author: STRINGER, Judge. ALTENBERND, Judge,

text:
    In re GUARDIANSHIP OF Joseph Scott MORRISON a/k/a J. Scott Morrison. Catharine S. Bogert, Appellant, v. Cynthia L. Morrison, as Guardian of Joseph Scott Morrison a/k/a J. Scott Morrison, Appellee.
    No. 2D06-4343.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2007.
    Rehearing Denied Feb. 4, 2008.

      David A. Wallace and Stacy J. Borisov of Williams Parker Harrison Dietz & Get-zen, Sarasota, for Appellant.
    James L. Essenson and Barbara J. Welch of Law Firm of James L. Essenson, Sarasota, for Appellee.
   STRINGER, Judge.

This case involves competing petitions for appointment of a guardian over the person and property of Joseph Scott Morrison. Mr. Morrison’s longtime companion and girlfriend, Catharine S. Bogert, filed a petition in New Jersey, where she and Mr. Morrison were living at the time he was rendered incapacitated. Mr. Morrison’s daughter, Cynthia Morrison, filed a petition in Florida, where Mr. Morrison had been relocated subsequent to his becoming incapacitated. Bogert seeks review of three orders that (1) appoint Cynthia as the plenary guardian of the person of Mr. Morrison, (2) appoint Cynthia as the plenary guardian of the property of Mr. Morrison, and (3) deny Bogert’s motion to dismiss or stay the Florida action. We reverse based on our determination that the Florida court abused its discretion in refusing to stay the Florida proceedings based on the principle of comity.

Mr. Morrison, who is seventy-one years old, was rendered incapacitated after he fell and struck his head while on vacation with Bogert in Reno in February 2006. Mr. Morrison returned to New Jersey, where he lived with Bogert, and remained there under in-home care until his adult children removed him and took him to Florida in April 2006. The children did this without Bogert’s consent or knowledge.

On April 25, 2006, Bogert filed a complaint for guardianship and other relief in New Jersey. The complaint sought an injunction requiring Mr. Morrison’s return to New Jersey, an order setting aside a power of attorney that Mr. Morrison had given Cynthia the month before, an evaluation of Mr. Morrison’s incapacity, and appointment of a guardian of Mr. Morrison’s property and person. On May 18, the New Jersey court issued an order to show cause, which also required that Mr. Morrison be made available for mental capacity examinations, allowed Cynthia to continue to manage Mr. Morrison’s assets, granted Bogert visitation in Florida, and set forth a briefing schedule on the issue of Bogert’s standing and jurisdiction. Mr. Morrison’s children appeared for the New Jersey proceedings through counsel and were included in the briefing schedule.

Nonetheless, on June 2, Cynthia filed several petitions seeking substantially the same relief in a Florida probate court: (1) a petition for determination of incapacity, (2) a petition for appointment of plenary guardian of Mr. Morrison’s property, (3) a petition for appointment of plenary guardian of Mr. Morrison’s person, and (4) a petition for appointment of emergency temporary guardian of Mr. Morrison’s person and property. That day, the Florida court issued an order and letters of emergency guardianship appointing Cynthia as emergency temporary guardian of Mr. Morrison’s person and property.

On June 12, Bogert appeared in the Florida proceedings and filed her own petitions for appointment of plenary guardians of Mr. Morrison’s person and property. Bogert also filed motions requesting that the court dismiss the petitions, set aside the letters of guardianship, or hold the Florida actions in abeyance pending resolution of the New Jersey action. On June 20, the Florida court denied Bogert’s motions and entered an order determining total incapacity.

In the meantime, the parties submitted their briefs to the New Jersey court pursuant to the briefing schedule. On June 29, the New Jersey court held a hearing to determine the issues of standing and jurisdiction. Mr. Morrison’s children were represented by counsel, who argued that the New Jersey court lacked jurisdiction and that Bogert lacked standing. On June 30, the New Jersey court issued an order holding that Bogert had standing and that the New Jersey court had jurisdiction because Mr. Morrison was a domiciliary of New Jersey.

On August 9, Bogert filed, in Florida, a request for judicial notice and a motion to dismiss the petitions filed in Florida based on the New Jersey court’s recent order on standing and jurisdiction. Bogert requested that the Florida court dismiss the petitions, revoke the appointment of the emergency temporary guardian, and enter an order directing the transport of Mr. Morrison back to New Jersey. Bogert alternatively requested a stay of the Florida proceedings based on the principle of priority. The Florida court rendered an order denying the request and motion on August 29. The Florida court concluded that “[t]he New Jersey judgment on jurisdiction has no impact on this court taking and maintaining jurisdiction over the matter.” The Florida court subsequently issued final orders appointing Cynthia as plenary guardian of the person and property of Mr. Morrison.

On appeal, Bogert argues that the Florida court abused its discretion in refusing to stay the Florida proceedings based on the principle of priority. Bogert argues that because the New Jersey proceedings were filed first and the New Jersey court exercised jurisdiction first, the Florida court should have applied the principle of priority and stayed its actions as a matter of comity. Cynthia argues that the principle of priority does not apply because the Florida court was the first to exercise jurisdiction and the subject matter of the actions and the parties is not similar enough. Cynthia also argues that even if the principle of priority applies, the Florida court did not abuse its discretion in declining to apply it as a matter of comity.

A. Whether the Principle of Priority Applies.

If courts in different states have concurrent jurisdiction over a matter, then the proper court is determined by either legislation or the principle of comity. Philip J. Padovano, Civil Practice § 1.7 (2007). In this case, there is no legislation governing the subject of concurrent jurisdiction over guardianship proceedings, so the principle of priority governs as a matter of comity.

In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of priority.” Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.

Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991) (quoting Bedingfield v. Bedingfield, 417 So.2d 1047, 1050 (Fla. 4th DCA 1982)). The purpose of applying the principle of priority as a matter of comity is to prevent “unnecessary and duplicitous lawsuits” that “would be oppressive to both parties.” Siegel, 575 So.2d at 1272 (quoting Beding-field, 417 So.2d at 1050).

Cynthia argues that the principle of priority does not apply because the Florida court was the first to exercise jurisdiction when it issued its order and letters of emergency guardianship on June 2, 2006. Bogert acknowledges the supreme court’s holding in Siegel that priority should be given to “the court which first exercises its jurisdiction.” Bogert argues that the majority of Florida decisions grant priority to the action that was first filed. However, Bogert cites to district court cases, and the supreme court has never receded from Siegel. Furthermore, none of the district court cases cited by Bogert actually rule on the question of whether filing, as opposed to the exercise of jurisdiction, triggers priority. Thus, there is no reasonable basis to conclude that the trigger for priority is anything but the exercise of jurisdiction as was stated by the supreme court in Siegel.

Bogert alternatively argues that the New Jersey court first exercised jurisdiction on May 18, 2006, when it issued the order to show cause. This order required Mr. Morrison’s children to show cause why the requested relief should not be granted. It also required that Mr. Morrison be made available for mental capacity examinations, allowed Cynthia to continue to manage Mr. Morrison’s assets, granted Bogert visitation, and set forth a briefing schedule on the issue of Bogert’s standing and jurisdiction. Cynthia argues that the show cause order did not constitute an exercise of jurisdiction because the order was issued without prejudice to a determination of standing and jurisdiction, and the issues of standing and jurisdiction were not determined until after the Florida court acted.

It is true that no Florida court appears to have addressed the question of exactly what the supreme court meant by the term “the court which first exercises its jurisdiction” in Siegel. However, this case is analogous to another case from this court in which we held that the principle of priority applied. See Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Ainsworth, 630 So.2d 1145 (Fla. 2d DCA1993).

In Merrill Lynch, some of Merrill Lynch’s customers instituted arbitration proceedings in New York against Merrill Lynch with the National Association of Securities Dealers, Inc. (“NASD”), alleging that Merrill Lynch committed fraud in selling the customers units in limited partnerships. Id. at 1146. In response, Merrill Lynch filed a special action in New York state court seeking a stay of the arbitration while the court determined the arbitrability of the claims. The New York court issued an ordered to show cause why the stay should not be granted and served the order on the customers’ attorney.

After the show cause order was served, the customers filed a lawsuit in Florida asserting the same claims that they submitted to arbitration in New York. Id. at 1147. The customers also sought to have Merrill Lynch enjoined from pursuing the New York action, arguing that the New York court did not have personal jurisdiction. In response, Merrill Lynch filed a motion to stay or abate the Florida proceedings pending resolution of the New York proceedings. The Florida court denied the motion to stay, but this court reversed. This court held that the Florida court should have granted the stay because the New York court exercised jurisdiction first. The court noted that there were no special circumstances that would have justified denying the stay.

Thus, the court in Merrill Lynch determined that the out-of-state court was the first to “exercise jurisdiction” by issuing an order to show cause before the Florida court acted. Additionally, as in this case, there were unresolved questions regarding the out-of-state court’s jurisdiction, but those questions did not bear on this court’s decision that the principle of priority applied. This holding is logical because when a court issues an order to show cause, the court is saying that it intends to grant relief unless the opposing party can convince it otherwise; The ball is rolling, so to speak, and will not be stopped until the court issues an order or the plaintiff dismisses the lawsuit.

We agree with Bogert that the New Jersey court first exercised jurisdiction on May 18, 2006, when it issued the order to show cause. Accordingly, we reject Cynthia’s argument that the principle of priority does not apply because the Florida court was the first to exercise jurisdiction:

Cynthia also argues that the principle of priority does not apply because the subject matter of the actions and the parties is not similar enough. The principle of priority applies ‘“[w]here two actions are pending between the same parties involving the same state of facts and aiming to accomplish substantially the same result.’ ” Solomon v. Gordon, 148 Fla. 572, 4 So.2d 710, 711 (1941) (quoting 1 C.J. page 1162, paragraph 420). A stay-does not require complete identity of both the parties and the causes of action, but requires a substantial similarity of the parties and actions. Sauder v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001); Polaris Pub. Income Funds v. Einhom, 625 So.2d 128, 129 (Fla. 3d DCA 1993). This involves a determination of whether the out-of-state action is “so similar in parties and issues as to be unnecessarily duplica-tive” of the in-state proceedings. Polaris, 625 So.2d at 129. “[I]t is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” Fla. Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994).

In this case, both actions stemmed from a head injury Mr. Morrison suffered while on vacation. Both actions sought a determination of Mr. Morrison’s incapacity and the appointment of a guardian over the person and property of Mr. Morrison. Additionally, both actions required a determination of the propriety of Mr. Morrison remaining in Florida. Clearly, the two actions involve the same set of facts and resolution of one will resolve many of the issues involved in the other.

Cynthia argues that a more stringent identity test applies because Bogert did not merely seek a stay, but also sought a dismissal, vacation of all orders, and entry of an order directing the return of Mr. Morrison to New Jersey. Cynthia argues that Bogert’s motion sought the equivalent of an abatement of the Florida action. However, as we read Bogert’s argument in the initial brief, she is not appealing the denial of her request for dismissal, vacation of all orders, and entry of an order directing the return of Mr. Morrison to New Jersey. Bogert’s argument only relates to the trial court’s ruling denying Bogert’s request for a stay. A reversal of that order would require the vacation of the court’s orders entered subsequent to its denial of Bogert’s motion to dismiss or stay, but it would not require entry of a dismissal or an order directing the transport of Mr. Morrison.

B. Whether the Florida Court Abused its Discretion in Declining to Apply the Principle of Priority.

Although the principle of priority is discretionary, a trial court should stay proceedings when prior proceedings are pending in a court of another state unless there are special circumstances that would justify a denial of the stay. Siegel, 575 So.2d at 1272. Thus, absent any such special circumstances, a trial court abuses its discretion in refusing to grant a stay based on the principle of priority. Norris v. Norris, 573 So.2d 1085, 1086 (Fla. 4th DCA 1991). The most common example of such special.circumstances is undue delay by the court with priority. See Siegel, 575 So.2d at 1272; Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005); Norris, 573 So.2d at 1086. At least one court has found special circumstances in a dissolution action when primary residences, property, business interests, and most of the parties’ children were in Florida. See Maraj v. Maraj, 642 So.2d 1103, 1104 (Fla. 4th DCA 1994).

In this case, the Florida court did not make any findings of special circumstances to explain its decision not to apply the principle of priority as a matter of comity. Instead, the court found that the New Jersey judgment on jurisdiction has no impact on the Florida court’s jurisdiction over the matter. However, the parties do not dispute that the Florida and New Jersey courts have concurrent jurisdiction. Instead, the question is whether the Florida court abused its discretion in refusing to stay the Florida guardianship proceedings while the New Jersey guardianship proceedings went forward.

Although the Florida court had the discretion to decline to stay the Florida proceedings as a matter of comity, it abused its discretion in doing so absent a finding of special circumstances. We recognize that cases involving competing petitions for guardianship can be contentious, but it is important for courts to focus on the incapacitated ward’s need for a dispassionate resolution of the jurisdictional issues that could affect the ward’s medical care and property. Accordingly, we reverse the orders appointing Cynthia as the plenary guardian of Mr. Morrison’s person and property and denying Bogert’s motion for a stay. We remand for entry of an order granting Bogert’s motion to stay the proceedings pending resolution of the New Jersey proceedings.

Reversed and remanded.

KELLY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion, but write to explain that I would reverse this case even if the petition for guardianship in Florida had been filed first. The principle of priority can sometimes unreasonably reward the person who wins the race to a courthouse with jurisdiction.

The facts in this case establish that Mr. Morrison had been living in New Jersey since 1999. He jointly owns a home with Ms. Bogert in New Jersey. They were engaged on December 24, 2004, and were planning to wed on Valentine’s Day 2006. Two days before the wedding in Nevada, he suffered an injury that left him incapacitated. Ms. Bogert transported Mr. Morrison back to their home in New Jersey and began to care for him without any established legal guardianship.

Mr. Morrison’s adult children removed him from his home in New Jersey without court order and without the knowledge or consent of Ms. Bogert. It is clear that this occurred when he was already legally incompetent. It is worth emphasizing that nothing in our record suggests that his children took him for any improper reason. Likewise, nothing in our record suggests that Ms. Bogert was providing anything other than excellent care for Mr. Morrison.

New Jersey has a strong policy that favors New Jersey guardianship for any person who becomes incapacitated while domiciled in New Jersey. See generally Matter of Jacobs, 315 NJ.Super. 189, 717 A.2d 432 (1998); In re Glasser, 2006 WL 510096 (N.J.Super.Ct. Mar. 3, 2006) (unpublished opinion). The guardianship court in New Jersey has entered reasonable orders that do not disrupt Mr. Morrison’s current care here in Florida. At least preliminarily, it has allowed Mr. Morrison’s daughter, Cynthia, to manage his assets. When last competent, Mr. Morrison chose to live in New Jersey. Given that state’s interests in this case and given the method by which Mr. Morrison’s person became subject to the jurisdiction of Florida courts after he was no longer competent, I believe that comity should be extended to New Jersey without regard to fifing dates on the petitions for guardianship.

Guardianships are very different from situations involving competing civil lawsuits. Mr. Morrison has an immediate need for one, and only one, guardian of his person who is authorized to make medical decisions for him. He apparently owns extensive property and it may be important to have a guardian of his property that can exercise judgment independent of all of his loved ones. In a state like Florida that has a large population of older people who are actually domiciled in other states, it would seem prudent to me to encourage trial courts to defer to the state of a ward’s domicile even when petitions for guardianship are first filed in Florida.

      . Bogert raised other issues in support of her request for a stay. However, we do not discuss those issues herein because our decision on the principle of priority renders them moot.

      . Bogert cites to Schwartz v. DeLoach, 453 So.2d 454, 454-55, 456 (Fla. 2d DCA 1984); Sauder v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001); Hirsch v. DiGaetano, 732 So.2d 1177, 1177 (Fla. 5th DCA 1999); Fla. Crushed Stone v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994); Polaris Pub. Income Funds v. Einhom, 625 So.2d 128, 129 (Fla. 3d DCA 1993).


source: Caselaw Access Project

author: SAWAYA, J. LAWSON, J.,

license: Public Domain

text:
    Jeffery Scott SIPPLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2861.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Jan. 30, 2008.
    Kevin T. Beck of Cohen, Jayson & Foster, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

The issue we must resolve is whether the failure on the part of trial counsel to object to inclusion of the forcible felony exception in the jury instruction regarding self-defense constituted ineffective assistance of counsel where the defendant was charged with only one offense. The defendant, Jeffrey Sipple, who was convicted of manslaughter with a firearm, alleges in the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850 that because his trial counsel was ineffective for failing to object to the jury instruction, he is entitled to a new trial. The trial court disagreed, concluding that Sipple’s trial counsel had made a tactical decision to have the entire jury instruction on justifiable use of deadly force presented to the jury and that this decision was within the range of reasonable actions by a criminal defense attorney. We agree with Sipple and disagree with the trial court.

Discussion of the facts is not necessary to resolve the issue before us. Suffice it to say that Sipple gave a statement to the police describing how he became embroiled in a life and death struggle with the victim, who was his roommate, and explaining that he acted in self-defense when she was shot. Sipple was arrested and originally charged with second-degree murder. This was the only charge filed against him. During the trial, Sipple’s statement to police was admitted into evidence. It was Sipple’s position throughout the trial that he acted in self-defense.

At the close of the evidence, the trial court instructed the jury as to the forcible felony exception to self-defense:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find, number one, Jeffery Sipple was attempting to commit or committing aggravated battery, murder, or manslaughter.

Despite the fact that Sipple was charged with only one crime, the instruction drew no objection.

■ The jury found' Sipple guilty of manslaughter with a firearm, and he was sentenced to 12 years in the Department of Corrections to be followed by three years of probation, the first two years to be served under community control. In Sip-ple’s direct appeal, this court rendered a per curiam affirmance. Sipple v. State, 894 So.2d 1088 (Fla. 5th DCA 2005). When this court first reviewed the denial of Sipple’s rule 3.850 motion, we ordered that an evidentiary hearing be held. Sipple v. State, 928 So.2d 484 (Fla. 5th DCA 2006).

At the evidentiary hearing, Sipple’s trial counsel testified that he had been a criminal defense attorney for 16 years. He had not objected to the giving of the forcible felony exception instruction because he had wanted the instruction given. He explained, “I wanted my client to have the benefit of that self-defense instruction. We were also alleging an accidental [shooting]. I wanted him to have both.” He stated that he had not discussed the instruction with Sipple. Although counsel testified that he did not believe that the instruction emasculated the .self-defense theory, he was aware that the appellate courts had found to the contrary. He had no doubt but that the facts supported a prima facie case of self-defense.

Interestingly, the trial court interjected during the hearing that it recalled .that Sipple’s counsel had requested the instruction and that is why no objection was made. In fact, however, the transcript of the charge conference shows that the State had requested the instruction, not Sipple’s counsel. The trial court denied Sipple’s motion, and this appeal followed.

The standard by which we determine-whether a defendant is entitled to relief based on assertions of ineffective assistance of -trial counsel derives -from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a defendant to prove two elements: 1) counsel’s performance was deficient; and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Sanders v. State, 946 So.2d 953 (Fla.2006). In order to satisfy the first element, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To satisfy the second element, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052; see also Sanders, 946 So.2d at 956 (quoting Strickland). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

As we begin our analysis of the first element, we must indulge “ ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’” and we must recognize that Sipple bears the “burden of proving that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Brown v. State, 755 So.2d 616, 628 (Fla.2000) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). Defense counsel’s strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. See Sanders; Whitfield v. State, 923 So.2d 875 (Fla.2005); Shere v. State, 742 So.2d 215, 220 (Fla.1999); Rutherford v. State, 727 So.2d 216 (Fla.1998).

Sipple contends that this presumption has been overcome and that his trial counsel’s representation fell below the prevailing norm because the jury instruction- was erroneous and essentially vitiated his claim of self-defense. The erroneous jury instruction Sipple complains about emanates from a legislative enactment, section 776.041(1), Florida Statutes, which provides that the use of force likely to cause death or great bodily harm is not justifiable if the defendant is attempting to commit or committing a forcible felony. This court and others have previously held that presenting this instruction to the jury is erroneous if it is given in cases where the defendant is charged with only one offense. See Bertke v. State, 927 So.2d 76 (Fla. 5th DCA 2006); Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005); Carter v. State, 889 So.2d 937 (Fla. 5th DCA 2004), review denied, 903 So.2d 190 (Fla.2005); Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004); Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA), review denied, 890 So.2d 1115 (Fla.2004); Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA), review denied, 891 So.2d 553 (Fla.2004); Rich v. State, 858 So.2d 1210, 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). The reason it is erroneous to give the instruction in such instances is because it “improperly negates the self-defense claim.” Hawk v. State, 902 So.2d 331, 333 (Fla. 5th DCA 2005). Thus, the forcible felony instruction is intended to be used only when the defendant “is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony.” Cleveland, 887 So.2d at 363; see also Bertke; Carter. Sipple was charged with only one offense and his trial counsel testified that he was aware of the precedent we have just cited, but that he did not think that the instruction was erroneous. He also testified that he did not discuss this instruction with Sipple and indicated that he did not consider objecting to it or requesting that the erroneous part be deleted. Hence, we do not believe that it was a proper trial tactic to fail to object or to ask that the offensive part be deleted. Clearly, his failure to do so meets the deficiency element and, we note parenthetically, the State’s declination from its usual practice to argue to the contrary implies that it too believes that the first element has been satisfied.

Turning to the second element, the State asserts that Sipple cannot establish prejudice from the giving of the instruction because the facts did not wholly support the claim of self-defense in the first place. Specifically, the State argues that Sipple’s statement to the police identified the incident as an accident — the gun had discharged when Sipple was struggling to get it pointed away from him. He, therefore, never claimed he had to kill the victim to prevent his own death or great bodily harm. The State cites Hopson v. State, 127 Fla. 243, 168 So. 810 (1936), wherein the defendant contended that his wife had been the aggressor and had assaulted him. While they were fighting, the wife pulled out the pistol and, when he tried to take it away from her, the gun went off “by accident and unintentionally.” Id. at 811. The trial court instructed the jury on self-defense. The supreme court reversed on the ground that the evidence did not support the giving of that instruction, noting:

Self-defense is a plea in the nature of a confession and avoidance. In such cases the defendant confesses doing the act charged, but seeks to justify that act upon the claim that it was necessary to commit the act to save himself from death or great bodily harm.
A homicide committed in self-defense is justifiable. Where homicide is committed by accident or misfortune, the homicide is excusable, such as where, as was claimed in this case, a pistol was accidently [sic] and unintentionally discharged.

Id. Relying on Hopson, the State asserts self-defense was never a valid theory of defense and thus no prejudice could possibly stem from the giving of the forcible felony exception instruction.

We note that the State’s assertion that Sipple was actually presenting a defense of accident is of very recent vintage — appearing first at the evidentiary hearing. Nevertheless, the record belies that argument. The transcript of the rebuttal argument presented at trial shows Sipple’s trial counsel’s own statement that the case was one of self-defense, not accident. Trial counsel’s questions to the venire, summation of evidence, and closing arguments focused exclusively on self-defense. Counsel even argued to the jury that self-defense applied to any lesser crimes.

As to the State’s assertion that the evidence did not support a claim of self-defense, we disagree. When self-defense is asserted in a criminal case, the defendant only has the burden of presenting some evidence to establish a prima facie case that the killing was justified. Murray v. State, 937 So.2d 277, 282 (Fla. 4th DCA 2006); Adams v. State, 727 So.2d 997, 999-1000 (Fla. 2d DCA 1999); Bolin v. State, 297 So.2d 317 (Fla. 3d DCA), cert, denied, 304 So.2d 452 (Fla.1974). The state must then prove beyond a reasonable doubt that the defendant did not act in self-defense. Jenkins v. State, 942 So.2d 910 (Fla. 2d DCA 2006), review denied, 950 So.2d 414 (Fla.2007); Fowler v. State, 921 So.2d 708, 711-12 (Fla. 2d DCA 2006); Romero v. State, 901 So.2d 260 (Fla. 4th DCA 2005); Andrews v. State, 577 So.2d 650, 652 (Fla. 1st DCA), review denied, 587 So.2d 1329 (Fla.1991). As long as there is any evidence of self-defense presented by the defendant, the instruction is warranted. See Cartegena v. State, 909 So.2d 414, 416 (Fla. 5th DCA 2005). As the court explained in Wright v. State, 705 So.2d 102 (Fla. 4th DCA 1998):

[i]t is not the quantum or the quality of the proof as to self-defense that determines the requirement for giving the charge. If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury’s function to determine that issue.

Id. at 104 (quoting Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1972)); see also Sundberg v. State, 888 So.2d 87, 88-89 (Fla. 5th DCA 2004), review denied, 906 So.2d 1059 (Fla.2005).

In order to establish a prima facie case of self-defense, the defendant does not have to testify at trial; his or her statement to the police admitted into evidence may be sufficient. See Peterka v. State, 890 So.2d 219, 229 (Fla.2004) (“Wé conclude that in light of Peterka’s statement to police, trial counsel presented a viable, coherent defense strategy of either self-defense or unintentional killing.”), cert, denied, 545 U.S. 1118, 125 S.Ct. 2911, 162 L.Ed.2d 301 (2005); Henry v. State, 862 So.2d 679 (Fla.2003); Wright. Based on Sipple’s statement to the police, which was admitted into evidence, we conclude that Sipple met his burden of presenting a pri-ma facie case of self-defense, which required the trial judge to properly instruct the jury as to that defense.

Because the erroneous jury instruction vitiated Sipple’s claim of self-defense and essentially relieved the State of its burden of proving beyond a reasonable doubt that Sipple did not act in self-defense, Sipple was clearly prejudiced. We believe that had the jury not been given the improper forcible felony instruction, there is a reasonable probability that Sipple would have been acquitted.

REVERSED AND REMANDED for a new trial.

PALMER, C.J., concurs.

LAWSON, J., dissents, with opinion.

LAWSON, J.,

dissenting.

For reasons explained in my concurring opinion in Granberry v. State, 967 So.2d 1044 (Fla. 5th DCA 2007), I do not believe that instructing the jury on the forcible felony exception was improper, or prejudiced Sipple in any way. Therefore, I would affirm.

      . This court and others have held that appellate counsel is ineffective when he or she fails to raise the erroneous jury instruction in appellate proceedings. Bertke v. State, 927 So.2d 76 (Fla. 5th DCA 2006); Davis v. State, 886 So.2d 332 (Fla. 5th DCA 2004), review

        denied, 898 So.2d 81 (Fla.2005); Estevez v. Crosby, 858 So.2d 376 (Fla. 4th DCA 2003).


author: PER CURIAM.

text:
    Kenneth L. GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    . No. 5D07-2125.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Jan. 8, 2008.

      Kenneth L. Grimsley, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kenneth L. Grimsley appeals the denial of his fifth rule 3.800(a) motion to correct illegal sentence. In this successive motion, Grimsley once again argues that his forty-year habitual violent felony offender (“HVFO”) sentence on the charge of robbery with a firearm is illegal because it exceeds the thirty-seven-year HVFO sentence that he agreed to at the time of his plea. Even if this claim were cognizable under rule 3.800(a), the record clearly shows that Grimsley entered an open plea to the bench, aware that he faced up to a life sentence on this charge. Therefore, the trial court once again properly denied Grimsley’s claim, citing to portions of the plea transcript that refute it.

After reviewing Grimsley’s latest successive claim, this court issued a Spencer show cause order directing Grimsley to demonstrate “why he should not be denied further pro se access to the Court for any proceeding to further attack the conviction and sentence rendered below in Marion County Circuit Court case no. 96-1003-A-Z.” We have carefully reviewed Grims-ley s response and find that it too lacks merit.

At this point, Grimsley is abusing the judicial process by his successive attacks upon his conviction and sentence. In order to conserve judicial resources, we prohibit Kenneth L. Grimsley from filing with this Court any further pro se pleadings concerning Marion County Circuit Court case no. 96-1003-A-Z. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar., See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”) The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

THOMPSON, ORFINGER, and LAWSON, JJ., concur.

        .See Fla. R.Crim. P. 3.800. Grimsley has also previously filed in this court two petitions for belated appeal, one appeal from the denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850, two original petitions for writ of habeas corpus, and three appeals from the denial of petitions for writ of habeas corpus filed at the trial court level.

      . Although the transcript makes reference to a thirty-seven year plea offer, it is clear that this offer had been rejected prior to the plea proceeding, and that Grimsley knowingly and voluntarily entered an open plea to the bench, with no agreed disposition.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Willie SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5546.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2007.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Willie Sullivan challenges the trial court’s decision allowing the State to have initial and rebuttal closing arguments in accordance with section 918.19, Florida Statutes (2006), and argues that section 918.19 is unconstitutional. We affirm based on the reasoning in Grice v. State, 967 So.2d 957 (Fla. 1st DCA, 2007).

Affirmed.

WALLACE and LaROSE, JJ„ and LOGAN, PAUL E., Associate Judge, concur.


author: GRIFFIN, J. PER CURIAM.

text:
    Stephan Kent STUCKEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3630.
    District Court of Appeal of Florida, Fifth District.
    Dec. 7, 2007.
    Rehearing Granted in Part, Denied in Part, by Opinion Feb. 1, 2008.

      Raymond M. Warren, of Warren & Warren, P.A., Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Stephan Kent Stuckey [“Defendant”] appeals the judgment and sentence he received for the offense of robbery. He raises several issues, only one of which has merit. We agree that the trial court erred in instructing the jury and that reversal is required.

On January 20, 2004, Defendant and Austin Donald McElroy were observed in a Sam’s Club store, concealing DVDs in the waistband of their pants. Immediately upon exiting the store, Defendant and McElroy were confronted by Sam’s Club employees. Defendant struggled with the employees who apprehended him.

On March 17, 2004, the State charged Defendant with robbery, a second-degree felony. Defendant was initially tried and convicted of the charged offense in 2004, and sentenced to thirty years’ imprisonment as a violent career criminal and prison releasee reoffender. On appeal, this Court reversed, concluding that the trial court erred by refusing to instruct the jury on the lesser offense of resisting a merchant. We remanded for a new trial. Stuckey v. State, 907 So.2d 1208 (Fla. 5th DCA 2005).

Defendant was tried again in 2006. Three witnesses were presented. Christopher Meade, a Sam’s Club loss prevention officer, testified that he was walking through the store when he observed Defendant and McElroy with a number of DVDs in their cart. Meade followed Defendant and McElroy to an area of the store that was without surveillance cameras. He observed Defendant and McEl-roy take the DVDs from the cart and stuff them into their pants. Meade radioed the store manager, Mike Clinard. Meade asked Clinard to gather another store employee and meet him outside.

Meade then watched Defendant and McElroy as they proceeded past the registers, past the inner exit doors, and ultimately past the outer exit doors. While Clinard and another store employee, Bobby Becker, went after McElroy, Meade confronted Defendant. Meade identified himself and placed his hand on Defendant’s abdomen to let him know that he knew there was merchandise there. At that point, Defendant swung his arm back as if to hit him, and fled. With the assistance of Becker, Meade took Defendant to the ground and handcuffed him. During the struggle several DVD’s fell to the ground.

Becker was the second witness called. He testified that he observed Defendant and McElroy head for the store’s exit, pass the cash registers, and go through both an inner and outer set of exit doors. He saw Meade confront Defendant, and consistent with Meade’s testimony, he confirmed that a struggle ensued between Meade and Defendant. Becker grabbed Defendant’s kicking legs in an effort to help secure him. He also noticed DVDs on the ground during the course of the events.

Finally, Clinard testified that he first saw Defendant and McElroy when they were coming out of the store. He also confirmed that Defendant had struggled with Meade, and that Becker had intervened to help Meade restrain Defendant. He saw Defendant flailing his arms, kicking, and trying to escape. He also saw DVDs fall out of Defendant’s clothing.

During closing arguments, Defendant asserted that “robbery requires the intent to take by force” and suggested that Defendant lacked that intent at the time he resisted. Rather, Defendant asserted that the theft was complete and his intent in resisting the merchant was to escape, not to maintain possession of the stolen merchandise. Accordingly, he argued that he committed two separate crimes that day: resisting a merchant and petit theft, but not robbery.

The trial court instructed the jury, over objection, that it could convict Defendant of robbery or one of the lesser offenses of resisting a merchant, battery, or petit theft. During deliberations, the trial court received a note from the jury asking whether they could pick more than one of the lesser offenses. The trial court answered “no” over Defendant’s objection. Defendant argued:

The position that the Defense is taking is yes. The reason for that is these are mutually exclusive charges and hypothetically each of the elements are satisfied and there is no one charge that is greater than the other on that, and there is nothing in the instruction that says they can’t.

The jury subsequently rendered a verdict finding Defendant “guilty of Robbery as charged in the information. F.S. 812.13(1), (2)(c).” Defendant filed a motion for a new trial based on the trial court’s instruction to the jury that it could find Defendant guilty of only one of the lesser offenses listed on the verdict form. The trial court heard arguments on this motion, and the trial court denied the motion for a new trial. Defendant was again sentenced to thirty years’ imprisonment.

On appeal, Defendant argues that he was entitled to have the jury instructed that it was allowed to mark more than one choice among the lesser included offenses listed on the verdict form, consistent with his theory of defense that he had committed the crimes of petit theft and resisting a merchant, but not robbery. He argues that he “is entitled to have the jury consider the option of convicting him of both lesser included offenses,” sufficient record evidence existed to support those charges, “and the Information filed by the State allege[d] facts sufficient to include the lesser offenses.... ” Finally, Defendant argues that by denying his request that the jury be permitted to consider the two lesser included offenses of petit theft and resisting a merchant, the trial judge denied his right to have a jury exercise its pardon power.

The State’s essential position is that “[a]s a general rule, permitting a jury to find a defendant guilty of two lesser offenses does not comport with Florida law.” Further, it argues that case law allowing a jury to convict of both of the component offenses making up a charged “compound offense” is distinguishable because “the crime of robbery is not a legislative creation compounding two offenses into one.”

The general rule is that, when a defendant is charged with an offense and tried for it, the jury may convict him of “any offense that as a matter of law is a necessarily included offense or is a lesser included offense” and “is supported by the evidence.” Fla. R.Crim. P. Rule 3.510 (2006); see Stuckey, 907 So.2d at 1212 (“[A] defendant is entitled to an instruction for any lesser included offense if all the elements are alleged in the accusatory pleading and the evidence presented supports it.”), review denied, 925 So.2d 1031 (Fla.2006). It is a matter of common understanding that the charge of a single offense will give rise to the possibility of a conviction of a lesser offense whose elements are included in the greater, charged offense. When referencing lesser included offenses, the jury instructions and rules of criminal procedure speak in the singular.

It appears that the basis for the general rule that a defendant cannot be convicted of two lesser included offenses under a single charge lies in considerations of double jeopardy. See Bledsoe v. State, 764 So.2d 927, 928-29 (Fla. 2d DCA 2000); Rhames v. State, 473 So.2d 724, 727 (Fla. 1st DCA 1985). In Bell v. State, 437 So.2d 1057,1061 (Fla.1983), the Florida Supreme Court said that a jury can convict a defendant of one or more of the lesser included offenses; it is only prohibited from convicting of the greater offense and a lesser offense. That concern is not present in this case, however.

With respect to robbery, petit theft is a necessarily lesser included offense and resisting a merchant is a permissive lesser offense. See J.C.B. v. State, 512 So.2d 1073, 1074 (Fla. 1st DCA 1987); Stuckey, 907 So.2d at 1212. An element of the resisting a merchant offense is that the proscribed resistance to reasonable efforts of the merchant to recover the merchandise occurs “while” or “after” the defendant commits a theft of the merchant’s property. See § 812.015(6), Fla. Stat. (2004); see also Lane v. State, 867 So.2d 539, 541 (Fla. 1st DCA 2004). Both the statute governing the resisting a merchant offense and the case law make clear that a defendant can be prosecuted and convicted of both resisting a merchant and the associated petit theft offense without offending double jeopardy. See § 812.015(6), Fla. Stat. (2004); Stuckey.

A compound offense exists when “two lesser offenses are merged factually and in legal contemplation into the one greater offense.” Foster v. State, 596 So.2d 1099, 1104 n. 6 (Fla. 5th DCA 1992) (Cowart, J., dissenting). The body of case law relating to compound offenses provides that when a defendant is tried for a compound offense, he is entitled to have the jury consider convicting him of both of the “separate component offenses” that make up the compound offense. Giam-Grasso v. State, 899 So.2d 392, 393 (Fla. 4th DCA 2005). In Gian-Grasso for example, the Fourth District noted that burglary with battery is a legislative combination of trespass and battery. Id. The court explained:

Where a defendant is charged with burglary, a jury could find that the defendant had no criminal intent upon entering but subsequently formed the intent to commit an offense, such as, in this case, battery. In this situation, the defendant has committed a trespass and a battery but not a burglary. A defendant is entitled to have the jury determine when the intent was formed and consider the alternative of convicting of both component offenses, rather than burglary or just one of the component offenses.

Id; see also Bledsoe, 764 So.2d at 929 (In a prosecution for burglary with battery, defendant may be convicted of both lesser offense of trespass and lesser offense of battery if information supports finding of both offenses and jury determined both occurred.); Gregory v. State, 937 So.2d 180, 183 (Fla. 4th DCA 2006) (In a prosecution for burglary with battery, “[t]he defendant was entitled to an instruction and verdict form that would have permitted the jury to return a verdict of trespass coupled with a battery”). The case law cited by Defendant relating to compound offenses is not exactly the same here because robbery is not a compound offense of resisting a merchant and theft.

Robbery is, however, in a sense, the “mother” of compound offenses. In his excellent opinion tracing the history and evolution of the robbery offense, Judge Cowart explained that:

In the development of the early English common law, there came into existence two mixed or compound larcenies which had all of the properties of simple larceny but were accompanied by one, or both, of the aggravations of the felonious taking of personal property from one’s house or from one’s person. Each of these two compound or double offenses was in effect the combining of two offenses — one against property and the other against a dwelling or a person— into one greater offense with more punishment provided for the one greater than that provided for the conviction of both of the lesser included offenses.

Foster, 596 So.2d at 1104 (Cowart, J., dissenting) (footnote omitted). Later in his opinion, he describes robbery as a “double-yoked egg” and reiterates that:

The analytical problem is compounded and confused by the fact that, peculiarly, the robbery offense, like a double yoked egg, has two core offenses, theft and violence against the person, making a comparison with other offenses involving theft or violence doubly difficult.

Id. at 1109.

Prior to 1987, the issue presented in this case would not have arisen in Florida because robbery only included a taking in which the violence or putting in fear was used to effect the taking. See Royal v. State, 490 So.2d 44 (Fla.1986). The use of force or fear had to precede or accompany the taking. Force used after getting control of the stolen property, in an effort to elude capture, is not within the common law definition of robbery or the definition of robbery contained in Florida statutes at that time.

Immediately after the Royal decision explained this limitation on the robbery statute then in place, the legislature amended the statute to expressly provide that force used subsequent to the taking can convert a theft into a robbery so long as the force and the act of taking are both part of a continuous series of acts or events. See § 812.13(3)(b), Fla. Stat. (1987); see also Rumph v. State, 544 So.2d 1150 (Fla. 5th DCA 1989). This statutory embellishment on the common law crime of robbery gives rise to the possibility that force employed after a theft may either give rise to a “robbery” or “resisting a merchant,” depending on the factual determination whether the two acts were a part of a continuous series of acts or events. Similar to the analysis contained in the cases above discussing compound crimes, in a case such as this, the defendant should be able to present his theory of defense to the jury and receive an instruction if the evidence supports it.

It appears undisputed on appeal that the evidence presented at trial would support Defendant’s conviction for each of these offenses. Accordingly, the trial court erred in instructing the jury that it could only convict Defendant of one of these offenses. We accordingly reverse the judgment and remand for another trial.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

ON MOTION FOR REHEARING, CLARIFICATION OR REQUEST TO CERTIFY QUESTION

PER CURIAM.

The State asserts in its Motion for Rehearing that the decision previously issued in this case has opened a “Pandora’s Box” of tools for confusing juries and will have a significant impact on the instruction of juries in criminal cases. Accordingly, we grant the State’s motion for rehearing to the extent that we certify the issue presented to the Florida Supreme Court as a matter of great public importance and pose the following question:

Is a defendant charged with robbery entitled to have the jury instructed on more than one of the lesser included offenses where his theory of defense is that he committed both lesser offenses but not the greater charged offense?

In all other respects, the State’s motion is denied.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.

      . Specifically, the State charged:
      [0] n or about January 20, 2004, [Defendant], did take money or other property, from the person or custody of another, Chris Meade or Robert Becker, with the intent to permanently or temporarily deprive said person of said properly, and in the course of the taking did use force, violence, assault, or putting in fear, and further, [Defendant] had previously been convicted two or more times of theft....

      . Fla. Std. Jury Instr. (Crim.) 3.12.

      . See Fla. R. Crim. P.3.510, 3.620.

      . In relevant part, the statutory provision governing robbery provides:
      (1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
      (2)....
      (c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (3)....
      (b) An act shall be deemed "in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.
      § 812.13, Fla. Stat. (2004).

      .In relevant part, the resisting a merchant statute provides:
      (6) An individual who, while committing or after committing theft of property ... resists the reasonable effort of ... merchant, merchant’s employee ... to recover the property .... which the ... merchant, merchant's employee ... had probable cause to believe the individual had concealed or removed from its place of display or elsewhere ... commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a ... merchant, merchant’s employee.... For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.
      § 812.015(6), Fla. Stat. (2004).


text:
    Gerald L. BATES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5900.
    District Court of Appeal of Florida, First District.
    Dec. 7, 2007.
    Rehearing Denied Jan. 17, 2008.
    Gerald L. Bates, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    Derrick DENNIS, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES OF The STATE OF FLORIDA, and Fred O. Dickinson, Executive Director, Department of Highway Safety and Motor Vehicles, and Sandra Lambert, Director Division of Driver License, and T.N. Prakash, Chief, Bureau of Driver Improvement, Appellees.
    No. 1D07-328.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2007.
    Rehearing Denied Jan. 17, 2008.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Appellant.
    Judson M. Chapman, General Counsel, and Kathy A. Jimenez-Morales, Assistant General Counsel, Tallahassee, for Appel-lees.
   PER CURIAM.

The appellant challenges a summary final judgment by which the trial court concluded that the appellant was not entitled to a full, unrestricted reinstatement of his previously revoked Florida driver’s license pursuant to section 322.28, Florida Statutes. We affirm the trial court’s ruling on this point. However, the trial court also concluded that the appellant was not entitled to request a restricted, hardship license pursuant to section 322.271, Florida Statutes. Because the appellant did not seek a ruling on his right to pursue such a license, the trial court erred in addressing this question. The portion of the order addressing the appellant’s right to pursue a restricted, hardship license pursuant to section 322.271, Florida Statutes, is therefore stricken. The summary final judgment is otherwise affirmed.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    KOSLOVSKY REALTY, INC., Appellant, v. Elena SAVITCHEVA and Andrei Tchijik, Appellees.
    No. 3D06-1571.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Rehearing Denied Jan. 30, 2008.
    Kluger, Peretz, Kaplan & Berlin and Abbey L. Kaplan and Jeffrey M. Berman, Miami, for appellant.
    Gerald J. Houlihan, for appellees.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Ethyl Corp. v. Balter, 386 So.2d 1220, 1224-25 (Fla. 3d DCA 1980) (holding that, so long as improper means are not employed, activities taken to safeguard or promote one’s own financial, and contractual interests do not constitute tor-tious interference).


author: SALTER, J.

text:
    Michael BECHINA, et al., Appellants, v. ENTERPRISE LEASING COMPANY, Appellee.
    No. 3D07-1225.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.

      Andre Mura; Franklin J. Siegel, Miami, for appellants.
    Holland & Knight and David C. Bo-rucke, Tampa; George, Hartz, Lundeen, Flagg & Fulmer and Mitchell L. Lundeen, Coral Gables, for appellees.
    Richard P. Schweitzer, for Truck Renting and Leasing Association, Inc., as Ami-cus Curiae.
    Before COPE, GREEN, and SALTER, JJ.
   SALTER, J.

The Bechinas appeal a final summary judgment in favor of the appellee, Enterprise Leasing Company. Enterprise owned and leased a motor vehicle to a non-party, who in turn injured the Bechinas in a collision. The Bechinas included Enterprise as a vicariously liable defendant in their lawsuit for damages for their injuries, and Enterprise successfully raised the defense of the federal “Graves Amendment” as a complete bar to the Bechinas’ claim.

On appeal, the Bechinas raise two issues. First, they assert that the trial court misinterpreted a provision of the Graves Amendment that limits the preemptive reach of the statute and preserves certain vicarious liability provisions under preexisting Florida statutory and common law. Second, they assert that the Graves Amendment was unconstitutional. We disagree as to each of these arguments and affirm.

This Court recently interpreted and applied the Graves Amendment in a similar case, Kumarsingh v. PV Holding Corp., 32 Fla. L. Weekly D2389 (Fla. 3d DCA Oct.3, 2007). In Kumarsingh, we concurred with the thorough analysis of the issue in Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821 (M.D.Fla.2007), and we upheld the preemptive language of the Graves Amendment as applied to subpara-graph 324.021(9)(b)(2) of the Florida Statutes (2005). Applying that analysis here, the Graves Amendment abrogated Enterprise’s vicarious liability, and the final summary judgment must be affirmed.

The Bechinas urge us to follow other reported cases that have concluded that the Graves Amendment is “outside of the Congressional powers created by the Commerce Clause of the United States Constitution and, therefore, unconstitutional.” Vanguard Car Rental USA Inc. v. Huchon, 2007 WL 2875388 at *6 (S.D.Fla. Sept. 7, 2007). See Graham v. Dunkley, 13 Misc.3d 790, 827 N.Y.S.2d 513 (N.Y.Sup.Ct.2006); Vanguard Car Rental USA, Inc. v. Drouin, 521 F.Supp.2d 1343 (S.D.Fla. 2007). We decline to follow those rulings, holding instead that motor vehicle leasing transactions unquestionably affect the channels of interstate commerce, the instrumentalities of interstate commerce, and intrastate activities substantially related to interstate commerce. United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Garcia, 510 F.Supp.2d at 834-37. Though mindful of the interests of Florida citizens in an accident that in this case occurred in Florida, we may not strike a Congressional enactment for those local interests. Neither the trial court nor this Court has been provided “a plain showing that Congress has exceeded its constitutional bounds,” and we must therefore apply the Graves Amendment as duly enacted.

Affirmed.

      . 49 U.S.C. § 30106, (enacted August 10, 2005).

      . The case is presently pending here on motions for rehearing or clarification, rehearing en banc, and certification to the Florida Supreme Court.

      . The trial court in Kumarsingh held that the $10,000 financial responsibility requirement imposed by subsection 324.021(7), Florida Statutes (2005), survived as a cap on the rental car company’s vicarious liability, and that determination was not cross-appealed. In the Bechinas’ case, however, the trial court granted summary judgment against the Be-chinas as to any vicarious liability, whether under subsection 324.021(7), subparagraph 324.02 l(9)(b)(2), or otherwise.

      .The irreconcilable conflict between Huchon and Garcia appears to be headed for the United States Court of Appeals for the Eleventh Circuit, and perhaps beyond.

      . United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).


author: SHEPHERD, J.

text:
    Rose GURFINKEL, etc., et al., Appellants, v. JOSI, a/k/a Joseph Marmor, etc., et al., Appellees.
    No. 3D06-1616.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Rehearing Denied Feb. 7, 2008.
    Shutts & Bowen and William Jay Palmer and Steven M. Ebner, Miami, for appellants.
    Sheldon Zipkin, for appellees.
    Before SHEPHERD, SUAREZ and ROTHENBERG, JJ.
   SHEPHERD, J.

Rose Gurfinkel and Stuart Marmor, co-Trustees of Goldie Marmor’s (their mother) Revocable Trust, appeal a final summary judgment in which the trial court approved an amendment made to the Trust during Goldie’s lifetime by her husband, Marten Marmor, under color of a durable power of attorney. We conclude the trust clearly and unambiguously prohibits the action taken by Marten and accordingly, reverse the judgment on appeal.

I. Factual Background and Procedural History

On June 30, 1998, Goldie Marmor, the wife of Marten Marmor and mother of Rose Gurfinkel, Stuart Marmor, and Josi a/k/a Joseph Marmor, executed the Goldie Marmor Revocable Trust (the Trust), appointing her husband as Trustee. The primary asset placed into the Trust was twenty-five shares of stock in Marmor 163-164, Inc. In Article VI of the Trust, Goldie reserved to herself the right “to revoke,” “to amend,” or “to withdraw” assets from the Trust during her lifetime. She further directed that the Marmor 163-164, Inc. stock be distributed to Rose upon Goldie’s death. When Goldie signed the Trust she simultaneously executed a Durable Power of Attorney, appointing Marten to act as the attorney-in-fact. See § 709.08(1), Fla. Stat. (1999).

On April 12, 2000, purporting to act under the Durable Power of Attorney, Marten executed an amendment to the Trust, which “deleted” the stock from the Trust. He then transferred the stock to Josi. In 2001, Marten became incapacitated and the three children succeeded him as co-trustees of the Trust. On December 4, 2003, Goldie died, and this action over the propriety of the amendment ensued.

Appellants, Rose and Stuart, contend here, as they did in the trial court, that their father’s purported amendment to the Trust is prohibited by Article VI, “Lifetime Reservations by the Grantor.” Article VI, Paragraph E, states, “Neither the conservator nor the guardian of the grantor, nor any person other than the grantor except as otherwise provided in this item, may exercise any of the rights reserved to the grantor by the provisions of this item.” (Emphasis added.)

Appellants’ brother, Josi, counters that Paragraph 16 of the Durable Power of Attorney authorized Marten to amend the Trust to delete the stock from the Trust during Goldie’s lifetime. Paragraph 16 gave to Marten, as attorney-in-fact, the power to:

Transfer and convey to the trustee or trustees then acting under any revocable trust agreement executed by me (regardless of whether such trust agreement was executed or amended prior to or subsequent to the date hereof ...) any and all assets, real or personal, now or at any time hereafter standing in my name.... This shall include the power to transfer the same into the names of any nominee or nominees as such trustee or trustees shall direct (even into the names of person or firms which would not cause the ownership of public record to appear as being in the name of such trust).

(Emphasis added.)

We conclude, contrary to the trial court, that the language of the Trust controls.

II. Analysis

We review an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In Florida, “a valid trust once created, cannot be revoked or altered except by the exercise of a reserved power to do so.” MacFarlane v. First Nat’l Bank of Miami, 203 So.2d 57, 60 (Fla. 3d DCA 1967). Furthermore, the exercise of a power to revoke or amend a trust must be done in strict conformity with the terms expressed in the instrument. Id.; Euart v. Yoakley, 456 So.2d 1327, 1328 (Fla. 4th DCA 1984) (“If a method for the exercise of a power of revocation is set out in the trust agreement, then the power must be exercised in strict conformity to its terms.”).

In this case, the Trust expressly reserves the right to amend or withdraw assets from the Trust to the grantor. Article VI, Paragraph E, further prohibits any “conservator,” “guardian,” or “any other person” from exercising these rights during the lifetime of the grantor. (Emphasis added.) The language of the reservation and prohibition in this case are very similar to those considered by the First District Court of Appeal in Mann v. Cooke, 624 So.2d 785, 786-87 (Fla. 1st DCA 1993). Although the prohibition in Mann also included an “attorney-in-fact” among those prohibited from exercising the rights of the grantor during his lifetime, we find that to be a distinction without a difference. As in Mann, we conclude the prohibition in this case “unambiguously provides that the holder of a durable power of attorney cannot withdraw trust funds.” Id. at 787; Marital Trust Under John W. Murphey & Helen G. Murphey Trust v. John & Helen Murphey Found., 169 Ariz. 443, 819 P.2d 1029,1029 (1991) (concluding that provision of amended trust indenture that “[t]he powers reserved by the set-tlors, ... [to amend or revoke trust] are personal and shall not be exercisable by any guardian or other personal representative” precluded effort by attorney-in-fact to modify the indenture); Muller v. Bank of Am., N.A., 28 Kan.App.2d 136, 12 P.3d 899, 901 (2000) (holding that absence of specific authorization to attorney-in-fact in reservation of rights in trust instrument executed by grantor after power of attorney in which grantor reserved to herself “the right to withdraw all or any portion of the trust estate [during her lifetime]” precluded attorney-in-fact from withdrawing assets from trust); Rice v. Novello, 25 A.D.3d 992, 808 N.Y.S.2d 486, 488 (N.Y.App.Div.2006) (finding that provision of trust that stated “it could not be amended ‘by an agent, a guardian or a conservator’ ” precluded effort by attorney-in-fact to modify the trust); In re Goetz, 8 Misc.3d 200, 793 N.Y.S.2d 318, 322 (NY.Surr.Ct.2005) (finding “void and ineffective” an attempted amendment by attorney-in-fact to revocable trust not expressly authorized in the trust document); Weatherly v. Byrd, 566 S.W.2d 292, 293 (Tex.1978) (“[T]he right to revoke a revocable trust, absent an agreement to the contrary, is a purely personal right of the settlor and does not vest in [a] guardian.”).

Josi argues that Paragraph 16 of the Durable Power of Attorney condones his father’s attempt to amend the Trust. We disagree. Just as the power to revoke or amend a trust must be exercised in strict conformity with the terms expressed in the instrument, see MacFarlane, 203 So.2d at 60, authorizations conferred through powers of attorney likewise must strictly conform. See § 709.08(7)(b)(5), Fla. Stat. (1999) (providing that an attorney-in-fact acting under a Durable Power of Attorney may not “[c]reate, amend, modify, or revoke any document or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney ....”) (emphasis added); James v. James, 843 So.2d 304, 308 (Fla. 5th DCA 2003) (“In general, an agent cannot make gifts of his principal’s property to himself or others unless it is expressly authorized in the power.”) (emphasis added); Vaughn v. Batchelder, 633 So.2d 526, 528 (Fla. 2d DCA 1994); Kotsch v. Kotsch, 608 So.2d 879, 880 (Fla. 2d DCA 1992); De Bueno v. Alejandro Bueno Castro, A.B.P., Inc., 543 So.2d 393, 394 (Fla. 4th DCA 1989); Bloom v. Weiser, 348 So.2d 651, 653 (Fla. 3d DCA 1977) (“[T]he instrument will be held to grant only those powers which are specified.”). Examining the provision of the Durable Power of Attorney relied upon by Josi in this case, it appears to us that, at most, it authorized Marten to transfer funds into the Trust. We find no conflict, ambiguity, or inconsistency in the language of the provisions before us. See Mann, 624 So.2d at 787 (finding no conflict among provisions where, unlike in the instant case, the power of attorney not only prohibited withdrawals from the trust, but also more broadly empowered the attorney-in-fact to “do anything regarding my estate, property and affairs that I could do myselfl ]”).

We therefore reverse the order under review and remand for proceedings consistent with this opinion.

      . The prohibition treated in Mann reads: "Neither a conservator, attorney in fact, nor a guardian of the Grantor, nor any person other than Grantor may exercise any of the rights reserved to Grantor by the provisions of this Article.” Mann, 624 So.2d at 787 (emphasis added).


text:
    Joseph CAROLLO, Appellant, v. Maria Ledon CAROLLO, Appellee.
    No. 3D06-3109.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.
    Greene Smith McMillan and Cynthia L. Greene, Miami, for appellant.
    Lauri Waldman Ross, Miami, for appel-lee.

      Before GERSTEN, C.J., and ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Joseph Carollo (the “former husband”) appeals from a non-final order imposing a constructive trust on a portion of proceeds from his monthly Elected Officer’s Retirement Trust (“EORT”), which benefit Maria Ledon Carollo (the “former wife”). We affirm.

On appeal, the former husband contends that the doctrine of the law of the case precludes the trial court from imposing a constructive trust because the ruling in Carollo v. Carollo, 920 So.2d 16 (Fla. 3d DCA 2004) (“Carollo I ”), establishes that the former wife does not have a property interest in the EORT. The former wife asserts that in Carollo I, this Court determined that the EORT was a marital asset, thereby entitling the former wife to half. We agree with the former wife and affirm.

The law of the case mandates that “questions of law actually decided on appeal must govern the ease in the same court and the trial court, through all subsequent stages of the proceedings.” See State v. McBride, 848 So.2d 287, 289 (Fla.2003) (quoting Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983); Thornton v. State, 963 So.2d 804 (Fla. 3d DCA 2007). Additionally, the law of the case doctrine may foreclose subsequent consideration of issues “implicitly addressed or necessarily considered by the appellate court’s decision.” Juliano, 801 So.2d at 106.

In Carollo I, this Court determined the former husband’s EORT was a marital asset, subject to equitable distribution, pursuant to section 61.075, Florida Statutes (2003). 920 So.2d at 18. This Court did not determine the legal or equitable remedies available to the former wife to guarantee monthly payments from the former husband’s EORT.

Because this Court did not address the remedies available to the parties, the doctrine of the law of the case did not preclude the trial court from imposing a constructive trust — a device used to restore property to its rightful owner and to prevent unjust enrichment. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996). Thus, the trial court did not err in imposing a constructive trust on a portion of monthly proceeds from the former husband’s EORT. Accordingly, we affirm the non-final order.

Affirmed.