author: PADOVANO, J.

text:
    CHASE BANK OF TEXAS NATIONAL ASSOCIATION f/k/a Texas Commerce Bank National Association f/k/a Ameritrust of Texas National Association, Appellant, v. STATE of Florida, DEPARTMENT OF INSURANCE, as Receiver of Western Star Insurance Company, Ltd., Appellee.
    No. 03-1005.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Rehearing Denied Dec. 8, 2003.

      D. Lloyd Monroe, IV of Coppins & Monroe, Tallahassee.
    John W. Frost, II, of Frost, Tamayo, Sessums & Aranda, Bartow.
   PADOVANO, J.

Chase Bank of Texas seeks a writ of prohibition to prevent the trial court from entertaining a claim made against it by the Florida Department of Insurance in a proceeding to liquidate the Western Star Insurance Company. The question presented is whether the “Insurers Rehabilitation and Liquidation Act” confers jurisdiction on the circuit court to consider an action by the receiver to recover damages against a third-party, in this case the trustee of the insolvent insurance company. We conclude that the Act authorizes the circuit court to exercise jurisdiction over a third-party claim in an insurance liquidation proceeding and we therefore deny the petition for writ of prohibition.

Western Star, an insurance company based in Antigua, maintained an office in the State of Florida and sold surplus line insurance in the United States, primarily in the State of California. The company was not officially admitted as an insurance company in California but conducted business there under the assumption that it could do so unless the state issued a cease and desist order.

In 1992, California passed a law requiring alien surplus fine insurers to establish a trust containing at least $5.4 million to create a readily available pool of assets for the payment of claims. Pursuant to the requirements of this law, Western Star entered into a trust agreement with Amer-itrust of Texas National Association in February 1993. The trust was funded with a $5.4 million certificate ■ of deposit issued to Western Star by the First Asia Development Bank of the Republic of Vanuatu, a country in the Pacific Islands. By the terms of the trust agreement, Ameri-trust was to hold the certificate for the benefit of Western Star’s policyholders and creditors. Through a series of acquisitions, Ameritrust later became the Texas Commerce Bank and then the Chase Bank of Texas.

The certificate of deposit purports to represent funds available to Western Star in the First Asia Development Bank, but, in fact, Western Star did not own the funds. The certificate was purchased with funds that had been “rented” from another foreign corporation, presumably to create the impression that Western Star was financially secure. Ameritrust had the certificate of deposit in its possession, but it never had access to the funds or to any collateral. Western Star collected premiums from policyholders but could not pay the insurance claims.

In September 1993, the Texas Commerce Bank, which had by then acquired Ameritrust, initiated a declaratory judgment action in the United States District Court for the Northern District of Texas, seeking to resign from its duties as trustee and to interplead the certificate of deposit. The Florida Department of Insurance was allowed to intervene and offered to serve as substitute trustee.

In the course of this proceeding, counsel for Western Star informed the court that the certificate of deposit had been can-celled and that First Asia was no longer in business. When it became apparent that the certifícate of deposit was worthless and that the trustee could not recover the funds it represented, the court dismissed the interpleader action as moot. The court allowed Texas Commerce to resign but did not relieve it from any liability it may have incurred during the time it had served as trustee.

Following the dismissal of the inter-pleader action, the Department initiated a liquidation proceeding in Florida. Western Star was declared insolvent, and the Department was appointed as the receiver on June 14, 1994. The Department demanded that Texas Commerce Bank turn over all assets held under the trust and asserted a claim against Texas Commerce for fraud on behalf of Western Star’s policyholders. Circuit Judge Ted Steinmeyer dismissed the claim for lack of subject matter jurisdiction and informed the Department that the claim could be asserted in an independent action. This order was not appealed.

Texas Commerce Bank sought summary judgment on the request for a turnover of the certificate of deposit. Circuit Judge Terry Lewis granted summary judgment on the ground that Texas Commerce did not have any property belonging to Western Star to turn over to the Department. The Department argued that Texas Commerce should be estopped from denying that it has assets, because it had participated in Western Star’s fraudulent scheme, but Judge Lewis concluded that the Department’s claim was not within the purview of a turnover claim under Chapter 631, Florida Statutes. The Department appealed and this court affirmed without a written opinion.

Subsequently, the Department asserted a claim of fraud against the trustee on behalf of Western Star policyholders in the United States District Court for the Northern District of Texas. This action was against the appellant, Chase Bank of Texas, which by then had acquired Texas Commerce Bank. The Department sought to hold Chase responsible for actions in the Western Star insurance scheme. Chase prevailed on a motion for summary judgment, and the order of the district court was affirmed by the Fifth Circuit Court of Appeals.

The Fifth Circuit concluded the Department lacked standing to assert claims in federal court on behalf of Western Star’s policyholders. See Fla. Dep’t of Ins. v. Chase Bank of Texas Nat’l Ass’n, 274 F.3d 924 (5th Cir.2001). The court noted that the policyholders had not assigned their fraud claims to the Department, nor had they designated the Department as their agent. Additionally, the court concluded that Chapter 631, Florida Statutes, as it existed in 1996, did not authorize the Department to serve as the representative of a third party. Instead, the law simply authorized the Department to take immediate possession of the insolvent insurer’s property and marshal all of the insurer’s assets.

In 2002, the Florida Legislature revised Chapter 631, Florida Statutes, to expand the Department’s authority to pursue claims relating to an insurance liquidation proceeding. With the advent of this new legislation, the Department turned its attention once again to the liquidation proceeding in the circuit court. On July 24, 2002, the Department filed a revised demand notice, seeking damages against Chase on behalf of Western Star’s policyholders.

The Department alleged that Chase was liable by the terms of the trust agreement to those who had made claims against Western Star. In particular, the revised demand notice states that Chase’s predecessor, Ameritrust, accepted the certificate of deposit knowing that Western Star did not own the funds, and that Ameritrust subsequently concealed this fact. Additionally, the revised demand notice states that Ameritrust knew the funds had been “rented” for the purpose of enhancing Western Star’s credit.

Chase filed a motion for summary judgment on the claims asserted in the revised demand notice, contending that the circuit court lacked subject matter jurisdiction. Judge Kevin Davey, who had been assigned to the case by this time, concluded that the 2002 amendments to Chapter 631 conferred jurisdiction on the circuit court to entertain the Department’s claims on behalf of Western Star’s policyholders. Judge Davey entered an order on March 4, 2003, denying the motion for summary judgment, and that order has become the subject of the present petition for writ of prohibition.

This court has jurisdiction under Article V, Section 4(b)(3) of the Florida Constitution. Chase argued that the trial court lacked subject matter jurisdiction to adjudicate the Department’s third-party claims, and the trial judge disagreed. Prohibition is the proper remedy to prevent an improper exercise of judicial power. See Peltz v. District Court of Appeal, Third District, 605 So.2d 865, 866 (Fla.1992). If Chase is correct, the trial court is exercising power over claims that are not within its jurisdiction, and prohibition is the proper remedy.

The question presented by the petition is a question of law. Whether the circuit court has subject matter jurisdiction depends on the correctness of the court’s interpretation of various provisions of Chapter 631, Florida Statutes. Assuming the facts are not in dispute — and in this case they are not — an order on a motion for summary judgment is subject to the de novo standard of review. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Menendez v. Palms West Condo. Ass’n, 736 So.2d 58, 60-61 (Fla. 1st DCA 1999). Consequently, we are free to review the order at issue in this case de novo.

We begin our review on the merits with a statement Of basic principles relating to the jurisdiction of the trial court. The power of a court to consider a particular kind of claim is known as subject matter jurisdiction. It can be derived directly from the constitution but more often it is created by legislation authorized by the constitution. Seventy-six years ago, the Florida Supreme Court defined subject matter jurisdiction as “the power of the court to deal with the class of cases to which the particular case belongs.” Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 775 (Fla.1927). Since then, the court has consistently employed the same definition. See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 800 n. 3 (Fla.2003); Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994).

This definition recognizes that subject matter jurisdiction is a broad concept. If a statute provides that the circuit court has jurisdiction to hear probate cases, it is not necessary to specify that the court has the power to consider every kind of probate case or every possible kind of litigation that might be necessary in the context of a probate proceeding. As its name implies, subject matter jurisdiction is determined by the subject of the case, not the details.

The concept applies in the same way in insurance delinquency proceedings. As we stated in Provident Capital Indemnity, Ltd. v. Department of Insurance, 677 So.2d 363, 364 (Fla. 1st DCA 1996), subject matter jurisdiction is “the power lawfully conferred to deal with the general subject involved in the action.” (emphasis added). There, we held that the circuit court continued to have subject matter jurisdiction over an insurance delinquency proceeding against an alien insurer, even though we had previously held that the Department of Insurance lacked authority to seek liquidation of the insurer. Subject matter jurisdiction is not, as we noted in Provident Capital, a “narrow concept.” Id. at 364.

Section 631.021(1), Florida Statutes provides that “[t]he circuit court shall have original jurisdiction of any delinquency proceeding under this chapter.... ” This simple declarative sentence provides the answer to the question we have been asked to address. The circuit court has jurisdiction. Whether it is proper to assert a certain kind of claim within the context of a delinquency proceeding is another matter. It may be that the Department of Insurance lacks standing to bring certain claims that would otherwise restore the financial condition of the insolvent insurer, but that is a question of authority, not jurisdiction.

Although this case has a long history, there is nothing in any of the prior court rulings that prevents us from reaching this conclusion. Neither of the federal cases produced a ruling on the merits of the issue. In the declaratory judgment and interpleader action, the court held that Ameritrust could resign as trustee and that there was no longer a need for an interpleader. While the claims at issue here were asserted in a subsequent federal court lawsuit in Texas, the court merely determined in that case that the Department lacked standing to bring the claims in federal court. As the court explained, “[o]ur holding today does not demonstrate the absence of a remedy in this type of case.” Chase Bank of Texas, 274 F.3d 924 at 936.

Judge Steinmeyer’s order dismissing the claims does address the merits of the issue raised here, but it was not appealed, and we are not required to accept it now. The law of the case is established by a judgment of the appellate court, not a trial court. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transp. Co., 442 So.2d 414 (Fla. 2d DCA 1983). Furthermore, this order does not serve as a bar to subsequent litigation under the doctrine of res judicata, because the court merely dismissed the Department’s claims without prejudice.

Judge Lewis’ order was affirmed by this court and, although it would be the law of the case, it does not deal with the issue presented here. The issue adjudicated by the order was whether Chase was required to turn over assets, not whether the Department could assert third-party claims in the context of an insurance liquidation. The Department had claimed that Chase should be estopped by its fraudulent conduct from claiming that it does not have possession of the funds to be turned over to the receiver. Judge Lewis did mention that the fraud claim underlying the defense of estoppel should be litigated in a separate forum, but he did not adjudicate a claim of fraud or, for that matter, any claim for affirmative relief. He merely rejected the defense of estoppel in the context of the turnover proceeding. Chase contends that section 631.021, Florida Statutes, does not confer jurisdiction on the circuit court to hear third-party claims such as these, because the statute states that “[a]ny delinquency proceeding in this chapter is in equity.” As Chase points out, actions against the trustee for fraud and breach of the trust agreement are actions at law. This argument is without merit, as the Florida courts have abolished the distinction between law and equity. See Fla. R. Civ. P. 1.040.

Another serious flaw in the argument is that it confuses jurisdiction with remedies. It may well be that the remedy afforded in an insurance liquidation proceeding is an equitable remedy, but that does not necessarily mean that the court would be without jurisdiction to hear a related claim within the proceeding merely because it is characterized as a claim at law. We would not say that a court lacks jurisdiction to hear a counterclaim for damages merely because the main action was a complaint for injunctive relief. For the same reason, it would be illogical to hold that the court lacks jurisdiction to hear a claim for damages in the context of an insurance liquidation proceeding merely because the proceeding itself has been characterized as one in equity.

If Chase were correct on this point, the circuit court would have no power to entertain a claim by the receiver to collect a debt owed to an insolvent insurance company, because it would be a claim at law. Yet even before the 2002 amendment, the statute provided that the court could resolve a claim such as this in a delinquency proceeding. See § 631.154, Fla. Stat. (2001). The fact that the liquidation proceeding is characterized as equitable does not mean that all of the various claims and defenses asserted within the proceeding must also be equitable.

It has been the case all along that the circuit court has jurisdiction to hear a claim on behalf of a receiver, but if there was ever any doubt about that point, it was removed by the 2002 amendments to the statute. The section dealing with liquidation of domestic and alien insurers provides in material part:

631.141 Conduct of delinquency proceeding; domestic and alien insurers.—
(6) The department may assert all rights belonging to third parties, including, but not limited to, policyholders, creditors, and other claimants, except to the extent an individual claim is personal and unique to the claimant and could not inure to the benefit of the estate or to policyholders, creditors, or other claimants.

§ 631.141(6), Fla. Stat. (2002). As we have previously explained, the circuit court has jurisdiction over the entire liquidation proceeding under section 631.021, Florida Statutes. A claim made by the receiver on behalf of a third party is among the kinds of claims the court may consider under section 631.141 in the course of the liquidation proceeding.

Chase argues that section 631.141 does not establish jurisdiction, but that it merely grants the receiver authority to file suit on behalf of a third party. This argument is refuted by the language of the statute. Section 631.141 is titled “Conduct of delinquency proceeding.” This plainly signifies that the claims referred to in subsection (6) are to be filed under the umbrella of the delinquency proceeding, and not as if they were separate lawsuits. The point of this legislation is clear. If the receiver is successful in pursuing a claim on behalf of a third party, the money recovered will become a part of the estate of the insolvent insurer and it will be used to pay claims against the insurer.

The argument that the statute merely grants the receiver authority to sue on behalf of a third party appears to be based on a very narrow view of subject matter jurisdiction. An insurance liquidation is not a monolithic proceeding like a criminal case or an individual civil action. Rather, it is a comprehensive proceeding that may include within its scope a cluster of different claims, much like the administration of a large estate. The legislature has said that the receiver may assert a claim on behalf of a third party in a liquidation proceeding. It was not necessary, in our view, for the legislature to also say that the court has jurisdiction to hear the claim. The court has jurisdiction over the entire proceeding in which the claim will be litigated.

For these reasons, we conclude that the circuit court has jurisdiction to adjudicate claims made by the Department on behalf of Western Star’s policyholders and other third parties. Chase has made several other challenges to the order. We have not addressed all of the arguments here, but we have considered all of them carefully and we conclude that there is no basis to grant relief from the order.

Prohibition denied.

WEBSTER, J., CONCURS. POLSTON, J., CONCURS IN RESULT ONLY.

      . See Fla. Dep't of Ins. v. Texas Commerce Bank, 744 So.2d 992 (Fla. 1st DCA 1999).


source: Caselaw Access Project

author: PER CURIAM. FARMER, C.J.,

license: Public Domain

text:
    Uzi Gary STAV, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4370.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Rehearing Denied Dec. 31, 2003.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West-Palm Beach, for appellee.
   PER CURIAM.

Uzi Gary Stav was convicted of organized scheme to defraud and grand theft greater than $20,000 and less than $100,000. He was sentenced to concurrent 42.5 month sentences on both convictions. Stav now appeals these convictions and sentences on three grounds.

First, Stav asserts that the trial court erred by improperly admitting Williams Rule evidence. See Williams v. State, 110 So.2d 654 (Fla.1959). Second, Stav contends that the constitutional protection against double jeopardy was violated by convicting and sentencing him for the two crimes in question. Third, Stav posits that the trial court erred by imposing an upward departure sentence based on the 1995 rather than 1994 sentencing guidelines where Heggs v. State, 759 So.2d 620 (Fla.2000), was applicable. We find error only as to the double jeopardy issue on appeal, as the two crimes share common elements and the State concedes the violation. As a result, the grand theft conviction and sentence is reversed and remanded for discharge.

In January 1996, Stav began working for Lifestyle Vacation Incentives (“LVI”); and was charged with developing and administering an international air travel division in addition to having some operational responsibility for the domestic air travel division. Stav had extensive experience in the travel industry, and was paid a base salary plus commissions.

In November 1997, LVI became aware that Stav had booked some Austrian vacation packages without the authority to do so and terminated Stav. Following his termination, several LVI employees audited Stav’s records, resulting in this criminal case against him. Subsequent to his termination by LVI, Stav was employed by Take Me Along Travel. There, without permission, he misused two Delta AD-75 discount coupons, which entitle travel industry members to a 75% discount on travel. By not heeding restrictions associated with these coupons when booking a trip for his wife and himself, Stav caused the travel agency to be responsible for additional costs. Stav also failed to pay the full value of these tickets. It is the introduction of this AD-75 evidence which generated the Williams Rule issue on appeal.

The criminal charges against Stav in this case are based on four incidents. First, Stav owned a number of United Airlines “denied boarding compensation coupons,” referred to as “magic coupons” throughout the case below. These magic coupons are essentially ticket vouchers that can be exchanged for an airline ticket up to a specified value. He agreed to sell these magic coupons to LVI for use in domestic travel incentive programs. Several times Stav charged LVI for magic coupons to be submitted with tickets to the Airline Reporting Corporation (“ARC”), a travel industry clearinghouse. However, when Stav submitted tickets to ARC, he failed to attach the magic coupons. As a result, LVI was charged by ARC for the full fare of the tickets, in addition to having paid Stav for the unattached vouchers.

Second, Stav acquired airline tickets for family and friends to join him both for business trips as well as vacations and LVI was charged by ARC for much of this travel. Stav argues that he was authorized to take another individual on all business trips at company expense, and that he paid for all family travel. LVI refutes this.

Third, Stav falsified his commission reports by stating that he was due commissions for tickets that were exchanged or voided, purchased with discounts or incentives, or purchased in-house. Commissions are not payable for these types of tickets, and LVI contends that Stav knew he was not entitled to these commissions.

Fourth, Stav posted frequent charge-backs to his son Eli’s credit cards. Stav claimed to have refunded customers in cash when their cash payments were not recorded by LVI, and then charged-back the amount of the refund from LVI to Eli’s credit cards. LVI states that the nature of its business is such that there were very few cash payments and contends that the number of charge-backs exceeded the number of cash ticket purchases occurring at LVI.

We conclude that the AD-75 coupon evidence is admissible in this case on the ground of plan under the Williams Rule statute, rather than the ground asserted by the State at trial. On the Williams Rule issue, the standard of review applicable to the consideration of whether evidence was properly admitted is abuse of discretion. Geldreich v. State, 763 So.2d 1114, 1116 (Fla. 4th DCA 1999). The Williams Rule has been codified by the legislature in Florida Statutes section 90.404(2)(a):

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is solely to prove bad character or propensity.

As to the question of similarity, it is true that the magic coupons and AD-75 coupons were issued by different airlines and function a little differently. However, they both alter the cost of a ticket, both operate under restrictions for use, and both cause travel agencies to be charged by ARC in the amount of any unaccounted airfare. In the present case, where the identity of Stav as the perpetrator is not at issue, we conclude that the similarity of magic coupons and AD-75 coupons is sufficient for the purpose of Williams Rule admissibility. See Houston v. State, 852 So.2d 425, 427 (Fla. 5th DCA 2003) (“Similar fact evidence relevant to prove a material fact other than identity need not meet the rigid similarity requirement applied when such evidence is used to prove identity.”).

We affirm the admission of the AD-75 coupons in this case based on the so-called “tipsy coachman” doctrine. Robertson v. State, 829 So.2d 901, 906 (Fla.2002). The doctrine has been analyzed by the supreme court in a Williams Rule case, and is described as allowing an appellate court to affirm the admission of such evidence where the trial court “reaches the right result, but for the wrong reason” and “there is any basis which would support the judgment in the record.” Id. Although the supreme court rejected the application of the “tipsy coachman” doctrine in Robertson, that case is distinguishable from the ease at bar for two reasons. See id. at 906-911.

First, in Robertson the trial court never considered the challenged evidence under the Williams Rule, because the State did not seek such review through a notice of intent. Id. at 905-906, 908. Instead, the Third District employed the Williams Rule for the first time on appeal as an alternate ground for affirming Robertson’s conviction. Id. at 905. As a result, the trial court had not determined whether the evidence was similar, too remote, or too prejudicial. Id. at 907-908. This inquiry by the trial court is important because Williams Rule admissibility is a “highly individualized, factually intensive inquiry.” Id. at 908. In contrast, in Stav’s case, the Williams Rule was addressed by the trial court because the State filed a notice of intent. The trial court admitted the evidence after considering similarity and relevance to prove a material fact, but did so on a ground other than plan as provided for by statute.

Second, the court in Robertson concluded that the “tipsy coachman” doctrine did not apply largely because there was no record evidence of similarity between the incident admitted into evidence and the crime charged. Id. at 907, 909-911. This is not the case with Stav, because record evidence establishes the similarity between his actions at LVI and Take Me Along and those incidents both establish an ongoing plan to defraud employers.

Applying the “tipsy coachman” doctrine in the case at bar, one basis stated in the statute for the admission of Williams Rule evidence is to show a plan. Stav was convicted of organized scheme to defraud. Plan and scheme are synonyms. See The Merriam-Webster Thesaurus 422, 488 (1989 ed.). The AD-75 evidence, coupled with the magic coupon misuse, demonstrates that Stav, having experience in the travel industry, engaged in a plan to defraud employers through various methods. This method of misusing magic coupons and AD-75 coupons to affect the cost of airfare caused the travel agencies to pay for the misuse and suffer a monetary loss to the ultimate benefit of Stav. We conclude that the AD-75 coupons helped establish the presence of Stav’s ongoing plan to defraud employers, rather than demonstrate bad character or propensity on Stav’s part. As a result, the trial court did not err by admitting the AD-75 coupons as Williams Rule evidence.

Lastly, we address the sentencing issue. Stav was sentenced based on a 1995 guidelines scoresheet, and the 1995 sentencing guidelines were ruled unconstitutional by Heggs, 759 So.2d at 621. Due to this development, sentencing for offenses occurring between October 1, 1995 and May 24, 1997, the Heggs window, should be based on the 1994 sentencing guidelines. Trapp v. State, 760 So.2d 924, 928 (Fla.2000). When determining whether an offense was committed during the Heggs window, an ongoing felony criminal enterprise, as alleged in Stav’s case, should be “sentenced under the guidelines on the beginning date of the criminal activity.” Fla. R.Crim. P. 3.703(d)(5). Stav’s organized scheme to defraud began in November 1996, within the Heggs window, and at first glance it appears that he was entitled to be sentenced under the 1994 guidelines.

However, Stav's sentence includes an upward departure from the 1995 guidelines range for economic motives. Stav contends that because this departure sentence was based on the 1995 guidelines and not the 1994 guidelines, his sentence should be reversed and remanded for appropriate calculation under Hope v. State, 797 So.2d 1252, 1253 (Fla.2001). The State challenges this proposition based on State v. Lemon, 825 So.2d 927 (Fla.2002), which while differentiating Hope, concluded that a departure sentence did not need to be reconsidered where “the departure sentence was based on departure reasons that would be valid under both the 1994 and 1995 guidelines.” Id. at 929. In Stav’s case, the economic motive reason cited by the trial court in applying an upward departure was valid and applicable under both the 1994 and 1995 sentencing guidelines. As a result, Stav’s sentence is not in error and he is not entitled to Heggs relief.

In sum, we conclude that the organized scheme to defraud conviction was not tainted by Williams Rule evidence, and this conviction is affirmed. Stav’s 42.5 month sentence based on a valid departure ground is affirmed. The grand theft conviction and sentence are barred by double jeopardy and reversed.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for discharge of the grand theft greater than $20,000 and less than $100,000 conviction and sentence.

GUNTHER and TAYLOR, JJ., concur.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

I dissent from the affirmance of the admission of the similar fact evidence. In my opinion this evidence should have been excluded. I would reverse for a new trial.

Essentially the trial court admitted evidence of later acts of a defendant to prove that on a prior occasion he had committed the criminal acts with which he was charged and standing trial. The later evidence deals with his arguable misuse of discount coupons, given to agents in the travel industry, by allowing his wife to travel with him. This evidence was adduced to prove that there was no mistake on his part a few years earlier in:

(1) failing to attach consumer domestic travel incentive coupons when submitting tickets to the industry clearinghouse;
(2) unauthorizedly taking additional people on business trips at company expense;
(3) submitting claims for commissions on transactions for which commissions were not allowed; and
(4) posting frequent charge-backs to his son’s credit cards.

I see little similarity between the similar acts evidence and the crimes on trial, except maybe a possible general tendency to engage in conduct that some might regard as fraudulent.

The state fails to address the indispensable requirement that this kind of evidence be so strikingly similar to the crimes charged that the commission of the one establishes the commission of the crime on trial. In Heuring v. State, 513 So.2d 122 (Fla.1987), the court explained the striking similarity requirement thus:

“Similar fact evidence that the defendant committed a collateral offense is inherently prejudicial. Introduction of such evidence creates the risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof that he committed the charged offense. Such evidence is, therefore, inadmissible if solely relevant to bad character or propensity to commit the crime. To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.” [e.s.]

513 So.2d at 124. The state, the proponent of the evidence, has failed to demonstrate how the later acts can even be likened to the charged acts, much less show a strikingly similarity. The state has not shown how this evidence does anything more than possibly suggest a general tendency to cheat.

The state’s use of the similar acts evidence in this case expands the admission of Williams rule evidence beyond any legitimate use. As I said, the evidence here does little more than suggest a propensity to stretch travel industry practices to increase his compensation. As one critic of the use of similar fact evidence in familial sexual battery cases has said:

“if the charged and uncharged crimes are only generally similar, then the uncharged crime proves the charged crime only by proving propensity. It is the difference between saying ‘the defendant is the kind of person who commits crimes like this’ and saying ‘the defendant is the person who commitfted] this crime.’ ”

Richard J. Sanders, A Dangerous Bend in an Ancient Road: The Use of Similar Fact Evidence for Corroboration, 74 Fla. BaR J. 40, 44 (2000).

I cannot agree that this evidence was harmless. In fact I am confident that the improper admission of the similar acts evidence in this case actually affected the jury’s decision. Certainly the state has done nothing to show beyond a reasonable doubt that it did not. See Goodwin v. State, 751 So.2d 537 (Fla.1999) (if erroneous judicial ruling is to be found harmless, court must first evaluate impact of error in light of overall strength of state’s case and defenses asserted and then conclude beyond reasonable doubt that verdict could not have been affected by erroneous ruling); Heuss v. State, 687 So.2d 823 (Fla.1996) (same); State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (same); see also Czubak v. State, 570 So.2d 925, 928 (Fla.1990) (erroneous admission of collateral crimes evidence is presumptively harmful); Castro v. State, 547 So.2d 111, 116 (Fla.1989) (same).


author: WARNER, J. HAZOURI, J.,

text:
    Rafael HERNANDEZ-MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-215.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.

      Rafael Hernandez-Molina, Bristol, pro se.
    No appearance required for appellee.
   WARNER, J.

The issue presented in this appeal is the constitutionality of Chapter 99-188, Florida Statutes, pertaining to the punishment of felony offenders. Appellant contends the law violates the single subject provision of Florida’s Constitution because it includes unrelated provisions. Because the statute is presumed constitutional, and any invalidity on single subject matter must appear beyond a reasonable doubt, we conclude that appellant has not met that burden. The provisions of the legislative act are all logically related and further the purpose of the act, which is to protect the public from serious felony offenders. We hold the legislation to be constitutional, agreeing with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003), and certifying conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

Appellant was charged under section 893.135(l)(b)l.b., Florida Statutes (1999), with trafficking in cocaine in excess of 200 grams. Appellant pled no contest and was sentenced to seven years in prison with a seven-year mandatory minimum sentence. He brought a motion to correct an illegal sentence, arguing that the amendments to section 893.135 by Chapter 99-188, Laws of Florida, violated the single subject provision of Florida’s Constitution as held in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Section 9 of Chapter 99-188 amended the statute to create the seven-year mandatory term which appellant received for trafficking in cocaine. The trial court summarily denied appellant’s motion, concluding that the Legislature’s retroactive application of the re-enactment cure in Chapter 02-212, Laws of Florida, as approved by Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), closed the window period.

For reasons expressed in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), we hold that retroactive application of a cure to a single subject violation is contrary to the ex post facto clauses of both the United States and Florida Constitutions. See U.S. Const, art. I, § 10, cl. 1; Art I, § 10, Fla. Const. We recede from our published opinions relying on Hersey. We therefore proceed to consider the constitutionality of Chapter 99-188.

Single Subject Analysis

Article III, section 6, of the Florida Constitution contains the single subject requirement for laws passed by the Legislature:

Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.

This section is substantively similar to article III, section 16 of the 1885 Constitution, see Art. Ill, §16, Fla. Const. (1885), and also appeared in the Constitution of 1868. See State ex rel. Flink v. Canova, 94 So.2d 181, 183 (Fla.1957). Thus, Florida courts have construed this provision for well over one hundred years. In Flink, the supreme court first explained the purpose of the provision from its historical root, drawing on Cooley, A Treatise on the Constitutional Limitations (1874):

[T]he purpose of those provisions was (1) to prevent hodge podge or ‘log rolling’ legislation, i.e., putting two unrelated matters in one act; (2) to prevent surprise or fraud by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon. [T]he general disposition of the courts was to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.

Id. at 184. The court then summarized the principles applied in interpreting the single subject clause:

In determining if matters are properly connected with the subject, the test is whether such provisions are fairly and naturally germane to the subject of the act, or are such as are necessary incidents to or tend to make effective or promote the objects and purposes of legislation included in the subject.
Also, if a matter properly connected with the subject is also named in the title to the act, no material harm has been done. A title merely mentioning matters germane to one subject is not inválid as relating to more than one subject; amplification of the title does not vitiate it.
The subject of an act is the matter to which it relates and the object is its general purpose. It is of course not necessary that the objects be included in the title of the act. Only the subject and not matters properly connected therewith is required by the constitution to be expressed in the title to the act.

Id. at 184 (citations omitted) (emphasis added). Finally, the court provided for a highly deferential standard of review with a presumption in favor of validity and a “beyond a reasonable doubt” standard to overcome the presumption:

Should any doubt exist that an act is in violation of art. Ill, Sec. 16 of the Constitution, or of any constitutional provision, the presumption is in favor of constitutionality. To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law. Therefore, the act must be construed, if fairly possible, as to avoid unconstitutionality and to remove grave doubts on that score.

Id. at 184-85 (emphasis added).

Following this precedent, the court explained in Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991), the wide latitude given to the Legislature in applying the single subject limitation:

The purpose of this constitutional prohibition against a plurality of subjects in a single legislative act is to prevent “logrolling” where a single enactment becomes a cloak for dissimilar legislation having no necessary or appropriate connection with the subject matter. The act may be as broad as the legislature chooses provided the matters included in the act have a natural or logical connection.

Id. at 1172 (citations omitted). In applying these principles, the court has defined the subject broadly where the Legislature has addressed an issue comprehensively. However, where the act is more limited in its provisions, the court has defined the subject narrowly. It has consistently rejected the combination of civil provisions with criminal provisions except in a comprehensive act dealing with a “crisis.”

The court has found a “natural or logical connection” where an act intends to comprehensively address a “crisis.” Thus, in Smith v. Department of Insurance, 507 So.2d 1080, 1085-87 (Fla.1987), the court approved the joining of disparate topics regarding insurance and tort reform because they all were related to a liability insurance crisis. Accord Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981), receded from on other grounds, Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla.2001); State v. Lee, 356 So.2d 276 (Fla.1978). In Burch v. State, 558 So.2d 1, 2-3 (Fla.1990), the court approved an act which included a comprehensive revision of substantive criminal provisions and procedures with provisions dealing with safe neighborhoods and money laundering, many of which were civil provisions, on the ground that the act addressed a criminal “crisis.”

On the other hand, where only two provisions were included in an act, one dealing with criminal law and the other dealing with a civil regulatory matter, the court held that the single subject clause was violated. See State v. Johnson, 616 So.2d 1 (Fla.1993) (act which joined provisions regarding habitual offender sentencing with provisions on repossession of motor vehicles by private investigators violated single subject requirement); Bunnell v. State, 453 So.2d 808 (Fla.1984) (act joining provision for criminal penalty for obstruction of justice by false information with provisions relating to the Florida Council on Criminal Justice violated single subject rule as provisions had no cogent relationship).

In both Heggs v. State, 759 So.2d 620 (Fla.2000), and State v. Thompson, 750 So.2d 643 (Fla.1999), the court struck down legislative acts which joined criminal provisions with civil provisions. The statute in question in Heggs included provisions amending various substantive criminal statutes and increasing punishments. In addition, the act included provisions creating a civil cause of action for injuries inflicted in violation of a domestic violence injunction. The court found that the act violated the single subject requirement because it contained civil domestic violence provisions with the criminal provisions. See 759 So.2d at 626. Moreover, it explained that the inclusion of the domestic violence provisions was a “classic act of logrolling.” Id. at 627. In Thompson, the court noted that the domestic violence provisions had originally failed to pass as a separate bill and were added on the floor of the House very near the end of the regular session. 750 So.2d at 648.

Most recently, in Tormey v. Moore, 824 So.2d 137, 141 (Fla.2002), the court determined for the first time that an act containing two criminal provisions failed the single subject test because the provisions were not “reasonably connected.” In Tor-mey, however, the issue was primarily one of a title defect that made the title misleading. The act contained provisions regarding criminal penalties for crimes against law enforcement, including the exclusion of provisional credits. During the amendment process, this was expanded to include the exclusion of credits to any person convicted of murder or attempted murder against any person, not just law enforcement. While the title of the act included the phrase “An Act Relating to Criminal Penalties,” the remainder of the title as well as the preamble of the act revealed “that the Legislature intended and in fact named the act the ‘Law Enforcement Protection Act.’ ” See id. at 140. No mention was made in the title of the increased scope of the act to include increased penalties against persons convicted of general murder. See id. In this context, the court held that the exclusion of provisional credits for murder in general was not reasonably connected with the ‘express’ subject of the act which was increased penalties for crimes against law enforcement. See id. at 141. Thus, the act addressed more than one subject, and the title did not include a reference to the general murder provisions of the act. Because the title did not contain the challenged section, the court found that it could sever that section from the remaining sections without offending the constitutional provisions. See id. at 142.

Chapter 99-188

The district courts of appeal are split on whether Chapter 99-188 violates the single subject provision of the constitution. As noted in Taylor, the thirteen sections of the act include six relating to increased punishment for violent or repeat felony offenders; one relating to increased punishment for trafficking in certain amounts of drugs; three sections involving the implementation of the act’s provisions; one section creating a new offense of repeat sexual batterer; section 13, amending the definition of conveyance in the burglary statute; and section 11, concerning the duty of the clerk to furnish a copy of the judgment and sentence of any convicted alien to the INS. 818 So.2d at 546-47.

In Taylor, the second district found that all of the sections were logically connected except sections 11 and 13. The court determined that while all of the other sections dealt with sentencing, section 13 merely amended the definition of a conveyance to include a “railroad vehicle” as well as a railroad car in the definition of burglary. See id. at 549. It reasoned:

This slight expansion of a substantive criminal offense has only an attenuated relationship to sentencing ... in that it might be argued that under the broader definition of a conveyance more felons could be convicted of “armed burglary,” one of the qualifying crimes for three-strikes sentencing.... But that relationship is so tenuous, so dependent on the happenstance of individual cases, that it simply cannot be characterized as natural or logical.

Id. at 549 (citation omitted). It also found that section 11 addressed a purely administrative subject which had nothing to do with the act’s other sections. See id. Because of the inclusion of these two unrelated sections, the act violated the single subject requirement, and the court held it unconstitutional. See id. at 550.

The third district took an opposite view in State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). That court concluded that both of the sections which Taylor found unrelated were sufficiently related to the general purpose of the act as a whole, which was to “protect the public from repeat and serious violent felony offenders.” 836 So.2d at 1113. Section 11, requiring the clerk to forward a copy of the criminal judgment and sentence to the INS, was reasonably related to that purpose by assuring a more prompt removal of alien offenders from the country. See id. at 1114. As to the amended definition of “conveyance” in the burglary statute, the court found it had the effect of expanding the reach of the armed burglary statute, one of the offenses included in the Habitual Felony Offender Act, effecting the increase of sentences available to violators of the statute. See id. The court concluded, “In any event, the statute as a whole is quite plainly not ‘a cloak’ for dissimilar legislation having no necessary or appropriate connection with the subject matter’. ...” Id.

After considering the presumption of constitutionality of a statute on single subject grounds, and that a statute should not be invalidated on single subject grounds unless its invalidity appears beyond a reasonable doubt, see Flink, 94 So.2d at 184-85, we agree with the third district’s analysis and conclude that the questioned provisions are sufficiently connected to the subject and effectuate the purpose of the legislation such that we cannot say it violates the single subject requirement beyond a reasonable doubt.

The title to Chapter 99-188 begins, “An act relating to sentencing.” It then lists each and every provision contained within the act, including sections 11 and 13. See Ch. 99-188, at 1036-38, Laws of Fla. Because the title fully informs of the provisions of the act, the title is not defective or misleading, as it was in Tormey. The title of the act places the public on notice of exactly what the act contains.

As explained in Flink, “[i]n determining if matters are properly connected with the subject, the test is whether such provisions are fairly and naturally germane to the subject of the act, or are such as are necessary incidents to or tend to make effective or promote the objects and purposes of legislation included in the subject.” 94 So.2d at 184 (emphasis added). We agree with the third district that the purpose of the act is to increase the penalties on certain crimes and certain offenders for the protection of the public. Thus, the subject is sentencing, and the purpose is to protect the public through increased punishments.

Section 11, requiring the clerk to send a copy of an alien’s conviction and sentence to the INS, is related to the subject and the purpose of the act. There is a logical connection between convicting and sentencing an alien and notifying the INS, the agency in charge of deporting criminal aliens, of that fact, when the alien is subject to deportation at the end of his or her sentence. It is merely an administrative provision which tends to promote the purpose of the legislation to protect the public, as the third district noted, so alien offenders can be removed from the country upon completion of their, sentences.

Section 13, which amends the definition of conveyance, also relates to the subject of sentencing and increased punishment, albeit indirectly. That section was introduced by the Senate sponsor of the bill, Senator Lee, at the Fiscal Policy Committee meeting before the bill was sent to the Senate floor. Senator Lee noted that the amendment was brought to him by a constituent. He explained that because of ambiguity in the present definition in the statute, which covered only railroad cars, it had prevented successful prosecution of persons committing burglary offenses against conductors of railroad locomotives. See State Archives, Tape of Hearing of Senate Fiscal Policy Committee (Apr. 14,1999). The amendment would specify that such conduct would constitute burglary and not a lesser offense. As the third district noted, it would expand the conduct included in “armed burglary,” one of the qualifying offenses in the Habitual Felony Offender Act. See Franklin, 836 So.2d at 1114. It was proposed so that a serious crime against a person, a railroad conductor, would be punished accordingly. Thus, the statute clearly provides for an increased sentence for a person committing a serious crime. As such, it relates both to the subject and purpose of the entire act.

We follow Flink which explained that the single subject constitutional provision should be liberally construed, “rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.” 94 So.2d at 184. The purpose of the single subject provision was to prevent “logrolling,” which has generally been defined as including several propositions in one measure so that the legislature will pass all of them, even though the propositions individually may not have passed. See Black’s Law Dictionary (7th ed.1999). Logrolling was present in Heggs, where a measure which could not pass on its own, the civil remedies for domestic violence, was added on the floor of the House to a popular bill increasing criminal punishment. Chapter 99-188 is not an example of such logrolling. All of the provisions dealt with the criminal law and can be linked to one subject and the accomplishment of the purpose of the legislation. There is absolutely no suggestion that any of the provisions of this law would not have passed had they been introduced in separate bills. We should apply the single subject provision to avoid a “construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.” Flink, 94 So.2d at 184.

For these reasons, we affirm the judgment of the trial court denying appellant’s motion to correct an illegal sentence. We note express conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

FARMER, C.J., STONE, POLEN, STEVENSON, SHAHOOD, GROSS and MAY, JJ., concur.

HAZOURI, J., concurs in part and dissents in part in which GUNTHER, KLEIN and TAYLOR, concur.

HAZOURI, J.,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that the retroactive application of the reenactment cure in Chapter 02-212, Laws of Florida, as approved by Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), should be rejected and concur that Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), is the better reasoned decision precluding the retroactive application of a cure to a single subject violation. However, I dissent from the majority’s conclusion that Chapter 99-188 does not violate Article III, section 6, of the Florida Constitution.

In Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), the Second District held that Chapter 99-188, Laws of Florida, violates the single subject requirement of the Constitution of the State of Florida. The single subject requirement provides: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” Art. Ill, § 6, Fla. Const. The title to Chapter 99-188 begins: “An act related to sentencing.” Finding that general sentencing was the expressed subject of the act, the court in Taylor found that the following three sections of the law were not logically or naturally related to this subject: section 13, which amended the definition of “conveyance” in the burglary statute; section 11, which amended the administrative duty of the clerk of the court to provide records to immigration officers; and section 7, which created the “new offense” of repeat sexual offender. Id. at 549-550.

While I agree with the ultimate holding of Taylor that Chapter 99-188 violates the single subject requirement, I find the single subject violation to be more pervasive than identified by the Second District. Although the first line of the title suggests the subject of this law is sentencing in general, the next line begins to narrow the subject, “creating the ‘Three-Strike Violent Felony Offender Act.’ ” The nearly four-page title goes on to refine and significantly restrict the subject of the act. Twenty-one “WHEREAS” clauses identify a crisis in our sentencing laws concerning recidivist violent criminals. The expressed purpose of this law culminates in section one’s declaration: “This act may be cited as the ‘Three-Strike Violent Felony Offender Act.’ ” In my view the subject identified by the title of this act concerns matters related to enhanced sentencing for repeat violent felony offenders. Single subject analysis requires more than a mere examination of the introductory phrase, “An act relating to sentencing.”

In Heggs v. State, 759 So.2d 620 (Fla.2000), for example, the Supreme Court of Florida read beyond the introductory phrase, “An act relating to the justice system,” in determining whether Chapter 95-184 violated the single subject requirement. The Court also looked beyond the same introductory phrase in State v. Thompson, 750 So.2d 643 (Fla.2000), in determining the subject of an act. Recently, the Court again performed a similar analysis in Tormey v. Moore, 824 So.2d 137 (Fla.2002). The law under attack in Tormey was titled the “Law Enforcement Protection Act.” All of the body of the Act dealt with increased penalties for people who commit crimes against law enforcement personnel except one section which denied provisional credits for a person convicted of murder or attempted murder of anyone. Id. at 140. The Court explained that “[t]he key to the resolution of this case is the true title of the act in question.” Id. Although the beginning of the act indicated it was “an act relating to criminal penalties,” the focus of the act was narrowed and restricted in its intent to the protection of law enforcement. Id. The Court found support for this conclusion in the WHEREAS clauses, which clearly identified a crisis concerning the risk to law enforcement personnel. The situation in Chapter 99-188 is analogous.

The expressed subject of the “Three-Strike Violent Felony Offender Act” is enhanced sentencing for recidivist violent felons. The Act contains various provisions which are not “properly connected therewith” and, therefore, violates the single subject requirement.

As pointed out in Taylor, section 11, amending the administrative duty of the clerk of the court, and section 18, amending the definition of a conveyance in the burglary statute, fail to naturally and logically relate to the single subject expressed by the Act’s title. In addition, section 9, which amends the quantity of drugs used in classifying trafficking offenses and requires minimum mandatory sentences on certain trafficking offenses, does not naturally or logically relate to the expressed subject of this Act, i.e., repeat violent felony offenders. The provisions contained in an act must be “fairly and naturally germane to or reasonably connected” with the subject of the act. See State v. Reedy Creek Improvement Dist., 216 So.2d 202, 206 (Fla.1968).

In State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003), the Third District found that Chapter 99-188 did not violate the single subject requirement as all the sections of the Act were sufficiently related to the purpose of the Act “to protect the public from repeat and serious violent offenders.” Id. at 1113-1114. Although the purpose of the Act was protecting the public from repeat and serious violent felony offenders, I cannot agree that all the provisions of the Act are sufficiently related.

The majority opinion in Franklin finds “no difficulty in concluding that the legislature acted within its authority in determining that imposing harsher penalties for drug crimes is related to the occurrence of violent offenses in our community.” Id. at 1114 n. 3. While some relation may exist between trafficking offenses and violent crime, I have great difficulty concluding that such a relation is natural or reasonable, especially where the Legislature makes no hint of any relation between these two seemingly distinct subjects.

The connection urged by Franklin and adopted by the majority in the instant case seems artificial and strained. While drug trafficking may, in some situations, lead to the commission of violent felonies, the same logical leap of faith could be made with almost any criminal provision. Such an expansive interpretation of the phrase, “matters properly connected therewith,” could be used to “logically” create a connection between almost any two legal provisions no matter how obviously distinct. As a result, every act could pass single subject muster if a creative court could find “some possible relation” with the subject, no matter how tenuous the connection may be.

Equally tenuous is the Franklin majority’s suggestion that the administrative duty of the clerk somehow relates to violent felons, “because it insures the removal of these felons from the country.” Id. at 1114. The administrative duty pertains to records of misdemeanants as well as felons whether violent or not. Franklin’s strained reasoning could be used to relate the addition of “railroad car” to the definition of “conveyance” in the burglary statute. The commission of a burglary of a railroad car might, in some situation, be violent and possible of repetition, and therefore, such a provision could relate to the sentencing of repeat violent felons. This stretches the reasonable relation requirement to the point of breaking.

The constitutional requirement for an act’s title is that it give notice as to the act’s contents, and, moreover, not mislead the public or the legislature as to the scope of the act. See King Kole, Inc. v. Bryant, 178 So.2d 2, 4 (Fla.1965). What is required is notice of the subject of the act sufficient to reasonably lead to inquiry into the body of the act, preventing fraud or surprise from provisions contained therein. The test of whether a title misleads is whether it would deceive the mind of an ordinary person used to the common meaning of language, not the mind of a precisionist used to technical refinements of terms. Id. Courts must strike down an act which clearly offends the above cited constitutional requirement but should refuse to declare an act void as violative of this section except in clear cases free from every reasonable doubt. See Ex parte Pricha, 70 Fla. 265, 70 So. 406 (1915).

The Legislature clearly identified a subject in the title to Chapter 99-188. An ordinary person reading this title is on notice that the Act will deal with sentencing repeat violent offenders. While the Legislature generally can make an act as broad as it chooses, the title must give reasonable notice of an act’s breadth. The Legislature may also make an act as narrow as it chooses. The requirement that “the subject be briefly expressed in the title” does not mandate that the subject is only that which is briefly expressed in the word or words following “[a]n act relating to.” A reading of the complete title will often reveal that the scope of an act is significantly narrower. Such is the ease in Chapter 99-188 where the title notices the legislative intent to enhance sentencing for repeat violent felony offenders. The title of this Act does not notice an intent to broadly amend sentencing laws in general.

Accepting as the title, “an act related to sentencing,” and ignoring the remaining substance of the title, which significantly narrows the scope of the act, would make the title affirmatively misleading. An ordinary person reading this title would in my judgment form the conclusion that this Act addressed repeat violent offenders. Such a reading is supported by the Legislature’s choice of a name for the Act, The Three-Strike Violent Felony Offender Act. The title does not fairly give notice that this Act will be modifying the quantity of drugs used for drug trafficking classification or imposing mandatory sentences for drug offenses. The Legislature identified a limited crisis concerning violent felony offenders, not a broad crisis in sentencing in general. No indication is given that this crisis relates in any fashion to drug trafficking offenses.

The brief expression of the subject, “sentencing,” gives only general notice of the overall subject of the Act. It is difficult to say in this situation that this brief title really identifies the single subject that was to be the object of this legislation. A reading of the entire title leads to the inescapable conclusion that the true subject of this Act was sentencing as it properly relates to protecting the public from repeat violent felony offenders.

The second part of the single subject requirement requires that all the provisions of the act properly relate to the single subject expressed by the title. The crisis identified in the title to Chapter 99-188 is a narrow one, not a broad ranging crisis in sentencing generally. Reading the title does not fairly give notice that the provisions of the Act will be addressing the laws relating to drug trafficking. The amendments to the trafficking definitions and the mandatory minimum sentences for these offenses do not logically relate to the single subject identified by the title. A hodge podge of unrelated provisions thoroughly confuses the subject of the legislation and entirely undermines any confidence that an act represents the will of the majority of legislators.

The window period for challenging sentences under Chapter 99-188 began on July 1, 1999 and ended April 29, 2002 with the enactment of Chapter 02-212. As Hernandez-Molina committed the offense he challenges during this period, he is entitled to be sentenced under the statute that was validly in place at the time of his offense. I would reverse and remand for resentencing under the proper statute.

GUNTHER, KLEIN and TAYLOR, JJ„ concur.

        . We have released several PCA opinions citing or relying on Hersey from which we now recede. See Bruso v. State, 837 So.2d 1077 (Fla. 4th DCA 2003); Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002); Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).

      . Although the dissent also finds a lack of connection with regard to the provisions regarding drug offenses in the act, neither the second district nor the third district found that those provisions caused a single subject violation, nor do we. Those sections deal with sentencing, and their intent was to increase punishment for trafficking offenses. The Staff Analysis of both Legislative chambers confirms this. Those sections increasing the mandatory minimum punishments for drug trafficking was the legislative effort to restore the minimum mandatory penalties to those in Florida law prior to their removal in 1994. See H.R. Comm. on Corrections, Final Analysis, Bill CS/HB 121, 1999 Leg. Sess., at 24. Those sections defining a "cannabis plant” and providing how a court should sentence based upon the weight and number of plants was included to harmonize Florida law with prevailing Federal law so as to punish growers based upon the scale of their operation. See Senate Staff Analysis, Criminal Justice Comm., Bill CS/SB 1746, 1999 Leg. Sess., at 9. An example given in the staff analysis shows that where the weight of the cannabis falls into a three year mandatory minimum but the number of plants would amount to a seven to fifteen year mandatory minimum, the court would be required to sentence the offender to the higher minimum. Id. at 16. In all of the sections of the act regarding drug offenses, the intent was to increase punishment for serious drug offenses.

      . The tide to this act is not limited as the dissent suggests. Contrary to the dissent, the title does not narrow but expands its reach by including a reference to each section of the act. ''[A]mplification of the title does not vitiate it.” See Flink, 94 So.2d at 184 (citations omitted).

      . The Supreme Court of Florida made a similar observation in finding the law at issue in State v. Thompson, 750 So.2d 643, 648 (Fla.2000), violated the single subject rule: "the Legislature has not identified a broad crisis encompassing both career criminals and domestic violence.”


author: WARNER, J.

text:
    Michael WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1303.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Rehearing Denied Dec. 18, 2003.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for Appellee.
   WARNER, J.

Appellant was convicted of arson and possession and discharge of a destructive device. Based upon the jury’s finding that appellant discharged a destructive device, the court felt obligated to sentence appellant to twenty years in prison under the 10/20/Life statute. Appellant contends that because the destructive device did not explode, it did not discharge within the meaning of the sentencing statute, so his sentence should only be ten years for possessing a destructive device. We construe the sentencing statute under the rule of lenity and hold that where the destructive device did not explode, it did not “discharge.” Therefore, at most, the defendant could be sentenced to ten years for possession of a destructive device. We therefore reverse.

The charge against appellant was based upon the discovery of a blue bottle containing a rag used as a wick laying next to an SUV owned by Anthony Collins. The detective who investigated the scene testified that the bottle contained “some type of ignitable liquid.” The bottle was intact except for a crack caused by heat from it being on fire. Collins noted a mark on his SUV that was not there the night before, and there was a scorch mark on the grass. There was no other indication of damage.

A neighbor of Collins led the detectives to appellant. The neighbor, Stephanie Williams, had dated appellant but wanted him to stop calling. She had a friend call appellant to tell him to stop calling and listened in on the conversation. According to testimony, appellant believed that Collins had a romantic relationship with Williams. In the phone conversation, appellant told Williams’s friend that he had messed up Collins’s car. Williams’s brother-in-law testified that appellant told him that he had thrown “some kind of a little bomb” at the SUV. Williams’s sister testified that she overheard the confession appellant made to her husband.

No physical evidence was found linking appellant to the crime. A crime lab analyst from the State Fire Marshall’s Fire and Arson Laboratory testified that both the bottle and cloth found at the scene tested positive for the presence of gasoline.

Appellant presented an alibi defense at trial. He was living with his mother and Tawana Smith at the time of the offense. Both women testified that he was home that night. Appellant also testified that he was at home, taking care of Smith’s sick child. He denied confessing anything about the incident. His attorney argued that Williams and her family members were not credible and were only trying to “get rid” of appellant.

The jury found appellant guilty on both counts as charged in the information. As to the destructive device count, the jury found appellant actually possessed and discharged a destructive device. Based on the jury’s finding, the trial court felt obligated to sentence appellant to a mandatory minimum term of twenty years on the discharge of a destructive device count, pursuant to section 775.087(2)(a)2., Florida Statutes (1999). The court also sentenced appellant to five years on the arson count, concurrent with the twenty-year sentence. Because the trial court believed that a twenty-year sentence was unduly harsh in light of the very limited damage caused by appellant’s actions, it recommended the governor grant appellant relief.

Appellant moved to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He alleged that the trial court erred in sentencing him, to the mandatory minimum term of twenty years for discharging a destructive device when it was not proven at trial that the device was actually discharged. The trial court did not rule on the motion. Therefore, it is deemed denied for purposes of this appeal.

As to the propriety of his conviction, appellant argues that the trial court erred in permitting a detective to testify that the items found at the scene constituted a destructive device under Florida law when the detective was not qualified as a legal expert. While it was error to allow the detective to so testify, the error was harmless as another investigator gave essentially the same testimony under questioning of defense counsel. Moreover, appellant never argued that the object was not a destructive device.

Contesting his sentence, appellant argues that the court erred by sentencing him under section 775.087(2)(a)2. to a mandatory minimum term of twenty years for discharging a destructive device when it was not proven that the device “discharged,” as it did not explode. The state contends that “discharge” is not synonymous with “explosion,” and there is substantial evidence to support a “discharge.” The resolution of this issue requires us to construe the statutory provision.

Appellant was charged with and convicted of a violation of section 790.161, Florida Statutes (1999), which provides that “[a] person who willfully and unlawfully makes, possesses, throws, projects, places, discharges, or attempts to make, possess, throw, project, place, or discharge any destructive device” is guilty of a second degree felony when there is an intent to damage property. § 790.161(2). Section 775.087(2) provides for the penalty:

(a)l. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
e. Arson; or
m. Unlawful throwing, placing, or discharging of a destructive device or bomb;
and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years....
2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.

A “destructive device” is defined as:

any bomb, grenade, ... or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage. ...

§ 790.001(4), Fla. Stat. (1999).

Although the Legislature provided a definition of a “destructive device,” no definition is provided for the term “discharge.” We conclude that “discharge” must mean something different than “makes, possesses, throws, projects, places,” as the statute provides those as alternative means of committing the substantive crime. See § 790.161. Moreover, from the definition of “destructive device”, it is clear that such a device is intended to explode. See § 790.001(4). As noted in Judge Sharp’s dissenting opinion in Stacey v. State, 660 So.2d 1083, 1085 (Fla. 5th DCA 1995), the key characteristic of a destructive device, as with a firearm, is that the device is explosive.

Looking to the dictionary, multiple definitions of “discharge” appear: 1) to relieve of a charge, load or burden; 2) to shoot or give an outlet or vent; 3) to throw off or deliver a load, charge or burden; 4) to put forth fluid or other contents. See Merriam Webster’s Collegiate Dictionary (10th ed.1995). There is no one common definition of the word.

The Legislature committed itself to the “Rule of Lenity” in the construction of criminal statutes, providing in section 775.021(1), Florida Statutes (1999), that “[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” See also McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (realizing that it “is a well-established canon of construction that words in a penal statute must be strictly construed”); State v. Williams, 776 So.2d 1066 (Fla. 4th DCA 2001). Application of that rule means that if there is a reasonable construction of a penal statute favorable to the accused, the court must employ that construction. See Williams, 776 So.2d at 1070.

Because there are many and varied definitions of what constitutes the “discharge” of a destructive device, we interpret that statute most favorably to the accused and conclude that to discharge a destructive device for purposes of 775.087(2) providing for a mandatory minimum twenty-year sentence, the device must explode, i.e., function as it was intended. If the Legislature intended a different or more expansive definition, then it can certainly amend the statute. See State v. Houck, 652 So.2d 359, 359-60 (Fla.1995) (applying ordinary meaning of “weapon” where Legislature failed to define the term in 10/20/Life statute, and noting that if Legislature wanted the word to mean something other than the common definition, it could amend the statute).

The evidence here most favorable to the state demonstrated that appellant threw a bottle containing gasoline and a wick at Collins’s vehicle. The bottle did not break but fell to the ground. The bottle neck was cracked from heat and not an explosion. It caused no damage other than a small mark on the vehicle and a small burn mark on the grass, which could indicate that the device may have been lit but did not explode. Neither the detective nor the arson investigator testified that the device exploded. While the jury found that the object “discharged,” it was not given any definition of that term by the judge. As the supreme court recognized under similar circumstances in Houck, “The failure of the statute to broadly define the term ‘weapon’ cannot be cured by jury speculation.” 652 So.2d at 360. Construing the statute most favorably to the defendant, we conclude that the state did not prove that the destructive device discharged so as to mandate sentencing appellant under the 10/20/Life statute to twenty years for this crime.

For the foregoing reasons, we affirm appellant’s convictions but reverse his sentence under section 790.161 and remand for resentencing.

GUNTHER and MAY, JJ., concur.

      . In another point, appellant argues that the trial court should have made further inquiries when he voiced concern about his trial counsel. Although he relies on Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), appellant did not allege any incompetence on the part of his attorney, simply lack of communication. Moreover, the trial court did not deny him the right to bring up the issue again once he talked with his counsel. In fact, the court invited appellant to raise the issue at the next hearing. Appellant, however, never raised the issue again.


author: KAHN, J.

text:
    B.A.G., father of V.G.G., a child, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D02-2684.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2003.
    Rehearing Denied Jan. 14, 2004.

      Petitioner B.A.G., pro se,
    Carol H. Yearwood, Department of Children and Families, Green Cove Springs, for Respondent.
   KAHN, J.

Petitioner, B.A.G., seeks certiorari review of the trial court’s denial of his motion to allow visitation with his then four-year-old daughter at the state prison where petitioner currently resides. We deny the petition.

B.A.G. and S.W. have a daughter, V.G.G., born May 21, 1998, who has received services and intervention since birth by the Department of Children and Families. The case has included claims of domestic violence and use of drugs and alcohol. The parents completed parenting classes, drug and alcohol treatment, and actively participated in an anger-management program, so that the parents and child were again living together in 1999. Based upon an incident involving assault on a police officer and domestic violence in 1998, B.A.G. was convicted and sentenced to prison for ten years, and S.W. was sentenced to jail. The child was placed in the temporary custody of the paternal and maternal grandparents. When S.W. got out of jail and successfully completed a case plan, the court changed custody back to her by order of September 26, 2001. S.W. subsequently filed for a divorce and that matter was pending at the time of the hearing below that produced the order on review. Petitioner, through his court-appointed lawyer, then filed the present motion asking the court to allow visitation with the child at the prison.

With regard to visitation, B.A.G. testified that before his wife initiated the dissolution action, she consistently brought their daughter to visit him in prison, and when she could not, his mother brought the child every other weekend. He said that after he refused to sign a settlement agreement, his wife cut off visitation and had permitted only one visit in the previous eight or nine months. He said the prison had good facilities for children’s visits, with books, toys, games, and puzzles, and that visitation had always been enjoyable with his daughter, whom he loved very much. He had five years yet to serve.

The mother was not present at the hearing, so her attorney, without objection, made certain representations as to what the mother’s testimony would be, including details of certain incidents of prior visitation that did not work out well. Moreover, the mother’s attorney reminded the court that no guardian ad litem had yet been appointed for the child and urged “before the court forces visitation upon her at Baker Correctional Institute, that a guardian ad litem be appointed so there is an advocate for the child so that we can have a full explanation of all this which would be awfully difficult to do in a hearing setting like this.” The trial court declined to require visitation.

The trial court’s order of May 23, 2002, is a non-final, non-appealable order. See Dep’t of Health & Rehab. Servs. v. Honeycutt, 609 So.2d 596 (Fla.1992) (holding that review of non-final orders determining child custody in child dependency proceedings is not encompassed by rule 9.130(a)(3)(C)(iii), which permits review of non-final orders determining child custody in domestic relations cases). This matter, initially filed as an appeal, must be treated as a petition of writ of certiorari. See J.V. v. Dep’t of Health & Rehab. Servs., 661 So.2d 1263 (Fla. 1st DCA 1995) (treating direct appeal of nonfinal order determining issue regarding a performance agreement in dependency case as appropriate for petition for certiorari review). The standard we must apply to a petition for certiorari, of course, is whether the trial court’s order departs from the essential requirements of law. See, e.g., Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000) (“For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”).

At the outset, we recognize that the trial court’s order does not deny visitation, but merely refuses to coerce the mother to take the young girl to the prison on a regular basis for visitation. Petitioner has had visitation with his daughter in the past, and may well have visitation in the future, although the mother’s discretion will certainly come into play, subject to the final order in the pending dissolution of marriage. Further, the effect of the order before us is, in essence, that of a temporary order because, as acknowledged by the mother’s attorney, the trial court could easily revisit the matter upon appointment of a guardian ad litem and after a fuller report as to the exact circumstances that would be involved in visitation at the state prison facility. See Dent v. Dent, 851 So.2d 819, 821 (Fla. 2d DCA 2003)(String-er, J., concurring)(“It is well settled that courts retain authority over interlocutory orders and may change, modify or set aside such orders until the entry of a final judgment.”); T.M.M. v. H.M.C., 788 So.2d 1114, 1118 (Fla. 2d DCA 2001)(explaining that trial court was free to revisit temporary nonfinal order requiring father to continue to provide visitation with his children to his sister where order was entered “without prejudice” and in contemplation of a further evidentiary hearing). See also § 61.401, Fla. Stat. (2002)(providing that court may appoint guardian ad litem “[i]n an action for dissolution of marriage, modification, parental responsibility, custody, or visitation, if the court finds it is in the best interest of the child....”).

Moreover, there is no reason to believe that the mother, who has not appeared in this appeal, is not doing an adequate job parenting the child. The Department of Children and Families has advised the court that it was relieved of supervising this dependency matter as of September 26, 2001, and has had no need to have any contact with this case since then, although Department did appear at the visitation hearing on May 23, 2002. The Department has taken no position on the question of visitation either before the trial court or this court.

We are unable to say that the trial court’s refusal to compel visitation in prison is a departure from the essential requirements of law. In reaching this conclusion, we have taken into consideration the fact that, as stated above, the effect of the order is that of a temporary order, that a guardian ad litem had never been appointed on behalf of the child, and further that the question was pending for disposition before the dissolution of marriage court, with any order entered by that court as to visitation or any other issue subject to full plenary review.

CERTIORARI DENIED.

PADOVANO, J., concurs, and ERVIN, J., concurs in result.


author: MAY, J.

text:
    F.R. a Child, Appellant, v. STATE of Florida, Appellee.

      No. 4D03-172.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals from an adjudication of delinquency based on a charge of trespass after warning. He argues that the trial court erred in excluding a defense witness and denying a motion for continu-anee. We agree that the trial court abused its discretion in excluding the defense witness and reverse and remand for a new trial.

On September 20, 2002, the State filed a petition for delinquency that charged the defendant with trespass of an occupied structure after warning, giving a false name, and resisting an officer without violence. The case stemmed from a warning given to the defendant not to return to a store in the mall. On September 25, 2002, the State filed its discovery and a demand for reciprocal discovery. On October 21, 2002, two days before trial, the defense filed a witness list.

When the day of trial arrived, the State claimed that it had not received the witness list and that it had been untimely filed. The State asked the court to exclude the witness claiming prejudice due to the State’s inability to depose the witness prior to trial. The trial court properly held a Richardson hearing.

The defense responded that it had only become aware of the witness on October 11, 2002, and did not disclose the witness until it had an opportunity to interview the witness on October 20, 2002. The defense filed the witness list the next day, two days prior to the trial. The defense argued that the witness was crucial to its case and offered the State an opportunity to speak to the witness before starting trial.

The court granted the State’s motion to exclude the witness and started the trial. After the State called its first witness, defense counsel moved for a continuance to allow the State an opportunity to depose the defense witness. The court denied the motion.

The court granted the defense motion for judgment of acquittal on counts two and three and found the defendant guilty of the trespass charge. It is from this decision and the disposition that the defendant appeals.

The parties do not dispute that the defense witness was untimely disclosed. The central issue is whether the trial court abused its discretion when it excluded the defense witness as a sanction for the untimely disclosure. State v. Tascarella, 580 So.2d 154 (Fla.1991). In Tas-carella, the Florida Supreme Court held that a trial court should not exclude relevant evidence unless no other remedy suffices. The appropriateness of the remedy depends on the totality of the circumstances.

A similar set of fácts was reviewed in Donaldson v. State, 656 So.2d 580 (Fla. 1st DCA 1995). In Donaldson, the State had charged the defendant with sale of cocaine within 1,000 feet of a school. On the first day of trial, the defense revealed a witness, who would testify that a few weeks before trial, he overheard a confidential informant tell two individuals that his attempt to make a controlled buy of cocaine from the defendant failed. The trial court found that the late notice of the witness would unduly prejudice the State and excluded the witness. The First District reversed.

With all due deference to the trial court’s broad discretion in this matter, we are unable to affirm the exclusion of the witness in this case. Even assuming prejudice to the [Sjtate, no effort was made to determine whether reasonable means could have been employed to overcome the prejudice, such as a recess or continuance to afford the [SJtate the opportunity to investigate the witness’ account, without resorting to the drastic exclusion of the witness.

Id. at 581. Similarly, in this case the trial court failed to consider other reasonable means to overcome any prejudice to the State.

Juvenile proceedings operate under an expedited time frame. While the defense was admittedly late in disclosing the witness, the time frame from the date of the incident to the trial was only 89 days. The defense explained the reason for the late disclosure and offered an opportunity for the State to question and/or depose the witness. The defense witness would testify that the defendant never entered the store after having been warned to stay out of the store. This testimony contradicted that of the State’s witness who testified that the defendant re-entered the store after having been warned not to come back. Thus, the witness’s testimony was critical to the defense.

“The severe sanction of witness exclusion should be a last resort reserved only for the most extreme or compelling circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative.” Donaldson, 656 So.2d at 580-81. Given the uncomplicated nature of the case, the nature of the testimony and proceedings, the reasonable explanation of the defense, and the other reasonable means available to overcome any prejudice, we find that the trial court abused its discretion by excluding the defense witness. The adjudication of delinquency is reversed and the case is remanded for a new trial on the trespass charge.

FARMER, C.J., and GUNTHER, J., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971) (setting forth the procedure to be used in determining the appropriate sanction for a discovery violation).


author: STEVENSON, J.

text:
    JOJO'S CLUBHOUSE, INC., Appellant, v. DBR ASSET MANAGEMENT, INC., Dim Parkway Limited Partnership, Ross Realty Investment, Inc., Robert Sherman, individually, and Murton Roofing Corporation, a Florida Corporation, Appellees.
    No. 4D03-341.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.

      Peter Loblack of the Law Office of Peter Loblack, P.A., Miami, for appellant.
    Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and William John McFarlane III of Murphy, McFarlane & Dolan, Fort Lauderdale, for appellees DBR Asset Management, Inc., DIM Parkway Limited Partnership, Ross Realty Investment, Inc., and Robert Sherman.
   STEVENSON, J.

JoJo’s Clubhouse, Inc., appeals from a final judgment arising out of its claim for breach of a lease agreement. JoJo’s obtained a total judgment in the amount of $27,459.86, but took nothing by the action as a result of a $29,342.94 set-off. We affirm the damage award, but reverse the set-off ordered by the trial court.

Based on our review of the record, we find ample support for the trial court’s rejection of the owner’s inflated opinion as to the value of the destroyed restaurant. We, however, agree with JoJo’s argument that the trial court erred in granting set-off from the award based on an attorney’s fee judgment that appellee, DBR Asset Management, Inc., obtained against JoJo’s in a related federal civil rights action.

The basis for set-off was established well in advance of trial, yet DBR failed to seek to amend its answer, instead, waiting until the verdict was returned to state its claim for set-off. A motion for set-off is an affirmative defense. See Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So.2d 669, 670 (Fla. 4th DCA 2001), review denied, 828 So.2d 386 (Fla.2002). Affirmative defenses are waived if not pled. See Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 923 (Fla. 2d DCA 2000); Goldberger v. Regency Highland Condo. Ass’n, 452 So.2d 583, 585 (Fla. 4th DCA 1984). Accordingly, the trial court erred in granting the set-off based on DBR’s untimely post-trial motion.

Affirmed in part, reversed in part, and remanded.

SHAHOOD, J., and GEIGER, DWIGHT L., Associate Judge, concur.


author: PER CURIAM.

text:
    Vincent JOHNSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-4113.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Vincent Johnson, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

Vincent Johnson petitioned this court for a belated appeal from an order of the circuit court which denied his petition for writ of habeas corpus. The petition was denied in Johnson v. Florida Parole Commission, 854 So.2d 808 (Fla. 1st DCA 2008) with a citation to Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999). Johnson has now filed a petition for writ of certiorari with this court, interpreting our earlier opinion as signifying that this is the proper remedy and arguing that the circuit court erred in denying the habeas corpus petition.

We again direct Mr. Johnson’s attention to Powell, where we stated that a belated appeal would not lie from an order in a circuit court civil proceeding such as habe-as corpus. Instead, petitioner must seek relief by way of a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The instant petition for writ of certiorari is therefore denied without prejudice to petitioner’s right to file a Rule 1.540(b) motion in the appropriate circuit court.

PETITION DENIED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Kenneth SUTHERLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1068.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Kenneth Sutherland, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Following a plea of no contest, conviction, and sentence on multiple counts of computer pornography and child exploitation, the defendant appeals an order denying his motion for the return of property seized during the execution of the search warrant. Subsequent to filing the motion to return property and the court’s entry of the order denying the motion, the defendant filed a motion to vacate and set aside his plea on grounds of ineffective assistance of counsel. In light of the pending motion to vacate the plea, we affirm the trial court’s denial of the motion to return property. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). This affirmance is without prejudice to the defendant to renew his motion for the return of property should the trial court deny the pending motion to vacate the plea. In considering a renewed motion to return items seized, the trial court is not limited to the single issue decided in the motion to suppress. Rather, the court must determine whether the property had an evidentiary purpose. If it did not, the court retains “jurisdiction to order its return.” Oleandi v. State, 731 So.2d 4, 6 (Fla. 4th DCA 1999).

AFFIRMED.

FARMER, C.J., GUNTHER and MAY, JJ., concur.