text:
    John W. CRITTENDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-745.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.

      John W. Crittenden, Perry, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

In his three 1995 cases, John W. Crit-tenden entered into plea agreements and received concurrent prison sentences, followed by probation. In his subsequent appeal, this Court affirmed in all respects, except for reversing Crittenden’s conviction and sentence for grand theft on double jeopardy grounds. Crittenden v. State, 684 So.2d 857 (Fla. 5th DCA 1996).

For the last fifteen years, we have considered and rejected numerous actions attacking Crittenden’s convictions and sentences. See, e.g., Crittenden v. State, 988 So.2d 1105 (Fla. 5th DCA 2008) (Table); Crittenden v. State, 969 So.2d 1036 (Fla. 5th DCA 2007) (Table); Crittenden v. State, 840 So.2d 255 (Fla. 5th DCA 2003) (Table); Crittenden v. State, 743 So.2d 1173 (Fla. 5th DCA 1999) (Table). Crittenden now seeks a belated appeal of the denial of his latest postconviction motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, Crittenden attacked his upward departure sentences imposed pursuant to section 921.0016, Florida Statutes (1993), after he violated his probation in 2004 by committing a new drug trafficking offense. Because he made the same arguments in a previous rule 3.800(a) motion, the instant motion was denied as it was successive. See McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983). Accordingly, we denied the belated appeal by separate order. On that same date, this Court also entered a show cause order pursuant to section 944.279, Florida Statutes (2010), and State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999). Having carefully considered Crittenden’s response, we conclude that he has provided no valid reason for filing this frivolous petition based upon an untimely notice of appeal, misleadingly made to appear as if it was timely filed.

“A part of the Court’s responsibility is to see that [the Court’s limited] resources are allocated in a way that promotes the interests of justice. The continual processing of [a] petitioner’s frivolous [filings] does not promote that end.” In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989); see Bauer v. State, 31 So.3d 220, 220 (Fla. 4th DCA 2010) (“It continues to concern us that [rule] 3.800 permits a prisoner to file a motion to correct an illegal sentence at any time, and there is no limit on the number of such motions which can be filed.... This has led to the proliferation of successive filings by prisoners and a substantial and costly increase in workload for both trial and appellate courts.”); Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (explaining that no matter how repetitious or frivolous a filing is, it requires some portion of court’s limited resources; it is court’s responsibility to see that these resources are allocated in way that promotes interests of justice).

We conclude that Crittenden is abusing the judicial process and that he should be barred from further pro se filings. We, therefore, prohibit Crittenden from filing any more pro se pleadings with this Court concerning Marion County Fifth Circuit Court Case Nos. 95-2251-CF, 95-973-CF, and 95-1384-CF. See, e.g., Fox v. State, 60 So.3d 1177, 1178 (Fla. 4th DCA 2011) (“All things must come to an end, and so it is with postconviction challenges.”); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding that defendant’s “pro se filings have become frivolous, an abuse of process, and a waste of the taxpayers’ money”); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995) (“Enough is enough.”). Any additional pleadings regarding this case will be accepted only if signed by a member in good standing with The Florida Bar. See Floyd v. State, 62 So.3d 1228, 1229 (Fla. 5th DCA 2011); Durr v. State, 57 So.3d 264 (Fla. 5th DCA 2011).

Section 944.279, Florida Statutes (2010), reads in part:

944.279. Disciplinary procedures applicable to prisoner for filing frivolous or malicious actions or bringing false information before court.—
(1) At any time, and upon its own motion ... a court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith. A prisoner who is found by a court ... to have brought a frivolous or malicious collateral criminal proceeding ..., or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections....

(Emphasis added). The Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate corrections institution for consideration of disciplinary procedures. See §§ 944.09, 944.279(1), 944.28(2), Fla. Stat. (2010). We will not entertain any rehearing on this matter.

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

ORFINGER, C.J., LAWSON and COHEN, JJ., concur.

      . We reiterate that a per curiam affirmance without opinion is not an indication that the case was not considered on the merits. Each and every appeal receives the same degree of attention. See, e.g., Elliott v. Elliott, 648 So.2d 137 (Fla. 4th DCA 1994) (containing detailed discussion of use of per curiam affir-mances, including explanation that affir-mance without written opinion signifies no error and written opinion would serve no useful purpose, but is not indication that appellate court overlooked any argument).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edgardo MIRANDA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2176.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.

      Edgardo Miranda, Crawfordville, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the Order Denying Motion to Allow for County Jail Time in case number 2009-CF-002092, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, MONACO, and COHEN, JJ., concur.


text:
    Larry D. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2415.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    Robert Wesley, Public Defender and Robert Power, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 10-CF-7781-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, MONACO and EVANDER, JJ., concur.


text:
    Eddie McNEALY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5869.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.
    James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm Eddie McNealy’s judgment and sentence for second-degree murder. However, as this court did in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), we certify the following question to the Florida Supreme Court to be of great public importance:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

Affirmed; question certified.

WHATLEY, KELLY, and WALLACE, JJ., Concur.


text:
    Willie J. MITCHELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1354.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    Willie J. Mitchell, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Rebecca Roark Wall Assistant Attorney General, Daytona Beach, for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

After affirming the order denying Appellant’s Rule 3.800(a) motion to correct sentence on June 21, 2011, this court issued an order directing Willie J. Mitchell, Jr. to show cause why he should not be barred from further pro se filings in this court. See generally State v. Spencer, 751 So.2d 47 (Fla.1999). This was Mitchell’s seventh meritless pro se postconviction appeal in this court attacking his judgment or sentence in Volusia County Case No. 02-30843-CFAES.

Mitchell filed a response and a motion for rehearing asserting that his appeal has merit and that this Court overlooked or misapprehended several issues. We conclude that Mitchell is abusing the judicial process and should be barred from further pro se filings.

We now prohibit Willie J. Mitchell, Jr., from filing with this court any more pro se petitions or appeals concerning Volusia County Case No. 02-30843-CFAES. The Clerk of this Court is directed not to accept any further pro se papers from Mitchell which violate this prohibition. Any additional petitions or notices of appeal regarding this case will be accepted only if signed by a member in good standing with The Florida Bar. See Floyd v. State, 62 So.3d 1228 (Fla. 5th DCA 2011).

Future pro se filings PROHIBITED; CERTIFIED opinion forwarded to Department of Corrections.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    JM FAMILY ENTERPRISES, INC., et al., Appellants, v. WINTER PARK IMPORTS, INC., Appellee.
    No. 5D10-4008.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2011.
    Dean Bunch, C. Everett Boyd, Jr. and J. Andrew Bertron, Jr., of Nelson Mullins Riley & Scarborough LLP, Tallahassee, and Daniel F. Katz and Julie Ann Lund of Williams & Connolly LLP, Washington, DC, pro hac vice, for Appellants.
    Ladd H. Fassett and Phil A. D’Aniello of Fassett, Anthony & Taylor, P.A., Orlando, and John W. Forehand of Kurkin, Forehand, Brandes, LLP, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Winter Park Imports, Inc. v. JM Family Enters., 66 So.3d 336 (Fla. 5th DCA 2011).

TORPY, LAWSON and EVANDER, JJ., concur.


author: SUAREZ, J.

text:
    M.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-153.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTINAS, and EMAS, JJ.
   SUAREZ, J.

M.J. appeals from an adjudication of delinquency for resisting a police officer without violence. We affirm, as there was competent substantial evidence to support a prima facie case of resisting an officer without violence.

On June 25, 2009, City of Opa Locka police officers Sorano, Vega, and Steel were dispatched in response to a burglary in process. After setting up a perimeter, they observed M.J. running through an alleyway. Dressed in full uniform and identifying himself as a police officer, Officer Sorano called M.J.’s nickname, “Skeeter,” and told him to stop. M.J. turned around, smiled, and continued running in the opposite direction. Also dressed in full police uniform, Officer Vega, who was able to identify M.J. from a previous encounter, observed him coming up from the bushes where he was hiding in the alleyway. After being chased by both officers down the alley, over some fences and into buildings — all the while being told by officers to “stop” — M.J. was apprehended and placed in handcuffs by Officer Steel.

M.J. argued below and on appeal that there was no reasonable suspicion of criminal activity sufficient to justify the stop and thus the officers were not executing a legal duty required to sustain the charge of resisting arrest without violence. We disagree.

To support a conviction for resisting arrest without violence under section 843.02, Florida Statutes (2007), the State must prove that: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s actions, by his words, conduct, or a combination thereof, constitute obstruction or resistance of the lawful execution of a legal duty.

The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrant-less arrest. E.A.B. v. State, 851 So.2d 308 (Fla. 2d DCA 2003). A stop is justified when an officer observes facts giving rise to a reasonable suspicion that criminal activity has occurred or is about to occur. C.E.L. v. State, 24 So.3d 1181 (Fla.2009). Whether an officer’s suspicion is reasonable must be determined from the totality of the circumstances existing at the time of the investigative stop, based on the facts known to the officer before the stop. C.E.L., 24 So.3d at 1186.

Based on the totality of the circumstances known to the officers before they stopped M.J., we find that there was reasonable suspicion for them to stop M.J.; the officers were lawfully executing a legal duty sufficient to satisfy the charge of resisting an officer without violence. We therefore affirm MJ.’s adjudication for resisting an officer without violence.

      . Section 843.02, Florida Statutes (2007) provides:
      843.02 Resisting officer without violence to his or her person . — whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); ... or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      . We remand for the purpose of holding an evidentiary hearing to determine if M.J. voluntarily waived his presence at sentencing. See State v. G.C., 955 So.2d 1215 (Fla. 4th DCA 2007).


text:
    S.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1738.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

Affirmed. Frazier v. State, 761 So.2d 337, 340 (Fla. 4th DCA 1999); Williams v. State, 689 So.2d 393, 399 (Fla. 3d DCA 1997).


author: WELLS, Chief Judge.

text:
    D.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-934.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Dan Hallenberg, Assistant Counsel, for appellant.
    Pamela Jo Bondi, Attorney General and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SALTER and EMAS, JJ.
   WELLS, Chief Judge.

D.J. appeals from an adjudication of delinquency claiming that the court below erred in admitting his school attendance record into evidence. While we agree that the court below erred in admitting this evidence without proper authentication, see § 90.901, Fla. Stat. (2010) (“Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”); A.Z. v. State, 383 So.2d 934, 935 (Fla. 5th DCA 1980) (reversing dependency determination where, among other errors, “[t]he court used the materials [including school records] in formulating its decision ... [that] were not identified, [nor] authenticated”), we affirm because a review of the record confirms the error harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).


author: CORTIÑAS, J.

text:
    940 LINCOLN ROAD ENTERPRISES, Appellant, v. Margarita HERNANDEZ and Unemployment Appeals Commission, et al., Appellees.
    No. 3D10-3329.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Aaron Swimmer, Miami Beach, for appellant.
    Santiago J. Padilla, Miami; M. Elaine Howard, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for appellees.
    Before SHEPHERD, CORTEÑAS, and EMAS, JJ.
   CORTIÑAS, J.

940 Lincoln Road Enterprises (“Employer”) seeks review of the Florida Unemployment Appeals Commission’s (“FUAC”) final order reversing an appeals referee’s decision and determining that Margarita Hernandez (“Claimant”) is entitled to receive unemployment benefits. We affirm.

Claimant was employed by Employer from August 2006 until March 12, 2010, when she left her job. When Claimant subsequently applied for unemployment compensation, her claim was denied on the ground that she voluntarily quit her employment. Claimant appealed this decision and the matter was referred to an appeals referee.

At the hearing before the referee, Claimant asserted that she left her job because she was sexually harassed by Employer’s owner. She repeatedly asked the owner to stop this conduct, and complained to her immediate supervisor, all to no avail. Claimant remained on the job because she had a small child and needed the income. However, when the situation got worse, she could no longer tolerate the owner’s conduct and she finally quit.

Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected' the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.

Claimant appealed the referee’s decision to FUAC. As it is statutorily authorized to do, see § 120.57(1)(i), Fla. Stat. (2009), FUAC adopted the referee’s findings of fact, but rejected the conclusion that Claimant was disqualified from receiving benefits. FUAC reasoned that:

“There is no evidence to support the referee’s conclusion that victims of sexual harassment frequently go to the police to complain about a hostile work environment or seek psychological or medical treatment. Additionally, sexual harassment can continue for several years before the victim makes public her complaint.... Considering a job is usually a person’s economic lifeline, the claimant’s failure to contact outside authorities regarding her complaint cannot be called unreasonable or inherently improbable.”

We agree with the FUAC.

In addition, it is important to note that Claimant’s testimony was uncontro-verted. Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts. See MediTek Therapy, Inc. v. Vat-Tech, Inc., 658 So.2d 644, 646 (Fla. 2d DCA 1995); Republic Nat’l Bank of Miami, N.A. v. Roca, 534 So.2d 736, 738 (Fla. 3d DCA 1988).

For these reasons, we affirm the FUAC order reversing the referee’s decision, and finding that Claimant was qualified to receive benefits because she left her employment with good cause attributable to the employer.

Affirmed.


author: LAGOA, J.

text:
    Michael W. SKOP, Appellant, v. P3 GROUP, L.L.C., and Hypower, Inc., Appellees.
    No. 3D10-2827.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Frank Wolland, for appellant.
    Tripp Scott and Richard Petrovich, for appellees.
    Before LAGOA and EMAS, JJ, and SCHWARTZ, Senior Judge.
   LAGOA, J.

The appellant, Michael W. Skop (“Skop”), filed a second amended complaint against the appellees, P3 Group, L.L.C. (“P3 Group”), and its guarantor, Hypower, Inc., asserting claims for breach of contract, fraudulent misrepresentation and negligent misrepresentation, and seeking to retain earnest money deposits and to obtain amounts purportedly due under an Agreement and Assignment. P3 Group counterclaimed, asserting claims for rescission, conversion, declaratory relief, unjust enrichment, and breach of fiduciary duty. Skop seeks review of the trial court’s order dismissing his second amended complaint. Because we find that the trial court’s order was not a final, appealable order, the appeal is dismissed.

A review of the record reveals that the claims asserted in Skop’s second amended complaint are inextricably intertwined with P3 Group’s pending counterclaims. As such, appellate review of the order, under this circumstance, is premature. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Arthur v. Smith, 8 So.3d 502 (Fla. 1st DCA 2009); Marinich v. Special Edition Custom Homes, LLC, 1 So.3d 1197 (Fla. 2d DCA 2009); Belle Isle Assocs., Inc. v. Nine Island Ave. Condo. Ass’n, 990 So.2d 1176 (Fla. 3d DCA 2008). Accordingly, we grant the appellees’ motion to dismiss the appeal for lack of jurisdiction. The dismissal, however, is without prejudice to any party’s later appeal from a final, appealable order.

Appeal dismissed.


author: CONNER, J.

text:
    HOLLYWOOD MOBILE ESTATES LIMITED, a Florida limited partnership, Appellant, v. HOLLYWOOD ESTATES INDEPENDENT TENANTS ASSOCIATION, INC., a Florida non-profit corporation, Appellee.
    No. 4D10-4161.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Michael P. Ham-away of Mombach, Boyle & Hardin, Fort Lauderdale, and David Eastman of Lutz, Bobo, Telfair, Gabel & Lee, Tallahassee, for appellant.
    No appearance for appellee.
   CONNER, J.

Appellant Hollywood Mobile Estates Limited (“Hollywood Mobile”) appeals a non-final order denying its motion to require the individual mobile home tenants who are members of Appellee Hollywood Estates Independent Tenants Association (“Hollywood Tenants Association”) to deposit rent into the court registry pursuant to section 723.063(2), Florida Statutes (1997). We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(B); Hughes v. First Fed. Sav. & Loan Ass’n, 621 So.2d 557 (Fla. 4th DCA 1993). We reverse.

Hollywood Mobile holds a leasehold interest as a lessee of property owned by the Seminole Tribe of Florida, which has been developed into a mobile home park. The members of Hollywood Tenants Association sublease individual lots from Hollywood Mobile. After a dispute arose between the Seminole Tribe and Hollywood Mobile, the Seminole Tribe entered the park and took possession, forcibly expelling Hollywood Mobile’s employees. The Seminole Tribe unilaterally terminated its lease with Hollywood Mobile and began collecting rent directly from the mobile home tenants.

Two weeks after the Seminole Tribe’s takeover, Hollywood Tenants Association sued Hollywood Mobile in a class action pursuant to rule 1.222, Florida Rules of Civil Procedure and chapter 723, Florida Statutes. Hollywood Tenants Association sued to invalidate an allegedly unreasonable rent increase, to obtain damages or a reduction in rent for reducing services, and to obtain damages for not keeping the park in good repair as required by chapter 723. Hollywood Mobile filed a counterclaim for declaratory relief against the association, as a class action defendant, asking the court to declare the subleases valid. An amended counterclaim sought supplemental relief in the form of damages for accrued rent. Hollywood Mobile then moved for rent to be deposited into the court registry pursuant to section 723.063(2). That statute requires: “In any action by the park owner or a mobile home owner brought under subsection (1), the mobile home owner shall pay into the registry of the court that portion of the accrued rent, if any, relating to the claim of material noncompliance.... ” The trial court denied the motion.

Hollywood Mobile argues the trial court erred in failing to apply the unambiguous and mandatory language of section 723.068(2). Where an issue involves the interpretation of a statute, a de novo standard of review applies. Strod v. Lewenstark, 958 So.2d 1138, 1139 (Fla. 4th DCA 2007). Hollywood Mobile relies on MLH Property Managers v. Cox, 613 So.2d 1358 (Fla. 4th DCA 1993). In that case, the lessees refused to pay impact and construction fees relating to utility connections, so the lessor filed suit for declaratory judgment and judgment for unpaid rent. The lessees asserted material noncompliance with chapter 723 as an affirmative defense. The MLH court held that the requirements of section 723.063(2) were mandatory and applied to the impact and construction fees, as the lease required the lessees to pay these charges. The lessees could not avoid paying into the registry simply because they were disputing the fees as rent.

Although Hollywood Tenants Association is a single mobile home owner association, it instituted suit in its name on behalf of all the mobile homeowners. As such, the individual mobile homeowner members of Hollywood Tenants Association are the real parties in interest. See Yacht Club Southeastern v. Sunset Harbour N. Condo. Ass’n, 843 So.2d 917, 919 (Fla. 3d DCA 2003). As the real parties in interest, they can be required to comply with the requirements of section 723.063(2) as if they sued Hollywood Mobile individually or jointly in their own names. Because Hollywood Mobile sued for damages for unpaid rent and Hollywood Tenants Association has asserted material noricom-pliance with chapter 723, the trial court erred when it failed to apply the mandatory requirement of section 723.063(2) for mobile home owners to pay disputed rent into the court registry.

Reversed and remanded.

WARNER and LEVINE, JJ., concur.


text:
    J.D. Father of A.D., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-228.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    Edward M. Abel of the Law Office of Edward M. Abel, D.M.D., Esq., LLC, Spring Hill, for Appellant.
    Deborah A. Schroth, Orange Park, for Appellee.
    Wendie Michelle Cooper, Tavares for the Guardian ad Litem Program.
   PER CURIAM.

ON CONCESSION OF ERROR

Pursuant to the Appellee’s concession of error, the Order terminating the appellant’s parental rights is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

TORPY, LAWSON and COHEN, JJ., concur.


author: COHEN, J.

text:
    T.K., Mother of J.R.T., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-481.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2011.
    E. Juan Lynum of Lynum & Associates, PLLC, Orlando, for Appellant.
    Deborah Anne Schroth, Appellate Counsel, Children’s Legal Services, Department of Children and Families, Orange Park, for Appellee.
   COHEN, J.

T.K., J.R.T.’s mother, appeals from the final judgment terminating her parental rights. We affirm.

J.R.T. was initially sheltered in December 2008 due to his parents’ abuse of alcohol and prescription medications. The mother consented to a case plan, which consisted of participating in a drug abuse evaluation and treatment, a parenting program, and paying child support. In 2009, following the mother’s arrest for DUI and a resulting search which revealed her possession of a substantial amount of prescription medication, the Department of Children and Families (“the Department”) filed a petition for termination of her parental rights. Dué to irregularities at the ensuing trial, this court reversed the final judgment terminating the mother’s parental rights. T.K. v. Dep’t of Children & Families, 44 So.3d 1271 (Fla. 5th DCA 2010).

On remand, the court conducted a second trial. The gravamen of the petition seeking termination of the mother’s parental rights was her failure to substantially comply with the case plan, as well as the previous termination of her parental rights to another child. The latter was not disputed. The evidence at trial reflected that the mother had completed a parenting program but had not significantly progressed regarding her substance abuse. While in treatment, she continued to test positive for drugs. Although she testified that she voluntarily admitted herself to an in-house treatment program through LifeStreams Behavioral Center, she was unable to document that treatment. During the 2009 DUI arrest, the mother was found to have a small pharmacy in her purse — thirty al-prazolam, nine methadone, twelve oxyco-done, and two hydrocodone pills. This followed a 2008 shoplifting arrest, when she was found in possession of an even larger array of prescription medications encompassing more than 400 pills including methadone, Xanax, and oxycodone, along with prescriptions yet to be filled. The trial court found by clear and convincing evidence that the mother’s alcohol and substance abuse and subsequent failure to substantially comply with her case plan endangered the well-being and safety of the child, and that termination of parental rights was the least restrictive means to insure the child’s protection.

On appeal, the mother argues that drug tests showing the use of drugs prescribed to her cannot support the conclusion that she failed to substantially comply with her case plan. Certainly, the legitimate use of prescribed medications should not lead to a parent’s loss of parental rights, but that is not the situation here. On multiple occasions, the mother possessed more medication, and in such a combination, as to belie any legitimate medical use. Additionally, she possessed unfilled prescriptions from several different physicians with dates close in time for the same medications. In short, this mother is the face of a problem of epidemic proportions — the obtaining of large quantities of prescription medications from numerous physicians. Further, the mother underwent an evaluation which concluded that she was addicted to both alcohol and opiates, a condition that she acknowledged to various family members. While both are legal, use of either can result in the termination of parental rights when abused to the extent that a child is placed in danger. The mother presented no evidence of a legitimate medical basis for her use of the medications, and this addiction led to numerous arrests.

The evidence established that except for the completion of the parenting class requirement, the mother has not substantially complied with the case plan. She has paid no monies for the support of her child, has not visited with her child, and has not substantially completed substance abuse treatment. The same drug abuse issues that resulted in the earlier termination of parental rights to J.R.T.’s sibling continue to plague the mother, putting J.R.T. at risk. See Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 609-10 (Fla.2004).

We also find no merit to the mother’s argument that the trial court failed to properly apply the standard in determining that termination of her parental rights to J.R.T. was the least restrictive means to protect the child.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

      . J.R.T. was three years old at the time of trial. The trial court also terminated the parental rights of the child's father, who did not appeal.

      . A different judge conducted the first trial.

      . In March 2010, the mother tested positive for cocaine.

      .Ninety-eight of the top one hundred doctors dispensing oxycodone nationally are in Florida. More oxycodone is dispensed in the State of Florida than in the rest of the nation. The Honorable Rick Scott, Governor of Fla., Testimony before the U.S. H.R. Energy & Commerce Comm., Subcomm. on Commerce, Mfg. & Trade, (Apr. 14, 2011), 2011 WL 1964979 (F.D.C.H.), available at http://www. flgov.com/2011/04/14/governor-rick-scott S%ors-testimony-of-prescription-drug-diversion/.


author: VILLANTI, Judge.

text:
    Jeffrey Lewis LEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1228.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2011.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Jeffrey Lewis Lee appeals the revocation of his probation and the resulting sentence in two underlying cases. We affirm the revocation of Lee’s probation but remand for the trial court to enter a corrected revocation order. We also reverse Lee’s sentence and remand for the trial court to resentence Lee as a youthful offender.

Lee pleaded guilty to one count of possession of cocaine, one count of driving while license suspended or revoked, and one count of fleeing to elude in two separate circuit court cases. On April 16, 2009, the trial court withheld adjudication and sentenced Lee as a youthful offender to concurrent terms of twenty-four months’ probation on the possession and fleeing offenses and to six months’ probation on the driving offense.

Two weeks later, the Department of Corrections filed affidavits of violation of probation in both cases based on allegations that Lee had committed new offenses since being placed on probation. The court held a hearing and found that Lee had violated his probation by committing the new offenses of trafficking in cocaine, resisting an officer with violence, aggravated assault on a law enforcement officer, sale of cocaine, and delivery of cocaine. Based on these violations, the trial court revoked Lee’s probation and sentenced him to consecutive five-year prison terms on the possession and fleeing offenses and to time served on the driving offense. In doing so, the trial court specifically declined to continue Lee’s status as a youthful offender.

In this appeal, Lee contends that the trial court’s finding that he committed the new offense of trafficking in cocaine was not supported by competent, substantial evidence. We agree because the only evidence presented by the State to establish that Lee committed this offense was hearsay, which cannot, standing alone, support a finding of a violation of probation. See, e.g., Russell v. State, 982 So.2d 642, 646 (Fla.2008) (holding that while hearsay evidence is admissible at a revocation hearing, hearsay cannot form the sole basis for finding a violation of probation); Casas v. State, 27 So.3d 203, 206 (Fla. 2d DCA 2010) (same). Lee also contends that the trial court erred by finding that he had violated his probation by committing the new offense of resisting an officer with violence because that offense was not charged in the affidavit of violation of probation. Again, we are compelled to agree because the affidavit of violation of probation did not charge Lee with violating his probation by committing this offense, and “ ‘[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation.’ ” Cherington v. State, 24 So.3d 658, 660 (Fla. 2d DCA 2009) (quoting Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000)).

However, despite these errors, we affirm the revocation of Lee’s probation. When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. See, e.g., Simmons v. State, 913 So.2d 19, 24 (Fla. 2d DCA 2005); Burse v. State, 724 So.2d 596, 598 (Fla. 2d DCA 1998); Olvey v. State, 707 So.2d 1189, 1189-90 (Fla. 2d DCA 1998); Bourne v. State, 869 So.2d 606, 607 (Fla. 1st DCA 2004). Only when this court cannot determine from the record whether the trial court would have revoked the defendant’s probation based solely on the proper grounds will this court reverse and remand for reconsideration by the trial court. See, e.g., Clemons v. State, 388 So.2d 639, 640 (Fla. 2d DCA 1980).

Here, the trial court’s finding that Lee violated his probation by committing the new offenses of aggravated assault on a law enforcement officer, sale and/or delivery of cocaine, and possession of cocaine is fully supported by the evidence. Thus, there were proper grounds for revocation presented at the revocation hearing. Moreover, it is abundantly clear from the trial court’s remarks at the hearing that it would have revoked Lee’s probation based solely on the proper grounds for revocation. Accordingly, we affirm the revocation of Lee’s probation, but we remand for the trial court to enter a corrected revocation order that deletes any reference to the alleged violations that were not properly established at the revocation hearing.

Turning to Lee’s sentence, however, we must reverse and remand for resen-tencing. Lee was originally sentenced to twenty-four months’ probation as a youthful offender. However, when the trial court sentenced Lee upon revocation of his probation, it specifically declined to maintain Lee’s youthful offender status. This decision constituted error.

“Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.” Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010); see also State v. Arnette, 604 So.2d 482, 484 (Fla.1992) (“Unless the legislature clearly states otherwise, youthful offenders maintain youthful offender status even when they violate a condition of community control.”); Gardner v. State, 656 So.2d 933, 937 (Fla. 1st DCA 1995) (“[0]nce a defendant is sentenced under the provisions of [the youthful offender statute], a court may not reclassify the defendant and sentence him or her in a manner inconsistent with [that statute].”). While a defendant is not entitled to be sentenced as a youthful offender on any new offense he or she may have committed, see Boynton v. State, 896 So.2d 898, 899 (Fla. 3d DCA 2005), the trial court cannot revoke a defendant’s youthful offender status on offenses for which that defendant has already been sentenced. However, while the court must maintain the defendant’s youthful offender status upon revocation of probation, the court is not limited to imposing the usual youthful offender sentence of six years or less in prison if the revocation is based on a substantive violation of probation. Instead, in that instance the court may sentence a youthful offender to a period not “longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated.”

§ 958.14, Fla. Stat. (2010).

In this case, the trial court revoked Lee’s probation based on a substantive violation of his probation. Thus, the length of Lee’s sentence, i.e., the statutory maximum terms for the offenses to which he pleaded guilty, is legal. However, the trial court’s decision to revoke Lee’s youthful offender status, which was not subject to revocation once it was imposed, renders his sentence illegal. Arnette, 604 So.2d at 484; Blacker, 49 So.3d at 788. Accordingly, we reverse Lee’s sentence and remand for him to be resentenced as a youthful offender. We note that on remand the trial court may impose the same consecutive five-year sentences if it so chooses, but it must maintain Lee’s youthful offender status.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and WALLACE, JJ., Concur.

      . Since the trial court may elect to sentence Lee to the same term of imprisonment on remand, we recognize that Lee’s resentencing may appear to be only a paper victory. However, Lee argues that there are services and other advantages available to youthful offenders through the Department of Corrections and to which he would be entitled if he was properly sentenced. We express no opinion concerning the correctness of this argument or whether Lee is actually entitled to any such services or advantages once he is properly sentenced.


author: CASANUEVA, Judge. ALTENBERND, Judge,

text:
    Micah JONES, Appellant, v. Lawrence A. JACKSON, Appellee.
    No. 2D10-398.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2011.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    No Appearance for Appellee.
   CASANUEVA, Judge.

Micah Jones appeals an order granting Lawrence Jackson an injunction for protection against repeat violence. Mr. Jones argues that his actions did not constitute repeat violence under section 784.046, Florida Statutes (2009), because there was no competent, substantial evidence that his actions amounted to stalking. We agree and reverse.

Section 784.046 provides injunctive relief from repeat violence for “two incidents of violence or stalking.” Willful, malicious, and repeated harassment constitutes stalking. § 784.048(2). Mr. Jackson testified that he received threatening phone calls and text messages from Mr. Jones. However, these particular threats would not have caused a reasonable person substantial emotional distress. See § 784.048(l)(a) (defining “harassment” as “a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose”); Slack v. Kling, 959 So.2d 425, 426 (Fla. 2d DCA 2007) (utilizing the reasonable person standard to determine whether the petitioner suffered substantial emotional distress). In fact, the only evidence about Mr. Jackson’s emotional response was that he “was calm” after receiving one of the threats. His testimony supports our conclusion that the threats would not have caused a reasonable person in Mr. Jackson’s shoes to suffer substantial emotional distress. Therefore, Mr. Jones’s direct threats did not amount to harassment.

Mr. Jackson also testified that Mr. Jones made statements to third parties suggesting he would do violence to Mr. Jackson. Indirect contact can constitute harassment. See, e.g., Seitz v. State, 867 So.2d 421, 422-23 (Fla. 3d DCA 2004) (publicizing of victim’s pharmaceutical records caused emotional distress and constituted harassment). But, like the direct threats in this case, these statements would not have caused a reasonable person in Mr. Jones’s place to suffer substantial emotional distress.

In summary, Mr. Jackson’s testimony failed to establish harassment because a reasonable person would not have suffered emotional distress from Mr. Jones’s threats or statements. Without harassment there was no proof of stalking, and without stalking there was no proof of “repeat violence.” Therefore, the trial court erred in granting the injunction for protection against repeat violence.

Reversed.

WHATLEY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

Without question it would be a very good idea for these two men to leave one another alone. It helps to understand that, at the time of this hearing, Mr. Jones was living with Mr. Jackson’s “soon-to-be ex-wife.” Their disagreements seem to have arisen primarily when Mr. Jackson was trying to talk with his wife on the telephone about their child.

The two men’s versions of events are diametrically opposed, and it appears that the woman in the middle does not want to take sides. The order on appeal is a form order in which the trial court grants the injunction without findings of fact. The trial judge made no findings of fact on the record, although it is obvious that he believed Mr. Jackson and did not believe Mr. Jones. Overall, the testimony suggests that Mr. Jackson is tired of Mr. Jones’ profanity and the idle verbal threats, but he does not actually fear that Mr. Jones is planning to act on the threats.

Our standard of review in this case is a little unusual because we are assessing whether there was competent, substantial evidence to support a finding of fact on an issue involving both “reasonableness” and “substantial” distress. Especially in the context of jury trials, we are trained that issues of reasonableness are generally a matter for the jury to decide. However, after several readings of the record, I am convinced that the evidence is insufficient to support a finding that Mr. Jones created circumstances that would cause a reasonable person to suffer substantial emotional distress. I do not believe that we are reweighing the evidence.

I fully appreciate why trial courts use a standardized form when entering the ap-pealable order in these cases. I can also appreciate why a trial judge would hesitate to make findings on the record when those findings might simply aggravate a party with anger management issues. Nevertheless, this case is an example of an injunction that would have been easier for the appellate court to review if there had been findings of fact.

It might occasionally be helpful if the circuit courts had the power to enter an order requiring adults to act like grownups. But a permanent injunction for protection against repeat violence cannot be used simply to compel civility and common decency.


author: STEVENSON, J.

text:
    DEPARTMENT OF REVENUE o/b/o Maria Gomez, et al., Appellants, v. Jarlin VARELA, et al., Appellees.
    Nos. 4D10-2524, 4D10-2525, 4D10-2526, 4D10-2527, 4D10-2528, 4D10-2529, 4D10-2530, 4D10-2531, 4D10-2532 & 4D10-2605.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 2011.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellants.
    No appearance for appellees.
   STEVENSON, J.

In these consolidated appeals, the Department of Revenue challenges ten separate orders establishing paternity and/or child support obligations. Each order contained the following stamped language:

Withholding from unemployment compensation benefits for payment of child support shall not exceed the total amount required by this order for payment of current support and repayment of arrearages and/or retroactive support[.] See f.s. 483.051(3). The withholding of any amount from unemployment compensation benefits based on support delinquencies, adjudicated or not, in excess of the amounts indicated in this order is strictly prohibited and punishable by contempt of court [.] (emphasis added).

Because the foregoing places an undue restriction on the Department’s statutory power to intercept unemployment compensation to satisfy child support obligations, we reverse in part and direct that this language be stricken from the orders.

The Department’s power to intercept unemployment compensation stems from the Child Support Enforcement Act, incorporated as Title IV-D into the Social Security Act (hereinafter the “Title IV-D program”). The Title IV-D program permits federal funding to states that create plans to “provide services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations.” 42 U.S.C. §§ 651, 654(4)(A) (2010). The state plan must identify a state agency charged with administering the Title IV-D program and grant that agency the power of “intercepting or seizing periodic or lump-sum payments from — a State or local agency, including unemployment compensation, workers’ compensation, and other benefits.” 42 U.S.C. § 666(c)(1)(G). In Florida, the Department is responsible for administering the Title IV-D program. §§ 409.2554(1), 409.2557(1); Fla. Stat. (2010). Section 443.051(3), Florida Statutes (2010), provides that:

(a) The Department of Revenue shall, at least biweekly, provide the Agency for Workforce Innovation with a magnetic tape or other electronic data file disclosing the individuals who owe support obligations and the amount of any legally required deductions.
(b) For support obligations established on or after July 1, 2006, and for support obligations established before July 1, 2006, when the support order does not address the withholding of unemployment compensation, the Agency for Workforce Innovation shall deduct and withhold 40 percent of the unemployment compensation otherwise payable to an individual disclosed under paragraph (a). If delinquencies, arrearages, or retroactive support are owed and repayment has not been ordered, the unpaid amounts are included in the support obligation and are subject to withholding. If the amount deducted exceeds the support obligation, the Department of Revenue shall promptly refund the amount of the excess deduction to the obligor, (emphasis added).

The Department argues that the trial court lacked the authority to restrict its statutorily-delegated power to intercept unemployment compensation. This presents an issue of statutory interpretation that is reviewed de novo. See Dep’t of Revenue ex rel. Jackson v. Nesbitt, 975 So.2d 549, 550 (Fla. 4th DCA 2008). Further, “‘[a] trial court may not interfere with and does not have the authority to enter into the decision-making process which is delegated to a state agency....’” Id. at 551 (quoting Agency for Persons with Disabilities v. J.M., 924 So.2d 1, 2 (Fla. 3d DCA 2005)).

A similar restriction was examined in Florida Department of Revenue, Child Support Enforcement ex rel. Baker v. Baker, 24 So.3d 1254, 1257 (Fla. 1st DCA 2009) [hereinafter Baker], In Baker, the Department sought review of a child support order which restricted the Department’s ability to intercept the appellee’s future federal income tax refund. 24 So.3d at 1255. The Department was empowered by the Tax Refund Intercept Program (TRIP) to certify individuals who owed past-due child support to the Secretary of the Treasury, who was then required to withhold from a tax refund “an amount equal to the past-due support.” Id. at 1256 (citation omitted). The Department challenged an order that contained the following restriction:

[i]f [appellee] is able to file his taxes for 2008 and successfully claim the dependency exemption for the child ..., [the Department], should they intercept any of [appellee]’s 2008 federal income tax refund, will be limited to retain up to $1,000.00 of any funds intercepted to apply to his arrearage.

Id. The First District Court of Appeal determined that the trial court lacked the authority to restrict the Department’s power to intercept tax refunds because the restriction interfered with authority delegated to the Department under TRIP. Id. at 1257.

The restriction placed in the ten child-support orders here has the same effect as the restriction in Baker. The Department is empowered by the Title IV-D program, as well as Florida Statutes, to withhold 40% of unemployment compensation to satisfy “child support obligations,” which may include owed delinquencies, arrearages or retroactive support even if repayment for such is not specified in the support order. See §§ 443.051(l)(b)-(c), 443.051(3)(b), Fla. Stat. (2010). The trial court was without authority to place a restriction on authority granted to the Department by statute. See Nesbitt, 975 So.2d at 551 (trial court had no authority to order Department to lift and release restrictions on father’s passport where restrictions were placed pursuant to authority statutorily delegated to the Department as part of the child support enforcement scheme); see also State, Dep’t of Revenue v. Walton, 12 So.3d 921 (Fla. 1st DCA 2009) (same).

Thus, the ten final orders are reversed and these cases are remanded so that the offending language may be stricken from the orders. In all other respects, the orders are affirmed.

Affirmed in part, reversed in part, and remanded.

GROSS and TAYLOR, JJ., concur.


text:
    BUCKY’S BARBEQUE OF FORT LAUDERDALE, LLC, and Mark Rodberg, Appellants, v. MILLENNIUM PLAZA ACQUISITION, LLC, a Florida limited liability company, by and through its General Manager, Millennium Fort Lauderdale, Inc., a Florida Corporation, Appellee.
    No. 4D10-1849.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 2011.

      Richard M. Bales, Jr., and Jason Klein of Bales Sommers & Klein, P.A., Miami, and Ronald G. Klein of Klein and Fortune, P.A., Hollywood, for appellants.
    John J. Shahady of Yoss LLP, Fort Lauderdale, for appellee.
   STEVENSON, J.

This appeal stems from breach of a lease agreement existing between the appellee, Millennium Plaza Acquisition, LLC (“Millennium”), as Landlord, and the appellant, Bucky’s Barbeque of Fort Lauderdale, LLC (“Bucky’s”), as Tenant. Appellant, Mark Rodberg, guaranteed payments under the lease. Millennium filed a motion for summary judgment that was granted by the trial court. Because the trial court did not properly determine damages, we reverse and remand for a determination of damages only.

The lease, entered into on December 18, 2006, was for a term of ten years and required Bucky’s to pay $19,506.67 per month. Rodberg guaranteed rent payments due under the lease, not to exceed “an amount equal to the total Rent ... due and payable by Tenant under the Lease during the thirty six (36) month period immediately following such Event of Default.” The lease also provided that upon default by'Tenant, Millennium had the following rights:

(i) To re-enter and remove all persons and property from the Demised Premises, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
(ii) Terminate Tenant’s possession of the Premises and elect to declare the entire Base Rent for the balance of the term due and payable forthwith.
(iii) Terminate Tenant’s possession of the Premises and relet the Demised Premises for the account of the Landlord or within the sole discretion of Landlord the Demised Premises may be relet for the account of Tenant.

On May 9, 2008, Millennium filed a three-count complaint, alleging that Bucky’s breached the lease by failing to make monthly payments, and that Rod-berg failed to honor the guaranty agreement. In count one, Millennium sought possession of the property. In counts two and three Millennium sought to recover rent, on an accelerated basis, for the balance of the lease term, totaling $2,484,919.99, from Millennium and Rod-berg. On August 15, 2008, Bucky’s surrendered the property to Millennium, pursuant to a settlement agreement as to count one of the complaint. Bucky’s also filed an answer raising twelve defenses, including that Millennium took possession of the property for its own benefit, relieving Bucky’s of its obligation under the lease; that Bucky’s was entitled to any overage of rent collected by Millennium from a third party renting the property; that Millennium could sue for rent only up to the time of re-letting, and not for the full accelerated amount; and that Millennium failed to mitigate damages.

On October 5, 2009, Millennium filed its motion for summary judgment, as to counts two and three of the complaint. In the motion, Millennium argued that, due to Bucky’s breach of the agreement, it elected option (ii) of its default remedies and was entitled to rent for the balance of the lease term. Millennium moved to strike the majority of Bucky’s defenses. The trial court granted the motion and entered a final judgment in the amount of $2,540,028.47 against Bucky’s and in the amount of $932,019.27 against Rodberg.

A trial court’s decision to grant a motion for summary judgment is reviewed de novo. See PNC Bank, N.A. v. Progressive Employer Servs. II, 55 So.3d 655, 658 (Fla. 4th DCA 2011). Summary judgment is appropriate where the record reveals no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). Upon breach by a tenant, a landlord has its choice of three remedies:

“(1) to retake possession of property for its exclusive use; (2) to retake possession for the account of the tenant, holding the tenant responsible for the difference between the stipulated rent to be paid and any amount the lessor is able to recover in good faith from his re-letting; and (3) to take no action and sue the tenant as each installment of rent matures or for all the rents due when the lease expires.”

Fort Lauderdale Joint Venture Ltd. P’ship ex rel. JVJ Fort Lauderdale Joint Venture v. Sander, 613 So.2d 133, 134 (Fla. 4th DCA 1993) (quoting 4-Way, Inc. v. Bryan, 581 So.2d 208, 209 (Fla. 1st DCA), dismissed, 591 So.2d 180 (Fla.1991)). It is the landlord’s actual use of the property that determines its remedies. See 4-Way, Inc., 581 So.2d at 209. “Ordinarily, the nature of the lessor’s repossession is a question of fact.” Colonial Promenade v. Juhas, 541 So.2d 1313, 1315 (Fla. 5th DCA 1989).

The record indicates that Millennium took possession of the property pursuant to the terms of the settlement agreement. For that reason, Millennium’s remedy was dependent upon its use of the property. The trial court made no findings on Millennium’s use of the property and the motion for summary judgment did not address this issue, though Bucky’s raised it as a defense. Thus, Millennium failed to meet its summary judgment burden. See E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, 59 So.3d 347, 352 (Fla. 4th DCA 2011) (“‘[I]n order for a plaintiff to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.’ ”) (quoting Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010)). Additionally, in order for rent to be awarded on an accelerated basis, any proceeds by Millennium from re-letting the premises during the remainder of the lease must be applied against the accelerated rent due from Bucky’s. See Colonial Promenade, 541 So.2d at 1315; see also Horizon Med. Grp., P.A. v. City Ctr. of Charlotte Cnty., Ltd., 779 So.2d 545, 546 (Fla. 2d DCA 2001) (noting that landlord “cannot collect accelerated rent from [tenant], relet the premises to a third party during the remainder of the lease term, and retain those rental proceeds as well”). Finally, since the amount of damages owed by Rodberg is dependent on those owed by Bucky’s, the final judgment must also be reversed as to him. See Amerishop Mayfair, L.P. v. Billante, 833 So.2d 806, 809 (Fla. 3d DCA 2002) (“A contract of guaranty is the promise to answer for the payment of the debt, default or performance of another.”).

The motion for summary judgment did, however, establish that Bucky’s breached the lease. Thus, we reverse for a determination of damages only.

Reversed and remanded.

GROSS and TAYLOR, JJ., concur.


author: RAMIREZ, J.

text:
    Yolimar JURASEK, Appellant, v. Robert JURASEK, Appellee.
    No. 3D10-1070.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.

      Carlos N. Muniz; Cynthia L. Greene, Miami, for appellant.
    Diane M. Trainor, for appellee.
    Before RAMIREZ, CORTIÑAS and SALTER, JJ. .
   RAMIREZ, J.

Yolimar Jurasek appeals the entry of a final judgment awarding her former husband, Robert Jurasek, a “special equity” in the parties’ jointly owned marital residence and the denial of her request for attorney’s fees. We reverse the entry of judgment on both issues.

The parties petitioned for a dissolution of their seven-year marriage. Prior to the final hearing, the parties amicably resolved nearly all issues regarding their marital assets and liabilities. The issue placed before the trial court involved the parties’ marital residence in Miami Beach and the associated mortgage encumbrance, as to which the husband asserted his entitlement to a “special equity.”

Prior to purchasing the Miami Beach apartment, the parties purchased an apartment in Delray Beach, Florida, which they titled in their joint names. Approximately one year later, the husband’s father was in a serious car accident, which made it necessary for him to move in with the parties. The husband’s father received $900,000 as part of an insurance settlement agreement related to his accident. A portion of these funds was then used by the parties to purchase the larger Miami Beach apartment.

On September 17, 2004, the husband and the wife jointly purchased a cashier’s check in the amount of $899,987.86. When the wife asked the husband where the money came from, he replied that his father had given it to them so they could buy their new home. That same day, the parties attended the closing at which the warranty deed was issued to them as joint owners and tenants by the entireties of the Miami Beach condominium.

Upon selling their Delray Beach apartment, the husband told the wife that they owed his father $200,000 because the $400,000 used to purchase their home was comprised of a $200,000 gift, an “advance” on the husband’s inheritance, and a $200,000 loan. He then told the wife that they were going to use $50,000 of the Delray Beach proceeds to repay his father and borrow an additional $150,000 to repay the balance. Accordingly, they paid $50,000 to the husband’s father and jointly borrowed $150,000 to repay the asserted loan.

The issue of the Miami Beach apartment was submitted to the trial court when determining the division of marital property. In the final judgment, the trial judge awarded the former marital residence entirely to the husband and required that he pay the wife a total sum of $17,467. This sum represents the wife’s entire interest in the home after the husband’s “special equity.” Additionally, despite the parties’ stipulation that the issue of the wife’s fee request would be determined at a subsequent hearing, the trial court denied attorney’s fees to the wife on the basis of the husband’s purported lack of ability to pay. The wife then appealed.

We agree with the wife that the trial court erred and abused its discretion in awarding the husband a “special equity” in the parties’ jointly owned marital residence. The husband contends that he has greater entitlement to the parties’ jointly titled home based on his investment of his share of his inheritance fund in the marital home. This argument is insufficient as a matter of law. “Special equity” was abolished in 2008 and was replaced by the term, “a claim for unequal distribution” of marital property. See § 61.075(11) Fla. Stat. (2008). The husband argued that the prior doctrine of “special equity” should still apply because the amendment occurred after his case was filed and should only have prospective application.

We decline to address whether the 2008 legislative amendment was prospective in application. Under either standard of “special equity” or “a claim for unequal distribution,” the husband failed to meet his burden of proof. He had to overcome the statutory presumption that jointly titled real estate is marital property and that he did not intend to make a gift to the wife by the act of permitting the title to the home to be made in the joint names of the parties. See § 61.075; Stough v. Stough, 18 So.3d 601, 605 (Fla. 1st DCA 2009). The record reflects that he made no such showing. Although the husband presented ample evidence that the father made a loan to the husband and that he was using his inheritance money to purchase the property, he never explained why or how the act of jointly titling the home purchased with those funds constituted anything other than a gift from him to the wife.

It is irrelevant how the funds were received or how much each party contributed. See David v. David, 58 So.3d 336 (Fla. 5th DCA 2011). In David, the court found that “standing alone, evidence that one spouse provided non-marital funds to purchase a marital home is insufficient to prove that the spouse did not intend a gift.” Id. at 339. See also Cintron v. King, 961 So.2d 1010, 1013 (Fla. 4th DCA 2007); Zangari v. Cunningham, 839 So.2d 918, 921 (Fla. 2nd DCA 2003); Ray v. Ray, 624 So.2d 1146, 1148 (Fla. 1st DCA 1993). The husband did not adequately show that the money used to purchase the jointly-titled property was not meant as a gift to the wife as section 61.075 requires. Accordingly, we reverse.

In addition, the trial court further erred when it denied an award of attorney’s fees to the wife where the court and the parties had agreed that all issues pertaining to the wife’s request for fees would be reserved and heard at a subsequent hearing. Where the parties stipulate that the court will reserve the issue of attorney’s fees to be decided at a subsequent hearing, such an agreement is binding upon the court and ruling on the issue contrary to the stipulation is erroneous. See Kartzmark v. Kartzmark, 709 So.2d 583, 587 (Fla. 4th DCA 1998); Flores v. Flores, 666 So.2d 605, 605 (Fla. 5th DCA 1996).

In sum, we reverse the entry of final judgment awarding the husband a “special equity” in the parties’ jointly owned marital residence and remand to the trial court for further proceedings consistent with this opinion. We also reverse the final judgment denying attorney’s fees to the wife and remand for the trial court to conduct a hearing on the wife’s request for attorney’s fees.

Reversed and remanded.


author: WELLS, Judge.

text:
    MIAMI-DADE COUNTY, Petitioner, v. Jose Lazaro RODRIGUEZ, Respondent.
    No. 3D10-856.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 14, 2011.

      R.A. Cuevas, Jr., Miami-Dade County Attorney and Erica S. Zaron, Assistant County Attorney, for petitioner.
    Colson Hicks Eidson, Barbara A. Silver-man, Curtis B. Miner and Ervin A. Gonzalez, Coral Gables, for respondent.
    Before WELLS, C.J., and SHEPHERD, and SUAREZ, JJ.
   WELLS, Judge.

We grant the instant petition requesting certiorari review of an order denying Miami-Dade County’s motion to dismiss on sovereign immunity grounds, and write to clarify this court’s jurisdiction to entertain such petitions.

The Duty-Sovereign Immunity Analysis

In Miami-Dade County v. Fente, 949 So.2d 1101 (Fla. 3d DCA 2007), this court granted relief on a petition for writ of certiorari to review an order denying dismissal of an action on sovereign immunity grounds. There, the plaintiffs claimed that they were damaged because of a negligent police investigation:

The Fentes’ single count complaint seeks damages from the County stemming from [a] burglary claiming that the County “by and through the actions of its officer, is guilty of misfeasance in carrying out the operational duty owed to the Plaintiffs in following the preexisting County burglary response policy in a reasonable fashion ... commensurate with the duty that would be owed by a private person to the Plaintiffs under the same circumstances.” According to the Fentes, the officer’s negligent investigation: (1) “created a broader zone of risk” to both them and their son, who arrived home from school after the burglars had left, and to their property, by affording the burglars “unlimited access” to their home; and (2) directly and proximately caused their loss of personal property valued at $150,000 and damage to the interior of their home.

Id. at 1103.

Equating the lack of duty of care and, thus, the absence of liability with immunity from suit, we quashed the order on review. See also Miami-Dade Cnty. v. Miller, 19 So.3d 1037 (Fla. 3d DCA 2009) (similarly concluding on certiorari review from an order denying summary judgment on a sovereign immunity claim, that the absence of duty equated with immunity from suit).

In Wallace v. Dean, 3 So.3d 1035, 1044 (Fla.2009), the Florida Supreme Court clarified the distinction between lack of duty and, thus, non-liability “as a matter of law,” and sovereign immunity:

As an initial point of departure, brief clarification is necessary concerning the differences between a lack of liability under established tort law and the presence of sovereign immunity. When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sover-eignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes.

(Footnote omitted).

As the Court explained, “the absence of a duty of care renders the defendant nonliable as a matter of law because his, her, or its actions are ... nontortious vis-á-vis the plaintiff.” Id. at 1045. Thus, where no duty of care is owed with respect to the alleged negligent conduct at issue, there can be no governmental liability and the question of whether the sovereign should be immune from suit need not be addressed. However, where a duty of care exists, a determination must be made as to whether sovereign immunity bars suit for the alleged breach:

“If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached. However, if a duty of care is owed, then it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty.”

Id. at 1044 (quoting Pollock v. Fla. Dep’t of Highway Patrol, 882 So.2d 928, 932-33 (Fla.2004)) (citations omitted).

In Fente and Miller, the single issue raised was lack of duty and, thus, nonliability for allegedly tortious action. By equating the issue of liability with a determination as to whether the sovereign was immune from suit, we accepted jurisdiction in those cases. As stated on more than one occasion, certiorari jurisdiction is not usually exercised to review orders denying motions to dismiss or for summary judgment — orders which ordinarily relate to liability — because irreparable harm cannot be demonstrated as review may be had at the end of the case. See Fieselman v. State, 566 So.2d 768, 770 (Fla.1990) '(stating that certiorari review may not ordinarily be had of an order denying a motion to dismiss because an eventual plenary appeal from the final judgment is available); Brown & Williamson Tobacco Corp. v. Carter, 680 So.2d 546, 547 (Fla. 1st DCA 1996) (“[Pjetitioners have not shown an injury which cannot be remedied on appeal from a final order. Denial of a motion for summary judgment or a motion to dismiss will not be reviewed through certiorari for this reason. See Vanco Constr., Inc. v. Nucor Corp., 378 So.2d 116 (Fla. 5th DCA 1980); Johnson v. Henningson, 370 So.2d 60 (Fla. 4th DCA 1979), cert. denied and appeal dismissed, 383 So.2d 1196 (Fla.1980).”). It was only by equating tort liability with immunity from suit that we accepted jurisdiction in Fente and later in Miller. See Wallace, 3 So.3d at 1045 (referring to Fente as “conflating the issue of whether the government owes the plaintiff a duty of care with the separate, distinct issue of whether the doctrine of sovereign immunity shields the government from tort liability”). We will, therefore, like our sister courts, no longer exercise our certio-rari jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated. See Fla. A & M Univ. Bd. of Trs. v. Thomas, 19 So.3d 445, 446 (Fla. 5th DCA 2009) (concluding that the court lacked jurisdiction to entertain certiorari review from a motion for summary judgment claiming sovereign immunity); Pinellas Suncoast Transit Auth. v. Wrye, 750 So.2d 30 (Fla. 2d DCA 1996) (“We conclude that we do not have jurisdiction to review the denial of the motion to dismiss based on sovereign immunity either as a nonfinal appeal or as a certiorari proceeding”).

We cannot, however, join our sister courts in refusing, on jurisdictional grounds, to entertain all writs from denials of motions to dismiss or for summary judgment on sovereign immunity grounds. Governmental immunity, as the Florida Supreme Court has repeatedly confirmed, “derives entirely from the doctrine of separation of powers,” making it improper for the judiciary to intervene in fundamental decision making of the executive and legislative branches of the government. Kaisner v. Kolb, 543 So.2d 732, 736-37 (Fla.1989); Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985). This immunity finds its roots in medieval England and springs from the concept that the sovereign cannot be sued in its own courts. This doctrine was accepted by the United States government and was interpreted by the United States Supreme Court as meaning that the government is immune from suit absent its consent. While the sovereign could not be sued in its own courts, the sovereign’s ministers could be petitioned for a waiver to secure relief. Thus, historically, the state of Florida and its counties were immune from all suits until the legislature enacted section 768.28 expressly “waiv[ing] sovereign immunity for liability for torts”:

Sovereign immunity’s roots extend to medieval England. The doctrine flows from the concept that one could not sue the king in his own courts; hence the phrase “the king can do no wrong.” The United States government fully accepted the sovereign immunity doctrine in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821), in which Chief Justice Marshall declared that no suit could be commenced or prosecuted against the United States without its consent. Id. at 411-12. Later, Justice Holmes explained: “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907). The majority of American states fully embraced the sovereign immunity theory as well as the federal government. See Restatement (Second) of Torts s 895B, comment a at 400 (1979). Thus the general rule was that state governments, their agencies, and their subdivisions could not be sued in state courts without state consent.
... [Ajlthough suit against the king did not lie, one injured by the king’s ministers could always petition the king directly for relief. In modern time, our legislative bodies are vested with the authority to grant relief for governmental wrongs through waiver of immunity.... The people of Florida vested the power to waive immunity in the Florida legislature at an early date. See art. IV, s 19, Fla. Const. (1868) (now art. X, s 13, Fla. Const.). The Florida legislature did not exercise this authority until 1973 when it enacted section 768.28. Ch. 73-313, s 1, Laws of Fla.
Common law sovereign immunity for the state, its agencies, and counties remained in full force until section 768.28’s enactment.

Cauley v. City of Jacksonville, 403 So.2d 379, 381 (Fla.1981).

Thus, statutory waiver of immunity for tort liability aside, those “functions of government [that] are inherent in the act of governing [remain] immune, from suit.” Trianon, 468 So.2d at 918 (emphasis added). As the supreme court in Wallace most recently confirmed, “the presence of sovereign immunity ... simply means that the State has not consented to suit in its courts with regard to certain claims”:

[A] duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes. See, e.g., Pollock v. Fla. Dep’t of Highway Patrol, 882 So.2d 928, 932-33 (Fla.2004) (‘If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached.’” ).... [SJovereign immunity may shield the government from an action in its courts (i.e., a lack of subject-matter jurisdiction) even when the State may otherwise be liable to an injured party for its tortious conduct. In other words, the presence of sovereign immunity does not render the State’s actions nontortious (it simply means that the State has not consented to suit in its courts with regard to certain claims).
• • • “[governmental immunity derives entirely from the doctrine of separation of powers, not from [the absence of] a duty of care or from any statutory basis.”
“Clearly, the [Legislature, commissions, boards, city councils, and executive officers, by their enactment of, or failure to enact, laws or regulations, or by their issuance of, or refusal to issue, licenses, permits, variances, or directives, are 'acting pursuant to basic governmental functions performed by the legislative or executive branches of government. The judicial branch has no authority to interfere with the conduct of those functions unless they violate a constitutional or statutory provision. There has never been a common law duty establishing a duty of care with regard to how these various governmental bodies or officials should carry out these functions. These actions are inherent in the act of governing.”
... [W]e now turn to the question of whether sovereign immunity bars this action.... See, e.g., Pollock, 882 So.2d at 933 (“[I]f a duty of care is owed, it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty.”).... “Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy.” Commercial Carrier, 371 So.2d at 1021 (emphasis supplied). This distinction “requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.” Id. at 1021 (emphasis supplied) (quoting Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, 360-61 (1968)). Functionally, the discretionary-versus-operational-function test is intended “to determine where, in the area of governmental processes, orthodox tort liability stops and the act of governing begins.” Commercial Carrier, 371 So.2d at 1018.
To aid us in addressing this issue, we have adopted a group of four related questions. See Commercial Carrier, 371 So.2d at 1019 (adopting the four-part test outlined in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965)). If each of these questions may be “clearly and unequivocally” answered in the affirmative, then “the challenged act, omission, or decision” is likely discretionary in nature and immune from a tort action; whereas, if any one of the questions may be answered in the negative, further inquiry is necessary to determine whether, under the circumstances, the question of tort liability will or will not entangle the Court in a nonjusticiable political question that is more appropriately committed to the resolution of a coordinate or constituent branch of government (e.g., the Legislature, the executive branch, or a county or municipality). Commercial Carrier, 371 So.2d at 1019; cf. also Johnson v. State, 660 So.2d 637, 646 (Fla.1995) (“[PJolitical questions-as opposed to legal questions-fall within the exclusive domain of the legislative and executive branches under the guidelines established by the Florida Constitution. Art. II, § 3, Fla. Const.”); Black’s Law Dictionary 1197 (8th ed. 2004) (“political question. A question that a court will not consider because it involves the exercise of discretionary power by the executive or legislative branch of government.”)”

Wallace, 8 So.3d at 1044-45, 1048 n. 19, 1053-54 (some citations omitted) (footnote omitted) (some emphasis added).

Relying on these statements, we conclude that in cases where immunity from suit rather than solely immunity from liability is at issue, our intervention by way of certiorari is appropriate. In reaching this conclusion, we acknowledge that because the nature of the conduct involved determines whether the function being performed “is, by its nature, immune from tort liability,” Trianon, 468 So.2d at 918, and that “[o]ftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts,” Roe, 679 So.2d at 758, a trial on the merits may be required to resolve the immunity issue. However, in those cases in which the conduct and function at issue clearly do not fall within the tort liability waiver, we believe that we should exercise our jurisdiction to preclude prosecution of an action where the sovereign remains immune from suit.

The Instant Case

The complaint in this case challenges the response of two Miami-Dade County patrolmen to a burglary in progress at an automotive detailing business at the corner of Bird Road and Eighty-eighth Place in Miami-Dade County, on February 14, 2008, just before midnight. By any lay measure, these officers were responding to an emergency. Moments after Officer Jesus Hernandez hopped out of the passenger side of his moving police cruiser as his partner, Javier Albides, skidded around the corner onto Eighty-eighth Place, he saw the burglar through the front window of the store. In the same instant, the plaintiff store owner, Lazaro Rodriguez, having been alerted by the alarm company, careened into the parking lot in front of the store in his pickup truck. The next few seconds would change Rodriguez’s life forever. Rodriguez jumped out of the truck, revolver in hand. Officer Hernandez, running from his jump-off point in the middle of Eighty-eighth Place toward the storefront to apprehend the burglar, encountered Rodriguez from behind. Rodriguez turned and pointed his gun toward Officer Hernandez. Officer Hernandez, weapon also in hand, shot Rodriguez four times, severely injuring him. The shooting was captured on a store videotape. Not more than thirteen seconds elapsed from the moment the police arrived to the time the last shot was fired. Officer Al-bides was not on or near the business premises at the time of the shooting, but instead was pursuing two other subjects he saw as he rounded the corner.

Rodriguez’s challenge to the actions of the officers in this case, most prominently the conduct of Officer Hernandez that resulted in Rodriguez’s injuries, is by way of a complaint sounding in common law negligence. He alleges the County’s police officers should have responded in a different manner to the emergency situation, and should have conducted a more extensive investigation before intervening. As Rodriguez’s counsel characterizes it, “Hernandez responded recklessly to the scene of the burglary alarm, violated basic police safety procedures and negligently caused a situation which resulted in the use of deadly force against an innocent civilian.” Notably, Rodriguez does not allege either a constitutional violation or an intentional act by these officers. Rather, he confines his complaint to a claim of negligence, and then only against Miami-Dade County.

Rodriguez, while acknowledging that the State and its political subdivisions are sov-ereignly immune from suit for torts committed by their employees within the scope of their employment except where the immunity has been expressly waived, argues the 1996 decision of the Florida Supreme Court in Department of Education v. Roe, 679 So.2d 756 (Fla.1996), should be read to preclude interlocutory review of such an order by certiorari as well. In support of this argument, Rodriguez cites the following passage, wherein the Florida Supreme Court opined that the State has a lesser need for an avenue for immediate, plenary review of an interlocutory order denying it immunity from suit than does a public official:

[F]orcing the state to wait until a final judgment before appealing the issue of sovereign immunity does not present the same concerns that exist in the area of qualified immunity [for public officials]. For example, public officials who defend tort suits against the state are not sued in their personal capacities. As a result, defending these suits is not likely to have a chilling effect on the exercise of public officials’ discretion in the discharge of their official duties. In addition, .although the state will have to bear the expense of continuing the litigation, the benefit of immunity from liability, should the state ultimately prevail on the sovereign immunity issue, will not be lost simply because review must wait until after final judgment. See Alaska v. United States, 64 F.3d [1352,] 1355-56 [ (9th Cir.1995) ]; Pullman [Constr. Indus., Inc. v. United States], 23 F.3d [1166,] 1168 [(7th Cir.1994) ].

Roe, 679 So.2d at 759 (emphasis added). Based upon this passage, Rodriguez argues the County is, a fortiori, not irreparably harmed by a denial of the petition. The argument is a non sequitur.

First, Rodriguez misreads Roe. Roe did not determine the availability of discretionary jurisdiction. Instead, Roe simply declined the State’s invitation to extend the same right of interlocutory appeal from orders denying immunity from suit to the state and its political subdivision as the court had extended to its employees acting in the scope of their employment. Id. Second, neither a lesser burden nor the fact the County could be immunized after the entry of a final judgment answers the irreparable harm question. If the County is entitled to immunity from suit, it is the trial itself that constitutes the harm. See Cedars Healthcare Grp., Ltd. v. Mehta, 16 So.3d 914, 917 (Fla. 3d DCA 2009) (“Since subsection 395.0193(5) [affording immunity from suit to licensed hospital facilities and related groups for “any action taken without intentional fraud”] provides for immunity from suit, the denial order can be reviewed by way of certiorari at this time.”). At this point, the County is ineluctably faced with a trial in this case.

As stated above, the immunity issue in this case is predicated on the doctrine of separation of powers. That principle is distinct from immunity resting on the sovereign character of the state or municipality in the performance of its governmental functions. The focus of a separation of powers analysis is on the nature of government conduct and the government category into which the particular activity falls. It is animated by the continuing need at all levels of government to preserve the pattern of distribution of governmental functions prescribed by the constitution and statute. See Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260, 263 (Fla.1991) (melodramatically but meaningfully quoting Charles de Montesquieu’s L’Espirt des Lois 70 (Robert M. Hutchins ed., William Benton 1952) (1748), “[t]here would be an end of everything, were the same ... body ... to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals”). Recognizing the importance of this fundamentally prescribed structure at every level of government, our high court wisely concluded in the seminal case construing the scope of the waiver of immunity from suit in section 768.28 that certain functions of the legislative and executive branches of our local governments may not be made subject to scrutiny by a judge or jury as to the wisdom of performance. See Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010 (Fla.1979).

The question of whether a specific government activity or type of conduct is one to which this separation principle applies is a question the courts of this state never seem to stop addressing. However, the Florida Supreme Court has created a clear exception for police action in emergency situations. City of Pinellas Park v. Brown, 604 So.2d 1222, 1226-27 (Fla.1992) (citing Kaisner v. Kolb, 543 So.2d 732, 738, n. 3 (Fla.1989)) (“Kaisner specifically noted that special deference is given to pressing emergencies, and that certain police actions may involve a level of such urgency as to be considered discretionary and not operational.”). As the court explained in Pinellas Park:

To fall within the Kaisner exception, the serious emergency must be one thrust upon the police by lawbreakers or other external forces, that requires them to choose between different risks posed to the public. In other words, no matter what decision police officers make, someone or some group will be put at risk; and officers thus are left no option but to choose between two different evils. It is this choice between risks that is entitled to the protection of sovereign immunity in appropriate cases, because it involves what essentially is a discretionary act of executive decision-making.

Pinellas Park, 604 So.2d at 1227 (footnote omitted).

In the present case, the undisputed facts show that (a) a serious emergency existed, (b) the emergency was thrust upon the police by the acts of others, and (c) Officers Hernandez and Albides were required to make split-second choices that could result in harm either way. Rodriguez argues the burglary was not a serious emergency, but rather a property crime out of which the officers created an emergency by ignoring police policies and procedures. We disagree. Burglary is a forcible felony, see § 776.08, Fla. Stat. (2011), that, by its nature—illustrated by the fact Rodriguez himself emerged from his vehicle carrying a firearm-is a serious emergency which poses a level of danger to members of the public. In this case, the officers elected to seek to apprehend the burglars before they could harm Rodriguez or anyone else. Rodriguez argues the officers should have waited and reeon-noitered before intervening. It is his supposition that such a decision would have been “more consistent” with his safety.

We, of course, do not know whether Rodriguez’s supposition is true. Here the officers decided immediate intervention was the appropriate course. Rodriguez’s shooting by an officer of the law is regrettable. Yet who can say whether it would have been safer for Rodriguez to have been left to his own devices while the officers reconnoitered and planned? If that had been the case, could not Rodriguez allege just as well that course of action was negligent? Courts rightfully afford special deference to police officers’ conduct in pressing emergencies, such as the one presented to us. Pinellas Park, 604 So.2d at 1227 (“Deference will be shown to the reasonable decisions of law officers to maintain pursuit of certain offenders who are reasonably thought to be violent or to pose a danger to the public at large.”). No matter what choices the police officers made in this case, someone or some group would be put at risk. This is the type of fundamental law enforcement decision, about which courts in this state have consistently said should be left to the expertise of law enforcement rather than being put to a referendum by the courts and juries. See Robles v. Metro. Dade Cnty., 802 So.2d 453 (Fla. 3d DCA 2001) (concluding county sovereignly immune from negligence suit by parents of minor child injured by flying debris caused by police officer who elected to shoot school bus hijacker); Seguine v. City of Miami, 627 So.2d 14, 19 (Fla. 3d DCA 1993) (finding after the fact criticism of whether police failed to follow fundamental law enforcement policies in failed attempt to arrest suicidal suspect found “best ... left to the discretionary judgment of the police without entangling the courts through our tort law in such fundamental law enforcement policies — even where, as here that judgment might in hindsight be arguably faulted either in whole or in part”); but see Wallace, 3 So.3d at 1045 (questioning reasoning of Seguine); see also Trianon, 468 So.2d at 919 (“Th[e] discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials .... ” (citing Commercial Carrier, 371 So.2d at 1015 (recognizing that “[not] all acts or omissions by governmental authorities will subject them to liability in tort under ... [section 768.28]”)); Everton v. Willard, 468 So.2d 936, 939 (Fla.1985) (approving trial court’s dismissal on ground of governmental immunity of action filed against sheriffs office for deputy’s alleged negligent failure to arrest obviously intoxicated motorist who crashed into victim’s vehicle fifteen minutes later); see also Wong v. City of Miami, 237 So.2d 132, 134 (Fla.1970) (stating on denial of certiorari review of negligence action brought by merchants whose property was damaged in connection with civil disorder after sheriff allegedly carelessly and negligently removed officers in attempt to reduce tensions, “inherent in the right to exercise police powers is the right to determine strategy and tactics for deployment of those powers”); Smith v. City of Plantation, 19 F.Supp.2d 1323, 1333 (S.D.Fla.1998), aff'd, 198 F.3d 262 (11th Cir.1999) (noting that the “four-prong” analysis developed in Commercial Carrier, 371 So.2d at 1019, customarily used as a guide to determine the existence or non-existence of governmental immunity from suit does not apply to “police action in emergency situations”). There will be occasions where the applicability of the sovereign immunity doctrine is so inextricably tied to the underlying facts that factual development, up to and sometimes including a trial on the merits, is necessary to resolve the immunity issues. However, this is not one of those cases.

For the foregoing reasons, we exercise our jurisdiction to preclude prosecution as the sovereign remains immune from this suit and we grant the petition. In recognizing our jurisdiction to entertain, where appropriate, certiorari jurisdiction where a governmental entity’s claim is that it remains immune from suit, rather than that it is not hable for lack of duty, we certify conflict with the decisions in Florida A & M University Board of Trustees v. Thomas, 19 So.3d 445, 446 (Fla. 5th DCA 2009), and Pinellas Suncoast Transit Authority v. Wrye, 750 So.2d 30 (Fla. 2d DCA 1996).

Certiorari granted; conflict certified.

      . It is for this reason, that is, that it could not be discerned from the record that no duty existed, that certiorari review was denied in School Board of Miami-Dade County v. Leyva, 975 So.2d 576 (Fla. 3d DCA 2008) (expressly relying on Dep't of Ed. v. Roe, 679 So.2d 756, 758 (Fla.1996) (stating "[ojftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits”)).

      . The Thomas court, in a single-paragraph summary opinion, denied certiorari relying on Department of Education v. Roe, 679 So.2d 756 (Fla.1996), and this court’s decision in Leyva. The Wrye court, in a two paragraph summary opinion, similarly denied certiorari. As already noted, our decision in Leyva turned on an inability to discern whether a duty or immunity existed and is therefore inapposite fiere. Roe dealt with whether a Rule 9.130 nonfinal appeal could be prosecuted from an order denying a motion to dismiss on sovereign immunity grounds. There, the court distinguished the immunity from suit accorded to public officials which is effectively forfeited if trial is permitted, from the immunity from liability accorded to the sovereign, an immunity not lost if trial is permitted.

      . See Roe, 679 So.2d at 758 (confirming that an immunity from suit as opposed to an immunity from liability " ‘is effectively lost if a case is erroneously permitted to go to trial.' ” (quoting Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985))).

      . It is the imminent threat or existence of irreparable harm that gives us jurisdiction in this case. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995); see also State Farm Fla. Ins. Co. v. Seville Place Condo. Ass'n, — So.3d —, at —, 2011 WL 2905642 (Fla. 3d DCA 2011) (Shepherd, J., concurring); Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) (recognizing that a defendant claiming qualified or sovereign immunity would suffer material harm, irreparable on appeal after judgment, if the defendant were required to go to trial because the defendant could not later be re-immunized from suit).