text:
    Danielle VERKRUYSSE, Appellant, v. FLORIDA CARPENTERS REGIONAL COUNCIL and Ulico Casualty Company., Appellees.
    No. 1D09-3400.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.

      Richard E. Zaldivar and Rene Hidalgo of Richard E. Zaldivar, P.A., Miami, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   HAWKES, C.J.

Claimant challenges the judge of compensation claims’ (JCC) final order dismissing a “petition for benefits and for attorney’s fees and costs” with prejudice. Claimant argues the JCC erroneously granted a motion to dismiss without conducting an evidentiary hearing based on the mistaken belief that Claimant failed to file a responsive pleading to the motion. Although it is true the JCC overlooked Claimant’s response to the motion, the Final Order should be affirmed for two reasons.

First, upon discovery of the error in the order, Claimant failed to preserve the issue for appeal by filing a motion for rehearing with the JCC. Second, even if the Court ignores the fact that the issue is not preserved, Claimant’s appeal fails on its merits because the JCC acted reasonably by dismissing the claim with prejudice. Consequently, we affirm.

FACTS

On February 18, 2009, Claimant failed to appear for a duly-noticed deposition on February 13. Claimant did not file a motion for protective order indicating she would be unable to attend the deposition.

On February 18, 2009, the JCC ordered Claimant to appear for deposition within thirty days from the date of the order (April 13). On Friday, April 10, Claimant filed an emergency motion for protective order seeking relief from the court’s order to appear. On April 14, the JCC denied the motion. Claimant failed to appear for deposition on April 13.

On May 11, the E/C filed the motion at issue. Claimant filed a timely response and requested a hearing be held on the motion.

On June 11, the JCC issued a Final Order finding that Claimant’s “repeated failure to appear for deposition and failure to comply with the court’s [March 13] order constitute[d] a deliberate and willful disregard for the court’s authority.” The JCC overlooked Claimant’s response to the motion, holding that pursuant to Florida Administrative Code Rule 60Q-6.115(4) a ruling without a hearing was appropriate since Claimant did not file a response pleading. The JCC dismissed Claimant’s petition for benefits with prejudice and awarded the E/C reimbursement of attorney’s fees and costs incurred as a result of Claimant’s noncompliance.

Preservation Issue

Any arguments raised on appeal must have first been preserved by a timely objection below. See Jellison v. Dixie S. Indus., Inc., 857 So.2d 365, 366-67 (Fla. 1st DCA 2003). If an error appears for the first time in a JCC’s final order, an objection to the error must be preserved by filing a motion for rehearing on the issue. See Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234 (Fla. 1st DCA 2008); see also Fla. Admin. Code R. 60Q-6.122 (allowing a post-order request for rehearing when JCC overlooks or misapprehends issues of fact or law). The purpose of the preservation rules is to prevent parties from taking advantage of the appellate process without first allowing the JCC an opportunity to address any perceived errors. Id.

Here, the JCC’s error did not appear until issuance of the Final Order. Upon issuance of the order, Claimant immediately appealed to this Court. Claimant did not file a motion for rehearing after dismissal of her claim. Because Claimant failed to file a motion for rehearing, her argument is not preserved for appellate review. Regardless, we also affirm on the merits.

Merits

Even if the Claimant had preserved this issue for appellate review, her claim would still be unsuccessful since she willfully failed to appear for two duly-noticed and scheduled depositions, one of which was court ordered.

The standard of review for an order dismissing a party’s claim with prejudice is whether the JCC abused his discretion. See Hill v. Greyhound Lines, Inc., 988 So.2d 1250, 1251 (Fla. 1st DCA 2008). A court abuses its discretion when no reasonable person could reach the same conclusion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

This Court will not reverse a dismissal with prejudice if the dismissal is supported by a specific, written finding that the offending party willfully or deliberately acted in violation of the JCC’s order. See Queen v. Adams Mark Hotel, 728 So.2d 804, 805 (Fla. 1st DCA 1999).

Here, the JCC had before him two certificates of non-appearance verifying Claimant’s failure to appear for two depositions; and a judicially noticed March 13 order granting the E/C’s motion to compel. Although Claimant attempted to relieve herself from complying with the court-ordered deposition by filing an emergency motion, this motion was not filed until one business day prior to the date of the deposition.

Claimant’s motion, in and of itself, was proof of her willful disregard of the court’s order to compel attendance at the April 13 deposition. Claimant filed the emergency motion citing her relocation to Ohio in December 2008. However, the JCC received a letter from Claimant’s attorneys on February 11 informing the court of the move to Ohio. In other words, Claimant and her attorneys were fully aware of the relocation in February 2009, two months prior to Claimant’s emergency motion. Nonetheless, Claimant waited until one business day before the deposition to seek relief from the court.

Considering the court’s findings, the JCC reasonably inferred the Claimant -willfully disregarded a court order by failing to appear for the March 13 deposition. Since the JCC’s inference was reasonable, the dismissal of the claim with prejudice does not constitute an abuse of discretion.

Conclusion

Even if Claimant had not failed to preserve this issue for appeal, she would have failed based on the merits of the ease. Accordingly, the JCC’s order is AFFIRMED.

THOMAS, J., concurs.

BENTON, J., dissents without opinion.


source: Caselaw Access Project

author: WETHERELL, J.

license: Public Domain

text:
    Criston Olympia McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4012.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.

      Nancy A. Daniels, Public Defender and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Edward C. Hill, Jr., Special Counsel, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant was convicted of armed robbery, armed burglary, and false imprisonment, and was sentenced to 12 years in prison. He raises two issues in this direct appeal: 1) whether the trial court erred in denying his motion to suppress the victim’s out-of-court and in-court identifications, and 2) whether the trial court abused its discretion in not sentencing him as a youthful offender. We affirm both issues, and write only to address Appellant’s contention that the trial court impermissibly based its sentencing decision on its personal opinion of the youthful offender program.

The trial court has discretion to sentence as a youthful offender a defendant who is at least 18 years old and has been found guilty of a felony (except for a capital or life felony) committed before the defendant’s 21st birthday. § 958.04(1), Fla. Stat. (2007). However, “[t]he lower court is under no obligation to sentence [a defendant] under the Youthful Offender Act unless the lower court believes such a sentence would be appropriate.” Holmes v. State, 638 So.2d 986, 987 (Fla. 1st DCA 1994); see also Bell v. State, 429 So.2d 403, 404 (Fla. 1st DCA 1983). “[A]pplieation of the Youthful Offender Act to any particular defendant is discretionary with the trial judge who is in the best position to determine whether sentencing under the act is the most desirable treatment for that defendant.” Ellis v. State, 475 So.2d 1021, 1023 (Fla. 2d DCA 1985).

The trial court’s sentencing discretion under the Youthful Offender Act is not unbridled. Like any other exercise of judicial discretion, the trial court’s sentencing decision must be supported by logic and reason and must not be based upon the whim or caprice of the judge. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980); see also Booker v. State, 514 So.2d 1079, 1084 (Fla.1987) (“The abuse of discretion standard exists to ensure that sentences are not imposed arbitrarily or capriciously or at the whim of an individual judge whose personal feelings against a particular defendant, or a particular type of crime, may render the sentence imposed so offensive to traditional notions of justice that it does not meet the objective test of reasonableness.”).

At sentencing, Appellant requested that the trial court sentence him as a youthful offender because he was 18 years old when the offenses were committed and he had no prior record except for a marijuana charge as a juvenile. The state objected to a youthful offender sentence, stating “this is not the type of case for that sort of treatment.” The trial court recognized that it had the discretion to sentence Appellant as a youthful offender, but it expressly decided not to do so. In explaining its decision, the trial court stated:

The court has had the opportunity ... to know this case fairly well because I’ve basically had it tried before me twice. The first time on the motion hearing and the second time the actual trial and I do believe there was some influence going on there over you, I mean [defense counsel] has indicated the perplexing nature of somebody without an extensive prior criminal record such as you getting involved in something so significant and impactful as robbery and burglary [with] a firearm and I think in part it can be explained by your presence with the other individuals involved in the criminal activity but there is a fairly candid look into your personal nature in the presen-tence investigation where one reads that you have regularly before reaching the age of entitlement been drinking alcoholic beverages and have regularly abused controlled substances and ... that reveals a disregard of the law.
* * *
This is not one of those crimes somebody just stumbles into. It is not an accidental kind of occurrence. It was ... a planned enterprise between you and the others involved to do this and for that reason I have to take that and look at it seriously.
I do find you guilty and adjudicate you guilty. In part because of my personal diminishing regard for the youthful offender program, not because of you but because if the youthful offender program was meritorious and worthy ... I would at least give it some thought but in light of the nature of this offense I don’t even give it passing consideration because I just don’t think it is the right thing to do. I don’t think it takes it as serious and a crime of this nature requires it to be dealt with and for that reason I will not be imposing a youthful offender sentence.

Focusing on the last paragraph, Appellant contends that the trial court abused its discretion by basing its decision not to sentence him as a youthful offender on the court’s personal opinion of youthful offender program. We agree that the trial court’s views on the efficacy of the youthful offender program as a whole have no place in its sentencing decision. However, when those comments are viewed in context of trial court’s complete explanation of its sentencing decision, we are satisfied that the court’s decision not to sentence Appellant as a youthful offender was properly based upon a consideration of Appellant’s circumstances and the serious nature of his crimes, rather than the court’s opinion of the youthful offender program. Accordingly, we conclude that the trial court did not abuse its discretion in declining to sentence Appellant as a youthful offender.

For these reasons, the judgment and sentence on appeal are AFFIRMED.

LEWIS and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    Anthony N. WIDEMOND, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4747.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.

      Anthony N. Widemond, Sr., pro se, Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one and three of appellant’s motion without further discussion. However, for the reasons discussed below, we reverse and remand ground two.

In ground two, the appellant asserts that counsel was ineffective for failing to present to the court case law standing for the proposition that the trial court could impose his sentence concurrently to a future sentence the defendant would receive for violating his conditional release. It appears that his claim has merit as the trial court did in fact have the power to impose the sentence in this case concurrently to his conditional release sentence, and the record clearly demonstrates that the trial court would have imposed the sentences concurrently had it been aware of its authority to do so. In Richardson v. State, 947 So.2d 1219 (Fla. 1st DCA 2007), a defendant filed a 3.850 motion asserting that counsel was ineffective for advising him that the trial court had no authority to run his sentence concurrently to a conditional-release sentence. Id. at 1220. The trial court agreed and stated that it could not order the sentences to run concurrently to each other. Id. This Court reversed, holding:

[T]he law is clear that a trial court may order a sentence to run concurrently or consecutively to a pending control-release violation. In fact, the trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrent or consecutive to his or her community release sentence and cannot defer the structure of the sentence to the Department of Corrections because the Department lacks such sentencing authority.

Id. (citations omitted); see also Ford v. State, 975 So.2d 1191 (Fla. 1st DCA 2008) (same). The Richardson court went on to hold that the appellant’s sentence was illegal. Richardson, 947 So.2d at 1221. Because the appellant has alleged facially sufficient claims for ineffective assistance of counsel and an illegal sentence, we reverse and remand for the trial court to hold an evidentiary hearing or to impose the sentence in the instant case to be concurrent with the sentence imposed by DOC. See White v. State, 19 So.3d 407 (Fla. 1st DCA 2009).

REVERSED and REMANDED.

LEWIS, THOMAS and WETHERELL, JJ., concur.


author: ROTHENBERG, J.

text:
    Francisco F. Galvez LOPEZ, Appellant, v. ATLAS ONE FINANCIAL GROUP LLC, Appellee.
    No. 09-1452.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.
    Carlson & Lewittes and Curtis Carlson, Miami, for appellant.
    Greenberg Traurig and Holly Skolnick, Elliot B. Kula and Kerri L. McNulty, Miami, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Francisco F. Galvez Lopez appeals a non-final circuit court order granting Atlas One Financial Group’s (“Atlas One”) motion to compel arbitration and to stay the proceedings for thirty days. Because the documents pertaining to the account at issue do not contain an arbitration clause and the arbitration clause relied on by Atlas One is contained in documents pertaining to a separate account and does not apply to Atlas One, we reverse.

Galvez Lopez, an investor and the plaintiff below, filed a complaint in the Miami-Dade Circuit Court alleging that Atlas One, Galvez Lopez’s investment advisor, mismanaged an account Galvez Lopez opened with SG Private Banking in Switzerland (“the Swiss account”). The documents relating to this account do not contain an arbitration clause.

In addition to the Swiss account, Galvez Lopez opened an account with Pershing LLC in New York (the “New York account”), where Atlas One acted as the introducing broker and Pershing acted as the clearing broker. For this account, Galvez Lopez executed a New Account Form and ProCash Plus Account Application. The New Account Form and the Application both contain an arbitration clause, as does the New Account Agreement that was subsequently executed. The “GENERAL PROVISIONS” section of this agreement specifies that “[t]he undersigned shall include any person executing this agreement.” The arbitration clause requires that all parties to the agreement submit to arbitration to resolve controversies and that New York law will govern.

Galvez Lopez contends that the trial court erred in compelling arbitration in his lawsuit against Atlas One because: only the Swiss account is the subject of this litigation; the Swiss account documents contain no arbitration provision; and the arbitration provision relating to the New York account is inapplicable. We agree. The Swiss account and the New York account are entirely separate accounts. The litigation is directed toward Atlas One’s management of the Swiss account, not the New York account. The arbitration clause contained in the New York account documents is not contained in the Swiss account documents. It is therefore clear that the arbitration clause contained in the New York account documents is inapplicable as to the Swiss account and the pending litigation. Therefore, the trial court erred in requiring Galvez Lopez to arbitrate his claims in this litigation.

Galvez Lopez also contends that even if the New York account was at issue in this litigation, the arbitration clause contained in the New York account documents only applies to his agreement with Pershing and not to Atlas One because Atlas One is not a party to that agreement. Although we agree with Galvez Lopez, we need not decide this issue based on our finding that the two accounts are separate accounts and the Swiss account documents do not contain an arbitration provision. However, we briefly address the law on that issue.

The law is clear that signing the New York account agreement as the introducing broker does not subject the introducing broker to the arbitration provision contained in the agreement. In Taylor v. Investors Associates, Inc., 29 F.3d 211 (5th Cir.1994), the United States Court of Appeals for the Fifth Circuit held that Investors Associates, Inc., as the securities introducing broker-dealer, did not qualify as a third-party beneficiary of the agreement between Taylor (an investor) and Prudential-Bache Securities, Inc. (“Prudential”). Similar to the agreement executed by Gal-vez Lopez (the investor) and Pershing (the clearing broker), the agreement between Taylor (investor) and Prudential (who was serving as the clearing broker) also contained an arbitration clause that did not mention the introducing broker by name or function. Thus, the Fifth Circuit concluded that the arbitration clause in the agreement did not apply to the introducing broker because: Prudential was not a party to the action; Taylor’s claims related solely to the alleged misrepresentations made by the introducing broker; and the agreement made no reference to the introducing broker by name or function or refer to introducing brokers in general. See also Stone v. Doerge, 328 F.3d 343 (7th Cir.2003) (holding that the arbitration agreement between the investor trusts and the clearing broker did not require arbitration of the trustee’s fraud claim against the introducing broker).

In summary, we conclude that the trial court erred in applying the arbitration clause contained in the New York account documents to the instant litigation because the Swiss account and the New York account are entirely separate accounts and the subject litigation only pertains to the Swiss account. However, even if the two accounts were related, we would conclude that the arbitration provision contained in the New York account documents would not apply to the subject litigation because Atlas One was not a party to the agreement between Galvez Lopez and Pershing regarding the New York account, and as the introducing broker, Atlas One does not qualify as a third-party beneficiary of the agreement between Galvez Lopez and Pershing. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

      . Although Atlas One signed the agreement, its signature is contained in a boxed off portion of the agreement with the heading, “INTRODUCING FINANCIAL ORGANIZATION ONLY,” and specifying that the signator Atlas One was merely guaranteeing the signature of the account holder and that the account was suitable for margin trading.


author: CORTINAS, J.

text:
    RAKUSIN LAW FIRM and Gerald Damsky, P.A., Appellants, v. In re ESTATE OF Richard A. DENNIS, Appellee.
    No. 3D08-3066.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 2010.
    Stephen Rakusin, Fort Lauderdale; Gerald Damsky, Boca Raton, for appellants.
    Jay M. Levy, Miami, for appellee.
    Before WELLS, CORTINAS, and SALTER, JJ.
   CORTINAS, J.

It is well established that “summary judgment should be granted only when there is a complete absence of genuine issues of material fact,” Copeland v. Fla. New Invs. Corp., 905 So.2d 979, 980 (Fla. 3d DCA 2005) (citing Holl v. Talcott, 191 So.2d 40 (Fla.1966)), and the moving party is entitled to judgment as a matter of law. Carpineta v. Shields, 70 So.2d 573, 574 (Fla.1954) (citing Rule 56(c), Fed.R.Civ.P.). If the pleadings, discovery, depositions, and admissions “reveal[ ] the possibility of genuine issues of material fact, or even the slightest doubt, summary judgment should be denied.” Copeland, 905 So.2d at 980 (citing Besco USA Int’l v. Home Sav. of Am. FSB, 675 So.2d 687 (Fla. 5th DCA 1996)). A trial court’s grant of summary judgment is reviewed under a de novo standard, Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000)), and this Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Id. In this case, the record is rife with issues of material fact, which require reversal.

The dominant issue in deciding this claim for attorneys’ fees is whether the Rakusin Law Firm and Gerald Damsky, P.A., (collectively “the Law Firms”) abandoned their representation of the Estate in Arizona or whether they continued working on the Estate’s behalf, despite being shut out of the appeal, until they were ordered by the court to withdraw.

The first point in question is whether the Law Firms in fact withdrew from the Arizona litigation in May 2000. The Estate presents multiple examples of the Law Firms expressing the intent not to represent the Estate in its appeal, but they are not dispositive. In contrast, the Law Firms supplied other evidence showing their involvement, thus creating a material factual issue that may not be resolved on summary judgment.

A second point in question is whether the Estate retained an Arizona attorney to serve as its sole counsel or merely as local counsel for the appeal in conjunction with the Law Firms. Vieques Air Link, one of the Estate’s creditors, hired Loren Molever after a dispute with the Law Firms, their local counsel (who subsequently withdrew from the appeal), and Edward Swan, the Estate’s Successor Personal Representative. Molever filed a notice of appearance on behalf of both the Estate and its creditors and later testified that he did not “ever have an understanding that [he] was to act as local counsel for [the Law Firms].” Furthermore, the Estate argues, the record shows that after the Law Firms filed their motions to withdraw, they did not file motions, papers, briefs, or a notice of joinder in the appeal. On the other hand, the Law Firms allege a number of instances when Molever took direction from them regarding the appeal. In fact, he complained in a letter to Vieques that its instructions were inconsistent with those of the Law Firms but acknowledged that its motion requesting that he “be appointed as co-counsel with [the Law Firms] for the [E]state ... may solve some or all of the concerns.” (Emphasis added.) The Law Firms have introduced time sheets that show both communications with Molever regarding the appeal and the review and delivery of files to him, which they claim proves their involvement with the appeal. The Estate counters that these transmissions merely evince the Law Firms’ compliance with their ethically mandated transitional duty to assist new counsel. See Fla. Ethics Opinion 84-3.

Another issue is whether Polly Rapp, the Arizona counsel Vieques retained after it forced Molever to withdraw, prevented the Law Firms from working on the appeal or whether they are using her hiring as an excuse for their abandonment. Rapp testified that she “represented the [Appellants’] interests” ever since she filed a notice of substitution of counsel in the Arizona Appellate Court, but the Law Firms claim that she “had no authority to represent Swan or the Estate except to the extent that prior counsel, Molever, had agreed in writing to include the Estate in the appellate brief....” Rapp filed the Appellants’ Initial Brief on behalf of all creditors and the Estate; the Law Firms were not included on the certificate of service and apparently remained uninvolved for the rest of the appeal. In fact, two months after the filing of the initial brief, the Estate moved to appoint Rapp as its Arizona counsel, claiming that after the trial court had granted summary judgment and the defendants had moved for attorney’s fees, “original counsel declined to continue representation” and that the “Estate no longer ha[d] counsel in Arizona to represent its interest.”

Finally, the record demonstrates inconsistent statements by Swan as to the Law Firms’ involvement with the litigation. As “we must draw every possible inference in favor of the party against whom the motion is made,” it is impossible for us to conclude, as a matter of law, the Law Firms had abandoned the Estate. Wills v. Sears, Roebuck & Co., 351 So.2d 29, 32 (Fla.1977) (citing First Realty Corp. v. Standard Steel Treating Co., 268 So.2d 410, 413 (Fla. 4th DCA 1972)).

Given the disputed factual issues prevalent in the record, we cannot affirm the trial court’s grant of summary judgment.

Reversed and remanded.

      . The Law Firms and the Estate tussle over the reason for the Law Firms’ intention to withdraw, but such speculation here would be inappropriate and superfluous. Therefore, we need not consider whether the trial court erred in striking portions of Rakusin’s affidavit.

      . The Law Firms' retainer agreement with the Estate states that they are "retained, employed and empowered to institute on the Client’s behalf such action as may be advisable in its professional judgment, including the taking of an appeal after final judgment therein, and to effect a final compromise....”


author: TAYLOR, J. FARMER, J.,

text:
    James WHITMORE, Petitioner, v. STATE of Florida, Respondent.
    Nos. 4D08-959, 4D08-3102.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.

      Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for respondent.
   TAYLOR, J.

In these consolidated cases, James Whitmore appeals the trial court’s summary denial of his Rule 3.850 motion, which alleged ineffective assistance of his trial counsel, and petitions for a writ of habeas corpus, alleging ineffectiveness of his appellate counsel. We affirm as to all Whitmore’s claims regarding ineffective assistance of trial counsel, but find merit in his claim that appellate counsel was ineffective in failing to challenge on appeal the trial court’s consideration of Whitmore’s lack of remorse and failure to accept responsibility at his sentencing. We agree that the trial court’s reliance on these factors violated his due process rights and constituted fundamental error. Because this issue should have been raised on direct appeal, we grant the petition.

On September 21, 2003, Whitmore’s small dog was attacked by the much larger dog of the victim, Gary Estes. Whitmore had to take his dog to the veterinarian for treatment. Whitmore, who had been drinking, was very upset and angry. After he returned from the veterinarian’s office, he called Estes at Josie’s Bar. Estes testified that Whitmore called him several times at the bar, each time sounding louder and angrier. Around midnight, Estes got a ride home from the bar. According to Estes, almost immediately, Whitmore confronted him. Whitmore had a pipe or a similar weapon, which he used to strike two hard blows on Estes’s left leg. At that point, Estes was standing on one leg. As he reached down for his leg, Whitmore swung the pipe upwards, hitting Estes in the jaw and knocking him unconscious. Estes’s jaw was broken, and he lost five of his front teeth. He remained in the hospital for three weeks.

Whitmore’s former fiancée, Linda Sas-son, testified for the defense. She recounted the attack by Estes’s dog on Whit-more’s dog and the emergency trip to the veterinarian. She said that she was with Whitmore that night and that he did not go outside until after Estes had already been beaten by unknown persons. When Whitmore saw Estes lying on the ground, he called 911.

Donald McClain also testified for Whit-more. He said that he has known Whit-more for seventeen or eighteen years. He testified that he was in the trailer park that night at midnight when he saw Estes in the street drunk. He testified that a car that came from inside the trailer park beeped for Estes to get out of the road, and that Estes responded by cursing the driver and gesturing with his middle finger. The driver got out of his car, they had words, and a fight ensued. The driver hit Estes in the face with a single punch, causing him to fall down on the ground. Then the other three car doors opened. Several men got out, screaming and speaking in Spanish, and punched and kicked Estes. The men then got back in the car and left. Afterwards, McClain saw Whit-more come out of his trailer. Four to five minutes later, the ambulance and police cars arrived on the scene. He testified that Whitmore was not involved in the attack on Estes.

"Whitmore was arrested and charged with aggravated battery. After a jury found him guilty of aggravated battery, he was sentenced to the statutory maximum, fifteen years in prison. He contends that the trial court imposed the maximum sentence because he showed no remorse at sentencing and denied responsibility.

At sentencing, counsel for "Whitmore requested the trial court to sentence "Whit-more at the bottom of the guidelines. He explained that he was in a tough situation because "Whitmore continued to maintain his innocence. When "Whitmore addressed the court at sentencing, he told the court that he was sorry for what happened to Mr. Estes, but said “as God is my witness, I never left my house that night.” He also denied that there was a weapon involved in the case. Before sentencing "Whitmore to the maximum fifteen-year term of imprisonment, the trial court stated that, among other factors, she was basing her sentence “upon the fact that the defendant exhibits no remorse [and] denies responsibility.”

In Whitmore’s direct appeal, his attorney did not raise any sentencing error. "Whitmore asserts that his attorney’s failure to challenge his sentence constitutes ineffective assistance of appellate counsel. Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. As to the prejudice prong, the defendant must show that:

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694, 104 S.Ct. 2052.

In Florida, a claim that appellate counsel was ineffective must be presented by petition for writ of habeas corpus. Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). The habeas corpus standards for ineffective assistance of counsel mirror the Strickland standard for trial counsel ineffectiveness. Jones v. Moore, 794 So.2d 579, 583 (Fla.2001).

In Holton v. State, 573 So.2d 284, 292 (Fla.1990), the Florida Supreme Court held that a trial court violates due process by using a protestation of innocence against a defendant at sentencing. This is in accord with a long, unwavering line of cases, both before and after Holton. See Donaldson v. State, 16 So.3d 314, 314 (Fla. 4th DCA 2009) (holding that the trial court violated defendant’s right against self-incrimination by considering defendant’s protestations of innocence and lack of remorse in sentencing); Johnson v. State, 948 So.2d 1014, 1017 (Fla. 3d DCA 2007) (“[R]e-sentencing is required even if a defendant’s refusal to admit guilt was but one of several factors considered by the court in imposing sentence.”); Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006) (“When a court predicates the length of a sentence on the defendant’s failure to show any inclination toward repentance, the court violates the defendant’s right not to be required to incriminate himself.”); Aliyev v. State, 835 So.2d 1232, 1234 (Fla. 4th DCA 2003) (stating that the trial court could not impose a harsher sentence because the defendant “exercised his constitutional right to a jury trial, maintained his innocence, or failed to show remorse”); Soto v. State, 874 So.2d 1215, 1217 (Fla. 3d DCA 2004) (holding that continued protestation of innocence should not be a factor in sentencing); Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999) (reversing sentence where court imposed lengthy sentence after defendant maintained his innocence and refused to tell court where stolen property was located); A.S. v. State, 667 So.2d 994, 996 (Fla. 3d DCA 1996) (“The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.”); Exposito v. State, Dep’t of Bus. Regulation, 508 So.2d 451, 452 (Fla. 3d DCA 1987) (“[A] party may not be penalized for lack of ‘remorse’ where he has a legitimate right to maintain his innocence.”); Hubler v. State, 458 So.2d 350, 353 (Fla. 1st DCA 1984) (“[Wjhere the defendant has at all times denied committing the battery charged and has persisted in maintaining his innocence, we conclude that it was improper for the trial court to aggravate the sentence imposed because the defendant failed to exhibit remorse for having committed the offense.”); Harden v. State, 428 So.2d 316, 317 (Fla. 4th DCA 1983) (“Where the court predicated the length of the sentence on the defendant’s failure to show any inclination toward repentance, which in the context of the comment clearly meant a failure to confess, the court violated the defendant’s right not to be required to incriminate himself.”).

The state urges us to dismiss the petition for writ of habeas corpus, arguing that our decision in St. Val v. State, 958 So.2d 1146 (Fla. 4th DCA 2007), authorizes a trial court to consider a defendant’s lack of remorse in imposing sentence. In St. Val, after a jury trial, the defendant was convicted of attempted first degree murder with a firearm, attempted second degree murder, and two counts of shooting into an occupied vehicle. The evidence at trial showed that the defendant shot at two people in a car and wounded one victim in the arm and head. Id. at 1146. At sentencing, the trial court considered the defendant’s lack of remorse before imposing a life sentence. We affirmed the sentence, reasoning that the trial judge properly took into account the defendant’s lack of remorse “as part of her broader rejection of his characterization of the crime as an accident in which someone just happened to get shot.” Id. The St. Val case, we noted, was not one “where a defendant was punished for protesting his innocence as in AS., Johnson, and Holton.” Id. at 1147.

In this case, however, the record reflects that Whitmore continued to maintain his innocence and deny that he inflicted the injuries on the victim. The record further reflects that before imposing the maximum sentence, the trial judge stated that she was considering Whitmore’s failure to show any remorse and accept responsibility for the offense. Although these were not the only reasons given by the trial judge for imposing the maximum sentence, they were among the factors that she mentioned. See Soto, 874 So.2d at 1217 (stating that although defendant’s lack of remorse and unwillingness to admit guilt were not the only factors in the trial court’s sentencing decision, where the judge’s own statements showed that the defendant’s unwillingness to admit guilt was one of the factors considered by the judge, reversal and resentencing before another judge were required).

Accordingly, we grant the petition for writ of habeas corpus as to Whitmore’s claim that appellate counsel was ineffective for failing to argue that the trial court committed fundamental error in considering his lack of remorse and denial of responsibility in imposing sentence. Because a new appeal would be redundant in this case, we vacate the sentence and direct that Whitmore be resentenced before a different judge. See Sanders v. State, 959 So.2d 1232 (Fla. 2d DCA 2007); Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004) (citing Johnson v. Wainwright, 498 So.2d 938, 939 (Fla.1986)). We affirm the summary denial of Whitmore’s Rule 3.850 motion.

POLEN, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

An ineffective assistance of appellate counsel claim requires the defendant to establish that deficient performance prejudiced the appeal. In this regard, if a legal issue “would in all probability have been found to be without merit” had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the merit-less issue does not make appellate counsel’s performance ineffective.

Here the claimed deficiency involves an appeal of a sentence above the minimum and within the maximum. In sentencing within the law’s minimum and maximum, the discretion afforded is about as broad as discretion can be for trial judges. When a trial judge is given a specified range of discretion over an issue and the decision is within the range of discretion allotted, prejudice is not shown by the appellate lawyer’s failure to raise the issue on direct appeal. See e.g. Rutherford v. Moore, 774 So.2d 637, 645 (Fla.2000) (no prejudice from failure to argue denial of motion to conduct voir dire as to specific matter, court citing broad discretion of trial judge); Pangburn v. State, 661 So.2d 1182, 1187 (Fla.1995) (no prejudice from failure to argue on appeal admission of gruesome photographs, court citing broad discretion of trial judge); Wilson v. State, 436 So.2d 908, 910 (Fla.1983) (no prejudice from failure to argue on appeal admission of photographs, court citing broad discretion of trial judge).

The Florida Criminal Punishment Code, which first became effective in 1998, contains these basic principles:

(b) The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment.
(g) The trial court judge may impose a sentence up to and including the statutory maximum for any offense, including an offense that is before the court due to a violation of probation or community control.
(h) A sentence may be appealed on the basis that it departs from the Criminal Punishment Code only if the sentence is below the lowest permissible sentence or as enumerated in s. 924.06(1). [e.s.]

§ 921.002 Fla. Stat. (2003). Section 924.06(1) provides:

A defendant may appeal from ... a sentence, on the ground that it is illegal; or ... [a] sentence imposed under s. 921.0024 of the Criminal Punishment Code which exceeds the statutory maximum penalty provided in s. 775.082 for an offense at conviction, or the consecutive statutory máximums for offenses at conviction, unless otherwise provided by law. [e.s.]

Defendant’s claim of ineffective assistance of appellate counsel has no support in sentencing statutes. The statutes allowed him to appeal his sentence only on the ground it is illegal because it exceeds the limits of punishment allowed by law. Yet he acknowledges — and the majority recognize as well — the sentence imposed on him was within the maximum provided by law for aggravated battery; hence not illegal.

His contention that the trial judge spoke of his lack of remorse and refusal to accept responsibility for the crime the jury had found him guilty of committing is, I think, legally insufficient on its face to state a claim of ineffective assistance of appellate counsel. I am unable to find in the above statutory provisions any legal basis for this claim. The jury found him guilty of viciously beating the victim with a pipe, inflicting serious personal injury. I do not think these statutes bar the sentencing judge from considering a lack of remorse in deciding at what point within the penalty spectrum discretion will settle.

Holton v. State, 573 So.2d 284, 292 (Fla.1990), on which the majority rely, is manifestly inapplicable. It held that protestations of innocence cannot be used as an aggravating factor to justify the death penalty. Holton is not applicable in non-capital cases arising since the adoption of the Florida Criminal Punishment Code.

All aggravating factors leading to the death penalty in capital cases must be based on some express statutory provision. This is obviously necessary because the death sentence is reviewed de novo by the supreme court. But since the adoption of the Florida Criminal Punishment Code, it is unnecessary in non-capital cases for a sentencing judge to justify imposition of a sentence within the maximum fixed by law, as in capital cases. Under the Code’s clear provisions set forth above, in non-capital cases the trial judge is vested with sole discretion to impose a penalty within the maximum without specifying particular factors supporting the sentence. Mora v. State, 964 So.2d 881 (Fla. 3d DCA 2007), jurisdiction dismissed, 984 So.2d 1250 (Fla.2008) (trial court has great discretion in determining the length of a sentence, so long as it is within the statutory limits). The exercise of discretion in non-capital sentencing is made unreviewable by statute when the sentence is legal.

Holton is inapplicable because, unlike capital sentencing, there is no review of the non-capital sentencing. And if the sentencing judge gratuitously offers an observation as to defendant’s lack of remorse, it does not transform the legal sentence into illegal punishment. In this case the trial judge was well within reason to impose the maximum punishment for such a ferocious beating.

I would deny the petition.

      . Whitmore’s total sentencing points amounted to 116.6, making the lowest permissible sentence 66.45 months.

      .Moreover, in St. Val we did not, as the state suggests, give trial courts carte blanche to consider a defendant's lack of remorse when imposing sentence. Instead, we disagreed with St. Val’s position that a sentencing judge could never, under any circumstances, consider a defendant's lack of contrition or remorse in imposing sentence. For that reason, we certified conflict with K.Y.L. v. State, 685 So.2d 1380, 1381 (Fla. 1st DCA 1997), disapproved on other grounds, State v. J.P.C., 731 So.2d 1255, 1256, n. 1 (Fla.1999) (holding that lack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence). The Florida Supreme Court initially accepted review of the case but later dismissed the review proceeding. St. Val v. State, 982 So.2d 682 (Fla.2008).

      . Thompson v. State, 759 So.2d 650, 660 (Fla.2000) (petitioner was prejudiced because appellate counsel's deficiency "compromised the appellate process to such a degree as to undermine confidence in the correctness of the result”); Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985) (criteria for proving ineffective assistance of appellate counsel parallel standard for ineffective trial counsel).

      . Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994); see also Downs v. Moore, 801 So.2d 906, 910 (Fla.2001) (appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims on appeal).

      . See Stancliff v. State, 996 So.2d 259 (Fla. 1st DCA 2008) (District Court of Appeal lacked authority to review defendant's sentence despite his contention that trial court abused its discretion by denying his request for a downward departure, where sentence was within the sentencing range established by defendant’s Criminal Punishment Code scoresheet); Peterson v. State, 775 So.2d 376 (Fla. 4th DCA 2000) (Criminal Punishment Code (CPC) section providing that sentence may be appealed on basis that it departs from CPC only if sentence is below lowest permissible sentence or as enumerated in section governing appeals by defendant does not violate due process or equal protection).


text:
    David LAHENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1880.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.

      David Lahens, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court properly denied appellant’s motion for jail credit pursuant to Florida Rule of Criminal Procedure 3.800(a). Because appellant executed a written waiver of the credit to which he otherwise would have been entitled, we affirm.

Appellant pled guilty to robbery with a firearm, burglary of an occupied structure with a firearm, and aggravated assault with a firearm and was sentenced to six years in prison. The written plea agreement stated that appellant would receive a 182-day credit for time served in the Palm Beach County Jail and that appellant “agrees to waive all other credit in this case (1 year).”

In computing a sentence, a criminal defendant is “entitled to credit for all time served in Florida jails before sentencing,” but such credit “may be waived” if the defendant’s waiver is “specific, voluntary and clear from the face of the record.” White v. State, 995 So.2d 1172, 1173 (Fla. 4th DCA 2008). We believe appellant’s signature on the written plea agreement evinces a specific and voluntary waiver of the one-year credit for time served, and the trial judge was correct to deny appellant’s motion to correct.

We find this case to be distinguishable from Velasquez v. State, 11 So.3d 979 (Fla. 1st DCA 2009). In Velasquez, the First District held that a notation of the amount of a jail credit on a written plea agreement “is not sufficient in the absence of evidence ‘that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right.’ ” Id. at 980 (quoting Davis v. State, 968 So.2d 1051, 1053 (Fla. 5th DCA 2007)). While the written plea agreement listed the credit the defendant would receive, the First District found no indication on the agreement that the defendant was aware of the credit he waived as part of the plea agreement.

Here, the written plea agreement, bearing appellant’s signature, states that he agreed to waive a full year of credit. We find that this notation on the written plea agreement satisfies the requirement that appellant “knew of his entitlement” to additional jail credit and voluntarily waived his right to that credit.

Affirmed.

GROSS, C.J., WARNER and LEVINE, JJ., concur.


text:
    Raymond SCHOLTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3690.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, and Raymond Scholtes, Crestview, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979). In this appeal pursuant to Anders, Appellant’s pro se brief raises issues of an involuntary plea which were not preserved for appeal by the filing of a motion to withdraw his plea. This affirmance is without prejudice to Appellant’s right to assert such issues in a timely and sufficient rule 3.850 motion for post-conviction relief.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: JACOBUS, J.

text:
    Saundra D. JONES-BISHOP, Appellant, v. ESTATE OF Catherine B. SWEENEY, Appellee.
    No. 5D09-12.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Cameron H. Linton, Winter Park, for Appellant.
    Frank J. Pyle, Jr., Orlando, for Appel-lee.
   JACOBUS, J.

The Appellant, Saundra Jones-Bishop, appeals from a non-final order determining beneficiaries and striking a prior order of summary administration entered by the lower court. This Court has jurisdiction pursuant to rule 9.180(a)(4). Because the order of summary administration is voidable rather than void, we reverse.

The Appellant is the granddaughter of the decedent. The decedent died testate on June 18, 2004. There was no administration of her estate until August 22, 2006, at which time the Appellant filed a petition for summary administration. The beneficiaries of the decedent’s will were all her great-grandchildren and did not include the Appellant.

In 1991, the Appellant purchased a home located at 829 S. Washington Ave., and the decedent cosigned the mortgage with her so that she would qualify for the financing. At the closing, the title company insisted that the decedent be included on the title to the property as a tenant in common. As a result of the way title was held, the one-half interest in the property became an asset of the decedent’s estate upon her death.

At the time the Appellant filed her petition for summary administration, all the named beneficiaries under the will joined in the petition. They filed affidavits indicating that they were making no claim to the property and it should be the sole property of the Appellant. Based upon the petition, the court entered an order of summary administration on August 22, 2006, transferring the interest in the 829 S. Washington Ave. property to the Appellant.

On September 12, 2006, Rudophus Jackson, who is the Appellant’s brother and the named Personal Representative in the decedent’s will, filed a petition for administration. The petition for administration filed by Mr. Jackson received the same case number as the petition for summary administration filed by the Appellant. Nothing more was done on the case until September 17, 2008, at which time Mr. Jackson filed a petition to set aside the order of summary administration. In that petition, Mr. Jackson argued that the order was void and he asked for a determination of beneficiaries from the court. On November 20, 2008, the court entered an order setting aside the order of summary administration and made a determination of beneficiaries. It is from that order that the Appellant appeals.

The Appellee’s position is that the Appellant had no standing to file the petition for summary administration as she is not one of the proper parties set forth in section 735.203(1), Florida Statutes (2008), authorized to bring the petition. Therefore, as asserted by the Appellee, the order of summary administration is void and has no legal effect. The Appellee is incorrect in this position. The order of August 22, 2006, is at best voidable. That is, a judgment that is entered based upon some error in procedure may be vacated, but unlike a void judgment, it has legal force and effect unless it is vacated. See Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007). All of the beneficiaries of the will consented to the petition and rule 5.530(b) does not require any notice to the Personal Representative.

The motion to set aside the order of summary administration is in the nature of a rule 1.540(b)(4) motion. The law provides that a rule 1.540(b)(4) motion may be brought in a probate proceeding where the circumstances warrant it. See Bostwick v. Cowan’s Estate, 326 So.2d 454 (Fla. 1st DCA 1976); cf. In re McLarty’s Estate, 421 So.2d 811 (Fla. 4th DCA 1982). However, in the instant case, there was no legal basis for the trial court to set aside the order of summary administration entered August 26, 2006, as the order was not void as asserted by the Appellee.

Therefore, we remand to the trial court to vacate its November 20, 2008, order setting aside the order of summary administration and reinstate the order of August 22, 2006.

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ, concur.

      . Fla. R.App. P. 9.130(a)(4).

      . Fla. Prob. R. 5.530(b).

      . Fla. R. Civ. P. 1.540(b)(4).


author: MONACO, C.J.

text:
    Calvin A. JOHNSON, Appellant, v. Velma Virginia SKARVAN, Appellee.
    No. 5D09-945.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Calvin A. Johnson, Atlanta, GA, pro se.
    No Appearance for Appellee.
   MONACO, C.J.

We have for review the order of the trial court dismissing the complaint of the appellant Calvin A. Johnson, with prejudice. Because the order contains insufficient findings, we reverse and remand for further consideration.

The trial court dismissed Mr. Johnson’s complaint at a pretrial conference. Based on the odd happenings that preceded the dismissal, we can guess that the trial judge may have taken that action because he perceived that Mr. Johnson had failed to comply with one or more court orders. In any event, the order dismissing the complaint simply read:

Upon consideration of the pretrial hearing on March 9, 2009,[] with the plaintiff appearing Pro Se, and David Collins appearing for the Defendant, Velma Virginia Skarvan, this court orders and adjudges as follows:
1. The plaintiffs[,] Calvin Johnson, lawsuit against the defendant Velma Virginia Skarvan is hereby dismissed with prejudice.

Dismissal with prejudice is an extreme sanction that should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result. Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993); but see Levine v. Del Am. Props., Inc., 642 So.2d 32 (Fla. 5th DCA 1994) (affirming an order of dismissal that detailed with particularity the disruptive and contumacious behavior of the litigant as the reason for the sanction of dismissal and finding that the factors set forth in Kozel do not apply where the disruptive behavior is caused by the litigant and not the litigant’s lawyer). While a trial court undoubtedly has discretion after due consideration of the Kozel factors to dismiss a complaint for noncompliance with a court order, the dismissal order must contain explicit findings of willful noncompliance. See Scallan v. Marriott Int’l, Inc., 995 So.2d 1066 (Fla. 5th DCA 2008); see also Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990). While the trial court may well have been justified in dismissing the present case with prejudice, the lack of the requisite finding of willful noncompliance in the order and the failure to consider the Kozel factors requires reversal. Id.; see also Hanna v. Indus. Labor Serv., Inc., 636 So.2d 773 (Fla. 1st DCA 1994). We, therefore, reverse and remand for further consideration consistent with this opinion.

REVERSED and REMANDED.

GRIFFIN and TORPY, JJ„ concur.

      . We previously considered this case in Johnson v. Skarvan, 992 So.2d 873 (Fla. 5th DCA 2008).

      . The order misstates the date of the pretrial conference; it was held on March 4, 2009.


author: KHOUZAM, Judge.

text:
    Michael J. McCORMACK, Appellant, v. James R. FLENS, Appellee.
    No. 2D08-3683.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.

      Michael J. McCormack, pro se.
    Dale R. Sisco and Stacy A. Estes of Dale R. Sisco, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

Michael J. McCormack appeals a final judgment that granted James R. Flens’ motion for directed verdict as to civil theft after the return of a favorable jury verdict. We reverse and remand with directions to reinstate the jury verdict in favor of Mr. McCormack.

The evidence, taken in the light most favorable to Mr. McCormack, reflects that Mr. McCormack paid Dr. Flens, a psychologist, an $8000 retainer to conduct a child custody evaluation. Dr. Flens then spent several hours interviewing Mr. McCor-mack and his former wife, performing psychological tests, and reviewing records. In September 2006, Mr. McCormack and his former wife reached an agreement regarding child custody. Mr. McCormack then called Dr. Flens twice to ask for a refund of the unearned portion of the retainer. Mr. McCormack also sent a certified letter to Dr. Flens on December 1, 2006, in which he sought a refund and an itemized statement of the actual hours billed in his case. When Dr. Flens did not return the money, Mr. McCormack’s attorney sent a letter demanding treble damages for civil theft. Mr. McCormack subsequently filed suit against Dr. Flens.

On March 28, 2007, Dr. Flens’ attorney sent an accounting of the hours billed in Mr. McCormack’s case and offered to return the retainer balance of $4250 in exchange for the voluntary dismissal of the lawsuit. On that same day, Mr. McCor-mack’s attorney sent a revised demand letter seeking treble damages based upon the $4250 amount. On May 15, 2007, the trial court granted Mr. McCormack’s motion to amend his complaint to reflect the adjusted amount. The file stamp, however, indicated that the amended complaint was filed on April 3, 2007.

Following a trial, the jury returned a verdict in favor of Mr. McCormack as to conversion and civil theft. The trial court granted Dr. Flens’ renewed motion for a directed verdict on the civil theft claim on the grounds that Mr. McCormack failed to comply with the notice requirements of the civil theft statute and because there “were no overt actions to evince [Dr. Flens’] intent to deprive [Mr. McCormack] as a civil theft.” For the reasons discussed below, we find that the trial court erred in granting Dr. Flens’ motion.

Under the civil theft statute, a potential plaintiff must first make a written demand for payment upon a defendant and, if the defendant complies with the demand within thirty days, the defendant is released from further liability. See § 772.11, Fla. Stat. (2006). Because Mr. McCormack apparently filed his amended complaint less than thirty days after the second demand letter was delivered to Dr. Flens’ attorney, the trial court determined that a directed verdict should be granted on this basis. We disagree. Dr. Flens never paid the amended treble damage amount, and thus he failed to demonstrate that he was prejudiced by the premature filing. See Christopher Adver. Group, Inc. v. R & B Holding Co., 883 So.2d 867, 875-76 (Fla. 3d DCA 2004) (finding that trial court erred in granting directed verdict because defendant never paid the treble damage amount and did not suffer any harm from the premature filing of the civil theft claim). Dr. Flens also failed to raise this issue in a motion to dismiss or a motion for summary judgment. See In re Naturally Beautiful Nails, Inc., 262 B.R. 131, 135 (Bankr.M.D.Fla.2001) (“By its failure to timely seek a dismissal of the claim ... and the parties having proceeded with extensive discovery and preparation for trial, this Court is satisfied that [the defendant] is estopped to raise the defense now.”).

We further find that there was evidence in the record to support the jury’s verdict in favor of Mr. McCormack on the civil theft claim. In his March 28, 2007, letter, Dr. Flens’ attorney conceded that Dr. Flens owed Mr. McCormack a retainer balance of $4250. Dr. Flens, however, did not attach a check or a promissory note to the letter and did not otherwise return the money to Mr. McCormack. Under these facts, a jury could conclude that Dr. Flens was hable for civil theft because he kept the retainer balance after acknowledging that the money belonged to Mr. McCor-mack. See § 812.014.

We therefore conclude that the trial court erred in granting Dr. Flens’ renewed motion for a directed verdict. Accordingly, we reverse and remand with directions to reinstate the jury verdict as to the civil theft count.

Reversed and remanded.

WHATLEY and DAVIS, JJ„ Concur.

      . We decline to address the issue of whether the amended complaint was actually prematurely filed.

      . Section 812.014 defines theft as follows:
      (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit from the property.
      (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.


author: WHATLEY, Judge. KELLY, J.,

text:
    Glenford BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-152.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Glenford Brown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

This is an Anders appeal of Glenford Brown’s convictions and sentences for possession of cocaine with intent to sell within 1000 feet of a church, possession of drug paraphernalia, and resisting arrest without violence. Brown filed a pro se brief raising four issues, to which the State responded. We affirm all but Brown’s first point on appeal.

Brown argues that the trial court’s sentence was vindictive because the court commented on his lack of remorse and protestations of innocence. The State argues that Brown failed to preserve this issue by objecting at sentencing or filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). The State further argues that even if Brown had preserved this issue, the court’s comments were in response to Brown’s motion for a downward departure sentence based on, inter alia, remorse.

At sentencing, the trial court stated that it was not going to follow the State’s recommendation because Brown had shown absolutely no remorse. When Brown responded that he was asking for mercy, the court stated, “Well you should have at least showed some remorse, which I thought you were going to do. And I believe you know [sic] what you were doing.”

In Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009), this court began by noting that rule 3.800(b) “is not the proper mechanism for preserving for appeal the issue of whether the court improperly considered certain factors in imposing sentence” because it is the mechanism for preserving issues regarding the sentencing order. This court went on to reverse Han-num’s sentence as a denial of due process and fundamentally erroneous because in imposing it, the trial court improperly considered Hannum’s protestations of innocence and improperly considered the truthfulness of his testimony at trial. Id. (“It is impermissible for a trial court to consider a defendant’s assertions of his innocence and refusal to admit guilt in imposing sentence.”).

Similarly, here the trial court specifically said that it was not following the State’s recommendation but was imposing a longer sentence because Brown did not show any remorse; it did not say it was denying Brown’s motion for a downward departure based on remorse because Brown did not show remorse. “Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. Reliance on these impermissible factors violates the defendant’s due process rights.” Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004) (citations omitted).

Accordingly, we reverse Brown’s sentences and remand for resentencing before a different trial judge. See Hannum, 13 So.3d at 136.

Reversed and remanded with directions.

LaROSE, J., Concurs.

KELLY, J., Concurs with opinion.

KELLY, J.,

Concurring.

I concur in reversing only because I believe we cannot distinguish prior cases from this court and those cases mandate reversal.

The majority opinion cites Ritter and Hannum for the proposition that a trial court cannot consider a defendant’s lack of remorse or unwillingness to admit guilt as an aggravating factor when imposing sentence. Hannum, in turn, cites this court’s decision in Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009) (quoting Ritter and holding that “it is constitutionally impermissible for [a sentencing court] to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt”). 13 So.3d at 135-36. This trio of cases, two of which we are bound to follow, stand generally for the proposition that because a defendant has the right to testify at his trial and has the right not to incriminate himself, a sentencing judge violates the defendant’s right to due process if he considers the defendant’s lack of remorse, his failure to take responsibility, or his lack of truthfulness when determining the length of the defendant’s sentence. These cases misconstrue the applicable law.

In Bracero, Hannum, and this case, the defendants testified at trial and during their sentencing hearings. As did the defendant in this case, the defendants in Bracero and Hannum testified in a manner that convinced the trial judge they had been untruthful. In each case the defendants also tried to shift or deflect blame to others. The sentencing judge in each case imposed a sentence that was harsher than the sentence sought by the prosecutor, presumably because of the defendants’ attitude, untruthfulness, lack of remorse, or failure to accept responsibility. In each case this court reversed after concluding that the sentencing judge had violated the defendants’ right to due process when he or she took these factors into account when deciding the length of the defendants’ sentences. In so holding, these cases depart from the principle that a sentencing judge may constitutionally consider an almost unlimited range of information in determining an appropriate sentence. See United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978).

Undeniably, when determining an appropriate sentence there are things the sentencing court may not constitutionally consider. The due process clause of the Fifth Amendment prohibits a judge from relying on materially false or unreliable information, see, e.g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Valentine, 21 F.3d 395 (11th Cir.1994), or from vindictively inflicting a harsher punishment on the defendant for exercising his constitutional right to trial, see, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), or for invoking his privilege against self-incrimination. See, e.g., Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); United States v. Johnson, 903 F.2d 1084 (7th Cir.1990). When a defendant has invoked his privilege against self-incrimination, and therefore does not testify, the sentencing judge is prohibited from drawing a negative inference, such as lack of remorse, from the defendant’s silence. Mitchell, 526 U.S. at 328-30, 119 S.Ct. 1307 (holding that a sentencing court may not draw an adverse inference from a defendant’s silence at trial or at sentencing). That does not, however, equate to a blanket prohibition against considering a defendant’s lack of remorse. As the court explained in Johnson, 903 F.2d at 1090:

The due process clause of the fifth amendment prohibits a court from punishing a defendant for exercising a constitutional right. There is a distinction, however, between punishing a defendant for exercising his right to remain silent and considering the defendant’s character in determining an appropriate sentence.
It is well established that a sentencing judge may consider lack of remorse when imposing a sentence. We recognize that it may sometimes be difficult to distinguish between punishing a defendant for remaining silent and considering a defendant’s failure to show remorse.

(citations omitted); see also Burr v. Pollard, 546 F.3d 828, 832 (7th Cir.2008) (explaining that remorse “is properly considered at sentencing because it speaks to traditional penological interests such as rehabilitation (an indifferent criminal isn’t ready to reform) and deterrence (a remorseful criminal is less likely to return to his old ways)”).

Similarly, a defendant’s right to testify, a necessary corollary of his right to refuse to testify, is not infringed when a sentencing judge penalizes a defendant for untruthful testimony. Once a defendant chooses to testify, he places his credibility at issue, and the sentencing court may take his statements and demeanor into consideration. See Grayson, 438 U.S. at 50, 98 S.Ct. 2610 (“A defendant’s truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing.”). In Grayson, the Supreme Court addressed the defendant’s argument that judicial consideration of his conduct at trial impermis-sibly “chills” a defendant’s right to testify on his own behalf:

The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath-unless we are to say that the oath is mere ritual without meaning. This view of the right involved is confirmed by the unquestioned constitutionality of perjury statutes, which punish those who willfully give false testimony.... Assuming, arguendo, that the sentencing judge’s consideration of defendants’ untruthfulness in testifying has any chilling effect on a defendant’s decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury.
Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant’s testimony on the stand, determine — with a consciousness of the frailty of human judgment— whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.

438 U.S. at 54-55, 98 S.Ct. 2610. See also Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (When the defendant decides to testify, “regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.”); cf. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (holding that, once a defendant decides to “cast aside his cloak of silence” and testify, the Fifth Amendment is not violated when his earlier silence is used to impeach his credibility).

In concluding that sentencing judges are prohibited from taking a defendant’s untruthfulness or lack of remorse into account in sentencing, Hannum and Bracero rely at least in part on Holton v. State, 573 So.2d 284 (Fla.1991), and City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla.1985). Thus, even if a majority of this court were inclined to recede from Han-num and Bracero, we would be unable to do so. Unless the supreme court revisits its cases, Florida’s judges will continue to be denied the ability to consider conduct that, at least under the Constitution of the United States, they otherwise would be able to take into account when determining the length of a defendant’s sentence.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . This list is not intended to be exhaustive, but rather to list areas where a defendant’s right to due process is implicated.

      . In Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Court explained that a defendant's right to testify is not only a corollary of his Fifth Amendment guarantee against compelled testimony, it also emanates from the Fourteenth Amendment’s guarantee of due process, i.e., his right to be heard and from the Compulsory Process Clause of the Sixth Amendment, i.e., the right to call “witnesses in his favor." Id. at 51-53, 107 S.Ct. 2704.


text:
    Shannon Wayne HARROLD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3379.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.

      Shannon W. Harrold, Orlando, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial order, without prejudice to Appellant’s ability to bring forward the same claims in a timely filed Rule 3.850 motion.

AFFIRMED Without Prejudice.

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


author: ORFINGER, J.

text:
    Nathaniel J. BEARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4080.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.

      Nathaniel Beard, Graceville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Nathaniel Beard was convicted of conspiracy to commit burglary of a dwelling (count 1) and conspiracy to commit robbery (count 2). The trial court imposed a five year prison term on count 1, and a concurrent three-year prison term on count 2. Several weeks after sentencing, the trial court entered an amended judgment, changing the prison terms to run consecutively to each other rather than concurrently. The effect of the amended sentence was an increase in Beard’s prison time from five years to eight years.

Beard subsequently filed a motion for clarification, which the trial court properly treated as a motion for relief under Florida Rule of Criminal Procedure 3.800(a). Beard contended that the trial court’s oral pronouncement and original sentence, which imposed concurrent prison terms, and the amended judgment, making the prison terms consecutive, created a discrepancy between the written and oral sentence. However, he did not attach a sentencing transcript to his motion. The trial court denied the motion, concluding that “while the judgment and sentence reflects that the sentence on count 2 was to run concurrent to count 1, a corrected sentence as to count 2 was filed ... re-fleeting that count 2 was to run consecutive to count 1.” Beard appeals, and the State concedes that remand is necessary to determine if there is indeed a discrepancy between the oral and written sentences. The State further concedes that should the sentencing transcript reveal a discrepancy between the oral and written sentences, the oral sentence is controlling.

A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence. Williams v. State, 957 So.2d 600, 603 (Fla.2007); Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). When a discrepancy exists, the oral pronouncement controls over the written. See Williams, 957 So.2d at 603. Once a sentence is imposed and the defendant begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy. See Ashley, 850 So.2d at 1267.

As in all motions filed under rule 3.800(a), the movant bears the burden to demonstrate a sentencing error apparent from the face of the record. In Williams, the supreme court held that

since we have held that the oral pronouncement is, in effect, the controlling disposition, we also conclude that the oral imposition of sentence should at all times be considered a necessary part of the official record if a transcript of the sentencing proceeding is in the court file or, alternatively, a petitioner attaches a certified copy of the sentencing transcript to the rule 3.800(a) motion. In this way the burden remains with the petitioner to demonstrate an entitlement to relief on the face of the record. If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without prejudice to the filing of an amended motion properly attaching the sentencing transcript.

957 So.2d at 604. The record before us does not contain the transcript of the sentencing hearing nor was it attached to Beard’s motion or the trial court’s order. Consequently, we must remand the case to the trial court to determine if the transcript is in the record. If it is, the trial court shall either grant the relief that Beard seeks or attach portions of the sentencing transcript that refute Beard’s claim. If the transcript is not in the record, Beard’s motion shall be denied without prejudice to allow him to file an amended motion with the transcript attached. Id.

REVERSED AND REMANDED.

SAWAYA and JACOBUS, JJ., concur.

      . Beard's convictions and sentences for armed burglary of a dwelling (count 3) and attempted burglary with a deadly weapon (count 4) are not at issue in this appeal.


text:
    Richard H. ELBERT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3702.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.

      Richard H. Elbert, Jr., pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Richard Elbert appeals an “Order Removing Prison Credit” entered by the trial court on July 10, 2009. We reverse because the court lacked jurisdiction to enter the order and the order violates Elbert’s double jeopardy rights.

This proceeding was initiated in June 2009 with the State’s filing of a Request for Order Removing Prison Credit in three cases that originated in 1991. Elbert was sentenced in 1993 to true split sentences of twenty-five years, suspended after five, with the remainder to be served on supervision. After his release from prison, he violated his supervision, entered pleas to the violations, and was sentenced to concurrent terms of twenty years in prison in April 1995. Although the trial court did not orally announce that Elbert was being given prison credit for the original sentences, the 1995 sentencing documents show the block checked for Prison Credit, indicating: “It is further ordered that the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resen-tencing.”

In its Request for Order Removing Prison Credit, the State argued that the Department of Corrections was misinterpreting case law in calculating Elbert’s release date and it asked the trial court to enter an order “removing the prison credit from the original sentencing orders.” The trial court granted the State’s request and entered the July 2009 order under review. The order states that Elbert is not to receive credit for the prison time he served on his initial sentences toward the twenty-year sentences he received in April 1995 and “that the provisions, on the original sentencing orders, providing for credit for prison time, are to be removed.” Elbert then sought review in this court, asserting that the lower court’s order was void, illegal, and unenforceable. We agree.

The State’s motion seeking an order removing Elbert’s prison credit was unauthorized. See, e.g., Linnon v. State, 988 So.2d 70, 72-73 (Fla. 2d DCA 2008) (discussing the State’s authority to file a motion to modify sentence under Florida Rule of Criminal Procedure 3.800). The trial court lacked jurisdiction to enter the order. See Cunningham v. State, 968 So.2d 119, 121 (Fla. 4th DCA 2007) (“[T]he trial court had no jurisdiction to sua sponte reduce the amount of jail credit more than two months after sentencing.”). The trial court violated Elbert’s double jeopardy rights when it entered its order to alter the sentence by removing the prison credit. See Stang v. State, 24 So.3d 566, 569 (Fla. 2d DCA 2009) (“[A] trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy.”); Delemos v. State, 969 So.2d 544, 547-51 (Fla. 2d DCA 2007) (discussing generally the double jeopardy prohibition against multiple punishments for the same offense). We therefore reverse the order of July 10, 2009, and remand with directions to the trial court to reinstate the April 1995 sentences.

Reversed and remanded with directions.

WHATLEY, KELLY, and WALLACE, JJ., Concur.


text:
    Todd Alan GRANT, Petitioner, v. Heather R. KOPP, Respondent.
    No. 5D09-3423.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Todd Alan Grant, pro se, Orlando.
    No Appearance for Respondent.
   PER CURIAM.

Todd Alan Grant sought habeas corpus release after being sentenced to 179 days for civil contempt, for failing to pay court-ordered child support and failing to complete a court-ordered Batterer’s Intervention Program. We agreed that release was mandated and ordered Grant’s immediate discharge, with this opinion to follow.

In his petition, Grant argued that the trial court failed to make the appropriate findings that he has the present ability to pay the purge amount set by the court, and in fact, he argues that he does not have the ability to pay the purge amount. Under the facts of this case, no written order was rendered beyond a court minutes action document. According to the court minutes, Grant was held in civil contempt and a purge amount was set at $1,116.75. As such, the Department of Revenue, as Appellee, was ordered to respond to the petition. No response was filed with this Court to refute Grant’s assertions. It is well settled that an order of civil contempt for failure to pay child support requires findings of willful failure to pay ordered amounts. If incarceration is ordered as a result of the contempt, the court must make the affirmative finding that the contemnor possesses the present ability to comply with the purge. Miller v. Murrah, 14 So.3d 1019 (Fla. 5th DCA 2009); Brown v. Brown, 658 So.2d 627 (Fla. 5th DCA 1995). Since no written order was rendered setting forth the requisite findings to support incarceration, we grant the petition for writ of habeas corpus, immediate release having previously been ordered.

PETITION GRANTED.

ORFINGER, TORPY and COHEN, JJ. concur.


author: PER CURIAM. COHEN, J.,

text:
    Joseph W. FINFROCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1292.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Joseph W. Finfrock, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

PALMER and TORPY, JJ., concur.

COHEN, J., concurs and concurs specially, with opinion.

COHEN, J.,

concurring specially.

Notwithstanding my agreement with the panel that relief is procedurally barred as being successive, I write to discuss the exception to the two-year time limit to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850(b). Appellant contends that his request for postconviction relief was timely because he was not informed of the collateral consequences of his plea under the Jimmy Ryce Act and could not have known of them until he was subjected to civil commitment proceedings at the completion of his sentence. Appellant’s claim is based upon the failure to advise, rather than affirmative misadvice.

In Peart v. State, 756 So.2d 42, 46 (Fla.2000), the court held that the two-year period for moving to withdraw a plea on grounds that the trial court failed to advise the defendant that the plea could result in deportation begins “when the defendant has or should have knowledge of the threat of deportation based on the plea.” Six years later, noting that “[s]tare decisis yields “when an established rule of law has proven unacceptable or unworkable in practice,’ ” the supreme court, in State v. Green, 944 So.2d 208, 217-18 (Fla.2006), receded from Peart, holding that “[tjhese claims must be brought within two years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.” (Citations omitted.)

Green is most often cited in the context of collateral immigration or deportation consequences, but its strict application of the two-year limit has also been applied in other contexts. See, e.g., Ey v. State, 982 So.2d 618 (Fla.2008) (affirmative misadvice concerning a plea’s effect on subsequent sentencing enhancement for another crime committed before the plea was entered); Flint v. State, 13 So.3d 70 (Fla. 2d DCA 2009) (affirmative misadvice by counsel that defendant would not be entitled to basic and incentive gain time on a plea offer); Chandler v. State, 1 So.3d 284 (Fla. 2d DCA 2009) (failure to advise defendant that plea would subject him to conditional release upon his release from imprisonment); Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008) (affirmative misadvice by counsel about the effect of a plea and withhold of adjudication on professional licensing).

Green should also be equally applicable in the context of collateral consequences under the Jimmy Ryce Act. I question the contention that one could not, with the exercise of due diligence, discover the possibility of civil commitment within two years of the conviction becoming final. Rather, I agree with the Fourth District when it expressed confidence that any collateral civil consequence which might reasonably cause a defendant to not enter a plea can be discovered with due diligence within two years of a conviction becoming final. Marshall, 983 So.2d at 684. This seems particularly true when the publication of law and statutes of Florida gives all citizens constructive notice of the consequences of their actions. State v. Beasley, 580 So.2d 139, 142 (Fla.1991).

In any event, Appellant failed to file within two years after his conviction became final in 2003, as required by rule 3.850(b). “Procedures are not simply ‘technical’ niceties.” Green, 944 So.2d at 216 (quoting Provenzano v. State, 750 So.2d 597, 604 (Fla.1999) (Lewis, J., concurring)). The credibility of the criminal justice system depends upon both fairness and finality. The time limitation of rule 3.850 accommodates both interests. See Marrero v. State, 967 So.2d 934, 937 (Fla. 2d DCA 2007). A contrary rule would unreasonably extend the time limit for bringing a postconviction motion indefinitely, which is contrary to the strong public interest in finality for criminal convictions. Id.

      . §§ 394.910, et seq., Fla. Stat. (2008).

      . Based on the applicable law when Appellant pled nolo contendere in 2003, the failure of the trial court or counsel to advise him of this collateral consequence did not render his plea involuntary and did not provide a basis on which to withdraw the plea. See Watrous v. State, 793 So.2d 6, 10 (Fla. 2d DCA 2001). Since then, the Florida Supreme Court promulgated Florida Rule of Criminal Procedure 3.172(c)(9) to require trial courts to admonish defendants during a plea colloquy of the possibility of civil commitment in particular circumstances. In re Amendments to Florida Rule of Criminal Procedure 3.172, 911 So.2d 763 (Fla.2005).


text:
    Juan GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3044.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.

      Juan C. Gutierrez, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Juan Gutierrez appeals the denial of his rule 3.850 motion alleging his trial attorney was ineffective for failing to investigate and present a potential alibi witness. We reverse to allow the trial court an opportunity to conduct an evidentiary hearing.

Gutierrez pled no contest to aggravated battery on a law enforcement officer and grand theft of a motor vehicle, and was placed on four years’ probation with a special condition that he serve time in county jail. Gutierrez was subsequently charged with violating his probation by driving while license suspended and fleeing a law enforcement officer. At his violation of probation (“VOP”) hearing, Gutierrez requested a new attorney, asserting that his trial counsel only met with him two weeks prior to the hearing and he felt he was being “pushed” and “rushed into something.” The trial court conducted a Nelson hearing on this claim. Defense counsel responded that she met with Gutierrez, was told of his defense, and took proper steps to ensure the presence of his witness at the hearing. The trial court, seeing that Gutierrez’s witness was present for the VOP hearing, denied his request for a new attorney, and proceeded with the VOP hearing.

At the hearing, a police officer testified that he saw Gutierrez operating a vehicle, knew him from past encounters and knew his license was suspended. Gutierrez’s brother, David, was also in the vehicle. The officer attempted to pull over the vehicle, but the driver refused to stop and eventually eluded the officer.

Gutierrez’s brother testified that he, not Gutierrez, was driving the car on the day in question. He further testified that Gutierrez was not in the car, but rather, a friend was in the car with him. The defense attorney argued that Gutierrez was not in the vehicle and that the police officer misidentified his brother as Gutierrez.

The trial court found Gutierrez violated his probation by fleeing and eluding a police officer and driving while license suspended. Gutierrez’s probation was revoked and he was sentenced to twenty-five years’ incarceration on the aggravated assault on a law enforcement officer conviction, and a concurrent five years’ incarceration on the grand theft conviction. The revocation and sentences were affirmed per curiam without opinion. See Gutierrez v. State, 892 So.2d 1054 (table) (Fla. 5th DCA 2005).

Gutierrez subsequently filed a rule 3.850 motion asserting that his trial counsel failed to investigate or call a potential alibi witness. Specifically, he claimed that he informed his counsel, prior to the VOP hearing, that his boss, Jorge Anderson, was available to testify that, on the day of the incident, Anderson and he were working together refurbishing a house. Gutierrez argued that Anderson’s testimony would have demonstrated his innocence.

The trial court denied Gutierrez’s rule 3.850 motion because his counsel stated at the Nelson hearing, that Gutierrez related that he was not in the car and listed his brother as a witness to support this defense. The trial court noted that Gutierrez did not contradict his counsel’s statements or inform the trial court during the Nelson hearing that he had another witness, Jorge Anderson. Further, the trial court concluded that the VOP transcript conclusively refuted Gutierrez’s claim because he did not inform the trial court that he was working on a house with Anderson at the time of the incident, and there was no indication that he told his counsel about Anderson prior to the hearing.

The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to east doubt on the defendant’s guilt. Ford v. State, 825 So.2d 358, 360-61 (Fla.2002); Spellers v. State, 993 So.2d 1117, 1118 (Fla. 5th DCA 2008). If a motion presents a facially sufficient claim of ineffective assistance of counsel for failing to call a witness, the movant is entitled to an evidentiary hearing unless the motion is conclusively refuted by the record or is otherwise procedurally barred. Jacobs v. State, 880 So.2d 548, 550-51 (Fla.2004); Spellers, 993 So.2d at 1118. To set forth a facially sufficient claim, the movant must allege the identity of the potential witness, the substance of the witness’s testimony, how the omitted testimony prejudiced him, and that the witness was available for trial. Spellers, 993 So.2d at 1118.

The transcript attached to the trial court’s order does not conclusively refute Gutierrez’s claim that his counsel failed to investigate a potential alibi witness. Although the trial court denied, in part, the motion because Gutierrez failed to mention that he wanted another witness called, the transcript indicates that he may not have been afforded the opportunity to do so. During the Nelson hearing, Gutierrez explained why he wanted a new attorney. His attorney explained she was informed of his alibi and took steps to secure the necessary witnesses. After denying Gutierrez’s motion to discharge counsel, Gutierrez stated, “Your Honor?” The trial court replied, “We’re done talking.” Similarly, after the trial court found Gutierrez violated his probation, the trial court gave him the opportunity to address the court by stating, “You’re about to get sentenced. Do you want to say anything to me about that[?]”

In Law v. State, 847 So.2d 599, 600 (Fla. 5th DCA 2003), this court reversed an order denying postconviction relief where a defendant claimed his counsel was ineffective in failing to call two alibi -witnesses. The trial court denied the motion, pointing out that when the trial court questioned the defendant, the defendant indicated that the court should let defense counsel do his job “in the best way he can,” and that the defendant could have complained at the time about counsel’s failure to call witnesses. Id. This court concluded that based on the record, the defendant made those comments in connection with his decision to testify, rather than his right to call witnesses. However, this court added that the defendant’s statement indicating satisfaction, made after the State had rested, may have been based on his belief that it was too late to call witnesses. Id.

Likewise, in Hamilton v. State, 860 So.2d 1028 (Fla. 5th DCA 2003), this court reversed the summary denial of a claim that counsel failed to call a witness. The trial court based its denial on record excerpts of the defendant’s negative responses when the trial court asked him if there was anything else he needed to present to the jury. This court found the record did not conclusively refute the defendant’s claim because although he initially stated that he did not wish to present further evidence or witnesses, when he asked if he could confer with counsel, the trial court replied that he could, but “no matter what the answer, we’re leaving.” Id. at 1030.

Similar to Law and Hamilton, the record does not refute Gutierrez’s claim because he either was not given the opportunity to indicate he wanted another witness called, or may have thought it was too late to so inform the trial court. Accordingly, we reverse for an evidentiary hearing.

REVERSED AND REMANDED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).