author: STEVENSON, J.

text:
    ROYAL PALM COLLECTION, INC., Appellant, v. George B. LEWIS and Carlene Dinnall-Lewis, Appellees.
    No. 4D09-1127.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2010.
    Robert D. Jones of Fuchs and Jones, P.A., Royal Palm Beach, for appellant.
    George B. Lewis of the Law Office of George B. Lewis P.A., Loxahatchee, for appellees.
   STEVENSON, J.

The parties to this appeal participated in arbitration after disputes arose concerning Royal Palm Collection, Inc.’s (“Royal Palm”) construction of a home for George and Carlene Lewis. Subsequent to arbitration, the builder, Royal Palm, filed motions seeking (1) the addition of some $34,510 to the arbitration award, claiming that the arbitrator’s failure to include said sum was an “evident miscalculation”; (2) the award of prevailing party attorney’s fee; and (3) the entry of final judgment allowing for foreclosure of its construction lien. The trial court denied each of Royal Palm’s motions and entered a final judgment awarding damages to the builder in the amount determined in the arbitrator’s award. In this appeal, Royal Palm challenges the trial court’s rulings on each of these issues and the trial court’s award of prejudgment interest. We affirm the order appealed in all respects, save the trial court’s refusal to enter a judgment providing for foreclosure of Royal Palm’s construction lien and write to address this issue.

In 2005, Royal Palm sued the Lewises, seeking to foreclose on a $72,339 construction lien it had recorded pursuant to chapter 713, Florida Statutes (count I); the establishment of an equitable lien in the amount of $72,339 (count II); and damages under breach of contract and quantum me-ruit theories (counts III and IV, respectively). The Lewises answered and raised a variety of counterclaims. As the parties’ contract contained an arbitration clause, the parties were ordered to arbitration.

Following a five-day hearing, the arbitrator awarded Royal Palm $38,528.88, finding that it was entitled to be paid for the “actual construction that was put in place by them.” The arbitrator rejected Royal Palm’s claim that the Lewises had breached the contract, but found as follows with respect to its lien foreclosure claim:

Claimant[’]s claim of lien was proper in that it was their only means of protecting their interests in the project during the dispute. Florida Statutes are specific as to the time frames required for filing a lien and the time to move to foreclose on a lien. Claimant took those steps as required by law to protect their interests.

The trial court subsequently entered an order confirming the arbitrator’s award.

Thereafter, Royal Palm sought the entry of a judgment foreclosing its construction lien. The trial court refused to enter a judgment of foreclosure, indicating at the hearing that Royal Palm was not entitled to one because the arbitrator’s award was silent on the matter and the basis of the award was unclear. The trial court entered only a judgment for money damages. This was error. In this case, Royal Palm was entitled to the entry of a final judgment of foreclosure as a means of enforcing the arbitrator’s award. See §§ 713.08, 713.21, Fla. Stat. (2009); Mills v. Robert W. Gottfried, Inc., 272 So.2d 837, 839 (Fla. 4th DCA 1973) (stating that contemporaneous with confirmation of the arbitration award, the trial court “may adjudicate the right of the plaintiff to a mechanic’s lien for the purpose of enforcing such judgment as plaintiff may obtain”); see also McDaniel v. Berhalter, 405 So.2d 1027, 1029 (Fla. 4th DCA 1981) (recognizing that while a party may be required to arbitrate the issue of its entitlement to payment and the amount due, he retains the right to enforce an arbitration award by means of a mechanic’s lien), called into doubt on other grounds as stated in Fewox v. McMerit Constr. Co., 556 So.2d 419 (Fla. 2d DCA 1989); Beach Resorts Int’l, Inc. v. Clarmac Marine Constr. Co., 339 So.2d 689, 692 n. 3 (Fla. 2d DCA 1976) (stating that had the defendant failed to pay full amount of arbitrator’s award, a mechanic’s lien could have been imposed to enforce arbitrator’s award) (citing Mills).

We have reviewed the other issues on appeal and find no error. Accordingly, the instant case is remanded for further proceedings consistent with this opinion.

Affirmed in part; Reversed in part; and Remanded.

GROSS, C.J., and POLEN, J., concur.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Wesley JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2219.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, Tampa, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

      Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

Wesley Johnson appeals from his conviction and sentence for second-degree murder. We affirm. Our review of the record shows that the trial court did not abuse its discretion by refusing to give the jury instruction on “independent act.” The evidence does not support the instruction.

Johnson was charged with first-degree murder, but was convicted of second-degree murder as a lesser included offense, robbery with a firearm, and trespass of an occupied structure while armed (all lesser-included offenses). According to the testimony of co-defendant Bjorn Blake, Johnson and five others went to the victim’s home armed with two baseball bats and a machete in order to rough him up and take a gun from him. They broke into the victim’s home after midnight and dragged him out of his bed; Johnson allegedly hit the victim in the knees and lower back with one bat and duct-taped his legs together while one of the co-defendants hit him with a metal bat, and another co-defendant, Willie Velez, savagely beat the victim in the head with a hammer. Blake testified that it was not the group’s intent to kill the victim, but merely to beat him up; Blake testified that Velez was clearly out of control when he Ijeat the victim to death. Blake testified that Johnson was the last person to leave the house, after ransacking the closet and finding the gun they were looking for.

At trial, Johnson’s counsel raised two defense theories: 1) that Johnson was not present the night of the murder and; 2) if he was present, then co-defendant Velez’s fatal beating of the victim was an unforeseen independent act falling outside of the original plan. During the charge conference, the trial court initially agreed to give the defense’s requested standard jury instruction on independent act. Prior to closing, however, the State objected to inclusion of this instruction. After discussion, the trial court agreed that the evidence did not support application of the independent act instruction, and refused to include it. We agree with the trial court’s ruling.

A defendant is entitled to have the jury instructed on the law applicable to his theory of defense. No instruction is necessary, however, where there is no evidence to support the theory. Ray v. State, 755 So.2d 604 (Fla.2000). An independent act occurs when a co-felon commits or attempts to commit a crime that was not part of the common plan and that the defendant did not intend to occur, and in which the defendant did not participate, and those acts are outside of and not a reasonably foreseeable consequence of the common design or unlawful acts contemplated by the defendant. See Standard Jury Instruction (Criminal) 3.6(i), Independent Act; Ray, 755 So.2d at 609; Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990)). Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces that they set in motion, the independent act instruction is inappropriate. See Lovette v. State, 636 So.2d 1304 (Fla.1994); Perez v. State, 711 So.2d 1215 (Fla. 3d DCA 1998); Archer v. State, 613 So.2d 446, 448 (Fla.1993) (holding that the independent act theory is inappropriate when the defendant created the situation and the victim’s death was a natural and foreseeable result of forces that the defendant set in motion).

We find that the trial court did not abuse its discretion to decline to instruct the jury on the independent act defense where, as here, death was a reasonably foreseeable consequence of the plan. The evidence showed that the defendant was a willing participant in the plan to beat up the victim, and that the group brought baseball bats and a machete with them for that purpose. They broke in to the victim’s home in the middle of the night; bound his feet and beat him about the body and head. There is no evidence from which the jury could have reasonably found that the killing was not a reasonably foreseeable consequence of the planned beating. Further, the refusal to give a special jury instruction is not error if the charge given adequately addresses the applicable legal standard, as here, for second-degree murder under the law of principals. We find no merit in the remaining issues.

Affirmed.

      . 3.6(Z) INDEPENDENT ACT:
      If you find that the crime alleged was committed, an issue in this case is whether the crime of (crime alleged) was an independent act of a person other than the defendant. An independent act occurs when a person other than the defendant commits or attempts to commit a crime
      1. which the defendant did not intend to occur, and
      2. in which the defendant did not participate, and
      3. which was outside of, and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.
      If you And the defendant was not present when the crime of (crime alleged) occurred, that, in and of itself, does not establish that the (crime alleged) was an independent act of another.

        If you find that the (crime alleged) was an independent act of [another] [ (name of individual) ], then you should find (defendant) not guilty of the crime of (crime alleged). If the name of the other person is known, it should be inserted here; otherwise, use the word "another.”


author: COPE, J.

text:
    FIRST HOME INSURANCE CO., Appellant, v. Jean Marc FLEURIMOND, Appellee.
    No. 3D09-2034.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.

      Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood, and Carlos D. Cabrera, for appellant.
    Paul B. Feltman and Benjamin Alvarez, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   COPE, J.

This is an appeal of an order compelling appraisal. We affirm.

Plaintiff-appellee Jean Marc Fleurimond is the named insured on a homeowners insurance policy issued by First Home Insurance Company. By the terms of the policy his wife Marie Fleurimond is also an insured.

The home sustained damage during Hurricane Wilma in 2005. The insured submitted a claim. The insurer inspected the home and paid slightly under $12,000, an amount the insured deemed inadequate to repair the damage. Although the timing is not entirely clear, at some point part of the roof collapsed, causing flooding in the interior of the home. The insured retained a public adjuster who submitted an additional claim.

The insurer made a written request for the insured and his wife to appear for an Examination Under Oath (EUO). The insured and his wife appeared without counsel at the specified time and place. The insured had asked his public adjuster to appear with him at the EUO, but the public adjuster failed to appear. According to the insured, during the examination the examiner badgered him and yelled at him. After answering the examiner’s questions in English, the examiner stated that he thought there was a language problem and asked an interpreter to join them. The examiner repeated all of the same questions which were translated into Creole. After answering the second series of questions, the insured and his wife left during a break and did not reappear.

Thereafter the insured retained counsel. Counsel contacted the insurer and offered to resume the EUO. The insurer replied that it was too late and refused the offer.

The insured filed suit under the policy and demanded appraisal. The insurer opposed the appraisal demand, saying that the insured had breached his policy obligations. The trial court conducted an ev-identiary hearing at which the insured testified. As already stated, the insured testified that he had been berated and yelled at, and subjected to two examinations, one in English and the other in Creole. The insured’s counsel also testified that he made the offer to the insurer for resumption of the EUO, and that the insurer refused the offer. The EUO had been transcribed and was before the trial court. Counsel who had conducted the EUO appeared as counsel for the insurer. The trial court entered an order compelling appraisal. This appeal followed.

The insurance policy in this case provides, in part:

2. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:
f. As often as we reasonably require:
(3) Submit to examination under oath, while not in the presence of any other “insured,” and sign the same[.]

The policy also states, “No action can be brought unless the policy provisions have been complied with.... ”

The insurer maintains that the insured and his wife failed to submit to a complete EUO, thus breaching their policy obligations. The insurer also maintains that since there was no complete EUO by the insured and his wife, it follows that the insured could not file suit under the policy.

We have held that “the insured must meet all of the policy’s post-loss obligations before appraisal may be compelled.” U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467, 468 (Fla. 3d DCA 1999) (en banc). This includes the obligation to submit to an EUO. Id. at 469. Our court has said, “ ‘[T]he failure to submit to an examination under oath is a material breach of the policy which will relieve the insurer of its liability to pay.’ ” Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145, 146 (Fla. 3d DCA 1993). The insurer argues that, at a minimum, the lawsuit must be dismissed and appraisal must be denied.

We agree with the trial court in rejecting the insurer’s arguments. First, the insured and his wife appeared for the EUO at the designated time and place. The substantial issue before the trial court was whether the insured and his wife were justified in leaving the EUO. The insured testified that he was badgered and yelled at, and that he was required to answer the identical series of questions twice, once in English and once in Creole.

After the insured’s exit from the EUO, he obtained counsel who offered to present the insured and his wife for a resumption of the EUO. This was before the insured filed suit against the insurer. The insurer refused the offer. It was not until after the insurer refused the offer that the insured filed suit. On these facts we entirely agree with the trial court that the lawsuit was not premature, and appraisal was properly ordered.

The insurer also contends that the insured failed to file a timely sworn proof of loss. That argument is without merit. The insurance policy requires the filing of a sworn proof of loss within sixty days after the insurance company requests it. The insurer never requested a sworn proof of loss prior to suit being filed.

Affirmed.

       Appellate counsel for the insurer was not trial counsel below.


author: PER CURIAM.

text:
    Nancy FERNANDEZ, Appellant, v. GUARDIANSHIP OF Elsa Maria FERNANDEZ, Appellee.
    No. 3D09-1000.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Stratton & Feinstein, and Douglas D. Stratton and Alicia Almansa Roman, for appellant.
    De la O, Marko, Magolnick & Leyton and Miguel M. de la O, Miami, for appel-lee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

This is an appeal of an order denying a verified petition to determine incapacity. We remand for a new trial.

Nancy Fernandez, the daughter, filed a verified petition to determine incapacity of her mother, Elsa Maria Fernandez. The court appointed an examining committee. Two members of the examining committee recommended a limited guardianship and the third member concluded that no guardianship was necessary.

The matter came before the trial court for an evidentiary hearing. The mother and daughter were present and each was represented by counsel. Other witnesses were also present and testified. The trial court denied the petition and the daughter has appealed.

The daughter contends that the trial court failed to follow proper trial procedure. We conclude that the daughter’s argument is well taken.

We surmise that the trial court, acting from the best of motives, decided that the hearing would proceed more expeditiously if the trial court conducted the examination of witnesses instead of allowing counsel to do so. The trial court swore the witnesses and denied the daughter’s request to invoke the rule of exclusion of witnesses. The court called and questioned the witnesses, affording almost no opportunity for examination or cross-examination by the parties. There were no opening or closing statements.

Respectfully, this was not proper procedure. The Florida Probate Rules provide that in adversary proceedings, “the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern.... ” Fla. Prob. R. 5.025(d)(2). See generally In re Guardianship of King, 862 So.2d 869, 870-71 (Fla. 2d DCA 2003); The Florida Bar, Litigation Under Florida Probate Code § 1.6 (7th ed. 2009); 28 Fla. Jur. 2d Guardian and Ward, § 35 (updated Feb. 2010). “The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.” § 744.331(5)(a), Fla. Stat. (2008).

As this was an evidentiary hearing in a contested proceeding, the matter should have been tried as is customary in a bench trial. The parties should have been given an opportunity to make opening and closing statements. Each party should have been given an opportunity to present evidence, call and question witnesses, and cross-examine the other side’s witnesses. When the guardian ad litem gave her report, cross-examination by the parties should have been allowed.

At the start of the hearing, the daughter invoked the rule of exclusion of witnesses. The trial court denied that request. The request should have been granted. The Evidence Code provides:

90.616 Exclusion of witnesses.—
(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(b) In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

§ 90.616, Fla. Stat. (2008) (emphasis added).

The parties, of course, were not subject to exclusion. Id. § 90.616(2)(a). The other fact witnesses were all relatives of the parties. Because the daughter timely invoked the rule, the relatives should have been excluded.

For the stated reasons, we reverse the order now before us and remand for a new trial. We express no opinion on the merits of the petition.

Reversed and remanded for new trial.

       The daughter does not complain about the fact that the guardian ad litem was allowed to remain.


author: VILLANTI, Judge.

text:
    Clinton Clemente RODRIGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-2451.
    District Court of Appeal of Florida, Second District.
    June 4, 2010.
    Clinton Clemente Rodriguez, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa for Respondent.
   VILLANTI, Judge.

Clinton Clemente Rodriguez, in a petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises nine grounds alleging ineffective assistance of appellate counsel. We grant the petition as to grounds two and nine, and we deny the remaining grounds without comment.

Rodriguez was charged, along with co-defendants Jose Negron Gil De Rubio (Negron), Rafael Menendez, Nelson Mon-serrote, and Jeffrey Rodriguez, with racketeering, conspiracy to commit racketeering, conspiracy to traffic in cocaine, money laundering, possession of cocaine with intent to sell or deliver, and possession of cannabis with intent to sell or deliver. Rodriguez was tried jointly with Negron, and Menendez and Jeffrey Rodriguez testified as State’s witnesses. After a jury trial, Rodriguez was convicted as charged, and his judgment and sentences were affirmed on direct appeal. Rodriguez v. State, 993 So.2d 527 (Fla. 2d DCA 2008) (table decision).

In the second ground of his petition, Rodriguez contends that appellate counsel was ineffective in failing to argue that the trial court erred in denying his motion for judgment of acquittal on the basis that there was insufficient evidence of money laundering for that charge to go to the jury. Our review of the record leads us to agree.

The money laundering count of the information alleged that Rodriguez, Negron, Menendez, Monserrote, and Jeffrey Rodriguez

on the 4th day of May, 2005 ... while knowing that the 'property involved in a financial transaction represented the proceeds of some form of unlawful activity, did conduct or attempt to conduct such a financial transaction which in fact involved the proceeds of specified unlawful activity, with the intent to promote the carrying on of specified and unlawful activity or knowing that the transaction is designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity, in an amount exceeding $20,000 but less than $100,000 in a 12-month period.

(Emphasis added.) The information alleged that this conduct was a violation of section 896.101(3), Florida Statutes (2005).

At trial, the testimony established that Negron regularly mailed large quantities of cocaine from Puerto Rico to Monserrote in Florida. Monserrote would then provide smaller quantities of cocaine to other dealers, who would sell the cocaine before paying Monserrote for it. Rodriguez was one of the people to whom Monserrote would provide cocaine. Periodically, Mon-serrote would meet with Menendez and give him the money he had collected from the cocaine sales. Menendez would then fly to Puerto Rico with the money to pay Negron. On May 4, 2005, Monserrote was stopped on 1-75 on his way to meet Men-endez to give him money to take to Neg-ron. Almost $58,000 in cash and a half a kilo of cocaine were found in Monserrote’s vehicle.

In his motion for judgment of acquittal, Rodriguez argued that the State had presented no evidence that he ever gave any money or other property to Mon-serrote or that he engaged in any financial transaction with Monserrote or the other codefendants and thus the State had failed to prove the charge of money laundering. While the State presented evidence that Monserrote was attempting to collect money from Rodriguez, it presented no evidence that Monserrote had, at any time, actually collected that money or any part of it. Based upon our record review, we agree with Rodriguez that this evidence was legally insufficient to prove the charge of money laundering against him and that this issue was sufficiently preserved for review. We therefore conclude that appellate counsel was ineffective in failing to raise this issue on direct appeal. Because a new appeal would be redundant in this instance, we simply reverse the money laundering conviction and remand for the trial court to strike that conviction and its resulting sentence. See Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005).

In ground nine of the petition, Rodriguez alleges that appellate counsel was ineffective in failing to argue that a double jeopardy -violation occurred when he was convicted of both conspiracy to commit racketeering and conspiracy to commit drug trafficking. He relies on Negron Gil de Rubio v. State, 987 So.2d 217 (Fla. 2d DCA 2008), and Durden v. State, 901 So.2d 967 (Fla. 2d DCA 2005), both of which support his argument here.

As noted above, Negron and Rodriguez were tried jointly. Count two of the su-persedeas information charged Rodriguez, Negron, Menendez, Monserrote, and Jeffrey Rodriguez with conspiracy to commit racketeering. That count alleged, inter alia, that Rodriguez and the others conspired to traffic in cocaine between April 1, 2005, and May 12, 2005. Count four charged the same defendants with conspiracy to traffic in cocaine on or about May 4, 2005. There was no evidence that Rodriguez or the others engaged in a conspiracy to traffic in cocaine after May 4, 2005, which was the date Monserrote was stopped by the police.

In his direct appeal, Negron argued that the Double Jeopardy Clause prohibited convictions for both conspiracy to traffic in cocaine and conspiracy to commit racketeering. Negron Gil de Rubio, 987 So.2d at 218. In reversing Negron’s conspiracy to commit racketeering conviction, this court noted: “[T]he State proved that Negron took part in a single conspiracy with multiple objectives, including racketeering and drug trafficking. There was no evidence to suggest that a first conspiracy was consummated, abandoned, or otherwise terminated prior to the formation of a second conspiracy.” Id. at 219. This court also cited Durden for the proposition that “[i]f there is but a single agreement, then there is but a single conspiracy even though it involves the commission of multiple crimes.” Id. (citing Durden, 901 So.2d at 967).

The same rationale that applied in Neg-ron Gil de Rubio applies to Rodriguez’s participation in the conspiracy here. Further, the opinion in Negron Gil de Rubio was issued a month prior to the issuance of our per curiam opinion in Rodriguez’s direct appeal. However, Rodriguez did not preserve this issue for review by first raising it in the trial court.

Despite this lack of preservation, however, we hold that Rodriguez is entitled to relief on this issue. In Rios v. State, 19 So.3d 1004, 1006-07 (Fla. 2d DCA 2009), this court held that counsel was ineffective in failing to argue that Rios’s convictions for both conspiracy to commit racketeering and conspiracy to traffic in heroin violated double jeopardy protections. Like Rodriguez, Rios did not preserve the issue in the trial court. However, we held that because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal. Id. at 1006. Thus, we found that appellate counsel was ineffective in failing to argue that Rios’s dual conspiracy convictions were prohibited by double jeopardy considerations and we granted Rios relief on this claim. Id. at 1006-07. We likewise grant relief to Rodriguez here.

The only remaining question is the proper remedy. In Negron Gil de Rubio, we held that the proper remedy for this type of double jeopardy violation was to strike the conviction that drew the lesser sentence. 987 So.2d at 219; accord Rios, 19 So.3d at 1007. In the present case, Rodriguez was sentenced to fifty years’ prison as a habitual felony offender on the conspiracy to commit racketeering, and he was sentenced to fifty years’ prison as a habitual felony offender with a fifteen-year minimum mandatory sentence on the conspiracy to traffic in cocaine. Accordingly, because it drew the lesser sentence in this case, we reverse Rodriguez’s conviction for conspiracy to commit racketeering and remand to the trial court to strike that conviction and sentence. See Rios, 19 So.3d at 1007; Safrany, 895 So.2d at 1147.

Petition granted in part, denied in part, and remanded with instructions.

SILBERMAN and WALLACE, JJ„ Concur.


author: MORRIS, Judge.

text:
    FL-CARROLLWOOD CARE CENTER, LLC; Senior Health Management, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Rick Knight; and Carla Russo, Appellants, v. Loly JARAMILLO, as Personal Representative of the Estate of Jerry Jaramillo, Sr., Deceased; WKTM-Florida, LLC; CSE SNF Holding, LLC; and Capital Source, Inc. (as to Carrollwood Care Center), Appellees.
    No. 2D09-2896.
    District Court of Appeal of Florida, Second District.
    June 4, 2010.

      Brooke Madonna and Amy L. Christian-sen of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., for Appellee Loly Jaramil-lo.
    No appearance for Appellees WKTM-Florida, LLC; CSE SNF Holding, LLC; and Capital Source, Inc.
   MORRIS, Judge.

FL-Carrollwood Care Center, LLC; Senior Health Management, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Rick Knight; and Carla Russo (collectively referred to as the appellants) appeal a nonfinal order denying their motion to compel arbitration in a civil action filed by the estate of Jerry Jaramillo, Sr. (the Estate), against the appellants. We reverse the order and remand for further proceedings.

The Estate filed a complaint against the appellants for violations of chapters 400 and 415, Florida Statutes (2006), and common law breach of fiduciary duty, relating to the care and treatment received by Jerry Jaramillo when he was a resident at a nursing home operated by the appellants. The appellants filed a motion to compel arbitration pursuant to the terms of an arbitration agreement signed by Jerry Jaramillo’s wife and attorney-in-fact, Loly Jaramillo, when Jerry Jaramillo entered the care of the nursing home.

The trial court held a hearing on the appellants’ motion to compel arbitration. The Estate argued that the arbitration agreement is not enforceable because it is substantively unconscionable because it limits discovery and economic damages, which the Estate argued is contrary to the remedial purpose of chapter 400. The Estate also argued that the agreement is procedurally unconscionable and proffered testimony relevant to that factual question. The appellants responded that the resolution of such a factual question would require an evidentiary hearing. When the appellants argued that any unconscionable provisions of the agreement are severable, the Estate responded that severability is only an issue when considering whether a provision is against public policy and the Estate specifically stated that it was not arguing that the agreement is against public policy. At the conclusion of the hearing, the trial court denied the motion, stating that “it’s against public policy” and referring to this court’s opinion in Woebse v. Health Care & Retirement Corp. of America, 977 So.2d 630 (Fla. 2d DCA 2008).

On appeal, the appellants argue that the trial court misapplied this court’s decision in Woebse and that the trial court did not employ the proper unconscionability analysis. The Estate concedes that the trial court should have held an evidentiary hearing on the issue of unconscionability. We agree with the appellants’ arguments on these points.

The trial court erred in denying the motion to compel arbitration on the basis of public policy because the public policy issue was never raised by the Estate and this court’s decision in Woebse did not turn on the issue of public policy. See Woebse, 977 So.2d at 633-35 & n. 5 (reversing on the basis of unconscionability and noting that “the issue of whether an agreement is void for violating public policy is a separate and distinct issue from whether an agreement is unconscionable”). We also note that the issue of whether an arbitration agreement is void as being against public policy is an issue that is for the arbiter in the first instance. See Jaylene, Inc. v. Steuer ex rel. Paradise, 22 So.3d 711, 713 (Fla. 2d DCA 2009); Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86, 89 (Fla. 2d DCA 2005).

The trial court should have considered the issue raised by the Estate in ruling on the appellants’ motion to compel arbitration. “When the ‘party opposing arbitration disputes the ... validity of the agreement to arbitrate, the trial court must resolve that issue as a part of its consideration of the motion seeking to compel arbitration.’ ” Estate of Blanchard ex rel. Blanchard v. Cent. Park Lodges (Tarpon Springs), Inc., 805 So.2d 6, 9 (Fla. 2d DCA 2001) (quoting Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999)). “Section 682.03(1), Florida Statutes [ (2008) ], furnishes a guide to the procedure that the trial court must follow in” resolving the validity of an agreement to arbitrate. Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 532 (Fla. 2d DCA 2005). The statute provides as follows:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

§ 682.03(1); see also Estate of Blanchard ex rel. Blanchard, 805 So.2d at 9 (“If there are disputed issues regarding the making of the agreement, the court must summarily hear and determine the issue in an expedited evidentiary hearing.” (citing Jalis Constr., Inc. v. Mintz, 724 So.2d 1254 (Fla. 4th DCA 1999))).

“To succeed on an unconsciona-bility claim, there must be a showing of both procedural and substantive uncon-scionability.” Woebse, 977 So.2d at 632 (citing Bland ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006)). Procedural uncon-scionability necessarily takes into account the manner in which the agreement was made. Id. At the hearing, the Estate argued that

the facts are identical, really, to the Woebse case, in that it was a five-minute process where she was told to sign here and here, that she didn’t read the agreement. It wasn’t explained as an arbitration agreement to her. It was not explained that it was a voluntary process.

Thus, the Estate sufficiently demonstrated that a disputed issue exists as to the making of the agreement so as to require an evidentiary hearing. See Linden v. Auto Trend, Inc., 923 So.2d 1281, 1283 (Fla. 4th DCA 2006) (recognizing that a party may demonstrate that a disputed issue exists as to the making of an arbitration agreement through arguments of counsel at a hearing). Accordingly, the trial court should have held an evidentiary hearing to resolve the issue of procedural unconscionability.

If the trial court concludes that the agreement is procedurally unconscionable, the trial court must also determine whether the agreement is substantively unconscionable on the basis that it limits discovery and noneconomic damages. See, e.g., Prieto v. Healthcare & Ret. Corp. of Am., 919 So.2d 531, 533 (Fla. 3d DCA 2005) (“The agreement herein deprives the nursing home resident of significant remedies provided for by the statutes. Specifically, it limits non-economic [sic] damages, bars punitive damages and attorney’s fees, and restricts access to discovery necessary to prove statutory violations. For these reasons, we conclude that the agreement is substantively unconscionable.” (footnote omitted)); Romano ex rel. Romano v. Manor Care, Inc., 861 So.2d 59, 62-63 (Fla. 4th DCA 2003) (holding agreement was substantively unconscionable because it prevented arbiter from awarding punitive damages and attorney’s fees, awards that were intended by the legislature to be awardable); see also Woebse, 977 So.2d at 634-35 (agreeing with and adopting analysis in Romano and holding that arbitration agreement identical to one in Romano was substantively unconscionable because it limited the right to punitive damages).

Because the trial court did not employ an unconscionability analysis and instead ruled on the issue of public policy which was not before it, we reverse the order denying the appellants’ motion to compel arbitration and remand for the trial court to resolve the issue of unconscionability in a manner consistent with this opinion. We do not address the other issues raised by the appellants on appeal as they are either moot or premature.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


text:
    James CANNADY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-921.
    District Court of Appeal of Florida, Third District.
    June 9, 2010.
    James Cannady, in proper person.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Order vacated. Cause remanded for attachment of transcript of the January 8, 2009 hearing. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2006).


author: ROTHENBERG, J.

text:
    Wilfredo ULLOA, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D10-1240.
    District Court of Appeal of Florida, Third District.
    June 9, 2010.
    Lopez & Best, and Virginia M. Best, for petitioner.
    Michael J. Neimand, Miami, for respondent.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

This is a petition for second-tier certio-rari in a case involving- Personal Injury Protection benefits. The petition is denied on the authority of United Automobile Insurance Co. v. Eduardo J. Garrido, D.C., P.A., 22 So.3d 120 (Fla. 3d DCA 2009); United Automobile Insurance Co. v. Perez, 21 So.3d 886 (Fla. 3d DCA 2009); Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009); United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) (en banc), petition for review pending, No. SC09-2100, proceedings stayed (Fla. Jan. 5, 2010); United Automobile Insurance Co. v. Miami Medical Group, Inc., 20 So.3d 999 (Fla. 3d DCA 2009); United Automobile Insurance Co. v. Metro Injury & Rehab Center, 16 So.3d 897 (Fla. 3d DCA 2009).

Petition denied.


text:
    Yves NAZIEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2966.
    District Court of Appeal of Florida, Third District.
    June 9, 2010.
    Rehearing Denied June 29, 2010.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region of Florida, and Dan Hallenberg, Executive Assistant Regional Counsel, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Williams, 967 So.2d 941 (Fla. 1st DCA 2007) (holding that the odor of burnt marijuana emanating from a vehicle constitutes probable cause to search the occupants of the vehicle); State v. T.P., 835 So.2d 1277, 1278 (Fla. 4th DCA 2003) (holding that the smell of burnt marijuana alone provided probable cause to search the defendant’s car for contraband).


text:
    Charmarkco Shawn EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5140.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Charmarkco Evans and his brother, Sharmarkco, were jointly tried for aggravated assault and false imprisonment with a firearm. In this appeal, Charmarkco Evans insists a prospective juror’s comments during voir dire compelled the granting of his motion for mistrial. We find merit in Evans’ argument, reverse the conviction, and remand for a new trial.

During jury selection, in response to questions regarding whether anyone was familiar with the case or the parties, one of the prospective jurors indicated he worked at the county jail and knew the defendants “from work.” Later, this same juror indicated that he was a detention deputy at the jail. Finally, when the prosecutor began to question this juror as to whether he could be fair given his job as a jail detention deputy, the prospective juror responded that he had been in contact with the Evans brothers “[qjuite a bit already.” This prompted an objection and a motion for mistrial, which was denied. The objection and motion were renewed prior to the swearing of the jury. The trial judge persisted in her ruling, remarking that the juror had.indicated only that he worked at the jail and knew the defendants from jail and since everyone knows that a person goes to jail upon arrest, there was no prejudice.

“Defendants have a constitutional right to a trial by an impartial jury.” Holt v. State, 987 So.2d 237, 239 (Fla. 1st DCA 2008). This right is violated when jurors are inadvertently informed that the defendant has other, pending charges. See, e.g., Holt, 987 So.2d at 239-40 (reversible error where defendant was to be tried on a single count of armed robbery, but judge made comment indicating defendant was charged with two counts); Jackson v. State, 729 So.2d 947, 950-51 (Fla. 1st DCA 1998) (reversible error where defendant was to be tried on single count and, in presence of jury, judge asked prosecutor whether he was proceeding on all four counts). Such right is also violated where the jury is inadvertently informed that the defendant, whose guilt they are about to decide, is a convicted felon. In Richardson v. State, 666 So.2d 223 (Fla. 2d DCA 1995), juries were simultaneously selected for three criminal trials. During jury selection, a prospective juror indicated several times that she worked as a corrections officer at Polk Correctional Institution. When jury selection began for Richardson’s trial, there was an exchange between this juror and the prosecutor. “The exchange between the prosecutor and this prospective member of the jury suggested that she knew Richardson through her employment, implying that he was a convicted felon who previously served time.” Id. at 224. The Second District held that it was error for the trial court to deny defense counsel’s motion to strike the entire veni-re.

Similarly, here, as in Richardson, the other jurors could have understood the deputy’s comment that he had been in contact with the Evans brothers “[qjuite a bit already” as an indication that, through his job, the deputy had had multiple occasions, over time, to come into contact with the defendant and, thus, as a suggestion that the defendant had prior criminal charges and/or convictions. Accordingly, we reverse the defendant’s judgment of conviction and remand for a new trial.

Reversed and Remanded.

GROSS, C.J., and CIKLIN, J., concur.


author: SILBERMAN, Judge.

text:
    Fred Wykme BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-954.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.
    Fred Wykme Brown, pro se.
   ORDER DISMISSING APPEAL

SILBERMAN, Judge.

Frederick Wykme Brown appeals the circuit court’s order dismissing his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure B.850. The circuit court found that all of Mr. Brown’s claims were facially insufficient for failure to specifically demonstrate how his counsel’s alleged deficiencies affected the outcome of the proceedings. The court therefore dismissed the motion without prejudice, noting that time remained under the two-year limitation of rule 3.850 for Mr. Brown to file a facially sufficient motion. Because the dismissal was without prejudice, the order is not a final order, and the circuit court appropriately did not admonish Mr. Brown to appeal within thirty days. Nevertheless, Mr. Brown did so.

We dismiss this appeal for lack of jurisdiction. However, we note that this court has expressed concern as to the practice of dismissing a postconviction motion for facial insufficiency without specifying a reasonable time limit within which to amend. See Moreland v. State, 32 So.3d 782 (Fla. 2d DCA 2010) (highlighting “the procedural difficulties that can arise when a post-conviction court denies or dismisses a motion as facially insufficient without giving the movant at least one opportunity to amend within a specified amount of time”). Here, Mr. Brown’s two-year time limit under rule 3.850 will have expired by the time that this opinion issues. Therefore, this dismissal is without prejudice for Mr. Brown to file an amended motion in the circuit court within thirty days of the date on which this opinion becomes final.

ALTENBERND and WHATLEY, JJ., Concur.


author: ALTENBERND, Judge.

text:
    James E. WOOTEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3231.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.
   ORDER DISMISSING APPEAL

ALTENBERND, Judge.

James E. Wooten appeals from the dismissal without prejudice of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court judge found that all of his claims related to the entry of a plea were facially insufficient because Mr. Wooten did not specifically explain how he was prejudiced by his counsel’s deficient performance. The court appropriately dismissed the motion and permitted Mr. Wooten to refile an amended version within sixty days of the date of its order. Unfortunately, however, the court also advised Mr. Wooten that he had only thirty days to appeal the order. “That advice was legally incorrect.” See Callaghan v. State, 32 So.3d 72, 73 (Fla. 2d DCA 2009) (citing Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008)).

A dismissal of a postconviction motion without prejudice, which contemplates further amendment or refiling before it can be considered on its merits, is a nonfinal, nonappealable order. See Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 563 (Fla. 2d DCA 2008). It appears that Mr. Wooten has until sometime in November 2010 before his time to file motions under rule 3.850 will have expired. However, the circuit court’s admonition to refile the motion within a specific time has been approved by this court as a way to insure that rule 3.850 motions raising one or more claims are ripened and ready for disposition on the merits — and further appellate review if denied — in a timely and efficient manner. See Havens, 27 So.3d at 804; Christner, 984 So.2d at 563. Therefore, this court’s dismissal is without prejudice for Mr. Wooten to refile his amended motion in the circuit court within sixty days of the date on which this opinion becomes final.

YILLANTI and LaROSE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Jessie MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4329.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Jessie Montgomery appeals his judgment and sentence for lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2008). The trial court sentenced Montgomery to twenty-five years in prison, followed by sex offender probation for the remainder of his life. See § 775.082(3)(a)(4)(a)(II), Fla. Stat. (2008). Both the orally pronounced sentence and the written sentence provide that Montgomery’s sentence is a minimum mandatory sentence “if required” by statute. We affirm Montgomery’s judgment and sentence but write to clarify that section 775.082(3)(a)(4)(a)(II) does not require a minimum mandatory sentence.

Montgomery was sentenced pursuant to section 775.082(3)(a), which provides:

(3) A person who has been convicted of any other designated felony may be punished as follows:
4. a. Except as provided in sub-sub-paragraph b., for a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in s. 948.012(4).

The State concedes, and we agree, that Montgomery’s sentence is not a minimum mandatory sentence. If the legislature intended to impose a minimum mandatory sentence, the statute would have included specific language to that effect. See §§ 316.1935(6), Fla. Stat. (2008); 775.087(2) & (3); 784.07(3)(b), Fla. Stat. (2008); 794.0115(7), Fla. Stat. (2008) (providing that a defendant “is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149,” prior to serving the minimum sentence). See also § 775.082(9)(b) (“A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.”); § 893.135(3), Fla. Stat. (2008) (“A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.”).

Moreover, if there is any ambiguity in the language of section 775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant. See § 775.021(1). Accordingly, we affirm Montgomery’s judgment and sentence but note that his sentence does not provide for a minimum mandatory term of imprisonment.

Affirmed.

CRENSHAW and MORRIS, JJ., Concur.


author: DAVIS, Judge.

text:
    Jennard HAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4800.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.
   DAVIS, Judge.

Jennard Ham appeals an order denying a petition seeking an extension of time to file his second motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because such an order is nonfinal, we dismiss this appeal.

In 2006, Ham pleaded guilty to trafficking in cocaine and was sentenced to fifteen years in prison. The judgment and sentence were affirmed on direct appeal. See Ham v. State, 963 So.2d 709 (Fla. 2d DCA 2007) (table decision). Because the mandate issued on September 21, 2007, Ham had until September 21, 2009, to timely file a rule 3.850 motion. See Fla. R.Crim. P. 3.850(b). Ham did file one rule 3.850 motion in November 2007, the denial of which was affirmed by this court. See Ham v. State, 999 So.2d 650 (Fla. 2d DCA 2009) (table decision).

Then, in October 2009, Ham filed a petition with the trial court asking for additional time to file a second rule 3.850 motion. Ham’s petition essentially requested permission to file a second postconviction motion without risk that it would be dismissed as successive under rule 3.850(f). The postconviction court summarily denied Ham’s petition because he had failed to attach a copy of his postconviction motion. The court’s order noted that Ham could appeal the decision to this court within thirty days. This was erroneous advice.

[W]hen a motion for extension to file a postconviction motion is denied, the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely. Thereafter, the [postconviction] court is authorized and has discretion to dispose of the motion on the issue of timeliness or on any other dispositive issue. Obviously, the [postconviction] court cannot grant the motion in favor of the defendant unless it first determines that the motion was timely or that its earlier motion denying the extension warrants reconsideration. This court will review the denial of the motion to extend time, if necessary, when reviewing the order disposing of the postconviction motion.

Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010). Because, at this juncture, we do not have a final, appealable order for review, we dismiss this appeal. Ham shall have sixty days following the date that this opinion becomes final to file his rule 3.850 motion for postconviction relief. See id. Once he files the motion, the trial court can determine the issues of timeliness and successiveness as outlined by the case law and can then dispose of the motion on the merits, if appropriate.

Dismissed.

KELLY and WALLACE, JJ., Concur.


text:
    David ZIMMERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5020.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.
    David Zimmerman, pro se.
   VILLANTI, Judge.

David Zimmerman appeals an order denying in part and dismissing in part his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we do not have jurisdiction to review this nonfinal order, we dismiss this appeal. See Herron v. State, 34 So.3d 206 (Fla.2d DCA 2010). On remand, the postconviction court should enter a revised order allowing amendment within a reasonable time in accordance with Spera v. State, 971 So.2d 754, 761 (Fla.2007). If Zimmerman does not amend the motion within the specified time, the court should enter a final order disposing of all of Zimmerman’s claims. If he does amend the motion, the court must consider the amendment in its final disposition.

Dismissed and remanded.

ALTENBERND and DAVIS, JJ, Concur.


author: POLEN, J.

text:
    Andrea KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2770.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2010.
    Andrea Kelly, Fort Lauderdale, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Andrea Kelly, appeals the trial court’s order summarily denying her rule 3.800(a) motion to correct illegal sentence in which she alleged she was due seventy (70) days credit for time served but was given only forty-seven (47) days credit. The trial court summarily denied the motion stating that Kelly had agreed to be given only forty-seven (47) days credit for time served when she entered a plea agreement with the State. However, the order did not include any record attachments refuting the claim. Seymour v. State, 24 So.3d 794, 794-95 (Fla. 5th DCA 2009).

Therefore, we reverse the trial court’s order summarily denying Kelly’s rule 3.800(a) motion and remand for the trial court to either attach the portions of the record which refute Kelly’s claim or to grant the appropriate relief.

Reversed and remanded.

GROSS, C.J., and STEVENSON, J., concur.


author: WEIMER, Justice.

text:
    Douglas A. TIETJEN, Dwight A. Tietjen and Citizens National Bank v. The CITY OF SHREVEPORT and Claude Dance.
    No. 2009-C-2116.
    Supreme Court of Louisiana.
    May 11, 2010.
    Rogers, Hearne & Carter, LLC, Fred A. Rogers, III, Weiner, Weiss & Madison, APC, Michael Allyn Stroud, Amanda Elyce Waddell, Kathryn M. Smitherman, Shreveport, and John M. Madison, Jr., Baton Rouge, for applicant.
    The Malone Law Firm, LLC, Dannye Wayne Malone, Shreveport, for respondent.
   WEIMER, Justice.

11 Suit was filed by property owners and a mortgagee seeking a declaratory judgment to annul a tax sale based on lack of notice. The municipality and the tax sale purchaser were named as defendants. The tax sale purchaser, Claude A. Dance, Jr., failed to answer or appear and a default judgment was taken against him. Following a trial on the merits, the trial court declared the tax sale null and void.

Defendant, City of Shreveport, appealed. Dance did not appeal the judgment. The court of appeal reversed, finding the trial court erred in declaring the tax sale null and void. Tietjen v. City of Shreveport, 44,190 (La.App. 2 Cir. 5/13/09), 17 So.3d 17. Plaintiffs, Douglas A. Tietjen, Dwight A. Tietjen and Citizens National Bank, filed for a writ of certiorari with this court seeking to reverse the ruling of the court of appeal. Plaintiffs’ writ application was granted. Tietjen v. City of Shreveport, 09-2116 (La.1/8/10), 24 So.3d 872.

| aFor reasons that follow, we reverse the judgment of the court of appeal and reinstate the trial court judgment.

FACTS AND PROCEDURAL BACKGROUND

On June 3, 1985, by cash sale deed, Douglas A. Tietjen and Dwight A. Tietjen, purchased Lot 1 and part of Lot 2 of Jacobs Subdivision, in Shreveport, located on Jordan Street. The deed listed the Tietjens’ permanent mailing address as 4801 Crescent Drive in Shreveport.

On January 7, 1999, the Tietjens executed a collateral mortgage in favor of Citizens National Bank, at which time they mortgaged the subject property to secure the debt. In the collateral mortgage, Dwight Tietjen’s mailing address was listed as 4801 Crescent Drive in Shreveport. Douglas Tietjen’s mailing address was listed as 10871 Woolworth Road, Keithsville. At all pertinent times, the bank continued to hold a valid mortgage on the property.

Ad valorem property taxes for 2001 were not paid. In April 2002, the City of Shreveport began proceedings to sell the subject property at tax sale. On June 7, 2002, a tax sale deed was executed by Kenneth W. Kirspel, Deputy Tax Collector, transferring the subject property to Claude A. Dance, Jr.

The property owners were first apprised of the tax sale in August 2006 when they attempted to sell the property. The mortgagee did not receive notice of the delinquent taxes nor notice of the pending sale.

On September 29, 2006, pláintiffs filed a petition for declaratory judgment seeking to have the tax sale annulled. In the alternative, the Tietjens requested the right to redeem the property. They also sought damages and attorneys fees pursuant to 42 U.S.C. §§ 1983 and 1988 for failure of the city to provide adequate notice to |sthem and to Citizens National Bank. Subsequently, plaintiffs filed an amended petition alleging that LSA-R.S. 47:2180.1 was unconstitutional.

Following a bench trial, the court found the City of Shreveport did not properly provide notices regarding ad valorem taxes to Douglas Tietjen, Dwight Tietjen, or Citizens National Bank. The court also found the City of Shreveport did not properly provide notice to the mortgagee of the pendency of the June 2002 tax sale. Additionally, the trial court found that following the 2002 tax sale, the City of Shreveport did not properly provide notice to the property owners or the mortgagee that the property had been sold and of the rights of redemption in accordance with law.

In rendering its decision, the trial court considered the testimony of Douglas Ti-etjen and Jason Smith, senior lending officer and executive vice president of the bank, as well as the documentary evidence introduced by the parties. The documentary evidence included plaintiffs’ cash sale deed, collateral mortgage and tax sale deed and defendants’ certified mail receipts, proces-verbal, and copies of The Times newspaper. The court specifically found the two witnesses credible. The court also found notice of the pending sale provided to Ronnie Ellis, an employee of Tietjen Physical Therapy, Inc., was inadequate notice to the property owners. The trial court found lack of proper notice to the Tietjens and Citizens National Bank constituted a due process violation under both federal and state constitutions.

14Judgment was rendered declaring the tax sale to defendant, Claude A. Dance, Jr., null. The judgment included an order to the Clerk of Court of Caddo Parish to make reference to this judgment on the Tax Sale Deed.

DISCUSSION

The City appealed, arguing the trial court erred in finding that proper notice was not provided to the Tietjens. The City argued notice of the delinquent taxes and pending tax sale was sent by certified mail to the Tietjens at 1017 Jordan Street and was received as indicated by the return receipt signed by Ronnie Ellis.

The City also argued it was not required to send notice to the mortgagee because the bank failed to request notice pursuant to LSA-R.S. 47:2180.1. According to the statute, the tax collector is required to send notice of delinquent taxes to a mortgage holder only if the mortgage holder has notified the tax collector of the recorded mortgage.

The court of appeal properly noted:

The Due Process Clause of the 14th Amendment to the United States Constitution requires that deprivation of property by adjudication be preceded by notice and opportunity to be heard appropriate to the nature of the case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, [313] 70 S.Ct. 652, [656-657] 94 L.Ed. 865 (1950). An [ fielementary [and fundamental] requirement of due process in any proceeding which is to be accorded finality is notice[] reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id. [339 U.S. at 314, 70 S.Ct. at 657].

Tietjen, 44,190 at 4-5,17 So.3d at 21.

The sale of property for nonpayment of taxes is an action that affects a property right protected by the 14th Amendment. Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). In Mennonite, the court recognized that the mortgagee has a legally protected property interest and is entitled to notice reasonably calculated to apprise the mortgagee of a pending tax sale. 462 U.S. at 798,103 S.Ct. at 2711.

Following the Mennonite decision, the Louisiana Legislature enacted LSA-R.S. 47:2180.1. The statute required the tax collector to send notice to each person holding a properly recorded mortgage on immovable property for which taxes are delinquent, if such mortgage holder has notified the tax collector of such recorded mortgage and paid a fee to defray the cost of providing notice. The statute further provided that notification by the mortgagee to the tax collector shall be renewed annually.

The court of appeal found the mortgagee and the property owners failed to meet their burden of proving the invalidity of the tax sale for lack of statutory notice. Since the mortgagee did not notify the tax collector of the mortgage, the court of appeal reasoned that notice to the mortgagee was not required. Relying on Hamilton v. Royal International Petroleum Corporation, 05-0846 (La.2/22/06), 934 So.2d 25, cert. denied, 549 U.S. 1112, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007), the court of appeal found the lack of post-tax sale notice of redemption rights was insufficient to warrant nullity of the sale. The court noted the legislature did not provide a penalty if the required post-tax sale notice was not provided. Finding the district court erred in declaring the tax sale null and void, the court of appeal reversed the judgment which had been entered in favor of plaintiffs.

Although the plaintiffs pled the unconstitutionality of LSA-R.S. 47:2180.1, the trial court did not address the statute when issuing the ruling after trial on the merits. Likewise, the trial court judgment was silent regarding the statute. In a footnote, the court of appeal declined to address plaintiffs’ argument that LSA-R.S. 47:2180.1 is unconstitutional, noting the plaintiff did not answer the appeal to urge the unconstitutionality of the statute. Tietjen, 44,190 at 9 n. 5, 17 So.3d at 23 n. 5.

Following the court of appeal decision, plaintiffs filed an application for rehearing. In the rehearing application, plaintiffs called the appellate court’s attention to the fact that the return receipt filed of record by the City of Shreveport to support its position that the plaintiffs received notice of the delinquent taxes and pending tax sale did not correspond to the Jordan Street property which had been sold at tax sale. Plaintiffs argued there was no evidence of record to prove the property owners received notice prior to the tax sale. Rehearing was denied with two of the five judges on rehearing dissenting.

|7On writ to this court plaintiffs argue the court of appeal erred in finding they, as record owners, were provided with proper notice of the delinquent taxes and pending tax sale. Plaintiffs also argue the court of appeal erred in holding that the mortgagee was not entitled to notice because it failed to comply with the notice provision of LSA-R.S. 47:2180.1.

Plaintiffs argue the record lacks any evidence that notice of the delinquent taxes and pending tax sale was ever sent to the record co-owners of the property. The return receipt filed into evidence by the City to prove notice relates to an entirely different piece of property and cannot serve as proper notice to the owners of the property at the municipal address of 1017 Jordan Street. Plaintiffs argue the notice sent by the City of Shreveport was inadequate and defective and that defendants cannot rely on the constructive notice by publication to uphold the tax sale in this case.

The City of Shreveport argues the court of appeal correctly concluded that a mortgagee is not entitled to notice unless it has complied with the provisions of LSA-|R.S.s 47:2180.1(A) and that the mortgagee in this case did not comply with the statutory provision requiring notification to the tax collector.

The City of Shreveport also argues the court of appeal properly concluded the record owners were provided with proper notice of the delinquent taxes and pending tax sale. Notice was sent by certified mail to the address of the property on which the taxes were owed. It named the Ti-etjen brothers as addressees. A return receipt was received by the City showing the notice was received at the address to which it was sent. Thus, the City argues the facts clearly show the City complied with the statutory requirement for giving notice of a pending tax sale to a taxpayer.

Review of the record reflects the City of Shreveport introduced into evidence a copy of the return receipt addressed to Tietjen, Douglas A. and Dwight, 1017 Jordan St., Shreveport, LA 711010000. The return receipt, showing a delivery date of 4/8/02, was signed by Ronnie Ellis and submitted by the City as proof that the property owner received notice of the delinquent taxes and pending tax sale. The City also introduced evidence establishing that notice was published on two occasions prior to the sale in the legal notices in The Times.

Trial testimony of Douglas Tietjen established he did not recall ever seeing a notice that the property was going to be sold. Additionally, he testified he did not receive a notice that the property had in fact been sold. Douglas Tietjen also testified that Ronnie Ellis was an employee of Tietjen Physical Therapy, Inc., a corporation doing business at the 1017 Jordan Street address. At no time was she employed by either Douglas or Dwight Ti-etjen personally.

19Jason Smith also testified during the trial. He is a senior lending officer and executive vice-president of Citizens National Bank. He testified that there is nothing in the bank record to indicate the bank received notice on or before the tax sale of the property. Had the bank received a notice or otherwise become aware of the tax sale, he should have been made aware of that fact. It was his testimony that the bank did not receive notice of the tax sale subsequent to the tax sale. On cross examination, he acknowledged that, other than the recording of the mortgage in the public record, no specific notice was sent to the tax collector.

The trial court specifically found the testimony of Douglas Tietjen and Jason Smith credible.

Based on the testimony of Douglas Ti-etjen and the evidence submitted that Ronnie Ellis, an employee of the Tietjens’ corporation, signed for the notice of the pending sale, the trial court concluded there was inadequate notice to the Ti-etjens. The trial court found a due process violation under both federal and state constitutions because of lack of proper notice.

Factual determinations are subject to review for manifest error. Ferrell v. Fireman’s Fund Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. In such a review, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. | mId. at 883. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Indeed, where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Id. at 845.

After a thorough review of the record, we find the court of appeal erred in reversing the trial court judgment. The court of appeal was obligated to review the judgment under the manifest error standard of review. Review of the record indicates the trial court judgment holding the tax sale was null and of no effect was supported by the evidence of record. Applying a manifest error standard of review to the trial court judgment, it is evident the trial court did not err in ruling in favor of plaintiffs and against defendant, City of Shreveport. The court of appeal erred in overturning the judgment.

CONCLUSION

For the foregoing reasons, the decision of the court of appeal is reversed and the judgment of the trial court is reinstated.

REVERSED AND RENDERED.

      . Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine Kimball.

      . In reasons for judgment, the trial court provided "[a]ny remaining issues regarding costs, attorneys’ fees, etc. shall be resolved by stipulation or rule." The judgment signed by the trial judge held the sale was null and void and ordered the judgment be inscribed on the Tax Sale Deed. The judgment did not specifically address recovery pursuant to 42 U.S.C. §§ 1983 and 1988. Because plaintiffs did not appeal the judgment, "any remaining issues” are not before this court.

      . In April 2002, when the City of Shreveport began proceedings to sell the subject property at tax sale, LSA-R.S. 47:2180.1 provided, in part, as follows:
      A. On the second day of January each year or as soon thereafter as possible, the tax collector shall address to each person holding a properly recorded mortgage on immovable property for which taxes are delinquent, if such mortgage holder has notified the tax collector of such recorded mortgage, a written notice as provided in R.S. 47:2180 that the taxes on the immovable must be paid within twenty days after the service or mailing of the notice or the property will be sold according to law. The notice shall be sent to each person holding a properly recorded mortgage on immovable property for which taxes are delinquent by certified mail return receipt requested or by personal or domiciliary service on the mortgagee. The notification by the mortgagee to the tax collector shall state the legal description of the immovable property and the name of the record owner. The mortgagee requiring notice of delinquency shall pay the sum of five dollars annually, per assessment, to the sheriff to defray the cost of providing the notice. The notification by the mortgagee to the tax collector shall be renewed annually.

      . LSA-R.S. 47:2180 and 47:2180.1 were repealed by 2008 La. Acts, No. 819 § 1, effective January 1, 2009. LSA-R.S. 47:2153 and 47:2159 were enacted in the same legislation. In comments following LSA-R.S. 47:2153, it is indicated, "This Section consolidates and generally reproduces the substance of former R.S. 47:2180, 2180.1 and 2181 with certain modifications.” LSA-R.S. 47:2153, Comment (a). The comment following LSA-R.S. 47:2159 states: "This Section reproduces the substance of former R.S. 47:2180.1(A). See also former R.S. 47:2101(B)(2). It also expands the persons who may request the notice from mortgagees only to any person.”

      . This fact had not been noticed by the parties or the trial court prior to judgment and appeal. In support of their argument, plaintiffs cited LSA-C.C.P. art. 2133(B) which provides:
      A party who does not seek modification, revision, or reversal of a judgment in an appellate court ... may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.

      . Initially, this court granted the writ application with the intent to address the constitutionality of LSA-R.S. 47:2180.1. We acknowledge that the courts of appeal have split on the issue of whether a mortgagee is due notice of delinquent taxes and pendency of a tax sale if the mortgagee is readily discernible on the public records, but has not notified the tax collector of the existence of its mortgage and paid the required fee. See 3525 North Causeway Blvd. Corporation. v. Penney, 07-0883 (La.App. 5 Cir. 3/11/08), 982 So.2d 195, writ denied, 08-0771 (La.5/30/08), 983 So.2d 905; Koeppen v. Raz, 29,880 (La.App. 2 Cir. 10/29/97), 702 So.2d 337; Hodges Ward Purrington Properties v. Lee, 601 So.2d 358, (La.App. 5 Cir. 1992). Compare, Weatherly v. Optimum Asset Management, Inc., 04—2734 (La.App. 1 Cir. 12/22/05), 928 So.2d 118; In re Raz, 03-0893 (La.App. 1 Cir. 2/23/04), 871 So.2d 363; Bank of West Baton Rouge v. Stewart, 00-0114 (La.App. 1 Cir. 2/16/01), 808 So.2d 464; Smith v. Brooks, 97-1338 (La.App. 3 Cir. 4/15/98), 714 So.2d 735 writ not considered, 98-1869 (La.10/30/98), 723 So.2d 969.
      Because we resolve this matter on non-constitutional grounds and the lower courts did not rule on the constitutionality of the statute, we choose to exercise judicial restraint and will not address the constitutional issue. This court has consistently held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy. Ring v. State, Department of Transportation and Development, 02-1367, p. 4 (La.1/14/03), 835 So.2d 423, 426; State v. Fleming, 01-2799, p. 4 (La.6/21/02), 820 So.2d 467, 470. Courts should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds. Ring, 02-1367 at 5, 835 So.2d at 427; Blanchard v. State Parks and Recreation Commission, 96-0053, p. 3 (La.5/21/96), 673 So.2d 1000, 1002.

      . During oral argument before this court, the City acknowledged the taxes have been paid and it has no interest in who owns the property.

      . We acknowledge plaintiffs' argument that the City of Shreveport introduced a return receipt referencing a separate piece of property owned by Douglas and Dwight Tietjen which was not at issue in this litigation. Review of the record reveals the documentary evidence introduced by the city does not correspond to the property on Jordan Street.
      Nevertheless, because we resolve this matter on other grounds, we pretermit discussion of plaintiffs’ argument.