text:
    Ronald Deerick KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3325.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Nancy A. Daniels, Public Defender and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Ronald Deerick Kirkland appeals his convictions, entered after jury trial and verdicts, and the 40-year sentence imposed upon the trial court’s granting of post-conviction relief. In his motion for post-conviction relief, Appellant had claimed that the trial court illegally imposed the adult sanctions because the court never considered the propriety of juvenile sanctions, as required by section 985.565(4)(a)2., Florida Statutes. The trial court corrected this error by acknowledging the availability of juvenile sanctions and the particular circumstances of this case. The court then imposed the same sentence (40 years) as originally imposed.

Appellant’s convictions for I) attempted second-degree murder; II) attempted felony murder; III) shooting into an occupied vehicle; and IV) robbery with a firearm, all as charged, are based on an incident which occurred on April 26, 2008, when Appellant was 15 years of age. As described by the witnesses at trial, Appellant met a pizza delivery man in the yard of a residential address as the delivery man attempted to make a delivery. When the delivery man determined that Appellant could not pay for the pizza, he explained to Appellant that he would return the pizza to the store for later pick-up and payment. Appellant then demanded the pizza and pointed a gun at the delivery man, who quickly retreated to his car. Appellant shot the delivery man through the window of the car and continued to shoot as the delivery man pulled away. The numerous gunshot wounds to the victim resulted in blindness in one eye and other serious injuries.

Appellant asserts that the trial court fundamentally erred by allowing the prosecution to charge Appellant as an adult and proceed in felony criminal court, pursuant to section 985.557, Florida Statutes, without a jury determination of fact to justify exposure of Appellant to a criminal sentence rather than the less severe juvenile sanctions. Appellant argues that prosecution in adult court and the resulting 40-year adult sentence violated his 6th Amendment right to a jury determination of the facts supporting his exposure to a sentence which will far exceed his 21st birthday, the date any juvenile sanctions would expire. § 985.0301(5)(c), Fla. Stat. He relies on the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) for his position that a jury determination was required.

In Apprendi, the adult defendant entered a plea of guilty to possession of a firearm for an unlawful purpose. Under the New Jersey statutes, this felony was punishable by a prison term of “between five and 10 years.” Apprendi, 530 U.S. at 468, 120 S.Ct. 2348. Under a separate statute, the term of imprisonment could be extended, to “between 10 and 20 years,” if the trial judge found, by a preponderance of the evidence, that the crime was committed “with a purpose to intimidate an individual or group of individuals because of race, gender, handicap, religion, sexual orientation or ethnicity.” Apprendi, 530 U.S. at 469, 120 S.Ct. 2348. After the court held an evidentiary hearing regarding the defendant’s “purpose,” the court found that the preponderance of the evidence supported the State’s allegation that the crime was racially motivated and that the “hate crime enhancement applied.” Id. The court sentenced Apprendi to 12 years’ imprisonment. Apprendi, 530 U.S. at 471, 120 S.Ct. 2348. After the intermediate courts had affirmed the lower court’s ruling, the United States Supreme Court found the New Jersey procedure for enhancing sentences if the court found certain facts was “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Apprendi, 530 U.S. at 497, 120 S.Ct. 2348. The Court thus held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.

The Apprendi rule does not govern the legality of the proceedings in this case for two reasons. First, unlike Apprendi, the sentence in this case did not result from a post-trial enhancement of a guidelines sentence for the offense of which the defendant was convicted. The decision to proceed in the adult court rather than the juvenile court was a pre-trial choice made by the state attorney, pursuant to section 985.557, Florida Statutes. This decision is not a sentence enhancement determination. Section 985.557 authorizes the state attorney to file an information in adult court against a 14- or 15-yr.-old accused of — among other listed crimes — robbery, murder, and attempts of those crimes, “when in the state attorney’s judgment and discretion the public interest requires that adult sanctions be considered or imposed.” § 985.557(1)(a), Fla. Stat. Under this statute, the state attorney’s decision of how to prosecute is a choice between the juvenile forum and the adult jurisdiction.

As explained in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), the 6th Amendment right to a jury trial does not attach “to every state-law ‘entitlement’ to predicate findings.” 129 S.Ct. at 718. The Supreme Court has stated that Apprendi and subsequent cases are based on the “historic jury function of deciding whether the State has proved each element of the offense beyond a reasonable doubt” and that, so far, “the Court has not extended the Apprendi and Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ] line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions.” Oregon v. Ice, 129 S.Ct. at 714.

While counsel has not referred this court to, nor have we located, a Florida case requiring or rejecting a requirement for jury findings in the direct file process, several other jurisdictions have considered the application of Apprendi to juvenile transfer situations and have declined to apply Apprendi requirements to these pretrial matters. For instance, in State v. Andrews, 329 S.W.3d 369 (Mo.2010), the supreme court of Missouri considered the weight of authority in other jurisdictions and concluded that Apprendi is inapplicable to Missouri’s juvenile certification proceeding. Likewise, in State v. Jones, 273 Kan. 756, 47 P.3d 783, 798 (2002), cert. denied, 537 U.S. 980, 123 S.Ct. 444, 154 L.Ed.2d 341 (2002) the supreme court of Kansas found that Apprendi does not apply to juvenile waiver hearings because they only determine “which system will be appropriate for a juvenile offender.” Similarly, in People v. Beltran, 327 Ill.App.3d 685, 262 Ill.Dec. 463, 765 N.E.2d 1071, 1075-76 (2002) the court ruled that Ap-prendi does not apply to the decision to prosecute the defendant as an adult because a transfer hearing “is dispositional, not adjudicatory.”

In concluding that Apprendi does not apply to juvenile transfer proceedings, the Kentucky Supreme Court reasoned: “A juvenile transfer proceeding does not involve sentencing or a determination of guilt or innocence. The decision to transfer a juvenile to circuit court involves the determination of which system is appropriate for a juvenile defendant.” Caldwell v. Commonwealth, 133 S.W.3d 445, 452-53 (Ky.2004); See also, State v. Rodriguez, 205 Ariz. 392, 71 P.3d 919, 927-28 (Ariz.Ct.App.2003) (juvenile transfer statute “is not a sentence enhancement scheme and, therefore, does not implicate Apprendi ... [because it] does not subject [a] juvenile to enhanced punishment; it subjects the juvenile to the adult criminal justice system.”); In re Welfare of J.C.P., 716 N.W.2d 664, 668 (Minn.App.2006); State v. Kalmakoff, 122 P.3d 224, 227 (Alaska App.2005).

Secondly, the determination by the state attorney to direct file under section 985.557, Florida Statutes is not a fact that increases the penalty for a crime beyond the prescribed statutory maximum. There was no question that Appellant was the proper age, charged with crimes listed in the statute. Under these circumstances, the Legislature provides the state attorney with the option to direct file “when in the state attorney’s judgment and discretion the public interest requires that adult sanctions be considered or imposed.” § 985.557, Fla. Stat. (Emphasis supplied). The determination of the public interest is a policy consideration, not a factual determination that increases the penalty for a crime beyond the prescribed statutory maximum. No jury determination of fact is required.

Upon the State’s concession of error for the jury instruction of the lesser included offense of attempted manslaughter, and in light of Herring v. State, 43 So.3d 823 (Fla. 1st DCA 2010), Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009), and Rushing v. State, — So.3d —, 2010 WL 2471903 (Fla. 1st DCA 2010), Appellant’s conviction on Count I for the lesser included offense of attempted second-degree murder is REVERSED and REMANDED for new trial or dismissal of that charge. For the reasons discussed herein, the convictions and sentences for Counts II, III and IV are AFFIRMED.

BENTON, C.J., and MARSTILLER, J., concur.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Luther T. SASSER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-152.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.

      Richard C. Reinhart, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue and Elba C. Martin-Schomaker, Assistant Attorneys General, Tampa, for Appellee.
   CASANUEVA, Judge.

Luther T. Sasser appeals his convictions for one count of simultaneous possession of mullet in excess of the recreational daily bag limit and any gill or other entangling net, and one count of improper carriage of a proscribed net across Florida waters. The State did not present sufficient evidence to link Mr. Sasser to the proscribed gill net in either charge. Thus, the trial court erred in denying Mr. Sasser’s motion for judgment of acquittal. We reverse.

Between 3:00 and 3:30 a.m., Officer Burton of the Florida Game and Wildlife Conservation Commission came upon two boats sitting alongside one another in a mangrove area. Mr. Sasser was standing on his boat, a white skiff; the other boat, a green boat, was vacant. Officer Burton heard people fleeing through the mangroves, presumably the operators of the green boat. Both boats contained a substantial amount of mullet, but it was the green boat that harbored the proscribed gill net on its deck. Approximately three hours earlier, one of Mr. Sasser’s neighbors watched both Mr. Sasser’s boat and a green boat leaving the canal by Mr. Sas-ser’s house. Based upon these facts, Mr. Sasser was charged with two offenses.

The first of the two charges is'statutorily defined as follows:

(3) PENALTIES FOR USE OF ILLEGAL NETS.—
(a) It is a major violation pursuant to this section, punishable as provided in paragraph (b) for any person, firm, or corporation to be simultaneously in possession of any species of mullet in excess of the recreational daily bag limit and any gill or other entangling net as defined in s. 16(c), Art. X of the State Constitution. Simultaneous possession under this provision shall include possession of mullet and gill or other entangling nets on separate vessels or vehicles where such vessels or vehicles are operated in coordination with one another including vessels towed behind a main vessel.

§ 370.021, Fla. Stat. (2007). Therefore, to establish the commission of this crime beyond a reasonable doubt, the State was required to prove (1) that Mr. Sasser was in possession of any species of mullet, (2) that the amount of that mullet exceeded the recreational daily bag limit, (3) that Mr. Sasser also possessed a gill or other entangling net, and (4) that Mr. Sasser possessed the mullet and net simultaneously. It was undisputed at trial that Mr. Sasser’s boat contained mullet in an amount that exceeded the recreational daily bag limit. It was also undisputed that the net on the green boat was a proscribed net. The only element at issue was whether Mr. Sasser had possession of that net.

No evidence established that Mr. Sasser had actual possession of the net. “[Ajctual possession is shown when contraband is found in the defendant’s hand, on his or her person, or within reach and under the defendant’s control.” Bennett v. State, 46 So.3d 1181, 1183-84 (Fla. 2d DCA 2010) (citing Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009)). Therefore, we examine whether there was evidence that Mr. Sasser constructively possessed the net. See id. at 1184. “To establish constructive possession, the State must prove beyond a reasonable doubt (1) that the defendant had knowledge that the contraband was within his presence and (2) that the defendant had the ability to exercise dominion and control over the contraband.” Santiago v. State, 991 So.2d 439, 441 (Fla. 2d DCA 2008). Here, the State offered no evidence to demonstrate that Mr. Sasser had knowledge of or dominion and control over the net on the green boat. The evidence did not show that Mr. Sasser owned the green boat, was piloting the green boat, or had ever been on the green boat. While there was some evidence suggesting that the fish on Mr. Sasser’s boat were caught with a gill net, it did not show that they were caught with the net on the green boat or that Mr. Sasser knew they were caught with that net.

The State also could have established that Mr. Sasser had possession under a third definition that is specific to section 370.021(3). Offenders may be in “simultaneous possession” of the requisite fish and net if they are in “possession of mullet and gill or other entangling nets on separate vessels or vehicles where such vessels or vehicles are operated in coordination with one another including vessels towed behind a main vessel.” § 370.021(3). Here, the evidence demonstrated that the two vessels departed at the same time and were discovered together three to four hours later. However, the State did not present any evidence to show that the two vessels were “operated in coordination with one another” at any time. What each boat did during those missing hours remains a mystery. To conclude that Mr. Sasser hooked up with the green boat to go fishing with the gill net requires an impermissible pyramiding of inferences. See Evans v. State, 26 So.3d 85, 95 (Fla. 2d DCA 2010) (Wallace, J., concurring in part; dissenting in part) (stating that evidence is not sufficiently conclusive if the fact-finder must draw two or more inferences to establish the existence of a criminal act).

We must also address the fact that the State charged Mr. Sasser as a principal. To succeed on a principal theory, the State was required to prove that Mr. Sas-ser aided, abetted, counseled, hired, or otherwise procured another to commit the offense of simultaneous possession of the gill net and the mullet. See § 777.011, Fla. Stat. (2007). However, there was no evidence that another specific person ever simultaneously possessed the gill net and the mullet or that Mr. Sasser ever helped another person to do so. The State’s inclusion of the principal theory in the charging document was unwarranted.

We discover the same fatal flaws in Mr. Sasser’s conviction for carriage of a proscribed net across Florida waters. That charge is statutorily described as follows:

Every vessel containing or otherwise transporting in or on Florida waters any gill net or other entangling net and every vessel containing or otherwise transporting in or on nearshore and inshore Florida waters any net containing more than 500 square feet of mesh area shall proceed as directly, continuously, and expeditiously as possible from the place where the vessel is regularly docked, moored, or otherwise stored to waters where the use of said nets is lawful and from waters where the use of said nets is lawful back to the place where the vessel is regularly docked, moored, or otherwise stored or back to the licensed wholesale dealer where the catch is to be sold. Exceptions shall be provided for docked vessels, for vessels which utilize nets in a licensed aquaculture operation, and for vessels containing trawl nets as long as the trawl’s doors or frame are not deployed in the water. Otherwise, hovering, drifting, and other similar activities inconsistent with the direct, continuous, and expeditious transit of such vessels shall be evidence of the unlawful use of such nets. The presence of fish in such a net is not evidence of the unlawful use of the net if the vessel is otherwise in compliance with this section.

§ 370.092(2). The State charged Mr. Sas-ser as a principal to this crime as well.

To be guilty of this offense, one must be in control of a vessel that is improperly transporting a proscribed net. As previously discussed, the proscribed net was on the green boat, not on Mr. Sasser’s boat. Mr. Sasser’s boat was not transporting a proscribed net. As in the first charge, the principal theory also fails to repair the State’s dearth of evidence related to this second charge. The State presented no evidence that Mr. Sasser aided another person in carrying the net.

The evidence is insufficient to support convictions for these two statutory offenses. Accordingly, we conclude that the trial court erred in denying the motion for judgment of acquittal. Thus, we reverse Mr. Sasser’s judgment and sentences and remand for him to be discharged.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Daniel SWEENEY, Appellee.
    No. 2D09-626.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee.
   KELLY, Judge.

The State appeals from the downward departure sentence imposed on Daniel Sweeney following his no contest plea to ten counts of possession of child pornography. Because the reasons for departure articulated by the trial court are not supported by competent, substantial evidence, we reverse.

Sweeney was originally charged with forty counts of possession of child pornography stemming from law enforcement’s seizure of a single DVD from his home. Sweeney entered an open plea of no contest to counts one through ten. In exchange, the State nolle prossed the remaining counts. Sweeney’s criminal punishment code scoresheet reflected a lowest permissible sentence of 127.5 months. The trial court, however, departed downward and sentenced Sweeney to two years’ community control followed by ten years’ probation. In pronouncing sentence, the trial court justified the departure stating that “this was an isolated incident committed in an unsophisticated manner. I think [Sweeney] has shown remorse_And I think he did cooperate with law enforcement.” On appeal, the State argues that the trial court’s reasons for departure are not supported by evidence in the record. We agree.

Although a trial court may in its discretion impose a downward departure sentence, it must articulate valid legal grounds for doing so, and those grounds must be supported by competent, substantial evidence. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The trial court based Sweeney’s departure sentence on the finding that the offense was committed in an unsophisticated manner and that it was an isolated incident for which Sweeney has shown remorse. See § 921.0016(4)(j), Fla. Stat. (2007). “To support a departure based on this reason, all three elements must be shown: that the offense was committed in an unsophisticated manner, that it was an isolated incident, and that the defendant has shown remorse.” State v. Falocco, 730 So.2d 765, 765 (Fla. 5th DCA 1999) (citations omitted); see State v. Munro, 903 So.2d 381, 382 (Fla. 2d DCA 2005). While the record supports the trial court’s finding that Sweeney was remorseful, there was no evidence that the offense was unsophisticated or that this was a single, isolated incident. In fact, the record reveals that Sweeney had previously downloaded child pornography and traded the disks with other individuals.

The trial court also justified the downward departure noting that Sweeney cooperated with law enforcement by not requiring the officers to obtain a search warrant for his home and in admitting to police that the disk containing the pornographic images belonged to him. See § 921.0016(4)(i). While cooperation with law enforcement is a valid basis for a downward departure sentence, Sweeney’s actions do not rise to the level of cooperation that 'will support a downward departure because his assistance did not result in solving any crimes or lead to the arrest of other persons. See State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2005); State v. Ertel, 886 So.2d 423, 425 (Fla. 2d DCA 2004).

Accordingly, we reverse Sweeney’s sentence and remand for imposition of a guidelines sentence.

Reversed and remanded.

WHATLEY and KHOUZAM, JJ., Concur.

      . No written order setting out the departure reasons appears in the record. However, the failure to file written reasons in downward departure cases is not fatal where the trial court orally pronounces valid reasons for departure. See State v. Hall, 981 So.2d 511, 513 (Fla. 2d DCA 2008).


author: MORRIS, Judge.

text:
    SOUTHERN OWNERS INSURANCE COMPANY, Petitioner, v. Diane L. MATHIEU and John R. Mathieu, as cotrustees of the Diane L. Mathieu Revocable Trust; Diane L. Mathieu, individually and as spouse of John R. Mathieu; John R. Mathieu, individually and as spouse of Diane L. Mathieu; and Diane L. Mathieu and John R. Mathieu, as parents and natural guardians of Hailey Hunter Mathieu; and Diane L. Mathieu and John R. Mathieu, as parents and natural guardians of Shelby Lynn Mathieu, Respondents.
    No. 2D11-557.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.

      Mark D. Tinker of Banker Lopez Gassier P.A., St. Petersburg, for Petitioner.
    Brad E. Kelsky of Law Offices of Brad E. Kelsky, P.A., Plantation, for Respondents.
   MORRIS, Judge.

Southern Owners Insurance Company petitions for a writ of certiorari to quash the order denying its motion to dismiss the declaratory judgment action brought by Diane L. Mathieu and John R. Math-ieu, individually as well as in their status as co-trustees of the Diane L. Mathieu Revocable Trust and as parents and natural guardians of Hailey Hunter Mathieu and Shelby Lynn Mathieu. This appeal arises out of construction defect litigation between the Mathieus and various other parties including Innovative Flooring & Stonecrafters of SWF, Inc. Because Innovative is insured through Southern Owners, the Mathieus filed their declaratory judgment action to determine whether their claims were covered by the insurance policy. We hold that because the Mathieus failed to obtain a settlement with or a verdict against Innovative prior to the filing of their declaratory judgment action, the Mathieus failed to meet the presuit requirements set forth in section 627.4136(1), Florida Statutes (2009), and that the trial court departed from the essential requirements of the law by failing to dismiss the action.

I. Background

In June 2006, the Mathieus learned of the existence of substantial water intrusion affecting the rear decks of their home. They subsequently filed suit and asserted a negligence claim against Innovative. The Mathieus learned that section (1) of the commercial general liability coverage form of the insurance policy stated as follows: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” In order to determine whether that provision would include coverage for their negligence claim against Innovative, the Mathieus filed their separate declaratory judgment action against Southern Owners.

Southern Owners moved to dismiss the declaratory judgment action arguing in relevant part that section 627.4136, known as the nonjoinder statute, precluded the action. Southern Owners asserted that because the Mathieus were not named insureds under the policy and because they had not obtained a settlement with or verdict against someone who was a named insured, the declaratory judgment action was prematurely filed.

The trial court, however, held that the declaratory judgment action was not barred because the purpose of the nonjoin-der statute was to provide a mechanism to enforce settlements and because the declaratory judgment statutes were specifically designed to allow litigants to clarify their rights. Consequently, the trial court denied the motion to dismiss.

II. Analysis

In order to obtain a writ of cer-tiorari, a petitioner must establish “[] a departure from the essential requirements of the law, [which results] in material injury for the remainder of the trial [and which] cannot be corrected on post-judgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Irreparable harm must be established before this court can proceed to determine whether the trial court departed from the essential requirements of the law. See id. at 649.

Generally, a party may not obtain a writ of certiorari to quash an order denying a motion to dismiss. See Universal Sec. Ins. Co. v. Spreadbury, 524 So.2d 1167, 1167 (Fla. 2d DCA 1988). But where an insurer asserts that the presuit requirements of section 627.4136 have not been met, certiorari review is appropriate. See id.; Cincinnati Ins. Co. v. Moffett, 513 So.2d 1345, 1346 (Fla. 1st DCA 1987). We believe that the irreparable harm in such cases arises from the fact that an insurer is being forced to litigate an action brought by a third-party plaintiff which would be barred if, in fact, the requirements of section 627.4136 have not been met.

In addressing whether the trial court departed from the essential requirements of the law, we look to the presuit requirements as set forth in the nonjoinder statute. Section 627.4136 provides in relevant part:

(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2) ... No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

Here, it is undisputed that the Mathieus have not obtained a settlement with or verdict against Innovative. Consequently, the Mathieus did not yet have a beneficial interest in Innovative’s liability policy, see Gen. Star Indem. Co. v. Boran Craig Barber Engel Constr. Co., 895 So.2d 1136, 1138 (Fla. 2d DCA 2005), and their declaratory judgment action should have been dismissed, see Dollar Syss., Inc. v. Elvia, 967 So.2d 447, 449 (Fla. 4th DCA 2007).

We reject the Mathieus’ arguments that certiorari relief is not warranted because Universal Security Insurance Co. was decided before section 627.4136 was amended or because courts have recognized that insurers can bring declaratory judgment actions against their insured prior to a determination of liability. The statutory amendment does not affect the application of Universal Security Insurance Co. to this case, and any inequity resulting from the fact that insurers are protected by a nonjoinder statute must be addressed by the legislature.

We likewise reject the Mathieus’ argument that because their declaratory judgment action was initiated in a separate proceeding from the underlying negligence action, it was not subject to dismissal. Section 627.4136(1) expressly states that a cause of action against an insurance company by a party who is not its insured does not accrue until a settlement or verdict has been obtained. To allow a party to avoid the application of section 627.4136 by merely instituting a separate action would result in insurers having to litigate claims which have not yet accrued and for which the insurer might ultimately bear no liability. Such an interpretation would nullify the protection offered by section 627.4136. We therefore hold that where an injured third-party brings a declaratory judgment action against an insurer prior to obtaining a settlement with or verdict against the insured, the action must be dismissed. See § 627.4136; Dollar Syss., Inc., 967 So.2d at 449. The trial court’s failure to do so in the instant case was therefore a departure from the essential requirements of the law.

We grant the petition for certiorari and quash the order denying Southern Owners’ motion to dismiss.

SILBERMAN, C.J., and BLACK, J., Concur.

      . Originally, section 627.7262 — which eventually was renumbered to section 627.4136— provided that an injured party had to obtain a judgment against the insured before it could move to add the insurer to the action. See § 627.7262, Fla. Stat. (Supp. 1982). The 1990 amendment removed the judgment requirement and replaced it with the requirement that an injured party had to obtain a settlement with or verdict against the insured. See ch. 90-119, § 38, at 393, Laws of Fla.; see also Hazen v. Allstate Ins. Co., 952 So.2d 531, 535-36 (Fla. 2d DCA 2007) (discussing different versions of the nonjoinder statute and how the amendments affected pending litigation procedure). The amendment has no bearing on this case because it is undisputed that the Mathieus had not obtained a settlement with or verdict against Innovative at the time they filed the declaratory judgment action against Southern Owners.


author: ROTHENBERG, J.

text:
    Nidia JUAREZ, Appellant, v. NEW BRANCH CORP., Appellee.
    No. 3D10-3186.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Rehearing Denied Sept. 8, 2011.

      The Law Offices of Eddy 0. Marban and Eddy 0. Marban; Davis Schnitker, Reeves & Browning, P.A. and George T. Reeves, Madison, for appellant.
    Kenneth A. Friedman and James V. Albo, North Miami Beach, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

This is an appeal of a final summary judgment in favor of the defendant, New Branch Corp. (“New Branch”), a dry cleaning business. The plaintiff, Nidia Juarez (“Juarez”), sued under the Florida Whistle Blower’s Act (“FWBA”), Section 448.102 of the Florida Statutes, alleging she was terminated because of her opposition to violence in the workplace. The FWBA prohibits termination of employees because they oppose a policy, practice, or activity of their employer that is in violation of a law, rule or regulation pertaining to the employer’s business. We affirm because Juarez presented no evidence that: the battery committed by New Branch’s employee was committed with the knowledge or approval of New Branch; the failure to protect Juarez from the attack was a policy, practice, or activity of New Branch; or the battery occurred within the scope of Antionia Erazo’s (“Era-zo”) employment or in furtherance of New Branch’s business interest.

Our standard of review is de novo, and we view the facts in the light most favorable to Juarez, the non-moving party below. Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782 (Fla.1965); Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008). If the record reveals there are no disputed material facts on an issue that entitles New Branch to judgment as a matter of law, disputed facts regarding other issues are immaterial to whether the trial court correctly granted summary judgment. See Coral Way Shopping Ctr. v. City Stores Co., 216 So.2d 15, 17 (Fla. 3d DCA 1968) (finding summary judgment was correct where issues of fact raised were immaterial to whether the moving party is entitled to judgment as a matter of law); see also Dade-Commonwealth Title Ins. Co. v. Biscayne Kennel Club, Inc., 143 So.2d 713, 715 (Fla. 3d DCA 1962) (“[I]f it appears to the trial court that an asserted claim is without merit in law and nothing could be accomplished by submitting immaterial issues to a jury, then a summary judgment should be granted.”); accord Williams v. Joseph L. Rozier Mach. Co., 135 So.2d 763, 765-66 (Fla. 2d DCA 1962) (affirming summary judgment because the issues of fact were not material to the issue of whether defendant was liable to the plaintiff).

The undisputed facts are that on April 30, 2009, after Juarez pointed out to Erazo, a co-employee and wife of New Branch’s owner, Eduardo McConnell (“McConnell”), that Erazo had incorrectly ironed an item, Erazo tried to trip her so that she would fall. Although nothing followed the trip attempt, Erazo attacked Juarez the following day. The police were called to New Branch’s facility, but Erazo was not present when the police arrived. However, Juarez filed a police report on the date of the incident, and later sought and obtained a restraining order against Erazo.

During the pendency of the restraining order, Erazo did not work at New Branch’s facility. Juarez claimed that following the attack, McConnell’s treatment of her changed. He began making negative comments regarding her performance, and he was unhelpful in response to her questions regarding work. When the restraining order expired, Erazo returned to work, and Juarez was fired.

Juarez filed suit against New Branch, contending her termination was unlawful retaliation for “blowing the whistle,” in violation of the FWBA. Under the FWBA:

An employer may not take any retaliatory personnel action against an employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.
(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

§ 448.102, Fla. Stat. (2009). The FWBA defines retaliatory personnel action to include termination. § 448.101(5), Fla. Stat. (2009). A “law rule, or regulation” under the FWBA is “any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” § 448.101(4).

At issue in this case is subsection (3) of the statute, which prohibits retaliation by employers against employees who object to an activity, policy, or practice of their employer that violates a law, rule or regulation pertaining to the employer’s business. Juarez contends that she satisfied the requisite elements under subsection (3) because: (1) she “object[ed]” by filing a police report and obtaining a restraining order; (2) the violence committed by Era-zo was an activity, policy, or practice of New Branch; (3) workplace violence is a hazard prohibited by the federal Occupational Safety and Health Act (“OSHA”); and (4) OSHA is a law applicable to New Branch’s business.

It is clear that workplace violence is a hazard prohibited by OSHA and that OSHA is a law applicable to New Branch and pertaining to its business, satisfying elements (3) and (4). Through OSHA, Congress enacted a statute to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions,” 29 U.S.C. § 651(b) (2006), by requiring that each employer “shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” 29 U.S.C. § 654(a)(1) (2006). It is also clear that Juarez “objected” by filing a police report and obtaining a restraining order against Erazo. However, Juarez’s complaint was to the police, not the Occupational Safety and Health Administration, and her complaint was against the batterer, Erazo, not her employer, New Branch. Additionally, Juarez failed to offer any evidence that the violence committed by Erazo was an activity, policy, or practice of New Branch. See Sussan v. Nova Se. Univ., 723 So.2d 933, 934 (Fla. 4th DCA 1999) (affirming dismissal of an action brought under the FWBA where the complaint failed to allege that the university ratified the illegal conduct of its employees). She also provided no evidence that the battery was committed within the scope of Erazo’s employment or in furtherance of New Branch’s business. See Ruiz v. Aerorep Grp. Corp., 941 So.2d 505, 508 (Fla. 3d DCA 2006) (affirming dismissal of Ruiz’s FWBA claim where the complaint failed to allege that Ruiz’s co-employee battered her with the purpose of benefitting the interests of the employer).

We therefore conclude that summary judgment was properly granted in New Branch’s favor, and affirm the order below.

Affirmed.


author: STEVENSON, J.

text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION (“FDOT”), Appellant, v. CITY OF PEMBROKE PINES; Yvette Lorenzo, personal representative of the Estate and survivors of Officer Orestes Lorenzo, deceased; William J. Russo, individually; Natasha Russo, individually; and Calvin Giordano & Associates, Inc., Appellees.
    No. 4D09-1341.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Doreen E. Lasch and Daniel J. Santan-iello of Luks, Santaniello, Petrillo, Gold & Jones, Fort Lauderdale, for appellant.
    Scott D. Alexander and E. Bruce Johnson of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee City of Pembroke Pines.
    Lauri Waldman Ross of Ross & Girten, Miami, and Ervin A. Gonzalez and Patrick S. Montoya of Colson Hicks Eidson, Coral Gables, for appellee Yvette Lorenzo.
   STEVENSON, J.

This is the companion appeal to Russo v. Lorenzo, 67 So.3d 1165 (Fla. 4th DCA 2011). These appeals stem from a wrongful death suit filed after police officer Orestes Lorenzo died as the result of injuries sustained from a car crash that resulted in his car hitting the median, rolling over, and striking a palm tree. The Florida Department of Transportation (FDOT) was among the named defendants and, in this appeal, challenges the judgment entered following a jury’s determination that it was fifteen percent at fault for Lorenzo’s injuries. While FDOT raises a number of issues on appeal, we find that its claim that the trial court should have directed a verdict in its favor on sovereign immunity grounds is dispositive and requires reversal. We write solely to address this issue.

Evidence at trial established that, as the result of the collision between Lorenzo’s car and a car driven by Natasha Russo, the tires of Lorenzo’s car struck the median on Pines Boulevard and the car began to roll, ultimately striking a palm tree planted in the median. The median was designed by an engineering firm hired by the City of Pembroke Pines. The design firm’s plans utilized an F curb along the median, reflected a design speed of 50 miles per hour, and called for the planting of royal palm trees in the median. As FDOT owned the median and was responsible for its design parameters, the design firm’s plans were submitted to FDOT for approval. There was evidence that FDOT policies precluded the use of an F curb at design speeds in excess of 45 miles per hour. Such limitation was based upon the risk of roll-over when a car strikes a curb. After changing the design speed to 45 miles per hour, FDOT approved the plans.

In 1993, some years later, FDOT conducted a speed study on Pines Boulevard. The study demonstrated that the average speed of eighty-five percent of the drivers was 53.1 miles per hour and, in the surrounding seven-mile stretch, eighty-five percent of the drivers were travelling at speeds in the mid-50s. Experts testified that a large differential between the posted limit and the speed of most drivers creates a hazard, and speed zoning standards provide that the posted speed limit shall not be more than eight miles per hour less than the average speed of the eighty-fifth percentile. FDOT thus raised the speed limit to 50 miles per hour. The F curbs and palm trees remained.

In the suit that followed Lorenzo’s death, the plaintiffs alleged that FDOT was negligent in approving the design plans, which called for an F curb and the planting of palm trees, alleging that the same was contrary to prevailing design standards, and negligent in later approving an increase in the speed limit and failing to remove the F curb and palm trees. We find the alleged negligent activities in this case were planning-level functions for which FDOT is immune from tort liability.

Beginning with its decision in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1020-22 (Fla.1979), our supreme court has drawn a distinction between operational activities for which the State does not enjoy sovereign immunity and planning or judgmental government functions for which the State does enjoy sovereign immunity. An operational act has been described as “ ‘one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.’ ” City of Pinellas Park v. Brown, 604 So.2d 1222, 1226 (Fla.1992) (quoting Kaisner v. Kolb, 543 So.2d 732, 737 (Fla.1989)). In contrast, a planning or judgmental act involves “ ‘an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning.’ ” Id.

Design defects inherent in the overall plan are to be afforded sovereign immunity. See Dep’t of Transp. v. Neilson, 419 So.2d 1071 (Fla.1982); see also City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). In Neilson, an intersection collision case, the supreme court held the government could not be liable for designing an intersection with alleged dangerous angles, for failing to install adequate traffic control devices, or for failing to upgrade the intersection as all were planning level decisions. The court cited the construction of a two-lane road where traffic use indicated four lanes were necessary and the construction of a curved road where a straight road would be more appropriate as further examples of inherent defects for which there could be no government liability, writing that “the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning-level type.” 419 So.2d at 1077 (emphasis added). And, in Ingham v. State, Department of Transportation, 419 So.2d 1081 (Fla.1982), the supreme court affirmed the dismissal of a complaint where the plaintiff alleged DOT was negligent “in constructing a road with a curve, in determining the position, shape and size of a median, and in failing to provide adequate traffic signals,” finding such acts were planning level functions. Id. at 1082 (emphasis added).

In the years that have followed Neilson and Ingham, Florida’s appellate courts have held that the following are planning level decisions for which the State is afforded sovereign immunity: decisions regarding installation of a flashing beacon and rumble strips, see Department of Transportation v. Konney, 587 So.2d 1292 (Fla.1991); decision whether to install a barrier between the northbound and southbound lanes, see Cygler v. Presjack, 667 So.2d 458 (Fla. 4th DCA 1996); decision to construct bridge with unprotected pedestrian walkway, see Masters v. Wright, 508 So.2d 1299 (Fla. 4th DCA .1987); and decision to modify plans and place concrete traffic signal pole in a location other than one called for in original plans (but misplacement of pole and resulting failure to follow the plans was an operational activity), see Scott v. Florida De partment of Transportation, 752 So.2d 30 (Fla. 1st DCA 2000). And, in Greene v. Department of Transportation, 465 So.2d 560 (Fla. 1st DCA 1985), the First District held that claims that the road did not meet design standards in that grades were too steep for a 55-mph speed limit, there was inadequate vertical curve length, and inadequate stopping distance were not actionable as design defects, but appellants could adequately state a claim under the theory that DOT had created a known dangerous condition and failed to warn or correct. Id. at 561 n. 1, 562.

We hold that the alleged acts of negligence in the instant case are the type of planning level functions afforded sovereign immunity by our supreme court and the cited authorities. Decisions concerning the angles of an intersection or the position, shape and size of a median, or whether to put a cover over a drain pipe all involve a deliberate, considered choice by the government agency concerning the “best” way in which to proceed with the project design. The negligence alleged here similarly involves the exercise of discretionary, design choices, i.e., the type of curb, the type of vegetation permitted in the median, whether upgrade and/or alteration of the intersection was required after the increase in speed limit. As the supreme court held in Neilson, “the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning-level type.” 419 So.2d at 1077 (emphasis added).

In so holding, we are cognizant of Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979). There, a car struck a curb, became airborne, and was propelled into the plaintiffs lane of travel, causing a collision. The plaintiff alleged, among other things, that Dade County was negligent by designing, constructing, and maintaining a median that causes drivers to lose control and become airborne. The Third District held the design of the median was an operational function for which there was no sovereign immunity, likening the median design to the maintenance of traffic control devices. Id. at 67. In Neilson, our supreme court acknowledged Ferla, characterizing it as a “difficult case to explain,” see 419 So.2d at 1077; and, while Neilson did not overrule Feria, our supreme court subsequently held, in Ingham, that there was sovereign immunity for alleged negligence in determining the position, shape, and size of a median, see 419 So.2d at 1082. Under these circumstances, we decline to find conflict or rely upon Feria to find an absence of sovereign immunity in the instant case.

The judgment against FDOT is accordingly reversed and the matter remanded for the entry of judgment in favor of FDOT.

Reversed and Remanded.

TAYLOR and GERBER, JJ., concur.

      . In Neilson and Collom, the supreme court also held that when a governmental entity creates a known dangerous condition that is not readily observable to those who may be injured by such condition, a duty arises at the operational level to warn of or protect the public from the known danger and the failure to fulfill this duty will give rise to a cause of action. Neilson, 419 So.2d at 1077-78; Collom, 419 So.2d at 1083. This theory of liability, i.e., that FDOT had created a known dangerous condition, not readily apparent to motorists, and had failed to warn or protect the public from the known danger, was submitted to the jury via a special interrogatory in the verdict form. And, while the jury found there was negligence on the part of FDOT that was a legal cause of Lorenzo's death, it also found FDOT did not create such a known dangerous condition. Such theory therefore cannot serve as a basis to avoid sovereign immunity or otherwise uphold the verdict against FDOT.


text:
    William J. RUSSO, individually, and Natasha Russo, individually, Appellants, v. Yvette LORENZO, personal representative of the Estate and survivors of Officer Orestes Lorenzo, deceased, and State of Florida Department of Transportation, a component agency of the State of Florida, Appellees.
    No. 4D09-258.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for appellants.
    Lauri Waldman Ross of Ross & Girten, Miami, and Ervin A. Gonzalez and Patrick S. Montoya of Colson Hicks Eidson, Coral Gables, for appellee Yvette Lorenzo.
   STEVENSON, J.

This is the companion appeal to Florida Department of Transportation v. City of Pembroke Pines, 67 So.3d 1162 (Fla 4th DCA 2011). These appeals arise from a wrongful death suit filed after City of North Miami Beach police officer Orestes Lorenzo died from injuries sustained after his car collided with a vehicle driven by Natasha Russo and owned by William Russo. The jury found Lorenzo thirty percent at fault for the collision, Natasha Russo fifty-five percent at fault and Florida Department of Transportation (FDOT) fifteen percent at fault, and judgment was ultimately entered against the Russos and FDOT. The jury awarded $11,537,700 in damages; $10 million of that figure represents pain and suffering. In this appeal, the Russos challenge the jury verdict on a number of grounds. We find that only one of these arguments — their claim that the trial court erred in refusing to permit the defendants to elicit testimony concerning the payments the wife was receiving from the City of North Miami Beach — warrants relief on appeal, as to damages only, and write to address that issue.

The plaintiffs called an economist to testify on the subject of economic damages, who opined that, reduced to present day dollars, the plaintiffs had suffered between $1.5 and $1.8 million in lost support. On direct examination, the economist testified the economic losses to the plaintiffs included the decedent’s income, his projected income, and his projected pension had he lived. In reaching this opinion, the expert estimated the decedent would have worked until age 62½, at which time he would have had thirty years service with the City of North Miami Beach (“City”) and a ninety percent pension. During his testimony, the expert commented that the decedent was not vested in the pension when he died. At a side bar, the defendants asserted that it was undisputed that the decedent’s wife was receiving a benefit from the City, representing about sixty percent of the decedent’s salary at the time of his death (about $84,000 per year) and that, for purposes of determining the economic losses resulting from the death, this City benefit was fairly characterized as a “pension.” The defendants argued the plaintiffs had unfairly and misleadingly suggested to the jury that the plaintiffs had wholly lost the decedent’s pension and thus the defendants should be permitted to cross-examine the expert on the subject, putting evidence of the receipt of the benefit before the jury so as to prevent any double recovery by the wife. The plaintiffs insisted the benefit was not a pension, but was a death benefit akin to life insurance and there was no risk of double recovery. The trial court refused to permit the defendants to put evidence of the wife’s receipt of the City benefit before the jury.

Section 768.76, Florida Statutes (2009), requires that the damages awarded to compensate a claimant for losses sustained be reduced by the total amounts paid for the benefit of the claimant, or otherwise available to the claimant, from all “collateral sources.” “Collateral sources” is a term of art defined, in part, as follows under the relevant statutory provisions:

(2) For purposes of this section:
(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:
1. The United States Social Security Act, ... any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits....
2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

§ 768.76(2)(a)1.-2., 4., Fla. Stat. (emphasis added).

“ ‘As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources.’ ” Benton v. CSX Transp., Inc., 898 So.2d 243, 245 (Fla. 4th DCA 2005) (quoting Gormley v. GTE Prods. Corp., 587 So.2d 455, 457 (Fla.1991)). The rule is based on the rationale that collateral source evidence may mislead the jury on the issue of liability or lead the jury to believe the plaintiff is trying to obtain multiple recoveries for the same injury. Gormley, 587 So.2d at 458. The collateral source rule does not, however, bar the admission of evidence of collateral source payments where such evidence is relevant to liability or rebuts a party’s theory of the case, see Citizens Prop. Ins. Corp. v. Ashe, 50 So.3d 645, 652-53 (Fla. 1st DCA 2010), and Rease v. Anheuser-Busch, Inc., 644 So.2d 1383, 1386-87 (Fla. 1st DCA 1994), or where the plaintiffs evidence may mislead the jury about the plaintiffs present financial circumstances, see State Farm Mut. Auto. Ins. Co. v. Gordon, 712 So.2d 1138, 1139-40 (Fla. 3d DCA 1998).

Applying these principles to the instant case, if the City benefit is fairly characterized as a pension, then the defendants should have been permitted to cross-examine the economist concerning the benefit. Such testimony would have been relevant to demonstrate error or shortcomings in the economist’s loss of support damages as his calculations were premised on the idea that, due to the decedent’s death, the plaintiffs had wholly lost this benefit. If, on the other hand, the benefit is akin to life insurance, the wife’s receipt of the same was irrelevant and should not have been placed before the jury. The admissibility of evidence concerning the benefit thus turns on its character or nature.

Officer Lorenzo was a “participant” in the City of North Miami Beach Retirement Plan for Police Officers and Firefighters of City of North Miami Beach. The comprehensive retirement plan includes sections addressing the benefit payable to a police officer and his beneficiary in a variety of circumstances, including benefits paid “other than on retirement.” See City of N. Miami Beach, Fla., Ordinance 89-18 (Mar. 15, 1990). Section 6.01 addresses the retirement benefit payable to an officer and his beneficiary if he retires at his normal retirement date and thereafter dies. Section 6.02 addresses the retirement benefit in the event the officer takes early retirement and thereafter dies. Section 6.03 addresses the retirement benefit in the event of the officer’s disability and death subsequent to disability retirement. Section 6.04(a) addresses the retirement benefit in the event the officer’s services are terminated for any reason other than his death. Sections 6.04(b) and (c), as amended, address the benefit payable in the event of the officer’s death on or before his normal retirement date while not in the line of duty and while in the line of duty, respectively. See City of N. Miami Beach, Fla., Ordinance 2005-6 (Apr. 5, 2005).

Officer Lorenzo’s wife was being paid pursuant to section 6.04(c), which provides as follows:

§ 6.04 BENEFITS OTHER THAN ON RETIREMENT
(c) Benefit Payable in Event of Death On-Duty or In Line of Duty, On or Prior to Normal Retirement Date.
(1) Effective July 1, 2004, the monthly retirement income payable upon the death of a participant who is survived by a spouse and/or dependent child(ren), and whose death occurs while the participant is on duty or in the line of duty shall be the greater of (i) the monthly retirement income determined in accordance with Subsection 6.04(b) above, [entitled “Benefit Payable in Event of Non-Service Related Death on or Prior to Normal Retirement Date while in Service”] and (ii) 60% of the participant’s final monthly compensation at the date of the death of the participant. Said retirement income shall be payable to the participant’s surviving spouse.... If the total benefits paid under this subsection are less than the total contributions made to the Plan by the Participant, then the balance shall be paid to the Participant’s designated beneficiary.

City of N. Miami Beach, Fla., Ordinance 2005-6 (Apr. 5, 2005).

Unlike life insurance, which is procured by the payment of a premium, the benefit created by the City’s retirement plan is paid in consideration of the decedent’s service to the City and participation in the retirement plan — much like a pension. Section 6.04(c), the subsection pursuant to which the benefit was being paid the wife, speaks in terms of the “monthly retirement income” payable to the beneficiary and provides a methodology for calculating the amount to be paid. And, the provisions of section 6 as a whole make it clear that, in the event of an officer’s death prior to his normal retirement date, the sole “monthly retirement” benefit to be paid by the City is that set forth in sections 6.04(b)[death prior to retirement and not in line of duty] and (c)[death prior to retirement and in line of duty]. The benefits provided by sections 6.04(b) and (c) are not in addition to some other pension or retirement income payable to the beneficiary under the plan. Consequently, the wife could not have been entitled to receive the benefit paid pursuant to section 6.04(c) and the full value of the pension her husband would have received had he lived and retired at normal retirement age.

We recognize that the preamble to the Ordinance enacting the section 6.04(c) amendment stated that “the City Council has determined that it would be in the best interest of the participants of the Retirement Plan to provide a minimum death benefit for the beneficiaries of participants who die while on duty or in the line of duty....” Id. (emphasis added). Although described as a “death benefit,” we reject the notion that the monthly payment to the wife, derived from Officer Lorenzo’s participation in the retirement plan, is equivalent to “life insurance” within the meaning of the collateral source statute. To the extent the payments the wife received were paid in lieu of Officer Lorenzo’s anticipated pension benefits at normal retirement, there was no “loss” of this source of support by the wife. As such, the defendants should have been permitted to put evidence of the benefit to the jury through its cross-examination of the plaintiffs’ economist. To remedy the inability of the defendants to do so at this stage of the proceedings, we remand the case to the trial court with directions that the judgment against the Russos be reduced by the value of the City of North Miami Beach benefit being received by the wife.

Accordingly, we affirm the liability verdict in favor of the plaintiffs and against the Russos, but remand the case for the entry of a corrected judgment on damages consistent with this opinion.

Affirmed in Part; Reversed in Part; and Remanded.

TAYLOR and GERBER, JJ., concur.

      . During a proffer to the court, the economist put the value of the benefit, reduced to present value dollars, at $1,222,636.


author: VILLANTI, Judge.

text:
    PALMCREST HOMES OF TAMPA BAY, LLC; Palmcrest Homes of Tampa Bay-II, LLC; Palmcrest Homes of Tampa Bay-III, LLC; Palmcrest Homes of Tampa Bay-IV, LLC; Palmcrest Homes of Tampa Bay-V, LLC; Palmcrest Homes of Tampa Bay-VI, LLC; Palmcrest Homes of Tampa Bay-VII, LLC; Palmcrest Homes of Tampa Bay-VIII, LLC; Palmcrest Homes of Tampa Bay-IX, LLC; Palmcrest Homes of Tampa Bay-X, LLC; Palmcrest Homes of Tampa Bay-XI, LLC; CTS Equities Limited Partnership; and Chris Sullivan, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 2D10-4717.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 2011.
    Marie Tomassi, John D. Goldsmith, and Scott D. Feather of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellants.
    Jeffrey W. Warren, Keith D. Skorewiez, and Andrew T. Jenkins of Bush Ross, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Palmcrest Homes of Tampa Bay, LLC; Palmcrest Homes of Tampa Bay-II, LLC; Palmcrest Homes of Tampa Bay-Ill, LLC; Palmcrest Homes of Tampa Bay-IV, LLC; Palmcrest Homes of Tampa Bay-V, LLC; Palmcrest Homes of Tampa Bay-VI, LLC; Palmcrest Homes of Tampa Bay-VII, LLC; Palmcrest Homes of Tampa Bay-VIII, LLC; Palmcrest Homes of Tampa Bay-IX, LLC; Palmcrest Homes of Tampa Bay-X, LLC; and Palm-crest Homes of Tampa Bay-XI, LLC (collectively Palmcrest), CTS Equities Limited Partnership, and Chris Sullivan (collectively Appellants) appeal the trial court’s order that denied their “motion to determine arbitrability,” thus effectively referring their claims and counterclaims against Bank of America, N.A. (BOA) to arbitration while allowing BOA’s foreclosure action to continue in litigation. Because we cannot determine whether the trial court actually decided the threshold issues raised by Appellants before referring the parties to arbitration, we reverse and remand for further proceedings.

The factual background of this appeal is somewhat complex. Palmcrest is a group of companies formed by Alex Sullivan and a friend of his to purchase and develop land and construct single and multifamily residences. CTS Equities is a limited partnership essentially controlled by Chris Sullivan, Alex’s father. When Palmcrest was first formed, CTS Equities provided a line of credit to Palmcrest to enable it to purchase and begin development of various parcels of land. This line of credit from CTS Equities to Palmcrest was primarily funded by a line of credit BOA had previously issued to CTS Equities.

Palmcrest soon needed funds in excess of what CTS Equities was willing to provide. At that point, Palmcrest sought a revolving line of credit from BOA to continue to fund land acquisition, development, and construction. BOA agreed to issue the revolving line of credit, and BOA and Palmcrest entered into a “Master Agreement for Revolving Line of Credit,” together with a promissory note, mortgage, and security agreement. The Master Agreement contained an arbitration agreement that applied to all disputes between BOA and Palmcrest, including disputes concerning whether a specific dispute was “arbitrable.”

As one of the conditions for issuing the revolving line of credit to Palmcrest, BOA required CTS Equities to sign a subordination agreement. This agreement subordinated the amounts Palmcrest owed to CTS Equities under its prior line of credit to those amounts Palmcrest would owe to BOA under BOA’s revolving line of credit. CTS Equities agreed to this condition and signed the subordination agreement. While the subordination agreement was referenced in the Master Agreement between BOA and Palmcrest and was included in the closing documents on the line of credit from BOA to Palmcrest, CTS Equities was not a party to the Master Agreement, and the subordination agreement signed by CTS Equities did not contain an arbitration agreement.

Prior to the formation of Palmcrest, Chris Sullivan had a long-term banking relationship with BOA and a newer banking relationship with BOA’s subsidiary, the Private Bank. Services provided by the Private Bank included analyzing the client’s financial assets, liabilities, and cash flows and advising the client concerning the best means to preserve and enhance the client’s wealth. Sullivan paid the Private Bank substantial fees for these advisory services. During the negotiations leading up to BOA issuing the revolving line of credit to Palmcrest, Sullivan allegedly relied on the advice of employees of the Private Bank and BOA concerning potential members and officers of Palmcrest, and he invited new members and appointed the CEO of Palmcrest based on the recommendations of these BOA employees. In addition, Sullivan allegedly relied on the recommendations of employees of the Private Bank and BOA concerning financing strategies that would protect Sullivan’s existing investment in Palmcrest while still allowing Palmcrest to purchase and develop additional property. However, soon after Palmcrest closed on the revolving line of credit, disputes arose between the BOA-recommended CEO of Palmcrest and Appellants concerning how the funds were to be used, and Appellants began to suspect that the BOA-recommended CEO was diverting funds for his own purposes. Further, Sullivan came to believe that certain last-minute changes to the terms of the revolving line of credit were made to his detriment.

These disputes initially led Sullivan to bring an action against BOA for breach of fiduciary duties relating to the formation of Palmcrest and the structure and funding of Palmcrest’s revolving line of credit. Sullivan alleged that these fiduciary duties sprang from his long-term relationship with BOA. Sullivan filed his initial lawsuit in state court; however, BOA subsequently removed it to federal court. Once the action was in federal court, BOA and Sullivan began to engage in discovery related to the merits of Sullivan’s claims.

While Sullivan’s individual action against BOA was pending in federal court, BOA brought this foreclosure action in state court against Palmcrest and CTS Equities, seeking to foreclose on the revolving line of credit. Palmcrest and CTS Equities filed counterclaims that alleged essentially the same breaches of fiduciary duties that were alleged in Sullivan’s individual action against BOA. In an effort to consolidate the litigation, Sullivan dismissed his individual federal court action and sought to intervene in the state court foreclosure action. The trial court granted Sullivan’s motion to intervene, and Sullivan subsequently raised intervenor claims in the foreclosure action virtually identical to those that had been pending in his federal court action and to those already alleged as counterclaims by Palmcrest and CTS Equities in the foreclosure action.

When Palmcrest and CTS Equities first filed their counterclaims in the foreclosure action, BOA initiated arbitration proceedings based on the arbitration agreement in the Master Agreement. After Sullivan was permitted to intervene, BOA sought to add Sullivan’s claims to the arbitration proceeding. Appellants opposed the referral of their claims and counterclaims to arbitration, and they filed a motion to determine arbitrability of their claims and counterclaims.

In their motion, Appellants asked the trial court to “determine the arbitrability of the Counterclaim and third party Intervention Complaint” against BOA, raising three threshold issues. First, Palmcrest argued that it should not be compelled to arbitrate because BOA had waived its right to arbitrate by its active participation in the pending foreclosure action as well as in the earlier federal action with Sullivan. Second, Palmcrest argued that the arbitration agreement in the Master Agreement should not be enforced because it was unconscionable. Third, CTS Equities and Sullivan argued that they could not be compelled to arbitrate because they were not parties to the Master Agreement or any other arbitration agreement with BOA that applied to the disputes at hand. Appellants argued that these threshold issues should be decided by the court prior to any referral to arbitration. BOA, on the other hand, argued that because the Master Agreement referred any disputes concerning the arbitrability of a specific dispute to the arbitrators, the court should simply refer the entire matter to the arbitrators for resolution of the threshold issues as well as the merits of the disputes.

During a two-day hearing on the motion, Appellants argued the merits of the threshold issues they raised while BOA argued that these threshold issues should be decided by the arbitrators. At the conclusion of the hearing, the trial court took the matter under advisement. A week later, it rendered a “fill-in-the-blank” form order that simply denied the motion to determine arbitrability, thus effectively ordering Appellants to arbitration on all of their claims and counterclaims. Appellants moved for rehearing and specifically requested that the trial court clarify its ruling to show whether it had decided the merits of the threshold issues or whether it had referred those issues to the arbitrators; however, the trial court denied the motion for rehearing without explanation. Appellants now seek review of the trial court’s order, contending that the trial court erred either by referring the matter to arbitration without deciding the threshold issues they raised or by deciding those threshold issues adversely to them.

Under Florida law, each of the threshold issues raised by Appellants should have been decided on their merits by the trial court before any referral of the claims and counterclaims to arbitration. On the threshold issue of waiver, Florida law requires the trial court — not the arbitrators — to determine whether a party has waived the right to arbitrate. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (“Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.”); see also Fla. Educ. Ass’n/United v. Sachs, 650 So.2d 29, 30 (Fla.1995) (“[W]e hold that a trial court may determine whether parties to an arbitration agreement have, by their subsequent conduct, waived their contractual right to arbitration.”); Kel Homes, LLC v. Burris, 933 So.2d 699, 705 (Fla. 2d DCA 2006); City of Jacksonville v. Cowen, 973 So.2d 503, 507 (Fla. 1st DCA 2007) (“Florida courts have generally echoed the proposition that the court, rather than the arbitrator, determines whether or not a party has waived arbitration.”); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 575 (Fla. 3d DCA 1999) (“[W]e reaffirm our long standing position that the question of whether arbitration has been waived is one for the trial court to determine.”). While we recognize that some federal courts have held to the contrary and have referred waiver issues to the arbitrators, controlling Florida authority requires the trial court to decide this threshold issue.

Likewise, both federal and Florida law require the trial court — not the arbitrators — to determine the threshold issue of whether an arbitration agreement, as opposed to a contract as a whole, is unconscionable. See, e.g., Rent-A-Center, W., Inc. v. Jackson, — U.S. —, —, 130 S.Ct. 2772, 2778, 177 L.Ed.2d 403 (2010); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); Prima Paint Corp. v. Flood & Conklin Mfg., Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); ATP Flight Sch., LLC v. Sax, 44 So.3d 248, 252 (Fla. 4th DCA 2010). Finally, the trial court — not the arbitrators — must determine the threshold issue of whether a nonparty to an arbitration agreement is bound to arbitrate a specific dispute. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-46, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (holding that a court should decide whether an arbitration provision binds an entity that did not sign the agreement); see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (citing First Options with approval); cf. Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.3d 627 (Fla. 2d DCA 2010) (discussing at length the issues the trial court must consider when determining whether a non-party could be compelled to arbitrate).

Unfortunately, in this case it is impossible for us to determine from the trial court’s minimalistic “fill-in-the-blank” order whether it considered the merits of these threshold issues and decided them adversely to Appellants, as argued by BOA, or whether the trial court decided not to decide and referred these threshold issues to the arbitrators, as argued by Appellants. Given the arguments made at the hearing, either interpretation of the trial court’s order is equally plausible. Accordingly, we must reverse the order and remand for further proceedings. On remand, the trial court must decide these threshold issues on their merits if it has not already done so. The decision on those threshold issues will determine whether referral of the parties’ claims and counterclaims to arbitration is proper. Any order entered on remand must explain the trial court’s rulings sufficiently to facilitate further review should such be sought by either party.

Reversed and remanded for further proceedings in accordance with this opinion.

NORTHCUTT and CRENSHAW, JJ„ Concur.

      . The details of the financial transactions underlying the dispute in this case are quite complex, but most of the details are unnecessary to our determination of the issues in this appeal. We have endeavored to present only the facts necessary for an understanding of our resolution of the dispute actually before us.

      . Because the effect of the order is to determine that BOA is entitled to arbitrate Appellants' claims and counterclaims, we have jurisdiction to review this nonfinal order. See Fla. R. App. P. 9.130(a)(3)(C)(iv).


author: SCHWARTZ, Senior Judge.

text:
    Jaime RAMIREZ, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D11-1208.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.

      Mark J. Feldman, for petitioner.
    Thomas L. Hunker, Miami, for respondent.
    Before SHEPHERD and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The petitioner, who was the successful plaintiff in the county court in an action on a PIP policy, seeks certiorari review of an order of the appellate division of the circuit court which, by clerk’s order, denied him appellate attorney’s fees even though it simultaneously per curiam affirmed the money judgment on appeal. Because this order is directly contrary to the mandatory, non-discretionary requirements of law as required by section 627.428, Florida Statutes, we grant the petition and quash the order below. See Comprehensive Health Ctr., LLC v. United Auto. Ins. Co., — So.3d —, 2011 WL 2848667 (Fla. 3d DCA 2011) (granting certiorari to review of circuit court appellate division denial of appellate section 627.428 attorney’s fees); S. Fla. Pain & Rehab. Ctr., Inc. v. United Auto. Ins. Co., — So.3d —, 2011 WL 1775816 (Fla. 4th DCA 2011) (same); Hollywood Injury Rehab Ctr. v. United Auto. Ins. Co., 985 So.2d 1221 (Fla. 3d DCA 2008) (same); Prof'l Med. Grp., Inc. v. United Auto. Ins. Co., 967 So.2d 243 (Fla. 3d DCA 2007) (same). But see Highwoods DLF EOLA, LLC v. Condo Developer, LLC, 51 So.3d 570, 573 n. 1 (Fla. 5th DCA 2010) (indicating that appeal may be appropriate to review initial decision of appellate court on collateral issue).

The insurance company makes no defense, as it could not, of the merits of the order under review. Indeed, its lawyer has what some may call the candor to agree that

[i]f [the insured’s attorney] had contacted undersigned prior to filing his petition in this Court, Respondent would likely have agreed to a motion for rehearing in the circuit court because the denial of his appellate attorney’s fees was legally erroneous.

Rather than confessing error, however, as this concession would seem to require, see Boca Burger, Inc. v. Forum, 912 So.2d 561, 571-73 (Fla.2005), United has what some may call the courage to contend that, having sought judicial, rather than telephonic relief by filing this completely appropriate petition, the plaintiff is out of luck. This is because, it says, the case does not meet the requirements for second tier review most recently articulated by Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010).

To put it mildly, we disagree. Because the order denying appellate fees was the first ruling on the question, we do not think that, properly viewed, this proceeding is the second, but rather the first tier of appellate review, so that Custer does not directly apply. Compare United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So.3d 506 (Fla. 4th DCA 2010). Whether it does or not, and whether review is properly by certiorari or appeal, see Highwoods DLF EOLA, LLC, 51 So.3d at 573 n. 1, makes no difference. Custer, certainly did not abolish district court certiorari review of circuit court appellate decisions. If that remedy is appropriate in any case at all, as it clearly is, it must apply to one like this in which absolutely nothing can be said for the correctness of the order in question. See Comprehensive Health Ctr., LLC, — So.3d at — (quashing erroneous denial of appellate attorney’s fees by circuit court); Hollywood Injury Rehab Ctr., 985 So.2d at 1222 (same); Prof'l Med. Grp., Inc., 967 So.2d at 244 (same); Arango v. United Auto. Ins. Co., 901 So.2d 320, 322 (Fla. 3d DCA 2005) (same); see also United Auto. Ins. Co. v. Salgado, 22 So.3d 594, 598 n. 2 (Fla. 3d DCA 2009) (granting certiorari on second-tier review of circuit court appellate division per curiam affirmance), review dismissed, 31 So.3d 782 (Fla.2010); Auerbach v. City of Miami, 929 So.2d 693, 694 (Fla. 3d DCA 2006) (same); Kneale v. Jay Ben, Inc., 527 So.2d 917, 918 (Fla. 3d DCA 1988) (same); TBOM Mortg. Holding, LLC v. Brown, 59 So.3d 322 (Fla. 3d DCA 2011) (granting mandamus when requirements of law unequivocally require trial court to enter particular order); Comcoa, Inc. v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991) (same).

Such a ruling, like the one below, inherently constitutes, in fact is the very exemplar of the “miscarriage of justice” which not only justifies but requires remediation by a superior court like ours. See Custer Med. Ctr., 62 So.3d at 1086; Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); see also Auerbach, 929 So.2d at 694-95 (“Failing to [grant review] in this case would [be] an unjustified approval of the obvious failure of the circuit court to apply the correct law, ... and of the resulting ‘miscarriage of justice’ which occurred below.”).

Certiorari granted.

       The reader, if any, is invited to substitute her own preferred equivalent expression. See, e.g., Hayes v. Guardianship of Thompson, 952 So.2d 498, 509 n. 14 (Fla.2006) (chutzpah); Zabrani v. Riveron, 495 So.2d 1195, 1197 n. 2 (Fla. 3d DCA 1986) (same); Price v. Gray’s Guard Service, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974) (intestinal fortitude).

      . As was said with respect to a similar contention in Kneale v. Jay Ben, Inc., 527 So.2d 917, 918 n. 1 (Fla. 3d DCA 1988):

        [The respondent’s] response to the petition for certiorari here does not even seek to justify the decisions below under the applicable law. Instead, it seems to imply that the small amount [$50.07] involved does not justify our consideration of the case. We reject any such idea. There is nothing in the stated requirements for the invocation of our certiorari jurisdiction — or any other part of our duties — which turns on the amount involved. We do not feel put upon to be required to consider any case, however apparently insignificant, in which our jurisdiction, as here, has been properly invoked. Indeed, it is the [respondent’s] position which is utterly devoid of merit, has caused whatever unnecessary expenditure of judicial resources this case involves.


author: ALTENBERND, Judge.

text:
    Francisco Tito SANTANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-911.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2011.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Francisco Tito Santana appeals the order revoking his probation and the sentence imposed upon the revocation. We affirm but remand with instructions to strike the reference to the violation of condition numbers two and nine from the order revoking probation so that the order conforms to the trial court’s oral pronouncement. See Turner v. State, 873 So.2d 480, 480 (Fla. 2d DCA 2004) (“A written order of revocation of probation must conform with the trial court’s oral pronouncement.”) (citation omitted).

Affirmed, but remanded with instructions.

NORTHCUTT and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    Duane HUNTON, Appellant, v. NORTH CARILLON, LLC, Appellee.
    No. 3D10-2405.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Aug. 30, 2011.
    Elizabeth Lee Beck and Jared H. Beck, Miami, for appellant.
    Berman Rennert Vogel & Mandler and Jason R. Block, Neil J. Berman, Miami, and Thomas S. Ward, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See LPP Mortgage Ltd. v. Bank of America, 826 So.2d 462, 463-64 (Fla. 3d DCA 2002).


text:
    Samuel Curtis FELDER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-105.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Samuel Curtis Felder, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We treat the defendant, Samuel Curtis Felder’s, Notice of Appeal dated January 4, 2011, as a belated appeal of the trial court’s order dated March 30, 2011 (titled “Order Dismissing Defendant’s Pro Se Petition for Writ of Habeas Corpus” and “Order Granting the State’s Motion for the Court to Impose Sanctions and to Order the Defendant to Show Cause Why He Should Not Be Prohibited from Filing Further Pro Se Motions”). We hereby dismiss the appeal, as the trial court’s March 30, 2011 order merely granted the State’s motion to show cause why the defendant should not be prohibited from filing further pro se motions. The March 30, 2011 order is thus a non-final, non-appeal-able order. Instead of appealing the March 30 order or filing motions with this Court, the defendant should show cause with the trial court.

Appeal dismissed.


text:
    Lesamuel PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2570.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Lesamuel Palmer, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion which sought additional presentence jail credit. Appellant failed to timely file an amended Rule 3.850 motion seeking discretionary out-of-state jail credit following this court’s remand in Palmer v. State, 993 So.2d 1107 (Fla. 4th DCA 2008). Appellant cannot seek discretionary jail credit in a Rule 3.800(a) motion. See Gomez v. State, 984 So.2d 577 (Fla. 4th DCA 2008).

Appellant’s claim seeking credit for time spent on community control is without merit. See § 948.06(3), Fla. Stat. (2003); State v. Cregan, 908 So.2d 387 (Fla.2005).

Appellant’s motion alleged that on January 1, 2004 he was held in a Brevard County jail awaiting transport to Broward County for this case. This claim was not addressed by the state’s response below or by the trial court. Appellant failed to state a sufficient claim because he failed to identify and explain how an entitlement to additional credit could be determined from the face of the record. See Fla. R.Crim. P. 3.800(a); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998).

As to the claim regarding time spent in Brevard County jail while awaiting transport to Broward County, we affirm without prejudice for appellant to file another Rule 3.800(a) motion which properly pleads this claim. See Gethers v. State, 798 So.2d 829, 832 (Fla. 4th DCA 2001) (holding that defendant was entitled to credit for time served in County A’s jail where he was held there solely on County B’s charges while awaiting transfer to County B’s jail).

The Brevard County circuit court and jail records may establish appellant’s entitlement to this additional credit. See Bur gess v. State, 831 So.2d 187, 141 (Fla.2002) (recognizing that a Rule 3.800(a) claim can be resolved by review of jail administration records); Nelson v. State, 760 So.2d 240, 241 (Fla. 4th DCA 2000).

Affirmed without prejudice as to one claim

MAY, C.J., GROSS and DAMOORGIAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Brian K. RUSSELL, Appellee.
    No. 4D10-2496.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Craig A. Boudreau, Wellington, for ap-pellee.
   PER CURIAM.

Dismissed. See State v. Gray, 721 So.2d 370, 370-71 (Fla. 4th DCA 1998) (noting that “[pjursuant to Florida Rule of Appellate Procedure 9.140(c)(1), the state can appeal an illegal sentence or a downward departure sentence,” but finding no authority for the state to appeal a modification of probation because such action is not a sentence).

STEVENSON, GROSS, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.


author:
PER CURIAM.
      WARNER, J.,

text:
    Hale HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5119.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, and Hale R. Harris, South Bay, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MAY, C.J., and POLEN, J., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I must respectfully dissent. The court found that appellant violated probation by failing to pay restitution, but it failed to make the required findings that he had the ability to pay and willfully refused to do so. See Aidone v. State, 763 So.2d 1127, 1129 (Fla. 4th DCA 1999); see also Limbaugh v. State, 16 So.3d 954 (Fla. 5th DCA 2009). The court should have made a determination on the record. I cannot find this error harmless, because in my view the evidence presented does not show appellant had the ability to pay. While the trial court also found that appellant had violated probation by failing to report, in accordance with Aidone I would reverse with directions to the trial court to make the necessary findings regarding the failure to pay restitution. If the court determines that the appellant did not have the ability to pay and willfully refused to do so, then the court should vacate that ground for revocation and reconsider whether to revoke the appellant’s probation on the sole remaining charge of failure to report.


author: EMAS, J.

text:
    Curtis Dewayne ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1285.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Curtis Dewayne Anderson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Appellant, Curtis Anderson (“Anderson”), appeals the trial court’s order denying his petition to file a belated motion for postconviction relief. Anderson alleged that he retained private counsel to timely file a motion for postconviction relief, and that private counsel failed to do so. Anderson sought an evidentiary hearing to establish his entitlement to seek postconviction relief on this basis. See Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999) (holding that due process rights entitle a defendant to a hearing on a claim that he missed the deadline to file a rule 3.850 motion because his attorney had agreed to file the motion but failed to do so in a timely manner); see also Fla. R.Crim. P. 3.850(b)(3) (permitting the filing of a 3.850 motion beyond the two-year time limitation where defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to do so).

The trial court denied Anderson’s petition because it was unsworn. See Fla. R.Crim. P. 3.850(c). Although the trial court was correct in its determination that the motion was legally insufficient, it should have dismissed or stricken the motion and granted Anderson an opportunity to refile a sworn motion within a reasonable period of time. See Spera v. State, 971 So.2d 754, 761 (Fla.2007) (holding when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet the rule’s pleading requirements, the proper procedure is to dismiss or strike the-motion and allow the defendant at least one opportunity to amend the motion within a reasonable time); Weisman v. State, 651 So.2d 148, 149 (Fla. 2d DCA 1995) (holding where a defendant files unsworn motion for belated appeal, trial court must afford defendant an opportunity to refile a properly sworn motion).

Accordingly, we vacate the trial court’s order and remand for the trial court to dismiss the motion with leave for Anderson to refile a legally sufficient motion with the proper oath within sixty days from the date this opinion becomes final. If Anderson fails to do so, however, the trial court may deny the motion on the merits.


text:
    Daniel Thomas CRAWFORD, Appellant, v. Grace Marie Hill CRAWFORD, Appellee.
    No. 1D10-5478.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2011.
    Lorraine H. Sherman, La Crosse, for Appellant.
    J. Daniel Marsee of Marsee & Flinn, PLLC, Lake City, for Appellee.
   PER CURIAM.

AFFIRMED. See Furr v. Furr, 57 So.3d 914 (Fla. 1st DCA 2011); Simmons v. Simmons, 979 So.2d 1063, 1064-65 (Fla. 1st DCA 2008).

WOLF, LEWIS, and RAY, JJ., concur.


text:
    L.C., Appellant, v. A.M.C., Appellee.
    No. 2D10-2669.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.

      Kevin D. Brennan of Meros, Smith, Laz-zara & Olney, P.A., St. Petersburg, for Appellant.
    No appearance for Appellee.
   KELLY, Judge.

L.C. (the Grandfather) appeals from the final judgment of injunction for protection against domestic violence which prohibits him from having any contact with his granddaughter, J.C. Because the Grandfather did not receive reasonable notice of the hearing on the petition for the injunction, we reverse.

On April 8, 2010, A.M.C. (the Mother) filed a petition for injunction for protection against domestic violence against L.C., the child’s paternal grandfather. After reviewing the Mother’s petition, the court found that the facts as stated in the petition standing alone did not justify the entry of a temporary injunction. The court set a hearing for April 15, 2010, at 11:00 a.m. The Grandfather was not served with notice of the hearing until April 14, 2010, at 9:45 a.m. The Grandfather immediately attempted to obtain counsel, but was unable to do so in time for the hearing. After the hearing, he did retain an attorney who promptly filed a motion for rehearing detailing the Grandfather’s efforts to obtain counsel between the time he received the notice and the time of the hearing.

On appeal, the Grandfather argues that the service of notice only twenty-five hours before the hearing was insufficient. See, e.g., Traughber v. Traughber, 941 So.2d 388 (Fla. 2d DCA 2006) (finding that the respondent received insufficient notice of the hearing on the permanent injunction where he was served with notice of the hearing the night before the hearing); Storm v. Decker, 971 So.2d 165 (Fla. 5th DCA 2007) (holding that the respondent was denied procedural due process when the trial court failed to continue the injunction hearing where the respondent was not served with the petition until three business days before the hearing and the record did not reflect any emergency or danger). Under the facts here, we agree the notice was insufficient. The record contains no indication that J.C. was in any danger because of L.C., and certainly not imminent danger. L.C. acted diligently to obtain counsel after he was served with the notice, and he promptly sought rehearing after the injunction was entered in a motion that detailed his efforts. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

CRENSHAW and MORRIS, JJ., Concur.

      . In his initial brief, L.C. also argued that the injunction was not supported by competent, substantial evidence because the trial court did not put A.M.C. under oath at the hearing. In a motion filed after our original opinion issued, L.C. withdrew that claim after receiving a corrected transcript of the hearing that included the portion of the court proceedings where the oath was administered. Accordingly, we have reissued our opinion to reflect L.C.’s withdrawal of that issue. We note, however, that the corrected transcript does not resolve the issue of whether these parties were placed under oath. The transcript indicates that at the beginning of the domestic violence docket, the clerk administered the oath to "the participants in the courtroom” who "responded in unison.” The transcript does not reflect who was in the courtroom when the oath was administered. Multiple cases were on the docket, and the transcript reflects that "other cases were called by the court” before this one. When this case was called, the trial court did not ask the parties if they had been sworn. Thus, we cannot determine from the record whether either party was present and took the oath when the clerk administered it to the group at the beginning of the docket.

      . In so holding, we emphasize that a party is not required to be represented by an attorney in injunction proceedings. "In the context of domestic and repeat violence, section 741.30(1)(f) of the Florida Statutes (2009), states, 'This cause of action for an injunction shall not require that either party be represented by an attorney.’ " In re Eriksson, 36 So.3d 580, 593 (Fla.2010). Rather, judges are encouraged to assist pro se litigants in understanding the process of obtaining a domestic or repeat violence injunction and not to employ an unduly rigid approach so as to impede a pro se litigant’s ability to obtain the relief he or she seeks from the court. Id. at 593-94.


text:
    A.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3565.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

At issue here is whether the trial court erred by placing a juvenile sex offender on probation beyond her nineteenth birthday. Section 985.0301(5)(h), Florida Statutes (2010), provides that “[t]he court may retain jurisdiction of a juvenile sexual offender who has been placed in a program or facility for juvenile sexual offenders until the juvenile sexual offender reaches the age of 21 ...” Appellant contends that the trial court exceeded its jurisdiction by placing her on probation until age twenty-one because she was not committed to a residential treatment facility. We disagree and affirm.

In construing a statute, “statutory language should be given its plain and ordinary meaning.” E.D.B. v. State, 5 So.3d 787, 789 (Fla. 5th DCA 2009). Section 985.0301(5)(h) extends jurisdiction over juvenile sex offenders placed in either a “program or facility.” (Emphasis added). The statute is unambiguous; if either condition is satisfied, extended jurisdiction is proper. We find that the trial court placed Appellant in a sex offender “program,” thus the fact that she was not committed to a residential treatment facility is inconsequential and probation until age twenty-one is proper.

AFFIRMED.

SAWAYA, TORPY and EVANDER, JJ„ concur.


text:
    Issac B. DENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-680.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Rebecca Roark Wall Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Defendant’s judgment and sentence but remand with directions to the trial court to reduce the $250,000 fine imposed under section 893.135(l)(c)l.b., Florida Statutes (2009), to the statutorily-mandated amount of $100,000.

AFFIRM in part; REVERSED in part; REMANDED with directions.

SAWAYA, EVANDER and JACOBUS, JJ., concur.