author: EVANDER, J.

text:
    Frank G. TIMMONS, Jr. and Jacquelyn Timmons Forman, Appellants, v. Myrtle Timmons INGRAHM, etc., et al., Appellees.
    No. 5D08-4103.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.

      Frank M. Bedell and James Edward Cheek, of Winderweedle, Haines, Ward & Woodman, P.A., Orlando, for Appellants.
    J. Steven Garthe and Carly R. Fish-paugh, of Heebner, Baggett, Upchurch & Garthe, P.L., Daytona Beach, for Appel-lees.
   EVANDER, J.

Frank G. Timmons, Jr., and Jacquelyn Timmons Forman (hereinafter jointly referred to as “the Timmons”) appeal from a final summary judgment entered in favor of co-trustees Myrtle Timmons Ingrahm and David Carter. We find that the trial court erred in failing to accord the term “lineal descendants” its legal definition in determining the intent of the testator/set-tlor, Frank Timmons, Sr. (“Frank Sr.”) Accordingly, we reverse the summary final judgment entered in favor of the co-trustees and direct that partial summary judgment be entered in favor of the Timmons.

At the time of his death in 1999, Frank Sr. was married to Myrtle Timmons, n/k/a, Myrtle Timmons Ingrahm (“Myrtle”). He had two adopted children, the Timmons, from a previous marriage. Myrtle had four children — none of which was ever adopted by Frank Sr.

In his will, Frank Sr. created two trusts: the Timmons Family Trust (“Family Trust”) and the Timmons Marital Trust (“Marital Trust”). The Timmons Family Trust was valued at $650,000. The more substantial portion of Frank Sr.’s estate was placed in the Marital Trust. Myrtle was the sole income beneficiary of the trusts during her lifetime. She was also empowered, in her sole discretion, to annually remove from each trust, up to $5,000 or five percent (5%) of the principal, whichever was greater. The co-trustees were also given authority to encroach on the trusts’ principal as necessary for Myrtle’s maintenance and support. The Marital Trust provided that upon Myrtle’s death, the trust’s remaining principal (after payment of estate taxes) would be “poured over” into the Family Trust and distributed in accordance with the terms of the Family Trust. The Family Trust provided that upon Myrtle’s death, the trust assets were to be divided “into as many equal shares as there are children of mine then living and deceased children of mine leaving issue then surviving.”

Frank Sr.’s will expressly defined “children” to include both his adopted children and Myrtle’s children:

For the purposes of this Will, the term “children” shall include, in addition to my natural and adopted children, the children of my wife, MYRTLE C. TIM-MONS.

Thus, if Myrtle had died shortly after Frank Sr., the principal of the Marital Trust would have “poured over” into the Family Trust, and the then-existing principal of the Family Trust would have been equally divided between the six “children” — Frank Sr.’s two children and Myrtle’s four children.

The instant dispute arose as the result of Myrtle’s attempt, in 2007, to disinherit the Timmons through the purported exercise of a limited power of attorney granted to Myrtle in the Family Trust. The applicable provision reads as follows:

[M]y said wife shall have the further limited power at any time during her lifetime to appoint by specific reference to this power in an instrument in writing executed and delivered to the Trustee all or any part of the principal of this trust, free and clear of any trust to and among my then living lineal descendants in such proportions and subject to such trust and conditions as she may direct. This limited power of attorney may be exercised by said wife even to the point of completely exhausting the entire corpus trust of this trust estate.

(Emphasis added.) Specifically, Myrtle executed a document entitled “Exercise of Limited Power of Appointment” that attempted to grant all of the principal and income of the family trust, then in existence or later coming into the trust, to her four (4) natural children:

Pursuant to the provisions of this limited power of appointment, it is the intent of this writing to exercise said power, which is executed by me and I hereby direct pursuant to the limited power of appointment that all principal and income of said trust now in existence or becoming a part of such trust as the result of my death as a pour over from the Marital Trust C or the Marital Trust A be distributed, per stirpes, among the natural children and their lineal descendants, of Myrtle C. Timmons Ingrahm free from further trust and outright.
The effect of the exercise of this limited power of appointment shall be that the only beneficiaries of the Timmons Family Trust shall be my natural children and their lineal descendants. I understand that this exercise of limited power of appoint [sic] disinherits Frank G. Timmons, Jr., and his lineal descendants, and Jacquelyn Forman and their lineal descendants and that is my intent.

The co-trustees are then alleged to have commenced distributing certain trust assets to Myrtle’s children and to have denied the Timmons access to trust records.

The Timmons brought an action against the co-trustees for breach of fiduciary duty and for an accounting. The Timmons asserted that Myrtle’s attempt to disinherit them was ineffective because the limited power of appointment could only be executed in favor of Frank Sr.’s “lineal descendants” and Myrtle’s natural children did not fall within this definition. In response, the co-trustees contended that Myrtle’s exercise of the limited power of appointment was lawful and had the intended effect of disinheriting the Tim-mons — thereby leaving them without standing to maintain their action.

The parties subsequently filed cross-motions for summary judgment, agreeing that there were no disputed issues of material fact. The trial court denied the Timmons’ motion, granted the co-trustees’ motion, and entered final summary judgment in favor of the co-trustees. This appeal followed.

The trial court’s decision was based on the interpretation of the language set forth in Frank Sr.’s will and, accordingly, our standard of review is de novo. Lumbert v. Estate of Carter, 867 So.2d 1175, 1176 (Fla. 5th DCA 2004). In construing a will or testamentary trust, the intent of the testator or settlor should prevail and effect be given to his wishes. First Nat’l Bk. of Fla. v. Moffett, 479 So.2d 312, 313 (Fla. 5th DCA 1985).

In determining the intent of the settlor, a technical term used in a trust instrument should be accorded its legal definition, unless obviously used by the settlor in a different sense. Knauer v. Barnett, 360 So.2d 399, 406 (Fla.1978). “Lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” It includes children, grandchildren, or more remote descendants but excludes collateral heirs. § 731.201(9), Fla. Stat. (2007). Adopted children come within the definition of lineal descendants. Lewis v. Green, 389 So.2d 235, 241 (Fla. 5th DCA 1980).

The co-trustees acknowledge that step-children do not ordinarily fall within the definition of “lineal descendants,” but contend that by expressly expanding the definition of “children” to include his stepchildren for purposes of his will, Frank Sr. similarly intended to expand the definition of “lineal descendants” to include his stepchildren and their descendants.” We reject this argument.

While Frank Sr.’s will expressly provided for a different definition of the term “children” than its common or legal definition, no similar attempt was made to modify the common or legal definition of the term “lineal descendants.” The lack of an attempt to redefine “lineal descendant” reflects an intent to have the term interpreted in accordance with its legal definition. Furthermore, Frank Sr. used the term “lineal descendants” on only two other occasions in his will. In one paragraph, Frank Sr. bequested his personal property, in the event Myrtle predeceased him, “to my children who survive me, or if none of my children survive me, then to their lineal descendants, per stirpes.” In a different paragraph, Frank Sr. bequested certain shares of stock “to my son Frank Timmons, Jr., or his lineal descendants per stirpes.” Thus, in both of these instances, the term “lineal descendants” was used in a manner consistent with its legal definition. Finally, there is no language elsewhere in the will reflecting an intent on the part of Frank Sr. to grant Myrtle the power to disinherit his children in favor of her own children.

As previously observed, a technical term used in a trust instrument should be accorded its legal definition unless obviously used by the settlor in a different sense. Knauer. Here, we believe that Frank Sr.’s testamentary document did not reflect an intent (and certainly not an “obvious” one) to expand the definition of lineal descendants to include step-children. Therefore, Myrtle’s purported exercise of the limited power of appointment in favor of her natural children was invalid.

REVERSED and REMANDED.

TORPY and LAWSON, JJ., concur.

      . Originally, there was only one marital trust, Timmons Marital Trust "B.” It was subsequently split into Timmons Marital Trust "A” and Timmons Marital Trust "C.” The split of Timmons Marital Trust "B” has no effect on the resolution of this appeal.

      . The Timmons also argue that Myrtle could only exercise the limited power of appointment with regard to assets currently in the family trust and not as to assets that might subsequently “pour over" from the marital trust. Because we conclude that Myrtle's attempt to exercise the limited power of appointment was invalid, we find it unnecessary to address this argument.
      We also decline to address the Timmons' argument that they are entitled to receive an accounting from the co-trustees. Because the trial court determined that Timmons lacked standing, it did not address the issue of whether the Timmons would otherwise be entitled to an accounting. We believe it appropriate for this argument to first be presented to the trial court.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Doris TOWNSEND and Richard Barchard, Appellants, v. Harold MORTON and Elizabeth Morton, Appellees.
    No. 5D09-1223.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.

      Karen E. Mailer of Powell Carney Mailer Ramsay & Grove, P.A., St. Petersburg, for Appellant.
    Donald F. Perrin of Donald F. Perrin, P.A., Inverness, for Appellee.
   SAWAYA, J.

Doris Townsend and her husband, Richard Barchard, appeal the final judgment rendered in favor of Harold Morton and his wife, Elizabeth Morton, in a suit filed by Townsend and Barchard seeking, among other remedies, rescission of three deeds executed by Townsend conveying a certain tract of property to Morton and his wife. Because the uncontested evidence at trial established Morton tricked Townsend, his mother, into signing a third warranty deed transferring the property in fee simple, we reverse in part the portion of the final judgment denying Townsend’s claim for rescission of that deed. The other portions of the final judgment regarding the first two deeds are affirmed.

We note at the outset that we have thoroughly reviewed the record in this case and believe that a detailed narration of all of the evidence introduced during the bench trial would unnecessarily burden and extend this opinion to a useless length. Therefore, we will only discuss the facts established by the uncontradicted evidence presented and particular findings made by the trial court.

During the times pertinent to these proceedings, Townsend was seventy-four years old and lived on a tract of property she inherited from her father. This property consists of 46.3 acres and was utilized by Townsend as a cattle farm. Townsend was married to Richard Barchard, seventy-eight years of age, who lived with Townsend on the farm. Like Barchard, Townsend has little formal education — she did not attend high school or college. However, she was able to operate the farm and manage the billing. She claims to be in failing health.

Townsend had several children, among them, Harold Morton, who is a licensed real estate broker. Morton’s work in real estate spans sixteen years. Morton grew up on his mother’s farm. Morton’s wife, Elizabeth, has held a real estate license for nineteen years.

On February 9, 2005, Townsend executed the first deed conveying the farm to Morton, reserving a life estate interest in herself. Apparently, there was no written contract of sale and the terms of their oral agreement were disputed at trial. What was not disputed is the fact that Morton paid in full the two mortgages and a line of credit Townsend had on the farm. The total amount of the payment Morton made to satisfy Townsend’s debts was $137,075.42. As part of the purchase price, Morton also paid Townsend the sum of $9,000 in March 2005. It was also not disputed, as the trial court found, that Morton “did agree to ... reserve a life estate for his mother....” Moreover, the evidence in the record is clear that pursuant to the agreement between Townsend and Morton, Townsend expected and rightfully deserved a life estate in the property, and we find absolutely nothing to suggest that she ever intended or agreed to relinquish that interest.

The first deed was not executed by Barchard because Townsend misrepresented her marital status for a variety of reasons. Despite the fact that Barchard lived on the farm with Townsend, Morton testified that he had not actually known the two were married, although he had suspected it, until after Townsend executed the first deed. At that point, Morton informed Townsend and Barchard that a new deed would have to be executed by both of them in order to correct this problem. Instead of having one corrective deed prepared, however, Morton had the title company prepare a proper corrective deed (the second deed) and he prepared the third, which removed Townsend’s life estate and conveyed the farm to Morton and his wife in fee simple. Although Morton denies preparing the third deed, the trial court found, and the deed on its face clearly shows, that it was prepared by Morton.

At Morton’s insistence, Townsend and Barchard signed the second and third warranty deeds at Nature Coast Title on March 30, 2006. The second warranty deed was recorded on March 31, 2006. The third warranty deed was not recorded and was placed in Morton’s possession. Regarding this third deed, the trial court found that Morton “stated it was drafted as protection when it was discovered that Ms. Townsend misrepresented her marital status” and that “[i]t was only to be recorded if Ms. Townsend predeceased Richard Barchard.” There is absolutely no evidence in the record that Townsend ever intended to convey her life estate interest via the third deed and there is no evidence in the record that she was ever informed that her execution of that third deed did just that.

Townsend subsequently demanded that Morton rescind the sale and cancel the deeds, but he refused. Townsend then instituted the underlying suit. When the trial court rendered the judgment denying her claims, this appeal ensued. We believe that the trial court properly denied rescission of the first and second deeds, but the third deed should have been rescinded.

Rescission is an equitable remedy adopted long ago by the courts, and the continued vitality of cases of ancient vintage that have applied this remedy is a testament to its age. See, e.g., Smith v. Richards, 38 U.S. (13 Pet.) 26, 36, 10 L.Ed. 42 (1839); Columbus Hotel Corp. v. Hotel Mgmt. Co., 116 Fla. 464, 156 So. 893, 897 (1934). Over the many years that the courts have utilized the equitable remedy of rescission, some principles have been firmly established regarding its applicability.

The courts have established that rescission is a proper remedy to relieve a party from obligations and provisions of an instrument procured by fraud, deceit, trickery, or artifice. Smith; Columbus Hotel. As the court explained in Columbus Hotel:

Equity will grant to a complaining party rescission of an agreement procured through fraud, deceit, artifice, or trickery practiced upon him by the opposite party, even after it had been partially executed, in cases where it is made to appear that the complaining party would not have entered into such agreement, nor changed his position thereby, if it had not been for the influence of such fraud, deceit, artifice, or trickery so practiced upon him.

156 So. at 897; see Smith, 38 U.S. (13 Pet.) at 36 (“In 1 Maddock’s Chancery, 208, it is thus stated. If, indeed, a man, upon a treaty for any contract, make a false representation, whether knowingly or not, by means of which he puts the party bargaining under a mistake upon the terms of bargain, it is a fraud, and relievable in equity.”); see also Webb v. Kirkland, 899 So.2d 344, 346-47 (Fla. 2d DCA 2005) (holding that rescission of a warranty deed procured by fraud is appropriate); Bass v. Farish, 616 So.2d 1146, 1147 (Fla. 4th DCA 1993). The courts also have established that in order to grant rescission of an instrument, the other party must be restored to the position it occupied prior to its execution. See Webb; Bass; Lang v. Horne, 156 Fla. 605, 23 So.2d 848, 853 (1945).

Townsend claims that the third deed was obtained by fraud and should be rescinded. The elements that must be established to prove a claim of fraud are: “(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in reliance on the representation.” Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985); see also Webb, 899 So.2d at 346; Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So.2d 536, 542 (Fla. 5th DCA 2003); Lopez-Infante v. Union Cent Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002).

The evidence in the record, and the trial court’s factual findings, clearly establish that all of the elements of fraud were proven. The first element of fraud, a false statement concerning a material fact, exists where Morton told Townsend and Barchard the reason they had to sign the second and third warranty deeds was to fix their marital status, when the third warranty deed actually conveyed the farm in fee simple to Morton and his wife. The second element, knowledge of the maker that the statement is false, exists in the trial court’s finding that Morton prepared the third warranty deed conveying the property in fee simple. If Morton, a licensed real estate broker for sixteen years, prepared the deed, he certainly knew it contained more than a mere correction of Townsend’s marital status. The third element, an intention that the statement induce reliant actions, is found in Morton’s undisputed testimony that he told Townsend, his mother, to go to the title company and sign the deeds to correct her marital status. The fourth element of fraud is a justifiable reliance on the false statement causing injury. Townsend and Barchard justifiably relied on Morton’s statement that the corrective deeds were necessary to fix their marital status, especially in light of Morton’s relationship to Townsend and his extensive experience in real estate. Townsend and Barchard suffer the injury of losing Townsend’s life estate. Hence, rescission of the third warranty deed is an appropriate remedy here.

Once the deed is rescinded, the parties will be returned to their position after the second deed was executed, where Morton had the remainder interest in the farm and Townsend retained a life estate. This is what the original agreement between the parties required and this is the position each will be returned to after the third deed is rescinded.

In denying rescission as to the third deed, it appears that the trial court was operating under the misapprehension that the deed was only executed by Barch-ard. This is wrong because the deed clearly shows that it was executed by both Townsend and Barchard. It also appears that the trial court denied rescission based on its finding that the deed was not recorded and its acceptance of Morton’s explanation that the deed’s unrecorded status renders it ineffective. This, too, is wrong. The fact that a deed is unrecorded does not affect the efficacy or validity of the instrument as between the grantor and grantee or those with notice. Rabinowitz v. Keefer, 100 Fla. 1723, 132 So. 297, 299 (1931); Black v. Skinner Mfg. Co., 53 Fla. 1090, 43 So. 919, 921 (1907) (holding that failure to record a deed does not affect the title of the grantee); Fryer v. Morgan, 714 So.2d 542, 545 (Fla. 3d DCA 1998) (“The law in Florida has always been that an unrecorded deed does not affect its validity as between the parties and their privies.”); Sweat v. Yates, 463 So.2d 306, 307 (Fla. 1st DCA 1984) (“[A] deed takes effect from the date of delivery, and the recording of a deed is not essential to its validity as between the parties or those taking with notice.... The recording statute has always been primarily intended to protect the rights of bona fide purchasers of property and creditors of property owners, rather than the immediate parties to the conveyance.”); Fong v. Batton, 214 So.2d 649, 652 (Fla. 3d DCA 1968); see also § 695.01(1), Fla. Stat. (2008). Hence, the purpose of recording a deed is to give notice to third parties, Hensel v. Aurilio, 417 So.2d 1035, 1037 (Fla. 4th DCA 1982), rather than validate an otherwise properly executed instrument between the parties. Fryer; Sweat; Fong.

Despite Morton’s representations, the third warranty deed does not simply correct the first warranty deed, nor is it insurance against future objections Morton speculates Barchard might make. And despite the trial court’s misapprehension regarding who executed the third deed and its unrecorded status, it is clear that it was executed by both Barchard and Townsend and that it constitutes a new transfer of land in fee simple that eliminates Townsend’s life estate. This is not what Townsend intended or agreed to when she executed the third deed.

Perhaps it is understandable that Morton did what he did, especially in light of his mother’s repeated lies to him about her marital status and the large amount of money he expended to satisfy her debts. Perhaps he really thought his actions were necessary to protect his legitimate interests in the property, and we ascribe no bad motives to Morton beyond his misguided attempt to do that via the third deed. Nevertheless, sufficient evidence exists to rescind and cancel that instrument.

We reverse that part of the judgment denying rescission of the third deed. In all. other respects, the judgment is affirmed.

AFFIRMED in part; REVERSED in part.

LAWSON and COHEN, JJ„ concur.

      . Townsend and Barchard sued Morton and his wife in a multi-count complaint claiming: 1) breach of fiduciary duty; 2) civil conspiracy; 3) fraud; 4) negligent misrepresentation; 5) rescission; 6) constructive trust; and 7) unjust enrichment.


author: DAVIS, Judge.

text:
    In the Interest of G.M. and V.M., children. Department of Children and Family Services and Guardian Ad Litem Program, Appellants, v. M.M. and A.H., Appellees.
    No. 2D09-1970.
    District Court of Appeal of Florida, Second District.
    June 4, 2010.

      Anthony C. Musto, Special Counsel, Hal-lendale Beach, for Appellant Department of Children and Family Services.
    Jennifer S. Paullin of Guardian ad Litem Program, Tavares, for Appellant Guardian ad Litem Program.
    C. Michael Kelly of C. Michael Kelly, P.A., Bradenton, for Appellee M.M.
    Linda E. Griffin of Linda E. Griffin, P.A., Sarasota, for Appellee A.H.
   DAVIS, Judge.

The Department of Children and Family Services (the Department) and the Guardian Ad Litem Program (GAL) challenge the trial court’s partial denial of the petition for termination of parental rights filed by the Department against M.M., the Father, and A.H., the Mother, as to two minor children. The petition sought termination based on several grounds, including an allegation of egregious abuse by the Father. Specifically, the petition alleged that the Father had severely beaten the two-year-old child, G.M. The trial court granted the petition as to the Father in regard to G.M. but denied the petition as to the Father’s rights to the younger child, V.M., and as to the Mother entirely. We affirm the denial of the petition with regard to the Mother without comment. But because the Father entered his consent to the petition, we reverse the portion of the trial court’s order that denies the petition as to the Father’s rights to V.M.

The trial court held a two-day hearing on the petition on February 6 and March 4, 2009. At the outset of the second day, the Father notified the court that he wanted to enter a consent to the petition. After being placed under oath, the Father answered questions from his attorney exhibiting that he understood that the court could terminate his parental rights based on the allegation of egregious abuse and that his rights could be terminated even if the Mother’s were not.

After the trial court determined that the Father’s consent was freely and voluntarily given, the Department inquired as to what role the Father and his attorney would play in the remainder of the trial. Counsel for the Father responded as follows:

He is still facing criminal charges. While he’s entered a consent to the petition and the court may at some point find that it is in the best interest of the children to terminate his rights alone, that has not happened yet and is a separate determination from his consent. So I would plan to be here and [the Father] being a party to the case I believe has every right to be here. So, we were going to sit this one out, and whatever the State did [sic] we would deal with it.

As such, the Father and his counsel were present for the remainder of the trial, after which the trial court terminated the Father’s parental rights to G.M. based on the Father’s egregious conduct toward that child. The court, however, declined to terminate the Father’s rights to V.M., concluding that “the Department failed to establish that termination is the least restrictive means of protecting the child from harm.”

The trial court relied on T.L. v. Department of Children & Family Services, 990 So.2d 1267 (Fla. 2d DCA 2008), in denying the petition against the Father as to the child, V.M. In that case, the Department filed a petition for termination of a father’s parental rights alleging physical abuse of the child’s sibling. The trial court granted the petition, but this court reversed. The bases of the reversal included the Department’s failure to present sufficient evidence of a nexus between the actual abuse experienced by the one child and the potential for abuse to the other child, who was the subject of the petition. Additionally, this court determined that there was a lack of evidence to support the trial court’s finding that termination was the least restrictive means.

The trial court below found the facts of this case to be similar to those of T.L. in that in neither case was there evidence that the subject child actually had been physically abused or that the Department had previously offered services that were refused. Further, the trial court pointed out that here the Department presented no psychological testimony to indicate that the Father had a mental or emotional condition that would prevent him from benefiting from services. Accordingly, the trial court concluded that T.L. required the denial of the petition against the Father as to V.M.

On appeal, the Department argues that the trial court erred in coming to this conclusion. The Department maintains that when the Father entered his consent to the petition, he waived any right to contest the issues regarding the grounds for the termination, including whether termination is the least restrictive means of protection. By analogy, the Department cites Florida Department of Children & Family Services v. P.E., 14 So.3d 228, 236 (Fla.2009), in which the Supreme Court of Florida determined that if the trial court enters a statutorily designed “constructive” consent after a parent fails to appear at the termination of parental rights trial despite notice, “the parent may not challenge the basis for the termination of parental rights” alleged in the petition for termination. The Department suggests that it is illogical to conclude that a personally entered consent requires the Department to present more evidence than a constructive consent based on a parent’s failure to appear at the adjudicatory hearing. We agree.

First, we note that T.L. is factually distinguishable from the instant case. In T.L., the father contested the factual allegations throughout the trial and successfully demonstrated on appeal that the Department failed to produce sufficient evidence to support its allegations. Here, the Father consented to the petition, thus relieving the Department of the need to present evidence to support the allegations of the petition, including that the Father had severely beaten G.M., the sibling of V.M.; that he had “dangerous propensities”; and that he had committed “prior acts of violence upon the children.” (Emphasis added.) The instant petition also alleged that the Mother had advised the Department that the Father had anger management issues and had slapped the children out of frustration. The Department specifically noted that it “reasonably fears based upon the facts discovered through it[s] investigation, that V.M. was placed in the same risk of danger and potential physical abuse as was her sibling, G.M.”

Based on these facts, the Department further alleged that the Father had engaged in conduct toward the children that demonstrates that his continuing involvement in the parent-child relationship would threaten the life, safety, or well-being or physical, mental, or emotional health of the children, irrespective of services. By entering his consent to this allegation, the Father agreed that his continued involvement would pose a threat to the children with or without a case plan. See § 39.806(l)(c), Fla. Stat. (2008) (“Provision of services may be evidenced by proof that services were provided through a previous case plan or offered as a case plan.”). By acknowledging through his consent that a case plan would be futile, the Father implicitly agreed that termination is the least restrictive means. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991) (defining “least restrictive means” as “a good faith effort to rehabilitate the parent ... such as through a current performance agreement”).

Furthermore, at no time did the Father contest the issue of least restrictive means below. Although this court has concluded that the trial court must determine whether termination is in the manifest best interest of the child regardless of whether the parents participate in the final hearing, see In re H.E., 3 So.3d 341, 343 (Fla. 2d DCA), quashed in part on other grounds, 14 So.3d 228 (Fla.2009), no such requirement exists regarding the issue of least restrictive means.

Because by his consent to the allegations in the Department’s petition the Father acknowledged that grounds existed to support termination of his rights to both children and that such termination was the least restrictive means, we conclude that the trial court erred in denying the termination of the Father’s parental rights to V.M. We therefore reverse and remand to the trial court with instructions to enter a final judgment granting the petition against the Father as to both minor children, G.M. and V.M.

Affirmed in part, reversed in part, and remanded.

WHATLEY and SILBERMAN, JJ, Concur.


author: PER CURIAM.

text:
    Kishaune LYNCH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1363.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.

      Kishaune A. Lynch, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 23, 2009, order denying Petitioner’s rule 3.800(a) motion in Case No. 48-04-CF^1321-OA in the Circuit Court in and for Orange County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Antonio JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1343.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    Antonio Jackson, Live Oak, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The trial court dismissed, for lack of jurisdiction, Appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). When the trial court considered the motion, it believed that an appeal of a prior rule 3.800(a) motion, involving issues that were “sufficiently related to divest the trial court of jurisdiction,” was pending in this court. In fact, we had ruled on and issued the mandate before the trial court dismissed the instant motion. Therefore, the trial court should have considered the instant motion on its merits. Accordingly, this case is remanded to the trial court for that purpose.

REVERSED and REMANDED.

GRIFFIN, COHEN and JACOBUS, JJ., concur.


text:
    Rio E. REED, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1320.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    Rio E. Reed, East Palatka, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2009-CF-000250, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Antwan JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-880.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    Antwan Jackson, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The Petition for Belated Appeal is granted. A copy of this opinion shall be filed with the Circuit Court and treated as the notice of appeal from the order denying Petitioner’s motion for postconviction relief in Case No. 2006-CF-004073, in the Circuit Court in and for Orange County, Florida.

PETITION GRANTED.

SAWAYA, ORFINGER and EYANDER, JJ., concur.


text:
    Christopher FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-61.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Christopher Fisher appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In part, Fisher argues that his prison release reoffender (PRR) sentence for the offense of battery on a law enforcement officer is improper under State v. Hearns, 961 So.2d 211 (Fla.2007). The State properly concedes error. See Rawl ings v. State, 976 So.2d 1179 (Fla. 5th DCA 2008).

Accordingly, we strike the PRR portion of Fisher’s sentence for battery on a law enforcement officer and remand for resen-tencing on that count. We affirm in all other respects.

AFFIRMED IN PART; REMANDED.

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

      . Count II, case number 2007-CF-73.


text:
    WELLS FARGO BANK, N.A. As Trustee, etc., Appellant, v. Carl T. LUPICA and Margaret Lupica, Appellees.
    No. 5D09-2902.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    Richard S. Mclver, of Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A. Tampa, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

Wells Fargo appeals from the denial of its unopposed motion to cancel foreclosure sale and its subsequent unopposed motion to vacate the foreclosure sale. Because we find that the denial of these motions constituted a gross abuse of discretion, we reverse.

Wells Fargo filed a mortgage foreclosure action against the Lupicas, based on their alleged failure to make due and owing monthly installment payments. No answer was filed by the Lupicas and a final summary judgment was subsequently entered in favor of Wells Fargo. Shortly prior to the scheduled foreclosure sale, Wells Fargo filed a motion to cancel sale, alleging that the parties had reached a loan modification agreement. The motion was denied by stamping the word “Denied” on the face of the motion. Wells Fargo purchased the mortgaged property at the foreclosure sale for $100 and then filed an unopposed motion to vacate sale, stating that the parties had reached a forbearance agreement. The trial court again denied the motion by use of a “Denied” stamp.

When Wells Fargo initially appealed the denial of these motions, we were compelled to relinquish jurisdiction to the trial court because the trial court’s action did not constitute “rendition” of a final order so as to permit appellate review. Wells Fargo Bank, N.A. v. Lupica, 17 So.3d 864 (Fla. 5th DCA 2009). We further directed the trial court to provide the basis for its denials of Wells Fargo’s motion to cancel sale and subsequent motion to vacate sale. Id. at 866.

The trial court then entered a final order denying the motions. The purported basis for the denial of Wells Fargo’s two unopposed motions was the failure to attach a stipulation and/or a copy of the loan modification or forbearance agreement signed by all parties. The trial judge further suggested that the parties should have discussed the modification of the loan prior to entry of the final judgment “which could have avoided unnecessary consumption of the time of two courts.”

Foreclosures are equitable proceedings under Florida law and settlements between litigants are favored. The trial court’s denial of Wells Fargo’s unopposed motions flies in the face of these principles. Furthermore, it was not necessary for Wells Fargo to have attached a stipulation and/or copy of a signed loan modification or forbearance agreement. There was no basis for the trial court to reject Wells Fargo’s counsel’s representation, as an officer of the court, that an agreement had been reached between the parties — particularly where the Lupicas never disputed such representation. The trial court’s actions constituted a gross abuse of discretion. See, e.g., Opportunity Funding I, LLC v. Otetchestvennyi, 909 So.2d 361 (Fla. 4th DCA 2005).

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.

      . Subsequent to the trial court's entry of its final order, the Florida Supreme Court approved a form motion for the cancellation of a foreclosure sale:
      Form 1.996(b). Motion to Cancel and Reschedule Foreclosure Sale.
      Plaintiff moves to cancel and reschedule the mortgage foreclosure sale because:
      * ⅜ *
      (2) The sale needs to be cancelled for the following reason(s):
      * * *
      (f) Plaintiff and Defendant have entered into a Forbearance Agreement.

        In re Amends, to the Fla. Rules of Civil Proc., - So.3d -, 35 Fla. L. Weekly S97 (Fla. Feb. 11, 2010). The form motion does not reference the attachment of a stipulation or copy of a forbearance agreement.


text:
    A.L.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1516.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

A.L.M. was adjudicated guilty, after an adjudicatory hearing, of five separate offenses. He was committed to a Level 8 program until his 19th birthday and was further assessed certain court costs and a $300 public defender’s fee. On appeal, A.L.M. correctly contends that the imposition of the public defender’s fee was improper because he was not given notice of his right to contest the amount of the fee. J.F. v. State, 961 So.2d 991 (Fla. 5th DCA 2007). On remand, the fee obligation may be re-imposed, provided the trial court complies with the provisions of Florida Rule of Criminal Procedure 3.720(d). J.F.

AL.M.’s additional argument that a public defender’s lien may not be imposed against a juvenile offender’s indigent parent is without merit. See § 938.29(2)(a), Fla. Stat. (2009).

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


author: PER CURIAM. COHEN, J.,

text:
    Robert LUMPKIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1501.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, 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.

Our affirmance is based upon a harmless error analysis. The prosecutor’s error was so basic it was elementary. Her closing argument improperly attempted to shift the burden of proof. Relying on broad language in Henry v. State, 483 So.2d 860 (Fla. 5th DCA 1986), the prosecutor asserted her comment was not improper. That opinion contained no facts or analysis and was the equivalent of citing a head note as legal authority. A modicum of research would have revealed a plethora of case law disapproving of the prosecutor’s comment. See Ealy v. State, 915 So.2d 1288 (Fla. 2d DCA 2005); Williams v. State, 754 So.2d 724 (Fla. 4th DCA 1999); and Messec v. State, 635 So.2d 89 (Fla. 4th DCA 1994). The trial court properly sustained defense counsel’s objection and issued a curative instruction.

What is also disconcerting was the prosecutor’s cavalier attitude toward what constituted a potentially serious error. In response to the trial judge’s concerns, the prosecutor responded, “Then grant the motion [for mistrial], Your Honor, because that’s what it sounds like you are doing. I’m not going to waste another four hours on this case, it sounds like that’s where you are leading.” Many a trial judge would have accepted the prosecutor’s invitation.

      . Not even the attorney general's brief attempts to justify this error. Instead, it focuses on whether the remark deprived the defendant of a fair trial, materially contributed to the conviction, fundamentally tainted the trial or was so inflammatory that it might have influenced the jury to reach a more severe verdict than it would have otherwise.

      . This is not a case where the defendant has voluntarily assumed some burden of proof by asserting certain defenses such as alibi or self-defense.


text:
    John GRAHAM, Appellant, v. RIVER RANCH CATTLE COMPANY, LLC, et al., Appellees.
    No. 5D09-670.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    Harry E. Geissinger, III, Palm Beach, for Appellant.
    River Ranch Cattle Company LLC, Granada Hills, California, pro se.
   PER CURIAM.

In light of the pendency of a compulsory counterclaim for partition of the property subject to the appealed summary judgment of foreclosure, we dismiss this appeal for lack of jurisdiction without prejudice to appellant’s right to seek review upon entry of a final appealable order. See Knaus Sys., Inc. v. Aye, 757 So.2d 582, 582 (Fla. 1st DCA 2000).

DISMISSED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    STATE of Maine, Appellant, v. Steven M. HANSON, Appellee.
    No. 5D09-501.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    Ronald H. Trybus of Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A. Tampa, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

After Appellant, the State of Maine, obtained a judgment against Appellee for individual income tax liability, it domesticated its judgment in Florida pursuant to Florida law. The trial court issued an order granting Appellee’s motion to vacate the judgment and quashing the recording of the foreign judgment, concluding that Appellee’s Maine individual income tax liability is not enforceable in Florida. Appellant challenges that order, asserting that its judgment is entitled to full faith and credit. We agree and reverse.

Appellant obtained a $64,214.91 judgment against Appellee for individual income taxes owed to Appellant. Pursuant to the Florida Enforcement of Foreign Judgments Act, sections 55.501-509, Florida Statutes, Appellant recorded its foreign judgment in Citrus County, Florida, and notified Appellee of the recording. Section 55.503(1), Florida Statutes (2008), provides:

55.503 Recording and status of foreign judgments; fees.—
(1) A copy of any foreign judgment certified in accordance with the laws of the United States or of this state may be recorded in the office of the clerk of the circuit court of any county. The clerk shall file, record, and index the foreign judgment in the same manner as a judgment of a circuit or county court of this state. A judgment so recorded shall have the same effect and shall be subject to the same rules of civil procedure, legal and equitable defenses, and proceedings for reopening, vacating, or staying judgments, and it may be enforced, released, or satisfied, as a judgment of a circuit or county court of this state.

Appellee filed a motion to vacate the foreign judgment, arguing that its enforcement was contrary to Florida’s public policy as set forth in section 72.041, Florida Statutes (2008). Section 72.041 is entitled “Tax liabilities arising under the laws of other states,” and provides that “[ajctions to enforce lawfully imposed sales, use, and corporate income taxes and motor and other fuel taxes of another state may be brought in a court of this state” under certain enumerated conditions. Appellee asserted that only foreign judgments based on those taxes enumerated in section 72.041 are enforceable in Florida, and that because Appellant’s judgment was not based on one of the enumerated taxes, it was not enforceable in Florida. The trial court agreed and rendered an order granting Appellee’s motion to vacate Appellant’s judgment and quashing the clerk’s registration of the judgment.

On appeal, Appellant contends that the trial court erred by not giving its foreign judgment full faith and credit under the United States Constitution. We agree. M & R Invs., Co., Inc. v. Hacker, 511 So.2d 1099 (Fla. 5th DCA 1987). We also agree that the lower court misinterpreted section 72.041 to establish the public policy of Florida with respect to enforcing tax liabilities from other states. Section 72.041 merely provides conditions under which another state’s imposed sales, use, corporate income, and motor and other fuel taxes may be enforced in Florida. It does not pertain to income tax liability and certainly cannot be interpreted to establish a public policy against enforcement of income tax liability. Even if it did, Appellant did not invoke the statute to enforce its claim; it only sought to domesticate a judgment that it had already obtained in its courts. See New York State Comm’r of Taxation & Fin. v. Friona, 902 So.2d 864, 866 (Fla. 4th DCA 2005) (reiterating that domesticating foreign judgment under Florida Enforcement of Foreign Judgment Act not equivalent to bringing action on foreign judgment).

REVERSED AND REMANDED.

PALMER, TORPY and COHEN, JJ., concur.


author: PALMER, J.

text:
    Jerry Randell BROXTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4268.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.

      William Mallory Kent, of Law Office of William Mallory Kent, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Jerry Randell Broxton (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of trafficking in Oxycodone, in violation of section 893.135(l)(c) of the Florida Statutes (2007). Determining that the trial court erred by denying the defendant’s pre-trial motion to suppress, we reverse.

The defendant was charged with trafficking in Oxycodone. In a pre-trial motion to suppress, the defendant argued that all evidence seized at the time of the arrest should be suppressed because it was obtained following an unlawful search and seizure.

At the suppression hearing, the State presented the testimony of Officer Adam, an officer with the Florida Fish and Wildlife Conservation Commission. Adam testified that while on duty he observed four individuals fishing in a pond and he approached them to check whether they possessed valid fishing licenses. While Adam was making contact with one of the individuals, the defendant began walking towards a group of nearby vehicles. Adam followed and made contact with the defendant. He requested to see the defendant’s fishing license. The defendant did not have a fishing license or any identification. Adam testified that he then patted the defendant down to make sure that he did not possess any weapons. Adam explained that, in his experience, it is not uncommon for fishermen to be carrying a knife or a gun. Additionally, Adam noticed a bulge in the defendant’s pocket. Adam felt the bulge and determined that it had the consistency of a plastic bag, not a weapon. Adam asked the defendant what was in the bag. The defendant opened his pocket and, as he revealed the plastic bag, he said that it contained fishing tackle. The defendant did not remove the bag from his pocket. However, Adam saw pills in the plastic bag. The defendant closed his pocket and Adam asked for the bag. The defendant then handed the bag to Adam.

Adam described the encounter as follows:

Q: (Prosecutor): At the time when you guys were standing there and you were going to write him a citation, he was not under arrest, was he?
A: No, he wasn’t under arrest. He wasn’t free to go. I was going to issue him a citation.

The defendant testified as follows regarding the encounter between himself and Adam:

Q: (Defense counsel): Why did you open your pocket?
A: (Defendant): He asked me to, and I didn’t want to cause no trouble.
Q: Did you feel like you could leave?
A: No, ma’am.

Upon review of the testimony, the trial court denied the defendant’s motion to suppress finding that the search of the defendant’s pocket was consensual. Thereafter, the case proceeded to trial. The jury found the defendant guilty of trafficking in Oxycodone.

The defendant argues that the trial court erred in denying his motion to suppress because, among other things, once the frisk established that the bulge in the defendant’s pocket was not a weapon, Adam was not authorized to search further. The State properly concedes that this argument is correct. However, the State argues that the trial court properly concluded that suppression was not warranted because the defendant’s actions constituted a valid consent to search. We hold that the record does not support the conclusion that the defendant consented, rather than merely acquiesced to police authority, when he handed Adam the plastic bag containing the pills.

In Sizemore v. State, 939 So.2d 209 (Fla. 1st DCA 2006), the First District held that the defendant who was being detained did not consent, but merely acquiesced to police authority, when he removed marijuana from his pocket after he was asked if he had “anything on his person that would get him into trouble.” Id. at 210. In the present case, the defendant was detained for an investigatory stop. He believed he was not free to leave and Adam testified that the defendant was not free to leave. The defendant removed the plastic bag from his pocket and gave it to Adam only after Adam directed him to do so. The present case is factually analogous to Size-more. As such, the motion to suppress should have been granted.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.


text:
    Michael Carl HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3926.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Michael Carl Harris appeals his judgment and sentence for delivery of cocaine. He argues that the State failed to prove the element of knowledge. We affirm. When person # 1 asks person # 2 for crack cocaine, person # 2 directs person # 3 to hand over a substance, and person # 3 hands over a substance that later tests positive for cocaine, the reasonable inference is that person # 2 had knowledge that the substance was cocaine, especially if person # 2 asks person # 1 if they are with the police and thereafter flees upon arrival of law enforcement.

AFFIRMED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Michael Ernest HAAGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4801.
    District Court of Appeal of Florida, Second District.
    June 4, 2010.
    Michael Ernest Haager, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Michael Haager appeals the denial of his motion to vacate his 1975 judgments and sentences due to an alleged violation of the statutory procedure for sentencing individuals classified at that time as mentally disordered sex offenders. We affirm in regard to the convictions without further comment, but we reverse as to the sentences.

In 1974, Haager pleaded guilty to two counts of robbery and four counts of rape in three separate cases. The circuit court imposed concurrent prison sentences of forty years for the robberies and life for the rapes. The court also determined that Haager was a “mentally disordered sex offender” pursuant to then-chapter 917, Florida Statutes (1974). Under that statutory scheme, which was repealed in 1979, the court should have deferred sentencing until Haager recovered from his disorder and was no longer a menace to others. See Gonsovowski v. State, 350 So.2d 19 (Fla. 2d DCA 1977); see also ch. 79-341, Laws of Fla. (repealing chapter 917 relating to mentally disordered sex offenders). As interpreted by the supreme court, the statute required the court to postpone sentencing until the defendant completed treatment, thus permitting the court to “consider any rehabilitative effect the treatment may have had on the defendant” when determining his sentence. Gammill v. Wainwright, 357 So.2d 714, 716 (Fla.1978). In Haager’s case, then, the sentencing court erred by failing to follow the statutory procedure for mentally disordered sex offenders. See O’Malley v. State, 396 So.2d 1128, 1129 (Fla.1981).

Haager raised this sentencing error in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800, but the motion was denied and this court affirmed. Haager v. State, 934 So.2d 458 (Fla. 2d DCA 2006) (table decision). In 2008, Haager raised the claim again, this time citing Florida Rule of Criminal Procedure 3.170 and also seeking to withdraw his plea. The circuit court denied relief, concluding that the claim was untimely under both rule 3.170 and rule 3.850. In a motion for rehearing, Haager argued that his motion should be treated as a petition for a writ of habeas corpus. He further alleged that his codefendant in the 1974 crimes was also classified as a mentally disordered sex offender while being improperly sentenced to prison and that the codefen-dant was later resentenced. Haager attached a 1998 order for his codefendant’s resentencing. The motion for rehearing was denied, and this appeal followed.

Haager has asked this court to treat his appeal as a petition for a writ of habeas corpus. He argues that he has suffered a manifest injustice when compared to his codefendant and others who have obtained relief on this type of claim. See Slappey v. State, 584 So.2d 1108 (Fla. 1st DCA 1991) (reversing denial of successive motion seeking correction of a sentence that was improperly imposed under mentally disordered sex offender statute). We directed the State to respond to Haager’s filing. It argues that affirmance is required under the law of the case unless there is a manifest injustice.

Under the law-of-the-case doctrine, an appellate court should reconsider a point of law previously decided in a former appeal only in “unusual circumstances” and only when “ ‘manifest injustice’ will result from a strict and rigid adherence to the rule.” Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965). Law of the case has been applied to successive review of claims under rule 3.800(a). Harris v. State, 777 So.2d 994, 994 (Fla. 2d DCA 2000). Still, to prevent a manifest injustice and a denial of due process, relief may be afforded even to a litigant raising a successive claim. Stephens v. State, 974 So.2d 455, 457 (Fla. 2d DCA 2008).

In Stephens, we treated Stephens’ successive postconviction claim as a petition for habeas corpus relief because we had affirmed his sentence even though we had reversed that of an unrelated defendant who had been sentenced on the same day by the same judge who made the same error as in Stephens’ case. We recognized that to give relief to one defendant but not the other under virtually identical circumstances was “a manifest injustice that does not promote — in fact, it corrodes — uniformity in the decisions of this court.” Id.

“In rare circumstances, this court has exercised its inherent authority to grant a writ of habeas corpus to avoid incongruous and manifestly unfair results.” Id. We do so here. Reversed for resentencing.

VILLANTI, J„ and FULMER, CAROLYN K, Senior Judge, Concur.


text:
    Ronald G. SMITH, Appellant, v. SCHWOB BUILDING COMPANY LIMITED/AMERISURE MUTUAL INSURANCE COMPANY, Appellees.
    No. 1D10-0065.
    District Court of Appeal of Florida, First District.
    June 4, 2010.
    Jonathan B. Israel of Harris, Guidi, Ros-ner, Dunlap and Rudolph, P.A., Jacksonville, for Appellant.
    Michael C. Crumpler of Law Offices of Michael C. Crumpler, P.A., Jacksonville, for Appellees.
   PER CURIAM.

Upon review of Appellant’s untimely response to this court’s March 30, 2010, order, we DISMISS this appeal. See Fla. R.App. P. 9.410.

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    UNDERWOOD ANDERSON & ASSOCIATES, INC., Appellant, v. LILLO’S ITALIAN RESTAURANT, INC., Appellee.
    No. 1D09-4373.
    District Court of Appeal of Florida, First District.
    June 4, 2010.

      Alan R. Horky of Fuller, Johnson, Ke-hoe, Horky & Rettig, Pensacola, for Appellant.
    Lisa Minshew, Pensacola, for Appellee.
   PER CURIAM.

Appellant Underwood Anderson & Associates, Inc., appeals a final judgment in which the trial court awarded appellee, Lillo’s Italian Restaurant, Inc., attorney’s fees against Underwood Anderson pursuant to section 627.428(1), Florida Statutes (2004), having found that Underwood Anderson was an “insurer” under the statute. We reverse and remand, because the agent was not an insurer under the facts of this case.

Lillo’s obtained flood coverage from Fidelity National Insurance Company through insurance agent, Underwood Anderson. After Hurricane Ivan destroyed the restaurant in September 2004, the restaurant made a claim for what it believed was the full amount under the policy of $275,600, but was informed it had only a $150,000 policy. Fidelity paid the $150,000, and the restaurant filed a claim against the agent for negligent procurement. The agent contended that the restaurant had asked to reduce its coverage, and the restaurant contended it had not. The jury found the agent 90 percent negligent in reducing the restaurant’s flood coverage and that such negligence caused the restaurant’s $125,600 loss (the difference between the $275,600 the restaurant believed it had obtained and the $150,000 coverage that Fidelity paid out).

The restaurant sought attorney’s fees under section 768.79, Florida Statutes (2004), because a year before trial Lillo had offered to settle for $75,000 under section 627.428(1), which provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation foi the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

(Emphasis added) Finding without further comment that Underwood Anderson was an “insurer” under section 627.428, the court awarded Lillo’s $102,945.55 in fees and costs. In the alternative, the court awarded Lillo’s $48,087.86 under section 768.79. The agent does not challenge the latter award.

The trial court erred as a matter of law by determining that Underwood Anderson was an “insurer” liable for the insured’s attorney’s fees under section 627.428. See Allstate Ins. Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006) (holding that whether the plaintiff was one of the entities entitled to fees under section 627.428 was a question of statutory interpretation and thus an issue of law). Accord First Union Nat’l Bank v. Turney, 839 So.2d 774, 776 (Fla. 1st DCA 2003); Save On Cleaners of Pembroke II Inc. v. Verde Pines City Ctr. Plaza LLC, 14 So.3d 295, 297 n. 4 (Fla. 4th DCA 2009).

Section 627.428 directs the court to award attorney’s fees for an insured upon rendition of a judgment against “an insurer.” Because the statute is in derogation of the common law, it must be strictly construed. See Liberty Nat’l Life Ins. Co. v. Bailey ex rel. Bailey, 944 So.2d 1028 (Fla. 2d DCA 2006). The parties invoke the following four definitions from the Insurance Code.

• “Insurer” is “every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance or of annuity.” § 624.03, Fla. Stat. (2004) (emphasis added).
• “Insurance” is “a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies.” § 624.02, Fla. Stat. (2004).
• “Person,” used in the definition of “insurer” includes “an individual, insurer, company, association, organization, Lloyds, society, reciprocal insurer or interinsurance exchange, partnership, syndicate, business trust, corporation, agent, general agent, broker, service representative, adjuster, and every legal entity.” § 624.04, Fla. Stat. (2004) (emphasis added).
• To “transact” insurance includes: solicitation or inducement; preliminary negotiations; effectuation of a contract of insurance; and/or transaction of matters subsequent to effectuation of a contract of insurance and arising out of it.

The restaurant contends that because its agent was a “person” under section 624.04, and the definition of “insurer” includes a “person,” the agent was an “insurer.” This premise is strengthened, the restaurant claims, because it is undisputed that the agent “transacts” insurance.

On the contrary, the fact that the agent engages in “transactions” involving insurance is not helpful in determining this issue, because the definition of “insurer” does not incorporate the term “transact.” Moreover, occurrence of the term “person” in the definition of “insurer” does not end the inquiry. The definition requires a specific kind of person, namely, as applied to our facts, one who is a “contractor in the business of entering into contracts of insurance.” “Enter” is defined, in relevant part, as “To become a party to cthey entered into an agreements-.” Black’s Law Dictionary 572 (8th ed. 2004) (emphasis added). An agent may be an insurer if it is a party to the insurance contract at issue.

Under the facts of this case, it is undisputed that the agent merely facilitated the contract to which the restaurant and Fidelity were parties and that the restaurant has not claimed that the agent was actually a party to the insurance contract. (Hence, the restaurant sued Fidelity for breach of contract and sued the agent for negligent procurement.) Accordingly, a strict construction of section 627.428 excludes the agent from liability for attorney’s fees. This is consistent with what the courts have often stated to be the purpose of the attorney’s fee statute, which is to encourage insurance companies to pay when they are presented with valid claims and, failing that, to compensate insureds that are forced to litigate their contracts with improperly recalcitrant insurance companies. See, e.g., Pepper’s Steel & Alloys, Inc. v. United States, 850 So.2d 462, 464 (Fla.2003); Fla. Rock & Tank Lines, Inc. v. Continental Ins. Co., 399 So.2d 122, 123 (Fla. 1st DCA 1981); Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079, 1081 (Fla. 4th DCA 2009); First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007). An agent who is not a party to an insurance contract has no authority to pay on the policy; thus, the purpose of the statute is not served by making agents liable for fees incurred in enforcing the policy.

In Charles Stewart Agency, Inc. v. Doisy, 399 So.2d 127 (Fla. 1st DCA 1981), the plaintiff sued her insurance agent for misrepresenting that she had fire insurance coverage for her home. A jury found in her favor. Although the trial court awarded the plaintiff attorney’s fees against the agent, this court reversed, finding that there was no contract or statute authorizing such fees. (It should be noted that the attorney’s fee provision and the definitions at issue in this case have existed essentially unchanged since they were enacted in 1959.)

In Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1980), an employer asked his insurance agent to procure a workers’ compensation policy. The agent was unable to do so and called another agent, who procured a policy from Nationwide Underwriters, Inc. When the employer was injured on the job, Nationwide denied coverage, because his name was not listed as an insured. The employer sued both agents and the carrier as the second agent’s principal, alleging negligent procurement of coverage. The jury exonerated the first agent but returned a verdict against the second agent and carrier, and the court awarded attorney’s fees against the latter two defendants. The Third District reversed, finding there was no statute or contract that authorized attorney’s fees against the agent. The court observed that the employer “correctly says that his action [for negligent procurement] against [the second agent] does not arise under the Insurance Code and that the trial court’s fee award was not made under Section 627.128(1).” Id. at 237 (emphasis added). The court pointed out that a plaintiff may be entitled to attorney’s fees against an agent when the agent failed to procure proper coverage if, as a result, the plaintiff was required to hire counsel to defend or prosecute an action that the policy would have covered. In that kind of case, the amount the plaintiff had to pay his or her attorney is not awarded pursuant to section 627.428, but is instead one of the consequences of the agent’s failure to obtain coverage for the plaintiff and is thus part of the damages sought against the agent for negligent procurement. See id. Because the employer in Sheridan was seeking attorney’s fees that he incurred in his suit against the agent for negligent procurement, rather than fees incurred in the underlying suit over the matter that should have been covered by his policy, the court stated that attorney’s fees “were not recoverable.” Id; see also Consolidated Ins. Servs. v. Freeman, 848 So.2d 444 (Fla. 4th DCA 2003) (observing that attorney's fees may be awarded in an action against an insurance agent for negligent procurement if the agent’s failure to procure coverage required the would-be insured to pay an attorney to defend it against the plaintiffs negligence action).

The restaurant failed to show that its agent was an “insurer” subject to section 627.428, and we therefore reverse the trial court’s order. Because the agent does not challenge the trial court’s award of attorney’s fees under section 768.79, our reversal does not affect that part of the final judgment on attorney’s fees.

Reversed in Part, Affirmed in Part, and Remanded.

WOLF, BENTON, and PADOVANO, JJ., concur.


author: WETHERELL, J.

text:
    BROWN & BROWN, INC., and Brian Lindahl, Appellants, v. The ESTATE OF Ralph Nolan EDENFIELD, by and through Gladys EDENFIELD, Personal Representative, Appellee.
    No. 1D09-2379.
    District Court of Appeal of Florida, First District.
    June 4, 2010.

      Shelley H. Leinicke, of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauder-dale, for Appellants.
    Scott E. Gwartney and Dean R. Le-Boeuf, of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Ap-pellee.
   ON MOTION FOR REHEARING

WETHERELL, J.

We withdraw our opinion issued on April 7, 2010, and substitute this opinion in its place. In light of this substituted opinion, we deny Appellee’s motion for rehearing and certification.

Appellants seek review of the $850,000 final judgment entered in favor of Appel-lee. Appellants argue that the trial court erred in finding that they negligently created a “gap” in professional liability insurance coverage for Parthenon Healthcare (Parthenon). We agree, and because we reverse on this issue, we need not address the other issues raised by Appellants on appeal.

In June 2001, Ralph Edenfield died after having sustained injuries while a patient at Parthenon’s skilled nursing facility. On September 17 and October 30, 2001, Appel-lee, Edenfield’s estate, notified Parthenon of its intent to initiate litigation. After receiving no response, Appellee brought a wrongful death action against Parthenon in December 2001. The case ultimately settled for $1,000,000, and as part of the settlement, Parthenon assigned to Appel-lee any claims that it had against its insurer, Lloyd’s of London (Lloyd’s), for failure to defend the claim and against Appellants, its insurance agent, for failure to procure insurance coverage.

Appellants had obtained a $1,000,000 professional liability insurance policy for Parthenon through CRC, a syndicate of Lloyd’s, for the period of September 7, 2000, to September 7, 2001. The term of the policy was extended by Lloyd’s to September 15, 2001, as a result of the tragic events of September 11th, and the policy also contained a 30-day reporting period for claims after the expiration of the policy-

In September and October 2001, Parthenon transmitted premium payments to Appellants and Appellants attempted to negotiate terms with CRC for a $500,000 “renewal” policy. Appellants were unable to bind coverage through CRC. Appellants thereafter obtained a $500,000 policy for Parthenon with Sapphire Blue, another syndicate of Lloyd’s, which took effect on November 1, 2001. The Sapphire Blue policy, like the original CRC policy, was a “claims-made policy” which provided coverage based upon the date that the claim was submitted rather than the date on which the incident giving rise to the claim occurred.

In September 2005, Appellee filed a complaint against Lloyd’s and Appellants. The complaint alleged that Lloyd’s breached its insurance contract with Parthenon by failing to defend the Edenfield claim. Alternatively, the complaint alleged that in the event that coverage under the CRC policy was properly denied, Appellants breached their fiduciary duty to Parthenon and were negligent in failing to procure insurance or in allowing the coverage to lapse. The negligent procurement case against Appellants was abated pending resolution of the coverage case against Lloyd’s.

In April 2007, Appellee settled with Lloyd’s for $150,000 and dismissed the claims against Lloyd’s. The case proceeded against Appellants only. After a non-jury trial, the trial court entered final judgment against Appellants, finding that when Appellants transferred Parthenon’s insurance coverage from CRC to Sapphire Blue, they negligently created a “gap” in the coverage. The trial court found that the purchase of the Sapphire Blue policy was done in good faith, but it also found that Appellants acted in haste without fully comprehending that they were creating a “gap” in coverage and leaving Parthenon without coverage for the Edenfield claim. The trial court entered judgment for Ap-pellee in the amount of $850,000, which was based upon the $1,000,000 of coverage under the CRC policy less Appellee’s $150,000 settlement with Lloyd’s.

The insurance policies at issue in this case are governed by the Surplus Lines Law, sections 626.913-626.937, Florida Statutes (2005). Section 626.9201 provides in pertinent part:

(1) An insurer issuing a policy providing coverage for property, casualty, surety, or marine insurance shall give the named insured at least 45 days’ advance written notice of nonrenewal. If the policy is not to be renewed, the written notice shall state the reason or reasons as to why the policy is not to be renewed.
* * *
(3) If an insurer fails to provide the 45-day ... written notice required under this section, the coverage provided to the named insured shall remain in effect until 45 days after the notice is given or until the effective date of replacement coverage obtained by the named insured, whichever occurs first. The premium for coverage shall remain the same during any such extension period.

These statutory requirements are clear and unambiguous. When the language of a statute is clear and unambiguous, the statute must be given its plain and obvious meaning. See Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000). The plain meaning construction of the statute should honor the obvious legislative intent and policy behind its enactment. See Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926 (Fla.1983).

Section 626.9201 is a consumer protection statute. The clear purpose and obvious intent of the statute is to give the insured adequate time to obtain coverage from another insurer before it is subjected to risk without protection as a result of the nonrenewal of its insurance. See St. Paul Fire & Marine Ins. Co. v. Valdivia, 771 So.2d 1229, 1230 (Fla. 3d DCA 2000) (explaining that the purpose of the nearly-identical section 627.4133(l)(a) is to “enable an insured to obtain coverage elsewhere before the insured is subjected to risk without protection”) (quoting United States Fire Ins. Co. v. Southern Security Life Ins. Co., 710 So.2d 130, 131 (Fla. 5th DCA 1998)). The purpose of the statute would be frustrated if, as Appellee argues, the statute did not apply when the insurer intended to renew the coverage but did not do so for whatever reason because in those circumstances, the result would be the same as if renewal coverage was never offered — ie., the insured would be left without coverage.

Had the Legislature intended for the provisions of section 626.9201 to not apply when the insurer intended to renew the policy, it could have easily said so as it did elsewhere in the Florida Insurance Code. For example, section 627.728 requires at least 45 days’ advance notice of nonrenewal of a motor vehicle insurance policy, but the statute expressly provides that such notice is not required “[i]f the insurer has manifested its willingness to renew” the policy. § 627.728(4)(a)l., Fla. Stat.; see also Allstate Indem. Co. v. Mohan, 764 So.2d 901, 903 (Fla. 5th DCA 2000) (explaining that the provisions of section 627.728 do not apply when the insurer offers to renew the policy and the insured does not timely pay the required renewal premium in order to accept the offer). The absence of similar language in section 626.9201 supports our conclusion that the statute applies notwithstanding the insurer’s intent to renew the policy. See Sunshine Towing, Inc. v. Fonseca, 933 So.2d 594 (Fla. 1st DCA 2006) (“Where the legislature has used a term in one section of a statute but omitted the term in another section, the court will not read the term into the sections where it was omitted.”).

It was undisputed that Lloyd’s did not provide notice of nonrenewal of the CRC policy to Parthenon. As stated above, section 626.9201 does not require any intent by the insurer not to renew the policy; rather the statute provides that if the 45-day notice is not provided for whatever reason, then the coverage shall remain in effect. Therefore, under the clear and unambiguous terms of section 626.9201(3), coverage under the CRC policy continued until the effective date of the Sapphire Blue policy.

Our plain meaning interpretation of section 626.9201 does not overlook the last sentence of subsection (3), which provides that “[t]he premium for the coverage shall remain the same during any such extension period.” This language does not condition the continuation of coverage provided by section 626.9201 upon the advance payment of an additional premium. And, in any event, this language has no bearing on Parthenon’s negligent procurement claim against Appellants. To the extent that Lloyd’s may have been entitled to offset any unpaid premium for the extension period against the coverage that it was obligated to provide Parthenon under the CRC policy by operation of section 626.9201, that issue was subsumed in the settlement of Parthenon’s coverage claim against Lloyd’s.

In sum, because Parthenon was covered by the CRC policy by operation of law until the Sapphire Blue policy was obtained on November 1, 2001, the trial court erred in finding that Appellants created a “gap” in Parthenon’s insurance coverage. Accordingly, even if Appellants were negligent in not binding renewal coverage with CRC, their negligence did not result in any damages to Parthenon because it was still covered by the CRC policy until the Sapphire Blue policy took effect.

For these reasons, we reverse the final judgment and remand for further proceedings.

REVERSED and REMANDED.

KAHN and PADOVANO, JJ., concur.


text:
    Daniel CAUSEY, Appellant, v. Dana Rosborough CAUSEY, Appellee.
    No. 1D08-3738.
    District Court of Appeal of Florida, First District.
    June 4, 2010.
    Ginger Lynne Barry of Broad and Cas-sel, Destín, for Appellant.
    William C. Owen of William C. Owen, LLC, Tallahassee, for Appellee.
   PER CURIAM.

In the proceeding below, the appellant petitioned for a modification of his child support obligation. Before the trial court, he was partially successful, but raises three issues on appeal. We affirm as to the first two issues without further discussion and reverse as to the third.

In addition to the partial modification of the appellant’s child support obligation, the trial court also changed the schedule of reimbursing non-covered health and child care costs and provided for the entry of a bond to cover anticipated health and child care costs. This relief was not requested in the pleadings of either party and is therefore reversed. See Cardinal Inv. Group, Inc. v. Giles, 813 So.2d 262 (Fla. 4th DCA 2002).

HAWKES, C.J.; PADOVANO and ROBERTS, JJ., concur.


text:
    Tarvaris KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1488.
    District Court of Appeal of Florida, First District.
    June 8, 2010.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 2010 WL 2134093 (Fla. 1st DCA 2010).

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    Michael J. CRAIGHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4079.
    District Court of Appeal of Florida, First District.
    June 9, 2010.

      Glenn M. Swiatek, Criminal Defense Attorney PA., Shalimar, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Craighead appeals his conviction and sentence for aggravated assault by threat with a firearm. We affirm all four issues Mr. Craighead raises on appeal and we address only one issue: whether the sentencing court erred in finding that it was required to impose consecutive minimum mandatory sentences when the court had the authority to sentence Mr. Craig-head to concurrent sentences.

Mr. Craighead argues that the trial court failed to recognize its authority to impose concurrent sentences and, therefore, felt constrained to impose consecutive sentences. However, Mr. Craighead failed to make a contemporaneous objection or file a motion pursuant to Florida Rule of Criminal Procedure 8.800(b). While un-preserved errors in the sentencing process may be reviewed on direct appeal “under the very narrow fundamental error standard,” errors in the sentence itself are not cognizable on direct appeal unless preserved. Jackson v. State, 983 So.2d 562, 569 (Fla.2008).

The error Mr. Craighead asserts is an error in the sentence itself, not an error in the sentencing process. See Jackson, 983 So.2d at 574 (“[T]he rule may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process — that is, orders related to the sanctions imposed.”); cf. Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010) (noting that a sentencing court’s consideration of an impermissible factor constitutes an error in the process and not a sentencing error); Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009) (same). Accordingly, because Mr. Craighead failed to preserve this issue by either contemporaneous objection or by a motion pursuant to Florida Rule of Criminal Procedure 3.800(b), we are unable to reach the merits of this issue on direct appeal. See Jackson, 983 So.2d at 568-69.

AFFIRMED.

HAWKES, C.J., WETHERELL and ROWE, JJ., concur.


author: GERBER, J.

text:
    Gary ALTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2984.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals an order denying his motion to suppress. We affirm. We find that the defendant reserved the right to appeal this dispositive order before entering his pleas to trafficking in hydroco-done (4 grams or more, but less than 14 grams), possession of drug paraphernalia, and possession of cannabis. We also find that the circuit court did not err in denying the motion to suppress. Competent, substantial evidence exists to support the conclusion that the investigating officers did not engage in any misrepresentation or trickery to obtain the defendant’s voluntary consent to the search which led to the illegal items’ discovery. We further find nothing on the face of the record suggesting that the defendant’s counsel was ineffective in responding to any of the state’s evidence and arguments.

The defendant also appeals the inclusion of a statutory surcharge in the written sentence on the trafficking charge. We affirm the inclusion of that surcharge even though it was not orally pronounced. See Johnson v. State, 689 So.2d 1124, 1126 (Fla. 4th DCA 1997) (“Because the surcharge is mandatory, the trial court was not obligated to announce it orally to include it in the written sentence.”), quashed on other grounds, 712 So.2d 380 (Fla.1998); but see Benton v. State, 708 So.2d 1002, 1003 (Fla. 2d DCA 1998) (striking surcharge that was imposed without oral pronouncement). However, the circuit court must enter a corrected written sentence reflecting that the $2,500 surcharge was imposed pursuant to section 938.04, Florida Statutes (2007), and that the $50,000 fine was imposed pursuant to section 893.135(l)(c)l.a., Florida Statutes (2007). The entry of a corrected written sentence is a ministerial act which does not require the defendant’s presence. Williams v. State, 697 So.2d 584 (Fla. 4th DCA 1997).

Affirmed with remand for correction of sentence.

STEVENSON and CIKLIN, JJ., concur.


text:
    D.M.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5740.
    District Court of Appeal of Florida, First District.
    June 9, 2010.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Heather Flanagan Ross, Tallahassee, for Appellee.
   PER CURIAM.

The State properly concedes that the trial court erroneously denied appellant’s motion to suppress a weapon found on his person. See Baptiste v. State, 995 So.2d 285 (Fla.2008).

Reversed and remanded with directions to enter an order granting appellant’s motion to suppress.

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    Gustavo PEREZ, Appellant, v. Ignacio RIVAS and Ivan Rivas, Appellees.
    No. 4D08-5124.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Marc H. Cohen of Law Offices of Marc H. Cohen, P.A., Miami, for appellant.
    No brief filed for appellees.
   PER CURIAM.

We reverse a final judgment quieting title and reestablishing a lost warranty deed because appellees’ evidence was insufficient to establish the contents of the lost deed. “[Pjroof of the operative parts of a lost or destroyed document must be clear, strong and unequivocal.” Am. Sav. & Loan Ass’n v. Atl. Inv. Corp., 436 So.2d 442, 443 (Fla. 4th DCA 1983); see Fries v. Griffin, 35 Fla. 212, 17 So. 66, 68 (1895); Locke v. Pyle, 349 So.2d 813, 815 (Fla. 1st DCA 1977) (holding that evidence that woman once possessed a deed for property and left it with her father was insufficient to support reestablishing deed in her favor). Appellees offered conflicting testimony as to who owned a house prior to their taking occupancy; one of the appellees admitted total ignorance concerning real estate terminology and had no idea what agreements his mother may have entered into.

Additionally, based upon appellees’ argument, the trial court relied upon a subsection of a statute that had been repealed. Before 1985, section 695.01, Florida Statutes, included subsection (3), which expressly provided that the statute did not apply to “quitclaims heretofore made.” In 1985, that subsection was repealed. See Ch. 85-63, § 8, Laws of Fla. Applying section 695.01 to this case, there was insufficient evidence to establish that appellant had “notice” of the prior, unrecorded, lost deed within the meaning of the statute.

We reverse the final judgment quieting title and reestablishing a lost deed and remand to the circuit court with instructions to enter judgment for appellant.

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


text:
    Michael Kenneth SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5040.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of DUI manslaughter and sentenced to 15 years in prison with a four-year mandatory minimum. As the state concedes, imposition of the mandatory minimum sentence was error. Appellant’s sentence was controlled by the law in effect at the time of his offense. See Larkins v. State, 739 So.2d 90, 96 n. 5 (Fla.1999). At the time appellant was sentenced in 2008, the statute required a four-year mandatory minimum. See § 316.193(3)(c)3., Fla. Stat. (2008). However, in February 2007, the time of the offense in this case, the statute did not impose a mandatory minimum. See § 316.193(3)(c)3„ Fla. Stat. (2006). The legislature amended the law in 2007 to provide for a mandatory minimum sentence. Ch. 2007-211, § 3, Laws of Fla. The change did not go into effect until July 1, 2007, approximately 5 months after appellant committed the underlying crime. Id. § 5.

On the remaining issue, we detect no fundamental error in the prosecutor’s closing argument. The statements appellant points to on appeal were either fair comments on the evidence or reasonable inferences that could be drawn from it.

We affirm the conviction and remand to the circuit court for resentencing.

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