text:
    Laura Barbara TEJEDA-SOTO, Appellant, v. Kathleen RAIMONDI, Appellee. Laura Barbara Tejeda-Soto, Appellant, v. Guy Raimondi, Appellee. Marcos Hernando Soto-Perez, Appellant, v. Kathleen Raimondi, Appellee. Marcos Hernando Soto-Perez, Appellant, v. Guy Raimondi, Appellee.
    Nos. 2D06-3107, 2D06-3141 to 2D06-3143.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.

      Neil Morales of The Morales Law Firm, P.A., Naples, for Appellants.
    Melissa A. Vasquez and Eric J. Vasquez of Law Offices of Eric J. Vasquez, Naples, for Appellees.
   SILBERMAN, Judge.

These consolidated cases deal with four petitions for injunction for protection against repeat violence arising from problems between two couples who were neighbors. Kathleen Raimondi and Guy Raim-ondi each filed separate petitions against Laura Barbara Tejeda-Soto and Marcos Hernando Soto-Perez. The trial court, after a nonevidentiary hearing, issued four Final Judgments of Injunction for Protection against Repeat Violence (After Notice) and four amended final judgments to protect the Raimondis (the Petitioners) from Tejeda-Soto and Soto-Perez (the Respondents). The court also entered four orders for surrender of firearms or orders for affidavit of no firearms. We reverse and remand for an evidentiary hearing.

The trial court conducted a hearing on the petitions for protection against repeat violence on June 19, 2006. The trial court heard an opening statement from the Petitioners’ counsel, during which the Respondents’ counsel objected to the Petitioners’ counsel showing the court photographs that were not admitted into evidence. The Respondents’ counsel added that a proper foundation had not been laid and that the Petitioners had not established that the signs in the photographs belonged to the Respondents or had been on the Respondents’ property. The Respondents’ counsel immediately proceeded with his opening statement, indicating that he brought almost all of the neighbors to testify at the hearing, along with individuals who had moved because of harassment by the Petitioners. The Respondents’ counsel contended that some of the allegations were more a matter for code enforcement or small claims court rather than an injunction against repeat violence.

During the opening statement of the Respondents’ counsel, the trial court interjected as follows:

You know, I didn’t invent this forum, and I’ll be leaving it here. This is my curtain call — not my curtain call. I’ve got three calls for last performance.
I will accept your representations as to what your client and the witnesses would say.
Nonetheless, I think this is a situation where a restraining order is appropriate, so I will issue the restraining order until further order of the Court.
Thank you all.

The trial court heard no witnesses and admitted no evidence before entering the injunctions.

The Respondents contend on appeal that they were denied due process, and we agree. Section 784.046, Florida Statutes (2005), the statute governing injunctions against repeat violence, contemplates a “full hearing” before entry of a permanent injunction against repeat violence. See Ohrn v. Wright, 963 So.2d 298, 298 (Fla. 5th DCA 2007). In Ohm, the court explained as follows:

To satisfy the constitutional and statutory imperative of due process, at an injunction hearing, the parties must have an opportunity to prove or disprove the allegations made in the complaint. All witnesses should be sworn, each party should be permitted to call witnesses with relevant information, and cross-examination should be permitted.

Id. The courts cannot ignore “the requirements of fundamental due process[.]” Id.

In a similar case, Smith v. Smith, 964 So.2d 217 (Fla. 2d DCA 2007), this court considered a final injunction for protection against domestic violence. This court determined that “Mr. Smith was denied his fundamental constitutional right to procedural due process” where the trial court had denied him the opportunity to testify in his own behalf or to call witnesses before entry of a permanent injunction. Id. at 219.

Because the Respondents were denied their fundamental constitutional right to be heard, we reverse the final judgments and the amended final judgments of injunction for protection against repeat violence, along with the orders relating to firearms, and remand for a full evidentiary hearing. We also note the Respondents’ contention that the trial court should have dismissed the petitions for failure to state a cause of action. It does not appear that the Respondents were able to fully make this argument to the trial court, perhaps due to the truncated nature of the hearing. Thus, on remand the Respondents may make their argument to the trial court that the petitions should be dismissed for failure to state a cause of action.

Reversed and remanded.

FULMER and WHATLEY, JJ., Concur.


source: Caselaw Access Project

author: VILLANTI, Judge. DAVIS, Judge,

license: Public Domain

text:
    Florida Secretary of State Kurt S. BROWNING, in his official capacity; Kathy Dent, as Supervisor of Elections for Sarasota County, Florida; and Board of County Commissioners of Sarasota County, Florida, Appellants v. SARASOTA ALLIANCE FOR FAIR ELECTIONS, INC., a registered Florida political action committee and Florida not-for-profit corporation; Kindra L. Muntz; and Susette Bryan, Appellees.
    No. 2D06-4339.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2007.

      Peter Antonaeci and Allen C. Winsor of Gray Robinson, P.A., Tallahassee, for Appellant Florida Secretary of State Kurt S. Browning.
    Ronald A. Labasky and John T. LaVia, III, of Young van Assenderp, P.A., Tallahassee, for Appellant Supervisor of Elections Kathy Dent.
    Stephen E. De Marsh, County Attorney, Frederick J. Elbrecht, Deputy County Attorney, and Scott T. Bossard, Assistant County Attorney, Sarasota, for Appellant Board of County Commissioners of Sarasota County.
    ■ Thomas D. Shults and Zachary L. Ross of Kirk Pinkerton, P.A., Sarasota, for Ap-pellees.
   VILLANTI, Judge.

Florida Secretary of State Kurt S. Browning (Secretary Browning), the Board of County Commissioners of Sarasota County (the Board), and Supervisor of Elections for Sarasota County Kathy Dent (Supervisor Dent) appeal a final judgment in a declaratory action which upheld the constitutionality of an amendment to the Sarasota County charter. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

The challenged amendment was sponsored by the Sarasota Alliance for Fair Elections (SAFE), a political action committee. The amendment set forth detailed election requirements to be implemented in Sarasota County effective January 1, 2008. On appeal, the Board, Secretary Browning, and Supervisor Dent (the Appellants) argue that the proposed amendment is expressly or impliedly preempted by the Florida Election Code, chapters 97 to 106, Florida Statutes (2006). In the alternative, they maintain that either the entire proposed amendment or portions thereof are unconstitutional because they facially conflict with provisions of the Election Code. Finally, Secretary Browning and Supervisor Dent also argue that the proposed amendment is impermissibly vague. The trial court concluded that the general law of the State of Florida did not expressly or impliedly preempt the field of elections and that the proposed amendment did not conflict with general law. We disagree and reverse the trial court’s final judgment.

I. THE RECORD ON APPEAL AND THE FINAL JUDGMENT

SAFE sponsored the amendment at issue and collected the necessary signatures to submit it to the electorate. The proposed amendment provides:

Section 6.2A. Voter Verified Paper Ballot.

(1) No voting system shall be used in Sarasota County that does not provide a voter verified paper ballot. The voter verified paper ballots shall be the true and correct record of the votes cast and shall be the official record for purposes of any audit conducted with respect to any election in which the voting system is used. While votes may be tallied electronically, subject to audit, no electronic record shall be deemed a ballot.
(2) Any electronic voting machine shall allow the voter to correct his or her ballot by rejecting overvoted ballots at the time of voting, when voting in person at the polling place.
6.2B. Mandatory Audits. In addition to Voting System Audits allowed in F.S. 101.591, the Sarasota County Supervisor of Elections shall provide for mandatory, independent, random audits of the voting system in Sarasota County. These audits shall consist of publicly observable hand counts of the voter verified paper ballots in comparison to the machine counts. The audits shall be conducted on Election Day or within 24 hours after the closing of the polls, in clear public view, by a reputable, independent and nonpartisan auditing firm. These audits shall be conducted for a minimum of 5% of Sarasota County precincts, for 100% of the ballot issues in the selected precincts; and for a minimum of 5% of the total ballots cast in Early Voting periods, 5% of the total Absentee ballots, and 100% of any precinct where there are highly unusual results or events. In addition, audits of 5% of Provisional ballots shall be completed by the 3rd day following the election, and audits of 5% of Military and Overseas (UOCAVA) ballots shall be completed within 24 hours of a primary election and within 10 days following a general election. The random selection of precincts to be audited shall be made in a physical, non-electronic, public drawing at the Supervisor of Elections Office only AFTER machine tallies from the precincts have been made public. This public drawing shall be made on an entirely random basis using a uniform distribution in which all precincts in the County have an equal chance of being selected. If machine counts are unavailable for any reason, the voter verified paper ballots shall be counted by hand by the independent auditors and recorded as the vote count for that precinct. Immediately upon completion of the audit, the persons conducting the audit shall furnish a copy of an audit to the Supervisor of Elections and the Board of County Commissioners and post the results for public view and copying at the Supervisor of Elections Office. The audit shall be considered a Florida public record pursuant to Florida Statute 119.
6.2C. Certification of Election Results. No election shall be certified until the mandatory audits are complete and any cause for concern about accuracy of results has been resolved. Any discrepancies between machine counts and hand counts greater than 1% or, if less than 1% but sufficient to change the outcome of any measure, shall initiate a comprehensive manual audit of the voter verified paper ballots in all precincts and of all Absentee, Provisional, and Military and Overseas (UOCAVA) ballots. Such comprehensive manual audit shall be completed within 5 days after the election, with the exception of comprehensive audits of Military and Overseas ballots, which shall be completed within 5 days after a primary election, and within 10 days after a general election. Audits shall be completed by a reputable, independent and non-partisan auditing firm as in 6.2B above. A copy of these audits shall be retained for public view and copying at the Supervisor of Elections Office in addition to being given the County Commissioners. These audits shall be considered Florida public records pursuant to Florida Statute 119.

On August 22, 2006, the Board filed a complaint seeking a declaration of the constitutionality of the proposed amendment. The Board was concerned that the amendment was preempted by state law or conflicted with state law. The following day, SAFE filed a petition for emergency writ of mandamus and other relief, seeking an order compelling the Board to include the amendment on the November 2006 election ballot. The two actions were consolidated, and on September 6, 2006, without any objections from the parties, the court held an evidentiary hearing. On September 13, 2006, the trial court issued its final judgment and ordered the Board to place the amendment on the ballot. Pertinent to this appeal, the final judgment held:

1. The general law of the state does not expressly or impliedly preempt the field of elections so that Sarasota County cannot act on the proposed charter amendment.
2. The proposed charter amendment and the general law of Florida do not conflict such that compliance with one would result in violation of the other.[] It is from this judgment that the Board, Secretary Browning, and Supervisor Dent appeal.

II. THE FLORIDA ELECTION CODE

To assess the Appellants’ argument that the Election Code preempts the entire field of elections or that the amendment conflicts with the Election Code, it is necessary to examine the Election Code.

The Florida Constitution outlines the legislature’s duty to safeguard the electoral process in Florida. Article VI, section 1 of the Florida Constitution, entitled “Regulation of elections,” provides: “Registration and elections shall ... be regulated by law.” “Under this provision, the Legislature is directed to enact laws regulating the election process.” AFL-CIO v. Hood, 885 So.2d 373, 375 (Fla.2004). The Florida Legislature has enacted the Election Code.

Chapters 97 to 106, Florida Statutes (2006), constitute the Election Code. See § 97.011. Its expressed intent is to “[o]b-tain and maintain uniformity in the interpretation and implementation of the election laws.” § 97.012(1). The Election Code provides that “no vote shall be received or counted in any election, except as prescribed by this code.” § 101.041.

The Election Code’s ten chapters and 125 pages extensively regulate the conduct of elections. Chapter 97 controls voter qualification and registration. Chapter, 98 establishes the procedures to elect local supervisors of elections, as well as their tenure, compensation, and duties. Chapter 99 regulates the eligibility of candidates seeking public office. Chapter 100 contains provisions for the conduct of general, primary, special, bond, and referendum elections and uniformly regulates the opening and closing of polls and the timing of elections. The next two chapters of the Election Code, chapters 101 and 102, are the ones primarily affected by the SAFE amendment.

Notably, chapter 101, which consists of twenty-nine pages, is the second longest chapter of the Election Code, surpassed only by chapter 106, addressing campaign financing. Chapter 101 contains detailed provisions regulating voting methods and procedures. Specifically, sections 101.001 and 101.002 confer upon the local boards of county commissioners the responsibility for creating and changing voting precincts. Section 101.043 describes the types of identification that voters must present at the polls to obtain a ballot. Section 101.031(2) sets forth what documents must be posted at polling places. This chapter also sets forth the procedures to handle provisional ballots (§§ 101.048-.049), early voting (§ 101.657), overseas ballots (§§ 101.6951, .6952), and absentee ballots (§§ 101.6105, .62, .64, .655, .661, .662, .663, .67, .68, .6921, .6923, .6925, .698). Section 101.051 outlines the procedures to handle electors’ requests for assistance with ballots. Section 101.111 sets forth the procedures to challenge a person’s right to vote. Section 101.131 provides directives for poll watchers’ conduct. Section 101.151 provides instructions regarding the content and style of ballots. Section 101.015 also sets forth standards for voting systems to be used in Florida. Importantly, while chapter 101 confers upon local supervisors of elections authority to draft procedures to ensure accuracy and security in their respective counties, it requires that such procedures be reviewed by the Department of State. See § 101.015(4)(b)-(c). Section 101.015(3) also gives the Department of State authority to adopt rules intended “to achieve and maintain the maximum degree of correctness, impartiality, and efficiency of the procedures of voting,” including the counting, tabulating, and recording of votes.

Chapter 101 further sets forth procedures for the canvassing of votes, and the Department of State is given authority to adopt rules to safeguard the counting of votes. § 101.5614(2). This chapter also provides for testing of voting equipment before the election to ensure its accurate functioning (§ 101.5612), as well as examination of the voting equipment during voting (§ 101.5613) and postelection (§§ 101.591, .595).

Chapter 102 contains procedures for conducting elections and ascertaining election results. Specifically, sections 102.012 to 102.014 confer upon local supervisors of elections certain powers to appoint election boards, recruit poll workers, and conduct training. Section 102.081 sets forth whose presence is permitted in polling rooms and voting areas. Section 102.141 dictates the duties of local county canvassing boards, as well as who shall serve on those boards. Most important to the issues on appeal, sections 102.071, 102.131, and 102.151 set forth detailed procedures for the canvassing and certification of election results— from how to tabulate and certify votes to when election results must be submitted, to the Department of State. Sections 102.141(6) and 102.166 set forth when recounts are required. Notably, no section of the Election Code grants counties authority to establish their own procedures regarding the counting, recounting, and auditing of votes or for certifying election results.

Chapter 103 addresses presidential electors, political parties, and executive committees and members, while chapter 104 provides penalties for violations of the Election Code. Chapter 105 addresses nonpartisan elections, and chapter 106 regulates campaign financing.

Moreover, pursuant to section 97.012(1), which grants the Secretary of State authority to “adopt by rule uniform standards for the proper and equitable interpretation and implementation” of the Election Code, the Department of State has adopted thirty-five rules related to the conduct of elections. See Fla. Admin. Code R. 1S-2.0001 to 1S-2.040, 1S-5.001, 1S-9. Pursuant to these rules, the Division of Elections may render advisory opinions as to whether proposed actions could violate Florida’s election law. See Fla. Admin. Code R. 1S-2.010.

Similarly, Florida Administrative Code Rule 1S-2.013 regulates absentee ballots to overseas electors. Rule 1S-2.013(7) provides that absentee ballots postmarked by the date of the election “shall be counted if received no later than 10 days from the date of the Federal election.” Further, rule 1S-2.031 sets forth the procedures to conduct ballot recounts, and rule 1S-2.027 sets forth specific standards to follow in order to determine voter intent during state-mandated manual recounts.

III. ANALYSIS

There are “ ‘two separate and distinct ways’ ” in which a local government enactment may be inconsistent with state law. Lowe v. Broward County, 766 So.2d 1199, 1206 (Fla. 4th DCA 2000) (quoting Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996)). A local government enactment may be inconsistent with state law if: (1) “the legislature ‘has preempted a particular subject area’ ” or (2) the local enactment conflicts with a state statute. Lowe, 766 So.2d at 1206-07 (quoting Tallahassee Mem’l Reg’l Med. Ctr., 681 So.2d at 831). The Board, Secretary Browning, and Supervisor Dent first argue that the Election Code preempts the field of elections. We agree, but only on the basis of implied preemption.

IV. PREEMPTION

Florida law recognizes two types of preemption: express and implied. Express preemption requires a specific legislative statement; it cannot be implied or inferred. See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005) (“Express preemption of a field by the legislature must be accomplished by clear language stating that intent.”); Santa Rosa County v. Gulf Power Co., 635 So.2d 96, 101 (Fla. 1st DCA 1994) (finding express preemption based on the following language of section 864.01(2), Florida Statutes (1989): “It is the legislative intent to give exclusive jurisdiction in all matters set forth in this chapter to the Florida Public Service Commission.... ”). Express preemption requires that a statute contain “specific language of preemption directed to the particular subject at issue.” Santa Rosa County, 635 So:2d at 101 (citing Hillsborough County v. Fla. Rest. Ass’n, 603 So.2d 587, 590 (Fla. 2d DCA 1992)). Surprisingly, the Election Code does not contain explicit language setting forth express preemption. Although the Appellants point to miscellaneous statutory and constitutional provisions evincing strong mandates regarding legislative duty and the need for uniformity in conducting elections and counting votes, these provP sions do not contain “specific language” expressly setting forth preemption. Therefore, we conclude that express preemption does not apply. However, the absence of express preemption does not preclude a finding of preemption by implication. See Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989) (noting that “preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject”).

“Implied preemption is actually a decision by the courts to create preemption in the absence of an explicit legislative directive.” Phantom, 894 So.2d at 1019. Preemption is implied “when 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.’ ” Id. (quoting Tallahassee Mem’l Reg’l Med. Ctr., 681 So.2d at 831). Implied preemption is found where, because of the pervasiveness of the state legislative scheme, local legislation would present the danger of conflict between local and state law. Tribune Co. v. Cannella, 458 So.2d 1075, 1077 (Fla.1984) (finding that the legislative scheme of the Public Records Act preempted the law relating to production of records for inspection); Fla. Rest. Ass’n, 603 So.2d at 590-91 (finding no preemption where state law addressed food protection, alcohol packaging, and sales and where local law required posting of signs about the health dangers of drinking alcphol).

Preemption ‘“may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area.’ ” Halpern v. Sullivan County, 171 A.D.2d 157, 574 N.Y.S.2d 837, 838 (N.Y.App.Div.1991) (quoting Albany Area Builders. Ass’n v. Town of Guilderland, 74 N.Y.2d 372, 547 N.Y.S.2d 627, 546 N.E.2d 920, 922 (1989)); see generally Lowe, 766 So.2d at 1204-05 (noting that a matter of statewide concern is not the proper subject of a charter government’s local legislation). In determining implied preemption, courts look at the comprehensiveness with which the legislature has legislated the particular field. See, e.g., Tribune Co., 458 So.2d at 1077 (holding that the legislative scheme of the Public Records Act preempted the law relating to producing records for inspection). “When courts create preemption by implication, the preempted field is usually a narrowly defined field, ‘limited to the specific area where the Legislature has expressed '[its] will to be the sole regulator.’ ” Phantom, 894 So.2d at 1019 (quoting Tallahassee Mem’l Reg’l Med. Ctr., 681 So.2d at 831).

In any preemption case, the court must look “ ‘to the provisions of the whole law, and to its object and policy.’ ” State v. Harden, 938 So.2d 480, 486 (Fla. 2006) (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). The object sought to be attained by the statute at issue and the character of the obligations imposed by the statute should be considered in determining whether implied preemption applies. See id. (discussing federal preemption).

It generally serves no useful public policy to prohibit local government from deciding local issues. For example, the need to control the sale of fireworks in a populated locality may be greater than the need to control the sale of fireworks in a sparsely populated county. See Phantom, 894 So.2d at 1011 (finding no preemption of local ordinance regulating businesses that sold fireworks). Likewise, the need to control sand dune rehabilitation efforts may be greater in some counties than in others. See GLA & Assocs., Inc. v. City of Boca Raton, 855 So.2d 278, 280 (Fla. 4th DCA 2003) (finding that statute regulating state permits for dune rehabilitation projects did not preempt local ordinance regulating coastal construction permits). Therefore, in considering the application of implied preemption, courts have looked at whether the local law at issue “regulates an area in which some local control has traditionally been allowed” and whether chaos and confusion would result from having the two-tiered regulatory process that would result if local laws were not preempted by state law. Allied Vending, Inc. v. City of Bowie, 332 Md. 279, 631 A.2d 77, 87 (1993).

Our review of the provisions of the Election Code and the proposed SAFE amendment leads us to conclude that the Election Code impliedly preempts the SAFE amendment given the Election Code’s pervasive regulatory scheme and the public policy mandate for uniformity. Pursuant to the Florida Constitution, the legislature has been directed to enact laws regulating the election process. See Art. VI, § 1, Fla. Const.; Hood, 885 So.2d at 375. Florida’s legislature has enacted the Election Code, which is intended to “[o]b-tain and maintain uniformity in the interpretation and implementation of the election laws.” § 97.012(1). “[N]o vote shall be received or counted in any election [in Florida], except as prescribed by” the Election Code. § 101.041. As set forth throughout, the Election Code contains detailed provisions covering every aspect of the electoral process. The Election Code’s ten chapters and 125 pages establish a detailed and comprehensive statutory scheme for the regulation of elections in Florida, thereby evidencing the legislature’s intent to preempt the field of elections law, except in those limited circumstances where the legislature has granted specific authority to local governments. We recognize that if a court imposes implied preemption, it must be applied as narrowly as possible. Phantom, 894 So.2d at 1019. However, the Election Code is so pervasive that there are no narrow grounds within which any portion of the SAFE amendment could harmoniously co-exist. See Lozano v. City of Hazleton, 496 F.Supp.2d 477, 521 (M.D.Pa.2007) (holding that “[w]here field preemption [] is pres-ente,] ‘the subject matter of the federal and local laws is such that the two laws or regulatory schemes must inherently either conflict or be duplicative. That is, under this test it is impossible to have local regulation in the subject area that does not conflict with or duplicate federal regulation.’ ” (quoting Rogers v. Larson, 563 F.2d 617, 621 (3d Cir.1977))).

The Election Code charges the Secretary of State with responsibility for obtaining and maintaining “uniformity in the interpretation and implementation of the election laws.” § 97.012(1). The Secretary is given authority to enact rules to achieve that goal, and to date, thirty-five such rules have been enacted. See Fla. Admin. Code Chapter 1S-2, Elections. The Election Code and its related administrative rules comprehensively regulate all subjects related to elections in Florida, from the qualifications of electors to the counting and certifying of votes to procedures for challenging election results. .This pervasive state control of the election process is a compelling indicator that the legislature did not intend for local governments to enact their own individual election laws. See County Council v. Montgomery Ass’n, 274 Md. 52, 333 A.2d 596, 600 (1975) (finding implied preemption of the election campaign financing field and rejecting argument that a local ordinance simply “supplemented” the state election code). The legislature has enacted the Election Code with such detailed depth and breadth that its intent to occupy the entire field is forcefully implied. See id. (noting that “ordinances which deal with an area in which the Legislature has acted with such force that an intent by the State to occupy the entire field must be implied, are invalid” (citing City of Baltimore v. Sitnick, 254 Md. 303, 255 A.2d 376, 385 (1969))).

Strong public policy reasons exist for finding preemption in the field of election laws, given past history and the potential statewide and nationwide consequences of voting, counting, recounting, certification, and canvassing of votes. It is difficult to imagine an area with stronger public policy reasons for finding preemption. The regulation of voting cannot be given unequal application in different parts of the state. Allowing local governments to draft their own laws regarding the conduct of elections; the counting, recounting, or auditing of votes; or the certification of elections would contradict the Election Code’s stated goal of obtaining and maintaining “uniformity in the interpretation and implementation of the election laws.” § 97.012(1). Moreover, if the SAFE amendment were upheld, a dual system of regulating the counting, recounting, auditing, and certifying of votes would exist in Sarasota County. Such a two-tiered process would invite chaos and confusion. See Allied Vending, Inc., 631 A.2d at 77; County Council, 333 A.2d at 602. The chaos and confusion would be compounded if other counties enacted their own local laws relating to the counting, recounting, auditing, and canvassing of votes. See Allied Vending, Inc., 631 A.2d at 77. Thus, the need for uniformity in the application and implementation of election laws cannot be overemphasized.

Furthermore, the SAFE amendment attempts to regulate an area in which no local control has traditionally been allowed. Issues associated with the counting, recounting, auditing, canvassing, and certification of votes are not issues that affect different counties differently. Therefore, there is no public policy reason for local governments to address voting issues differently in different parts of the state. The proposed SAFE amendment serves no significant local , interest relating to voting that may differ from one county to another. SAFE has not demonstrated that Sarasota County’s interest in accurate voting systems, audits, recounts, and canvassing and certification of votes in statewide or national elections should be more significant than the interests of other counties in Florida. See Polis v. City of La Palma, 10 Cal.App.4th 25, 12 Cal.Rptr.2d 322, 325 (1992) (finding preemption of local election law where “there is nothing peculiar about La Palma to suggest that interest in term limits is more significant there than elsewhere”).

SAFE’S reliance on this court’s opinion in Phantom is misplaced. The statute at issue in Phantom regulated the sale and use of fireworks, while the ordinance challenged in that case regulated businesses selling fireworks. Phantom, 894 So.2d at 1015, 1018. More importantly, the statute in Phantom specifically delegated to local governments the power to enforce the statute at issue. Id. at 1019. The statute at issue was only three pages long and merely: (1) defined the term “firework”; (2) required the registration of entities that manufactured and sold fireworks; and (3) generally prohibited the use or sale of fireworks, subject to specific exceptions. Id. at 1019-20. Based on those facts, we concluded that the legislative scheme of chapter 791 was not pervasive, nor was there a public policy reason to presume preemption, and local government could enact an ordinance regulating businesses that sold fireworks, providing the local law did not conflict with chapter 791. Id. at 1020. The statute at issue in Phantom did not “compare in length or substance” to the Election Code. Id. at 1019.

We also note that even if the SAFE amendment were arguably “better” than state election laws, the need for uniformity and the potentially chaotic effect of local regulation in conjunction with state legislation outweighs any possible benefits of local laws on the same subject. Indeed, it is the danger such an ad-hoc approach could cause, and not whether a danger will necessarily transpire, that is relevant in preemption analysis. See Tribune Co., 458 So.2d at 1077 (noting that “ ‘a subject is preempted by a senior legislative body ... if the senior legislative body’s scheme of regulation ... is pervasive and if further regulation ... by the junior legislative body would present a danger of conflict with that pervasive regulatory scheme’ ”) (quoting Tribune Co. v. Cannella, 438 So.2d 516, 525 (Fla. 2d DCA 1983) (Lehan, J., dissenting)). Once preemption is found, the lesser government cannot overrule the senior government on the same issue. Stated another way, “any additions added by local governments would be either in conflict with the law or a duplicar tion of its terms — the very definition of field pre-emption.” Lozano, 496 F.Supp.2d at 523 (emphasis added).

Finally, the administrative “construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight.” PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988); see also Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991). The Election Code confers upon the Secretary of State the responsibility for uniformly implementing the state’s election laws. § 97.012. Notably, Secretary Browning, the Board, and Supervisor Dent—all those charged with enforcing the Election Code and the proposed amendment—assert that the SAFE amendment cannot be carried out without conflicting with the Election Code. Their interpretation is entitled to deference because they are charged with responsibility for enforcing the laws at issue. See GLA & Assocs., 855 So.2d at 282 (giving considerable deference to the Department of Environmental Protection’s position regarding a local ordinance). If election laws are to be uniformly applied throughout the State, the Secretary’s position regarding local efforts to intervene in election laws must be considered. For all these reasons, we find merit in the Appellants’ argument that Florida election laws would not be uniform if the interpretation and implementation of procedures relating to audits, recounts, and canvassing of votes were left to each county. We now turn to conflict analysis, which unlike preemption requires actual conflict in order to apply.

V. CONFLICT WITH ELECTION CODE

As an alternative, the Board, Secretary Browning, and Supervisor Dent argue that the SAFE amendment conflicts with the Election Code. We agree. Ordinarily, our reversal on preemption grounds would obviate the need to address alternative arguments for reversal. However, we address the issue of conflict due to the likelihood of further appellate review. The issue of conflict further supports reversal.

Local government cannot adopt a local law that conflicts with a state statute. Phantom, 894 So.2d at 1020. The test for conflict is whether “in order to comply with one provision, a violation of the other is required.” Id. We find that the SAFE amendment conflicts with a number of provisions of the Election Code.

A. Section 6.2A of the Amendment

The first section of the SAFE amendment, Section 6.2A, requires a “Voter Verified Paper Ballot.” We note that on May 21, 2007, the legislature enacted Chapter 2007-30, Laws of Florida, which provides that all voting in Florida must be on paper ballots effective July 1, 2008. Therefore, the touchscreen voting machines sought to be eliminated by the SAFE amendment will no longer be permitted in Florida.

B. Sections 6.2B and 6.2C of the Amendment

Sections B and C of the SAFE amendment conflict with the Election Code. The second section of the SAFE amendment imposes extensive postelection auditing requirements. The amendment calls for mandatory, independent, and random audits, including hand counts, to be conducted by a “reputable, independent and nonpartisan auditing firm,” within twenty-four hours after the closing of the polls. It requires at least 5% of all precincts to be selected for audit, and there must be a hand recount of all ballots in those selected precincts. In addition, it requires an audit of 5% of the early voting ballots, absentee ballots, overseas ballots, and provisional ballots. Finally, the amendment mandates an audit of all ballots from “any precinct where there are highly unusual results or events.” The amendment does not define what constitutes “highly unusual results or events.”

Pursuant to the third section of the SAFE amendment, no election can be certified until the mandatory audits are completed and until “any cause for concern about accuracy of results has been resolved.” The amendment does not define what constitutes a “cause for concern about accuracy of [the] results.” Also pursuant to the third section of the amendment, if any discrepancy between machine counts and hand counts is greater than 1%, or greater than the amount necessary to change the outcome of the election, a “comprehensive manual audit of the voter verified paper ballots in all precincts” must be completed within five days of the election.

As the Board has pointed out, the SAFE amendment’s mandatory audit requirement conflicts with the version of section 101.591(1) of the Election Code that was in effect in 2006. That section stated:

The Legislature, upon specific appropriation and directive, may provide for an independent audit of the voting system in any county. Within 30 days after completing the audit, the person conducting the audit shall furnish a copy of the audit to the supervisor of elections and the board of county commissioners.

§ 101.591(1), Fla. Stat. (2006). The 2006 Election Code clearly left it to the legislature to decide whether to order an independent audit of a county’s voting system. Therefore, the SAFE amendment’s mandatory audit requirement conflicted with the prior section 101.591(1) by usurping the legislature’s authority and dictating that voting system audits must be conducted in Sarasota County in every election.

Further, in May 2007, the legislature revised section 101.591 to dictate exactly when and how to conduct any independent audits. § 101.591(1) — (5), Fla. Stat. (2007). Section 101.591, entitled “Voting system audit,” now requires that the county canvassing board conduct a manual audit of the voting systems used in randomly selected precincts. This manual audit must take place immediately following certification of the elections. The statute sets forth the procedures for this manual audit. The audit must be completed, and the results made public, no later than the seventh day following certification of the election. The audit shall consist of a manual tally of the votes cast in one randomly selected race. The tally sheet shall include at least 1%, but no more than 2%, of the precincts chosen at random by the county canvassing board. This new version of section 101.591 of the Election Code also grants the Department of State authority to adopt rules to implement the audit requirements. The SAFE amendment conflicts with the 2007 amendments to the Election Code in many ways, including the timing of audits (immediately after closing polls versus immediately after certification of an election), the percentages of ballots to be audited (5% of precincts versus no more than 2% of precincts), the designation of who selects precincts for auditing (a “reputable, independent and nonpartisan auditing firm” versus the county canvassing board), and the manner in which the audits will be conducted (a “reputable, independent and nonpartisan auditing firm” versus the county canvassing board). Moreover, the fact that the legislature has enacted a process for conducting mandatory voting system audits strongly suggests that counties are not authorized to create their own, separate voting system audit laws. When the legislature has described the particular situation in which a set of procedures should apply, an inference must be drawn that what is not included by specific reference was intended to be excluded. See Citizens for Responsible Growth v. City of St. Pete Beach, 940 So.2d 1144, 1150 (Fla. 2d DCA 2006) (noting that when interpreting a statute, the “ ‘express mention of one thing is the exclusion of another’ ” (quoting Inman v. State, 916 So.2d 59, 61 (Fla. 2d DCA 2005))). Therefore, audits other than those outlined by section 101.591 conflict with the Election Code and are not permissible.

In addition, section 101.572 of the Election Code, styled “Public Inspection of Ballots,” provides that no person other than the supervisor of elections, the supervisor’s employees, or the county canvassing board can handle official ballots. Yet, Sections 6.2B and 6.2C of the SAFE amendment provide for audits conducted “by a reputable, independent and nonpartisan auditing firm.” Thus the amendment would allow individuals other than a supervisor of elections, his or her employees, or the county canvassing board to handle ballots, in violation of Florida law. Equally troublesome is the fact that the amendment’s mandatory audits would be occurring at the same time as the official counting of ballots. Having two different sets of people handling the same ballots around the same time and under concurrent time constraints creates the potential for chaos and confusion.

Moreover, Section 6.2B of the SAFE amendment provides that “[i]f machine counts are unavailable for any reason, the voter verified paper ballots shall be counted by hand by the independent auditors and recorded as the vote count for that precinct.” This directly conflicts with the Election Code, which expressly confers upon the county canvassing boards the sole responsibility for tabulating votes and transmitting the election results to the Department of State. §§ 102.071, .112, .151. Under Florida law, the county canvassing boards are responsible for recording and transmitting the vote results for each precinct.

The Board also correctly points out that conflict exists in connection with the manner and timing in which audits must be conducted. Section 6.2B of the SAFE amendment requires that audits of 5% of provisional ballots be completed by the third day following an election and audits of 5% of military and overseas ballots be completed within twenty-four hours of a primary election and within ten days following a general election. Yet the Election Code as it was in effect in 2006 provided that those who cast provisional ballots had until 5 p.m. on the third day following the election to present evidence supporting their eligibility to vote. § 101.048(l). Likewise, Florida Administrative Code Rule 1S-2.013(7) provides that overseas absentee ballots shall be counted as long as they are received by the tenth day following election. Therefore, because compliance with the outer limits of the Election Code’s timeframe leaves no time to complete the SAFE amendment’s audits, the provisions of the SAFE amendment, the Election Code, and attendant regulations seem to conflict.

The Appellants also point out that section 102.141(6) of the Election Code sets forth when recounts are required and that the SAFE amendment conflicts by mandating its own recount procedures. We agree. While SAFE has argued that the SAFE audits are not recounts, the following facts strongly suggest that the “audits” in Sections 6.2B and 6.2C are really recounts: (a) the amendment refers to “hand counts” of the ballots, (b) these “hand counts” must begin within twenty-four hours after closing of the polls, and (c) no election can be certified until the SAFE audits are completed and until “any cause for concern about accuracy of results has been resolved.” Further, the SAFE amendment provides that any discrepancies between machine counts and hand counts greater than 1%, or if less than 1% but sufficient to change the outcome of the election, require a comprehensive manual audit of the paper ballots in all precincts and of all absentee, provisional, and military and overseas ballots. The SAFE “audits” become a mandatory requirement before any election in Sarasota County can be certified. These audits conflict with the Election Code’s provisions, which establish when machine and manual recounts are mandated. See § 102.166.

We are also concerned by the amendment’s provisions delaying certification of election results in Sarasota County until completion of the SAFE audits. This seems to be in tension with the Election Code’s strict deadlines for certification of election results by the eleventh day following a general election. See §§ 102.112(2), .141(6).

Under the SAFE amendment, no election results can be certified in Sarasota County until an “independent and nonpartisan auditing firm” completes the mandatory audits and “any cause for concern about accuracy of results has been resolved.” This conflicts with the Election Code, which establishes who must certify election results (the county canvassing board, not an “independent and nonpartisan auditing firm”) and when those results must be certified (by the eleventh day after the general election). See § 102.112(2); see also Division of Elections Advisory Opinion, DE 06-11, Aug. 25, 2006, http://election.dos.state.fl.us/opinions/ new/2006/de0611.pdf (stating that “[i]t is imperative that the canvassing board in no way abdicates its statutory duties and responsibilities under the Florida Election Code to be the final authority on whether a voter signature matches for purposes of canvassing the ballots”).

Finally, the regulations enacted pursuant to the Election Code provide detailed procedures for conducting recounts and for ascertaining voters’ intent. See Fla. Admin. Code R. 1S-2.027, 1S-2.031. The SAFE amendment conflicts with the Election Code and its attendant regulations because it mandates audits conducted by “reputable, independent and nonpartisan auditing firms” but does not require those “independent auditors” to follow the administrative rules enacted by the Division of Elections.

Local legislation that “supplements a statute’s restriction of rights may coexist with that statute, whereas an ordinance which countermands rights provided by statute must fail.” City of Miami Beach v. Rocio Corp., 404 So.2d 1066, 1070 (Fla. 3d DCA 1981) (citations omitted). While SAFE’S goal in attempting to ensure vote accuracy may be similar to the Election Code’s goal, the method SAFE has proposed to achieve that goal conflicts with the Election Code. Under these circumstances, similarity of purpose does not preclude a finding of preemption conflict. See Lozano, 496 F.Supp.2d at 524-26. “ ‘If conflict arises, state law prevails.’ ” Citizens for Responsible Growth, 940 So.2d at 1147 (quoting W. Palm Beach Ass’n of Firefighters, Local Union 727 v. Bd. of City Comm’rs, 448 So.2d 1212, 1215 (Fla. 4th DCA 1984)). A local government “‘cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.’” Thomas v. State, 614 So.2d 468, 470 (Fla.1993) (quoting Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972)). Even home rule counties such as Sarasota may not ignore this doctrine. See art. VIII, § 1(g), Fla. Const. (“Counties operating under county charters shall have all powers of local self-government not inconsistent with general law .... The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.” (emphasis added)). For all the reasons stated, we are inexorably compelled to find that contrary to SAFE’S argument, its amendment does not parallel or complement the Election Code, but rather conflicts with it.

VI. CONCLUSION

We note that despite its inability to prevail on appeal, SAFE has advanced noteworthy reforms, one of which has since been adopted by the Florida Legislature— the paper ballot requirement. See ch.2007-30, § 6, at 6, Laws of Fla. (2007). We commend SAFE for its efforts to uphold the integrity of the voting process and protect each individual’s vote. Nevertheless, because of the pervasiveness of the Election Code, the important public policy of election law uniformity, and the statewide. and potentially nationwide consequences of enactments relating to the canvassing of votes, preemption precludes the SAFE amendment from becoming effective. Accordingly, we hold that the SAFE amendment is unconstitutional. We believe that any efforts to modify or “fine-tune” Florida’s election laws should be addressed through uniform, statewide legislation.

Because this appeal raises an issue of first impression involving whether Florida’s Election Code may be subject to sixty-seven variations in each of Florida’s sixty-seven counties, we certify the following question to the Florida Supreme Court as a matter of great public importance:

IS THE LEGISLATIVE SCHEME OF THE FLORIDA ELECTION CODE SUFFICIENTLY PERVASIVE, AND ARE THE PUBLIC POLICY REASONS SUFFICIENTLY STRONG, TO FIND THAT THE FIELD OF ELECTIONS LAW HAS BEEN PREEMPTED, PRECLUDING LOCAL LAWS REGARDING THE COUNTING, RECOUNTING, AUDITING, CANVASSING, AND CERTIFICATION OF VOTES?

Reversed and remanded with directions to vacate the trial court’s final judgment. Question certified.

WALLACE, J., Concurs.

DAVIS, Judge, Dissents with opinion.

DAVIS, Judge,

Dissenting.

I respectfully dissent from the conclusion reached by the majority. Although I agree with the majority that the charter amendment is not barred by specific legislative preemption, I disagree with the remainder of the reasoning and conclusions of law expressed in the majority opinion.

The issue placed before the trial court, and accordingly before this court, is a very narrow one. SAFE proposed an amendment to the Sarasota County Charter that would (1) limit the types of voting machines that could be used in elections held in Sarasota County and (2) require the results of the electronic vote count in such elections to be audited prior to certification of the results. Before the proposal was placed on the ballot for the voters’ consideration, the Appellants sought a declaration of its constitutionality. In view of “the premise that ‘all political power is inherent in the people and that we must, if possible, interpret the amendment as constitutional,’ ” Citizens For Responsible Growth v. City of St. Pete Beach, 940 So.2d 1144, 1146 (Fla. 2d DCA 2006) (quoting Charlotte County Board of County Comm’rs v. Taylor, 650 So.2d 146, 148 (Fla. 2d DCA 1995)), the issue presented to the trial court was very simply whether any part of the proposed amendment was constitutional. If any portion of the amendment was constitutional, the trial court was correct in allowing the entire amendment to be placed on the ballot. See id.

Our consideration of the issue is limited to whether the challenged petitions, individually, contravene the Florida Constitution as inconsistent with state law. When a petition can “have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law,” it must be submitted to the electorate. Dade County v. Dade County League of Municipalities, 104 So.2d 512, 515 (Fla. 1958). Only when a petition is unconstitutional in its entirety may it be precluded from placement on the ballot.

Id. at 1146-47. Given these parameters, I would affirm the trial court’s determination that the amendment was constitutional and should have been placed on the ballot.

Although the legislature has passed extensive and inclusive laws regarding the governance of elections, it has not chosen to prescribe the type of voting machine that is to be used throughout the State of Florida. See § 101.5604, Fla. Stat. (2006) (“The board of county commissioners ... may ... provide for the use of any electronic or electromechanical voting system approved by the Department of State .... ” (emphasis added)). Although I wholeheartedly agree with the majority that there is a need for uniformity in this area-as has been demonstrated by recent national elections — -the fact that the legislature has chosen to allow the county commissioners of each individual county to choose what type of machine will be used in that particular county indicates that the legislature has chosen not to preempt this area specifically or impliedly.

Although the legislature has adopted certain requirements that limit the choices available to county commissions, see § 101.5606, the restrictions that the SAFE amendment would place on the Sarasota County Commission in choosing the type of voting machine to be used in Sarasota County are not inconsistent with these legislatively enacted requirements. In other words, the list of minimum requirements for voting machines enumerated by the legislature would simply be expanded by the additional standards that the amendment would impose. The Sarasota County Commission could follow the additional standards and still be consistent with the statutory requirements contained in section 101.5606. As such, these additional standards are not inconsistent with state law; rather, they add to state law. See Citizens for Responsible Growth, 940 So.2d at 1150 (“Rather than conflicting with the statutory framework, the proposed City charter amendments complement it_”). Because the legislature has chosen not to preempt this area of election law and because the amendment does not contradict state law regarding the selection of voting machines, I would conclude that the amendment provision dealing with the choice of voting machines is not unconstitutional. Based on this conclusion alone, I would affirm the trial court’s decision to allow the amendment to be placed on the ballot.

However, I also disagree with the majority’s conclusion that the audit provisions are inconsistent with Florida’s existing election code. First, I reject the Appellants’ argument that the audit provisions are in essence recount provisions. To the contrary, the amendment provisions are truly audit provisions that are to be implemented to assure the accuracy of the electronic voting machines, not to affirm the certification of the winner of a race. The amendment requires that all votes in selected precincts be hand-counted as a type of spot check sampling to determine the accuracy of the electronic voting machines. By contrast, in a true recount, all of the votes in all of the precincts in a county in a particular race are recounted to assure that the count is accurate for that race alone. Accordingly, I conclude that the amendment’s audit provision is a true audit requirement, not a recount provision.

Audit provisions have not been specifically preempted by the legislature. Section 101.591(1) provides that “[t]he Legislature, upon specific appropriation and directive, may provide for an independent audit of the voting system in any county.” However, since the legislature has chosen not to provide for audits and has not prohibited local officials from doing so, I do not consider this to be an implied preemption of the audit issue. See Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1019 (Fla. 2d DCA 2005) (“Accordingly, courts imply preemption only when 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.” (emphasis added) (internal quotation marks omitted)).

In the instant case, the audit provisions proposed by SAFE are to be applied in addition to, and are not inconsistent with, the election statutes implemented by the Florida Legislature. Accordingly, I would not find them to be unconstitutional. See Bennett M. Lifter, Inc. v. Metro. Dade County, 482 So.2d 479, 483 (Fla. 3d DCA 1986) (“Legislative provisions are inconsistent if, in order to comply with one provision, a violation of the other is required- [T]he sole test of conflict for purposes of preemption is the impossibility of co-existence of the two laws.”). The fact that the people of Sarasota County would ask their officials to take additional steps to ensure the accuracy of the voting results — steps that may not be required by other counties — does not, in my opinion, render them inconsistent with state law. See id. Because the legislature has not preempted the audit issue specifically or impliedly and because the amendment provisions are not inconsistent with state law, I would conclude that the audit provisions- — like the voting machine provision-— are not unconstitutional. Accordingly, having determined that, at the very least, these two portions of the SAFE amendment were constitutional, the trial judge was correct to place the entire amendment on the ballot. See Citizens for Responsible Growth, 940 So.2d at 1146-47.

Finally, I would acknowledge that certain minor provisions of the amendment might be in conflict with specific provisions of the election code. However, these specific issues do not render the amendment as a whole unconstitutional. See id. Accordingly, I would affirm the trial court’s decision to allow the charter amendment proposed by SAFE to appear on the ballot.

      . On August 30, 2006, the Board filed an amended complaint adding Florida’s Secretary of State and Sarasota County’s Supervisor of Elections as defendants in the action because these officials had an interest in the outcome of the case.

      . In light of the legal issues presented to the trial court — preemption and conflict with state law' — the purpose of the evidentiary hearing is unclear. It appears that the trial court sought to fulfill its perceived duty to determine whether at least a portion of the amendment could survive a constitutional attack. At the evidentiary hearing, the parties presented the testimony of two supervisors of elections who held diametrically opposed views concerning the feasibility of implementing the proposed amendment and their understanding of the proposed amendment.

      . The final judgment also stated that "[t]he sole issue for the [trial] court's determination in this case [was] whether the proposed amendment [was] unconstitutional in its entirety.” The trial court was correct in noting that it could issue an injunction against submission of the proposed amendment to the electorate only if it found the amendment unconstitutional in its entirety. See Dade County v. Dade County League of Municipalities, 104 So.2d 512, 515-16 (Fla. 1958). Having concluded that not every part of the proposed amendment was unconstitutional, the trial court ordered submission to the electorate. We need not address the issue of the severability of portions of the proposed amendment because that issue was rendered moot when the proposed amendment was presented to the electorate. We will address, however, the trial court's erroneous analysis and conclusions regarding preemption and conflict.

      .In November 2006, the Sarasota electorate approved the proposed amendment.

      . At oral argument, SAFE indicated that it did not seek an advisory opinion from the Division of Elections concerning the proposed charter amendment prior to seeking that the amendment be placed on the ballot.

        . See, e.g., §§ 101.001 (conferring upon local governments the authority to alter and create voting precincts and designate polling places), 101.293-.295 (conferring upon local governments the authority to select a voting system among those systems approved by the Division of Elections), 102.012 (conferring upon supervisors of election the authority to appoint local election boards). The duties conferred upon local governments essentially relate to administrative or budgetary concerns, not substantive voting procedures or policy concerns regarding uniformity.

      . "Field preemption” is a term that is used in federal case law, but it is a counterpart to our implied preemption analysis.

      . While this appeal was pending, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(B)(i), this court certified this matter to the Florida Supreme Court as one presenting an issue of great public importance and involving circumstances which required that the Florida Supreme Court immediately resolve the issue. The supreme court declined to accept jurisdiction and remanded the case to this court for further proceedings. See Cobb v. Sarasota Alliance for Fair Elections, 942 So.2d 412 (Fla.2006) (table decision).

      . This fact further supports our finding that the Election Code has preempted the field as to the voting systems to be used in Florida because the legislature has spoken on the exact issue which the SAFE amendment sought to legislate. See McKenzie Check Advance of Fla., LLC. v. Betts, 928 So.2d 1204, 1210 (Fla.2006) (noting that courts may consider later amendments to statutes in determining legislative intent); State, Dep’t of Bus. & Prof'l Regulation v. WJA Realty Ltd. P’ship, 679 So.2d 302, 306 (Fla. 3d DCA 1996) (approving trial court's consideration of subsequent amendment to the statute at issue "as a clarification of the legislature’s original intent”).

      . This fact further supports our finding that the Election Code has preempted the field as to the subject of mandatory audits because the legislature has dictated when voting system audits are required. The legislature has also expressly granted the Department of State authority to enact rules regulating the conduct of such audits. See ch.2007-30, § 9, at 8, Laws of Fla. (2007) ("Effective upon this act becoming a law, the Department of State shall adopt rules to implement the provisions of s. 101.591, Florida Statutes, as amended by section 8 which prescribe detailed audit procedures for each voting system, which shall be uniform to the extent practicable, along with the standard form for audit reports.”).

      . The May 2007 amendments changed this provision of the Election Code. Under, section 101.048(1), Florida Statutes (2007), a person casting a provisional ballot has until 5 p.m. on the second day following election to support his or her eligibility to vote.

      . The May 2007 amendments to the Election Code moved these provisions to section 102.141(7) of the statute.

      . The May 2007 amendments to the Election Code changed this time frame to twelve days after a general election. § 102.112(2), Fla. Stat. (2007).

      .Even the trial court expressed concern about the constitutionality of this provision, stating: “Section 6.2C ... prohibiting certification of elections prior to completion of the mandatory audits ... does appear to be in conflict with the provisions of Section 102.141, Florida Statutes. Furthermore, the opening sentence of Section 6.2C is vague at best when extending the prohibition against certification to some point in time when ‘any cause for concern about accuracy of results has been resolved.’ ” We also note that on its face, this vague language invites arbitrary interpretation.

      . In light of our holding, we do not address Secretary Browning and Supervisor Dent's argument that the SAFE amendment is im-permissibly vague. The issue of vagueness would not be subject to further appellate review because, as acknowledged by the parties at oral argument, it relates to individual “as applied” challenges to the amendment, which were not fully developed below.

      . Although the majority questions whether the hearing before the trial court was really an evidentiary hearing, it is interesting to note that the Supervisor of Elections for Leon County testified at that hearing on behalf of the Appellants and told the trial court that his office had imposed certain audit procedures to assure electronic vote count accuracy.

      . For example, the election code limits the handling of ballots to employees of the office of the supervisor of elections, or the canvassing board, § 101.572, while the amendment requires that audits be performed by an independent auditing firm.


author: KELLY, Judge.

text:
    Reginald Duane COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4825.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2007.
   KELLY, Judge.

Reginald Cooper appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Cooper’s claim that his counsel misadvised him regarding the length of the sentence he would receive after entering his plea, we reverse as to that claim. We affirm the postconviction court’s order in all other respects.

In case number 98-3182, Cooper pleaded guilty to grand theft, organized scheme to defraud, and money laundering and was sentenced to concurrent terms of sixty months’ prison, suspended, to be followed by ten years’ probation on all counts. He subsequently violated his probation by, among other things, committing another grand theft. At a hearing on October 21, 2003, Cooper entered a plea of guilty to the new grand theft charge in case number 03-4187, and he admitted violating his probation in case number 98-3182. On November 5, 2003, the court revoked Cooper’s probation in case number 98-3182 and sentenced him to concurrent terms of five years in prison on all counts. In case number 03-4187,' the court sentenced Cooper to three years in prison, to run consecutive to the sentence imposed in case number 98-3182. Cooper did not appeal his judgments or sentences.

Cooper’s rule 3.850 motion alleges that his counsel was ineffective for misadvising him regarding the length of the sentence he would receive after entering his plea. Specifically, Cooper claims that his attorney induced him to enter a plea by telling him “that a sentence of 15 years would be handed down should [he] proceed and lose this trial,” and the five-year plea offer was less than what he might face after trial. Therefore, he pleaded with the expectation that he would receive a total of five years in prison for both cases, not eight.

The postconviction court denied this claim, noting that the State’s response indicated that “during Defendant’s plea proceeding, the trial court told Defendant specifically that his sentences in these two cases would run consecutively], not concurrently].” The State, however, did not rely on the events that transpired at Cooper’s October 21 plea hearing. Instead, it referred to the court’s oral pronouncement of Cooper’s sentence at the November 5 sentencing hearing. The fact that Cooper ultimately knew that the court sentenced him to consecutive terms totaling eight years, as evidenced by the transcript of the sentencing hearing, does not refute Cooper’s assertion that based on what his attorney told him when he entered his plea on October 21, he thought he was going to receive concurrent terms totaling only five years. Further, we find nothing in the transcript of the plea hearing, a copy of which is also attached to the postconviction court’s order, that refutes Cooper’s claim that he was misadvised regarding, the length of the sentence he would receive after entering his plea. Accordingly, we reverse and remand for the postconviction court to either attach portions of the record conclusively refuting Cooper’s claim or to conduct an evidentiary hearing on the issue of counsel’s misadvice regarding the length of Cooper’s sentence. In all other respects, we affirm. .

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CANADY, JJ„ Concur.


author: SHAHOOD, C.J.

text:
    STATE of Florida, Appellant, v. Alex KING, Appellee.
    No. 4D06-3729.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 21, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Steven M. Potolsky of Steven M. Potol-sky, P.A., Miami, for appellee.
   SHAHOOD, C.J.

We affirm the trial court’s order granting appellant’s motion to dismiss count II of the State’s felony information. Appellant was originally sentenced to the Department of Corrections (DOC) and then transferred, pursuant to section 985.417, Florida Statutes (2005), to the Okeechobee Juvenile ■ Offender Corrections • Center (OJOCC). Subsequently, appellant was charged by information with Escape from Juvenile Facility (count I), pursuant to sections 985.3141 and 944.40, Florida Statutes (2005), and Escape (count II), pursuant to section 944.40, Florida Statutes (2005). The charges arise from an alleged unsuccessful attempt to escape from the OJOCC on March 5, 2005.

Section 985.3141 deals with escape attempts, as defined by section 944.40, from detention facilities for children. Section 944.40 covers escape attempts by a prisoner, who is defined as someone in the custody of the DOC pursuant to section 944.02(6), Florida Statutes (2005).

The applicable escape statute depends on the location of the defendant at the time of the attempt rather than as specified by the original sentence. See, e.g., Danzy v. State, 603 So.2d 1320 (Fla. 1st DCA 1992); State v. Varela, 636 So.2d 559 (Fla. 5th DCA 1994).

Because King attempted to escape from a juvenile detention facility, the trial court did not err in finding that the applicable statute is section 985.3141 and not 944.40.

Affirmed.

FARMER and TAYLOR, JJ., concur.


author: ALTENBERND, Judge.

text:
    STERLING FACTORS CORPORATION, Appellant, v. U.S. BANK NATIONAL ASSOCIATION; Dean N. Meyers, a/k/a Dean Meyerson, a/k/a Dean Meyer; Deborah C. Meyers; Daniel W. Nester; and United States of America, Department of the Treasury-Internal Revenue, Appellees.
    No. 2D06-3762.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2007.

      James J. Webb of Haley, Sinagra, Paul & Toland, P.A., Fort Lauderdale, for Appellant.
    Jane Ellen Bond of Butler & Hosch, P.A., Orlando, for Appellee U.S. Bank National Association.
    D. Keith Wickenden and Rachael S. Loukonen of Grant, Fridkin, Pearson, Athan & Crown, P.A., Naples, for Appellee Daniel W. Nester.
    No appearance for Appellees Dean N. Meyers, Deborah C. Meyers and United States of America, Department of the Treasury-Internal Revenue.
   ALTENBERND, Judge.

Sterling Factors Corporation appeals an order denying its motion to set aside a final summary judgment of foreclosure. Sterling held a second mortgage on a parcel of real estate owned by Dean N. Meyers and his wife. U.S. Bank National Association held the first mortgage. After the trial court refused to set aside the judgment in favor of U.S. Bank or to stay the foreclosure sale, Daniel W. Nester and his wife purchased the property at the foreclosure sale for an amount that will not provide sufficient funds to satisfy Sterling’s lien.

To the Extent that the trial court ruled it had no jurisdiction to set aside the foreclosure judgment once the sale occurred based upon its interpretation of section 702.07, Florida Statutes (2005), the trial court erred. Nevertheless, we affirm the order because Sterling’s motion for relief from the foreclosure judgment did not allege a ground for which relief could be granted. Sterling sought relief pursuant to Florida Rule of Civil Procedure 1.540(b)(4) by alleging only that the final summary judgment was void because Sterling did not receive actual notice of the hearing at which the motion for summary judgment was considered. Sterling admitted, however, that it had been served with appropriate process and participated in the foreclosure proceedings and that it received a copy of the final judgment within a few days of its entry. We conclude as a matter of law that under these circumstances the judgment was, at best, voidable.

I. A SUMMARY OF THE PROCEEDINGS IN THE CIRCUIT COURT

Because this appeal involves a nonfinal order, this court does not have a complete record. The appendix provided by Sterling is somewhat abbreviated. It contains no transcripts, nor a copy of the complaint that commenced this action in November 2005. The complaint was apparently filed by U.S. Bank National Association “as trustee” seeking to foreclose a mortgage on a Naples home owned by Mr. and Mrs. Meyers. It is not clear what instrument names U.S. Bank as a trustee or on whose behalf it acts as trustee. The civil action progress docket indicates that the complaint was served on Mr. and Mrs. Meyers in early December 2005. U.S. Bank filed an initial motion for summary judgment in early January 2006, just before it obtained a clerk’s default against the Meyerses.

In late January 2006, however, U.S. Bank filed an amended complaint to foreclose the mortgage. The amended complaint, which is in the appendix provided by Sterling for this appeal, attached a copy of the note and mortgage. The note and mortgage are dated February 6, 2004, and provide that Finance America, LLC, is the lender and holder of the note for $650,000. The second count of the amended complaint alleged that the original documents were missing and sought to reestablish the lost note and mortgage. The amended complaint also alleged the existence of Sterling’s mortgage, dated December 28, 2004, and filed in the official records of Lee County in April 2005, and in the official records of Collier County in December 2005. Sterling’s mortgage secured a $500,000 obligation.

In February 2006, Sterling filed an answer to the amended complaint, admitting only that it had an interest in the property. In early March 2006, U.S. Bank served a notice of hearing on all parties to the foreclosure, scheduling its motion for summary judgment for a hearing on April 17, 2006. That notice indicated it was served on Sterling, but the address on the certificate of service for Sterling’s attorney was incorrect; it listed the proper street address but omitted the city, state, and zip code. Our record does not establish with any certainty whether the envelope contained a similar error or what actually happened to the notice that was supposed to be delivered to Sterling.

U.S. Bank obtained a summary final judgment on April 17, 2006. Sterling admitted that it received a copy of this summary final judgment shortly after it was entered and that it took no steps to seek rehearing or otherwise object. It did not appeal this judgment. The summary final judgment established that the total amount due to U.S. Bank was $694,689.64 and set the foreclosure sale for May 18, 2006. The judgment declared this lien superior to all others and explained that any surplus funds from the foreclosure sale would be placed in the registry of the court for the benefit of the other parties, even defaulted ones.

On May 16, 2006, Mr. and Mrs. Meyers filed a motion to cancel the sale. On May 17, Sterling served by facsimile a motion joining in their motion to cancel sale and an “emergency verified” motion to set aside the summary final judgment pursuant to rule 1.540(b)(4). The only ground pleaded in this motion was that the summary final judgment was void because Sterling had not received notice of the hearing on the motion for summary judgment because of the defect in the certificate of service on the notice.

The trial court declined to stay the sale or rule on the motion on an emergency basis. The civil action progress docket indicates that the sale proceeded, and the property was sold to Daniel W. Nester for $850,000. On May 18, the Clerk of the Circuit Court issued a certificate of sale. Although it appears Sterling did not participate in this sale, it later filed an appraisal that valued the property at $1,600,000. If the property is worth this amount and Sterling had a valid lien against the property, then some or all of its $500,000 loan could have been recovered in the foreclosure sale if someone had been willing to-bid an amount closer to the fair market value of the property. Sterling served an objection to the sale.

Sterling filed a. memorandum in support of its motion for .relief from judgment and to set aside the sale. From the appendix, it appears that only the purchaser, Mr. Nester, filed a memorandum in opposition to Sterling’s motion. The circuit court conducted a hearing on this motion on July 6, 2006, but we have no transcript of that hearing. Thereafter, the trial court entered an order simply denying the' motion to set aside the judgment without further explanation and directing the clerk to issue a certificate of title to Mr. Nester. If Mr. and Mrs. Meyers or any of the other defendants objected to this outcome, it is not apparent from the appendix and they have not participated in this appeal.

II. SECTION 702.07 DID NOT DEPRIVE THE CIRCUIT COURT OF JURISDICTION TO CONSIDER THE MOTION FOR RELIEF FROM JUDGMENT

Without a transcript or a more detailed order, it is difficult to determine why the circuit court denied the motion for relief from judgment. However, Mr. Nester’s written memorandum argued that the court had no jurisdiction to rule upon the motion in light of section 702.07. Counsel for Mr. Nester candidly admitted at the oral argument held in this appeal that she believed the trial court had based its ruling on this argument. Despite a 1960 decision from the Third District supporting Mr. Nester’s argument, see Holiday, Inc. v. Glaser, 121 So.2d 677 (Fla. 3d DCA 1960), we conclude that the trial court had jurisdiction to rule on this motion.

Section 702.07 states:

The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms-of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs.

This statute was enacted in 1927 and has remained unchanged since that time. Ch. 11881, § 1, Laws of Fla. (1927). This statute has been cited in case law a total of nine times. Otherwise, it appears to have been largely overlooked.

Facially, the statute grants circuit courts the power to set aside foreclosure decrees at any time before the sale. Nester seeks to interpret a negative from this language: That the statute thus prohibits the circuit courts from doing so after the sale. This interpretation is seemingly supported by one case: Holiday, 121 So.2d 677.

In Holiday, the defendants sought review of an order denying their motion to set aside a foreclosure decree, filed after the sale of the property. In affirming the order, the Holiday court focused initially on the fact that the defendants had not sought a motion for rehearing or a notice of appeal from the judgment of foreclosure before seeking to set it aside. The court thus primarily held that it could not “review a final decree not appealed” in “proceedings to review a subsequent order.” Id. at 678.

However, the court then acknowledged the plaintiffs argument that pursuant to section 702.07 the chancellor “lost the power” to set aside the decree once the sale occurred. Id. The Third District distinguished two cases in which foreclosure judgments were set aside after the sale, concluding those cases “dealt with the equity courts’ power of general supervision of judicial sales made under their decree and further afforded certain procedures for vacating and setting aside such sales.” Holiday, 121 So.2d at 678. Without articulating a specific holding on this issue, the court simply stated: “These cases do not appear to be applicable under the circumstances demonstrated. The question here deals with the chancellor’s power to set aside a foreclosure decree after sale. Accordingly, the appellants having failed to demonstrate error, the order appealed is affirmed.” Id. at 678.

If the latter part of Holiday acts as a holding in that case—an assumption we are not prepared to readily accept—we are not convinced by the analysis. Prior to the Third District’s opinion in Holiday, the Florida Supreme Court had specifically cited section 702.07 while recognizing. the circuit court’s ability to set aside a foreclosure judgment after sale. See Taylor v. Day, 102 Fla. 1006, 136 So. 701 (1931); see also Maule Indus., Inc. v. Seminole Rock & Sand Co., 91 So.2d 307 (Fla.1956). The Florida Supreme Court has thus concluded that section 702.07 does not deprive a court of jurisdiction to set aside a foreclosure judgment once a foreclosure sale occurs.

In Taylor, the trial court entered a foreclosure judgment that gave the defendant the option of redemption'before the judicial sale. However, the judgment did not specify how a lien on the property would be resolved if the defendant exercised the option of redemption. The defendant tendered a redemption amount after the entry of judgment but before the judicial sale, but wanted the redemption contingent upon the plaintiffs payment of the other lien. The plaintiff refused the tender. The day before the scheduled sale, the defendant sought without success to enjoin the sale. The sale proceeded, and the plaintiff purchased the property. The sale ■ was confirmed by decree. Four months later the defendant sought to vacate the foreclosure judgment and sale. The supreme court quoted the text that is now section 702.07 and stated:

If Taylor by his petition to enjoin, or by other formal procedure, presented to the court before the foreclosure sale the fact as to the decree being in the form not requiring the complainant Day to convey a good title to said property free of incumbrance, then Taylor should not be held to have lost his rights to bring a bill of review [the equivalent of a rule 1.540 motion at that time] within six months.

136 So. at 703.

In Maulé Industries, which was cited but distinguished in Holiday, a final judgment of foreclosure was entered, a judicial sale held, objections to the sale were filed and denied, and a certificate of sale issued. Thereafter, the mortgagor filed a motion for rehearing, which the circuit court granted. As a result, the circuit court set aside the foreclosure sale. The supreme court reversed, but rejected the notion that section 702.07 deprived the circuit court of jurisdiction to hear the motion for rehearing:

Section 702.07 stipulates that circuit courts shall have jurisdiction to vacate and set aside decrees of foreclosure at any time before the sale has actually been made. The chapter is silent concerning a rehearing after issuance of the certificate of title. It seems to be the contention of petitioner that the effect of this chapter is to remove mere administrative duties from the circuit court and give them to the clerk, and that if no objections are filed to the sale the clerk’s issuance of the certificate of title ends the matter — no further judicial function being required nor even allowed. If, as in the present case, objections are filed but overruled and the certificate of title then issued, petitioner contends that since the chapter does not provide for a rehearing none may be had, for the reason that the circuit court had thereupon lost jurisdiction of the matter. He alleges that the provision of Section 702.07 supports this contention. We cannot agree to this contention.
It is our opinion that the circuit court had the jurisdiction to entertain the rehearing after issuance of the certificate of title.

Maulé Indus., 91 So.2d at 309-10.

No subsequent case has specifically discussed whether section 702.07 deprives a circuit court of jurisdiction from revisiting a final judgment of foreclosure once a sale has occurred. However, numerous cases have reviewed circuit court decisions doing just that, without any indicia that the circuit court might have acted without jurisdiction. See, e.g., Cicoria v. Gazi, 901 So.2d 282 (Fla. 5th DCA 2005); Powers v. ITT Fin. Servs. Corp., 662 So.2d 1343 (Fla. 5th DCA 1995).

We therefore conclude that section 702.07 cannot be interpreted as depriving a circuit court of jurisdiction to set aside or reconsider a foreclosure judgment upon a proper motion once a foreclosure sale has been held. If the circuit court denied Sterling’s motion for relief from judgment on this ground, the court erred.

III. THE FORECLOSURE JUDGMENT WAS NOT VOID AND THEREFORE STERLING’S MOTION FOR RELIEF FROM JUDGMENT WAS PROPERLY DENIED

Although the trial court may have erred if it relied upon section 702.07 when it denied the motion, we conclude that Sterling’s motion for relief from judgment did not establish a claim that this judgment was void. Accordingly, we affirm the order on appeal because the motion was properly denied.

Rule 1.540 permits a party against whom judgment is entered to seek relief based on a limited list of issues. A judgment can be set aside for “excusable neglect,” Fla. R. Civ. P. 1.540(b)(1), but Sterling did not allege this ground. Sterling does not suggest that it has any newly discovered evidence or that U.S. Bank did anything that would constitute fraud, misrepresentation, or misconduct. .See Fla. R. Civ. P. 1.540(b)(2), (3). It argues only that the judgment is “void.” See Fla. R. Civ. P. 1.540(b)(4).

There is distinction between a judgment that is “void” and one that is “voidable.” See generally Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). A void, judgment is so defective that it is deemed never to have had legal force and effect. In contrast, a voidable judgment is a judgment that has been entered based upon some error in procedure that, allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated. Id.; see also State v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936); Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694 (1929); Paleias v. Wang, 632 So.2d 1132 (Fla. 4th DCA. 1994) (Klein, J., concurring). A voidable-judgment can be challenged by motion for rehearing or appeal and may be subject to collateral attack under specific circumstances, but it cannot be challenged at any time as void under rule 1.540(b)(4).

A trial court’s lack of subject-matter jurisdiction makes its judgment void. N.W.T. v. L.H.D. (In re D.N.H.W.), 955 So.2d 1236, 1238 (Fla. 2d DCA. 2007). So, too, a judgment that is entered against a defendant when the court has no personal jurisdiction over the defendant is generally regarded as a void judgment. Great Am. Ins. Co. v. Bevis, 652 So.2d 382, 383 (Fla. 2d DCA 1995). In this case, of course, the trial court had subject-matter jurisdiction over the foreclosure and personal jurisdiction over Sterling: Sterling had been properly served and had filed an answer. Thus, the narrow issue in this case is whether a judgment of foreclosure is void simply because a defect in a notice of hearing provides no actual notice of the final hearing to a defendant who is another lienholder over whom the court has established personal- jurisdiction if the final judgment is timely served on that defendant following the hearing. We conclude that such a judgment is not void.

Although the. case law on the void/voidable distinction could draw clearer lines, generally so long as a court has jurisdiction over the subject matter and a party, a procedural defect occurring before the entry of a judgment does not render a judgment void. See, e.g., Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So.2d 1219 (Fla. 4th DCA 1993) (concluding that plaintiffs failure to allege sufficient facts supporting diligent- search to permit constructive service did not make subsequent default judgment entered upon such service void, but rather voidable on presentation of proof that a diligent search was not made); Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969) (concluding that sheriffs error in failing to establish in the return of service of process that service on a manager was appropriate because of the absence of corporate directors did not render ensuing default judgment void, but rather voidable upon timely and appropriate motion). This is particularly true when there is evidence that the party received actual notice of the proceedings generally, see Craven, 226 So.2d at 410; Cohen v. Drucker, 677 So.2d 953, 954 (Fla. 4th DCA 1996), and timely notice of the entry of any judgment against them, see Rutshaw v. Arakas, 549 So.2d 769 (Fla. 3d DCA 1989). Procedural defects not affecting jurisdiction must be addressed by a timely motion for rehearing, an appeal, or a timely motion for relief from judgment pursuant to rule 1.540(b)(1), (2), or (3).

In support of its argument that the foreclosure judgment is void, Sterling cites Shields v. Flinn, 528 So.2d 967 (Fla. 3d DCA 1988). In Shields, the Third District declared a judgment void two years after the entry of the judgment because the defendant, over whom the court had personal jurisdiction, had been given no notice of the trial date and had not appeared for the trial. Id.; see also Hammett v. Hammett, 510 So.2d 632 (Fla. 3d DCA 1987) (concluding in a one-paragraph opinion that a party’s failure to receive notice of hearing at which the judgment was entered entitled that party to relief from the judgment pursuant to rule 1.540(b)(4)); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So.2d 758 (Fla. 3d DCA 1986) (holding that plaintiffs were entitled to vacate -final order of dismissal as void when they did not receive the motion for dismissal or notice of the hearing on the order until after the dismissal was entered).

These Third District cases, however, predate the Third District’s opinion in Rutshaw, 549 So.2d 769. In Rutshaw, the Third District refused to apply Shields to set aside a judgment as void even as to a defendant who received one day’s notice of a trial when the defendant was in Athens, Greece. Although the dissenting opinion concluded this scenario involved a total “want of notice” of the trial, 549 So.2d at 771 (Cope, concurring in part, dissenting in part), the majority opinion rejected the argument that this defect would permit the judgment to be set aside “ad infinitum,” id. at 770 (majority opinion). Rather, the majority concluded that the defendant’s knowledge that the trial had occurred and a judgment had been- entered provided the defendant a remedy for the procedural error, and the defendant’s failure to pursue that remedy prevented later relief pursuant to rule 1.540(b).

In this case, Sterling did not have actual notice of the hearing, but it had actual notice of the judgment in time to resolve any problem by filing a motion for rehearing or a notice of appeal. Moreover, the property owner most affected by this proceeding had notice of the summary judgment hearing and failed to appear or object to the foreclosure. We conclude these facts bring this case within the reasoning of Rutshaw and make it distinguishable from Shields,

For purposes of due process, Sterling had a procedure to resolve any error in this judgment by way of motion for rehearing or filing a notice of appeal. It simply chose not to use those procedures. Further, if there were an error in the judgment arising from excusable neglect or fraud or misrepresentation, rule I.540(b)(1) and (2) gave Sterling the ability to correct that error, but Sterling made no such claim. Accordingly, we cannot conclude that the defect in the notice of hearing regarding the motion for summary judgment rendered this foreclosure judgment void and of no effect, subject to a collateral attack at any time after its entry.

Affirmed.

NORTHCUTT, C.J., and VILLANTI, J., Concur.

      . These documents suggest that Sterling was not named as a party in the initial complaint because Sterling erroneously filed its mortgage in the property records of Lee County, rather than in the property records of Collier County where the property is located. Thus Sterling’s note and mortgage were not of pub-lie record when U.S. Bank first filed its complaint for foreclosure.

      . Presumably the notice of hearing referred to the December 2005 motion for summary judgment, filed by U.S. Bank before Sterling became a party to these proceedings.

      . We do not, know whether Sterling is entitled to any portion of the surplus funds generated by the sale. The appendix suggests that the Internal Revenue Service may also have some claim to the surplus funds, and it may have priority over the Sterling mortgage.

      . The objection to sale argued that "the sale must ... be set aside." However, the certificate of service on this document indicates it was served on May 17, 2006, one day before the sale occurred.

      . There is no discussion in the case law regarding the legislative history of this statute. It is noteworthy, however, that it was enacted before the modem rules of civil procedure and at a time when many Floridians were facing foreclosure and ruin due to the collapse of the Florida real estate boom. The collapse began in 1925 and 1926. See William W. Rogers, Fortune & Misfortune: The Paradoxical Twenties, in The New History of Florida 294-96 (Michael Gannon ed., 1996). Thus, it seems likely that the statute was enacted during these hard times to give trial judges more power to protect landowners by expressly permitting the court to take actions after the final judgment of foreclosure and before the sale that were not previously authorized. History, at least, would not seem to support the negative inference proposed by the Nesters, which would provide more protection for the banks and purchasers.

      . See Nobani v. Barcelona Dev. Corp., 655 So.2d 250, 251 (Fla. 5th DCA 1995); Sun Bank, N.A. v. Stocks, 548 So.2d 305, 306 (Fla. 1st DCA 1989); J.M. Realty Inv. Corp. v. Stern, 296 So.2d 588, 589 (Fla. 3d DCA 1974); Aluminum Irrigation, Inc. v. Empire Capitol Corp., 194 So.2d 922, 923 (Fla. 2d DCA 1967); Holiday, 121 So.2d at 678; Maule Indus., Inc. v. Seminole Rock & Sand Co., 91 So.2d 307, 309 (Fla. 1956); Grace v. Hendricks, 103 Fla. 1158, 140 So. 790, 790 (1932); Taylor v. Day, 102 Fla. 1006, 136 So. 701, 703 (1931); Fasel v. Cox, 99 Fla. 968, 128 So. 33, 34 (1930).

      . Although it was not argued by the parties, we have considered whether this holding— that a party’s failure to seek rehearing or appeal of a judgment it receives acts as a procedural bar to any later motion for relief from that judgment under rule 1.540(b)—requires us to affirm the order on appeal. See Sacco v. Slavin, 641 So.2d 955 (Fla. 3d DCA 1994); Rutshaw v. Arakas, 549 So.2d 769 (Fla. 3d DCA 1989). In Sacco and Rutshaw, the Third District held that a party's failure to seek timely rehearing of a judgment barred that party from later seeking any relief from the judgment under rule 1.540. None of these cases, however, involved an argument that the judgment was void.
      It is well established that a motion for relief from judgment cannot be used as a substitute for an untimely motion for new trial or rehearing. See Commonwealth Land Title Ins. Co. v. Freeman, 884 So.2d 164, 167 (Fla. 2d DCA 2004). Although Sterling admitted receiving the judgment within days of its entry, Sterling did not seek rehearing pursuant to Florida Rule of Civil Procedure 1.530. Sterling could have raised a broader range of issues in such a motion, including certain procedural irregularities it has pointed out in this appeal. Sterling's choice to instead seek postjudgment relief limited Sterling to its argument that the judgment was void due to the defective address on the notice of hearing.
      Nevertheless, we are not convinced that the holdings in Holiday, Sacco, and Rutshaw should be extended to prohibit a parly from setting aside a void judgment if the party did not seek rehearing or appeal. Although we conclude this judgment is not void, the rules of procedure permit a party to seek relief from a void judgment at any time and do not prohibit this relief simply because a party who could have sought rehearing or an appeal did not do so.

      . Indeed, permitting any defendant to set aside a foreclosure judgment at any time for a procedural defect in the notice of hearing might call into serious question the title and legal ownership of any property affected by a foreclosure for an indefinite period.

      . If Sterling had made a claim pursuant to rule 1.540(b)(1) alleging mistake, inadvertence, surprise, or excusable neglect, its actions in delaying until the day before the foreclosure sale to seek relief may well have permitted the trial court to exercise its discretion to deny the motion. See, e.g., Bennett v. Halper, 248 So.2d 522 (Fla. 3d DCA 1971).


author: PER CURIAM.

text:
    KELLER LADDERS, INC., a Florida corporation, n/k/a KLI, Inc., Keller Industries, Inc., and its Successors, Appellants, v. George McCORMACK and Deborah McCormack, his wife, Appellees.
    No. 4D06-3110.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Rehearing Denied Dec. 10, 2007.
    Cindy J. Mishcon of Pyszka, Blackmon, Levy, Mowers & Kelley, Miami Lakes, for appellants.
    Alexander D. Brown and Peter G. Herman of Tripp Scott, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Keller Ladders, Inc., n/k/a KLI, Inc. appeals from a final judgment in a personal injury case involving a defective ladder. We find no error in the trial court’s ruling that KLI was the responsible party, in light of the November 14, 2002 answers to interrogatories, the pretrial stipulation, and the manner in which the case was litigated and tried. See Fla. R. Civ. P. 1.190(b) & (c); Bernard v. Kee Mfg., Co., 409 So.2d 1047 (Fla.1982) (stating that a predecessor corporation’s liability may be imposed on a successor corporation where the successor expressly or impliedly assumes the obligations of the predecessor); see also Sexton v. Panning Lumber Co., 260 So.2d 898 (Fla. 4th DCA 1972); B & H Sales, Inc. v. Fusco Corp., 342 So.2d 105, 107 (Fla. 2d DCA 1977); Argenbright v. J.M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967). We also find that the trial court did not abuse its discretion in admitting the testimony of the plaintiffs expert, Dr. Morse. He examined both the incident ladder and an exemplar ladder against which to compare his results. Therefore, his opinion was grounded in underlying data. See Carnival Corp. v. Stowers, 834 So.2d 386 (Fla. 3d DCA 2003). Any conflict between Morse’s testimony and the plaintiffs went to the weight of the testimony, not its admissibility.

Affirmed.

GUNTHER, WARNER and GROSS, JJ., concur.