author: TAYLOR, J.

text:
    Gerri Lynn FIHE, individually, as Personal Representative of the Estate of John Fihe, and as parent and next friend of Erin Elizabeth Fihe and John Christopher Fihe, minor children, Julie Louise Jamieson and Brian Scott Jamieson, Appellants, v. REXALL SUNDOWN, INC., a Florida corporation, d/b/a Richardson Labs, Inc., RS Oldco, Inc., NBTY, Inc., Nutrition USA, Inc., Meijer, Meijer Companies, Ltd., and Meijer Distribution, Inc., Appellees.
    Nos. 4D06-100, 4D06-154.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Rehearing Denied Nov. 7, 2007.

      Thomas F. Gonzalez of Beggs & Lane, Pensacola, for Appellants-Julie Louise Ja-mieson and Brian Scott Jamieson, and Douglass A. Kreis of Aylstock, Witkin <& Sasser, PLC, Pensacola, for Appellant-Gerri Lynn Fihe.
    Steven J. Rothman of Jones Foster Johnston & Stubbs, P.A., West Palm Beach, and Ulmer & Berne LLP, Cincinnati, OH, for appellees.
   TAYLOR, J.

In these consolidated appeals, the Fihe and Jamieson plaintiffs challenge trial court orders which dismissed their wrongful death and personal injury actions on grounds of forum non conveniens. We reverse dismissal of the Fihe case because the defendants’ motion to dismiss, brought outside the sixty-day limitation in Rule 1.061(g), was untimely as to that case. We affirm dismissal of the Jamieson case because the trial court did not abuse its discretion in finding that dismissal for forum non conveniens was appropriate when applying the Kinney factors.

On May 30, 2003, Gerri Lynn Fihe, individually and as personal representative of the Estate of John Fihe, sued Rexall Sundown, Inc. in Palm Beach County, Florida. The complaint alleged that the decedent’s sudden cardiac death was caused by his regular consumption of the dietary supplement Metab-O-LITE, an ephedra-contain-ing product manufactured by defendant. John Fihe died in or near Louisville, Kentucky. The complaint alleged strict liability, defective design and failure to warn, breach of express and implied warranties, negligence, deceit/fraud by concealment and suppression, violation of Florida’s Deceptive and Unfair Trade Practices Act, and wrongful death.

On August 18, 2004, Julie Louise Jamieson and Brian Scott Jamieson sued Rexall Sundown, d/b/a Richardson Labs, RS Oldco, Inc., NBTY, Inc., Nutrition USA, Inc., Meijer, Meijer Companies, Ltd., and Meijer Distribution, Inc., in a seven-count complaint, alleging strict products liability, negligence, and fraud. The complaint alleged that Julie Jamieson suffered a stroke as the result of taking Metab-O-LITE. She resided in Macomb, Michigan and purchased the product from a Meijer store located there.

On October 20, 2004, the defendants timely moved to dismiss the Jamieson action based on forum non conveniens.

On September 1, 2004, more than a year after the case was filed, Rexall moved for an enlargement of time to file a motion to dismiss based on forum non conveniens grounds in the Fihe case. Rexall never actually set a hearing on the motion; it urged the court to dismiss the case “sua sponte.”

Rexall Sundown, Inc. n/k/a RS Oldco, Inc. (Rexall) is the Florida corporation which manufactured Metab-O-LITE. Richardson Labs, Inc., n/k/a RL Oldco, Inc. (Richardson), a wholly-owned subsidiary of Rexall, distributed the product. The product was originally formulated in Boca Raton, Florida prior to 1999. The substance was then marketed between August 1999 and April 30, 2003. During that time, Rexall’s principal place of business was at 6111 Broken Sound Parkway NW, Boca Raton, Florida. A comprehensive review of the relevant scientific literature was carried out by Rexall in Boca Raton, Florida. Before its discontinuance, the product was exclusively manufactured at Rexall’s manufacturing facility in Boca Raton. "The product was packaged at a Rexall facility in Broward County. Rexall distributed the product throughout the United States from distribution facilities in Boca Raton, Florida, as well as in Pennsylvania and Nevada. Advertising for the product was created by Rexall employees in Boca Raton, who worked in conjunction with a New York advertising agency. The label on the Metab-O-LITE bottle stated that it was “distributed by Richardson Labs, Inc., Boca Raton, Florida.”

After the Fihe suit was filed, Rexall changed its name to RS Oldco, Inc., and purportedly transferred its Metab-O-LITE liabilities to another company, Nutrition USA, Inc. Rexall claims that there is now a “new” Rexall Sundown, Inc., which continues to maintain Rexall’s old offices at 6111 Broken Sound Parkway, Boca Raton but has a new principal place of business in Bohemia, New York as a result of new ownership of the company’s stock.

Rexall asserts that its former employees are located throughout the country, but it does not. specify where they have moved. Ray Stadnick, Rexall’s Vice-President of Quality, has remained with the “new” Rex-all here in Florida. He has not yet been deposed. Debbie DeSantis, former Vice-President of Product Development, is another Florida resident; she has given at least a partial videotaped deposition in the consolidated ephedra proceedings captioned In re: Ephedra Products Liability, Multi-District Litigation (MDL) 1598, S.D.N.Y. (which was cross-noticed in many state cases, although apparently not in these). Richard Webber, who resigned as the company’s general counsel in July 2003, resides in Boca Raton. Geary Cotton, Rexall’s Chief Financial Officer, who resigned in September 2001, resides in Broward County. Damon DeSantis, who resigned as Chief Executive Officer in September 2001, resides in Broward County. Rexall admits that all of its former corporate officers listed in its annual filings with the State of Florida still reside in Florida.

In his affidavit, Fihe’s counsel, Douglass A. Kreis, Esq., stated that he had identified six Rexall executives, all located in Florida, who have critical information:

1. Richard Webber, General Counsel during the relevant time-frame.
2. Geary Cotton, CFO during the relevant time-frame.
3. Damon DeSantis, CFO during the relevant time-frame.
4. Carl DeSantis, Chairman of the Board during the relevant time-frame.
5. Stanley Leedy, a member of the Board of Directors during the relevant time-frame.
6. Christian Nast, Vice-Chairman of the Board during the relevant time-frame.

Rexall asserts that all documents pertaining to Rexall’s manufacture and sale of Metab-O-LITE have been copied to CD-ROM and can be produced anywhere.

Rexall’s affidavit in support of its motion to dismiss for forum non conveniens broadly asserts that the plaintiffs documents, fact witnesses, treating physicians and party witnesses relevant to the sale, purchase, and use of the products “will likely be located outside Florida.” In addition to the affidavits of counsel and answers to requests for admissions, the trial court considered plaintiffs interrogatory answers, which showed that their medical providers were located in their home jurisdictions and that certain family members might be witnesses.

The trial court entered an order dismissing the Fihe case for forum non conve-niens. In the order, the trial court stated that it had the discretion to consider the forum non conveniens issue more than sixty days after the complaint was filed. The trial court then found that the private interests were not at equipoise but favored transferring the cases to the plaintiffs’ home states, where unnamed fact witnesses and medical records were located. The trial court also relied on Rexall’s representation that it would produce its former employees for depositions in the foreign forums. The court further relied on Rexall’s representations that it had placed all of its Metab-O-LITE-related documents onto CD-ROM for production. The court concluded that, overall, the foreign forums were much more convenient. Alternatively, it found that even if the private interests were near equipoise, the public interest favored transfer because the law of the plaintiffs’ domiciles would control because there was no “current” nexus between the defendants and the forum and the case would be a burden to the Palm Beach County judicial system.

A similar order was entered dismissing the Jamieson case.

Fihe

The trial court lacks any discretion in the interpretation, as opposed to the application, of the Florida Rules of Civil Procedure. Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, 884 So.2d 1087, 1093 (Fla. 4th DCA 2004). Rule 1.061(g) provides that a motion to dismiss for forum non conveniens “shall be served not later than 60 days after service of process on the moving party.” We have strictly enforced this limitation, repeatedly reversing trial court attempts to grant untimely forum non conveniens motions. See Phillips v. Am. Optical Corp., 914 So.2d 527, 528 (Fla. 4th DCA 2005); Bosarge v. Am. Optical Corp., 913 So.2d 1265, 1266-67 (Fla. 4th DCA 2005); Sanders v. Union Carbide Corp., 911 So.2d 1256 (Fla. 4th DCA 2005); Fox v. Union Carbide Corp., 910 So.2d 422, 424 (Fla. 4th DCA 2005).

The third district has recently held that a trial court has the discretion to enlarge the sixty-day time period, but “only” when the failure to act was the result of excusable neglect. Dawson Ins., Inc. v. Quantum Capital Network, LLC, 923 So.2d 1194, 1195 (Fla. 3d DCA 2006). Rexall admitted at the hearing that its failure to act within sixty days in the Fihe case was not the result of excusable neglect. Rather, Rexall relies on the third district’s earlier decision in Verysell-Holding LLC v. Tsukanov, 866 So.2d 114, 115 (Fla. 3d DCA 2004). There, the defendant filed an untimely motion to dismiss, but contended that the trial court had the inherent power to dismiss the case sua sponte even after the expiration of the sixty days. The third district accepted this argument. We disagree with this holding in Verysell-Holding. “Sua sponte ” is defined as, “[o]f his ... own will or motion; voluntarily; without prompting or suggestion.” Black’s Law DictionaRY 1424 (6th ed. 1990). Once -a defendant moves, suggests, or even hints that the case should be dismissed for forum non conveniens, the trial court can no longer act sua sponte. To do so would eviscerate the rule’s sixty-day time limit. We therefore reverse dismissal of the Fihe case.

Jamieson

A trial court’s decision on a forum non conveniens issue is reviewed for an abuse of discretion. Corinthian Colleges, Inc. v. Philadelphia Indem. Ins. Co., 922 So.2d 1077, 1079 (Fla. 4th DCA 2006).

In Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996), Florida largely adopted federal forum non conve-niens principles. The Florida Supreme Court codified this approach in Florida Rule of Civil Procedure 1.061, which provides as grounds for- dismissal:

An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum-exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

Fla. R. Civ. P. 1.061(a) (2005). In. this case, only factors two and three are at issue.

The second prong of the Kinney analysis weighs the private interests, taking into account the presumption in favor of the plaintiffs choice of forum. The private interest factors are: 1) adequate access to evidence and relevant sites; 2) adequate access to witnesses; 3) adequate enforcement of judgments; and 4) the practicalities and expenses associated with the litigation. Kinney, 674 So.2d at 91. In this case, enforcement of judgments is not an issue; nor is there any relevant site to be viewed. Essentially then, the private interest issue concerns the availability of evidence.

The liability evidence in this case appears to be mostly in Florida, where the product was researched, designed, manufactured and marketed. While strict liability (i.e., defectiveness) can probably be established through experts alone, the plaintiffs have also put forward negligence, fraud, and unfair trade practices theories, which will require close examination of Rexall’s top executives, most of whom still reside in South Florida. Causation will be a matter of expert proof, though the plaintiffs’ medical records will also be relevant. Damages evidence will be in the foreign forums.

The trial court appears to have placed great reliance on Rexall’s offer to produce its witnesses for depositions elsewhere. However, these witnesses are allegedly former employees, and a corporate defendant should not be able to tip the “forum shopping/reverse forum shopping” scales by such offers or by its assurance that it has placed all of its documents on CD-ROM.

The third step of the Kinney analysis comes into play “only if, in weighing the opposing parties’ private, interest factors, the trial court finds them to be at or near equipoise, after taking into account the presumption favoring the plaintiffs choice of forum.” Kinney, 674 So.2d at 91. We have interpreted this to mean that, unless a court finds the private interest factors are “overwhelming” in one party’s favor, the court must then consider the public interest factors. Banco Inversion, S.A. v. Celtic Fin. Corp., S.A., 907 So.2d 704, 710 (Fla. 4th DCA 2005).

Although the trial court did not describe the private interest factors as overwhelming, it specifically found that they were not at equipoise, thus justifying dismissal. The most analogous case we have found on this point is Wright v. Aventis Pasteur, Inc., 905 A.2d 544 (Pa.Super.Ct.2006), appeal denied, 591 Pa. 674, 916 A.2d 1103 (2007). There, the court reversed a trial court dismissal in a drug case involving a foreign plaintiff on similar facts. See also In re: VIOXX Litig., No. 619, 2006 WL 2950622 (N.J.Super. Ct. Law Div. Oct. 2, 2006), aff'd, 395 N.J.Super. 358, 928 A.2d 935 (2007) (discussing New Jersey’s acceptance of thousands of Vioxx cases involving American citizens from others states). These cases support the view that, at worst, the instant case was one where the private interests were at equipoise. Because the private interests in favor of the foreign forums were not overwhelming, the trial court was required to consider the public interests.

Turning then to the public interest factors, we note that “[i]n broad terms, the inquiry focuses on ‘whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it.’ ” Kinney, 674 So.2d at 92 (quoting Pain v. United Techs. Corp., 637 F.2d 775, 791 (D.C.Cir.1980)). Kinney “summarized the underlying rationale of this inquiry” by quoting from Pain:

Three principles may be derived from the list of public interest factors enunciated in [Gulf Oil Corp. v.] Gilbert [330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ]: first, that courts may validly protect their dockets from cases which arise within their jurisdiction, but which lack significant connection to it; second, that courts may legitimately encourage trial of controversies in the localities in which they arise; and third, that a court may validly consider its familiarity with governing law when deciding whether or not to retain jurisdiction over a case. Thus, even when, the private conveniences of the litigants are nearly in balance, a trial court has discretion to grant forum non conveniens dismissal upon finding that retention of jurisdiction would be unduly burdensome to the community, that there is little or no public interest in the dispute, or that foreign law will predominate if jurisdiction is retained.

Kinney, 674 So.2d at 92 (quoting Pain, 637 F.2d at 791-92 (footnotes omitted)). While this quote from Pain states the public interest grounds for dismissal in the disjunctive (“or”), Kinney clarifies that in Florida these factors are to be balanced and will only support dismissal if, on balance, all of the public interest factors strongly favor dismissal:

As a corollary, if the public interest factors themselves are at or near equipoise, then the third step of the inquiry will provide no basis for defeating the presumption favoring plaintiffs choice of forum.

Kinney, 674 So.2d at 92.

The trial court opined that Rexall’s nexus with the forum was not strong enough to justify the expenditure of local judicial resources. The United States Supreme Court’s decision in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), supports that argument. That case was a wrongful death action stemming from an airline crash in-Scotland. The Scottish plaintiff brought a products liability action against a Pennsylvania plane manufacturer and an Ohio propeller manufacturer in a California state court. The action was then removed to a federal court, which then transferred the action to the federal court in Pennsylvania. The federal district court in Pennsylvania dismissed on forum non conveniens grounds'-in favor of the action proceeding in Scotland. The Third Circuit reversed, but the Supreme Court granted certiorari and reinstated the district court’s dismissal.

In assessing the public interest, the Supreme Court found Scotland’s interest in the accident paramount and rejected the plaintiffs argument regarding America’s interest in the litigation:

However, the incremental deterrence that would be gained if this trial were held in an American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.

Id. at 260-61, 102 S.Ct. 252; see also Dowling v. Richardson-Merrell, Inc., 727 F.2d 608 (6th Cir.1984); Harrison v. Wyeth Labs. Div. of Am. Home Prods. Corp., 510 F.Supp. 1 (E.D.Pa.1980); Engstrom v. Bayer Corp., 855 A.2d 52 (Pa.Super.Ct.2004), appeal denied, 585 Pa. 690, 887 A.2d 1242 (2005). However, there is much contrary authority. See Reid-Walen v. Hansen, 933 F.2d 1390, 1400 (8th Cir. 1991) (reversing trial court’s holding that ease would be an undue burden on local community, and holding that “defendant’s home forum always has a strong interest in providing a forum for redress of injuries caused by its citizens”); Lacey v. Cessna Aircraft Co., 862 F.2d 38, 48 (3d Cir.1988) (holding that where Pennsylvania may be the locus of the alleged culpable conduct it has at least some interest in deterring the manufacture of unsafe products within its border); Dorman v. Emerson Elec. Co., 789 F.Supp. 296, 297-98 (E.D.Mo.1992) (holding that defendant’s home forum had a strong interest in providing forum for redress of injuries caused by- its citizens, whereas a simple tort suit is generally not of broad public interest in plaintiffs home forum); Chan Tse Ming v. Cordis Corp., 704 F.Supp. 217, 219 (S.D.Fla.1989) (holding that since pacemaker’s manufacture, development and testing occurred in Florida, that jurisdiction “certainly” had a significant interest in the outcome of the litigation); Carlenstolpe v. Merck & Co., 638 F.Supp. 901, 909 (S.D.N.Y.1986) (finding that “where an allegedly defective drug has been developed, tested and manufactured in the United States, and is being distributed to and presumably used by American citizens, including citizens of the forum, the forum’s interest in litigating the controversy is at least equal to that of the foreign citizen’s home forum”); Wright, 905 A.2d at 551 (reversing trial court’s holding that the people of Pennsylvania had no interest in the case since several of the defendant drug companies make critical manufacturing and marketing decisions there); Margaret G. Stewart, Forum Non Conveniens: A Doctrine in Search of a Role, 74 Cal. L.Rev. 1259, 1284 (1986) (arguing that if the defendant is a citizen of the forum it is not “disinterested,” and it is not unfair to impose on that forum the economic burden of litigating the claims).

Piper also held that Scotland had a “very strong interest” in litigating the claim because the air crash occurred there and most of the parties were Scottish or English. 454 U.S. at 260, 102 S.Ct. 252. It is less than clear that this interest outweighs the interest of the defendant’s home forum, where the culpable conduct allegedly occurred. See Stewart, supra, at 1322-23 (“Given the fact that the plaintiff, generally a citizen or subject of the other sovereign, chose to litigate elsewhere, the only competing interest not served by use of foreign substantive law — the political interest in resolving a local dispute locally — should not suffice to sustain dismissal.”).

Piper found that the American interest there did not justify “the enormous commitment of judicial time and resources” which would be involved in that single wrongful death action. 454 U.S. at 261, 102 S.Ct. 252. By contrast, New Jersey apparently found that it was not unduly burdensome to accept thousands of Vioxx cases involving plaintiffs from other American jurisdictions. In Re VIOXX, 2006 WL 2950622. Here, the trial court was considering only a handful of Metab-O-LITE cases, and the statute of limitations had nearly run.

Although the Piper decision does have the virtue of dividing the labor among jurisdictions in mass tort cases, an argument could be made that this is actually a duplication of effort, and that such cases are more efficiently handled in a single court. Moreover, a relatively liberal interpretation may have the effect of placing Florida businesses at a competitive disadvantage. See Stangvik v. Shiley Inc., 54 Cal.3d 744, 1 Cal.Rptr.2d 556, 819 P.2d 14, 24 (1991). A multi-national drug company, for example, in choosing to locate or relocate, might prefer another jurisdiction with more conservative forum non conve-niens rules, which might significantly lessen their worldwide tort exposure.

Finally, in assessing the public interest balance, courts must consider the “choice of law” factor. The plaintiffs have conceded that Michigan law will apply. Though this is a factor in the balance, there has been no showing that Michigan products liability laws are unique or difficult to understand. See Corinthian Colleges, Inc., 922 So.2d at 1081 (noting that both forums are equally familiar with duty to defend law); Wright, 905 A.2d at 551 (“[Tjhere is no basis upon which to conclude that the law determined to be applicable is beyond the ken of a Philadelphia trial judge.”). This is not a case where foreign law is in a different language or is not descended from the common law tradition of Great Britain. See Reid-Walen, 933 F.2d at 1401 (discussing ease of application of Jamaican law).

In sum, based on Piper, a reasonable person could conclude that the fact that plaintiffs reside in Michigan and foreign law will apply significantly outweighs' the fact that this is the defendant’s home forum, where the culpable conduct allegedly occurred. Thus, the public interest factor arguably supports dismissal. Accordingly, we defer to the trial court’s conclusion and affirm dismissal of the Jamieson case.

Affirmed in part, reversed in part.

SHAHOOD, C.J., and GROSS, J„ concur.

      . See Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86 (Fla.1996).

      . We note that we followed Verysell-Holding in Valdivia v. Prestige Cruises, N.V., 898 So.2d 271, 272 (Fla. 4th DCA), review denied, 917 So.2d 196 (Fla.2005). However, the facts are not fully set out in Valdivia. Because there is no mention of an untimely motion or suggestion by the defendant in Valdivia, the trial court there may indeed have been acting sua sponte. In any event, we follow the more recent decisions in Phillips, Bosarge, Sanders and Fox, which have strictly applied the sixty-day time limit.


source: Caselaw Access Project

author: GRAHAM, R., Associate Judge.

license: Public Domain

text:
    PHANTOM OF BREVARD, INC., Appellant, v. BREVARD COUNTY, Appellee.
    No. 5D06-3408.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Rehearing Denied Oct. 18, 2007.

      Mark D. Shuman, of GrayRobinson, P.A., Melbourne, for Appellant.
    Scott L. Knox, of Office of the County Attorney, Viera, for Appellee.
   GRAHAM, R., Associate Judge.

The appellant, Phantom of Brevard, Inc., appeals from a final summary judgment entered in favor of Brevard County in this declaratory judgment action. We affirm in part, reverse in part, and remand.

In the court below, Phantom sought a judgment declaring Brevard County Ordinance 05-60, as amended by Brevard County Ordinance 06-18, to be unconstitutional. Among other things, Ordinance 05-60 regulates the supply, sale, and use of fireworks and sparklers; imposes record-keeping requirements on retailers; and establishes application and permitting processes to regulate any public display of fireworks within the county. On appeal, Phantom contends, as it did below, that fireworks regulation has been preempted to the state. Chapter 791, Florida Statutes, governs the manufacture, distribution, storage, sale and use of fireworks. Chapter 791 also provides definitions to distinguish between lawful “sparklers” and unlawful “fireworks,” authorizes the state fire marshal to approve specific sparklers for use, and sets out exemptions for specific groups of fireworks users. Moreover, chapter 791 contemplates that local governments will issue fireworks-related permits and enforce state laws and rules:

This chapter shall be applied uniformly throughout the state. Enforcement of this chapter shall remain with local law enforcement departments and officials charged with the enforcement of the laws of the state.

§ 791.001, Fla. Stat. (2006).

The outdoor display of fireworks in this state shall be governed by the National Fire Protection Association (NFPA) 1123, Code for Fireworks Display, 1995 Edition, approved by the American National Standards Institute. Any state, county, or municipal law, rule, or ordinance may provide for more stringent regulations for the outdoor display of fireworks, but in no event may any such law, rule, or ordinance provide for less stringent regulations for the outdoor display of fireworks.

§ 791.012, Fla. Stat. (2006).

Except as hereinafter provided it is unlawful for any person, firm, copartnership, or corporation to offer for sale, expose for sale, sell at retail, or use or explode any fireworks; provided that the board of county commissioners shall have power to adopt reasonable rules and regulations for the granting of permits for supervised public display of fireworks by fair associations, amusement parks, and other organizations or groups of individuals when such public display.is to take place outside of any municipality; provided, further, that the governing body of any municipality shall have power to adopt reasonable rules and regulations for the granting of permits for supervised public display of fireworks within the boundaries of any municipality.

§ 791.02, Fla. Stat. (2006).

The board of county commissioners shall require a bond deemed adequate by the board of county commissioners from the licensee in a sum not less than $500 conditioned for the payment of all damages which may be caused either to a person or to property by reason of the licensee’s display, and arising from any acts of the licensee, his or her agents, employees or subcontractors.

§ 791.03, Fla. Stat. (2006).

Each sheriff, or his or her appointee, or any other police officer, shall seize, take, remove or cause to be removed at the expense of the owner, all stocks of fireworks or combustibles offered or exposed for sale, stored, or held in violation of this chapter.

§ 791.05, Fla. Stat. (2006).

In Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011 (Fla. 2d DCA 2005), the second district court addressed whether chapter 791 preempted a Pinellas County fireworks ordinance that is similar to the Brevard County ordinance that Phantom challenges in this case. After comprehensively examining the Pinellas ordinance and chapter 791, the court held that chapter 791 does not expressly or impliedly preempt the field of fireworks regulation. 894 So.2d at 1018-20. The court found “no pervasive scheme of regulation and no strong public policy reason that would prevent a local government from enacting ordinances in this area so long as they do not directly conflict with the provisions of chapter 791.” Id. at 1020. The court determined that the sections of the Pinellas ordinance regarding storage and sale of sparklers, creation and maintenance of business records, and the permitting process required of sellers (and wholesalers in particular) do not directly conflict with the corresponding provisions of chapter 791. Id. at 1022-23. The court identified one penalty in the Pinellas ordinance that conflicted with state law, held that it was severable from the ordinance, and reversed and remanded on this limited basis. Id. at 1021.

Brevard County Ordinance 05-60, as amended by Brevard County Ordinance 06-18, contains language that is substantially identical to the language of the Pinellas County Ordinance. The Brevard ordinance, however, is different in several material respects. Section 6 of Ordinance 05-60 requires “[ejvery vendor of fireworks or sparklers” to provide a receipt to each customer. Section 7 states that “[a]ny device permitted by this ordinance shall have printed in English on the label or container thereof the total weight of combustible substance, the name of the chemical composition and a brief statement describing its action when ignited.” Section 8 purports to impose strict liability “upon vendors, distributors and manufacturers” of fireworks and sparklers, which “shall be deemed ultra-hazardous and dangerous products.” Section 12 sets forth application requirements and the permit process that a sponsor of a public display of fireworks must follow. Section 13 prohibits the use, storage or explosion of fireworks unless:

(a) The person or entity first obtains an appropriate county permit for the public display of fireworks or pyrotechnics in accordance with this ordinance; or
(b) The use is by a railroad or other transportation agency for illumination or signal purposes or the use is associated with quarrying, blasting, or another industrial purpose in accordance with F.S. Section 791.04; or
' (3) [sic] The use [is] in conjunction with a bona fide agricultural use, as provided in F.S. Section 791.07 and the applicable provision of the Florida Administrative Code.

Finally, Ordinance 06-18 defines the “ceremonial” use of fireworks, for which a statutory exemption exists. “Ceremonial” is not defined in chapter 791.

On appeal, Phantom maintains that Bre-vard County Ordinance 05-60, as amended by Brevard County Ordinance 06-18, violates Article VIII, Section 1(g) of the Florida Constitution, which provides that “[t]he governing body of-a county operating under a charter may enact county ordinances not inconsistent with general law.” Although the ordinance contains a sever-ability clause, Phantom seeks a judicial determination that the entire ordinance is unconstitutional.

Brevard County enjoys broad constitutional authority to enact ordinances under its home rule charter. Art. VTII, § 1(g), Fla. Const. A county may legislate concurrently with the legislature on any subject that has not been preempted to the state. Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831-32 (Fla. 1st DCA 1996). “Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature.” Phantom of Clearwater, Inc., 894 So.2d at 1018. Florida law recognizes two types of preemption: express or implied. See Santa Rosa County v. Gulf Power Co., 635 So.2d 96, 101 (Fla. 1st DCA 1994). For the legislature to expressly preempt an area, the preemption language of the statute must be specific; “express preemption cannot be implied or inferred.” Hillsborough County v. Fla. Rest. Ass’n, 603 So.2d 587, 590 (Fla. 2d DCA 1992). However, “[t]he preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989). Hence, although implied preemption is disfavored, see Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1035 (Fla.2001), it has been found to exist “in cases where the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature.” Tallahassee Mem’l Reg’l Med. Ctr., 681 So.2d at 831 (citing Tribune Co. v. Cannella, 458 So.2d 1075 (Fla.1984); Fla. Rest. Ass’n, 603 So.2d 587 (Fla. 2d DCA 1992)).

In support of its preemption argument, Phantom points out that chapter 791 begins with a legislative directive that “[t]his chapter shall be applied uniformly throughout the state.” § 791.001, Fla. Stat. (2006). The parties dispute the meaning and import of this language. In any event, the language is insufficient to support Phantom’s argument that fireworks regulation is expressly preempted to the state. If the legislature intended to expressly preempt local regulation of fireworks, then the statute is inartfully drafted and ineffective.

As to implied preemption, Phantom urges this Court to consider the legislative history behind chapter 791, which the Phantom of Clearwater court did not consider. According to Phantom, the legislative history supports a conclusion that the legislature intended to preempt the field of fireworks regulation, thereby preventing local governments from enacting more stringent rules than those set forth in chapter 791. The legislative history cited by Phantom, however, does not shed any light on the central issue in this case: whether local governments retain the authority to develop rules to advance their enforcement obligations under chapter 791. Phantom does not challenge the County’s position that its ordinance establishes the procedures and proof necessary to benefit from a statutory exemption, such as the use of-fireworks to frighten birds from agricultural works or fish hatcheries. Nor can it- be disputed that the County is obligated to inhibit illegal uses of fireworks and to allow legal uses.

Neither, chapter 791 nor the corresponding legislative history creates any distinct line to neatly separate enforcement from regulation. If the legislature intended to prevent local governments from regulating fireworks transactions and uses, while at the same time charging local governments with an obligation to enforce state laws, then the legislature has not made its preemptive purpose clear. Local governments, therefore, are free to exercise their lawmaking powers for the purpose of facilitating enforcement, so long as the local ordinance is “not inconsistent with general law,” as prohibited by Article VIII, Section 1(g) of the Florida Constitution. Likewise, the legislature is free to amend chapter 791 to instruct local governments that fireworks regulation is preempted to the state, and the role of local government is to enforce only those rules that the state has created or may create.

For these reasons, we conclude that chapter 791 does not expressly or impliedly preempt the field of fireworks regulation. Accordingly, we affirm, in part, the Final Summary Judgment entered below. However, for the reasons expressed below, we reverse in part and remand with instructions for the circuit court to apply the severability clause of Ordinance 05-60 to invalidate Sections 8, 10 and 13 of the ordinance. In addition, the circuit court will have an opportunity on remand to determine whether Section 7 should be severed from the Ordinance.

Section 7 states that “[a]ny device permitted by this ordinance shall have printed in English on the label or container thereof the total weight of combustible substance, the name of the chemical composition and a brief statement describing its action when ignited.” The provision is puzzling because, if the device in question is permitted for use, then the County has no readily apparent basis for requiring such information to be printed. On remand, the circuit court shall have an opportunity to determine whether Section 7 is valid because it facilitates the County’s enforcement of fireworks law and rules, or whether it is invalid.

Section 8, which deems fireworks and sparklers to be “ultra-hazardous and dangerous products,” invades the exclusive province of the state legislature and judiciary because it purports to impose strict liability upon “vendors, distributors and manufacturers” of fireworks and sparklers. On remand, the circuit court shall sever Section 8, entitled “Designation as dangerous products,” from the Ordinance.

Section 10, entitled “Evidence of financial responsibility,” provides:

In furtherance of the provisions of sections 8 and 9, all sellers of fireworks must keep in force an insurance policy showing general, comprehensive, liability and property damage insurance coverage on an occurrence basis with minimum limits in the policy of not less than $1,000,000.00 combined single limit coverage for each loss that may result from the activities of the sellers. Sellers must maintain Workers’ Compensation coverage as required pursuant to F.S. Ch. 440. A failure to maintain this required coverage after the procurement of a permit shall be a violation of this ordinance and grounds for suspension of their permit from the authority and the sale of the permitted goods shall cease until such time as the required insurance is obtained.

Upon considering substantially similar language in the Pinellas County ordinance, the Phantom of Clearwater court determined that a county may, as part of its permitting process, demand proof of the seller’s ability to respond in damages. 894 So.2d at 1023. We disagree. Brevard County’s financial responsibility ordinance is in direct conflict with section 791.001, Florida Statutes, which provides that chapter 791 “shall be applied uniformly throughout the state.” Because chapter 791 does not contain any financial responsibility standard or requirement, retailers and other supply-side entities are subject to potentially disparate obligations throughout the state. Although the legislature has provided counties with considerable discretion to determine the amount of a bond required of a fireworks display licensee under section 791.03, there is no reason to believe that the legislature would have countenanced a system in which a seller of fireworks or sparklers must maintain a particular amount of liability insurance simply because one of the counties in which it does business requires such coverage. On remand, therefore, the circuit court shall sever Section 10, entitled “Evidence of financial responsibility,” from the Ordinance. Sellers must continue to comply with the state’s workers’ compensation code.

Section 13 of the Ordinance violates Article VIII, Section 1(g) of the Florida Constitution, which prohibits local ordinances that are inconsistent with general law. Because it fails to account for permissible uses of fireworks, including ceremonial and military uses, Section 13 is an incomplete statement of Florida law, and is therefore inconsistent with the provisions of chapter 791. On remand, the circuit court shall sever Section 13, entitled “Use of fireworks,” from the Ordinance.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . Through Ordinance 06-18, the Board of County Commissioners of Brevard County amended Ordinance 05-60 to, among other things, remove the penalty language which the Phantom of Clearwater court determined was in direct conflict with the provisions of chapter 791.


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

text:
    Jose A. COLLAZO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4762.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Rehearing Denied Nov. 5, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Jose Collazo, appeals from the sentence imposed upon re-sentencing by the trial court as directed by this court in Collazo v. State, 936 So.2d 782 (Fla. 4th DCA 2006) (Collazo I). We reverse for re-sentencing.

Appellant was convicted of third-degree murder with a firearm and the trial court imposed a thirty-year mandatory sentence for a first-degree felony under section 775.087(2), Florida Statutes (2004). In Collazo I, this court determined that the trial court erroneously reclassified appellant’s offense as a first-degree felony under section 775.087(1) and remanded for the trial court to properly classify the conviction as a second-degree felony and to re-sentence appellant based on section 775.087(2)(a)3. This court held:

Notwithstanding that the trial court in this case imposed the thirty year sentence based on the erroneous reclassification of the conviction to a first-degree felony, we recognize that this sentence would have also been appropriate under section 775.087(2)(a)3., as a permissible discretionary sentence between twenty-five years to life. Therefore, on remand, the trial court is not restricted from reimposing a thirty year sentence.

Id. at 784.

Upon re-sentencing, the trial court properly reclassified appellant’s conviction as a second-degree felony and sentenced appellant to thirty years with a mandatory minimum of thirty years. At the hearing, appellant’s counsel objected to this mandatory minimum for a second degree felony under section 775.087, arguing that it could not exceed twenty-five years because the sentence already exceeded the statutory maximum of fifteen years for a second-degree felony. We agree and hereby recede from the above quoted language of this court’s opinion in Collazo I.

Section 775.087, Florida Statutes (2004), provides in pertinent part:

(2)(a)l. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for: a. Murder;
3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such' person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison, (b) Subparagraph (a)l., subparagraph (a)2., or subparagraph (a)3. does not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other apr plicable law. Subparagraph (a)l., sub-paragraph (a)2., or subparagraph (a)3. does.not authorize a court to impose a lesser sentence than otherwise required bylaw.
(c) If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court ‘must include the mandatory minimum term of imprisonment as required in this section.

This court explained the application of section 775.087 in Inmon v. State, 932 So.2d 518 (Fla. 4th DCA 2006), as follows:

Section 775.087 is a comprehensive sentencing enactment on the subject of weapons involved in the commission of felonies and certain resulting enhancements depending on the specific role of the firearm in the offense. The first subdivision addresses the “presence” of a firearm in all felonies. § 775.087(1), Fla. Stat. (2005). It applies to the possession, use, display, threat to use and actual use of a firearm in any felony. Id. If a firearm is present in the commission of any felony, the offense is stepped up a single grade (e.g., a first degree felony becomes a life felony, and so on). Id.
Section 775.087(2), the second subdivision of this statute (the one involved in this case), addresses distinctly different applications of a firearm but only in the commission of several enumerated violent or serious felonies. Subsection (2) has several parts, each subdivided from the others for ease of reference. One of them makes the actual possession of a firearm subject to a minimum mandatory enhancement period of 10 years. § 775.087(2)(a)1, Fla. Stat. (2005). Another makes the actual discharge of the firearm subject to a minimum mandatory enhancement period of 20 years. § 775.087(2)(a)2, Fla. Stat. (2005). Still another makes the actual discharge of a firearm resulting ih death or great bodily harm subject to a minimum mandatory enhancement period of not less than 25 years up to a maximum of life in prison. § 775.087(2)(a)3, Fla. Stat. (2005).
In addition to the specified enhancements, section 775.087(2) makes clear that the imposition of the minimum mandatory provisions does not prevent even longer sentences within the statutory máximums. § 775.087(2)(b), Fla. Stat. (2005). In fact it provides that if the minimum mandatory exceeds the statutory maximum, .then the maximum is thereby increased and the court must impose the minimum mandatory. _

Id. at 519-20.

Appellant’s conviction was based upon his discharge of a firearm which resulted in the victim’s death. He was convicted of a second degree felony and under section 775.082(3)(c), the statutory maximum sentence is fifteen years. Section 775.087(2)(a)3, which is applicable to appellant, subjects him to a minimum mandatory enhancement of twenty-five years to life. However, because the statutory 'maximum applicable to appellant is less than the minimum mandatory of twenty-five years, the court may only impose that minimum mandatory. § 775.087(2)(c), Fla. Stat. (2004).

We reverse and remand for re-sentencing. We recede from that language in Collazo v. State, 936 So.2d 782, 784 (Fla. 4th DCA 2006), which held that the trial court had the discretion to sentence appellant to more than twenty-five years.

Reversed and Remanded for Re-sentencing.

SHAHOOD, C.J., STONE, WARNER, KLEIN, STEVENSON, TAYLOR and HAZOURI, JJ., concur.

MAY, J., concurs specially with opinion, in which GROSS, J., concurs.

FARMER, J., dissents with opinion, in which GUNTHER and POLEN, JJ., concur.

MAY, J.,

concurring specially.

I concur in the en banc decision. I write simply to call attention to what I perceive is an ambiguous provision within section 775.087, Florida Statutes (2006). The statute provides that “offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law.” § 775.087(2)(d) (emphasis added). To that end, subsection (2)(b) provides that sub-paragraphs (a)l., (a)2. and (a)3. do “not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law.” § 775.087(2)(b) (emphasis added). I take from these two provisions that the Legislature intended to allow a court to sentence an offender to the harshest sentence possible when the offender is convicted of an enumerated crime and uses a firearm.

In this case, the defendant was convicted of third degree murder, a second degree felony offense, carrying a maximum penalty of 15 years. § 775.082(3)(c), Fla. Stat. (2006). The jury found that the defendant discharged a firearm in the commission of the offense. Section 775.087(2)(a)3. provides for enhancement of that 15-year maximum sentence “to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” Subsection (2)(c) then provides that “[i]f the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed.” § 775.087(2)(c) (emphasis added).

Does that mean that only the mandatory minimum sentence of 25 years can be imposed or does it mean that any sentence from 25 years to life can be imposed as long as the court imposes the mandatory minimum of 25 years? Was subsection (c) really meant to limit a court to imposing only the lowest mandatory minimum of 25 years rather than imposing a longer sentence (25 years to life) authorized by subsection 2(b)? I think a reasonable reading of the provisions would allow a sentencing court to sentence the defendant anywhere from 25 years to life as long as the mandatory minimum of 25 years is imposed. In short, I find subsection (2)(c) susceptible of more than one meaning, especially in light of the express intent of the legislature.

Here, section 775.087(2)(a)3. authorized a sentence of 25 years to life, thereby exceeding the maximum sentence of 15 years under the Criminal Punishment Code. This required the court to impose the mandatory minimum sentence of 25 years. I’m not sure it-meant to prevent the sentencing court from imposing a sentence greater than 25 years as long as the court imposed the mandatory minimum of 25 years.

The majority reads the sentence literally and thereby limits the enhancement to the lowest of its terms, 25 years. But, I question whether this reading effectuates the stated intent of the legislature to punish the offender to the “fullest extent of the law.” The problem is that either there is no ambiguity and the majority is right or there is an ambiguity and the rule of lenity would require the court to impose the “most lenient version” of the sentence. See § 775.021, Fla. Stat. (2006); see also Glynn v. State, 868 So.2d 1280 (Fla. 4th DCA 2004); Cairl v. State, 883 So.2d 312 (Fla. 2d DCA 2003) (en banc). Either way, the defendant wins. For this reason, I concur.

GROSS, J., concurs.

FARMER, J.,

dissenting.

This sentencing statute is not ambiguous. Its plain text supports the trial court’s imposition of a 30-year mandatory sentence. Nothing in section 775.087(2) or Inmon v. State, 932 So.2d 518 (Fla. 4th DCA 2006), suggests otherwise.

The jury made a finding that defendant discharged a firearm and killed the victim during a robbery. The ordinary penalty for this second-degree felony is 15 years. See § 775.082(3)(c), Fla. Stat. (2005). As the majority opinion indicates, the propriety of the trial court’s mandatory 30-year sentence for a killing by gunshot during a felony turns on the text of two subsections from section 775.087(2). Saving all noncritical verbiage, the pertinent statutory words are:

[ (a)3] the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of.imprisonment of life in prison.
[ (c) ] If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084 ... then the mandatory minimum sentence must be imposed. [e.s.]

§ 775.087, Fla. Stat. (2006). In subsection (a)3 the words not less than 25 years mean that more than 25 years is possible. But the majority limits the mandatory part to not more than 25 years, making the words not less than 25 years and not more than life superfluous.

The majority seem to read into the provision a punctuation mark after the words 25 years. There is no mark at that point; the clause presses on without any break. Then the words not less than 25 years are followed immediately by the conjunction and which is not preceded by a comma, semi-colon or period. If there had been some such punctuation, one might conceivably read the sentence as containing two separate thoughts: (1) a mandatory period of 25 years; (2) discretion to make the total sentence life. As actually written and punctuated, however, the plain meaning is to conjoin not less than 25 years with the words not more than a term of life into a single thought. As thus written, the mandatory period can be anything from life down to 25 years. I see nothing unclear about this — nothing ambiguous— on which to invoke the rule of lenity.

We should not lose sight of the obvious policy behind this provision. The use and discharge of firearms to commit crimes is the most grievous of all sins against the peace of civil society. In fact, civil society was- created to protect its members from such violence. While all killing is bad, there is a sinister facet about killing with guns.

Without guns, killing would require a good deal more direct physical effort and close-in involvement. Take just a moment to imagine personally choking, knifing or beating someone to death. The killer must directly confront the victim while fending off his efforts to defend himself. The killer must actually lay hands on the victim and not stop or let go until life is gone.

Now think of shooting someone. Many guns can be fired from a great distance— in fact some from so far away the shooter is not even able to make out the features on his victim’s face. With guns killing is possible from a great remove and in secret, eliminating any attempt at self-defense. Guns make killing immensely easier. Guns make killing far less direct and personal. Because most humans are incapable of choking, knifing or beating anyone to death, guns significantly increase the universe of possible killers. Guns make more killings more likely.

As Clint Eastwood said in The Unforgiven, killing is a terrible thing. It takes away from the victims everything they had, everything they would ever have. That distinguishes killing from all other crimes, no matter how appalling another crime may be. There is reason to make killing by gun during a felony qualify for even the most severe penalty. To borrow from still another movie, the statute’s message is “leave the gun take the cannoli” on your way to the crime.

All would-be criminals are now on notice if they choose to bring a gun to their crime and someone dies by its bullet they can expect a terrible fate. They will die a long slow death in prison. Perhaps therein lies deterrence; surely there is punishment. If this defendant ends up with a mandatory period less than life for his crime-related killing by gun, he owes it to the leniency of the sentencing judge.

I would affirm the sentence imposed.

GUNTHER and POLEN, JJ., concur.

      . § 775.087(2), Fla. Stat. (2006).


author: THOMAS, J.

text:
    Robert R. RUFFOLO and Stephany Ruffolo, Appellants, v. PARISH & BOWMAN, INC., a Florida profit corporation, Appellee.
    No. 1D07-978.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2007.
    Rehearing Denied Oct. 16, 2007.

      Bruce P. Anderson of Broad and Cassel, Destín; Jennifer A. Winegardner of Broad and Cassel, Tallahassee, for Appellants.
    D. Michael Chesser and Allison R. Sebastian of Chesser & Barr, P.A., Shalimar, for Appellee.
   THOMAS, J.

Appellants argue that the trial court erred by granting Appellee’s motion for reconsideration and failing to vacate Appellee’s mechanic’s lien pursuant to section 713.21(4), Florida Statutes (2006). We agree; therefore, we reverse and remand with instructions to vacate the lien.

A construction contract was entered into between Appellants and Appellee. Appel-lee later filed a claim of lien alleging that Appellants owed it $190,659.53. Appellants then filed a petition for order to show cause pursuant to section 713.21(4), Florida Statutes (2006), arguing that Appellee’s lien was fraudulent and should be discharged.

On November 8, 2006, the trial court issued a Summons/Order to Show Cause, requiring that Appellee file suit to enforce its lien or show cause within 20 days as to why its lien should not be discharged. At the hearing on November 17, 2006, Appel-lee advised the court that it was prepared to immediately file suit to enforce its lien. The court issued an order stating that Appellee would file suit by November 28, 2006, or its lien would be discharged.

Appellee did not file suit by November 28; instead, it filed a motion for reconsideration on December 6, 2006, arguing that the court erred by finding that it would file suit by November 28, 2006, as it had only advised the court that it would file suit within 20 days of the November 17 hearing. Additionally, Appellee noted that the court’s written order was mailed the day after its deadline to file suit expired.

At the hearing on Appellee’s motion for reconsideration, Appellee’s counsel explained that he was confused because he received the court’s order after its deadline to file suit had expired. He also explained that, although he was ready to file the complaint on November 17, he delayed filing, as he was waiting to hear from his client regarding whether he wished to exercise his right to arbitrate the dispute or proceed to litigation. Counsel informed the court that suit was filed on December 12, 2006.

The trial court granted Appellee’s motion for reconsideration, finding that it conducted a timely show cause hearing and that the confusion caused by its order may have led Appellee to file suit after the November 28 deadline. The trial court discharged its previous order and refused to enter a final judgment discharging Ap-pellee’s lien.

Determining whether the trial court erred by refusing to discharge Appellee’s lien presents a legal question and, as such, is subject to de novo review. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319-20 (Fla.2005).

Section 713.21, Florida Statutes (2006), states:

Discharge of lien.-A lien properly perfected under this chapter may be discharged by any of the following methods:
(4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint therefor by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his or her lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his or her lien should not be enforced or the lienor’s failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.

“The ‘language of [section 713.21(4) ] requires that an action for enforcement be filed within 20 days or that cause be shown within that period why enforcement should not be commenced.’ ” Dracon Constr., Inc. v. Facility Constr. Mgmt., Inc., 828 So.2d 1069, 1070 (Fla. 4th DCA 2002) (quoting Federated Stores Realty, Inc. v. Burnstein, 392 So.2d 573, 574 (Fla. 4th DCA 1980)). When a property owner invokes section 713.21(4), a lienor must strictly comply with section 713.21(4) in order to preserve its lien, and a trial court is without discretion to deviate from the statutorily specified time limits. Sturge v. LCS Dev. Corp., 643 So.2d 53, 55 (Fla. 3d DCA 1994).

Because Appellants invoked section 713.21(4) and the court issued its show cause order on November 8, 2006, Appellee had 20 days from that date in which to either file an action to foreclose its lien or show cause why enforcement should not be commenced. See Goldberger v. United Plumbing & Heating, Inc., 358 So.2d 860, 863 (Fla. 4th DCA 1978). As Appellee failed to do either of these by the end of the 20-day deadline, November 28, 2006, the trial court was required to vacate and cancel its lien, and failure to do so constitutes reversible error. See id.

We reject Appellee’s argument that it showed good cause to avoid the 20-day time limit by its appearance at the November 17 hearing. Although the trial court found that it conducted a timely show cause hearing, it did not find that Appellee showed good cause to avoid the 20-day time limit, nor did it specify the reason Appellee could delay filing an enforcement action.. Section 713.21(4) states that a lien- or must show cause within 20 days in order to avoid the time limit, not that the court must conduct a hearing within 20 days.

Further, it appears that the trial court had no need to extend the 20-day time limit, as Appellee’s counsel stated at the hearing that it was prepared to immediately file suit. Representation of plans to file suit cannot constitute good cause for delay, as it would permit a party to delay indefinitely the filing of its lawsuit, thus defeating the purpose of section 713.21(4). See W.R. Scott v. Premium Dev., Inc., 328 So.2d 557, 559 (Fla. 1st DCA 1976) (recognizing that a lien has a drastic effect on land development; therefore, the legislature provided a quick remedy which affected parties can use to demonstrate a valid lien). While Appellee’s counsel cited confusion over the trial court’s order and waiting to hear from his client as its reasons for delay in filing suit, we conclude that neither of these reasons provide a basis for the trial court to grant its motion for reconsideration and avoid discharging its lien.

Absent informing the court that a lienor has already taken steps to foreclose its lien, rarely does a circumstance rise to the level of “good cause” to avoid the mandatory 20-day time limit. See Goldberger, 358 So.2d at 863 (holding that the trial court improperly discharged a lien when the lienor informed the court that it had already taken steps to foreclose its lien in a separate pending action). Here, Appellee did not inform the court that it had taken steps to enforce its lien within the 20-day period, but instead argued that it had been confused and stated that it filed suit on December 12, long after the 20-day period expired. Similarly, counsel’s failure to communicate with his client cannot constitute good cause. See Krasne-Gold Coast Joint Venture v. Allied Drywall, Inc., 573 So.2d 194, 195 (Fla. 4th DCA 1991) (holding that, based on mandatory language in section 713.21(4), the concepts of excusable neglect and due diligence have no application and fail to provide the grounds upon which a trial court may grant a motion to vacate an order discharging a lien).

Because Appellee failed to either file an action within 20 days of the trial court’s show cause order or show good cause within 20 days why the court should delay the time limit, the trial court had no discretion and was required to vacate and discharge Appellee’s lien. Accordingly, we reverse the trial court’s order granting Appellee’s motion for reconsideration, and remand with instructions to discharge its lien. We note that cancellation of Appellee’s lien does not leave it without a remedy, as it may enforce its contractual claim. Dracon Constr., 828 So.2d at 1071.

REVERSED and REMANDED with instructions consistent with this opinion.

BENTON and HAWKES, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    J. Allen MILLER, Appellant, v. James A. NELMS and Doris S. Nelms, Appellees.
    No. 2D06-3642.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      J. Allen Miller, pro se.
    Edward C. Castagna, Jr., Clearwater, for Appellees.
   NORTHCUTT, Chief Judge.

J. Allen Miller challenges a final order dismissing his complaint against James and Doris Nelms with prejudice. We reverse and remand for further proceedings.

Miller filed a complaint and two amended complaints, all asserting that the Nelmses owed him money for work he performed converting a bus into a mobile video entertainment vehicle. The Nelmses responded to his original complaint with a motion to strike the pleading as a sham. Judge Brandt Downey denied that motion, and instead granted the “Court’s motion to strike for failure to state a cause of action.” It gave Miller leave to file an amended complaint. When Miller did so, the Nelmses moved to dismiss the first amended complaint, claiming that it was untimely, that it failed to state a cause of action, and that Miller “failed to state what work was actually performed by him and the cost associated with such work.” The court granted this motion on the grounds that the amended complaint was not verified and that it failed to state a cause of action. Miller then filed a verified second amended complaint. The Nelmses moved to strike or dismiss with prejudice, citing Florida Rules of Civil Procedure 1.150 and 1.420. Their motion referred to the court’s earlier rulings and contended that the second amended complaint was again untimely filed. The motion also noted that Miller had failed to heed the court’s suggestion that he obtain the assistance of counsel.

The circuit court dismissed the second amended complaint with prejudice on the ground that “the sole basis for Miller’s filing of this lawsuit is to take vindictive action against [the] Nelms[es] in retaliation against them for having filed criminal charges against Miller.” The order continued: “Based on this Court’s review of the court file and particularly the exhibits attached to Miller’s three Complaints, it is this Court’s opinion that Miller’s lawsuit is totally frivolous. Furthermore, it is scandalous, totally without merit and is only brought by Miller in a vindictive nature against [the] Nelms[es].”

At the outset, we note that the dismissal did not appear to be based on any of the assertions in the Nelmses’ motion. That motion was grounded on Miller's failure to follow the court’s previous order concerning the time for filing the second amended complaint and its suggestion that he should retain an attorney if he wished to pursue the suit. We will, however, address the court’s reasons for dismissal so that the errors - will not be repeated on remand.

We first address the circuit court’s, finding that Miller’s lawsuit was “frivolous” and “without merit.” We take these findings to mean that Miller had failed to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). When analyzing a motion to dismiss based on this ground, a court is limited to a consideration of the four corners of the plaintiffs complaint. Carmona v. McKinley, Ittersagen, Gunderson & Berntsson, P.A., 952 So.2d 1273, 1275 (Fla. 2d DCA 2007). In doing so, the court must accept the plaintiffs allegations as true and resolve all inferences in the plaintiffs favor. Wilson v. News-Press Publ’g Co., 738 So.2d 1000, 1001 (Fla. 2d DCA 1999).

Miller claimed damages against the Nelmses based on theories of an oral contract and quantum meruit. We need not recite his allegations in detail. Suffice it to say that we have reviewed his complaint and determined that it meets the general rules for pleading in Florida Rule of Civil Procedure 1.110; that is, it sets forth a basis for jurisdiction, a recitation of facts showing Miller’s entitlement to relief, and a demand for the relief to which Miller believes he is entitled. As such, the dismissal of his complaint for failure to state a cause of action was not warranted.

We turn to the circuit court’s finding that the complaint was “vindictive” and “scandalous.” It would appear from these statements that the court intended to strike Miller’s second amended complaint as a sham pleading, Fla. R. Civ. P. 1.150, or possibly dismiss it as a sanction for fraud on the court, see Howard v. Risch, 959 So.2d 308, 310 (Fla. 2d DCA 2007).

A sham pleading is one that “is palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue.” McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214, 216 (Fla. 2d DCA 1998) (quoting Rhea v. Hackney, 117 Fla. 62, 157 So. 190, 193 (1934)). The Nelmses’ motion asked the court to strike the complaint. But while the motion referenced rule 1.150, it contained no allegations that the second amended complaint was a sham pleading. As such, Miller had no notice of what facts might be presented to support this theory. Additionally, both the original motion to strike and the motion at issue were procedurally defective; neither was verified as required by Florida Rule of Civil Procedure 1.150(b). See Furst v. Blackman, 744 So.2d 1222, 1224 (Fla. 4th DCA 1999). Finally, the court heard no testimony on .the motion. Rule 1.150(a) provides that “the court shall hear the motion, taking evidence of the respective parties.” Like the Furst court, we reject any notion that, absent a stipulation of the parties, the circuit court could rule on a motion to strike a complaint as a sham by merely examining the complaint. See 744 So.2d at 1224. Instead, the court was required to hold a full evidentiary hearing and give both Miller and the Nelmses an opportunity to offer evidence on the issue of whether the complaint alleged a false cause of action. See id.

While a court has the inherent authority to dismiss an action where a fraud has been perpetrated, that is the most severe of sanctions and the court must “carefully adhere to established due process, adversarial practice, and evidentiary rules” when doing so. Tri Star Invs., Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981). If the circuit court’s ruling was based on this ground, Miller was not given due process. None of the Nelmses’ motions sought a dismissal based on fraud on the court, so again, Miller had no notice that such a theory could result in the dismissal of his complaint.

A fraud that warrants dismissal of a complaint arises when it is clearly and convincingly demonstrated “that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Howard, 959 So.2d at 310-11 (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). Before dismissing a case as a fraud on the court, the court must have evidence to support the dismissal. How ard, 959 So.2d at 312 (noting that before a court may dismiss a case for fraud, it must have an evidentiary basis to do so). The court file contained Mr. Nelms’s affidavit filed in support of the original motion to strike the first complaint as a sham. The affidavit merely stated that Miller’s allegations in the original complaint were false, that the work alleged in the complaint had not been performed, and that Miller had provided him with conflicting documents concerning the ownership of the vehicle. Miller’s verified second amended complaint was also of record. It recited that the Nelmses had filed criminal charges against him. But no testimony or other evidence was presented at the hearing resulting in the order on appeal. Neither of these pieces of evidence supports the court’s finding that Miller’s complaint was brought in “a vindictive nature” or was “scandalous.” While the Nelmses’ attorney argued vindictiveness, such argument is not evidence. See State v. Thompson, 852 So.2d 877, 878 (Fla. 2d DCA 2003).

At the hearing the Nelmses’ counsel also pointed out differences between the original complaint and the second amended complaint concerning the attachments that set forth the amounts Miller claimed to be due. The court noted this disparity in its ruling. But, absent circumstances in which the processes of the court are being subverted, such inconsistencies are better managed through impeachment at trial or discovery sanctions. See Howard, 959 So.2d at 312.

We reverse the dismissal of Miller’s second amended complaint and remand for further proceedings.

SILBERMAN and LaROSE, JJ., Concur.

      . Judge Downey conducted the hearings in this case and entered the order granting the Nelmses’ motion. After the appeal was filed we determined that the order did not contain the requisite language of finality so we relinquished jurisdiction to the circuit court to enter a final order. Judge Baird entered the final order, incorporating Judge Downey's findings.

      . The Nelmses filed two motions on the same date, the referenced motion to strike or dismiss, and a motion tó dismiss. The motion to strike or dismiss had the later service date. The two motions were similar, except that the motion to strike or dismiss added the allegation that Miller failed to follow the court’s suggestion that he obtain a lawyer. We assume that the court's ruling was based on the motion to strike or dismiss, although the result would not change if the parties were proceeding on the earlier-served motion to dismiss. ■ .

      .At the hearing on the motion, the court specifically stated that the timeliness of Miller’s second amended complaint was not an issue.


author: SILBERMAN, Judge.

text:
    Diana NUSSPICKEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5956.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.

      James Marion Moorman, Public Defender, and Jack W. Shaw, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Diana Nusspickel challenges her convictions and séntences for seven counts of misdemeanor battery arising from her operation of a motor vehicle. We affirm but write to explain our decision with respect to Nusspickel’s argument that the trial court may have relied upon improper considerations in sentencing her. As to Nus-spickel’s other arguments, we affirm without discussion.

On January 24, 2003, Nusspickel struck several individuals while operating a motor vehicle in a parking lot at Fossil Park in St. Petersburg. The State charged her with eight counts of aggravated battery but dropped one count on the day of trial.

The testimony at trial consisted of widely divergent explanations of the incident. The State contended that Nusspickel intentionally struck and injured the victims with the vehicle. Nusspickel did not dispute that she was the driver, that the vehicle struck the victims, or that some of the victims were injured. However, she denied that she intentionally struck the victims. She claimed that the victims had threatened her and a friend, that the victims refused to move from behind the parked vehicle, and that she accidentally struck the victims when she attempted to leave the park.

At the conclusion of the evidence, the trial court instructed the jury on the elements of aggravated battery and the lesser-included offenses of misdemeanor battery and reckless driving. The court also instructed the jury as to self-defense. The jury returned" a verdict finding Nusspickel guilty of seven counts of misdemeanor battery.

A number of individuals testified at the sentencing hearing concerning the incident and the injuries that resulted from the incident. One victim’s mother testified that after the.incident, she took her son to get a restraining order against Nusspickel “because she’s coming around, circling my home with her friends and her brother, putting their hands out the car window, making gun gestures at him, stating that she was coming back for him.”

Just prior to imposing sentence, the judge commented that it appeared to him that the jury granted a pardon to Nus-spickel by returning a verdict for the lesser offenses of misdemeanor battery. The judge observed that if Nusspickel had been convicted of the aggravated batteries as charged, the sentencing guidelines would call for a sentence of at least seventeen years in state prison. The judge added that he was not sure that a seventeen-year sentence, or any sentence, would satisfy the victims.

The judge also commented that

I just can’t imagine, I just can’t imagine, after causing the kind of injury, that you would — almost killing someone— that you would not just do everything you could to avoid having any contact with that individual or to do anything of that sort. It just distresses me greatly to think that that would occur.

Defense counsel interjected, disputing that any other incidents had occurred. Counsel noted that there had been a hearing before another judge on a motion to increase Nusspickel’s bond and that “there’s a lot of emotion and back and forth between these folks. So I would ask .the Court not to assume that that did, in fact, happen as part of your decision making process.” The judge stated, “All right,” and proceeded to sentence Nusspickel on the seven battery convictions to four consecutive one-year jail terms followed by three consecutive on'e-year probation terms, with no early termination of probation.

Nusspickel filed a motion to correct sentencing errors, alleging, among other things, that the judge’s comments reflect that in imposing sentence, the judge violated her due process rights. Nusspickel argued that the judge improperly considered the aggravated battery charges of which she had been acquitted and the purported misconduct of driving by and taunting a victim. In the order denying the motion' the judge explained his earlier comments and his reasons for the sentences that he imposed, as follows:

The evidence at trial and the verdict of the jury supported the State’s allegation that the Defendant intentionally ran down seven fellow teenagers with an automobile in the parking lot of a city recreation center. Two of the seven victims of the Defendant’s conduct incurred very serious injuries.
... The facts concerning the striking of the victims or the extent of their injuries were not contested during the trial, nor were they challenged at the sentencing hearing. In fact, during the sentencing hearing defendant’s counsel and the Defendant herself conceded that victims Hodge and Bailey suffered serious bodily injury as a. result of her criminal behavior.
... In pronouncing the sentence and admonishing the Defendant regarding the actions for which she had been convicted, this court stated the obvious— that the Defendant’s conviction for battery with an automobile in the face of conceded and uncontested evidence of serious bodily injury to two of the victims constituted a jury pardon. These statements were not to justify the sentence that the court had chosen to impose, but to emphasize to the Defendant how fortunate she had been to avoid felony convictions for seven counts of aggravated battery which carried a potential maximum sentence of one hundred and five (105) years in state prison and for which the minimum guideline sentence was seventeen (17) years. The court’s statements regarding the jury pardon were also made in order to acknowledge to the victims and their families the frustration and bewilderment that they were experiencing with a legal system that they had turned to for justice in this case.
... The fact that the jury chose to grant a jury pardon does not preclude this court from considering serious harm as a factor in determining an appropriate sentence. The recognition of the existence of a jury pardon in this case is irrelevant to the issue of sentencing for the Defendant’s misdemeanor offenses. Conviction for a lesser included offense necessarily requires a sentence within the statutory range for that level of offense. However, in determining that sentence the court is not precluded from considering the existence of serious injury merely because such injury also constitutes an element of a greater offense for which the Defendant was not convicted. In this case, the sentence imposed was not a function of a belief that the Defendant was guilty of aggravated battery.

Nusspickel argues that the judge’s statements reflect that he may have improperly taken into account (1) his expressed belief that Nusspickel was guilty of the aggravated battery charges even though the jury convicted her on each charge of the lesser-included offense of simple battery and (2) misconduct that had not been charged and proved relating to her alleged contact with one of the victims after the charged incidents. She also asserts that the State cannot carry its burden to show that the judge did not rely on these impermissible considerations.

Generally, the trial court’s imposition of a sentence that is within the minimum and maximum limits set by the legislature “is a matter for the trial Court in the exercise of its discretion, which cannot be inquired into upon the appellate level.” Shellman v. State, 222 So.2d 789, 790 (Fla. 2d DCA 1969); see also Booker v. State, 514 So.2d 1079, 1082 (Fla.1987) (recognizing that “this Court and the United States Supreme Court have embraced the notion that so long as the sentence imposed is within the maximum limit set by the legislature, an appellate court is without power to review the sentence”); Darby v. State, 216 So.2d 29, 30 (Fla. 3d DCA 1968) (“An appellate court of this state will not disturb a sentence which is within the limit set by statute.”). In Fraley v. State, 426 So.2d 983, 985 (Fla. 3d DCA 1983), the Third District stated the following:

Most assuredly, under the laws of this state a trial judge has considerable discretion as to what sentence to impose and where the sentence is within statutory mínimums or máximums appellate review will be limited to determining whether the process used by the judge in arriving at a sentence was fair, particularly whether the factors taken into consideration were relevant and reliable.

Nusspickel cites to several cases that discuss an exception to the general rule, including Epprecht v. State, 488 So.2d 129 (Fla. 3d DCA 1986), and its progeny, Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004), Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001), and Cook v. State, 647 So.2d 1066 (Fla. 3d DCA 1994). In Epprecht, the Third District held “that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.” 488 So.2d at 131. If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the trial court did not rely on such impermissible considerations. Id. at 130. Further, unsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes may not be relied upon by a trial court in imposing sentence. See Doty, 884 So.2d at 550; Reese v. State, 639 So.2d 1067, 1068 (Fla. 4th DCA 1994); Epprecht, 488 So.2d at 131.

In Howard v. State, 820 So.2d 337, 340 (Fla. 4th DCA 2002), the court stated that the exception to the general rule is “where the facts establish a violation of a specific constitutional right during sentencing.” The court noted, however, that a sentencing court may consider all relevant factors when imposing sentence and need not “turn a blind eye” to uncontradicted evidence that was before the court. Id. In Dowling v. State, 829 So.2d 368, 371 (Fla. 4th DCA 2002), the court affirmed a sentence even though the prosecutor used the sentencing hearing to tell the trial court about alleged criminal conduct that the state admitted it could not prove beyond a reasonable doubt. Dowling reiterated that “it is not a violation of a defendant’s constitutional rights to consider other relevant factors when determining an appropriate sentence.” Id. (citing Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The court noted that defense counsel -did not object to the testimony from various witnesses at the sentencing hearing, he cross-examined those witnesses extensively, and “the defendant was given a full opportunity to explain his position and call his own witnesses.” Id.

Recently, this court considered a defendant’s due process challenge to his sentences. In Harris v. State, 959 So.2d 794, 796 (Fla. 2d DCA 2007), the defendant, relying on Doty, argued that the trial court violated his due process rights during sentencing by considering conduct for which the jury had acquitted him. The majority determined that any error was harmless but also noted that it was “not convinced that the trial court relied upon the conduct for which Mr. Harris was acquitted in imposing the five-year sentence.” Id. at 797.

In a concurring opinion, Judge Canady agreed with the majority decision to- affirm but disagreed that the claimed error was harmless. He asserted that the majority should have reached the merits of the due process claim. Id. at 797-99. Judge Canady observed that under United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), a jury acquittal is not a rejection of facts but is an acknowledgement that the prosecution did not prove an essential element of the offense beyond a reasonable doubt. Harris, 959 So.2d at 799. He pointed out that Watts held “ ‘that a‘jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as the conduct has been proved by a preponderance of the evidence.’” Id. (quoting Watts, 519 U.S. at 157, 117 S.Ct. 633).

Judge Canady acknowledged that the holding in Watts has been limited by more recent Sixth Amendment decisions in the context of sentences that increase the penalty for a crime beyond the statutory maximum. Harris, 959 So.2d at 800 (citing Cunningham v. California, — U.S. -, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). However, because Harris had been sentenced within the sentencing guidelines, Judge- Canady determined that Apprendi and its progeny were not controlling. He stated that Harris was not entitled to relief on his due process claim because his argument “is based on a legal principle — as articulated in Doty — that is inconsistent with the Supreme Court’s decision in Watts.” Harris, 959 So.2d at 800.

The majority in Harris commented that it was “inclined to agree with Judge Canady’s observation in his concurrence that the analysis in Doty is questionable.” Id. at 797. But because the majority concluded that any error was harmless, it declined to engage in a full analysis of the .interplay between Doty, Watts, and Apprendi or to attempt to reconcile Doty with other opinions issued by the Fourth District. Id.

Here, during sentencing, the trial judge commented as to his belief that the jury gave Nusspickel a pardon by convicting her of lesser charges. The judge emphasized his concern about the seriousness of the incident and the punishment that Nus-spiekel would have faced had she been convicted of the more serious charges. When the judge briefly mentioned Nus-spickel’s alleged contact with one of the victims after the incident, defense counsel immediately advised the judge that the defense maintained that the contact did not occur. The judge responded “[a]ll right” and made no further mention of that contact. The judge then imposed sentence, which was less than the maximum sentence that could have been imposed.

When the trial judge later considered Nusspickel’s motion to correct sentencing errors, he gave a detailed explanation of his sentencing decision. The judge noted that much of the evidence concerning the striking of the victims and the extent of their injuries was not contested during trial or at sentencing; that Nusspickel asserted self-defense at trial, which the jury rejected; and that the jury had been instructed regarding another lesser-included offense, reckless driving, but had convicted Nusspickel of battery on every count. The judge added that the State and the defense conceded at sentencing that the court could impose a maximum sentence of one year in the county jail for each count and that the sentences could be imposed consecutively. The judge also noted that the State, the victims, and the victims’ family members all requested the maximum sentence of seven years in jail.

The judge stated that his comments regarding a jury pardon were not made to justify the sentences but were made to emphasize to Nusspickel that she was fortunate to avoid felony convictions and the resulting exposure to a maximum sentence of 105 years in state prison and a minimum guidelines sentence of ■ 17 years. The judge added that his comments were made to acknowledge the frustration and bewilderment of the victims and their families concerning the legal system.

After considering the trial judge’s comments in the context of the record as a whole, including the detailed explanation given in the order denying the motion to correct sentencing errors, we cannot agree with Nusspickel that in imposing the sentences the trial judge relied upon impermissible considerations. Each of the cases on which she relies involves specific circumstances that had to be reviewed by the appellate court in light of the record of the case. Unlike those cases, our record includes the judge’s own- explanation as to his intent in making the complained-of comments. There is nothing in our record suggesting that the judge was not candid and sincere in his explanation.

Thus, the record does not support Nus-spickel’s contention that reversal is required under Epprecht and its progeny. Although Nusspickel’s sentences are significant, they are less than the maximum that the judge could have imposed. Further, the record demonstrates that the sentencing process was fair and that the factors considered by the trial court in imposing the sentences were relevant and reliable. See Fraley, 426 So.2d at 985. Accordingly, we affirm Nusspickel’s convictions and sentences.

Affirmed.

LaROSE, J., and BRODIE, LAUREN L., Associate Judge, Concur.

      . Nusspickel was also charged with and pleaded guilty to DUI. That charge also arose from the incident on January 24, 2003.

      . Absent a prior battery conviction, the crime of battery is a first-degree misdemeanor punishable "by a definite term of imprisonment not exceeding" 1 year.” §§ 775.082(4)(a), 784.03(1)(b), Fla. Stal. (2002).

      . Because of our conclusion that the record does not support Nusspickel's claim that the trial judge relied on improper considerations in imposing the sentences, we need not address the interplay between the Supreme Court’s decision in Watts and the Epprecht line of cases relied on by Nusspickel. We also note that the parties did not discuss Watts in their briefs or at oral argument and that our decision in Harris was published after the filing of the briefs and the presentation of oral argument in this case.


author: WHATLEY, Judge.

text:
    Tavaris NESBITT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-623.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2007.
   WHATLEY, Judge.

Tavaris Nesbitt appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of all Nesbitt’s claims, save one, without comment. We reverse the denial of claim eight and remand for further proceedings.

Nesbitt entered an open plea of guilty to two counts of armed robbery and one count of armed burglary of a conveyance. In claim eight, Nesbitt claims that his two convictions for armed robbery violate his constitutional protection from double jeopardy because they occurred during the same criminal episode and the State charged him with taking the same item — a purse and its contents — in each. In summarily denying the claim, the postconviction court attached a copy of the felony information and found that the convictions did not violate the protection from double jeopardy because each charge of armed robbery identified a different victim. See Hillman v. State, 410 So.2d 180, 181 (Fla. 2d DCA 1982) (holding that “two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences” when the defendants were convicted of taking a grandfather’s wallet, pistol, and car, and taking a grandson’s fishing equipment) (citing Hearn v. State, 55 So.2d 559 (Fla.1951)).

Although the information charged Nes-bitt with separate robberies of two different victims, it described the purse that was taken from them as the property of only one of the victims. If Nesbitt took a single purse, there could only be a single “taking” and, consequently, only a single armed robbery. See § 812.13(1), Fla. Stat. (2004). Furthermore, it is improbable that two separate victims could have had possession of a single purse during Nesbitt’s criminal actions, but it seems equally improbable that both victims carried separate purses belonging to one victim. See id. In any event, the information is insufficient to conclusively refute Nesbitt’s claims, and the limited record before this court contains no further pertinent information.

Accordingly, we reverse the denial of this claim and rémand for further proceedings. On remand, the postconviction court may attach documents that conclusively refute this claim or, if necessary, conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KELLY, JJ., Concur.