author: GERBER, J.

text:
    Henry VARGAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-121.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and, Melanie Surber, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

Henry Vargas (the “defendant”) appeals his convictions for dealing in stolen property, operating a chop shop, racketeering, and conspiracy to commit racketeering. The defendant argues that the state failed to prove his knowledge of illegal activity and, thus, the trial court erred in denying his motions for judgment of acquittal. We affirm, finding that the state presented sufficient evidence to prove the defendant’s knowledge.

We summarize the state’s evidence as follows. In late 2003, undercover agents in the sheriffs auto theft task force met with the ringleaders of a suspected theft organization. The agents agreed to provide the ringleaders with a warehouse to use as a “chop shop” where stolen vehicles could be dismantled and loaded into shipping containers. By April, 2004, the ringleaders set up the warehouse for the chop shop’s operation. Meanwhile, the agents recorded the operation on video.

Immediately after the chop shop began operating, one of the agents pushed the ringleaders to get some more workers. The next day, the defendant arrived at the warehouse and was recorded watching others dismantle vehicles. The following day, the defendant and others were recorded dismantling vehicles. Later that day, an agent noticed a marked police car parked outside. The agent told everyone to stop working and turned the lights off. After the police car left, everyone left the warehouse. Ten days later, the chop shop’s operation resumed. The defendant was not there that day, but returned on three of the next six days. The defendant and others were recorded dismantling vehicles, bringing in motorcycle parts, and loading shipping containers.

One week later, the agents arrested everyone they believed was involved in the chop shop’s operation, including the defendant. The state ultimately charged eleven persons with a combination of twenty-seven counts. The state charged this defendant with four counts of dealing in stolen property (four motorcycles), operating a chop shop, racketeering, and conspiracy to commit racketeering. The state alleged that the offenses of dealing in stolen property and operating a chop shop served as the predicate offenses to charge the defendant with racketeering and conspiracy to commit racketeering.

At the jury trial, after the state closed its case, the defendant made multiple motions for judgments of acquittal. On the counts for dealing in stolen property and operating a chop shop, the defendant argued, in sum, that the state failed to show he knew or should have known that the vehicles and motorcycle parts were stolen. On the racketeering and conspiracy counts, the defendant argued, in sum, that the state failed to show he knew of any criminal plan or organization, or that he joined in concert with others to promote a criminal organization. The trial court denied the motions.

The jury convicted the defendant on all counts except for one of the counts of dealing in stolen property. After the trial court sentenced the defendant, this appeal followed. The defendant challenges the trial court’s denial of his motions for judgments of acquittal.

The supreme court articulated our standard of review in Pagan v. State, 830 So.2d 792 (Fla.2002):

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted). Applying that standard, we find sufficient evidence exists to sustain the defendant’s convictions. We will address the charges for dealing in stolen property and operating a chop shop before turning to the racketeering and conspiracy charges.

Dealing in Stolen Property / Operating a Chop Shop

According to the standard jury instruction for dealing in stolen property, which the trial court used in this case, the state had to prove: (1) the defendant trafficked in or endeavored to traffic in the motorcycle parts; and (2) the defendant knew or should have known that the motorcycle parts were stolen. See Fla. Std. Jury Instr. (Crim.) 14.2 (emphasis added); see also § 812.019(1), Fla. Stat. (2004) (“Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree ....”) (emphasis added). According to the statute on operating a chop shop, which the trial court used to craft a jury instruction in this case (because no standard instruction exists), the state had to prove the defendant knowingly owned, operated or conducted a chop shop, or knowingly aided and abetted another in operating, owning, or conducting a chop shop. See § 812.16(2), Fla. Stat. (2004) (emphasis added). A key component of the statutory definition of a “chop shop,” which the trial court read to the jury, is the existence of “stolen motor vehicles”:

“Chop shop” means any area, building, storage lot, field, or other premises or place where one or more persons are engaged or have engaged in altering, dismantling, reassembling, or in any way concealing or disguising the identity of a stolen motor vehicle or of any major component part of a stolen motor vehicle; where there are two or more stolen motor vehicles present; or where there are major component parts from two or more stolen motor vehicles present.

§ 812.16(l)(a), Fla. Stat. (2004) (emphasis added).

Sufficient evidence exists to show that the defendant knew the vehicles and motorcycle parts were stolen. The vehicles which the defendant dismantled had visible signs that they were stolen. One vehicle’s ignition had been tampered with so that it could be started without a key, and its front door handle had been tampered with so that an independent key could be used to open the door. Another vehicle’s ignition was popped off the steering column and had cellophane wrap covering the passenger side window. A third vehicle’s ignition was dismantled and was being started with a screwdriver. That vehicle’s door handle also had been tampered with to allow entry -without a key. After dismantling these obviously-tampered vehicles, the defendant loaded the vehicle parts and the motorcycle parts into shipping containers.

The condition of the vehicles should have put the defendant on notice that the vehicles and motorcycle parts were stolen. See Periu v. State, 490 So.2d 1327, 1329 (Fla. 3d DCA 1986) (“[T]he smashed-up condition of the front windshield and the absence of any vehicle identification numbers on the car should have placed a reasonable person on notice of the probable stolen nature of the vehicle....”); B.S. v. State, 320 So.2d 459, 461 (Fla. 3d DCA 1975) (“Knowledge on a defendant’s part to sustain a conviction for receiving stolen property may be shown ... if the state proves ... that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution on inquiry.”) (citations omitted). Moreover, the state proved that the motorcycle parts were in fact stolen, and “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” § 812.022(2), Fla. Stat. (2004).

Further, the fact that the defendant was present when an agent turned the lights off and told everyone to stop working because there was a marked police car parked outside should have put the defendant on notice that he was working in a chop shop. See United States v. Uder, 98 F.3d 1039, 1042, 1044-45 (8th Cir.1996) (evidence supported knowledge element of conducting operations in chop shop where, among other things, defendant was “waved off’ as he approached shop, apparently because police were there, but later returned to continue work).

Racketeering / Conspiracy

According to the standard jury instruction for racketeering, as used in this case, the state had to prove: (1) the defendant was employed by or associated with an enterprise; (2) the defendant conducted or participated in, directly or indirectly, such enterprise by engaging in at least two predicate incidents; and (3) of those incidents in which the defendant was engaged, at least two of them had the same or similar intents, results, accomplices, victims, or methods of commission or were interrelated by distinguishing characteristics and were not isolated incidents. See Fla. Std. Jury Instr. (Crim.) 26.7 (emphasis added); see also § 895.03(3), Fla. Stat. (2004) (“It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity....”).

According to the standard jury instruction for conspiracy, as used in this case, the state had to prove: (1) two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, namely to engage in a pattern of racketeering activity as charged in the information; (2) the defendant knowingly and willfully became a member of such conspiracy; and (3) at the time the defendant joined such conspiracy, he did so with the specific intent either to personally engage in at least two incidents of racketeering, as alleged in the information, or he specifically intended to otherwise participate in the affairs of the enterprise with the knowledge and intent that other members of the conspiracy would engage in at least two incidents of racketeering, as alleged in the information, as part of a pattern of racketeering activity. See Fla. Std. Jury Instr. (Crim.) 26.8 (emphasis added); see also § 895.03(4), Fla. Stat. (2004) (“It is unlawful for any person to conspire or endeavor to violate any of the provisions of [§ 895.03(3)].”).

Sufficient evidence exists to show that the defendant knew he was joining a criminal enterprise, and that he specifically intended to engage in the crimes which the state ultimately charged as the predicate acts for racketeering. Again, the vehicles which the defendant dismantled had visible signs that they were stolen. Periu, 490 So.2d at 1329. The defendant was present when an agent turned the lights off and told everyone to stop working because there was a marked police car parked outside. Uder, 98 F.3d at 1042. After the operation resumed, the defendant returned over multiple days to continue dismantling vehicles and loading parts into shipping containers. The facts that the defendant may not have had full knowledge of all of the operation’s details, and was not present from the operation’s inception or at all times thereafter, are insufficient to prevent a conviction. See Fla. Std. Jury Instr. (Crim.) 26.8 (“A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme.... So, if a defendant has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy, even though he did not participate before and even though he played only a minor part.”) (emphasis added); Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (“[I]t suffices that [a conspirator] adopt the goal of furthering or facilitating the criminal endeavor.”).

In sum, the state’s evidence was sufficient to prove that the defendant was not merely an innocent day laborer who was ignorant of the illegal nature of the operation. Rather, the state’s evidence was sufficient to prove that the defendant knew he was joining a criminal enterprise, and that he was committing offenses to further that enterprise. Thus, we affirm the defendant’s convictions for dealing in stolen property, operating a chop shop, racketeering, and conspiracy to commit racketeering.

Affirmed.

TAYLOR and LEVINE JJ., concur.

      . Despite our affirmance based on the evidence of this case, we join other courts in cautioning the state to use its prosecutorial discretion wisely in deciding which persons to charge with racketeering and conspiracy. See State v. Otte, 887 So.2d 1186, 1190 n. 4 (Fla.2004) ("LTJhe target of RICO Act prosecutions will be [,] appropriately, the professional or career criminal and not non-racketeers who have committed relatively minor crimes.”) (citation omitted); Jackson v. State, 858 So.2d 1211, 1213 (Fla. 3d DCA 2003) ("[T]he concept of enterprise is not to be applied to ‘garden variety criminal undertakings.’ ”) (citation omitted); Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994) (“One danger that lurks in the criminal charge of conspiracy is the tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition.”) (citation omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cedric A. FIGGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3503.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Rehearing and Rehearing En Banc Denied May 18, 2010.

      Cedric A. Figgers, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Ambroise v. State, 932 So.2d 1245 (Fla. 3d DCA 2006).


author: GERSTEN, J.

text:
    YACHT CLUB OF the AMERICAS, LLC, etc., et al., Appellants, v. Richard NAMON, II d/b/a EZ Palms, Appellee.
    No. 3D09-2384.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Rehearing Denied April 23, 2010.
    Burandt, Adamski, Grossman, & Powell and Robert B. Burandt, Cape Coral, for appellants.
    Richard'Namon, II, in proper person.
    Before RAMIREZ, C.J., and GERSTEN and CORTIÑAS, JJ.
   GERSTEN, J.

Yacht Club of the Americas, LLC, and others (collectively “Yacht Club”), appeal from an order vacating a prior order transferring this case to the Twentieth Judicial Circuit Court in Lee County (“the transferee court”). We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.040(b)(2) and 9.130(a)(3)(A), and reverse.

•Richard Namon, II, d/b/a EZ Palms (“Namon”) sued Yacht Club for breach of contract. Yacht Club moved to dismiss the action, among other grounds, for improper venue. The trial judge of the Eleventh Judicial Circuit Court in Miami-Dade County (“the transferor court”) granted the motion, ordering transfer of the case from the transferor court to the transferee court.

The transferee court certified receiving the transferred case and the appropriate fees on May 11, 2009. Namon moved the transferor court to vacate the transfer order, and on August 10, 2009, the transferor court vacated its prior order transferring the ease to the transferee court.

On appeal, Yacht Club asserts that the transferor court did not have jurisdiction to enter the order vacating the transfer order. Namon contends that the transfer- or court properly vacated the transfer order. We agree with Yacht Club.

In a civil case, a change of venue becomes effective when the applicable costs and service charges are paid, and the transferee court receives the court file. § 47.191, Fla. Stat. (2008); Vasilinda v. Lozano, 631 So.2d 1082, 1087 (Fla.1994). Once the fees are paid and the file is received, the transferee court assumes jurisdiction. The transferor court is without jurisdiction to take any further action in the case. See Gundersen v. Powell, 840 So.2d 1252, 1253 (Fla. 2d DCA 1976) (holding that “jurisdiction had effectively vested in Martin County when the file was forwarded to the clerk of the circuit court in Martin County and appellant’s counsel paid the filing fee [and] the Hillsborough County Circuit Court was without jurisdiction to make any further order”).

Here, the record shows that the transferee court certified receipt of the case file and the fees on May 11, 2009. On this date, the transferor court was divested of jurisdiction. Thus, the transferor court judge erred in entering the order granting Namon’s motion to vacate the prior transfer order.

Accordingly, we reverse the order vacating the transfer order.

Reversed and remanded.


text:
    The UNIVERSITY OF MIAMI, Appellant, v. Daniel ANSCHER, Appellee.
    No. 3D09-2654.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Rehearing and Rehearing En Banc Denied May 18, 2010.
    Isicoff, Ragatz and Koenigsberg, Eric D. Isicoff, and Teresa Ragatz, Miami, for appellant.
    Richman Greer, Gerald Richman, and Leora B. Freire, West Palm Beach, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   GERSTEN, J.

The University of Miami (“UM”) appeals an order granting a temporary injunction in favor of Daniel Anscher (“the student”). We reverse.

There are four well-established requirements for issuing a temporary injunction: (1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) the entry of the injunction will not disserve the public interest. See LaRose v. A.K., 32 So.3d 77 (Fla. 2d DCA 2009).

Here, because the student did not adequately establish the elements for a temporary injunction, the trial judge improperly granted the temporary injunction. Accordingly, we reverse the temporary injunction.

Reversed and remanded.


author: PER CURIAM. COPE, J.

text:
    Carl LEGGETT, Jr., Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-740.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Carl Leggett, Jr., in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for respondent.
    Before COPE, GERSTEN and SUAREZ, JJ.
   PER CURIAM.

This is a petition for writ of habeas corpus which we treat as a timely petition alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(c). Defendant-petitioner Carl Leggett, Jr., was charged with second-degree murder and was convicted as charged. This court affirmed his direct appeal without opinion. Leggett v. State, 961 So.2d 951 (Fla. 3d DCA 2007).

In the petition now before us, the defendant argues that his appellate counsel was ineffective for failing to raise a claim of fundamental error in the giving of the standard jury instruction on manslaughter by intentional act. The jury was instructed on manslaughter by intentional act as a lesser included offense.

This court has held that there is no fundamental error in the giving of this standard jury instruction. Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009). The Valdes-Pino panel followed Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009), and certified direct conflict with Montgomery v. State, — So.3d -, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009), review granted, 11 So.3d 943 (Fla.2009). See also Bonilla v. State, 23 So.3d 1256 (Fla. 3d DCA 2009) (certifying direct conflict with Montgomery). Accordingly, we deny the petition but certify direct conflict with Montgomery.

Petition denied; direct conflict certified.

COPE, J.

(specially concurring).

Because this court has decided Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009), and Bonilla v. State, 23 So.3d 1256 (Fla. 3d DCA 2009), I agree that we must deny the petition and certify direct conflict with Montgomery v. State, — So.3d — (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009).

In my view, however, the First District decisions in Montgomery and Hankerson v. State, 831 So.2d 235, 236-37 (Fla. 1st DCA 2002), are correct.

The State charged the defendant with second-degree murder, alleging that he shot victim Lequisha Charles during an argument. The case went to the jury in February 2006. The court gave the standard jury instruction on second-degree murder, and the lesser included offenses of manslaughter by intentional act, and manslaughter by culpable negligence. The defense made no objection to the giving of these jury instructions. The defendant was convicted of second-degree murder as charged.

The defendant maintains that, as worded, these instructions actually require a lower level of culpability to be convicted of the greater offense — second-degree murder — and a higher degree of culpability to be convicted of the lesser offense — manslaughter by intentional act. The instructions stated, in part:

SECOND DEGREE MURDER
To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:
1. That Lequisha Charles is dead, and
2. That the death was caused by the criminal act of Carl Leggett, and
3. That there was an unlawful killing of Lequisha Charles by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
In order to convict of Second Degree Murder, it is not necessary for the State to prove the Defendant had an intent to cause death.
MANSLAUGHTER
Before you can find the Defendant guilty of Manslaughter, as a lesser included offense of Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:
1. That Lequisha Charles is dead, and
2. That
a. Carl Leggett intentionally caused the death of Lequisha Charles, or
b. The death of Lequisha Charles was caused by the culpable negligence of Carl Leggett.
In order to convict of Manslaughter by intentional act, it is not necessary for the State to prove that the Defendant had a premeditated intent to cause death.

(Emphasis added).

Item 2.a of the manslaughter instruction states that the defendant “intentionally caused the death of [the victim].” The First District has concluded that fundamental error occurs in this situation because, as worded, the instruction on manslaughter by intentional act tells the jury that this lesser included offense is applicable only if the defendant intentionally caused the death of the victim. Hankerson, 831 So.2d at 236-37. By contrast, the standard jury instruction on the greater crime, second-degree murder, states that “it is not necessary for the State to prove the Defendant had an intent to cause death.”

The First District ruled that under these instructions, the jury was “not given the opportunity to consider the appropriate lesser included offense of simple manslaughter which the defense had requested.” Id. at 237. The First District stated that although there had been no objection to the wording of the manslaughter instruction in the trial court, the defendant was nonetheless entitled to relief because the error constituted fundamental error. Id.; see also Montgomery, — So.3d at - (following Hankerson). The anomaly here is that proof of more culpable conduct (intention to cause death) was required in order to obtain the benefit of the lesser included offense.

At the conclusion of the instruction, the jury was told that the State need not prove “that the Defendant had a premeditated intent to cause death.” (Emphasis added). This wording indicates, for a second time, that an intent to cause death (although not a premeditated intent) must be shown.

The defendant’s point is well taken. These instructions are confusing on a disputed issue in the defendant’s case. Were it not for this court’s decisions in Valdes-Pino and Bonilla, the defendant should be granted relief.

This court has followed the Second District decision in Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). Respectfully, the Zeigler panel lost sight of the basic question: Do the jury instructions clearly inform the jury, in understandable terms, of the elements of second-degree murder and manslaughter by act? The First District got it right. The Zeigler analysis is unpersuasive.

In conclusion, I concur because this panel is bound by our earlier decisions in Valdes-Pino and Bonilla.

       The case went to the jury in February 2006.

      . Under the standard jury instructions in effect in 2006, this particular part of the manslaughter instruction was only supposed to be given where the main charge was first-degree murder and not, as here, where the main charge was second-degree murder. See In re Standard Jury Instructions in Criminal Cases (93-1), 636 So.2d 502, 506 (Fla.1994); Bolin v. State, 8 So.3d 428, 431 (Fla. 2d DCA 2009).

      . In 2008 the Florida Supreme Court clarified the manslaughter standard jury instruction 7.7 (manslaughter) as follows:
      In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007).

        In re Standard Jury Instructions in Criminal Cases — Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008). However, the accompanying instruction to the judge still provides that this instruction is to be given only where the defendant is charged with first-degree premeditated murder and the jury is to be instructed on manslaughter by intentional act as a lesser included offense. It does not apply where, as here and in Hankerson, the main charge against the defendant is second-degree murder, not first-degree premeditated murder.


author: SHEPHERD, J.

text:
    TRG-BRICKELL POINT NE, LTD, etc., et al., Appellants, v. Michael and Marsha WAJSBLAT, et al., Appellees.
    No. 3D09-2266.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Rehearing Denied May 18, 2010.

      Edwards Angelí Palmer & Dodge, Gary A. Woodfield, and C. Cory Mauro, West Palm Beach, for appellants.
    Robert H. Cooper, Aventura; Philip D. Parrish, for appellees.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is a non-final appeal taken under Florida Rules of Appellate Procedure 9.130(a)(3)(B) and 9.130(a)(3)(C)(ii) from an order entered at a non-evidentiary hearing on the court’s uniform motion calendar, in the nature of a mandatory injunction, see Konover Realty Assocs. Ltd. v. Mladen, 511 So.2d 705, 706 n. 2 (Fla. 3d DCA 1987), or an order of entitlement to immediate possession of property, see Malek v. Bright, 7 So.3d 598 (Fla. 3d DCA 2009). The plaintiffs, two hundred twenty-six in number, are the contract purchasers of one hundred eighty-seven condominium units in three condominium towers in Miami-Dade County. The defendants, TRG Brickell Point NE, Ltd., TRG Brickell Point SE, Ltd., and TRG Brickell Point West, Ltd., are each the developer of one of the towers.

The plaintiffs seek the return of the full amount of deposits on the condominium units in the ongoing litigation. The default provision of each purchase agreement states, “If Buyer defaults after fifteen percent (15%) of the Purchase Price, exclusive of interest, has been paid, Seller will refund to Buyer any amount which remains from payments Buyer made after subtracting fifteen percent (15%) of the Purchase Price, exclusive of interest.” While not conceding lack of entitlement to the fifteen percent, the plaintiffs alleged in their un-sworn Motion to Authorize Escrow Agent to Return Deposit Payments in Excess of 15% of the Purchase Price, that “Plaintiffs do not intend to close on their respective units and have either been called to close and have breached or will not close and will be in breach.” The order under review reads as follows:

Second Amended Order on Plaintiff’s Motion for Release of Escrow Funds
ORDERED and ADJUDGED that the Motion be, and the same is hereby granted in part. As to Plaintiffs who have received a notice from defendant(s) that the plaintiff is in default, Defendants) shall return to set plaintiffs in the amount of the deposit in excess of 15% of the purchase price and the escrow agent shall effectuate the return of set amounts. The Defendants and Escrow Agent are ordered to comply with the provisions of this order within 14 days of the date of the hearing. As to plaintiffs who were called to close and did not close, but were not advised by the defendant that they were in default, the court shall hold additional hearings. As to all other plaintiffs, denied.

There exists no sworn evidence in the record to support the motion. In fact, no defendant had answered the complaint before the order was entered.

We, of course, reverse the order under review. See Fla. R. Civ. P. 1.510(c) (defining “summary judgment evidence” as “any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence”); Schrank v. Pearlman, 683 So.2d 559, 563 (Fla. 3d DCA 1996) (holding competent evidence must support a motion for summary judgment); Olin’s Inc. v. Avis Rental Car System of Fla., Inc., 105 So.2d 497, 498 (Fla. 3d DCA 1958) (“When a trial court has for consideration a plaintiffs motion for summary judgment before the defendant has answered, the summary judgment should not be granted unless it is clear that an issue of material fact can not be presented.”). The court may have been misguided by the fact that the developers admit, except for achieving certainty as to whom to write checks in some instances, they have no defense to the return of deposit monies in excess of fifteen percent to these plaintiffs. See Terra-Adi Int’l Bayshore, LLC v. Georgarious, 20 So.3d 987, 987 (Fla. 3d DCA 2009) (affirming on summary judgment an interlocutory order requiring return of deposits in excess of fifteen percent under identical contract language to that in the contracts before us). However inscrutable the full-court resistance exhibited by these developers to returning the deposit monies in excess of fifteen percent in this case, they are entitled to the due process of the law, meaning a properly supported motion for summary judgment. See Fla. R. Civ. P. 1.510(c). On the other hand, it is apodictic that summary judgments may not be granted at any type of hearing, absent the existence of “summary judgment evidence” in the record. See Schrank, 683 So.2d at 563. The trial court failed to adhere to this settled principle of jurisprudence in this case. For this reason, we reverse and remand this case for further proceedings consistent with this opinion.

Reversed and remanded with directions.

      . Even here, the parties at oral argument advise they presently are working cooperatively to achieve deposit returns in excess of fifteen percent for the class of purchasers who received notices of default.

      . We take judicial notice of our record in this recently decided case to confirm that the order under review was an order from a motion for summary judgment. See § 90.202(6)(2010), Fla. Stat.

      .Nor was a motion for judgment on the pleadings available to the plaintiffs at this stage of the proceeding. See Fla. R. Civ. P. 1.140(c) (stating such motions may be brought only after the pleadings are closed).


text:
    INTERNATIONAL SALES GROUP, LLC, Appellant, v. RITIN, LLC, Appellee.
    No. 3D09-1630.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Rehearing and Rehearing En Banc Denied May 25, 2010.

      Kluger Kaplan Silverman Katzen & Levine and Alan J. Kluger and Steve I. Sil-verman and Marilyn G. Kohn, Miami, for appellant.
    Mark A. Goldstein, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 475.278, Fla. Stat. (2005).


text:
    PHILIP MORRIS USA, INC., and Liggett Group, LLC, f/k/a Liggett Group, Inc., Appellants, v. Robin A. LUKACS, as personal representative of the Estates of John Lukacs and Yolanda Lukacs, Appellee.
    No. 3D08-3046.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Rehearing and Rehearing En Banc Denied May 18, 2010.
    Kasowitz, Benson, Torres & Friedman, and Leonard A. Feiwus and Kelly A. Luther, Miami; Clarke Silverglate & Campbell, and Karen H. Curtis, Miami; King & Spalding, and Richard A. Schneider, Atlanta; Boies Schiller & Flexner, and Stephen N. Zack, Miami; Carlton Fields, and Gary L. Sasso, Tampa, for appellants.
    McGrane, Nosich & Ganz, and Miles McGrane; Hunter, Williams & Lynch, and Steve Hunter; Bruce S. Rogow and Cynthia E. Gunther, Fort Lauderdale; Gerson & Schwartz, and Philip Gerson, Miami, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Engle v. Liggett Group, Inc., 945 So.2d 1246, 1276-77 (Fla.2006); Hendry v. Zelaya, 841 So.2d 572, 575 (Fla. 3d DCA 2003).


author: COPE, J.

text:
    Chaim David GOTTFRIED and Sagit Tova Gottfried, Appellants, v. The KUTNER LAW FIRM, Appellee.
    Nos. 3D09-415, 3D08-2848, 3D08-2976.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.

      Barry S. Franklin, Aventura and Donald G. Criscuolo, Fort Lauderdale; Stok & Associates and Robert A. Stok, Aventura, for appellants.
    Stephens Lynn Klein La Cava & Puya and Robert M. Klein and Yelena Shney-derman, Miami, for appellee.
    Before COPE, GERSTEN and LAGOA, JJ.
   COPE, J.

This is an appeal of a judgment for attorney’s fees in a matrimonial proceeding. The question is whether the trial court had the authority to enter this attorney’s fee award. We affirm.

The underlying matrimonial proceeding went to trial on January 16 and 17, 2008, and both parties were present. The trial was scheduled to resume on February 29. In the interim, the husband went to Israel, taking marital assets with him. He did not return to Florida for four months.

The trial court made an oral ruling that the husband would be responsible for the additional attorney’s fees of the wife’s counsel attributable to attempting to obtain the husband’s return to this jurisdiction and completing the dissolution proceedings. The husband eventually returned.

After further proceedings, the husband and wife decided to settle the litigation without the assistance of their counsel and they entered into a marital settlement agreement. The agreement provided that each party would be responsible for his or her own attorney’s fees and costs.

The parties presented the marital settlement agreement to the trial court. After making inquiry of the parties regarding the agreement, the court ruled that it would approve the marital settlement agreement, with one exception. The court ruled that it would assess attorney’s fees against the husband in accordance with its earlier oral pronouncement, because of the husband’s absenting himself from the jurisdiction. The court reserved jurisdiction in the final judgment for this purpose.

The husband and wife both objected. They contended that since the marital settlement agreement provided for each party to bear his or her own attorney’s fees, it followed that there should be no assessment of attorney’s fees against the husband. The parties argued that an award of attorney’s fees to the wife’s counsel was for the benefit of the wife, and that the wife, by entering into the marital settlement agreement, had waived any such claim. The trial court overruled the objection.

At a subsequent hearing the trial court took evidence pursuant to the reservation of jurisdiction. The court awarded $90,237.75 in attorney’s fees for the post-absconding legal work. The court ordered those fees to be paid by the husband to the law firm. The husband and wife have appealed.

The husband and wife rely on cases which hold that a trial court cannot remake a marital settlement agreement simply because the court believes that one of the parties has made a bad bargain. See Williams v. Williams, 939 So.2d 1154, 1157 (Fla. 2d DCA 2006); Petracca v. Petracca, 706 So.2d 904, 911 (Fla. 4th DCA 1998).

This case is unlike the ones the parties rely on. In this case the husband absconded in midtrial, taking with him some of the marital assets, and was gone for four months. This was most definitely sanctionable behavior, and the trial court ordered that the husband would be sanctioned in the form of attorney’s fees. The husband and wife later entered a marital settlement agreement, and in effect, asked the court to withdraw its earlier oral announcement assessing attorney’s fees against the husband as a sanction. Whether to relieve the husband of sanctions was a matter addressed to the discretion of the trial court. We see no abuse of discretion in the trial court’s imposition of attorney’s fees in accordance with its earlier oral announcement. See Ratigan v. Stone, 947 So.2d 607 (Fla. 3d DCA 2007); Levy v. Levy, 862 So.2d 48 (Fla. 3d DCA 2003).

The parties also have made several arguments relating to the pending charging lien. As that lien has not been adjudicated, no issue regarding the charging lien is properly before us.

Affirmed.

      . In the meantime, the wife discharged her counsel, the appellee Kutner Law Firm. The law firm filed a notice of charging lien, which remains pending below. The wife filed a legal malpractice action against the firm. The husband and wife each obtained successor counsel.

      . Assuming for purposes of discussion that we accepted the argument of the husband and wife, the remedy would be to remand for imposition of an alternative sanction such as a fine payable to the clerk of the court.


text:
    Anthony HAMMOND, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1902.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.

      Anthony Hammond, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Anthony Hammond appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Hammond raised five claims of ineffective assistance of trial counsel. The trial court summarily denied four of the claims and held an evidentiary hearing on one. The judge denied the remaining claim after the hearing. Hammond has filed an initial brief in which he argues that the trial court erred in summarily denying two of his claims. In one sentence, he concludes, without explanation, that the court erred in denying the other claims as well.

Claims for which an appellant has not presented any argument, or for which he provides only conelusory argument, are insufficiently presented for review and are waived. Doorbal v. State, 983 So.2d 464, 482-83 (Fla.2008); Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999).

We affirm the denial of all the claims but write to explain the basis for rejecting one of Hammond’s arguments. We also write to clarify that we will not require remand based on Spera v. State, 971 So.2d 754 (Fla.2007), where the appellant has filed an initial brief and fails to show that Spera requires remand by to demonstrating a good faith basis for amending an insufficient claim.

In the sole claim that merits discussion, Hammond argues that trial counsel provided ineffective assistance by failing to file a notice of expiration of speedy trial time pursuant to Florida Rule of Criminal Procedure 3.191(p)(2). The State responded to this claim explaining that Hammond had not established the prejudice component of an ineffective assistance of counsel claim because he had not alleged that the State could not have brought him to trial within the fifteen-day recapture window. See Fla. R.Crim. P. 3.191(p)(3) (providing the State a total of fifteen days after a notice of expiration is filed to bring a defendant to trial).

The trial court agreed and cited Newkirk v. State, 947 So.2d 548 (Fla. 4th DCA 2006), where this court rejected just such a claim under similar circumstances. This court explained as follows: “[Appellant’s] allegations with respect to failure to request a speedy trial discharge also do not show that the proceeding was rendered fundamentally unfair or that the state could not have brought him to trial within the time periods allowed by the speedy trial rule.” Id. at 549; see also Dexter v. State, 837 So.2d 595 (Fla. 2d DCA 2003) (holding that a defendant fails to establish prejudice if he does not allege that the State could not have brought him to trial within the recapture window).

Hammond, by contrast, relies on First District cases in which the court has required evidentiary hearings on this type of claim. See, e.g., Gee v. State, 13 So.3d 68 (Fla. 1st DCA 2009); Burke v. State, 855 So.2d 207 (Fla. 1st DCA 2003); Brown v. State, 829 So.2d 975 (Fla. 1st DCA 2002). The movants in the above cases, however, specified some reasonable basis to conclude that the failure to move for speedy trial discharge caused prejudice.

Hammond’s claim is insufficient. A claim of ineffective assistance of counsel based on a failure to seek discharge because of a violation of the speedy trial rule is extremely tenuous where the State had available the recapture window of Rule 3.191(p)(3). Cf. Wells v. State, 881 So.2d 54, 55 (Fla. 4th DCA 2004) (finding that prejudice was sufficiently alleged because the State may not have been entitled to a recapture period). In almost all cases, an allegation of prejudice on this type of claim is speculative. We suspect that it is almost always impossible to reconstruct the circumstances that existed when the speedy trial issue arose (often years earlier), what the State could and could not have done at that time, and “what might have been.” Absent peculiar circumstances, such a claim is likely not subject to reasonable proof.

A conclusory allegation of ultimate fact is not enough to establish a basis for the extraordinary relief authorized by Strickland. An unelaborated allegation that “the State could not have brought the mov-ant to trial within the recapture window” would be nothing more than bald conjecture. Evidentiary hearings (on an issue not typically subject to reasonable proof) are not required any time a defendant incants these words.

To be entitled to an evidentiary hearing, the movant must allege specific facts that establish a “reasonable probability” of prejudice. In a speedy trial claim, the movant would need to show that the State could not have brought the movant to trial within the recapture time. A conclusory claim is insufficient to warrant an eviden-tiary hearing. Oquendo v. State, 2 So.3d 1001, 1004 (Fla. 4th DCA 2008). Unless the movant alleges a specific factual basis and establishes a prima facie basis for concluding that the State could not have brought the defendant to trial within the recapture window, such a claim should be denied.

Newkirk and other opinions affirming denials of claims that failed to allege that the State could not have brought the mov-ant to trial within the recapture period issued before the Florida Supreme Court’s decision in Spera. In Spera, the Court held that a movant must be afforded at least one opportunity to amend a legally insufficient postconviction motion that fails to meet pleading requirements. 971 So.2d at 761. As we have noted, however, Spera does not require remand of conclusory claims. Mancino v. State, 10 So.3d 1203 (Fla. 4th DCA 2009).

Further, Spera holds that an opportunity to amend is required “only if [the claim] can be amended in good faith.” 971 So.2d at 762; See also Montero v. State, 996 So.2d 888, 890 (Fla. 4th DCA 2008) (affirming denial of insufficient claim because it could not reasonably be amended in good faith).

In post-Spera cases, the Second District has reversed denials of insufficient claims such as the one Hammond raises and remanded for the trial court to follow the Spera procedure by striking the claim and permitting an opportunity to amend. Gamble v. State, 996 So.2d 946, 948 (Fla. 2d DCA 2008); Smith v. State, 988 So.2d 693, 694 (Fla. 2d DCA 2008). To the extent these cases suggest that remand is required under Spera or that an evidentia-ry hearing is required based on conclusory allegations of prejudice, we certify conflict.

Hammond has not demonstrated either error requiring reversal or a basis for relief under Spera. He has not shown that he has a good faith basis to amend his claim. While aware that the State was arguing that his claim was insufficient, Hammond filed a reply in the trial court but did not seek an opportunity to amend. This alone might not be sufficient to preclude relief under Spera. See Hartwell v. State, 12 So.3d 892, 893 (Fla. 5th DCA 2009). Hammond filed an initial brief in this appeal. Patently aware that his claim was, however, insufficient and that the claim has already been denied as such, Hammond did not raise Spera or argue that he has any good faith basis for amending his motion to state a sufficient claim.

The First District has held that if a defendant files a brief in a Rule 3.850 appeal and does not raise Spera, then any claim for relief under Spera is waived. Watson v. State, 975 So.2d 572, 573 (Fla. 1st DCA 2008). We adopt Watson's holding on this point and further note that, because Spera requires an opportunity to amend only if the motion can be amended in good, faith, the appellant maintains the burden of establishing in the initial brief that a good faith basis exists for amending the motion. Where an appellant fails to show any good faith basis for amendment, and no reasonable good faith basis for amendment appears in the record, we will not remand the matter.

Affirmed.

HAZOURI, CIKLIN and LEVINE, JJ., concur.

      . To be entitled to relief based on a claim of ineffective assistance of trial counsel, a post-conviction movant must establish that counsel performed well below an objective standard of reasonableness and that, but for the deficiency, a reasonable probability exists that the outcome of the trial would differ. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: SALTER, J. SHEPHERD, J.,

text:
    KT HOLDINGS USA, INC., etc., et al., Appellants, v. AKERMAN, SENTERFITT & EIDSON, et al., Appellees.
    No. 3D07-1767.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Rehearing and Rehearing En Banc Denied May 18, 2010.

      Sweetapple, Broeker & Varkas and Douglas C. Broeker, Miami, for appellants.
    White & Case and Rudolph F. Aragon and James N. Robinson, Miami, for appel-lees.
    Before RAMIREZ, C.J., and SHEPHERD and SALTER, JJ.
   SALTER, J.

KT Holdings USA, Inc., and KT Trading USA, Inc., appeal a final summary judgment in favor of Akerman, Senterfitt & Eidson, P.A., and two of its attorneys in a circuit court action alleging legal malpractice. The issue is whether the law firm and lawyers negligently allowed KT Trading’s recently-purchased $4.8 million private jet aircraft to become part of an asset purchase transaction. Because the salient facts were not in dispute and the controlling legal principles support summary disposition, we affirm the final summary judgment.

The Asset Purchase Transaction and the Separate Aircraft Purchase

MacKnight Smoked Foods, Inc. (Smoked Foods), operated a profitable food business. Jonathan Brown was president of Smoked Foods and president of MacKnight Holdings, Inc. (Holdings). Holdings owned all of the stock of Smoked Foods. In early 2002, Smoked Foods and Holdings entered into a letter of intent whereby Smoked Foods would sell all of its assets to MSF Acquisition Corp. (MSF). Smoked Foods and Holdings retained the Akerman law firm to provide legal representation to them in the transaction.

Shortly after entering into the letter of intent to sell the assets of Smoked Foods to MSF for $44,000,000, but before the closing of that transaction, Brown and other owners of Holdings decided to buy a new “Premier One” corporate jet from Raytheon. Brown did not retain Akerman or its attorneys to guide him in the negotiation of the purchase contract with Ray-theon, to represent him at the closing of the $4,780,000 purchase of the jet, or to review the written conveyance document executed by Raytheon for filing with the Federal Aviation Administration. Brown did tell attorneys at Akerman that he and the other shareholders of Holdings did not want to disclose the purchase of the jet to MSF, and one or more of the Akerman attorneys told Brown that he should not place title to the aircraft in Smoked Foods.

When the asset purchase transaction closed — only about two weeks after Brown closed the purchase of the aircraft in the name of Smoked Foods — the jet was not listed on the schedule of excluded assets. The jet was purchased with funds obtained from Holdings and the shareholders of that entity, and it was never used in connection with the business of Smoked Foods. Smoked Foods never intended to sell the jet to MSF, MSF never intended to buy it, and the asset purchase price was computed on the basis of financial statements and appraisals that did not include the aircraft.

Brown and his newly-hired pilot did not deliver the aircraft to MSF following the closing, and for almost a year after closing MSF made no inquiry, much less a demand, regarding the jet. When other post-closing disputes arose between Smoked Foods and MSF in 2003, however (about eleven months following the asset purchase closing), MSF sued Smoked Foods, Holdings, Brown, and other parties in the circuit court in Tampa. MSF then learned that the jet was titled in Smoked Foods on the date of the 2002 asset purchase closing and included a claim for “recovery” of the aircraft in that Tampa lawsuit.

The Malpractice Lawsuit

In 2004, Smoked Foods and Holdings (then known by their post-closing names, KT Trading USA and KT Holdings) sued Akerman and two of its shareholders for legal malpractice in the circuit court in Miami, claiming that the defendants’ legal malpractice caused KT Trading to pay millions of dollars of damages and incur legal expenses (in the Tampa litigation brought by MSF) in order to keep the aircraft. After extensive discovery, the law firm defendants moved for and obtained a final summary judgment in the Miami lawsuit. The trial court reasoned that the true cause of any losses by the KT entities regarding the aircraft was their failure to assert “mutual mistake” as an affirmative defense in the Tampa lawsuit. This appeal followed.

Analysis

The issue here, just as it was below, is whether the movants for summary judgment successfully established that there is no genuine issue as to any material fact and that they are entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Our consideration of the asset purchase transaction is governed by the parties’ contractual choice of law (New York), while our analysis of the legal malpractice claim is based on Florida law.

The undisputed facts that control this analysis are:

1. The KT entities did not intend to include the new jet aircraft as part of the corporate assets being sold to MSF.

2. MSF did not intend to purchase that new jet aircraft. Indeed, MSF was completely unaware that KT Trading had acquired the aircraft until a dispute over other issues began months after the sale of assets by KT Trading to MSF. The negotiated price for the assets sold to MSF was established before KT Trading acquired the aircraft, and on the basis of appraised values and prior-period financial results that were wholly unrelated to the aircraft.

3. The president of KT Trading and KT Holdings, Mr. Brown, admitted that he made two key decisions regarding the aircraft: (1) he did not retain the Akerman law firm or its lawyers to participate with him in the closing of the purchase of the aircraft; and, (2) he placed title to the aircraft in KT Trading despite specific advice to title the aircraft in KT Holdings or in a new single-asset company.

4. Brown intended that MSF be unaware of the purchase of the multi-million dollar aircraft. An experienced business person, he understood that the purchaser of KT Trading’s assets might sense additional leverage if it knew that the seller needed several million dollars for the aircraft closing right around the time of the asset sale. Adding the aircraft to KT Trading’s “excluded asset” schedule in preparation for closing would have telegraphed the aircraft purchase to MSF.

5. KT Trading had record title to, and its parent company operated, the aircraft from June 22, 2002 (the date of the aircraft purchase), through the July 9, 2002, asset sale to MSF, and continuously thereafter through June 2003, when MSF amended its post-sale complaint in the Tampa lawsuit to claim that the aircraft should have been included in the asset sale. This further illustrates that MSF understood that the $4.78 million aircraft was never a part of the $44 million asset purchase. Gimlet-eyed business executives do not “forget” to take possession at closing (much less, for eleven months thereafter) of a corporate jet they expect to be included in an acquisition.

6. KT Trading did not provide the funding for the aircraft, nor was the aircraft used in furtherance of the income-producing activities of the company before the asset sale. All of the millions of dollars paid to Raytheon for the purchase of the aircraft were funded by the ultimate owners of KT Holdings (which sold no assets to MSF).

As these undisputed facts illustrate, it is difficult to determine who has overreached more — MSF, by enthusiastically pursuing a complete windfall because Mr. Brown economized on legal fees in the aircraft transaction and tried the do-it-yourself approach; or the KT entities and Brown, who reacted to MSF’s predatory legal claim by suing the very lawyers who warned Brown not to do what he ultimately did, unaccompanied by any lawyer from the law firm, at the separate closing of the aircraft purchase from Raytheon.

New York law, like the law of any civilized state or country, includes well-recognized equitable principles to assure that the courts are not used as instruments to validate overreaching and never-intended windfalls. The application of these rules to undisputed, admitted facts is a matter of law and is not dependent here upon any triable question of fact. In this case, the trial court correctly concluded that New York law would not countenance a result never bargained for by seller and purchaser, and that New York law would not ignore the undisputed fact that another party (KT Holdings) provided all of the purchase money for the aircraft. Whether the mechanism is reformation of the asset purchase agreement to include the aircraft as an excluded asset, a corrective FAA conveyance to change legal title to comport with the name of the true buyer and beneficial owner (KT Holdings), or “mutual mistake” as between KT Holdings and MSF, the outcome clearly should have been the same.

The same conclusion is also reached by considering the scope of work to be performed by the law firm under the written engagement letter signed by the appellants. It is undisputed that the law firm was to advise Brown and KT Trading regarding the asset sale to MSF, and that the law firm was not retained or paid to accompany Brown to the aircraft closing, to review the FAA conveyance document, or to attempt to change title following the KT Trading-MSF asset sale. While it is true that Brown asked questions of one or more attorneys within the law firm regarding certain aspects of the aircraft purchase, Brown himself testified that he thought buying a jet was similar to buying a car, and that he could therefore handle the Raytheon aircraft closing without an attorney. It is also undisputed that Brown was advised in -writing not to place title in KT Trading (though he admits he later did exactly that), and that he did not want to list the aircraft in a schedule to the asset purchase agreement or otherwise make that transaction known to MSF.

This brings us to the unusual result in the Tampa litigation. As noted, MSF sued the KT entities and Brown there in June 2003, eleven months after the asset purchase closing. MSF claimed that KT had fraudulently induced MSF to purchase the assets, that Brown and others “sabotaged” the business after closing, and that the sellers breached the agreements by (among other things) failing to deliver the aircraft to MSF.

Interestingly, the parties stipulated that the aircraft issue could be tried separately from the other claims. In April 2004, the Tampa court held that the aircraft was in fact the property of MSF. Although this result seems incomprehensible in light of the undisputed facts and the applicable New York law already described, several additional undisputed facts in the record provide some insight into why the Tampa court may have ruled as it did.

First, the law firm which defended the KT entities and Brown in Tampa is the same firm that represented them in the subsequent lawsuit in Miami against Aker-man and two of its shareholders. Second, the Tampa judgment was quickly followed by a settlement among the KT entities, Brown, and MSF. As part of that settlement, other claims in the lawsuit were dropped, KT Trading repurchased assets previously sold to MSF, KT Trading kept its aircraft, and the parties to the settlement apportioned a value of $4.5 million of the amount paid by KT Trading to MSF as compensation for the “repurchase” of the jet aircraft. This essentially optimized the damages claim of the KT entities and Brown for purposes of a lawsuit against Akerman Senterfitt, and that Miami lawsuit followed the Tampa settlement by a month. The Tampa settlement also assured that there would be no rehearing, and no direct appellate review, of the unusual Tampa judgment relating to the aircraft.

It matters not whether the judgment in Tampa was a collusive settlement document (part of a joint effort by KT/ Brown and MSF to maximize the involuntary financial participation of a non-party, Akerman Senterfitt, or its insurers), resulted from KT/Brown’s failure to specifically plead “mutual mistake” (as the trial court found), or resulted from a legal error by the Tampa court. Under any of those scenarios, the trial court in the Miami case was correct in its evaluation of the undisputed facts and well-settled New York law. The trial court in this case correctly concluded that:

[The KT entities and Brown], as defendants in the Tampa Lawsuit, had an irrefutable claim for reformation under New York law. There is no question that [KT Trading and Brown] never intended to convey to the Purchaser [MSF] the Airplane through the Asset Purchase Agreement, and thus, to the extent that the language of that agreement resulted in transfer of the Airplane, it failed to express [KT Trading’s and Brown’s] intent. Further, the Purchaser confirmed that it never intended to purchase the Airplane.

Conclusion

Most reformation, “mutual mistake,” and “beneficial title” cases involve disputed facts and are inappropriate for summary disposition. In this case, however, the undisputed facts controlled the trial court’s analysis and our review. MSF’s claim to the aircraft was refuted as a matter of law by the simple facts that it did not know about, bargain for, or pay for the jet. There is no justice — none—in MSF’s attempt to turn Brown’s simple mistake into an early multi-million dollar holiday gift to itself.

As to the KT entities’ and Brown’s claim against the law firm and its lawyers, the undisputed facts simply underscore the hazards of self-representation in a multimillion dollar aviation transaction. Brown’s attempt to turn his own mistake into a claim for millions of dollars of damages (against the law firm that correctly warned Brown not to title the aircraft in the name of KT Trading) was correctly rejected.

Affirmed.

RAMIREZ, C.J., concurs.

SHEPHERD, J.,

dissenting.

The only issue before the trial court was whether the failure of the KT entities to raise mutual mistake in the Tampa lawsuit was an intervening cause of the loss of the aircraft. As the law firm and attorney defendants describe in their answer brief:

In the trial court, Akerman and two of its shareholders who were also sued in this action, Carlos J. Deupi (“Deupi”), and Stewart H. Lapayowker (“Lapay-owker”) (collectively, the “Akerman Attorneys”) moved for summary judgment on grounds that the MacKnight Companies caused their own damages by failing to present the winning defense of mutual mistake in the Tampa Lawsuit. Solely to avoid manufactured issues of fact, and to narrow the issues before the trial court to the single issue of the circumstances of the Tampa Lawsuit, the Akerman Attorneys conceded — for purpose of their Motion for Summary Judgment only — negligence in allowing the Asset Agreement to convey the Airplane. (Emphasis added).

The trial court granted summary judgment to the Akerman Attorneys on that narrow ground:

Because Plaintiffs failed to raise the mutual mistake in the Tampa Lawsuit, Defendants are granted partial summary judgment on Counts I and II of the Complaint, and Plaintiffs shall not recover any damages resulting from the Final Judgment entered against them in the Tampa Lawsuit, including, without limitation, Plaintiffs damages from the loss of title to, and the right to legal possession of the Airplane. (Emphasis added).

The majority, however, exceeds its review authority — limited to conducting a de novo review of the order appealed — -and grants appellate summary judgment to the Aker-man Attorneys on an incomplete record. The majority justifies its decision with the comment “[tjhere is no justice” in any other result. See Maj. Op. at 67. I would reply that there is no justice in granting appellate summary judgment against a party without notice and due process, which is what this Court is doing today, contraiy to the tenets upon which this Court has operated since its formation.

This may be a thin liability case. The KT Holdings plaintiffs admit as much, alleging only the Akerman Attorneys are comparatively responsible for the loss of their airplane. While the Akerman Attorneys advised Mr. Brown not to title the airplane in the name of MacKnight Smoked Foods, evidence also exists in the record that the Akerman Attorneys considered it their responsibility to be sure the aircraft did not need to be scheduled. For example, three weeks before the Smoked Foods closing, Carlos Deupi, the Akerman partner in charge of the transaction, called Stewart Lapayowker, an Aker-man aviation specialist, to follow up on the jet. Mr. Lapayowker responded with an e-mail stating:

Sorry, I listened to your voicemail. I’ll touch base with Jon [Brown] and confirm. I think he was going to take the path of least resistence (sic) and put the aircraft in the Holding Company even if it cost him a bit more in sales/use tax. He didn’t seem to want to apply any infrastructure/personnel to administering the other suggested structures. Again, I’ll confirm. SHL.

As Mr. Lapayowker admitted in his deposition, he never spoke with Mr. Brown and never followed up with Mr. Deupi. Likewise, Mr. Deupi never followed up with Mr. Lapayowker and never did anything further to be certain the jet did not need to be scheduled. The majority fails to mention this testimony from the record. It also overlooks the KT entities were not required to negate any evidence that the Akerman Attorneys were not negligent.

The majority finds the final judgment in the Tampa lawsuit, awarding the aircraft to MSF, so “incomprehensible in light of the undisputed facts and the applicable New York law” that it finds it necessary to float — but, tellingly, falls short of taking ownership of — a post-Tampa Aircraft Final Judgment conspiracy theory to, in its own words, “provide some insight into why the trial court may have ruled as it did.” See Maj. Op. at 66. At the same time, the majority fails to relate a significant fact— namely the trial judge made an express finding of fact that the [Smoked Foods Asset Purchase Ajgreement “is complex, but it is not ambiguous, and by the specific terms thereof, ownership and title to the aircraft is vested in Plaintiff [MSF].” (Emphasis added). Sanctity of contract, when unambiguous, is a first principle of our jurisprudence. See Perry Banking Co. v. Swilley, 154 Fla. 221, 17 So.2d 103, 104 (1944) (“Sanctity of contract is fundamental in the law of this country, so much so that it is protected by the Constitution.”). It yields only under the most exacting of circumstances.

Reformation is one of those circumstances, and for the reason just stated, the proof required is accordingly not only exacting but rigorously scrutinized. Under New York law, just as under Florida law, reformation is permitted where there is a mutual mistake, e.g., “where the parties have a real and existing agreement on particular terms and subsequently find themselves signatories to a writing which does not reflect that agreement.” Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892, 894 (1969); see also Circle Mortgage Corp. v. Kline, 645 So.2d 75, 78 (Fla. 4th DCA 1994) (“A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.”). The rationale for reformation is that a court sitting in equity does not alter the parties’ agreement, but allows the defective instrument to be corrected to reflect the true terms of the agreement the parties actually reached. N.E. Shares Corp. v. Int'l Ins. Co. of N.Y., 240 A.D. 80, 269 N.Y.S. 351, 354 (N.Y.App.Div.1934); see also Circle Mortgage Corp., 645 So.2d at 78. In addition, to further assure the sanctity of contracts, the reformation proponent must prove the existence of the prior agreement by clear and convincing evidence. Migliore v. Manzo, 28 A.D.3d 620, 813 N.Y.S.2d 762, 764 (N.Y.App.Div.2006) (“A party seeking to invoke equity to reform a written agreement based upon a purported mistake bears the burden of showing a mutual mistake by clear and convincing evidence.”); see also BrandsMart U.S.A. of W. Palm Beach, Inc. v. DR Lakes, Inc., 901 So.2d 1004, 1006 (Fla. 4th DCA 2005) (“Due to the strong presumption that a written agreement accurately expresses the parties intent, the party seeking reformation based on a mutual mistake must prove its case by clear and convincing evidence.”).

In this case, the instrument was not defective. MacKnight Smoked Foods intended to sell all of its assets except those on the “Excluded List.” MSF contracted to buy all of the assets of Smoked Foods, unless the asset was listed on the “Excluded List.” Only Jon Brown knew about the aircraft. It was his mistake, allegedly worsened through a lack of diligence by the Akerman Attorneys, in failing to list the aircraft on the “Excluded List.” Under New York law, “[t]o reform a written instrument based upon mutual mistake, the proponent of reformation must show, by clear and convincing evidence, not merely that a mistake exists, but exactly what the parties agreed upon.” Miller v. Seibt, 13 A.D.3d 496, 788 N.Y.S.2d 126, 127 (N.Y.App.Div.2004). There is no definition of “mutual” that can be stretched to encompass these facts.

A careful reading of the majority opinion reveals the majority improperly reached the merits of the KT entities’ case. The majority concludes, “MSF’s claim to the aircraft was refuted as a matter of law by the simple fact that it did not know about, bargain for or pay for the jet.” See Maj. Op. at 66. That conclusion, of course, does not equate to the doctrine of mutual mistake under New York law. See supra pp. 63-64. It is simply the majority’s evaluation of the evidence, which is contradicted by the core provision of the purchase agreement that the trial court in the Tampa case found unambiguous:

“[A]t the Closing, the Buyer [MSF] shall purchase from MacKnight [Smoked] Foods and MacKnight [Smoked] Foods shall sell, transfer, assign and deliver to Buyer, all of the right title and interest in and to all of the tangible and intangible assets, business, goodwill and rights of MacK-night [Smoked] Foods, other than the Excluded Assets ... as the same shall exist immediately prior to Closing.” (Emphasis added).

It is also contradicted by the testimony of MSF’s representative and chief negotiator, Felix Wong, that while he admittedly was “not aware of the airplane pre-closing, when I valued the business and made the offer, it was for all of the assets, regardless of what they were or whether we knew about them.” Even if the appellate summary judgment was permissible under our Rules, it would be error to grant summary judgment to the Akerman Attorneys on the record in this case.

It may have been, upon a trial of this case, a jury would have exonerated the Akerman Attorneys. It also may be (put me in the doubtful category), that the Ak-erman Attorneys have a meritorious basis for summary judgment on a ground other than the one on which they erroneously prevailed below. If so, however, it is our duty to require the Akerman Attorneys to accomplish it — as we require of all litigants — the old-fashioned way; they should earn it.

I would reverse this case for further proceedings.

      . As in many corporate asset transactions, the names of the entities changed over the course of the transaction. Smoked Foods' corporate name was changed to KT Trading USA, Inc. after the asset sale, and Holdings' corporate name was changed to KT Holdings USA, Inc., at that time. The name of the asset purchaser, MSF, was changed to MacKnight Smoked Foods after the closing.

      . The closing of the purchase of the jet occurred before the closing of the asset purchase transaction. If title to the jet was to be taken in the name of Smoked Foods, the aircraft would have to be scheduled as an "excluded asset,” and MSF would be alerted to the purchase before the asset purchase transaction closed. Accordingly, an Akerman shareholder recommended to Brown that he arrange for the aircraft to be conveyed to Holdings or a new single-purpose entity. Brown admitted that, despite that advice, he participated in the aircraft purchase closing without counsel, and he directed or allowed Raytheon to convey the jet to Smoked Foods.

      . As cited by the trial court, Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892, 894 (1969), and Miller v. Seibt, 13 A.D.3d 496, 788 N.Y.S.2d 126 (N.Y.App.Div.2004), explain this principle and apply it to analogous facts.

      . Because KT Trading remained in existence following the asset sale, it could have conveyed the aircraft to KT Holdings in an instrument reciting the pertinent facts that KT Holdings paid for the aircraft and that the original conveyance was simply an error by Mr. Brown in the separate closing with Ray-theon.

      . KT Holdings was also a party to the asset purchase agreement with MSF, KT Trading, and other entities. The trial court correctly relied upon U.S. Bankruptcy Judge A. Jay Cristol's application of New York law to similar facts: "Where a contract fails to reflect the true agreement reached by the parties, based on their mutual mistake in failing to enter into a writing reflecting their true agreement, it is appropriate that the contract be reformed to properly reflect the agreement reached by the parties.” PMI Inv., Inc. v. Rose (In re Prime Motor Inns, Inc.), 167 B.R. 261, 286-87 (Bankr.S.D.Fla.1994). Here, as in PMI Investment, the parties' intentions have been established by "clear, convincing, and overwhelming evidence.” Id. In this case, that evidence happens to be undisputed.

      . The record below does not disclose whether the Tampa court was presented an agreed form of final judgment or whether the Tampa court prepared the final judgment itself. The record does disclose that there were active settlement negotiations between KT/Brown and MSF in the days before the non-jury trial was to end.

      . KT then sold the aircraft to an unrelated buyer for $3.75 million, a value used in a pretrial settlement communication between KT/Brown and MSF.

      . For the reader's convenience, I will include the law firm in this appellation throughout this dissent.

      . As Akerman aviation specialist Lapayowker must have known, an electronically assisted aircraft tide search of the records of the Federal Aviation Administration (FAA) in Oklahoma City, Oklahoma, prior to the closing also would have readily revealed how the aircraft was titled.

      . Any intimation by the majority that MSF valued MacKnight Smoked Foods based upon any "appraised values” of assets is incorrect. See Maj. Op. at 64. In response to the question, "Tell me how you came up with the price for MacKnight,” Wong replied:
      What we did was we looked at the historical performance of the company on an adjusted basis. We did as much industry research that we could on the consumption of salmon, consumption of smoked salmon, examined all kinds of information, anything that we could get our hands on to give us a clue as to, you know, how quickly the company might grow during our ownership period if we were successful in buying it.

        Wong further testified unequivocally that MSF did not perform an investigation of all of the assets of Smoked Foods. He was asked:
      Q. But at the time that you did your valuation, did you perform some investigation of the assets of significant value?
      A. No.
      Q. Why Not?
      A. We don’t value businesses based upon assets.
      Q. Okay. As part of the due diligence was anything done to confirm value, condition or title to the significant assets?
      A. A lien search would have been conducted, but that would have been done primarily by the attorneys to make sure we have good title to the various assets. No attempt was made to identify every asset that was being acquired. The assumption was that everything was being conveyed. ...”


author: PER CURIAM. SHEPHERD, J.,

text:
    Edward LOCASCIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1272.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Rehearing and Rehearing En Banc Denied May 25, 2010.
    Peter Raben, Coconut Grove, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed.

ROTHENBERG and LOGOA, JJ., concur.

SHEPHERD, J.,

dissenting.

I respectfully dissent. Because the State impermissibly made evidence of Appellant Edward Locascio’s other misdeeds throughout the course of the marriage and divorce proceedings a feature of the trial, I would reverse the convictions below.

Edward Locascio was charged as a principal and co-conspirator to his brother Michael’s killing of Defendant’s soon-to-be ex-wife, Silvia. The State’s theory of this wholly circumstantial case was, because the divorce proceedings between Edward and Silvia were so hotly contested, Edward was motivated to have his wife killed in order to avoid parting with his assets. In support of its theory, the State introduced voluminous testimony evidencing Defendant’s failures as a father, his unlawful tactics as a certified public accountant and investor, and his contemptuous behavior during the family law case. Along with the testimony of two divorce attorneys, spanning over three days of trial, the State presented documented evidence of Locas-cio’s acts of perjury, forgery, and subordination of perjury during the course of the divorce proceedings. The State highlighted this extrinsic evidence in both its opening and closing arguments, propagating to the jury that Locascio engaged in acts of “lying, frauding,” and “[behaving as a] CPA at his finest.”

It is well-settled law in this State that where evidence of an uncharged crime is inextricably intertwined with the charged offense, the extrinsic evidence is admissible “where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.” See Simmons v. State, 790 So.2d 1177, 1178 (Fla. 3d DCA 2001) (quoting Nickels v. State, 90 Fla. 659, 106 So. 479, 488 (1925)). However, this Court recently has reaffirmed the rule of law which commands that such evidence shall not become a feature of the trial. See Morrow v. State, 931 So.2d 1021, 1022 (Fla. 3d DCA 2006) (citing Bryan v. State, 533 So.2d 744, 746 (Fla.1988)). Whether the collateral crimes have become a feature of the trial is not measured simply by the number of references; however, “voluminous references to the collateral crime are evidence of a prohibited transgression.” Morrow, 931 So.2d at 1023. A careful review of the record in this case reveals this is indeed a case of voluminous references. As recognized by the Fourth District:

The danger in making extrinsic evidence the feature of the trial is that the proceeding is transformed from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant, whose character is insulated from attack unless he introduces the subject.

Sutherland v. State, 849 So.2d 1107 (Fla. 4th DCA 2003).

Although I can agree with the State’s assertion that some of the extrinsic evidence was necessary to establish Defendant’s motive, I cannot agree that all of it was, especially in light of the characterizations of Locascio as a fraud, a liar, a tax evader, and “a CPA at his finest.” As it appears the surplus was directed primarily at impermissibly attacking the defendant’s character, I would reverse the defendant’s convictions and remand for a new trial, heavily directing the State to apply an editing eye to its case-in-chief.


author: THOMAS, J.

text:
    Ramiro MENESES, Appellant, v. CITY FURNITURE and Liberty Mutual Group, Appellees.
    No. 1D09-1815.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Rehearing Denied May 4, 2010.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Bram J. Gechtman of Downs Brill Whitehead, Coral Gables, for Appellant.
    Tara L. Sa’id of Law Offices of Amy L. Warpinski, Jacksonville, and Brenda Pagli-aro Emery, Tamarac, for Appellees.
   THOMAS, J.

Claimant challenges the order of the Judge of Compensation Claims (JCC) denying supplemental income benefits because of his failure to perform a required job search. Claimant argues the JCC erred by concluding that he had the burden of proving that the Employer/Carrier (E/C) failed to send an informative letter advising him of his obligation to perform a job search to establish entitlement to supplemental income benefits, and by not excusing the job search requirement. Because we conclude that Claimant had the burden of establishing his entitlement to supplemental income benefits, and further because Claimant failed to introduce into evidence his alleged non-receipt of the mandatory informational letter, we affirm.

Background

Claimant suffered a compensable injury on March 6, 2003, which resulted in a 24% permanent impairment rating. Claimant filed petitions for benefits seeking supplemental income benefits (a form of wage loss benefit payable to injured workers who, inter alia, sustain a permanent impairment of 20% or greater). See § 440.15(3)(a)-(d), Fla. Stat. (2002). At the hearing, Claimant established that as a result of his compensable injuries, he was unable to perform the duties of his former employment, and further established that he was unemployed and had not earned money after being discharged from his employment. After the close of evidence, Claimant’s counsel stated that the E/C had failed to send Claimant a mandatory informational letter advising him of the job search requirements, and argued that this should waive the job search requirement. The JCC, although finding Claimant suffered a 24% permanent impairment and sustained injuries which prevented Claimant from performing his prior job, denied supplemental benefits because Claimant failed to demonstrate a good faith job search, as required by section 440.15(3)(b)l.c., Florida Statutes (2002).

Claimant filed a motion for rehearing, alleging he was not required to prove a good faith job search because the E/C failed to send an informative letter advising him of the job search obligation under the Florida Administrative Code. On rehearing, the JCC indicated that the record evidence was silent as to whether or not the letter was sent, and although it was a “close call,” she concluded that Claimant had the burden of raising the issue and introducing some evidence as to the E/C’s failure to send the required letter.

Analysis

On appeal, Claimant does not challenge the JCC’s findings of fact or otherwise state that the evidence established whether the informational letter advising Claimant of his required job search obligation was sent; rather, Claimant argues that the E/C bore the burden of proving it sent the letter. This court has held that in the context of wage loss benefits — a similar but statutorily separate form of benefits which was removed from the Workers’ Compensation Law on January 1, 1994, see chapter 93-415, section 20, at 124-27, Laws of Florida — where an employee’s actual knowledge of a job search is at issue, the carrier bears the burden of proving the employee’s knowledge of the job search requirements. See, e.g., Sanchez v. Howard Johnson, 661 So.2d 379 (Fla. 1st DCA 1995). We have yet to address, however, the burden of persuasion concerning the notice requirements pertaining to an employee’s entitlement to supplemental income benefits pursuant to section 440.15(3)(b), Florida Statutes (2002).

Significantly, this court’s precedent relating to the burden of persuasion pertaining to wage loss benefits is founded on statutory language which the Legislature has since repealed. Prior to January 1, 1994, the wage loss statute provided, in relevant part:

Failure of an employee to timely request benefits and file the appropriate job search forms showing that he looked for a minimum of 5 jobs in each biweekly period (unless a[JCC] determines fewer job searches are justified due to the availability of suitable employment) after the employee has knowledge that a job search is required, whether he has been advised by the employer, carrier, servicing agent, or his attorney, shall result in benefits not being payable during the time that the employee fails to timely file his request for wage loss and the job search reports.

§ 440.15(3)(b)2., Fla. Stat. (Supp.1990). The plain text of this now-repealed statute established an affirmative defense which conditioned that an e/c’s right to deny benefits was based on the claimant’s failure to timely request benefits and file job search forms, upon a predicate showing that the claimant'had knowledge of the job search requirement. Accordingly, based on the statutory language, this court concluded that the E/C bore the burden of proving Claimant’s knowledge of the job search requirement. See Kilbourne & Sons v. Kilbourne, 677 So.2d 855, 858 (Fla. 1st DCA 1995); see also Marburg v. Holiday Inn, 660 So.2d 799, 800 (Fla. 1st DCA 1995).

The statutory provision at issue here relates to supplemental income benefits. § 440.15(3)(b), Fla. Stat. (2002). It contains no language to suggest that an e/c carries the burden of proving a claimant’s knowledge of a job search requirement. See id. Instead, it sets forth the three elements necessary to establish entitlement to the benefits: a permanent impairment rating of 20% or greater; the employee has not returned to work, or has returned to work but earns less than 80% of his average weekly wage; and the employee has in good faith attempted to obtain employment commensurate with his ability to work. Id. As a rule, the burden of persuasion is with the party who initiates the proceeding, and remains with that party to establish the material elements of recovery. Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961). Moreover, this court has held on numerous occasions that a claimant has the burden of proving his entitlement to the benefits claimed. See, e.g., Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008).

Claimant correctly points out that rule 69L-3.0193(2)(a), Florida Administrative Code, requires an e/c to send the employee a letter advising him of the job search obligation. Although mailing the informational letter is mandatory, and failure to mail the letter results in an automatic payment of benefits excusing a job search for the period where the e/c fails to provide notification, nothing in the rule suggests that the e/c must prove it sent the letter; rather, the rule indicates that an e/c’s failure to provide the information is in the nature of an exception to, or avoidance of, the statutorily required job search:

If the Carrier has knowledge that the employee is eligible for supplemental income impairment benefits and fails to timely provide the employee with written notification and forms as required by this rule, the Carrier shall pay supplemental income impairment benefits for all months for which the employee was not provided the form. Payment shall be computed as if the employee had $0 earnings. The Carrier may later obtain repayment of any overpayment in accordance with paragraph (3)(d) of this rule and pursuant to s. 440.15(13), F.S.

Rule 69L-3.0193(2)(b), Fla. Admin. Code (emphasis added). The party seeking to obtain the benefit of an exception to a statute bears the burden of persuasion. See generally Robbins v. Webb’s Cut Rate Drug Co., 153 Fla. 822, 16 So.2d 121, 123 (1943) (“It is incumbent on those relying on an act for protection to bring themselves within the specifications laid down .... ”); see also Palmer v. McKesson Corp., 7 So.3d 561 (Fla. 1st DCA 2009) (holding claimant seeking to avoid or establish exception to statute of limitations in workers’ compensation proceeding bears burden of proving exception).

Although we do not suggest that employers or carriers are free to disregard their statutory obligations and duties, such as sending the informational letter required here, it does not follow that an e/c bears the burden of persuasion once the matter proceeds to litigation. Where the statute and rules establish an exception to, or avoidance of, a statutory requirement, the burden of persuasion is with the party seeking to obtain the benefit of proving the elements of the exception. Here, because Claimant sought the benefit which would result from the E/C’s failure to send the required informational letter, and further, because the Legislature has ascribed to neither party the burden of persuasion on the issue, Claimant bore the burden of raising and establishing this exception.

Notably, this appeal could have been avoided by a single question posed by Claimant’s counsel: Did you receive the letter? Because Claimant failed to introduce any evidence establishing that the E/C never sent, or he never received, the informational letter required by rule, the JCC’s denial of supplemental benefits is AFFIRMED.

WOLF and WEBSTER, JJ„ concur.


text:
    Randolph BAGGETT, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D09-6177.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Randolph Baggett, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. No later than 15 days after issuance of mandate in this case, the circuit court shall schedule a hearing on petitioner’s public record request. See § 119.11, Fla. Stat. (2009); Woodfaulk v. State, 935 So.2d 1225 (Fla. 5th DCA 2006).

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


text:
    Larry BEAMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2554.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Larry Beamon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


text:
    Daniel BIRLBOA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-336.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Daniel Birlboa, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, 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. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.