author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Juan JIMENEZ-PORRAS, Appellee.
    No. 2D07-727.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2007.
    Rehearing Denied Nov. 28, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State appeals a downward departure sentence for aggravated battery following a guilty plea by Juan Jimenez-Porras. As conceded on appeal, the court’s reason for departing from the sentencing guidelines is not supported by competent, substantial evidence because there was no evidence presented on the claim. See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (requiring evidence of all three elements — isolated incident, committed in an unsophisticated manner, for which defendant has shown remorse — for departure under section 921.0026(2)©, Fla. Stat.).

Jimenez-Porras argues only that the issue was not preserved. At sentencing, the State objected specifically to the court’s finding that this was an isolated incident and pointed to the defendant’s prior convictions and his subsequent violation of a protective injunction involving the victim of this crime. We conclude that the State preserved the issue for appeal because its “objection was ‘sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.’” Ayers, 901 So.2d at 944 (quoting in part section 924.051(l)(b), Fla. Stat.). Accordingly, we reverse. Pursuant to the State’s suggestion on appeal, Jimenez-Porras should be given an opportunity to withdraw his plea on remand.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ„ concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    James Reilly WOLDSETH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2347.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2007.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

James Reilly Woldseth appeals the order of the postconviction court denying his motion to vacate, set aside, or correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the portion of the order denying Woldseth’s rule 3.850 motion; however, we agree with Woldseth that the postconviction court should have allowed him to amend his motion to include two additional claims of ineffective assistance of counsel. See Pritchett v. State, 884 So.2d 417 (Fla. 2d DCA 2004) (holding that the defendant was entitled to amend his postconviction motion with additional claims where the two-year statutory time period had not expired and the court had not yet ruled on the original claims); Ramirez v. State, 854 So.2d 805 (Fla. 2d DCA 2003) (holding that the trial court erred in failing to consider the merits of new claims in an amended rule 3.850 motion where the court had denied the motion in part but not entered a final order disposing of the original motion). Accordingly, we reverse in part and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

FULMER and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    David ARCHER, Petitioner, v. ATLANTIC BEACH POLICE DEPARTMENT and Preferred Government Claims Solutions, Respondents. Buddy R. Griffis, Jr., Petitioner, v. St. Johns River Power Park, Jacksonville Electric Authority and Scibal Associates, Respondents, Timothy Hendry, Petitioner, v. Nimnicht Chevrolet and Summit Claims Center, Respondents. Kathleen Kingston, Petitioner, v. Jacksonville Beach Police Department and Integrated Administrators, Respondents.
    Nos. 1D07-3868 to 1D07-3871.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2007.
    Rehearing Denied Feb. 19, 2008.
    W. Marc Hardesty and Michael S. Tyde of Hardesty, Tyde, Green & Ashton, P.A., Jacksonville, for Petitioners.
    George A. Helm, III, and John C.E. Sung of Public Entity Legal Solutions, Lake Mary, for Respondents, Atlantic Beach Police Department and Preferred Governmental Claims Solutions.
    Richard M. Stoudemire of Cole, Stone, Stoudemire & Morgan, P.A., Jacksonville, for Respondents, St. Johns River Power Park, Jacksonville Electric Authority and Scibal Associates.
    Blake J. Hood of Boyd & Jenerette, P.A., for Respondents, Nimnicht Chevrolet and Summit Claims Center.
    Wilbur W. Anderson of Eraclides, Johns, Hall, Gelman, Johannessen & Kempner, L.L.P., Jacksonville, for Respondents, Jacksonville Beach Police Department and Integrated Administrators.
    Walter J. Havers of Office of the Judges of Compensation Claims, Tallahassee, for Judge of Compensation Claims William H. Dane.
   PER CURIAM.

Because we find that the Judge of Compensation Claims should have granted the claimants’ motions to disqualify, the petitions for writ of prohibition are granted. The cases are remanded to Judge of Compensation Claims William H. Dane with directions to grant the motions for disqualification.

Petitioners’ motions for attorney’s fees are denied. Dade County v. Turnbull, 572 So.2d 540 (Fla. 1st DCA 1990).

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Elton GAFFNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6031.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2007.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Elton Gaffney appeals his judgment and sentence for resisting an officer without violence arguing that the trial court erred in denying his dispositive motion to suppress evidence. We agree with Gaffney that the State did not carry its burden of showing that officers had a reasonable suspicion of criminal activity necessary to justify the investigative detention that led to his arrest, and accordingly, we reverse.

Without a founded suspicion of criminal activity, a police officer does not have the right to detain a person absent that person’s consent. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). A stop or brief detention of a person for investigatory purposes is permissible if an officer has a well-founded suspicion, supported by articulable facts, of criminal activity even if the officer lacks probable cause. Terry, 392 U.S. at 21, 88 S.Ct. 1868. Whether an officer’s suspicion is reasonable is determined by the “totality of the circumstances” that existed at the time of the investigatory detention. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

The parties do not dispute that Gaffney was detained by officers as part of their burglary investigation. In attempting to meet its burden to establish reasonable suspicion for the detention, the State did not present any testimony from Officer Back, the officer who initially encountered Gaffney, instead relying on the observations of officers who arrived later at the location where Officer Back and Gaffney were standing. However, those officers did not offer any testimony regarding the circumstances under which Officer Back first encountered Gaffney nor did they explain what, if anything, transpired between Gaffney and Officer Back before they arrived. Without that information, we cannot evaluate whether Gaffney’s detention was justified by a reasonable suspicion of criminal activity because the State did not establish the “totality of the circumstances” that existed at the time of his detention. See Walker v. State, 846 So.2d 643 (Fla. 2d DCA 2003). Accordingly, we reverse Gaffney’s conviction and sentence for resisting an officer without violence.

Reversed.

WHATLEY and SILBERMAN, JJ., Concur.


author: STRINGER, Judge.

text:
    MIDWAY SERVICES, INC., Appellant/Cross-Appellee, v. CUSTOM MANUFACTURING & ENGINEERING, INC., Appellee/Cross-Appellant.
    Nos. 2D07-897, 2D07-2220.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.

      Robert V. Potter of Johnson, Pope, Bo-kor, Ruppel & Burns, LLP, Clearwater, for Appellant/Cross-Appellee.
    David A. Townsend and Anita C. Bran-non of Townsend & Brannon, Tampa, for Appellee/Cross-Appellant.
   STRINGER, Judge.

In case number 2D07-897, Midway Services, Inc., (“Midway”) seeks review of the final judgment in which the trial court declined to award attorney’s fees incurred during court-ordered nonbinding arbitration. Because the trial court erred in determining that section 44.103(6), Florida Statutes (2005), precludes an award of these attorney’s fees, we reverse. In case number 2D07-2220, Midway seeks review of the final order awarding it a portion of its costs in the same case. Because the trial court correctly looked to the Statewide Uniform Guidelines to determine which costs are recoverable, we affirm. On cross-appeal in case number 2D07-2220, Custom Manufacturing & Engineering, Inc., (“CME”) seeks review of the cost award. Because the trial court correctly determined that Midway’s motion for costs was timely filed, we affirm.

This case arose when CME filed a breach of contract action against Midway, alleging that Midway breached three different contracts by failing to pay CME for the design and manufacture of water meter devices that were to be installed in apartment complexes. Midway filed a counterclaim alleging that CME had failed to perform two contracts and that Midway did not owe monies under the third contract. The parties were ordered to nonbinding arbitration, and the arbitrator found in favor of CME on all counts. Midway filed a motion for trial de novo, and a jury found in favor of Midway on all counts, including its counterclaim.

Midway filed a motion for attorney’s fees and costs pursuant to a prevailing party provision in one of the contracts and a proposal for settlement. The trial court entered a final judgment awarding Midway all of its fees except those incurred during the arbitration proceedings. In denying Midway’s request for attorney’s fees incurred during the arbitration, the trial court found that section 44.103(6) precludes an award of fees. The trial court deferred ruling on Midway’s request for costs, but limited Midway’s costs to those that were taxable under the Statewide Uniform Guidelines. Midway filed an appeal of the final judgment, which was assigned case number 2D07-897.

The trial court subsequently held a hearing on the cost issue and rendered an order awarding Midway costs pursuant to the Statewide Uniform Guidelines. Midway filed an appeal of this order, which was assigned case number 2D07-2220. CME filed a cross-appeal of the cost order in case number 2D07-2220. The cases were consolidated for appellate review.

Case No. 2D07-897

Midway argues that the trial court erred in ruling that section 44.103(6) precludes an award of attorney’s fees and costs under the contract and proposal for settlement. Because this issue involves a question of law regarding statutory interpretation, our review is de novo. Bell-South Telecomms. v. Meeks, 863 So.2d 287, 289 (Fla.2003). Section 44.103 addresses court-ordered nonbinding arbitration. Subsection (6) provides:

The party having filed for a trial de novo may be assessed the arbitration costs, court costs, and other reasonable costs of the party, including attorney’s fees, investigation expenses, and expenses for expert or other testimony or evidence incurred after the arbitration hearing if the judgment upon the trial de novo .is not more favorable than the arbitration decision.

Id.

Thus, section 44.103(6) provides a vehicle for awarding attorney’s fees against a party who filed for a trial de novo and failed to obtain a judgment more favorable than the arbitration decision. Section 44.103(6) is otherwise silent regarding attorney’s fees for court-ordered nonbinding arbitration. The question is whether this silence somehow works to preclude an award of attorney’s fees that is authorized by contract or another statutory provision.

There are no Florida cases discussing the application of section 44.103(6) to an award of attorney’s fees. However, there are two Florida cases discussing an analogous issue in the context of the application of section 44.103(6) to a cost award. See Connell v. City of Plantation, 901 So.2d 317 (Fla. 4th DCA 2005); Buscemi v. City of Plantation, 901 So.2d 979 (Fla. 4th DCA 2005).

In Connell, the plaintiff sued the City of Plantation for negligent maintenance of a city walkway. 901 So.2d at 318. The court ordered the parties to nonbinding arbitration, and the arbitrator awarded the plaintiff damages but found her to be eighty percent negligent. Id. at 318-19. The court denied the plaintiffs motion to tax costs. Id. at 319. On appeal, the plaintiff argued that she was entitled to costs as the prevailing party pursuant to section 57.041, Florida Statutes (2003). Id. at 320. The Fourth District agreed and reversed. In so doing, the court held that section 44.103(6) did not preclude an award of costs under section 57.041. The court held that because section 44.103(6) was silent on “the issue of fees and costs where an arbitration award is unchallenged,” then section 57.041 controlled. Id. In Bus-cemi, the court followed its precedent in Connell without further elaboration. 901 So.2d 979.

Although Connell did not involve an award of attorney’s fees after a trial de novo, its rationale is applicable to such an award. As noted in Connell, section 44.103(6) is silent on the award of attorney’s fees and costs other than those awardable against a party who filed for a trial de novo and failed to obtain a judgment more favorable than the arbitration decision. A plain language reading of section 44.103(6) reveals that it does not preclude attorney’s fees otherwise awardable to a party who prevails at trial de novo. Section 44.103(6) does not state or imply that it is the sole authority for an award of attorney’s fees incurred in court-ordered nonbinding arbitration. There is simply no authority in section 44.103(6) that would permit a trial court to ignore a valid statutory or contractual basis for attorney’s fees incurred in such an arbitration proceeding.

Thus, the trial court erred in determining that section 44.103(6)’s silence regarding attorney’s fees for a party who prevailed at a trial de novo somehow works to preclude attorney’s fees that are authorized on some other basis. We therefore reverse the award of attorney’s fees and remand for the trial court to award attorney’s fees incurred in the arbitration proceedings below.

Case No. 2D07-2220 (Direct Appeal)

In its order awarding Midway attorney’s fees, the trial court deferred rul-mg on Midway’s request for costs, but limited Midway’s costs to those that were taxable under the Statewide Uniform Guidelines. The court subsequently awarded Midway costs under the uniform guidelines. On appeal, Midway argues that the trial court erred in limiting the cost award to those taxable pursuant to the uniform guidelines.

The Statewide Uniform Guidelines are advisory guidelines that were created to help courts assess costs. In re Amendments to Uniform, Guidelines for Taxation of Costs, 915 So.2d 612, 614 (Fla.2005). They contain three categories of costs: (1) those that should be taxed, (2) those that may be taxed, and (3) those that should not be taxed. Id. at 616-17. However, the guidelines are very clear that they “are not intended to ... limit the amount of costs recoverable under a contract or statute.” Id. at 616. Thus, if the contract specifically provides for certain costs that are not recoverable under the uniform guidelines, the contract controls. See, e.g., Barnes v. City of Dunedin, 666 So.2d 574, 575 (Fla. 2d DCA 1996) (“This court has allowed travel expenses of an attorney only if provided for by contract or statute.”).

The costs provision in the contract between the parties in this case provides for the recovery of “all costs and expenses ... for services rendered in connection with such litigation.” However, the contract does not specify which costs should be recovered. If the contract simply provides for “all costs incurred,” then the court should look to the uniform guidelines to determine which costs are recoverable. Wood v. Panton & Co. Realty, Inc., 950 So.2d 534, 535 (Fla. 4th DCA 2007). Thus, the trial court did not err in looking to the uniform guidelines to determine which costs Midway was entitled to recover.

Case No. 2D07-2220 (Cross-Appeal)

CME argues that Midway’s motion to tax guidelines costs was not timely filed because it was not pled or filed within thirty days of the final judgment. Midway filed a motion for attorney’s fees and costs on September 13, 2006, which was within thirty days of the August 22, 2006, final judgment. The trial court held a hearing on the motion and entered an order in which it passed the cost award but limited costs to those taxable under the Statewide Uniform Guidelines. The order was entered on January 29, 2007, and Midway filed a “Renewed Motion for Recovery of Litigation Costs” on March 28, 2007.

It is this “Renewed Motion” that CME argues was filed untimely. However, the “Renewed Motion” does not seek any relief that Midway had not already sought in its original and timely motion for attorney’s fees and costs. While the original motion did not seek costs pursuant to the uniform guidelines, the motion did seek costs. The cost award in this case was not authorized by the uniform guidelines, but by the contract. The court simply looked to the uniform guidelines to see what costs were taxable. In fact, the “Renewed Motion for Recovery of Litigation Costs” was not even necessary because the earlier motion for costs remained pending. Thus, the trial court did not err in determining that Midway’s motion for costs was timely filed.

Conclusion

Because the trial court erred in determining that section 44.103(6) precludes an award of attorney’s fees incurred during court-ordered nonbinding arbitration, we reverse the final judgment in case number 2D07-897 and remand for further proceedings. We affirm the cost award in case number 2D07-2220 because the trial court correctly looked to the Statewide Uniform Guidelines to determine which costs are recoverable and the motion for costs was timely filed.

Affirmed in part; reversed in part; and remanded.

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


author: WALLACE, Judge.

text:
    SARASOTA COUNTY, Florida, Petitioner, v. BOW POINT ON the GULF CONDOMINIUM DEVELOPERS, LLC, a Florida limited liability company, Respondent.
    No. 2D07-1984.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    Stephen E. DeMarsh, County Attorney, and Gary K. Oldehoff, Assistant County Attorney, Sarasota, for Petitioner.
    David A. Wallace and Morgan R. Bentley of Williams Parker Harrison Dietz & Getzen, P.A., Sarasota, for Respondent.
   WALLACE, Judge.

Sarasota County petitions for a writ of certiorari to quash an order of the circuit court acting in its appellate capacity. The circuit court’s order reversed a compliance order that had been issued by a code enforcement special magistrate. The compliance order required Bow Point on the Gulf Condominium Developers, LLC, to cease operating a motel on Manasota Key. Although the motel use was nonconforming, the motel operation predated the applicable county zoning regulation. After the zoning regulation went into effect, the motel had continued operating under the benefit of a grandfather clause. Because the circuit court applied the correct law in at least one ground of its decision when it concluded that a sixteen-month interruption of the motel operation for necessary repairs and renovations did not trigger a discontinuance provision in the zoning ordinance, we deny the petition.

Under the County’s zoning ordinance, nonconforming uses that continue to operate after the effective date of the regulation are subject to the following discontinuance provision:

Discontinuance
If any such nonconforming use ceases for any reason (except when governmental action impedes access to the premises) for a period of more than 365 consecutive days, any subsequent use of such land shall conform to the regulations specified by these zoning regulations for the district in which such land is located.

Sarasota County, Fla., Zoning Regulations art. 8.2.3.b. (2004). Such a discontinuance provision is one of the methods by which nonconforming uses may be gradually eliminated over the course of time. Other methods include attrition, destruction, and obsolescence. See SM Nat’l Adver. Co. v. City of Tampa Code Enforcement Bd., 587 So.2d 640, 641 (Fla. 2d DCA 1991); Mark A. Rothenberg, The Status of Nonconforming Use Law in Florida, 79 Fla. B.J. 46, 46 (Mar.2005).

After a hearing, the special magistrate found that Bow Point’s property had been “re-opened for business as a motel/inn after ceasing such use for a period greater than 365 days” in violation of the discontinuance provision. The special magistrate’s order directed Bow Point to “cease all operations as a commercial hotel/motel establishment in 60 days.” Bow Point appealed to the circuit court, and the circuit court reversed the compliance order.

On review by certiorari in this court, the County does not claim a denial of due process in the circuit court. Therefore, our review of the circuit court’s order is limited to determining whether the circuit court applied the correct law. See Massey v. Charlotte County, 842 So.2d 142, 144 (Fla. 2d DCA 2003).

In its order, the circuit court based the reversal of the special magistrate’s order on five separate grounds. As to four of these grounds, we conclude that the circuit court applied the incorrect law. However, the circuit court applied the correct law in determining that the suspension of Bow Point’s motel operation for sixteen months during necessary repairs and renovations did not constitute a discontinuance of the nonconforming use. See City of Miami Beach v. State ex rel. Parkway Co., 128 Fla. 118, 174 So. 443, 445 (1937); Maroon v. Miami-Dade County, 6 Fla. L. Weekly Supp. 754d (Fla. 11th Cir.Ct. Aug. 25, 1999). See generally Rothenberg, 79 Fla. B.J. at 47-48. Accordingly, the reopening of the motel was not unlawful under the discontinuance provision of the applicable county zoning ordinance.

Petition denied.

STRINGER and SILBERMAN, JJ., concur.

      . It appears from our record that Sarasota County uses special magistrates to hear code enforcement proceedings. The use of special magistrates instead of boards is authorized by section 162.03, Florida Statutes (2005). Under section 162.03(2), the special magistrate enjoys the same status as the code enforcement board. See Richbon, Inc. v. Miami-Dade County, 791 So.2d 505, 506 n. 1 (Fla. 3d DCA 2001) (referring to "special masters,” the term used in earlier versions of the statute).

      . Review of a code enforcement board’s order is by appeal to the circuit court. §§ 26.012(1), 162.11, Fla. Stat. (2005); Fla. R.App. P. 9.030(c)(1)(C). See Richbon, Inc., 791 So.2d at 506 n. 2; Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001).

      .In at least two instances, the circuit court departed from its appellate role and improperly reweighed the evidence that had been presented to the special magistrate. Under section 162.11, an appeal of the code enforcement board’s order to the circuit court "shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board.” Where, as in this matter, the circuit court reviews local governmental administrative action, "three questions are asked: whether due process was afforded, whether the administrative body applied the correct law, and whether its findings are supported by competent substantial evidence.” Lee County v. Sunbelt Equities, II, Ltd. P'ship, 619 So.2d 996, 1003 (Fla. 2d DCA 1993). The circuit court is not permitted to go further and reweigh the evidence presented to the administrative agency. Id.


author: DAVIS, Judge.

text:
    LUKE INVESTMENTS, INC., Appellant, v. CAMELOT CONDOMINIUM OWNERS ASSOCIATION, INC., on behalf of the UNIT OWNERS OF CAMELOT, a condominium; Pinellas County Tax Collector; Ken Burke, Clerk of the Circuit Court, Pinellas County; and Board of County Commissioners, Pinellas County, Appellees.
    No. 2D07-1682.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
    Rehearing Denied Feb. 11, 2008.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville; and Marlene L. Kirtland and Adrienne A. Sampson of Becker & Poliakoff, P.A., Maitland, for Appellant.
    Robert M. Quinn of Carlton Fields, P.A., Tampa; and Lee H. Rightmyer and Matthew J. Conigliaro of Carlton Fields, P.A., St. Petersburg, for Appellee Camelot Condominium Owners Association, Inc.

      No Appearance for remaining Appellees.
   DAVIS, Judge.

Luke Investments, Inc., challenges the trial court’s nonfinal order granting partial summary judgment in favor of Camelot Condominium Owners Association, Inc. (“the Association”), on behalf of the unit owners of Camelot, a condominium development in Pinellas County. Since this order determined the right to the immediate possession of property, we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).

Camelot is a timeshare condominium that consists of more than 900 timeshare period units. Pursuant to section 192.037(1), Florida Statutes (2006), the Pi-nellas County tax collector considered the Association to be the property’s taxpayer — as agent for the individual timeshare period titleholders — for the purposes of assessing and collecting the ad valorem taxes. It is undisputed that the Association failed to pay Camelot’s ad valorem taxes for 2003, 2004, and 2005. This resulted in the impending sale of the property pursuant to chapter 197, Florida Statutes, for which the tax collector provided notice to only the Association. At the tax sale, Luke Investments was the successful bidder. The clerk of court thus issued the deed for the property to Luke Investments, which immediately recorded the deed and took possession of the property.

The Association, on behalf of the individual timeshare period titleholders, filed a quiet title action against Luke Investments, the Pinellas County Tax Appraiser, the Pinellas County Clerk of Court, and Pinellas County itself. In that action, the Association challenged the issuance of the deed, alleging that the clerk of court’s notice of the sale and deed issuance was insufficient because it was not provided to each of the 900 individual timeshare period unit owners. The Association thus asked that title to the condominium be quieted in the names of the individual timeshare period titleholders. The trial court granted partial summary judgment, concluding that as a matter of law the individual titleholders were entitled to notice of the sale and that because such notice was not provided, the tax deed to the property was void. The order further required that Luke Investments vacate the property immediately. Luke Investments now appeals this order.

On appeal, Luke Investments argues that in order to reduce the workloads of the property appraiser and tax collector, the legislature devised a statutory scheme for handling the taxing of timeshare units such as Camelot. Chapter 192 provides that the property shall be assessed as a whole and in the name of the unit owners’ association. It also provides that the unit owners’ association shall serve as the single tax paying entity for the property as a whole. There is no question that such a plan is within the province of the legislature. See Day v. High Point Condo. Resorts, Ltd., 521 So.2d 1064 (Fla.1988).

However, the issue presented in this case is whether the legislature intended this “agency plan” to apply to the procedures prescribed by the statute for the sale of property and the issuing of a tax deed following such a sale. The parties here agree that there are no factual disputes as to whether the taxes were delinquent or whether the only notice of the sale given was to the Association as the agent. Instead, the issue we must resolve is whether the statute requires that notice be given to each of the individual titleholders prior to the sale.

Section 192.037(9) states:

All provisions of law relating to enforcement and collection of delinquent taxes shall be administered with respect to the timeshare development as a whole and the managing entity as an agent of the timeshare period titleholders; if, however, an application is made pursuant to s. 197.502, the timeshare period titleholders shall receive the protections afforded by chapter 197.

The Association maintains that the plain reading of this statute indicates that although ad valorem taxes on a timeshare condominium development are to be assessed and collected through the owners’ association as the agent of the individual titleholders, once there is an application made for the sale of the property and the issuance of a tax deed, the agency status of the association no longer applies and the individual titleholders must be provided notice. We agree.

Section 192.037(9) begins with the recognition that the owners’ association is treated as the agent for the timeshare period titleholders for the purposes of “enforcement and collection of delinquent taxes.” The plain reading of the remainder of the statute, however, indicates that the legislature has altered that agency representation in certain circumstances. Specifically, the use of the word “however” indicates that, notwithstanding the prior statement, once the provisions of section 197.502 are implicated, the individual titleholders are entitled to the “protections afforded by chapter 197.”

Luke Investments argues that section 192.037(9) is satisfied by providing the owners’ association with notice because the individual owners receive the notice protection of chapter 197 through their agent. We disagree.

The statute specifically provides that the timeshare period titleholders are to receive the protection of chapter 197. This statement is in contrast with the clause before the word “however,” which speaks of the titleholders’ agent. Section 197.502(4)(a) provides that the notice of the sale of the property shall be given to “[a]ny legal titleholder of record.” Although section 192.037(1) designates the Association as the “taxpayer” and the “agent of the timeshare period titleholder,” it does not designate it as the titleholder of record. Since section 197.502(4)(a) requires that the notice be given to the “titleholder” and section 192.037 provides that under these circumstances, this protection is to be provided to the timeshare period titleholder, not his agent, we conclude that the plain reading of the statute requires that in order for a sale of property for failure to satisfy delinquent ad valorem taxes to be valid, each individual timeshare period titleholder must be provided the statutorily required notice. Accordingly, we affirm the trial court’s partial summary judgment.

Affirmed.

VILLANTI and LaROSE, JJ., Concur.

      . Luke Investments is the only defendant below challenging the trial court’s partial summary judgment. The remaining defendants below, however, are listed as appellees in the current appeal pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).

      . We are not deciding whether the legislature could, if it chose to, provide for the notice to be given to the agent but only that based on the present wording of the statute, the legislature has intended that the individual timeshare period titleholder receive notice prior to the sale. We are not ignoring the serious inconvenience that will be caused to the tax collector by our conclusion; however, in our opinion, the language of the statute requires such a result.


author: CASANUEVA, Judge. CANADY, Judge,

text:
    J.W.T., Appellant, v. S.T. f/k/a S.G., Appellee.
    No. 2D07-339.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.
    Rehearing Denied Feb. 25, 2008.
    Charles D. Radeline of Radeline Law Firm, PLC, Palm Harbor, for Appellant.
    Mark A. Neumaier, Tampa, for Appel-lee.
   CASANUEVA, Judge.

J.W.T. (the Father) appeals from an order dismissing with prejudice his petition to establish paternity. In considering Ap-pellee S.T.’s (the Mother’s) motion to dismiss filed in response to the petition, the circuit court looked beyond the allegations of the petition. For this reason, we reverse.

The Father claims that he and the Mother are the parents of a daughter born in November 2001. At the time of the conception and birth of their daughter, he and the Mother were not married, either to each other or to anyone else. In 2006, the Mother commenced a paternity action against the Father; the Father contends that during those proceedings, she stipulated that he was the father of their daughter. While her action was still pending, she married J.H.T. (the Husband) on September 25, 2006, and soon thereafter voluntarily dismissed her suit. The Father, who wished to acknowledge his paternity and be involved in his daughter’s life, quickly filed his own petition to establish paternity on October 9, 2006. The Mother moved to dismiss his petition, relying on section, 742.091, Florida Statutes (2006), and L.A. v. H.H., 710 So.2d 162 (Fla. 2d DCA 1998). Her motion alleged that she and the Husband are married and that the Husband has acknowledged his paternity by (1) supporting the Mother during and after her pregnancy, (2) signing an affidavit of paternity, (3) having his name placed on the child’s birth certificate, and (4) providing financial and emotional support, as well as medical insurance, to the daughter throughout her life. The circuit court accepted the Mother’s arguments and dismissed the Father’s petition.

We review this case under a dé novo standard of review because the circuit court’s decision to dismiss a complaint or petition is a question of law. Al-Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001) (“The de novo standard of review is applied when considering an order granting a motion to dismiss.”).

The circuit court had before it the Father’s petition which alleged the following relevant facts: (1) he and the Mother had engaged in sexual intercourse with each other that produced this child, (2) he was not married at the time of conception or birth, and (3) he is the putative father of the child, as evidenced by a DNA report, attached to the petition, which showed a level of certainty of 99.98%. These facts state a cause of action to establish paternity-

The transcript of the hearing on the Mother’s motion to dismiss shows that the circuit court was well aware of the law of dismissal and what factual matters it could consider. Nevertheless, it felt constrained to dismiss the Father’s petition based on section 742.091, Florida Statutes (2006), and this court’s opinion in I.A, which held that the putative father has no cause of action if the undisputed evidence establishes that the mother and the reputed father intermarried after the birth of the child. 710 So.2d at 164. The circuit court concluded that the Husband qualified as the child’s reputed father because he gave the Mother emotional and financial support during her pregnancy and to both of them after her birth, allowed himself to be identified as the child’s father on her birth certificate, and held himself out as the child’s father since her birth. These facts, about the Husband’s role in the child’s life, are outside the allegations of the Father’s petition and cannot be a basis to dismiss the suit. See Al-Hakim, 787 So.2d at 941 (noting, similarly to the instant case, that it was evident that the circuit court was attempting to resolve the matter expeditiously and on the merits; further noting, however, that a motion to dismiss is not a substitute for a motion for summary judgment and does not permit the trial court to consider extrinsic evidence).

Although we decide this case purely on its procedural posture and because the circuit court will face further proceedings on remand, we note that under the circumstances of this case, in addition to I.A., the circuit court should also consider the recent case of T.B. v. M.M., 945 So.2d 637 (Fla. 2d DCA 2006). In T.B., this court reversed a circuit court order that had dismissed a paternity action where the mother of the child at issue married another man after she was served with the putative father’s paternity action, and her new husband acknowledged that he was the father of the child. We reversed because we concluded that neither existing case law nor the provisions in section 742.091, Florida Statutes (2004), compelled dismissal of the action. Id. at 638.

In T.B., T.B. and another man each had sexual relations with M.M., the unmarried mother of the child, and both men were in the delivery room for the child’s birth in July 2003. At the time, neither man’s name was placed on the birth certifícate. Since the child’s birth, M.M. lived with the second man and he allegedly supported the child. On April 13, 2005, T.B. filed a paternity action asking the circuit court to determine whether he was the biological father and, if so, asked that the court order shared parental responsibility for the child and award him primary residential responsibility. T.B. served the action on M.M. on April 16, 2005; on April 18, she and the second man obtained a marriage license and were married April 25. Her new husband also signed an acknowledgment of paternity, and presumably based upon that acknowledgment, a birth certificate was issued on April 26 showing the new husband as the father of the child. Id. at 638.

Based on her new situation, M.M. filed a verified motion to dismiss T.B.’s suit. The circuit court held a hearing at which the parties testified, and despite the circuit court’s correct observation that a motion to dismiss is properly decided upon the allegations in the complaint, the court dismissed the action with prejudice. Id. at 639. Although we noted that the procedure employed by the circuit court was unusual, we did not reverse on that basis. In T.B., similarly to this case, the circuit court entered the functional equivalent of a summary judgment based on the undisputed facts of the marriage and the acknowledgment of paternity. We viewed the issue in T.B. as “whether a paternity action that states a proper claim on the date it is filed and served may be barred if the mother subsequently marries a second man who files an acknowledgment of paternity. We conclude that such defensive steps are not an automatic bar to the paternity action.” Id.

Unlike T.B., which did not have a marriage, intact or otherwise, on the date the paternity action was filed, here the Mother and the Husband were a married couple by the time the Father commenced this action, effectively turning the daughter from a nonmarital child into a new type of “quasi-marital child.” This factual distinction should not be dispositive under the unique circumstances of this case. The Mother had previously commenced a paternity action against the Father, in which the Father contends she admitted his paternity, but which action she later voluntarily dismissed, after marrying the Husband. The Father soon thereafter commenced his own paternity action. Although the mother and her new husband in T.B. may have had the best of intentions when they married and filed the acknowledgment of paternity, “we hesitate[d] to give a mother the right to block a biological father’s right to determine paternity by her marriage to another man during the pendency of a paternity action.” T.B., 945 So.2d at 639. In so doing, we declined to further extend I.A. to include the facts of T.B.’s case. T.B., 945 So.2d at 639-40. Although the Mother and the Husband in this case also may have had the best of intentions for this child when they married, the timing of their actions suggests an attempt to deny the biological father’s right to determine paternity, if not during the actual pendency of a paternity action as in T.B., at least during the same timeframe when the parties were disputing paternity.

In summary, and as this court has noted before in the analogous context of “quasi-marital children,” these types of cases “present major public policy issues that are difficult, if not impossible, to address within the case law method.” Dep’t of Revenue ex rel. Preston v. Cummings, 871 So.2d 1055, 1061 (Fla. 2d DCA 2004), approved, 930 So.2d 604 (Fla.2006). As in Preston, we here once again provide a narrow holding that “do[es] not attempt to announce public policy rules broader than those required by the facts in a particular case.” Id.

Reversed and remanded for further proceedings.

SALCINES, J„ Concurs.

CANADY, J., Concurs specially.

CANADY, Judge,

Specially concurring.

I concur with the reversal of the dismissal order and the reasons articulated in the majority opinion for the reversal.

      . Because this is an appeal from an order dismissing an action, the official record is limited. Therefore, many of the facts of this case are taken from elsewhere than the Father’s petition, for example from depositions as reported to the court by counsel. We provide the surrounding factual circumstances as the parlies have presented them to us to give a more complete picture of the case. However, the disposition of this case remains purely on the basis that the circuit court went beyond the four corners of the petition in dismissing the action.

      . Section 742.091, Florida Statutes (2006) (Marriage of parents) provides:
      If the mother of any child bom out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock, and upon the payment of all costs and attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in s. 742.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.

      . The language of section 742.091 has not changed between 2004 and 2006.

      . See generally Chris W. Altenbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L. Rev. 219, 228-30 (1999). The child in this case is not quite a "quasi-marital child" because she fits into none of the three types of quasi-marital children outlined by Judge Altenbernd.

      . Moreover, although the Husband’s name appears on the child's birth certificate, the face of the birth certificate shows that it was issued on November 27, 2006, well after the Father instituted his paternity action.


text:
    Toby GETMAN, Former Wife, Appellant, v. Thomas Arthur GETMAN, Former Husband, Appellee.
    No. 1D07-4700.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Rehearing Denied Feb. 15, 2008.
    Cindy L. Lasky, Jacksonville, for Appellant.
    Homer A.C. Bliss, Jacksonville, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 25, 2007, and in light of the lower tribunal’s September 4, 2007, Order on Former Wife’s Motion to Vacate or Set Aside, the Court has determined that the appeal is moot. Accordingly, the appeal is hereby dismissed.

ALLEN, DAVIS, and BENTON, JJ„ concur.


text:
    Wilson GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4137.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    James Marion Moorman, Public Defender, and Dan Hallenberg, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Wilson Graham challenges his convictions and sentences for first-degree murder, attempted robbery with a firearm, robbery with a firearm, and burglary of a dwelling with an assault or battery. We affirm.

On appeal, Graham challenges the sufficiency of the Miranda warnings he received and argues that he should not have been sentenced as a prison releasee reof-fender because his prior commitments were juvenile commitments.

In Powell v. State, 969 So.2d 1060, 1064, 1067 (Fla. 2d DCA 2007), this court determined that Miranda warnings that included the phrase, “You have the right to talk to a lawyer before answering any of our questions” were “constitutionally flawed because the right to talk to or consult with an attorney before questioning is not identical to the right of the presence of an attorney during questioning.” The warnings given to Graham are distinguishable because they advised that Graham had the right to the presence of an attorney and did not include any time-frame limitation. We therefore affirm on this point without further comment.

With regard to Graham’s enhanced sentence, we adopt the reasoning of Tatum v. State, 922 So.2d 1004, 1005 (Fla. 1st DCA 2006), in which the First District concluded that “[bjecause the statute makes no distinction between youthful offender commitments and adult commit-merits, ... the trial court was required to impose the enhanced sentences,” even where the prior commitment was in a “youthful offender boot camp.”

Affirmed.

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

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


text:
    Stephen GOULD, Petitioner, v. STATE of Florida, Respondent.
    No. 2D07-2918.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.

      James Marion Moorman, Public Defender, and Robert T. Connolly and Richard N. Blank, Assistant Public Defenders, Bar-tow, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondent.
   WALLACE, Judge.

Stephen Gould petitions this court for a writ of certiorari to review a circuit court order that denied his petition for writ of habeas corpus. Mr. Gould filed his habeas corpus petition in the circuit court to review the first appearance magistrate’s finding of probable cause to support Mr. Gould’s arrest and continued detention. Because we conclude that the circuit court’s order departs from the essential requirements of the law, we grant the petition and quash the circuit court’s order.

I. FACTS AND PROCEDURAL HISTORY

On May 29, 2007, a law enforcement officer issued Mr. Gould a uniform traffic citation for driving under the influence (DUI) under section 316.193, Florida Statutes (2006). The traffic citation included checked boxes indicating that a nonfatal crash occurred involving no injuries and an estimated $2800 in property damage. The uniform traffic citation indicated that Mr. Gould had a “breath/blood/urine alcohol level” of .000. The traffic citation also included the notations “URINE SUBMITTED” and “DRE [] COMPLETED.”

At first appearance, the magistrate found probable cause for the DUI charge. The magistrate noted, “[Tjhere is no report. It says that in the blurb on the Florida Uniform Traffic Citation. It has a check for DUI. It says .000. It has the language and says urine submitted, [drug recognition expert] completed.” Mr. Gould’s attorney objected to the finding of probable cause because the traffic citation showed only that the law enforcement officer suspected DUI, asked for a breathalyzer, and the result was .000. Mr. Gould’s attorney pointed out that there was no narrative indicating “what was being done with the automobile — whether there was a smell of alcohol, bloodshot eyes or anything like that.” The magistrate noted the objection and found probable cause based solely upon the uniform traffic citation.

On June 8, 2007, Mr. Gould filed in the circuit court an emergency petition for writ of habeas corpus and for the return of his dog. Mr. Gould’s petition alleged, in pertinent part:

The facts before the court at [Mr. Gould’s] first appearance hearing demonstrate that there is no probable cause to believe that this particular crime at issue was committed. The uniform traffic citation was issued on May 29, 2007. It notes on it that the accused submitted to a breathalyzer test; the results showed no trace of breath-alcohol (.000). It contains no observations of the officer. It does not state whether field sobriety tests were administered. It merely concludes and notes that a crime involving a violation of Section 316.193, Florida Statutes, was committed by [Mr. Gould]. This is all the information presented to the first appearance [magistrate] on the alleged commission of a DUI crime.
Additionally, a simple traffic citation in and of itself that contains only conclusions of a police officer does not pass due process muster with regard to establishing probable cause for arrest and continuing detention. It is axiomatic that if the officer did not obtain breathalyzer results or obtained a .000 reading, his observations and his possible administering of field sobriety tests are crucial for the judge to be able to determine probable cause.... Because there were no allegations made as to the circumstances of the arrest before the court at the time of [Mr. Gould’s] first appearance hearing, it was error for the magistrate to have found probable cause for [Mr. Gould’s] arrest.

Mr. Gould argued further that Florida Rule of Criminal Procedure 3.133(a)(3) required the magistrate to apply the same probable cause standard necessary for issuing an arrest warrant. Mr. Gould concluded that probable cause could not be established by the mere filing of a uniform traffic citation that contains only the law enforcement officer’s conclusion that a particular crime has been committed. Accordingly, Mr. Gould requested that he be released from custody.

In its order denying the petition for writ of habeas corpus, the circuit court did not address Mr. Gould’s argument based on rule 3.133(a)(3). Instead the court said:

The Court is aware of a case that recently came before the Second District Court of Appeal, John Schm[ei]l v. Grady Judd, Case No. 2D07-613, [951 So.2d 844 (Fla. 2d DCA 2007) ] in which Mr. Sehmeil similarly alleged that the uniform traffic citation by itself did not satisfy probable cause for Mr. Schm[ei]l’s arrest and continued detention. The Court is mindful of the fact that the Second District Court of Appeal issued a denial of Mr. Schmeil’s Petition for Writ of Habeas Corpus on February 28, 2007, and finds that a denial of [Mr. Gould’s] Petition is appropriate in the present matter.

The circuit court entered an order denying Mr. Gould’s petition for writ of habeas corpus. Mr. Gould timely petitioned this court for certiorari review of the circuit court’s order.

II. JURISDICTION

As a preliminary matter, the State asserts that Mr. Gould’s release from jail renders his petition for certiorari moot. “However, mootness does not destroy a court’s jurisdiction if the question raised is of great public importance or is likely to recur, or if the error is capable of repetition yet evading review.” Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001) (citations omitted). Mr. Gould claims that “first appearance judges in the Tenth Judicial Circuit routinely accept unsworn, con-elusory uniform traffic citations from arresting officers to justify the arrest and continued detention of [DUI suspects].” The State does not dispute this assertion. Because this petition presents a question capable of repetition yet evading review, this court has jurisdiction to hear the merits even if the petition is moot. See Enter. Leasing Co. v. Jones, 789 So.2d 964, 965 (Fla.2001) (holding that the court may retain jurisdiction despite mootness because the issue on appeal is likely to recur).

III. STANDARD OF REVIEW

The standard of review for a cer-tiorari petition challenging a decision of a circuit court acting in its review capacity requires assessing whether the circuit court afforded procedural due process and observed the essential requirements of the law. Snyder v. City Council, 902 So.2d 910, 912 (Fla. 2d DCA 2005). This second-tier certiorari review is “simply another way of deciding whether the lower court ‘departed from the essential requirements of [the] law.’ ” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). “A ruling constitutes a.departure from the essential requirements of [the] law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’” Id. (quoting Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003)); see State v. Farino, 915 So.2d 685, 686 (Fla. 2d DCA 2005) (explaining that failure to apply the correct law must result in a miscarriage of justice to warrant the issuance of a writ of certiorari).

IV. ANALYSIS

Mr. Gould has not claimed that the circuit court’s decision deprived him of procedural due process. Consequently, this court may not grant relief unless the circuit court departed from the essential requirements of the law with a resulting miscarriage of justice. See Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002).

A. Essential Requirements of the Law

The circuit court’s denial of Mr. Gould’s emergency petition for writ of ha-beas corpus departed from the essential requirements of the law because the circuit court applied incorrect law. See Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So.2d 607, 609 (Fla. 2d DCA 2005). Per curiam appellate decisions without a written opinion have no prece-dential value. Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So.2d 310, 311 (Fla.1983). Nonetheless, the circuit court relied on Schmeil v. Judd, 951 So.2d 844 (Fla. 2d DCA 2007) (table decision), a per curiam habeas corpus denial without a written opinion, when considering Mr. Gould’s petition. Therefore, the circuit court departed from the essential requirements of the law when it applied incorrect law — a decision with no prece-dential value' — to dispose of Mr. Gould’s petition for writ of habeas corpus.

Mr. Gould’s petition raised at least two issues: (1) whether the magistrate applied the standards for issuance of an arrest warrant when determining probable cause for pretrial detention and (2) whether the uniform traffic citation charging him with DUI constituted sufficient evidence to support the magistrate’s finding of probable cause. Consequently, as Mr. Gould argued in his petition, the circuit court should have relied on rule 3.133(a)(3) and the cases interpreting that rule. Rule 3.133(a)(3) provides:

Upon presentation of proof, the judge shall determine whether there is probable cause for detaining the arrested person pending further proceedings.... In determining probable cause to detain the defendant, the judge shall apply the standard for issuance of an arrest warrant, and the finding may be based on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded.

Under rule 3.133(a)(3), “ ‘[pjrobable cause’ means a reasonable ground of suspicion supported by circumstances strong enough to warrant a cautious person to believe that the named suspect is guilty of the charged ' offense.” Perry v. State, 842 So.2d 301, 303. n. 2 (Fla. 5th DCA 2003). Thus rule 3.133(a)(3) required that the circuit court determine whether the magistrate’s finding of probable cause was supported by circumstances strong enough to warrant a cautious person to believe that Mr. Gould was guilty of DUI.

Under the DUI statute, a person is guilty of DUI if he or she is driving or in actual physical control of a vehicle within this state and he or she is under the influence of alcohol or drugs to the extent that (1) his or her normal faculties are impaired, (2) his or her blood-alcohol level is 0.08 or more grams of alcohol per 100 milliliters of blood, or (3) his or her breath-alcohol level is 0.08 or more grams of alcohol per 210 liters of breath. § 316.193(1), Fla! Stat. (2006). The uniform traffic citation charging Mr. Gould with DUI was insufficient to establish probable cause because it did not include any facts indicating that his normal faculties were impaired and showed that his breath-alcohol level was 0.00. Absent a sworn affidavit indicating that Mr. Gould’s normal faculties were impaired, the first appearance magistrate had no basis for finding probable cause for Mr. Gould’s arrest and detention.

Moreover, the core issue presented to the circuit court by Mr. Gould’s petition related to the function and the effect of the uniform traffic citation. More than twenty years ago, the Supreme Court of Florida noted that a charging document “is not evidence against an accused, but, rather, is nothing more or less than the vehicle by which the state charges that a crime has been committed.” Dougan v. State, 470 So.2d 697, 701 (Fla.1985). In accordance with this precept, every criminal jury trial in this state begins with the trial judge informing the jury that the information or indictment “is not evidence and is not to be considered by you as any proof of guilt.” Fla. Std. Jury Instr. (Crim.) 2.1. In the absence of additional corroborative information such as the result of a breathalyzer test, a uniform traffic citation — like an indictment or information — is nothing more or less than a charging document. See Fla. R. Traf. Ct. 6.040(b) (defining “charging document” as “any information, uniform traffic citation ... or any other manner of charging a criminal traffic offense under law”); see also Ivory v. State, 588 So.2d 1007, 1009 (Fla. 5th DCA 1991) (stating that the Florida Rules for Traffic Courts “evince a clear intent that the uniform traffic citation constitute the charging document”). By itself, the uniform traffic citation does not constitute evidence. Thus it is ironic that at least some of the county judges in the Tenth Judicial Circuit regularly do what those same judges instruct jurors that they cannot do — rely on the charging document alone as evidence of guilt. We disapprove this practice because it is inconsistent with the provisions of rule 3.133(a) concerning non-adversary probable cause determinations. For all of these reasons, the circuit court departed from the essential requirements of the law in denying Mr. Gould’s petition for writ of habeas corpus.

B. Miscarriage of Justice

Although we conclude that the circuit court applied incorrect law when reviewing Mr. Gould’s petition, this court cannot grant certiorari absent a showing that this departure from the essential requirements of the law constituted a “miscarriage of justice.” When determining whether the circuit court’s error amounts to a “miscarriage of justice,” an, important factor is the effect of the error on other cases. Alliston, 813 So.2d at 145. A circuit court’s decision that is particularly fact-dependent or fact-specific or that lacks precedential value because it was issued without a written opinion will generally not merit certiorari review. Id. However, a decision that establishes a principle of general application binding on lower courts results in a miscarriage of justice that warrants the exercise of this court’s certiorari jurisdiction. See id. at 145-46.

The order denying Mr. Gould’s petition establishes the general principle that a uniform traffic citation, by itself, provides probable cause for a defendant’s arrest and continued detention. Furthermore, the circuit court appellate decision in this case is binding on all three county courts within the Tenth Judicial Circuit. See Fieselman v. State, 566 So.2d 768, 770 (Fla.1990). Because the circuit court’s application of incorrect law established a legal principle binding on lower courts that is neither fact-dependent nor fact-specific, the circuit court’s decision results in a miscarriage of justice that warrants the exercise of this court’s certiorari jurisdiction.

V. CONCLUSION

The circuit court departed from the essential requirements of the law when it denied Mr. Gould’s petition for writ of habeas corpus because it applied the incorrect law and created precedent applicable to numerous other first appearance hearings involving uniform traffic citations as the sole proof of probable cause. Accordingly, we grant the petition for writ of certiorari, and we quash the circuit court’s order denying Mr. Gould’s petition for writ of habeas corpus.

Petition granted; order quashed.

SILBERMAN and VILLANTI, JJ., Concur.

      . The magistrate explained that “DRE” means "drug recognition expert.”

      . Mr. Gould alleged that his German shepherd named "White Cloud,” which was in his automobile when he was arrested, was impounded along with the automobile. Mr. Gould asked the circuit court to order White Cloud’s release without the prepayment of costs of any kind. The circuit court denied this request, and Mr. Gould has not asked this court to review this portion of the circuit court’s order.
      White Cloud was held at Polk County Animal Services where he faced imminent destruction because Mr. Gould remained in jail and was unable to obtain the dog’s release. A sympathetic county judge timely intervened and ordered the Polk County Sheriff to "stay the death and preserve 'White Cloud.’ ” We are informed that upon Mr. Gould's subsequent release from jail, he and White Cloud enjoyed a happy reunion.

      . The uniform traffic citation did not indicate a blood-alcohol level for Mr. Gould.


author: NORTHCUTT, Chief Judge.

text:
    EMPIRE CLUB, INC., Appellant, v. Carmen HERNANDEZ, Appellee.
    No. 2D06-7.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.
    Rehearing Denied Feb. 11, 2008.

      Christopher L. Casey of Hinshaw & Culbertson, Jacksonville, for Appellant.
    Daniel P. Mitchell and Christine A. Do-noghue of GrayRobinson, P.A., Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

While enjoying a night out at the Empire Club in Ybor City, Carmen Hernandez was injured when a subwoofer fell from an overhead speaker cabinet and struck her head. She filed a negligence suit against the club and obtained a jury verdict in her favor, but we must reverse due to an evidentiary error.

The case is not factually complex. Approximately six months before the accident, Empire’s bar manager hung a speaker over the dance floor and above the reach of its patrons. Hernandez was sitting on a stool near the dance floor when the subwoofer fell on her. After the accident, neither the speaker cabinet nor the fallen component could be found.

Hernandez presented the testimony of an expert who had examined an exemplar of the speaker. He explained that the subwoofer was designed to be held in place by four clips screwed into the cabinet. The expert opined that the subwoofer would not have fallen out unless three of the clips were missing. He also ventured that it would not have fallen out if there had been a grille on the front of the speaker.

Empire sought to introduce testimony from its bar manager, a disc jockey, and a sound and lighting consultant, who among them had more than thirty years of experience with sound systems in bars and nightclubs. According to Empire’s proffer, these witnesses would have testified that they had never heard of a component falling out of an overhead speaker. This testimony was offered to show that Empire was not negligent in hanging the speaker overhead or in failing to perform regular safety checks on the speaker. Hernandez opposed the introduction of this testimony on the ground that she was proceeding under the principle of res ipsa loquitur and that, therefore, actual or constructive notice was irrelevant to the jury’s determination of Empire’s negligence. The court accepted this argument and excluded Empire’s evidence.

The trial court’s ruling demonstrates a misunderstanding of the scope and purpose of the res ipsa loquitur doctrine.

As we all know, the doctrine of res ipsa loquitur is merely a rule of evidence. Under it an inference may arise in aid of the proof. Establishment of the facts that the instrument causing the injury was in the sole control of the defendant, [and] that the occurrence would not have happened in the ordinary course of events had there been proper care on the defendant’s part, provides evidence that the injury sprang from the defendant’s negligence.

Yarbrough v. Ball U-Drive Sys., Inc., 48 So.2d 82, 83-84 (Fla.1950). Although it has been said that a defendant’s actual or constructive notice is immaterial when the conditions for res ipsa loquitur are established, Burns v. Otis Elevator Co., 550 So.2d 21, 22 (Fla. 3d DCA 1989), that principle is applicable only to the plaintiffs case, not to the defendant’s claim that it exercised reasonable care under the circumstances. See Coaster Amusement Co. v. Smith, 141 Fla. 845, 194 So. 336 (1940) (noting defenses to res ipsa negligence in various cases); cf. Harmon v. U.S. Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566 (N.Y.App.Div.1999) (rejecting defendant’s argument that plaintiff was required to establish actual or constructive notice of defect in res ipsa loquitur case).

In other words, res ipsa loquitur merely assists the plaintiff by permitting the jury to draw an inference of negligence that has not otherwise been proved directly. It is not a form of issue preclusion. It does not establish that the defendant was negligent as a matter of law. It does not in any way limit the defendant’s right to present evidence that it did not act negligently. Therefore, the trial court erred by excluding Empire’s evidence, and we cannot say that the error was harmless. Accordingly, we reverse and remand for a new trial.

We offer a final observation. The judge who tried this case did not make the initial ruling to exclude the evidence, but he was persuaded that it was “law of the case” when the issue was reargued at trial. This, of course, was not true. Law of the case is not established by a trial court’s initial ruling but rather by an appellate decision that binds a subsequent proceeding. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Westwind Transp., Inc., 442 So.2d 414, 416 (Fla. 2d DCA 1983).

Reversed and remanded.

SALCINES and VILLANTI, JJ., Concur.


text:
    Bonnie Renee HUMPERT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2196.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order by which the trial court denied her motion to suppress. The appellant was convicted pursuant to a nolo contendere plea of possession of a controlled substance (cocaine), possession of less than 20 grams of marijuana, and possession of drug paraphernalia. When the deputy ordered the appellant out of her legally parked car, the consensual encounter became an investigatory stop. See Popple v. State, 626 So.2d 185 (Fla.1993). Based on the totality of the circumstances, there was no “well-founded, articulable suspicion of criminal activity” justifying an investigatory stop. See id. at 187; State v. Taylor, 826 So.2d 399 (Fla. 3d DCA 2002); Miranda v. State, 816 So.2d 132 (Fla. 4th DCA 2002). Thus, the trial court erred in denying the appellant’s motion to suppress the dispositive evidence which was seized as a result of the illegal search. See Dees v. State, 564 So.2d 1166, 1169 (Fla. 1st DCA 1990). Accordingly, the appellant’s convictions are reversed and this case is remanded with directions that the appellant be discharged.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    Donald L. BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5988.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2008.
    Rehearing Denied Feb. 18, 2008.
    Donald L. Banks, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, KAHN, and LEWIS, JJ., concur.


author: COPE, J.

text:
    Alexander SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1925.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.
    John Lipinski, for appellant.
    Bill McCollum, Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SUAREZ, JJ.
   COPE, J.

In an earlier postconviction appeal, this court ruled that Alexander Suarez did not qualify as a habitual violent felony offender (HVFO), and remanded for resentenc-ing. Suarez v. State, 808 So.2d 1288 (Fla. 3d DCA 2002). On remand, the trial court resentenced defendant-appellant Suarez under the guidelines, but (at the State’s request) greatly increased the sentence. We conclude that this was impermissible. For a resentencing after an erroneous ha-bitualization, the trial court may restructure the sentences so as to achieve (but not exceed) the original sentencing intent. That being so, there must be a new sentencing proceeding for one of the defendant’s two cases.

I.

In 1993, the defendant was convicted of robbery without a firearm and other offenses in Miami-Dade County Circuit Case No. 92-10836. He was convicted of armed robbery and other offenses in Miami-Dade County Circuit Court Case No. 92-15322.

At the 1993 sentencing in the two cases, the sentencing guidelines score for the defendant allowed imposition of a sentence up to life. The State asked that the life sentence be imposed as a HVFO, or under the guidelines. The sentencing judge declined to impose a life sentence. Instead, he sentenced the defendant in No. 92-15322 to forty years with a fifteen-year mandatory minimum sentence as an HVFO. In No. 92-10836 the sentence was twenty-five years with a ten-year mandatory minimum as an HVFO. The sentences in the two cases were consecutive, so the overall total of the two sentences was sixty-five years with twenty-five years of mandatory minimum sentences as an HVFO.

As already mentioned, in earlier proceedings the defendant filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), asserting that he did not qualify as an HVFO. On appeal from the denial of that motion, the State conceded that the defendant did not qualify as an HVFO, and should be resen-tenced on the HVFO counts. This court accepted the State’s confession of error and issued an opinion directing that the defendant be resentenced. Suarez, 808 So.2d at 1289. This court’s opinion stated that (as had been requested by the State) “on remand, the State may again seek habitual offender treatment, using other convictions, if they exist, or alternatively, seek an upward departure from the sentencing guidelines as was originally sought.” Id. (citations omitted).

On remand, a successor judge conducted a new sentencing hearing. The State argued that the terms of this court’s remand allowed the trial court to impose any sentences it chose, even if the new sentences exceeded the original sentences in the two cases. The trial court accepted this argument and increased the overall sentences. In No. 92-15322 the court imposed consecutive guidelines sentences on each count which amounted to an overall sentence of 225 years. In No. 92-10836, the court imposed consecutive guidelines sentences which amounted to an overall sentence of twenty years and 364 days. The sentences in the two cases were imposed consecutively, so the grand total of the sentences in the two cases amounted to 245 years and 364 days, as compared with the original sentence of sixty-five years.

The defendant has appealed.

II.

The defendant argues that the trial court misinterpreted this court’s mandate when it increased the defendant’s sentence. We agree.

First, the State was wrong to advise the trial court that the defendant was to be resentenced on all counts in both cases. The defendant was to be resentenced on those counts on which he received an HVFO sentence. The State had acknowledged this during the defendant’s earlier appeal to this court.

Second, this is a case of erroneous habitualization. At the original sentencing in 1993 the State requested, and the trial court imposed, sentence on the defendant as an HVFO, when the defendant did not qualify as an HVFO. Under established precedent, that error may be corrected at any time under Florida Rule of Criminal Procedure 3.800(a). Bover v. State, 797 So.2d 1246, 1251 (Fla.2001).

When the defendant is to be resen-tenced after an erroneous habitualization, the trial court is allowed to restructure the sentences to try to come as close as possible to (but not exceed) the original sentencing intent.

Because the defendant never should have been sentenced as an HVFO to begin with, the defendant cannot be placed in a worse position at resentencing than he was under the original illegal sentence. As the Florida Supreme Court said in an analogous case:

If [the defendant] had been properly sentenced in the initial proceeding, he would not be facing life imprisonment. To sustain the life sentence would be to punish [the defendant] for the trial court’s mistakes. The more equitable result is to place him in the position he would have been in absent the court’s error.

Smith v. State, 536 So.2d 1021, 1022 (Fla.1988).

III.

The original sentencing judge decided that the appropriate sentence in this defendant’s cases was forty years with a fifteen-year mandatory minimum in No. 92-15322, and a twenty-five year sentence with a ten-year mandatory minimum in No. 92-10836. Further, the original sentencing judge concluded that the sentences in the two cases should be consecutive.

On remand for resentencing after the defendant’s HVFO adjudication was vacated, the trial court was allowed to employ available options to come as close as possible to achieving the original sentencing judge’s sentencing intent. One option was to permit the State again to qualify the defendant as an HVFO if the defendant had another prior conviction which would qualify him as an HVFO. See § 775.084(l)(b), Fla. Stat. (1991); Suarez, 808 So.2d at 1288. However, the defendant did not have another qualifying conviction.

Another option was to qualify the defendant as a habitual felony offender (HFO), if he had two prior qualifying felony convictions. See id. § 775.084(l)(a), Fla. Stat. (1991). However, the defendant did not have two qualifying convictions.

Since the defendant did not qualify as an HVFO or HFO, the trial court was required to resentence him under the sentencing guidelines. The maximum allowed under the scoresheet was a life sentence, so there was no need to consider a departure sentence. See supra n. 4. In this situation the court is allowed to restructure the counts to use consecutive sentencing, if necessary, to come as close as possible to the original trial judge’s sentencing intent.

IV.

The trial court was correct in its resen-tencing of the defendant in No. 92-10836. The original sentence had been twenty-five years with a ten-year mandatory minimum as an HVFO. Counts one and three were the HVFO counts. On resentencing, the trial court imposed guidelines sentences of fifteen years (count 1), 364 days (count 2), and five years (count 3). The court restructured the sentences (which originally had been concurrent) to be consecutive. The overall new sentence on No. 92-10836 was twenty years and 364 days. This was as close as the trial court could come to the original sentencing intent, which had been a twenty-five year sentence. We affirm the sentencing order in No. 92-10836.

V.

We find error, however, with regard to the newly imposed sentence in No. 92-15322. The original sentencing judge had imposed an overall sentence of forty years with a fifteen-year mandatory minimum as an HVFO. Counts 1, 10, and 11 were the HVFO counts. The sentences on all counts were concurrent.

At resentencing, the State erroneously informed the successor judge that he should resentence the defendant on all counts. In reality, resentencing was called for only on the HVFO counts. On what had been the HVFO counts (counts 1, 10, and 11), the successor judge imposed forty-year sentences under the guidelines, re-sentenced the defendant on the remaining counts, and ordered all counts to be consecutive. This was incorrect.

The successor judge could impose the sentences so as to come as close as possible to (but not exceed) the original sentencing intent, which was forty years. Since forty years was within the legal maximum on several counts, there was no need to change from concurrent to consecutive sentences. We therefore reverse the sentencing order in No. 92-15322 and remand for imposition of a sentence, which will not exceed the original trial judge’s sentencing intent. The sentences in case numbers 92-15322 and 92-10836 may be consecutive, as was true of the original sentences. Since this is a correction of the resentenc-ing, the same scoresheet will remain in effect.

VI.

The State argues that the sentencing orders which increased the defendant’s sentences were permissible and should be affirmed on authority of Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). We disagree. The Wasman decision was a federal vindictive sentencing case, in which a defendant received a longer sentence after his second trial. That case has no application here. The question in the present case is what latitude the trial court has in resentencing a defendant who was erroneously habitual-ized.

VII.

For the stated reasons, we affirm the sentencing order in No. 92-10836. We reverse the sentencing order in No. 92-15322 and remand for resentencing in accordance with this opinion.

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

      . The crime date in No. 92-15322 was February 17, 1992, and in No. 92-10836 was February 14, 1992.

      . In No. 92-15322, the court imposed concurrent sentences as follows:
      Count 1 — 40 years with a 15 year mandatory minimum (FiVFO)
      Count 3 — 5 years
      Count 4 — 15 years
      Count 5 — 5 years
      Count 6 — 15 years
      Count 7 — Time served
      Count 9 — 40 years
      Count 10' — 40 years with a 15 year mandatory minimum (HVFO)
      Count 11 — 40 years with a 15 year mandatory minimum (HVFO)
      Count 12 — 3 years
      Count 13 — 5 years
      Count 14 — 5 years

      . In No. 92-10836 the court imposed concurrent sentences:
      Counts 1, 3 — 25 years with a 10 year mandatory minimum (HVFO)
      Count 2 — 364 days

      . The State apparently requested that the trial court be allowed to consider a departure sentence in the event it should turn out on remand that the defendant scored to less than a life sentence. See State v. Betancourt, 552 So.2d 1107, 1108 (Fla.1989). However, that became irrelevant because the defendant scored to a life sentence.

      . In No. 92-15322, the court imposed new consecutive sentences as follows:
      Count 1 — 40 years
      Count 3 — 5 years
      Count 4 — 15 years

        Count 5 — 15 years
      Count 6 — 15 years
      Count 9 — 40 years
      Count 10 — 40 years
      Count 11 — 40 years
      Count 12 — 5 years
      Count 13 — 5 years
      Count 14 — 5 years

      . In No. 92-10836 the court imposed new consecutive sentences as follows:
      Count 1 — 15 years
      Count 2 — 364 days
      Count 3 — 5 years


text:
    Richard S. O’RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4970.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Richard S. O’Riley contends on appeal that remarks made by the trial court judge at the postconviction hearing indicate that the judge had been biased against him in imposing sentence. Having found no merit in O’Riley’s argument, we affirm. However, given the fact that O’Riley filed a premature, improperly designated motion to reduce sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), which we have not addressed, we affirm without prejudice to O’Riley now filing a motion to reduce sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), if appropriate.

Affirmed.

ALTENBERND and STRINGER, JJ., Concur.


text:
    Gregory L. STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4025.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.

      Gregory L. Stephens, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald' Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Gregory Stephens appeals the denial of his motion for postconviction relief raising three issues. We affirm without comment two of these issues. Because of the unique circumstances of this ease, we treat the appeal of the denial of the third issue as a petition for a writ of habeas corpus, grant the petition, and direct the trial court to reconsider the length of Mr. Stephens’ habitual felony offender (HFO) sentence.

On October 25, 1996, Mr. Stephens was sentenced for armed burglary, a first-degree felony punishable by a term of years not exceeding life imprisonment. The trial court denominated Mr. Stephens a HFO pursuant to section 775.084(4)(a)(l), Florida Statutes (1995), and sentenced him to life in prison. The transcript of the sentencing hearing reveals that the court, after designating Mr. Stephens a HFO, observed: “So pursuant to the statute, I’m required to sentence Mr. Stephens to life in prison.” Thinking that it had no discretion in the matter, the trial court effectively imposed a minimum mandatory sentence of life on Mr. Stephens. In so doing, however, the trial court erred. A few years prior to the date on which Mr. Stephens was sentenced, the Florida Supreme Court, in Burdick v. State, 594 So.2d 267, 271 (Fla.1992), held that under the HFO statute a life sentence is not mandatory for armed burglary. The Florida Supreme Court has described such an error as a fundamental sentencing error. See Maddox v. State, 760 So.2d 89, 103 (Fla.2000).

Mr. Stephens appealed his judgment and sentence. His briefs were filed before the closing of the window on November 12, 1999, for raising unpreserved but fundamental sentencing errors on appeal. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003); Maddox, 760 So.2d at 98. The issue of whether the trial court erroneously thought a life sentence was mandatory was raised by his briefs.

On July 12, 2000, this court decided the direct appeal. Stephens v. State, 761 So.2d 1240 (Fla. 2d DCA 2000). The Stephens opinion reveals that this court thought that Mr. Stephens had been sentenced pursuant to the 1995 sentencing guidelines. Based on that erroneous assumption, this court remanded the case for reconsideration of the sentence and directed the trial court’s attention to Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000), a case that assessed the impact of the Florida Supreme Court’s opinion in Heggs v. State, 759 So.2d 620 (Fla.2000), on 1995 guidelines sentences. The transcript of the October 20, 2000, hearing held after remand reflects the parties’ uncertainty about why this court ordered Mr. Stephens’ sentence to be reconsidered. The Stephens opinion did not adequately direct the court’s or parties’ attention to the fact that a fundamental sentencing error had occurred. Thus, Mr. Stephens was deprived of a real opportunity to have his sentence reconsidered.

Mr. Stephens has highlighted the inequity of his situation by comparing it to that of the appellant in Bristol v. State, 710 So.2d 761 (Fla. 2d DCA 1998). According to Mr. Stephens, Mr. Bristol was sentenced by the same judge to life in prison as a HFO on the very same day that Mr. Stephens was sentenced. (The web site of the Sarasota County Clerk of the Circuit Court confirms this allegation.) Yet when Mr. Bristol filed his direct appeal, arguing that the trial court had erroneously believed it had no discretion to impose anything other than a HFO life sentence, this court remanded for the trial court to reconsider the length of Mr. Bristol’s HFO sentence “because it is within its discretion to do so.” Id. at 761. To give Mr. Bristol relief but to deny Mr. Stephens the same relief for virtually identical circumstances is a manifest injustice that does not promote—in fact, it corrodes—uniformity in the decisions of this court.

After Mr. Stephens filed this appeal, we asked the State to respond specifically to his allegations. The State simply contends that Mr. Stephens has previously raised this exact claim, the denial of which has been affirmed by this court. Nevertheless, to prevent a manifest injustice and a denial of due process, relief may be afforded even to a litigant raising a successive claim. See State v. McBride, 848 So.2d 287, 291 (Fla.2003); Lawton v. State, 731 So.2d 60, 61 (Fla. 2d DCA 1999).

In rare circumstances, this court has exercised its inherent authority to grant a writ of habeas corpus to avoid incongruous and manifestly unfair results. See Zeno v. State, 910 So.2d 394, 396 (Fla. 2d DCA 2005). Apparently, this court overlooked the Bristol opinion and, as a result, confused the trial court and the parties as to the appropriate relief to consider on remand. Consequently, Mr. Stephens’ case presents one of those uncommon and extraordinary circumstances.

Accordingly, we treat the appeal of the denial of Mr. Stephens’ third issue in his rule 3.850 motion as a petition for a writ of habeas corpus, grant the petition, and direct the trial court, as this court did in Bristol, to reconsider the length of Mr. Stephens’ HFO sentence. Whether the judge who originally sentenced Mr. Stephens or a successor judge shall reconsider the sentence must be determined by the principles set out in Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002).

Petition granted.

NORTHCUTT, C. J., and KELLY and LaROSE, JJ., Concur.

      . Even though Burdick interpreted section 775.084(4)(a)(l), Florida Statutes (1989), there are no relevant differences in the wording between the 1989 and the 1995 versions of this section.

      . See http://courtweb.co.sarasota.fl.us/ crimapp/crimdetail.asp?case_id (Case Number 1995 CF 002868 NC).


author: STONE, J.

text:
    Richard DONOVAN, Individually and on behalf of all those similarly situated, Appellants, v. BROWARD COUNTY BOARD OF COMMISSIONERS, Appellee.
    No. 4D07-52.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      William R. Amlong and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauder-dale, for appellant(s).
    Jeffrey J. Newton, County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and James D. Rowlee, Assistant County Attorney, Fort Lauderdale, for appellee.
    David H. Spalter of Jill S. Schwartz & Associates, P.A., Winter Park, for Amicus Curiae-National Employment Lawyers Association, Florida Chapter.
   STONE, J.

Donovan, individually and on behalf of all those similarly situated, appeals an order dismissing a Florida Civil Rights Act retaliation claim against his employer, Broward County.

The sole issue is whether the county’s policy of foreclosing otherwise available internal remedies because the employee has filed, a charge of discrimination with the Florida Commission on Human Relations (FCHR) or the federal Equal Employment Opportunity Commission (EEOC) is an adverse employment action constituting retaliation. We conclude that the policy does meet the retaliation standard articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 58, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

Donovan, a white bus driver, filed an internal complaint with the county Office of Equal Opportunity because he was passed over for a promotion in favor of an African-American employee.

The county’s published procedure promises internal investigation and “appropriate follow-up management action,” or internal mediation, for any county employee “who believes that he or she has been discriminated against.” However, the policy provides, in pertinent part:

[0]nce a complaint is filed with Equal Employment Opportunity Commission (EEOC) and/or Florida Commission on Human Relations (FCHR) or other relevant federal or state agency, the OEO investigation process will be administratively closed except in allegations involving harassment or retaliation....

When the county learned that Donovan and another white bus operator had filed charges with the EEOC and the FCHR concerning another promotional opportunity within the transit division that had been awarded to an African-American employee, the county terminated its investigation.

The retaliation provision of the FCRA — which is virtually identical to its federal counterpart, Title VII 42 U.S.C. § 2000e-3(a) — provides, in relevant part that:

[i]t is an unlawful employment practice for an employer ... to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation under this section.

§ 760.10(7), Fla. Stat. (2007). The EEOC, to which Florida courts defer in interpreting any ambiguity in Title VII or in the Age Discrimination in Employment Act (ADEA), states that while “[t]he most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge” and “[o]ther types of adverse actions include threats, reprimands, negative evaluations, harassment, or other adverse treatment, ... [suspending or limiting access to an internal grievance procedure also constitutes an ‘adverse action.’ ” 2 EEOC Compliance Manual, Section 8, Retaliation, Chapter II, Part D, § 1 (May 20, 1998) .

To establish a prima facie claim for retaliation under Title VII, plaintiff must demonstrate that: (1) he engaged in statutorily protected activity, (2) he suffered an adverse employment action, and (3) there is a causal relation between the two events. Guess v. City of Miramar, 889 So.2d 840, 846 (Fla. 4th DCA 2004) (citing Harper v. Blockbuster Entn’t Corp., 139 F.3d 1385, 1388 (11th Cir.1998)).

In EEOC v. Board of Governors of State Colleges and Universities, 957 F.2d 424 (7th Cir.1992), the court recognized that a policy of prohibiting employees who had filed EEOC charges from using the employer’s in-house grievance procedure violated the ADEA’s anti-retaliation provision. Additionally, in Fasold v. Justice, 409 F.3d 178 (3d Cir.2005), the court held that it is unlawfully retaliatory for an employer to deny an employee’s discrimination claim in a non-mandatory internal grievance proceeding because the employee filed an EEOC complaint.

In dismissing Donovan’s complaint, the trial court relied upon the Second Circuit’s decision in United States v. New York City Transit Authority, 97 F.3d 672 (2d Cir.1996), which held that a retaliation claim could not be based on an employer’s policy of denying its internal review process to employees once they had filed a complaint with an outside agency.

The rationale underlying the decision in New York City Transit Authority was subsequently applied in Browne v. City University of New York, 419 F.Supp.2d 315 (E.D.N.Y.2005), also cited by the trial court in its order of dismissal, which held that an employer’s discontinuation of an internal investigation upon an employee’s commencement of formal charges with an outside anti-discrimination agency cannot support a retaliation claim. Browne, 419 F.Supp.2d at 334-35.

Application of the latter line of cases in this case, although inconsistent with the EEOC policy manual, initially appears reasonable, as it is unlikely that the actual purpose or intent of the Broward rule is retaliatory. Rather, it is patently in response to concern for administrative efficiency and economy.

Nevertheless, the Supreme Court has recently expanded the definition of “adverse employment action” for purposes of a Title VII retaliation claim. In White, the Court clarified that an employee need only show that “a reasonable employee would have found the challenged action materially adverse.” 126 S.Ct. at 2415. In other words, the materially adverse employment action would discourage a reasonable employee from making or supporting a charge of discrimination. Id.

Significantly, the Supreme Court concluded that “the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” Rather, any action, whether or not directly related to work, can form the basis of a retaliation claim, so long as a “reasonable employee” would consider the action to be “materially adverse.”

In this case, the trial court concluded this policy was not “discriminatory per se” because Donovan, on behalf of himself and all others similarly situated, did not “set forth any entitlement to an internal investigation,” nor did he allege that the policy impacted his “job, working conditions, or compensation.” In other words, as in the cases relied on by the trial court, the decision focused on the nature of the challenged policy, rather than its impact upon the employee.

In light of the Supreme Court’s decision in White, we conclude that the Second Circuit line of cases relied upon by the trial court no longer applies. This interpretation of White is in accord with Spector v. Board of Trustees of Community-Technical Colleges, 463 F.Supp.2d 234, 238 (D.Conn.2006), in which the court stated:

The Supreme Court’s decision in White altered the standard previously used by the Second Circuit, which defined an adverse employment action as a ‘materially adverse change in the terms and conditions of employment [that] is more disruptive than a mere inconvenience or an alteration of job responsibilities.’ Under that standard, prototypical examples of adverse employment actions included termination, demotion via a reduced wage, salary or job title, a material loss of benefits, or significantly reduced job responsibilities. White, however, found that standards such as these improperly limited Title VII’s antiretaliation provision to retaliatory actions that affect the terms and conditions of employment.

(Emphasis supplied)

We note that the trial court’s ruling suggests that the county’s policy merely “requires an employee to use the proceedings [internal investigation, administrative charge] sequentially rather than simultaneously,” and thus, would not “dissuade a reasonable employee from making or supporting a charge of discrimination.” However, this view fails to consider that while an internal investigation is taking place, the 365-day limitations period within which an administrative charge must be filed continues to run. Consequently, under the county’s policy, an employee may not have the opportunity to “use the proceedings sequentially” without risking the loss of the right to proceed under the FCRA or Title VII. Rather, employees may be placed in a “Catch-22,” having to choose between filing a charge and losing access to internal dispute resolution mechanisms or continuing their pursuit of an internal remedy and risk losing the right to bring a formal charge if those efforts fail.

Additionally, in its amicus brief, Florida NELA notes the significant benefits of internal investigations to employees:

They provide employees with an opportunity to resolve disputes in a setting that is more expedient and less adversarial than the litigation process. Moreover, due to the informal nature of such investigations, and the lack of a third-party decision maker who can impose an outcome, both the employer and coworker witnesses are typically more open and receptive to internal investigations as compared to litigation. This open approach, in many cases, results in an outcome that permits the employee to maintain a positive working relationship with his or her employer.

The county’s policy removes these benefits upon the filing of an administrative charge of discrimination. As a result, the policy will tend to dissuade a reasonable employee from filing a state charge.

We, therefore, reverse the order dismissing the complaint for failure to state a cause of action and remand for further proceedings.

STEVENSON, J. and TRAWICK, DARYL E., Associate Judge, concur.

      . Which can be found at http://www.eeoc.gov/ policy/docs/retal.html# II part D.

      . See § 760.11(1), Fla. Stat. (“Any person aggrieved by a violation of [the FCRA] may file a complaint with [the FCHR] within 365 days of the alleged violation....”).

      . National Employment Lawyers Association