final judgment of dissolution of marriage, the trial court changed a party’s award of tangible personal property into an award of money damages). The property rights established by a final judgment of dissolution of marriage are fixed as a matter of law unless there is a reservation of jurisdiction. See Fort v. Fort, 951 So.2d 1020, 1022 (Fla. 1st DCA 2007).

Here, the property settlement agreement was incorporated into the Final Judgment. Because the Final Judgment did not contain a reservation of jurisdiction, the trial court lacked authority to change the terms of contract the parties had agreed to and the court had adopted.

The Parties did not Enter into a New Contract

The Husband agrees the property settlement agreement cannot be modified by the trial court. He attempts to distinguish the present case from the rule by arguing that the email exchanged between the parties’ attorneys formed a novation, or substitute contract. The new agreement or contract, the Husband argues, involved the manner in which he would pay the balance of the Final Judgment. The Husband’s argument ignores the fact that the Wife’s actions in authorizing a 50% fund transfer in compliance with the terms of the Final Judgment serves as compelling evidence that she did not believe the settlement agreement or contract had changed. Even accepting the Husband’s weak starting position, his argument is not — and indeed could not be — supported by the trial judge’s findings for at least two additional reasons.

First, there is no competent, substantial evidence in the record to show the parties intended to form a new contract. Parties form a novation or new contract, only where there is a mutual agreement to substitute an existing valid obligation with a new valid obligation. See De Las Cuevas v. Nat'l Enterprises, Inc., 927 So.2d 41, 43 (Fla. 3d DCA 2006). Four factors are necessary to prove the parties intended to create a novation: (1) the existence of a previously valid contract; (2) the agreement of all the parties to a new contract; (3) the extinguishment of the original contractual obligation; and (4) the validity of the new contract. Id.

Again, even ignoring the Wife’s conduct, the trial judge’s findings fail to show “the agreement of all the parties to a new contract.” In its order denying the motion for enforcement, the court stated:

It was indicated and an e-mail offered in evidence that former Wife’s attorney had stated on or before August 5, 2008, that he did not care how she got her money and there was clearly some misunderstanding as to what was communicated between attorneys. (Emphasis added).

As De Las Cuevas clearly states, a novation requires that a party show there is agreement to form a new contract. Here, the judge found a misunderstanding. A misunderstanding cannot result in agreement or to a “meeting of the minds” required to form a contract. The Husband simply failed to establish that both parties intended to alter the terms of the settlement agreement and create a new agreement.

Second, the email — taken in the light most favorable to the Husband — consisted of the Wife demanding to be paid the amount owed. Due to transaction costs, the Fund’s cash value would not equal its market value on any given day. If the Wife had agreed to accept the remaining 50% of the Fund, instead of cash, she would have incurred the transaction cost in converting the Fund to cash. This point is illustrated by the Husband’s effort to transfer, instead of liquidate, the Fund. Nothing prevented the Husband from instructing his broker to transfer the 50% he was obligated to transfer to the Wife, to liquidate the remaining 50% of the Fund and to tender the proceeds to the Wife. If the Husband had proceeded in this manner, he would have succeeded in dispensing with 100% of the Fund and also satisfied his obligations under the Final Judgment. Instead, he hoped to transfer the entire fund, shifting the transaction costs to the Wife. This would not result in the Wife getting “all of it.”

Husband’s Responsibility to Timely Transfer Assets

The law is clear: where a final judgment of dissolution of marriage provides for the transfer of assets, it is the responsibility of the spouse in possession of those assets to effectuate the transfer. See Demoraes v. Demoraes, 714 So.2d 1150, 1151 (Fla. 2d DCA 1998). Similar to the present case, the trial court in Demo-raes denied the wife’s motion to enforce a property settlement agreement incorporated in a final judgment. Id. The Second District reversed, holding that the husband should have transferred the apartment to his former wife in accordance with the property settlement agreement, despite the trial court’s findings that the wife did nothing to assist in the transfer. Id. The court stated that “the wife had no duty at all concerning the transfer; under the final judgment, it was the husband’s obligation to convey the apartment to her. What the wife did or did not do is irrelevant.” Id. at 1151 (emphasis added). With the responsibility to transfer the asset must also come the risk of loss if the asset is not timely transferred.

The Husband argues that this case is distinguishable, because, unlike Demo-raes, he claims he actually tried to transfer the assets at issue. This argument also fails for at least two reasons. First, the authorization letter sent by the Husband, unlike the one sent by the Wife, did not comply with the terms of the Final Judgment. Second, the Husband made no further effort to assure the Fund assets were transferred. Clearly, to avoid responsibility, an individual must be able to demonstrate that the failure of the transfer to occur was due to factors beyond their control. In essence, the Husband would be able to show, that in spite of his efforts, it was impossible to transfer the assets. Certainly, that is not the case here.

CONCLUSION

The trial court found the shares had a market value of $29,477.84 at the time they were required to be transferred to the Wife. If transferred timely the Wife would have received shares worth a total of $14,738.92 less transaction costs. Therefore, on remand, the trial court should award economic damages the Wife suffered as a result of the Husband’s failure to comply with the Final Judgment. The Court should also award the Wife the remaining $16,443 due to her under the Final Judgment. Both awards should include interest at the statutory rate from the day the Final Judgment required the transfer.

REVERSED and REMANDED.

WOLF, J., concurs and DAVIS, J., concur in result only.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Miguel Angel ARIAS, Appellant, v. Laura Ann ARIAS, Appellee.
    No. 2D09-194.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.
    Rehearing Denied March 5, 2010.
    Miguel Angel Arias, pro se.
    Brent A. Rose of The Orsini and Rose Law Firm, Tampa, for Appellee.
   PER CURIAM.

Miguel Angel Arias appeals a final judgment of dissolution of marriage, raising several challenges to the equitable distribution and alimony awards. Arias has faded to provide a transcript of the final hearing or a statement of the evidence or the proceedings and therefore has not shown reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Coyne v. Coyne, 895 So.2d 469, 470 (Fla. 2d DCA 2005).

We recognize that the final judgment fails to contain certain requisite findings supporting the equitable distribution and alimony determinations. See § 61.075(l)(a)-(j), (3)(a)-(d), Fla. Stat. (2007). However, in the absence of a transcript or an appropriate substitute, we are constrained to affirm. See Esaw v. Esaw, 965 So.2d 1261, 1264-65 (Fla. 2d DCA 2007). In reaching this conclusion, we note that the lack of necessary findings in dissolution cases not only hinders appellate review but also poses problems for modification or enforcement proceedings which may occur in the future.

Affirmed.

WHATLEY, VILLANTI, and MORRIS, JJ., Concur.


author: SHEPHERD, J.

text:
    Angel PEREZ, et al., Appellant, v. DEUTSCHE BANK TRUST CO., etc., Appellee.
    No. 3D09-504.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    John H. Ruiz, Miami, for appellant.
    David J. Stern and Karina M. Musela, Plantation, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal from a final summary judgment of foreclosure obtained by Deutsche Bank Trust Company Americas as Trustee, against Angel and Maria Perez. Because the Bank has failed to deno-onstrate that there is no genuine issue as to any material of fact, and that the moving party is entitled to a judgment as a matter of law, we reverse this case for further proceedings.

      . Deutsche Bank was precluded from participating at oral argument in this case for failure to timely file an answer brief.


author: EVANDER, J.

text:
    SEA WORLD OF FLORIDA, INC., et al., Appellants/Cross-Appellees, v. ACE AMERICAN INSURANCE COMPANIES, INC., et al., Appellees/Cross-Appellants.
    Nos. 5D08-1496, 5D08-1497, 5D08-4197, 5D09-2497.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    Jeffrey S. Weiss and Erin J. O’Leary, of Brown, Garganese, Weiss, and D’Agresta, P.A., Orlando, and Robert I. Westerfield of Bowles & Verna, LLP, Walnut Creek, CA, for Appellants/Cross-Appellees.
    Michael J. Roper and Dale A. Scott, of Bell, Roper & Kohlmyer, P.A., Orlando, and John S. Vishneski, Chicago, IL, for Appellee/Cross-Appellants.
   EVANDER, J.

Appellants (hereinafter collectively referred to as “Sea World”) were sued by Robert DuFault for personal injuries suffered by him while performing certain repair work on Sea World’s premises. Sea World ultimately settled DuFault’s claim and then brought an action for contractual indemnity against appellees (hereinafter collectively referred to as “Hobart”). The jury determined that Hobart was solely responsible for DuFault’s injuries and that Sea World was entitled to be reimbursed by Hobart for the settlement payment made to DuFault ($85,000), as well as the amount expended for attorney’s fees and costs in defending against DuFault’s claim ($181,000). However, the trial court set aside the jury’s award for attorney’s fees because Sea World did not present independent expert testimony establishing the reasonableness of the fees expended in defending against DuFault’s claim. We hold that Sea World was not required to present independent expert testimony on this issue and, accordingly, reverse and remand with instructions for the trial court to reinstate the jury’s verdict.

Sea World and Hobart had entered into a written agreement whereby Hobart agreed to perform certain commercial kitchen repairs for Sea World. Pursuant to the contract, Hobart further agreed to indemnify and hold Sea World harmless from any and all “loss” to the extent caused or incurred as the result of the negligence or other actionable fault of Hobart’s employees. Loss was defined in the contract to mean:

[A]ny and all loss, damage, liability, or expenses, whether incurred as a judgment, settlement, penalty, fine or otherwise (including attorney’s fees and the costs of defense) in connection with any action, proceeding, or claim, whether real or spurious, for injury, including death to any person or persons or damage to, loss of the use of, or loss of the property of any person, firm, or corporation, including the parties hereto, arising or resulting out of the performance of services required pursuant to this Contract.

(Emphasis added). Here, the jury’s determination that Sea World suffered a loss due to the negligence of a Hobart employee during the performance of the contract was supported by substantial competent evidence.

In support of its damage claim, Sea World presented the testimony of Mark Thompson, the attorney having primary responsibility for representing Sea World in the lawsuit filed by DuFault. Thompson detailed the work his firm performed on behalf of Sea World, the reasons for the work, and the basis for the fees. Thompson’s firm’s legal bills and invoices were also introduced into evidence. However, Sea World failed to call an independent attorney’s fees expert to “corroborate” the reasonableness of Thompson’s firm’s fees. Relying on Seitlin & Co. v. Phoenix Ins. Co., 650 So.2d 624 (Fla. 3d DCA 1994), the trial court found this lack of evidence to be fatal to Sea World’s claim for attorney’s fees incurred in the underlying DuFault lawsuit.

In Seitlin, Phoenix Insurance Company had wrongfully refused to defend its insured, Brad Schandler, on a negligence claim brought against Schandler by Howard Silber. Schandler hired counsel and ultimately, after a jury trial, resolved Sil-ber’s claim. Schandler then brought an action against Phoenix Insurance Company seeking, inter alia, to recover the attor-nejfs fees he had incurred in defending the action brought by Silber.

At trial, Schandler testified that he had incurred approximately $29,000 in attorney’s fees in the prior case, and introduced into evidence the invoices reflecting this amount. The jury returned a zero verdict and Schandler moved for a new trial, contending that the verdict was contrary to the manifest weight of the evidence. In response, Phoenix Insurance Company argued that Schandler’s attorney’s fees case was fatally deficient because Schandler failed to call an attorney’s fees expert at trial.

The trial court denied Schandler’s motion for new trial and the Third District Court of Appeal affirmed on this issue. In doing so, the court concluded that “expert testimony was necessary to support the claim for attorney’s fees.” Id. at 627. It is not clear from the opinion whether the expert testimony requirement imposed by the Seitlin court would have been satisfied by testimony from Schandler’s prior counsel, or if the Third District Court of Appeal would have also required testimony from an independent attorney’s fees expert.

In the instant case, Sea World prevailed on its contractual indemnity claim against Hobart. Pursuant to the terms of the contract, Sea World was entitled to recover the reasonable attorney’s fees incurred in the defense of DuFault’s lawsuit. Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 853 So.2d 1072 (Fla. 5th DCA 2003). Thus, this case involves a situation where Sea World was seeking to recover previously incurred attorney’s fees as an element of damages in a breach of contract action. As such, Sea World’s burden of proof was that which is required in a breach of contract action — the presentation of evidence “sufficient to satisfy the mind of a prudent, impartial person” as to the amount of awardable damages. Schimpf v. Reger, 691 So.2d 579, 580 (Fla. 2d DCA 1997). That is, there must be a reasonable basis in the evidence for the amount awarded. Id. Here, Thompson’s testimony satisfied those requirements. Although Sea World was entitled to call an independent expert witness to corroborate the reasonableness of Thompson’s fees, it was not required to do so.

We also note that if a claimant is seeking to recover, as damages, fees paid to a physician, engineer, architect, or other professional, there is no requirement to present “corroborating” testimony from an independent expert. Indeed, our supreme court has held that there is no requirement for expert testimony (independent or otherwise) to support an award of physician’s fees where the doctor’s bill and the plaintiffs testimony made it a question for the jury to determine whether the bills represented reasonable and necessary medical expenses. Garrett v. Morris, Kirschman & Co., Inc., 336 So.2d 566, 571 (Fla.1976); see also East West Karate Ass’n. Inc. v. Riquelme, 638 So.2d 604 (Fla. 4th DCA 1994) (although plaintiff had burden at trial to prove reasonableness and necessity of medical expenses, expert testimony not required). We see no reason to impose a higher standard of proof simply because the professional fees sought to be recovered are those of an attorney. To the extent our decision may conflict with Seit-lin, we certify conflict.

We recognize that where a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred in that same action, the general rule in Florida is that independent expert testimony is required. See, e.g., Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351, 352-53 (Fla.1987); Brake v. Murphy, 736 So.2d 745, 747 (Fla. 3d DCA 1999); Mark ham v. Markham, 485 So.2d 1299, 1301 n. 8 (Fla. 5th DCA 1986); Mullane v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979). However, these cases are distinguishable because they do not involve a situation where a party is seeking to recover previously incurred attorney’s fees as an element of damages in a breach of contract action. Rather, those cases involve the application of an exception to the general rule that a party to a civil action should be responsible for the payment of his or her own attorney’s fees. Dade County v. Pena, 664 So.2d 959, 960 (Fla.1995) (Florida follows “American Rule” that attorney’s fees may only be awarded by court pursuant to entitling statute or parties’ agreement). In these type cases, the judiciary has imposed the additional requirement of corroborative testimony from independent experts because:

Implicit in the rule that an attorney’s fee must always be proved through the presentation of testimony is that such a requirement is necessary to maintain the image of lawyers in the eyes of the public.

Lafferty v. Lafferty, 413 So.2d 170, 171 (Fla. 2d DCA 1982).

Although not necessary to the resolution of the instant case, we join the Fourth District Court of Appeal in questioning the continued need for this judicially-created rule. Island Hoppers Ltd. v. Keith, 820 So.2d 967, 977 (Fla. 4th DCA 2002), rev. on other grounds, Sarkis v. Allstate, 863 So.2d 210 (Fla.2003) (Gross, J., concurring specially) (“Though Florida Courts have long required the corroborative testimony of an expert ‘fees witness,’ we question whether the rule is always the best, or more judicious practice.”) It is speculation as to whether the application of this rule has helped to “maintain the image of lawyers in the eyes of the public.” It is not speculation that claimants expend time and money to retain fee experts, even in those cases where their testimony is likely to be of little or no assistance. As observed by some commentators, expert testimony in fees cases “is often nothing more than a rubber stamp of the billing and time records submitted to the court by the party seeking fees,-” Robert J. Hauser, Raymond E. Kramer III, & Patricia A. Leonard, Is Expert Testimony Really Needed in Attorney’s Fees Litigation? Island Hoppers’ Call for Change and Other Ways to Reduce the Burdens of Fees Hearings, Fla. B. J., Jan. 2003, at 38, 40.

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

ORFINGER and LAWSON, JJ„ concur.

      . We find the issues raised on the cross-appeal to be without merit. We also affirm the trial court's amended supplemental final judgment without discussion.

      . Sea World gave separate consideration for this indemnification provision.

      . We also agree with Judge Gross’ conclusion that this rule rests on shaky theoretical grounds. Island Hoppers Ltd. v. Keith, 820 So.2d 967, 976-977 (Fla. 4th DCA 2002) (Gross, J., concurring specially). In Florida, it appears that the rule requiring corroborative expert witness testimony on attorney's fees originated in Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964), receded from, Lafferty v. Lafferty, 413 So.2d 170 (Fla. 2d DCA 1982). There, the court stated that the self-serving nature of the testimony given by the attorney who performs services precludes the court from making an award based solely on his testimony. However, evidence that is otherwise admissible is not prohibited because it is “self-serving.” Rather, the trier of fact simply takes into consideration the self-serving nature of the testimony in determining the weight that it should be given.


text:
    JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. Vanessa T. GAYDEN, Esquire, Respondent.
    No. 5D09-3053.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    Christian D. Lake, Assistant General Counsel Justice Administrative Commission, Tallahassee, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The Justice Administrative Commission (JAC) seeks certiorari review of an order awarding attorney’s fees to Vanessa T. Gayden, Esquire (Gayden). JAC objects because the order was entered without a hearing. Certiorari is an appropriate remedy.

On August 28, 2007, the circuit court appointed Gayden to represent the mother in a dependency proceeding. On November 19, 2007, Gayden submitted a bill for $1,000, which JAC paid. This would have concluded Gayden’s involvement in the case but for the fact that the Department of Children and Families had filed a petition to terminate the mother’s parental rights. The mother, though personally served with a summons and notice to appear, failed to appear at the termination advisory hearing. Nonetheless, at this hearing, the circuit court appointed Gay-den to represent the mother, and Gayden presented argument on the mother’s behalf. The trial court subsequently entered an order terminating the mother’s parental rights, finding that the mother’s default by failure to appear constituted her consent to the termination of her parental rights.

Gayden submitted a bill for $1,000 to JAC for her legal representation of the mother in the termination of parental rights proceeding. JAC sent a letter of objection to Gayden, asserting that it did not have statutory authority to pay because the parent must be present in the court at the time counsel is appointed. JAC instructed Gayden that if she were to seek compensation in the circuit court, she should note JAC’s objection and request a hearing. As directed, Gayden filed a “Petition for Payment of Attorney’s Fees,” wherein she noted that JAC objected to the payment of the fees, and she requested a hearing on the matter. The circuit court, without holding a hearing, entered an order directing JAC to pay $1,000 to Gayden.

JAC is authorized to pay flat fees to appointed counsel in certain proceedings, including dependency and termination of parental rights cases. If there is an objection, the court retains primary authority and responsibility for determining the reasonableness of all billings for attorney’s fees, costs, and related expenses, subject to statutory limitations. See § 27.5304(3), Fla. Stat. (2009). As the entity responsible for payment of attorney’s fees to court-appointed counsel, JAC is entitled to participate in proceedings related to those fees. Thus, the order awarding attorney’s fees to Gayden, who was court-appointed, should not have been entered without giving JAC the opportunity to be heard on its objection. The circuit court’s failure to provide this opportunity constitutes a departure from the essential requirements of law. Cf. Brevard County v. Hammel, 575 So.2d 772, 773 (Fla. 5th DCA 1991).

Therefore, we quash the order awarding attorney’s fees so that a hearing may be held. We also direct the circuit court’s attention to the recent opinions of Justice Administrative Commission v. Harp, 24 So.3d 779, (Fla. 5th DCA 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother’s legal representation at the termination of parental rights proceeding under these facts), and Justice Administrative Commission v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009) (holding circuit court departed from essential requirements of law in requiring JAC to pay attorney’s fees for counsel appointed to represent fathers in termination proceedings where fathers did not appear at the proceedings, thereby consenting to the termination of their parental rights, and their indigency could not be determined).

PETITION GRANTED; ORDER QUASHED.

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


text:
    Antonio Detemere JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3919.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.

      Antonio Jackson, Live Oak, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Antonio Detemere Jackson appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) postconviction motion to correct illegal sentence. We affirm.

Jackson pled nolo contendere to burglary of a dwelling while masked and resisting an officer without violence. The trial court found he qualified as a habitual felony offender and sentenced him to fifteen years’ imprisonment. As he did below, Jackson asserts that being sentenced as a habitual felony offender was illegal because (1) habitual felony offender sanctions are not available for a life felon; (2) his prior felonies were not within five years of the instant offense; and (3) his prior felonies were sentenced at the same proceeding. These arguments are unpersuasive.

Jackson’s assertion that a defendant convicted of a life felony may not be sentenced as a habitual felony offender is inapplicable to him and incorrect as a matter of law. The most serious charge for which Jackson was convicted was burglary of a dwelling while masked, a first-degree felony. A person who commits a first-degree or life felony can be sentenced as a habitual felony offender. See § 775.084(4)(a)1., Fla. Stat. (2004); Nathan v. State, 689 So.2d 1150, 1152 n. 4 (Fla. 2d DCA 1997).

To impose habitual felony offender sanctions, the defendant must have committed two or more previous felonies within this state. § 775.084(l)(a)l. The felony for which a defendant is to be sentenced must have occurred “[w]ithin 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release from a prison sentence ... whichever is later.” § 775.084(l)(a)2.b. The prior qualifying “felony must [also] have resulted in a conviction ... sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5).

Jackson was previously convicted of a third-degree felony for attempted robbery on August 20, 1997, and a second-degree felony for robbery on March 4, 1998. He was released from prison on the robbery conviction on September 3, 1999. As the record reflects, these prior convictions were sentenced separately and his September 1999 release was within five years of his current offense. Consequently, Jackson was properly classified and sentenced as a habitual felony offender.

AFFIRMED.

PALMER, TORPY and COHEN, JJ, concur.


author: COHEN, J.

text:
    Joseph J. WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4175.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    Joseph J. Wilkins, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Joseph Wilkins appeals an order dismissing his motion to mitigate his sentence as untimely. We treat this appeal as a petition for writ of certiorari, see Eberheart v. State, 5 So.3d 791 (Fla. 5th DCA 2009), grant the petition, and quash the order.

Wilkins was sentenced on August 6, 2009, to eighteen months in the Department of Corrections for cultivating cannabis and possession with intent to sell or deliver cannabis. Forty-nine days later, on September 24, 2009, Wilkins filed a motion to mitigate his sentence, alleging that he was amenable to supervision, this was his first felony conviction, the guidelines called for a non-prison sanction, the offense was committed in an unsophisticated manner, and was an isolated incident. The motion was file stamped by the clerk of the circuit court on September 28th, fifty-three days after Wilkins was sentenced.

On October 27, 2009, the circuit court entered an order dismissing Wilkins’ motion because it believed it did not have jurisdiction to modify his sentence because “more than sixty days have past (sic) since the imposition of the sentence.” At the time of entry of the order, the trial judge did not have the benefit of our decision in Graham v. State, 24 So.3d 781 (Fla. 5th DCA 2009), which is dispositive.

Accordingly, we grant the petition for writ of certiorari and quash the order dismissing the motion to mitigate sentence.

PETITION GRANTED; ORDER QUASHED.

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


author: THOMAS, J.

text:
    SOUTHEAST LAND DEVELOPERS, INC., a Florida corporation, John Reaves, III, an individual, and Richard J. Aboud, as Trustee of "John J. Reaves, Jr., Living Trust," Appellants, v. ALL FLORIDA SITE AND UTILITIES, INC., a Florida corporation, Appellee.
    No. 1D09-2170.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    John S. Mills of Mills Creed & Gowdy, P.A., Jacksonville, for Appellants.
    Michael Bowlus of Michael Bowlus, P.A., Jacksonville, for Appellee.
   THOMAS, J.

Appellants seek review of the trial court’s order denying their motion to set aside a default judgment filed pursuant to Florida Rule of Civil Procedure 1.540. Appellants argue that the judgment is void because it is based upon a complaint that failed to state a claim. We agree that the judgment is void, and reverse.

Appellee All Florida Site & Utilities, Inc. (“Subcontractor”) filed a complaint against Appellant Southeast Land Developers, Inc. (“Contractor”) for breach of a construction contract by failure to pay for the Subcontractor’s work. The Subcontractor’s complaint alleged that the parties entered into a subcontract for the installment of water, sewer, and drainage systems at the Marsh’s Edge development in St. Simons Island, Georgia, and that $113,040.13 was “due and owing” to the Subcontractor for labor and materials.

The Contractor did not file an answer, but successfully compelled arbitration. The Contractor’s counsel filed a motion to withdraw, explaining that the arbitration hearing had been cancelled due to the illness and death of the Contractor’s principal, John Reaves, and that counsel had been unable to make arrangements to continue representation with Richard Aboud, a trustee who had taken over operations for the Contractor. The trial court granted the motion to withdraw and ordered the Contractor to obtain separate counsel; however, the Contractor did not obtain new counsel, and arbitration was never held. The Subcontractor moved for default final judgment, and a default judgment was entered. The Contractor filed a motion to set aside the default final judgment, which was denied.

On appeal, the Contractor asserts the trial court erred in failing to grant its motion to vacate the default final judgment. The Contractor asserts that the judgment is void because the complaint on which it was based failed to state a claim, as it did not allege that conditions precedent to payment had been satisfied. In North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962), the Florida Supreme Court noted that in order to reverse a trial judge’s ruling on a motion to vacate a default final judgment, the district court must find a gross abuse of discretion. Nonetheless, a number of more recent district court decisions have applied a simple abuse of discretion standard. See Tutwiler Cadillac, Inc. v. Brockett, 551 So.2d 1270 (Fla. 1st DCA 1989) (stating that courts apply a more lenient standard of review of orders denying motion to vacate default judgments compared to review of orders granting motion to set aside default); BoatFloat, LLC v. Central Transp. Int'l, Inc., 941 So.2d 1271, 1272 (Fla. 4th DCA 2006) (“[T]he standard of review for an order denying a motion to vacate a default judgment is abuse of discretion.”) (quoting Top Dollar Pawn Too, Inc. v. King, 861 So.2d 1264, 1265 (Fla. 4th DCA 2003)); Szucs v. Qualico Dev., Inc., 893 So.2d 708, 710 (Fla. 2d DCA 2005) (“The standard of review for an order denying a motion to vacate default is whether the trial court abused its discretion.”); KFC USA, Inc. v. Depew, 879 So.2d 55, 56 (Fla. 5th DCA 2004) (“Although the standard of review of an order ruling on a motion to vacate a default judgment is whether there has been an abuse of the trial court’s discretion, this court must remain cognizant of Florida’s ‘long standing policy of liberality toward the vacating of defaults’ ”) (footnote omitted). Further, there is a strong preference for lawsuits to be determined on the merits rather than by default judgment. Tutwiler Cadillac, 551 So.2d at 1272; Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004).

Florida Rule of Civil Procedure 1.540(b) provides that, on a party’s motion, a court may relieve a party from a final judgment for several reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged....

The remainder of the rule requires that the motion be filed “within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.” Fla. R. Civ. P. 1.540(b).

A default judgment is void and should be set aside when the complaint fails to state a cause of action. See Moynet v. Courtois, 8 So.3d 377, 378-79 (Fla. 3d DCA 2009) (citing Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989), and Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 493 (Fla. 3d DCA 1994)); GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975); see generally Hooters of America, Inc. v. Carolina Wings, Inc., 655 So.2d 1231 (Fla. 1st DCA 1995) (damages award barred on default judgment violated due process due to lack of well-pled allegations in complaint). Failure to allege that conditions precedent are met renders a complaint fatally defective in that it fails to state a cause of action. Nguyen v. Roth Realty, Inc., 550 So.2d 490 (Fla. 5th DCA 1989). However, “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” Fla. R. Civ. P. 1.120(c).

In the instant case, the contract contained several conditions precedent to the Subcontractor receiving payment, yet the complaint made no allegation, specific or general, with regard to these conditions precedent, only that money was “due and owing.” An allegation that a debt is unpaid is not sufficient. See Hubbard v. Tebbetts, 76 So.2d 280, 282 (Fla.1954). As such, the complaint failed to state a claim, and the default judgment is void.

Appellee argues that the judgment is not subject to challenge via a rule 1.540 motion. Appellee relies on Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), where the court noted that a judgment is not void due to errors or irregularities in proceedings where the court is legally organized, has jurisdiction, and the parties are given an opportunity to be heard. The Curbelo court held that a judgment was not void for failure to provide a jury trial on damages where the right to a jury trial was not waived. Curbelo, 571 So.2d at 444-45. Here, the default judgment is void, not based on any procedural errors or irregularities, but on a fatally defective complaint. The language in Curbelo has not been extended or read to mean that a judgment based upon a complaint which failed to state a claim is not void.

We hold that because the default judgment was void in that it was based on a complaint which failed to state a claim, the trial court abused its discretion in failing to grant Appellant’s motion to set aside the judgment. We therefore reverse and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

LEWIS, and WETHERELL, JJ., concur.


text:
    Willie James DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0787.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Willie James Davis, pro se, Appellant.

      Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant filed a motion for a voluntary dismissal prior to the postconviction court denying his post-conviction motion on the merits. Because the motion for a voluntary dismissal was filed before the court ruled on his postcon-viction motion and there was no prejudice to the state, the appellant was entitled to withdraw his rule 8.850 motion. Hutchinson v. State, 921 So.2d 780, 781 (Fla. 1st DCA 2006). Accordingly, we reverse the denial of appellant’s motion for postconviction relief, and remand in order for the postconviction court to grant the appellant’s motion for voluntary dismissal.

REVERSED and REMANDED.

WOLF, WEBSTER, and THOMAS, JJ„ concur.


text:
    Charles RUSSELL, Appellant, v. Deidra L. DOUGHTY, Appellee. Charles Russell, Appellant, v. Benjamin Sky Clough, Appellee.
    Nos. 1D09-1249, 1D09-1252.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.

      Edwin S. Zeitlin, for Appellant.
    Deidra L. Doughty, pro se Appellee.
    Benjamin Sky Clough, pro se, Appellee.
   PER CURIAM.

Appellant Charles Russell appeals from two final judgments for protection against repeat violence entered against him. We reverse because the judgments are not supported by competent, substantial evidence.

Appellant lives next door to Doughty and Clough, who live together. Doughty and Clough filed separate petitions for in-junctive relief against Appellant. The petitions alleged the same set of facts: On January 26, 2009, Appellant forcefully grabbed Doughty and Clough after an altercation between their dogs; and on February 2, 2009, Appellant repeatedly rang their doorbell and yelled obscenities and threats at them when they opened the door.

Section 784.046, Florida Statutes (2008), creates a cause of action for an injunction in cases of repeat violence. “Repeat violence” is defined as two incidents of violence, one of which must' have occurred within six months of filing a petition for injunction. § 784.046(l)(b), Fla. Stat. “Violence” includes “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a), Fla. Stat. Competent, substantial evidence must support the trial court’s finding that two incidents of repeat violence occurred. See Shocki v. Aresty, 994 So.2d 1131, 1132 (Fla. 3d DCA 2008); Clement v. Ziemer, 953 So.2d 700, 702 (Fla. 5th DCA 2007); Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005).

The trial court must find that two incidents of violence occurred. See Terrell v. Thompson, 935 So.2d 592, 593 (Fla. 1st DCA 2006). Appellant admits that the trial court correctly found that one incident of violence, battery, occurred. Appellant argues, and we agree, that a second incident of repeat violence did not occur. Regarding the alleged second incident, the testimony given at the injunction hearing was that Appellant yelled profanities and threats at Clough and Doughty. There is no indication that Appellant threatened to do violence, or that he took some action that could have created a well-founded fear that violence was imminent. See § 784.011(1), Fla. Stat. (2008) (defining assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”). “Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.” Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006); accord Santiago, 917 So.2d at 911; Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990).

Neighbors should explore and exhaust a variety of alternatives to litigation before bringing a claim under section 748.046 for repeat violence. See Shocki, 994 So.2d at 1134. Accordingly, the trial court’s final judgments for protection against repeat violence are REVERSED.

WOLF, WEBSTER, and THOMAS, JJ, concur.


author: WOLF, J.

text:
    DEPARTMENT OF REVENUE on behalf of Sandra I. SOTO, Appellant, v. Jose Enrique SOTO, Appellee.
    No. 1D09-3291.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    No appearance for Appellee.
   WOLF, J.

The Department of Revenue (DOR) seeks review of the trial court’s order requiring appellee to pay past and present child support for the care of his minor daughter. DOR raises several issues; we find merit in only one.

The trial court determined a retroactive child support obligation and allowed appel-lee credit against this support obligation, including approximately $1,600 based on gifts appellee stated he purchased for the minor daughter on Christmases and her birthdays. Section 61.30(17)(b), Florida Statutes (2008), authorizes the assignment of credit against a retroactive child support obligation for:

(b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.

Here, the record reveals appellee merely testified he purchased $1,600 in gifts for his daughter and did not specify what those gifts entailed except to state he purchased his daughter a puppy at the cost of $500.

Prior to the passage of section 61.80(17)(b), Florida courts generally prohibited the crediting of payments for nonessential items against child support ar-rearages. Montante v. Montante, 627 So.2d 554 (Fla. 4th DCA 1993) (holding no credit should be given for payments which did not constitute a support obligation paid for a child’s necessities); see also Dep’t of Revenue by and on behalf of Jones v. Jones, 689 So.2d 1264 (Fla. 1st DCA 1997) (holding gifts purchased for Christmas could not be considered support payments in compliance with the support order); Goldman v. Goldman, 529 So.2d 1260 (Fla. 8d DCA 1988) (holding payments made for the benefit of a child may not be credited against a retroactive child support obligation absent a showing of compelling equitable circumstances); Wooten v. Wooten, 510 So.2d 1033, 1036 (Fla. 2d DCA 1987) (holding the same).

It is well settled that statutes must be read in the light of the common law. H.K. v. State, 711 So.2d 173 (Fla. 3d DCA 1998) (citing Gonzales v. City of Belle Glade, 287 So.2d 669, 670 (Fla.1973)). Accordingly, the use of the term “benefit” should be interpreted in light of the earlier settled precedent establishing only those payments which provide for the health and well-being of the child may be credited against a retroactive child support obligation. As noted in Montante, 627 So.2d at 556, “jewelry and Gucci accessories ... are gifts and not support. On the other hand, private school tuition, prescriptions, and health insurance are necessities that may be considered as an element of support.”

There are many types of payments which may provide for a child’s necessities so as to “benefit” the child pursuant to section 61.30(17)(b). While a court retains broad discretion in awarding credit, the failure to exercise that discretion constitutes reversible error. VFD v. State, 19 So.3d 1172 (Fla. 1st DCA 2009) (citing Steinmann v. State, 839 So.2d 832 (Fla. 4th DCA 2003) for the proposition that failure to exercise discretion constitutes reversible error). Without record evidence establishing the nature of the gifts appellee stated he purchased for his daughter, it is impossible for this court or the trial court to determine if those gifts benefited the child pursuant to section 61.30(17)(b). Accordingly, we reverse and remand with directions that the trial court readdress the issue of credit for past child support in a manner consistent with this opinion.

REVERSED.

WEBSTER, J., concurs; THOMAS, J., concurs in result only.

       We would note that Montante is a decision from the Fourth District and, while we cite it with approval, we decline to suggest that private school tuition would always constitute a necessity for purposes of calculating credit against arrearages.


author: WEBSTER, J.

text:
    Brian KINGRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4614.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Ross A. Keene of Beroset & Keene, P.A., Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In that motion, appellant complained that, at his sentencing, he had been designated a sexual predator pursuant to section 775.21, Florida Statutes (2002), although he did not qualify for such a designation, and that the designation was, therefore, illegal. The trial court denied the motion on the ground that appellant had waived the right to complain about his designation as a sexual predator because it was clear from the record that appellant had agreed to that designation as a part of his plea bargain. We agree with the trial court and, accordingly, affirm.

Appellant had been charged with four counts of lewd or lascivious battery on a person 12 or older, but less than 16, in violation of section 800.04(4)(a), Florida Statutes (2001). Each charge was a second-degree felony, punishable by up to 15 years in prison. Appellant ultimately negotiated a plea agreement, pursuant to which he would plead no contest to the four counts, be adjudicated guilty on all counts, and be sentenced to 24 months of community control to be followed by 120 months of probation. Appellant also agreed to a sexual predator designation.

On appeal, appellant argues that he did not qualify as a sexual predator and, therefore, his designation as such constituted an illegal sentence, and he could not agree to an illegal sentence. We disagree. Our supreme court has said that “a sexual predator designation is ‘neither a sentence nor a punishment but simply a status....’” Saintelien v. State, 990 So.2d 494, 496 (Fla.2008) (quoting from section 775.21(3)(d), Florida Statutes (2003)). Because such a designation is “neither a sentence nor a punishment,” appellant’s agreement to be so designated is not controlled by those cases which hold that one may not agree to an illegal sentence. See, e.g., Mobley v. State, 939 So.2d 213, 214 (Fla. 1st DCA 2006). Rather, it is controlled by cases such as Ackermann v. State, 962 So.2d 407, 408 (Fla. 1st DCA 2007) (stating that a defendant cannot be sentenced to drug offender probation unless he agrees to such as part of his plea bargain). See also Allen v. State, 642 So.2d 815, 816 (Fla. 1st DCA 1994) (because an agreement to reimburse the county’s medical expenses was a part of appellant’s plea bargain, he could not challenge the legality of his obligation to pay those expenses); Pollock v. Bryson, 450 So.2d 1183, 1186 (Fla. 2d DCA 1984) (while, ordinarily, a trial court may not require as a condition of probation that a defendant pay restitution in excess of the amount of damage his criminal conduct caused the victim, a defendant is estopped to raise such a complaint when he has expressly agreed to such a provision as a part of his plea bargain); Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998) (“[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements”). It is apparent from the record that appellant’s agreement to a sexual predator designation was a bargained-for part of the plea agreement. Having freely and voluntarily entered into the agreement and accepted its benefits, appellant may not now seek to be relieved of one of the burdens imposed upon him pursuant to the agreement. E.g., Allen, 642 So.2d at 816. The trial court’s order is affirmed.

AFFIRMED.

WOLF and THOMAS, JJ, concur.


text:
    Frank D. GREESON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5063.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Frank D. Greeson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted and the trial court is directed to render an order on petitioner’s motion for postconviction relief, or schedule a hearing on the merits of the motion, within 30 days of this opinion becoming final. See Browning v. State, 814 So.2d 1220 (Fla. 1st DCA 2002).

PETITION GRANTED.

KAHN, BENTON, and ROBERTS, JJ, concur.


text:
    Paul Edward ZAHN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5716.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Paul Edward Zahn, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the lower tribunal’s order dismissing with prejudice in part and denying in part defendant’s motion for postconviction relief, rendered on or about July 20, 2009, in Escambia County Circuit Court case number 2005-CF-003510A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. See Fla. R.App. P. 9.141(5)(D).

LEWIS, THOMAS, and WETHERELL, JJ., concur.


text:
    Earnel T. ALEXANDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5874.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Earnel T. Alexander, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on September 28, 2009, in Duval County Circuit Court case number 16-2009-CF-011254-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the trial court is directed to appoint counsel to represent him on appeal.

LEWIS, THOMAS, and WETHERELL, JJ., concur.


text:
    Felix Perez BOLADARES, Appellant, v. OLEMSHOE CORP. and The Hartford Insurance Company, Appellees.
    No. 1D09-5486.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Richard E. Zaldivar of Richard E. Zaldi-var, P.A., Miami, for Appellant.
    Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Eskalyo & Dunbrack, Miami Lakes, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s January 19, 2010, order to show cause, we DISMISS this appeal for lack of jurisdiction. See Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001) (holding order merely granting employer/carrier’s motion to dismiss not an appealable final order); Truc v. Kimmins Corp., 889 So.2d 964, 964 (Fla. 1st DCA 2004) (dismissing appeal of order granting employer/carrier’s motion to dismiss pursuant to Mintz); see also, Dedge v. Crosby, 914 So.2d 1055, 1056 (Fla. 1st DCA 2005) (order granting motion to dismiss with prejudice no more final than order granting motion to dismiss without prejudice). All pending motions are dismissed as moot.

LEWIS, THOMAS, and WETHERELL, JJ., concur.


text:
    Eligah PAULK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0047.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2010.
    Eligah Paulk, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: WARNER, J.

text:
    Roberto GALAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4215.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Roberto Galavis, appeals his conviction and sentence for attempted kidnapping. He maintains that the state failed to prove an essential element of intent, and the trial court should have granted his motion for judgment of acquittal. We affirm, concluding that the state presented circumstantial evidence from which the jury could infer the necessary intent and which was inconsistent with any reasonable hypothesis of innocence.

The facts of this case are relatively straightforward. At trial, witnesses testified that Galavis was riding a three-wheel bicycle on Thanksgiving Day of 2007 when he approached a three-year-old girl walking down the street with members of her family, including her mother, her one-year-old brother, her teenage sister, and her aunt. He grabbed the young girl by the waist, attempting to place her in a basket on back of his bicycle. He told the mother he was taking the little girl. His demean- or and tone were angry. The victim began crying, kicking and screaming. The victim’s aunt and older sister immediately struggled with appellant and got the victim back from him. Galavis then told the mother that if she “wasn’t going to give him the little girl, to give him the little boy.” However, he did not actually try to take her son. Instead, he left on his bicycle, and the family went home. Before the incident on Thanksgiving, the family had never seen Galavis. The mother later identified him after he was apprehended by the police.

Galavis was charged by information with attempted kidnapping in violation of sections 787.01 and 777.04, Florida Statutes. In conformance with the statutory elements, the information charged that Galav-is “did forcibly, secretly, or by threat, attempt to confíne, abduct, or imprison the person of G.B., against that person’s will and without lawful authority, with intent to hold for ransom or reward or as a shield or hostage, and/or inflict bodily harm upon or to terrorize the victim or another person.”

Defense counsel moved for a judgment of acquittal after the state presented its case, arguing that the crime required a specific intent, and the state had failed to offer any evidence of Galavis’s intent. The state countered that the victim was crying and screaming at the time of the incident, that intent could be proven by circumstantial evidence, and that in the light most favorable to the state, the evidence showed that appellant intended to terrorize the victim or the victim’s mother. The trial court denied the motion, and Galavis was convicted of attempted kidnapping. He appeals, claiming that the trial court should have granted his motion for judgment of acquittal.

A de novo standard of review applies when reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. (citations omitted). A more stringent standard of review applies, however, if the state’s evidence of guilt is wholly circumstantial. See State v. Law, 559 So.2d 187 (Fla.1989). “Where the only proof of guilt is circumstantial ... a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Id. at 188.

If the evidence in a case is both direct and circumstantial, it is unnecessary to apply the special standard of review applicable to circumstantial evidence cases. See Wilson v. State, 493 So.2d 1019, 1022 (Fla.1986), receded from on other grounds by Evans v. State, 838 So.2d 1090 (Fla. 2002). However, if there is direct evidence of a defendant’s actus reus, but the defendant’s intent is proven solely through circumstantial evidence, the special standard of review applies only to the state’s evidence establishing the element of intent. See Walker v. State, 957 So.2d 560, 577 (Fla.2007) (“Because Walker did not admit that he intended to kill Hamman, the State’s case as to the intent element for first-degree premeditated murder, the mens rea, is based on circumstantial evidence. Thus, we apply the special standard of review only to the State’s evidence establishing the element of premeditation.”); see also McNarrin v. State, 876 So.2d 1253, 1255 (Fla. 4th DCA 2004) (“At trial, the State presented only circumstantial evidence to establish McNarrin’s intent. Where the only proof of guilt is circumstantial, a special standard of review applies.”). Nonetheless, because direct evidence of intent is rare and must be proven through the surrounding circumstances, “a trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.” Washington, v. State, 737 So.2d 1208, 1215 (Fla. 1st DCA 1999).

Applying this law to the facts of this case, we have no trouble concluding that the state presented sufficient direct and circumstantial evidence to withstand a motion for judgment of acquittal. Direct evidence supported the act of attempted kidnapping in that Galavis grabbed the child in the mother’s presence and attempted to leave with her. Kidnapping also requires proof of one of four specific enumerated intent elements. See Sean v. State, 775 So.2d 343, 344 (Fla. 2d DCA 2000); see also Keller v. State, 586 So.2d 1258, 1262 n. 8 (Fla. 5th DCA 1991), abrogated on other grounds by State v. Smith, 840 So.2d 987 (Fla.2003). The theory of attempted kidnapping relied upon by the state in this case was that Galavis’s conduct was done with intent to “inflict bodily harm upon or to terrorize the victim or another person.” Because Galavis never made any statements announcing his motivation for grabbing the child, the state’s case as to the specific intent element of attempted kidnapping was based on circumstantial evidence. As a result, the special standard of review applies as to the intent element, and to sustain the attempted kidnapping conviction, the state’s evidence of Galavis’s intent must be inconsistent with any reasonable hypothesis of innocence.

We have no trouble in concluding that this evidence constitutes circumstantial evidence of an intent to terrorize both the mother and the victim. Galavis, a stranger, grabbed the child and attempted to put her in his bicycle basket and ride away. His demeanor was angry, and he spoke in an angry tone when he told the mother he was taking the child. The child was screaming. If that weren’t terrifying enough, when the sister and aunt fought for the little girl, Galavis told them to give him the boy. Clearly, one can infer intent to terrorize the victim and the victim’s mother from the facts of this case. When the child began screaming, Galavis did not stop his attempt to take her. Thus, he continued his course of conduct, knowing the effect his actions had on the child. This constitutes circumstantial evidence that he intended the effects to the victim that he himself witnessed.

To satisfy its burden, the state’s circumstantial evidence must be inconsistent with every reasonable hypothesis of innocence that the defendant proposes. See Twilegar v. State, — So.3d-,-(Fla. 2010). The defense suggested at trial that Galavis simply wanted to take the children for a ride in his bicycle. However, that he grabbed the child and struggled with the mother and aunt is inconsistent with the defense’s hypothesis that his intent was innocent. Furthermore, his angry tone and demeanor belies a beneficent intent. Because the state met its burden, the trial court correctly denied the motion for judgment of acquittal.

We affirm appellant’s conviction and sentence.

FARMER and LEVINE, JJ., concur.


author: LEVINE, J.

text:
    Alvin MODESTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3658.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant was convicted for possession of a firearm by a convicted felon and possession of testosterone. The issues presented are whether the State established a sufficient corpus delicti in order to introduce appellant’s admissions and whether the State was permitted to admit appellant’s prior convictions. We find both issues to be without merit and affirm the convictions below.

The police executed a search warrant of an apartment which contained two bedrooms. One bedroom was designated the “blue room” and the other was called the “green room.” Inside the green room, a police officer found a bottle of testosterone and a traffic citation bearing appellant’s name inside a dresser drawer. Another police officer found a loaded firearm in a nylon holster on top of a refrigerator in the green room. Later during the search of the apartment, appellant arrived and entered the unit. During prior surveillance of the apartment, another officer testified to seeing appellant enter the apartment with a basket of laundry.

After appellant was read Miranda warnings, appellant stated that he lived in the apartment presently being searched by the police. Appellant also admitted to owning the gun and testosterone. Although appellant denied owning the objects found in the common areas, he admitted ownership of the clothing in the green room as well as a pit bull found in the apartment.

A confession can be admitted only after the State proves the corpus delicti of the crime by bringing forth “substantial evidence” tending to show the commission of the crime charged. State v. Allen, 335 So.2d 823, 825 (Fla.1976); Snell v. State, 939 So.2d 1175, 1179 (Fla. 4th DCA 2006). The State must demonstrate that “a crime of the type charged was committed” and “the crime was committed through the criminal agency of another” in order to establish the corpus delicti of the offense charged. Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997).

There is competent, substantial evidence of appellant’s possession of the loaded firearm and testosterone, apart from appellant’s inculpatory statements. In the green room where the loaded firearm was found on the refrigerator, the police found traffic citations made out to appellant. In the bathroom attached to the green room, the bottle of testosterone was found. Another indicia of appellant’s connection to the apartment was the fact that he was seen during a prior surveillance bringing a basket of laundry onto the premise.

The primary reason for the requirement that the proof of the corpus delicti of the crime be introduced before the admission of the defendant’s statement is to protect the defendant “from being convicted of a non-existent crime due to ‘derangement, mistake or official fabrication.’ ” Snell, 939 So.2d at 1178-79 (citation omitted). In the present case, there is no concern that the defendant confessed to non-existent crimes. “The essential requirement appears to be that in order for the admission of the inculpatory statement there must be other evidence of the crime charged. Stated differently, the crime charged cannot be proven only through the defendant’s statements.” Garmon v. State, 772 So.2d 43, 46 (Fla. 4th DCA 2000). Here, there is clearly other evidence of the crimes charged.

As to the issue of the admission of appellant’s prior convictions, the State argues that appellant’s trial counsel “opened the door” to impeach by prior convictions as a result of his questioning the officer regarding appellant’s knowledge of cocaine found in the common areas of the apartment. We have recognized that a “non-testifying defendant who brings out his or her own exculpatory statements through another witness, ‘runs the risk of having those statements impeached by felony convictions.’ ” Gonzalez v. State, 948 So.2d 877, 878 (Fla. 4th DCA 2007) (quoting Kelly v. State, 857 So.2d 949, 950 (Fla. 4th DCA 2003)). Appellant and the State direct the majority of their arguments to the issue of whether appellant’s statements were exculpatory, rendering the admission of his prior convictions proper.

We need not decide whether appellant’s statements were “exculpatory.” If the trial court erred in admitting evidence of appellant’s prior convictions, that error is harmless. Appellant stipulated that he was a convicted felon for purposes of the possession of a firearm charge, so the jury already knew of his criminal past. Appellant also testified on his own behalf at trial and, as such, opened the door to impeachment through his prior convictions. Finally, appellant admitted to possession of the firearm and testosterone. The State provided ample evidence of appellant’s guilt, and any error in the trial court’s order was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

For all the foregoing reasons, we affirm both convictions.

Affirmed.

GROSS, C.J, and WARNER, J., concur.

      . Appellant stipulated to being a “convicted felon” for purposes of the possession of a firearm by a convicted felon charge. Because that charge requires proof of a prior conviction, the “better practice” in such cases is to sever that count to avoid any potential prejudice to the defendant on the remaining counts in the information. State v. Vazquez, 419 So.2d 1088, 1090 (Fla. 1982). The discretion to deny a motion to sever is “sharply curtailed” in these circumstances. Cooper v. State, 15 So.3d 792, 793 (Fla. 5th DCA 2009). Nevertheless, a defendant must move to sever the firearm charge before trial or the right to severance is deemed waived. Fla. R.Crim. P. 3.153(a); Murphy v. State, 495 So.2d 1237, 1238 (Fla. 4th DCA 1986).


author: PADOVANO, J.

text:
    FLORIDA DETROIT DIESEL & Gallagher Bassett Services, Inc., Appellants, v. Yaadram NATHAI, Appellee.
    No. 1D09-4380.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.

      Eduardo E. Neret and Rosalba J. Figueroa of Law Offices of Eduardo Neret, P.A., Miami, for Appellants.
    Henry P. Mowry, Jacksonville, for Ap-pellee.
   PADOVANO, J.

This is an appeal by the employer and its servicing agent from an order awarding workers’ compensation benefits to an injured worker. We conclude that the appellants’ initial brief fails to demonstrate a preliminary basis for reversal and we therefore summarily affirm the order without the need for an answer brief.

Yaadram Nathai tripped on a mat while working as a mechanic for his employer Florida Detroit Diesel and he injured his knee and foot. The employer and its servicing agent, Gallagher Bassett Services, Inc., accepted the accident as compensable and provided Mr. Nathai medical treatment, including arthroscopic knee surgery for a torn meniscus. Following the surgery, the employer and servicing agent authorized treatment by Dr. Paul Shirley, an orthopedist.

Dr. Shirley characterized the injury as “devastating” and “life altering” and concluded that it would prevent Mr. Nathai from returning to his normal functioning at work. Mr. Nathai wanted to obtain a second opinion to determine whether there was any other course of treatment that might enable him to regain the full use of his foot and return to work. The employer and servicing agent denied this request, and then Mr. Nathai filed a petition for benefits to litigate his entitlement to a second opinion.

The evidence presented at the hearing on the petition included Dr. Shirley’s deposition. Dr. Shirley’s testimony on direct examination as it pertained to the need for a second opinion was as follows:

Q. Have your recommendations for epidural blocks and a second opinion with Dr. Murphy changed?
A. No.
Q. Do you still believe they are medically necessary?
A. Yes.
Q. And the basis for the medical necessity is the original workplace injury?
A. Yes.
Q. All right. Doctor, are those recommendations within a reasonable degree of medical certainty?
A. Yes.

On cross-examination, Dr. Shirley conceded that Mr. Nathai would not benefit from additional surgery and, for that reason, he agreed that a second opinion was not necessary from an orthopedic standpoint. However, he stood by his conclusion that a second opinion was medically necessary to determine whether there was anything that could be done that would enable Mr. Nathai to return to work. He explained that a second opinion might reveal a beneficial course of treatment other than additional surgery and that it was important to assist Mr. Nathai in obtaining closure on the possibility of significant improvement of his condition.

Based on Dr. Shirley’s testimony, the judge of compensation claims concluded that the second opinion was medically necessary and directed that it be provided at the expense of the employer and servicing agent. This order is the subject of the present appeal by the employer and servicing agent.

We have elected to review the order under the summary disposition procedure in rule 9.315(a) of the Florida Rules of Appellate Procedure. This rule authorizes an appellate court to summarily affirm an order of the lower tribunal if “no preliminary basis for reversal has been demonstrated.” As explained in the court commentary to rule 9.315, the purpose of the summary affirmance procedure is to provide an expeditious method of deciding an appeal that is unmeritorious.

When used properly, the summary affirmance procedure is not only faster than the ordinary practice of allowing full briefing by all parties, it is also more economical. A decision to summarily affirm an order can be made at any time after the filing of the appellant’s initial brief, which means that the appellate court may dispense with the answer brief. The expenses incurred by the parties are not as great as they would be if the court required an answer brief and then a reply brief.

The summary affirmance procedure is appropriate in this case, because it is clear from the record and the initial brief that the argument for reversal is without merit. Whether a second opinion is medically necessary is a question of fact. See Lombardi v. Southern Wine & Spirits, 890 So.2d 1128 (Fla. 1st DCA 2004). In workers’ compensation cases, as in other fields of the law, a decision that turns on a finding of fact must be affirmed on appeal if the finding is supported by competent substantial evidence. See De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); Mylock v. Champion Int'l, 906 So.2d 363 (Fla. 1st DCA 2005). It follows from these principles that the order at issue here must be affirmed. The decision by the judge of compensation claims that Mr. Nathai is entitled to a second opinion is fully supported by the expert testimony given by Dr. Shirley.

It makes no difference that there may have been some evidence in the record to support the appellants’ position. The pertinent question is whether the evidence supports the order under review. It is an elementary principle, but one apparently worth restating, that the facts of a case are not reweighed in the appellate court. As the supreme court explained in Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976), “[i]t is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it.” Rather, the test is “whether the judgment of the trial court is supported by competent evidence.” Shaw, 334 So.2d at 16.

The employer and servicing agent have attempted to recast the issue in a more favorable light by pointing out that there is no evidence that a second opinion is “orthopedically” necessary. The problem with this argument is that it would add a requirement that is not present in the Workers’ Compensation Law. The phrase “medically necessary” is defined in the applicable statute as any medical service that is used to identify or treat an illness or injury, and is appropriate to the patient’s diagnosis and status of recovery. See § 440.13(l)(m), Fla. Stat. (2003). This broad definition of the phrase “medically necessary” could potentially include “any” medical service that is shown to be necessary. The statute does not restrict the concept of medical necessity to a particular field of medicine. Hence, we do not accept the argument that Mr. Nathai was required to show that the second opinion was “orthopedically” necessary. That is an artificial construct not found in the text of the statute.

For these reasons, we conclude that the employer and servicing agent have failed to present a preliminary basis for reversal. We have no need for an argument in defense of the order by the judge of compensation claims, as it clear to us from our reading of the record and the initial brief that we must affirm the order.

Affirmed.

KAHN and WETHERELL, JJ., concur.


text:
    Linda M. FEHLING, Appellant, v. David K. FEHLING, Sr., Appellee.
    No. 1D09-3703.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Linda M. Fehling, pro se, Appellant.
    David K. Fehling, Sr., pro se, Appellee.
   PER CURIAM.

DISMISSED. Fla. Fam. L.R.P. 12.490(f); Kelly v. Colston, 977 So.2d 692, 695 (Fla. 1st DCA 2008) (After a magistrate holds a hearing and files a report, the circuit court has the duty to review the entire case file, examine the evidence presented to the magistrate, and determine whether the magistrates findings of fact and conclusions of law are justified.) (emphasis in original). See generally City of Tallahassee v. Big Bend PBA, 703 So.2d 1066, 1069 (Fla. 1st DCA 1997) (dismissing appeal of order confirming arbitration award that failed to also enter judgment). Cf. Fort v. Fort, 951 So.2d 1020, 1021 (Fla. 1st DCA 2007) (reviewing final order that “adopted the recommendations of the general magistrate and dismissed the action”); Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 16 So.3d 167 (Fla. 4th DCA 2009) (reviewing final order that adopted “each and every recommendation” of general magistrate).

VAN NORTWICK and CLARK, JJ., and BERGER, WENDY, Associate Judge, concur.


text:
    Herman Lindsey WALKER, Appellant, v. Shannon BUHARP, as Personal Representative of the Estate of Eric S. Buharp; Tommy Johnson and Lynn Johnson, as the parents and natural guardians of Caitlyn Johnson, a minor child; Hyundai Motor Company, a foreign corporation; Hyundai Motor America Corporation, a California corporation; Takata Corporation, a foreign corporation; TK Holdings, Inc., a foreign corporation; and Tempa Lee Walker, Appellees.
    No. 1D09-5312.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Elizabeth A. Parsons and C. Miner Harrell of Wilson, Harrell, Farrington, Ford, Fricke, Wilson & Spain, P.A., Pensacola, for Appellant.
    David R. Swanick, III, and Stanley Bruce Powell of Powell & Swanick, P.A., Niceville, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 18, 2009, the Court has determined that the appeal is premature and that dismissal is appropriate. Accordingly, the appeal is hereby DISMISSED. The appellant’s Motion to Relinquish Jurisdiction, filed on December 28, 2009, and the Motion for Enlargement of Time to Serve Initial Brief are denied.

WEBSTER, PADOVANO, and THOMAS, JJ., concur.


text:
    CITY OF LAKELAND and The Claims Center, Appellants, v. Loretta HENRY-JACKSON, Appellee.
    No. 1D09-6131.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.

      Juliana L. Curtis, Ross Vecchio, P.A., Lakeland, for Appellants.
    James R. Spears and Kelli Biferie Hastings, Law Office of Kelli Biferie Hastings, PLLC, Maitland, for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this Court’s show cause order entered December 17, 2009, the Court hereby DISMISSES this appeal for lack of jurisdiction. See Fla. R.App. P. 9.180(b)(1)(C). See also, e.g., Landry v. AMS Staff Leasing, 993 So.2d 1071 (Fla. 1st DCA 2008); Sun Sentinel & Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

KAHN, BENTON, and ROBERTS, JJ., concur.


author: KELLY, Judge. VILLANTI, J.,

text:
    David CARBAJAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5894.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2010.
    David Carbajal, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

The Office of the Statewide Prosecutor filed a ten-count information charging David Carbajal with a variety of drug offenses. In 2002, Carbajal entered a nolo contendere plea to the charges and was sentenced to 155 months in prison. He did not appeal his judgment or sentence. On February 15, 2007, Carbajal filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 alleging that the circuit court did not have jurisdiction to enter his judgment and sentence. He contends the circuit court’s jurisdiction was never properly invoked because “all the crimes alleged and all the actions pertinent to those crimes” occurred in a single judicial circuit, and thus, the Statewide Prosecutor did not have jurisdiction to prosecute the case. See, e.g., Luger v. State, 983 So.2d 49 (Fla. 4th DCA 2008), review denied, 1 So.3d 173 (Fla.2009); Winter v. State, 781 So.2d 1111 (Fla. 1st DCA 2001).

Acknowledging that he filed his rule 3.850 motion more than two years after his judgment and sentence became final, Car-bajal asserted that it should not be denied as untimely because it challenged the jurisdiction of the circuit court, a matter he contends may be raised at any time. The postconviction court, relying on Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005), agreed and then denied the motion on its merits. Although we affirm, we do so without reaching the merits because we conclude that Carbajal’s motion was untimely.

In concluding Carbajal’s motion was untimely, we reject his contention that a rule 3.850 motion can be filed at any time if it asserts a claim based on the circuit court’s lack of jurisdiction. We reach this conclusion based on the language of the rule itself. Rule 3.850(a) lists the grounds that may be claims for relief in a motion filed under the rule:

(a) Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida:
(1)The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
(2) The court did not have jurisdiction to enter the judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.

(Emphasis supplied.) The rule specifically contemplates a motion asserting a claim grounded on the circuit court’s lack of jurisdiction. Nevertheless, subsection (b), which specifies the time limits within which the motion must be filed, makes no exception to the two-year limit for a motion asserting the circuit court’s lack of jurisdiction:

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapi-tal case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that
(1) the facts on which the claim is predicated were unknown to the mov-ant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, or
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.

(Emphasis supplied.) Although the rule makes no exception for a motion claiming the circuit court did not have jurisdiction to enter the judgment or sentence, it does list three circumstances under which any motion can be filed beyond the two-year limit. See Fla. R.Crim. P. 3.850(b)(l)-(3). Carbajal’s motion, however, does not allege any of those circumstances. Accordingly, his motion was untimely.

We recognize that other courts have held that the two-year time limitation in rule 3.850(b) is inapplicable to a motion alleging that the circuit court lacked jurisdiction to enter the defendant’s judgment or sentence. See, e.g., Gunn v. State, 947 So.2d 551 (Fla. 4th DCA 2006); Brown, 917 So.2d at 273; Harris v. State, 854 So.2d 703 (Fla. 3d DCA 2003); Harrell v. State, 721 So.2d 1185 (Fla. 5th DCA 1998). We do not find these cases persuasive because they do not explain why they apparently concluded that the two-year limit in rule 3.850 did not extinguish the defendant’s right to raise the issue of the circuit court’s jurisdiction. While we are well aware of the body of law that holds that the court’s jurisdiction may be challenged at any time, we have found nothing that suggests we can ignore the two-year limit contained in rule 3.850.

On the contrary, the history of the rule convinces us that the two-year limit and its exceptions are deliberate choices designed to balance competing interests and that we should apply the rule as written. Originally promulgated as rule 1, the rule was “intended to provide a procedural mechanism for raising those collateral posteonviction challenges to the legality of criminal judgments that were traditionally cognizable in petitions for writs of habeas corpus.” Baker v. State, 878 So.2d 1236, 1239 (Fla.2004). Initially, the rule “specifically provided that all motions filed pursuant to the rule ‘may be made at any time.’ ” Id. at 1242 (quoting In re Criminal Procedure Rule No. 1, 151 So.2d 634, 634 (Fla.1963)). In 1984, the supreme court, “in the interests of finality,” amended the rule by, among other things, placing a two-year limitations period for filing the motion, subject to certain exceptions. Id. at 1243. The two-year statute of limitations was added “[i]n order to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice.” Id.; see also Fla. Bar re: Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So.2d 907 (Fla.1984); McCrae v. State, 437 So.2d 1388, 1391-92 (Fla.1983) (Alderman, C.J., concurring in result only). In Johnson v. State, 536 So.2d 1009, 1011 (Fla.1988), the court explained the balance it had attempted to strike:

The credibility of the criminal justice system depends upon both fairness and finality. The time limitation of rule 3.850 accommodates both interests. It serves to reduce piecemeal litigation and the assertion of stale claims while at the same time preserves the right to unlimited access to the courts where there is newly discovered evidence or where there have been fundamental constitutional changes in the law with retroactive application.

See also Haag v. State, 591 So.2d 614, 616 (Fla.1992) (“[T]he right to habeas relief, like any other constitutional right, is subject to certain reasonable limitations consistent with the full and fair exercise of the right_ [T]he two-year time limitation imposed by Rule 3.850 serves to promote the fairness and finality required of our criminal justice system.”). In light of the foregoing, we hold that we should not en-graft an additional exception onto the rule but rather should apply the rule as written. Accordingly, we affirm the denial of Carbajal’s motion.

Affirmed; conflict certified.

KHOUZAM, J., Concurs.

VILLANTI, J., Concurs specially with opinion.

VILLANTI, J.,

Concurring specially.

While I thoroughly concur with the majority’s rejection of Carbajal’s contention that “a rule 3.850 motion can be filed at any time if it asserts a claim based on the circuit court’s lack of jurisdiction,” I write to point out that even if Carbajal’s claim had been timely filed, the postconviction court properly denied relief because the record before that court showed that the Statewide Prosecutor did have jurisdiction to prosecute Carbajal.

Florida Rule of Criminal Procedure 3.190 provides, in pertinent part,

(b) Motion to Dismiss; Grounds. All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.
(c) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived.

Fla. R.Crim. P. 3.190 (underline emphasis added).

Our record does not show that Carbajal ever filed a motion to dismiss attacking the form or substance of the information filed by the Statewide Prosecutor. Nor did he ever file a motion to dismiss based on lack of jurisdiction. Instead, he pleaded no contest to the charges against him without preserving any alleged errors or reserving his right to appeal any pre-plea rulings of the trial court. Now, five years after the plea, he seeks to raise the alleged lack of jurisdiction by the Statewide Prosecutor in this untimely rule 3.850 motion.

I recognize that if the Statewide Prosecutor files an information but lacks jurisdiction to prosecute the case, the trial court’s jurisdiction is not properly invoked. See, e.g., Brown v. State, 917 So.2d 272, 273 (Fla. 5th DCA 2005); Winter v. State, 781 So.2d 1111, 1114 (Fla. 1st DCA 2001); cf. Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927) (holding that the information must establish that the court has jurisdiction over both the subject matter and the parties). As such, any judgment arising from that prosecution would be void and subject to attack even if the defendant had pleaded guilty to the charges. See, e.g., Brown, 917 So.2d at 273; Booker v. State, 497 So.2d 957 (Fla. 1st DCA 1986). Such an attack could be raised by way of a motion for postconviction relief. Brown, 917 So.2d at 273. Further, this attack would raise a “fundamental ground” under rule 3.190(c) that would not be waived by the lack of a pre-plea motion to dismiss.

However, a defendant filing a postcon-viction motion is entitled to relief from an allegedly void judgment only if that judgment is, in fact, void. If the trial court actually had jurisdiction, the defendant’s conviction is not void. Accordingly, when a defendant challenges the jurisdictional allegations of an information for the first time in a motion for postconviction relief, the circuit court must make a factual determination concerning the existence of jurisdiction before providing relief. See Brown, 917 So.2d at 273 (reversing summary denial of rule 3.850 motion attacking the jurisdiction of the statewide prosecutor and remanding for the circuit court to consider the issue on its merits); compare Winter, 781 So.2d at 1115 (reversing conviction as void based on lack of jurisdiction when the Statewide Prosecutor conceded that the events charged in the information occurred only in one judicial circuit).

Here, the postconviction court did exactly this. Faced with Carbajal’s motion, the postconviction court considered the record presented by the parties and determined that the Statewide Prosecutor did actually have jurisdiction to file the information even though such jurisdiction was not apparent on the face of the information that was filed. Because the record showed that the Statewide Prosecutor actually had jurisdiction, Carbajal’s judgment was not void. Accordingly, Carbajal was not entitled to relief, and I would affirm the post-conviction court on the merits as well.

      . Were we to reach the merits, we nevertheless would affirm. Contrary to the conclusion reached by our sister courts in Luger and Winter, we conclude that even if the Statewide Prosecutor did not have jurisdiction to prosecute the case, the circuit court still had jurisdiction over these felonies.

      . We acknowledge that our decision conflicts with these cases and accordingly certify conflict.