author: ORFINGER, J.

text:
    Gene LEWIS, Jr., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/CrossAppellant.
    No. 5D06-248.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    Kurt Erlenbach, of Kurt Erlenbach, P.A., Titusville, for Appellant/Cross-Ap-pellee.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee/Cross-Appellant.
   ORFINGER, J.

Gene Lewis, Jr. timely appeals his sentence for manslaughter with a firearm. Mr. Lewis argues that his scoresheet erroneously increased the level of his offense from a level 7, second-degree felony to a level 8, first-degree felony under section 775.087(l)(b), Florida Statutes (2003), and added an additional eighteen sentence points for the use of a firearm under section 921.0024(l)(b), Florida Statutes (2003). Mr. Lewis contends that because both of these enhancements were for the use of a firearm, their inclusion constituted a double enhancement. We disagree and affirm.

Section 775.087(l)(b), Florida Statutes (2003), provides, in pertinent part:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(b) In the case of a felony of the second degree, to a felony of the first degree.
For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed.

Here, it is undisputed that Mr. Lewis used a firearm when committing a felony. Therefore, the trial court properly reclassified his charge of manslaughter, a level 7, second-degree felony to a level 8, first-degree felony.

Section 921.0024(l)(b), Florida Statutes (2003), provides that:

If the offender is convicted of committing or attempting to commit any felony other than those enumerated in s. 775.087(2)[] while having in his or her possession: a firearm as defined in s. 790.001(6), an additional 18 sentence points are assessed....

Again, because it was undisputed that Mr. Lewis used a firearm in the commission of the charged offense, the trial court’s inclusion of eighteen additional sentence points is not, on its face, error.

Mr. Lewis contends that his sentence constitutes an impermissible double enhancement because sections 775.087(l)(b) and 921.0024(l)(b) serve the same purpose, ie., punishment for the use of a firearm during a crime. The disposition of this case is controlled by Grantham v. State, 735 So.2d 525 (Fla. 2d DCA 1999). In that case, Buster Grantham was charged with armed trafficking in methamphetamine. Because Mr. Grantham used a firearm during the crime, the trial court reclassified the charge by one degree and enhanced his sentence one level in accordance with section 775.087(1). The trial court also included eighteen points on the scoresheet for the use of a firearm. On appeal, the court concluded that these enhancements were permissible, stating:

Because trafficking in methamphetamine, armed or otherwise, is not an offense enumerated in section 775.087(2) and the carrying or possessing of a weapon or firearm is not an essential element of that offense, we conclude that the trial court properly reclassified the felony pursuant to section 775.087(1), resulting in an increase of sentencing points. Because Mr. Grantham’s weapon of choice was a firearm, the sentence was further enhanced pursuant to section 921.0014(1) for use of a firearm.

735 So.2d at 526. The court also noted that it is not essential that the weapon used during the charged felony is a firearm in order for reclassification under section 775.087(1). Similarly, in this case, the charged crime is not an offense enumerated in section 775.087(2), and carrying a weapon or firearm is not an essential element of manslaughter. For these reasons, the trial court did not err in enhancing Mr. Lewis’s sentence under both section 775.087(1) and section 921.0024(1).

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

      . Manslaughter is not enumerated in section 775.087(2), Florida Statutes.

        . Manslaughter is defined under section 782.07(1), Florida Statutes (2003), as:
      The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.

      . Even if the trial court erred in applying both sections 775.087(1) and 921.0024(1) to the sentencing scoresheet, it was harmless error. "To determine whether the error is harmless, ... this [Cjourt must examine the record and determine beyond a reasonable doubt that the trial court would have imposed the same sentence.” Cosby v. State, 913 So.2d 93, 94 (Fla. 5th DCA 2005) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)). Based on Mr. Lewis's score with both enhancements, the lowest permissible sentence in prison was 144.375 months (12.03 years). The trial court departed from this sentence by sentencing Mr. Lewis to five years, followed by fifteen years probation. If the trial court had removed one of the enhancements from the scoresheet, the lowest permissible prison sentence would have been 130.875 months (10.9 years). Mr. Lewis’s sentence is still well below this recalculated sentence, and it is unlikely that the trial court would have further reduced its sentence in light of the recalculation.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Homero CARMONA, Fernando Carmona, and Isidro Carmona, Appellants, v. McKINLEY, ITTERSAGEN, GUNDERSON & BERNTSSON, P.A., a Florida Corporation, Appellee.
    Nos. 2D06-1850, 2D06-1852, 2D06-1854.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.

      Perry Tanksley, Sarasota, and Susan J. Silverman, Sarasota, for Appellants.
    Albert J. Tiseo, Jr., of McKinley, Itter-sagen, Gunderson & Berntsson, P.A., Port Charlotte, for Appellee.
   VILLANTI, Judge.

Homero Carmona, Fernando Carmona, and Isidro Carmona appeal the orders dismissing each of their individual amended complaints against McKinley, Ittersagen, Gunderson & Berntsson, P.A. (McKinley). Because the trial court impermissibly looked beyond the four corners of the complaints in granting McKinley’s motions to dismiss, we reverse the trial court’s orders of dismissal and remand for further proceedings.

Homero, Fernando, and Isidro Carmona each performed labor on real property owned by Saxony Holdings, LLC. They did so pursuant to an alleged oral contract with the contractor and were not in privity with the owner. When the contractor failed to pay the Carmonas, they individually filed and recorded timely claims of lien against the real property. Subsequently, McKinley posted a bond transferring each claim of lien to security, pursuant to section 713.24, Florida Statutes (2004). Each transfer bond stated that it related to the applicable claim of lien filed by the appropriate Carmona, and each bond stated that it was posted by McKinley.

The Carmonas timely filed suit against McKinley seeking to foreclose on their liens which were transferred to security. McKinley moved to dismiss the amended complaints for failure to state a cause of action, arguing that it was not the proper defendant because it has no interest in the real property; i.e., McKinley is merely the owner’s attorney and posted the bond on the owner’s behalf. Following a hearing, at which McKinley advanced this argument, the trial court dismissed the Car-monas’ amended complaints with prejudice.

In ruling on a motion to dismiss for failure to state a cause of action, the “ ‘trial court is confined to a consideration of the allegations found within the four corners of the complaint.’ ” Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276, 1280 (Fla. 2d DCA 2006) (quoting Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001)). The court must assume that all allegations in the complaint are true and decide whether the plaintiff would be entitled to relief. Russell-Tutty, 928 So.2d at 1279.

Section 713.24(1) permits “any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed” to transfer the lien from real property to security. As a result, McKinley, on the faces of the bonds, is the “person” that transferred the liens to security and, hence, is presumed to have an interest in the real property or contract because it posted the funds. Consequently, the facts alleged by the Carmonas were sufficient ultimate facts alleging entitlement to relief from McKinley. See Fla. R. Civ. P. 1.110(b).

The Carmonas properly attached the transfer bonds to their complaints. The bonds state that they were posted by McKinley and make no reference to being posted on behalf of any other person or entity. Because a judge may consider only the four corners of the complaint in deciding a motion to dismiss, it was not proper for the trial court to consider, and presumably agree with, McKinley’s argument — which was not corroborated on the faces of the complaints — that it was not the proper party to the suit because it merely represents the owner. McKinley may be the owner’s attorney, and McKinley may have posted the bonds on the owner’s behalf; however, in deciding the motions to dismiss, the trial court was restricted to the four corners of the complaints. Thus the Carmonas’ complaints stated causes of action sufficient to survive McKinley’s motions to dismiss. Although McKinley may be able to prove that it was not the proper defendant on a motion for summary judgment, the trial court erred in considering facts outside the complaints in deciding McKinley’s motions to dismiss.

Reversed and remanded for further proceedings.

SALCINES and DAVIS, JJ., Concur.

      . Although McKinley’s motion does not state under which rule it was filed, McKinley continuously argued in its motion and during the hearing that the Carmonas failed to state a cause of action against McKinley. Therefore, we presume that McKinley’s motion was filed pursuant to Florida Rule of Civil Procedure 1.140(b)(6).

      . McKinley also briefly argued that the Car-monas’ amended complaints were not timely filed, but the court found no merit in that argument.


author: WHATLEY, Judge. NORTHCUTT, J., SILBERMAN, Judge,

text:
    Jose BENITEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4325.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Jose Benitez appeals his judgments for five counts of burglary of a dwelling, five counts of grand theft, petit theft, and trespass. Benitez entered a plea to the charges after reserving his right to appeal the denial of his motion to suppress. In his motion to suppress and on appeal, Ben-itez argues that police did not have reasonable suspicion to stop him and that he did not knowingly and intelligently waive his Miranda rights. We conclude that police did have reasonable suspicion to stop him and affirm as to that claim. However, we reverse because the order denying the motion to suppress suggests that the trial court may have applied an incorrect standard in determining whether Benitez knowingly and intelligently waived his Miranda rights.

The trial court denied the motion to suppress Benitez’s confession based on its finding that diminished capacity is not a recognized defense, “The State elicited testimony that the Court finds indicates the defendant is of diminished mental capacity. Diminished Capacity is not a defense recognized in Florida Law.” However, Benitez never argued that diminished capacity was the correct test in determining whether he knowingly and intelligently waived his Miranda rights. The only reference to diminished capacity in the record occurs during the State’s cross examination of Benitez’s expert witness, Dr. Tracy Henley. The State asked Dr. Henley about a conclusion in her report that, under the totality of circumstances, it is likely that Benitez had a diminished ability to make a valid waiver of his Miranda rights.

We note that a defendant’s diminished mental capacity, along with improper coercive police conduct, may be relevant to whether the defendant voluntarily waived his Miranda rights, but his diminished mental capacity is not relevant to whether he knowingly and intelligently waived his Miranda rights. See State v. Stewart, 588 So.2d 1063 (Fla. 3d DCA 1991). At the hearing on the motion to suppress, Benitez’s counsel made it clear that he was arguing that Benitez did not knowingly and intelligently waive his rights and that he was not contending Benitez’s waiver was. not voluntary. Consequently, the trial court should have examined factors relevant to whether Beni-tez knowingly and intelligently waived his rights.

In Ramirez v. State, 739 So.2d 568, 575-76 (Fla.1999), the Florida Supreme Court held that the following factors must be considered in determining whether a defendant knowingly and intelligently waived his Miranda rights: 1) the manner in which the Miranda rights were given, including any trickery or cajoling; 2) the defendant’s age, intelligence, background, and experience; 3) whether the juvenile’s parents were contacted and given an opportunity to speak with him before questioning; 4) the location of the questioning; and 5) whether police obtained a written waiver of the Miranda rights.

At the hearing on Benitez’s motion to suppress, Detective James Sheely testified regarding the first and fourth factors in Ramirez. Detective Sheely testified that he interviewed Benitez at the police station after he had been taken into custody for burglary. Detective Sheely read the Miranda rights form to Benitez, and after reading each right to Benitez, he paused and made eye contact with Benitez to make sure he was following. Benitez appeared to understand what was going on, did not appear to be puzzled, did not appear to have any difficulty understanding the words he was using, and did not ask any questions. After Detective Sheely finished reading the Miranda form, Benitez specifically told him that he understood the Miranda rights, and Benitez also signed the Miranda form, acknowledging that he understood those rights. Detective Sheely testified that the interview was very “low key” and “laid back” and that Benitez’s responses to his questions were “logical.”

Benitez has never asserted, and there was no evidence presented at the suppression hearing, that police used threats, coercion or trickery to obtain the confession— which the supreme court has stated is a critical factor in determining whether the Miranda waiver is knowing, voluntary and intelligent. Id. at 576. Further, the trial court found that there was no “coercion on the part of the police and that the detective did not take advantage of the defendant.” ,

Evidence was also presented regarding the second factor in Ramirez: Benitez’s age, intelligence, background, and experience. Dr. Henley testified that, although Benitez was only three months shy of his eighteenth- birthday, his test scores indicated that, at best, he was in the mild mental retardation range. Benitez had completed the seventh grade in school.

Concerning the third factor, Detective Sheely testified that Benitez did not have an opportunity to speak with a parent before his interrogation. Detective Sheely attempted to contact Benitez’s parent and, when he was unsuccessful, he attempted to contact an aunt with whom Benitez was living. His attempts to contact the aunt were also unsuccessful. However, the situation in the present case is different from that in Ramirez, where the videotape of the confession revealed that police began to ask the appellant about the location of his parents after he had confessed to the crime. Here, Detective Sheely attempted to contact a relative of Benitez before he questioned him about the crime. Id. at 578 n. 8. The final factor in Ramirez, whether police obtained a written waiver of the Miranda rights, was met in this case. Detective Sheely obtained a written waiver of the Miranda rights before he began questioning Benitez.

Unfortunately, there is no indication in the trial court’s order that it weighed any of the above factors in a “totality of the circumstances” analysis before denying Benitez’s motion to suppress. Id. at 575. Although the trial court stated in its order that it accepted the defense expert’s testimony, the court went on to find that Beni-tez’s confession was admissible pursuant to existing law: “Dr. Henley is an expert in the subject about which she testified and the court accepts her opinions but is not persuaded that the defendant’s confession is not proper pursuant to existing law.”

The defense presented the testimony of Dr. Henley, whose practice consists primarily of conducting psychological assessments. Dr. Henley conducted tests to determine Benitez’s ability to understand the Miranda warnings and his IQ, which as noted earlier was in the mild mental retardation range. Dr. Henley testified Benitez correctly understood the Miranda warning that anything he said could be used against him in court. He also understood that if he could not afford a lawyer, one would be appointed for him.

Conversely, Dr. Henley testified that Benitez did not understand the statement that he had the right to remain silent. He also did not understand the Miranda warning, “You’re entitled to consult with an attorney before interrogation and to have an attorney present at the time of the interrogation.” Dr. Henley testified that Benitez said this meant “you can get a lawyer to speak first.” In Dr. Henley’s opinion, Benitez had difficulty understanding the words “interrogation” and “entitled.”

However, when Dr. Henley tested Beni-tez’s understanding of these Miranda rights, she used a form which differed from the one used by Detective Sheely. The form used by Detective Sheely did not contain the words “interrogation” and “entitled.” His Miranda form contained the following language, “You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning if you wish.” The form further warned, “If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.” We note that, because Dr. Henley’s form did not contain this last sentence, she never tested Beni-tez’s ability to comprehend its meaning.

We cannot determine from the language used in the order denying the motion to suppress whether the trial court, while accepting Dr. Henley’s opinion of Benitez’s test results, nevertheless found that Beni-tez did understand the Miranda, rights as they were explained to him in simpler terms by the detective conducting the interview. See Morton v. State, 789 So.2d 824, 330 (Fla.2001) (explaining that “un-controverted expert opinion testimony may be rejected where it is difficult to square with the other evidence in the case.”). It is possible that the trial court considered the detective’s testimony, along with Beni-tez’s own verbal and written acknowledgment that he understood his rights, and found that Benitez did understand his Miranda rights. On the other hand, it is also possible that the trial court accepted Dr. Henley’s opinion as accurate that Benitez did not understand those rights and applied the incorrect standard of “diminished mental capacity” to its finding.

Because the trial court’s order denying Benitez’s motion to suppress and its failure to make critical Ramirez determinations of fact may have resulted from the trial court’s erroneous view of the law, we reverse and remand for either a written order which makes the required findings and conclusion as to whether Benitez knowingly and intelligently waived his Miranda rights or a new hearing and an order, whichever the trial court deems necessary. See Phillips v. State, 707 So.2d 774 (Fla. 2d DCA 1998) (holding that where trial court erred in applying established law to the facts of the case, it must be reversed and remanded for a new hearing to give the trial court an opportunity to address the issue); Wright v. State, 766 So.2d 467 (Fla. 1st DCA 2000) (where trial court failed to address whether appellant withdrew his consent to search, case reversed and remanded for trial court to conduct new hearing on the issue); Simpson v. State, 562 So.2d 742 (Fla. 1st DCA 1990) (concluding that where it was uncertain from the record what trial court intended in its ruling determining whether appellant’s confession was voluntary, case had to be reversed and remanded for either a written order stating- its conclusion or a new hearing on appellant’s motion).

Accordingly, we affirm in part, reverse in part, and remand with directions.

NORTHCUTT, J., Concurs in part and Dissents in part.

SILBERMAN, J., Concurs specially with opinion.

NORTHCUTT, J.,

Concurring in part and Dissenting in part.

It is obvious that Benitez’s convictions must be reversed. It is also obvious, at least to me, that we must direct the circuit court to discharge him. The evidence presented at the hearing on the motion to suppress proved beyond dispute that Beni-tez did not understand his Miranda rights when he waived them, and the circuit court expressly accepted the psychologist’s opinion to that effect. That being the case, the court’s denial of the motion to suppress was a purely legal error that we are duty-bound to correct. Therefore, I dissent from my colleagues’ decision to, instead, remand for additional findings or another hearing on the motion.

At the hearing on Benitez’s motion to suppress, the State bore the burden of establishing that Benitez validly waived his constitutional rights under Miranda before making his statements to the detective. Ramirez v. State, 739 So.2d 568, 575 (Fla.1999). Because Benitez was a juvenile, this burden was “heavy.” Id.

Ramirez instructs that the validity of a Miranda waiver involves two separate inquiries: First, the waiver must have been voluntary, in that it was “the product of free and deliberate choice rather than intimidation, coercion, or deception.” Second, the suspect must have waived his rights “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). A court may conclude that a suspect validly waived his Miranda rights only if the totality of the circumstances surrounding the interrogation demonstrate both that the suspect made an uncoerced choice and that he did so with the requisite level of comprehension. Id.

Benitez did not contend that his Miranda waiver was coerced or that it was involuntary for any other reason. Thus, the question before the circuit court was whether the State proved that Benitez waived his rights knowingly and intelligently, i.e., with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them.

In Ramirez, a first-degree murder case, the court examined the validity of a Miranda waiver by a seventeen-year-old boy. When undertaking its “totality of the circumstances” analysis, the court considered the following factors to be relevant: (1) the manner in which the Miranda warning was administered; (2) the suspect’s age, experience, background and intelligence; (3) the fact that the suspect’s parents were not contacted and the juvenile was not given an opportunity to consult with his parents before questioning; (4) the fact that the questioning took place at the station house; and (5) the fact that the interrogators did not secure a written waiver of the Miranda rights at the outset. Id. at 576. Some of those factors are applicable to this case.

First, the manner in which the Miranda warning was administered: The State’s sole witness on the validity of Benitez’s Miranda waiver was the detective who interrogated him. The detective recounted that he gave Benitez the Miranda warnings according to his usual practice. Keeping his tone “low key,” he sat at a table with Benitez and read him the warnings aloud. After reading the warning related to each right, the detective paused and looked to Benitez for some indication that he was following along and that he understood the warning. According to the detective, Benitez asked no questions and seemed to understand. After reading the warnings in this manner one time through, the detective had Benitez sign the waiver on the form from which he had read.

The defense presented the testimony of Dr. Tracy Henley, a clinical psychologist who had met with Benitez for three hours over two sessions and tested him for intelligence and comprehension. Dr. Henley’s testing revealed that Benitez was severely hampered in his ability to comprehend language. His verbal IQ — the measure of his ability to express himself and understand language — was a mere 42, which placed him in the moderate-to-severe mental retardation range. According to Dr. Henley, Benitez could be made to understand new concepts, but only if they were explained to him four or five times. The State did not challenge this evidence, let alone refute it. And, clearly, this evidence proved that the manner in which the Miranda warning was administered to Benitez was insufficient to give him a full awareness of either the nature of the rights being read to him or the consequences of abandoning them.

Second, the suspect’s age, experience,background and intelligence: At the time of his interrogation, Benitez was seventeen years, nine months old. He had no prior arrest history or other exposure to law enforcement or the criminal justice system. He had completed the seventh grade. As mentioned, Dr. Henley measured Benitez’s verbal IQ at 42. His nonverbal IQ was 64, in the mild mental retardation range. His overall composite IQ was 49. On another IQ test that was designed to take into account that he was bilingual, Benitez scored 68, indicating mild mental retardation.

The third Ramirez factor was also present here. The detective was unsuccessful in his attempt to contact Benitez’s parents before questioning him. Therefore, Beni-tez had no opportunity to consult with his parents before questioning or to benefit from their assistance in understanding his rights.

The fourth factor, the fact that the questioning took place at the station house, has more to do with the issue of voluntariness, which was not challenged here. And, unlike the case in Ramirez, here the detective did obtain Benitez’s signature on the written Miranda waiver before questioning him.

In addition to the foregoing, Dr. Henley tested Benitez specifically for his understanding of the Miranda rights themselves. She found that Benitez basically understood the right to have an attorney appointed. Benitez characterized the warning that anything he said could and would be used against him as meaning “[ajnything I say, like — saying something bad or threatening, they can use against me.” He misunderstood the right to consult an attorney before being questioned as “[y]ou can get a lawyer to speak first. I don’t know when. The same day or not.” He believed the right to remain silent was, instead, a prohibition. When asked to paraphrase this right, he responded “I ain’t got — I ain’t got rights to speak to officers. I can’t say nothing. I’m not allowed to.” Dr. Henley noted that -during her sessions with him, Benitez would not volunteer that he did not understand something; she would have to prompt him.

Dr. Henley concluded that when Benitez was questioned by the detective, he did not have an adequate grasp of the Miranda rights to intelligently waive them. She had been present in the courtroom when the detective testified about his interrogation of Benitez. The detective’s testimony did not change her opinion, she said. Rather, it reinforced it: ‘

The State did not rebut Dr. Henley’s testimony other than to cross-examine her to establish that some of the language in the Miranda .waiver that the detective read to Benitez was somewhat simpler than the terms in the instrument Dr. Henley used to test Benitez’s understanding of the Miranda rights. Even so, she said, Benitez did not understand the rights he was waiving.

In sum, the circuit court received uncon-troverted proof that Benitez, a juvenile and a neophyte in the criminal justice milieu, suffered profound intellectual deficits that rendered him incapable of grasping new concepts unless they were explained to him four or five times. It was further uncontroverted that, months after his arrest and the commencement of his prosecution, Benitez continued to seriously misunderstand the Miranda rights. Against these established facts, the State offered only (1) the testimony of the detective that he had read the warnings to Benitez once, and that from Benitez’s facial expression (or lack thereof) the detective had conclud- ■ ed that Benitez seemed to understand; and (2) the fact that the warning actually given.to Benitez employed some simpler language than one of the tests administered to him.

Even ignoring the expert psychologist’s opinion on the ultimate issue, it is plain to see that the State fell far short of its burden to prove that Benitez validly waived his Miranda rights. As Dr. Henley observed, the detective’s testimony actually reinforced her conclusion that he did not. When the detective looked to Benitez for an indication that he understood the Miranda rights, Benitez actually believed that he understood them. And even if he had known that he did not understand the rights, he would not have spoken up.

The fact that some of the terms in the Miranda warning given to Benitez were relatively simpler than those used in Dr. Henley’s testing instrument merely suggested the possibility that Benitez might have been able to understand the simpler terms. This possibility was wholly untested and, as such, it amounted to simple speculation. Moreover, the State did not even attempt to rebut the psychologist’s finding that Benitez’s verbal IQ was so low that he required four or five repetitions before he was able to grasp new concepts. The detective acknowledged that he read the Miranda warning to Benitez only once. Thus, notwithstanding the relative complexity of the instrument that was later employed to test Benitez’s understanding of specific rights, it is clear that the State failed to satisfy its burden to, prove that Benitez waived his rights “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Ramirez, 739 So.2d at 575.,

Based on the evidence before it, the circuit court had no choice other than to accept Dr. Henley’s opinion that Benitez did not understand his Miranda rights when he waived them. I disagree with the majority’s view that there were conflicts in the evidence that would have permitted the circuit court to conclude that Benitez understood that he had the right to an attorney. But if the court had done so, it necessarily would have rejected Dr. Henley’s opinion that he did not. Instead, the court expressly accepted her opinion: “Dr. Henley is an expert in the subject about which she testified and the court accepts her opinions, but is not persuaded that the defendant’s confession is not proper pursuant to existing law.” Accordingly, the law required the suppression of Benitez’s statements, because a court may conclude that a suspect validly waived his Miranda rights only if the totality of the circumstances surrounding the interrogation demonstrate both that the suspect made an uncoerced choice and that he did so with the requisite level of comprehension. Ramirez, 739 So.2d at 575.

Nevertheless, the circuit court denied the motion to suppress because it made two legal errors. First, it surmised that because Florida does not recognize a defendant’s diminished mental capacity, i.e., an abnormal mental condition other than legal insanity, as a defense to a specific intent crime, Benitez’s inability to understand his Miranda rights was not a basis for excluding his confession. As the majority notes, the circuit court was wrong; the prohibition against submitting evidence of a defendant’s diminished mental capacity as a defense to the charges against him does not preclude consideration of that factor when assessing the validity of his Miranda waiver. Second, the circuit court pointed out that the detective who interrogated Benitez did not engage in any coercion, intimidation or trickery, citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and State v. Stewart, 588 So.2d 1063 (Fla. 3d DCA 1991). But those cases stand for the proposition that, absent such impropriety by the interrogator, a suspect’s mental deficiency standing alone does not render his Miranda waiver involuntary. Again, Benitez never contended that his waiver was involuntary. He challenged it on the separate ground that it was not knowing and intelligent.

It is telling that both of the circuit court’s legal theories, albeit mistaken, were consistent with the court’s expressed acceptance of Dr. Henley’s opinion that Benitez did not understand his Miranda rights when he waived them. In other words, incorrect as the circuit court’s legal reasoning was, nothing about it could account for the majority’s avowed confusion about what the court was thinking. To the contrary, the court’s reasoning was crystal clear: it accepted the expert’s opinion that Benitez did not understand his Miranda rights when he waived them, but mistakenly held that the motion to suppress must be denied under two legal principles that, in truth, did not apply.

This was not the situation in the cases cited by the majority to justify its remand for additional proceedings on the motion to suppress. In each of those cases, the circuit court’s legal error led to its failure to make a critical determination of fact. Thus, in Phillips v. State, 707 So.2d 774 (Fla. 2d DCA 1998), the circuit court failed to determine whether the suspect had withdrawn his consent to a search because the court incorrectly believed that the law did not recognize a suspect’s right to withdraw his consent. Likewise, in Wright v. State, 766 So.2d 467 (Fla. 1st DCA 2000), the circuit court wholly failed to address or make findings regarding the defendant’s claim that he withdrew his consent to a search. In Simpson v. State, 562 So.2d 742 (Fla. 1st DCA 1990), the trial court failed to determine whether the defendant had been properly Mirandized before making statements to officers, and improperly left it to the jury to decide whether the statements were voluntary.

Unlike those cases, in which the absence of necessary fact determinations required remands for further findings or hearings, in this case the circuit court clearly and explicitly accepted the expert’s opinion that Benitez did not understand his Miranda rights when he waived them. This single determination obviates any need for a remand, because a court may not find that a suspect validly waived his Miranda rights unless he did so with the requisite level of comprehension, i.e., “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Ramirez, 739 So.2d at 575 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).

The law requires that Benitez’s motion to suppress be granted and that he be discharged. We are obliged to grant that relief, and nothing less.

SILBERMAN, Judge,

Specially concurring.

I concur in the decision to affirm the trial court’s finding that Benitez was not illegally detained by the police. I also concur in the decision to reverse and remand for the trial court to clarify its findings and conclusions as to the Miranda waiver issue. I write to address the point raised by the dissent that we should reverse with instructions that Benitez should be discharged.

The State met its initial burden by presenting evidence that Benitez knowingly, intelligently, and voluntarily waived his Miranda rights. The defense presented contrary evidence, primarily through Dr. Henley and Benitez. Dr. Henley acknowledged that in evaluating whether Benitez understood the Miranda warnings, she used a Miranda form which differed from the form that the police used with Benitez. Dr. Henley admitted that the two forms differed in wording as to several key terms. The police warnings were “more ordinary, less sophisticated” than the wording contained in Dr. Henley’s form.

Dr. Henley stated that during her evaluation, Benitez responded appropriately in several respects as to the meaning of the Miranda warnings. Concerning certain sections of the warnings, he “exhibited sufficient understanding on the purposes, rationale, and points of the stories with regards to Miranda.” However, she did not believe that Benitez had a sufficient understanding of the Miranda warnings such that he could intelligently waive his rights Dr. Henley also answered the trial court’s questions relating to Benitez’s competence to proceed to trial.

In the order denying suppression, the trial court noted the detective’s testimony that during the interrogation, Benitez was cooperative, unafraid, and gave the appearance of understanding the Miranda warnings. Benitez spoke English, and there was no language barrier to effective communication between him and the detective. The detective read the Miranda warnings to Benitez and made eye contact with him to be sure that he understood the warnings. Benitez indicated that he did not want a lawyer, and he spoke with the detective. The detective said that the interrogation was “laid-back and low key” and that he did not pressure Benitez into signing the waiver form.

As to Benitez’s testimony, the court commented that he understands English better than Spanish. While he recalled speaking with the detective, he did not recall that he had been read his Miranda rights or had signed the Miranda waiver form. The court observed that “Mr. Beni-tez appears to have a problem in that his memory is deficient.”

The court next summarized Dr. Henley’s testimony, as follows:

Dr. Henley, a Ph.D. in Clinical Psychology, testified that the defendant is mildly retarded both verbally and mentally. She testified that he did not understand the Miranda right to an attorney when she tested his comprehension. She also testified that the defendant was under duress at the time of the confession. She testified that he was and continues to be incompetent to proceed to trial but that he is capable of being restored to competency for trial purposes.

The trial court then ruled on the motion to suppress and made the following findings:

Dr. Henley is an expert in the subject about which she testified and the court accepts her opinions but is not persuaded that the defendant’s confession is not proper pursuant to existing law. The State elicited testimony that the Court finds indicates the defendant is of diminished mental capacity. Diminished Capacity is not a defense' recognized in Florida law. The Court further finds no illegal detention of the defendant or coercion on the part of the police and that the detective did not take advantage of the defendant. Accordingly, the Motion is Denied.

(Emphasis added.)

In context, it seems unlikely, or at least unclear, that the trial court’s acceptance of Dr. Henley’s opinions was intended to be a complete adoption of her conclusions. For example, the court noted Dr. Henley’s opinion that Benitez was under duress at the time of the confession, but the court specifically found to the contrary. Further, the court acknowledged Dr. Henley’s opinion that when she tested Benitez, he did not understand the Miranda right to an attorney, but the court did not discuss Dr. Henley’s testimony that Benitez did not understand the Miranda warnings when they were read to him by the detective.

The court also did not address Dr. Henley’s testimony that during her evaluation, she used a Miranda form that was different and apparently more difficult to comprehend than the form used by the police. Further, the court did not discuss Dr. Henley’s testimony that Benitez understood at least certain portions of the Miranda warnings. On the other hand, the court did not make any finding as to whether it was accepting or rejecting the detective’s testimony that Benitez appeared to understand the Miranda warnings. The court did, however, specifically state that it was not persuaded that Beni-tez’s confession was improper.

Ultimately, Benitez may be entitled to discharge. However, it is for the trial court to make appropriate findings based on the evidence and the applicable law and to provide an order that is capable of meaningful review. Because the trial court’s order contains conflicting and inconsistent statements and because it appears that the court may have applied the incorrect legal standard, I agree with the majority opinion that remand to the trial court is necessary and appropriate for the court to clarify its findings and conclusions.

      . A motion to suppress was not filed in the trespass case.

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

      . The form also contains the following statement, "I understand and know what I am doing.”

      . We are aware of the statements by Benitez's attorney at the sentencing hearing that Beni-tez had a criminal record but it was "not extensive.” However, because this evidence was not presented at the sentencing hearing, it cannot be considered in our analysis. Ramirez, 739 So.2d at 577 n. 5.

      . The court also had gleaned from the record that the boy had learning disabilities; at age seventeen, he was performing academically at only an eighth or ninth grade level; and he had an emotional, intellectual, and behavioral age of only thirteen or fourteen. However, the court did not consider these factors in assessing the validity of the boy’s Miranda waiver because they were not developed at the suppression hearing. Ramirez v. State, 739 So.2d 568, 577 n. 5 (Fla.1999).


author: PER CURIAM.

text:
    S.L.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1149.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is on remand from the Florida Supreme Court in light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006).

As to S.L.G.’s point on appeal related to the imposition of statutory surcharges pursuant to sections 938.08 and 938.085, Florida Statutes, and in light of V.K.E., we strike those portions of the disposition orders that impose a $201 “domestic violence” surcharge and a $151 “rape crisis center” surcharge.

In all other respects, the disposition orders are affirmed.

AFFIRMED; COSTS STRICKEN.

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


author: SILBERMAN, Judge.

text:
    Michael Andrew YEVCHAK, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3294.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Michael Andrew Yevchak appeals the order revoking his probation and the resulting thirty-month sentence for aggravated stalking. He argues that the trial court lacked jurisdiction to revoke his probation and sentence him when he had already served the maximum time allowed for the offense. We agree and reverse.

In December 1998, the trial court convicted Yevchak of aggravated stalking and imposed a sentence of three years’ probation in case number 98-03523. Yevchak committed a series of violations of probation, resulting in further placements on supervision. In December 2002, in case number 02-05283, Yevchak was convicted and sentenced for possession of cocaine, which constituted another violation of his probation for the aggravated stalking conviction. Yevchak’s probation was again modified, and he was also put on probation for the possession conviction.

On June 5, 2006, the trial court entered the order that is at issue here, revoking Yevchak’s probation for aggravated stalking and sentencing him to thirty months in prison. The court also revoked his probation on the possession of cocaine case and imposed a concurrent sentence of thirty months. The basis of the probation revocation was Yevchak’s failure to complete a required residential drug treatment program.

Yevchak correctly contends that the trial court did not have jurisdiction to revoke his probation and sentence him further on June 5, 2006, with respect to the aggravated stalking conviction because he had already served in excess of five years on the third-degree felony. See Tucker v. State, 873 So.2d 1239, 1241 (Fla. 2d DCA 2004); Aponte v. State, 896 So.2d 836 (Fla. 1st DCA 2005). The State contends that Yevchak failed to preserve this issue for review because he did not raise it at the revocation hearing or file a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). In Aponte, the court considered the same argument and stated, “Yet Mr. Aponte complains of more than a run-of-the-mill sentencing error. While he does contend that the sentencing court’s error was fundamental, he contends further that the sentencing court was wholly without jurisdiction to impose any sentence at all for any third-degree felony.” 896 So.2d at 838. In Tucker, although the defendant filed a motion to correct sentencing error, this court agreed with her argument that “the trial court was without jurisdiction to revoke her probation and sentence her to prison” when she had already served more than five years for the third-degree felonies. 873 So.2d at 1241.

Thus, because the trial court lacked jurisdiction to revoke Yevchak’s probation and to sentence him in case number 98-03523, we reverse the revocation order and sentence of June 5, 2006, as to that case. We remand for the trial court to strike the portion of the revocation order and the thirty-month sentence relating to case number 98-03523.

Reversed and remanded with directions.

WHATLEY and NORTHCUTT, JJ., Concur.

      . Our decision may be somewhat of a hollow victory for Yevchak because he has not challenged the revocation and thirty-month sentence in case number 02-05283.


author: WALLACE, Judge.

text:
    Iris DAVIS, Appellant, v. Peter GIBSON, Appellee.
    No. 2D06-3400.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.
    Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

We affirm without comment the trial court’s final order that awarded primary residential responsibility for the parties’ minor child to the father and visitation privileges to the mother. Although the order correctly recites that the parties were never married, the trial court mistakenly titled the order “Final Judgment of Dissolution of Marriage.” After this court’s mandate issues, the trial court may wish to enter an amended order that corrects this clerical mistake.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.


text:
    A.J.N., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1646.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is on remand from the Florida Supreme Court in light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We strike those portions of the disposition order that imposed a $201.00 “domestic violence” surcharge and a $151.00 “rape crisis” surcharge.

In all other respects, the disposition order is affirmed.

AFFIRMED; COSTS STRICKEN.

PLEUS, .CJ., GRIFFIN and EVANDER, JJ., concur.


text:
    A.N.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1694.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is on remand from the Florida Supreme Court in light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We strike those portions of the disposition order that imposed a $201.00 “domestic violence” surcharge and a $151.00 “rape crisis” surcharge.

In all other respects, the disposition order is affirmed.

AFFIRMED; COSTS STRICKEN.

PLEUS, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    James KEELLINGS, et al., Appellants, v. Mark VALLERY, Appellee.
    No. 5D05-4493.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    Margaret A. Wharton of Margaret A. ■Wharton, P.A., Oviedo, for Appellants.
    James R. Lussier of Mateer Harbert, P.A., Orlando, for Appellee.
   PER CURIAM.

Appellant raises two points on appeal. First, he disputes the propriety of the lower court’s summary judgment that dismissed Mark Vallery as a party. Second, he challenges a partial summary judgment adjudicating certain factual issues in claims that remain pending against other parties. We affirm the summary judgment that dismissed Vallery. As to Appellant’s second point, we dismiss the appeal because it is premature.

AFFIRMED in part; DISMISSED in part.

TORPY, LAWSON and EVANDER, JJ., concur.


author: TAYLOR, J.

text:
    Joshua David HOLLANDER, Petitioner, v. Robert L. CROWDER, Sheriff of Martin County, Respondent.
    No. 4D07-1176.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2007.
    Samuel, J. Montesino of Samuel J. Mon-tesino, P.A., West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant

      Attorney General, West Palm Beach, for respondent.
   TAYLOR, J.

Petitioner Joshua David Hollander seeks habeas corpus and mandamus relief from his detention on bond set at $200,000 for trafficking in cocaine. Because his claim challenges the legality of his detention on this bond, we will treat this as a habeas corpus petition. We grant the petition for writ of habeas corpus and remand for a new determination of reasonable bail.

The record indicates that the bond set at petitioner’s first appearance was set. according to a bond schedule; the court declined to consider the factors for bond and release set forth in the criminal procedure rules, including the nature and circumstances of the offense charged, the weight of evidence against petitioner, family ties, length of his residence in the community, employment history, financial resources, mental condition, past and present conduct, previous convictions, previous flight to avoid prosecution or failure to appear at court proceedings, nature and probability of danger that release poses to the community, source of funds to post bond, whether petitioner was on release or probation or parole, and other factors. See Fla. R.Crim. P. 3.131(b)(3); § 903.046, Fla. Stat.

Florida Rule of Criminal Procedure 3.131(b)(2) provides that the judge “shall at the defendant’s first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant’s appearance. If a monetary bail is required, the judge shall determine the amount.” The conditions of release and the amount of bond are based on the criteria mentioned in rule 3.131(b)(3).

We reject the state’s suggestion that the defendant has the burden to file a motion to reduce bond before the court is required to consider these criteria. Further, courts have recognized that bond may be set in amounts higher than,, or lower than, a bond schedule for the offense charged when justified by consideration of the applicable statutory criteria. See Cameron v. McCampbell, 704 So.2d 721 (Fla. 4th DCA 1998); Rawls v. State, 540 So.2d 946 (Fla. 5th DCA 1989). A first appearance hearing at which bond could be set simply based on a schedule, without consideration of the other criteria listed above, would render the rule and statute meaningless. All persons charged with a particular offense could receive the same bond amount, regardless of their history, the circumstances, and their resources. This is not contemplated by the law.

Accordingly, we grant this petition and remand for a new bond hearing as soon as practicable at which the court shall consider all relevant factors in setting a reasonable bond in this case. Fla.. R.Crim. P. 3.131; § 903.046, Fla. Stat.

FARMER and GROSS, JJ., concur.


text:
    Diansky ROUZARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2686.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Diansky Rouzard, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

PER CURIAM.

We grant in part the State’s motion for rehearing, withdraw our previous opinion of February 21, 2007, and issue the following in its place.

Diansky Rouzard appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850 and his timely-filed amended motion. We find that one claim warrants further proceedings.

In claim three of his amended motion, appellant alleged his trial attorney provided ineffective assistance in failing to move to suppress his taped statement on the ground that the Miranda warnings were deficient and in failing to advise him of the deficiency. Rouzard alleged that had he known about the deficiency in the Miranda warnings, he would not have entered the plea, but, instead, would have elected to go to trial.

Counsel may be ineffective for not moving to suppress a defendant’s statement made during a police interrogation if the statement was involuntary or the defendant did not receive adequate Miranda warnings. See, e.g., Anthony v. State, 927 So.2d 1084 (Fla. 4th DCA 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005); Fletcher v. State, 890 So.2d 1167 (Fla. 5th DCA 2004).

Here, the State argues appellant waived this issue when he entered the plea. However, a defendant cannot voluntarily waive defenses of which he is not informed. See Wilson v. State, 871 So.2d 298 (Fla. 1st DCA 2004); Ethridge v. State, 766 So.2d 413, 414 (Fla. 4th DCA 2000).

We also conclude that appellant’s amended motion was timely filed within two years of his conviction becoming final and that his claim is not based on newly-discovered evidence. See Small v. State, 941 So.2d 555 (Fla. 1st DCA 2006). Contrary to the State’s argument, appellant’s claim of ineffective assistance of counsel is not dependent upon our decision in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005). Rather, his claim is based on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda was available when appellant entered his plea and defense counsel could have raised the same challenge to the Broward form as that raised by Roberts’ attorney. See Anthony v. State, 927

So.2d 1084 (Fla. 4th DCA 2006). We are not deciding at this time whether counsel was deficient in failing to raise this issue. Whether counsel was deficient may depend on the circumstances in this case, including the content of appellant’s statement to police and the other evidence against him.

Accordingly, we reverse and remand for further proceedings on this claim. We note that the State did not address the merits of this claim below. There may be records showing that the warnings given here were different from those given in Roberts or that the warnings appellant received were otherwise sufficient. See Canete v. State, 921 So.2d 687 (Fla. 4th DCA) (en banc), rev. denied, 944 So.2d 986 (Fla.2006). If no records refute his allegation that the Miranda warnings were insufficient, the court must determine whether counsel was deficient in failing to raise this issue and whether appellant has shown there is a reasonable probability that, but for counsel’s failure to inform him of the deficiency in the warnings and failure to file a motion to suppress, he would not have entered the plea. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The summary denial of the remaining claims is affirmed.

STEVENSON, C.J., FARMER and TAYLOR, JJ., concur.

      . In claim one of his original rule 3.850 motion, appellant indicated that the Miranda warnings he received had the same deficiency as the warnings given in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005); in other words, he was not told that he had the right to have an attorney present during questioning.


author: NORTHCUTT, Judge.

text:
    CENTENNIAL INSURANCE CO., Appellant, v. LIFE BANK, Appellee.
    No. 2D05-2436.
    District Court of Appeal of Florida, Second District.
    July 21, 2006.
    Betsy E. Gallagher and Michael C. Clarke of Kubicki Draper, Tampa, for Appellant.
    Richard Oliver and Jon T. Gatto of Buchanan Ingersoll, P.C., Tampa, for Appel-lee.
   On Motion To Dismiss

NORTHCUTT, Judge.

Life Bank sued Centennial Insurance Company in three counts. We previously dismissed on jurisdictional grounds Centennial’s appeal from an order granting Life Bank’s motion for partial summary judgment as to its first count. In due course, the circuit court issued an order granting Life Bank’s motion for partial summary judgment on its third count. Centennial brought this appeal from that order, and we dismiss it as well.

Life Bank is insured under a commercial general liability policy (CGL) issued by Centennial. The parties’ dispute began when Life Bank was sued for damages by Christopher and Janice McCullough. Life Bank notified Centennial of the claim, but Centennial denied coverage and refused to furnish Life Bank with a defense to the McCullough lawsuit. Life Bank then filed a two-count lawsuit against Centennial. Count one sought a declaratory judgment that the McCullough claim was covered under the CGL policy and that Centennial had a duty to defend the McCullough lawsuit. Count two sought damages for Centennial’s breach of its contractual obligation to defend the lawsuit.

The parties filed cross-motions for partial summary judgment on count one. The circuit court entered an order granting Life Bank’s motion and denying Centennial’s. After we dismissed Centennial’s appeal from that order, Life Bank amended its complaint to allege that it had unsuccessfully solicited Centennial’s participation in settlement negotiations with the McCulloughs and then had settled the McCulloughs’ lawsuit by paying them $90,000. It added a third count seeking damages for Centennial’s breach of its contractual duty to pay the McCullough claim.

Once again, the parties filed cross-motions for summary judgment on count three. The circuit court entered an order granting Life Bank’s motion and denying Centennial’s, and Centennial has appealed that order.

In its notice of appeal, Centennial characterized the order as “a final judgment which determines the existence of insurance coverage and awards damages reviewable under rules 9.110 and 9.110(m), Florida Rules of Appellate Procedure.” But the order at issue is not a final order. Rather, it merely grants a motion for summary judgment. Therefore, it is not final and is not appealable. See Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999), and cases cited therein.

In response to Life Bank’s motion to dismiss this appeal, Centennial has argued that, final or not, the order necessarily determined the existence of insurance coverage and that it is therefore appealable under rule 9.110(m). That rule states:

Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130.

The reference to rule 9.130, which governs appeals from nonfinal orders, has caused some confusion about the purpose and meaning of this rule. Centennial is not the first to suggest that the provision grants a district court jurisdiction to entertain an appeal from a nonfinal order that determines the existence or nonexistence of insurance coverage. For example, in Nationwide Mutual Insurance Co. v. Harrick, 763 So.2d 1133 (Fla. 4th DCA 1999), the Fourth District dismissed an appeal from a nonfinal order that granted the insured’s motion for summary judgment on the insurer’s duty to defend the insured in another lawsuit but denied the motion for summary judgment as to coverage because the issue could not be determined until factual issues were resolved in the underlying action. The Fourth District observed that rule 9.110(m) “allows appeals from non-final orders ‘that determine the existence or non-existence of insurance coverage.’ ” Id. at 1134. Nevertheless, the court dismissed the appeal because it concluded that an order deciding only the duty to defend did not qualify as an order determining coverage. On that point, the Harriet court noted that prior to the adoption of rule 9.110(m), this court in Aetna Commercial Insurance Co. v. American Sign Co., 687 So.2d 834 (Fla. 2d DCA 1996), held that such orders were final appealable orders. For the reasons described below, we conclude that rule 9.110(m) does not grant us jurisdiction to entertain appeals from nonfinal orders. Indeed, the rule does not prescribe jurisdiction of any sort.

As reflected in the committee notes to the rule, it was promulgated to implement the Florida Supreme Court’s decision in Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996). Fla. R.App. P. 9.110 committee notes, 1996 amend. In that case, an insurer suffered a third-party declaratory judgment determining that it provided liability coverage for the insured in the underlying action. Because the underlying action was not yet resolved, the First District held that the order was not a final appealable order and that it was not ap-pealable as a nonfinal order under then-rule 9.130(a)(3)(C)(iv), which permitted an appeal from a nonfinal order determining liability in favor of a party seeking affirmative relief. Canal Ins. Co. v. Reed, 653 So.2d 1085 (Fla. 1st DCA 1995). In the latter regard, the court certified conflict with this court’s decision in Insurance Co. of North America v. Querns, 562 So.2d 365 (Fla. 2d DCA 1990), which held that such orders were reviewable as nonfinal orders under that rule. The First District in Reed also certified as a question of great public importance the issue of whether the insurer could seek review of the judgment prior to a final determination of liability in the underlying action and, if so, by what method.

Proceeding on the certified question, the supreme court noted that pursuant to section 86.011, Florida Statutes, declaratory judgments have the same force as final judgments. It also observed that the coverage issue could have been resolved in a separate declaratory judgment action rather than in a third-party proceeding in the underlying action. It concluded that the third-party declaratory judgment on the coverage issue should be treated as a final order for purposes of appeal, just as it would have been if it had been rendered in a separate action. Reed, 666 So.2d at 891.

Having determined that the order at issue there was appealable as a final judgment, the supreme court found it unnecessary to decide whether the First District’s decision conflicted with Querns, 562 So.2d 365. Thus, it expressly did not reach the question of whether orders finding coverage were reviewable as nonfinal orders. 666 So.2d at 890 n. 3.

The supreme court in Reed noted that it would be in the best interests of all parties for coverage issues to be resolved expeditiously, so as to avoid unnecessary delays in the underlying actions. Therefore, it asked the Florida Bar Appellate Court Rules Committee to devise an appropriate method for expediting such appeals. Id. at 892.

The upshot of Reed is that final declaratory judgments determining insurance coverage are appealable as final orders regardless of whether they arise from a third-party action or from a separate suit. The court did not decide whether orders finding coverage qualified as appealable nonfinal orders under former rule 9.130(a)(3)(C)(iv).

It is also important to note that by its holding in Reed, the supreme court did not create jurisdiction in the district courts of appeal. Insofar as the court discerned that declaratory judgments determining coverage are final orders, the district courts already had jurisdiction to review them by appeal. Art. V, § 4(b)(1), Fla. Const. Nor did the Reed decision establish jurisdiction in the district courts to entertain appeals from nonfinal orders determining coverage. Under our state constitution, district courts of appeal are authorized to entertain appeals of nonfinal orders only “to the extent provided by rules adopted by the supreme court.” Id. (emphasis supplied).

The question, then, is whether the supreme court created such jurisdiction when it adopted rule 9.110(m). That it did not is apparent in two ways. First, by its terms, the rule applies only to “judgments that determine the existence or nonexistence of insurance coverage.” (Emphasis supplied.) When construing this rule two years prior to its decision in Harrick, the Fourth District observed that “[t]he rule, by its clear and unambiguous terms, is limited to ‘judgments.’ An order denying summary judgment is not, by any stretch, a ‘judgment.’ ” Nat’l Assurance Underwriters, Inc. v. Kelley, 702 So.2d 614, 615 (Fla. 4th DCA 1997). As the Kelley court noted, Florida Rule of Appellate Procedure 9.020(f) defines an “order” as a “decision, order, judgment, decree, or rule of a lower tribunal.” Thus, a judgment is an “order,” but an order is not necessarily a “judgment.”

The other reason it is clear that this provision does not provide for appeals from nonfinal orders is that it is part of rule 9.110. That rule begins with an “applicability” provision, which states: “This rule applies to those proceedings that ... invoke the appeal jurisdiction of the courts described in rules 9.030(a)(1), (b)(1)(A), and (c)(1)(A).” Fla. R.App. P. 9.110(a)(1). The referenced rules 9.030(a)(1) and (c)(1)(A) describe the appellate jurisdiction of the supreme court and circuit courts, respectively. Rule 9.030(b)(1)(A) describes the appellate jurisdiction of district courts of appeal to review “final orders of trial courts, not directly reviewable by the supreme court or a circuit court.” (Emphasis supplied.) Therefore, rule 9.110 and its subsections, including this one, apply only to appeals from final orders.

Pursuant to its constitutional authority, the supreme court provided for district court jurisdiction to entertain appeals from nonfinal orders in rule 9.030(b)(1)(B). In that provision, the supreme court directed that district courts of appeal shall review by appeal “non-final orders of circuit courts as prescribed by rule 9.130.” (Emphasis supplied.) The latter rule contains no provision for appeals from nonfinal orders determining insurance coverage.

As did the Fourth District in Kelley, we conclude that the purpose of rule 9.110(m) is simply to provide a more expeditious procedure for appeals of judgments deciding coverage disputes when a claim has been made against an insured. It does not expand the district courts’ jurisdiction to entertain appeals of nonfinal orders. See Kelley, 702 So.2d at 615. That being the case, the rule is purely procedural. As previously mentioned, the district courts have always had jurisdiction of appeals from final orders.

Contrary to Centennial’s assertion, our conclusion is not at odds with this court’s decision in Transcontinental Insurance Co. v. Jim Black & Associates, Inc., 888 So.2d 671 (Fla. 2d DCA 2004). Given the confusion over this rule and the sometimes complicated procedural postures of the cases in which it arises, Centennial’s reliance on Transcontinental Insurance Co. is understandable. It is, however, misplaced. In Transcontinental Insurance Co., the insured was sued for patent infringement and unfair competition. The insurer agreed to defend the suit under a reservation of rights. It then filed suit for a declaratory judgment determining that its policy did not obligate it to cover the claim

or defend the suit. On cross-motions for summary judgment, the circuit court rendered a partial final judgment declaring that there was no coverage for or duty to defend against the patent infringement claim. As to the unfair competition claim, the partial final judgment determined that there was a duty to defend, but it did not decide whether there was coverage. The insurer appealed and the insured cross-appealed.

The insured challenged our jurisdiction. Citing Harrick, 763 So.2d 1133, it argued that under rule 9.110(m), we had no authority to review a partial final judgment that addressed only the duty to defend. This court pointed out that the partial final judgment on appeal was not limited to the duty to defend but also specifically concluded that the insurance policies provided no coverage for or duty to defend the patent infringement claim. “Because the judgment resolves both coverage and duty to defend issues, the judgment is appeal-able under rule 9.110(n).” Transcon. Ins. Co., 888 So.2d at 674.

Our characterization of the judgment in Transcontinental Insurance Co. as “appealable under rule 9.110(n)” could be taken to suggest that the rule is jurisdictional. But we further pointed out that in Aetna, 687 So.2d 834 — a decision that predated rule 9.110(m) — this court relied on Reed when holding that a partial final judgment determining that an insured had a duty to defend was appealable as a final order. Transcon. Ins. Co., 888 So.2d at 674. We rejected the insured’s assertion that Reed and Aetna were superceded by rule 9.110(m). “[W]e conclude that the rule does not limit appellate jurisdiction but rather provides an alternative for expedited review of insurance coverage issues as suggested by the supreme court in [Reed ].” 888 So.2d at 674. Thus, in Transcontinental Insurance Co. we recognized both that we had jurisdiction under case law that predated rule 9.110(m) and that the rule did not supersede or limit that jurisdiction. We did not hold that the rule authorizes our review of a nonfinal order.

In sum, the order on appeal is a nonfinal order that is not appealable under rule 9.130 or any other rule. For this reason, we have no jurisdiction to entertain the appeal.

Appeal dismissed.

DAVIS and CANADY, JJ., Concur.

      . The rule was originally found at 9.110(n) and was later redesignated as 9.110(m). In some of the authorities discussed herein, the rule is referred to by its original designation.

      . In a "third-party” action the insured defendant brings a third-party complaint for liability coverage against its insurer as part of the underlying tort action. See Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 15 n. 6 (Fla.2005).

      . Rule 9.130(a)(3)(C)(iv) was repealed effective January 1, 2001. Amendments to Florida Rules of Appellate Procedure, 780 So.2d 834, 838, 860 (Fla.2000).


author: NORTHCUTT, Judge. ALTENBERND, Judge,

text:
    Beresford W. POWELL and Albennie Powell, Petitioners, v. CITY OF SARASOTA, Respondent.
    No. 2D05-4850.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.

      Mark A. Gruwell, Estherville, IA, for Petitioners.
    Whitney Coyne of Fournier and Connolly, P.A., Sarasota, for Respondent.
   NORTHCUTT, Judge.

The City of Sarasota’s Nuisance Abatement Board declared a public nuisance at rental property owned by Beresford and Albennie Powell due to three undercover drug sales. The Board imposed various obligations on the Powells and retained jurisdiction for one year. The Powells unsuccessfully sought certiorari review in the circuit court. In this court, they seek certiorari relief to quash the circuit court’s order. We grant the petition.

Before turning to the facts of this case, we set out the applicable standards of review. When a circuit court reviews a local government agency’s quasi-judicial action by certiorari, it applies a three-part test to determine (1) whether the agency afforded procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether competent, substantial evidence supported the agency’s findings and judgment. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). In “second-tier” certiorari proceedings to review the circuit court’s decision, the district court of appeal must determine whether the circuit court afforded procedural due process and applied the correct law. Id. In this case, we conclude that the circuit court did not apply the correct law when considering the procedural due process prong of its analysis.

Counties and municipalities are authorized by statute to create administrative boards to abate public nuisances occasioned by illegal drugs, prostitution, and other criminal activity. § 893.138, Fla. Stat. (2002). The City of Sarasota has created such a body. City of Sarasota, FL, Ordinance 95-3849 (codified at City of Sarasota, FL, Code ch. 2, art. V, div. 2). Under both the statute and ordinance, any place or premises can be declared a public nuisance when it is the site of more than two unlawful drug transactions within six months. Id.; § 893.138(2)(b).

The Powells own a number of rental units in the city, and they have been called before the Nuisance Abatement Board previously to answer for drug activity by their tenants. See Powell v. City of Sarasota, 857 So.2d 326 (Fla. 2d DCA 2003) (granting certiorari relief when circuit court failed to apply precedent requiring Board to afford opportunity for owner to abate nuisance prior to imposing penalties).

In the proceedings before the Board in this case, Sarasota Police Detective Lovio testified that she received anonymous telephone calls from neighborhood residents complaining about drug activity at one of the Powells’ residential rental properties. She did not inform the Powells of these complaints. Instead, she arranged three undercover drug transactions at the property, which she testified was the number needed for a nuisance abatement charge. After the transactions, Detective Lovio obtained and executed a warrant to search the premises. No evidence was recovered, however, and apparently no arrests were made. After the search warrant was executed, Mr. Powell was informed of the foregoing events and, subsequently, brought before the Nuisance Abatement Board. The detective further testified that she had no evidence that the Powells knew about drug activity on the premises, and there was no record of any previous drug cases involving this property.

The Powells stipulated that the predicate drug transactions took place, but they maintained that they had been unaware of the illegal activity. Mrs. Powell had accepted a rent payment from someone other than the tenant named in the lease, and Mr. Powell acknowledged that he had learned that the tenant transferred her water service. At that point, Mr. Powell had asked the police department for assistance, but he was told to begin eviction proceedings, which he did. Interestingly, Detective Lovio’s undercover drug sales were conducted after Mr. Powell had contacted the police for assistance.

In the hearing before the Board, the Powells asserted a defense of selective enforcement. They attempted to introduce evidence that the City’s nuisance abatement efforts targeted predominantly African-American neighborhoods. The Board refused to consider this evidence, and it refused to allow the Powells to make a proffer of the excluded evidence. In the circuit court certiorari review proceeding, the Powells argued that those refusals denied them procedural due process.

The circuit court rejected this claim. In so doing, it failed to apply the correct law. Section 893.138(3) provides that in a nuisance abatement proceeding the property owner “shall have an opportunity to present evidence in his or her defense[J” The Equal Protection Clause prohibits selective enforcement of the law based on considerations such as race. Glock v. Moore, 776 So.2d 243, 252 (Fla.2001); see also Polk County v. Mitchell, 931 So.2d 922, 926 n. 4 (Fla. 2d DCA 2006) (describing selective enforcement defense to ordinance as “deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification”). Thus, under the law, the Powells’ defense to the nuisance abatement charge was legally cognizable, and they were entitled to present evidence in proof of it. The circuit court failed to apply this law when ruling that the Board afforded procedural due process to the Powells.

Accordingly, we grant the petition and quash the order under review. See Massey v. Charlotte County, 842 So.2d 142 (Fla. 2d DCA 2003) (granting certiorari when circuit court applied the incorrect law in determining that code enforcement board afforded procedural due process).

Petition granted; order quashed.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs specially with opinion, in which VILLANTI, J., Concurs.

ALTENBERND, Judge,

Specially concurring.

I fully concur in this opinion. I write only to highlight the issue that we do not reach at this time. The Powells previously came to this court with a similar case, in which we ruled that “an adequate opportunity to abate a nuisance necessarily includes notice that criminal activity that might constitute a nuisance is occurring, coupled with a reasonable amount of time to end the criminal activity.” Powell, 857 So.2d at 328. Once again, the City relies on three “controlled buys” by undercover officers to support a finding of a nuisance.

These events occurred over a two-week period, apparently without notice to the Powells. The parties who sold drugs to the police were not tenants in any apartment rented by the Powells and were not prosecuted. As in the previous case, the City of Sarasota’s Nuisance Abatement Board did not fine the Powells but subjected their rental activity to additional regulation due to the existence of the drug problem.

The Powells obviously own property in a drug-infested neighborhood, but I question whether the circuit court correctly determined that the City presented competent, substantial evidence that would permit the Nuisance Abatement Board to declare the Powells’ property a nuisance. Our standard of review does not permit us to conduct a second review of the weight or sufficiency of the evidence before the Nuisance Abatement Board and the majority opinion correctly makes no determination of that issue. On the other hand, the circuit court is obligated to follow the essential requirements of the law, which includes our holding in the Powells’ prior petition for certiorari. It is a very close question in my mind whether the circuit court has followed that law. Our ruling today returns this proceeding to the circuit court, which is free to re-examine the issues before it.


author: PER CURIAM. EVANDER, J.,

text:
    BOARD OF COUNTY COMMISSIONERS, etc., Petitioner, v. CITY OF COCOA, Florida, etc., Respondent.
    No. 5D06-125.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2007.
    Rehearing Denied April 2, 2007.

      Scott Knox, County Attorney, Office of the County Attorney, Viera, for Petitioner.
    Anthony A. Garganese, City Attorney, The City of Cocoa, Cocoa, and Erin J. O’Leary of Brown, Garganese, Weiss & D’Agresta, P.A., Orlando, for Respondent, The City of Cocoa, Florida.
    Thomas A. Cloud, Tracy A. Marshall and Earl M. Crittenden, Jr., of Gray Robinson, P.A., Orlando, for Respondent, Florida Space Needle, LLC.
   PER CURIAM.

The petition for writ of certiorari is denied. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (“A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.”) (emphasis in original).

The annexation in this case consisted of ten parcels of property totaling 757.29 acres. The City has been the recognized utility provider for the annexation area for almost fifty years, pursuant to a special act of the Florida Legislature. Property owners for nine of the parcels, totaling 754.97 acres (or 99.7 percent of the overall annexation area), consented to the annexation. Additionally, the entire annexation area is slated for urban development under the County’s land use plan and is completely surrounded by property already developed for urban purposes.

“Certiorari is not used to grant a second appeal or redress mere legal error; rather, it provides a safety net to correct a miscarriage of justice when no other remedy is available.” See County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006). Finding no miscarriage of justice under the facts presented, we deny certiorari review. In so ruling, we note that we do not necessarily disagree with Judge Evander’s analysis of section 171.043, Florida Statutes (2003). Rather, we find that the County has failed to demonstrate a miscarriage of justice sufficient to warrant the exercise of our discretionary certiorari jurisdiction.

CERTIORARI DENIED.

GRIFFIN and LAWSON, JJ., concur.

EVANDER, J., dissents, with opinion.

EVANDER, J.,

dissenting.

I respectfully dissent. Circuit courts review annexation ordinances by certiorari pursuant to section 171.081, Florida Statutes. In the first-tier review, the court determines: 1) whether the lower tribunal afforded the parties procedural due process; 2) whether the essential requirements of law were observed; and 3) whether the lower tribunal’s action was supported by substantial competent evidence. County of Volusia v. City of Deltona, 925 So.2d 340 (Fla. 5th DCA 2006).

On second-tier review, a district court may exercise its discretion to grant certiorari review when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003). A clearly established prin ciple of law may be derived from a statute. Thus, an improper interpretation of a statute may provide the basis for granting certiorari review. Kaklamanos, 843 So.2d at 890. In the present case, the facts are not disputed. The issue is whether section 171.043, Florida Statutes (2003), permits a municipality to involuntarily annex undeveloped property where no developed property is included in the annexation. The circuit court answered this question in the affirmative, notwithstanding the statute’s contrary language.

Section 171.043 provides that a municipality .may involuntarily annex property only if it meets the general standards of subsection (1) and the requirements of either subsection (2) or (3). These subsections provide:

(1) The total area to be annexed must be contiguous to the municipality’s boundaries at the time the annexation proceeding is begun and reasonably compact, and no part of the area shall be included within the boundary of another incorporated municipality.
(2) Part or all of the’ area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which meets any one of the following standards.
(a) It has a total resident population equal to at least two persons for each acre of land included within its boundaries;
(b) It has a total resident population equal to at least one person for each acre of land included within its boundaries and is subdivided into lots and tracts so that at least 60 percent of the total number of lots and tracts are 1 acre or less in size; or
(c) It is so developed that at least 60 percent of the total number of lots and tracts in the area at the time of annexation are used for urban purposes, and it is subdivided into lots and tracts so that at least 60 percent of the total acreage, not counting the acreage used at the time of annexation for nonresidential urban purposes, consists of lots and tracts 5 acres or less in size.
(3) In addition to the area developed for urban purposes, a municipal governing body may include in the area to be annexed any area which does not meet the requirements of subsection (2) if such area either:
(a) Lies between the municipal boundary and an area developed for urban purposes, so that the area developed for urban purposes is either not adjacent to the municipal boundary or cannot be served by the municipality without extending services or water or sewer lines through such sparsely developed area; or
(b) Is adjacent, on at least 60 percent of its external boundary, to any combination of the municipal boundary and the boundary of an area or areas developed for urban purposes as defined in subsection
The purpose of this subsection is to permit municipal governing bodies to extend corporate limits to include all nearby areas developed for urban purposes and, where necessary, to include areas which at the time of annexation are not yet developed for urban purposes whose future probable use is urban and which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes.

Here, the county does not dispute that the standards set forth in subsection (1) are met. Similarly, the city does not dispute that the standards set forth in subsection (2) are not met. Thus, the question is whether the standards set forth in subsection (3) are met.

The first words in subsection (3) are: “In addition to the area developed for urban purposes.” The plain meaning of these words is that undeveloped property may be included in the annexation provided the undeveloped property meets the conditions set forth in subsection (3)(a) or subsection (3)(b) and developed property is included in the annexation ordinance. In the present case, the proposed annexation did not include any area developed for urban purposes. Accordingly, the proposed annexation did not comply with the standards set forth in either subsection (2) or (3).

The North Carolina Supreme Court has interpreted a virtually identical statute to prohibit a municipality from proceeding with an annexation where the property proposed to be annexed was entirely undeveloped. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004). The court found to hold otherwise would negate the legislative purpose behind the statute. Carolina Power, 597 S.E.2d at 724.

I recognize certiorari is not to be used to grant a second appeal or redress mere legal error but rather provides a safety net to correct a miscarriage of justice. I believe that the sometimes fine line between “mere legal error” and “miscarriage of justice” has been crossed in this case. The result of the circuit court’s decision was that the City of Cocoa was able to involuntarily annex property when, based on the undisputed facts, such involuntary annexation was statutorily prohibited.

I am also concerned that the majority’s decision to deny certiorari is inconsistent with our recent decision of County of Volu-sia. In County of Volusia, this court found certiorari review from the order of the circuit court appellate panel to be appropriate where the circuit court had wrongly determined the proposed annexed property was contiguous to the City of Deltona. In that case, the circuit court appellate panel had focused on only one of three parcels proposed to be annexed in determining whether the proposed annexed property was coterminous to the City of Deltona. We held:

The (circuit) court departed from the essential requirements of law by focusing only on the Gray property to find that a substantial part of the boundary of the territory was contiguous. Section 171.031(11) requires that a substantial portion of a boundary of the territory annexed must be coterminous with the City’s boundary. We hold that 350 feet out of more than 20,000 cannot constitute a substantial portion of the western boundary of the three parcels annexed together.

County of Volusia, 925 So.2d at 344.

I would suggest that the argument to grant certiorari in this case is even stronger than it was in County of Volusia. To some degree, the County of Volusia decision was fact-specific. In this case, the sole issue is one of statutory interpretation.

      . N.C. Gen.Stat. § 160a-48(d).


text:
    Jesse J. CADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4038.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2007.
    Rehearing Denied March 30, 2007.
    Jessie J. Cade, Indiantown, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 39.022(5)(c)(3), Fla. Stat. (1991); see also Ritchie v. State, 670 So.2d 924 (Fla.1996).

PALMER, MONACO and LAWSON, JJ., concur.


author: THOMPSON, J.

text:
    Sanford Paul BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2885.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.
    Rehearing Denied April 4, 2007.
    Sanford P. Butler, Madison, pro se.
    No Appearance for Appellee.
   THOMPSON, J.

Sanford Paul Butler, appearing pro se, appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He raises three issues in his appeal. We affirm in part and reverse in part.

Butler’s first claim is that the trial court erred when it denied his rule 3.800(a) motion as successive. In his motion, Butler argued that his jurisdictional speedy trial argument had not been decided on the merits. The record reveals that Butler made this argument before to this court and a decision had been entered on the merits. Butler v. State, 784 So.2d 1120 (Fla. 5th DCA 2001); Butler v. State, 829 So.2d 232 (Fla. 5th DCA 2002). Further, the trial court explained that Butler had filed a writ of habeas corpus in the federal court that had been denied, with prejudice, specifically addressing the merits of his speedy trial argument. The trial court correctly noted that Butler’s sentence is not illegal and has been reviewed by the trial court, this court, and the federal district court. His illegal sentence claim was successive and lacked merit.

However, Butler also claims that the trial court erred because its order barred him from filing further pleadings without notice or an opportunity to be heard. The State concedes the record contains no show cause order in accordance with State v. Spencer, 751 So.2d 47 (Fla.1999). Spencer held that courts must provide notice and an opportunity to respond before preventing a litigant from bringing further attacks on his conviction and sentence. Id. Therefore, we reverse and remand to attach records establishing that Butler received notice and an opportunity to be heard or, to enter an order to show cause in accordance with Spencer.

Similarly, Butler argues that the court erred in recommending that the Department of Corrections forfeit his gain time as a sanction for filing successive pleadings. Based on the lack of a Spencer order, on remand, the trial court should attach records establishing that Butler received notice and an opportunity to be heard or enter such an order to show cause in accordance with Spencer, before barring him from further pro se pleadings or imposing sanctions.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings in accordance with this opinion.

PLEUS, C.J. and TORPY, JJ„ concur.

      . The trial court’s order stated that Butler "SHALL NOT file any further motions of any kind without the assistance of an attorney licensed to practice law in the State of Florida.” Any order barring Butler from pro se pleadings should limit the prohibition to the instant case, rather than a broad prohibition against "filing any motions of any kind.”


text:
    1501 SE 24TH ROAD, LLC, etc., Appellant, v. The ESTATE OF Palma PASQUALINI, etc., Appellee.
    No. 5D06-791.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2007.
    Rehearing Denied March 27, 2007.
    Thomas A. Valdez, of Quintairos, Prieto, Wood & Boyer, P.A., and Jason S. Miller, McCumber, Inclan, Daniels, Valdez, Buntz & Ferrera, P.A. Tampa, for Appellant.
    Christopher V. Carlyle, Shannon McLin Carlyle, and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   PER CURIAM.

AFFIRMED. See SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006).

GRIFFIN, SAWAYA and TORPY, JJ., concur.


text:
    David MARKIN, Appellant, v. Susan MARKIN, Appellee.
    Nos. 4D02-4214, 4D03-465.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.

      Joel M. Weissman of Weissman and Yaf-fa, P.A., West Palm Beach, for appellant.
    Jeffrey D. Fisher and Georgia T. Newman of Fisher & Bendeck, P.A., West Palm Beach, and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   On Motion for Review of Order on Former Husband’s Motion to Tax Appellate Costs

PER CURIAM.

Susan Markin, the former wife, seeks review of a trial court order under Florida Rule of Appellate Procedure 9.400(c). This order awarded David Markin, the former husband, costs totaling $171,649 for the appeal of the final judgment of dissolution in this case, see Markin v. Markin, 896 So.2d 814 (Fla. 4th DCA 2005). Susan Markin contends that the trial court erred by awarding David Markin appellate costs, because he was not the prevailing party on appeal. David Markin did not respond to Susan Markin’s motion within the time permitted by the appellate rules. We agree with Susan Markin that the trial court erred and reverse the order, see Gerhardt v. Gerhardt, 738 So.2d 485 (Fla. 4th DCA 1999)(reversing, rather than quashing, trial court' order under Rule 9.400(c) review).

Florida Rule of Appellate Procedure 9.400(a) provides that appellate costs “shall be taxed in favor of the prevailing party unless the court orders otherwise.” In determining whether a party was the prevailing party in an appeal, the test articulated in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), applies. See N. Am. Van Lines, Inc. v. Ferguson Transp., Inc., 662 So.2d 1275, 1276 (Fla. 4th DCA 1995). Moritz defines the prevailing party for purposes of attorney’s fees and costs as “the party prevailing on the significant issues.” 604 So.2d at 810.

In the trial court order awarding appellate costs to David Markin, the trial court misstated the applicable legal standard in its analysis. The trial court wrote that: “A party need only prevail on a significant issue in an appeal to be entitled to recover appellate costs.” (Emphasis added). However, the Moritz standard requires that a party prevail on “the significant issues.” (Emphasis added). Although the trial court properly found that David Markin prevailed on an issue on appeal, that being a credit for post-judgment alimony against the amount of the final judgment, the trial court did not determine that he prevailed on “the significant issues” on appeal.

Undoubtedly a credit of $1.2 million would be considered significant by many people, but in the scheme of this particular case, the issue was rather insignificant indeed. David Markin’s appeal of the final judgment of dissolution was unsuccessful in upsetting the final judgment in any regard, still requiring him to pay Susan Markin an equitable distribution equalizing payment of $33,106,816. By obtaining the credit on appeal, Markin merely was given credit for the sum of money that he had remitted toward the full equalizing payment. His obligations under the final judgment were in no way reduced. In other words, he obtained no relief from the total amount he was required to pay, let alone relief that could be classified as significant.

Therefore, by applying the Moritz standard to the circumstances of this case, we conclude that David Markin was not the prevailing party on “the significant issues” on appeal for purposes of an award of appellate costs. Consequently, we reverse the trial court order awarding appellate costs to David Markin and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, C.J., GUNTHER and STONE, JJ., concur.

      . This order was entered by a successor trial court and not the trial court that entered the final judgment of dissolution.

      . This amount includes $161,000 for an appellate bond premium for the bond that David Markin was required to obtain by this Court. This bond was necessary for this appeal only because David Markin failed to fulfill his obligations under the final judgment of dissolution and transferred some of the parties’ assets to an unreachable offshore account. As such, even if we were not quashing the order awarding David Markin appellate costs in its entirety, we would still quash this portion of the award because Susan Markin should not be expected to pay for a bond premium necessitated solely by David Markin's misconduct.