text:
    George H. KING, Jr., Appellant, v. Rebekah TAYLOR, f/k/a Rebekah Taylor King, Appellee.
    No. 2D07-5549.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2009.

      Amy Skelton of Amy E. Skelton, P.A., Lake Hamilton (withdrew after briefing); Randall 0. Reder, Tampa (substituted as counsel of record), for Appellant.
    Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellee.
   ORDER DISMISSING APPEAL

ALTENBERND, Judge.

George H. King, Jr. (the Former Husband), appeals a series of postjudgment orders entered to enforce the terms of a marital settlement agreement that was incorporated into a final judgment of dissolution of marriage. Rebekah Taylor, f/k/a Rebekah Taylor King (the Former Wife), has filed a motion to dismiss this appeal as a sanction for fraudulent conduct committed by the Former Husband during the course of this appeal. We have provided the Former Husband an opportunity to respond to these allegations, and the facts upon which we base this order are undisputed. It is rare that an appellant’s conduct during an appeal sinks to the level where dismissal of the appeal is appropriate, but we conclude this is one of the rare cases in which that sanction is merited.

The dispute in this case centers on a provision in the parties’ marital settlement agreement, executed in March 2000, in which the Former Husband agreed to pay to the Former Wife a monthly payment amount until her death. It is undisputed that the Former Husband paid the required monthly amount until February 2004, that the Former Husband made no payments from February 2004 until February 2006, and that the Former Husband paid less than half of the monthly amount each month from February 2006 until September 2007. This resulted in a cash ar-rearage of $25,300 as of September 2007, when the Former Wife sought to enforce the terms of the agreement either through contempt or entry of a judgment. The Former Husband, in his defense, asserted that the parties had reconciled and that he had provided the Former Wife other moneys or support for which he sought a credit.

In addition to this factual dispute, the parties disagreed as to whether the monthly payment provision in the settlement agreement was a provision for the Former Wife’s support, and thus enforceable by contempt, or a property settlement provision related to the Former Husband’s military retirement benefits, and thus enforceable only as a debt through entry of a money judgment and execution on that judgment or by other like means. The circuit court ultimately concluded the provision was in the nature of support, rejected the Former Husband’s defenses for nonpayment, and entered orders intended to enforce the final judgment. One of these orders required, in pertinent part, that the Former Husband “take all steps necessary and available to secure [the] Survivor Benefit Program” for the military retirement benefit for the Former Wife as a means of ensuring the payment of the monthly amount required by the parties’ agreement until the Former Wife’s death. A second order directed the Department of Finance and Accounting Services (DFAS), the entity responsible for distributing military retirement benefits, to assign the Former Wife a portion of the Former Husband’s military retirement pay equal to the monthly payment amount due and to designate the Former Wife as the irrevocable beneficiary of the survivor benefit program available through the plan.

The Former Husband filed a notice of appeal directed to these orders. While the appeal was pending, however, the Former Husband took measures into his own hands. Although the DFAS has since submitted documentation to the parties and to the circuit court indicating it will accept and implement the circuit court’s order to name the Former Wife as the irrevocable beneficiary of the survivor benefit plan, the Former Husband attempted to undermine such an outcome. He personally sent a letter to the DFAS on October 18, 2007, shortly after the orders on appeal were entered, stating, “The Judge, for some unknown reason, has ordered that I obtain a letter from your office indicating that my former spouse is ineligible for the SBP.” This the DFAS did not do. Instead, the DFAS apparently indicated in February 2008 that it would be deducting the required amounts from the Former Husband’s monthly benefit check.

Not receiving the desired response from the DFAS to his first letter, on February 20, 2008, the Former Husband sent a facsimile to the DFAS. The cover sheet stated, “Please review the attached court order modifying the original military pay order and delete the former spouse SBP coverage as soon as possible.” The “attached court order” was a two-page document bearing the proper style for the circuit court proceedings. The text of the “order” read:

This Court Order is issued under the laws of the State of Florida with respect to domestic relations and to provide for the support of the Former Spouse. Personal jurisdiction over George H. King, Jr., is established by the Member’s domicile and consent.
On March 24, 2000, a Final Judgment of Dissolution of Marriage was issued in the Circuit Court, Seventh Judicial Circuit, Volusia County, Florida. Following the Final Judgment, Former Wife filed a Second Verified Amended Petition for Enforcement of Final Judgment of Dissolution of Marriage (the “Petition”) in this Court on April 23, 2007.
The original Court Order Assigning Military Retirement Pay was dated October 1, 2007, and erroneously included “Section IV. SURVIVOR BENEFIT PLAN,” requiring the Respondent to provide a Survivor Benefit Plan Annuity for the Former Spouse through the Member’s military retirement.
Further review of U.S.Code Title 10, Subtitle A — General Military Law, Part II — Personnel, Chapter 73 — Annuities Based On Retired Or Retainer Pay, Subchapter II — Survivor Benefit Plan found that since a Survivor Benefit Plan Annuity requirement was not included in the March 24, 2000, Final Judgment, this Court does not have the authority to order establishment of a Survivor Benefit Plan Annuity at this time. US Code Title 10 specifically provides one (1) year from the original Judgment to apply for former spouse Survivor Benefit Plan coverage.
Therefore, the original Court Order Assigning Military Retired Pay, dated October 1, 2007, is amended to delete “Section IV. SURVIVOR BENEFIT PLAN.”
DONE AND ORDERED in Chambers in Tampa, Hillsborough County, Florida this _ day of _, 2008.
EMILY A. PEACOCK
Circuit Judge

Above the signature line was an obvious date stamp bearing the date “FEB 14, 2008,” but no handwritten or stamped signature. This order was not entered by the trial court. The Former Husband has admitted to this court that he created the order himself and submitted it to the DFAS.

Rather than rethinking the wisdom of these actions, on February 25, 2008, the Former Husband sent an e-mail or online inquiry to the DFAS. He complained about the survivor benefit plan deductions from his retired pay and added: “But the topper is a modified court order eliminating the Former Spouse coverage dated February 14, 2008, was faxed to your office on February 20th 2008. Will you be as quick to refund all these illegal deductions as you were to nail my retired pay in the first place? ? ?”

The Former Husband followed up with the DFAS again on March 5, 2008. He faxed them a cover sheet complaining that the DFAS’s compliance with the original court order had created an arrearage that the DFAS was collecting in an amount that created a financial hardship for him. He asked that the payment towards the ar-rearage be reduced. He added, however, “I realize this correspondence may be unnecessary, since you are in receipt of a court order eliminating the SBP requirement for my former spouse, which is also retroactive to October 1, 2007.”

On April 4, 2008, the Former Husband resubmitted the fraudulent order to the DFAS by facsimile yet again. This time he added his name, rank, and social security number to the information provided. He warned the DFAS, “I am seriously considering sending this entire package to my congressman to ask him to query your office as to why you appear to not be supporting the retired military member, however, I will give you one more opportunity to straighten this mess out before involving my congressman.” The Former Husband again asked the DFAS to “delete the Former Spouse SBP coverage as soon as possible.”

Again on April 14, 2008, the Former Husband sent a facsimile to the DFAS with the fraudulent order. “I spoke with the legal department this morning and they informed me that your department will be required to delete the Former Spouse SBP from my account. Please note that the attached order has been submitted and resubmitted over and over since mid-February and I simply can’t seem to get anyone to take the required action.”

On April 15, 2008, the Former Husband again resubmitted his fraudulent court order to the DFAS. He again noted he had submitted and resubmitted this order to the DFAS. He added:

I truly do not understand why I have been unable to reach someone in your office that is capable of taking the necessary action to reverse something that should never have been permitted in the first place. My original divorce dated March 24, 2000 (a copy of which you should have on file), included no requirement for Former Spouse SBP coverage and the petition for enforcement of that Final Judgment dated October 1, 2007, was not an amended petition for final judgment of dissolution of marriage.
The court recognized them error with the February 14th, 2008, modification to the October 1st, 2007, enforcement order, and I truly hope you will be as diligent as you have been to illegally deduct my SBP payments from my military retired pay, by taking the appropriate action to reimburse me for your misinterpretation of the enforcement order.

On September 12, 2008, the Office of the General Counsel for DFAS submitted a letter to counsel for both parties. The letter explained that the DFAS interpreted the applicable laws and regulations to permit the institution of the Survivor Benefit Plan in accordance with the October 1, 2007, order. The DFAS then stated that it was unclear to the DFAS whether the October 1, 2007, order was still in effect because the DFAS had received a contrary order from the Former Husband. The DFAS noted, however, that the court’s online docket made no reference to the Former Husband’s order and that there appeared to be a pending appeal. Thus, the letter stated, “DFAS has suspended former spouse SBP coverage until the legal proceedings are resolved and the status of the SBP is clarified.”

On September 24, 2008, counsel for the Former Husband sent a letter to the DFAS, signed by both herself and by counsel for the Former Wife, explaining that the October 1, 2007, order was still in effect and acknowledging that the order submitted by the Former Husband was not a valid court order. Counsel for the Former Husband then withdrew from representation of the Former Husband.

Upon learning of the Former Husband’s actions, the Former Wife filed a motion to dismiss this appeal. We issued an order to show cause to the Former Husband to permit him the opportunity to explain the circumstances. As indicated above, the facts surrounding his creation and submission of the fraudulent order are not disputed. In his response to our order to show cause, the Former Husband apologized for his actions and indicated that he has since complied with all required provisions in the final judgment and the postjudgment order now on appeal to date.

The dismissal of an appeal is a very serious sanction and a step that is not lightly taken by this court. See Howard v. Risch, 959 So.2d 308, 310 (Fla. 2d DCA 2007) (“Because dismissal is the most severe of all possible sanctions, ... it should be employed only in extreme circumstances.”). Case law permits an appellate court to dismiss an appeal based upon the appellant’s failure to comply with the order on appeal while the appeal is pending, but only after providing the appellant an opportunity to comply with the order to avoid dismissal. See Gazil v. Gazil, 343 So.2d 595, 597 (Fla.1977).

In this case, however, we do not address mere noncompliance with the order on appeal. We address a situation in which the Former Husband “sentiently set in motion some unconscionable scheme” calculated to interfere with the judicial system’s resolution of this case. See Jacob v. Henderson, 840 So.2d 1167, 1169 (Fla. 2d DCA 2003) (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)). Under such circumstances, this court has the inherent authority to dismiss this appeal. See Andrews v. Palmas De Majorca Condo., 898 So.2d 1066, 1070 (Fla. 5th DCA 2005). Here, the Former Husband sought to subvert the judicial system by creating and submitting his own fraudulent order to the DFAS — an order along the lines of what he hoped to receive if he prevailed in his appeal — and then repeatedly demanded that the DFAS comply with it. Although the Former Husband has now apologized to this court, he consistently pursued this course of action over a number of months and expressed responsibility and remorse only when faced with the potential dismissal of this appeal. Indeed, in his first response to the Former Wife’s motion to dismiss this appeal, the Former Husband characterized his actions as a mere “mistake” rather than the obviously intentional acts that they were. This is the type of egregious and extreme behavior that merits dismissal of the appeal.

There are two unique and interrelated circumstances that further convince us this sanction is merited in this cáse. The primary issue in this appeal is not whether the Former Husband was obligated to pay the monthly amount he agreed to pay but rather the proper method by which those payments should be enforced in light of the Former Husband’s noncompliance. Thus, the Former Husband comes to this court with a history of noncompliance, despite his own agreement to the provisions of the final judgment, arguing that the Former Wife should have to enforce the obligation by less effective means than those normally afforded for spousal support. Additionally, although the dismissal of an appeal without an assessment of the merits is a severe sanction that can often have serious repercussions relating to the parties’ rights and responsibilities, we note that in this case the dismissal of this appeal effectively obligates and forces the Former Husband to do that which he agreed to do in the first place — to pay the monthly amount due to the Former Wife and to secure the future payment of that amount, albeit by means other than those the Former Husband desires.

As stated by the Third District in Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1998), “[a] party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.” We therefore dismiss the Former Husband’s appeal.

WALLACE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Appellate counsel for the Former Husband is thus not the counsel who represented the Former Husband below. Appellate counsel has appeared in these proceedings primarily to argue that the appeal should not be dismissed. We emphasize that there is no indication that either of the Former Husband’s attorneys played any part in the Former Husband’s deception and that both responded immediately and appropriately when the fraud was discovered.

      . Assuming the Former Husband has complied with the monthly payment provision to date, this does not make the issue on appeal moot as there is the remaining dispute as to whether future payments may be enforced via contempt as a spousal support provision or whether they must be enforced through general debt collection practices as property division payments.

      . The Former Husband has indicated that he has a pending motion with the circuit court to clarify or correct a provision in one or more of the orders on appeal. This dismissal should have no effect on that motion, and the circuit court may resolve that motion on remand of this case. Additionally, it appears the circuit court may also have pending motions to address whether the Former Husband’s actions merit some form of sanction from the circuit court. We do not comment on that issue and leave that matter to the circuit court's discretion.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Jay Alan MYERS, Appellant, v. JIM RUSSO PRISON MINISTRIES, INC., Jean French Russo, Chairperson, and David Gray, Development Director, Appellees.
    No. 2D08-1744.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2009.
    Jay Alan Myers, pro se.

      Brad T. Kandzer of Fulmer, Leroy, Albee, Baumann & Glass, Tampa, for Appel-lees.
   LaROSE, Judge.

Jay Alan Myers appeals a final summary judgment entered in favor of Jim Russo Prison Ministries, Inc. (Russo). Upon release from prison, Mr. Myers began a three-month stay at a Russo facility that provided life skills training and substance abuse recovery under DOC supervision. Mr. Myers sued Russo for gross negligence, breach of contract, defamation, and slander arising from Mr. Myers’ stay at the facility. We are compelled to reverse as to the slander claim. We affirm as to all other issues without further discussion.

Mr. Myers alleged that a Russo employee slandered him by telling the police, his probation officer, his employer, the staff of his new residential facility, a hospital, his mother, and his girlfriend that he stole a television set and VCR from Russo. Mr. Myers claims that these statements were false. Allegedly, Russo’s house manager reported the theft to the police. No evidence was found, no charges were filed, and the police, Russo, and its insurer did not pursue the matter.

The trial court properly ruled that the alleged statements to the police and the probation officer were qualifiedly privileged. See Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla.1992) (holding that defamatory statements that private individuals made to police or state’s attorney prior to institution of criminal charges are quali-fiedly privileged where statements relate to subject of investigation and not made with express intent to injure reputation).

The trial court also ruled that Mr. Myers suffered no damages because the police did not arrest him, the hospital did not refuse to treat him, his employer did not fire him, the new residential facility allowed him to stay, his probation officer did not violate him, and his relationships with his mother and girlfriend did not change. Mr. Myers argues that the alleged slander caused those who heard it to treat him with extreme scrutiny and caused him to suffer mental anguish, fear, anxiety, and stress.

Even if Mr. Myers’ evidence failed to prove actual money damages, a jury could find Russo liable for nominal damages. “One who is liable for a slander actionable per se or for a libel is liable for at least nominal damages.” Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So.2d 113, 116 n. 4 (Fla.1994) (quoting Restatement (Second) of Torts § 558 (1977)). Spoken words falsely stating that another committed a criminal offense are actionable per se. LeGrande v. Emmanuel, 889 So.2d 991, 994 (Fla. 3d DCA 2004). Therefore, as it relates to the statements allegedly made to the hospital, the employer, the new residential facility, the mother, and the girlfriend, we reverse the summary judgment as to the slander claim.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT, C.J., and SILBERMAN, J., Concur.


author: COPE, J.

text:
    Barry JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2789.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2009.

      Barry Johnson, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   COPE, J.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We are in agreement with the denial order on most of the issues, but must remand for further proceedings on two claims.

Defendant-appellant Johnson was convicted of armed robbery, burglary and attempted first-degree murder. He was sentenced to life imprisonment. We affirmed his convictions in Johnson v. State, 917 So.2d 226 (Fla. 3d DCA 2005).

In Claim Two of the Rule 3.850 motion, the defendant contends that his counsel was ineffective for failing to object to a statement in the presentence investigation report. The defendant says the report contained inaccurate information that he had committed homicides in 1979 and 1984. He asserts that this information caused the sentencing judge to give him a higher sentence than he would otherwise have received.

The trial court denied this claim on the theory that it should have been raised on direct appeal. That is incorrect. The Florida Supreme Court has clarified the applicable principles in Bruno v. State, 807 So.2d 55 (Fla.2001):

The trial court concluded that this claim [of ineffective assistance of trial counsel] was barred because it either was, or could have been, raised on direct appeal. This was error. Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct and — of necessity — have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal. A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal. Thus, the trial court erred in concluding that Bruno’s claim was procedurally barred.

Id. at 63 (emphasis added; footnotes omitted). “[U]nless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA2002).

In the present case, as in Bruno, it was error to deny the claim on the basis of procedural bar. As the postconviction record now before us does not conclusively refute this claim, we reverse as to Claim Two and remand for further consideration. See Fla. R.App. P. 9.141(b)(2)(D).

The State makes an alternative argument saying in substance that the claim is insufficiently pled. In its brief, the State maintains that the defendant does not allege that he told counsel there was anything wrong with the PSI. That argument was not made in the trial court and we decline to entertain it here. The State is free to raise the argument on remand but, under the case law, the defendant must be given leave to amend. See Spera v. State, 971 So.2d 754 (Fla.2007).

In Claim Sixteen, the defendant maintains that his trial counsel was ineffective for failing to move for dismissal of the burglary charge. He argues that his conviction for burglary must be vacated because the premises he robbed were open to the public at the time he entered. The defendant entered a Discount Auto Parts store, held up the store clerk, and fled. Johnson, 917 So.2d at 227.

The Florida Supreme Court has held that in a burglary case, “if a defendant can establish that the premises were open to the public, then this is a complete defense.” Miller v. State, 733 So.2d 955, 957 (Fla.1998) (emphasis in original); see Harrell v. State, 765 So.2d 962, 963 (Fla. 3d DCA 2000). This rule is subject to the qualification that if in committing the crime, the defendant entered a portion of the premises which was not open to the public (which can include the area behind the counter), then a burglary has been committed. Johnson v. State, 786 So.2d 1162, 1163 (Fla.2001). In this case, the defendant maintains that he entered a business open to the public. The trial court denied the claim saying that the facts are legally sufficient to support the charge. However, neither the State in its response nor the trial court in its order appended any attachments addressing the “open to the public” claim.

The trial court’s order contained an alternative ground, saying that a challenge to the sufficiency of the evidence cannot be raised by a Rule 3.850 motion after there has been a previous appeal. The trial court cited Jackson v. State, 640 So.2d 1173 (Fla. 2d DCA 1994), and Morris v. State, 422 So.2d 338 (Fla. 3d DCA 1982). While those cases are sparse on facts, neither case involved a claim of ineffective assistance of trial counsel for failing to make a motion for judgment of acquittal on an issue which (defendant alleges) would have afforded a complete defense to the charge.

The present claim is that trial counsel was ineffective within the meaning of Strickland v. Washington, for failing to file a sworn motion to dismiss, or move for judgment of acquittal, on the ground that the defendant could not, as a matter of law, be guilty of burglary. That is a proper Strickland claim. See Bruno, 807 So.2d at 63.

In its brief filed in this court, the State makes the argument that a conviction not supported by the evidence constitutes fundamental error and may be raised on direct appeal. See F.B. v. State, 852 So.2d 226 (Fla.2003). The State contends that the defendant could have, and should have, raised the issue on direct appeal.

We rejected that exact argument in Cueto v. State, 937 So.2d 144, 145-46 (Fla. 3d DCA 2006), review denied, 952 So.2d 1189, 952 So.2d 1191 (Fla.2007). As already stated, the Bruno decision holds that “[a]s a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal.” 807 So.2d at 64. “A defendant’s claim that his counsel offered ineffective assistance at trial, for whatever reason, must be analyzed under the standard the Supreme Court enunciated in Strickland.” Carratelli v. State, 961 So.2d 312, 320 (Fla.2007); accord Thompson v. State, 990 So.2d 482, 488 (Fla.2008).

For the stated reasons, we reverse the order now before us on Claims Two and Sixteen, and remand for further proceedings. We affirm as to the remaining claims.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . The crime date was December 28, 2000. Id. at 228 (Ramirez, J., dissenting).


author: CORTINAS, J.

text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. Miguel A. FONSECA, Appellee.
    No. 3D08-1465.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2009.
    Rehearing Denied March 25, 2009.

      Elizabeth K. Russo, Miami, for appellant.
    Swope, Rodante and Celene Humphries, Tampa, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   CORTINAS, J.

Appellee, Miguel Fonseca, was injured in a car accident allegedly caused by a policyholder of Appellant, Mercury Insurance Company of Florida. Fonseca sued the policyholder, who raised the existence of a settlement as an affirmative defense. In a separate action, Mercury sought a declaratory judgment recognizing the validity of the same settlement. The trial court consolidated the two cases. The single issue on appeal is whether correspondence between Fonseca and Mercury was sufficient to form a settlement. The trial court held that it was not. We disagree and reverse.

After the accident, counsel for Fonseca sent Mercury a letter stating that:

This letter shall serve as a formal demand for a tendering of any and all available policy limits including umbrella coverages.

Two days later, Mercury responded:

As requested, this carrier is tendering it’s [sic] bodily injury policy limits. Accordingly, enclosed is this carrier’s settlement check in the amount of $10,000.00.
Also enclosed is a proposed settlement release which is not intended to be a final instrument until you have approved. If you should require any changes or additions, please advise. Otherwise, please see that [Fonseca] executes the release.... ”

We review de novo the legal question of whether a contract was formed. Munroe v. U.S. Food Serv., 985 So.2d 654, 655 (Fla. 1st DCA 2008). The law of contracts governs settlements. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985). To form a binding contract there must be an offer and acceptance. See Etheredge v. Barkley, 25 Fla. 814, 6 So. 861 (1889).

The demand letter sent by Fonseca’s counsel is not unique and the question of whether it constitutes an offer has already been answered by this Court. Peraza v. Robles, 983 So.2d 1189, 1190 (Fla. 3d DCA 2008); see Nichols v. Martell, 612 So.2d 657, 658 (Fla. 3d DCA 1993) (finding that a similar demand letter was more than a mere invitation to settle). The demand letter in Peraza stated “Please tender the policy limits within fifteen (15) days or we will consider [the insurance company] is acting in bad faith.” Here, as was the case in Peraza, the demand letter constituted an offer to settle.

Once Fonseca offered to settle, all that was required to form a binding contract was acceptance by Mercury. In Erhardt v. Duff, 729 So.2d 529 (Fla. 4th DCA 1999), Erhardt was injured when he and Duff were in a car accident. Erhardt sent to Duffs insurance company a demand for tender of the policy limits. See id. Like Mercury, the insurance company in Er-hardt agreed to settle only if the injured party signed a release. Id. at 530. The court determined that the requested release did not transform the insurance company’s acceptance into a counteroffer, holding that “the execution of the release was implicit as part of the tender, and not an additional element of the agreement.” Id.; Nichols, 612 So.2d at 658 (accepting an offer to settle an auto insurance claim does not become a counteroffer merely because the tender of policy limits includes a release). A document releasing an insurance company from liability for claims arising from the same incident for which the full policy limits were tendered, particularly where the injured party is permitted to modify such a release, is the kind of usual settlement document implicit in any settlement agreement. See Peraza, 983 So.2d at 1190; Nichols, 612 So.2d at 658; Erhardt, 729 So.2d at 530. Here, Fonseca offered to settle, Mercury accepted, and a contract was formed.

Reversed and remanded.

      . Mercury's Motion for Reconsideration. R. Vol. V. p. 874.

      . Substantial modification to a release may, under certain circumstances, evidence that a contract was not formed. This is especially true where the modification is proposed at or near the time of tender. Here, in contrast, Fonseca made an offer on September 14, 2004, which Mercury responded to by tendering payment and requesting a release two days later, on September 16, 2004. Fonseca did not object to the tender or the proposed release until 60 days later, on November 15, 2004.


author: GROSS, C.J.

text:
    Sean HEBDEN and Georgia Hebden, his wife, and William Hebden and Janice Hebden, his wife, Appellants, v. ROY A. KUNNEMANN CONSTRUCTION, INC., Appellee.
    No. 4D07-3538.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.
    Rehearing Denied March 19, 2009.

      William M. Layton, Lake Worth, for appellants.
    Raymond M. Maseiarella, II of Raymond M. Maseiarella, II, P.A., North Palm Beach, for appellee.
   GROSS, C.J.

We write to explain why Chapter 558, Florida Statutes (2007), does not preclude the assessment of damages as a set-off allowed under Florida case law where a party to a construction contract does not strictly comply with a provision of the statute.

Sean and Georgia Hebden entered into a contract with Roy A. Kunnemann Construction, Inc. for the construction of a single family home for $220,459.

A disagreement arose over the quality of the construction. The Hebdens withheld the last draw payment of $44,494. The contractor sued to foreclose its construction lien and for breach of contract. The Hebdens counterclaimed and contended that the contractor’s work was defective and incomplete. After a non-jury trial, the judge found that the contractor had substantially performed and that the Hebdens were not justified in withholding the final payment. The court ruled that the Heb-dens had improperly prevented the contractor from making certain repairs; the judge gave them a set-off of $5,035 under Reitano v. Peninsular Building Supply Co., 262 So.2d 710, 712 (Fla. 2d DCA 1972), which held that “where the owner terminates the contract without a legally sufficient reason therefor or prevents the contractor from completing the contract ... the measure of [the owner’s] damages is generally the reasonable cost of making the work performed conform to the contract.” The court entered judgment against the Hebdens for $39,459 plus prejudgment interest.

Chapter 558 applies to actions involving a “construction defect,” a term defined in section 558.002(4). As property owners, the Hebdens were “claimants” under section 558.002(3). Section 558.003 states that a “claimant may not file an action subject to this chapter without first complying with the requirements of this chapter.” If a claimant files a lawsuit “without first complying with the requirements” of Chapter 558, a court “shall abate the action, without prejudice” upon a timely motion by a party and “the action may not proceed until the claimant has complied with such requirements.” § 558.003, Fla. Stat. (2007).

Compliance with the Act means compliance with certain presuit procedures, an “alternative dispute resolution mechanism” intended to “reduce the need for litigation as well as protect the rights of property owners.” § 558.001, Fla. Stat. (2007).

The Hebdens gave the contractor the written notice required by section 558.004. The contractor responded that it would make certain repair’s. The court found that the Hebdens “improperly denied [the contractor] access to the interior of the residence to cure the defects that [the contractor] had agreed to do.”

Section 558.004(7) requires a claimant who receives a timely settlement offer to “accept or reject the offer by serving written notice of such acceptance or rejection” within 45 days after receiving the offer. If a “claimant initiates an action without first accepting or rejecting the offer, the court shall abate the action upon timely motion” until the claimant complies with the subsection by either accepting or rejecting the contractor’s offer. Id.

If a claimant accepts a settlement offer to repair, the claimant must provide the offeror “reasonable access to the claimant’s property during normal working hours to perform the repair.” § 558.004(8), Fla. Stat. (2007). The statute does not say what happens when a claimant rejects an offer to settle. The statute should be read to provide the same remedy to a claimant who rejects an offer to settle as it does when a contractor refuses to settle in response to a notice of claim — “the claimant may, without further notice, proceed with an action against [the contractor] for the claim described in the notice of claim.” § 558.004(6), Fla. Stat. (2007).

Chapter 558 encourages settlement by providing a procedure to lead the parties to the waters of compromise; it does not make them drink. The one remedy specified for noncompliance with the statute is abatement, upon a timely motion, until the offending party complies with the statutory procedures. See §§ 558.003, 558.004(7), Fla. Stat. (2007). The statute does not forfeit substantive rights as a penalty for noncomplianee; it is expressly limited in scope. Section 558.004(12) provides:

(12) This chapter does not:
(a) Bar or limit any rights, including the right of specific performance to the extent such right would be available in the absence of this chapter, any causes of action, or any theories on which liability may be based, except as specifically provided in this chapter;
(b) Bar or limit any defense, or create any new defense, except as specifically provided in this chapter; or
(c) Create any new rights, causes of action, or theories on which liability may be based.

This section means that a claimant does not lose a right of recovery or defense allowed under Florida case law, such as that set forth in Reitano.

The Hebdens’ failure to allow access was tantamount to a rejection of the contractor’s settlement offer. The contractor did not move to abate the action to require the Hebdens to comply with section 558.004(7) by rejecting the offer in writing. The Hebdens’ failure to strictly comply with Chapter 558 did not forfeit their right to seek the offset damages allowed under Reitano. Based on its findings of fact, the trial court correctly allowed the set-off in this case.

We have considered the other points on appeal and find no error.

Affirmed.

FARMER and DAMOORGIAN, JJ., concur.


author: PER CURIAM.

text:
    Jennifer MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4495.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.
    Richard F. Della Fera of Entin & Della Fera, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant Jennifer Marshall appeals the trial court’s summary denial of her Florida Rule of Criminal Procedure 3.850 motion for post conviction relief alleging ineffective assistance of trial counsel and involuntary plea. Specifically, she alleged in her motion that her trial counsel advised her that if she entered an open, no contest plea to two counts of exploitation of an elderly person, she would receive probation and would have to pay restitution. Instead, she was sentenced to concurrent terms of fifteen (15) years in prison. She alleged counsel did not explain the consequences of an open plea, and that she would not have entered her pleas if she had been properly advised and had not been promised probation and restitution only.

The trial court summarily denied this motion without a State response or record attachments to its order to refute these legally cognizable claims. State v. Leroux, 689 So.2d 235 (Fla.1996). Summary denial of this motion was improper, and requires reversal and remand for further proceedings. Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007).

The State has argued in a response filed in this court that review of the record from appellant’s direct appeal will refute her claims. Even if this court still had possession of the record on appeal, it is the trial court’s burden to attach portions of the record refuting the motion or to conduct an evidentiary hearing if the motion is legally sufficient.

Reversed and Remanded for further proceedings.

FARMER, TAYLOR and MAY, JJ., concur.

      . Marshall appealed her sentences to this Court, which dismissed the appeal for lack of jurisdiction as the only claim of error was the denial of a downward departure sentence. Marshall v. State, 978 So.2d 279 (Fla. 4th DCA 2008).


author: POLEN, J. HAZOURI, J.,

text:
    PAWTUCKET MUTUAL INSURANCE COMPANY, Sandra Lucate, and Jean Camille, also known as Jean L. Herisson, Appellants, v. Michael MANGANELLI and Anne Manganelli, individually and as husband and wife, Appellees.
    No. 4D08-193.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.

      David V. King of Cooke & King LLLP, West Palm Beach, for appellants.
    Jane Kreusler-Walsh and Rebecca Mer-cier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., and Bill Bone of Larmoy-eux & Bone, P.L., West Palm Beach, for appellees.
   POLEN, J.

Appellant, Pawtucket Insurance, appeals the trial court’s order awarding attorney’s fees to its insured, Appellee, Michael Manganelli. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A). We affirm.

The underlying action arose when Michael and Anne Manganelli were injured in a car accident in Palm Beach County and filed a claim for uninsured motorist benefits with Pawtucket, the insurance company from which the Manganellis had purchased auto insurance which included uninsured motorist coverage. The uninsured motorist provisions included an arbitration clause which provided that, unless both parties agree otherwise, arbitration would occur in the county in which the insured “lives.” Michael Manganelli requested arbitration take place in Palm Beach County, and Pawtucket maintained that Manganelli lived in New Hampshire where he listed his primary residence and where the policy was issued. Manganelli brought an action for declaratory judgment. The trial court determined that Manganelli “lived” in Palm Beach County, and thus, that is where arbitration must occur. Pawtucket has not appealed that ruling.

Following arbitration, Manganelli moved for attorney’s fees and costs pursuant to sections 627.428 and 627.727(8), Florida Statutes, arguing that his suit against Pawtucket was only necessary because Pawtucket effectively denied coverage by refusing to arbitrate in Palm Beach County. The court found that Pawtucket had no basis for insisting that arbitration take place in New Hampshire under the pertinent policy language. Relying primarily on case law in which the courts have found that attorney’s fees were properly awarded where the insurer did not actually deny coverage but required something of the insurer that could place his coverage in jeopardy, the trial coui’t determined that Manganelli was entitled to attorney’s fees and costs. Bassette v. Standard Fire Ins. Co., 803 So.2d 744 (Fla. 2d DCA 2001); Leaf v. State Farm Mut. Auto. Ins. Co., 544 So.2d 1049 (Fla. 4th DCA 1989). Pawtucket now appeals the trial court’s award of attorney’s fees.

§ 627.428(1), Fla. Stat., states:

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 ... shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Section 627.727(8), Florida Statutes, provides that attorney’s fees shall not be awarded under section 627.428 in an action brought by an insured against' an uninsured motorist insurer “unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.” A court’s interpretation of section 627.428, Florida Statutes, is subject to de novo review. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 253-54 (Fla.2006).

In Leaf, this court held that an award of attorney’s fees was proper where the insurer insisted it had not agreed to arbitrate the insured’s uninsured motorist claim forcing the insured to file a petition to compel arbitration. 544 So.2d at 1050. We explained such an award is generally appropriate under section 627.428 when an action to compel arbitration is reasonably necessary to pursue an insurance claim. Id. We also reiterated that section 627.428 is intended to “penalize a carrier for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier’s power to do so.” Id. (quoting Employees Insurance Co. v. Battaglia, 503 So.2d 358, 360 (Fla. 5th DCA 1987)). Similarly, in Sanchez v. American Ambassador Casualty Co., the Second District held that an insurer’s refusal to arbitrate a claim effectively amounts to a denial of coverage warranting an award of attorney’s fees. 559 So.2d 344, 346 (Fla. 2d DCA 1990).

Though Pawtucket did not deny coverage per se, by maintaining that arbitration had to take place in New Hampshire, it forced Manganelli to engage in litigation unnecessarily in the face of Man-ganelli’s insistence that he “lived” in Palm Beach County. Under Leaf and Sayichez, the trial court’s award of attorney’s fees in the present case is justified given Paw-tucket’s actions.

As to the other claims raised by Paw-tucket on appeal, we find no error.

WARNER, J., concurs.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

I concur in the majority opinion and write for the purpose of expressing my view that Pawtucket’s insistence that the arbitration take place in New Hampshire in fact raises a coverage issue.

The arbitration clause in the policy is part of the insureds’ coverage. I see little if any distinction between the insurance company in Sanchez refusing to arbitrate, and Pawtucket’s insistence that the arbitration take place in New Hampshire. In both instances, the insureds were required to litigate provisions of their policies in order to proceed with the arbitration.

Section 627.727(8), Florida Statutes, was intended to preclude attorney’s fees when an insured and the insurance company could not agree on the value of the uninsured motorist claim and the insured resorted to litigation. The insured was not to be placed in a more advantageous position than if the insured was suing the tortfeasor. An insurance company should not be penalized with the assessment of attorney’s fees simply because it contested liability or the extent of the insureds’ damages.

      . The Manganellis owned residences in New Hampshire, New Jersey, and Palm Beach County, Florida.


author: WARNER, J.

text:
    Justin MAYS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3814.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.

      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, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s sentences and reject his claim that he should have been allowed to withdraw his plea based upon misadvice of counsel as to the maximum sentence he would have to serve were he convicted at trial. While he alleges that counsel told him he would serve forty years, during the plea colloquy the trial court informed him that his maximum sentence for the crime of attempted robbery would be fifteen years, as well as 8.375 years for each of the other two charges against him. He was sentenced to 8.375 years on each charge to be served concurrently. In Jones v. State, 680 So.2d 585, 587 (Fla. 4th DCA 1996), we said in connection with a similar claim:

Here, the judge correctly advised defendant as to [his sentence]. Defendant indicated that he understood the nature of the potential sentence. If he had been told something different by his lawyer, defendant was obligated to speak up at the plea conference and ask the court about the discrepancy. He could not stand mute, accept the benefits of the plea, and then collaterally attack its vol-untariness on the basis of something that should have been cleared up at the time of the plea.

Similarly, after the trial court informed him of the maximum sentence which was substantially shorter than what he claims his counsel informed him, it was his obligation to clear this up if it was material to his acceptance of the plea.

Affirmed.

POLEN and HAZOURI, JJ., concur.

      . Two of the charges were third-degree felonies, carrying a statutory maximum of five years, but the maximum sentence for appellant constituted the minimum permissible sentence under the Criminal Punishment Code, which was 8.375 years. See § 921.0024(2), Fla. Slat.


author: WELLS, J.

text:
    Anthony J. STOKES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2109.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2009.
    Anthony J. Stokes, in proper person.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   WELLS, J.

Anthony J. Stokes appeals a final order denying his petition for writ of habeas corpus. Because we find that the Eleventh Judicial Circuit lacked jurisdiction to consider the claim raised in Stokes’ habeas petition, we affirm the denial without prejudice for Stokes to seek appropriate relief in the Seventeenth Judicial Circuit.

As this Court explained in Brinson v. State, 988 So.2d 665, 665-66 (Fla. 3d DCA 2008) (quoting Broom v. State, 907 So.2d 1261, 1262 (Fla. 3d DCA 2005)) (citations omitted):

The circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration, but not when the claims attack the validity of the judgment or sentence. Only the court in which the defendant was convicted and sentenced has jurisdiction to consider collateral attacks on a judgment or sentence, and such an attack must be brought pursuant to Rule 3.800 or 3.850, not by petition for writ of habeas corpus.

Because Stokes challenges his conviction and not the conditions of his imprisonment, we affirm the trial court’s order without prejudice. “Post-conviction challenges must be pursued in the circuit court where the conviction was obtained.” Brinson, 988 So.2d at 666. Any challenge by Stokes to his conviction or sentence pursuant to Rule 3.800 or Rule 3.850, Florida Rules of Criminal Procedure, should be brought in the Seventeenth Judicial Circuit, where Stokes was convicted and sentenced.

Affirmed without prejudice.


text:
    Eric L. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D08-1712.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.
    Eric L. Johnson, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Eric L. Johnson filed in the trial court a petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel. The trial court properly denied the petition. This is because a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel must be filed “in the appellate court to which the appeal was or should have been taken.” Fla. R.App. P. 9.141(c)(2); see also Johnson v. State, 694 So.2d 159, 159 (Fla. 4th DCA 1997).

Pursuant to Florida Rule of Appellate Procedure 9.040(c), which “permits this court to treat a case as if the proper remedy has been invoked,” we treat “this appeal as a petition for writ of habeas corpus.” Johnson, 694 So.2d at 159. We find Johnson’s ineffective assistance claim legally insufficient and hereby deny the petition.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    William BALL, Appellant, v. Danya L. BALL, Appellee.
    No. 4D08-1856.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.
    John B. Agnetti and Calianne P. Lantz of Hoffman, Larin & Agnetti, P.A., Miami, for appellant.
    Danya Ball, Davie, pro se.
   WARNER, J.

We affirm the trial court’s final judgment of dissolution of marriage. The husband contends that the court entered the original partial final judgment without giving him an opportunity to submit his own proposed final judgment, contrary to Perlow v. Berg-Perlow, 875 So.2d 388 (Fla.2004). However, the trial judge had announced his findings of fact and conclusions of law on the record in the presence of the pro se husband, the wife, and her attorney. After the husband experienced medical issues, the court simply directed the wife’s attorney to memorialize the already announced findings of fact and conclusions in a partial final judgment. Because the trial judge made all of the findings of fact and conclusions himself, Perlow does not require reversal. See Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005).

We also affirm the award of attorney’s fees, as the court found the fees were authorized based upon a review of the factors set forth in Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

Affirmed.

POLEN and HAZOURI, JJ., concur.


text:
    Allen Dale OWENS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D08-1044, 3D08-1198.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2009.
    Rehearing Denied March 31, 2009.

      Allen Dale Owens, in proper person.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., SHEPHERD, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287, 291 (Fla.2003) (“Collateral es-toppel ... precludes a defendant from rearguing in a successive rule 3.800 motion the same issue argued in a prior motion.”).


author: WHATLEY, Judge.

text:
    Juan FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3201.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2009.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Figueroa appeals his convictions of first degree felony murder and attempted robbery with a firearm. We affirm his convictions without comment, but we reverse his sentence for attempted robbery with a firearm.

At sentencing for the two offenses, the trial court adjudicated Figueroa guilty pursuant to the verdicts of guilty rendered by the jury, and it sentenced him to life for the felony murder and twenty years for the attempted robbery. The court advised Figueroa that he had thirty days to appeal, and the hearing concluded. The next day, the prosecutor and defense counsel appeared before the court. The prosecutor advised the court that the applicable minimum mandatory term for attempted robbery with a firearm was not twenty years, but twenty-five years. See § 775.087(2)(a)(3), Fla. Stat. (2006). Defense counsel agreed, and the trial court amended Figueroa’s sentence accordingly.

The trial court’s action violated Figueroa’s double jeopardy rights, despite the fact that the twenty-year term was erroneous. See Pate v. State, 908 So.2d 613 (Fla. 2d DCA 2005). Under nearly identical facts, the supreme court held:

[T]he fact[s] reflect that a voluntary plea of guilty was entered and sentence imposed and the hearing concluded. The record also indicates that there was no further contemplated hearing for that day in the cause; thus the matter was concluded for all purposes.
Jeopardy had attached in petitioner’s case and the sentence which had been imposed could not thereafter be increased ... in violation of defendant’s constitutional guaranty not to be twice placed in jeopardy.

Troupe v. Rowe, 283 So.2d 857, 859-60 (Fla.1973); accord Obara v. State, 958 So.2d 1019 (Fla. 5th DCA 2007); Gallinat v. State, 941 So.2d 1237, 1240 (Fla. 5th DCA 2006) (“Under Troupe, when the sentencing hearing concludes, jeopardy attaches .... ”).

Accordingly, we reverse Figueroa’s sentence of twenty-five years for the attempted robbery conviction and remand with directions that the trial court reimpose the original twenty-year sentence for this offense.

Reversed and remanded with directions.

CASANUEVA and LaROSE, JJ., Concur.


text:
    David HALPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4015.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2009.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th DCA 2003).

GROSS, C.J., FARMER, J., and MAASS, ELIZABETH T., Associate Judge, concur.


author: PER CURIAM. WALLACE, Judge,

text:
    Jeffrey WOOD, CRNA, Petitioner, v. Geneve A. VIRGO and Radcliff O. Virgo; Sheldon S. Farclough, a minor; Kerrian O. Virgo, a minor; Radcliff O. Virgo, Jr., a minor; Heidi Arnold, M.D.; Obstetrics & Gynecology Associates; Tampa Bay Women’s Healthcare Alliance, L.L.P.; Galencare, Inc., d/b/a Brandon Regional Hospital; Rosemary Bollinger, CRNA; and Steve Blicblum, M.D., P.A., Respondents.
    No. 2D08-4228.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2009.
    Mara B. Levy and Andrew R. McCum-ber of MeCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Petitioner.
    Amy S. Farrior and Raymond T. Elli-gett, Jr., of Buell & Elligett, P.A., Tampa; William E. Hahn, Tampa; and George M. Stark, Tampa, for Respondents Geneve A. Virgo and Radcliff 0. Virgo; Sheldon S. Farclough, a minor; Kerrian O. Virgo, a minor; and Radcliff O. Virgo, Jr., a minor.
    No appearance for remaining respondents.
    Harold R. Mardenborough, Jr., and Matthew S. Scanlan of Carr Allison, Tallahassee, for Amicus Curiae Florida Defense Lawyers’ Association.
   PER CURIAM.

In this medical malpractice case, the petitioner, Jeffrey Wood, seeks review by common law certiorari of the circuit court’s order denying his motion for summary judgment. Mr. Wood moved for summary judgment in the circuit court on the ground that two of the respondents, Geneve A. Virgo and Radcliff O. Virgo (the Virgos), had failed to comply with the pre-suit notice requirements of section 766.106(2)(a), Florida Statutes (2006). Because the presuit requirements of chapter 766 are at issue here, we have certiorari jurisdiction to review the circuit court’s order. See Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007); St. Anthony’s Hosp., Inc. v. Lewis, 652 So.2d 386, 386 (Fla. 2d DCA 1995).

The issue raised by Mr. Wood’s motion for summary judgment was whether the written presuit notice of the Virgos’ medical malpractice claim provided to one of the respondents, Steve Blicblum, M.D., P.A., operated as notice to Mr. Wood. The materials before the circuit court on this issue at the hearing on the motion for summary judgment raised genuine issues of material fact. The circuit court was precluded from resolving disputed issues of fact on a motion for summary judgment. See Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citing Shaffran v. Holness, 93 So.2d 94 (Fla.1957)). Because genuine issues of material fact existed, summary judgment was inappropriate. It follows that the circuit court’s order does not depart from the essential requirements of the law. Accordingly, we deny the petition.

Petition denied.

FULMER and KELLY, JJ., Concur.

WALLACE, J., Concurs specially.

WALLACE, Judge,

Specially concurring.

I concur fully in the court’s opinion. I write separately to address a statement made by the circuit judge at the hearing on the motion for summary judgment. After correctly noting that genuine issues of material fact precluded the entry of summary judgment in favor of Mr. Wood on the presuit notice issue, the circuit judge remarked: “I think the specific relationship between [Steve Blicblum, M.D., P.A., and Mr. Wood] at all times in question is still up for the jury to decide.” (Emphasis added.) This statement has understandably caused Mr. Wood some concern.

Florida Rule of Civil Procedure 1.650(b)(3), which is applicable to the procedures prescribed by section 766.106 for presuit screening of medical malpractice claims, provides: “The court shall decide the issue of receipt of notice when raised in a motion to dismiss or to abate an action for medical malpractice.” (Emphasis added.) In suggesting that the issue of the Virgos’ compliance with the presuit notice requirements of section 766.106(2)(a) as to Mr. Wood was a jury question, the learned circuit judge obviously misspoke. The issue of the Virgos’ compliance with the presuit notice requirements is a matter that must be determined by the circuit court upon appropriate motion. See § 766.206(1); Martin Mem’l Med. Ctr., Inc. v. Berber, 984 So.2d 661, 663 (Fla. 4th DCA 2008); Duffy v. Brooker, 614 So.2d 539, 544-45 (Fla. 1st DCA 1993), disapproved on other grounds by Archer v. Maddux, 645 So.2d 544, 547 (Fla. 1st DCA 1994).

Notably, the Virgos do not contend that the presuit notice issue is a jury question. Instead, they observe that Mr. Wood never asked the circuit court to hold an evi-dentiary hearing on the issue of whether they had met the presuit requirements as to him. Upon appropriate motion made by Mr. Wood after remand, the circuit court should consider and determine this issue at an evidentiary hearing. See, e.g., Yocom v. Wuesthoff Health Sys., Inc., 880 So.2d 787 (Fla. 5th DCA 2004) (evidentiary hearing on the issue of whether the plaintiff had failed to provide a corroborating medical expert opinion for his medical malpractice claim within the time required); Vincent v. Kaufman, 855 So.2d 1153 (Fla. 4th DCA 2003) (evidentiary hearing on the issue of whether there was an agreement to extend the presuit period for plaintiffs medical malpractice claim).


author: KELLY, Judge.

text:
    Terry J. BREWER, Appellant, v. Mary C. BREWER, Appellee.
    No. 2D07-4686.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2009.
    Tarya A. Tribble of Tarya A. Tribble, P.A., Riverview, for Appellant.
    Charles F. Mixon, Jr., of Law Offices of Mixon & Hubbell, Tampa, for Appellee.
   KELLY, Judge.

Terry Brewer, the former husband, appeals the amended supplemental final judgment awarding the former wife, Mary Brewer, $8075 in retroactive alimony. He contends that the award is based on calculations which differ from the oral pronouncements made by the trial court at the hearing on the former wife’s request for retroactive alimony. We agree and accordingly, reverse.

The final judgment dissolving the parties’ marriage was entered in March 2007. It awarded the former wife $1600 per month in permanent periodic alimony and reserved jurisdiction to consider the former wife’s entitlement to retroactive alimony and attorney’s fees. At the evidentia-ry hearing to determine those issues, the trial court found that the former husband’s monthly expenses during the retroactive time period were $3614 and ruled that “repayment of retroactive alimony would be maxed out at twenty percent of the amount of alimony that has been ordered.”

In contrast, the amended supplemental final judgment stated that the former husband’s monthly expenses were $3200 per month. Based upon this figure and a monthly net income of $4500, the court found that the former husband had the ability to pay $1300 per month in retroactive alimony. The court awarded the former wife $1000 per month in retroactive alimony payable at a monthly rate of $500. Had the trial court calculated the former husband’s ability to pay based on $3614 in monthly expenses rather than $3200, the written judgment would have reflected that he had only $886 per month from which to pay retroactive alimony. Further, had the trial court structured the payments as it had announced it would at the hearing, the former husband would have been required to repay no more than $320 per month (20% of the $1600 in alimony previously awarded) instead of the $500 set forth in the amended supplemental final judgment.

Reversal is required where the final judgment is inconsistent with the trial court’s oral pronouncement. Mahaffey v. Mahaffey, 614 So.2d 649, 650-51 (Fla. 2d DCA 1993); Gallardo v. Gallardo, 593 So.2d 522, 524 (Fla. 3d DCA 1991). We therefore reverse the retroactive alimony award set forth in the written judgment and remand for the trial court to recalculate the proper amount of alimony and its repayment, taking into consideration the former husband’s expenses during the retroactive alimony period consistent with the court’s oral findings. See Mahaffey, 614 So.2d at 650.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., concur.


text:
    David TRISTRAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-313.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2009.
    Benjamin S. Waxman and Alan S. Ross of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

David Tristram appeals an order summarily denying his rule 3.850 motion for postconviction relief. Having granted his request for expedited review, we reverse and remand. The trial court should have afforded Tristram the opportunity to amend his motion to allege that the plea in this case alone subjects him to deportation. Spera v. State, 971 So.2d 754 (Fla.2007); Brown v. State, 992 So.2d 915 (Fla. 4th DCA 2008); Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008).

Reversed and Remanded for further proceedings.

FARMER, MAY and DAMOORGIAN, JJ., concur.


author: CASANUEVA, Judge.

text:
    DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. LANDMARK ENTERPRISES, INC., n/k/a Landmark Utilities, Inc., and David S. Plank, individually, d/b/a Thunderbird Hills Wastewater Treatment Plant; and Highlands County, a political subdivision of the State of Florida, Appellees.
    No. 2D08-3039.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2009.
    Teresa L. Mussetto, Chief Appellate Counsel, and Kirk S. White, Senior Assistant General Counsel, Tallahassee, for Appellant.
    Bert J. Harris, III, of Swaine & Hai'ris, P.A., Lake Placid, for Appellees Landmark Enterprises, Inc. and David S. Plank.
    J. Ross Macbeth, Sebring, for Highlands County.
   CASANUEVA, Judge.

Over strenuous objection from the appellant, the Department of Environmental Protection (DEP), the circuit court appointed it receiver and operator of a failing wastewater treatment plant in Highlands County. The DEP appeals this nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(D), raising several issues. We review the circuit court’s order granting the petition to appoint the DEP as receiver under an abuse of discretion standard. See Edenfield v. Crisp, 186 So.2d 545, 548 (Fla. 2d DCA 1966) (citing Welch v. Gray Moss Bondholders Corp., 128 Fla. 722, 175 So. 529 (1937)). We reverse because we agree that the circuit court abused its discretion by appointing an unqualified receiver, the DEP.

I. Background

Thunderbird Hills Wastewater Treatment Plant (the facility), owned by appel-lee Landmark Enterprises, Inc., and operated by Landmark’s principal, appellee David S. Plank, serves over five hundred households in Highlands County. It is an aging and overwhelmed facility that the DEP cited for releasing or disposing of wastewaters and residuals without proper treatment and causing pollution. In 1999, the DEP and Landmark entered into an administrative consent order to correct the many problems facing the facility. By 2002, Landmark had not complied with the requirements of the consent order and continued to operate in violation of administrative rules. As a result, the DEP filed a complaint and petition to enforce the consent order against Landmark and Mr. Plank. It sought mandatory injunctive relief, monetary penalties, costs, and fees. In August 2007, the circuit court entered a stipulated order granting temporary in-junctive relief. In November 2007, when the DEP perceived that certain requirements of the injunction were not fulfilled, it filed a motion for contempt. Five months later, Landmark and Mr. Plank abandoned the facility, observing all statutory notice requirements of section 367.165, Florida Statutes (2007).

Pursuant to this section, Highlands County, in the ongoing suit between the DEP and Landmark and Mr. Plank, filed a petition with the circuit court to appoint the DEP as receiver of the facility due to the abandonment. The DEP filed a written objection, and a hearing was held on the petition. On June 4, 2008, the circuit court granted the county’s petition and appointed the DEP receiver of the facility. That order is now before us.

II. Analysis

In its order appointing the DEP receiver of the facility, the circuit court limited its legal inquiry to whether the DEP was a “person” within the meaning of section 367.165. This provision empowers a court to appoint “any other person deemed appropriate” as receiver. § 367.165(2). The circuit court’s focus was misplaced. This reversal is based on our construction of the statutes pertaining to the DEP that fail to provide for its function as receiver. Quite simply, the statutory framework for the DEP does not authorize this role for the agency.

The DEP’s governing authority, including its grant of powers, is Chapter 403, Florida Statutes, titled “Environmental Control.” The DEP points out that the sole reference linking the DEP and a receiver is in the phosphogypsum management program. In that instance, when faced with an imminent hazard, the DEP’s authority is not to act as a receiver but only to hire one. In such a circumstance, the legislature granted the DEP the power to undertake the work necessary to avoid or ameliorate the imminent hazard. § 403.4154(3)(e), Fla. Stat. (2008).

Aside from this one instance in the phos-phogypsum management program, no one has directed us to any instance in our statutes, nor have we been able to discover on our own, where the DEP is authorized to act as a receiver or expend it's appropriations to hire one. Cf. § 403.061(2) (authorizing the DEP to “[h]ire only such employees as may be necessary to effectuate the responsibilities of the department”). Section 403.061 contains an extensive list of the DEP’s powers and duties, all dealing with its regulatory role in protecting Florida’s natural environment. See also § 403.021 (titled “[legislative declaration; public policy”). If the legislature desired the DEP to act as a receiver, it knew how to do so, as illustrated by instances where it empowered other state agencies to so act when needed. For example, section 409.1675(2)(e), Florida Statutes (2008), authorizes the Department of Children and Family Services to petition the court to appoint a receiver for a lead community-based provider of services to dependent children that cannot properly continue functioning by providing: “[T]he court may appoint any person, including an employee of the department who is qualified ... to carry out the duties of the receiver pursuant to this section, except that the court shall not appoint any member of the governing board or any officer of the lead community-based provider.” See also § 440.386(6), Fla. Stat. (2008) (“QUALIFICATIONS OF RECEIVERS. — A receiver shall in all cases be a natural person or a corporation authorized to act as receiver, which corporation may be a domestic corporation or a foreign corporation authorized to transact business in this state.... ”).

III. Conclusion

Simply put, the DEP, as a creature of statute, is governed by statute. It can exercise only the powers granted it by the legislature. It is not empowered to act as a receiver for an abandoned wastewater treatment facility, despite its expertise in pollution control. In appointing the DEP as receiver of Thunderbird Hills Wastewa-ter Treatment Plant, the circuit court in effect ordered the DEP to act ultra vires. Accordingly, we must reverse.

We are cognizant that this reversal does little to aid the circuit court when it faces again the unenviable task of appointing a willing and qualified entity to assume the thankless task of operating this problem-ridden facility. While the DEP is not statutorily authorized to act as receiver, it possesses the expertise to assist in resolving the present conundrum, a situation occasioned by the operators’ inability to comply with the DEP’s requirements. The underlying operational problem, as presented, is unsuited to judicial resolution. Instead, its resolution must come from the executive and legislative branches, those branches of government that make and finance public policy.

Appointment of receiver reversed; cause remanded for further proceedings.

ALTENBERND and LaROSE, JJ., Concur.

      . This section provides as follows:
      367.165. Abandonment. — It is the intent of the Legislature that water or wastewater service to the customers of a utility not be interrupted by the abandonment or placement into receivership of the utility. To that end:
      (1)No person, lessee, trustee, or receiver owning, operating, managing, or controlling a utility shall abandon the utility without giving 60 days' notice to the county or counties in which the utility is located and to the commission. Anyone who violates the provisions of this subsection is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Each day of such abandonment constitutes a separate offense. In addition, such act is a violation of this chapter, and the commission may impose upon the utility a penalty for each such offense of not more than $5,000 or may amend, suspend, or revoke its certificate of authorization; each day of such abandonment without prior notice constitutes a separate offense.
      (2) After receiving such notice, the county, or counties acting jointly if more than one county is affected, shall petition the circuit court of the judicial circuit in which such utility is domiciled to appoint a receiver, which may be the governing body of a political subdivision or any other person deemed appropriate. The receiver shall operate the utility from the date of abandonment until such time as the receiver disposes of the property of the utility in a manner designed to continue the efficient and effective operation of utility service.
      (3) The notification to the commission under subsection (1) is sufficient cause for revocation, suspension, or amendment of the certificate of authorization of the utility as of the date of abandonment. The receiver operating such utility shall be considered to hold a temporary authorization from the commission, and the approved rates of the utility shall be deemed to be the interim rates of the receiver until modified by the commission.

      . Although not germane to the ultimate merits of this cause, the DEP notes the impropriety of the procedure that Highlands County used in injecting itself into this suit without leave of court to intervene or be named a party. The DEP claims that the county was required to initiate a separate suit by virtue of the directive in section 367.165(2) that a county petition the circuit court of the judicial circuit where the facility is domiciled. It appears to us that the county did file such a petition, albeit in this suit. We find no language in the statute that requires a petitioner to commence a separate suit and find the procedure used in this case, although unorthodox, harmless and at least a good use of judicial resources; it allowed a judge already familiar with the problems to rule on a related matter.
      Moreover, in its written objection to the petition, the DEP did not dispute the manner in which the county had injected itself into the proceedings.

      . Whether the operators’ inability to comply with the DEP's requirements was caused by incompetence, unwillingness, or some other reason is not part of the present problem. But it is clear that resolving the present impasse over the facility’s operation will necessarily involve the expertise of the agency charged with environmental protection, the DEP. It would be unfortunate indeed if the DEP would now act as a bystander while the physical health of the affected residents and the environmental health of the State of Florida remain at risk.


text:
    D’Andre Herrod JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1603.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2009.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The nineteen-year old defendant was charged with robbery with a deadly weapon. According to the arrest affidavit, the deadly weapon was a BB gun. The defendant entered a no contest plea to the charge and was sentenced to life in prison, with a ten-year mandatory minimum.

The defendant filed a Motion to Correct Sentencing Error and Request for Resen-tencing. The trial court struck the ten-year mandatory minimum because a BB gun is not a firearm under the 10/20/life statute. However, the court denied the defendant’s request to impose a youthful offender sentence instead of life imprisonment. We can find no sentencing error, as it was within the trial court’s discretion to sentence the defendant to life in prison under section 812.13(2)(a), Florida Statutes, instead of imposing a youthful offender sentence.

STEVENSON, TAYLOR and MAY, JJ., concur.


text:
    Christopher THOMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4601.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2009.
    Christopher Thompkins, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the tidal court’s denial of Christopher Thompkins’s motion for jail credit. This court’s affirmance of the claim is without prejudice to Thompkins filing a legally sufficient rule 3.800(a) or 3.850 motion in the trial court establishing through specifically identified record evidence that he is entitled to additional jail credit. See Warren v. State, 980 So.2d 1204 (Fla. 4th DCA 2008); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998).

We note that Thompkins’s initial brief includes details not included in the motion filed below and therefore not considered by the trial court. To state a sufficient claim, Thompkins must allege and identify records showing the date the Broward County arrest warrant(s) was formally served on him while he was in the Miami-Dade County jail. See Gethers v. State, 838 So.2d 504 (Fla.2003); see also Jesel v. State, 995 So.2d 1160 (Fla. 5th DCA 2008); Ervin v. State, 971 So.2d 995 (Fla. 5th DCA 2008).

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


text:
    Bradley E. DALZELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-117.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2009.

      Bradley E. Dalzell, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Bradley Dalzell, appeals the trial court’s denial of his motion seeking additional jail time credit. Because the trial court failed to attach portions of the record which refute Dalzell’s claim, the case must be reversed and remanded to the trial court with instructions that the court grant the requested relief or attach portions of the record refuting the claim.

REVERSED AND REMANDED.

TORPY, EVANDER and COHEN, JJ., concur.


text:
    John D. O’BRIEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2668.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2009.
    John D. O’Brien, Jr., Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

John D. O’Brien, Jr., appeals from the summary denial of his eleven-claim motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order as to all issues except the denial of O’Brien’s tenth claim, which alleged that his trial counsel failed to communicate a plea offer to him that he would have accepted, resulting in a lesser sentence. See Wright v. State, 892 So.2d 1209, 1210 (Fla. 5th DCA 2005). Although it appears from the State’s response below that this claim also lacks merit, the response relies on non-record documents and statements that cannot sustain a summary denial. See, e.g., Harich v. State, 484 So.2d 1239, 1240 (Fla.1986) (a reviewing court must treat the properly sworn allegations of a 3.850 motion as true unless they are conclusively rebutted by the record). Accordingly, we reverse in part and remand with instructions that the trial court conduct an evidentiary hearing on O’Brien’s tenth claim, and affirm the order on appeal in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

PALMER, C.J., ORFINGER and LAWSON, JJ., concur.


author: SCHWARTZ, Senior Judge. GERSTEN, C.J.

text:
    Jonathan NODAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1596.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General, and Angel L. Fleming and Natalia Costea, Assistant Attorneys General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant appeals from convictions after a jury trial in a horrible and tragic double homicide case in which the sole arguable defense was insanity. Under the circumstances, which are almost identical to those in Dingle v. State, 654 So.2d 164 (Fla. 3d DCA 1995), it is clear that, as also in Dingle, the trial court erred in denying the defendant’s motion to appoint an expert neuropsyehologist to examine and testify on behalf of the defendant to counter the damaging testimony of a similar expert retained by the State. On the authority of Dingle, the judgment is reversed for further proceedings consistent herewith.,

Reversed and remanded.

RAMIREZ, J., concurs.

GERSTEN, C.J.

(concurring).

I agree with the majority’s decision to reverse and remand Jonathan Nodal’s (“the defendant”) conviction and sentence for two counts of first degree murder. I write, however, to clarify the issue of the defendant’s legal representation.

Here, the defendant retained private counsel. Before trial, he wanted to discharge his attorney. The trial court, however, did not allow the defendant to discharge his attorney.

Recently, the United States Supreme Court held that states are permitted to insist upon representation by counsel for those who are competent enough to stand trial but who still suffer from severe mental illness so they are not competent to conduct trial proceedings themselves. See Indiana v. Edwards, — U.S. -, 128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008). Therefore, the trial judge was correct to insist that the defendant have representation.

However, as the majority mentions in footnote two, the defendant has an unqualified right to discharge his privately retained counsel. See Branch v. State, 952 So.2d 470, 484 (Fla.2006); Fratcher v. State, 842 So.2d 1044, 1046 (Fla. 4th DCA 2003). See also Jackson v. State, 979 So.2d 442 (Fla. 4th DCA 2008). Therefore, if the defendant again requests to discharge his privately retained counsel, the trial judge should honor his request. If however, the defendant is still competent to stand trial, but not competent to represent himself, the trial judge can give the defendant an opportunity to retain different counsel or appoint counsel to represent him. Branch, 952 So.2d at 484.

      . There is no other trial error.

      . Although our disposition of the case makes it unnecessary to discuss the application of these principles to the proceedings which have already taken place below, we point out that (a) absent special circumstances, a competent defendant has the unqualified right to discharge his privately retained attorney, see Branch v. State, 952 So.2d 470, 484 (Fla.2006); Fratcher v. State, 842 So.2d 1044, 1046 (Fla. 4th DCA 2003); Foster v. State, 704 So.2d 169, 172-3 (Fla. 4th DCA 1997), and (b) such a defendant has a similar right to preclude his counsel — retained or court appointed — from raising an insanity defense, see Faretta v. California, 422 U.S. 806, 819, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983).


text:
    Jesse DIEGUEZ, Appellant, v. Craig E. WEISSBERG, P.A., Appellee.
    No. 3D08-304.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Jesse Dieguez, in proper person.
    Craig E. Weissbei’g, Miami, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Jesse Dieguez (“the client”) appeals from a trial court order granting his former attorney’s “Motion to Adjudicate and Foreclose Charging Lien and for Entry of Final Judgment for Attorneys’ Fees and Costs.” We affirm.

In this appeal, the client sets forth a number of challenges to the factual findings entered by the trial court. However, because no transcript of the proceedings below appears in the record, and the client has not opted to provide a substitute pursuant to Florida Rule of Appellate Procedure 9.200(a)(4), or 9.200(b)(4), the client is unable to provide any evidentiary support for his arguments. Conversely, the trial court’s findings are bolstered by two written retainer agreements, signed by the client, which do appear in the record.

In the absence of a proper record, a presumption of correctness attaches to the trial court’s decision and this Court’s review is limited to whether errors appear on the face of the judgment. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Porteous v. Porteous, 937 So.2d 1179, 1181 (Fla. 3d DCA 2006); Prymus v. Prymus, 753 So.2d 742, 742 (Fla. 3d DCA 2000). Here, the client has failed to overcome the presumption of correctness attached to the trial court’s decision, and no errors appear on the face of the trial court’s decision. Accordingly, the order on appeal is affirmed in all respects.

Affirmed.


text:
    Leonardo GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3216.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Reeves v. State, 957 So.2d 625 (Fla.2007).


text:
    MELVIN-PIEDMONT NURSERY, Appellant, v. Roland R. ST. LOUIS, Jr., Appellee.
    No. 3D08-173.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Jones, Key, Melvin & Patton and Richard Melvin, for appellant.
    Roland R. St. Louis, Jr., in proper person.
    Before GERSTEN, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See § 57.105, Fla. Stat. (1999); Visoly v. Sec. Pacific Credit Corp., 625 So.2d 1276, 1277 (Fla. 3d DCA 1993).


text:
    Y.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-914.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
   An Appeal from the Circuit Court for Miami-Dade County, Lester Langer, Judge.

Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.

Affirmed. See State v. R.R., 697 So.2d 181 (Fla. 3d DCA 1997).


author: LOGAN, WALT, Associate Judge.

text:
    PEACH STATE ROOFING, INC., a Georgia corporation, Appellant/Cross-Appellee, v. 2224 SOUTH TRAIL CORP., a Florida corporation, Appellee/Cross-Appellant.
    Nos. 2D07-278, 2D07-1077.
    District Court of Appeal of Florida, Second District.
    March 6, 2009.

      Eric E. Ludin of Tucker & Ludin, P.A., Clearwater, and Betsy E. Gallagher and G. William Bissett of Kubicki Draper, Tampa, for Appellant/Cross-Appellee.
    Adam Mohammadbhoy of Harllee & Bald, P.A., Bradenton, for Appellee/Cross-Appellant.
   LOGAN, WALT, Associate Judge.

Peach State Roofing, Inc. (Peach State), appeals a final judgment awarding damages to 2224 Trail Corp. (Trail) on its claim for breach of contract. We hold that the trial court improperly found an implied term in a contract which by its terms was clear and unambiguous and that there was a failure to prove damages as of the date of the breach. We therefore reverse the final judgment in its entirety and remand to the trial court for entry of judgment in favor of Peach State.

Peach State contracted on August 2, 2001, with Trail to put a new roof on Trail’s forty-year-old, 26,500-square-foot commercial building. The contract required Peach State to (1) “remove and discard existing roof system,” and (2) “furnish and install Carlisle Single Ply membrane roof system,” for a feed price of $63,500. The parties agreed that the contract provided that the contractor would be compensated for any required repairs to the metal decking that supports the roof system at $3.50 per square foot. Trail does not contend that this provision required replacing the metal deck. The work was completed about December 20, 2001, with no charges having been made for metal deck repair.

On September 2, 2004, Trail filed suit against Peach State alleging that Peach State had breached the contract “by failing to properly remove and replace the roof’ and that Trail “has suffered and will suffer damages including, but not limited to, repair costs, loss of rental income and costs incurred as a result of the water damage experienced from the improper roof repair/replacement.”

Trail’s expert witness, Mr. Albritton, described the roof as, “basically, an elastom-eric sheet that is installed over top of roof insulation boards that are sitting on top of a lightweight insulated concrete that is poured in place over a metal roof deck.” He inspected portions of the roof in April and May of 2006, almost five years after the work had been completed. He observed an amount of corrosion in the metal decking. He also stated that in his opinion it was industry practice for the roofing contractor to notify the owner of the existence of corrosion. Mr. Albritton admitted he had no way to know the condition of the decking at the end of 2001, when Peach Tree completed its contract.

Trail offered no evidence of the condition of the metal deck or the roof as it was in 2001. Moreover, Trail offered no evidence of “repair costs, loss of rental income and costs incurred as a result of water damage,” as it alleged in the complaint as damages.

The trial court specifically held that the contract did not require Peach State to remove and replace the existing metal decking but found that the “decking underlying the roofing system ... was in a seriously deteriorated condition at the time” Peach State performed the contract. The trial court also found that there was an implied term in the contract based on custom and usage which required Peach State to “notify the owner if the deck underlying the roof system is in a deteriorated condition” and held that Peach State had breached the contract by failing to notify Trail that the metal decking was deteriorated, thus enabling Trail to decide whether to replace it. The trial court further found that both the roof system and the metal decking would have to be replaced and that the current cost to accomplish such task would be $364,000. It then awarded Trail $364,000 in damages against Peach State. It is noteworthy that the trial court did not find, nor did Trail argue on appeal, that Peach State had installed the Carlisle roof system improperly. Further, the trial court did not find that the deteriorated metal decking was the cause of any leaks.

The review of a trial court’s interpretation of a contract is de novo. Leopold v. Kimball Hill Homes Fla., Inc., 842 So.2d 133, 136 (Fla. 2d DCA 2003) (“[QJuestions of law are reviewed under the de novo standard.”). Moreover, the trial court’s findings are entitled to be affirmed only when there is competent, substantial evidence to support them. Id. Further, “where a contract is clear and unambiguous, the express contract terms may not be varied by resort to extrinsic evidence, including that related to the UCC obligation of good faith or custom and usage.” Caulkins Indiantown Citrus Co. v. Nevins Fruit Co., 831 So.2d 727, 735 (Fla. 4th DCA 2002).

First, Trail failed to provide any evidence to support the trial court’s finding that the metal decking was in a seriously deteriorated condition at the time of contract performance. Therefore, the trial court’s finding in that regard is not supported by competent, substantial evidence and cannot be affirmed.

Second, the trial court found no ambiguity in the language of this contract as a predicate to support its holding that it contained an implied term. It simply accepted Mr. Albritton’s opinion concerning customary practice. “[B]efore a trial court can consider such extrinsic evidence in interpreting a contract, the words used must be unclear such that an ambiguity exists on the face of the contract.” Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995). This contract unambiguously required Peach State to remove the old roof system and install the new Carlisle roof system for a firm, fixed price. Without a finding of ambiguity, the trial court erred in holding that the contract included an implied term based on custom and practice. “Florida courts have consistently declined to allow the introduction of extrinsic evidence to construe such an ambiguity because to do so would allow a trial court to rewrite a contract with respect to a matter the parties clearly contemplated when they drew their agreement.” Id. In Metro Development Group, L.L.C. v. 3D-C & C, Inc., 941 So.2d 11, 14 (Fla. 2d DCA 2006), this court quoted Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955), as follows: “It is well settled that courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.”

We conclude that since Peach State had no obligation under the contract to replace the metal decking, it cannot reasonably be charged with the cost of replacing it now. It is also apparent that without a finding that the Carlisle roof system was itself defective, or defectively installed, Peach State cannot be charged with the cost of removing it and installing yet another new system.

Finally, we address damages. Counsel for Trail acknowledged at oral argument that the claimed date of breach was the completion date for the work done by Peach State, i.e., December 2001. Damages for breach of contract should be measured as of the date of the breach. Grossman Holdings, Ltd. v. Hourihan, 414 So.2d 1037, 1040 (Fla.1982) (“Damages for a breach of contract should be measured as of the date of the breach.”). The trial court erred in holding that damages should be the cost of replacing the entire roof in December 2006, five years after the breach.

We reverse the trial court’s final judgment in favor of Trail and remand for entry of judgment in favor of Peach State. Because we reverse the final judgment, we also reverse the award of attorney’s fees and costs.

Reversed and remanded.

NORTHCUTT, C.J., and DAVIS, J., Concur.