text:
    P.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4525.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 30, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

P.W. appeals from a final order imposing judgment of delinquency and sentence, contending that the trial court erred in denying his motion to suppress marijuana seized from his person. We affirm.

Midmorning, a police officer was on road patrol when he observed P.W., a fourteen-year-old, walking down a sidewalk carrying a white bag. As the officer drove by in a marked police car, he noticed P.W. looking at him and would turn his head to see where he went. The officer turned around and pulled up next to P.W. As P.W. passed the police car, the officer asked to speak with him. P.W. walked over to the driver’s side window visibly upset and sweating. The officer thought appellant looked nervous, and asked P.W. what he was doing in the area and P.W. said that he was going to catch a bus. As the officer exited his police car he asked P.W. if he could pat him down. P.W. replied, “Don’t have to worry. I don’t have a gun. Do not have a gun, but I have weed on me.” At that point, the officer arrested P.W.

On cross-examination, the officer testified that there were numerous burglaries committed in the area by persons of similar sex and race as P.W.

Appellant argued that he was unlawfully stopped and seized because the officer’s show of authority made him feel that he was not free to leave. The trial court denied the motion to suppress, finding that it was a consensual encounter. Towner v. State, 713 So.2d 1030, 1031 (Fla. 5th DCA 1998) (“The determination of whether the consent to search is voluntary is a question for the trial judge and should not be disturbed on appeal unless the determination is clearly erroneous.”).

There are three levels of encounters that law enforcement may have with citizens: 1) consensual encounters, during which the citizen remains free to leave at will, where a citizen may either voluntarily comply with a police officer’s request or simply choose to ignore it; 2) an investigatory stop based on reasonable suspicion; and 3) an arrest supported by probable cause that a crime has been or is being committed. Johnson v. State, 785 So.2d 1224 (Fla. 4th DCA 2001) (citing Popple v. State, 626 So.2d 185 (Fla.1993)).

The first level involves only minimal police contact. As described in Pop-ple, “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” 626 So.2d at 186. “The inquiry for determining when an encounter with the police should properly be deemed a seizure is centered around whether a reasonable person would feel free ‘to disregard the police and go about his business.’ ” O.A. v. State, 754 So.2d 717, 720 (Fla. 4th DCA 1-998)(quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). This depends upon “the totality of circumstances.” Id. Some factors to consider that would indicate a seizure would be the “threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). A seizure occurs when a person submits to an officer’s show of authority. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

Here, the officer drove up beside P.W. in a marked car and asked to speak with him. Holden v. State, 877 So.2d 800, 802 (Fla. 5th DCA 2004); Popple, 626 So.2d at 187 (“[A]n officer does not need to have a founded suspicion to approach an individur al to ask questions.”). P.W. then walked over to the car and appeared upset and was sweating. The officer asked what P.W. was doing in the area and P.W. responded that he was going to catch a bus. At this point, the officer exited his police car and asked appellant if he could pat him down.

Based on the record before us we conclude that the encounter between the officer and appellant was a consensual encounter and did not change into an investigatory stop upon the officer asking P.W. for consent to conduct a pat down. “An officer need not have a reasonable suspicion of criminal activity before seeking consent to search.” State v. Witherspoon, 924 So.2d 868, 871 (Fla. 2d DCA 2006); Blake v. State, 939 So.2d 192, 195 (Fla. 5th DCA 2006) (“Officers may during consensual encounters ask for names and addresses, inquire about the defendant’s business, or request a consent to search.”); Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (Fla.1991) (“We have stated that even when officers have no basis for suspecting a particular individual, they may ... request consent to search ... as long as the police do not convey a message that compliance with their requests is required.”). There is no evidence that the officer threatened, coerced, or compelled P.W. into consenting to the search. On cross-examination, P.W. admitted that the officer asked for consent to pat him down.

We therefore hold that there was sufficient evidence to support the ruling of the trial court in denying the motion to suppress.

Affirmed.

WARNER and STEVENSON, JJ„ concur.


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Michael BUCKNOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2367.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 29, 2007.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, J.

Michael Bucknor was tried by jury and convicted of robbery and assault, lesser included offenses of the charged robbery with a firearm and aggravated assault with a firearm, and thereafter sentenced to thirty years incarceration as a habitual felony offender. Bucknor has appealed, challenging the denial of his motion to suppress statements he made during booking, the denial of his request for a continuance, and the sentence imposed. We affirm both the convictions and sentences and write only to address the issues concerning the motion to suppress and sentence.

The Evidence at Trial

During the early evening hours of April 15, 2005, Jamil Aljallad placed several cases of crab meat in the trunk of his Mercedes, left the restaurant where he was employed, and drove towards the home of Robert Dubey. While driving to Dubey’s home, Aljallad noticed a white Crown Victoria following him; he could not see how many people were in the car. Aljallad pulled into Dubey’s driveway and, as he began to tell Dubey about the car, two black males approached. Each had a gun. According to Aljallad, the assailants told himself and Dubey to “freeze” and to “get on the ground.” Aljallad testified Bucknor focused his attention on him and took his wallet, keys and watch. Aljallad attempted to back away, but was tackled and had a gun put to his head. Morris was identified as the assailant giving orders to Dubey. The assailants wanted Aljallad and Dubey to get in the car, but they refused. Thereafter, the assailants fled.

Police arrived within minutes. There was a high-speed chase between police and the white Crown Victoria. Ultimately, the Crown Victoria crashed and three men fled the car. A minute or so after the crash, police observed Bucknor. He was not wearing the clothes described by Aljallad and Dubey. Police later discovered Hudson and Morris hiding in a home. Aljallad and Dubey identified Morris as one of the •assailants during a show-up, but were unable to identify Hudson. Aljallad and Du-bey also identified Bucknor as one of the assailants, but thereafter indicated they had made a mistake.

Hudson testified at trial, stating that he, Morris, and Bucknor were driving around on April 15, 2005, that Morris instructed him to follow a gray car because he was going to rob it, that he complied and followed the car until it stopped, and that Bucknor and Morris then got out of the car. Hudson denied seeing any guns. When the pair returned to the car, Morris instructed him to “hit it.” Hudson acknowledged being chased by police, the crash, and hiding in the home until being removed by a SWAT team.

The Motion to Suppress

Police found Aljallad’s watch, wallet, and two cell phones in the getaway car. To tie Bucknor to the crimes, the State sought to introduce evidence that calls were made from one of these cell phones to the number Bucknor gave as a contact number during the booking process. Bucknor sought to suppress the evidence on the ground that he provided the contact number in the absence of Miranda warnings. The trial court denied the motion to suppress. We affirm.

A defendant’s statements to police are inadmissible if made in the absence of Miranda warnings and if made in a custodial circumstance and in response to questioning or interrogation by police. See Ramirez v. State, 739 So.2d 568, 578 (Fla.1999). The courts have, however, carved out a “booking exception” to Miranda. In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), during the booking process, police asked a DUI suspect questions concerning his name, address, height, weight, eye color, date of birth, and age. The questions were posed in the absence of Miranda warnings. One of the issues before the Court was whether the absence of Miranda warnings rendered the defendant’s responses inadmissible. The Court answered this question in the negative, holding that questions asked “to secure the ‘biographical data necessary to complete booking or pretrial services’ ” are exempt from Miranda. Id. at 601 (quoting United States v. Horton, 873 F.2d 180, 181 n. 2 (8th Cir.1989)). Several years later, citing Muniz, the Florida Supreme Court similarly held that routine booking questions do not require Miranda warnings “because they are not designed to lead to an incriminating response; rather, they are designed to lead to essential biographical data.” Allred v. State, 622 So.2d 984, 987 (Fla.1993).

Evidence at the suppression hearing established that the request for a contact number was put to Bucknor by the booking officer for the purpose of filling out the standard, computerized booking form. Indeed, according to the booking officer, she did not specify the type of number sought. Further, there was no evidence that, at the time Bucknor was booked, police had made any determination regarding to whom the cell phones belonged, i.e., the assailants, the victims, or some third party. Under these circumstances, we hold that the routine request for a contact number is of the same character as the questions involved in Muniz and Allred and thus similarly falls within the “booking exception.” See United States v. Broadus, 7 F.3d 460, 464 (6th Cir.1993) (holding that asking for defendant’s phone number as part of routine booking process fell within “routine booking question” exception to Miranda)', United States v. McLaughlin, 777 F.2d 388, 391 (8th Cir.1985); United States v. Sims, 719 F.2d 375, 378 (11th Cir.1983). The Sentence Imposed

At the sentencing hearing following Bucknor’s conviction, the court and counsel addressed the sentences imposed upon Hudson and Morris. Hudson had entered an open guilty plea, cooperated with the State, and received a fifteen-year sentence with a ten-year mandatory minimum. Hudson did not qualify for habitual offender sentencing. Morris entered into a negotiated plea with the State and received a sentence of twenty-two years as a habitual felony offender, with a fifteen-year prison releasee reoffender mandatory minimum.

Despite the sentences imposed on Hudson and Morris, the State requested that Bucknor receive the maximum sentence— thirty years as a habitual felony offender. The trial judge imposed a thirty-year habitual felony offender sentence for the robbery charge and sentenced Bucknor to time served for the assault. In imposing sentence, the trial judge acknowledged the sentences imposed on Hudson and Morris. And, with respect to Morris specifically, the judge noted the sentence was the result of a negotiated plea and stated “the Court had not had the opportunity to hear testimony from the two victims in this case who were held by these three codefen-dants with guns pointed to their heads in the driveway of one of the victims’ homes right after work in the afternoon, did not hear the testimony of the victims as to the fear, as to the feelings and emotions that they went through and they were exposed to and forced to be exposed by the defendants.”

Bucknor insists his thirty-year habitual felony offender sentence is subject to reversal because (1) the sentence is vindictive as it is greater than the sentence to be imposed under a pre-trial plea deal offered him by the State and harsher than the sentences imposed upon Morris and Hudson; (2) in imposing sentence, thé trial judge impermissibly relied upon conduct for which he had been acquitted; and (3) it was improper to rely upon the victims’ fear in imposing sentence because, while the victims may have been fearful, they were “hardly paralyzed by fear.”

We categorically reject Bucknor’s claim of vindictive sentencing. First, nothing in the record before this court reflects the trial court was in any way involved with, or commented upon, the State’s plea offer. The mere fact that the sentence imposed following trial was greater than that previously offered by the State as part of a plea is insufficient to establish vindictive sentencing. See Harris v. State, 845 So.2d 329, 330 (Fla. 2d DCA 2003). The sentences imposed upon Hudson and Morris also cannot be relied upon to demonstrate that Bucknor’s sentence was vindictive. Hudson and Morris were not similarly situated. Hudson did not qualify for habitual felony offender sentencing and, according to the evidence, never got out of the car. As for Morris, although the evidence established that he and Bucknor were equally culpable, Morris entered into a negotiated plea with the State. See Right v. State, 784 So.2d 396, 401 (Fla.2001) (recognizing claims of disparate sentencing have been rejected where codefendant’s lesser sentence was result of “plea agreement or prosecutorial discretion”); Weathington v. State, 262 So.2d 724 (Fla. 3d DCA 1972) (rejecting defendant’s claim that his 35-year sentence was disproportionate and unconstitutional where co-perpetrator received five-year sentence as result of negotiated plea). Bucknor’s claim that reliance upon the victims’ fear was somehow improper because the victims were not “that afraid” meets a similar fate as such claim is not substantiated by the record.

All that remains, then, is Bucknor’s claim that he must be resentenced because, in explaining the sentence imposed, the trial court commented that it had not had the opportunity to hear the testimony of the victims “who were held by these three codefendants with guns pointed to their heads.” Bucknor insists that, in making such a statement, the trial judge essentially indicated that Bucknor had pointed a gun at' the victims and that reliance on such fact is improper as the jury acquitted him of the charged robbery with a firearm and, instead, convicted him only of the lesser included offense of robbery. Florida case law does indeed hold that a trial judge may not rely upon conduct for which the defendant has been acquitted in imposing sentence and that to do so is a violation of the defendant’s due process rights. See Cook v. State, 647 So.2d 1066 (Fla. 3d. DCA 1994); see also Dowling v. State, 829 So.2d 368 (Fla. 4th DCA 2002); Evans v. State, 816 So.2d 742 (Fla. 4th DCA 2002). Having reviewed the trial judge’s comments, we do not believe the trial court impermissibly relied upon conduct for which Bucknor had been acquitted. Nowhere did the judge state that Bucknor held a gun to the victims; rather, she observed only that, during this offense, the victims were held by the three men with guns pointed at the victims’ heads and there was certainly evidence at trial that guns were involved in, and aggravated, the commission of the offense. Moreover, as a result of the same incident, appellant’s codefendant, Hudson, pled guilty to robbery with a firearm and aggravated 'assault, as well as burglary with a firearm. Codefendant Morris pled guilty to robbery with a firearm, aggravated assault with a firearm and burglary with a firearm. We thus affirm the sentence imposed.

Affirmed.

SHAHOOD, C.J., and WARNER J., concur.

      . The routine booking questions identified in Allred concerned the defendant’s name, address, height, weight, eye color, date of birth, and age. 622 So.2d at 987 n. 9.

      . In this district, a claim that a sentence has been imposed in reliance upon such conduct is cognizable on appeal. See Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004) (on reh'g);
        Dowling v. State, 829 So.2d 368 (Fla. 4th DCA 2002); Howard v. State, 820 So.2d 337 (Fla. 4th DCA 2002); Evans v. State, 816 So.2d 742 (Fla. 4th DCA 2002); but see Reaves v. State, 655 So.2d 1189 (Fla. 3d DCA 1995).


author: THOMPSON, J. TORPY, J., ORFINGER, J.,

text:
    Bernard SLOSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3120.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2007.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bernard Sloss, Chipley, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, and Kristen L. Davenport, Assistant Attorneys General, Daytona Beach, for Appellee.
   THOMPSON, J.

Bernard Sloss (“Sloss”) appeals his conviction for aggravated battery with a deadly weapon. We reverse.

The charge against Sloss arose from a fight in his apartment complex. Sloss lived directly above McKinney Milsap (“McKinney”) and McKinney’s nephew, Frank Milsap (“Frank”). Sloss was playing music loudly after midnight on 21 February 2003. McKinney asked Sloss to turn down the music. When Sloss refused, McKinney walked across the street to complain to their landlord. Sloss joined their conversation and, as he walked away, said “I’ll show you something.” McKinney returned to his apartment.

According to McKinney and Frank, Sloss came downstairs, cursed at McKinney, and went to his car. Sloss then approached McKinney and cut McKinney’s thigh with a knife. They fought, and Sloss stabbed McKinney several times. Frank went outside after hearing McKinney yell that he was cut. Frank tried to assist McKinney, but was cut three times by Sloss. Frank went inside, got a knife, and went back outside. Frank cut Sloss’s hand, forcing Sloss to drop his knife.

According to Sloss, Sloss decided to move out of the apartment that weekend. After going downstairs, he was under his car’s hood when he was hit in the back by a chair. He attempted to talk to McKinney, who threw the chair, but McKinney struck him three times. Sloss did not pull his knife until Frank came out of the apartment with a knife. Sloss then began to stab McKinney.

At trial, the defense requested the jury instruction of self-defense and did not object to the inclusion of the “forcible felony” portion of the instruction.

Sloss’s jury instructions stated:
A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the imminent commission of aggravated battery.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find [Sloss] was attempting to commit, committing or escaping after the commission of aggravated battery, or [Sloss] initially provoked the use of force against himself unless the force asserted- toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm, and had exhausted every reasonable 'means to escape the danger.

(Emphasis added).

This instruction is based on section 776.041(1), Florida Statutes (2003), which provides that the justification of self-defense or defense of others is not available to a person who “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.”

The jury found Sloss guilty. The court sentenced him to ten years’ imprisonment followed by five years’ probation. The issue is whether giving an instruction on the forcible felony exception to self-defense constitutes fundamental error, where the defendant allegedly engaged in two forcible felonies, but is charged with a single crime.

The forcible felony instruction should be given only where the defendant claiming self-defense engaged in an independent forcible felony at the time. See, e.g., Hawk v. State, 902 So.2d 331, 331 (Fla. 5th DCA 2005); “More specifically, the forcible felony instruction is given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony.” Id. (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)); accord Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004). Where the defendant is charged only with aggravated battery, the act for which the defendant claims self-defense, giving the forcible felony instruction improperly negates the self-defense claim. Hawk, 902 So.2d at 331; Cleveland, 887 So.2d at 363; Williams v. State, 901 So.2d 899, 899 (Fla. 4th DCA 2005). The instruction tells the jury that the very act the defendant seeks to justify precludes a finding of justification. Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002).

The State argues that Sloss did not object to the instruction at trial and that any error was harmless. However, several courts have held that giving the forcible felony instruction when the defendant is charged with only one crime constitutes fundamental error renewable in the absence of an objection below. Hawk, 902 So.2d at 331; Carter, 889 So.2d at 939; Cleveland,' 887 So.2d at 363. ■ When the defendant admits the stabbing but argues solely self-defense, an instruction negating that defense creates a reasonable possibility that the instruction led to the conviction. See Estevez v. State, 901 So.2d 989, 992 (Fla. 4th DCA 2005); see also Dunnaway v. State, 883 So.2d 876, 878 (Fla. 4th DCA 2004) (quoting Rich v. State, 858 So.2d 1210, 1210-11 (Fla. 4th DCA 2003)).

The. State argues that Sloss’s aggravated battery against Frank constitutes an independent forcible felony sufficient to justify the forcible felony instruction in the • prosecution for aggravated battery against McKinney. Courts considering • similar scenarios have ruled that the forcible felony instruction is reversible error. The question turns on whether the defendant claims that he acted against both victims in self-defense; if so, the forcible felony instruction constitutes fundamental error. See Ruiz v. State, 900 So.2d 733 (Fla. 4th DCA 2005) (reversing two convictions for aggravated battery against two victims); see also Hernandez v. State, 884 So.2d 281 (Fla. 2d DCA 2004) (holding that the forcible felony instruction where the defendant claimed self-defense against four charges of aggravated battery constituted reversible error); Baker v. State, 877 So.2d 856, 857 (Fla. 2d DCA 2004) (involving a defendant’s aggravated battery conviction against one victim and uncharged battery against another victim). It remains error no matter how credible the defendant’s claim of self-defense. For example, a defendant convicted for felony criminal mischief and two counts of assault had claimed self-defense, despite confronting two men installing a pool enclosure, threatening them with golf clubs, throwing their tools into a pool, ramming their truck with his car, and beating their windows with a golf club. Nevertheless, giving the forcible felony instruction was fundamental error. See Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005); see also Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004) (holding that, despite defendant’s alleged unauthorized display of a firearm against a mother and her two children in a Wal-Mart parking lot, the forcible felony instruction improperly negated his self-defense claim).

The State is correct to note that the statute and instruction are intended to prevent defendants from asserting self-defense when they initiate violence and engage in felonious acts. The portion of the forcible felony instruction dealing with provocation and retreat is acceptable for accomplishing that purpose. However, the issue here is the instruction in which jurors, upon finding Sloss committed aggravated battery, are precluded from considering the self-defense claim Sloss raises to justify the battery. In this case, giving the instruction takes consideration of Sloss’s self-defense claim out of the jury’s hands altogether. Sloss is entitled to a new trial without the forcible felony exception. As we did in Blanton v. State, 956 So.2d 480, 482 (Fla. 5th DCA 2007), Slattery v. State, 32 Fla. L. Weekly D305, — So.2d -, 2007 WL 186947 (Fla. 5th DCA Jan. 26, 2007), and Zinnerman v. State, 942 So.2d 932, 933 (Fla. 5th DCA 2006), we certify to the Florida Supreme Court the following question of great public importance:

DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?

REVERSED and REMANDED; QUESTION CERTIFIED.

TORPY, J., concurs and concurs specially, with opinion.

ORFINGER, J., concurs in part,- dissents in part, with opinion.

TORPY, J.,

concurring and concurring specially with opinion.

I concur because we are bound by Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005). I agree with Judge Orfinger, however, that Hawk is wrong. I think Judge Klein’s opinion in Bridges v. State, 878 So.2d 483 (Fla. 4th DCA 2004), correctly states the law on this issue. Because the erroneous instruction related to a defense, rather than an element of the crime, the error was not fundamental. Id. at 484.

This entire debate is, in my view, largely academic because, . in the final analysis, Appellant would get a new trial because he was clearly prejudiced by the ineffectiveness of his lawyer in failing to object to the instruction.

ORFINGER, J.,

concurring in part and dissenting in part.

I agree with the majority decision to certify the question to the Supreme Court. However, I respectfully dissent from the remainder of the majority opinion, although I acknowledge that the majority opinion is consistent with this Court’s opinion in Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005). In Hawk, we held that when the only charge against a defendant is aggravated battery, and the defendant claims the act was done in self-defense, giving the forcible felony exception as part of the self-defense jury instruction improperly negated the self-defense claim and constituted fundamental error, reversible even in the absence of a contemporaneous objection. I disagree with that holding because I think Hawk is contrary to controlling Florida Supreme Court precedent and fails to distinguish between the failure to give an instruction requiring proof of an essential element of the crime and the failure to give an instruction relevant to an affirmative defense.

In State v. Delva, 575 So.2d 643 (Fla.1991), the Florida Supreme Court said:

“[I]t is an inherent and indispensable requisite of a fair and impartial trial ... that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” Gerds v. State, 64 So.2d 915, 916 (Fla.1953). Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So.2d 701 (Fla.1978); Brown v. State, 124 So.2d 481 (Fla.1960). To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown, 124 So.2d at 484. In other words, “fundamental error occurs only when the omission is -pertinent or material to what the jury must consider in order to convict. ” Stewart v. State, 420 So.2d 862, 863 (Fla.1982) cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983).

Id. at 644-45 (emphasis added).

Florida case law holds that the use of force exception to the self-defense instruction should not have been given under the circumstances of this case, as the majority opinion correctly observes. However, when, as here, the erroneous instruction goes to an affirmative defense and not to an essential element of the crime, I believe that controlling precedent holds that such an error should generally not be considered fundamental, but rather, should be treated like any other unpreserved trial error.

In Sochor v. State, 619 So.2d 285 (Fla.1993), the defendant claimed that the trial court committed fundamental error when it failed to instruct the jury on voluntary intoxication as a defense to felony murder based on kidnapping. In rejecting that contention, our Supreme Court said:

[Fjailure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but ■ not essential element of, kidnapping .... Because the complaint of instruction went to Sochor’s defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.

Id. at 290; accord Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005) (stating that trial court’s failure to sua sponte instruct jury on guilty knowledge did not constitute fundamental error in prosecution for possession of cocaine; availability of affirmative defense did not obviate defendant’s responsibility to request instruction, issue of defendant’s knowledge was not disputed at trial, and evidence did not support a finding of lack of guilty knowledge); Bridges v. State, 878 So.2d 483 (Fla. 4th DCA 2004) (explaining that unlike the failure to instruct on an essential element of a crime, the failure to instruct on a defense cannot be raised for the first time on appeal); Goode v. State, 856 So.2d 1101 (Fla. 1st DCA 2003) (reiterating that a trial court’s failure to give an instruction unnecessary to prove an element of a crime, such as affirmative defense of self-defense, is not fundamental error); Alfaro v. State, 837 So.2d 429 (Fla. 4th DCA 2002) (holding that court’s failure to instruct jury on good faith defense to charge of grand theft of a motor vehicle was not fundamental error, as instruction did not go to an essential element of theft); Muteei v. State, 708 So.2d 626 (Fla. 3d DCA 1998) (determining that defendant, who did not request self-defense instruction in attempted first-degree murder prosecution or object to instructions given, failed to preserve such issue for appellate review, where instruction went to defense, not to essential element of crime charge). But see Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005) (holding that jury instruction that use of force likely to cause death or great bodily harm was not justifiable if defendant was attempting to commit, committing or escaping after commission of aggravated battery was fundamental error); Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA 2004) (holding that where a separate forcible felony is not involved, giving the use of force exception as part of the self-defense jury instruction negates the defense and constitutes fundamental error).

Unlike the situation in Sochor where the trial court did not instruct the jury on an affirmative defense, in this case, the trial court gave the jury an instruction on self-defense, albeit, an erroneous one. Consequently, this case may be more similar to Holiday v. State, 753 So.2d 1264 (Fla.2000), and Smith v. State, 521 So.2d 106 (Fla.1988), than Sochor. In Holiday, the Supreme Court considered whether fundamental error occurred when the court erroneously instructed the jury, without objection, regarding the affirmative defense of entrapment. In Smith, the court confronted the same issue relating to the affirmative defense of insanity. In both cases, the court rejected- the argument that fundamental error had occurred. In Smith, the court reasoned:

The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interest of justice presents a compelling demand for its application. Ray v. State, 403 So.2d 956 (Fla.1981). While we do recede from our view in [Yohn v. State, 476 So.2d 123 (Fla.1985),] concerning the inadequacy of the old standard jury instruction on insanity, we cannot say that it was so flawed as to deprive defendants claiming the defense of insanity of a fair trial. Despite any shortcomings, the standard jury instructions, as a whole, made it quite clear that the burden of proof was on the state to prove all of the elements of the crime beyond a reasonable doubt.

521.So.2d at 108.

It appears that the Supreme Court views the complete failure to instruct the jury on an affirmative defense somewhat differently than erroneously instructing the jury on an affirmative defense. In the former situation, the Supreme Court has concluded that no fundamental error occurs. See Sochor. In the latter situation, it appears that fundamental error may occur if the erroneous jury instruction results in a serious deprivation of due process. See Holiday; Smith.

Another consideration in my analysis is the salutary purpose served by the contemporaneous objection rule. Requiring a defendant to make a contemporaneous objection to an erroneous jury instruction relating to an affirmative defense prevents a defendant from agreeing to the jury instructions at trial, and then objecting to the instructions on appeal, as happened here. “Orderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (footnotes omitted).

We should be cautious when expanding the concept of fundamental error. Fundamental error, in the jury instruction context, occurs only when “the omission is pertinent or material to what the jury must consider in order to convict, Delva, 575 So.2d at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)) (emphasis added), or if the jury instructions as a whole, are so flawed as to deprive the defendant of due process, Smith; Holiday. See also Battle v. State, 911 So.2d 85 (Fla.2005) (explaining that fundamental error only occurs when the omission is pertinent or material to what the jury must consider in order to convict).

Here, the jury instruction error did not relieve the State of its burden to prove each element of the offense charged beyond a reasonable doubt. Consequently, I do not believe the defendant was deprived of due process. Instead, I conclude a contemporaneous objection was required to preserve the issue for review.

Because I view Hawk to be inconsistent with the Florida Supreme Court’s opinions in Smith, Delva, Sochor, Holiday, and Battle, I respectfully dissent.

      . In State v. Cohen, 568 So.2d 49, 51-52 (Fla.1990), the court explained:
      An "affirmative defense” is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, “Yes, I did it but I had a good reason.”


author: PER CURIAM.

text:
    PALM BEACH COUNTY SHERIFF’S OFFICE and United Self Insured Services, Appellants, v. Michael C. BAIR, Appellee.
    No. 1D06-2770.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.

      Kimberly A. Hill and Neal L. Ganon of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellants.
    Alan Aronson, West Palm Beach, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the employer/carrier (“the E/C”) appeals the judge of compensation claims’ (“JCC”) denial of its motion to appoint an expert medical advisor. There was a dispute between the independent medical examiners over whether Claimant’s atrial fibrillation qualified as heart disease and whether Claimant suffered from hypertension, and the E/C moved for appointment of an expert medical advisor. The JCC denied such motion and, after a hearing, resolved this case without the benefit of an expert medical advisor by applying the statutory presumption provided by section 112.18, Florida Statutes (2002), and entered a final order in favor of Claimant. Such statutory presumption arises only after a determination that a claimant has heart disease (among other things), and any conflict in the medical testimony relating to the existence of a heart disease requires appointment of an expert medical advisor. Because of the conflicting medical testimony, section 440.13(9)(e), Florida Statutes (2002), mandated the appointment of an expert medical advisor before applying the section 112.18 presumption, and the JCC erred in denying the E/C’s motion for the appointment of an expert medical advisor. See Broward Children’s Ctr., Inc. v. Hall, 859 So.2d 623, 625-26 (Fla. 1st DCA 2003). We therefore reverse the final order and remand for the appointment of an expert medical advisor to resolve the dispute between the independent medical examiners.

REVERSED and REMANDED.

BROWNING, C.J., LEWIS and HAWKES, JJ., concur.


author: ORFINGER, J.

text:
    BENEFICIAL FLORIDA, INC., Appellant, v. Ida Mae WASHINGTON, Appellee.
    No. 5D07-159.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.

      Enrico G. Gonzalez, Temple Terrace, for Appellant.
    Steve D. Tran, Gainesville, for Appellee.
   ORFINGER, J.

Beneficial Florida, Inc. appeals a non-final order quashing service of process on Ida Mae Washington. Beneficial contends that the trial court erred in quashing service of process on Ms. Washington without conducting an evidentiary hearing. We agree and reverse.

Beneficial filed a mortgage foreclosure complaint against Ms. Washington (and A1 Washington, Jr.). A return of service was executed and filed with the trial court. According to the return of service, individual service of process was effected on Ms. Washington. Because no responsive pleadings were filed by Ms. Washington, a default was entered against her. The trial court then granted Beneficial’s motion for final summary judgment of foreclosure, and the property was purchased by Beneficial at the foreclosure sale. Soon thereafter, Beneficial sold the property to a third party.

Several weeks later, Ms. Washington filed a motion to quash service of process and a motion to set aside the judgment, alleging that she was not properly served process, and, consequently, the judgment as to her interest in the property was void. The trial court issued an order, requiring Beneficial to file a written response to Ms. Washington’s motions. Beneficial did so, arguing that Ms. Washington’s allegations, without an affidavit, were insufficient to set aside the default or to quash service. Ms. Washington subsequently filed an affidavit in support of her motions. In her affidavit, she attested that on the date of service of Beneficial’s foreclosure complaint, she “was not at [the] residence at the alleged time of service” and that she only “first became aware of this action when [she] was served with a writ of possession at [her] residence.... ” Without conducting an evidentiary hearing on the motions, the trial court issued an order granting Ms. Washington’s motion to quash and ordered Beneficial to effectuate proper service on her. This appeal followed.

The return of service on Ms. Washington is regular on its face. A process server’s return of service on a defendant, which is regular on its face, is presumed valid absent clear and convincing evidence presented to the contrary. Emmer v. Brucato, 813 So.2d 264, 265 (Fla. 5th DCA 2002); Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). The defaulting party has the burden to overcome the presumption of valid service by establishing with clear and convincing evidence that service was invalid. Melchi Dev. Group, Inc. v. Berky Dev. Group, LLC, 918 So.2d 407, 408 (Fla. 5th DCA 2006); Emmer, 813 So.2d at 265; Aboudraah v. Tartus Group, Inc., 795 So.2d 79, 80 (Fla. 5th DCA 2000).

The trial court should have held an evi-dentiary hearing in order to insure adequate consideration of the disputed facts relevant to the motion to quash service of process. This is especially true in this case where Ms. Washington’s assertion that there was no service of process was disputed by the return of service. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989) (holding that where factual assertions in affidavits filed by the parties concerning the issue of personal jurisdiction could not be reconciled, the trial court was required “to hold a limited evidentiary hearing” to determine the issue); Koniver Stern Group v. Layfield, 811 So.2d 812 (Fla. 3d DCA 2002) (holding that assertion that there was no service of process and/or that wrong parties were served was disputed by verified returns of service, and, thus, evidentiary hearing on issue of motion to vacate default final judgments was required); S.E. Termite & Pest v. Ones, 792 So.2d 1266 (Fla. 4th DCA 2001) (reversing denial of motion to vacate clerk’s default for eviden-tiary hearing to determine whether appellant was personally served with process).

Accordingly, we reverse, and remand this matter for an evidentiary hearing on the issue of whether Ms. Washington was properly served process in the action.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . Because the trial court’s non-final order determines personal jurisdiction, it is subject to immediate review by appeal. Fla. R.App. P. 9.130(a)(3)(C)(i); Chapman v. Sheffield, 750 So.2d 140, 142 (Fla. 1st DCA 2000).

      . A second return of service document states that substitute service was employed to effect service on the co-owner of the property, A1 Washington, Jr.


author: TORPY, J.

text:
    Donald Forrest HOLLAND, In re the ADOPTION.
    No. 5D06-3757.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.

      Donald F. Holland, Orlando, pro se.
   TORPY, J.

We are called upon to address the propriety of a final order that denied Donald Holland’s petition to adopt his adult grandson. Although the trial court determined that the petition was in proper form, it denied the petition on public policy grounds. We reverse and remand this cause with directions that the trial court grant the petition.

Mr. Holland petitioned to adopt his adult grandson, who consented to the adoption. The petition complied with the statutory requisites and sought relief available under chapter 63, Florida Statutes. During the hearing, the trial court learned that Mr. Holland’s reason for adopting his grandson was to confer upon him entitlement to educational financial aid available to the children (but not grandchildren) of disabled veterans. In its order, the trial court concluded:

The final issue is whether this court should participate in the petitioner’s plan to adopt his grandchildren so that they can obtain federal aid not otherwise available to them. If Congress had intended for grandchildren to have these benefits it would have made them available to them. Surely, Congress did not intend the result which the petitioner and his other family members are trying to accomplish in this case. The court finds that the petitioner and his family are working together to obtain from the United States government benefits that Congress did not intend for the Adoptee and consequently, the petition should be denied because it violates public policy and is repugnant to the laws of Florida.

Mr. Holland argues very simply that the adoption of his adult grandchild is expressly authorized under Florida law, and the trial court did not have the discretion to deny the petition. We agree.

Even assuming that a trial court may deny a legally sufficient petition to adopt an adult on public policy grounds, no such grounds are present here. The public policy of Florida expressly permits the adoption of adults. § 63.042(1), Fla. Stat. (2007). If, as a result, the adoptee becomes entitled to a benefit authorized by law, it cannot be said that the adoption is in violation of public policy.

REVERSED AND REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


text:
    L.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-818.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.'
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency appeal, Appellant, L.B., challenges a disposition order in which the trial court deviated from the placement recommended by the Department of Juvenile Justice (Department) and committed L.B. to high-risk residential placement. The Department recommended probation, or low-risk residential placement, if the court determined that commitment to the. Department was appropriate. As the basis for rejecting the Department’s recommendation and committing L.B. to high-risk residential placement, the trial court found that L.B. was a member of a criminal street gang pursuant to chapter 874, Florida Statutes. L.B. argues that the trial court erred in deviating from the Department’s recommendation because there was insufficient evidence that he was a member of a criminal street gang. Because the reason given' by the trial court for disregarding the réstrictiveness level recommended by the Department is not supported by competent substantial evidence, we reverse and remand.

While L.B. was on post-commitment probation, a petition alleging violation of probation was filed. The petition alleged that L.B. had committed the new law violation of petit theft while on probation. Subsequently, an amended petition was filed alleging that L.B. had committed both offenses of dealing in stolen property and/or petit theft while he was on probation. L.B. admitted the violation. In a predisposition report, the Department recommended probation, or, if the court determined that commitment to the Department was appropriate, a low-risk residential program. At the disposition hearing, the State recommended that the court commit L.B. to moderate-risk placement, but changed its recommendation to high-risk placement after the trial court observed that L.B. had a new tattoo of a tear on his face. The trial judge agreed with the State that the tear tattoo signified gang membership. Although L.B. denied current gang membership, the trial judge found that L.B. was a gang member, relying on the new tattoo as the only evidence of gang membership. As a result, the trial court rejected the Department’s recommendation, adjudicated L.B. delinquent, and committed him to the custody of the Department in a high-risk residential placement. The only reason the trial judge gave for committing L.B. to a high risk residential placement rather than adhering to the Department’s recommendation, was her finding that L.B. was a gang member.

L.B. filed a Florida Rule of Juvenile Procedure 8.135(b)(2) Motion to Correct Disposition Error in the trial court, but the trial court did not act upon the motion within the jurisdictional period. This appeal followed.

A trial court may not deviate from the Department’s recommendation at a juvenile delinquency disposition hearing simply because the judge disagrees with the recommendation. K.M. v. State, 891 So.2d 619, 620 (Fla. 3d DCA 2005). To deviate, the trial court must identify adequate reasons, grounded in the evidence, for disregarding the recommendation. A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999). The trial court may reweigh the same factors the Department considered and come to a different conclusion, but when it does so, it must set forth its reasons in the context of the child’s needs. N.B. v. State, 911 So.2d 833, 835 (Fla. 1st DCA 2005). The trial court’s findings must refer to the characteristics of the restrictiveness level vis-a-vis the needs of the child. The trial court must also explain why it reached a different conclusion than the Department and explain the justification for the new restrictiveness level. Id. at 836.

Section 985.23(2)(a), Florida Statutes (2005), provides, “If the court determines that the child was a member of a criminal street gang at the time of the commission of the offense, which determination shall be made pursuant to chapter 874, the seriousness of the offense to the community shall be given great weight.” Section 985.23(3)(b) provides, “If the court has determined that the child was a member of a criminal street gang, that determination shall be given great weight in identifying the most appropriate restrictiveness level for the child.” Pursuant to section 874.03(2), Florida Statutes (2005), a “criminal street gang member” is defined as follows:

[A] person who is a member of a criminal street gang as defined in subsection (1) and who meets two or more of the following criteria:
(a) Admits to criminal street gang membership.
(b) Is identified as a criminal street gang member by a parent or guardian.
(c) Is identified as a criminal street gang member by a documented reliable informant.
(d) Resides in or frequents a particular criminal street gang’s area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known criminal street gang members.
(e) Is identified as a criminal street gang member by an informant of previously untested reliability and such identification is corroborated by independent information.
(f) Has been arrested more than once in the company of identified criminal street gang members for offenses which are consistent with usual criminal street gang activity.
(g) Is identified as a criminal street gang member by physical evidence such as photographs or other documentation.
(h) Has been stopped in the company of known criminal street gang members four or more times.

Thus, a finding that a person is a criminal street gang member must be supported by at least two of the eight statutory criteria.

Here, the trial court based its finding that L.B. was a member of a criminal street gang solely on its observation that L.B. had a tattoo of a tear on his face, despite the fact that L.B. denied current involvement with a street gang. The court’s observation, standing alone, is insufficient to establish criterion (d), which requires the additional findings that the alleged gang member resides in or frequents a particular criminal street gang’s area and associates with known criminal street gang members. There is no record evidence that L.B. met these two components of criterion (d). Although the trial court did not rely on the State’s observation that L.B.’s pants were eight inches below his “drawers,” we note that this observation, standing alone, would be insufficient to establish that L.B. had adopted a criminal street gang’s style of dress. Accordingly, there is not competent substantial evidence to support the trial court’s finding that L.B. met the statutory definition of a “criminal street gang member.” Because the trial court did not list any other reasons for departing from the ■ Department’s recommendation, it erred in relying on L.B.’s alleged gang membership as the sole basis to support its deviation. See R.C. v. State, 948 So.2d 48, 51 (Fla. 1st DCA 2007) (reversing a trial court’s finding that the appellant met criterion (d) where there was evidence that he adopted a gang’s style of dress but not that he frequented the gang’s area or associated with its known members). The trial court also erred by failing to reference the restrictiveness level vis-a-vis the needs of L.B. See A.C.N., 727 So.2d at 370.

Therefore, we REVERSE the disposition order and REMAND for further proceedings consistent with this opinion.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


author: SHAHOOD, C.J.

text:
    Steven GAFFNEY, Appellant, v. Marie Claude GAFFNEY, Appellee.
    No. 4D06-1074.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Rehearing Denied Oct. 29, 2007.

      Nicholas T. Gentile of Nicholas T. Gentile, P.A., Pompano Beach, for appellant.
    Douglas H. Reynolds and Sean L. Collin of Adorno & Yoss LLP, Fort Lauderdale, for appellee.
   SHAHOOD, C.J.

This opinion addresses the appeal by Steven Gaffney (“Husband”), and cross-appeal by Marie Claude Gaffney (now known as Martel) (“Wife”) from a final judgment of dissolution of marriage. We reverse the award of lump-sum alimony to Wife because the portion of Husband’s pension accumulated during the marriage was subject to equitable distribution to the extent it did not represent compensation for disability. We affirm the denial of the motion for rehearing and to supplement the pleadings that Husband filed based on an antenuptial agreement.

Husband and Wife were married in 1991. There were no children of the marriage. Husband was employed by the Broward Sheriffs Office during most of the marriage until he retired in March 2002. Husband retired under the disability election, and began receiving benefits from the Florida Retirement System (“FRS”).

Husband filed for dissolution in June 2004 on the grounds that the marriage was irretrievably broken. Wife filed an answer and counter-petition for dissolution in which she sought alimony. Husband subsequently filed an answer.

In his mandatory disclosures pursuant to rule 12.285, Florida Family Law Rules of Procedure, Husband represented that no prenuptial agreement existed. Wife was asked during her deposition if she and Husband signed a prenuptial agreement. Wife remembered signing one, but stated that it remained in Husband’s possession and she did not have a copy. Wife could not remember the terms. Husband did not amend his pleadings to allege the existence of a prenuptial agreement.

Husband was 56 years old at the time of trial. His monthly retirement benefit from FRS was $4,223.50. Additionally, Husband received worker’s compensation in the amount of $2,661 per month, and $1,600 from Social Security per month. Altogether, Husband was receiving approximately $100,000 per year from these various sources of income. Wife was 46 years old at the time of trial. She had worked as a branch manager at Colonial Bank since May 1998. Wife earned $55,000 in 2004 and approximately $65,000 per year at the time of trial.

Wife’s expert, a financial planner certified in divorce planning, testified regarding FRS, and specifically husband’s FRS pension benefits. FRS is a defined benefit pension plan. Employees accrue benefits under the plan based on service credits corresponding to the number of years they have worked. Husband’s normal retirement age under the FRS would have been age 55. However, due. to Husband’s disability, he was able to begin receiving his monthly pension payments approximately two years earlier. Husband’s disability did not enhance his number of credits under the FRS, and therefore did not increase the amount of the monthly benefit Husband receives. It just gave him the benefit of being able to get the money approximately two years early.

Wife’s expert calculated the marital component of the retirement plan as $466,099. She arrived at this amount by dividing the 10.58 years of service credits Husband accumulated during the marriage by the total service credits Husband earned, 24.82 years. The expert then applied this to the total value of the husband’s pension benefit ($1,094,130) to arrive at $466,099. Wife’s expert testified that the $466,099 figure was based upon the former husband’s work, not from being disabled.

After trial but before the court issued the final judgment, Husband filed a motion for rehearing and a motion to file supplemental pleading.. Husband’s motion for rehearing alleged that while preparing the marital home for sale approximately one month after the last day of trial, Husband found the original antenuptial agreement which was believed to have been lost. The antenuptial agreement prohibited Wife from asking for or receiving alimony. The trial court denied Husband’s motions.

The trial court rendered final judgment on February 15, 2006. Consistent with the testimony of Wife’s expert, the trial court found that the value of the pension accrued during the marriage was $466,099. Importantly, the court found that Husband’s FRS pension was a “Disability Retirement Pension,” and therefore a non-marital asset not subject to equitable distribution. The court found that “by converting the FRS Retirement Pension to an FRS Disability Retirement Pension, the Husband has changed the nature of this asset from a marital asset to an [sic] non-marital asset.”

The court reasoned that Wife would not need permanent alimony if she were receiving part of the pension through equitable distribution, but that Husband’s conversion of the pension to a disability pension prevented it. The court awarded Wife lump-sum alimony- on the theory that Husband’s conversion of his pension from a FRS Retirement Plan to a FRS Disability Retirement Plan was a “unique and special circumstance” justifying lump-sum alimony. The trial court ordered Husband to pay Wife lump-sum alimony in the amount of $233,099 to be paid in monthly installments of $900.

Husband argues that the trial court erred' in granting lump-sum alimony to Wife because the purpose of the lump-sum alimony award was to equitably distribute his disability payment, which he contends is a non-marital asset. On cross-appeal, Wife claims that the trial court erred in ruling that Husband’s interest in the FRS was a non-marital asset and not subject to distribution. Specifically, Wife argues the court erred in concluding that Husband’s acquisition of disability status converted an otherwise marital asset to a non-marital asset.- -

. “The. nature and amount of an award of alimony is a matter committed to the sound .discretion of the trial court.” Ryan v. Ryan, 927 So.2d 109, 112 (Fla. 4th DCA 2006) (citations omitted). The standard of review of an award of lump sum alimony is abuse of discretion. Id. However, á trial court’s conclusion of law that an asset is a marital asset is subject to de novo review. Williams v. Williams, 935 So.2d 54, 55 (Fla. 1st DCA 2006).

The relevant case law supports Wife’s assertion that the trial court’s characterization of Husband’s pension as a non-marital asset was erroneous. In Davidson v. Davidson, 882 So.2d 418, 420 (Fla. 4th DCA 2004), this court discussed the character of pensions for equitable distribution purposes:

A retirement pension is considered a marital asset for purposes' of equitable distribution. See Blaine v. Blaine, 872 So.2d 383 (Fla. 4th DCA 2004). On the other hand, a disability pension “by its very nature replaces future lost income, and thus is not a marital asset subject to equitable distribution.” Hoffner v. Hoffner, 577 So.2d 703, 704 (Fla. 4th DCA 1991); see also Hanks v. Hanks, 553 So.2d 340, 343 (Fla. 4th DCA 1989).

The determination whether any portion of a disability pension is a marital asset requires the trial court to examine its basis:

When a disability pension is involved, the trial court must determine “what portion of the pension represents compensation for pain and suffering, disability and disfigurement, .and what portion, if any, represents retirement pay.” Brogdon v. Brogdon, 530 So.2d 1064, 1066 (Fla. 1st DCA 1988). Only the retirement portion is subject to equitable distribution. Id.; ef. Weisfeld v. Weisfeld, 545 So.2d 1341, 1345-46 (Fla.1989) (employing analytical approach focusing on purpose of personal injury compensation to determine what portion is marital property).

Rumler v. Rumler, 932 So.2d 1165, 1166 (Fla. 2d DCA 2006) (reversing for trial court to determine what portion of pension was disability excluded from equitable distribution); see also Brogdon, 530 So.2d at 1065-66 (remanding for determination of what portion of husband’s pension was disability and what portion was retirement pay, where evidence indicated some portion was retirement despite pension’s “disability” designation).

In Hoffner v. Hoffner, 577 So.2d 703 (Fla. 4th DCA 1991), this court addressed a trial court’s determination whether any part of the husband’s disability pension was a marital asset. There was no proof that the disability pension at issue in that case had any component identifiable as a marital asset. 577 So.2d at 704. We held that such a pension “may be a source of alimony ... [but] not a marital asset subject to equitable distribution.” Id.

The opposite situation is true in the present case. The trial court made findings, supported by the record, that Husband’s disability was not a factor in the amount of monthly benefit he receives. The only effect of Husband’s disability was that he was able to receive his retirement benefits two years early. Despite its “disability pension” designation, the marital portion of Husband’s pension was a marital asset subject to equitable distribution to the extent it does not represent actual compensation for disability. Rumler, Hoffner, and the other cases discussed herein hold that a marital component may still exist in a disability pension.

The trial court erroneously reasoned that Husband’s designation of the pension as a disability pension put it off-limits for' equitable distribution purposes. For the reasons discussed above, we reverse the trial court’s award of lump-sum alimony to Wife and remand for the trial court' to award Wife her portion of the pension in equitable distribution.

We affirm the trial court’s denial of Husband’s motion for rehearing and motion to file supplemental pleading, which were based on the antenuptial agreement. A trial court’s decision on a motion for rehearing is reviewed for an abuse of discretion. Pangilinan v. Broward County, 914 So.2d 1094 (Fla. 4th DCA 2005). The purpose of a motion for rehearing is “to give the trial court an opportunity to consider matters which it overlooked or failed to consider ... and to correct any error if it becomes convinced that it has erred.” Carollo v. Carollo, 920 So.2d 16, 19 (Fla. 3d DCA 2004).

The record shows that the trial court did not “overlook” or “fail _ to consider” the antenuptial agreement. Rather, despite knowledge of its existence, Husband decided not to rely on the agreement at all during eighteen months of litigation other than to ask a few questions at trial in an attempt to establish a course of bad behavior on the part of Wife. The trial court could not have found that it erred in ruling regarding an antenuptial agreement that Husband by his own admission did not put before the court. The trial court did not commit an abuse of discretion in denying Husband’s motion for rehearing. Additionally, Husband knew of the existence of thé antenuptial agreement. His finding the document later is therefore insufficient to serve as an event or occurrence upon which he may supplement his pleadings. See Fla. R. Civ, P. 1.190(d).

Affirmed in part, Reversed in part, and Remanded.

¡STEVENSON, J., and BELANGER, ROBERT E., Associate Judge, concur.

      . We note that the trial court did not have the benefit of Rumler at the time it rendered final judgment.


author: HAZOURI, J.

text:
    James PATTEN, Appellant, v. Harry WINDERMAN, Appellee.
    No. 4D06-4304.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 2, 2007.

      Robert A. Shupack of Robert Shupack Law Office, Boca Raton, for appellant.
    Harry Winderman, Boca Raton, pro se.

      . Patten and Winderman agree that breach of fiduciary duty is an intentional tort subject to a four-year statute of limitations. See § 95.11(3)(o), Fla. Stat. (2006); Berg v. Wagner, 935 So.2d 100, 102 (Fla. 4th DCA 2006).

   HAZOURI, J.

On January 9, 2006, James Patten filed a two-count complaint against Harry Win-derman, Esquire, a licensed Florida attorney, alleging a constructive trust and resulting trust arising out of an arrangement whereby Patten sent a total of $65,000 to Winderman’s trust account to be held in trust regarding a proposed stock option agreement involving a third party. Win-derman filed a motion to dismiss , arguing that the complaint failed to state a cause of action upon which relief could be granted because a constructive trust and resulting trust are remedies and not causes of action. Winderman also claimed that all potential causes of action would be barred by the statute of limitations. The trial court granted the motion to dismiss without prejudice for Patten to amend his complaint, ordering that the amended complaint allege dates of accrual of the causes of action.

Subsequently, the trial court, without prejudice, granted several more motions to dismiss filed by Winderman, and Patten filed amended complaints accordingly. The only counts remaining in Patten’s third and final amended complaint were for breach of fiduciary duty and an accounting.

Winderman filed a second amended motion for summary judgment raising one ground. He argued that Patten’s actions were barred by section 95.11, Florida Statutes (2006), claiming that accounting and breach of fiduciary duty are intentional torts governed by the four-year statute of limitations. See § 95.11(3)(o), Fla. Stat. (2006). Winderman also filed an answer and affirmative defenses, including the statute of limitations.

The trial court, granted Winderman’s motion for summary judgment, and . entered final summary judgment in favor of Winderman, stating: “Specifically, this court’s decision is based on the principle of law that the delayed discovery doctrine does not apply to the claims alleged in this case, pursuant to Davis v. Monahan, 832 So.2d 708 (Fla.2002).”

The issue on appeal is whether the trial court properly entered summary judgment in favor of Winderman on the ground that the statute of limitations barred Patten’s breach of fiduciary duty and accounting causes of action. We affirm.

“The standard of review of an order granting summary judgment is de novo.” Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). The party moving for summary judgment has the burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citations omitted).

Biggins v. Fantasma Prods., Inc. of Fla., 943 So.2d 952, 955-56 (Fla. 4th DCA 2006).

Patten argues, citing Heckman v. City of Oakland Park, 644 So,2d 525, 526 (Fla. 4th DCA 1994), that the trial court erred in entering final summary judgment on the breach of fiduciary duty, count because the cause of action did not accrue until January 7, 2004, when he received an email from Iammuno, the owner of the company issuing the stock at issue in this case, notifying him that the $65,000 in Winder-man’s trust account was not used to purchase the stock, as agreed. We disagree.

In the instant case, there are no genuine issues of material fact remaining as to when the last element of the breach of fiduciary duty cause of action occurred. “The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiffs damages.” Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002) (citations omitted). According -to Patten’s own deposition testimony, he first became aware in 2000 from Iammuno that Winderman had released the $65,000 to Iammuno’s company, but the shares of stock had not been delivered to Patten accordingly. In 2000, Patten began to ask Iammuno about what happened to his money. Thus, the alleged breach by Winderman and resulting damages must have occurred in 2000, or prior to that time, which was six years before Patten first filed suit, and well beyond the four-year statute of limitations period.

Patten also argues that the delayed discovery doctrine applies to this case because he first learned of possible wrongdoing by Winderman on January 7, 2004, via an email from Iammuno, in which Iammuno advised Patten that the $65,000 was not used to purchase the stock. “The ‘delayed discovery’ doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.” Hearndon v. Graham, 767 So.2d 1179, 1184 (Fla.2000). However, the trial court properly determined that the delayed discovery doctrine does not apply to Patten’s breach of .fiduciary duty count, on the authority of Davis. In Davis, the Florida Supreme Court addressed a conflict between the district courts of appeal concerning whether the delayed discovery doctrine applies to various causes of action, including breach of fiduciary duty. The Court agreed with the Fifth District’s decision in Yusuf Mohamad Excavation,, Inc. v. Ringhaver Equipment, Co., 793 So.2d 1127 (Fla. 5th DCA 2001). The Davis court recognized:

[In reaching its decision in Yusuf], the Fifth District followed the Second District’s decision in Halkey-Roberts Corp. v. Mackal, 641 So.2d 445 (Fla. 2d DCA 1994). In Halkey-Roberts, the Second District considered section 95.031, and held that the delayed discovery rule could not operate to delay the accrual of a cause of action for the intentional tort of breach of fiduciary duty because this cause of action is not specified in the statute. We find the Fifth District’s rationale to be the better view. To hold otherwise would result in this Court rewriting the statute, and, in fact, obliterating the statute.

Davis, 832 So.2d at 711.

Patten argues next that the trial court erred in entering final summary judgment in favor of Winderman on the accounting count because an accounting is an equitable action subject to the common-law doctrine of laches, which creates an issue of fact as to whether any delay in asserting this claim was unreasonable. We disagree.

Patten relies on Nayee v. Nayee, 705 So.2d 961 (Fla. 5th DCA 1998), where the Fifth District explained:

As an equitable action, an action for an accounting against a trustee was historically governed by the concept of common-law laches, not by statutes of limitations. Common-law laches requires a showing of an unreasonable delay in asserting a known right which causes undue prejudice to the party against whom a claim is asserted. Life Marketing, Inc. v. A.I.G. Life Ins. Co., 588 So,2d 663 (Fla. 5th DCA 1991).

Nayee, 705 So.2d at 963; see also Ashemimry v. Ba Nafa, 778 So.2d 495, 498 (Fla. 5th DCA 2001) (citations omitted) (“While accounting suits may be prosecuted at law, they are generally considered equitable in nature. Where a fiduciary or trust relationship exists, an action for an accounting is considered equitable in nature without regard to other considerations.”). Although Patten’s claim for an accounting is an equitable action, it concerns the same subject matter as his claim for breach of fiduciary duty. Therefore, his claim that laches applies to his accounting claim fails because section 95.11(6), Florida Statutes (2006), provides in pertinent part:

Laches .shall bar any action unless it is commenced within the time period provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his or her rights and whether the person sought to be held liable is injured or prejudiced by the delay....

Based on the foregoing, we affirm the trial court’s entry of final summary judgment in favor of Winderman on both counts of Patten’s complaint.

Affirmed.

GUNTHER, J., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    John Todd PALLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4774.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2007.
    Ronald W. Johnson of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Appellant.
    Bill McCollum, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his conviction for conspiracy to traffic in cocaine. The charged offense was based on Appellant’s possession or purchases of cocaine from two cocaine suppliers over an 11-month period. Because each transaction involved less than 28 grams of cocaine, and no evidence established a specific agreement to purchase more than 28 grams of cocaine, we- reverse his conviction for conspiracy to traffic in cocaine. See Switzer v. State, 940 So.2d 1248 (Fla. 1st DCA 2006). However, because we find that the State proved beyond a reasonable doubt that Appellant conspired to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)l., Florida Statutes (2003), a lesser-included charge of conspiracy to traffic, we direct the trial court to enter a conviction on the lesser-ineluded charge. See § 924.34, Fla. Stat. (2003) (permitting an appellate court to direct the trial court to enter a judgment on a lesser-ineluded charge when it determines the evidence is insufficient to support a conviction).

Florida law defines the crime of conspiracy as occurring where a person “agrees, conspires, combines, or confederates with another person or persons to commit any offense[.]” § 777.04(3), Fla. Stat. (2003). “The crime of conspiracy involves an express or implied agreement between two or more people to commit a criminal offense.” State v. Russell, 611 So.2d 1265, 1267 (Fla. 2d DCA 1992).

Reviewing the evidence here in a light most favorable to the State, including all reasonable inferences resulting from the evidence, the facts presented here demonstrate that Appellant participated in more than a simple “buy-sell” or “spot sale” agreement with his suppliers. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (explaining that an appellate court must resolve all conflicts in the evidence and all reasonable inferences therefrom in a light most favorable to the verdict). Appellant knew his suppliers were engaged in an ongoing agreement between themselves to purchase cocaine and then to supply Appellant and others with the cocaine. This relationship necessarily required Appellant’s suppliers to purchase and possess cocaine so that he could then purchase or possess a smaller portion of the cocaine. Further, Appellant occasionally incurred debt to his suppliers when making his purchases and also involved his girlfriend in the crime.

Because this evidence demonstrates that Appellant and his suppliers shared a common objective to purchase or possess cocaine with the intent to purchase, it is sufficient to sustain a conviction for conspiracy to purchase or possess cocaine with intent to purchase. See, e.g., Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991) (“Where ... the defendants are involved in a series of meetings, arrangements, and negotiations to sell or buy illegal drugs from an undercover police officer which eventually leads to such a sale -or purchase, Florida courts have generally sustained convictions for conspiracy to commit the offense of drug trafficking based on this conduct”).

This is not a case where Appellant was marginally involved with other criminal actors or simply purchased cocaine from a supplier. Cf. Ashenoff v. State, 391 So.2d 289, 290-91 (Fla. 3d DCA 1980) (reversing appellants’ conspiracy convictions where the appellants were present at the scene of the offense but their conversations related only to offenses for which they were acquitted). Neither is this a case where Appellant simply aided and abetted another principal in. committing the crime of drug possession. Cf. Ramirez v. State, 371 So.2d 1063, 1065 (Fla. 3d DCA 1979) (reversing appellants’ convictions for conspiracy to. possess marijuana where no evidence demonstrated an agreement to possess the marijuana). Here, Appellant repeatedly possessed cocaine; his suppliers were simply first to possess it. Appellant could not possess the cocaine from his suppliers and co-conspirators unless they first possessed it; therefore, the evidence supports a conviction for conspiracy to purchase or possess cocaine with intent to purchase. Cf. Williams v. State, 908 So.2d 1166, 1167 (Fla. 1st DCA 2005) (reversing conviction for possession with intent to sell based on aiding or abetting, where “evidence presented indicated that appellant was either the intended seller or intended purchaser, not an aid to either.”).

We reject Appellant’s contention that federal decisions holding that no conspiracy exists when the participants are on different sides of the transaction apply to our analysis; While federal law specifically requires that the participants commit an additional act beyond mere possession of contraband in order to be convicted of conspiracy to traffic, Florida law does not require an additional act. See 21 U.S.C. § 841(a)(1) (2006); § 893.135(b)l., Fla. Stat. (2003). Therefore, we find the better view is expressed in United States v. Miller, in which the Eighth Circuit held that “ ‘evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of conspiracy to distribute.’” 91 F.3d 1160, 1162 (8th Cir.1996) (quoting United States v. Eneff, 79 F.3d 104, 105 (8th Cir.1996)). Although the court in Miller determined the same principle does not apply to repeated transactions of smaller amounts of drugs, we conclude that its rationale is persuasive because, under Florida law, a ’ conviction for trafficking may be obtained based on mere possession. Thus, the evidence presented here of multiple sales of a resale quantity of cocaine permits a conviction on the lesser-included offense of conspiracy to purchase or possess cocaine with the intent to purchase.

Further, we find the concerns expressed in United States v. Moran, 984 F.2d 1299 (1st Cir.1993), that the special dangers of conspiracy are “not present if one merely sells the same cocaine to another without prearrangement and with no ... interest in its intended use” unpersuasive, as the dangers of a conspiracy, such as the commission of other crimes in furtherance' of the conspiracy, are present here. Accordingly, we remand with directions to reverse Appellant’s conviction on Count II for conspiracy to traffic in cocaine and enter a conviction for conspiracy to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)l., Florida Statutes (2003).

We affirm all other issues raised by Appellant.

AFFIRMED in part,' REVERSED in part, and REMANDED with instructions consistent with this opinion.

KAHN, DAVIS, and THOMAS, JJ., concur.


author: PADOVANO, J. BENTON, J.,

text:
    Bradley COLE, individually and on behalf of all others similarly situated, Appellant, v. ECHEVARRIA, McCALLA, RAYMER, BARRETT & FRAPPIER, a Florida general partnership; Barrett, Daffin & Frappier, L.L.P., a foreign limited liability partnership; McCalla, Raymer, Padrick, Cobb, Nichols & Clark, L.L.C., a Georgia limited liability company engaging in the practice of law; Echevarria & Associates, P.A., a Florida corporation engaged in the practice of law; and Michael Echevarria, individually, Appellees.
    Nos. 1D02-4746, 1D02-4982.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2007.

      Thomas J. Guilday, Claude R. Walker and Shawn M. Heath of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee; M. Stephen Turner, Kelly Over-street Johnson, David K. Miller, and Robert Witmeyer of Broad and Cassel, Tallahassee, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; Michael J. McGirney of Marshall, Dennehey, Wairner, Coleman & Gog-gin, Tampa, for Appellees.
   ON REMAND

PADOVANO, J.

This is an appeal from a class certification order in an action alleging violations of the Florida Consumer Collection Practices Act and the Florida Deceptive and Unfair Trade Practices Act. The plaintiffs are property owners who were in default on their mortgages, and the defendants are attorneys representing the mortgage holders. The essence of the complaint is that the defendants engaged in an illegal collection practice and a deceptive trade practice b.y requiring the plaintiffs to pay inflated costs for title searches and title examinations in order to reinstate their mortgages.

The trial court granted the plaintiffs’ motion for class certification but limited the class to those landowners who had paid the disputed ■ fees and reinstated their mortgages. The prospective plaintiffs who failed to pay the disputed fees and lost their property in foreclosure were excluded from the Class. On appeal, this court affirmed the decision to certify a class but held that the trial court erred in limiting the class to those who had reinstated then-mortgages. See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 896 So.2d 778 (Fla. 1st DCA 2004). As explained in the opinion, there was no rear sonable basis for excluding the plaintiffs who had lost their property in foreclosure while including those who had not.

In the course of the appeal, the defendants speculated that the trial court’s decision to limit the class may have been based on the- litigation privilege. According to the defendants, the privilege would apply to those-who received the reinstatement letters and eventually lost their property in foreclosure actions, but not to those who paid the disputed charges, thereby avoiding foreclosure. If this were correct, there might have been some plausible reason to define the class as the trial court did.

However, we concluded that the litigation privilege could not be applied to any of the plaintiffs and, for that reason, rejected the defendants’ argument that the class was properly limited. We noted that the privilege had been applied to common law actions such as defamation, but we then stated incorrectly that it could not even apply to statutory claims.

On discretionary review, the Florida Supreme Court held that the litigation privilege is not limited to common law causes of action, but that it also applies to statutory causes of action. See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla.2007). Based on this holding, the supreme court quashed the decision of this court and remanded the case for further proceedings. The majority opinion rejected the general statement in our opinion that the litigation privilege does not apply to statutory actions but left open the question whether the privilege can be applied under the circumstances presented here. In a concurring opinion, Justice Pariente stated that “the First District should consider on remand whether the privilege covers the reinstatement letters sent in this case.” Id. at 385.

To respond to this request, we set out to determine whether the issue was ripe for appellate review in the proceeding now before the court. Although the possible implications of the litigation privilege may be relevant to. the trial court’s decision to limit the class to certain plaintiffs, it was not apparent to us that the applicability of the privilege is a matter that is properly before the court. The defendants interjected this issue as a possible explanation for the trial court’s decision to restrict the class, but it was merely an argument. However, the issue was not addressed or even mentioned in the class certification order that is the subject of the present appeal. And we did not know whether it had been addressed before in some other proceeding before the trial court. In retrospect, it is apparent that this court should not have addressed the issue at all. There was no need to refute a speculative argument.

In an effort to determine whether we could answer the question regarding the applicability of the litigation privilege, this court requested a clarification of the trial court’s order. One of the questions asked' of the trial judge was whether he had previously ruled on the applicability of the litigation privilege in this case. The trial judge answered the question directly:

In denying the defendant’s motion for summary judgment, this Court necessarily ruled that the litigation privilege was no basis for dismissal. This court’s decision was predicated on the fact that the false representations made by the defendant were not made in the course of a judicial proceeding. This court necessarily considered the application of 'the litigation privilege but determined that it had no application in the instant case because the false representations were not made in the course of a judicial proceeding.

With this explanation, it is now clear that Justice Pariente’s question regarding the applicability of the litigation privilege has been answered in a ruling by the trial court, but that the ruling is not presently before this court on review.

This brings us back to the task of reviewing the class certification order that is the-subject of the appeal. We approach the matter again in light of the applicable standard of review. An order certifying a class is reviewed on the merits for an abuse of discretion. See• Turner Greenberg Assocs., Inc. v. Pathman, 885 So.2d 1004 (Fla. 4th DCA 2004); Seminole County v. Tivoli Orlando Assocs. Ltd., 920 So.2d 818 (Fla. 5th DCA 2006). It follows from this general principle that an order determining the composition of a class is also reviewed on the merits by the abuse of discretion standard. By this-standard, we affirm the trial court’s decision to certify a class but reverse the certification order to the extent that it limits the class to those plaintiffs who had reinstated their mortgages.

The supreme court has now corrected the misstatement this court made in rejecting the defendants’ suggestion that the class may have been limited on account of the litigation privilege. However, we do not perceive that the supreme court disagreed with the primary basis for our decision: that there was no valid reason to distinguish between landowners who ' received the reinstatement letters and paid the allegedly inflated charges, and those who'received the reinstatement letters and lost their property in foreclosure because they could not pay. Nor are we persuaded to make such a distinction by the arguments in the briefs submitted by the parties on remand. The causes of action for unfair debt collection and unfair trade practices are based on the act of making an unlawful demand in the reinstatement letter, not the ultimate consequence of the letter.

The class certification order does not state a reason for limiting the class to those who reinstated their mortgages. To the contrary, the findings in the order support the view that the class should not be limited in that way. As the trial judge explained,

Whether or not the individual receiving the [reinstatement] letter actually reinstated the mortgage would be immaterial because the act of sending the letter seeking to collect the unlawful charge triggers the violation of the FCCPA. See Keele v. Wexler, 149 F.3d 589, 593 (7th Cir.1998); Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir.1985) (both concerning violations of the' Federal Debt Collection Practices Act by law [firms’] transmission of a letter). Similarly, with .regard to a violation of the FDUTPA, the prospective class member need not demonstrate that he or she relied upon a misrepresentation because the members of the class have similar interests in curtailing the deceptive activity. Badcock v. Myers, 696 So.2d 776, 780 (Fla. lst.DCA 1996); Latman v. Costa Cruise Lanes, Inc., 758 So.2d 699, 703 (Fla; 3d DCA 2000). Thus, whether the prospective class member actually reinstated is not pertinent. Rather, the operative event, i.e., the transmission of the reinstatement letter, impacted all prospective members of the class similarly.

The trial court agreed with the plaintiffs that the statutory causes of action were triggered by the transmission of the reinstatement letter seeking illegitimate costs, not by the ultimate outcome of any foreclosure proceedings. Yet, despite this explicit finding, the trial court nonetheless limited the class to include only those persons “whose default or failure to timely pay their mortgage obligations did not ultimately result in a foreclosure judgment or sale.”

We have considered the possibility that the distinction the trial court made might have been based on the fact that those who lost their property in foreclosure would have a different kind of injury from those who did not. That notion is dispelled by the findings in the certification order. The order states that “[ijndividual issues of reliance and damages do not predominate,” because the remedy in all cases is limited to the damages set by statute. This statement is consistent with the trial court’s observation in an earlier part of the order that the case focuses on the actions by the defendants, not on individual differences between the prospective class members.

For these reasons, we affirm the trial court’s decision to certify the class but reverse the part of the order that limits the class to those who reinstated their mortgages. The class should include all persons who received the reinstatement letter that is alleged to violate the state laws at issue* whether they reinstated their mortgage in response to the letter or lost their property in foreclosure.

Affirmed in part, reversed in part, and remanded.

HAWKES, J., concurs.

BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

As Judge Padovano explains, after remand from the supreme court in the wake of its decision in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380.(Fla.2007), we asked the learned trial judge what role, if any, the litigation privilege had played in the analysis that led to class certification. The trial judge responded in part, as follows: •

2. Did the issue regarding the litigation privilege play any part in the trial court’s decision to limit the class?
Yes. In considering the issue of commonality, including distinctions which could be asserted in defense of the claim alleged, and in considering the issue of damages recoverable by the various members of the class sought to be certified, this Court considered the issue regarding the defendants’ reliance upon the litigation privilege. The determination of the class was not predicated upon a decision that the litigation privilege applied to class members against whom a judgment of foreclosure was entered. The limitation on the class was based upon this Court’s determination that different issues confronted those plaintiffs whose land was lost in foreclosure, as opposed to those plaintiffs who saved their land by virtue of actually paying the fraudulent claims. This Court did not limit the class because the litigation privileges applied to those plaintiffs who lost their property to foreclosure.
3. Was the decision, to limit the class an oversight on the part of the trial court or was it intentional?
The decision to limit the class was not an oversight on the part of this Court. It was an intentional decision, made for the reasons specified in this order of clarification, which had nothing to do with the distinction between a statutory violation and a common-law tort claim.

In the circumstances, I fully agree with my colleagues that the supreme court’s remand requires no different result at this juncture. But I write to suggest that it is still open to the parties to seek certification of subclasses in the trial court, if they or either of them deems it appropriate.


text:
    Michael FLOWERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3328.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2007.
    Michael Flowers, pro se, Petitioner.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Michael Flowers petitions this court for relief on a theory of ineffective assistance of appellate counsel. His direct appeal to this court from judgment and sentence of the Circuit Court for Duval County resulted in an affirmance. Flowers v. State, 951 So.2d 883 (Fla. 1st DCA 2007). For the reasons set forth below, we grant the petition in part, deny it in part, and order commencement of a new appellate proceeding.

Petitioner first claims that his sentence was illegal under the holding of Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005). Appellate counsel, according to petitioner, should have preserved the issue by filing a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and, if that motion was denied, raised the issue-on appeal. This theory of ineffective assistance of appellate counsel has been recognized by this court. Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005). Although we refrain from here concluding that the sentence was illegal because the issue must be first addressed by the trial court, there does appear to be a reasonable probability that petitioner’s Ya-sin challenge will ultimately result in a more favorable sentence.

Petitioner’s second claim is that a hearing conducted pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) was legally insufficient and that he was prejudiced because he eventually represented himself at trial when he should have been appointed alternate counsel. He argues that his appellate counsel was ineffective in failing to order a transcript of the Nelson hearing. This, too, is a recognized theory which may result in relief in some circumstances. Martone v. State, 867 So.2d 510 (Fla. 4th DCA 2004).

We find petitioner’s other two claims to be without merit and deny the petition as to them without discussion.

The petition is granted in part and we order commencement of a new appellate proceeding. Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007). A copy of this opinion will be provided to the clerk of the circuit court upon issuance of mandate, who shall treat it as a timely notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. The resulting new appellate proceeding before this court shall be limited to. the two issues described above.

PETITION GRANTED IN PART AND DENIED IN PART.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.