source: Caselaw Access Project

author: POLSTON, J. CANADY, C.J.,

license: Public Domain

text:
    Andre Isaiah DUNBAR, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-2296.
    Supreme Court of Florida.
    May 3, 2012.

      James S. Purdy, Public Defender, and David Stewart Morgan, Assistant Public Defender, Seventh Judicial Circuit, Dayto-na Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Ann M. Phillips and Wesley Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   POLSTON, J.

Andre Isaiah Dunbar seeks review of the decision of the Fifth District Court of Appeal in Dunbar v. State, 46 So.3d 81 (Fla. 5th DCA 2010) (en banc), on ■ the ground that it expressly and directly conflicts with a decision of another district court of appeal, Gardner v. State, 30 So.3d 629 (Fla. 2d DCA 2010), on a question of law. For the reasons that follow, we approve of the Fifth District’s double jeopardy analysis but remand for resentencing with Dunbar present.

I. BACKGROUND

Following a jury trial in 2009, Andre Isaiah Dunbar was found guilty of robbery with a firearm, two counts of aggravated assault with a firearm, and grand theft. Dunbar, 46 So.3d at 82. The jury made special findings that Dunbar actually possessed the firearm in committing the robbery and in both instances of aggravated assault.

At sentencing, the trial court orally pronounced a life sentence for robbery with a firearm. However, the trial court failed to include in its oral pronouncement the ten-year mandatory minimum sentence for robbery with a firearm required by section 775.087(2), Florida Statutes (2008). 46 So.3d at 82-83. Later that day and without the parties present, the trial court entered a written sentencing order including the mandatory minimum term. See id. at 82.

On appeal to the Fifth District, Dunbar argued that the mandatory minimum term must be stricken from the written sentence because it did not conform to the sentence as orally rendered. Id. In affirming Dunbar’s written sentence, the Fifth District reasoned that, because “imposition of a mandatory minimum sentence under section 775.087(2) ... is a nondis-cretionary duty of a trial court when the record indicates that the defendant qualifies for mandatory minimum sentencing,” the oral sentence in Dunbar’s case was properly subject to the trial court’s correction. Id.

Furthermore, the Fifth District in Dunbar explained that, because the original sentence was invalid, double jeopardy principles were not implicated by the later addition of harsher terms. Id. at 83. In reaching its conclusion that there was no double jeopardy violation, the Fifth District reaffirmed the law as set forth in a prior decision, Allen v. State, 853 So.2d 533, 535 (Fla. 5th DCA 2003), where it held that a similar correction did not violate double jeopardy protections because the original sentence was “illegal” and “subject to correction” under Florida Rule of Criminal Procedure 3.800(a) “at any time.”

In contrast to the Fifth District’s decision in Dunbar, the Second District in Gardner, 30 So.3d at 632, held that double jeopardy considerations precluded the later addition of a ten-year mandatory minimum term, even where the trial court had no discretion to withhold the term. In Gardner, the trial court originally failed to orally pronounce the term required by section 775.087(2), then recalled Gardner after the prosecution belatedly objected to the mistake. Id. at 630-31. When Gardner had been returned to the courtroom, the trial court orally pronounced the correct sentence, including the mandatory minimum term. Id. at 631.

On appeal to the Second District, Gardner sought reversal of the sentence ultimately imposed, arguing that correction of his original sentence violated double jeopardy principles. Id. at 630. The Second District acknowledged that the original sentence was “apparently erroneous” but still agreed with Gardner that the trial court “had no authority to reopen the proceedings once the hearing had concluded and double jeopardy had attached” because “Florida law generally accords a level of finality to a sentence once it has been orally pronounced and the defendant has begun to serve the sentence.” Id. at 632 (quoting Delemos v. State, 969 So.2d 544, 548 (Fla. 2d DCA 2007)).

Judge Altenbernd dissented from the Second District’s decision in Gardner, reasoning as follows:

In Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007), I suggested that the Florida law on the issue of when a sentence becomes final for purposes of double jeopardy may be overly restrictive and that the U.S. Constitution may permit a longer window of time in which courts could correct errors made during oral pronouncement. I continue to believe that our case law does not reflect the extent to which simple human error is inevitable in oral pronouncements and that the constitutional doctrine of double jeopardy was never intended to make sentencing a game in which mental errors by judges and attorneys are irreparable even when the error is discovered minutes later. See United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947), for the principle that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner”).
So long as a trial judge is not exercising his or her discretion to increase the severity of the overall sentence that the trial judge intended to impose at the oral pronouncement, I believe we could and should have a procedural mechanism by which trial judges are allowed to correct misstatements and confusions in sentences and to impose mandated sentencing conditions that were overlooked at oral pronouncement. When a judge inadvertently imposes a fifteen-year sentence on a third-degree felony and a five-year sentence on a second-degree felony, for example, I do not understand why constitutional double jeopardy should bar the judge from imposing the intended fifteen-year sentence for the second-degree felony even a few days after the mistake in the oral pronouncement.
A defendant has a right to a legal sentence. This defendant is about to receive the benefit of an illegal sentence, in all likelihood because a judge and several lawyers were anxious to go to lunch. Somehow, Florida’s technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal sentences, but to sentences that are often more like half jeopardy.

Gardner, 30 So.3d at 634-35 (Altenbernd, J., dissenting).

II. ANALYSIS

A. Double Jeopardy

Dunbar argues that the later addition of a mandatory minimum term violated his double jeopardy rights under both the federal and state constitutions because he was subjected to multiple punishments for the same offense. We disagree.

As it relates to barring multiple punishments for the same offense in the noncapital sentencing context,

the application of the double jeopardy clause ... turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause. If, however, there is some circumstance which undermines the legitimacy of that expectation, then a court may permissibly increase the sentence.

United States v. Fogel, 829 F.2d 77, 87 (D.C.Cir.1987). In other words, the later imposition of more onerous terms “violates the double jeopardy clause only when it disrupts the defendant’s legitimate expectations of finality.” United States v. Young, 958 F.2d 1288, 1291 n. 8 (11th Cir.1992); see Goene v. State, 577 So.2d 1306, 1309 (Fla.1991) (“Goene therefore had no legitimate expectation of finality in the sentence originally imposed and there is no double jeopardy prohibition against reimposition of a correct sentence.”).

For example, the United States Supreme Court held in Bozza, 330 U.S. 160, 67 S.Ct. 645, that there was no violation of double jeopardy principles where the sentencing court later increased an original sentence that it had no discretion to impose. See also DiFrancesco, 449 U.S. at 137, 101 S.Ct. 426 (“Bozza ... demonstrate[s] that the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.”). The defendant in Bozza was convicted of a federal crime that carried a mandatory minimum sentence of $100 and imprisonment, but the original oral pronouncement imposed only imprisonment. 330 U.S. at 165, 67 S.Ct. 645. Five hours later, the sentencing court recalled Bozza and pronounced a sentence including the mandatory fine. Id. In holding that the sentencing court had not violated Bozza’s double jeopardy rights, the Supreme Court reasoned as follows:

This Court has rejected the “doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.” The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. In this case the court “only set aside what it had no authority to do and sub-stitutefd] directions required by the law to be done upon the conviction of the offender.” It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.

Id. at 166-67, 67 S.Ct. 645 (citations and footnote omitted) (quoting In re Bonner, 151 U.S. 242, 260, 14 S.Ct. 323, 38 L.Ed. 149 (1894)).

This Court has also stated that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Harris v. State, 645 So.2d 386, 388 (Fla.1994) (quoting DiFrancesco, 449 U.S. at 135, 101 S.Ct. 426). In Harris, the sentencing court originally sentenced Harris and failed to pronounce terms required by the habitual offender statute. Id. at 387 & n. 1. Harris appealed from his convictions on other grounds, and, in the meantime, this Court issued a decision in another case clearly indicating that habit-ualization should have applied in Harris’s case. Id. at 387 n. 1. Therefore, on remand from Harris’s successful appeal on other grounds, the sentencing court imposed the term. Id. Harris again appealed, this time arguing that double jeopardy-protections precluded a more onerous sentence on remand. Id. In rejecting his argument, this Court reasoned that “Harris had no expectation of finality regarding his sentence where he opened the door to the district court’s appellate jurisdiction on an issue of law that was clarified while his case was still pending.” Id. at 388; see also Goene, 577 So.2d at 1309 (concluding that, because Goene had intentionally hidden information that would have resulted in a higher sentence, he “had no legitimate expectation of finality in the sentence originally imposed”).

Here, in Dunbar, the trial court initially imposed a life sentence without the ten-year mandatory minimum sentencing term for robbery with a firearm under section 775.087(2), Florida Statutes. The trial court initially pronounced a sentence it had no discretion to impose, realized its error later that day, and added the nondis-cretionary mandatory minimum terms to the sentence. We conclude that under these facts, Dunbar had no legitimate expectation of finality in his sentence as orally pronounced and that the trial court did not violate double jeopardy principles by adding the term.

The parties do not dispute that if the prosecution had properly appealed the sentence as orally pronounced, the sentence would have been reversed and remanded with instructions to impose the term. See, e.g., State v. Scanes, 973 So.2d 659, 661 (Fla. 3d DCA 2008); State v. Couch, 896 So.2d 799 (Fla. 1st DCA 2005); State v. Strazdins, 890 So.2d 334 (Fla. 2d DCA 2004); State v. Brendell, 656 So.2d 594 (Fla. 5th DCA 1995). In fact, the parties agree that defendants may receive increased sentences under that procedural framework without a violation of their double jeopardy rights. We see no distinction for double jeopardy purposes between an increase in the sentence following remand and an increase in the sentence within the time allowed for filing an appeal. See DiFrancesco, 449 U.S. at 135-36, 101 S.Ct. 426 (“While Pearce dealt with the imposition of a new sentence after retrial rather than, as here, after appeal, that difference is no more than a ‘conceptual nicety.’ ”) (quoting North Carolina v. Pearce, 395 U.S. 711, 722, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). When a trial court fails to pronounce nondiscretionary sentencing terms, the defendant has no legitimate expectation in the finality of that sentence, at least until the reviewing court has issued a mandate or the time for filing an appeal has run.

Accordingly, the trial court did not violate double jeopardy principles in adding the mandatory minimum term to Dunbar’s sentence on the same day as oral pronouncement. Dunbar had no legitimate expectation of finality in the initial sentence as orally pronounced because it did not include the nondiscretionary mandatory minimum term.

B. Due Process

Dunbar also argues that he had a due process right to be present when the terms of his sentence were increased. We agree.

“ ‘One of the most basic tenets of Florida law is the requirement that all proceedings affecting life, liberty, or property must be conducted according to due process,’ which includes a ‘reasonable opportunity to be heard.’ ” Jackson v. State, 767 So.2d 1156, 1159 (Fla.2000) (quoting Scull v. State, 569 So.2d 1251, 1252 (Fla. 1990)). Therefore, “[cjriminal defendants have a due process right to be physically present in all critical stages of trial.” Muhammad v. State, 782 So.2d 343, 351 (Fla. 2001). Likewise, the United States Supreme Court has determined that “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). A violation of the right to presence is “subject to harmless error analysis and the proceeding will only be reversed on this basis if ‘fundamental fairness has been thwarted.’” Smithers v. State, 826 So.2d 916, 927 (Fla.2002) (quoting Kearse v. State, 770 So.2d 1119, 1124 (Fla.2000)); see Kormondy v. State, 983 So.2d 418, 429 (Fla.2007) (“We hold that Kormondy’s failure to be at these particular [pretrial] conferences did not affect the validity of the trial itself to the extent that the verdict could not have been obtained.”).

We have held that a defendant’s “right to be present extends to the hearing where her sentence will be reconsidered” because sentencing is “a critical stage of every criminal proceeding.” Jackson, 767 So.2d at 1160. In fact, the right to be present at sentencing is “explicitly provided in the Florida Rules of Criminal Procedure,” id., which requires that “[i]n all prosecutions for crime the defendant shall be present ... at the pronouncement of judgment and the imposition of sentence.” Fla. R.Crim. P. 3.180(a).

In this case, Dunbar was entitled to be present when his sentence was increased because a sentencing proceeding in which a sentence is increased is a critical stage of trial at which the defendant’s presence “would contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745, 107 S.Ct. 2658. Therefore, Dunbar’s due process rights were violated. A defendant’s absence at resentencing constitutes reversible error regardless of a defendant’s opportunity to present additional evidence. See Jackson, 767 So.2d at 1160.

Accordingly, the trial court erred in imposing mandatory minimum terms without Dunbar present.

III. CONCLUSION

Because double jeopardy does not bar imposition of the mandatory minimum term in this case, we approve of the Fifth District’s double jeopardy analysis in Dunbar and disapprove of the Second District’s decision in Gardner. Yet, because Dunbar had a right to be present when the mandatory minimum term was added to his sentence, we quash the decision of the Fifth District and remand for resentencing with Dunbar present.

It is so ordered.

LABARGA and PERRY, JJ., concur.

PARIENTE and LEWIS, JJ., concur in result.

QUINCE, J., concurs in result only.

CANADY, C.J., concurs in part and dissents in part with an opinion.

CANADY, C.J.,

concurring in part and dissenting in part.

I would approve the decision of the Fifth District that is on review. Although I fully concur in Justice Polston’s opinion with respect to the double jeopardy issue, I dissent from the decision to quash the Fifth District’s decision and to remand for a sentencing proceeding with Dunbar present.

I conclude that Dunbar has not established that fundamental error arose from the court’s failure to impose the corrected sentence with Dunbar present. The error here was not harmful, much less fundamental. Given the mandatory duty of the sentencing court, there is no way in which Dunbar’s presence “would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). On the contrary, in the circumstances existing here, Dunbar’s presence at a resentencing would be a prime example of a situation “when presence would be useless, or the benefit but a shadow.” Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      . “The scope of the Double Jeopardy Clause is the same in both the federal constitution and the Florida Constitution.” Hall v. State, 823 So.2d 757, 761 (Fla.2002).

      . "A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006).

      . Burdick v. State, 594 So.2d 267 (Fla. 1992).

      . These facts are distinguishable from those prompting the general rule we announced in Ashley v. State, 850 So.2d 1265, 1267 (Fla. 2003), that a sentence may not be increased after service has begun without violating double jeopardy protections. Unlike the initial sentence in Dunbar, which the trial court had no discretion to impose, the initial sentence in Ashley was valid. See Ashley, 850 So.2d at 1266-67. The trial court in Ashley pronounced a sentence and later added terms of habitualization and imposed mandatory minimum terms, neither of which were required by law. See § 775.084(1 )(b), Fla. Stat. (1999) (" ‘Habitual violent felony offender’ means a defendant for whom the court may impose an extended term of imprisonment_”) (emphasis added); § 775.084(4)(b), Fla. Stat. (1999) ("The court ... may sentence the habitual violent felony offender as follows....”) (emphasis added); State v. Cotton, 769 So.2d 345, 349 (Fla.2000) ("[P]ursuant to that statute, trial judges have the discretion not to sentence a qualifying defendant as a habitual felony offender.’’). In contrast, no discretion is given to trial courts in deciding whether to impose mandatory minimum terms under section 775.087(2), which provides that "such person ... shall be sentenced to a minimum term of imprisonment of 10 years.” (Emphasis added.)


author: PER CURIAM.

text:
    Byron SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4562.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Byron Spencer, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


author: HAWKES, J. WOLF, J.,

text:
    Shimeek GRIDINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2517.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Hon. Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, for Appellant.
    Hon. Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, for Appellee.
   HAWKES, J.

Appellant, Shimeek Gridine, argues that the United States Supreme Court’s holding in Graham v. Florida, — U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibits Florida trial courts from imposing a seventy-year sentence on juvenile defendants. We disagree with his assertion that his sentence is the “functional equivalent” of a natural life sentence without the possibility of parole and affirm the trial court’s finding that “[b]y the express holding of Graham, the term of years sentence imposed does not run afoul of the United States Supreme Court’s decision.”

On April 21, 2009, Mr. Gridine approached his victim, pointed a loaded shotgun at him and demanded he hand over whatever money and/or property he had on his person. When the victim attempted to run, Mr. Gridine fired the shotgun at him, “striking [him] on his face, head, neck, shoulder, side and back.” Security cameras at a nearby gas station recorded Mr. Gridine fleeing from the scene of the shooting. He was fourteen years old on the date he shot the victim.

The State filed a Certificate of Filing Direct Information on Juvenile and charged Mr. Gridine with one count of attempted first degree murder, one count of attempted armed robbery, and one count of aggravated battery. He pled guilty to all three counts.

After a sentencing hearing, the trial court adjudicated Mr. Gridine guilty and sentenced him to a seventy-year prison sentence for committing attempted first degree murder and a twenty-five year concurrent sentence for committing attempted armed robbery (the State nolle prossed the aggravated battery charge). Included in the sentence was a twenty-five year minimum mandatory for his using a firearm during his commission of the charged offenses.

Pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure, Mr. Gridine filed a Motion to Correct Sentencing Error, arguing his sentence violated the Eighth Amendment of the United States Constitution. Specifically, he referenced the United States Supreme Court’s decision in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and equated his sentence to “a de facto life sentence.” In its order denying the motion, the trial court found Graham inapplicable to Mr. Gridine’s situation on grounds that he did not face a life sentence without the possibility of parole. We agree.

In Graham, the defendant committed armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. Id. at 2018. The trial court withheld adjudication of guilt and sentenced Graham to concurrent terms of three years’ probation. One year later, Graham admitted to violating the terms of his probation, and the trial court adjudicated him guilty of the underlying offenses and sentenced him to concurrent terms of life imprisonment and fifteen years’ imprisonment. Id. at 2019-20. Graham argued that his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at 2020. Due to juveniles’ diminished moral responsibility, the Supreme Court held that the Eighth Amendment prohibited life sentences without the possibility for parole for juveniles convicted of nonhomicide crimes because life sentences improperly denied juvenile offenders a chance to demonstrate growth and maturity. Id. at 2029-30. Specifically, the Supreme Court held:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

Graham, 130 S.Ct. at 2030.

Appellant asks this Court to apply Graham to his case and find that his seventy-year sentence is the functional equivalent of a natural life sentence. However, the Supreme Court specifically limited its holding in Graham to only “those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” Id. at 2023; See also Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011) (affirming a juvenile’s fifty-year sentence for armed robbery and aggravated battery); and see Manuel v. State, 48 So.3d 94, 98 n. 3 (Fla. 2d DCA 2010) (affirming a juvenile’s forty-year sentence for attempted murder with a firearm).

As in Thomas, we agree that at some point, a term-of-years sentence may become the functional equivalent of a life sentence. See United States v. Mathurin, 2011 WL 2580775 (S.D.Fla. June 29, 2011) (finding that a mandatory minimum sentence of three-hundred and seven years’ imprisonment for a juvenile was unconstitutional). Nevertheless, we do not believe that situation has occurred in the instant case.

We, therefore, AFFIRM the trial court’s imposition of judgment and sentence.

AFFIRMED.

ROBERTS, J., Concurs; WOLF, J., Dissents with Opinion.

WOLF, J.,

Dissenting.

As we stated in Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), the only logical way to address the concerns expressed by the United States Supreme Court in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), is to provide parole opportunities for juveniles. The Legislature, not the judiciary, is empowered to create a provision for parole.

Absent the option of parole, I am at a loss on how to apply the Graham decision to a lengthy term of years. Is a 60-year sentence lawful, but a 70-year sentence not? Regardless, it is clear to me that appellant will spend most of his life in prison. This result would appear to violate the spirit, if not the letter, of the Graham decision. I, therefore, must respectfully dissent. However, in doing so, I note that absent a legislative solution, I look for guidance from either the United States or Florida Supreme Courts.


author: NORTHCUTT, Judge.

text:
    Jimmy SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1481.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2012.
    Rehearing Denied June 12, 2012.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The State-prosecuted a bevy of Manatee County residents based on alleged street gang activity. After most of the defendants entered into plea agreements, Jimmy Sanchez was tried alone. Sanchez was charged with racketeering, § 895.03(3), Fla. Stat. (2006), and conspiracy to commit racketeering, § 895.03(4). During his trial, Sanchez sought a judgment of acquittal on both charges, but the court denied his motion. The jury convicted him of both crimes. We agree with Sanchez’s assertion that the evidence was insufficient to support his convictions. Therefore, we reverse and remand with directions to discharge him.

The original information charged that Sanchez committed racketeering and conspiracy to commit racketeering by engaging in a pattern of racketeering activity evidenced by two predicate acts: possession of a concealed weapon and aiding the escape of Ben Garcia, another person charged in the information. See § 895.02(l)(a)(24), (38) (defining the predicate acts as “racketeering activity”); § 895.02(4) (defining “[pjattern of racketeering activity” as “engaging in at least two incidents of racketeering conduct”). The information was later amended to allege robbery, murder, and aggravated assault as additional predicate acts. See § 895.02(l)(a)(21), (22), (28). These predicate offenses were based on allegations that Sanchez acted as a principal to code-fendant Aurelio Ibarra’s commission of a robbery during which Ibarra killed a man, and that Sanchez was a principal to Ibar-ra’s commission of an aggravated assault.

Sanchez’s motion for judgment of acquittal asserted that the evidence was insufficient to prove any of the alleged predicate acts. The trial court entered a written order denying Sanchez’s motion. However, in her oral remarks, the judge expressed some reservations.

I will tell you that there were some close issues with some of the predicate offenses, and the one that probably concerned me the most was the aiding an escape. And so while I have denied the motion on the aiding escape, I’m going to propose to you all, and let you talk about it, a suggestion on the jury instructions, and that is that we outline in the jury instructions the special interrogatories for the jury to elect which, if any, or all, predicate offenses they would base their decision on, if there were a guilty in this case.
And the reason for that is if there is a guilty verdict, and if I am incorrect, there would be no guidance at all for the attorneys as to what the decision of the jury was. So if, for example, I’m incorrect on aiding an escape, and that were one of the predicate offenses the jury had found defendant guilty of, we wouldn’t know that, and then necessarily there would have to be another trial in this ease.

Thus, the jurors were given an interrogatory verdict in which they were to indicate which, if any, predicate offenses were proved under both the racketeering and the conspiracy to commit racketeering charges. Ultimately, the jurors determined that the State proved just two predicate offenses: possession of a concealed weapon and aiding an escape.

The substantive racketeering charge.

To convict an accused of racketeering under section 895.03(3), the State must prove that he engaged in two incidents of racketeering conduct. In this case, Sanchez’s conviction on the racketeering charge rested on the jury’s finding that he committed the predicate offenses of possessing a concealed weapon and aiding an escape. However, we conclude that the trial judge’s reservations about the latter charge were well taken; the evidence was insufficient to prove that Sanchez aided an escape. Therefore, his racketeering conviction must be reversed. Cf. Mese v. State, 824 So.2d 908, 911 n. 2 (Fla. 3d DCA 2002); Di Sangro v. State, 422 So.2d 14 (Fla. 4th DCA 1982).

When considering this issue we have viewed the evidence in a light most favorable to the State. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). No one disputes that Sanchez and his friend Ben Garcia were standing in front of Garcia’s house and then ducked inside when they spied an approaching police car. A sergeant and a deputy with the Manatee County Sheriffs Office were driving to the residence to serve Garcia with an arrest warrant. The sergeant testified that he approached the front door while the deputy proceeded down the side of the house. When Sanchez answered the sergeant’s knock, the sergeant advised that he “needed to talk to Benjamin Garcia.” Sanchez told the sergeant that Garcia “wasn’t there, he hadn’t seen him.” While the sergeant was talking to Sanchez, the deputy heard someone in the backyard of the residence. The deputy called out “Benjamin, come here.” At that, Garcia walked from behind his home and was immediately arrested. When the sergeant later asked Sanchez why he had lied, Sanchez replied that he “was trying to help [Garcia] out.”

When cross-examined, the sergeant acknowledged that Garcia had not escaped. But on redirect he opined that if the deputy had not been positioned at the side of the house, Garcia would have “gotten away.”

It is a third-degree felony under section 843.12, Florida Statutes (2006), if a person “knowingly aids or assists a person in escaping, attempting to escape, or who has escaped, from an officer or person who has or is entitled to the lawful custody of such person.” There is scant case law interpreting this provision. An earlier version of the statute did not contain the word “knowingly.” The Florida Supreme Court was concerned that the statute as written could be applied to someone who only inadvertently helped an escapee. King v. State, 42 Fla. 260, 28 So. 206 (1900). It observed that the legislature could not have intended such an application and noted a commentator’s suggestion that an information charging the crime “should set out the custody of one as a prisoner, and its lawfulness, the defendant’s knowledge thereof, [and] the acts of assistance or rescue.” Id. at 207 (emphasis supplied). Thus, even before the statute contained a “knowing” requirement, the supreme court suggested that to commit the crime, an accused must know that the police had lawful custody of the escapee. The prior statute also did not contain the “or is entitled to” lawful custody wording. We recognize that an officer serving an arrest warrant is “entitled to” lawful custody of the arrestee. Dupree v. State, 416 So.2d 1228, 1230 (Fla. 1st DCA 1982).

To prove the “knowing” element of the crime, the State had to demonstrate both that Sanchez knew the police were attempting to serve an arrest warrant and that he knew Garcia was attempting an escape. Cf. King, 28 So. at 207. It did neither. On the first point, the sergeant merely told Sanchez that he needed to speak to Garcia; he said nothing about an arrest warrant. ■ No other proof was offered on this topic.

As for Garcia’s purported “escape,” the only evidence was that he went inside the residence and then was heard in the backyard, presumably within the curtilage of his home. The State offered nothing to suggest that Garcia knew that a warrant had been issued for his arrest, that Garcia was trying to escape from his residence, or that Sanchez had any inkling that Garcia was trying to avoid an arrest. In fact, the testimony that Garcia responded to the deputy’s call by stepping forward rather than running away belies any implication that he was attempting an escape.

Without doubt, Sanchez lied to law enforcement. The sergeant saw Sanchez and Garcia walk into the house together, but Sanchez denied that he had seen his friend. But merely giving the police false information generally will not support a criminal conviction, not even a misdemean- or conviction for resisting an officer without violence, § 843.02, commonly referred to as “obstruction.” See W.W. v. State, 993 So.2d 1182, 1185 (Fla. 4th DCA 2008); see also D.G. v. State, 661 So.2d 75 (Fla. 2d DCA 1995) (obstructive conduct, rather than words, is generally necessary to support an obstruction conviction). If the sergeant had disclosed to Sanchez his intention to serve an arrest warrant on Garcia, the evidence conceivably might have supported a finding that Sanchez violated the obstruction statute. See State v. Legnosky, 27 So.3d 794 (Fla. 2d DCA 2010) (noting the three scenarios where words alone are sufficient to obstruct a police officer: where the officer is (1) serving process, (2) legally detaining a person, or (3) asking for assistance). But he did not. And even if he had, obstruction was not charged as a predicate act; the information specifically referenced the crime of aiding an escape, under section 843.12.

To summarize, two predicate offenses are necessary to the commission of criminal racketeering. Here, the State proved only one predicate offense, and thus it failed to prove an element of the charged crime. For that reason, we reverse Sanchez’s racketeering conviction. See § 895.03; Mese, 824 So.2d at 911 n. 2; Di Sangro, 422 So.2d at 15; State v. Adkins, 553 So.2d 294, 297 (Fla. 1st DCA 1989).

The conspiracy to commit racketeering charge.

We now turn to Sanchez’s conviction for conspiracy to commit racketeering under section 895.03(4). This crime may be proved in one of two ways. “The government may either prove (1) that a defendant agreed to the overall objective of the conspiracy or (2) that the defendant personally committed two predicate acts, thereby participating in a single objective conspiracy.” Mese, 824 So.2d at 917, (Ramirez, J., dissenting) (quoting United States v. Shenberg, 89 F.3d 1461, 1471 (11th Cir.1996)).

The Florida standard jury instruction for a section 895.03(4) offense tracks these alternate ways of proving the crime:

3. At the time the defendant joined the conspiracy, [he] did so with the specific intent either to personally engage in at least two incidents of racketeering, as alleged in the Information, or [he] spe-cifícally intended to otherwise participate in the affairs of the ‘enterprise’ with the knowledge and intent that other members of the conspiracy would engage in at least two incidents of racketeering, as alleged in the Information, as part of a “pattern of racketeering activity.”

Fla. Std. Jury Instr. (Crim.) 26.8. (emphasis supplied).

Here, the State alleged in the amended information that Sanchez participated in a racketeering conspiracy by committing the same five predicate offenses that were alleged against him in the substantive racketeering count. At the prosecutor’s request, the trial court listed the alleged predicate acts in its jury instruction on the conspiracy charge. And as was the case on the racketeering count, on this count the verdict form required the jurors to indicate which, if any, of the alleged predicate offenses had been proved.

Under the State’s approach, proof of all the alleged predicate offenses would have satisfied either of the methods for proving conspiracy to commit racketeering. The jury could convict Sanchez on the conspiracy count if it determined that he personally committed two predicate offenses (carrying a concealed firearm and aiding Garcia’s escape), or that he intended that other members of the conspiracy commit at least two incidents of racketeering (acting as a principal to Ibarra’s commission of a robbery and murder and of an aggravated assault), or both.

The jury rejected the allegations that Sanchez acted as a principal to Ibarra’s crimes. But it convicted him of the conspiracy count based on its finding that he personally committed two predicate acts, possession of a concealed weapon and aiding Garcia’s escape. As we discussed in our analysis of the substantive racketeering conviction, the evidence was insufficient to prove that Sanchez aided in the escape of Garcia, and in fact, the evidence did not even establish that Garcia was attempting to escape. Thus, for the purpose of proving the conspiracy charge based on Sanchez’s intent to “personally engage in at least two incidents of racketeering,” the concealed weapon crime was the only predicate act both found by the jurors and supported by the evidence. This one act was insufficient to support the conviction under that theory of conspiracy.

Because the State failed to prove either of the charges against Sanchez, we must reverse his convictions and remand with directions to discharge him.

Reversed and remanded with directions.

WALLACE and KHOUZAM, JJ., Concur.

      . We note that at Sanchez’s trial the jurors were instructed that resisting an officer without violence was a lesser included charge of the predicate act of aiding an escape. That instruction is not at issue on appeal. But it is important to remember that Sanchez was not on trial for the crime of aiding an escape. That offense was alleged solely as a predicate act underlying the racketeering charges for which he was being tried. We doubt that it is proper to give a lesser included instruction regarding a crime that is alleged only as a predicate act. Cf. State v. Adkins, 553 So.2d 294, 297 (Fla. 1st DCA 1989) (holding that a racketeering charge was properly dismissed when felony perjury under section 837.02, one of two alleged predicate acts charged in the information, was dismissed for failure to state a criminal offense, even though the facts might establish the crime of misdemeanor perjury under section 837.012; that crime and that statute were not delineated in the information); see also United States v. Fowler, 535 F.3d 408, 421 (6th Cir.2008) (noting that a crime alleged as a predicate act for purposes of a racketeering charge is not charged crime and that a lesser included offense instruction is not permissible when a defendant has not been charged with a crime; "there is no such thing as a lesser-included-predicate-act instruction").

      . Although the standard jury instruction on the substantive racketeering charge under section 895.03(3) requires that the predicate acts alleged in the information to be read to the jurors, Fla. Std. Jury Instr. (Crim.) 26.7, the instruction on conspiracy to commit racketeering under section 895.03(4) does not, Fla. Std. Jury Instr. (Crim.) 26.8.

      . To be guilty as a principal to a crime, the defendant must, among other things, have "a conscious intent that the criminal act be done.” Fla. Std. Jury Instr. (Crim.) 3.5(a).


author: ALTENBERND, Judge.

text:
    MB FINANCIAL BANK, N.A., as successor to Broadway Bank, an Illinois banking corporation, Appellant, v. PARAGON MORTGAGE HOLDINGS, LLC; Vipul Kabaria; Jugal K. Taneja; Indira Lalwani; Chandresh S. Saraiya; and Downtown St. Pete Properties, LLC, Appellees.
    No. 2D10-3195.
    District Court of Appeal of Florida, Second District.
    March 21, 2012.
    Rehearing Denied June 12, 2012.

      Amy S. Farrior and Raymond T. Elli-gett, Jr., of Buell & Elligett, P.A., Tampa; and Michael J. Kurzman and Peter L. Meltzer of Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., Plantation, for Appellant.
    Zala L. Forizs of Forizs & Dogali, P.A., Tampa, for Appellee Paragon Mortgage Holdings, LLC.
    Ryan Christopher Rodems of Barker, Rodems & Cook, P.A., Tampa, for Appel-lee Vipul Kabaria.
    Constantine W. Papas of Law Office of Constantine W. Papas, P.A., Tampa, for Appellee Jugal K. Taneja.
    No appearance for Appellees Indira Lal-wani, Chandresh S. Saraiya, and Downtown St. Pete Properties, LLC.
   ALTENBERND, Judge.

MB Financial Bank appeals an amended final judgment in an action for declaratory relief that addresses the rights of certain lenders in a complex loan transaction. The transaction involves a subordination and standstill agreement that created a “senior indebtedness” and a “junior indebtedness.” We conclude that the trial court erred in declaring that the senior indebtedness had been satisfied by virtue of its transfer from one owner to another. We further conclude that the trial court did not err in declaring that certain collection actions could proceed against four guarantors of the junior indebtedness. The agreement at issue in this case may have limited the ability of the owner of the junior indebtedness to obtain immediate payment from the borrower or from a guarantor, but that agreement did not prevent it from obtaining a judgment to protect its rights. To the extent that factual issues may exist in this case, they have not been tried. Accordingly, we reverse and remand this case to the trial court with guidance on the legal issues and for further proceedings, including any additional evidentiary hearing that might be needed to resolve this matter.

I. THE BASIC STRUCTURE OF THIS VENTURE’S FINANCING

The record on appeal provides little information about the underlying commercial venture that needed capital. Prior to November 2006, the borrower, Fuel Investment and Development II, LLC (Fuel), had an existing loan or loans in the principal amount of at least $1,480,000 with a lender now known as Paragon Mortgage Holdings, LLC (Paragon). Fuel had secured this loan with a mortgage on certain property. Paragon’s loan was also protected by personal guaranties signed by four investors in Fuel. The guarantors were Chandresh S. Saraiya, Jugal Taneja, Indira Lalwani, and Vipul Kabaria.

In 2006, this venture apparently needed a sizable influx of capital. Fuel contacted Broadway Bank to obtain a loan. MB Financial Bank is the successor to Broadway Bank, and this opinion will describe the lender as Broadway Bank. Broadway Bank agreed to loan Fuel $4,800,000 secured by a mortgage and also guaranteed by the same four guarantors. Paragon received $1,000,000 of the Broadway Bank loan, which was used to pay down Fuel’s loan obligations with Paragon, thereby reducing Paragon’s exposure in this venture.

In connection with the loan from Broadway Bank, the parties entered into a “Subordination and Standstill Agreement,” which will be described in greater detail later in this opinion. Broadway Bank, Paragon, and Fuel all signed this agreement. All four of the guarantors signed for Fuel, but not in their capacity as guarantors. This agreement made the larger, newer Broadway Bank loan the “senior indebtedness” and the smaller, older Paragon loan the “junior indebtedness.”

In July 2008, the note to Broadway Bank matured, and Fuel did not pay the indebtedness. Broadway Bank discussed this situation with the guarantors, who were not of a single mind on the subject. It is undisputed that, in the meantime, two of the guarantors, Chandresh S. Saraiya and Jugal Taneja, formed another entity, Downtown St. Pete Properties, LLC (Downtown Properties). Downtown Properties purchased the senior indebtedness from Broadway Bank. This purchase of all of the senior loan documents was funded by a $1,000,000 payment to Broadway Bank along with a new loan from Broadway Bank to Downtown Properties in the amount of $3,800,000. The new loan was secured by a security interest in the loan documents for the senior indebtedness with Broadway Bank, including the mortgage and guaranties. This security interest allowed Broadway Bank to recover its interest in the mortgage and guaranties in the event the bank felt its collateral was threatened.

In a nutshell, it appears that Fuel owed money to Paragon in 2008 on the junior indebtedness and it owed money to Downtown Properties as the assignee of the senior indebtedness from Broadway Bank. Downtown Properties in turn owed Broadway Bank $3,800,000. The four guarantors’ exposures on these investments were essentially divided into two groups. The two guarantors who created Downtown Properties indirectly owned the senior indebtedness on which all four guarantors were at risk. They also indirectly controlled the senior indebtedness to which the Paragon loan was subordinated as the junior indebtedness.

II. THE PARAGON LAWSUITS AND THE RESULTING ACTION FOR DECLARATORY JUDGMENT

Even before Downtown Properties entered this picture, Paragon filed actions to enforce its guaranties against each of the four guarantors. These suits were consolidated. Both Downtown Properties and Broadway Bank intervened in the consolidated action. After intervening, Broadway Bank and Downtown Properties filed a pleading in which they sought declaratory relief. In essence, Broadway Bank and Downtown Properties wanted to establish that Paragon could take no action against the guarantors until the senior indebtedness was satisfied.

Paragon answered the intervenors’ pleading, raising several affirmative defenses. Most significantly, it maintained that the Broadway Bank loan to Fuel had been satisfied by virtue of its transfer to Downtown Properties.

The trial court conducted a nonjury trial of these issues in January 2010. During the first day of trial, the court familiarized itself with the documents involved in the transaction and with the legal arguments of the parties. The following morning, without receiving any evidence, the court indicated that it was “going to deny” the “motion for declaratory judgment” filed by Broadway Bank and Downtown Properties. Its explanation for this outcome is best explained in its own words from the amended final judgment. It states, in pertinent part:

13. The Court determines, as a matter of law, that the Standstill Agreement did not prohibit [Paragon Mortgage, Inc.,] or its assigns, [Paragon Mortgage Holdings, LLC], from seeking enforcement of the guaranty agreements given to secure the First [Paragon Mortgage, Inc.,] Note, as distinguished from the prohibition in the Standstill Agreement from taking enforcement action against or seeking payment from [Fuel] or from the Property securing the Broadway Bank Loan. The Court finds that while the Standstill Agreement prohibited action by [Paragon Mortgage Holdings, LLC,] to enforce the indebtedness owed by the borrower, [Fuel], it did not prohibit actions by [Paragon Mortgage Holdings, LLC,] to enforce the indebtedness of the Guarantors because the indebtedness of a guarantor is distinct and separately enforceable from the primary obligation of the borrower.
14. Furthermore, by purportedly acquiring the Broadway Bank Loan, it was [Downtown Properties’] intent to obtain control over and prevent the payment in full of the Broadway Bank Loan, thereby preventing [Paragon Mortgage Holdings, LLC,] from ever being in a position to enforce the First [Paragon Mortgage, Inc.,] Note.
■ 15. The formation of [Downtown Properties] by two of the four guarantors of the First [Paragon Mortgage, Inc.,] Note and of the Broadway Bank Loan and the transaction between [Downtown Properties] and Broadway Bank after default by [Fuel] of payment of the Broadway Bank Loan were intended to defeat the intent of the parties to the Subordination and Standstill Agreement, and therefore operated as a full satisfaction of the Broadway Bank Loan.
16. The Court further finds that it would be inequitable to enforce the Standstill Agreement against [Paragon Mortgage Holdings, LLC,] on the evidence presented, including, without limitation, the attempt to characterize the payment made to Broadway Bank by [Downtown Properties] as a purchase or assignment as opposed to what in substance it truly was, a payment by two of the four Guarantors of their guaranty obligation to Broadway Bank. Accordingly,
IT IS ADJUDGED that the Subordination and Standstill Agreement does not preclude collection actions by [Paragon Mortgage Holdings, LLC,] against the Guarantors of the First [Paragon Mortgage, Inc.,] Note; and even if it did otherwise preclude such action, it would be inequitable to permit the enforcement of the Standstill Agreement against [Paragon Mortgage Holdings, LLC,] under the facts presented;
IT IS ADJUDGED that [Paragon Mortgage Holdings, LLC,] may proceed with its action against the Guarantors.
This Court makes no ruling on what preclusive or collateral estoppel effect this final judgment has, if any, on any other litigation pending among the parties.

III. THE TRANSFER OF THE SENIOR INDEBTEDNESS TO DOWNTOWN PROPERTIES DID NOT OPERATE AS A FULL SATISFACTION OF THE LOAN

The trial court determined that the transfer of the loan to Downtown Properties operated as a full satisfaction of the senior indebtedness because the creation of Downtown Properties and this transaction “were intended to defeat the intent of the parties to the Subordination and Standstill Agreement.” This determination is erroneous for several reasons.

First, the trial court did not hear any testimony on this subject. The record simply contains no evidence to support a finding of any intent to defeat the intent of the subordination and standstill agreement. Second, the trial court did not declare the agreement assigning the Broadway Bank note to Downtown Properties ambiguous, and we are frankly unsure why the court was trying to determine the intent of two guarantors to defeat the intent of the subordination and standstill agreement. Finally, even assuming that the two guarantors were trying to avoid or frustrate the terms of the subordination and standstill agreement when Downtown Properties purchased the senior indebtedness loan documents, Paragon provides no legal explanation for why their intent would justify treating the transaction as the equivalent of a payment on the senior indebtedness.

No one argues that the Broadway Bank note and mortgage could not be assigned or transferred to another entity. The subordination and standstill agreement actually contains an express provision regulating the assignment of the junior indebtedness, but not the senior indebtedness. It contains a rather standard clause making its terms binding on any successor or assign.

Downtown Properties appears from this record to be a properly created legal entity that happens to be owned by two of the guarantors. No one has cited any case holding that a transfer of a note to a corporation or other legal entity, owned by some but not all of the guarantors on the note, acts as a satisfaction of the note. While such a structure may create the potential of conflicting or competing duties or responsibilities of the guarantors, we can posit no legal theory or equitable principle that would cause Fuel to be forgiven of this indebtedness as a result of this transfer.

Paragon argues that this case is controlled by Hughes v. Shaner, 128 Fla. 183, 174 So. 400 (1937), and Florida Land Holding Corp. v. Lee, 118 Fla. 107, 159 So. 7 (1935). These cases recognize that in equity a tax certificate “will be regarded as redemption where it is part of a transaction by which one whose duty it was to pay the taxes attempts thereby to defeat a lien on the property by letting it sell for taxes and then buying it in [sic] at the tax sale in an effort to defeat the rights of lienors.” Florida Land Holding, 159 So. at 8; see also Hughes, 174 So. at 401. We simply do not find these cases, which involved tax deeds and tax certificates, to be controlling.

On this record, we reverse the trial court’s determination that the senior indebtedness has been satisfied.

IV. THE SUBORDINATION AGREEMENT DOES NOT PREVENT PARAGON FROM OBTAINING JUDGMENTS IN THE UNDERLYING ACTIONS

The major focus of the arguments in this appeal has centered on the right of Paragon to proceed with its lawsuits to obtain judgments against the guarantors. With one significant qualification, we conclude that the trial court reached a correct result on this issue.

The subordination and standstill agreement is eleven pages long, excluding the signature pages and attachments. It was obviously written by Broadway Bank’s attorneys and it favors that entity. It contains recitals, definitions, and several complex substantive articles. We will not recite its entire content in this opinion. The subordination provision contains a “subordination of payment” clause. It clearly provides that the senior indebtedness will be paid first and that Paragon will receive no payment “by or on behalf of Borrower” directly or indirectly in cash or property until the senior indebtedness has been satisfied. The agreement also contains a “standstill” provision that broadly prevents Paragon from bringing any “enforcement action” unless the senior indebtedness has been satisfied or Paragon acquires the senior indebtedness.

In a nutshell, Paragon is upset that the two guarantors have acquired control over the senior indebtedness through its assignment to Downtown Properties because they fear the two guarantors will never completely pay off the loan to Downtown Properties in order to prevent Paragon from pursuing collection on the junior indebtedness. Although Paragon might well be able to resolve this situation by purchasing the primary indebtedness, we conclude that the language of the subordination and standstill agreement is not as restrictive as Broadway Bank and Downtown Properties argued below.

“Borrower” in this agreement refers only to Fuel. Nothing in this elaborate agreement would include the four guarantors within the definition of borrower. “Enforcement Action” is defined to include virtually any legal proceeding that one could imagine filing against the borrower or against the real property that is the collateral for these loans. Nothing in the definition of enforcement action would bar an action against a guarantor. Although the appended list of loan documents for the junior indebtedness includes the guaranties among those documents, the guarantors have not signed this agreement as guarantors and the agreement is silent on the subject of lawsuits against the guarantors.

Finally, the agreement subordinates “payments.” Nothing in this agreement would appear to prevent Paragon from exercising its rights under its guaranty agreements to obtain judgments against the guarantors. If Paragon were forced to delay these suits indefinitely when the guarantors were not parties to the subordination agreement, Paragon would risk a situation in which its actions were barred by a statute of limitations. Perhaps even more important, another subsequent creditor of one of the guarantors could proceed to judgment and obtain rights superior to Paragon’s rights against that guarantor. Nothing in the agreement, including the language in the subordination or standstill provisions, requires this outcome.

Accordingly, under the unambiguous language of the agreement, Paragon can proceed to judgment against the guarantors assuming it can prove the elements of its claims against the guarantors. Once it receives a judgment, payment of that judgment will be subordinated to the senior indebtedness. Thus, if any guarantor attempted to satisfy Paragon’s judgment, the money delivered to Paragon could not be used to pay down its judgment until the senior indebtedness is paid in full. Until that time, Paragon would be required to give any “payment” to the holder of the senior indebtedness.

Accordingly, with this guidance we affirm the judgment in part, reverse the judgment in part, and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

WALLACE and KHOUZAM, JJ„ Concur.

      . This court is issuing, on this same date, an opinion in a closely related case. See Abed, Inc. v. Saraiya, 85 So.3d 1132 (Fla. 2d DCA 2012).

      . The amounts we provide are not intended to be binding as factual determinations, but merely approximations to provide the context of these transactions. Paragon’s lawsuit refers to two promissory notes for money it allegedly advanced to Fuel under an existing mortgage.

      . The structure is somewhat more complex than described in this opinion because each of the four guarantors was a member of a separate limited liability company; the companies were the members of Fuel.

      . Actually, the trial court did not "deny” declaratory relief. It declared the rights and responsibilities of the parties in a manner that was adverse to the intervenors.

      . It also contains a “subordination of lien” clause.


author: GROSS, J.

text:
    ROYAL PALM CORPORATE CENTER ASSOCIATION, LTD., a Florida limited liability company, and Royal Palm Corporate Center, Inc., a Florida corporation, Thirty Fifth Street Land Development Associates, LLC, a Florida limited liability company, Osprey Boulevard Properties, LLC, a Florida limited liability company, The Grove Community Association, Inc., a Florida non-profit corporation, and Anthony V. Pugliese, III, an individual, Appellants, v. PNC BANK, NA, as successor by merger to National City Bank, NA, as successor by merger to Fidelity Federal Bank & Trust, Appellee.
    Nos. 4D10-4152, 4D10-4822, 4D11-1787, 4D11-1853.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Rehearing Denied May 10, 2012.

      Edgar Belaval, Jr. of Belaval Law Firm, P.A., Delray Beach, for appellants.
    Michael T. Kranz and Roberto M. Vargas of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee.
   GROSS, J.

We affirm the procedure the circuit courts utilized in the final foreclosure judgments on appeal, where the courts allowed the plaintiff to pursue its remedy at law and authorized the initiation of the equitable remedy, the foreclosure sale process, only after the plaintiff certified that the money judgment had not been satisfied.

Facts

These consolidated appeals involve loans that PNC Bank made to corporate entities associated with Anthony V. Pugliese III. In a representative case, PNC sued Pug-liese, Royal Palm Corporate Center Association, Ltd., and Royal Palm Corporate Center, Inc. in a two-count complaint. According to the complaint, PNC lent Royal Palm Corporate Center Association over $3 million. Royal Palm Corporate Center Association put up a piece of real estate as security for the loan; this was not a loan for the purchase money of the real estate. Royal Palm Corporate Center, Inc., the general partner of Royal Palm Corporate Center Association, and Pugliese each executed commercial guaranties for security.

In count one of the complaint, PNC sought a foreclosure judgment on the mortgaged property and, if necessary, a deficiency judgment. In count two, PNC sought money damages for breach of the note and guaranties. The case went to a non-jury trial.

The trial court found in favor of PNC. On the foreclosure count, the court determined that the defendants owed PNC $4,753,786.19. The final judgment did not set a sale of the mortgaged property, but provided:

C. The court is withholding having a sale of the mortgaged property, pending an application by the plaintiff requesting a sale of the mortgaged property and certifying that the monetary judgment has not been satisfied.
D. Upon application by plaintiff requesting a sale of the Mortgaged Property and certifying that the monetary judgment has not been satisfied, this court shall enter an order instructing the Clerk of Court to sell the mortgaged property at the next available sale date in accordance with Section 45.031, Florida Statutes.

The court reserved jurisdiction to handle any remaining issues, such as a deficiency judgment. On the damages count, the trial court repeated that the defendants owed PNC $4,753,786.19, and ordered that PNC “recover from the defendants” that amount, “for which let execution issue.”

The defendants moved for reconsideration and rehearing, among other things. They attacked the structure of the final judgment, which allowed PNC to attempt collection on the money judgment before setting a foreclosure sale. It does not appear that the court ruled on the motion prior to the filing of the notice of appeal.

The above summary of the facts in PNC Bank, N.A. v. Royal Palm Corporate Center Association, Ltd., is similar to the resolution of the other cases. In each case, PNC sued Pugliese and an associated corporation for foreclosure and damages. In each, the trial court found for PNC and implemented the two-step structure of the final judgment described above. The judgments are nearly identical.

Section 45.031 Did Not Require the Trial Courts to Set a Foreclosure Sale

Defendants first contend that the trial courts contravened section 45.031, Florida Statutes (2008), by granting foreclosure without scheduling a foreclosure sale. They argue that subsection 45.031(l)(a) requires that the foreclosure sale be set within a certain time and that it was an abuse of discretion to indefinitely stay the sale. We reject this argument.

In relevant part, subsection 45.031(l)(a) provides:

In the order or final judgment, the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment.

The defendants rely on the above language.

However, the plain language of the statute demonstrates that the procedure set forth in section 45.031 is not the exclusive procedure for setting a foreclosure sale and that a judge has the discretion to use a different procedure. The introductory paragraph of section 45.031 states:

In any sale of real or personal property under an order or judgment, the procedure provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.

(Emphasis supplied.) By the use of the term “may” and the suggestion that section 45.031 procedure is an “alternative to any other sale procedure,” the statute plainly gives a circuit judge discretion to tailor the procedure for a foreclosure sale. See The Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla.2002) (“The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’ ” (citation omitted)).

The nature of mortgage foreclosures lends support to this interpretation. Mortgages are “foreclosed in equity.” § 702.01, Fla. Stat. (2008). “Historically, courts of equity came into being in order to provide a forum for the granting of relief in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevented the giving of relief.” Hedges v. Lysek, 84 So.2d 28, 31 (Fla.1955). While section 45.031 contains a ready-made procedure for a court to adopt, the statute does not mandate that a court utilize that procedure; rather, the judge may fashion a different sale procedure after considering the equities in the case.

The defendants cite a line of cases to argue that a trial court’s indefinite stay of a sale constitutes an abuse of discretion. Those cases are distinguishable because they involve courts working within the structure of a section 45.031 sale procedure and mortgagees that are prevented from realizing the benefits of a foreclosure judgment, without an equitable basis which justifies the bar.

An exemplar is First Nationwide Savings v. Thomas, 513 So.2d 804 (Fla. 4th DCA 1987). There, a trial court issued a final judgment of mortgage foreclosure, apparently setting the sale date for the property. Id. at 804-05. The sale was stayed, reset, and subsequently postponed. Id. at 805. In the order on the second delay, the trial court cancelled the sale and stated “the sale of subject property shall not be reheld.” Id. On appeal, we held that “[t]his permanent cancellation of the sale without explanation is reversible error.” Id. (emphasis supplied). We reasoned that “[a] lender has the right, under the statutes, except under extraordinary circumstances not found in this record, to proceed with the sale of any real estate on which it has successfully foreclosed its mortgage.” Id. Thus, we reversed and instructed the trial court to set a sale date. Id.

Thomas presents a scenario different than this case. There, the trial court in the final judgment set a date for the sale and adopted the alternative procedure set out in section 45.031, rather than fashioning its own procedure. Once it adopted the statutory procedure, the court’s discretion to indefinitely delay the sale sought by the plaintiff was limited, in the absence of circumstances justifying the delay. In the instant case, however, the final judgments expressly declined to set sale dates so that PNC could pursue its final judgment at law. They provided that the section 45.031 sale procedure would be invoked once PNC certified that it was unable to satisfy the money judgments against the defendants.

The other cases in the line likewise involved situations where sales were actually set, and where the failure to reschedule the sales unjustifiably frustrated the rights of the plaintiffs to the sale of the foreclosed property. See Bankers Trust Co. v. Edwards, 849 So.2d 1160 (Fla. 1st DCA 2003) (citing Thomas); Bankers Trust Co. of Cal., N.A. v. Weidner, 688 So.2d 453 (Fla. 5th DCA 1997); Chem. Mortg. Co. v. Dickson, 651 So.2d 1275 (Fla. 4th DCA 1995) (citing, inter alia, Thomas); A Mortg. Co. v. Bowman, 642 So.2d 123 (Fla. 4th DCA 1994) (citing, inter alia, Thomas ); Admin, of Veteran’s Affairs v. Bertsche, 574 So.2d 320 (Fla. 4th DCA 1991) (citing, inter alia, Thomas). Only after the setting of the sale according to the statutory procedure would the trial court’s discretion to control the timing of the sales fall under the limitations described in the Thomas line of cases.

In addition, the defendants rely on LR5A-JV v. Little House, LLC, 50 So.3d 691 (Fla. 5th DCA 2010). However, the case does not support the defendants’ contention that the statute is a procedural straightjacket for a circuit court. Instead, it supports the notion that, even within the section 45.031 procedure, the circuit court “has reasonable discretion within the statutory framework to set or reset the date for such sale,” which is “consistent with the equitable nature of such proceedings,” id. at 693-94; a circuit court has the ability to “consider the interests of all of the parties in determining the matter of the judicial sale,” id. at 695.

Finally, the defendants base an argument upon Rule of Civil Procedure Form 1.996(a), “Final Judgment of Foreclosure.” The defendants contend that the final judgments unlawfully deviated from this form, since the form provides in paragraph 3: “If the total sum with interest at the rate described [ ... ] are not paid, the clerk of this court shall sell the property at public sale on ... (date) ..., to the highest bidder for cash [ ... ] in according with section 45.031, Florida Statutes[.]” Nothing in the Supreme Court’s adoption of the form makes its utilization mandatory in all cases; rather, its purpose is to provide a clear and readable judgment that is in “conformity with current statutory provisions and requirements.” In re Amendments to Fla. R. of Civ. P., 44 So.3d at 558. In any event, a requirement to follow this particular form would be at odds with the discretion granted in section 45.031.

In sum, because section 45.031 gives a circuit court discretion to fashion the foreclosure sale procedure, and limits that discretion only after the court uses the statutory procedure to set a sale date, the trial courts in these cases did not abuse their discretion in withholding the setting of the sale of the subject properties until PNC certified that its money judgments were unsatisfied.

PNC Could Pursue an Action on the Note and and an Action on the Mortgage at the Same Time

In their second issue, the defendants contend that the trial courts abused their discretion by awarding foreclosure and damages and allowing PNC to attempt to collect damages without submitting to a deficiency hearing. We reject this argument as well.

It has long been the common law that, to collect money owed on a note, a mortgagee may pursue its legal and equitable remedies simultaneously, until the debt is satisfied. In the early case of Booth v. Booth (1742) Eng. & Wales Chancery, 2 Atk. 242 (3d. ed. 1754), the plaintiff brought an action against the defendant for the accounting of an estate owned by the plaintiffs brother, for which estate the defendant had been the guardian and on which he had obtained a mortgage. Id. at 242-48. The defendant brought the action of ejectment for possession of the estate and, at the same time, an action “to foreclose the equity of redemption.” Id. The plaintiff sought a stay of the defendant’s ejectment action because of his concurrent foreclosure proceedings. Id. Lord Chancellor Hardwieke wrote, “Though the defendant is foreclosing the equity of redemption here, yet he is not precluded from bringing an ejectment at law at the same time, unless there is something very particular to take it out of the common case.” Id. at 243. But because whether the mortgage was already satisfied was in dispute, “it is not quite so clear as the common case,” and the chancellor stayed the ejectment. Id.

More than 200 years later, the supreme court of New Mexico articulated the complete rule, its rationale, and the minority view:

Under the traditional common law rule, upon default by the mortgagor, a mortgagee has independent remedies which he or she may pursue. The mortgagee may sue either on the note or foreclose on the mortgage, and may pursue all remedies “at the same time or consequently.” As long as there is no double recovery on the debt, the mortgagee may pursue either or both remedies. Absent a statute to the contrary, “state courts have uniformly held that holders of notes secured by a deed of trust can both sue the maker or guarantor and foreclose on the property regardless of which action they pursue first.”
The distinction between the two remedies is found in the historic view that a foreclosure action is purely quasi in rem, affording relief only against the secured property, and a suit on a bond or note is in personam.[] A judgment of foreclosure applies only to the property secured by the mortgage, and does not impose any personal liability on the mortgagor. If the foreclosure of the mortgaged property fails to satisfy the debt secured by the mortgage, the creditor may then pursue an action on the underlying note.
Some jurisdictions have adopted legislation providing for a “one action” rule that requires a mortgagee to file only one lawsuit in which he.or she pursues all remedies for a debt that is secured by a mortgage. One of the purposes of such statutes is to protect the mortgagor from multiple lawsuits since the mortgagee’s separate causes of action, even though theoretically distinct, are closely connected and should be decided in one suit.

Kepler v. Slade, 119 N.M. 802, 896 P.2d 482, 484-85 (1995) (footnote omitted) (citations omitted).

The traditional common law rule is the majority rule in the United States; it has been recognized by the Supreme Court of the United States on at least three occasions. As the Kepler court noted, the jurisdictions that do not follow the rule have statutes that require a mortgagee to file only one suit for all of his remedies (the “one-action rule”), or consecutively.

Florida is in the majority. Less than a year after Florida became a state, the Supreme Court noted this tenet of the common law without any disagreement in Manley v. Union Bank of Florida, 1 Fla. 160 (Fla.1846). There, a mortgagee argued “that a mortgagee has, at common law, three remedies, all of which he may pursue at the same time, viz: that he may bring suit at law, upon the bond or note, secured by the mortgage; institute an action of ejectment, to put himself in possession of the rents and profits of the estate; and file a bill in Chancery, to foreclose the mortgage.” Id. at 214. To this, the Court responded, “All this is very true.” Id. Even if the Supreme Court had not approved the rule, it would have been the common law of this state by operation of statute.

We have found no Florida statute, and none has been called to our attention, that would prevent a mortgagee from pursuing legal and equitable remedies at the same time. The statute concerning deficiencies, section 702.06, Florida Statutes (2008), is more limited in nature than the statutes in the minority of states. Although the reporters of the Restatement seem to believe that section 702.06 is something of a one-action rule, see Restatement (Third) of Property (Mortgages) § 8.2 cmt. b (1997), neither its language nor its history or purpose support that reading.

Section 702.06 binds a plaintiff to a deficiency decree once the plaintiff sets the deficiency process in motion, but expressly provides that “the complainant shall also have the right to sue at common law to recover such deficiency,” except against an original mortgagor when the mortgage was for the purchase price of the subject property, the original mortgagee buys the property at the foreclosure sale, and the original mortgagee obtains a deficiency decree against the original mortgagor. Not only has PNC not yet started the deficiency process, but the mortgages here were not for the purchase price of the subject properties. If PNC certifies non-satisfaction of the money judgments, it will be bound to the deficiency process and only if the trial courts do not adjudicate the merits of a deficiency will PNC be able to bring separate law actions on the foreclosure judgments for the deficiency.

With regard to the statute’s history, the legislature enacted what is now section 702.06, which took the place of an old equity rule of like effect, to grant a court the power to enter deficiency decrees; “[b]efore the adoption of [the equity rule] in 1873 ... no deficiency was authorized in equity courts, and the only remedy for a balance due was a suit at law.” See Letchworth v. Koon, 99 Fla. 451, 127 So. 321, 322 (1930). Section 702.06’s grant of such power was designed to “relieve the parties from the expense and vexation of two suits, one equitable and one legal,” and to allow “the whole controversy [to] be adjusted in one suit.” Edwards, 130 So. at 59 (emphasis added). This is what PNC has done.

It appears we have not seen these remedies pursued at the same time in the same action because, before 1967, a suit at law on a note and a suit in equity to foreclose a mortgage proceeded in separate courts. In 1967, Florida adopted rules of civil procedure which gave circuit courts jurisdiction to hear cases in which counts at law and counts in equity could be set forth in the same complaint as alternative grounds for relief. In re Fla. Rules of Civil Procedure 1967 Revision, 187 So.2d 598, 600 (Fla.1966); Fla. R. Civ. P. 1.040, 1.110(g). In fact, Rule 1.110(g) provides that claims may be “stated in the alternative,” “regardless of consistency and whether based on legal or equitable grounds or both.”

As alluded to by the Kepler court, the reason that an action at law on a note may be pursued simultaneously with the equitable remedy of foreclosure is that the two remedies are not inconsistent. Junction Bit & Tool Co. v. Village Apartments, Inc., 262 So.2d 659, 660 (Fla.1972). “[P]ursuit of one without satisfaction is not a bar to the other.” Klondike, Inc. v. Blair, 211 So.2d 41, 43 (Fla. 4th DCA 1968), approved, Junction Bit, 262 So.2d at 660; see also Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408 (Fla. 2d DCA 1983) (an action on a note and an action to foreclose on a mortgage are not inconsistent remedies). Klondike is distinguishable but instructive. In Klondike, the plaintiffs first obtained a judgment on the note, did not cause execution to issue, and never received any payments; over a year after the issuance of the final judgment on the note, the plaintiff sued in foreclosure. 211 So.2d at 41. We reversed a summary judgment in favor of the defendant, holding that the doctrine of election of remedies did not apply because the remedies were not inconsistent. Id. Unlike the plaintiff in Klondike, PNC did not bring separate actions on the notes before pursuing foreclosure. But, the principle articulated in Klondike is broad enough to apply here.

In light of the common law, the merger of equity arid law courts, and the consistency of the remedies, the instant suit at law on the note and guaranties was properly joined with the mortgage foreclosure. Nothing precluded PNC from pursuing its legal remedy first; if the judgment is unsatisfied, the court has retained the ability to set a foreclosure sale. That sequence — money judgments first, foreclosures second — approximates the procedure upheld by this Court in Klondike and the supreme court in Junction Bit & Tool Co., and it is consistent with the principle that an unsatisfied money judgment is no bar to a later foreclosure.

Defendants rely heavily on Farah v. Iberia Bank, 47 So.3d 850 (Fla. 3d DCA 2010), to argue that PNC was limited to the deficiency process if it sought to obtain judgments beyond foreclosure. However, Farah is factually distinguishable. Though the opinion is light on facts, it appears that the Farah final judgment contained both a money judgment and a foreclosure judgment; the money judgment ordered that “execution issue,” and the foreclosure judgment set a sale of the property. Thus, the Farah final judgment simultaneously allowed the plaintiff to execute on the money judgment and foreclose on the subject property, which is impermissible. The third district struck the language “for which let execution issue” from the money judgment and allowed the foreclosure to proceed. Unlike the Farah final judgment, the judgments here did not both issue an immediately executable money judgment and initiate the foreclosure process by setting a sale of the property. Rather, the judgments set up the procedure contemplated by Klondike and Junction Bit, allowing pursuit of the legal remedies and permitting the initiation of the foreclosure sale process only after PNC certified that the money judgment had not been satisfied. This structure assures that, while PNC was able to pursue both remedies, it will not get a double recovery.

Affirmed.

MAY, C.J., and STEVENSON, J., concur.

      . The Florida Supreme Court adopted this form in In re Amendments to the Florida Rules of Civil Procedure, 44 So.3d 555 (Fla.2010).

      . Ejectment is an action at law for a person to recover possession of property from a second person possessing it in hostility to the first person's right. 28A C.J.S. Ejectment §§ 3, 6.

      . Mortgagors held the equity of redemption; to obtain clear title to the mortgaged property, the mortgagee would bring a suit to foreclose that equity. See Restatement (Third) of Property (Mortgages) § 3.1 cmt. a (1997).

      . See also Burnell v. Martin (1780) King’s Bench, 2 Doug. 417, 417 (4th ed. 1813) ("for that it had been settled over and over again, that a person, in such a case [on a bond secured by a mortgage], is at liberty to pursue all his remedies at once”); Schoole v. Sall (1803) Ireland Chancery, 1 Doug. 176, 176 ("The general rule is that when a party [is] suing in this court, he shall not be allowed to sue at law for the same debt. But the case of a mortgagee is an exception to this rule; he has a right to proceed on his mortgage in equity and his bond at law, at the same time.”).

        . Ga. Cas. Co. v. O'Donnell, 109 Fla. 290, 147 So. 267, 292-93 (1933) ("A suit to foreclose a mortgage is to a certain extent and for certain purposes a proceeding in rem, since it is primarily directed against the mortgaged property, but it is more accurately termed ‘quasi in rem.’ ” (citation omitted)); Edwards v. Meyer, 100 Fla. 235, 130 So. 57, 59 (1930) ("Foreclosure proceedings in this state are in the nature of a proceeding in rem and in personam, the purpose of which is to subject the security furnished by the mortgage to the payment of the debt secured by it and to secure a personal judgment for the remainder in case the proceeds of the sale of the mortgaged property are not sufficient to extinguish the debt, where there is a separate written obligation to pay the debt, or the mortgage contains a covenant to pay.”).

      . See Ober v.Gallagher, 93 U.S. 199, 208, 23 L.Ed. 829 (1876); Gilman v. Miss. Tel. Co., 91 U.S. 603, 616, 23 L.Ed. 405 (1875); Hughes v. Edwards, 22 U.S. (9 Wheat) 489, 494, 6 L.Ed. 142 (1824). See also Micou v. Ashurst, 55 Ala. 607, 613 (1876); Haney v. Phillips, 72 Ark. App. 202, 35 S.W.3d 373, 374 (2000); Foothills Holding Corp. v. Tulsa Rig, Reel & Mfg. Co., 155 Colo. 232, 393 P.2d 749, 751 (1964); New Haven Sav. Bank v. Warner, 128 Conn. 662, 25 A.2d 50, 52 (1942); Berg v. Liberty Fed. Sav. & Loan Ass'n, 428 A.2d 347, 349 (Del. 1981); Szego v. Kingsley Anyanwutaku, 651 A.2d 315, 317 (D.C.1994); Montgomery v. Fouche, 125 Ga. 43, 53 S.E. 767, 768 (1906); Vansant v. Allmon, 23 Ill. 30 (1859); Hodgen v. Roy, 102 Kan. 197, 169 P. 1143, 1144 (1918); Chambers v. Keene, 58 Ky. 289, 294 (1858); Ely v. Ely, 72 Mass. 439, 441 (1856); Andrews v. Scotton, 2 Bland 663, 665 (Md. Ch. 1829); City of St. Paul v. St. Anthony Flats Ltd. P'ship, 517 N.W.2d 58, 62 (Minn.Ct. App. 1994); Colby v. McClintock, 68 N.H. 176, 40 A. 397, 397 (1894); Kepler v. Slade, 119 N.M. 802, 896 P.2d 482, 485 (1995); Dunkley v. Van Buren, 3 Johns. Ch. 330, 331 (N.Y.Ch. 1818) (but modified to generally prohibit such unless court exercises discretion to allow, see N.Y. Real Prop. Acts. Law § 1301 (McKinney)); Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 894 N.E.2d 65, 70 (2008); Anderson v. Warren, 196 Okla. 251, 164 P.2d 221, 223 (1945); Elmwood Fed. Sav. Bank v. Parker, 446 Pa.Super. 254, 666 A.2d 721 (1995); Hunt v. Darling, 26 R.I. 480, 59 A. 398, 399 (1904); Hatfield’s Ex’rs v. Kennedy, 1 Bay 501 (S.C.Com.Pl.Gen.Sess. 1795) (cited with approval in Lever v. Lighting Galleries, Inc., 374 S.C. 30, 647 S.E.2d 214, 216 (2007)); S.D. Codified Laws § 21-47-6 (consecutive, but, like New York, within court’s discretion); French v. May, 484 S.W.2d 420, 428 (Tex.Civ.App.1972); Shapiro v. Gore, 106 Vt. 337, 174 A. 860, 860 (1934); Priddy v. Hartsook, 81 Va. 67, 68-69 (1885); Bank of Sheboygan v. Fessler, 218 Wis. 244, 260 N.W. 441, 441 (1935).

      . See Alaska Stat. § 09.45.200 (consecutively); Ariz.Rev.Stat. § 33-722 (consecutively); Cal. C.C.P. § 726 (one action); Idaho C. § 6-101 (one action); Ind.Code § 32-30-10-10 (consecutively); Iowa Code § 654.4; Mich. Comp. Laws § 600.3105 (consecutively); Minn.Stat. § 580.02 (consecutively); Mont.Code § 71 — 1— 22 (one action); Neb.Rev.Stat. § 25-2140 (consecutively); N.J. 2A:50-2 (consecutively); Nev.Rev.Stat. § 40.430 (consecutively, though there is an express provision for waiver in another statute); Or. L. § 429 (consecutively); Utah Code § 78B-6-901 (one action); Wash. Rev.Code § 61.12.120 (consecutively); Wyo. Stat. § 34-4-103 (consecutively). In North Dakota, the state supreme court has interpreted an anti-deficiency statute into a modified one-action rule. See First State Bank of Cooperstown v. Ihringer, 217 N.W.2d 857, 864 (N.D. 1974) (interpreting anti-deficiency statute into a modified one-ac.tion rule).

      . Section 2.01, Florida Statutes (2008), provides that the common law of England as of July 4, 1776 is "of force in this state,” provided that it is of a "general and not local nature” and is "not inconsistent with” federal or state constitutions and statutes.

      . A general prayer for relief in a foreclosure action is sufficient to permit a court in its discretion "to render a deficiency degree if an appropriate motion therefor was made.” Boyles v. Alt. Fed. Sav. & Loan Ass’n of Ft. Lauderdale, 201 So.2d 909, 910 (Fla. 4th DCA 1967). A plaintiff cannot pursue an action on the note or guaranty where the plaintiff has prayed for the court to exercise its equity jurisdiction and the court has adjudicated the issue, either granting or denying judgment.See Provost v. Swinson, 109 Fla. 42, 146 So. 641, 643 (1933); see also Capital Bank v. Needle, 596 So.2d 1134, 1136 (Fla. 4th DCA 1992) (“where a party seeks a foreclosure and a deficiency judgment for failure to pay on a promissory note, and there is an actual adjudication on the merits of the claim for deficiency, that party cannot proceed on a new action based on the same promissory note”). But, when a plaintiff forecloses on a security and the trial court does not exercise its jurisdiction to consider the merits of a deficiency judgment, the plaintiff may file an action on the promissory note or guaranty to recover the remaining indebtedness. See LPP Mortg. Ltd. v. Cacciamani, 924 So.2d 930 (Fla. 3d DCA 2006) (guaranty); De Las Cuevas v. Nat’l Enters. Inc., 927 So.2d 41 (Fla. 3d DCA 2006) (note).

      . Rule 89 of Florida Rules of Equity Actions was adopted in 1873 and provided that a deficiency "could be granted under prayer for general relief if the defendant was personally served with process, or appeared.” Letchworth, 127 So. at 322. Chapter 7839, Laws of Fla. (1919), "undertook to make the entry of a deficiency mandatory, thereby relieving the court of any discretion in the matter.” Id. Chapter 7839 was repealed, see ch. 12325, Laws of Fla. (1927), and replaced with chapter 11993, Laws of Fla. (1927), which granted the court discretion to enter a deficiency, see Letchworth, 127 So. at 323. The new statute was amended by chapter 13625, Laws of Fla. (1929), to include the purchase-money proviso.

      . Based on the time frames described in Klondike, it appears that the suit at law was filed before the 1967 merger of the law and equity courts.

      . See Kay v. Anderson, 345 F.2d 169, 170 (5th Cir.1965) (it was "well settled under the law of Florida that a holder of a note secured by a mortgage may bring an action on the note without seeking foreclosure on the mortgage, even over the debtor’s insistence that he first look to such security.”); Webber v. Blanc, 39 Fla. 224, 22 So. 655, 656 (1897) (where court observed that the "fact that a mortgage was taken to secure the note did not deprive the holder thereof of the legal remedy to collect it.”); Syfrett v. Amsouth Bank of Fla., 588 So.2d 46, 47 (Fla. 1st DCA 1991) ("The bank did not infringe upon any rights of appellant by first obtaining a money judgment against appellant based upon a personal guaranty, and then proceeding to foreclose a security interest in real estate owned by appellant, based upon the same underlying debt.” (citing Gottschamer)).

      . PNC has filed a copy of the Farah final judgment as an appendix to its answer briefs. This has assisted us in discerning the facts upon which the opinion is based.


author: RAMIREZ, J.

text:
    Joaquin BLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1290.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.

      Carlos J. Martinez, Public Defender, and Joanna G. Ingalls and Andrew Stanton, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Joaquin Blanco appeals from his conviction for trafficking in amphetamine, alleging several errors in his jury trial. Because we find that the errors complained of were waived or harmless, we affirm.

Blanco was arrested and charged with trafficking when he sold crystal methamphetamine to an undercover police officer. Blanco claimed he was induced into making the sale by Jesus Felizzula, a State confidential informant who Blanco met at an HIV facility. Prior to trial, the State moved to exclude any reference to Blanco’s HIV condition or the details of Felizzula’s agreement with the State. The trial court granted the motion. Defense counsel’s request to voir dire the jury panel regarding their opinions on entrapment was denied. Thereafter, defense counsel accepted the jury without renewing his objection to the restricted voir dire.

At trial, Blanco revealed that he met Felizzula while attending a facility for persons with HIV/AIDS where Felizzula served as Blanco’s mentor. The two men later became lovers. At the time, Felizzu-la, a convicted drug trafficker, was under a plea agreement which required him to produce trafficking level cases for the State. Blanco testified that he knew that Felizzu-la took drugs, and he was very much against it. Blanco did not take illegal drugs, and had never before or since this occurrence sold drugs.

At one point in their relationship, Blan-co, who was a real estate agent, sold Feliz-zula’s home. Felizzula was not satisfied with the amount he received from the sale. Subsequently, Felizzula moved out of the state, but called Blanco asking for his assistance in arranging a drug deal in Miami. Felizzula insisted that Blanco should do this to prove his love and to make amends for the money lost on Felizzula’s home. After repeated refusals, Blanco eventually relented and agreed to facilitate the sale.

Felizzula contacted his police handler, who referred him to undercover narcotics agent Chris Villano. Felizzula informed Villano that Blanco would sell him five eight-balls of crystal methamphetamine. Villano’s telephone call to Blanco was recorded and played to the jury. The two men began with a political discussion and then talked about the drug deal using coded language. Villano explained that conversations of this type usually used a code to avoid detection. Blanco testified that because he was unfamiliar with the code being used, he simultaneously received instructions from Felizzula online. The telephone call was followed by an exchange of telephonic text messages through which Blanco and Villano agreed to meet. Blan-co testified that prior to meeting with Vil-lano, Felizzula had someone deliver a white envelope to him. When he later met with Villano, Blanco turned over the envelope in exchange for the amount of cash previously agreed upon. The contraband was confiscated and Blanco was immediately arrested. A subsequent search of Blanco’s home and car revealed no other drugs. The jury rejected Blanco’s entrapment defense and returned a guilty verdict.

On appeal, Blanco raises several trial court errors. First, Blanco contends that the trial court erred in excluding evidence which was relevant to defendant’s entrapment defense. In particular, Blanco argues the trial court should not have excluded: (a) references to Blanco’s HIV and that Felizzula was his HIV mentor as this showed the degree of Felizzula’s influence over Blanco; (b) testimony that Felizzula was telling Blanco what to say during his telephone conversation with Villano which showed that Blanco was unfamiliar with drug dealing language; and (c) Felizzula’s plea agreement because it explained Feliz-zula’s motivation for urging Blanco to make the drug deal. We agree with Blan-co that this evidence was relevant to his entrapment defense and should not have been excluded. See Morris v. State, 487 So.2d 291 (Fla.1986). Where evidence is presented to the jury in violation of a motion in limine, however, any error in its initial exclusion is harmless. See Connell v. Green, 330 So.2d 473 (Fla. 1st DCA 1976). Here, the jury heard all of the evidence complained of notwithstanding the motion in limine. Therefore, the trial court’s ruling excluding the evidence was harmless.

Next, Blanco contends that the trial court erred in denying defendant’s request to voir dire the jury regarding the entrapment defense because this prejudiced his effort to obtain a fair and impartial jury. Counsel should be given some leeway in questioning prospective jurors regarding their understanding of defendant’s defense. See Lavado v. State, 492 So.2d 1322 (Fla.1986); Walker v. State, 724 So.2d 1232 (Fla. 4th DCA 1999). But, it is well settled that counsel must renew any objections to voir dire errors before accepting the jury. See Lavin v. State, 754 So.2d 784 (Fla. 3d DCA 2000); Stripling v. State, 664 So.2d 2 (Fla. 3d DCA 1995). Here, defense counsel’s request to question the jury about entrapment was denied before voir dire commenced. Thereafter, defense counsel accepted the jury panel without renewing his objection to the trial judge’s restrictions. Accordingly, the error was not preserved below, and relief is unavailable by direct appeal.

Additionally, Blanco contends that the trial court erred in allowing the State to present that portion of the taped conversation between Villano and Blanco discussing political issues. Blanco claims that this portion of the tape should have been redacted as it was irrelevant and highly prejudicial. The State asserts that the evidence was relevant because it tended to rebut Blanco’s portrayal of his character as one easily influenced. We agree with the State that the evidence was relevant and therefore admissible as its relevance was not outweighed by any prejudicial effect. See § 90.401, .403, Fla. Stat. (2008); United States v. Webster, 606 F.2d 581, 584 (5th Cir.1979) (discussing government’s right to rebut defendant’s claim that he was an utter innocent, corrupted and seduced by a government agent into selling cocaine); Munoz v. State, 629 So.2d 90, 99 (Fla.1993) (“In rebutting the defendant’s evidence of lack of predisposition, the prosecution may make ‘an appropriate and searching inquiry’ into the conduct of the accused.... ”); Delice v. State, 878 So.2d 465 (Fla. 4th DCA 2004) (determining evidence was relevant to defendant’s vulnerability to subjective entrapment). Accordingly, the trial court did not err in admitting the political discussion contained in the taped telephone conversation.

Finally, we summarily reject the issues raised in Blanco’s supplemental brief. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011) (holding that section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes (2002) is constitutional); Comparato v. State, 419 So.2d 1131, 1134 (Fla. 1st DCA 1982) (holding that where pi’obation is not a permissible sentence alternative, sentencing defendant without a presentencing investigation report is not error).

For these reasons, we affirm the judgment entered below.

Affirmed.