text:
    SARASOTA ESTATE & JEWELRY BUYERS, INC., a Florida corporation, and Haiel A. Suwaity, an individual, Appellants, v. JOSEPH GAD, INC., a New York corporation, Appellee.
    No. 2D09-2090.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 2009.

      Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A., Tampa, for Appellants.
    Susan Hartmann Swartz of Law Office of Stanley R. Swartz, Bradenton, and Michael G. Brown of Michael G. Brown & Associates, Sarasota, for Appellees.
   SILBERMAN, Judge.

Sarasota Estate & Jewelry Buyers, Inc. (“Sarasota Estate”), and Haiel A. Suwaity (“Suwaity”) seek review of the final judgment which awarded Joseph Gad, Inc. (“Gad”), $250,000 plus prejudgment interest, attorneys’ fees, and costs after Sarasota Estate and Suwaity defaulted on a settlement agreement. We affirm the damages award with the exception of the $90,000 in prejudgment interest. Because the prejudgment interest was unliquidat-ed, we reverse and remand for an eviden-tiary hearing on this portion of the damages.

Gad filed suit against Sarasota Estate and Suwaity for money due under a consignment contract and guarantee. Gad asserted alternative claims for open account and account stated. During the course of the litigation, the parties entered into a settlement agreement which acknowledged that Sarasota Estate and Suwaity were indebted to Gad in the principal sum of $250,000. Sarasota Estate and Suwaity agreed to pay Gad monthly installments of $15,000 toward the sum. The agreement provided that no judgment would be entered as long as Sarasota Estate and Su-waity were making the monthly payments. However, in the event of default, Gad was “entitled to judgment, execution, court costs of $360.00, interest at the maximum rate provided by law, and attorneys’ fees of $5,000.00, upon the filing by [Gad] of an Affidavit of Default with the Clerk of the Court, without notice.”

Sarasota Estate and Suwaity failed to pay the first monthly installment by its due date, and Gad filed an affidavit of default. The trial court thereafter entered a final judgment awarding Gad the principal sum of $250,000, plus $90,000 in prejudgment interest, $5,000 in attorney’s fees and $360 in costs. The entire sum was to bear interest at the statutory rate. Sarasota Estate and Suwaity filed a motion for rehearing and to vacate and set aside the final judgment. They asserted that Gad had accepted the monthly payment belatedly and had therefore waived its right to a default judgment. The trial court rejected this argument and denied the motion, and we find no error in that ruling.

We do, however, find error in the award of prejudgment interest without an evidentiary hearing. The award of prejudgment interest amounted to an award of unliquidated damages because the settlement agreement does not provide a method by which the court was to calculate prejudgment interest. See Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983) (“Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.”). A party who defaults has a due process right to notice and an opportunity to be heard regarding the presentation of evidence for a determination of the amount of unliqui-dated damages. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 666 (Fla. 3d DCA 2007); Bowman, 432 So.2d at 663. While the trial court may award liquidated damages without notice, it is fundamental error for the court to award unliquidated damages without providing the required notice and without requiring proof of damages. Cellular Warehouse, Inc., 957 So.2d at 666.

Sarasota Estate and Suwaity argue for the first time on appeal that the settlement agreement did not provide for prejudgment interest because its reference to “interest at the maximum rate provided by law” could only be construed to apply to postjudgment interest. Sarasota Estate and Suwaity were not afforded the opportunity to raise this argument prior to entry of the final judgment because they were denied their due process right to notice and the opportunity to be heard on the amount of unliquidated damages. Accordingly, we reverse the award of prejudgment interest and remand for the court to conduct an evidentiary hearing on the matter. The remainder of the damages award is otherwise affirmed.

Affirmed in part; reversed in part; remanded.

FULMER and VILLANTI, JJ., Concur.

      . The record reflects that the trial court entered the final judgment before Sarasota Es-late and Suwaity made the late payment.


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    Mercedes J. FRANKLIN and David Gantt, Appellants, v. REGIONS BANK, as successor to Union Planters Bank, N.A., Mark Edwards, Ltd., Inc., et al., Appellees.
    No. 4D08-4428.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Rehearing Denied Feb. 3, 2010.
    Richard M. Saccocio, of Law Offices of R.M. Saccocio, P.A., Plantation, and Timothy L. Grice, of Law Offices of Timothy L. Grice, P.A., West Palm Beach, for appellants.
    No brief required for appellees.
   GERBER, J.

The appellants, who are assignees of the right to recover a mortgage foreclosure deficiency, filed a post-foreclosure motion to join the underlying action to seek a deficiency decree. The circuit court denied the motion, stating in its order that it lacked jurisdiction to join the appellants in the action. The court’s order did not provide further detail. This appeal followed. We affirm.

The appellants argue that the circuit court had jurisdiction to join them in the action. The appellants note that, in the foreclosure judgment, the court reserved jurisdiction to enter a deficiency decree. The appellants further rely on section 702.06, Florida Statutes (2008), which provides, in pertinent part:

In all suits for the foreclosure of mortgages ... [,] the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency....

§ 702.06, Fla. Stat. (2008).

We agree that, under section 702.06, the circuit court had the discretion, post-foreclosure, to allow the appellants to join the underlying action to pursue the deficiency decree. However, the appellants have not provided us with a transcript of the hearing before the circuit court to allow us to determine whether the court’s decision was supported by an alternative theory. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”).

From our review of the limited record, we can speculate as to one alternative theory why the circuit court may have denied the motion for what it referred to as lack of jurisdiction. Along with the motion for joinder, the appellants filed a motion for deficiency decree which referenced the mortgagor’s bankruptcy. Perhaps the court believed that, due to the bankruptcy, any action against the mortgagor was automatically stayed.

This alternative theory cannot be dispelled without a transcript of the hearing before the circuit court. Therefore, we are compelled to affirm. Our decision is without prejudice to the appellants’ right under section 702.06 to file a separate action to recover the deficiency, provided that no automatic stay exists due to the mortgagor’s bankruptcy.

Affirmed.

POLEN and MAY, JJ., concur.


author: PER CURIAM.

text:
    Roderick O. MASHBURN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5767.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2009.
    Roderick O. Mashburn, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, WOLF, and LEWIS, JJ., concur.


author: SUAREZ, J.

text:
    Jimmy LESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-423.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and SUAREZ, JJ.
   SUAREZ, J.

Jimmy Lester appeals a conviction and sentence for aggravated battery as a lesser included offense of manslaughter. We affirm.

On October 22, 2006, after a verbal altercation between Lester and the victim, both laborers who were resurfacing a funeral home parking lot, the defendant punched the victim in the side of the face while the victim was bending over and spreading asphalt. The victim fell on the back of his head and lost consciousness. A few days after the incident, the victim went to the hospital with breathing problems and it was discovered that his jaw was fractured. He died three days after being admitted to the hospital due to complications of blunt force trauma according to the medical examiner. The defendant was charged with second-degree murder. At the close of the evidence presented at trial, the defendant moved for judgment of acquittal on second-degree murder. The trial court granted the motion and reduced the charge to manslaughter. After a denial of a motion for judgment of acquittal on the manslaughter charge, the case proceeded to the jury on manslaughter. Both the State and the defense agreed to instructions on the lesser included offenses of aggravated battery, felony battery and battery. No objections to any of the instructions were raised. The trial judge instructed the jury on manslaughter, and, as lesser included offenses, aggravated battery, felony battery and battery. The jury returned a verdict of guilty of aggravated battery as a lesser included offense of manslaughter. The defendant was adjudicated guilty and sentenced as a habitual offender to fifteen years in State prison followed by five years of administrative probation. He now appeals his conviction and sentence. We affirm.

The defendant argues on appeal that the charge of second-degree murder, as alleged in the information, did not include all of the necessary elements of aggravated battery, specifically, the intent to cause great bodily harm, see § 784.045, Fla. Stat. (2006); Fla. Std. Jury Instr. (Crim.) 8.4. Therefore, the defendant contends that the trial court committed fundamental error in instructing the jury on aggravated battery as a lesser included offense. The information charged the defendant with second degree murder. It alleged that the defendant killed the victim by punching him in the face. Killing the victim by punching him in the face sufficiently alleges great bodily harm. To support his argument, the defendant relies on Watkins v. State, 632 So.2d 184 (Fla. 3d DCA 1994). We distinguish Watkins and reject the defendant’s contention.

We have taken judicial notice of the briefs in the Watkins case, and find that there is an error in the opinion. The defense brief and the State’s brief both agree that Watkins was charged with attempted second degree murder. It appears that through typographical error, the word “attempted” was omitted from this court’s opinion, with the result that the opinion incorrectly states that the charge was second degree murder. As quoted in Watkins’ brief, the defendant was charged with attempted second degree murder by “repeatedly striking the head of Chenita Bradham against a tile and/or concrete floor, in violation of 777.04 and 782.04, Fla. Stat.; ...” While the information alleged that the defendant repeatedly struck the victim’s head against a tile or concrete floor, the information did not allege that the victim had sustained great bodily harm or permanent disability. The Watkins panel held that the trial court should not have given a jury instruction on aggravated battery by reason of the defendant’s knowing and intentional causing of great bodily harm because there was no allegation of great bodily harm in the accusatory pleading. Watkins, 632 So.2d at 185. See Andrews v. State, 679 So.2d 859 (Fla. 1st DCA 1996) (where defendant was charged with attempted first degree murder by stabbing the victim with a knife, court should not have given an instruction on the lesser offense of aggravated battery by causing great bodily harm, because the information contained no allegation that the defendant had caused great bodily harm).

With the foregoing clarification, it is clear that Watkins is inapplicable to the present case. In the present case, unlike Watkins, the victim died. The information specifically alleged that the defendant killed the victim by punching him in the face. An allegation that the defendant killed the victim sufficiently alleges great bodily harm for purposes of the aggravated battery statute. For that reason, there was no error, and we need not address the test for fundamental error contained in Ray v. State, 403 So.2d 956 (Fla.1981).

Affirmed.

      . The information stated:
      JIMMY LEE LESTER, on or about October 22, 2006, in the County and State aforesaid, did unlawfully, feloniously and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill FRANCES GROVER, a human being, by PUNCHING HIM IN THE FACE, in violation of section 782.04(2), Fla. Slat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

      . The State did not request, and the trial court did not give, an instruction stating that the defendant could be found guilty of aggravated battery by reason of using the tile or concrete floor as a deadly weapon. Id..; see § 784.045(l)(a)2., Fla. Stat.

      . No argument has been made that it was impermissible to instruct on aggravated battery as a lesser included offense of manslaughter. “Lesser included offenses are determined on the elements of the offenses, not on the penalties attached.” Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008) (citing Sanders v. State, 944 So.2d 203 (Fla.2006)); see also Michaels v. Swanson, 403 So.2d 1023 (Fla. 2d DCA 1981) (holding that aggravated battery is a lesser included offense of manslaughter).


text:
    Anthony DAVIS, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-6136.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2009.
    Anthony Davis, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    E.I., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4971.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

E.I. appeals his adjudication of delinquency and resulting sentence for one count of attempted tampering with physical evidence, contending that his statements to police should have been suppressed and that his motion for judgment of dismissal should have been granted because the State did not present a prima facie case of attempted tampering. We agree that the State did not present a prima facie case of attempted tampering. Therefore, we reverse E.I.’s adjudication and sentence and remand for discharge.

The evidence presented at E.I.’s adjudicatory hearing established that E.I. was a passenger in a pickup truck that was being driven in Plant City after midnight on June 13, 2008. Plant City police officer Ernest Ward had just completed a traffic stop on another vehicle when he noticed the pickup truck drive by and saw that its tag light was not working. Officer Ward decided to stop the pickup truck for this traffic infraction.

Officer Ward pulled directly behind the pickup truck and activated his lights and siren. As the truck pulled into a gas station and started to slow down, Officer Ward saw E.I. throw an item out of the passenger window. After the truck stopped, Officer Ward located the item that had been thrown because it was clearly visible on the hard surface of the gas station parking lot. The recovered item was a package containing three small baggies that each contained a substance that field-tested positive as methamphetamine.

In a post-Miranda statement, E.I. told the police that when Officer Ward pulled in behind the pickup truck, the driver of the truck removed the package of methamphetamine from his pocket, handed it to E.I., and told E.I. he didn’t want the police to find the package. At the driver’s direction, E.I. threw the package out the truck window. E.I. made no statements about his intent in throwing the package.

E.I. was not charged with possession of the methamphetamine; instead, he was charged with attempted tampering with evidence pursuant to section 918.13, Florida Statutes (2008), and section 777.04(1), Florida Statutes (2008). Section 918.13 provides, in pertinent part:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, coitceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation[.]

(Emphasis added.) Section 777.04(1) provides that a person attempts to commit a crime when the person “does any act toward the commission of such offense, but fails in the perpetration.”

In interpreting the tampering statute, this court has held that the simple act of throwing a bag of cocaine out of a car window is generally not sufficient to constitute the offense of tampering with evidence. See Boice v. State, 560 So.2d 1383, 1384 (Fla. 2d DCA 1990). There, this court noted that the act of tossing away the baggie in plain view of the officers did not conceal the cocaine. Id. And while Boice had removed the cocaine from his hand, he had not removed it from the immediate area of his arrest. Id. Thus, this court stated that it did “not believe that the legislature intended the simple act of abandoning a bag of crack cocaine at the scene of an arrest, in the clear sight of a law enforcement officer, to constitute the commission of this additional third-degree felony.” Id. at 1384-85.

Under the reasoning of Boice, E.I.’s act of tossing the driver’s package of methamphetamine out the window — as if engaged in an illicit game of “hot potato” — in the clear sight of Officer Ward would not constitute attempted tampering. While E.I. was clearly trying to disassociate himself from the package, there is nothing about this act under the circumstances presented here that shows that E.I. was trying to alter, destroy, or conceal the package. Further, while E.I. did remove the package from his hand, he did not remove it from the scene of the traffic stop. Thus, this act was factually and legally nothing more than abandonment, and the trial court should have granted E.I.’s motion for judgment of dismissal.

As the State correctly points out on appeal, the supreme court criticized this court’s Boice opinion in State v. Jennings, 666 So.2d 131, 133 (Fla.1995). However, the supreme court did not overrule Boice. Instead, the court stated that it disagreed with Boice only “to the extent it can be read to mean that tossing evidence away in the presence of a law enforcement officer does not, as a matter of law, constitute a violation of the statute.” Id. Instead, the supreme court held that whether such an act amounts to tampering or attempted tampering will depend on all of the circumstances. Id. However, the court did not discuss what those circumstances might be.

In examining both Jennings and pre- and post-Jennings cases, it appears that the offense of tampering is committed only when the defendant takes some action that is designed to actually alter or destroy the evidence rather than just removing it from his or her person. For example, in Jennings, the defendant put cocaine rocks into his mouth and swallowed them. Id. at 132. The rocks were never recovered. Id. Thus, the evidence was, in fact, destroyed and not available, and this act could constitute tampering with evidence. Id. at 133 (“[Sjwallowing an object clearly constitutes altering, destroying, concealing, or removing a ‘thing’ ....”); see also A.D.J. v. State, 813 So.2d 127 (Fla. 5th DCA 2002) (affirming conviction for tampering based on defendant’s act of swallowing the drugs). Because swallowing an item can constitute tampering, attempting to swallow an item can constitute attempted tampering. See, e.g., Morris v. State, 989 So.2d 753, 754 (Fla. 2d DCA 2008); A.F. v. State, 850 So.2d 667 (Fla. 4th DCA 2003).

Similarly, in Hayes v. State, 634 So.2d 1153, 1154 (Fla. 4th DCA 1994), the defendant dropped a baggie of cocaine into a drainage outlet as he was fleeing from police. The court found that this action was affirmatively intended to destroy or alter the evidence itself and thus could support a conviction for tampering. Id.; see also Anderson v. State, 996 So.2d 256 (Fla. 1st DCA 2008) (holding that defendant’s act of throwing substance into a urinal could support a conviction for attempted tampering with evidence); McKenzie v. State, 632 So.2d 276 (Fla. 4th DCA 1994) (noting in passing that flushing drugs down a toilet could constitute tampering with evidence).

In contrast, in Evans v. State, 997 So.2d 1281 (Fla. 4th DCA 2009), and Obas v. State, 935 So.2d 38 (Fla. 4th DCA 2006), the defendants threw items onto the ground as officers approached for a stop. In Obas, the Fourth District noted that Jennings had not overruled Boice but had simply held that Boice was wrong “to the extent it held that tossing evidence away cannot constitute tampering as a matter of law.” Obas, 935 So.2d at 39. The Fourth District noted that each case must be decided on its own facts, and there must be some evidence of a specific intent to alter, destroy, or conceal the evidence. Evans, 997 So.2d at 1284. In the absence of such evidence, the State proves only abandonment, not tampering. Id.

The State relies primarily on State v. Harper, 800 So.2d 708 (Fla. 5th DCA 2001), arguing that its facts are indistinguishable from those in this case and that its holding mandates affirmance here. In that case, Harper was the driver of a vehicle that was stopped for a traffic infraction. Id. As Harper slowed for the stop, he handed marijuana and a marijuana pipe to his passenger and instructed the passenger to throw both items out the window. Id. After the State charged Harper with tampering, Harper moved to dismiss the charge, arguing that the information did not allege a prima facie case of guilt. Id. The trial court granted the motion to dismiss based largely on Boice, but the Fifth District reversed, noting that Boice was not controlling in light of Jennings.

The State’s reliance on Harper to support an affirmance in this case is misplaced for two reasons. First, Harper involved a motion to dismiss rather than a motion for judgment of dismissal. To the extent that a defendant’s intent is relevant to the issue of whether a specific act constituted tampering, that intent is not properly resolved on a motion to dismiss. See, e.g., State v. Jenkins, 522 So.2d 890, 890 (Fla. 2d DCA 1988) (holding that intent is not ordinarily determined on a motion to dismiss); State v. Arnal, 941 So.2d 556, 559 (Fla. 3d DCA 2006) (same); State v. Atkinson, 490 So.2d 1363 (Fla. 5th DCA 1986) (same). Here, however, E.I. did not raise the issue in a motion to dismiss but rather in a motion for judgment of dismissal at the close of the State’s case. At that point, the issue of whether the State had presented sufficient evidence to establish E.I.’s intent was properly before the trial court.

Second, Harper was the driver who gave the instructions to his passenger to dispose of the evidence. Harper’s statements about disposing of the evidence provided some evidence of his intent to destroy or conceal that evidence. In contrast, E.I. in this case was the passenger who was given instructions by the driver. E.I.’s intent cannot be inferred from the statements of the driver. Thus, the decision in Harper does not control the outcome here.

When considered in light of all of these cases, it is clear that E.I.’s adjudication for attempted tampering must be reversed. The most that can fairly be determined from the facts is that E.I. followed the driver’s instructions and attempted to abandon the methamphetamine in plain view of the officers. The State presented no evidence that E.I. intended to alter or destroy the methamphetamine. While the State’s evidence might arguably show that the driver of the pickup truck intended to conceal the methamphetamine, the State presented no evidence that E.I. shared this intent. In the absence of such evidence, the State failed to present a prima facie case of attempted tampering.

When the State does “not present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper.” E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). Here, because the State did not present a prima facie case of attempted tampering, E.I.’s motion for judgment of dismissal should have been granted. Accordingly, we reverse E.I.’s adjudication for attempted tampering with physical evidence and remand for discharge.

Reversed and remanded for discharge.

FULMER and NORTHCUTT, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: SCHWARTZ, Senior Judge.

text:
    INDUSTRIAL AFFILIATES, LTD., Petitioner, v. Hilda FISH, Respondent.
    No. 3D09-1979.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      Greenberg Traurig and Paul B. Ranis and Kristina L. Arnsdorff, Fort Lauder-dale; Greenberg Traurig and Elliot H. Scherker and Brigid F. Cech Samóle, Miami, for petitioner.
    Sheldon Engelhard, Boca Raton, for respondent.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

For reasons unknown, the circuit court, appellate division, per curiam denied review of a final order of the Miami-Dade County Equal Opportunity Board awarding damages to the employee, Ms. Fish, in an alleged employment discrimination case. The record conclusively demonstrates, however, that Ms. Fish was not discharged from her employment because she was in the class of married persons protected by the Florida Civil Rights Act of 1992. See §§ 760.01-760.11, Fla. Stat. (2009). Rather, she was terminated after years of service because she married Mr. Fish, one of three hands-on partners who operated her employer. It is established that a valid discrimination claim cannot arise on the basis of “the specific identity ... of an individual’s spouse.” Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1155 (Fla.2000) (holding that term “marital status” for discrimination purposes “means the state of being married, single, divorced, widowed, or separated, and does not include the specific identity or actions of an individual’s spouse”); see also Burke-Fowler v. Orange County, Fla., 447 F.3d 1319 (11th Cir.2006).

The decision under review therefore represents a clear departure from the essential requirements of the law resulting in a miscarriage of justice and is consequently quashed.

Certiorari granted.

      . The fact that she was replaced by another married woman itself demonstrates that she could not establish a prima facie case of discrimination on this ground. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763 (11th Cir. 2005).


text:
    Evelyn K. MORRISSETTE, Appellant, v. NORWEGIAN CRUISE LINE LIMITED d/b/a Norwegian Cruise Line, and/or Norwegian Cruise Line America, Appellee.
    No. 3D07-2162.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      The Ferraro Law Firm and Dino G. Galardi, Coral Gables, for appellant.
    Mase Lara Eversole and Curtis J. Mase, Rachel S. Cohen and Joel V. Lumer, Miami, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Although Ms. Morrissette timely brought this action on May 21, 2007, for personal injuries suffered as a passenger on board the Norwegian Sun, “within one (1) year from the day when the injury ... occurred,” on June 4, 2006, as the ticket provided, she did so in the circuit court of Miami-Dade County, rather than, as the contract also required, “before the United States District Court for the Southern District of Florida.” For that reason, it was dismissed below. We affirm. See Leslie v. Carnival Corp., 22 So.3d 561 (Fla. 3d DCA 2008), on rehearing en banc, 22 So.3d 567 (Fla. 3d DCA 2009)

Ms. Morrissette has lost nothing substantively by this decision because, on the authority of the equitable tolling principle applied in Booth v. Carnival Corp., 522 F.3d 1148 (11th Cir.2008), see Carnival Corp. v. Booth, 946 So.2d 1112 (Fla. 3d DCA 2006), the federal District Court has denied Norwegian’s motion to dismiss her identical, “protective” action in that court, even though it was filed there on July 19, 2007, after the one year period had expired:

The Eleventh Circuit in Booth held that, under nearly identical circumstances to the instant case, equitable tolling was appropriate:
Booth initially timely filed suit in a state court of competent jurisdiction. Despite the state courts’ eventual ruling that venue was improper, which ruling resulted in dismissal, Booth in no way slept on his claims against Carnival. Even though Booth filed the instant federal suit after the contractual limitation period had run, Carnival was aware within the limitation period that Booth was actively pursuing his cause of action. The underlying policy of repose, reflected in the agreed-upon limitation period, and designed to assure fairness to Carnival, is not violated by equitable tolling in this case. To the contrary, the interests of justice are best served here ... by allowing the parties to resolve Booth’s claims on the merits.
Id. at 1152.

Morrissette v. Norwegian Cruise Line Ltd., No. 07-21866, slip op. at 2 (S.D.Fla. July 23, 2009) (quoting Booth v. Carnival Corp., 522 F.3d 1148, 1152 (11th Cir.2008)).

Affirmed.


text:
    Lewis SUTTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6179.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.

      Lewis Sutton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Roy M. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6163.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.
    Roy M. Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


author: MAY, J.

text:
    Mark MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2055.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

    Rehearing Denied Feb. 8, 2010.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, 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.
   MAY, J.

Technology confronts Florida’s statutory scheme for discovery of cellular telephone records in this appeal from the defendant’s conviction and sentence for burglary of a dwelling, robbery, and two counts of battery, all while armed with a deadly weapon. The defendant makes several arguments, none of which merit a reversal. We write to address the trial court’s admission of historical cell phone site evidence.

The incident giving rise to the crime involved a home invasion robbery of an elderly couple. As a result of the robbery, the male victim was taken to the hospital. The female victim remained home, but suffered a heart attack later that afternoon. The defendant was apprehended after he admitted the crime to his daughter, who then contacted her mother and called 911.

Among other evidence, the State obtained the defendant’s historical cell site information by requesting an Order Authorizing Disclosure of Cellular Telephone Billing Records and Cell Site Number and Location. Initially, law enforcement obtained the records through an investigative subpoena. The defendant moved in limine or to suppress the evidence because the State had not complied with section 934.23, Florida Statutes (2007). The court suppressed the information, but allowed the State to obtain a proper court order.

When the State renewed the request for historical cell site records, the defense objected and renewed its motion to suppress, citing a recently published opinion, In re Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records, 534 F.Supp.2d 585 (W.D.Pa.2008). After reviewing Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994), the trial court found the language in section 934.23(4)(a), Florida Statutes, mirrored the language in 18 U.S.C. § 2701 et seq., and allowed the State a second opportunity to obtain the records.

At trial, defense counsel objected to the information on relevancy grounds. The court overruled the objection. This paved the way for testimony concerning the location of the cell phone and its use by the defendant around the time of commission of the crime.

The defendant argues on appeal that the court erred in permitting the State to obtain and introduce the defendant’s historical cell site records because it originally failed to obtain the records, pursuant to section 934.23, Florida Statutes. He further argues that the evidence should be excluded because the State essentially conducted a warrantless search and seizure of his phone records to find his historical physical location, in violation of his Fourth Amendment rights.

Since there are no facts in dispute, we review the legal issue de novo. Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001).

“Chapter 934 protects against unauthorized interception of oral, wire, or electronic communications” and is “strictly construed and narrowly limited.” State v. Jackson, 650 So.2d 24, 26 (Fla.1995). Section 934.23 requires an officer to obtain a wai'rant or seek a court order when obtaining customer or subscriber records from an electronic communication provider. § 934.23(4)(a) 1., 2., Fla. Stat. A court may issue the order under subsection (5), only if the “officer offers specific and artic-ulable facts showing that there are reasonable grounds to believe the contents of a wire or electronic communication or the records of other information sought are relevant and material to an ongoing criminal investigation.” § 934.23(5), Fla. Stat. “[C]ontents of a communication,” however, are not obtainable under subsection (4)(a). § 934.23(4)(a), Fla. Stat. This section mimics subsections 2703(c) and (d) of the Stored Communications Act (SCA). 18 U.S.C. § 2703.

Case law concerning historical cell site information is relatively new and unsettled. The Fifth District Court of Appeal has held that obtaining phone numbers from cell phone service providers is not a Fourth Amendment violation. See Figueroa v. State, 870 So.2d 897 (Fla. 5th DCA 2004). Yet, no Florida court has addressed the prerequisite for obtaining historical cell site information.

In a case of first impression, the District Court for Massachusetts held that historical cell site information was obtainable through a court order issued pursuant to subsections 2703(c)(1)(B) and (d) of Title 18 of the United Stated Code. In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F.Supp.2d 76 (D.Mass.2007) (reversing a decision by the Magistrate Judge which required a warrant to obtain historical cell site information).

The district court applied a three-part test to determine if section 2703 provided a proper means to obtain the information. First, the court determined that a cell phone service provider fits within the statutory definition of a “provider of electronic communication servicefs],” as defined by the SCA. Id. at 79 (quoting 18 U.S.C. § 2510(15)). Second, the court determined that historical cell site information was “a record or other information pertaining to a subscriber to or customer of’ an electronic communications service because it contained “data specific to the handling of a customer’s call.” Id. at 79-80 (quoting 18 U.S.C. § 2703(c)(1)). Third, the court determined that the information was not “content” information because the location of a cell tower disclosed nothing about the “substance, purport, or meaning” of the call. Id. at 80 (quoting 18 U.S.C. § 2510(8)). Lastly, the court found that because historical cell site information disclosed only information in the past and not the current location of the defendant, it did not implicate the Fourth Amendment. Id. at 80-81.

We now adopt the reasoning of the District Court of Massachusetts because our statutory scheme is so similar to the federal statute. We hold that historical cell site information is not content-based. The user of a cell phone has no expectation of privacy in those records. See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). And, because historical cell site information discloses only the defendant’s past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections. See United States v. Knotts, 460 U.S. 276, 108 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In short, law enforcement need only comply with the provisions of section 934 to obtain historical cell site information.

The defendant also argues that the trial court erred in allowing the State a second chance to comply with the statute and that the second application failed to contain the statutorily required “specific and articulable facts.” We disagree.

In Hunter, the Fifth District held that the State could use an investigative subpoena to compel disclosure of medical records. 639 So.2d at 74. In that case, the trial court quashed the original subpoena because it had been obtained without notice to the patient, but the State was permitted to obtain the records by requesting a second subpoena after notice. Id. at 73. Here, the trial court relied on Hunter to allow the State a second opportunity to obtain the historical cell site records. We find no error.

We further find that the affidavit presented in this case, while a modicum of detail, clearly provided the court with sufficient “specific and articulable” facts to allow the trial court to decide whether to order production of the records. The affidavit indicated that the “Cell Site Number and Location will show where he was located at the time he was making and receiving” phone calls “within ½ hour prior to and subsequent to the time of the crimes.” The defendant lived in West Palm Beach; the crime occurred in Pompano Beach. He made phone calls to his ex-wife during the night and morning of the crime. The cell site information was relevant to place the defendant in the area near the crime at the time of the crime. Additionally, given the eyewitness testimony, defendant’s admission, and physical evidence, any error would have been harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

For these reasons, we find no error in the admission of the historical cell site information. Therefore, we affirm.

Affirmed.

DAMOORGIAN and CIKLIN, JJ., concur.

      . Historical cell site information involves records that identify the relay tower or towers through which a customer's calls are handled, thereby identifying the location from which a call is made. See In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F.Supp.2d 76, 78 (D.Mass.2007).

      . The defendant relied on a contrary opinion, In re Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records, 534 F.Supp.2d 585 (W.D.Pa.2008). There, the court held the government must satisfy the Fourth Amendment’s probable cause requirement to obtain historical cell site information. Id. at 591. In doing so, the court aligned itself with the minority view that historical cell phone location information may not be obtained with a section 2703(d) order.


author: WOLF, J.

text:
    Isaac Devon ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3886.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Isaac Devon Rogers, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   WOLF, J.

The issue is whether a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 is timely when filed within 2 years of an amended final judgment and which raises issues which did not exist prior to the entry of the amended final judgment. We determine the underlying motion is timely and remand to the trial court to address appellant’s motion.

On October 11, 2004, following a jury trial, appellant was sentenced to 25 years’ imprisonment with a 10-year mandatory minimum for carjacking with a firearm or deadly weapon and armed kidnapping with a deadly weapon. Appellant’s convictions and sentences were affirmed per curiam on direct appeal. Rogers v. State, 913 So.2d 605 (Fla. 1st DCA 2005) (unpublished table opinion). The mandate was issued on November 16, 2005. Thereafter, appellant filed a motion alleging ineffective assistance of appellate counsel, and this court vacated the armed kidnapping conviction and remanded for a new trial. Rogers v. State, 935 So.2d 639, 640 (Fla. 1st DCA 2006). Upon remand, the State entered the nolle prosequi of the armed kidnapping charge. On June 5, 2007, a judgment was entered without any further resentencing.

On February 9, 2009, appellant filed the instant rule 3.850 motion. The court summarily denied appellant’s motion. Appellant alleged, that after his armed kidnapping charge was dismissed, his Criminal Punishment Code scoresheet was never amended and he was never resentenced for the remaining conviction of carjacking. Appellant further alleged the armed kidnapping conviction was still listed as the primary offense and his scoresheet included 116 points assessed for this conviction; and, therefore, because this charge had been dismissed, he should be resentenced using a corrected scoresheet.

The critical issue is whether appellant’s 3.850 motion was timely filed. If it was, this case is strikingly similar to President v. State, 981 So.2d 673 (Fla. 4th DCA 2008). In President, appellant’s score-sheet contained points for three convictions which were subsequently reversed and then nolle prossed by the State. The appellant in that case alleged he would not have received the same sentence for his remaining conviction but for the erroneous assessment and the record did not conclusively show the trial court would have imposed the same sentence using a correct scoresheet. The Fourth District reversed and remanded for an evidentiary hearing or for attachment of portions of the record establishing the court would have imposed the same sentence even under the corrected scoresheet. Id.

If appellant’s 3.850 motion was untimely and treated as a Florida Rules of Criminal Procedure 3.800(a) motion, he would not be entitled to relief because the same sentence could have been imposed on the basis of a corrected scoresheet. See Brooks v. State, 969 So.2d 238 (Fla.2007). However, the motion in the instant case was filed within 2 years of the amended final judgment.

Florida Rule of Criminal Procedure 3.850(b) reads “[n]o other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence becomes final.... ” Where a court of this state grants relief to a defendant which ultimately results in an amended judgment being entered, as to any new issues raised by entry of the amended judgment, the time period for filing a rule 3.850 motion begins to run at the time of the amended judgment.

We, therefore, reverse and remand for an evidentiary hearing or for attachment of portion of the record establishing that appellant is not entitled to relief.

HAWKES, C.J., and DAVIS, J., concur.

      . We would note that footnote 3 in Joseph v. State, 835 So.2d 1221, 1222 (Fla. 5th DCA 2003), indicated the 2-year limitation was not tolled by resentencing. Joseph is inapplicable in this case for two reasons: 1) in the instant case we are not dealing with a resentencing but an actual deletion of a determination of guilt of one charge contained in the initial final judgment; and 2) Joseph did not specifically address what would happen if new issues were raised by the resentencing.


text:
    Carmen HUNNICUTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1283.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Earl M. Johnson, Jr., of the Law Offices of Earl M. Johnson, Jr., Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989) (holding that lack of access to a law library does not show good cause for failure to timely file a notice of appeal).

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    Christopher SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2346.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Christopher Simmons, pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Christopher Simmons appeals an order denying his petition to remove the requirement that he register as a sexual offender which was filed pursuant to section 943.04354, Florida Statutes (2008). The trial court erroneously denied the petition based upon a finding that, because Simmons had been adjudicated guilty of violating section 800.04, Florida Statutes (2000), he was ineligible for relief. See § 943.04354(l)(a) (permitting a defendant to seek relief if he was convicted of violating section 800.04 or if adjudication of guilt is withheld). We reverse and remand for further proceedings.

Section 943.0435, Florida Statutes (2000), provides that a defendant convicted of violating section 800.04, as well as other enumerated offenses, is automatically designated a sexual offender and required to comply with the registration requirements of the statute. However, section 943.04354 permits the defendant to petition the sentencing court for removal from the sex offender registry if he satisfies the criteria of that statute. Miller v. State, 17 So.3d 778, 780 (Fla. 5th DCA 2009). Here, the trial court erroneously concluded Simmons was not entitled to relief because he had been adjudicated guilty of violating section 800.04 and did not consider the other requirements of the statute. Accordingly, we must reverse for further proceedings. Upon remand, should an evidentiary hearing be held, Simmons should be given an opportunity to participate. Scott v. State, 717 So.2d 908, 912 (Fla.1998).

REVERSED and REMANDED.

BARFIELD, VAN NORTWICK, and CLARK, JJ., concur.


author: COHEN, J.

text:
    R.J.L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-149.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Robert Wesley, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Appellant challenges the trial court’s order entered after a review hearing that deferred, at Appellant’s request, the payment of court costs imposed pursuant to adjudicatory and disposition hearings conducted over six months earlier. This order is not a final, appealable order under Florida Rule of Appellate Procedure 9.145(b). Further, any error regarding the payment deferral was not properly preserved and cannot be said to be adverse or prejudicial when entered pursuant to Appellant’s request. In any event, Appellant’s jurisdictional objection below was incorrect because his probation term, revoked and terminated in April 2008 for a violation of probation, was imposed anew for one year.

The trial court’s order also denied appointment of appellate counsel. Although this issue is moot because Appellant obviously has counsel, we observe that Appellant is entitled to appellate counsel under section 985.033(1), Florida Statutes (2007). The trial court is cautioned that Florida and federal law entitle the accused to the appointment of counsel.

Because the appeal concerns a nonfinal, non-appealable order and a moot issue, see Carlin v. State, 939 So.2d 245, 247 (Fla. 1st DCA 2006), we dismiss the appeal.

DISMISSED.

PALMER and TORPY, JJ., concur.


author: HAWKES, C.J. BENTON, J.,

text:
    Sean G. HAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2652.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Sean G. Hagan, pro se, Appellant.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, C.J.

The defendant challenges the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record conclusively refutes his claim of entitlement to additional jail credit, we affirm.

In a plea agreement, the defendant expressly stipulated that he would receive jail credit for time served “since October 2, 2007” in exchange for his guilty plea. He now claims he did not knowingly waive his right to receive credit for time served pri- or to October 2, 2007.

The inclusion of specific language indicating the specific date from which the defendant’s credit for time served would count towards his current sentence is sufficient to demonstrate he knowingly and voluntarily waived his right to have any credit he may have accrued prior to that date count towards his current sentence. See Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008) (holding “a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim to credit for time served before that date”); see also Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008) (holding a stipulation in a plea agreement for jail credit from a specific date waives any claim to credit for prior time served).

Accordingly, we affirm the trial court’s denial of appellant’s Rule 3.800(a) motion to correct illegal sentence.

AFFIRMED.

THOMAS, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

The plea agreement in the present case does not demonstrate a voluntary relinquishment of a known right. The phrase “Credit time served since 10/2/07” in the plea agreement, the sole foundation on which the majority opinion rests, is entirely consistent with the view that the parties believed — as was in fact the case — that the appellant had already received credit for the time he had spent in jail before October 2, 2007.

Appellant filed a verified motion to allow correct jail credit in April of 2009 alleging the dates he had been incarcerated and that he was “entitled to a total of 449 days’ Credit for County Jail time Served prior to the aforementioned Sentence.” The trial court entered the order under review, styled order denying motion to allow correct jail credit, stating:

The Court has reviewed defendant’s Motion to Allow Correct Jail Credit and finds that on September 4, 2008, defendant expressly agreed to “credit time served since 10/2/07.” Attached hereto is a copy of defendant’s Admission of V.O.P. and Negotiated Sentence — Form 2.

In a motion for rehearing, appellant asserted that “the court apparently overlooked that the Defendant only agreed that he is entitled to jail credit starting on 10/2/07, and did not agree or waive his additional jail credit ... as part of the plea agreement.” After the motion for rehearing was denied, this appeal followed.

At issue is whether the appellant waived credit for the 84 days he spent in jail before he was originally sentenced to time served and released on probation on June 14, 2007. That he was released at that time shows that he actually received the credit then. Later when his probation was revoked, he signed a plea agreement which recited:

My attorney, the prosecutor and I have negotiated my sentence in this case in that the prosecutor will recommend to the Judge of this Court that I be sen-fenced to: Probation terminated and revoked, sentenced to 30 mos. Dep’t Corrections, costs, fines, fees converted to judgment. Credit time served since 10/2/07.

He had been apprehended on October 2, 2007, while on probation. He spent the following year in jail, and was still in custody when his probation was revoked on September 28, 2008. Upon revocation of probation, he was sentenced to thirty months in prison with credit for 365 days in jail, but with no credit for the time he had spent in jail between his initial arrest on March 24, 2007, and his initial sentencing on June 14, 2007.

By statute a defendant is entitled to “credit for all of the time she or he spent in the county jail before sentence.” § 921.161(1), Fla. Stat. (2006). Unless it would result in a sentence in excess of the statutory maximum, see Adams v. State, 901 So.2d 275, 277 (Fla. 5th DCA 2005) (“A defendant cannot by a plea agreement accept a sentence that exceeds the statutory maximum.”); Collins v. State, 697 So.2d 1305, 1307-08 (Fla. 4th DCA 1997) (“Even with a defendant’s assent, the court is without jurisdiction to impose a sentence in excess of the statutory maximum.”), however, credit for time served may be waived as part of a plea agreement. See Prangler v. State, 470 So.2d 105, 106 (Fla. 2d DCA 1985); Epler v. Judges of the Thirteenth Judicial Circuit Hillsborough County, 308 So.2d 134, 135 (Fla. 2d DCA 1975). But, for any such waiver to be effective, “the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time.” Reed v. State, 810 So.2d 1025, 1027 (Fla. 2d DCA 2002).

Under our cases, “the record must demonstrate a clear and knowing waiver of jail credit in order to refute a later claim for additional credit.” Cary v. State, 997 So.2d 423, 424 (Fla. 1st DCA 2008) (citation omitted). In Cary, the trial court denied a claim for additional jail credit because defense counsel had stipulated at sentencing that 178 days was the correct amount of jail credit, but the Cary court reversed the denial, holding that the record did not establish that Cary had clearly and knowingly waived his entitlement to additional credit. See Murphy v. State, 930 So.2d 794, 796 (Fla. 1st DCA 2006) (holding the record must establish a “clear and knowing waiver of entitlement to additional jail credit”).

We have consistently — and recently— held that a defendant’s stipulation even to a specific number of days’ jail credit does not preclude the award of additional credit, in the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished the right. See Velasquez v. State, 11 So.3d 979, 980 (Fla. 1st DCA 2009) (concluding that the plea agreement, which called for Velasquez to receive 100 days of credit, was insufficient to demonstrate that he “was aware of an entitlement to additional credit and voluntarily relinquished that right as part of his plea”); Giggetts v. State, 5 So.3d 756, 757 (Fla. 1st DCA 2009) (reversing and remanding for further consideration because — although the “trial court attached a copy of the plea agreement and a copy of the plea transcript, both of which indicated the appellant stipulated that he would receive 698 days of credit” — “the plea agreement and plea transcript do not establish that, as part of his plea, he knowingly waived any additional credit which he may have been due. A waiver of jail credit cannot be shown merely by a defendant’s stipulation to a certain amount of credit in the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right.”). See also Davis v. State, 968 So.2d 1051, 1052 (Fla. 5th DCA 2007) (concluding that written plea agreement that stated “[cjredit for time served as of 7/31/2006 is 1,531 days” was not conclusive evidence that defendant knowingly and voluntarily waived entitlement to any additional credit he was owed). The record does not support the majority opinion’s reading of the plea agreement as an intentional relinquishment — a knowing “disgorgement” — of credit for jail time already awarded.

We have said that, in the absence of a record demonstrating waiver, a sentence which fails to award credit for all jail time the defendant has served is illegal:

Defendants may waive entitlement to previous jail or prison credit. See Griffin v. State, 838 So.2d 1218, 1220 (Fla. 3d DCA 2003); State v. Richardson, 766 So.2d 1111, 1112 (Fla. 3d DCA 2000). However, in the absence of such a waiver, the failure to award credit results in an illegal sentence. See Beshara v. State, 736 So.2d 30, 31 (Fla. 4th DCA 1999). Such a waiver will not be presumed.

Haines v. State, 851 So.2d 831, 832 (Fla. 1st DCA 2003). Because the record demonstrates no waiver here, the failure to award credit for all the time appellant has spent in jail resulted in an illegal sentence.

The majority opinion’s reliance on Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008), and Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008), is misplaced, to the extent these decisions conflict with our own decisions. See Velasquez, 11 So.3d at 980; Giggetts, 5 So.3d at 757. Since deciding Joyner and Johnson, moreover, the Third District has stated:

Absent: (1) clear record evidence of an express waiver of entitlement to credit time served by a defendant in his plea colloquy, see, e.g., Troutman v. State, 985 So.2d 1167 (Fla. 3d DCA 2008); Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005); (2) clear record evidence revealing a defendant understood he was waiving the credit time served in question as part of his new sentence, see, e.g., Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008); or (3) clear record evidence revealing that applying the credits to which a defendant now claims entitlement would lead to an absurd result clearly not within the contemplation of the parties at the time of sentencing, see, e.g., Rivera v. State, 954 So.2d 1216 (Fla. 3d DCA 2007); Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004) (Cope, J., concurring), a defendant is entitled to credit for the time he served on the original split sentence. See Isaac v. State, 992 So.2d 304 (Fla. 3d DCA 2008); Brownlee v. State, 899 So.2d 341 (Fla. 3d DCA 2005); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000).

Reddix v. State, 15 So.3d 614, 616-17 (Fla. 3d DCA 2009) (footnote omitted). To like effect, the Second District has explained that “the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served.... [A] defendant should not lose credit for jail time actually served due to a mistake by the defendant, defense counsel, or the State.” Reed, 810 So.2d at 1027.

Nothing in the present record demonstrates that the appellant meant to waive any credit for time he had served in jail when he entered into the plea agreement. The trial court’s summary denial of appellant’s post-judgment motion should be reversed, and the matter should be remanded for further proceedings.

      . Styled "Motion to Allow Jail Credit,” appellant’s motion indicates it was filed pursuant to section 921.161(1), Florida Statutes, which provides that "tire court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.” Citing State v. Mancino, 714 So.2d 429, 430 (Fla.1998), appellant avers that "a claim of credit for jail time served is cognizable in a rule 3.800 motion to the extent that court records reflect an undisputed entitlement to credit and a sentence that fails to grant such credit.” Of course, "jail credit claims are [also] cognizable in motions filed pursuant to rule 3.850.” Murphy v. State, 930 So.2d 794, 796 (Fla. 1st DCA 2006). See, e.g., Hines v. State, 4 So.3d 726, 727 (Fla. 4th DCA 2009) ("Hines appeals the summary denial of a rule 3.850 motion and the denial of a rule 3.800(a) motion. Both motions seek an additional 193 days' credit for time spent in Brevard County jail after he was arrested on Broward County charges. Because he has stated a sufficient claim that is not refuted by the attached records and because it appears that with the additional credit he would be entitled to release, we reverse and remand for a prompt evidentiary hearing.”). Appellant's sworn motion was filed within two years of the trial court's imposition of sentence.

      . Joyner is factually distinguishable. In Joyner, the printed form plea agreement contained the following language:
      3. I understand and agree that as part of my plea bargain I will be receiving the following credit for time seived (check one and fill in as appropriate):
      0 From 11-29, 2006 to 2-15, 2007
      □ _days credit for time served
      □ all credit for time served
      □ no credit for lime served
      (Emphasis in original.) The form was signed by the defendant, defense counsel, the assistant state attorney, and the judge.
      988 So.2d 670, 672 (Fla. 3d DCA 2008) (footnote omitted). The plea agreement indicates that the option "all credit for time served” was not selected. Id.

      The Johnson opinion does not reveal the terms of Johnson's plea agreement but the majority opinion in Reddix v. State, 15 So.3d 614, 617 n. 3 (Fla. 3d DCA 2009) rejected Joyner and Johnson as "inapposite” because the plea agreements in both cases "included written waivers of credit for time served.”


text:
    Ivory ARNOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4458.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Ivory Arnold, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The Circuit Court in and for Taylor County is directed to issue an order on the motion to correct illegal sentence now pending in its case numbers 86-60-CF, 87-309-CF, and 89-426-CF. The circuit court’s order shall be rendered within 30 days of issuance of mandate in this cause.

PETITION GRANTED.

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    Morgan SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4264.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Morgan Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The Circuit Court in and for Hamilton County is directed to issue an order on the motion to correct illegal sentence now pending in its case number 02-112-CF. The circuit court’s order shall be rendered within 30 days of issuance of mandate in this cause.

PETITION GRANTED.

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    James VINCENT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3780.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    James Vincent, pro se, Petitioner.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and James C. Vincent is afforded a belated appeal of the order of the Circuit Court for Duval County dated April 1, 2009, denying motion to correct illegal sentence in its case number 1994-CF-005708-AXXX-MA. Upon issu-anee of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal.

PETITION GRANTED.

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    Leon FRANKLIN, Jr., Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D09-5734.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Leon Franklin, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

This petition for writ of habeas corpus challenges the judgments and sentences imposed in Madison County Circuit Court case number 95-131-CF.

This petition for writ of habeas corpus is frivolous because it has no arguable basis in law or fact. See § 57.085(9)(a), Fla. Stat. (2009). The writ of habeas corpus is available only if the petitioner shows probable cause to believe that he or she is detained without lawful authority. § 79.01, Fla. Stat. Petitioner is currently detained by the Florida Department of Corrections under the lawful authority of judgments and sentences for first-degree murder and shooting into a dwelling. State v. Franklin, Case No. 95-131-CF (3rd Cir., Madison Co. Fla.).

Because this was petitioner’s thirty-fourth action in this court concerning his 1995 judgments and sentences, we ordered him to show cause why he should not be sanctioned pursuant to Florida Rules of Appellate Procedure 9.410; and why such sanctions should not include a prohibition against appearing as a litigant in this court unless represented by counsel.

Petitioner’s response did not show cause why this court should not limit his ability to file pro se actions and papers in this court. Considering petitioner’s incessant filing of proceedings in this court, we find that petitioner has abused the judicial process and hindered the ability of this Court to devote its resources to the timely consideration of genuine disputes and color-able claims by those who have not abused the system. See Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Brown v. McNeil, 22 So.3d 741 (Fla. 1st DCA 2009).

Accordingly, the petition for writ of ha-beas corpus is DENIED. In addition, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Leon Franklin, Jr., that are related to his convictions and sentences in Madison County Circuit Court case number 95-131-CF, unless signed by a member in good standing of The Florida Bar. If petitioner violates this order, he may be subject to further appropriate sanctions, including disciplinary procedures pursuant to the rules of the Florida Department of Corrections. See § 944.279(1), Fla. Stat.

HAWKES, C.J., BENTON and THOMAS, JJ., concur.


text:
    Ramon HERRERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2499.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Regina Tsombanakis, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence, concluding that the trial court did not err in denying appellant’s motion to withdraw his plea. Appellant also argues that the court erred in denying his motion to mitigate sentence as untimely. While we affirm, our affirmance is without prejudice to appellant moving to mitigate within sixty days of the mandate, as provided in Florida Rule of Criminal Procedure 3.800(c).

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


text:
    Thane THOMPSON, Appellants, v. STATE of Florida, Appellees.
    No. 4D08-2601.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Rehearing Denied Feb. 11, 2010.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Thane Thompson, appeals his convictions and sentence for home invasion robbery (count I) and grand theft (count II). Without discussion, we affirm Thompson’s convictions. However, it appears that Thompson’s sentence for home invasion robbery was improperly calculated on the Criminal Punishment Code scoresheet as a level 10 offense — not the appropriate level 8 offense. Although not preserved for direct appeal, Thompson is free to raise this issue by way of a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(a).

Affirmed.

HAZOURI, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    William ROKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1885.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Rehearing Denied Feb. 12, 2010.
    William Roker, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court’s summary denial of appellant’s successive, untimely, and frivolous rule 3.850 motion is affirmed. Appellant claimed that the circuit court lacked jurisdiction, and that his conviction was void, because the oath of office and appointment of the assistant state attorney who filed the information was not recorded in the circuit court’s records. The allegation that the information was not properly signed or verified is frivolous and not a ground for postconviction relief. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009). An information may not be attacked on the ground it was not properly signed or verified once a defendant pleads to the merits. Fla. R.Crim. P. 3.140(g); see also Fla. R.Crim. P. -3.140(o).

Appellant is cautioned that continued abuse of the postconviction process by filing frivolous or repetitive motions and/or appeals will result in sanctions. State v. Spencer, 751 So.2d 47 (Fla.1999); Thurston v. State, 920 So.2d 1229 (Fla. 4th DCA 2006).

Affirmed.

STEVENSON, HAZOURI and LEVINE, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Leonicio RIVAS and Juan Rodriguez-Abrea, Respondents.
    No. 4D09-2863.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for petitioner.
    No appearance for respondents.
   PER CURIAM.

The State seeks certiorari relief from two non-final orders granting, respectively, the motions filed by two co-defendants, Leonicio Rivas and Juan Rodriguez-Abrea (collectively, Defendants), two of the four co-defendants in a pending criminal prosecution below, for disclosure of identity of confidential source (Cl). We grant the petition.

Defendants were charged with trafficking in cocaine and conspiracy to traffic in cocaine. Each filed a sworn motion for disclosure of identity of confidential source, alleging:

Defendant has reason to believe that the alleged informer has participated in the activities with which the Defendant is charged, the alleged informer was provided with compensation and/or incentives in this matter to be an informant, and the alleged informer has unlawfully coerced the Defendant into participating in the purchase of cocaine, and the disclosure is required to properly prepare a defense to the merits of the charges pending against the Defendant.

(emphasis added). Each further stated that the Cl originally was contacted by telephone by one of the other co-defendants, and the Cl advised the police that that individual was interested in purchasing multiple kilograms of cocaine. Only the Cl could testify about these conversations, which were not recorded or monitored, so the Cl’s identity was necessary to establish a defense of entrapment and/or abandonment. Defendants each further alleged that the Cl’s identity should be compelled because he was allowed to speak directly with him, without being monitored by the police. They maintained the Cl was a material witness because of the failure to monitor the original conversation, failure to train regarding entrapment, and the Cl’s own criminal history. They alleged that the Cl was allowed to create a trafficking offense and offender where none previously existed; each of them was coerced and unduly influenced by the Cl to purchase the cocaine.

In its response below, the State argued the motions should be denied because they did not contain factual assertions, quoting the language that each Defendant “has reason to believe” that the Cl participated, received incentives, and unlawfully coerced him into participating in the purchase. Instead, the State argued, in order to obtain disclosure of the Cl’s identity, a defendant has to allege, under oath, facts that would constitute a recognized defense. The State explained that both Defendants were introduced to the Cl by co-defendant Rodrí-guez-Martínez at a meeting that was monitored and recorded, and the only times either Defendant spoke to the Cl occurred during controlled and recorded phone calls. There is no vicarious or third-party entrapment in Florida; any coercion was done through Rodríguez-Martínez, and Defendants were prohibited from arguing they were coerced through a third party in order to force the Cl’s disclosure. Because Defendants did not set forth grounds sufficient to justify compelled disclosure of the Cl’s identity, and disclosure is the exception to the rule, the State asked the trial court to deny each motion.

At the hearing on Defendants’ motions, the State pointed out that the pleadings were defective because of the language about each Defendant’s having reason to believe, which was not the same as saying it was true. Second, the State had evidence that Defendants and Gomez were the end users and the other co-defendant, Rodríguez-Martínez, was the middleman; defendants who are brought into a transaction by a middleman cannot claim entrapment. “When a middleman, not a state agent, induces another person to engage in a crime, entrapment is not an available defense.” State v. Hunter, 586 So.2d 319, 322 (Fla.1991). Nor can defendants raise “ ‘due process violations allegedly suffered by third parties.’ ” Id. (quoting United States v. Valdovinos-Valdovinos, 743 F.2d 1436, 1437 (9th Cir.1984)). Additionally, it was the undercover officer who delivered the cocaine; the Cl merely was present.

A state witness testified that co-defendant Rodríguez-Martínez introduced the Cl to Defendants, and the only interaction between the Cl and either of them was at recorded meetings; none took place outside the presence of Rodríguez-Martínez. Even if the Cl completely entrapped Rod-ríguez-Martínez, Defendants would have no standing to complain about it, as there is no third-party entrapment; such allegations thus could not provide a reason for disclosing the Cl’s identity.

The trial judge felt that a theory of an entrapment still might be “flushed out”; furthermore, even if Defendants could not obtain disclosure of the Cl to support a defense, there still was the due process consideration, as the Cl was integrally involved in the transactions. However, the judge was concerned that his declining to order disclosure would affect Defendants’ constitutional rights to confront the witnesses against them and to properly prepare a defense.

The State explained that an in camera hearing would be necessary to determine whether the Cl could further a defense. But, the trial judge concluded that, because Defendants had alleged the defenses of entrapment and abandonment, even if entrapment was not available to them, if he did not allow them to speak to the Cl, they would be denied their constitutional rights. Because the judge concluded that Defendants prevailed under the second “due process” prong of Zamora, no in camera hearing was necessary.

The trial court granted each Defendant’s motion to disclose the Cl, without an in camera hearing, and the State seeks certiorari relief.

This kind of non-final order is reviewable by certiorari, as it presents the possibility of irreparable harm. E.g., State v. Ayala, 713 So.2d 1050, 1051 (Fla. 3d DCA 1998); State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997).

The State has a limited privilege to withhold the Cl’s identity. Miller v. State, 729 So.2d 417, 419 (Fla. 4th DCA 1999); State v. Zamora, 534 So.2d 864, 867 (Fla. 3d DCA 1988) (quoting from Roviaro v. United States, 353 U.S. 53, 59, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). The purpose of the privilege is to encourage citizens to perform their obligation of communicating their knowledge of the commission of crimes to law enforcement. Roviaro, 353 U.S. at 59, 77 S.Ct. 623.

If the Cl’s identity is to be disclosed, it is the defendant who has the burden of showing why an exception to the rule of nondisclosure applies. E.g., Miller, 729 So.2d at 419 (citing Zamora, 534 So.2d at 868).

Florida Rule of Criminal Procedure 3.220(g)(2) provides that disclosure may be required in one of two circumstances: “Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” Citing Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623 this court explained as follows:

Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant’s testimony is material and helpful. See State v. Zamora, 534 So.2d at 868. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.

Miller, 729 So.2d at 419. When a defendant succeeds in meeting the “initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense.” Roberts, 686 So.2d at 723.

In this case, Defendants sought to obtain disclosure by reference to the defenses of entrapment or abandonment, but the trial court did not conclude that they succeeded; instead, it concluded they satisfied the second exception, focusing on general due process considerations. However, this second, due process prong is not met when the informant merely was present during the illegal drug transaction with which the defendant was charged or merely acted as a tipster, furnishing a lead to law enforcement. Zamora, 534 So.2d at 870. Nor is it met when the defendant merely speculates that the informant would testify favorably. State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991).

A Cl’s identity must be disclosed under the second, due process prong under circumstances such as the following: (1) if the defendant is charged with delivering or selling drugs to the informant, see Miller, 729 So.2d at 420 (citing Zamora, 534 So.2d at 869 (citing Roviaro)); (2) if the informant is called as a witness at trial, e.g., State v. Hassberger, 350 So.2d 1, 2 (Fla.1977) (“Where the state produces the informer at trial, and attempts to prevent the witness from giving certain testimony on cross-examination, the sixth amendment right of an accused to confront the witnesses against him, made obligatory on the states by the fourteenth amendment, places severe restrictions on the privilege of nondisclosure.” (footnote omitted)); (3) if the informant’s affidavit supports the issuance of a search warrant, Baker v. State, 150 So.2d 729, 730 (Fla. 3d DCA 1963) (reversing conviction, and holding that trial court’s failure to require state to disclose information concerning individual who signed affidavit for search warrant vitiated evidence obtained under it); or (4) the informant is a defense witness at trial and the defendant seeks to cross-examine an officer about the relationship between the officer and the informant, e.g., Smith v. State, 318 So.2d 506, 507 (Fla. 2d DCA 1975) (defense was that defendant was not involved in the narcotics activities, but merely was persuaded to go along with his friend, who in fact was the informant).

These circumstances are listed in Zamora, where the court concluded:

In each of these cases, the courts have implicitly concluded that the disclosure of the informant was an essential part of the defendant’s due process right to be informed of the charges against him or to cross examine the witnesses against him.

534 So.2d at 869-70.

On the other hand, this second, due process prong is not met, automatically entitling the defense to the Cl’s identity, upon the mere allegation that the defendants need disclosure of the Cl’s identity to prepare a defense. See State v. Ayala, 713 So.2d 1050, 1052 (Fla. 3d DCA 1998) (finding second prong was not relevant, but, where defendant satisfied the first prong by filing a motion and affidavit which set forth a potential defense of entrapment, the trial judge was obligated to conduct an in camera hearing to question the informant under oath to determine whether anything the informant might say would be relevant and helpful to that defense); Wilson v. State, 13 So.3d 83, 84 (Fla. 2d DCA 2009).

In this case, the trial court’s conclusion that disclosure of the Cl was required by due process concerns constituted a departure from the essential requirements of law. Accordingly, the order on review is quashed. If the trial court, on remand, concludes that Defendants actually did meet their burden of showing that disclosure of the Cl’s identity is necessary to a specific and available defense, then it should conduct an in camera hearing to determine if the Cl has anything relevant and helpful to say before ordering disclosure of the Cl’s identity.

Petition Gmnted.

STEVENSON, HAZOURI and CIKLIN, JJ., concur.

      . The other two co-defendants, Carlos Rodriguez-Martinez and Melvin Gomez, were not named as respondents and did not participate in the instant proceeding.

        . State v. Zamora, 534 So.2d 864 (Fla. 3d DCA 1988).


text:
    Allan SERCHAY, on behalf of himself and all others similarly situated, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, a Florida corporation, Appellee.
    Nos. 4D08-4031, 4D08-4427.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Rehearing Denied Feb. 11, 2010.
    Paul J. Geller, Stuart A. Davidson, and Cullin A. O’Brien of Coughlin Stoia Geller Rudman & Robbins LLP, Boca Raton, Howard S. Grossman and Timothy C. Nies of Howard S. Grossman, P.A., Boca Raton, and David A. Homes of Hoines, Hess & Rose, Fort Lauderdale, for appellant.
    Paul R. Regensdorf of Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., Fort Lauderdale, Thomas W. Curvin and Kristin B. Wilhelm of Sutherland As-bill & Brennan LLP, Atlanta, Georgia, and John A. Chandler of King & Spalding LLP, Atlanta, Georgia, for appellee.
   GERBER, J.

This appeal presents the question of whether an insured homeowner, who does not receive from his insurer a statutorily-mandated premium discount for having a windstorm-mitigating hip roof, must pursue administrative remedies instead of pursuing court action against his insurer. We hold that the insured must pursue those administrative remedies. Therefore, we affirm the circuit court’s dismissal of the plaintiffs action below.

The statutorily-mandated premium discount appears in sections 627.0629 and 627.711, Florida Statutes (2007). Section 627.0629 provides, in pertinent part:

(l)(a) It is the intent of the Legislature that insurers must provide savings to consumers who install or implement windstorm damage mitigation techniques, alterations, or solutions to their properties to prevent windstorm losses. A rate filing for residential property insurance must include actuarially reasonable discounts, credits, or other rate differentials, or appropriate reductions in deductibles, for properties on which fixtures or construction techniques demonstrated to reduce the amount of loss in a windstorm have been installed or implemented. ...
(2)(c) The premium notice shall specify the amount by which the rate has been adjusted ... and shall also specify the maximum possible positive and negative adjustments that are approved for use by the insurer....

§ 627.0629(l)(a), (2)(c), Fla. Stat. (2007). Section 627.711 provides, in pertinent part:

Using a form prescribed by the Office of Insurance Regulation [ (“OIR”) ], the insurer shall clearly notify the applicant or policyholder ... of the availability and the range of each premium discount, credit, other rate differential, or reduction in deductibles ... for properties on which fixtures or construction techniques demonstrated to reduce the amount of loss in a windstorm can be or have been installed or implemented.

§ 627.711(1), Fla. Stat. (2007).

The plaintiff sued his homeowner’s insurer, State Farm, in circuit court, alleging in various causes of action that State Farm violated sections 627.0629 and 627.711. The plaintiff alleged that his home has a windstorm-mitigating hip roof for which the State of Florida requires insurers to provide a premium discount to their insureds. The plaintiff further alleged that State Farm did not notify him of his right to receive the discount, or provide him with the discount. Instead, according to the plaintiff, State Farm required its insureds to complete an inspector-certified windstorm survey to be entitled to the discount. The plaintiff sought to recover the discount, and to enjoin State Farm from allegedly continuing to violate the aforementioned statutes. The plaintiff also sought class action relief on behalf of all other similarly situated State Farm policyholders.

State Farm moved to dismiss. State Farm alleged that the plaintiff failed to exhaust his administrative remedies under section 627.371, Florida Statutes (2007). That section provides, in pertinent part:

(1) Any person aggrieved by any rate charged ... by an insurer ... may ... make written request of the insurer ... to review the manner in which the rate ... has been applied with respect to insurance afforded her or him. If the request is not granted within 30 days ..., the requester may treat it as rejected. Any person aggrieved by the refusal of an insurer ... to grant the review requested ... may file a written complaint with the [OIR], specifying the grounds relied upon....
(2) If ... upon sufficient complaint as provided in subsection (1), the [OIR] has good cause to believe that such insurer ... does not comply with the requirements and standards of this part applicable to it, [the OIR] shall ... give notice in writing to such insurer, ... stating therein in what manner and to what extent noncompliance is alleged to exist and specifying therein a reasonable time, not less than 10 days thereafter, in which the noncompliance may be corrected, including any premium adjustment.
(3) If ... within the period prescribed by the [OIR] in the notice required by subsection (2), the insurer ... does not make such changes ... to correct the noncompliance ..., then the [OIR] is required to proceed to further determine the matter....

§ 627.371, Fla. Stat. (2007). In a memorandum of law supporting its motion to dismiss, State Farm added that, if the complainant does not obtain the relief requested, the complainant may obtain judicial review of the OIR’s action pursuant to section 120.68, Florida Statutes (2007). That section provides, in pertinent part:

(1) A party who is adversely affected by final agency action is entitled to judicial review....
(2)(a) Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law....

§ 120.68(1), (2)(a), Fla. Stat. (2007).

In a thorough order, the circuit court dismissed the suit on the ground that the plaintiff failed to exhaust his administrative remedies under section 627.371. This appeal followed. “The standard for reviewing a trial court’s order granting a motion to dismiss is de novo.” Zeiger Crane Rentals, Inc. v. Double A Indus., Inc., 16 So.3d 907, 910 (Fla. 4th DCA 2009).

The plaintiff argues that section 627.371 does not apply here because this case is not about “ratemaking” and his complaint does not challenge State Farm’s rates. Rather, the plaintiff contends his action concerns State Farm’s failure to provide the statutorily-mandated premium discount.

We understand the distinction which the plaintiff makes between rate-making and premium discounts. Nevertheless, we hold that a premium discount is inextricably linked to the rate charged and, therefore, section 627.371 applies to the plaintiffs action. An examination of the relevant statutes supports this holding.

A “premium” is “the consideration paid or to be paid to an insurer for the issuance ... of any ... policy of insurance.” § 627.041(2), Fla. Stat. (2007). A “rate” is “the unit charge by which the measure of exposure or the amount of insurance specified in a policy of insurance ... is multiplied to detennine the premium.” § 627.041(1), Fla. Stat. (2007). Put in mathematical terms: Amount of insurance x Rate = Premium. Because the amount of insurance specified in a policy is a constant, a premium discount necessarily requires lowering the rate charged. Thus, to the extent an insured claims to have been wrongly deprived of a premium discount, the insured essentially is claiming to have been aggrieved by the rate charged.

Such a claim finds its remedy in section 627.371. Any person aggrieved by any rate charged may request review of the manner in which the rate “has been applied,” i.e., the premium. See §§ 627.371; 627.041(1). Upon sufficient complaint, the OIR is required to notify the insurer as to the manner in which to correct the noncompliance, including any “premium adjustment.” See § 627.371(2). Thus, under section 627.371’s plain language, a request for a “premium adjustment” necessarily must arise from a challenge to the “rate charged.”

The statutes upon which the plaintiff bases his action further demonstrate on their face that the rate charged and any premium discounts are inextricably linked. Section 627.0629(l)(a) provides that a rate filing for residential property insurance must include “reasonable discounts ... or other rate differentials ” for properties on which windstorm mitigation techniques have been installed, (emphasis added) Section 627.0629(2)(c) provides that “[t]he premium notice shall specify the amount by which the rate has been adjusted.” (emphasis added) Section 627.711(1) provides that the insurer shall notify the policyholder of the availability and the range of each “premium discount ... [or] other rate differential” for properties on which windstorm mitigation techniques have been installed. (emphasis added)

Our application of section 627.371 to the plaintiffs action here is consistent with the results of cases from three other district courts. See FCCI Ins. Co. v. NCM of Collier County, Inc., 15 So.3d 5 (Fla. 2d DCA 2009) (insured challenging good faith calculation of insurance premiums must avail itself of the administrative process under section 627.371); Progressive Express Ins. Co. v. Reaume, 937 So.2d 1120 (Fla. 2d DCA 2006) (insured alleging that her insurer charged excessive rate by violating statute prohibiting insurers from seeking excessive premium finance charges was required to first seek relief with OIR under section 627.371); State Farm Mut. Auto. v. Gibbons, 860 So.2d 1050 (Fla. 5th DCA 2003) (insured alleging that her insurer charged excessive rate by violating statute prohibiting insurers from considering monies paid on bad faith and punitive damage claims when determining rates was making “challenge to the rate-making process” for which exclusive remedy was administrative review under section 627.371); Int’l Patrol & Detective Agency, Inc. v. Aetna Cas. & Sur. Co., 396 So.2d 774 (Fla. 1st DCA 1981) (insured alleging that its insurers charged excessive rates by violating statute requiring insurers to consider investment income when determining rates had adequate administrative remedy under section 627.371 and was barred from bringing circuit court action).

We find inapplicable the cases upon which the plaintiff relies, but we choose to address one of those cases, Elite II v. Am. Cas. Co. of Reading, Pa., No. 8:05-CV-1623-T-17MAP, 2006 WL 1319540 (M.D.Fla. May 11, 2006). In Elite II, the insured sought a declaratory judgment on whether it had the right to receive premium credits under its insurer’s policy. 2006 WL 1319540 at *1. The insurer requested dismissal of the case because the insured did not exhaust administrative remedies under section 627.371. Id. The court denied the motion to dismiss, reasoning:

Although this case is about the total premium due for the policies issued to [the insured], [the insured] is not challenging alleged improper classification, or the rates on which the premium is based. [The insured] is seeking a declaration that the policy provisions require [the insurer] to apply the ... credit in calculating the correct premium for the policy periods. The Court recognizes the regulatory scheme and the discretion of the Florida Department of Insurance, but finds that the resolution of this case will turn on construction of the insurance policies.

Id. at *2.

The plaintiff relies on Elite II because that case dealt with the application of a credit in calculating a premium, not the basis for calculating the premium. Respectfully, we disagree with Elite II based on our statutory analysis and case comparison above. Notably, the federal district court’s decision did not examine any of the Florida state cases which we have examined, and appears inconsistent with those cases.

The plaintiff also has appealed from the circuit court’s order denying his motion for attorney’s fees. Included within that order was language denying the plaintiffs request for an evidentiary hearing and limited discovery. Without further comment, we affirm that order in its entirety on all arguments which the plaintiff has raised in his briefs.

Affirmed.

POLEN and MAY, JJ., concur.