author: WETHERELL, J.

text:
    Wayne SOLANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5580.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Rehearing Denied April 15, 2010.
    David M. Robbins and Susan Z. Cohen, of Epstein & Robbins, Jacksonville, for Appellant.
    Bill McCollum, Attorney General and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

In May 1978, Appellant pled no contest to two misdemeanors: driving with an unlawful blood alcohol level and reckless driving. Appellant was ordered to pay $135 in fines and $4 in court costs. No jail time, probation, or community service was imposed. Over 30 years later, on June 6, 2008, Appellant filed a motion in the Duval County Court to vacate and set aside his 1978 plea and sentence on the ground that the Judgment and Sentence was “constitutionally infirm” because it “shows that the [Appellant] was not represented by counsel and does not indicate a waiver of counsel.”

The county court properly treated the motion as a claim for posteonviction relief under Florida Rule of Criminal Procedure 3.850. See Wood v. State, 750 So.2d 592 (Fla.1999). The court denied the motion as untimely, and certified the following question of great public importance to us:

Do the time limitations contained in Criminal Rule of Procedure 3.850(b) apply to motions to set aside pleas and sentences based upon the grounds that the pleas were either obtained in violation of the defendant’s right to counsel or that were taken without the required judicial inquiries mandated by Faretta v. California and the rules of criminal procedure when defendants waived their right to counsel?

The county court’s order indicated that at least two Fourth Judicial Circuit Court orders have found that the time limits in rule 3.850(b) do not apply in circumstances such as this case. The order also indicated that this issue is being “repeatedly litigated” in Duval County.

We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4) and 9.160, and in order to track Appellant’s specific arguments more closely, we rephrase the certified question as follows:

Whether a conviction procured without affording the accused the right to counsel or without securing from the accused a proper waiver of the right to counsel is void and may therefore be collaterally attacked at any time, the time limits of Florida Rule of Criminal Procedure 3.850(b) notwithstanding.

We answer the rephrased certified question in the negative.

For purposes of answering the certified question, we assume that Appellant was indigent in 1978 and that he had a right to counsel in the underlying case. The state does not challenge Appellant’s argument that he had a right to counsel in the 1978 case, and our supreme court has held that indigent defendants have a right to counsel in all prosecutions, including misdemeanors, unless the trial judge provides written pretrial certification that the defendant will not be imprisoned for the charged offense. See State v. Kelly, 999 So.2d 1029 (Fla.2008); see also Fla. R.Crim. P. 3.111(b)(1) (1977). We also assume that Appellant did not knowingly and intelligently waive his right to counsel because the record (such that it is) does not refute the implicit claim in Appellant’s motion that he did not.

The record is silent as to why Appellant is seeking to vacate the Judgment and Sentence 30 years later. There is no indication that this prior conviction is being used to enhance a subsequent DUI prosecution, which would directly implicate the supreme court’s decisions in Kelly, State v. Beach, 592 So.2d 237 (Fla.1992), and Hlad v. State, 585 So.2d 928 (Fla.1991). Instead, this case appears to be nothing more than a straightforward collateral attack on Appellant’s 1978 conviction, which is governed by rule 3.850.

Turning to the certified question, we start with the general proposition that a motion for postconviction relief must be filed within two years after the judgment and sentence become final. Fla. R.Crim. P. 3.850(b). “After the time for filing 3.850 motions has passed, the State’s interests in finality are more compelling.” State v. Anderson, 905 So.2d 111, 118 (Fla. 2005); see also McCrae v. State, 437 So.2d 1388, 1391 (Fla.1983) (Alderman, C.J., concurring specially) (calling for a time limit for filing postconviction motions “[i]n order to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice”).

This case highlights the importance of a time limit for filing postconviction motions. The only surviving document from the 1978 proceeding is the two-page Judgment and Sentence. Whatever other record or transcript of the proceeding that was made no longer exists. It is unlikely that anyone involved in the case other than Appellant has any recollection of the case and, therefore, it would likely be impossible to determine with any certainty at this point whether the trial court filed the statement required by rule 3.111(b)(1) (1977) or whether Appellant was properly advised of and waived his right to counsel. Cf. Kelly, 999 So.2d at 1060 (Wells, J., dissenting) (discussing the problems created by the court’s precedents allowing prior DUI convictions to be collaterally attacked in a subsequent DUI case “many years after the conviction when there is no transcript of what occurred”).

Appellant argues that the two-year time limit does not apply to his motion because the 1978 judgment is “void,” and a void judgment may be collaterally attacked at any time. Appellant argues that the judgment is void because the record does not show that he knowingly and intelligently waived his right to counsel, or that the trial court conducted a Faretta inquiry back in 1978, and that therefore the trial court lacked jurisdiction to proceed. Appellant cites Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) in support, and quotes this passage specifically:

If this requirement of the Sixth Amendment [to provide counsel to the accused unless intelligently waived] is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void....

Id. at 468.

This statement was made at a time when the U.S. Supreme Court construed the scope of federal habeas relief to be limited to claims based upon the trial court’s lack of jurisdiction. Four years after Johnson, in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942), the Court “openly discarded the concept of jurisdiction, by then more a fiction than anything else....” Wainwright v. Sykes, 433 U.S. 72, 79, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Thereafter, although uncounseled conviction claims could still be raised in federal habeas proceedings, see Custis v. U.S., 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), it was no longer necessary for these claims to be characterized as involving a jurisdictional issue; and, although the Court’s more recent decisions have made clear that certain uncounseled convictions lack the reliability necessary to impose imprisonment or to enhance a sentence in a subsequent proceeding, those decisions do not suggest that uncounseled convictions are “void” for a lack of jurisdiction. See Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (overruling Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980)). Accord Kelly, 999 So.2d at 1042-50; Allen v. State, 463 So.2d 351, 358-59 (Fla. 1st DCA 1985). Thus, whatever merit Appellant’s argument that the court lacked jurisdiction to sentence him may have had under Johnson, that argument is now baseless.

In Weir v. State, the Second District considered a case with similar facts and came to the same conclusion as we do in this case. 319 So.2d 80 (Fla. 2d DCA 1975). In Weir, the defendant was found guilty of grand larceny in 1943, and in 1975 moved to vacate the judgment because the court failed to advise him of his right to counsel. The court rejected the argument that the conviction was void, finding the position “difficult to sustain since the sentencing court obviously had jurisdiction over the subject matter and the appellant.” Id. at 81. The court did remand for an evidentiary hearing on the merits of defendant’s claim (and the state’s defense of laches), id. at 81-82, but, at the time, there was no time limit for seeking a writ of coram nobis. Now, there is. See Wood, 750 So.2d at 594 (limiting claims cognizable under coram nobis to the time limit in rule 3.850).

In sum, we conclude that even if Appellant was denied his right to counsel in the 1978 proceeding, the judgment and sentence in that case are not “void” as a result and subject to collateral attack 30 years later. Accordingly, we answer the rephrased certified question in the negative, and affirm the county court’s order denying Appellant’s motion for postconviction relief as untimely under rule 3.850(b).

AFFIRMED.

KAHN and LEWIS, JJ., concur.

      . We recognize that Kelly was decided in 2008, and that before Kelly, some Florida cases held that defendants did not have a right to counsel where a misdemeanor was charged and there was no imprisonment. See, e.g., State v. Dunning, 995 So.2d 1162 (Fla. 2d DCA 2008) (holding, based upon Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), that "a defendant has no constitutional right to counsel to defend against a misdemeanor charge when a sentence of imprisonment is not imposed”); Harrell v. State, 469 So.2d 169, 170 (Fla. 1st DCA 1985). In Kelly, however, the supreme court expressly declined to follow Scott on state law grounds and held that the right to counsel ‘‘encompasses all cases in which imprisonment is a prospective penalty.” Kelly, 999 So.2d at 1040. The court explained that this holding did not establish a new right, but rather merely reaffirmed long-standing precedent. Id. at 1043.

      . The rule provides exceptions to the two-year filing deadline, but Appellant does not argue that any of them apply here.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Gregory GEORGE, Appellant, v. Tammy GEORGE, Appellee.
    No. 2D09-2907.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.
    Rehearing Denied April 1, 2010.

      David M. Wall, Clearwater, for Appellant.
    Jeanne L. Coleman, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Gregory George appeals a nonfinal order in this pending dissolution proceeding. The order increases Tammy George’s temporary alimony from $2000 to $3786.56 per month because she is undergoing treatment for a serious illness that affects her ability to work. The order is retroactive to March 1, 2009, resulting in an additional payment of $751.37 per month. It also awards temporary attorney’s fees in the amount of $29,450. Mr. George argues that the trial court abused its discretion in making this award and that the award is not supported by competent, substantial evidence. Although the issue is very close and Mr. George will have difficulty making these payments even for the few months that they are likely to be necessary, we affirm the trial court. We encourage the trial court to take all reasonable steps to bring this case to a final hearing because, if this temporary award proves to have been unnecessary or too high, the trial court will have limited options to make an equitable adjustment in the final order.

This case demonstrates many of the symptoms of a dissolution proceeding suffering from Wrona’s disease. See Kasim, v. Lynnel, 975 So.2d 560, 565 n. 2 (Fla. 2d DCA 2008) (citing Wrona v. Wrona, 592 So.2d 694, 696-97 (Fla. 2d DCA 1991)). The dissolution proceeding between Mr. and Mrs. George has been pending in circuit court for less than two years. In that time, this is the third appellate proceeding. Mr. George has also filed a bankruptcy petition that has delayed payment of an earlier award of temporary attorney’s fees.

Because this appeal is pending from a nonfinal order, our record is limited to an appendix. We do not have the majority of the pleadings in our record, and we do not know the length of the marriage or the age of the parties. We know that Mr. George is a pharmacist earning in excess of $100,000 per year. Mrs. George has or had a clerical job earning less than $21,000. The record does not suggest that this case involves any minor children. The primary asset to escape Mr. George’s bankruptcy was a $95,000 retirement account. The record suggests Mr. George has withdrawn from that account without permission from the trial court, paying his grandmother $24,000 for an outstanding debt from 1987 that apparently was not discharged in the bankruptcy. In this court’s record, he does not, or cannot, account for the remaining $71,000 that was withdrawn from the retirement account.

Mr. George has relocated to Georgia where he has rented a three-bedroom home for himself and his unemployed girlfriend. The additional bedrooms are needed to allow the girlfriend’s children from a prior marriage to visit. He pays $2200 in rent.

Meanwhile, Mrs. George has rented a $1600 per month apartment where she lives alone. She is spending nearly $700 per month for psychological counseling and another $200 per month for grooming. Because her husband changed jobs when he moved to Georgia, she now is paying for COBRA medical insurance coverage. In January 2009, she was diagnosed with a serious illness. She expected that she would be required to undergo a series of treatments that would prevent her from working at least for a period of time.

When Mrs. George discovered her medical condition, she filed an emergency motion to increase her temporary support. The court conducted a hearing on the motion on March 25, 2009. Mr. George did not, or could not, attend the hearing tele-phonically. Mrs. George attended the hearing telephonieally because she was involved in training at work that could not be postponed. The two lawyers attended the hearing in person. Animosity between the lawyers is evident even from the transcript of the hearing. The trial court did its best to maintain decorum and receive evidence over the telephone to permit a resolution of the emergency motion.

Assuming that events have played out over the last eight months as predicted at this hearing, Mrs. George has been required to take a temporary leave of absence from her employment, and that leave of absence should have come, or will soon be coming, to an end. If her treatment has been successful, it is likely that the temporary alimony could be reduced to a lesser amount for a short period before this case is resolved at final hearing. If Mrs. George was not required to take a leave of absence or her earnings and expense projections for the last few months were in error, the trial court can consider these matters at the final hearing.

Our explanation for this affirmance has already been provided in Ghay v. Ghay, 954 So.2d 1186, 1189-90 (Fla. 2d DCA 2007):

A temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery. Given the urgency of some of these matters, the order is often based upon an abbreviated hearing and limited evidence. Temporary support issues cannot always await full discovery or the preparation of an expert’s opinion.
In addition, temporary support orders are, obviously, temporary. They do not create vested rights, and they can be modified or vacated at any time by the circuit court while the litigation proceeds. If further discovery reveals that a temporary support order is inequitable or based upon improper calculations, any inequity can usually be resolved in the final judgment, after a full and fair opportunity to be heard.

(Internal quotations and citations omitted.)

As we did in the last two appellate proceedings, we remand Mrs. George’s motion for attorney’s fees. If she establishes her entitlement pursuant to section 61.16, Florida Statutes (2008), the trial court is authorized to award her all or a portion of the reasonable appellate attorney’s fees. The merit of the respective positions of the parties in this appeal is not a factor that the trial court need consider. See Rados v. Rados, 791 So.2d 1130 (Fla. 2d DCA 2001).

Affirmed.

WHATLEY and LaROSE, JJ., Concur.

      . George v. George, 13 So.3d 473 (Fla. 2d DCA 2009); George v. George, 12 So.3d 909 (Fla. 2d DCA 2009);

      . His financial affidavit claims it is a $45,000 account, but that number is apparently incorrect.


author: PALMER, J.

text:
    Roy HANSEN, Jane Hansen, and Clifford D. Bergeron, Appellant, v. CITY OF DELAND, etc., Appellee.
    No. 5D09-669.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2010.
    Rehearing Denied April 16, 2010.
    Thomas P. Callan, G. Robertson Dilg, Alison M. Yurko and Timothy A. Dix of Thomas P. Callan, P. A., Orlando, for Appellant.
    Ernest H. Kohlmyer, III, of Bell, Roper & Kohlmyer, P.A., Orlando, for Appellee.
   PALMER, J.

Roy Hansen, Jane Hansen, and Clifford D. Bergeron (collectively “landowners”) appeal the trial court’s final judgment, which ruled that they failed to prove that the City of Deland (“City”) had engaged in a taking of their properties. Finding no error, we affirm.

The landowners owned property located in an unincorporated area of Volusia County, near the Cross Creek Subdivision in Deland, Florida. That subdivision was naturally divided into two drainage basins, basin A and basin B. Three consecutive hurricanes in 2004, along with record amounts of rainfall in 2005, resulted in the flooding of a portion of the subdivision near basin B. In response to the flooding, the City pumped storm water from basin B to the dry retention area in basin A. Although the City never pumped any water directly onto the landowners’ properties, after the pumping the water on their properties rose quickly and ultimately measured 12 feet deep at its highest level. The portions of the properties affected were low lying, former sink hole depression areas. The properties remained partially flooded for about 15 months. Each landowner lost numerous trees located in the flooded area.

The landowners filed suit against the City for inverse condemnation alleging that the flooding condition caused by the City’s decision to pump storm water from basin B to basin A constituted an illegal taking of their properties and, accordingly, they were entitled to receive compensation from the City. The matter proceeded to a non-jury trial on the issue of liability. The trial court found that the City’s pumping was the cause of the flooding on the landowners’ properties and that the resulting standing water killed the trees. However, the trial court denied the landowners’ claim for relief because the water did not affect the house or driveway on either property; only about one-tenth of one yard and one-third of the other yard was under water; the tree damage was aesthetic, not commercial damage; and the parties were allowed full use of their homes during the flooding. In short, the trial court concluded that the landowners had not established that a compensable taking had occurred because they failed to prove that they were temporarily denied any reasonable use of their properties. The court also noted that the destruction of the trees, if negligent, constituted a tort, which was not a cause of action alleged in the complaint.

The landowners maintain that the trial court erred in concluding that they were not entitled to be compensated for all damages caused by the flooding, including the loss of trees. We disagree.

A property owner can file an inverse condemnation claim to recover the value of property that has been de facto taken by a government entity. Fla. Dep’t of Envir. Protection ex rel. Board of Trustees v. West, 21 So.3d 96 (Fla. 3d DCA 2009). Recently, in Drake v. Walton County, 6 So.3d 717 (Fla. 1st DCA 2009), the First District addressed a similar claim of inverse condemnation based on flooding. The court explained:

We have previously held that a county takes private property when it directs a concentrated flow of water from one property onto another, permanently depriving the owner of all beneficial enjoyment of their property. Leon County v. Smith, 397 So.2d 362, 364 (Fla. 1st DCA 1981); Martin v. City of Monticello, 632 So.2d 236, 237 (Fla. 1st DCA 1994). To assert an inverse condemnation claim based on such governmental action, the property owner must demonstrate that the government’s action constitutes a substantial interference with her private property rights for more than a momentary period, and will be continuous or reasonably expected to continuously recur, resulting in a substantial deprivation of the beneficial use of her property. See Elliott v. Hernando County, 281 So.2d 395, 396 (Fla. 2d DCA 1973)(not-ing that “rain is a condition that is reasonably expected to continually re-occur in the future)”; Assoc, of Meadow Lake, Inc. v. City of Edgewater, 706 So.2d 50 (Fla. 5th DCA 1998); cf. Diamond K Corp. v. Leon County, 677 So.2d 90 (Fla. 1st DCA 1996)(holding that no taking occurred as a result of flooding of a creek in the appellant’s property because the appellant had not shown that a continuing physical invasion occurred, depriving it of all reasonable use of its property). A taking is more likely to have occurred when a governmental action confers a public benefit rather than prevents a public harm. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla.1981).

Id. at 720-21; See also Associates of Meadow Lake, Inc. v. City of Edgewater, 706 So.2d 50, 52 (Fla. 5th DCA 1998) (noting that if substantial periodic flooding occurred and was expected to recur and such flooding denied landowner any reasonable use of its property because City defectively constructed its project, a cause of action for inverse condemnation would lie).

Here, the trial court found that the landowners offered no evidence demonstrating that they suffered a substantial deprivation of all beneficial use of their properties during the period the land was flooded. That finding was supported by competent substantial evidence presented at trial. As such, the trial court did not err in concluding that no compensable taking took place. See South Florida Water Management Dist. v. Basore of Florida, Inc., 723 So.2d 287 (Fla. 4th DCA 1998)(holding generally, to support a claim for inverse condemnation associated with flooding, the flooding must be an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property); Diamond K Corp. v. Leon County, 677 So.2d 90 (Fla. 1st DCA 1996)(holding no taking of plaintiffs land resulted from state and county’s activities that increased flow of creek that traversed plaintiffs property, despite plaintiffs claim that, during rain storms, creek so swelled with surface water runoff that plaintiffs property did not properly drain; there was no evidence that any activity on part of state or county permanently deprived plaintiff of all beneficial use of that property).

Although the landowners cite a number of taking cases which contain language which appears to support their arguments in this case, all of those cases arise in a context other than flooding waters. See, e.g., In re Forfeiture of 1976 Kenworth Tractor Trailer Truck, 576 So.2d 261 (Fla. 1990). The flooding cases universally support the trial court’s conclusion in this case.

AFFIRMED.

LAWSON and JACOBUS, JJ., concur.

      . We note that the landowners also extensively argue their position in reliance on an opinion of this court which was withdrawn and replaced by an ert banc decision. See VLX Properties, Inc. v. Southern States Utilities, Inc., 25 FLW D1745 (Fla. 5th DCA July 21, 2000) withdrawn 792 So.2d 504 (Fla. 5th DCA 2001), review denied, 817 So.2d 852 (Fla. 2002). Such reliance was misplaced because an opinion withdrawn by this court is of no precedential value and, as such, it is improper to cite it as precedent.


author: PER CURIAM.

text:
    George Leslie RAY, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0653.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Rehearing Denied April 16, 2010.

      George Leslie Ray, III, 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.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    James L. TATE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6258.
    District Court of Appeal of Florida, First District.
    March 3, 2010.
    Rehearing Denied March 19, 2010.
    James L. Tate, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. The subsequently filed “petitions” bearing this case number are treated as motions and are likewise denied.

The petition herein is only among the latest of petitioner’s repeated pro se attempts to secure relief from his 1994 conviction in Martin County, or to otherwise air his many complaints concerning court and prison officials. None of his rambling, repetitive, and for the most part incomprehensible filings have been found to have any merit, although the court’s conscientious review of those filings has consumed an inordinate amount of our limited resources. For these reasons, we directed petitioner to show cause why the imposition of sanctions limiting his right to appear pro se should not be imposed. In his response, petitioner continues to assert that he is entitled to relief from his conviction on various grounds, and that habeas corpus is the sole remedy available to him. He contends that the court lacks the authority to sanction him for pursuing collateral criminal remedies, and has adopted an “adversarial” position by suggesting that limiting his right to appear pro se might be warranted.

Contrary to Tate’s argument, it is clearly within the inherent authority of the court to sanction an abusive litigant when necessary to protect the rights of others to have the court conduct timely review of their legitimate filings and to otherwise conserve the judiciary’s limited resources. See Martin v. Dist. of Columbia Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992); Attwood v. Singletary, 661 So.2d 1216 (Fla.1995). Indeed, the inherent authority of a court to do so was again recognized by the Florida Supreme Court when it found it necessary to limit this very petitioner’s right to appear pro se in that forum. See Tate v. McNeil, 983 So.2d 502 (Fla.2008).

Having considered Tate’s response to our order, we conclude that he has failed to show good cause why sanctions limiting his right to appear pro se should not be imposed. Accordingly, the clerk of this court is directed to reject for filing any future petitions, motions, pleadings, or other filings submitted by James L. Tate, Jr., unless signed by a member in good standing of The Florida Bar. In any other currently active case in which Tate is representing himself, he shall secure the services of counsel, who shall file a notice of appearance within 30 days of the date of this opinion. Any active case in which such a notice is not timely filed will be dismissed by order of this court.

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


text:
    Jeffrey L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4832.
    District Court of Appeal of Florida, Second District.
    March 3, 2010.
    Jeffrey L. Davis, pro se.
   PER CURIAM.

Affirmed. See State v. Matthews, 891 So.2d 479 (Fla.2004); Smith v. State, 598 So.2d 1063 (Fla.1992); Patterson v. State, 796 So.2d 572 (Fla. 2d DCA 2001).

WALLACE, LaROSE, and MORRIS, JJ., Concur.


text:
    Kyle JOYNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0437.
    District Court of Appeal of Florida, First District.
    March 5, 2010.
    Rehearing Denied April 16, 2010.
    Kyle Joyner, 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. See Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Hall v. State, 853 So.2d 546 (Fla. 1st DCA 2003).

DAVIS, BENTON, and MARSTILLER, JJ., concur.


text:
    Byron H. KEESLER and Leroy Boyd, Appellants, v. COMMUNITY MARITIME PARK ASSOCIATES, INC., Appellee.
    No. 1D09-1659.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Rehearing Denied April 16, 2010.
    Sharon L. Barnett, Pensacola, for Appellant.

      Edward P. Fleming and Matthew A. Bush, of McDonald — Fleming—Moorhead, Pensacola, for Appellee.
   WETHERELL, J.

Appellants seek review of a final order granting summary judgment in favor of Appellee, Community Maritime Park Associates, Inc. (CMPA). In granting summary judgment, the trial court found that section 286.011(1), Florida Statutes (the Sunshine Law), gives Appellants the right to be present but not to speak at CMPA meetings. We agree and affirm.

CMPA is a not-for-profit corporation charged by the City of Pensacola with overseeing the development of a parcel of public waterfront property. Appellants are citizens of Escambia County. It is undisputed that CMPA is subject to the requirements of the Sunshine law. The issue before us is not whether CMPA should give citizens an opportunity to speak and provide input at its meetings, but rather whether the Sunshine Law provides citizens the right to speak at public meetings.

The Sunshine Law provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

§ 286.011(1), Fla. Stat. (emphasis added).

Appellants ask us to construe the phrase “open to the public” to grant the public the right to speak at meetings and rely on Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969), and cases citing that decision. In Doran, the Florida Supreme Court considered the constitutionality of the Sunshine Law, and in concluding that the law was constitutional, the court stated in dicta:

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country.... Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

Id. at 699.

After Doran, however, the Florida Supreme Court again discussed the rights of members of the public to participate in public meetings in Wood v. Marston, 442 So.2d 934 (Fla.1983). In Marston, the court reviewed the applicability of the Sunshine Law to a committee delegated by the president of the University of Florida to solicit and screen applicants for the deanship of the college of law. Id. at 936-37. The Marston court determined that the committee’s meetings were improperly closed to the public. Id. However, the court also stated, “nothing in this decision gives the public the right to be more than spectators. The public has no authority to participate in or to interfere with the decision-making process.” Id. at 941.

Relying on the language in Marston, the trial court determined that, although the Sunshine Law requires that meetings be open to the public, the law does not give the public the right to speak at the meetings. Appellants have failed to point to any case construing the phrase “open to the public” to grant the public the right to speak, and in light of the clear and unambiguous language in Marston (albeit dicta), we are not inclined to broadly construe the phrase as granting such a right here. Rather, we agree with the trial court that the remedy Appellants are seeking in this case is more appropriately left to the legislative process or the local public officials to whom the CMPA board members are accountable.

For these reasons, we affirm the trial court’s entry of summary judgment in favor of CMPA.

AFFIRMED.

KAHN and PADOVANO, JJ., concur.


author: WETHERELL, J. THOMAS, J.,

text:
    Lola B. BROWN, Eddie J. and Bertha L. Fleming, on behalf of themselves and others similarly situated, Appellants, v. NATIONSCREDIT FINANCIAL SERVICES CORPORATION, Nationscredit Mortgage Corporation of Florida and Bank of America, N.A., Appellees.
    No. 1D09-2806.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Rehearing Denied April 15, 2010.

      Wayne Hogan and Leslie A. Golfer, of Terrell, Hogan, Ellis & Yegelwel, P.A., Jacksonville, for Appellants.
    David M. Wells and Jack J. Aiello, Gun-ster, Yoakley & Stewart, P.A., Jacksonville and John H. Culver, III, of K & L Gates, LLP, Charlotte, North Carolina, for Ap-pellees.
   WETHERELL, J.

Appellants appeal the trial court’s dismissal of their complaint with prejudice on statute of limitations grounds. We affirm.

Appellants filed a complaint as representatives of a putative class on September 4, 2007, raising three counts: violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), unjust enrichment, and breach of the implied duties of good faith and fair dealing. The complaint alleged that Appellants obtained mortgages with Appellees in 1994,1996, and 1998, and that they bought single premium credit insurance (SPCI) on the mortgages. Appellants alleged that the costs of SPCI were excessively inflated and imposed without adequate justification or disclosure, and that they incurred higher monthly payments than they would have otherwise because the SPCI premiums were added to the amount financed under each mortgage.

Appellees moved for judgment on the pleadings, arguing that Appellants’ claims were barred by the statutes of limitations. Appellants countered that their complaint was timely because the cost of SPCI was financed by Appellees and added to the mortgage loan, and, therefore, each mortgage payment served to toll the running of the statute of limitations under section 95.051(l)(f), Florida Statutes. The trial court granted Appellees’ motion for judgment on the pleadings and dismissed Appellants’ complaint with prejudice, finding that section 95.051(l)(f) did not toll the running of the statute of limitations and that Appellants’ claims were time-barred because the complaint was filed more than eight years after the most recent SPCI purchase in 1998.

Appellants concede on appeal that them claims are time-barred unless tolled by section 95.051(l)(f). Appellees contend that this statute does not apply to Appellants’ claims because it applies only to suits by creditors after the debtor ceases to make payments on a debt founded on a ■written instrument. Appellants counter that section 95.051(l)(f) refers to the tolling of “any statute of limitation” and that the plain language of the statute does not limit its application to actions founded on the written instrument on which the payments are being made or to suits by creditors.

Appellants are correct that section 95.051(l)(f) must be given its plain meaning to the extent its language is clear and unambiguous. Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000). However, a literal interpretation of the statutory language need not be given if doing so would lead to an unreasonable or absurd result. Maddox v. State, 923 So.2d 442, 446 (Fla.2006). Here, the “plain meaning” interpretation proffered by Appellants would lead to absurd results.

First, if, as Appellants argue, making payments was sufficient under section 95.051(1)(f) to toll the statute of limitations for any cause of action, a debtor’s tort claim (or any other type of claim) against a creditor could be tolled even if the action was unrelated to the written instrument on which the payments were being made. This is an absurd result. The only logical interpretation of section 95.051(l)(f) is that it tolls the statute of limitations for claims founded on the written instrument on which the payments are being made. Cf. Maddox, 923 So.2d at 448 (narrowly construing statute prohibiting traffic citations from being introduced “in any trial” to exclude citations only in proceedings involving use of a motor vehicle because the literal interpretation of the statute would lead to absurd results).

Second, if, as Appellants argue, section 95.051(l)(f) applied to actions brought by debtors such as Appellants, the statute would essentially permit them to unilaterally extend the deadline for bringing an action by making their monthly mortgage payments. This interpretation is contrary to any of the other tolling provisions in section 95.051(1) which extend the time for filing an action based upon the acts of the other party, not the party bringing the action. This interpretation is also contrary to the general philosophy behind the tolling statutes that “courts will not protect defendants who are directly responsible for the delays of filing because of their own willful acts.” See Nardone v. Reynolds, 333 So.2d 25, 36 (Fla.1976), modified on other grounds by Tanner v. Hartog, 618 So.2d 177 (Fla.1993).

Additionally, to the extent that Appellants contend that Appellees’ receipt of the monthly mortgage payments is sufficient to toll the statute of limitations under section 95.051(l)(f), Appellants are asking us to read words into the statute that are not there. The statute says that the statute of limitations is tolled by “payment of any part of the principle or interest” (emphasis supplied); it does not say that the statute of limitations is tolled by “payment or receipt of any part of the principle or interest.”

Appellants have not cited, and we could not locate, any case interpreting section 95.051(l)(f) to apply to claims brought by a debtor or to claims related to, but not expressly founded on, the written instrument on which the payments are being made. Cf. Dudas v. Dade County, 385 So.2d 1144 (Fla. 3d DCA 1980) (holding that section 95.051(l)(f) did not apply to debtor’s action to recover overpayment on an account). To the contrary, the cases construing section 95.051(1)(f) hold that the statute merely codified the common law rule that partial payment of a debt tolls the statute of limitations for the creditor to bring an action on the debt. See, e.g., Cadle Co. v. McCartha, 920 So.2d 144 (Fla. 5th DCA 2006) (discussing the common law rule, the legislative history of section 95.051(1)(f), and cases applying the statute).

Chaplin v. Cooke’s Estate, 432 So.2d 778 (Fla. 1st DCA 1983), cited by the dissent, is not contrary authority. First, the issue in that case was whether a new promise to pay tolled the statute of limitations on an existing debt, not whether section 95.051(l)(f) applied to claims brought by debtors. Second, unlike this case, Chaplin involved a suit by a creditor to collect a debt. Third, although we recognized in Chaplin that section 95.051 superseded any contrary case law (such as that which recognized tolling based upon a new promise to pay an existing debt), it does not follow that the statute was intended to expand the circumstances for tolling as argued by Appellants to include circumstances that had never been recognized in case law.

Our conclusion that section 95.051(l)(f) does not apply to Appellants’ claims is consistent with the Third District’s decision in South Motor Company of Dade County v. Doktorczyk, 957 So.2d 1215 (Fla. 3d DCA 2007), which also involved a FDUTPA claim. In South Motor, a used car buyer brought a FDUTPA action against the car dealer, claiming that the dealer made misrepresentations that led him to purchase an extended warranty which was included in the loan and spread out in installments during the loan period. 957 So.2d at 1216. The complaint was filed two years after the running of the four-year statute of limitations. The buyer argued that the tolling provision of section 95.051(1)(f) applied to him because he had been making payments on the loan. The county court granted summary judgment for the dealer because the sale of the warranty occurred more than four years before the filing of the complaint. The circuit court reversed on appeal, holding that the buyer’s continued payments kept his claim alive under section 95.051(l)(f). However, the district court held that the buyer’s FDUTPA claim could not be tolled under the statute because it was not founded on a written instrument. Id. at 1217-18. On this point, the court stated:

The circuit court’s decision would effectively toll the running of the statute of limitation for all consumer transactions with extended payment plans for at least the life of the payments. This is a complete misapplication of the part-payment tolling provision in section 95.051(l)(f). The statute is obviously intended for those who seek to enforce the obligations under a note when there has been no default under the payments. In those cases, the action has not accrued until there is a default, giving rise to the cause of action. The statute of limitations is tolled while payments (even part-payments) are being made on an installment note. Without the protection of the statute, a compassionate obli-gee that accepts sporadic part-payments from the obligor could risk jeopardizing its collection rights.

Id. at 1218 (citations omitted).

For these same reasons, we conclude that the trial court correctly determined that section 95.051(l)(f) does not apply to Appellants’ claims and that the claims are barred by the statute of limitations. Accordingly, we affirm the trial court’s dismissal of Appellants’ complaint.

AFFIRMED.

LEWIS, J„ concurs; THOMAS, J„ dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent. The statute is unambiguous, and its plain language does not limit its application to actions brought only by creditors.

“Prior to 1974, there was no statutory enumeration of facts or circumstances-which would toll the running of time under any statute of limitations although a number of such circumstances or facts had developed through case law.” Chaplin v. Cooke’s Estate, 432 So.2d 778, 779 (Fla. 1st DCA 1983). In 1974, however, the legislature enacted section 95.051, Florida Statutes, which provided for a set of exceptions to the statute of limitations. “In 1975, the legislature added section 95.051(l)(f), which provided that the running of time was tolled by ‘[t]he payment of any part of the principal or interest of any obligation or liability founded on a written instrument.’” Id.

As we observed in Chaplin, “[t]his is the only subsection dealing specifically with written instruments and acts which would toll the running of time on written instruments. Under the provisions of § 95.051(l)(f), the only act which would toll the time for the running of the statute of limitations was the payment of any part of the principal or interest, since any contrary case law was superseded by § 95.051.” Id. (emphasis added).

Thus, although the common law may have limited tolling the statute of limitations with respect to claims brought by creditors, the eases giving rise to this concept were superseded by section 95.051(l)(f), which does not express any such limit. Quite simply, had the Legislature wished to limit the application of the statute this way, it could easily have done so. See Am. Bankers Life Assurance Co. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) (noting that had Legislature intended statute to import more specific and definite meaning, it could have easily chosen words to express any limitation it wished to impose). Here, because the Legislature did not choose to include words limiting the statute to creditors, we cannot add this language. “This court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Id.

The claims here were founded on the underlying written instrument at issue— the mortgage and the SPCI policy incorporated in it. Thus, the statute applies and tolls the running of the statute of limitations. We should reverse the trial court’s determination that the statute of limitations on Appellants’ causes of action was not tolled by section 95.051(l)(f), Florida Statutes, and reinstate the action for consideration on the merits.

      . The statute of limitations for a FDUTPA claim is four years pursuant to section 95.11(3)(Q, Florida Statutes, as it is based on a statutory liability. Appellants' claim for unjust enrichment is also subject to a four-year statute of limitations pursuant to section 95.1 l(3)(k). The breach of the duties of good faith and fair dealing is a claim arising from the parties’ contractual relationship and, therefore, subject to a five-year statute of limitations under section 95.1 l(2)(b).

      . Section 95.051(l)(f) provides:
      (1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
      * * *
      (f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.


author: LAWSON, J.

text:
    OCR-EDS, INC., Oviedo Crossroads, Inc., et al., Appellant, v. S & S ENTERPRISES, INC., Appellee.
    No. 5D09-4330.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.
    Rehearing Denied April 14, 2010.

      Kelly V. Parsons and Caryn N. Diamond of Cobb Cole, Daytona Beach, for Appellant.
    Kenneth P. Hazouri of de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
   ON ORDER TO SHOW CAUSE AND MOTION TO DISMISS

LAWSON, J.

We withdraw our previous order and substitute this opinion in its place. We write to express our disagreement with Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 24 So.3d 666 (Fla. 4th DCA 2009), which held that appellate court jurisdiction may only be determined from the trial clerk’s time stamp on a notice of appeal, so that a timely-filed notice of appeal will be conclusively deemed untimely if it is incorrectly date-stamped after the jurisdictional deadline. By contrast, we hold that a timely-filed notice of appeal is sufficient to confer appellate jurisdiction over the matter, even if the notice is erroneously time-stamped with a date after the jurisdictional deadline.

As in Strax, the notice of appeal in this case is date-stamped after the thirty-day jurisdictional deadline for filing an appeal. The appealed order was entered on October 21, 2009, making November 20, 2009, the last day for filing a timely notice of appeal. Upon receipt of the notice of appeal, date-stamped by the lower court clerk after November 20, we issued an order to show cause directing Appellants to demonstrate why their appeal should not be dismissed for lack of jurisdiction. Appellees also filed a motion to dismiss the appeal for lack of jurisdiction.

In response, Appellants’ counsel submitted two affidavits. The first, from her legal secretary, stated that the secretary sent the notice of appeal to the Seminole County Clerk of Court by way of Federal Express on November 19, in a package marked for next-day delivery. She also stated, under oath, that she called the clerk’s office on November 20, and confirmed that the clerk timely received the notice of appeal on that day. The secretary averred that the clerk who received the document told her that “the inputting of the docket was delayed about one week, but the filing would reflect the November 20, 2009 date.” Copies of Federal Express shipping records were attached to the affidavit, showing that the firm did send a package to the Seminole County Clerk of Court on November 19, which was actually received by the trial clerk on November 20.

The second affidavit was signed by an employee of the Seminole County Clerk of Court. This affidavit also confirmed that the clerk’s office received a Federal Express package from Appellants’ attorney on November 20. The employee who submitted this affidavit attested to her signature on the Federal Express delivery confirmation receipt-dated November 20.

Florida cases addressing this issue prior to Strax held that appellate jurisdiction is determined by the date that a notice of appeal (or other jurisdictional filing) is actually received by the clerk of court, even if the clerk-stamped filing date indicates a belated filing. See Weintraub v. Alter, 482 So.2d 454 (Fla. 3d DCA 1986); Pettigrew & Bailey v. Pickle, 429 So.2d 340 (Fla. 3d DCA 1983); Knee v. Smith, 313 So.2d 117 (Fla. 1st DCA 1975); Mills v. Avon Park Motor Co., 223 So.2d 802 (Fla. 2d DCA 1969); Hood v. State, 163 So.2d 893 (Fla. 1st DCA 1964). While acknowledging these authorities, the Fourth District based it’s holding on language added to Florida Rule of Civil Procedure 1.080(e) in 1984, which states that: “The date of filing is that shown on the face of the paper by the judge’s notation or the clerk’s time stamp, whichever is earlier.”

However, this language should be viewed in connection with other related rules. Cf. State v. Fuchs, 769 So.2d 1006, 1010 (Fla.2000) (“[Statutes which relate to the same or closely related subjects should be read in pari materia”). Most significantly, Florida Rule of Civil Procedure 1.540(a) expressly permits a trial court to correct clerical mistakes in judgments, decrees “or other parts of the record.” An erroneous time-stamp is clearly a clerical mistake. And, as the Third District held in Pickle, it is clearly appropriate for a trial court to take evidence to determine whether a time-stamp is erroneous, and to correct the error if one is found. Rule 1.540(a) expressly contemplates that such a correction can be made while an appeal is pending, with leave of the appellate court. Once corrected, of course, the judge’s notation of the correct filing date will be deemed the “date of filing” under rule 1.080(e), if it is earlier in time than the clerk’s stamp.

This reading of the rules also conforms with the long-standing principle that “[wjhile our procedural rules [should] provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.” Rogers v. First Nat’l Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970). A rule that would deny a citizen who has timely sought an appeal his or her right to appeal based upon a proven mistake by a clerk’s office employee is not consistent with justice or due process.

Accordingly, we relinquish this matter to the circuit court for a period of forty-five days, with directions that the trial judge conduct an evidentiary hearing to determine whether Appellants’ notice of appeal was received on November 20, as Appellants’ evidence suggests.

We certify conflict with Strax.

RELINQUISHED TO TRIAL COURT FOR FORTY-FIVE DAYS, WITH DIRECTIONS.

SAWAYA and COHEN, JJ., concur.

      . The certificate of service on the notice of appeal signed by Appellants' attorney was also dated November 19.


author: MORRIS, Judge. KELLY, Judge,

text:
    Dianne BARRINGTON and Joshua S. Unger, Appellants, v. GRYPHON INVESTMENTS, INC., d/b/a Re/Max Excellence, Appellee.
    No. 2D08-5234.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.
    Nancy E. Cason and Scott Westheimer of Syprett, Meshad, Resnick, Lieb, Dum-baugh, Jones, Krotec & Westheimer, P.A., Sarasota, for Appellants.
    Sherri L. Johnson of Dent & Johnson, Chartered, Sarasota, for Appellee.
   MORRIS, Judge.

Dianne Barrington and Joshua S. Unger (the Agents) appeal a final summary judgment entered in favor of Gryphon Investments, Inc., d/b/a Re/Max Excellence (Re/ Max). We reverse and remand for further proceedings.

In October 2007, the Agents filed a complaint against Re/Max for declaratory relief and breach of contract. The complaint alleged that the Agents each signed an independent contractor agreement (Agreement) with Re/Max in 2006. The Agreements contain sections addressing the termination of the Agreements and provide that “[ejither party, without cause, may terminate this Agreement at any time upon the giving of 60 days [’] advance written notice to the other.” The Agreements also provide that Re/Max “may retain 25% of the commission earned by [the Agent], above and beyond the amounts required in this Agreement, to cover [Re/ Max’s] costs of bringing the transaction to closure after [the Agent’s] termination date.”

The complaint alleged that on or about September 30, 2006, the Agents gave notice of termination of the Agreements. After such notice was given, the Agents had several transactions proceed to closing. The Agents claimed that Re/Max deducted its standard fee of 5% from the Agents’ commissions on those closings until November 1, 2006, when Re/Max began deducting 25% from the Agents’ commissions. The Agents claimed that Re/Max relied on the 25% provision in the Agreements that was intended to compensate Re/Max for actual out-of-pocket expenses incurred by Re/Max up to 25% and that was not intended to permit Re/Max to retain a uniform 25% from the commissions on all posttermination closings. The Agents alleged that the 25% retained by Re/Max had no reasonable relationship to the amount actually incurred by Re/Max and that the withholding of those commissions was a penalty. The Agents sought a declaration that Re/Max’s withholding of the 25% under the Agreements was invalid. The Agents also claimed that Re/Max breached the Agreements and wrongfully retained $18,550.07 from Barrington and $27,671.32 from Unger.

Re/Max filed a motion for summary judgment, arguing that Re/Max did not breach the Agreements because the Agreements authorized Re/Max to retain 25% of the Agents’ commissions on sales closing after the termination date, which Re/Max alleged was November 21, 2006, as supported by the affidavit of its principal, Andrew Vac. Re/Max also argued that the 25% clause was not ambiguous but was consideration for Re/Max’s execution of the Agreements and that it did not constitute an unenforceable liquidated damages clause.

The Agents filed a memorandum of law in opposition to the motion for summary judgment. The Agents contended that a latent ambiguity exists in the Agreements because Re/Max has never retained 25% of an agent’s commission under other agent contracts containing similar provisions, as indicated by Vac’s affidavit. The Agents also argued that Vac informed the Agents that the termination date would be November 30, 2006, but that Re/Max began withholding 25% from the commissions on closings occurring prior to that date. The Agents claimed that Re/Max owed the Agents commissions for closings occurring both before and after the termination date. The Agents attached several documents to the memorandum but did not file any supporting affidavits.

After a hearing, the trial court granted Re/Max’s motion for summary judgment and entered final summary judgment in Re/Max’s favor. The trial court concluded that the Agreements are not ambiguous and that they permit Re/Max to deduct 25% from commissions on sales that closed after the termination date. The trial court also found that the Agents failed to submit evidence supported by affidavits that created a genuine issue of material fact.

The Agents then filed a motion for clarification and rehearing. The motion asked the trial court to clarify whether its ruling addressed the issue of whether the Agents were due any money from transactions that closed prior to the alleged termination date. The motion also asked for the trial court to reconsider the documents submitted in opposition to the motion for summary judgment. The Agents submitted an affidavit of Joshua S. Unger purportedly authenticating the documents. The trial court denied the motion.

On appeal, the Agents raise several issues, only one of which we discuss. The Agents argue that the 25% clause is latently ambiguous because even though it appears to authorize Re/Max to retain 25% of the commissions on posttermination closings, Re/Max never acted consistently in its application of the clause, as indicated by Vac’s affidavit submitted in support of the motion for summary judgment.

We review a summary judgment using a de novo standard of review. Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400 (Fla. 2d DCA 2004).

First, a summary judgment is proper only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered. Second, if there is no genuine issue of material fact, a summary judgment is proper only if the moving party is entitled to a judgment as a matter of law.

Id. at 400-01 (citations omitted). “[T]he burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966).

Although not addressed by the parties below or on appeal, we believe that the contract provision contains a patent ambiguity because it provides that Re/Max may retain 25% of commissions earned by the Agents but then later provides that the retention of such commissions is to cover the costs of bringing the transactions to closure. “[A] patent ambiguity is that which appears on the face of the instrument and arises from the use of defective, obscure, or insensible language.” Crown Mgmt. Corp. v. Goodman, 452 So.2d 49, 52 (Fla. 2d DCA 1984). On the face of the provision, it is unclear whether Re/Max may retain a full 25% of a commission if the actual costs of bringing the transaction to closure did not amount to the full 25%. However, because the Agents did not raise this specific issue, it is not before us.

Even if the contract was not patently ambiguous and could be read to clearly allow Re/Max to retain a full 25% of commissions regardless of the actual costs of the closings, we believe that a latent ambiguity exists based on evidence that the provision has not been applied by Re/Max in other cases to retain a full 25% of commissions. “A latent ambiguity — as distinct from a patent ambiguity — arises ‘where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ ” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1973)); see also Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002-03 (Fla. 2d DCA 1995) (holding that where a latent ambiguity exists, parol evidence may be considered “in determining the parties’ intent where the existence of some collateral or extraneous matter renders the contract’s application uncertain”). “ ‘[W]hen an agreement contains a latent ambiguityf,] ... the issue of the correct interpretation of the agreement is an issue of fact which precludes summary judgment.’ ” Mac-Gray Servs., Inc., 915 So.2d at 659-60 (quoting Griffin v. Fed. Deposit Ins. Corp., 532 So.2d 1358, 1360 (Fla. 2d DCA 1988)).

While the provision may on its face permit Re/Max to retain a full 25% of the commissions earned by the Agents regardless of the actual costs of the closings, it is latently ambiguous in light of Vac’s affidavit demonstrating that Re/Max has not applied the provision similarly in other situations, thus suggesting that it was not intended to authorize Re/Max to retain a full 25% if the costs did not amount to 25%. There is an ambiguity as to what the parties intended when they entered into the contract. Because a latent ambiguity exists as to whether Re/Max was authorized to retain a full 25% of the commissions earned from closings after the termination date, the trial court erred in granting summary judgment on the declaratory judgment count as well as the breach of contract counts.

Because we are reversing the final summary judgment as to all counts of the complaint for the reason discussed above, we need not address the remaining issues raised by the Agents. We reverse and remand for proceedings consistent with this opinion.

Reversed; remanded.

WHATLEY, J., Concurs.

KELLY, J., Dissents with opinion.

KELLY, Judge,

Dissenting.

I would affirm the trial court’s decision. The provision at issue states that Re/Max “may retain 25% of the commission earned by Contractor, above and beyond the amounts required in this Agreement, to cover Broker’s costs of bringing the transaction to closure after Contractor’s termination date.” Re/Max’s right to retain an additional 25% is clear and unambiguous. The fact that in the past Re/Max had not invariably enforced that right against departing agents does not render the phrase ambiguous. The circumstance that Re/ Max had the ability to exercise discretion in choosing whether to retain an additional 25% is obvious from the use of the word “may.” The Agents’ claim that the provision contains a latent ambiguity because in the past Re/Max had exercised its discretion and not enforced the 25% provision is illogical in light of the clear contractual language vesting discretion in Re/Max.

The Agents’ argument is further undermined by their failure to offer a coherent explanation of the supposed ambiguity created by Re/Max’s past application of the provision stating only that, in every other situation they were aware of, the word “may” meant “may,” but in their situation Re/Max “utilized” the word “may” to mean “shall.” What this amounts to is a claim that Re/Max, at least in the Agents’ view, exercised its discretion arbitrarily, but it does not amount to a latent ambiguity. See, e.g., Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla.1998). In Deni, the court explained that a latent ambiguity is one that arises when clear contractual language can apply to two or more different things or persons and extrinsic evidence is necessary to determine the alternative to which the words were intended to apply. Id. at 1139. As “a classic example” of a latent ambiguity, the court described a situation where a contract calls for goods to be delivered to “the green house on Pecan Street,” but there are two green houses on the street. The extrinsic fact of the two green houses creates an uncertainty as to where the goods are to be delivered, thus requiring parol inquiry to determine which of the two alternatives, i.e., which green house, the parties intended. Id.; see also 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 33:40 (4th ed. Supp. 2009) (citing as “the classic illustration of a latent ambiguity,” the English case where an agreement obligated the plaintiff to sell to the defendants a quantity of cotton ‘to arrive ex Peerless’ from Bombay; however, it turned out there were two ships by that name who left Bombay carrying a shipment of cotton thus creating an ambiguity as to which shipment the defendants were obligated to purchase.). Here, there are no alternative factual scenarios to which the 25% clause can be applied. Moreover, the parol evidence the Agents have offered in support of their chosen meaning indicates only that in the past Re/Max had not claimed any additional commissions, a fact that in no way suggests that Re/Max, when it elected to retain additional commissions, intended to contractually limit the additional commissions to the actual costs of closing.

In what appears to be a related argument, the Agents point to the language of the provision itself — as opposed to any extrinsic matter — and posit that it has two possible meanings: that Re/Max may retain a maximum of 25% to cover the costs actually incurred to bring a transaction to closing or that “25% can be retained arbitrarily for every post termination closing.” There are myriad problems with this contention. Among them is the fact that the alleged ambiguity is created by the words themselves, not any extrinsic circumstance, and thus the ambiguity would be patent, not latent. See, e.g., v. Deni, 711 So.2d at 1139. Further, the argument in effect asks the court to rewrite the contract, and the latent ambiguity doctrine can “never serve as a means for circumventing the plain language” of a contact. Id. Finally, as noted in the majority opinion, to the extent the Agents’ argument might be viewed as one claiming a patent ambiguity, the argument is not preserved. Even if it were, however, in my view the argument fails on its merits. The words “may retain 25% of the commission earned by Contractor” are clear and unambiguous, and the trial court was correct to refuse to rewrite the contract to read that Re/Max “may retain up to 25%.”

      . The Agents also alleged counts for lost wages but later voluntarily dismissed those counts.


text:
    Vessela HEWS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Legacy Bank of Florida, Appellees.
    No. 1D10-0535.
    District Court of Appeal of Florida, First District.
    March 22, 2010.
    Rehearing Denied April 28, 2010.

      Vessela Hews, pro se, Appellant.
    Steven L. Sehwarzberg and Carrie B. Cherveny, of Sehwarzberg & Associates, West Palm Beach, for Appellees.
   PER CURIAM.

DISMISSED. See Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991).

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


author: GERSTEN, J.

text:
    Maria GAGLIARDO, Appellant, v. In re the Matter of the BRANAM CHILDREN, Appellee.
    No. 3D09-2958.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    American Civil Liberties Union Foundation of Florida, Inc., and Maria Kayanan and Randall C. Marshall, Miami, for appellant.
    Ross and Girten and Lauri Waldman Ross, Miami, for appellee.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   GERSTEN, J.

Maria Gagliardo (“the writer”) appeals from a non-final order, restricting distribution of information relating to In Re the Matter of the Branam Children (“the children”). We reverse.

After the children’s parents disappeared at sea, their story garnered international media coverage. The writer, the children’s great grandfather’s companion, who considers herself family, wants to write a book about her life with the children and their parents’ disappearance.

Following the parents’ disappearance, several relatives petitioned for the children’s custody. After a hearing, the trial court awarded temporary custody to an aunt. The trial court, however, awarded the remaining relatives, including the writer, access to the children.

Thereafter, the aunt moved to clarify her rights and requested an order protecting the children’s privacy. At the hearing on the motion, the writer informed the trial judge about her plans to write a book. Thereafter, the trial court entered an order restricting all family members and the writer from distributing: (1) any photographs of the children, (2) information about the children, or (3) information about what has happened to them or to their family. The writer appealed.

On appeal, the winter asserts that the order violated her First Amendment rights to free speech. The children contend their privacy rights were properly protected. At oral argument, the children, however, confessed error on all grounds except public dissemination of unrestricted information about what happened to the children or to their family. We agree with the writer and reverse.

The standard of review for a pri- or restraint, such as this order, is de novo. See Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007). Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights. As such, prior restraints are presumed unconstitutional. Therefore, only in “exceptional cases,” will the courts consider censorship of publication acceptable. Guetzloe, 968 So.2d at 610.

We determine that this is not an “exceptional case” that triggers infringement on our precious First Amendment rights. Here, the order enjoined the writer from speaking about or publishing any information relating to the children and/or circumstances surrounding their parents’ widely publicized disappearance at sea. There were no exceptional circumstances present to justify censoring the writer. Thus, the trial court improperly entered this order.

Accordingly, we reverse and remand for the trial court to vacate the portion of the order that restricts the writer’s ability to distribute “information about the children or about what has happened to them or to their family.”

Reversed and remanded with instructions.


author: CLARK, J.

text:
    Heldrado ZULUAGA, Appellant, v. STATE, Florida DEPT. OF CORRECTIONS, Appellee.
    No. 1D09-1520.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Heldrado Zuluaga, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Heldrado Zuluaga appeals the dismissal of his petition for writ of habeas corpus by the Third Judicial Circuit Court in Hamilton County. The appellant is serving a sentence imposed in 1994 by the Seventeenth Judicial Circuit in Broward County. His petition for writ of habeas corpus sought immediate release from Hamilton Correctional Institution, based upon his assertion that his sentence exceeds the legal maximum sentence. In its order, the trial court ruled that the petition raised a collateral attack on the sentence, that ha-beas corpus was not available as a substitute for postconviction proceedings, and that the attack on the sentence was cognizable only in a motion for postconviction relief in the sentencing court. The trial court dismissed the petition and indicated that Zuluaga was free to seek proper relief in the sentencing court. The order dismissing the petition was not erroneous and is affirmed.

Clearly, habeas corpus was not the proper remedy for Appellant’s claim. The adoption of the rules of criminal procedure regarding post-conviction relief “completely superseded” the extraordinary remedy of the writ of habeas corpus to collaterally challenge the legality of a sentence. State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988); see also, Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006). “The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.” Baker v. State, 878 So.2d 1236, 1245 (Fla.2004). Appellant’s claim that his sentence exceeds the limits provided by law may be filed at any time, pursuant to rule 3.850(b) and 3.800(a), Florida Rules of Criminal Procedure, and “habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to the Florida Rules of Criminal Procedure.” Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001).

The possibility that Appellant may have exhausted his remedies in the sentencing court — direct appeal, postconviction proceedings and appeals — is not a basis upon which Appellant could obtain the writ of habeas corpus from the circuit court in Hamilton County. Habeas corpus is not a vehicle for obtaining additional appeals of issues which were raised or should have been raised on direct appeal, or which could have been, should have been, or were raised in post-conviction proceedings. Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992); Mills v. Dugger, 574 So.2d 68 (Fla.1990); Robbins v. State, 564 So.2d 256 (Fla. 1st DCA 1990).

The trial court did not err in failing to treat the petition for writ of habeas corpus as a postconviction motion to correct sentence. Generally, “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.” Fla. R.App. P. 9.040(c) (applicable to circuit court in this case, Fla. R.App. P. 9.010 & 9.030(c)(1)(3)). However, the circuit court in Hamilton County lacked jurisdiction to do so because “a circuit court has no jurisdiction to review the legality of a conviction in another circuit and to order a new trial therefor.” State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988). A circuit court is generally “not empowered, through habeas corpus, to review the propriety, regularity or sufficiency of an order of a court over which no supervisory or appellate jurisdiction is had.” State ex rel. Renaldi v. Sandstrom, 276 So.2d 109, 110 (Fla. 3d DCA 1973); Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996). Accordingly, the trial court correctly refrained from treating the petition as if the proper remedy had been sought because it lacked jurisdiction to review the sentence entered by the Seventeenth Judicial Circuit Court. See, Fla. R.Crim. P. 3.800(a) (“A court may at any time correct an illegal sentence imposed by if.” (emphasis added)); McLevy v. State, 787 So.2d 194 (Fla. 1st DCA 2001)(affirming dismissal of petition for writ of habeas corpus challenging conviction and sentence, without prejudice to Appellant’s ability “to seek the proper remedy in the appropriate circuit court.”).

Likewise, the trial court committed no error in dismissing rather than transferring the petition. Ordinarily, when an action is filed in the wrong court, the court should transfer the action to the proper court. Fla. R. Civ. P. 1.060 (“may be transferred”); Fla. R.App. P. 9.040(b)(1) (“court shall transfer”). But as explained by the Florida Supreme Court, dismissal, rather than transfer, of a petition for writ of habeas corpus is appropriate when the petitioner seeks “the kind of collateral postconviction relief available through a motion filed in the sentencing court, and which (1) would be untimely if considered as a motion for postconviction relief under rule 3.850, (2) raise claims that could have been raised at trial or, if properly preserved, on direct appeal of the judgment and sentence, or (3) would be considered a second or successive motion under rule 3.850 that either fails to allege new or different grounds for relief that were known or should have been known at the time the first motion was filed.” Baker v. State, 878 So.2d 1236, 1246 (Fla.2004); See also Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006); Brown v. Crosby, 908 So.2d 512 (Fla. 1st DCA 2005). While the relief sought by Appellant is not time-barred, at least one previous postcon-viction motion was filed in the sentencing court and Appellant does not assert that he is bringing new or different grounds for relief.

The order dismissing the petition for writ of habeas corpus is AFFIRMED.

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

      . In his motion for rehearing in the trial court, Appellant asserted that he had already filed a motion to correct illegal sentence in the sentencing court and relief was denied. Apparently, Appellant has actively litigated his sentence in the Seventeenth Judicial Circuit and Fourth District Court of Appeals. See, Zuluaga v. State, (Case No. 4D98-2328, Fla. 4th DCA); Zuluaga v. State, 793 So.2d 60 (Fla. 4th DCA 2001) rev. denied, State v. Zuluaga, 817 So.2d 850 (Fla.2002); Zuluaga v. State, 842 So.2d 127 (Fla. 4th DCA 2003); Zuluaga v. State, 872 So.2d 914 (Fla. 4th DCA 2004); Zuluaga v. State, 888 So.2d 650 (Fla. 4th DCA 2004) appeal dismissed, Zuluaga v. State, 892 So.2d 1015 (Fla.2005); Zuluaga v. State, 992 So.2d 270 (Fla. 4th DCA 2008), review dismissed, Zuluaga v. State, 998 So.2d 1147 (Fla.2008).


author: BENTON, J.

text:
    Freddrick D. HINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4655.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Rehearing Denied April 16, 2010.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

We reverse the order denying Freddrick Hines’ motion to withdraw plea and remand with directions to dismiss the motion for lack of jurisdiction. Because Mr. Hines had filed a notice of appeal directed to judgment and sentence, the lower court was without jurisdiction to act on his subsequently filed motion to withdraw plea. See Mingo v. State, 914 So.2d 1070, 1070 (Fla. 2d DCA 2005) (“Because Mingo filed his pro se motion to withdraw plea after he filed his notice of appeal, the trial court was without jurisdiction to consider that motion.” (citing Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004))); McCray v. State, 840 So.2d 274, 275 (Fla. 4th DCA 2003) (“The notice of appeal filed in this case divested the trial court of jurisdiction to enter any further rulings, including [on] appellant’s motion to withdraw plea.”).

We reverse and remand without prejudice to Mr. Hines’ right to seek postconviction relief under Florida Rule of Criminal Procedure 3.850. See McCray, 840 So.2d at 275 (noting decision was “without prejudice to any right appellant might have to raise this issue in any motion filed pursuant to Florida Rule of Criminal Procedure 3.850.” (citing Wilson v. State, 814 So.2d 1203 (Fla. 2d DCA 2002))).

Reversed and remanded with directions.

DAVIS and MARSTILLER, JJ„ concur.


text:
    Freddrick D. HINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4661.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Rehearing Denied April 16, 2010.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Reversed and remanded with directions that the trial court dismiss Mr. Hines’ motion to withdraw plea for lack of jurisdiction. See Hines v. State, 32 So.3d 678 (Fla. 1st DCA 2010).

DAVIS and MARSTILLER, JJ„ concur.


author: NORTHCUTT, Judge.

text:
    Douglas ZEPEDA, Appellant, v. Courtney ZEPEDA, Appellee.
    No. 2D09-4303.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
    Rehearing Denied April 28, 2010.
    Jennifer L. DeVries of Woodward, Pires & Lombardo, P.A., Naples, for Appellant.
    Tamara Lynne Nicola of Tamara Lynne Nicola, P.A., Naples, for Appellee.
   NORTHCUTT, Judge.

Douglas Zepeda appeals a nonfinal order permitting Courtney Zepeda to relocate with their child during their ongoing dissolution of marriage case. The circuit court erred by basing its ruling on a purported agreement between the parties and by failing to establish a timesharing plan. The temporary child support award is also contrary to law. Accordingly, we reverse.

The parties were married for approximately six years at the time the dissolution petition was filed. They have one daughter, who was three years old at the beginning of this case. Mr. Zepeda and the child are members of the Seminole Indian Tribe. The family has always lived in Naples, in close proximity to the Big Cypress Indian Reservation and Mr. Zepe-da’s family. Ms. Zepeda’s family lives in northern Florida, in Clay County, and she would like to move to that area and be closer to her family and friends. To that end, she obtained a job offer for a position in the Clay County school system similar to the job she held in Collier County.

In contemplation of Ms. Zepeda’s move, the parties discussed timesharing, and Ms. Zepeda prepared a schedule that provided almost equal time for each parent, taking into account their work schedules, college football games that they and their extended families have traditionally attended, and tribal events. But the schedule could work only until the child started school. Mr. Zepeda testified that he did not agree to the arrangement and would only agree if Ms. Zepeda would return to Naples when their daughter started school. Because the parents were unable to resolve this issue, Ms. Zepeda filed a notice of intent to relocate. After several hearings, the circuit court entered a temporary order permitting Ms. Zepeda to move the child to Clay County.

During a pending dissolution of marriage proceeding, a court may temporarily permit a child’s relocation if it finds from the evidence “a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support the permitting of relocation in a final judgment.” § 61.13001(6)(b)(2), Fla. Stat. (2008). The factors to be considered when deciding relocation issues are enumerated in section 61.13001(7). In the alternative, the statute provides for relocation when the parties sign a written agreement that is ratified by the court. § 61.13001(2).

Here, the parties did not have an agreement for their child’s relocation, but the court appeared to treat Ms. Zepeda’s proposed timesharing schedule as such. In both its oral comments and its written order, the court placed great weight on what it referred to as “the kitchen table agreement.” And in doing so, the court erred. Without dispute, the schedule did not suffice as a relocation agreement under section 61.13001(2), which requires a signed writing.

In somewhat similar circumstances, the Fifth District concluded that a circuit court erred by admitting into evidence a settlement proposal and testimony concerning negotiations to resolve the parties’ child custody dispute. Stamm v. Stamm, 489 So.2d 851, 853 (Fla. 5th DCA 1986). There, the parties had engaged a mediator who drew up an agreement, but neither party had signed it. Id. at 853-54. The appellate court held:

Admission of this settlement proposal resulted in error because the trial court partially based its decision that the mother should receive primary residential responsibility based on the allegations that the father had agreed to the settlement proposal and that the mother would have custody of the child from grades one through twelve. Basing his decision on a finding that the parties had agreed to the proposal was error both in fact and in law.

Id. at 854. In this case, we do not hold that it was improper to allow Ms. Zepeda to submit the schedule as a timesharing proposal. But it was error for the court to base its relocation decision on a finding that the parties had agreed to the schedule when, in fact, they had not. For this reason, we are compelled to reverse the order approving the temporary relocation and remand for consideration of the issue in light of the factors prescribed in section 61.13001(7).

Reversal is also warranted due to the order’s failure to include a timesharing schedule. Without a schedule, the circuit court could not evaluate the feasibility of preserving the parent-child relationship through substitute arrangements. See Coyle v. Coyle, 8 So.3d 1271 (Fla. 2d DCA 2009) (reversing relocation decision when court failed to set forth timesharing schedule). Although the court apparently contemplated that the parties would operate under Ms. Zepeda’s proposal, it did not expressly adopt it. If, on remand, the court again authorizes the relocation of the child, it shall devise an appropriate time-sharing schedule.

Finally, we must reverse the temporary child support award. As a member of the Seminole Tribe, the child has received a monthly stipend in addition to a monthly deposit into a trust account. But the testimony revealed some uncertainty about future payments, which are determined by the Tribe. Rather than calculating support under the guidelines, the circuit court simply ordered that Ms. Zepeda would receive temporary child support in the amount of the monthly stipend the child has received in the past. Without any findings regarding the parents’ incomes, the court ordered Mr. Zepeda to make up the difference in the event that the Tribe reduces the child’s stipend in the future. Moreover, the support award was ordered without regard to whether the child would be spending a substantial amount of time with her father.

Section 61.30 establishes child support guidelines based on the parents’ incomes. It contains a specific provision allowing the court to adjust child support obligations based on “[independent income of the child, not to include moneys received by a child from supplemental security income.” § 61.30(ll)(a)(2). The statute also mandates an adjustment in support when “a parent exercises visitation at least 40 percent of the overnights of the year.” § 61.30(11)(b); Rainsberger v. Rainsberger, 819 So.2d 275 (Fla. 2d DCA 2002). Here, the circuit court was not authorized to completely bypass the child support guidelines. We reverse the temporary support award and remand for the court to fashion temporary child support in a manner consistent with section 61.30.

Reversed and remanded for further proceedings.

CASANUEVA, C.J., and MORRIS, J„ Concur.


author: WALLACE, Judge.

text:
    David Crain GILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2720.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
    Rehearing Denied May 5, 2010.
    David Crain Gillis, pro se.
   WALLACE, Judge.

David Crain Gillis challenges a final order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s order but write to clarify the appropriate basis for denial of Mr. Gillis’s motion.

In 2004, Mr. Gillis was convicted of robbery, kidnapping, and aggravated battery and was sentenced to concurrent terms of life in prison on the robbery and kidnapping charges and to thirty years in prison on the aggravated battery charge. At his original sentencing, Mr. Gillis was not designated as a habitual felony offender on any of the three charges. This court affirmed the judgment and sentence on appeal, and the mandate issued on March 24, 2005. Gillis v. State, 901 So.2d 124 (Fla. 2d DCA 2005) (table decision).

Mr. Gillis subsequently filed a motion to correct illegal sentence under rule 3.800(a). The motion was granted, and on March 28, 2006, Mr. Gillis was resentenced as a habitual felony offender to concurrent terms of life in prison on the robbery and kidnapping charges and as a habitual felony offender to thirty years in prison on the aggravated battery charge. Mr. Gillis appealed the resentencing order in April 2006, and while his appeal was pending, he filed a rule 3.800(b)(2) motion with the postconviction court. In December 2006, the postconviction court granted Mr. Gil-lis’s rule 3.800(b)(2) motion in part and ordered that Mr. Gillis again be resen-tenced, this time to delete the habitual felony offender designation on the robbery and kidnapping charges because the designation constituted a double jeopardy violation. As a result of the postconviction court’s order, Mr. Gillis filed a notice of dismissal, and his rule 3.800(a) appeal was dismissed. Gillis v. State, 959 So.2d 262 (Fla. 2d DCA 2007) (table decision).

Mr. Gillis did not file his rule 3.850 motion until September 27, 2007, more than two years after his direct review proceedings were concluded. See Fla. R.Crim. P. 3.850(b). Mr. Gillis’s resen-tencing, which resulted not from his direct appeal but from his successful rule 3.800 motions, did not toll the two-year time limit for filing a rule 3.850 motion attacking his convictions. See Fla. R.Crim. P. 3.850(b); O’Neill v. State, 6 So.3d 630, 630 (Fla. 2d DCA 2009); Marrero v. State, 967 So.2d 934, 936 (Fla. 2d DCA 2007). Instead of considering Mr. Gillis’s claims on the merits, the postconviction court should have denied it as untimely. However, we affirm the denial because the postconviction court reached the right result, despite the unnecessary review. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (“Th[e] longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons,’ so long as ‘there is any basis which would support the judgment in the record.’ ”).

Affirmed.

WHATLEY and KELLY, JJ., Concur.