text:
    Lester BOLDING, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5733.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.

      Gregory J. Cummings, Tallahassee; Nancy Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lester Bolding, Appellant, seeks review of a judgment and sentence entered after a jury found him guilty of both lewd or lascivious battery and lewd or lascivious molestation. The trial court adjudicated Appellant guilty of lewd or lascivious battery and sentenced him for that crime. Although the trial court agreed with Appellant that, under the facts of this case, it would violate the Double Jeopardy Clause to enter an adjudication of guilt as to lewd or lascivious molestation, the trial court noted on the judgment and sentence form that the jury found Appellant guilty of lewd or lascivious molestation. The trial court then ordered that adjudication of guilt for that offense be withheld. Appellant contends that this action violated the Double Jeopardy Clause. The State properly concedes error on this point. Accordingly, we affirm in part, reverse in part, and remand with instructions to the trial court to vacate the record of the jury’s determination that Appellant was guilty of lewd or lascivious molestation.

Under the Double Jeopardy Clause of both the Florida and the federal constitutions, a person may not be “subjected] to multiple prosecutions, convictions, and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009); see U.S. Const, amend. V; Art. I, § 9, Fla. Const. The question before us is whether the jury’s finding of guilt as to the lewd or lascivious molestation charge constituted a conviction, such that the record of this finding on the judgment and sentence placed Appellant in double jeopardy. This issue may be settled by reference to the statutory definition of “conviction.” Section 921.0021, Florida Statutes (2008), defines “conviction” as “a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.” Thus, the constitutional prohibition against multiple convictions for the same criminal offense is violated even when a trial court adjudicates the defendant guilty of one offense and withholds adjudication of guilt as to the other offense. When a jury finds a defendant guilty of two offenses, and the defendant cannot be adjudicated guilty of both due to the constitutional prohibition against double jeopardy, the proper remedy is to vacate the verdict of guilt as to one of the offenses. Werhan v. State, 673 So.2d 550, 553 (Fla. 1st DCA 1996). A double jeopardy violation is not rendered harmless simply because the defendant is not sentenced for both of the convictions or because they were not both scored on the guidelines scoresheet. Id. Accordingly, we hold that the trial court committed harmful error when it declined to vacate the jury verdict as to the lewd or lascivious molestation charge. For this reason, although the conviction and sentence for lewd or lascivious battery remain undisturbed, we must reverse and remand for vacation of the conviction for lewd or lascivious molestation.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie POWELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0823.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Michael Robert Ufferman of Michael Uf-ferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Office of the Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Eddie Powell, Jr., appeals his convictions and sentences for kidnapping, burglary, assault, fleeing law enforcement, battery, resisting an officer, possession of cannabis, and leaving the scene of an accident. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We reject appellant’s challenge to the trial court’s determination that appellant was competent to stand trial, but we remand with directions to the trial court to enter a written order adjudicating appellant competent, nunc pro tunc. See, e.g., Bailey v. State, 931 So.2d 224, 225 (Fla. 1st DCA 2006); Martinez v. State, 851 So.2d 832 (Fla. 1st DCA 2003); Hampton v. State, 988 So.2d 108 (Fla. 2d DCA 2008).

We reverse appellant’s conviction for Count XI, leaving the scene of an accident, because the state failed to establish the statutory elements of the offense. Appellant claimed in his motion for judgment of acquittal that the state had not presented evidence of damage to property or to another vehicle. Section 316.063(1), Florida Statutes (2005), entitled “[d]uty upon damaging unattended vehicle or other property,” provides:

The driver of any vehicle which collides with, or is involved in a crash with, any vehicle or other property which is unattended, resulting in any damage to such other vehicle or property, shall immediately stop and shall then and there either locate and notify the operator or owner of the vehicle or other property of the driver’s name and address and the registration number of the vehicle he or she is driving, or shall attach securely in a conspicuous place in or on the vehicle or other property a written notice giving the driver’s name and address and the registration number of the vehicle he or she is driving, and shall without unnecessary delay notify the nearest office of a duly authorized police authority.

(Emphasis added.)

The statute provides that any driver who crashes into and damages an unattended vehicle or property has a duty to notify the owner of that property. The only pertinent evidence below was a photograph of the damage to the car appellant was driving, and testimony that he crashed into either a wooden barricade, a steel beam, or a culvert. There was no testimony about any damage to whatever object the vehicle hit, and there may have been none at all. Accordingly, the trial court erred as a matter of law by denying judgment of acquittal on Count XI.

We affirm appellant’s remaining convictions and sentences without comment.

Affirmed in part, reversed in part, and remanded.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: SALTER, J.

text:
    EVENTYS MARKETING AND PRODUCTS, INC., Appellant, v. COMCAST SPOTLIGHT, INC., Appellee.
    No. 3D09-1794.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.

      Gonzalo Dorta and Jonathan Kaskel; John Arrastia, Jr., Miami, for appellant.
    White & Case, and Jaime A. Bianchi and David P. Draigh, Miami, for appellee.
    Before WELLS, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

This case is before us again after the appellant (Eventys) sought to amend its lawsuit in circuit court — and also to demand arbitration — seeking in each forum to assert class action claims under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201 — .213, Florida Statutes (2008). Eventys appeals the circuit court’s denial of its motion to allow Eventys to proceed with its class action claims in that court or, alternatively, to assert the class claims in arbitration. We affirm the trial court’s ruling that Ev-entys must submit its claims to arbitration (and the trial court’s refusal to direct the parties to submit the enforceability of the waiver provision or the class action claims themselves to the arbitrators for determination), but we reverse that portion of the order limiting Eventys to the arbitration of the “individual claims as asserted in the original complaint.”

Comcast I and the “Terms and Conditions”

The agreement and mutual course of conduct we enforced in Comcast I related to Comcast’s printed “terms and conditions” for the placement of Eventys’s advertisements on cable television programs. Those terms included an agreement to arbitrate disputes, a limitation of available remedies, and a waiver of any right to bring “claims to be arbitrated on a class action or consolidated basis.”

Two weeks after oral argument here in Comcast I, and only days before the issuance of our opinion compelling arbitration, Eventys moved to amend its circuit court single-plaintiff breach of contract claim to add the class action claims under FDUT-PA. Eventys then filed in the circuit court a “Motion to Declare Unconscionable the Class Relief Contractual Prohibition,” seeking in effect a declaratory judgment that the purported waiver of the right of a Comcast customer to participate in a class action was unconscionable and otherwise void because the waiver allegedly frustrated the remedial purposes of FDUTPA. Eventys later filed a “Motion to Determine Class Action Arbitrable,” and it is the denial of that motion that gave rise to this appeal.

Eventys’s attempt to demand a class action in arbitration before the American Arbitration Association (AAA) was rebuffed by that organization because “the arbitration clause calls for the rules of the American Arbitration Association but specifically excludes administration by the Association.” The AAA offered to administer the claims “if all parties consent” or a court enters an order “directing that the matter be filed with the AAA.” The parties did not reach agreement on the filing or administration of Eventys’s demand for class arbitration, however, because Com-cast asserted that Eventys had waived (in the printed terms and conditions) any right to maintain a class action.

AAA’s supplemental rules on class action claims in arbitration also specified that it would not accept for administration a demand for class arbitration “where the underlying agreement prohibits class claims ... unless an order of a court directs the parties to the underlying dispute to submit [that issue] to an arbitrator or the Association.” Eventys sought such a circuit court ruling on its right to prosecute the circuit court action or the arbitration as a class action.

The circuit court’s order denying Eventys’s motion to determine class action arbitrability included these two rulings: “(1) based on the Mandate [in Comcast I ], [Eventys] cannot amend to assert class action claim, and (2) [Eventys] must arbitrate individual claims as asserted in original complaint.” The first of the two rulings is correct insofar as it relates to the circuit court action; Comcast I held that Eventys’s claims must be arbitrated (so that any claims regarding Eventys’s transactions with Comcast must be presented to the arbitrators rather than the circuit court). The second ruling, however, goes too far. It is true that the AAA indicated an intention to reject a class arbitration claim in the absence of a court order directing the parties to consider that claim. But the AAA’s commercial rules allow parties to seek amendments to a claimant’s demand, and there is no reason apparent in this record to preclude Eventys from seeking arbitration of its individual FDUT-PA claim together with its original breach of contract claim. This Court and other Florida courts have repeatedly held that FDUTPA claims can be submitted to arbitration. See Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1133 (Fla. 3d DCA 2006), and the cases cited there. In short, in Comcast I we compelled arbitration of Eventys’s original contract claim, but we did not in any way limit Eventys’s ability to pursue additional individual claims in that forum.

Eventys’s Current Claims of Uncon-scionability and Unenforceability

Eventys’s primary claim in this appeal is that the circuit court should have authorized Eventys to prosecute its amended class action FDUTPA claims in at least one of the two available forums. By directing that the class action claims be submitted by the parties to the arbitrators, Eventys argues, the circuit court could have assured that both parties would have an opportunity to make their arguments to that forum. Alternatively, Eventys maintains, the circuit court should have considered and expressly ruled upon Eventys’s arguments that the provision purporting to waive class action claims was unconscionable and unenforceable. Eventys further argues that, because the “terms and conditions” did not include a severability provision, the circuit court’s necessary determination that FDUTPA’s remedial purposes are frustrated by the class action waiver provision would then invalidate the entire arbitration provision. For this argument, Eventys relies principally on the analysis in S.D.S. Autos, Inc. v. Chrzanowski, 976 So.2d 600, 611 (Fla. 1st DCA 2007) (holding that contractual provisions in an arbitration agreement purporting to prohibit consumers from prosecuting class actions for small sums of money per consumer, but for a substantial number of consumers, “are irreconcilably at odds with the remedial purposes of FDUTPA, contrary to the public policy of this state, and unenforceable for that reason”), and a group of federal cases holding that the validity of a class action waiver provision should be adjudicated by the court, not the arbitrators.

Comcast counters that the issue of arbi-trability should be determined at the threshold of a case, and that artful pleading (the addition of FDUTPA and class action claims) should not afford another bite at that apple. Comcast cites Goldberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 97 CIV 8779, 1998 WL 321446 (S.D.N.Y. June 18, 1998), for that proposition. Goldberg involved an initial ruling compelling arbitration and a subsequent amendment to assert a new theory on a class action basis. The court held:

Plaintiff should not be allowed to avoid this Court’s earlier ruling by recasting this claim of defamation as a class action on the basis of conclusory allegations involving unnamed putative class members. Under the “law of the case” doctrine a court adheres to its own decision at an earlier stage of the litigation unless there are cogent or compelling reasons not to, such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.

1998 WL 321446 at *8.

In this case, Eventys maintains that discovery in the original circuit court action provided additional information supportive of its class action claims. A careful inspection of the proposed amended complaint, however, discloses that the proposed class has only one proposed representative (Eventys) and that the alleged breaches and wrongful acts by Comcast in the original and amended complaints are substantially identical. In addition, a common conclusion of the many cases considering this question is that the assessment of arbitrability — including any challenges to all of the arbitration provisions or a class action waiver provision — is a “gateway” determination that should be resolved at the outset and, presumably, once. We agree.

In this case, Eventys had accepted the “terms and conditions” in its dealings with Comcast and was aware of the arbitration provisions, including the waiver of class action provision. Eventys did not seek in its initial circuit court filing a determination that the ai’bitration requirements (whether in their entirety or simply the class action waiver provisions) were unenforceable on grounds of public policy or unconscionability. Applying the “gateway” analysis to the record here, we conclude that the trial court correctly refused on remand from Comcast I (1) to allow Eventys to challenge arbitrability a second time through its motion to amend and (2) to direct the parties to submit the issues regarding the class action waiver provision (and the class action claims themselves) to the arbitrators.

As noted, however, we reverse and vacate that portion of the order below limiting Eventys in arbitration to the single breach of contract claim asserted in the original circuit court complaint. Eventys may include in its arbitration demand, or amended demand, any additional individual claims it may wish to assert against Com-cast, whether under FDUTPA or otherwise. Comcast "will have the opportunity in that forum to raise any and all defenses to those individual claims. What Eventys may not do in the arbitration case, however, is to challenge the arbitration provisions in the “terms and conditions” themselves.

Affirmed in part, reversed in part, and remanded for further proceedings as set forth in this opinion.

      . In Comcast Spotlight, Inc. v. Eventys Marketing & Products, Inc., 984 So.2d 631 (Fla. 3d DCA 2008) ("Comcast I ”), we held that Even-tys’s breach of contract claim against Com-cast was subject to an arbitration provision. We reversed a circuit court order to the contrary.

      . In an all-caps "LIMITATION OF LIABILITY” provision, Comcast’s liability for any interruption, cancellation, or omission of any advertising to be "cablecast” was limited to a so-called “make good” during a substitute time slot or a pro rata refund of amounts paid by Eventys. The provision also purported to bar "EQUITABLE REMEDIES OR INJUNC-TIVE RELIEF” as well as "PUNITIVE, STATUTORY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS AND GOOD WILL.”

      . Eventys's motions in the circuit court to amend the complaint and for a declaration that the class action waiver provision is unconscionable were not separately heard.

      . This question has been sharply debated over the past few years. Over time the rulings seem to be coalescing into a more orderly body of authority. While the cases cited by Eventys are pertinent, the analysis provided in In re: American Express Merchants’ Litigation, 554 F.3d 300 (2d Cir.2009), is particularly thorough. See also F. Paul Bland, Jr., & Claire Prestel, Challenging Class Action Bans in Mandatory Arbitration Clauses, 10 Cardozo J. Conflict Resol. 369 (2009). Federal cases throughout the United States are pertinent in this instance because the arbitration provisions inevitably evidence a "transaction involving commerce” and are thus subject to the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2009).

      . Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 453, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003); In re: Am. Express Merch. Litig., 554 F.3d at 311, supra note 4.

      . Our determination that Eventys may not challenge the enforceability of the arbitration and class action waiver provisions after unsuccessfully opposing arbitration in Comcast I means that we need not pass upon the appropriate gateway tests in Florida regarding those provisions. Certified questions regarding the enforceability of class action waivers in arbitration agreements were recently posed by the United States Court of Appeals for the Eleventh Circuit to the Florida Supreme Court in Pendergast v. Sprint Nextel Corp., 592 F.3d 1119 (11th Cir. 2010). We agree with the supplemental memoranda provided by the parties contending (though for different reasons) that our analysis in this case should not be affected by, and need not abide, the resolution of those certified questions.


author: SUAREZ, J.

text:
    CATALFUMO CONSTRUCTION, LLC d/b/a Seawood Builders, Appellant, v. Linwood VARELLA, Appellee.
    No. 3D09-1967.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.

      Richard A. Sherman, Sr., and James W. Sherman, Fort Lauderdale; Shendell & Pollock and Nicole Maglio and Gary R. Shendell, Boca Raton, for appellant.
    Robert Garven, Coral Springs; Charles Mancuso, Fort Lauderdale, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Catalfumo Construction, LLC d/b/a Sea-wood Builders (“Catalfumo”), appeals a non-final order in favor of the appellant, Linwood Varella, upon a finding that Ca-talfumo is not entitled to workers’ compensation immunity as a matter of law. We reverse the finding of the trial court upon the holding that Catalfumo is a statutory employer under section 440.11, Florida Statutes (2005), and is therefore entitled to workers’ compensation immunity.

The appellant, Varella, worked for RAMS, a subcontractor of Catalfumo, as an electrician. As he was going home on his bicycle out of the gate on the construction site, he fell over some cement runoff and was injured. Varella brought a workers’ compensation claim against RAMS. RAMS’s carrier denied compensability on grounds that the accident was not within the course and scope of employment. Var-ella then sued Catalfumo, the general contractor, for negligence. Catalfumo moved for summary judgment and contended that it was entitled to statutory immunity and that the claim was barred by the exclusivity of the workers’ compensation statute. The trial judge denied Catalfumo’s motion for summary judgment and held that it was not entitled to workers’ compensation immunity as a matter of law. Catalfumo seeks non-final review of the trial court’s order denying summary judgment on grounds of workers’ compensation immunity. See Fla. R.App. P. 9.130(a)(3)(C)(v). We find that Catalfumo is entitled to workers’ compensation immunity as a statutory employer and reverse.

On this non-final appeal, our scope of review is limited to the issue of whether the general contractor, Catalfumo, is entitled to workers’ compensation immunity. See Fla. R.App. P. 9.130(a)(3)(C)(v); Ramos v. Univision Holdings, Inc., 655 So.2d 89 (Fla.1995) (holding that district courts should not permit Rule 9.130(a)(3)(C)(v) to be used as a conduit “through which to seek interlocutory appeals of denial of motions for summary judgment on grounds other than workers’ compensation immunity”). We find that Catalfumo is a statutory employer as defined in section 440.11, Florida Statutes (2005), and, as such, is obligated to provide workers’ compensation insurance when the subcontractor does not. As a consequence of subcontractor RAMS’s denial of Varella’s claim, Ca-talfumo is required to provide workers’ compensation for its employee. Because Catalfumo has the duty to provide coverage in the absence of coverage by the subcontractor, Catalfumo is protected from suits-at-law such as this negligence cause of action. E.g., Eller v. Shova, 630 So.2d 537 (Fla.1993). The trial court’s finding of no workers’ compensation immunity as a matter of law is reversed.

We remand to the trial court to allow Varella to assert his claim for benefits against Catalfumo and for the purpose of allowing Catalfumo to raise any defenses it may have, if applicable.,

Reversed and remanded with directions.

      . See Ramos v. Univision Holdings, Inc., 655 So.2d 89, 91 (Fla. 1995).

      . On remand, Varella may argue that Catalfu-mo is estopped from asserting that the accident did not occur in the course and scope of Varella's employment or from asserting the coming and going rule since either of those positions would be opposite from the one it is taking now where it claims the benefit of workers' compensation immunity. See Coastal Masonry, Inc. v. Gutierrez, -So.3d-, 2010 WL 445729 (Fla. 3d DCA 2010); Schroeder v. Peoplease Corp., 18 So.3d 1165 (Fla. 1st DCA 2009) (citing Byerley v. Citrus Publ’g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999)).


author: LAGOA, Judge.

text:
    Debra Sinkle KOLSKY, et al., Appellants, v. JACKSON SQUARE, LLC, Appellee.
    No. 3D09-605.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.

      Polenberg Cooper and Jon Polenberg and Jude C. Cooper, Ft. Lauderdale; Cole Scott & Kissane and Brandon Waas, for appellants.
    Phillips, Cantor, Berlowitz & Shalek, and Gary S. Phillips and Edward J. Pfis-ter, Hollywood, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   LAGOA, Judge.

The appellants, five of eight defendants in the suit below, appeal from the trial court’s order denying their motion to compel arbitration and motion to dismiss for improper venue. For the following reasons, we reverse that portion of the order denying the appellants’ motion to compel arbitration. We affirm, however, that portion of the order denying the motion to dismiss for improper venue without further discussion.

I. FACTUAL AND PROCEDURAL HISTORY

This case concerns one of what appears to be multiple disputes among parties to a development project in Miami known as the Wagner Square Project (“Wagner Square”). The developers of the project are Wagner Square, LLC (“Wagner”), Wagner Square I, LLC (“Wagner I”), and KMT Enterprises, LLC (“KMT”). KMT, which was previously known as Seybold Pointe Management, LLC, was formed by the appellant Debra Sinkle Kolsky (“D. Kolsky”) and others in 2003. Since 2005, KMT has been the manager of both Wagner and Wagner I (collectively, the “Wagner companies”).

The members of KMT are the appellee, Jackson Square, LLC (“Jackson Square”), and D. Kolsky. KMT’s managers are D. Kolsky and Joey Edelsberg (“Edelsberg”), a member of Jackson Square. The members of Wagner are Jackson Square and appellant Redevco Civic Center, LLC (“Redevco”), of which D. Kolsky is an officer and the manager. Additionally, Jackson Square is a member of Wagner I along with appellant the Debra Sinkle Kolsky Trust, Dated January 4, 2000 (the “DSK Trust”). In 2007, Jackson Square purchased its interests in KMT and the Wagner companies.

In 2003, Wagner and Wagner I entered into a contract with appellant Platinum Property Management, Inc. (“Platinum”), giving Platinum the authority to act as leasing broker and property manager for the commercial use project phases of Wagner Square. The owners and officers of Platinum are D. Kolsky and appellant Allan Kolsky (“A. Kolsky”).

KMT operates pursuant to the Amended and Restated Operating Agreement of KMT Enterprises, LLC (the “KMT agreement”), which states that disputes between the members are subject to arbitration:

In the event any disputes arise between the Members or in the event that the Members cannot unanimously agree on any decisions for which unanimity is required under the terms of this Operating Agreement, all parties to this Operating Agreement agree that all such disputes will be referred to binding arbitration pursuant to the Florida Arbitration Act....

The parties had a number of disputes concerning Wagner Square. On October 21, 2008, Redevco and D. Kolsky filed a demand for arbitration against Jackson Square pursuant to the KMT agreement in order to resolve “all disputes.”

Jackson Square subsequently filed a complaint against D. Kolsky, the DSK Trust, A. Kolsky, Redevco, Platinum, Wagner, Wagner I, and KMT. The process by which Jackson Square became a member of KMT and the Wagner companies forms the basis of the factual allegations in Jackson Square’s complaint. The complaint alleges that in 2007, in order to obtain an infusion of much needed cash into the project, the Kolskys, “for themselves and on behalf of Redevco, the Kol-sky Trust, the Wagner Companies and KMT, represented to Jackson Square that Jackson Square would be 50/50 partners in all aspects of the Wagner Companies and share fully and equally in all monies generated from” Wagner Square. As a result, Jackson Square purchased a 49.16% interest in the Wagner companies, and a 33.3% interest in .KMT. In general, the gist of Jackson Square’s complaint is that the Kolskys, on behalf of all of the defendants, have failed to treat Jackson Square as an equal partner in the Wagner Square project in violation of the parties’ oral agreement. The complaint also alleges that they conspired to withhold the fact of the Wagner companies’ contract with Platinum from Jackson Square prior to its becoming a member of the Wagner companies and KMT. In response, D. Kolsky, A. Kolsky, Redevco, the DSK Trust, and Platinum, moved to compel arbitration, arguing that Jackson Square’s claims relate to KMT’s management of the Wagner companies and therefore fall within the scope of the arbitration clause in the KMT agreement. The appellants also argue that by alleging concerted conduct among the signatory and non-signatories to the KMT agreement, Jackson Square is estopped to avoid arbitration of the dispute.

On February 3, 2009, the court entered an order denying the motion to compel arbitration. This appeal follows.

II. ANALYSIS

We review an order denying a motion to compel arbitration de novo. See Roth v. Cohen, 941 So.2d 496 (Fla. 3d DCA 2006); Murphy v. Courtesy Ford, LLC, 944 So.2d 1131 (Fla. 3d DCA 2006); accord Briceño v. Sprint Spectrum, L.P., 911 So.2d 176 (Fla. 3d DCA 2005).

The appellants contend that the trial court erred in denying the motion to compel arbitration. First, the appellants argue that the claims against D. Kolsky are covered by the arbitration clause, and therefore, D. Kolsky, as a signatory to the KMT agreement, may compel Jackson Square, as the other signatory, to arbitration. Second, the appellants assert that the non-signatories to the KMT agreement — that is, A. Kolsky, Redevco, the DSK Trust, and Platinum — may invoke the clause against Jackson Square based on the doctrine of equitable estoppel.

Jackson Square responds that the KMT agreement is not at issue in this case; instead, the Wagner and Wagner I operating agreements, which do not contain arbitration clauses, control. Because the Wagner and Wagner I operating agreements each contain provisions limiting the powers of its manager, Jackson Square claims that there is no nexus between the claims at issue and the KMT agreement. Additionally, Jackson Square claims that the non-signatories cannot compel arbitration.

“Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citation omitted). See also Xerox Corp. v. Smartech Document Mgmt., Inc., 979 So.2d 957 (Fla. 3d DCA 2007); Roth, 941 So.2d at 499. As we explained in Roth, “not every dispute that arises between contracting parties will be subject to arbitration, nor is the mere fact that a dispute would not have arisen but for the contract sufficient to compel arbitration of the dispute.” 941 So.2d at 499. In order for a claim to be submitted to arbitration, “it must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself’ and there must be some nexus between the claim and the contract containing the arbitration clause. Seifert, 750 So.2d at 638. All questions concerning the scope of an arbitration clause should be resolved in favor of arbitration. Zager Plumbing, Inc. v. JPI Nat'l Constr., Inc., 785 So.2d 660 (Fla. 3d DCA 2001).

Additionally, when an arbitrable issue exists, a non-signatory may compel a signatory to arbitration based on the doctrine of equitable estoppel. Application of the doctrine of equitable estoppel is warranted when the signatory to the contract containing the arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the non-signatory and one or more of the signatories to the contract. MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999) (concluding that where plaintiff signatory claimed that non-signatory and signatory defendants colluded to defraud her in connection with the purchase of a service contract and to excessively charge her, the claims were based on the same facts and were inherently inseparable such that equitable estoppel applied to compel arbitration); accord Armas v. Prudential Secs., Inc., 842 So.2d 210, 212 (Fla. 3d DCA 2003) (finding that where signatory’s claims against non-signatory “arise out of the same factual allegations of concerted conduct by both the non-signatory ... and the signatories ... equitable estoppel is warranted”). See also Becker v. Davis, 491 F.3d 1292 (11th Cir.2007); McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342 (11th Cir.1984); Xerox Corp., 979 So.2d at 957.

Based upon our review of the relevant documents, we find that there is a sufficient nexus between Jackson Square’s claims against D. Kolsky and the KMT agreement such that the arbitration clause applies and is enforceable between the parties. Here, the KMT agreement provides that “[i]n the event any disputes arise between the Members ... all parties to this Operating Agreement agree that all such disputes will be referred to binding arbitration.... ” This provision includes Jackson Square’s claims against D. Kolsky. Jackson Square claims that the Kolskys, on behalf of themselves and all of the defendants, engaged in a fraud to prevent it from receiving an equal share of the profits from Wagner Square by concealing the Platinum contract, which it claims funnels millions of dollars in profits to the Kolskys. All counts against D. Kolsky relate to the alleged fraud concerning the Platinum contract — either as to the concealment of its existence, or, because the profits to the Wagner companies from the contract are not being shared equally. A review of the Wagner and Wagner I operating agreements reveal that those companies operate through their manager, KMT. Thus, this issue of the Platinum contract would be a matter for KMT, as the manager of the Wagner companies.

In other words, this dispute between the KMT members, D. Kolsky and Jackson Square, concerning how to manage the Wagner companies, falls within the scope of the arbitration clause in the KMT agreement. Each count against D. Kolsky arises out of or is related to the parties’ relationship as manager of the Wagner companies under the KMT agreement. D. Kolsky may therefore compel arbitration for the claims alleged against her in the complaint.

Moreover, although the other appellants are non-signatories to the KMT agreement, they may also compel Jackson Square to arbitration. Jackson Square’s complaint alleges a conspiracy among the signatory appellant, D. Kolsky, and the non-signatory appellants:

31. Even though it appeared that Jackson would be treated as an equal partner, Jackson soon learned that the Defendants had no intention of treating Jackson as a true 50/50 partner, and had in fact conspired to defraud Jackson out of an equal share of the monies from the project by withholding vital information from Jackson prior to the execution of the March 13, 2007 transactions.
31. Specifically, the Kolskys, acting for themselves and the Defendants withheld from Jackson the fact that in 2003, Wagner had entered into an Exclusive Management and Leasing Agreement with Platinum (“Exclusive Least Agreement”) ... for the exclusive lease rights for the commercial building space in the development Project.
⅝ ⅜ ⅜ ⅜
32. This fraud was perpetrated by all of the Defendants, but orchestrated by the Kolskys.

It is clear that Jackson Square has raised “allegations of ... substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” MS Dealer, 177 F.3d at 947. Each of Jackson Square’s claims against the non-signatory appellants arise out of the same allegations of concerted conduct among the non-signatory appellants and D. Kolsky, are based on the same facts, and are inherently inseparable. Accordingly, equitable estoppel is warranted, and A. Kolsky, Redevco, the DSK Trust, and Platinum may compel arbitration for the claims alleged against them in the complaint.

Because we conclude that the trial court erred in denying the motion to compel arbitration, the order is reversed, and the cause remanded to the trial court with instructions to grant the motion to compel arbitration of all claims alleged against D. Kolsky, A. Kolsky, the DSK Trust, Redev-co, and Platinum.

Affirmed in part; reversed in part with directions.

      . The complaint contained twelve counts: breach of contract against the DSK Trust and Redevco (Count I); breach of duty of good faith and fair dealing against the DSK Trust and Redevco (Count II); fraudulent inducement against the Kolskys, the DSK Trust, Redevco, the Wagner companies, and KMT (Count III); conspiracy to defraud against all defendants (Count IV); breach of fiduciary and statutory duties against D. Kolsky, the DSK Trust, Redevco, the Wagner companies and KMT (Count V); breach of contract against KMT (Count VI); injunctive relief against all defendants (Count VII); declaratory relief against all defendants (Count VIII); unjust enrichment against all defendants (Count IX); accounting against the Wagner companies and KMT (Count X); judicial dissolution and partition against the Wagner companies and KMT (Count XI); and appointment of a receiver against the DSK Trust, Redevco, KMT and the Wagner companies (Count XII).

      . The Wagner companies and KMT did not respond to the complaint and are not parties to this appeal.

      . Sections 6.1 and 6.3 of the Wagner operating agreement and section 6.3 of the Wagner I operating agreement state that the manager is responsible for the general overall supervision of the company's business and affairs and is granted broad powers. Specifically, section 6.5(c) of the Wagner operating agreement and 6.3(h) of the Wagner I operating agreement gives the manager full and exclusive power to enter into any transaction with persons and entities in which a member owns any kind of economic interest.


text:
    David COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-89.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Iglesias v. State, 676 So.2d 75 (Fla. 3d DCA 1996).

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Eyleen CARABALLO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D09-3301.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2010.
    Eyleen Caraballo, pro se, Appellant.
    Geri Atkinson-Hazelton and Louis A. Gutierrez, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Torres v. Florida Unemployment Appeals Comm’n, 983 So.2d 10 (Fla. 3d DCA 2008); Buns Unlimited of Florida, Inc. v. Unemployment Appeals Comm’n, 508 So.2d 786 (Fla. 5th DCA 1987).

CLARK, ROWE, and MARSTILLER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Linda MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3030.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
   ALTENBERND, Judge.

Linda Manning appeals an order denying a motion for extension of time to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss this appeal, holding that the issue must be appealed after the filing and disposition of the postconviction motion.

Our record consists of a letter from Linda Manning “to whom it may concern” and an order treating it as a motion for extension of time to file a postconviction proceeding. Accordingly, we have virtually no information about this case. Ms. Manning claims she is in prison because she was convicted of grand theft and burglary in January 2007. This court does not appear to have any record of a direct appeal from that conviction.

Ms. Manning’s letter asks for extra time to file a motion and help with obtaining duplicate copies of portions of her trial court record. The unsworn letter was delivered in January 2009 within the time authorized for the filing of a postconviction motion under rule 3.850. The letter explains that she was in the hospital in late October 2008 and that her personal property, including her legal file containing a motion for postconviction relief ready for filing, was lost. She attaches a “lost/stolen personal property claim” that she filed with the Department of Corrections in November 2008. That document suggests that DOC acknowledged her loss, at least in part, and provided some replacement property.

The trial court filed this letter in cases CF06-1609 and CF06-2351. It then issued an order in April 2009 that treated the letter as a motion for extension of time “in the interest of judicial economy and fairness.” The order denied the motion for extension of time and informed Ms. Manning that she could appeal the decision within thirty days to this court. She appealed.

We recognize that this court has entertained at least one appeal from a similar order. See Giles v. State, 773 So.2d 1167 (Fla. 2d DCA 2000). In Giles, we affirmed the trial court’s order denying an extension. Id. at 1168. Giles was expressly disapproved by the supreme court in State v. Boyd, 846 So.2d 458, 458-59 (Fla.2003). In Boyd, the supreme court held that an extension for good cause shown is proper in such a postconviction proceeding. Id. at 460.

In Boyd, the defendant did not appeal the order denying his extension. Instead, he filed his postconviction motion as soon as he could and then appealed the order denying that motion, which was based on the theory that the motion was untimely. Id. at 459. We conclude that this procedure is far superior to the procedure we utilized in Giles.

As a technical matter, there has been no postconviction proceeding filed in the trial court in this case. It is difficult to have a final appealable order when there has been no proceeding. From a practical perspective, neither the trial court nor this court has any information about the ground or grounds that Ms. Manning wishes to pursue in her motion. In Boyd, the supreme court held that the trial court could not summarily deny the motion for extension without considering the grounds for the extension. Id. at 460. This could easily require an evidentiary predicate and is not the type of issue that a trial court should be expected to decide merely on the content of a letter from a prisoner. In many cases, it may be easier to resolve the motion on the merits than on the issue of timeliness.

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

In dismissing this appeal, we observe that Ms. Manning has delayed filing her postconviction motion during the last year because she was awaiting the outcome of her motion to extend time and then was following the trial court’s advice to appeal the order. This period should not be considered in evaluating whether she has shown good cause for an extension in any postconviction motion that she files in the trial court during the sixty-day period following our issuance of this dismissal.

Dismissed.

SILBERMAN and VILLANTI, JJ„ concur.


author: MORRIS, Judge.

text:
    Christopher W. MUNROE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4222.
    District Court of Appeal of Florida, Second District.
    March 3, 2010.

      Christopher W. Munroe, pro se.
   MORRIS, Judge.

Christopher W. Munroe appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which raised one claim of ineffective assistance of counsel. We reverse and remand for an evi-dentiary hearing to determine whether Munroe’s counsel failed to advise him of a viable defense and, if so, whether Munroe would have gone to trial if he had been informed of the defense.

On August 28, 2008, Munroe pleaded no contest to failure to register as a sexual offender in the Sixth Judicial Circuit, Pas-co County. See § 943.0435(9), Fla. Stat. (2007). He was designated a sexual offender because he had been convicted of false imprisonment in the Seventeenth Judicial Circuit, Broward County. See § 787.02, Fla. Stat. (2000); § 943.0435(l)(a)(l)(a)(I), Fla. Stat. (2007). He was sentenced to three years in prison for failure to register.

To show ineffective assistance of counsel, a defendant must satisfy both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) that counsel’s performance was deficient and (2) that counsel’s deficient performance prejudiced the result of the proceeding. The first prong requires a showing that counsel made errors so serious that his performance fell below an objective standard of reasonableness. Id. at 688,104 S.Ct. 2052. In the context of a plea, the second prong requires a showing that there is “a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In determining the credibility of the defendant’s claim that he would have insisted on going to trial, the court should consider

“the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.”

Lawrence v. State, 969 So.2d 294, 307 (Fla. 2007) (quoting Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla.2004)).

Munroe claims that his counsel was ineffective for incorrectly advising him that he had no defense to his sexual offender designation and that the designation automatically flowed from his prior false imprisonment conviction. He claims that the false imprisonment offense had no sexual component and that he was not designated a sexual offender in Broward County. He maintains that but for counsel’s misadvice that these factors were irrelevant to his sex offender status, he would not have entered his plea. The postconviction court incorrectly denied Munroe’s claim, finding that Munroe could only challenge his sexual offender designation in Broward County and that his false imprisonment conviction qualified him as a sexual offender regardless of whether there was a sexual component to the crime.

To convict a defendant of failure to register as a sexual offender, the State must prove beyond a reasonable doubt that the defendant is a sexual offender unless the defendant stipulates that he or she is a sexual offender. In re Standard Jury Instructions in Criminal Cases—Report No. 2007-4, 983 So.2d 531 app. at 533 (Fla.2008). Florida’s sexual offender registration statute provides several ways to prove sexual offender status, one of which is proof of a prior conviction under a cross-referenced statutory section:

943.0435 Sexual offenders required to register with the department; penalty.—
(1) As used in this section, the term:
(a)l. “Sexual offender” means a person who meets the criteria in sub-sub-paragraph a., sub-subparagraph b., sub-subparagraph e., or sub-subparagraph d., as follows:
a.(I) Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent or guardian; s. 794.011, excluding s. 794.011(10); s. 794.05; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(4); s. 847.0137; s. 847.0138; s. 847.0145; or s. 985.701(1); or any similar offense committed in this state which has been re-designated from a former statute number to one of those listed in this sub-sub-subparagraph ....

§ 943.0435(l)(a)(l)(a)(I). However, where the sexual offender designation is based on a conviction for a crime that does not necessarily include a sexual component, such as false imprisonment, the State must also prove that there was a sexual component to the crime. Cf. State v. Robinson, 873 So.2d 1205, 1207 (Fla.2004) (holding that the Florida Sexual Predators Act, § 775.21 (Supp.1998), “which requires certain defendants to register as sexual predators ..., is unconstitutional as applied to a defendant whose crime indisputably did not contain a sexual element”); see Raines v. State, 805 So.2d 999, 1003 (Fla. 4th DCA 2001) (holding that section 943.0435 violates equal protection where it includes “offenderfs] convicted of false imprisonment in the definition of ‘sexual offender,’ without a concomitant sexual component”). The record on appeal does not refute Mun-roe’s allegations that there was no sexual component to his false imprisonment conviction and that he was not designated a sexual offender by the Broward court.

If counsel failed to advise Munroe of a potentially viable defense based on the lack of a sexual component to his false imprisonment offense, counsel’s performance may have been deficient. See Grosvenor, 874 So.2d at 1181; West v. State, 915 So.2d 257, 258 (Fla. 5th DCA 2005). Additionally, Munroe’s claim of prejudice — that he would have proceeded to trial — is credible if he can demonstrate that the defense was viable. See Grosvenor, 874 So.2d at 1181; West, 915 So.2d at 258. Accordingly, we reverse and remand for an evidentiary hearing to determine whether Munroe’s counsel failed to advise him of a viable defense and, if so, whether Munroe would have gone to trial if he had been informed of the defense.

Reversed and remanded for an eviden-tiary hearing.

VILLANTI and WALLACE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    David VERIZZO, Appellant, v. The BANK OF NEW YORK, as Successor Trustee Under Novastar Mortgage Funding Trust, Series 2006-3, Appellee.
    No. 2D08-4647.
    District Court of Appeal of Florida, Second District.
    March 3, 2010.
    David Verizzo, pro se.

      Patricia A. Arango of Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for Appellee.
   SILBERMAN, Judge.

David Verizzo, pro se, appeals a final judgment of foreclosure entered after the trial court granted the motion for summary judgment filed by the Bank of New York, as successor trustee under Novastar Mortgage Funding Trust, Series 2006-3 (the Bank). Because the Bank’s summary judgment evidence was not timely served and filed and because a genuine issue of material fact remains, we reverse and remand for further proceedings.

The Bank filed a two-count complaint against Verizzo seeking to reestablish a lost promissory note and to foreclose a mortgage on real property. Included in the attachments to the complaint was a copy of the mortgage. The mortgage indicated that the lender was Novastar Mortgage, Inc., a Virginia corporation (Novastar), and that the mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), acting as a nominee for Novastar. The attachments to the complaint did not include copies of the note or any assignment of the note and mortgage to the Bank. Verizzo filed a motion for enlargement of time to respond to the complaint. The Bank agreed to the entry of an order allowing Verizzo to file a response within 20 days from the date of entry of the order.

On August 5, 2008, before Verizzo had responded to the complaint, the Bank served its motion for summary final judgment of foreclosure. The summary judgment hearing was scheduled for August 29, 2008. On August 18, 2008, the Bank served by mail a notice of filing the original promissory note, the original recorded mortgage, and the original recorded assignment of mortgage. The assignment reflects that MERS assigned the note and mortgage to the Bank of New York. However, the note bears an endorsement, without recourse, signed by Novastar stating, “Pay to the Order of: JPMorgan Chase Bank, as Trustee.”

On the date of the summary judgment hearing, Verizzo filed a memorandum in opposition to the Bank’s motion. He argued, among other things, that his response to the complaint was not yet due in accordance with the agreement for enlargement of time, that the Bank did not timely file the documents on which it relied in support of its motion for summary judgment, and that the documents were insufficient to establish that the Bank was the owner and holder of the note and mortgage.

On August 29, 2008, the trial court granted the motion for summary judgment and entered a final judgment of foreclosure. We review the summary judgment by a de novo standard. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A mov-ant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). If a plaintiff files a motion for summary judgment before the defendant answers the complaint, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact.” E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So.2d 763, 764 (Fla. 2d DCA 1987).

Rule 1.510(c) requires that the movant “serve the motion at least 20 days before the time fixed for the hearing[ ] and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court.” Further, cases have interpreted the rule to require that the movant also file the motion and documents with the court at least twenty days before the hearing on the motion. See Mack v. Commercial Indus. Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989); Marlar v. Quincy State Bank, 463 So.2d 1233, 1233 (Fla. 1st DCA 1985); Coastal Caribbean Corp. v. Rawlings, 361 So.2d 719, 721 (Fla. 4th DCA 1978). The promissory note and assignment constituted a portion of the evidence that the Bank relied on in support of its motion for summary judgment, and it is undisputed that the Bank did not attach those documents to the complaint or serve them at least twenty days before the hearing date. In fact, although the Bank’s notice of filing bears a certificate of service indicating that the notice was served on August 18, 2008, the notice and the documents were not actually filed with the court until August 29, 2008, the day of the summary judgment hearing.

In addition to the procedural error of the late service and filing of the summary judgment evidence, those documents reflect that at least one genuine issue of material fact exists. The promissory note shows that Novastar endorsed the note to “JPMorgan Chase Bank, as Trustee.” Nothing in the record reflects assignment or endorsement of the note by JPMorgan Chase Bank to the Bank of New York or MERS. Thus, there is a genuine issue of material fact as to whether the Bank of New York owns and holds the note and has standing to foreclose the mortgage. See Mortgage Electronic Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007) (recognizing that the owner and holder of a note and mortgage has standing to proceed with a mortgage foreclosure action); Philogene v. ABN Amro Mortgage Group, Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006) (determining that the plaintiff “had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question”).

Therefore, based on the late service and filing of the summary judgment evidence and the existence of a genuine issue of material fact, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

WHATLEY and MORRIS, JJ., Concur.


text:
    L.T., the mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Respondents.
    No. 3D10-548.
    District Court of Appeal of Florida, Third District.
    March 4, 2010.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, and Kevin Coyle Colbert, for petitioner.
    Karla Perkins; Hillary S. Kambour, for respondents.

      Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

CONCESSION OF ERROR

Upon the DCF’s appropriate concession of error in the trial court’s sua sponte order placing the minor child, R.O., in shelter care without proper notice to the petitioner mother, contrary to both the due process requirements of § 39.402(8)(b)(c) Fla. Stat. (2010) and a specific previous order which denied that relief, the order under review is quashed and the child is ordered returned to the mother’s custody forthwith.

Certiorari granted.

      . Unfortunately, its attorney took the opposite position in the court below.


author: FULMER, CAROLYN K., Senior Judge.

text:
    Patrick REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1261.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.
    Patrick Reynolds, pro se.
   FULMER, CAROLYN K., Senior Judge.

Patrick Reynolds appeals the dismissal of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the postconviction court to address the claims on the merits.

Reynolds alleged that he was sentenced to fifteen years in prison followed by five years’ probation in 1997. In 2001, after remand from this court, see Reynolds v. State, 784 So.2d 1237 (Fla. 2d DCA 2001), he was resentenced to serve fifteen years in prison followed by five years’ probation for counts one, two, and three and five years in prison concurrent with no probation for counts four and five. After he was released from prison, the court revoked his probation for counts one, two, and three, and in May 2006, he was sentenced to five years in prison (apparently on each count), with the prison sentence suspended, to be served as one year in jail, followed by four years of probation.

After Reynolds’ release from jail, his probation was again revoked, and in January 2007, he was sentenced to three years in prison on counts one, two, three, four, and five, with credit for ninety-two days in jail.

In November 2007, Reynolds filed a motion for credit for time served in which he sought credit for the prior prison time served. This was denied, and an appeal from the denial was pending when the postconviction court addressed the instant motion. The first issue raised in the instant motion to correct illegal sentence is that the trial court lacked jurisdiction in January 2007 to impose the prison sentences for counts four and five because Reynolds was not on probation for those counts. The postconvietion court dismissed this claim without prejudice for it to be refiled within thirty days in a sworn rule 3.850 motion. We reverse this ruling because rule 8.800(a) is the appropriate vehicle for Reynolds’ challenge to the sentencing court’s jurisdiction. See Sepulveda v. State, 909 So.2d 568, 571 (Fla. 2d DCA 2005) (“Sepulveda’s allegations that he was convicted and sentenced based on a violation of probation when the term of his probation had expired state a facially sufficient claim of an illegal sentence under rule 3.800(a).”); Slingbaum v. State, 751 So.2d 89, 89-90 (Fla. 2d DCA 1999) (holding that “where it can be determined without an evidentiary hearing that a sentence has been imposed by a court without jurisdiction, that sentence is illegal, whatever its length”). The postconviction court’s records should reflect whether Reynolds was sentenced to five years concurrent with no probation for counts four and five in 2001, as he claims.

Reynolds’ second issue is that he was denied credit for his previously served jail time. He claims he was entitled to 650 days but was awarded only 92 days. The postconviction court concluded that this issue was previously raised and was the same issue as that then pending on appeal in case number 2D08^078.

The postconviction court’s exhibit attached to its order shows that the issue in the prior motion concerned credit for prior prison time served, not jail time. The postconviction court erred in dismissing this claim because the issue raised in the instant motion is unrelated to the issue raised in the earlier motion.

In Latulip v. State, 884 So.2d 254 (Fla. 2d DCA 2004), this court reversed the dismissal of a motion for jail credit filed pursuant to rule 3.800(a) under circumstances similar to this case.

In [the earlier appeal], LaTulip sought prison credit and claimed that “the sentencing judge failed to complete his responsibility when he did not place a check in the appropriate box on judgment and sentence indicating that defendant who was sentenced after probation was revoked was entited [sic] to prison credit for time previously served.” In this case, LaTulip’s motion sought jail credit for time served in connection with his various violations of probation. Because the issue raised in this motion is unrelated to the issue raised in the earlier motion, the trial court had jurisdiction to rule on the merits of this motion. Accordingly, we reverse and remand with instructions that the trial court address the merits of LaTulip’s motion.

884 So.2d at 254. Cf. Davis v. State, 20 So.3d 1024 (Fla. 4th DCA 2009) (holding that the postconviction court lacked jurisdiction to rule on motion to correct illegal sentence due to the pendency of an appeal from a prior rule 3.800(a) motion where the two motions were related).

Reversed and remanded with instructions.

NORTHCUTT and CRENSHAW, JJ„ Concur.


text:
    Alexander JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1715.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Alexander Jones appeals his judgments and sentences. We affirm the judgments but remand for resentencing. The trial court’s attempt at a streamlined procedure to resolve a scoresheet dispute was well-intended, but unfortunately it failed in its implementation.

Mr. Jones was charged with possession of cocaine, one count of obstructing an officer with violence, and two counts of battery on a law enforcement officer for events that occurred in April 2008. He entered a written negotiated plea in March 2009. Although the written plea indicates that he agreed to a sentence of 36.45 months’ imprisonment, from the record it is undisputed that he was actually agreeing to a sentence at the bottom of the guidelines.

Mr. Jones’s scoresheet included eighteen points for two prior convictions for aggravated assault. These convictions were based on information received from Palm Beach County. When Mr. Jones appeared for the plea hearing on March 16, 2009, he objected to the scoresheet, claiming that he had only one prior conviction for aggravated assault emanating from Palm Beach County. This discrepancy would remove nine points from the scoresheet. Obviously, Mr. Jones has a common name.

The trial court immediately turned to the State and correctly required that it prove the second aggravated assault conviction by obtaining a certified copy of the conviction. The court finished the plea colloquy, but it delayed sentencing to allow the State to attempt to obtain a certified copy of the conviction.

The case returned to court on March 19, 2009. The State had been unable to obtain records from Palm Beach County, and the court continued the hearing until March 30. On that day, the State still had not received the records. Accordingly, the court informed the State that it had sixty days to get the records. The court explained that it intended to sentence Mr. Jones to the bottom of the guidelines as it appeared on the existing scoresheet, but if the State did not obtain the certified copy of the judgment, the court was going to “mitigate the sentence” to a sentence equal to the bottom of the guidelines on a score-sheet with a nine point reduction. The court proceeded with sentencing, concluding with the statement: “The State has 60 days from today’s date to prove that there is, in fact, two as opposed to one. If not, I will mitigate the sentence based upon your motion, which would be timely filed. Does he waive his appearance here for a reduction?”

Although Mr. Jones’s attorney could have objected to this procedure because it was shifting the burden from the State to the defendant, that objection was not made. As Mr. Jones’s attorney was trying to explain this procedure and determine whether his client would waive appearance, however, he realized that his client only had thirty days to file an appeal and that a motion to mitigate under Florida Rule of Criminal Procedure 3.800(c) did not stay the time for appeal. See Fla. RApp. P. 9.020(h). After some more discussion, the trial court resolved this problem as follows: “Then you got 30 days. I’ll rule within 30 days. If they don’t have it within 29 days from today’s date, I’ll rule on it. You better calendar it.”

On April 8, 2009, Mr. Jones’s attorney filed a notice of appeal, which deprived the trial court of jurisdiction. This court does not know what, if any, records the State received during the thirty-day period.

Although the trial court’s solution probably seemed creative at the time, it presented its own set of problems. Not only was it difficult for the defendant to time his appeal in response to this procedure that reversed the burden of going forward, but it left the defendant in the posture of having to trust the trial court to fulfill this promise with no recourse if the trial judge welched on the deal. A motion to mitigate under rule 3.800(c) is discretionary with the trial court and the resulting order is not appealable. Walters v. State, 994 So.2d 1230 (Fla. 2d DCA 2008). Although we are entirely confident that this trial judge would have honored his promise, Mr. Jones’s decision to appeal during the allotted thirty days was only prudent.

Because the court did not require the State to prove the contested conviction before relying upon it to sentence Mr. Jones, we reverse and remand the sentence for resentencing within sixty days of mandate. If the State does not prove the existence of the contested conviction at the scheduled sentencing hearing, the trial court shall sentence Mr. Jones to the bottom of the guidelines on a scoresheet that does not include the contested conviction.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J., and CASE, JAMES R., Associate Senior Judge, Concur.


author: DAVIS, Judge.

text:
    In re COMMITMENT OF Joseph W. FINFROCK. Joseph W. Finfrock, Appellant, v. Florida Civil Commitment Center, and Timothy Budz, Director, Appellees.
    No. 2D09-2683.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.
    Joseph W. Finfrock, pro se.
   DAVIS, Judge.

Joseph W. Finfrock challenges the trial court’s order dismissing his emergency petition for writ of habeas corpus. We reverse.

Finfrock is a detainee of the Florida Civil Commitment Center (FCCC) and is awaiting involuntary civil commitment proceedings pursuant to sections 394.910-.932, Florida Statutes (2009), formerly referred to as the Jimmy Ryce Act. In his Emergency Petition for Writ of Habeas Corpus Relief, he alleged that he “is being illegally detained in F Unit as Punishment” and stated that he was “[s]eeking a hearing before this Court to gain his immediate release from ... his unlawful detention therein.” Finfrock also recounted several bad experiences that he alleges he has endured at the hands of the FCCC staff. Relevant to his petition, he alleged that a staff member, after observing pornography on the computer that Finfrock was using, forcefully removed his zip drive from the computer. According to Fin-frock, he grabbed the zip drive from the staff member’s hand in order to check whether it had been damaged, when security personnel forcefully removed him from the computer lab and told him to stop resisting even though he was not resisting. Finfrock further alleged in his petition that during the episode his face was pushed into a wall by security personnel and that he ultimately was placed in confinement as a punishment for this episode.

The trial court dismissed Finfrock’s petition without hearing, stating that it was “facially insufficient in that [it] did not state a sufficient claim for relief.” We do not agree.

In Kearney v. Barker, 834 So.2d 347, 348 (Fla. 4th DCA 2003), the Fourth District “conclude[d] that the position of pretrial Ryce detainees is most similar to pretrial criminal detainees.” In that case, the appellee had filed a petition for writ of habeas corpus in the circuit court seeking release from his “room restriction” status at the facility where he was being held pending Ryce Act proceedings. The trial court had granted the petition, and the State had appealed. The Fourth District applied the following analysis in affirming the trial court’s granting of the petition:

In Bell v. Wolfish, the United States Supreme Court decided that the standard for unconstitutionality as applied to conditions for criminal pre-trial detainees is whether such conditions or restrictions amount to punishment. 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the court recognized that jail officials have an important interest in maintaining jail security, and that restraints reasonably related to maintaining jail security do not, without more, amount to unconstitutional punishment. Id. at 541.
The Seventh Circuit, likewise, recognized that analysis of such appeals should balance the jail’s interest in security and the detainee’s interest in having as much personal freedom as possible. In Higgs v. Carver, the pre-trial detainee was placed in “lockdown segregation,” a type of solitary confinement, for 34 days without notice and an opportunity to be heard. 286 F.3d 437 (7th Cir. 2002). The court reversed for the trial court to determine if the segregation was punitive, noting, “A pretrial detainee cannot be placed in segregation as a punishment for a disciplinary infraction without notice and an opportunity to be heard; due process requires no less.” Id.
In the instant case, the trial court, as fact finder, implicitly ruled that Barker’s due process rights were violated because the room restriction was a punishment for a disciplinary infraction without proper notice and an opportunity to be heard. Moreover, we acknowledge the trial court’s granting of the writ of habe-as corpus was an implicit finding that room restriction was not a managerial decision to maintain facility security.

834 So.2d at 348-49 (cross-references omitted).

Here, Finfroek alleged in his ha-beas petition below that he had been removed from his regular room at FCCC and was being held in restrictive confinement. He further alleged that such confinement was punishment for the computer lab episode and that it violated his constitutional rights. Pursuant to Kearney, 834 So.2d 347, this amounts to a facially sufficient claim.

As such, the trial court erred in dismissing it. We therefore reverse the trial court’s order dismissing Finfrock’s petition and remand for the trial court to address the petition on its merits.

Reversed and remanded.

WALLACE and MORRIS, JJ., concur.

      . "In Chapter 99-222, Section 1, Laws of Florida, the Legislature removed reference to ‘Jimmy Ryce' in the title of the act.” In re Fla. R. Civ. P. for Involuntary Commitment of Sexually Violent Predators, 13 So.3d 1025, 1025 n. 1 (Fla.2009). We note, however, that the case we rely on in our analysis here references the former title.

      . We note that Finfroek falls short of actually pleading that he has exhausted his administrative remedies below, instead alleging that "the facility is supposed to conduct a hearing on the conduct report within ‘5 working days' and usually don’t [sic] until 12 to 14 days after the incident, if not longer in some cases.” Such failure, however, does not render Finfrock’s petition facially insufficient. See Santana v. Henry, 12 So.3d 843, 847 (Fla. 1st DCA 2009) (reversing dismissal of habeas petition for failure to exhaust administrative remedies and noting that " ‘[w]hen an agency acts without colorable statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief’ " (quoting Dep’t of Envtl. Regulation v. Falls Chase Special Taxing Dist., 424 So.2d 787, 796 (Fla. 1st DCA 1982))).


text:
    STATE of Florida, Appellant, v. K.S., Appellee.
    No. 2D09-2790.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

The State appeals an order granting KS.’s motion to suppress a firearm seized during a search of K.S.’s vehicle and K.S.’s statements to law enforcement relating to his ownership or use of the firearm. Because the circumstances surrounding K.S.’s arrest did not justify a search incident to a lawful arrest, we conclude that the search was unreasonable and that the trial court properly granted the motion to suppress based on Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Accordingly, we affirm.

At the hearing on K.S.’s motion to suppress, an officer of the St. Petersburg Police Department described the events leading to KS.’s arrest for fleeing and eluding on the night of January 13, 2009. The officer testified that at approximately 8:48 p.m., he observed K.S. driving a car without headlights turned on. K.S. pulled up to a red light at an intersection, waited five to ten seconds, and then ran through the red light. The officer followed K.S. down an alley where K.S. pulled into a driveway behind a house. Once K.S. stopped the car, the officer activated his lights and directed his spotlight towards the vehicle. K.S. opened and closed the driver’s side door, reversed the car towards the officer, and then accelerated away from the officer. K.S. drove into a yard at the end of the alley where he stopped the car. The officer pulled up behind the car, directed his spotlight through the car’s back window, and exited his vehicle. He observed K.S. reaching towards the dashboard on the passenger side and ordered K.S. to show his hands and step out of the car. K.S. exited the car, and backup officers arrived. The officer handcuffed K.S., arrested him for fleeing and eluding, and found no weapons on him. The officer then took K.S.’s car keys and used the keys to unlock and open the glove box inside KS.’s car, where he found a semiautomatic firearm. At the suppression hearing, K.S. testified that he did not agree or consent to a search of the car. Relying on Gant, the trial court granted KS.’s motion to suppress. This appeal follows.

This court uses a mixed standard of review in considering a trial court’s ruling on a motion to suppress. The trial court’s “determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review.” State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008) (citation omitted). Warrantless searches are per se unreasonable under the Fourth Amendment, “ 'subject only to a few specifically established and well-delineated exceptions.’ ” Gant, 129 S.Ct. at 1716 (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). “Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Id. Police may search a vehicle incident to a recent occupant’s arrest “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Id. at 1719 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004)). This exception is justified by interests in officer safety and evidence preservation. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (describing the justifications for the search-incident-to-arrest principle).

In Gant, the Supreme Court held that the search of Gant’s vehicle was unreasonable where Gant “clearly was not within reaching distance of his car,” because he was handcuffed in a patrol car at the time of the search. 129 S.Ct. at 1719. The Court also found that police could not reasonably have believed they would find evidence relevant to Gant’s crime of driving with a suspended license. Id. Similarly here, despite the State’s argument that KS.’s “furtive movements towards the glove compartment” justified the search based on officer safety concerns, at the time of the search K.S. was separated from his car, placed in handcuffs, and under the supervision of additional backup officers. Further, the officer could not reasonably have believed he would find evidence of KS.’s crime of fleeing and eluding. Under these circumstances, where K.S. was secured by officers and not within reaching distance of his car, we conclude the officer’s search of KS.’s car was unreasonable. Accordingly, we affirm the trial court’s order granting K.S.’s motion to suppress.

Affirmed.

WALLACE, LaROSE, and CRENSHAW, JJ. Concur.


author: LEVINE, J.

text:
    Anil WALIA, Appellant, v. HODGSON RUSS LLP and Susan Walia, Appellees.
    No. 4D09-457.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      Lisa F. Santos of Lisa F. Santos P.A., Boca Raton, for appellant.
    David A. Riggs of Hodgson Russ LLP, Boca Raton, for appellees.
   LEVINE, J.

The issue presented in this appeal is whether the trial court erred by imposing a charging lien against a party prior to the entry of final judgment in the underlying action. We find the lien was erroneously imposed, and we reverse.

The appellant’s wife filed for dissolution of the couple’s marriage, and appellant retained appellee Hodgson Russ LLP to represent him in the proceeding. Prior to trial, the appellee law firm withdrew from the case and filed notice of a charging lien for $11,439.00 plus interest for services rendered in the case. The trial court held an evidentiary hearing on the lien and issued a final judgment and order establishing a charging lien. The dissolution action was still pending and unresolved at that time.

Appellant moved to vacate the judgment imposing the lien, arguing that the lien was not attached to a final judgment in the dissolution proceeding. The court then amended the final judgment to state that the lien applied only to appellant’s “right, title and interest in and to any and all real and personal property which is before this Court for and on account of this action for dissolution of marriage.” As of the date appellant filed his notice of appeal, the dissolution action remained pending before the trial court.

As this court has stated,

[t]he charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.

Rudd v. Rudd, 960 So.2d 885, 887 (Fla. 4th DCA 2007) (citations and quotations omitted). Property awarded in a dissolution action pursuant to an equitable distribution constitutes a “proceed” to which a charging lien may attach. Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 92 n. 5 (Fla. 3d DCA 1987).

An essential prerequisite to imposition of a charging lien is that the underlying litigation produces a positive judgment or settlement — in other words, some “tangible fruits of the attorney’s service” for the benefit of the client. Robert C. Malt & Co. v. Carpet World Distribs., Inc., 861 So.2d 1285, 1288 (Fla. 4th DCA 2004); Correa v. Christensen, 780 So.2d 220 (Fla. 5th DCA 2001). If the litigation produces no judgment of monetary value for the client, the court may not impose a charging lien for the attorney’s benefit. Pasin v. Kroo, 412 So.2d 43, 44 (Fla. 3d DCA 1982).

In the case at bar, the underlying dissolution action has not reached a final judgment. No property has been distributed to either appellant or the wife. The trial court imposed a charging lien on a prospective judgment that appellant may or may not receive at a future date. Because the underlying dissolution action has not reached a final judgment, imposition of a charging lien was premature.

Accordingly, we reverse the final judgment imposing a charging lien against appellant and remand to the trial court for further proceedings consistent with this opinion.

Reversed.

TAYLOR and GERBER, JJ., concur.


text:
    JEFFREY A. HUNT, D.O., P.A. d/b/a The Vein Center of Tampa Bay, Petitioner, v. Katrina HUPPMAN, Respondent.
    No. 2D09-4684.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.

      Ronald Bush and Angela Cabassa of Bush Graziano & Rice, P.A., Tampa, for Petitioner.
    Matthew S. Mudano of Ogden & Sullivan, P.A., Tampa, for Respondent.
   SILBERMAN, Judge.

Jeffrey A. Hunt, D.O., P.A. d/b/a The Vein Center of Tampa Bay (“Vein Center”) seeks certiorari review of the circuit court’s order denying Vein Center’s motion to dismiss and determining that Katrina Huppman complied with medical negligence presuit notice requirements. Because Huppman did not provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2), Florida Statutes (2007), the circuit court departed from the essential requirements of the law in denying Vein Center’s motion to dismiss. Accordingly, we grant certiorari and quash the circuit court’s order.

Vein Center is the defendant in a pending medical negligence case in which Huppman alleged she sustained injuries when a technician at Vein Center treated her on December 18, 2006. In June 2008, Huppman served her notice of intent to initiate litigation (“NOI”) pursuant to section 766.203(2). In the NOI, Huppman alleged that she was injured after undergoing a treatment known as Lumenis One, which involved the use of intense pulsed light (“IPL”) equipment to improve the appearance of age spots on her body.

Huppman did not serve a corroborating medical expert opinion with the NOI as required by section 766.203 because Hupp-man believed Vein Center, had waived its right to medical corroboration by failing to provide Huppman with medical records. Vein Center served a written denial of the allegations in Huppman’s NOI and a corroborating medical expert opinion. In the written denial, Vein Center asserted that Huppman failed to comply with the presuit notice requirements by failing to attach a medical expert opinion. Vein Center denied that it had failed to provide Huppman with medical records.

Huppman subsequently filed a complaint alleging medical negligence against Vein Center. Vein Center filed a motion to dismiss in which it argued, among other things, that the complaint should be dismissed based on Huppman’s failure to attach a medical expert opinion to the NOI. In response, Huppman maintained that Vein Center waived the medical expert opinion requirement by failing to produce requested medical records. However, Huppman also served Vein Center with the affidavit of Terri Boyert as a corroborating medical expert opinion.

According to Boyert’s curriculum vitae (“CV”), Boyert is a certified medical assistant with training at the Eton Medical Institute in Washington. Boyert has trained doctors, nurses, and other staff members on various types of IPL and laser equipment, including Lumenis IPL equipment, for approximately ten years. Aside from her training at Eton, Boyert’s CV bears the following notation: “Surgical Assistant, TCC College, Tacoma, Washington, 1987.” Boyert’s CV does not reflect that she is licensed to provide health care.

Vein Center subsequently filed a second motion to dismiss in which it argued that Huppman failed to comply with the presuit notice requirements because Boyert was not qualified to render a medical expert opinion under chapter 766. The circuit court entered an order denying Vein Center’s motion to dismiss and determining that Huppman complied with medical negligence presuit notice requirements. The court explained that Boyert trained people on how to use the same Lumenis IPL equipment that was the subject of Hupp-man’s lawsuit. The court concluded that Boyert was “adequately licensed, adequately trained, and comparable, in terms of her substantive knowledge about this area of medicine to render a presuit opinion” and that Boyert met the statutory criteria for a presuit witness under chapter 766.

Vein Center then filed the petition for writ of certiorari that is currently before this court. Vein Center argues that the circuit court departed from the essential requirements of the law in failing to dismiss the complaint based on Huppman’s failure to provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2). Preliminarily, we note that “the courts of this state have uniformly recognized the availability of certiorari review in cases where the pre-suit notice requirements of chapter 766 have not been met.” Oken v. Williams, 23 So.3d 140, 144 (Fla. 1st DCA 2009). We review the sufficiency of the corroborating affidavit in order to comply with our duty to enforce the policy behind the presuit notice requirements. Id. at 145.

Section 766.203(2) requires “[c]orrobora~ tion of reasonable grounds to initiate medical negligence litigation” in the form of “a verified written medical expert opinion from a medical expert as defined in s. 766.202(6).” Section 766.202(6) defines medical expert as “a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.” Section 766.102(5) provides, “A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria.” Subsections (a)-(c) set forth differing criteria for expert witnesses depending upon the status of the person against whom or on whose behalf the testimony is being presented.

Thus, under sections 766.203(2), 766.202(6), and 766.102(5), the written expert opinion that accompanies a claimant’s notice of intent must be rendered by a person who (1) is “duly and regularly engaged in the practice of his or her profession,” (2) has a degree in health care from a college or university, (3) is a licensed health care provider, and (4) satisfies the expert witness requirements set forth in section 766.102(5).

Boyert’s CV does not reflect, nor has Huppman ever asserted, that Boyert has a degree in health care from a college or university. Boyert’s CV contains only these vague references to any college education: “Surgical Assistant, TCC College, Tacoma, Washington, 1987” and training at the Eton Medical Institute. Additionally, Boyert’s CV does not reflect that Boyert is a licensed health care provider, and Hupp-man has conceded that Boyert is not licensed. Because Boyert does not meet these two requirements, she is not qualified to render a medical expert opinion under section 766.203(2) regardless of whether she meets the additional requirements of section 766.102(5).

Although Boyert may be adequately trained regarding the manner and method in which the Lumenis IPL equipment was operated based on her experience training staff on the operation of the machine, we disagree with the circuit court’s conclusion that she meets the statutory criteria of a presuit witness under chapter 766. Chapter 766 expressly requires that the presuit witness have a degree in health care from a college or university and a health care provider license. We cannot ignore the unambiguous plain language of the statute in a way that would expand its express requirements. See Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 7 (Fla.2004).

The legislature has clearly indicated its intent to narrow the class of person who is qualified to give medical expert opinions by amending the statutory scheme in 2003. See Oken, 23 So.3d at 146. Prior to the amendment, a medical expert was defined as “a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and has had special professional training and experience or one possessed of special health care knowledge or skill about the subject upon which he or she is called to testify or provide an opinion.” § 766.202(5), Fla. Stat. (2001) (emphasis added). Thus, prior to the amendment, Boyert would have been qualified to render a presuit medical expert opinion due to her specialized knowledge about the proper operation of the Lumenis IPL equipment. However, the legislature expressly determined that presuit expert witnesses must possess more than specialized knowledge when it amended chapter 766.

As an alternative argument against granting certiorari in this case, Huppman claims that she has cured any defect in her medical expert opinion by submitting a second affidavit by Dr. Wayne Houston. The Vein Center responds that the affidavit was not timely filed within the applicable statute of limitations and, in fact, was filed after the circuit court entered the order that is now before this court. If this affidavit was submitted within the applicable statute of limitations, it may indeed comply with the presuit notice requirements. However, Dr. Houston’s affidavit was not considered by the circuit court, and it would be improper for this court to consider it for the first time on appeal. See Pedroni v. Pedroni, 788 So.2d 1138, 1139 n. 1 (Fla. 5th DCA 2001).

Because Huppman did not provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2), the circuit court departed from the essential requirements of the law in denying Vein Center’s motion to dismiss. We therefore grant certiorari and quash the order on review.

Petition granted, order quashed, and case remanded.

ALTENBERND, J., and FULMER, CAROLYN K, SENIOR JUDGE, Concur.

      . Section 766.203(2) provides as follows:
      (2) Presuit investigation by claimant. — Pri- or to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
      (a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
      (b) Such negligence resulted in injury to the claimant.
      Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

      . The complaint alleged that Vein Center was liable for "[n]egligently hiring, training, supervising, monitoring and retaining staff, including its laser technician, that failed to properly set potentially dangerous and injury-causing equipment at the correct settings to avoid permanent burn injuries to patients, including Huppman.”

      . In response to this second motion to dismiss, Huppman did not reassert her argument that Vein Center had waived its right to medical corroboration by failing to provide Huppman with medical records. Instead, Huppman asserted that Boyert's corroborating affidavit satisfied the requirements of chapter 766. Because the waiver argument was not considered by the circuit court, we likewise do not consider it in this proceeding.

      . We note that Boyert may be qualified to render an expert medical opinion on the proper operation of the Lumenis IPL equipment in an ordinary negligence action, which is not governed by the dictates of chapter 766.


author: LaROSE, Judge.

text:
    Elizabeth A. ZUBERER, Appellant, v. Ernest H. ZUBERER, III, Appellee.
    No. 2D09-691.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.
    Michael L. Lundy, Michelle A. Ralat, and Matthew L. Lundy of Older & Lundy, Attorneys at Law, Tampa, for Appellant.
    Lorena L. Kiely, Plant City, for Appel-lee.
   LaROSE, Judge.

Elizabeth Zuberer appeals the Amended Final Judgment dissolving her marriage to Ernest Zuberer. We find no error in the trial court’s award of alimony and arrear-ages. Accordingly, we affirm as to those issues without further discussion.

We dismiss, as premature, Ms. Zuberer’s appeal of the trial court’s ruling that she is entitled to contribution to her attorney’s fees and costs, but reserve jurisdiction to determine a reasonable amount of fees and the amount to be offset as a sanction for her failure to attend the first trial. The trial court’s ruling addressed only entitlement to fees; the issue is not ripe for appeal until it determines the amount. See McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994) (holding that an order that determines only the right to attorney’s fees without setting the amount is a nonappealable, nonfinal order); Consumer Lightning Prods., Inc. v. Allen Enters., Inc., 911 So.2d 884, 884 (Fla. 2d DCA 2005).

Affirmed in part and dismissed in part.

YILLANTI and WALLACE, JJ., Concur.


text:
    STATE ex rel. Marvin COBB v. STATE of Louisiana.
    No. 2009-KH-1018.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Cobb, Marvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 257742; to the Court of Appeal, First Circuit, No. 2008 KW 2619.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Mitchell TEBBE.
    No. 2010-KK-0454.
    Supreme Court of Louisiana.
    March 1, 2010.
   In re Tebbe, Mitchell; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 489-968; to the Court of Appeal, Fourth Circuit, No. 2010-K-0275.

Writ Granted. The relator represents that the district court has failed to rule on outstanding discovery motions. If the district court has not yet acted, the district court is ordered to consider and rule on any motions immediately.

KNOLL, J., would deny.


text:
    STATE of Louisiana v. Michael ANDERSON.
    No. 2010-KK-0453.
    Supreme Court of Louisiana.
    March 1, 2010.
   In re Anderson, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 472-217; to the Court of Appeal, Fourth Circuit, No. 2010-K-0284.

Denied.


text:
    STATE of Louisiana v. Michael ANDERSON.
    No. 2010-KD-0464.
    Supreme Court of Louisiana.
    March 2, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 472-217; to the Court of Appeal, Fourth Circuit, No. 2010-K-0301.

Writ granted. The ruling of the trial court denying the State’s motion to quash the subpoenas directed to the assistant district attorneys is reversed. The State has stipulated that the prior interview with the witness was known to the District Attorney’s Office. Under the circumstances, the good or bad faith, or knowledge or lack of knowledge, of any particular assistant district attorney is irrelevant for the purposes of granting or denying a new trial.

JOHNSON, J., would deny the writ.

WEIMER, J., would deny the writ.


text:
    STATE of Louisiana v. Keli BARTHOLOMEW.
    No. 2010-KK-0165.
    Supreme Court of Louisiana.
    March 3, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 490-436; to the Court of Appeal, Fourth Circuit, No. 2009-K-1711.

Denied.

KNOLL, J., would grant.


text:
    In re CONFIDENTIAL PARTY.
    No. 2010-OB-0394.
    Supreme Court of Louisiana.
    March 3, 2010.
   In re Confidential Party; — Plaintiff; Applying For Petition For Supervisory Writs Concerning The Office of Disciplinary Counsel.

Denied.

JOHNSON, J., would grant.


text:
    Sarah DRURY v. CHURCHILL DOWNS LOUISIANA HORSERACING COMPANY, L.L.C. et al.
    No. 2010-CC-0448.
    Supreme Court of Louisiana.
    March 3, 2010.
   In re Churchill Downs Inc.; Churchill Downs Louisiana Horseracing Co. L.L.C. et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2005-09287; to the Court of Appeal, Fourth Circuit, No. 2010-C-0191.

Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Felton R. BERNARD and Corey R. Bernard.
    No. 2010-KK-0418.
    Supreme Court of Louisiana.
    March 3, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 469-092; to the Court of Appeal, Fourth Circuit, No. 2010-K-0269.

Denied.

KNOLL, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Tyrone HANDY.
    No. 2010-KK-0501.
    Supreme Court of Louisiana.
    March 4, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 490-100; to the Court of Appeal, Fourth Circuit, No. 2010-K-0292.

Stay Denied; Writ Denied.

KNOLL, J., would grant stay and writ.

CLARK, J., would grant stay and writ.