absence of an evidentiary hearing in Florida

2025Therefore, we are compelled to affirm.”); Giltex Corp. v. Diehl, 583 So. 2d 734, 735 (Fla. 1st DCA 1991) (recognizing that the absence of an evidentiary hearing transcript or stipulated statement of facts compels affirmance where the trial court’s order awarding attorney’s fees makes the express findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)). 2

2024See DeMayo v. Chames, 934 So. 2d 548, 551 (Fla. 3d DCA 2006) (“Article X, section 4 ‘protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself’ and that other than for the purposes stated in this provision, cannot be waived.” (quoting Sherbill v. Miller Mfg.

2023Xtreme, Inc., 122 So. 3d at 491 (“[I]n light of the absence of an evidentiary hearing or the presentation of sworn testimony on the issue, we 28 conclude that the trial court was without discretion to [award section 57.105 sanctions.]”).

2022Here, although the postconviction court did not find the affidavits of the “newly discovered” witnesses to be inherently incredible, see McLin v. State, 827 So. 2d 948, 955 (Fla. 2002) (explaining that summary denial of postconviction claim may be warranted “where, from the face of the affidavit, it can be determined that the affidavit is ‘inherently incredible’”), it nevertheless appears to have summarily concluded that the victim’s and her sister’s conflicting trial testimony was more credible than that of the “newly discovered” affiants.

2017See McKnight v. Evancheck, 907 So. 2d 699, 701 (Fla. 4th DCA 2005) (affirming a dismissal for fraud on the court based on medical records and where neither party requested an evidentiary hearing); Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2001) (affirming dismissal of the complaint with prejudice for fraud on the court after the trial court conducted a hearing and reviewed the plaintiff’s medical records and deposition); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997) (affirming dismissal for fraud on the court and finding that the plaintiff fail

2017See McKnight v. Evancheck, 907 So. 2d 699, 701 (Fla. 4th DCA 2005) (affirming a dismissal for fraud on the court based on medical records and where neither party requested an evidentiary hearing); Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2001) (affirming dismissal of the complaint with prejudice for fraud on the court after the trial court conducted a hearing and reviewed the plaintiff’s medical records and deposition); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997) (affirming dismissal for fraud on the court and finding that the plaintiff fail

2017See McKnight v. Evancheck, 907 So. 2d 699, 701 (Fla. 4th DCA 2005) (affirming a dismissal for fraud on the court based on medical records and where neither party requested an evidentiary hearing); Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2001) (affirming dismissal of the complaint with prejudice for fraud on the court after the trial court conducted a hearing and reviewed the plaintiff’s medical records and deposition); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997) (affirming dismissal for fraud on the court and finding that the plaintiff fail

2014Co. v. Schonning, 960 So.2d 6, 6 (Fla. 3d DCA 2005) (“Because the pleadings were struck in the absence of an evidentiary hearing, we reverse.”); Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004) (“Where, as here, there is no indication that the trial court considered [the Kozel ] factors ... reversal has been required.”)”); Franchi v. Shapiro, 650 So.2d 161, 162 (Fla. 3d DCA 1995) (“Before this ultimate sanction [the striking of pleadings or entering a default for noncompliance with an order compelling discovery] can be entered ... a party must be given notice and an opportunity

2014This opportunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court’s discovery order or the opposing party’s discovery request.”) (citations omitted); see also Alsina, 83 So.3d at 964 (“While dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review, Erdman v. Bloch, 65 So.3d 62, 65 (Fla. 5th DCA 2011) (citing Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004)), failure to apply the standards for the sanct

2014Co. v. Schonning, 960 So.2d 6, 6 (Fla. 3d DCA 2005) (“Because the pleadings were struck in the absence of an evidentiary hearing, we reverse.”); Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004) (“Where, as here, there is no indication that the trial court considered [the Kozel ] factors ... reversal has been required.”)”); Franchi v. Shapiro, 650 So.2d 161, 162 (Fla. 3d DCA 1995) (“Before this ultimate sanction [the striking of pleadings or entering a default for noncompliance with an order compelling discovery] can be entered ... a party must be given notice and an opportunity

2014Co. v. Schonning, 960 So.2d 6, 6 (Fla. 3d DCA 2005) (“Because the pleadings were struck in the absence of an evidentiary hearing, we reverse.”); Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004) (“Where, as here, there is no indication that the trial court considered [the Kozel ] factors ... reversal has been required.”)”); Franchi v. Shapiro, 650 So.2d 161, 162 (Fla. 3d DCA 1995) (“Before this ultimate sanction [the striking of pleadings or entering a default for noncompliance with an order compelling discovery] can be entered ... a party must be given notice and an opportunity

2014This opportunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court’s discovery order or the opposing party’s discovery request.”) (citations omitted); see also Alsina, 83 So.3d at 964 (“While dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review, Erdman v. Bloch, 65 So.3d 62, 65 (Fla. 5th DCA 2011) (citing Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004)), failure to apply the standards for the sanct

2013Indeed, “unsworn representations by counsel about factual matters do not have any evidentia-ry weight in the absence of a stipulation.” Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006); see State v. Bauman, 425 So.2d 82 , 35 n. 3 (Fla. 4th DCA 1982) (“We say again that facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court.

2013See also Mr. Martinez of Miami, Inc., 558 So.2d at 154 (holding that, in the absence of an evidentiary hearing, a postal cancellation date two days later than the certificate of service date is not sufficient to rebut the prima facie proof of the certificate of service).

2006See Peede v. State, 748 So.2d 253, 257 (Fla.1999); Benton v. State, 884 So.2d 90, 92 (Fla. 2d DCA 2004).

2006See Peede v. State, 748 So.2d 253, 257 (Fla.1999); Benton v. State, 884 So.2d 90, 92 (Fla. 2d DCA 2004).

2005See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993)(adopting six factors that must be considered before deciding case warrants imposition of severe sanctions).

2003See Walker v. State, 678 So.2d 924, 925 (Fla. 1st DCA 1996) (“when a court is confronted with a claim of ineffective assistance, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an eviden-tiary hearing”).

2001In Vasquez v. State, 777 So.2d 1200, 1202 (Fla. 3d DCA 2001), we attempted to explain what constitutes the “sworn proof’ envisioned in Munoz , by stating that “a claimant should not have to prove his or her case to establish standing.” We reversed the summary denial of standing in the absence of an evidentiary hearing.

1997Anthony v. State, 660 So.2d 374, 376 (Fla. 4th DCA 1995).

1997See Tillman v. State, 471 So.2d 32, 35 (Fla.1985).