author: DAVIS, Judge.

text:
    Mark LADNER and Diane DiGirolamo, Appellants, v. AmSOUTH BANK, Appellee.
    No. 2D08-3540.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2009.

      G. Richard Strafer of G. Richard Strafer, P.A., Miami, for Appellants.
    Cathy S. Reiman and Marc A. Huling of Roetzel & Andress, LPA, Naples, for Ap-pellee.

      . Although the coversheet introduced by the Ladners does not contain a date of the fax transmission, the Ladners also introduced a copy of their telephone bill, which included the fax number of AmSouth and demonstrated that the fax transmission was made on August 12, 2002.

   DAVIS, Judge.

Mark Ladner and Diane DiGirolamo (the Ladners) appeal the final judgment entered in favor of AmSouth Bank on June 16, 2008, following a nonjury trial on their three-count amended counterclaim. We affirm in part, reverse in part, and remand for a new trial on portions of counts one and three of the Ladners’ counterclaim.

On August 14, 2002, the Ladners, residents of Chicago, entered into an agreement with Jerry Hancock, an agent of Water Color Homes, Inc. (Water Color), by which Water Color was to construct a home for the Ladners on North Captiva Island. At Hancock’s suggestion, the Lad-ners contacted AmSouth to obtain financing for the project. AmSouth and the Ladners entered into a loan agreement on October 3, 2002, by which AmSouth agreed to loan the Ladners the funds needed to construct the home and the Ladners agreed to execute a mortgage on the home as collateral for the loan. Once both the construction and loan agreements were signed and after the closing on the loan, the project began.

In August 2003, AmSouth instituted a foreclosure action, alleging that the project had been abandoned and that the loan funds improperly had been diverted from the home construction in violation of the loan agreement. In response to the foreclosure complaint, the Ladners filed a series of counterclaims. Trial proceeded on their fourth amended counterclaim, in which the Ladners raised three distinct counts against AmSouth. Count one alleged that AmSouth made fraudulent representations to induce the Ladners to enter into the construction agreement with Water Color and the loan agreement with the bank. Count two alleged that Am-South had breached the loan agreement by making improper disbursements of the loan proceeds. Count three alleged that AmSouth made negligent misrepresentations upon which the Ladners relied in entering the construction agreement and the loan agreement.

After the nonjury trial, the trial court entered a final judgment in favor of Am-South, finding that

there was not a basis for either the fraudulent or negligent misrepresentations and [that] there [was] not a breach of contract in this matter. The contract documents were clear and the plaintiffs did not have a right to rely on the oral allegations when they are specifically contradicted in the written documents which they have [sic] the chance to sign.

It is this judgment that the Ladners now appeal.

This case is complicated by the fact that the issue of the Ladners’ reliance on the misrepresentations by AmSouth relates to two separate and distinct contracts executed by the Ladners — the loan agreement with AmSouth and the construction agreement with Water Color. The essence of the misrepresentations alleged by the Lad-ners involve oral statements made by an employee of AmSouth regarding the fund disbursement procedures that would be followed during the construction and false recommendations that Water Color was a reputable builder.

In the loan agreement signed by the Ladners, AmSouth specifically outlined disbursement procedures contrary to those allegedly represented orally to the Lad-ners. The contract further specified as follows:

■ Borrower further agrees that Borrower will not hold Lender responsible or liable in any manner whatsoever for any claims, losses or damages which Borrower may suffer or incur (including without limitation any claim with respect to the amount of funds disbursed in relation to the degree of completion of construction of the Improvements, the quality of the Improvements or materials contained therein, the failure of Contractor to pay materialmen, artisans, suppliers, subcontractor or other lienors ...) as a result of or relating to or arising out of (a) the making of Advances by Lender to Contractor upon the request of Contractor (b) the disbursement of Loan proceeds directly to Contractor or (c) the modification or waiver by Lender, or the failure of Lender to comply with or require compliance with, any or all of the requirements of Section 1.05(b) of the Agreement prior to making any Advance, Borrower expressly acknowledges, understands and agrees that the making of Advances and the payment of drafts directly to Contractor (rather than to Borrower) is for the sole convenience of and benefit to Borrower, and it is Borrower’s intent that Lender shall not suffer, incur or be exposed to any liability by reason of Lender’s compliance or attempted compliance with the terms of this Amendment, whether or not Lender’s actions or inactions in complying or attempting to comply with this Amendment are deemed to be negligent. Accordingly, Borrower further acknowledges, understand^] and agrees that the foregoing release and indemnification provisions operate to release and indemnify Lender with respect to Lender’s own negligence.

Additionally, prior to the execution of the loan agreement, the Ladners acknowledged receiving a document entitled “Important Notice to Construction/Permanent Loan Applicants,” which provided that the choice of a builder for the construction of the home was the responsibility of the borrower and that the bank made “no recommendation of the builder.”

Based on these contractual provisions, the trial court determined that AmSouth was not liable for any damages stemming from the Ladners’ reliance on oral representations made by AmSouth either in regard to the requirements for the disbursement of funds or the choice of a builder. The court also concluded that by the terms of the loan agreement, the Ladners relieved AmSouth of any liability regarding the use of loan funds disbursed during the construction. We agree. Accordingly, we affirm the trial court’s ruling in favor of AmSouth as to all three counts as they relate to the contractual relationship between the Ladners and AmSouth.

However, the Ladners further allege that they detrimentally relied on Am-South’s alleged misrepresentations when entering into the construction agreement with Water Color. We conclude that the trial court did not adequately address this allegation as set out in counts one or three.

In count one, the Ladners allege that AmSouth had negative information regarding the financial integrity of Water Color prior to the Ladners’ signing the construction agreement. Specifically, they allege that Water Color had “bounced” checks at AmSouth, that Water Color had not paid subcontractors on other construction projects financed by AmSouth, that Water Color had submitted “fraudulent or improperly prepared documents in support of disbursement requests,” and that there was a suspicion that Water Color was “kiting” checks. The Ladners alleged that even though AmSouth was aware of this information, the bank’s representatives spoke highly of the construction company and suggested that the company always submitted proper documents for disbursements and that the bank had never had a problem with the builder. The Ladners specifically allege in count one that they “would not have executed the documents but for the l'epresentations and assurances of AmSouth.” Additionally, in count three, the Ladners allege that “[h]ad [they] known the actual and true facts concerning Water Color Homes they would not have entered into the construction agreement.”

In its final judgment, the trial court determined that count one of the counterclaim did not sufficiently state a claim of reliance “in regard to [the Ladners] entering a construction contract with [Water Color], the builder.” We disagree with this conclusion.

The determination of the sufficiency of a pleading is a matter of law and subject to a de novo review. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002) (“First, [w]hether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling below is subject to de novo review.” (alteration in original) (citation and internal quotation marks omitted)). In reading the pleading at issue here, a question arises as to whether the use of the term “documents” in paragraph 14 of count one of the Ladners’ counterclaim is limited to referring only to the loan agreement and addendum or also refers to the construction agreement with Water Color.

Count one initially recites the representations alleged to have been made by Am-South regarding the builder and the negative information that the bank allegedly had knowledge of when making the representations to the Ladners. The complaint then alleges in relevant part:

10. The Ladners proceeded with the processing of their loan application in reliance upon the representations of AmSouth regarding the contractor and entered into a construction agreement with Water Color Homes.
11. Loan documents were forwarded to Illinois and the Ladners were asked to execute and return the documents as quickly as possible.... Mark Ladner signed the loan documents....
13. The statements of AmSouth ... were made with the intent to induce the Ladners into executing the loan documents including the Construction/Permanent Loan Agreement and addendum.
14. The Ladner [sic] reasonably relied on AmSouth’s statements and would not have executed the documents but for the representations and assurances of Am-South.

(Emphasis added.)

The trial court read the term “documents” in paragraph 14 to be limited to the loan agreement. This is understandable considering the use of the same term in conjunction with the word “loan” in the paragraphs immediately preceding. However, it is equally possible to read the term to include the earlier reference to the construction agreement in paragraph 10. We find this to be especially true in light of the omission of the word “loan” preceding the word “documents” in paragraph 14. That the latter interpretation was also the understanding of the parties was demonstrated to the trial court by the summary of count one included in AmSouth’s pretrial brief: “In the first count, titled ‘Fraud in the Inducement,’ Plaintiffs allege that loan officers with AmSouth fraudulently induced them to enter both a building contract with Water Color Homes, Inc. (‘Water Color’) and a loan agreement with AmSouth by making various false statements .... ” (Emphasis added.)

Because the complaint does specifically allege that AmSouth made the representations despite having knowledge of the builder’s allegedly questionable financial practices, and because paragraph 10 alleges that “[t]he Ladners proceeded with the processing of their loan application in reliance upon the representations of AmSouth regarding the contractor and entered into a construction agreement with Water Col- or Homes,” the pleading does refer to the construction agreement and sufficiently alleges a cause of action in that regard. Accordingly, the trial court’s conclusion that the pleading in count one of the counterclaim failed to allege that the fraudulent misrepresentations induced the Ladners to enter the construction agreement with Water Color is incorrect as a matter of law and requires reversal.

Furthermore, there is no question that count three of the counterclaim, alleging negligent misrepresentations by Am-South, is related to the construction agreement as it states, “In reliance on these representations the Ladners were induced to enter into a construction agreement with Water Color Homes. Had the Lad-ners known the actual and true facts concerning Water Color Homes they would not have entered into the construction agreement.” In its final judgment, however, the trial court concluded that the Lad-ners’ reliance on the alleged misrepresentations in entering into the construction contract was not reasonable in light of the terms of the notice and the loan agreement executed by the Ladners. While we agree with the trial court’s ruling as it relates to the execution of the loan agreement, at the time they entered the construction agreement with Water Color, the Ladners had no notice warning them not to rely on representations made by AmSouth regarding the builder, nor had they received the loan agreement that put them on notice as to their responsibilities in monitoring the use of the proceeds of the loan as they were dispersed by the bank. Thus the court’s determination that “there was not a basis for either the fraudulent or negligent misrepresentation” with regard to the construction agreement was in error.

On appeal, AmSouth suggests that the factual representations set forth by the Ladners show an ambiguity as to whether the construction agreement was signed before or after the representations concerning the builder were made by AmSouth’s representative. The evidence produced at trial, however, refutes this suggestion. Mark Ladner testified that he spoke with AmSouth’s employee by telephone on August 12, 2002. This was supported by the introduction of a copy of a document that was faxed to AmSouth pursuant to that telephone conversation. Mark Ladner further testified that it was during this telephone conversation that the representations at issue were made. The construction agreement was then signed on August 14, 2002. Accordingly, the physical evidence produced at trial supports the testimony of Mark Ladner that he had the telephone conversation prior to executing the construction agreement and well before he received the notice and loan agreement documents on September 30 and October 2, 2002.

Because the trial court did not find that the representations were not made but rather only that the Ladners were not justified in relying upon any representations that had been made, the final judgment must be reversed as to the allegations in count three relating to the construction agreement.

The trial court also relied upon the economic loss rule in determining that the Ladners’ claims were barred. However, we need not address whether the economic loss rule would bar the Ladners’ tort claims against AmSouth that stem from the loan agreement between the Ladners and AmSouth because, as previously stated, the terms of that contract foreclosed those claims.

We do note though that the economic loss rule would not act as a bar to the Ladners’ tort claims against AmSouth that stem from the Ladners’ reliance on AmSouth’s representations when entering into the construction contract with Water Color. “ ‘[W]hen ... fraud occurs in ... connection with misrepresentations, statements, or omissions which cause the complaining party to enter into a transaction, then such fraud is fraud in the inducement and survives as an independent tort.’” Output, Inc. v. Danka Bus. Sys., Inc., 991 So.2d 941, 944 (Fla. 4th DCA 2008) (quoting D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 487-88 (Fla. 4th DCA 2003)). “ ‘The economic loss rule has not eliminated causes of action based upon torts independent of the contractual breach....’” Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 537 (Fla.2004) (quoting HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla.1996)). Accordingly, we also reverse the trial court’s finding based on the economic loss rule as it applies to the Water Color contract.

Finally, we conclude without further comment that there is no merit to the Ladners’ argument on appeal that the trial court erred in enforcing the jury trial waiver clause included in their mortgage with AmSouth.

In summary, we affirm the portion of the trial court’s final judgment ruling in AmSouth’s favor on count two and the allegations in counts one and three that relate to the Ladners’ entering into the loan agreement with AmSouth. However, we reverse the trial court’s ruling on the allegations in counts one and three that relate to the contractual relationship between the Ladners and Water Color. We remand for a new trial solely on those issues.

Affirmed in part, reversed in part, and remanded for a new trial.

FULMER and WHATLEY, JJ., Concur.

      . Ladner and DiGirolamo, a married couple, filed a single initial brief in which they refer to themselves collectively as "the Ladners.”

      .Due to a bank merger AmSouth is now known as Regions Bank.

      .The Ladners obtained alternate financing and satisfied the foreclosure suit, leaving only the counterclaim to be decided at trial.

      .The contract signed by the Ladners on October 3, 2002, consisted of the ''Construction/Permanent Loan Agreement” with exhibits and the "Amendment to Construction/Permanent Loan Agreement.” Since both documents were signed on the same day, for the purposes of this opinion, they are collectively referred to as a single document.


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    Bernard A. STOREY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2811.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 2009.

      Joseph F. McDermott and J. Andrew Crawford of McDermott Law Firm, P.A., St. Pete Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Bernard A. Storey appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of all but one of his claims. Because Storey’s claim that his violation of probation admission was involuntary due to his mental illness is not conclusively refuted by the record, we remand for an evidentiary hearing.

In 2005, Storey was charged with aggravated assault arising from a domestic altercation with his wife. Storey pleaded guilty and was placed on eighteen months’ probation. In 2007, an affidavit was filed alleging Storey had violated a condition of his probation. Storey entered an admission to the violation of probation and was sentenced to one year and one day in prison.

In ground one of his motion for postconviction relief, Storey alleged that his violation of probation admission was involuntary due to his mental illness. Relying on Storey’s affirmative responses at the plea colloquy, the postconviction court summarily denied this claim and determined Storey was not suffering from any mental or emotional problems which affected his understanding of the plea.

To uphold the trial court’s summary denial of claims raised in a rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. See Fla. R.Crim. P. 3.850(d). “[W]here no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999). Here, in support of his motion for postconviction relief, Storey alleged he suffers from mental health issues. He stated that he has been to seven mental hospitals and has bipolar disorder and schizophrenia. Sto-rey suffered mental breakdowns in 2002 and 2004 resulting in hospitalization and had a mental breakdown at Tampa International Airport eleven days before his violation of probation admission, causing a portion of the airport to close. Storey also alleged that he is prescribed six different psychotropic drugs, and at the time of the plea colloquy he had not received these medications for weeks. Storey argued that without these medications he was unable to understand the consequences of his pleas and would not have entered his pleas had he understood the nature and consequences of doing so.

Because the plea form and transcript of the plea colloquy do not adequately refute Storey’s claim so as to warrant a summary denial of his motion, we reverse and remand to the postconviction court for an evidentiary hearing on Storey’s claim that his violation of probation admission was involuntary due to his mental illness. See Forster v. State, 779 So.2d 550, 550 (Fla. 2d DCA 2001) (finding a hearing on the merits was required where petitioner claimed his plea was involuntary because he was not administered medication for bipolar disorder); Irving v. State, 741 So.2d 519, 519 (Fla. 2d DCA 1999) (noting “that mere affirmative responses by [the defendant] during the plea colloquy may not be sufficient to conclusively l’efute his claim of incompetence”).

Affirmed in part, reversed in part, and remanded.

LaROSE and KHOUZAM, JJ., concur.

      . Storey was thereafter advised that his conviction and sentence rendered him subject to removal in immigration proceedings. Storey is a citizen of Trinidad and Tobago and a lawful permanent resident of the United States.


author: CASANUEVA, Chief Judge.

text:
    Richard LONDON, Appellant, v. Jennifer Ellen LONDON, Appellee.
    No. 2D08-3129.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2009.

      Richard M. Zabak and Ronald S. Reed of GrayRobinson, P.A., Tampa, for Appellant.
    Ingrid Anderson, Clearwater, for Appel-lee.
   CASANUEVA, Chief Judge.

Richard London appeals an order dismissing his petition to modify a foreign child custody determination for lack of jurisdiction. Our review is de novo. See N.W.T. v. L.H.D., 955 So.2d 1236, 1238 (Fla. 2d DCA 2007). We reverse and remand for further proceedings.

Procedural History

Jennifer Ellen London initiated dissolution proceedings in 2005 in French Saint Martin, where the parties lived together with their daughter. The French court exercised its jurisdiction over the matter, entering numerous orders regarding custody over the next several years. Mr. London unsuccessfully appealed at least two of those orders and sought to modify the French court’s custodial determination on a number of occasions. With the French court’s permission, Mrs. London and the child have resided in Florida since 2005. Mr. London, by his admission, has lived in Florida since 2007.

Despite the ongoing proceedings in French Saint Martin, Mr. London filed a petition for dissolution of marriage in Hillsborough County, Florida, shortly after his change in residence. He then filed this petition to modify the French court’s child custody determination. In response, Mrs. London filed a motion to dismiss or stay the husband’s child custody petition. She asserted that Mr. London was “seeking a second bite at the apple after losing three (3) custody appeals in [French] St. Martin” and that the French court still retained jurisdiction over the ongoing proceedings.

Before the Florida court ruled upon the motion to dismiss, the French court received a challenge to its jurisdiction from Mr. London. On February 12, 2008, the French court ruled that it retained jurisdiction over the custody of the child. The Florida court subsequently held a hearing and granted Mrs. London’s motion, dismissing both of Mr. London’s petitions with prejudice.

Analysis

This case presents the often confusing intersection of several statutory provisions under the Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA), codified in chapter 61 of the Florida Statutes. See ch. 2002-65, § 5, at 852-69, Laws of Fla. Because Mr. London sought to modify a foreign court’s custody determination, we first look to section 61.516,Florida Statutes (2007), to determine the Florida court’s jurisdiction.

61.516.Jurisdiction to modify a determination. — Except as otherwise provided in s. 61.517, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under s. 61.514(l)(a) or (b) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under s. 61.515 or that a court of this state would be a more convenient forum under s. 61.520; or
(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

The facts of this case satisfy all of section 61.516’s jurisdictional requirements. Section 61.516’s first requirement for jurisdiction is that “a court of this state has jurisdiction to make an initial determination under s. 61.514(l)(a) or (b).” Because the record clearly establishes that both parties and their child lived in Florida for at least six months prior to the commencement of the Florida proceedings, Florida was the child’s home state at the time the Florida proceedings commenced. See § 61.503(7). Therefore, section 61.514(l)(a) is satisfied. Additionally, section 61.516(2) is satisfied because the French court previously found that the child and both parents moved their permanent residences from Saint Martin to Florida. Thus, we conclude that the Florida trial court possesses jurisdiction over the matter pursuant to section 61.516.

However, our analysis does not end here. Section 61.516 must be read in pari materia with section 61.519, which applies due to the simultaneous proceedings in French Saint Martin. See Heart of Adoptions, Inc. v. J.A, 963 So.2d 189, 199 (Fla.2007) (“ ‘[Rjelated statutory provisions must be read together to achieve a consistent whole, and ... “[wjhere possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” ’ ”) (quoting Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 898 (Fla.2002)).

61.519. Simultaneous proceedings—
(1) Except as otherwise provided in s. 61.517,a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520.
(2) Except as otherwise provided in s. 61.517,a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to s. 61.522. If the court determines that a child custody proceeding was previously commenced in a court in another state having jurisdiction substantially in accordance with this part, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this part does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
(3) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
(a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
(b) Enjoin the parties from continuing with the proceeding for enforcement; or
(c) Proceed with the modification under conditions it considers appropriate.

Regarding subsection (1), the record is clear that a dissolution proceeding — and within it, several subsequent proceedings regarding child custody — had been commenced in French Saint Martin prior to the Florida proceedings. The Florida court also found that the French proceedings were in substantial conformity with the UCCJEA and had not yet terminated. Cf. Karam v. Karam, 6 So.3d 87 (Fla. 3d DCA 2009) (quashing an order dismissing a Florida custody proceeding when a foreign court failed to exercise its jurisdiction over a simultaneous proceeding in substantial conformance with the UCCJEA). The record before us supports the Florida court’s findings and does not suggest that the French court had stayed its proceedings. Consequently, subsection (1) would function to prohibit the Florida trial court from exercising its jurisdiction.

Subsection (2) provides a means by which the Florida trial court could seek approval from the French court to exercise jurisdiction, operating as an exception to subsection (1). When confronted with evidence that child custody proceedings have been previously commenced in another state, this subsection requires the Florida trial court to stay its proceedings and to communicate with the foreign court. Upon this communication, the foreign court must determine whether this state is a more convenient forum. Unless the foreign court concludes that Florida is a more convenient forum, the Florida court “shall dismiss the proceeding.” Id.

The Florida court, based upon its review of the foreign documents, dismissed in part because it determined that the foreign court would not find Florida a more convenient forum. However, as required by statute, the Florida court never actually communicated directly with the foreign court. By failing to provide the French court with this statutorily mandated courtesy, the Florida court could not determine the French court’s actual response to direct communication between two judicial fora.

Lastly, subsection (3) provides the Florida court with three alternatives in considering a petition to modify custody where a party had previously commenced an enforcement action in another state: to stay the Florida modification proceeding, to enjoin the parties from continuing the enforcement in the foreign court, or to proceed with the modification. Although this subsection, on its face, grants the Florida court the authority to proceed with modification, “the provisions of section 61.519 should be considered in pari materia with those of section 61.530.” Staats v. McKin-non, 924 So.2d 82, 84 (Fla. 1st DCA 2006). Section 61.530 provides that, given simultaneous proceedings, “the enforcing court shall immediately communicate with the modifying court ... and [t]he proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.”

“[Section 61.530] clearly confers greater discretion on the enforcing court to proceed with enforcement of a custody order than section 61.519 allows a court in another state in its consideration of a motion to modify.” Staats, 924 So.2d at 85. Again, the Florida trial court must communicate to provide the French court the opportunity to determine if Florida is the more convenient forum.

Consequently, we reverse the dismissal of Mr. London’s petition and remand for the trial court to comply with section 61.519’s communication requirements.

Reversed and remanded.

ALTENBERND and FULMER, JJ, concur.

      . The order on appeal also dismissed Mr. London's petition for dissolution of marriage, but Mr. London raises no issue on appeal regarding that portion of the trial court's order.

      . Although the pleading was titled as a petition to enforce and modify foreign child custody determination, Mr. London did not seek enforcement of the foreign court's orders.

      . As more fully explained below, the French court’s ruling in this regard is not dispositive of the outcome of the case.

      . Mr. London also argues that the trial court's dismissal should not have been with prejudice. "A dismissal without prejudice is generally proper wherever the case has been disposed of for a reason not reaching the merits." Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 77 (1932). However, this issue is moot for reasons explained later in this opinion.

      . The First District interpreted this phrase to mean that "a Florida court has jurisdiction to ‘modify a child custody determination made by a court of another state’ if factors that would have given a Florida court jurisdiction jo make an initial determination (under section 61.514(1)(a) or (b)) are present.” Ogilvie v. Ogilvie, 954 So.2d 698, 699 (Fla. 1st DCA 2007) (emphasis added) (quoting § 61.516, Fla. Stat. (2005)).

      . The UCCJEA defines the term “inconvenient forum” in section 61.520. To conform substantially with the UCCJEA in this instance, the French court must "consider all relevant factors” to make this determination, including:
      (a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
      (b) The length of time the child has resided outside the state;
      (c) The distance between the [French court] and the [Florida court];
      (d) The relative financial circumstances of the parties;
      (e) Any agreement of the parties as to which state should assume jurisdiction;
      (f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
      (g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
      (h) The familiarity of the court of each state with the facts and issues in the pending litigation.
      § 61.520(2).

      . In one of the French court proceedings, Mr. London asserted that Florida was the proper jurisdiction for the proceedings. The French court rebuffed this suggestion in a written order.

      . The record does not clearly demonstrate whether or not either party filed an enforcement proceeding in the French court. The order on appeal is silent on the matter.

      .Both sections 61.519 and 61.530 are titled “Simultaneous proceedings.” The former applies to foreign modification proceedings, the latter to foreign enforcement proceedings.


text:
    Joyce Lynn ROCCO, Individually and as Personal Representative of the Estate of Dan H. Rocco, Appellant, v. GLENN, RASMUSSEN, FOGARTY & HOOKER, P.A., and Peter J. Kelly, an Individual, Appellees.
    No. 2D08-6215.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2009.

      Martin Garcia and Hunter W. Carroll of Matthews, Eastmoore, Hardy, Crauwels, and Garcia, P.A., Sarasota, for Appellant.
    Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees.
   DAVIS, Judge.

Joyce Lynn Rocco, Individually and as Personal Representative of the Estate of Dan H. Rocco, challenges the trial court’s order granting Glenn, Rasmussen, Fogarty, & Hooker, P.A. (Glenn, Rasmussen), and Peter J. Kelly’s motion to transfer the underlying cause of action to Hillsborough County.

Mrs. Rocco, who is the widow of Dan Rocco, the decedent, hired the Glenn, Rasmussen law firm to open the probate proceedings for her late husband’s estate and to represent her individually and in her capacity as personal representative of the estate. Since the decedent resided in Manatee County at the time of his death, the probate proceedings were opened there. Although Glenn, Rasmussen’s office is in Hillsborough County, Peter J. Kelly, an attorney with the firm, traveled to Manatee County to undertake the representation.

The decedent also is survived by his three adult sons from a prior marriage. These sons were named as specific devi-sees in the decedent’s will, and Mrs. Rocco was named as the residual beneficiary. In addition to the probate assets that the sons received pursuant to the will, they also took title to other nonprobate estate property upon their father’s death. During the course of the probate proceedings, certain disputes arose between Mrs. Rocco and her stepsons. A negotiated settlement was reached that provided for the payment of certain probate assets to the sons, and the sons in turn executed consents and releases, waiving all other claims to estate assets. Additionally, the settlement provided that any additional estate tax liability that arose would be allocated among the beneficiaries.

Upon the filing of the estate’s tax return, the IRS determined that there was in fact additional tax liability owed by the estate. Mr. Kelly, as attorney for both Mrs. Rocco and the estate, contacted the sons’ attorney in an attempt to exercise the provision of the settlement agreement that called for the sons to pay a portion of the additional taxes. Mr. Kelly also provided the sons’ attorney with a copy of the IRS worksheets showing the calculation of the additional taxes. However, before sending the tax worksheets, Mr. Kelly failed to redact confidential financial information from the sheets, thereby providing to the sons privileged information related to the financial circumstances of Mrs. Rocco and the estate.

Based on this information, the sons hired new counsel, who subsequently filed a withdrawal of the sons’ consents and releases in the Manatee County probate case. The sons made demands for Mrs. Rocco to file an amended inventory and for the additional payment of probate assets to them. After these issues were litigated, Mrs. Rocco and the sons reached an agreement by which she paid each son additional funds from her personal assets and in return the sons agreed to waive further claims against her or the estate. Mrs. Rocco then filed the underlying action against Glenn, Rasmussen and Mr. Kelly, individually, alleging breach of fiduciary duty and professional negligence.

Mrs. Rocco filed her suit in Manatee County. Glenn, Rasmussen and Mr. Kelly (collectively, Appellees) filed motions to dismiss for improper venue or, in the alternative, motions to transfer venue. They argued that Manatee County was not the proper venue and that even if the trial court were to find otherwise, Hills-borough County was the most convenient county for the witnesses. They further alleged that the interest of justice supported transferring the action to Hillsbor-ough County. After a hearing on the motion, the trial court concluded that Manatee County was not the proper venue because the cause of action accrued in Hillsborough County. Rather than dismissing the complaint, the trial court transferred the action to Hillsborough County without addressing the forum non conveniens argument. Mrs. Rocco now appeals the order transferring the action to Hillsborough County.

Our analysis of the venue question begins with the principle that the plaintiffs choice of venue should be accepted unless the defendant shows that the choice is improper. See Ivey v. Padgett, 502 So.2d 22, 23 (Fla. 5th DCA 1986) (“The plaintiffs’ choice of venue is favored under Florida law if the election is one which has been properly exercised.”). Furthermore, the burden is on the defendant to show that the plaintiffs choice is improper. J.L.S. v. R.J.L., 708 So.2d 293, 295 (Fla. 2d DCA 1998) (“The plaintiffs choice of venue is presumptively correct, and the burden is clearly upon the party seeking a change of venue to demonstrate the impropriety of the plaintiffs selection.”).

Section 47.011, Florida Statutes (2008), provides that a cause of action “shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” All the parties in the instant case agree that both Appellees reside in Hillsborough County and that the litigation is not related to specific property. However, to determine the proper venue for this action, we still must determine where the cause of action accrued.

For the purpose of determining venue, “a tort claim is deemed to have accrued where the last event necessary to make the defendant liable for the tort took place.” Tucker v. Fianson, 484 So.2d 1370, 1371 (Fla. 3d DCA 1986). To determine whether Mrs. Rocco brought the action in a proper venue, we must decide where the last act necessary to make Glenn, Rasmussen and/or Mr. Kelly liable under either count of the complaint took place.

Appellees argued before the trial court that the cause of action accrued in Hills-borough County because that is where it is alleged that the improper disclosure took place. Mr. Kelly sent the documents from his office in Hillsborough County to the Hillsborough County office of the attorney representing the sons. To support this contention, Appellees cited Langan Engineering & Environmental Services, Inc. v. Harris Constructors, Inc., 743 So.2d 1177 (Fla. 2d DCA 1999).

In Langan, Harris brought suit against Langan for intentional interference with a business relationship. Harris was involved in a business relationship with a nonparty regarding a construction project that was to be performed in Dade County. Harris’ office was located in Pinellas County, and Langan maintained its office in Dade County. Harris’ allegation was that Lan-gan defamed Harris by telling the nonparty that Harris’ work was inferior. Harris brought its action in Pinellas County. Upon Langan’s challenge to venue, the trial court determined that the cause of action accrued where the improper act impacted the plaintiffs economic interest and that since Harris failed to receive payment on the contract in its Pinellas County office, venue was properly pleaded in Pinel-las County. The trial court based that determination on its reading of the following language found in Tucker, 484 So.2d at 1371: “The last event occurred when the harmful force, set in motion by the defendant’s negligence, first took effect on the body or the property of the plaintiff. Thus, a claim for tort arose where the harmful force first took effect, or where the plaintiff suffered injury.” This court disagreed with the trial court’s reading of Tucker, noting that the District itself had interpreted its Tucker language “to mean that ‘a tort accrues where the plaintiff first suffers injury.’” Langan, 743 So.2d at 1178 (quoting Williams v. Goldsmith, 619 So.2d 330, 332 (Fla. 3d DCA 1993)). Accordingly, this court concluded, “For venue purposes, a cause of action for tortious interference with a contract or advantageous business relationship accrues in the county where overt acts constituting the interference occurred.” Id.

Here, Appellees argued below that the facts of this case are similar to those of Langan in that the alleged tortious conduct was a communication and that the cause of action accrued where that communication was made. According to Appel-lees, since the communication was made in Hillsborough County, venue must be in Hillsborough County and the trial court should either dismiss the complaint or transfer the action.

Mrs. Rocco, however, maintains that Tucker does not support Appellees’ position. In Tucker, the cause of action was legal malpractice, not tortious interference with a business relationship. 484 So.2d at 1371. The attorney/defendant maintained his office in Broward County but undertook a condominium conversion in Dade County. His deficient performance took place at his desk in Broward County, but the cause of action accrued in Dade County because that is where the economic impact of his negligence occurred. The Third District affirmed the trial court’s denial of the challenge to the venue selection of Dade County. Id. at 1372.

Mrs. Rocco argues that just as the negligent act of the Tucker attorney in Bro-ward County did not result in the cause of action accruing until the result of that act manifested in Dade County, Mr. Kelly’s delivery of the documents in Hillsborough County did not result in the cause of action accruing until the impact of that delivery allegedly influenced the probate proceedings and caused Mrs. Rocco to pay the sums required by the second settlement agreement, both of which occurred in Manatee County. Mrs. Rocco also cites Wincor v. Cedars HealthCare Group, Ltd., 695 So.2d 924 (Fla. 4th DCA 1997), and Ivey, 502 So.2d 22, in support of her argument that the negligent delivery of the confidential material in Hillsborough County did not result in the cause of action accruing until the manifestation of the resulting impact occurred in Manatee County.

Citing Langan, the trial court determined that the cause of action accrued in Hillsborough County because the “overt acts” occurred in Hillsborough County. As such, the trial court denied Appellees’ motion to dismiss but granted their motion to transfer to Hillsborough County. We conclude that the trial court erred in determining that the cause of action accrued in Hillsborough County. We agree that this court in Langan determined that for a claim of tortious interference with a business relationship, the location of the communication would be the site of the accrual of the cause of action. That is, the defendant is liable at that point because the defamatory remarks have caused their injury. See 743 So.2d at 1178 (“[T]he damage ... was the loss of the business relationship, not the failure to receive payments on the contracts.”). Such a claim, however, is distinguishable from the cause of action herein. The key to the distinction is the location of the last action that would render the defendant liable for the tort. See Tucker, 484 So.2d at 1871.

A legal malpractice claim, which is the designated professional negligence alleged in the complaint before us, “has three elements: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (8) the attorney’s negligence [as] the proximate cause of the client’s loss.” Cira v. Dillinger, 903 So.2d 367 (Fla. 2d DCA 2005). In the instant case, we must then resolve whether the delivery of the documents was the proximate cause of the damage to Mrs. Rocco or whether some additional event or act must have occurred before Appellees could be held liable for the tortious conduct.

Most of the cases examining the issue of proximate cause are related to when, rather than where, the action accrued. However, the reasoning set forth in these cases provides a framework for our analysis. For example, Hold v. Manzini, 736 So.2d 138 (Fla. 3d DCA 1999), addressed whether a legal malpractice claim accrued prior to the execution of a general release by the plaintiffs in favor of the defendant law firm. The Holds, the plaintiffs in the negligence claim, hired attorney Manzini and his firm to represent them as the defendants in a federal suit. Based on Manzi-ni’s advice, the Holds declined the plaintiffs offer of judgment. After a jury trial returned a verdict in favor of the plaintiffs, the plaintiffs moved for attorney’s fees based on the offer of judgment statute. While that motion was pending, the Holds sought to dismiss Manzini as counsel. After negotiating the amount of fees the Holds owed Manzini, the Holds agreed to a general release of liability in favor of Man-zini.

Ultimately, the federal trial court granted the plaintiffs motion for fees. The Holds then brought claims for legal malpractice and breach of fiduciary duty against Manzini. Manzini raised the release as an affirmative defense and sought summary judgment, which the trial court granted. On appeal, the Third District reversed the trial court’s ruling, determining that the general release would include all claims that had matured as of the time the release was signed. Id. at 141. The court further determined that the claim had not accrued as of the date of the execution of the release because the Holds did not sustain redressable harm until the adverse final judgment was entered against the Holds. Id. at 141-42. “Until that time, a legal malpractice claim is hypothetical and damages are speculative.” Id. at 142.

Following similar reasoning, we conclude that Mrs. Rocco did not suffer redressable harm, thereby causing her legal malpractice claim to accrue, until the sons used the improperly disclosed information as the basis for their pleadings in the Manatee County probate proceeding. Until those pleadings were filed, Mrs. Rocco’s professional negligence claim was hypothetical and any damages were speculative. As such, the final act or event that was necessary to render Appellees liable for professional negligence occurred in Manatee County, and venue is proper there. Even had Hillsborough County been a proper venue for the breach of fiduciary duty claim, under a theory of nominal damages, because Mrs. Rocco could properly elect to bring the action in Manatee County, where the professional negligence claim accrued, the trial court erred in transferring venue. See § 47.041 (“Actions on several causes of action may be brought in any county where any of the causes of action arose.”); Ivey, 502 So.2d at 23.

We therefore reverse the trial court’s order transferring the action to Hillsbor-ough County and remand for further proceedings consistent with this opinion. The trial court made no findings on the motion to transfer venue based on the convenience of the witnesses as provided by section 47.122, and we do not address that issue.

Reversed and remanded.

CASANUEVA, C.J., and NORTHCUTT, J., Concur.

      . In negotiating the first settlement agreement, Mr. Kelly also provided the sons' attorney copies of certain tax-related documents, but in doing so, he redacted privileged personal financial information related to his clients.

      . In addition to her professional negligence claim, Mrs. Rocco's complaint also included a count for breach of fiduciary duty. To state a cause of action for breach of fiduciary duty, a plaintiff must allege three elements: the existence of a fiduciary duty, a breach of that duty, and plaintiff's damages proximately caused by the breach. Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002). However, a defendant may be liable for nominal damages for a breach of fiduciary duty even if the plaintiff cannot prove actual damages. See Stevens v. Cricket Club Condo., Inc., 784 So.2d 517, 519 (Fla. 3d DCA 2001). Accordingly, Appellees may arguably have been liable for at least nominal damages in the cause of action for the breach of fiduciary duty upon the delivery of the documents to the sons' attorney in Hillsborough County. However, because the complaint alleges actual damages and is coupled with the legal malpractice claim, our analysis focuses on the proximate cause of the entirety of the claims rather than the nominal damages of one claim.


author: WALLACE, Judge.

text:
    Jovan LAMB, a/k/a Jovan Cornelius Lamb, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4175.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      James Marion Moorman, Public Defender, and Allyn Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Jovan Cornelius Lamb was found guilty by a jury of false imprisonment while carrying or using a firearm, burglary of a conveyance, grand theft auto, and fleeing or attempting to elude. Mr. Lamb challenges his resulting judgments and sentences and raises three points for our review. First, he argues that the trial court erred in enhancing the false imprisonment charge from a third-degree felony to a second-degree felony based on his use of a weapon during the offense. Second, he asserts that the trial court erred in imposing a prison releasee reoffender (PRR) sentence under section 775.082(9)(a)(l), Florida Statutes (2006), on the false imprisonment charge. Third, he contends that the evidence was insufficient to support his convictions and that the trial court should have granted his motion for judgment of acquittal. We find no merit in his first and third points, and we affirm on these issues without further comment. However, we reverse for correction of the PRR sentence that was imposed in error.

A defendant may be sentenced as a PRR if the defendant commits or attempts to commit any of the crimes specifically listed in the PRR statute or if the felony involved “the use or threat of physical force or violence against an individual.” § 775.082(9)(a)(1)(o). In State v. Hearns, 961 So.2d 211, 212 (Fla.2007), the Supreme Court of Florida considered whether the offense of battery on a law enforcement officer could qualify as a forcible felony under section 776.08, Florida Statutes (2000), for the purpose of imposing a sentence enhancement under the violent career criminal (VCC) statute, section 775.084(l)(d). Concluding that it could not, the supreme court stated that “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.” Id. at 212. After Hearns, this court considered whether battery on a law enforcement officer and a firefighter could be used to enhance a defendant’s sentence under the PRR statute and concluded that in accordance with Hearns, it could not. See Walker v. State, 965 So.2d 1281 (Fla. 2d DCA 2007).

The Third and Fourth District Courts of Appeal have recently considered the precise question presented in this case— whether a PRR sentence may be based on a false imprisonment conviction — and, applying Hearns, have concluded that a conviction for false imprisonment is not sub-jeet to PRR sentencing. See Mosquera v. State, 16 So.3d 255 (Fla. 4th DCA 2009) (“Section 775.082(9)(a) provides that certain enumerated offenses may be sentenced as a PRR, but false imprisonment is not among them.”); Sinclair v. State, 973 So.2d 665, 665 (Fla. 3d DCA 2008) (“False imprisonment is not an enumerated felony under subparagraph 775.082(9)(a)[ (]1[) ].”). We agree with the Third and Fourth Districts on this question.

The State urges this court to apply the reasoning in Ragin v. State, 939 So.2d 330 (Fla. 4th DCA 2006). In Ragin, the Fourth District held that a PRR sentence could not be imposed upon a conviction for burglary of an occupied conveyance because the burglary offense was listed as a qualifying offense in “the PRR statute and the jury did not specifically find that it involved the use or threat of physical force or violence against an individual.” Id. at 331. Based on this holding in Ragin, the State argues that because the jury in this case made a specific finding that Mr. Lamb “did carry, use, threaten to use, or attempt to use a firearm” during the criminal episode, the jury’s finding was sufficient to prove that the offense involved the use or threat of physical force or violence for the purpose of imposing a PRR sentence. We conclude that the State’s reliance on Ragin is misplaced. The Ragin court’s holding on this point is inconsistent with the statutory elements test announced in Hearns. Ragin preceded the supreme court’s opinion in Hearns and the Fourth District’s own opinion in Mosqu-era. For these reasons, we believe that the Ragin court’s holding on this point is no longer good law.

Accordingly, we affirm the judgments and sentences on all counts with the exception of the PRR sentence imposed on the false imprisonment count. False imprisonment is clearly not a listed offense under the PRR statute. Moreover, the statutory elements of the offense of false imprisonment do not necessarily involve the use or threat of physical force or violence against an individual. It follows that the offense of false imprisonment does not qualify for PRR sentencing. Thus we reverse the sentence imposed on Mr. Lamb for false imprisonment and remand for resentenc-ing on that offense. Mr. Lamb shall have the right to be present at resentencing.

Judgments affirmed, sentences affirmed in part and reversed in part, and case remanded for resentencing in accordance with this opinion.

CASANUEVA, C.J., and NORTHCUTT, J., concur.

      . For the purpose of section 776.08,
      "[fjorcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
      § 776.08. The list of offenses subject to PRR sentencing in accordance with section 775.082(9)(a)(l) is similar, especially the phrase ”[a]ny felony that involves the use or threat of physical force or violence against an individual.”

      . This finding by the jury was required in order to enhance Mr. Lamb's conviction for the crime of false imprisonment from a third-degree felony to a second-degree felony. See § 775.087(1).


author: PER CURIAM. LaROSE, Judge,

text:
    Kenneth GIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-502.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Kenneth Gibbs, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, C.J., and WHATLEY, J., Concur.

LaROSE, J., Concurs specially.

LaROSE, Judge,

Concurring.

I concur in affirming the denial of Mr. Gibbs’ motion for postconviction relief. I write to emphasize what I consider to be appropriate procedures to minimize the risks of multiple appeals in postconviction cases. More specifically, I encourage postconviction courts to employ the procedures outlined in Spera v. State, 971 So.2d 754 (Fla.2007), Koszegi v. State, 993 So.2d 133 (Fla. 2d DCA 2008), and Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008), to ensure that, on appeal, we will have for review but one final order that disposes of all issues raised in a postconviction relief motion.

The facts underlying Mr. Gibbs’ motion are unremarkable. Mr. Gibbs was convicted of and sentenced for attempted sexual battery. We affirmed his direct appeal. See Gibbs v. State, 922 So.2d 202 (Fla. 2d DCA 2005) (table). Our mandate issued in mid-February 2006. In May 2006, Mr. Gibbs filed his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He alleged various claims of ineffectiveness of trial counsel.

In a November 28, 2006, order, the post-conviction court denied some claims on the merits, directed the State to respond to two others, and denied two claims as facially insufficient. As to those claims, the denial was without prejudice “to timely file a facially sufficient claim.” The postcon-viction court set no deadline. The post-conviction court noted that its order was nonfinal and nonappealable.

On January 5, 2007, after receiving the State’s response, the postconviction court entered another order. It ordered an evi-dentiary hearing on one claim. As to another claim on which it had ordered a State response, it also denied portions without prejudice to timely file a facially sufficient claim. Again, the postconviction court set no deadline for an amended filing. This order, too, was nonfinal and nonappealable.

On December 19, 2007, the postconviction court entered a final order denying relief on the merits of the claim that had been submitted for an evidentiary hearing. Mr. Gibbs appealed. Apparently, he did not amend the claims identified in the November 28, 2006, and January 5, 2007, orders. It is also apparent that upon entry of the final order, the two-year window of rule 3.850(b) was open for another two months. This triggers my concern.

Conceivably, Mr. Gibbs could have filed amended claims after December 19, 2007. Had he done so, the postconviction court would have expended further effort on Mr. Gibbs’ postconviction motion. Quite likely, a further order would have been subject to appeal. Consequently, we would face multiple appeals stemming from a single rule 3.850 motion filed in May 2006.

Our record does not suggest that Mr. Gibbs ever amended or attempted to amend his claim. We are not aware that he pursued these claims in a second motion for postconviction relief below. Based on our record, I am content to assume that Mr. Gibbs abandoned those claims.

It is important to minimize the risk of multiple appeals from a motion for post-conviction relief. To that end, I think the postconviction court should have specified a date by which Mr. Gibbs could file amended claims. If Mr. Gibbs filed facially sufficient claims, the postconviction court could have addressed them; if he did not, the postconviction court could have denied the claims on the merits. Importantly, the postconviction court could then have disposed of all claims in a single, final, and appealable order.

This court has recommended this procedure on more than one occasion. See Lawrence, 987 So.2d at 158-59; Koszegi, 993 So.2d at 134. Compliance with the procedure explained in those decisions would enhance the efficient processing of motions for postconviction relief at the trial and appellate levels.


author: PER CURIAM.

text:
    Arturo M. ORTUNO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4720.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Jones v. State, 898 So.2d 209 (Fla. 2d DCA 2005) (applying Fla. R.Crim. P. 3.800(b)(2) to preserve error regarding lack of written order that specified trial court’s findings on probation violations).

FULMER, NORTHCUTT and VILLANTI, JJ., Concur.


text:
    Marvin Eugene WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3265.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    James Marion Moorman, Public Defender, and Sean K. Ahmed, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Marvin Wells might have to file a motion for postconviction relief.

FULMER, NORTHCUTT and VILLANTI, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Robert HOUPT a/k/a Robert Tappan, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1133.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    Robert Houpt, pro se.
   SILBERMAN, Judge.

Robert Houpt challenges the Order Denying Defendant’s Motion to Correct Sentence and Motion for Judicial Enforcement. We affirm the postconviction court’s order. However, we note that in his motion to correct sentence dated November 20, 2008, Houpt sought additional jail credit. It appears that Houpt withdrew this motion prior to the rendition of the order on appeal and that the postcon-viction court did not address the jail credit claim on the merits. Because the postcon-viction court did not rule on the merits of that claim, Houpt is not barred from reasserting it. Additionally, our affirmance is without prejudice to any right Houpt might have to file a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 seeking to withdraw his admission to violating probation on the ground that his admission was involuntary because he was misadvised as to the amount of prison time he would have to serve.

Affirmed.

FULMER and CRENSHAW, JJ., Concur.


text:
    Marvin Alonzo MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3666.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 2009.

      James Marion Moorman, Public Defender, and Chandra Waite Dasrat, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Marvin Alonzo Murphy seeks review of his judgment and sentence for possession of cocaine and possession of drug paraphernalia. Murphy challenges the denial of his motion to suppress as well as the sufficiency of the evidence presented to the jury. We conclude that the evidence was sufficient to withstand Murphy’s motion for judgment of acquittal and decline to comment further on the issue. However, we reverse and remand for a new hearing on the motion to suppress because the state of the law regarding the reasonableness of a search incident to arrest has changed since the suppression hearing.

Murphy was charged by information with trafficking in cocaine and possession of drug paraphernalia for events occurring on November 12, 2006. Prior to trial, defense counsel filed a motion to suppress 30.7 grams of cocaine and a scale, which were seized during the search of a purple Dodge Stratus. The motion alleged that the evidence was obtained as a result of an illegal, warrantless search of the vehicle.

At the hearing on Murphy’s motion to suppress, Officer Douglas Fowler testified that he responded to a domestic battery disturbance call on November 12, 2006, at an apartment complex in Temple Terrace. When Officer Fowler arrived at the apartment complex, a bystander told him, “[T]he guy you’re looking for, he’s right over there.” The bystander pointed to a man standing between two buildings behind Officer Fowler. Officer Fowler turned around and saw Murphy. He made eye contact with Murphy and asked Murphy to come over to him. In response, Murphy turned around and started running in the opposite direction.

Officer Fowler gave chase and Tasered Murphy. Murphy fell to the ground about ten feet from the purple Dodge Stratus, which was missing hubcaps and had a temporary tag. Officer Fowler arrested Murphy, patted him down, and placed him in the back of his patrol car. The officer had been told by his sergeant that there was a gun involved during the altercation and the gun was now missing. The officer had not found a gun on Murphy’s person during the pat down, and he asked the victim whether Murphy could have a gun on him. The victim responded in the affirmative.

A bystander told the officer that she witnessed the domestic dispute. After the dispute, Murphy left the scene in a purple Dodge with a temporary tag and no hubcaps. Murphy returned shortly thereafter, and then Officer Fowler arrived. Officer Fowler ran the VIN number of the purple Dodge, but Murphy was not the registered owner. The victim told Officer Fowler that Murphy owned the vehicle and had been driving it to work. Another witness also told the officer that he had seen Murphy driving the vehicle.

Officer Fowler then searched the vehicle and discovered the cocaine and scale that formed the basis for the underlying charges in this case. When Officer Fowler’s search of the vehicle failed to turn up the firearm, the officer again questioned the victim about it. At this point, the victim indicated that she was not sure that Murphy had been armed.

The trial court denied Murphy’s motion to suppress. The court ruled that the search of the vehicle was legal under the Supreme Court’s decisions in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which authorized a search of a vehicle incident to the arrest of an occupant of the vehicle, and Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), which extended Belton to authorize a search of a vehicle incident to the arrest of a “recent occupant” of a vehicle. The trial court determined that Murphy was a recent occupant of the purple Dodge because he was seen in the vehicle “just moments after the crime.” In so holding, the court relied on the Fourth District’s application of Belton and Thornton in State v. Waller, 918 So.2d 363 (Fla. 4th DCA 2005).

While this appeal was pending the Supreme Court issued Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), in which it limited the scope of Belton and Thornton. In Gant, officers observed Gant enter a driveway in a vehicle, exit the vehicle, and shut the door. Id. at 1715. An officer, who knew that there was an outstanding warrant for Gant’s arrest, called to Gant, and the two approached each other. The pair met about ten to twelve feet from Gant’s car, where the officer arrested Gant for driving with a suspended license. After Gant was placed in the back of a police cruiser, the officers searched his car and discovered a gun and a bag of cocaine.

The State charged Gant with possession of a narcotic drug for sale and possession of drug paraphernalia. Gant filed a motion to suppress the cocaine and the bag in which it was found, arguing that the search was not authorized under Belton because he did not pose a threat to the officers at the time of the search and he was not arrested for an offense for which evidence could be found in his car. The trial court denied the motion to suppress, and the Arizona Supreme Court reversed. Id. at 1715-16.

On appeal, the United States Supreme Court recognized that many lower courts had interpreted its decision in Belton to permit police to search a vehicle incident to arrest regardless of whether the defendant could reach into that area at the time of the arrest. Id. at 1718. The Court concluded that such a reading was not consistent with its earlier jurisprudence limiting searches incident to arrest to those including “ ‘the arrestee’s person and the area “within his immediate control.” ’ ” Id. at 1716, 1719 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)).

Thus, the Court held that police are authorized to search a vehicle incident to arrest “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. at 1719. The Court also recognized another justification for a search of a vehicle incident to arrest; such a search would be justified “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Id. (quoting Thornton, 541 U.S. at 682, 124 S.Ct. 2127 (Scalia, J., concurring)). Concluding that neither justification was supported by the facts of the case, the court affirmed the reversal of the trial court’s order denying Gant’s motion to suppress.

Once Gant issued, we ordered the parties to submit supplemental briefs addressing the application of Gant to the facts of this case. In the supplemental initial brief, Murphy argues that Gant requires reversal because Murphy was not within reaching distance of the passenger compartment at the time of the search and it was not reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. In the supplemental answer brief, the State argues that the application of Gant requires affirmance because the officers reasonably believed that a gun used in the domestic disturbance might be found in the vehicle. The State also argues that Murphy lacks standing to challenge the search because there was no evidence he owned the vehicle.

We note that the State raised its challenge to Murphy’s standing for the first time on appeal. While the issue can be addressed by this court, see McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003), Murphy was never given an opportunity to meet his burden of proof on this issue. Accordingly, Murphy is entitled to an evidentiary hearing on the matter. See id.; Morales v. State, 407 So.2d 321, 326 (Fla. 3d DCA 1981).

On the merits, it is possible that the denial of Murphy’s motion to suppress was proper under Gant. Officer Fowler testified that he was told by his sergeant that a gun was involved in the domestic violence incident and the victim corroborated the sergeant’s statement. Thus, if Officer Fowler arrested Murphy for the domestic violence incident, the search of the vehicle would be justified under Gant because it was reasonable for the officer to believe that evidence relevant to the crime of arrest might be found in the vehicle.

However, the facts regarding the exact crime for which Murphy was initially arrested were not developed at the hearing on Murphy’s motion to suppress. This may have been because, under the law in effect at the time of the hearing, the exact crime of arrest would not have been important. Officer Fowler did not testify regarding the basis for arresting Murphy, and the arrest report does not clarify the issue because it refers to the arrest for the possession charges. While it appears that some witnesses gave Officer Fowler information about the domestic incident that may have supported an arrest on that basis, the State actually argued that the search was proper as incident to Murphy’s arrest for resisting an officer.

If Murphy was initially arrested for resisting an officer, then it would not be reasonable for the officer to believe that evidence relevant to that crime would be found in the vehicle. In Gant, the Supreme Court specifically stated that a search incident to arrest is justified if the police could have reasonably believed “that evidence of the offense for which he was arrested might have been found therein.” Gant, 129 S.Ct. at 1719 (emphasis added); see also Mobley v. State, 14 So.3d 1055, 1058 n. 2 (Fla. 2d DCA 2009) (noting that the search of the bathroom of the defendant’s girlfriend’s house would not have been permissible under Gant because the court could not imagine what evidence relating to the defendant’s alleged violation of probation for failing to report to his probation officer would have been found in the bathroom).

Because the evidence was not fully developed as relates to the issues addressed in the intervening Supreme Court decision in Gant, we are unable to determine whether the search of the vehicle was proper in this case. Accordingly, we reverse and remand for a new hearing on the motion to suppress. See Dey v. State, 967 So.2d 1070, 1071 (Fla. 2d DCA 2007) (reversing and remanding for reconsideration of motion to suppress based on change in law regarding the validity of the traffic stop). On remand, the court shall consider the issue of Murphy’s standing to challenge the search of the purple Dodge Stratus if the State pursues a ruling on that issue.

Reversed and remanded.

CASANUEVA, C.J., and DAVIS, J., Concur.

      . We recognize that the victim later expressed uncertainty, but it appears that she did so after the vehicle was searched.


author: FULMER, Judge.

text:
    Todd RAVEN, Appellant, v. MANATEE COUNTY SCHOOL BOARD, Appellee.
    No. 2D08-1533.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      Melissa C. Mihok of Kelly & McKee, P.A., Tampa, for Appellant.
    Robert J. Shapiro and John W. Bowen of School Board of Manatee County, Bra-denton, for Appellee.
   FULMER, Judge.

Todd Raven appeals a final order of the Manatee County School Board terminating his employment as a teacher. The central issue we decide in this appeal is whether Raven had a statutory right to be represented by counsel during an investigatory interview. The administrative law judge (“ALJ”) concluded that section 120.62(2), Florida Statutes (2007), gave Raven a right to counsel at the investigatory interview. The School Board rejected the ALJ’s interpretation of section 120.62(2) and substituted its conclusion that section 120.62(2) did not afford Raven a right to counsel. Because Raven refused to participate in the investigatory interview without counsel, the School Board terminated his employment. We agree with the ALJ’s conclusion that section 120.62(2) gave Raven the right to be represented by counsel and, therefore, reverse the final order of the School Board.

This case began when Ms. Horne, the investigator for the School Board’s Office of Professional Standards (“OPS”), learned about an allegation of possible inappropriate interaction between Raven and one of his students. Ms. Horne was advised that a joint investigation was being conducted by Child Protective Services and the Sheriffs Office. As was her practice, she delayed her own investigation until she was notified that the joint investigation was completed. A detective informed her that there appeared to be no criminal activity and, thus, no charges would be filed. Because the allegation involved a student, Ms. Horne decided to proceed with her investigation. She directed Raven to report to OPS to meet with her for an investigatory interview. Raven was advised that he would not be allowed to have his attorney present during the interview. Raven appeared for the interview accompanied by his attorney. After he was again advised that his attorney could not be present, Raven declined to participate in the interview.

Because of Raven’s refusal to submit to the interview, the superintendent recommended to the School Board that Raven be suspended without pay pending termination of his employment. The superintendent’s petition for termination alleged that Raven’s refusal to sit for the interview constituted just cause for termination, misconduct in office, gross insubordination, and a violation of the School Board policy which requires all employees to cooperate fully with OPS. Raven filed a petition for evidentiary hearing, which the School Board referred to the Division of Administrative Hearings.

The evidentiary hearing was conducted by an ALJ. At this hearing, portions of the Manatee County School Board Policies and Procedures Manual were introduced into evidence, specifically, policy 6.11 and policy 6.13. These policies address personnel matters. Policy 6.11 contains procedures governing employment. Policy 6.18 creates the OPS and contains procedures for investigating complaints.

Policy 6.11 provides, in pertinent part:

1. Suspension or Termination of Employees
Any employee of the School Board may be temporarily suspended, with or without pay, or permanently terminated from employment, for just cause including, but not limited to, immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude, violation of the Policies and Procedures Manual of the School District of Manatee County, violation of any applicable Florida statute, violation of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.
Policy 6.18 provides, in pertinent part:
The Office of Professional Standards shall conduct investigations into alleged employee misconduct or other matters concerning the school district and make recommendations as to the disposition of such complaints or matters and report legally sufficient complaints to the Education Practices Commission.
... All complaints concerning alleged employee misconduct or other matters that need investigation received by School Board Members, the Superintendent, or any employee in the District shall be forwarded to OPS for investigation.
... OPS will investigate each complaint or other matter in an appropriate manner, which may include, but not be limited to, the interviewing of witnesses, consideration of pertinent documents, review of electronic data, and obtaining a statement from the subject of the investigation. Any employee who is the subject of an investigation shall be informed of the investigation at the appropriate time.
... Any employee who is the subject of an investigation shall not contact any School Board Member or have anyone contact a School Board Member on their behalf during the investigation or any subsequent disciplinary proceedings which may result from the investigation.
... All Board employees shall cooperate fully with OPS or other appropriate authorities who are conducting investigations.
... Failure to cooperate completely and truthfully will subject an employee to disciplinary action.

In his recommended order, the ALJ found that because Raven was “compelled to appear before the OPS investigator during the course of an official School Board investigation,” he was entitled to be accompanied, represented, and advised by counsel at his own expense pursuant to section 120.62(2), which provides:

Any person compelled to appear, or who appears voluntarily, before any presiding officer or agency in an investigation or in any agency proceeding has the right, at his or her own expense, to be accompanied, represented, and advised by counsel or by other qualified representatives.

The ALJ reasoned that by adopting policy 6.18, the School Board delegated all of its investigatory powers, including its power to conduct investigatory interviews, to the OPS investigator, Ms. Horne, and, therefore, Ms. Horne is the authorized representative of the School Board for purposes of section 120.62. The ALJ concluded that because the School Board violated Raven’s right to counsel, a final order should be entered finding that Raven’s refusal to be interviewed without counsel did not constitute a violation of the charges alleged in the superintendent’s charging letter, that Raven’s suspension without pay should be reversed, and that Raven should be compensated for the period he was suspended without pay.

The School Board argues that section 120.62(2) provides a right to counsel only if the investigation is being conducted by a “presiding officer” or the “agency.” In other words, if the School Board itself, sitting as a collegial body, conducts an investigation, the right to counsel applies. But, because Ms. Horne is neither a “presiding officer” nor the “agency,” the right to counsel does not arise during her investigations. In its Final Order the School Board states:

The ALJ attempts to circumvent the correct interpretation of section 120.62(2) Florida Statutes (2007), by interpreting School Board Policy 6.13 as a delegation by the School Board of “all of its investigatory powers, including its power to conduct investigatory interviews, to the OPS investigator.” Based on that interpretation, the ALJ erroneously concludes that Horne is an “agent” of the School Board and, therefore, when an employee appears before her in an investigation, it is the same as appearing before the School Board in an investigation, thus giving that individual the right to an attorney under paragraph (2).
A more reasonable and correct interpretation of School Board Policy 6.13 is that it is not an appointment of OPS as the agent of the School Board to act on behalf of and in the place of the School Board as recommended by the ALJ. That policy merely represents the creation of a position to be filled as section 1012.22(1) Florida Statutes (2007) requires the School Board to do. The purpose of the position is to conduct investigations so that the Superintendent may make recommendations to the School Board concerning employee discipline as he is required to do under sections 1012.27 and 1012.33, Florida Statutes (2007).

In rejecting the ALJ’s finding that policy 6.13 delegated all of the School Board’s investigatory powers to the OPS investigator, the School Board asserts that it has the authority to conduct its own investigations and, should it choose to do so, any person compelled to appear before the Board, as opposed to OPS, would be entitled to an attorney under section 120.62(2) because that person would be appearing before an “agency” in an investigation. We agree with the School Board that it has the authority to conduct investigations on its own. We also agree that it does not always have to act through an agent as the ALJ’s recommended order suggested. And, we agree that Ms. Horne is neither a “presiding officer” nor the “agency.” However, as the ALJ correctly found, by adopting policy 6.13 the School Board has elected not to conduct investigations into allegations of teacher misconduct but instead has delegated all of its investigatory authority over these types of complaints to OPS. Thus, whether Ms. Horne is called an agent or representative or simply an employee is not determinative of whether section 120.62(2) applies to the investigatory interviews she conducts into allegations of teacher misconduct. What is determinative is whether her investigation constitutes an “agency in an investigation” as that phrase is used in section 120.62(2).

The plain language of policy 6.13 and the testimony presented at the hearing establish that for the type of complaint lodged against Raven, the School Board, as a body, never conducts an investigation itself but rather has directed that all such investigations will be conducted by Ms. Horne. All of the evidence presented at the hearing supports the ALJ’s finding that the School Board delegated its investigatory authority over these types of complaints to OPS.

Because Ms. Horne was conducting the agency’s investigation, the ALJ properly concluded that when Raven was directed to appear before Ms. Horne for an investigative interview he was being compelled to appear before an “agency in an investigation,” as that phrase is used in section 120.62(2). Therefore, we reverse and remand for entry of a final order consistent with that recommended by the ALJ.

Reversed and remanded with directions.

ALTENBERND and WHATLEY, JJ., Concur.

      . Raven was employed under an annual contract which, he had been advised, was not being renewed before the allegations of misconduct arose. By the time the ALJ issued his Recommended Order, the school year and Raven's contract had long since expired. In fact, there was only about one month remaining on his contract when the School Board initiated its investigation and termination proceedings.

      . The ALJ's order contained findings of fact and conclusions of law. The School Board adopted all of the paragraphs labeled findings of fact and rejected many of the paragraphs labeled conclusions of law. However, many of the “conclusions of law” are actually findings of fact, which were improperly rejected because all were supported by competent substantial evidence. See Dunham v. Highlands County Sch. Bd., 652 So.2d 894, 896 (Fla. 2d DCA 1995).


text:
    Catalino BURGOS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2895.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2009.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Catalino Burgos appeals his judgment and sentence for second-degree murder following a jury trial and argues that the trial court erred in denying his motion for judgment of acquittal and in instructing the jury on the lesser-included offense of manslaughter by act. We affirm the denial of Burgos’s motion for judgment of acquittal without comment. With respect to Burgos’s assertion that the trial court fundamentally erred in giving the then-standard jury instruction on the lesser-included offense of manslaughter by intentional act, we affirm pursuant to our decision in Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). As in Zeigler, we certify conflict with the First District’s decision in Montgomery v. State, — So.3d-, 34 Fla. L. Weekly D360, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009), review granted, 11 So.3d 943 (Fla.2009).

Judgment and sentence affirmed; conflict certified.

NORTHCUTT and VILLANTI, JJ., Concur.


author: PER CURIAM. ALTENBERND, Judge.

text:
    Darrell D. BENJAMIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5563.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Order Striking Motion for Rehearing or Clarification Feb. 17, 2010.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

ALTENBERND and NORTHCUTT, JJ., and CASE, JAMES R., Associate Senior Judge, Concur.

ORDER STRIKING PRO SE MOTION FOR REHEARING OR CLARIFICATION

ALTENBERND, Judge.

Darrell Benjamin filed a pro se motion for rehearing or clarification in this case. This court affirmed the order revoking his probation and the resulting sentence in a decision that issued on December 30, 2009. This motion is timely.

At all relevant times during the pen-dency of this appeal, Mr. Benjamin has been represented by an experienced appellate attorney. This attorney filed a brief presenting an issue on the merits. This attorney has obviously declined to file a motion for rehearing. Thus, the issue now is whether Mr. Benjamin is authorized to file a pro se motion for rehearing in an appeal where he has legal representation.

In the past, this court has accepted and ruled on motions comparable to Mr. Benjamin’s motion. This policy has not been express and probably has not been followed in every case. This policy was established prior to the supreme court’s decision in Johnson v. State, 974 So.2d 363 (Fla.2008). In Johnson, the supreme court announced a broad rule prohibiting pro se filings of this sort. Id. at 364-65.

This court, sitting in full conference of its active members, concluded in December 2009 that it is inappropriate for this court to have a policy permitting pro se filings in conflict with the policy of the supreme court. We voted to discontinue accepting such filings. Accordingly, this panel publishes this order to give notice that we will no longer accept such filings and will strike such pro se motions as unauthorized in all cases in which the defendant is represented by counsel who has filed a brief on the merits. This court will continue to accept pro se motions for rehearing in cases where counsel has filed an Anders brief.

Accordingly, Mr. Benjamin’s motion is stricken as unauthorized.

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


text:
    Ronald WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-397.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.
    Rehearing Denied April 23, 2010.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Ronald White appeals his judgments and sentences for fleeing or attempting to elude a law enforcement officer and driving with a suspended driver’s license. We affirm his judgments and sentences without comment except as to the public defender fees imposed under section 938.29(l)(a), Florida Statutes (2006). White preserved his challenge to this cost by filing a motion to correct sentencing error in accordance with Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days, and thus it is deemed denied. See Webster v. State, 998 So.2d 655, 656 (Fla. 2d DCA 2008).

Because the trial court failed to properly advise White of his right to contest or object to the amount of the lien from these fees, we reverse and remand for further proceedings. See Fla. R.Crim. P. 3.720(d)(1); Webster, 998 So.2d at 656; Hayes v. State, 957 So.2d 97, 97 (Fla. 2d DCA 2007). On remand, White shall have thirty days from the issuance of our mandate to file a written objection to the amount of the fees. If an objection is filed, the trial court shall conduct a hearing. Otherwise, the trial court may reimpose the lien for public defender fees without a hearing. See Webster, 998 So.2d at 657; Hayes, 957 So.2d at 97.

Affirmed in part, reversed in part, and remanded with directions.

WALLACE and LaROSE, JJ„ Concur.