author: LAGOA, Judge.

text:
    FLAGSHIP RESORT DEVELOPMENT CORPORATION, Appellant, v. INTERVAL INTERNATIONAL, INC., Appellee.
    No. 3D09-334.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Rehearing Denied March 5, 2010.

      Richard & Richard and Dennis Richard and Laurel W. Marc-Charles and Michael R. Tolley, Miami, for appellant.
    Kozyak, Tropin & Throckmorton and Harley S. Tropin and Janet L. Humphreys and Gail A. McQuilkin, Miami, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   LAGOA, Judge.

Flagship Resort Development Corporation (“Flagship”) appeals from a final judgment granting Interval International, Inc. (“Interval”) summary judgment in Flagship’s action seeking a declaration that the contract between the two parties is not in force, or in the alternative, that Interval breached the implied covenant of good faith and fair dealing. Flagship further appeals from the trial court’s order granting Interval leave to amend its answer to assert a claim for attorneys’ fees. For the following reasons, we affirm on all points.

I. FACTUAL AND PROCEDURAL HISTORY

Flagship is the developer of an interval ownership resort in Atlantic City, New Jersey (“Resort”). Interval is in the business of providing time share exchange services to developers and interval owners. On September 1, 1993, Flagship and Interval entered into a Resort Affiliation Agreement (“RAA”) that provided for the inclusion of the Resort in the “Interval Network.” The RAA defined the “Interval Network” as “a vacation exchange service to facilitate the exchange of accommodations between owners of time share or other vacation ownership interests at participating resorts.”

Interval’s contractual duties are enumerated in Section (D)(1) of the RAA, which obligates Interval to provide:

(a) affiliation for the PROJECT [the Resort] in the INTERVAL NETWORK upon such terms and conditions as are set forth in this agreement;
(b) an exchange program for use by Individual Members in accordance with the Terms and Conditions of Individual Membership and Exchange as they exist from time to time;
(c) promotional materials, for use by AFFILIATE [Flagship] in accordance with this Agreement, at time of affiliation and thereafter such additional materials as INTERVAL may make available from time to time at INTERVAL’S published rates for such materials;
(d) travel-related benefits, privileges and discounts for Individual Members enrolled from the PROJECT [the Resort] who are in good standing with INTERVAL; and
(e) V.I.P. memberships for use by AFFILIATE [Flagship] in accordance with the terms and conditions of such memberships as they exist from time to time.

In Section (D)(4)(a) of the RAA, Interval reserved the right to modify the terms and conditions of the Interval Network:

The terms and conditions of the INTERVAL NETWORK, including, but not limited to, the Terms and Conditions of Individual Membership and Exchange, may be changed by INTERVAL from time to time in its sole discretion.

The initial term of the RAA was ten years, i.e., through and including August 31, 2003. The RAA provided for automatic renewals of equal duration in Section (B) of the contract:

The initial term of this Agreement is for ten (10) years from the date of execution by INTERVAL. Thereafter, this Agreement will automatically renew for additional periods of ten (10) years each unless either Party gives to the other at least ninety (90) days advance written notice of its intent not to renew.

With respect to notices, the RAA further provided in Section (L)(l):

All notices provided for by this Agreement shall be deemed given if in writing and delivered by hand, air express, or by registered or certified mail, return receipt requested, to the addresses set forth on page one of this Agreement or to such other address as may be specified in accordance with this procedure.

Pursuant to Section (B), the RAA would automatically renew for a second term of ten years on September 1, 2003. Accordingly, any party that intended to permit the RAA to expire at the end of the initial term was obligated to provide written notice of its intent not to renew to the other party on or before May 31, 2003 (the “Auto Renewal Date”).

In January 2001, Flagship and Interval began negotiating a new affiliation agreement, referred to in successive drafts as a “Master Affiliation Agreement” (“MAA”). Flagship characterizes the ensuing negotiations as pertaining to the renewal of the RAA, while Interval distinguishes the MAA as a more complex agreement separate from the existing RAA associated with the Resort. It is undisputed that the MAA contemplated the inclusion of other Flagship properties, in addition to the Resort, in the Interval Network.

Relevant here are the discussions between Flagship and Interval regarding the duration of the MAA. Interval initially proposed a ten-year term; however, Flagship did not wish to be bound for ten years. Accordingly, Flagship’s Chief Operating Officer, Alan Rosefielde, wrote to Interval in a March 16, 2003 memorandum (“Rosefielde Memo”): “The term is ridiculously long — 10 years with two ten-year renewals.” The Rosefielde Memo also highlighted other terms of the MAA for further discussion and referenced two other Flagship properties within the ambit of the MAA. Interval ultimately offered a six and one-half year term on February 4, 2004. Flagship rejected the offer.

While Flagship and Interval were negotiating the terms of the MAA, the RAA’s Auto Renewal Date passed. On April 13, 2004, Interval informed Flagship that the RAA had automatically renewed for a second ten-year term, i.e., through and including August 31, 2013. Flagship responded by claiming no contract existed between the parties. Flagship and Interval continued to negotiate the MAA until at least April 2004, but never reached an agreement. Flagship contends that its relationship with Interval continued on an at-will basis, while Interval asserts that the parties continued to perform under the renewed RAA. It is undisputed that the parties continued to do business together, as evidenced by several other agreements between the parties executed after September 1, 2003.

Separate from the issues relating to the renewal of the RAA are issues arising out of Interval’s “Five Star” rating program. At least since Flagship affiliated the Resort with Interval in 1993, Interval has administered a “Five Star” rating program for the purpose of recognizing affiliated properties that receive high guest satisfaction scores. Although the RAA requires Flagship to establish a program to maintain “high standards of service, appearance, cleanliness, quality and management” and provides for inspections of the Resort by Interval in Section (E)(5) of the RAA, the RAA does not mention or obligate Interval to administer the “Five Star” rating program.

Nevertheless, throughout the RAA’s initial term, Interval classified the Resort as a “Five Star” resort in the Interval Network. The parties agree the Resort never met the criteria established by Interval for the rating. On November 3, 2005, Interval notified Flagship that the Resort would not receive a Five Star rating in an upcoming publication. Interval suggested that Flagship could improve its guest satisfaction scores by permitting Interval to upgrade and manage the Resort’s reservation system. The upgraded reservation system offered by Interval was expensive and Flagship refused to purchase the system.

On August 31, 2007, Flagship filed a two-count complaint against Interval, which it later amended. The amended complaint in Count I sought a declaration that no contract existed between Flagship and Interval because: (1) the RAA is illusory since Interval could change the terms and conditions at its discretion; (2) the RAA expired by its own terms; or (3) that Interval is equitably estopped from asserting that the RAA automatically renewed. In the alternative, in Count II, the amended complaint sought damages for breach of the implied covenant of good faith and fair dealing based on Flagship’s loss of its “Five Star” rating. Both Flagship and Interval moved for summary judgment.

Three days prior to the summary judgment hearing, Interval filed a demand for attorneys’ fees. After the hearing, but prior to entry of final judgment, Interval moved to amend its answer to claim attorneys’ fees. Flagship moved to strike the demand and opposed the motion. On November 25, 2008, the trial court permitted the amendment.

On January 8, 2009, the trial court granted Interval’s motion for summary judgment. As to Count I, the trial court found: first, that the RAA, which had been performed by both parties for fifteen years, was not illusory; second, that the Rosefielde Memo was insufficient to constitute written notice under Section (B) of the RAA; and third, that Interval was not equitably estopped from claiming the RAA automatically renewed because Interval made no representation from which Flagship could reasonably conclude that it was relieved of its duty to notify Interval of its intent not to renew the RAA. As to Count II, the trial court found that Interval’s revocation of the Resort’s Five Star rating did not constitute a breach of the implied covenant of good faith and fair dealing because the Five Star program was a corollary program not anchored to one of Interval’s contractual obligations under the RAA. Upon entry of a final summary judgment in favor of Interval, the trial court reserved jurisdiction to determine Interval’s entitlement to attorneys’ fees and costs.

This appeal ensued.

II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.” Id. at 131 (citations omitted). We review a trial court’s ruling on a motion for summary judgment de novo. Id. at 130. In addition, a trial court’s decision construing a contract presents an issue of law that is subject to the de novo standard of review. Florida Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001).

B. Leave to Amend to Add Claim For Attorneys’ Fees

“Leave of court [to amend a pleading] shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). Indeed, the decision to grant leave to amend is within the discretion of the trial court, and any doubts are to be resolved in favor of the amendment. Overnight Success Constr., Inc. v. Pavarini Constr. Co., Inc., 955 So.2d 658, 659 (Fla. 3d DCA 2007). Accordingly, we review an order granting a motion to amend for abuse of discretion. Id.

III. ANALYSIS

A. Summary Judgment as to Count I

With respect to Count I of its amended complaint, Flagship contends that the RAA is unenforceable for three separate reasons. We address each of Flagship’s arguments in turn.

1. Failure of Consideration

Flagship contends that Interval’s reservation of the right to modify the terms and conditions of the Interval Network “from time to time in its sole discretion” renders the contract illusory because all of Interval’s contractual duties relate to the Interval Network. Flagship’s argument is essentially failure of consideration, because in a bilateral contract a promise that permits the promisor to fulfill or decline to fulfill its contractual obligations at its option is not binding on the promisor and renders the promise incapable of enforcement by the promisee. Pan-Am Tobacco Corp. v. Dep’t of Corrs., 471 So.2d 4, 5 (Fla.1984) (“[A] contract which is not mutually enforceable is an illusory contract.”); Rosenberg v. Lawrence, 541 So.2d 1204, 1206 (Fla. 3d DCA 1988) (‘Where one party retains to itself the option of fulfilling or declining to fulfill its obligations under the contract, there is no valid contract and neither side may be bound.”).

At the outset, we reject Flagship’s argument to the extent that it relies on the fact that Interval’s contractual duties to Flagship are set forth in Section (D)(1) of the RAA, and Section (D), as a whole, is titled “Interval Network.” Besides the fact that Section (D) also addresses Flagship’s duties to Interval under the RAA, the express language of Section (L)(8) of the RAA provides: “The headings and captions in this Agreement are for convenience only and shall not be referred to in the interpretation of this Agreement.”

As set forth above, Section D(l) of the RAA delineates specific contractual duties owed by Interval to Flagship. None of these duties comprise the terms and conditions of the Interval Network itself. If Interval wishes to alter any of its obligations under Section (D)(1), Section L(ll) of the RAA requires Interval to obtain Flagship’s consent and to reduce it to writing. In contrast, Section D(4) of the RAA reserves to Interval its ability to modify the terms and conditions of the Interval Network. Interval’s modification of the Network, however, would not relieve it of its obligations to Flagship under Section D(l). Thus, Interval’s promise to perform the duties set forth in Section (D)(1) of the RAA is not a mere “I will if I want to.” E.g., Rosenberg, 541 So.2d at 1207. Rather, Interval’s Section (D)(1) duties are binding obligations, the violation of which entitles Flagship to a remedy under Section (I)(l) of the RAA. Thus, because Interval’s promise to perform the duties enumerated in Section (D)(1) is not subject to the Section (D)(4) reservation of its right to change the terms and conditions of the Interval Network, the RAA is binding on Interval, capable of enforcement by Flagship, and is not illusory.

Moreover, the fact that Flagship and Interval have performed according to the terms of the RAA for more than fifteen years is a separate basis to conclude that the RAA is enforceable. Even assuming a lack of mutuality of obligation at the inception of the contract, “such defect may be cured by the subsequent conduct of the parties.” Wright & Seaton, Inc. v. Prescott, 420 So.2d 623, 627 (Fla. 4th DCA 1982) (quoting 17 C.J.S. Contracts § 100(3), at 799-800 (1963)); see also Ponce Dev. Co. v. Espino, 449 So.2d 317, 319 (Fla. 3d DCA 1984); Clark v. State, 651 So.2d 1309, 1310 (Fla. 3d DCA 1995).

Flagship relies on Espino for the proposition that only full and complete performance will cure a lack of mutuality of obligation. See Espino, 449 So.2d at 318-19. We find Flagship’s argument unpersuasive, as this Court in Espino found that less-than-full or substantial performance was sufficient to cure a lack of mutuality of obligation in appropriate circumstances. See Espino, 449 So.2d at 319.

Further, Flagship’s argument ignores the fact that here, both parties have performed according to the RAA for more than fifteen years. Therefore, even if the RAA lacked mutuality at its formation, the RAA has been performed by both sides. Because we are dealing with an executed contract, “lack of mutuality presents no impediment to the executed contract.” Murry v. Zynyx Mktg. Commc'ns, 774 So.2d 714, 716 (Fla. 3d DCA 2000). Accordingly, we hold that any purported lack of mutuality in the formation of the RAA has been cured by the parties’ subsequent performance according to the terms of the agreement.

2. Written Notice of Intent Not to Renew

Flagship argues that because it gave timely written notice to Interval of its intent not to renew pursuant to Section (B) of the RAA, the contract expired by its own terms. Flagship points to the March 16, 2003 Rosefielde Memo as constituting written notice of its intent not to renew the RAA. Construing the language of the RAA “most strongly against its drafter,” Interval, see Berloni v. Della Casa, LLC, 972 So.2d 1007, 1010 (Fla. 4th DCA 2008), we find the language of the Rosefielde Memo insufficient to communicate any intent on the part of Flagship to permit the RAA to expire at the end of its initial term. To the contrary, the Rosefielde Memo indicates that Flagship was willing to engage in further negotiations concerning its continued relationship with Interval, and even to expand that relationship to include affiliation of other Flagship properties under the MAA. Flagship points to no other document as constituting written notice of its intent not to renew, nor do we find any document in the record sufficient to convey to Interval Flagship’s intent not to renew the RAA. Accordingly, we conclude that Flagship failed to provide Interval notice of its intent not to renew the RAA, and therefore, the contract did not expire by its terms.

3. Equitable Estoppel

Flagship argues that, because Interval’s conduct throughout the negotiation of the MAA led Flagship to believe it need not give notice under Section (B) of the RAA, Interval is equitably estopped from asserting that the RAA renewed. With respect to the issue, we find that equitable estoppel is not a cause of action, but an affirmative defense. See Major League Baseball v. Morsani, 790 So.2d 1071, 1076 (Fla.2001) (equitable estoppel is a defensive doctrine); Dep’t of Transp. v. First-Merit Bank, 711 So.2d 1217, 1218 (Fla. 2d DCA 1998). Thus, as a matter of law, it is not a proper cause of action, and summary judgment was proper on this point alone.

Nonetheless, even if equitable estoppel were an offensive doctrine, Flagship failed to satisfy the first requisite element for estoppel. The elements of equitable estoppel are as follows:

(1) a representation by the party es-topped to the party claiming the estop-pel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon this representation by the party claiming the estop-pel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.

Greenhut Constr. Co. v. Henry A. Knott, Inc., 247 So.2d 517, 524 (Fla. 1st DCA 1971); see also Winans v. Weber, 979 So.2d 269, 274-75 (Fla. 2d DCA 2007). A representation may take the form of words, acts, or “[cjonduct calculated to convey a misleading impression.” Francoeur v. Pipers, Inc., 560 So.2d 244, 245 (Fla. 3d DCA 1990); see also Morsani, 790 So.2d at 1076. A review of the record below reveals no representation by Interval in word, act, or conduct, that reasonably indicated to Flagship that it was relieved of its obligation to give Interval timely written notice of its intent not to renew the RAA. Rather, the discussions between the parties were characterized by an apparently mutual desire to continue and expand the affiliation relationship.

Accordingly, for the reasons stated, we conclude that final summary judgment in favor of Interval was proper as to Count I of Flagship’s Amended Complaint.

B. Summary Judgment as to Count II

With respect to Count II of its amended complaint, Flagship contends, in the alternative, that Interval breached an implied covenant of good faith and fair dealing by revoking Flagship’s Five Star resort rating. We find Flagship’s argument without merit. First, the doctrine of implied covenant of good faith cannot be used to vary the terms of an express contract. “A duty of good faith must relate to performance of an express term of the contract and is not an abstract and independent term of a contract....” Beach Street Bikes, Inc. v. Bourgett's Bike Works, Inc., 900 So.2d 697, 700 (Fla. 5th DCA 2005). Indeed, it must be anchored to the performance of an express contractual obligation. See Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009); Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 792 (Fla. 2d DCA 2005) (“There can be no cause of action for a breach of the implied covenant absent an allegation that an express term of the contract has been breached.”) (internal quotations omitted).

Flagship has failed to identify, and this Court cannot find, any provision of the RAA that expressly obligates Interval to administer any affiliated resort rating program, much less confer a “Five Star” rating on the Resort. Because the RAA did not impose any duty on Interval to confer a Five Star resort rating (or any rating for that matter), Flagship failed to state a cause of action for breach of the implied covenant of good faith. Accordingly, we conclude that summary judgment for Interval was proper on Count II of Flagship’s Amended Complaint.

C. Leave to Amend to Add Claim For Attorneys’ Fees

With respect to Flagship’s contention that Interval waived its claim for attorneys’ fees, the sole issue raised on appeal is whether the trial court abused its discretion in granting Interval leave to amend its answer to assert a claim for attorneys’ fees. See Fla. RApp. P. 9.110(h). We conclude that the trial court did not abuse its discretion.

While it is true that a claim for attorneys’ fees, whether based on contract or statute, must be pled prior to final judgment to avoid a waiver, we conclude that no waiver occurred here. See Stockman v. Downs, 573 So.2d 835, 837-38 (Fla.1991) (denying postjudgment motion for attorneys’ fees where claim was not before the court prior to final judgment); Chittenden v. Boyd, 669 So.2d 1136, 1138 (Fla. 4th DCA 1996) (declining to award attorneys’ fees where claim was not pled and party seeking award did not move to amend pleading prior to entry of final judgment).

A review of the record establishes that Interval sought and obtained leave to amend its answer to seek attorneys’ fees prior to the entry of final judgment. As such, we reject Flagship’s argument and conclude that the trial court did not abuse its discretion by granting Interval leave to amend. See Fla. R. Civ. P. 1.190(a) (“Leave of court [to amend a pleading] shall be given freely when justice so requires.”); Overnight Success Constr., Inc. v. Pavarini Constr. Co., Inc., 955 So.2d 658, 659 (Fla. 3d DCA 2007) (any doubts should be resolved in favor of the amendment).

IV. CONCLUSION

For the foregoing reasons, we affirm the trial court’s final summary judgment in favor of Interval on Counts I and II of Flagship’s Amended Complaint. We likewise affirm the trial court’s order granting Interval leave to amend its answer to assert a claim for attorneys’ fees.

Affirmed.

      . Interval ownership is commonly known as “time share."

      . Successive drafts of the MAA (sent before and after September 3, 2003) acknowledged the continued viability of the RAA: “The Flagship Resort has been affiliated with the INTERVAL NETWORK, pursuant to that certain Resort Affiliation Agreement between INTERVAL and AFFILIATE [Flagship], with an effective date of September 1, 1993 ... [and] upon the Effective Date of this Agreement, said Flagship RAA shall be deemed terminated and its terms and conditions null and void."

      . We note that these agreements both acknowledge the RAA and further reserve to Interval the right to terminate if the RAA "is not in full force and effect." Flagship points out that subsequent agreements were executed only after Flagship’s Chief Executive Officer, Bruce Kaye, struck the language imposing a lengthy term and penciled in a reduced term acceptable to Flagship. Significantly, Mr. Kaye failed to strike the provisions acknowledging the continued existence of the RAA — although he expressly modified other provisions.

      . Section (L)(ll) provides: “This Agreement ... may not be modified, except in writing signed by all Parties.”

      . Section (I)(l) provides: "A Party shall be entitled to damages which it has incurred and injunctive or other equitable relief for any violation by the other Parly of the provisions of this Agreement.”

      . And, insofar as the initial term of the RAA is concerned, Interval fully performed. It defies logic to conclude that the renewed RAA is illusory where the initial term of the RAA has already been fully performed and the language of the RAA has not changed.

      .We note that Interval's performance has benefitted Flagship for more than fifteen years.

      . The record, however, is replete with indications that Flagship understood that the RAA, in fact, automatically renewed at the conclusion of the initial term, including Mr. Kaye's testimony in his lawsuit against Mr. Rose-fielde that "I ... allowed the ten year renewal to kick in,” as well as the documents acknowledging the continued viability of the RAA referenced herein. See supra notes 2-3.

      . Because we conclude that the Rosefielde Memo is insufficient to constitute “written notice of [Flagship’s] intent not to renew” the RAA, we need not consider whether the Rose-fielde Memo complied with other applicable provisions of the RAA, namely, the specified delivery provision found in Section (L)(8) of the RAA.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Isaac J. MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2355.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Isaac J. Martin, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: WOLF, J.

text:
    David GARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1637.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2010.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant raises a number of issues. We affirm, but address one issue: whether appellant’s sentence of life in prison for crimes he committed when he was a juvenile violates federal and state prohibitions against cruel and unusual punishment.

In October 2001, when he was 15 years old, appellant was charged with two counts of sexual battery on a person less than 12 years of age, a life felony, and one count of sexual battery on a person 12 years of age or older, a second degree felony. See §§ 794.011(2)(b), (5), Fla. Stat. (2001). He pled nolo contendere and was sentenced to 5 years in prison followed by 10 years’ probation. The trial court subsequently found he violated his probation by committing armed robbery and possession of a firearm by a convicted felon in April 2008, when he was 21 years old. The trial court revoked his probation and sentenced him to life in prison.

The United States Supreme Court and the Florida Supreme Court have stated at the very least that an Eighth Amendment challenge based on the length of a sentence must rest on a determination of whether the sentence is grossly disproportionate to the crime. Graham v. State, 982 So.2d 43, 47 (Fla. 1st DCA 2008), cert. granted, Graham v. Florida, — U.S. -, 129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009).

Here, appellant was sentenced to life in prison for sexually battering a child less than 12 years old, and “sexual battery upon a child is ‘one of the most heinous and despicable offenses imaginable.’ ” Adaway v. State, 902 So.2d 746, 750 (Fla.2005) (finding life in prison for an adult found guilty of child sexual battery was not cruel and unusual punishment) (quoting Kendry v. State, 517 So.2d 78, 79 (Fla. 1st DCA 1987)). Furthermore, appellant was not sentenced as a juvenile. He was given a second chance, but he rejected that chance by committing another violent act at the age of 21, demonstrating his inability to rehabilitate.

Therefore, we find his sentence was not grossly disproportionate to the crime and affirm. See Graham, 982 So.2d 43.

AFFIRMED.

HAWKES, C.J., and DAVIS, J., concur.


text:
    Ronald PALMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5683.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2010.
    Ronald Palmer, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Ronald Palmer is hereby afforded a belated appeal from the order of the Circuit Court in and for Duval County denying postconviction relief in case number 16-2007-CF-015032-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


author: PER CURIAM. HAZOURI, J.,

text:
    Jimel COFER, Petitioner, v. STATE of Florida and Florida Parole Commission, Respondents.
    No. 4D08-4555.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Jimel Cofer, Okeechobee, pro se.
    Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondent Florida Parole Commission.
   PER CURIAM.

Jimel Cofer seeks certiorari review of the circuit court order denying his petition for writ of habeas corpus. Cofer challenges the circuit court’s order upholding the Florida Parole Commission’s decision to revoke his conditional release supervision. In this second-tier review of a circuit court order rendered by it in its appellate capacity, the scope of review is limited to “whether the circuit court afforded procedural due process and whether it observed the essential requirements of law.” Crosby v. Fla. Parole Comm’n, 975 So.2d 1222, 1223 (Fla. 1st DCA 2008). This court, “[w]hen considering such a petition for writ of certiorari ... may either deny the petition or grant it, and quash the order to which the petition is directed. It may not enter judgment on the merits, or direct the lower tribunal to enter any particular order.” Williams v. Fla. Parole Comm’n, 977 So.2d.783, 784 (Fla. 1st DCA 2008). Because procedural due process was not afforded by the circuit court, we grant the petition and quash the circuit court’s order.

Initially, the Commission revoked Gofer’s supervision and returned him to prison despite the hearing officer’s recommendation that the Commission should reinstate supervision. The circuit court, upon reviewing the Commission’s decision, remanded the case because the hearing officer failed to make a factual determination that Cofer willfully violated a substantial condition of his supervision. In an order relinquishing jurisdiction, the circuit court ordered that the Commission conduct a new hearing. On remand, the hearing officer, without conducting a new hearing, submitted a memorandum finding that Cofer willfully violated a substantial condition of his supervision. The Commission adopted this finding, and the circuit court then denied the petition.

We agree with Cofer that the circuit court failed to afford procedural due process. Procedural due process requires that Cofer should have been given an opportunity to be heard after the hearing officer found that he willfully violated a substantial condition of his supervision. See Crosby, 975 So.2d at 1223-24.

In Crosby, the Commission’s revocation of supervision was remanded because the hearing officer failed to make a finding that the petitioner willfully violated a substantial condition of his supervision. On remand, based on a review of the record of the original revocation hearing, the hearing examiner concluded that the violation was willful and substantial. The Commission agreed with this finding and revoked the petitioner’s supervision. The circuit court upheld this determination. Thereafter, the First District quashed the circuit court’s order and remanded for further proceedings, holding that “under these circumstances, due process requires that petitioner be given the opportunity to address the newly made finding before the issue is resolved on the merits.” Crosby, 975 So.2d at 1223. It also held that the purpose of remand is to permit the circuit court to evaluate the petitioner’s “claims that the Parole Commission erred by not conducting a supplemental revocation hearing, and that the findings of willfulness and substantiality are ... without adequate evidentiary support.” Id.

Similarly, in this case, following the relinquishment of jurisdiction and the newly-made finding, the circuit failed to afford Cofer an opportunity to be heard. Among other issues raised in this petition, Cofer argues that evidence of willfulness and substantiality was lacking and that he should have received a new hearing on remand. These arguments should be addressed by the circuit court.

Accordingly, we grant Cofer’s petition for writ of certiorari, quash the circuit court’s order, and remand for further proceedings consistent with this opinion.

Petition granted.

WARNER and POLEN, JJ., concur.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

I concur that Cofer was not afforded procedural due process, but I also have serious reservations that he willfully violated a substantial condition of his supervision. Although the sufficiency of the evidence to establish a willful violation of a substantial condition of supervision is not within the scope of our review in this second-tier posture, a review of the record raises serious doubts regarding whether Cofer violated the supervising officer’s instructions in any significant way. See Harris v. Florida Parole Comm’n, 986 So.2d 632, 632-33 (Fla. 1st DCA) (“[T]o support a revocation of supervised release, it must be shown that a violation was both willful and substantial.”), rev. denied, 996 So.2d 212 (Fla.2008).

On the day of the alleged violation that resulted in revocation, Cofer’s supervising officer called him because his monitoring box was reading “unable to connect.” She called his cell phone at 11:10 p.m. and identified herself. He grunted and hung up. She called back at 11:11 p.m., and he failed to answer. At 11:13 p.m., she called back and he answered. She instructed him to stay on the phone, to take the box out of its charging stand, and to walk the box outside. Cofer hung up. She called back at 11:14 p.m. and had him stay on the line for nine minutes as he “walked the box” outside. Cofer reported to the supervisor’s office the next day as instructed.

It appears Cofer substantially complied with the supervising officer’s instructions asking him to walk outside in order to determine whether the electronic monitor he was wearing was functioning properly. It was well documented, and the hearing officer found, that Cofer was repeatedly given defective monitoring equipment, which malfunctioned on numerous occasions. This, in my judgment, fails to rise to the level of a willful violation of a substantial condition of supervision.

      . Although Cofer's petition was filed as an appeal of his petition for habeas corpus, we treat it as a petition for writ of certiorari, as Cofer seeks second-tier review of a circuit court order rendered in its appellate capacity. See, e.g., Richardson v. Fla. Parole Comm’n, 924 So.2d 908 (Fla. 1st DCA 2006).


author: ROTHENBERG, J.

text:
    Gregory Lewis JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-831.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.

      Gregory Lewis Jordan, in proper person.
    Bill McCollum, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Gregory Lewis Jordan appeals the denial of his motion under Florida Rule of Criminal Procedure 3.800(a), alleging that the sentences he received as a result of a negotiated plea were illegal because they exceeded the maximum sentences allowed under section 775.082, Florida Statutes (1987). Because we agree with Jordan, we reverse and remand for further proceedings consistent with this opinion.

Pursuant to a negotiated plea agreement, Jordan pled guilty in 1990 to a reduced charge of second degree murder with a deadly weapon (Count I), attempted robbery with a firearm (Count II), and attempted first degree murder (Count III) for crimes committed in 1988. He was sentenced to sixty years for Count I, thirty years for Count II, and sixty years for Count III. The sentences were ordered to be served concurrently, along with a three-year mandatory minimum sentence for possession of a firearm. In 2009, Jordan filed a rule 3.800 motion to correct illegal sentence alleging that the sentences he received for Counts I, II, and III are illegal because they exceed the statutory máximums allowed at the time. The trial court erred in denying Jordan’s motion.

Section 775.082, Florida Statutes (1987), provides that a person may be punished as follows: for a life felony, “by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years”; for a second degree felony, “by a term of imprisonment not exceeding 15 years”; and for a first degree felony, “by a term of imprisonment not exceeding 30 years.” Accordingly, the maximum sentence Jordan could have received on Count I, a life felony, was forty years, and on Count II, a second degree felony, was fifteen years. The State properly concedes that Jordan’s sentence for Count I should not have exceeded forty years and that his sentence for Count II “may not have been authorized.”

Regarding Count III, we agree with Jordan that the sixty year sentence imposed by the trial court exceeded the statutory maximum. However, we disagree that the maximum sentence that could be imposed in Count III is thirty years, as Jordan contends. Attempted first degree murder with a firearm is a life felony. Section 782.04(l)(a) provides that first degree murder “constitutes a capital felony.” Section 777.04 provides that if the attempted crime is a capital felony, “the person convicted is guilty of a felony of the first degree.” Based on the use of a firearm, the first degree felony is reclassified to a life felony pursuant to section 775.087. Accordingly, the maximum sentence allowable for Count III is forty years.

In summary, we find that the sentences that Jordan received for Counts I, II, and III are illegal. We, therefore, reverse the trial court’s order denying Jordan relief. Upon remand, the State may elect whether to agree to the reduction of Jordan’s sentences to the legal maximum sentences permitted by law or to allow Jordan to withdraw his plea and proceed to trial. See Tucker v. State, 864 So.2d 580, 581 (Fla. 2d DCA 2004) (holding that when a sentence is illegal, the State has the option of approving a corrected sentence or “going back to ‘square one’ in the plea bargain process”); Bruno v. State, 837 So.2d 521, 522 (Fla. 1st DCA 2003) (quoting Williams v. State, 650 So.2d 1054, 1055 (Fla. 1st DCA 1995)) (“When a sentence is illegal, and such a sentence was the product [as here] of a negotiated plea agreement, the state has the option of either agreeing to the appellant’s resentencing, or withdrawing from the plea agreement and proceeding to trial on the original charges.”); Ford v. State, 595 So.2d 266, 266 (Fla. 5th DCA 1992) (“[T]he State shall not be bound by its plea bargain and may seek other sanctions” that reduce the sentence to a legal term, ... “[o]r, the State may decline to accept the plea bargain, and both parties will approach the plea stage of this case at ‘square one.’ ”).

Accordingly, we reverse the trial court’s order denying Jordan relief under rule 3.800(a). Upon remand, the State has the option of allowing Jordan’s sentences on each count to be reduced to the legal maximum or allowing Jordan to withdraw his plea and to proceed to trial on the original charges.

Reversed and remanded with instructions.


text:
    Adacia H. DOUGLAS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-2361.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.

      Carlos J. Martinez, Public Defender, and Maria Lauredo, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondent.
    Before SUAREZ and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Defendant Adacia H. Douglas petitions for a writ of prohibition to avoid being retried following the circuit court’s declaration of a mistrial in his first trial. We grant prohibition.

The defendant’s trial began on Wednesday, July 29, 2009, when the jury was sworn. On Thursday, the Department of Corrections (“DOC”) did not produce the defendant because his section of the jail was on quarantine due to a suspected H1N1 flu case. The Department of Health had issued a restricted movement memo saying that he and other inmates could not be moved. The memo provided that inmates could only go to court if they wore a mask. DOC anticipated the quarantine would be lifted by the following Wednesday and the defendant could again be transported to court the day after that.

The court announced that perhaps it would grant a mistrial and begin the case again later. The State objected to the mistrial. Defense counsel responded to the court’s proposal to declare a mistrial as follows:

If you could, perhaps order corrections to bring [defendant] to a phone, to inquire as to whether or not he would agree to a mistrial. And at least, you could at least get his permission. But we can’t agree to a mistrial, without getting our client’s permission.

Defense counsel asked the court to reset the case for the following Monday after she could discuss the matter with her client. The court decided instead to ask the jurors if they would mind returning in a week (Thursday, the day identified by DOC as the earliest date the defendant could again be transported to court). Having still had no consultation with the defendant, defense counsel objected to the court asking the jurors personally and in open court, and objected to the court asking the jury without the defendant being present.

At the direction of the trial court, the bailiff spoke with the jurors off the record; he reported that three jurors said they could not return. The court then declared a mistrial. The quarantine was actually lifted the following Monday, two days before DOC’s initially-estimated date.

When the case was reset for trial, the defendant filed a motion to dismiss arguing that retrial violated his double jeopardy rights. That motion was denied, and the defendant filed this petition to prevent the new trial.

We grant prohibition because the State has not met its burden of demonstrating that the court’s declaration of a mistrial was based on a manifest necessity. A second trial in this case would violate defendant’s double jeopardy rights.

A criminal defendant has the right to be free from being twice put in jeopardy for the same offense under both the Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution. Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The defendant has a right to have his trial completed by a particular jury of his choosing. Thomason v. State, 620 So.2d 1234 (Fla.1993). “Doubt about whether the mistrial is appropriate is resolved ‘in favor of the liberty of the citi zen.’ The State must demonstrate ‘manifest necessity’ for the mistrial....” Id. at 1237. “[A] mistrial founded solely upon the convenience of the court and the jury is certainly not manifestly necessary.” Cohens v. Elwell, 600 So.2d 1224, 1226 (Fla. 1st DCA 1992) (quoting New York v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134 (1979)).

The State has a “heavy burden to exhaust less drastic alternatives before declaring a mistrial over the defendant’s objection during a criminal trial....” Torres v. State, 808 So.2d 234, 235 (Fla. 2d DCA 2001). In the present case, the court did not rigorously consider less drastic alternatives. There was no record showing that a mistrial was a “necessity.”

While this was an unusual circumstance, there were unexplored alternatives available to the court. For instance, the jury could have been ordered to return the following Thursday, the availability date provided by DOC. At the least, the court could have afforded defense counsel the opportunity to consult with the defendant about the situation before declaring a mistrial on its own motion and over the objection of both the State and the defense.

The State argues that a prolonged continuance is sufficient to prove a manifest necessity. However, in this case the continuance need not have been more than one week. When weighed against the defendant’s right to be free from double jeopardy, and to be tried by the particular jury impaneled in his case, Thomason, this is not such a huge inconvenience.

Neither is there any competent record evidence to substantiate the State’s assertion that bona fide juror unavailability made this mistrial tantamount to a manifest necessity. The only support in the record is the bailiffs report that three jurors said they would be unable to return the following week (for reasons which were not specified). A more advisable practice would have been (1) to permit defense counsel to consult by telephone with his quarantined client, and then (2) to poll the jury in open court, on the record. This would allow the defendant to make an informed decision about whether to consent to a mistrial and whether to oppose in-court questioning of the jury. This procedure would also add weight to the inquiry of the jurors and aid appellate review.

In the absence of any showing of a manifest necessity requiring a mistrial in this case, the petition for writ of prohibition is granted. On remand, the defendant shall be discharged.


author: SALTER, J.

text:
    Yasmary GONZALEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D09-2229.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Yasmary Gonzalez, in proper person.
    Louis A. Gutierrez, for appellee.
    Before GERSTEN, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

Yasmary Gonzalez, a non-attorney representing herself, appeals an order of the Florida Unemployment Appeals Commission (FUAC) reversing a referee’s decision that had affirmed an initial determination by the Agency for Workforce Innovation granting Ms. Gonzalez unemployment benefits. We reverse, finding that the referee’s decision was based on competent substantial evidence (including extended testimony and documentary submissions) and a proper application of controlling law.

Ms. Gonzalez was a five-year employee who received the employer’s “Award of Excellence” for her work in calendar year 2007 and was terminated in June 2008. She was ostensibly terminated for tardiness based on computer-based “punch in/ out times,” mistakes in recording certain data, and for sending an “insubordinate” email to her supervisor the day of her termination. The referee fairly concluded, however, that the supposed mistakes and tardiness in 2007 were after-the-fact matters inconsistent with the “Award of Excellence” conferred on Ms. Gonzalez for her work that year.

The referee heard the testimony of Ms. Gonzalez and two supervisors. The referee reviewed both the computer report on “punch in/out times” — with every “tardy” entry back to 2007 marked to show even one minute of “tardiness.” The referee also reviewed the supposed “mistakes” and the e-mail written to a supervisor on the day of the termination. The e-mail was plainly written in anger, but within it Ms. Gonzalez apologized for being late that morning, explained the reason, and offered to “talk regarding this issue.” The alleged insubordination in the e-mail argues that her two supervisors were not conforming to the timekeeping rules that applied to them. The referee could, and apparently did, view the e-mail and the related testimony as evidence of a garden-variety personality and management tiff rather than the statutory standard of “misconduct.”

As we have frequently noted, not all conduct warranting termination of an employee arises to the level of statutory “misconduct.” See Carson v. Fla. Unemployment Appeals Comm’n, 1 So.3d 289 (Fla. 3d DCA 2009). The referee’s assessment of such fact-intensive statutory elements as willfulness, wanton disregard, culpability, wrongful intent, evil design, or “intentional and substantial disregard” should not be disturbed by FUAC unless there is no competent substantial evidence upon which the referee’s decision might rest. Moreover, the referee was obligated by statute (as are FUAC and this Court) to construe that definition of misconduct liberally in favor of Ms. Gonzalez. § 443.031, Fla. Stat. (2008); Davidson v. AAA Cooper Transp., 852 So.2d 398, 401 (Fla. 3d DCA 2003).

Reversed and remanded for the reinstatement of the referee’s decision upholding the Agency’s award of benefits to Ms. Gonzalez.

      . The referee could view these reports with considerable skepticism, since the reports
        never show any clock-in earlier than 8:00 a.m. Since the employer only pays for time worked 8:00 a.m. to 4:30 p.m., its software is apparently programmed not to accept any clock-in before the start time. While we recognize that medical call centers depend on punctuality, these computer-generated records are designed to be employer-friendly and do not necessarily reflect the way a particular office operates as employees encounter traffic and public transportation delays, provide "makeup” time by arriving early another day, and otherwise carry out the work of the office. Ms. Gonzalez’s alleged tardiness in 2007 was plainly not a basis for termination, and the employer recognized her performance with its award in December 2007.


author: SHEPHERD, J.

text:
    Jorge G. ZARATE, Appellant, v. Maria C. ZARATE, Appellee.
    No. 3D08-1544.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Virginia R. Vetter, Tampa, for appellant.
    Leonardo Renaud, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   SHEPHERD, J.

This is an appeal brought by the former husband, Jorge G. Zarate, from a final judgment of dissolution of his marriage to Maria C. Zarate. We find the former husband has raised two meritorious points.

First, the trial court miscalculated the former husband’s child support obligation by failing to deduct the amount of the periodic alimony award made to the former wife from the former husband’s monthly income, and then failing to add it to the monthly income of the former wife. See §§ 61.30(2)(a)(9); (3)(g), Fla. Stat. (2008); Melo v. Melo, 864 So.2d 1268, 1269 (Fla. 3d DCA 2004).

Second, we agree with the former husband that the trial court’s statement in the final judgment regarding the alimony-award being “lifetime alimony until she marries, dies or there are other circumstances” (emphasis added) allows at least a theoretical argument that a “circumstance” may arise at some future date in which the former husband may be required to pay alimony even if the former wife re-marries. The law of this State is clear that in the absence of agreement to the contrary, periodic alimony ceases upon the re-marriage of the recipient spouse. See In re Freeland's Estate, 182 So.2d 425, 426 (Fla.1965).

For the foregoing reasons, we reverse and remand this case for recalculation of the former husband’s child support obligation and clarification that the husband’s periodic alimony obligation ends upon remarriage of the former spouse. In all other respects, we affirm the judgment below.

Affirmed in part, reversed in part with directions.


author: VILLANTI, Judge.

text:
    BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA, Appellant, v. Ginelle JEAN-JACQUES, Serge Jean-Jacques, Jr., and U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CB5, Appellees.
    No. 2D08-3553.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    Rehearing Denied March 26, 2010.
    F. Malcolm Cunningham, Jr., and Amy Fisher of The Cunningham Law Firm, P.A., West Palm Beach, for Appellant.

      Cindy L. Runyan of Florida Default Law Group, LP, Tampa, for Appellee U.S. Bank National Association.
    No appearance for Appellees Ginelle M. Jean-Jacques and Serge Jean-Jacques, Jr.
   VILLANTI, Judge.

BAC Funding Consortium Inc. IS-AOA/ATIMA (BAC) appeals the final summary judgment of foreclosure entered in favor of U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CB5 (U.S. Bank). Because summary judgment was prematurely entered, we reverse and remand for further proceedings.

On December 14, 2007, U.S. Bank filed an unverified mortgage foreclosure complaint naming the Jean-Jacqueses and BAC as defendants. The complaint included one count for foreclosure of the mortgage and a second count for reestablishment of a lost note. U.S. Bank attached a copy of the mortgage it sought to foreclose to the complaint; however, this document identified Fremont Investment and Loan as the “lender” and Mortgage Electronic Registrations Systems, Inc., as the “mortgagee.” U.S. Bank also attached an “Adjustable Rate Rider” to the complaint, which also identified Fremont as the “lender.”

Rather than answering the complaint, BAC responded by filing a motion to dismiss based on U.S. Bank’s lack of standing. BAC argued that none of the attachments to the complaint showed that U.S. Bank actually held the note or mortgage, thus giving rise to a question as to whether U.S. Bank actually had standing to foreclose on the mortgage. BAC argued that the complaint should be dismissed based on this lack of standing.

U.S. Bank filed a written response to BAC’s motion to dismiss. Attached as Exhibit A to this response was an “Assignment of Mortgage.” However, the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence.

For reasons not apparent from the record, BAC did not set its motion to dismiss for hearing. Subsequently, U.S. Bank filed a motion for summary judgment. At the same time, U.S. Bank voluntarily dismissed its count for reestablishment of a lost note, and it filed the “Original Mortgage and Note” with the court. However, neither of these documents identified U.S. Bank as the holder of the note or mortgage in any manner. U.S. Bank did not file the original of the purported “assignment” or any other document to establish that it had standing to foreclose on the note or mortgage.

Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.

The summary judgment standard is well-established. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So.2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So.2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant files an answer, “it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative defense it might raise” could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So.2d 763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact”). As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So.2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006) (“[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question.”). While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists “Fremont Investment & Loan” as the “lender” and “MERS” as the “mortgagee.” When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits controls] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”). Because the exhibit to U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor. •

In this appeal, U.S. Bank contends that it was not required to file an assignment of the note or mortgage or otherwise prove that it validly held them in order to be entitled to summary judgment in its favor. We disagree for two reasons. First, because BAC had not yet answered the complaint, it was incumbent on U.S. Bank to establish that no answer that BAC could properly serve or affirmative defense that it might allege could raise an issue of material fact. Given the facial conflict between the allegations of the complaint and the contents of the exhibit to the complaint and other filings, U.S. Bank failed to meet this burden.

Second, regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See Booker v. Sarasota, Inc., 707 So.2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such). The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage.

Essentially, U.S. Bank’s argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon record proof — not assumptions. Given the vastly increased number of foreclosure filings in Florida’s courts over the past two years, which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment motion in a foreclosure proceeding.

Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank. We therefore reverse the final summary judgment of foreclosure and remand for further proceedings.

Reversed and remanded for further proceedings.

ALTENBERND and SILBERMAN, JJ., Concur.


text:
    Johnny B. GAFFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0260.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2010.
    Johnny B. Gafford, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Louis WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3139.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2010.
    Louis Wood, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee and, Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

PALMER, LAWSON and JACOBUS, JJ., concur.


text:
    Marvin CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3197.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Baird, 572 So.2d 904 (Fla.1990), and Harris v. State, 544 So.2d 322 (Fla. 4th DCA 1989).

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Johnnie BALLARD, Appellee.
    No. 4D08-4090.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nelson v. State, 16 So.3d 286 (Fla. 4th DCA 2009).

WARNER, POLEN and STEVENSON, JJ., concur.


author: PER CURIAM. COPE, J.,

text:
    Luis A. CHACON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3156.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Luis A. Chacon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE, and SALTER, JJ.
   PER CURIAM.

Affirmed.

COPE, J.,

(concurring).

I concur in affirming the denial of the appellant’s motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a) because the issue the appellant raises on appeal is completely different from the issue the appellant raised in his motion dated September 3, 2009. The trial court erred in denying the motion as being “successive,” because as the Florida Supreme Court has explained, there is no “successiveness” bar in rule 3.800(a). State v. McBride, 848 So.2d 287, 290 (Fla.2003). Instead, the question is whether the same claim has previously been raised and decided. Id. The trial court’s erroneous statement about “successiveness” is, however, harmless under the circumstances of this case.


text:
    Kanisky EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3435.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Kanisky Evans, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998).


text:
    Gerald LELIEVE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3510.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2010.
    Gerald Lelieve, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

The appellant claims the trial court incorrectly assessed points on his scoresheet for seven previously charged offenses. Because the trial court summarily denied the motion without attaching appropriate portions of the record refuting the appellant’s claim, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing the appellant is not entitled to any relief. See Atwood v. State, 765 So.2d 242, 243 (Fla. 1st DCA 2000).

Reversed and remanded for further proceedings.


text:
    Ricardo MONTEVECCHI, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5367.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Arturo R. Rios of the Law Office of Arturo R. Rios, P.A., St. Petersburg, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008). This affir-mance is without prejudice as to the filing of an amended motion with a facially sufficient claim pursuant to Forrest.

WARNER, POLEN and CIKLIN, JJ„ concur.


text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Thomas R. SMITH and Alicia R. Hite, Appellees.
    No. 1D08-4761.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.

      Samuel A. Maroon of Law Offices of Patricia E. Garagozlo, Jacksonville, for Appellant.
    Jeffery B. Morris, Jacksonville, for Ap-pellee Thomas R. Smith.
   PER CURIAM.

Appellant seeks review of a summary final judgment entered in favor of its insured, which concluded that appellant provided insurance coverage on the date of its insured’s automobile accident because the insured paid his overdue premium before the effective cancellation date of the policy. We conclude that the trial court properly entered summary judgment against appellant, albeit for the wrong reason. Accordingly, we affirm. See Henderson v. Crosby, 888 So.2d 847 (Fla. 1st DCA 2004) (applying the “tipsy coachman” rule to affirm a summary judgment).

Appellant provided its insured with a grace period which allowed the insured to avoid cancellation of his automobile insurance policy for nonpayment of premium if he made the overdue premium payment before 12:01 a.m. on Sunday, September 25, 2005. The trial court concluded that since the last day of the grace period fell on a Sunday, the payment deadline was extended to the next business day, Monday, September 26, 2005, by operation of Florida Rule of Civil Procedure 1.090(a), which governs the computation of statutory time periods absent specific provisions to the contrary. See Health Quest Corp. IV v. Dep’t of Health & Rehab. Servs., 593 So.2d 533, 536 (Fla. 1st DCA 1992). The only applicable statute in this case is section 627.728(3)(a), Florida Statutes (2005), which requires an insurer to give its insured 10 days’ notice before cancelling a policy for nonpayment of premium. Because the statute does not require the insurer to allow the insured to make an overdue premium payment before the cancellation date in order to avoid cancellation of the policy for nonpayment of premium, the time computation provisions of rule 1.090(a) are not applicable in this case.

By extending the payment deadline to the next business day, the trial court stacked “grace” upon “grace,” which cannot be done by implication under contract law. See State Farm Mut. Auto. Ins. Co. v. Green, 500 So.2d 563, 564 (Fla. 2d DCA 1986). However, even if the payment deadline was not extended, the trial court properly entered summary judgment for the insured because appellant’s bank received the insured’s electronic payment file before the cancellation date and the delay in the deposit of the payment into appellant’s bank account was due to processing delays by appellant’s bank.

AFFIRMED.

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    Jean R. ESTEY, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-0052.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Jenna Dean Lopes of the Law Office of Jenna Lopes, P.A., Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(C).

KAHN, PADOVANO, and WETHERELL, JJ., concur.


author: LaROSE, Judge.

text:
    K.C. CROMWELL, INC., a North Carolina corporation, as successor to K.C. Cromwell, a Florida corporation f/k/a Spartan Staffing, Inc. d/b/a Workforce, U.S.A., Appellant/Cross-Appellee, v. Michael R. POLLARD, Appellee/Cross-Appellant.
    No. 2D06-1010.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.

      Frank E. Brown of Macfarlane Ferguson & McMullen, Tampa, for Appellant.
    James G. Brown and Allen J. McKenna of Ford & Harrison LLP, Orlando, for Amicus Curiae Academy of Florida Management Attorneys, Inc.
    John G. Crabtree of The Florida Appellate Alliance, PLC, Key Biscayne; Shannon McLin Carlyle of The Florida Appellate Alliance, PLC, The Villages; Gregg I. Shavitz and Perry Tanksley of The Shavitz Labor Pool Law Firm, PLC, Boca Raton; and David J. George and Stuart A. Davidson of Lerach Coughlin Stoia Geller Rud-man & Robbins, LLP, Boca Raton, for Appellee.

      . Judge Silberman has been substituted for Judge Stringer, who was on the original Cromwell panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

LaROSE, Judge.

This case is before us on remand from the Supreme Court of Florida for reconsideration after Liner v. Workers Temporary Staffing, Inc., 990 So.2d 473 (Fla.2008) (Liner II). See Pollard v. K.C. Cromwell, Inc., 18 So.3d 975 (Fla.2009).

K.C. Cromwell, Inc., d/b/a Workforce, U.S.A. (Workforce), appealed a final judgment awarding Michael Pollard $160,000 in statutory damages for violations of section 448.24(l)(b), Florida Statutes (2000-2003). In light of Liner II, we affirm, in part, and reverse, in part.

Our prior opinion details the operative facts:

Workforce operates a daily temporary staffing service and is a “labor pool” as defined in section 448.22(1) of the Florida Labor Pool Act. Mr. Pollard was a day laborer who was employed by Workforce from February 12, 2000, until April 23, 2003. While employed by Workforce, Mr. Pollard used a service it provided which transported him from the Bradenton offices to and from designated worksites within Manatee County. Workforce charged Mr. Pollard a fee for the transportation service and was paid by payroll deduction. The fee charged by Workforce ranged from $1 to $1.50 per one-way trip.
Mr. Pollard brought an action alleging that Workforce violated section 448.24(l)(b) which outlines the duties and rights of the labor pool and day laborer with regard to charges for transportation. The version of this statute in effect from 2000 through 2003 provides that a labor pool may not charge a day laborer “[mjore than a reasonable amount to transport a worker to or from the designated worksite, but in no event shall the amount exceed the prevailing rate for public transportation in the geographic area.” The trial court held that the Manatee County Area Transit System rate of $1 for each one-way trip was the prevailing rate for public transportation in the Manatee County geographic area. It concluded that in order to comply with section 448.24(l)(b), $1 was the maximum amount Workforce could have deducted from Mr. Pollard’s pay and found that Workforce violated the statute on 160 occasions. In accordance with section 448.25, the trial court awarded Mr. Pollard damages in the amount of $1000 for each violation.

K.C. Cromwell, Inc. v. Pollard, 974 So.2d 420, 421-22 (Fla. 2d DCA 2007) (internal footnotes omitted).

We reversed the trial court’s decision, adopting the Fourth District’s rationale in Liner v. Workers Temporary Staffing, Inc., 962 So.2d 344 (Fla. 4th DCA 2007) (Liner I), and held that section 448.24(1)(b), Florida Statutes (2000-2003) was unconstitutionally vague. Subsequently, the supreme court reversed Liner 1, holding that section 448.24(l)(b) provided a single standard of “reasonable amount” for evaluating labor pool transportation fees and, thus, was not unconstitutionally vague. Liner II, 990 So.2d at 478-79. Accordingly, we now affirm the trial court’s ruling that section 448.24(l)(b) is constitutional.

Liner II also addressed whether the uniform transportation price of $1.50 each way to and from worksites exceeded the prevailing public transportation rate. Liner II, 990 So.2d at 480-81. The Liner plaintiffs argued that the prevailing public transportation rate was the $1 one-way Broward County bus fare. Id. at 475-76. The supreme court rejected this argument; “public transportation” was not limited to bus travel, particularly because buses did not provide site-to-site service to work-sites. Id. at 481. The record before the supreme court contained evidence of alternative public transportation rates. Id. at 476, 481. The average cost to ensure timely site-to-site arrival to a random sample of job assignments was $32, measured by bus fare to the stop closest to the worksite plus taxi fare from there to the worksite. Id. The supreme court concluded that the labor pool company’s uniform price of $1.50 each way to worksites did not exceed the prevailing public transportation rate, was reasonable, and did not violate section 448.24(l)(b). Id. at 481-82.

Applying the supreme court’s interpretation of the statute, we reverse the trial court’s finding that the Manatee County Area Transit (MCAT) bus rate of $1 for each one-way trip was the prevailing public transportation rate. Like the Bro-ward County bus 'system, the MCAT bus system did not provide timely site-to-site service to worksites. The record before us shows that Workforce presented evidence of the costs of two other modes of public transportation in the area. MCAT Handy Bus service charged $2 per one-way trip. MCAT Vanpool program’s lowest “daily cost per rider” was $3.02, plus sales tax, fuel, tolls, parking, and vehicle cleaning. Workforce’s $1.50 one-way trip charge thus did not exceed the prevailing public transportation rate, was reasonable, and did not violate section 448.24(l)(b). This determination renders moot the other issues raised on appeal and on cross-appeal.

Affirmed in part and reversed in part.

WHATLEY and SILBERMAN, JJ., Concur.

      . Judge LaRose has been substituted for Judge Salcines, who was on the original Cromwell panel.

      . Section 448.24(l)(b) remained unchanged from 2000 until amended in chapter 2006-10, section 1, Laws of Florida (effective July 1, 2006), as follows, with amended language underlined and deleted language in strike-through text:
      (1) No labor pool shall charge a day laborer:

      (b) More than a reasonable amount to transport a worker to or from the designated worksite, but in no event shall the amount exceed $1.50 each way (tho-prevailing rate for public transportation in the geographic-area ....

      . Handy Bus was available only for people who qualified due to age, disability, or other reasons.


author: MORRIS, Judge.

text:
    Maximiuano MENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4047.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Maximiuano Mendez appeals his sentence of five years in prison imposed after the revocation of his probation for the offense of felony battery. We reverse and remand for further proceedings.

Mendez originally pleaded no contest to the offense of felony battery in exchange for five years’ probation. An affidavit of probation was then filed charging Mendez with violating his probation by fading to report to the probation office upon his release from jail. At the beginning of the violation hearing, defense counsel stated:

And, Judge, just for the record, I did explain to my client what the State’s offer was. I explained to him that the Court’s one-day offer was not extended to him today.
The Court offered, as you may recall, three and a half years, the State offered him four. He understands that the maximum he could receive is five years. He does not score for prison if you look at the sentencing scoresheet.
With that in mind, he did appear to understand, to me at least, what the interpreter was telling him. He indicated that he did wish to have a hearing. ...

The trial court confirmed with Mendez that Mendez was rejecting the State’s offer of four years and proceeding to an eviden-tiary hearing. After the evidentiary hearing, the trial court found Mendez in violation of his probation, adjudicated him guilty, and sentenced him to five years in prison.

During the pendency of this appeal, Mendez filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his five-year sentence is punishment for exercising his right to an evidentiary hearing on the charged violation of probation. He stated that he sought a transcript of the plea discussions involving the trial court but found that no such record exists. The trial court did not rule on Mendez’s motion; therefore, it is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B), (b)(1)(B).

On appeal, Mendez asserts the same challenge to his sentence. He contends that a presumption of vindictiveness arose and that it was not rebutted by the record. He argues that he is entitled to resentencing by a different judge. Mendez recognizes that no objection was raised below at the sentencing hearing but asserts that the issue was preserved in his rule 3.800(b)(2) motion.

We first note that rule 3.800(b)(2) is not the proper mechanism for Mendez’s challenge to his sentence; such an error is not a “sentencing error” because it occurs during the sentencing process and is not an error in an order entered as a result of the sentencing process. See Jackson v. State, 983 So.2d 562, 572, 574 (Fla.2008); Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009). Our analysis does not end here, however, because imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal. See McDonald v. State, 751 So.2d 56, 58 (Fla. 2d DCA 2000).

“Appellate courts should look at the totality of the circumstances when determining whether a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated.” Harris v. State, 903 So.2d 363, 366 (Fla. 2d DCA 2005) (citing Wilson v. State, 845 So.2d 142, 156 (Fla.2003)).

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendants] not pleading guilty and instead exercising his or her right to proceed to trial. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of [State v. Warner, 762 So.2d 507, 514 (Fla.2000) ]; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Wilson, 845 So.2d at 156 (footnote and citation omitted). “A presumption of vindictiveness arises where ‘there is a “reasonable likelihood” that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.’ ” Cambridge v. State, 884 So.2d 535, 537 (Fla. 2d DCA 2004) (quoting Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). The term vindictive — when used in the context of a claim of vindictive sentence — “is a term of art which expresses the legal effect of a given course of action, viewed objectively, and does not imply any personal animosity between the court and the defendant.” Harris, 903 So.2d at 366.

In this case, the trial court’s plea offer appears to have been made off the record, in violation of the supreme court’s holding in Warner that “[a] record must be made of all plea discussions involving the court.” 762 So.2d at 514. Without a complete record of the plea discussions, this court has no way of knowing with certainty the extent to which the trial court was involved in such discussions. See Harris, 903 So.2d at 366 (reversing sentence because an un-rebutted presumption of vindictiveness arose but recognizing that this court had “no way of evaluating the ‘totality of the circumstances’ of the court’s plea offer” where the trial court made the original plea offer off the record, in violation of Warner). However, it is clear from the record that the trial judge participated in plea negotiations by making an offer of three and one-half years in prison, and it appears that the trial court made its offer prior to the State’s offer, indicating that the trial court initiated the plea discussions.

The nature of the offer may have implied to Mendez that his ultimate sentence would hinge on his future choice to proceed to an evidentiary hearing. Mendez’s sentence is the maximum sentence permitted for the charged offense and is one and one-half years longer than that offered by the trial court prior to the violation hearing. See Longley v. State, 902 So.2d 925, 928 (Fla. 5th DCA 2005) (holding that an imposed sentence of two and one-half years in prison was “much harsher” than the offered sentence of six months in jail). But see Mounds v. State, 849 So.2d 1170, 1172 (Fla. 4th DCA 2003) (on motion for rehearing) (“[TJhe disparity between the offer and the actual sentence, while significant, was not extreme, 105.25 months versus 60 months.”).

Last, there are no facts on the record that explain the trial court’s reason for imposing the increased sentence. Before imposing sentence, the trial court noted that the probable cause affidavit for the felony battery stated that Mendez “stabbed the victim in the back with a butcher knife.” However, this information did not come to light during the violation hearing but was part of the record existing before the hearing. See Cambridge, 884 So.2d at 538 (holding that the presumption of vindictiveness remained unrebutted because the “record contain[ed] no explanation of the grounds for the sentence other than the nature of the crime committed, which generally was known to the court prior to the trial”).

In light of the above circumstances, there is an unrebutted presumption that the harsher sentence was imposed because Mendez exercised his right to a violation hearing. See Harris, 903 So.2d at 366; Pace v. State, 903 So.2d 383, 384 (Fla. 2d DCA 2005) (reversing and remanding for resentencing because totality of the circumstances indicated a vindictive sentence: trial judge initiated plea discussions off the record, trial judge offered a twelve-year sentence but imposed a twenty-year sentence after trial, and nothing in the record explained the reason for the harsher sentence). Accordingly, we reverse and remand for resentencing before a different judge. See Wilson, 845 So.2d at 159; Harris, 903 So.2d at 366-67.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . We recognize that our prior holding in Harley v. State, 924 So.2d 831, 832 (Fla. 2d DCA 2005), that a vindictive sentence claim may be preserved for appeal in a motion to correct sentencing error is no longer good law in light of Jackson, 983 So.2d 562. See Hannum, 13 So.3d at 135 n. 1.


text:
    Nivardo Leon NUNEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-834.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2010.
    James S. Purdy, Public Defender, and Robert Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Nivardo L. Nunez, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the appellant’s judgment and sentence. The prosecutor’s isolated statement concerning the law, which was arguably a misstatement, followed by the trial court’s proper instructions to the jury with respect to the law does not constitute grounds for reversal. See Lugo v. State, 845 So.2d 74, 108-109 (Fla.), cert. denied, 540 U.S. 920, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003); Cabrera v. State, 490 So.2d 200 (Fla. 3d DCA 1986); see also Fennie v. State, 855 So.2d 597, 609 (Fla.2003), cert. denied, 541 U.S. 975, 124 S.Ct. 1877, 158 L.Ed.2d 471 (2004).

AFFIRMED.

MONACO, C.J., GRIFFIN and PALMER, JJ., concur.


text:
    Trevor DESROSIERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4647.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2010.
    James F. Russo, Public Defender and Shara S. Sterling, Assistant Public Defender, Titusville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 05-2009-CF-47034-A, in the Circuit Court for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Denise M. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-374.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2010.
    Robert Wesley, Public Defender and Al-iette-Marie Charles, Assistant Public Defender, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. 09-CF-8506-0 in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, ORFINGER, and COHEN, JJ., concur.


author: WALLACE, Judge.

text:
    Kevin Jay NORRIS, Appellant, v. Elisha Marie NORRIS, Appellee.
    No. 2D08-6420.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2010.

      Kevin Jay Norris, pro se.
    Elisha Marie Norris, pro se.
   WALLACE, Judge.

Kevin Jay Norris (the Husband) appeals the circuit court’s order approving the report and recommendations of the general magistrate (GM) with respect to the parties’ petitions for dissolution of marriage. We conclude that the Husband’s arguments on appeal lack merit, and we affirm the circuit court’s order without discussion of those issues. However, because of our concern with the form of the circuit court’s order disposing of the parties’ dissolution action, we write to address that concern and to suggest that the circuit court adopt a new form.

Florida Family Law Rule of Procedure 12.490 provides the procedural framework for family law cases — including actions for dissolution of marriage — that are referred to a GM. After the GM conducts a hearing on a matter referred to him or to her, subsection 12.490(e) requires the GM to file a report stating his or her findings of fact, conclusions of law, and recommendations. However, the filing and service of the GM’s report does not conclude a matter. If a party files exceptions to the GM’s report, the circuit court must hear them on reasonable notice. Fla. Fam. L.R.P. 12.490(f). If no exceptions are filed, the circuit court must “take appropriate action on the report.” Fla. Fam. L.R.P. 12.490(f).

The nature of the “appropriate action” to be taken by the circuit court varies depending on the circumstances of the case. However, the entry of an order or judgment that merely approves the report is insufficient. While the GM makes a recommendation for the circuit court to follow, it is the circuit court’s responsibility to reduce the recommendation to a proper court order or judgment. See Wellborn v. K-Beck Furniture Mart, Inc., 54 Ohio App.2d 65, 375 N.E.2d 61, 62 (1977). “Merely stating that the [GM’s] report is approved does not constitute a judgment.” Id.

Where the marriage of the parties is to be dissolved, the action culminates in the entry of a final judgment of dissolution of marriage. See §§ 61.031; 61.052, Fla. Stat. (2008). See generally Marjorie A. Schmoyer, Final Judgment, in Florida Dissolution of Marriage §§ 10.1-.87 (Fla. Bar CLE 9th ed. 2008). A final judgment of dissolution of marriage typically includes a finding that the parties’ marriage is irretrievably broken and a declaration that it is dissolved. See Fla. Fam. L.R.P. Forms 12.990(a)-(c)(2); Schmoyer, Final Judgment §§ 10.16, 10.21. Thus, in an action for dissolution of marriage, the “appropriate action” on the GM’s report is generally entry of a final judgment dissolving the marriage and addressing the remaining recommendations.

Upon our initial review of the circuit court’s order in this case, we questioned whether the order was final because it does not expressly state that the marriage between the parties is dissolved. The GM’s report “RECOMMENDED that a Final Judgment of Dissolution of Marriage be entered, dissolving the marriage of the parties and ordering the recommended relief set forth above.” The circuit court entered an order approving the GM’s report and recommendations but did not state that the marriage between the parties is dissolved. Under some circumstances, such an omission could have serious consequences. In an action for dissolution of marriage, an order that does not either dismiss the action with prejudice or dissolve the marriage of the parties will generally not be “final” for appellate purposes because it does not put an end to the judicial labor. See Crawford v. Dwoskin, 729 So.2d 520, 521 (Fla. 3d DCA 1999). Such an order is not appealable unless it qualifies as an appealable, nonfinal order under Florida Rule of Appellate Procedure 9.130. See Crawford, 729 So.2d at 521; Margulies v. Levy, 439 So.2d 336, 336 (Fla. 3d DCA 1983); Shapiro v. Shapiro, 432 So.2d 739, 740 (Fla. 4th DCA 1983).

However, despite this irregularity, we conclude the subject order is sufficient to dissolve the parties’ marriage. First, in assessing the sufficiency of a circuit court’s order to dissolve a marriage, this court and two of our sister courts have disregarded technical deficiencies in the order where the intent to effect a dissolution of the marriage was clear. See Green v. Green, 681 So.2d 769, 770 (Fla. 2d DCA 1996); Keller v. Keller, 862 So.2d 921, 922 (Fla. 4th DCA 2003); Reopelle v. Reopelle, 587 So.2d 508, 510-11 (Fla. 5th DCA 1991). In this case, reading the circuit court’s order in conjunction with the GM’s report leaves no doubt that the circuit court intended to dissolve the parties’ marriage.

Second, the circuit court’s order not only “confirmed” and “ratified” the GM’s report and recommendations, it also provided that they are “made an Order of this Court.” By specifically designating the report and recommendations as its own order, the circuit court effectively entered an order in accordance with the GM’s recommendations. Because the GM recommended that the parties’ marriage be dissolved, the circuit court’s order adopting that recommendation was sufficient to dissolve the parties’ marriage.

For these reasons, we find the circuit court’s order to be minimally sufficient. However, if this form order is still in use in Pasco County, we urge the circuit court to discontinue its use immediately. We believe that parties obtaining a dissolution of marriage — whether or not their cases are referred to a GM — should receive a final judgment signed by a circuit judge expressly stating that their marriage is dissolved. In addition to the problems with the circuit court’s order that we have already discussed, the order presents the parties with a practical problem. One cannot determine if the parties’ marriage has been dissolved only by reading the circuit court’s order. Instead, reference must also be made to the GM’s report. If the parties are required later to prove that their marriage has been dissolved, they must present copies of both the circuit court’s order and the GM’s report for examination. The person or persons reviewing the documents may question — as this court did — whether they are effective to dissolve the parties’ marriage. The adoption of the form of a final judgment expressly stating that the marriage between the parties is dissolved and incorporating the other recommendations in the GM’s report will not improve the situation for these parties, but it will help those who pass through the court system after them. Moreover, such a form is readily available. See Martin D. Proctor, Proceedings Before Magistrates and Support Enforcement Hearing Officers, in Florida Dissolution of Marriage § 20.31 (Fla. Bar CLE 9th ed. 2008). The circuit court should consider the adoption of this form or another similar to it in lieu of the form order under review in this case.

We affirm the circuit court’s order in all respects.

Affirmed.

ALTENBERND and NORTHCUTT, JJ., Concur.