author: SALTER, J. SCHWARTZ, Senior Judge

text:
    Elizabeth SPENCER, Appellant, v. EMC MORTGAGE CORPORATION, Appellee.
    No. 3D11-136.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2012.

      Carlton Fields and Nancy C. Ciampa and Jeffrey Michael Cohen, Miami, for appellant.
    Greenberg Traurig and Michele L. Stocker, Fort Lauderdale, Kimberly S. Mello and Thomas A. Burns, Tampa, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

Elizabeth Spencer appeals a final summary judgment of foreclosure entered against her in December 2010 based on defaults in payment which are alleged to have begun in July 1997, over thirteen years earlier. We reverse and remand the case with directions to enter a judgment dismissing the foreclosure case based on the lender’s failure to prosecute it, among other procedural and substantive deficiencies.

Background

Ms. Spencer obtained a residential mortgage loan for $75,600 from United Companies Lending Corporation in August 1998. The contract interest rate was 13.5% per annum. The loan was to be amortized over fifteen years in level monthly payments, with the last payment due September 1, 2008.

United Companies commenced a first foreclosure proceeding against Ms. Spencer in early 1998. In March 1999, however, United Companies filed a petition under Chapter 11 of the United States Bankruptcy Code. In September 2000, the bankruptcy court approved the sale of a number of mortgage loans, including the mortgage loan to Ms. Spencer, to EMC Mortgage Corporation, the appellee here. In 2001, EMC was substituted for United Companies as the foreclosing plaintiff against Ms. Spencer, but that lawsuit was dismissed for lack of prosecution in November 2002. The file in that initial foreclosure action was later destroyed by the Miami-Dade circuit court clerk’s office in accordance with its normal procedure.

Later in November 2002, EMC filed a second foreclosure complaint against Ms. Spencer and various other defendants, alleging that Ms. Spencer failed to make regular monthly payments, “the loan being due for July 1, 1997.” In her responsive pleading, Ms. Spencer raised a number of affirmative defenses, including an allegation that the complaint was barred by the statute of limitations. After a substitution of counsel for EMC and various motions, the case languished for thirteen months. The trial court issued a notice of lack of prosecution (order to show cause why the case should not be dismissed), docketed on March 5, 2009, and it scheduled a hearing for the matter for May 29, 2009. There was no record activity in the case during the sixty-day period following the notice of lack of prosecution.

On May 26, 2009, eighty-two days after the notice of lack of prosecution and only three days before the scheduled hearing, EMC filed an unsworn response to the order to show cause and a motion for final summary judgment. At the hearing on the lack of prosecution, EMC’s counsel advised the court that the order to show cause had been sent to the offices of prior counsel — not EMC’s successor counsel— and that he had only learned of the notice two weeks earlier by checking the docket. The trial court denied the motion to dismiss for lack of prosecution after being told by EMC’s counsel that the case could not be re-filed because of the statute of limitations.

EMC’s motion for final summary judgment asserted that default occurred July 1, 1997, that no payment had been made since then, and that the unpaid principal balance was $67,976.78, with interest “from November 1, 2007, through March 15, 2009,” in the amount of $110,112.08, plus interest at $25.14 per day “for each day after May 31, 2009.” The motion indicated that these figures would be set forth in an “Affidavit of Malia Howard” to be filed before the hearing on the motion.

At this point, it is appropriate to do some simple math. The principal balance of $67,976.78 at 18.5% interest (the periodic annual rate on Ms. Spencer’s loan) rounds to $25.14 per day, as reflected in the final judgment. But interest at that daily rate from November 1, 2007, through March 15, 2009, a period of only 501 days, is $12,595.14, not $110,112.08. And when the promised affidavit was filed by EMC three months later — albeit an affidavit executed by Thomas E. Colatriano rather than Malia Howard — the very same patently incorrect figures were used for the same periods. The Colatriano affidavit also included a statement that “On or about July 1, 1997, Spencer defaulted on the Note and Mortgage, and accordingly, the then title holder to the Note accelerated payment of the entire amount due and owing on the Note and Mortgage.”

The trial court granted the motion for final summary judgment in August 2010, and the judgment entered by the court used the interest amount from the affidavit ($110,112.08) but purportedly applicable to the period November 1, 2007, through March 15, 2010, rather than March 15, 2009 (the period of computation in the affidavit). Again that calculation defies simple arithmetic; the total for that longer period at that same daily rate would only be $21,771.24, not $110,112.08. With additional interest from March 16, 2010, late charges, “corporate advances,” escrow/impound overdraft, recording fees, and attorney’s fees and costs, the total final judgment (inclusive of the $67,976.78 principal balance) came to $279,320.49. This appeal followed, and the foreclosure sale has not occurred.

Analysis

A. Lack of Prosecution

Florida Rule of Civil Procedure 1.420(e) provides:

Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

In this case, the record establishes that the case had been inactive for over ten months when the notice of lack of prosecution issued. The record also establishes that there was no record activity in the sixty-day period after the notice went out. Finally, even if EMC’s counsel learned of the prospective dismissal and show cause hearing two weeks before the hearing date as represented to the trial court, EMC did not show good cause in writing at least five days before the hearing why the action should remain pending.

And EMC’s brief is more candid. EMC’s counsel actually became aware of the notice of lack of prosecution (docketed March 5, 2009) in “late March or April, during a review of the lower court docket.” EMC’s attorneys fee affidavit and billing records are even more definitive: a March 30, 2009, time entry narrative states “Review and analyze docket re order entered to show cause why case should not be dismissed for lack of prosecution.” EMC thus had ample time, over a month, within the sixty-day window allowed for record activity that would defeat dismissal. That fact, without more, takes this case out of the “no notice received” exceptions detailed in Deutsche Bank National Trust Co. v. Basanta, 88 So.3d 216 (Fla. 3d DCA 2011), and Boosinger v. Davis, 46 So.3d 152,154 n. 2 (Fla. 2d DCA 2010).

Ms. Spencer is correct that the second foreclosure case should have met the same fate as the first — dismissal for failure to prosecute.

B. Statute of Limitations

Ms. Spencer is also correct that enforcement of the note and mortgage was likely barred by the five-year statute of limitations, section 95.11(2)(c), Florida Statutes (2002). The complaint alleges that the full unpaid principal amount was due by virtue of a default on July 1,1997. EMC’s officer Mr. Colatriano swore in his affidavit that default occurred on July 1, 1997, and “the then title holder to the Note accelerated payment of the entire amount due and owing on the Note and Mortgage.” It appears on the face of the existing record, then, that acceleration likely occurred over five years before this lawsuit was filed in late November 2002. Ms. Spencer raised the statute of limitations as an affirmative defense, and EMC did not demonstrate the absence of a genuine issue of material fact regarding that issue.

But for the dismissal for failure to prosecute, Ms. Spencer would be entitled to a remand for fact-finding regarding the date of acceleration, a date which plainly occurred before the maturity date of the note and mortgage (September 2008). Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2d DCA 1993). It is difficult to imagine how EMC — which acquired the loan years after default and the filing of the first foreclosure action — could prevail against Ms. Spencer’s testimony on acceleration, since she seems to be the only person who has had any continuous connection to the loan; but this of course would have been for the trial court to resolve.

C. Facially Incorrect Computations of Indebtedness

But for our determination that the case should have been dismissed in 2009 for lack of prosecution, we would also reverse and remand the final summary judgment because of its patently incorrect computations of Ms. Spencer’s alleged indebtedness. If the interest accrual dates were to have commenced in 1997 rather than “November 1, 2007,” EMC’s motion for final summary judgment and affidavit should have so stated. The final summary judgment compounds the error by coming to the same incorrect interest figure while adding an additional year to the computation period.

Lawyers, no less than clients, need to be handy with a calculator and give attention to detail if they wish to work on mortgage loan cases. In a residential loan setting such as this, someone’s home is at stake, and the lien calculation affects redemption rights and bidding at a later sale. Conclusion

The final summary judgment is reversed. The order denying the motion to dismiss for failure to prosecute the second, 2002 foreclosure case is reversed and vacated. The ease is remanded to the trial court for dismissal and for an award of trial and appellate attorney’s fees and costs to Ms. Spencer. Ms. Spencer’s additional issue regarding the insufficiency of proof of lost, stolen, or destroyed original instruments is moot as a result of our disposition of the other points on appeal.

Reversed and remanded, "with directions.

FERNANDEZ, J., concurs.

SCHWARTZ, Senior Judge

(specially concurring).

Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal of the summary judgment of foreclosure against her. I do so for two reasons:

I.

I agree that the action should have been dismissed for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). There is no doubt that the plaintiff took none of the steps required to avert dismissal under the rule. Its argument that denial of dismissal was appropriate under Deutsche Bank National Trust Co. v. Basanta, 88 So.3d 216 (Fla. 3d DCA 2011), because the notice was not properly “served” on the plaintiff as the rule provides, is, I think, incorrect. It is undisputed that the plaintiff had actual knowledge of the notice within the sixty-day period and, nevertheless, failed to demonstrate either activity or the good cause for its absence required to avert dismissal. (It is admitted that no such activity or cause was ever demonstrated because they did not exist.) I read Basanta as involving a situation in which, unlike this one, the plaintiff had no knowledge at all of the order in question. It accordingly does not control here. Therefore, we are required to resolve the issue which was not presented in Basanta, and which was mooted in Boosinger v. Davis, 46 So.3d 152 (Fla. 2d DCA 2010). (“This case does not involve a situation in which the parties or their attorney had actual notice of the filings within the sixty-day period.”) Boosinger, 46 So.3d at 154 n. 2. With the court, I see no reason why the failure to properly serve something on someone who already knows of the document’s existence should relieve that individual of the consequences which would inevitably flow from his failure to establish, at any time or in any way, that he was entitled to relief. See Grainger v. Wald, 29 So.3d 1155 (Fla. 3d DCA 2010) (holding service of notice to creditors upon creditor’s personal injury attorney instead of probate attorney was effective insofar as creditor had actual notice of limitations period for filing claim); Dep’t of Highway Safety & Motor Vehicles v. Nikollaj, 780 So.2d 943 (Fla. 5th DCA 2001) (holding actual notice of reason for driver’s license suspension satisfies statutory notice requirement); Phoenix Ins. Co. v. McCormick, 542 So.2d 1030 (Fla. 2d DCA 1989) (holding insurer’s service of written notice of coverage defense substantially complied with statutory notice requirement despite failure to serve notice by registered or certified mail).

II.

Even if this were not so, the summary judgment should not be affirmed. Far from establishing the right to that relief beyond genuine issue on the statute of limitations defense, City of Brooksville v. Hernando County, 424 So.2d 846 (Fla. 5th DCA 1982); Kitchen v. Kitchen, 404 So.2d 203 (Fla. 2d DCA 1981), the record contains unrebutted affirmative evidence from the plaintiffs representative that a prior owner of the mortgage had appropriately accelerated it, thus triggering the limitations period under section 95.11(2)(c), Florida Statutes (2012), well more than five years before the commencement of this action. See Greene v. Bursey, 733 So.2d 1111 (Fla. 4th DCA 1999); Monte v. Tipton, 612 So.2d 714 (Fla. 2d DCA 1993); Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987). If anything, only the appellant was entitled to judgment on this record.

As someone — probably either St. Thomas More or George Costanza — must have said, the law is the law. Notwithstanding the distasteful consequences of applying it in this case, it must be served.

      . The parties agreed to stay a foreclosure sale until this appeal could be completed.

      . Applying the default interest rate of 18% per annum only reduces the computational error from over $97,000 to over $93,000.

      . Principal of $67,976.78 at 13.5% per an-num, $25.14 per day, for 866 days.

      .In view of the likelihood that this action is barred by the applicable statute of limitations, a party may question whether any motion for attorney's fees and costs may now be pursued. We conclude that such a motion may proceed based on the analysis in Katz v. Van Der Noord, 546 So.2d 1047, 1049 (Fla.1989) (holding that attorney’s fees may be recovered under a prevailing party provision even though the contract itself is determined to be unenforceable).

      . In the first incarnation, this passage read “I feel that I must dissent from the affirmance. ...” See De Leon v. Great Am. Assurance Co., 78 So.3d 585, 586 n. 1 (Fla. 3d DCA 2011).

      . The present action is the second attempt to foreclose the mortgage. The first case was in fact dismissed for lack of prosecution. (This case demonstrates the exquisite accuracy of the acronym [f]or [l]ack [o]f [p]rosecution.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barry L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3664.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 10, 2012.

      Barry L. Smith, Lowell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion to correct illegal sentence/petition for writ of habeas corpus, which again challenges his habitual violent felony offender (HVFO) designation.

Appellant initially claimed that adjudication was withheld in his Broward County predicate offenses and, therefore, those offenses should not have been used to classify him as an HVFO. We previously determined that this claim lacks merit. See Smith v. State, 973 So.2d 1235, 1236 (Fla. 4th DCA 2008) (finding that although the trial court purported to withhold adjudication three years after he served a youthful offender sentence, which was longer than one year, the court was without jurisdiction to do so).

Appellant now claims that adjudication should have been withheld on a Miami-Dade County predicate offense pursuant to a purported plea agreement in that case and, as a result, his HVFO status should be removed in this Broward County case. We are unable to address this claim as we lack jurisdiction over the Miami-Dade County predicate offense.

Affirmed.

STEVENSON, CIKLIN, and GERBER, JJ., concur.


author: POLEN, J.

text:
    Isabel Margarita GASCUE, Appellant, v. HSBC BANK, U.S.A., National Association as Trustee for the holders of Deutsche, ALT-B Securities Mortgage Loan Trust, Series 2006-AB4 Mortgage Pass-Through Certificates, Appellee.
    No. 4D10-1379.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.

      Melva Harris-Rozier of Law Office of Melva Rozier, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   POLEN, J.

Isabel Margarita Gascue (“Gascue”) challenges an order denying her motion to vacate final judgment of foreclosure. Because Gascue alleged a colorable entitlement to relief under rule 1.540(b), Florida Rules of Civil Procedure, due to excusable neglect and the existence of meritorious defense, we reverse and remand for an evidentiary hearing on the motion.

In November 2007, HSBC Bank (“Bank”) filed a complaint to foreclose on the mortgage and to enforce lost loan documents against Gascue. Upon being served the complaint, Gascue retained the services of an attorney, who filed his notice of appearance in January 2008. In March 2009, Bank filed its motion for summary final judgment of foreclosure. Bank admits that Gascue’s attorney was noticed of the hearing, but failed to appear. The motion was heard and granted.

Gascue alleged she did not learn of the summary judgment hearing until she found out about the foreclosure judgment itself. She subsequently retained new counsel and filed a motion to vacate final judgment of foreclosure alleging, inter alia, excusable neglect. The trial court denied the motion at a non-evidentiary hearing.

Rule 1.540(b) allows a court to relieve a party from final judgment, decree, order, or proceeding for reasons of “mistake, inadvertence, surprise, or excusable neglect.” A trial court’s denial of rule 1.540(b) relief is reviewed for an abuse of discretion. See SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011). We find abuse of discretion in the instant case and must reverse. The failure of a defendant’s attorney to appear at a summary judgment hearing may constitute the type of “excusable neglect” that warrants relief under rule 1.540(b). See Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996) (holding it was error to deny rule 1.540(b) relief when appellant’s attorney failed to attend a summary judgment hearing).

Relief under rule 1.540(b) also requires the relief-seeking party to demonstrate a meritorious defense. America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So.3d 882, 885 (Fla. 4th DCA 2011). Gascue satisfied this requirement, alleging that Bank was not the holder of the note and mortgage, thus had no standing to foreclose. The proper party with standing to foreclose on a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010). Additionally, a party must have standing to file suit “at its inception and may not remedy this defect by subsequently obtaining standing.” Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012).

There is no evidence on the record indicating that Bank was the holder of the mortgage at the time the complaint was filed. Just as in Rigby, Bank attached a mortgage to its complaint in which it was not listed as the lender, but rather “Pinnacle Direct Funding” was. The only evidence that Bank is the owner and holder of the note is a sworn affidavit. However, this affidavit was filed three years after the complaint and does not establish when Bank became the holder of either the note or the mortgage, much less establish that Bank was the holder of said instruments at the time the complaint was filed. See id. (reversing the trial court in part because the supporting affidavit in that case did not establish the date on which the bank acquired possession of the note).

Since Gascue filed the rule 1.540(b) motion within the requisite one-year period after entry of the final summary judgment with facts that seem to indicate excusable neglect, we reverse the order denying relief under rule 1.540(b). On remand, the trial court should conduct a limited evidentiary hearing. See Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004) (noting that, where rule 1.540(b) motion alleges a colorable entitlement to relief, court should conduct a limited evidentiary hearing on the motion).

Reversed and Remanded for further proceedings.

WARNER, and DAMOORGIAN, JJ., concur.


author: ORFINGER, C.J.

text:
    Poupy P. JOSECITE and Darline Josecite, Appellant, v. WACHOVIA MORTGAGE CORPORATION, and Underwood & Underwood, LLC, Appellees.
    No. 5D11-3313.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.

      Joanna Tolbert and Richard W. Withers, of Kaufman, Englett & Lynd, PLLC, Orlando, for Appellant.
    Jon I. McGraw, of R. William Futch, P.A., Ocala, for Appellee, Underwood & Underwood, LLC.
    No Appearance for Appellee, Wachovia Mortgage Corporation.
   ORFINGER, C.J.

Poupy and Darline Josecite appeal the trial court’s order denying their motion to vacate a judicial sale conducted pursuant to a final judgment of foreclosure. We reverse.

Several days before the July 5, 2011 sale, the Josecites and Wachovia Mortgage Corporation, acting through its servicing agent, entered into a forbearance agreement. That agreement required the Jo-secites to make a series of payments to Wachovia’s agent, the first of which was due on Friday, July 1, 2011. The agreement further provided that “upon receipt of the signed agreement and the down payment, the foreclosure will be placed on hold for the term of the forbearance.” The Josecites timely submitted the signed agreement and the first payment. However, the foreclosure sale was not cancelled and Underwood & Underwood, LLC, in-tervenors in this appeal, purchased the property at a price that the Josecites concede is not grossly inadequate.

The Josecites promptly filed a motion to vacate the sale. Following a hearing, the trial judge denied their motion, ruling:

Following the test set forth by the Supreme Court of Florida in Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), [the Josecites] have failed to establish a 1) grossly inadequate sales price as a result from 2) any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale.

There is no dispute that Wachovia and the Josecites settled, at least temporarily, the foreclosure action and that the forbearance agreement required Wachovia to place the foreclosure proceedings “on hold.” Because the sale was the only remaining step in the foreclosure process, we interpret the obligation to place the case “on hold” as requiring the lender to cancel the sale, which it failed to do.

Foreclosures are equitable proceedings under Florida law and settlements between litigants are favored. Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010). Because the Josecites do not assert inadequacy of the bid price as a ground for vacation of the sale, we do not believe the test established in Arlt applies. Accord Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA), review granted, 86 So.3d 1112 (Fla.2012); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002). Rather, we conclude this case is controlled by Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929). In that case, which involved a suit to vacate and set aside a judicial sale of real property, the supreme court wrote:

On the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.

Id. at 561 (emphasis added). We agree with the Fourth District’s holding in Arsa-li that “surprise, accident, or mistake imposed on [a] complainant, and irregularity in the conduct of the sale” are four independent grounds that would support the setting aside of a foreclosure sale, irrespective of the sale price’s inadequacy. 79 So.3d at 847. The trial court’s conclusion that a foreclosure sale may only be vacated for a grossly inadequate bid price or other sale irregularity deprives the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process. See Ingorvaia, 816 So.2d at 1259; see also Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905).

In general, we review orders on motions to set aside foreclosure sales for an abuse of discretion. See, e.g., Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008). However, the trial court did not base its order on the exercise of discretion, and therefore, our review is not deferential. Instead, the trial court applied the wrong legal standard in determining whether the sale should be vacated, which is a question of law that we review de novo. See Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 986 (Fla. 2d DCA 2011). After applying the correct test, we conclude that the sale should be vacated and reverse the trial court’s order. We remand this matter with directions to take further actions consistent with this opinion.

REVERSED and REMANDED.

EVANDER and JACOBUS, JJ., concur.


text:
    Josiane SWARTZ, Appellant, v. CITIMORTGAGE, INC., Appellee.
    No. 5D12-1242.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.
    Rehearing Denied Oct. 9, 2012.
    Josiane Swartz, DeBary, pro se.
    Alicia Jacobs of Morris, Hardwick, Schneider, LLC, Tampa, for Appellee.
   PER CURIAM.

Josiane Swartz appeals from a non-final order denying her motion to quash service of process, arguing that the lower court lacks jurisdiction over her person in this mortgage foreclosure case based upon alleged irregularities in issuance of the summons served on her. We have jurisdiction. See Fla. RApp. P. 9.130(a)(3)(C)(i); ReEmployment Servs., Ltd. v. Nat. Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007). After being served with process, Swartz filed a motion to dismiss which in no way contested the sufficiency of the summons or service. She never amended her motion to dismiss to include this issue as a defense, and first raised the issue approximately nine months later when she filed her motion to quash service of process. It is well-settled that a defense challenging the sufficiency of service of process is waived if not raised at the “first opportunity” either by motion or responsive pleading. Re-Employment Servs., Ltd., 969 So.2d at 470 (citations omitted). The trial court properly applied this law in denying Swartz’s motion.

AFFIRMED.

PALMER, LAWSON and JACOBUS, JJ., concur.

      . Swartz also argues that the trial court should have granted her motion to dismiss based primarily upon the defense that Appel-lee lacks standing to bring the foreclosure action. We do not address any issues relating to denial of the motion to dismiss. The trial court denied Swartz's motion to dismiss on October 26, 2011. This was a non-appealable order. See, e.g., Supal v. Pelot, 469 So.2d 949 (Fla. 5th DCA 1985) (recognizing that an order denying a motion to dismiss for lack of standing is a non-final, non-appealable order). The trial court denied Swartz's motion to quash service of process more than three months later, on October 26, 2011. Even if the two rulings had been made in the same order, the issues relating to denial of the motion to dismiss would not be properly before us. See, e.g., RD & G Leasing, Inc. v. Stebnicki, 626 So.2d 1002 (Fla. 3d DCA 1993) (recognizing rule 1.930 does not permit interlocutory review of order denying motion to dismiss simply because of fortuity that order also quashed service of process; fact that order rules on an issue that is subject to interlocutory appeal does not permit rulings made in same order on other issues to "tag along”).


author: VAN NORTWICK, J.

text:
    G.G., by and through her next friend and parent, individually, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    No. 1D11-5495.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.

      Thomas M. Findley of Messer, Caparello & Self, P.A., Tallahassee; Donald J. Hayden, Allan J. Sullivan, Angela Vigil, and Effie D. Silva of Baker & McKenzie LLP, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General, Office of the Attorney General; and John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.
   VAN NORTWICK, J.

G.G. appeals a final summary judgment entered in favor of the Florida Department of Law Enforcement (FDLE), appel-lee, in her action seeking declaratory and injunctive relief. In her complaint, G.G. alleged that, by treating her confidential juvenile record as a public record and making it available to the public, FDLE violated the confidentiality requirements of section 985.04(1), Florida Statutes (2006); violated her right to privacy under article I, section 23 of the Florida Constitution; and violated her right to due process under article I, section 9 of the Florida Constitution. In the order under review, the trial court ruled that section 943.053(3), Florida Statutes (2006), creates an exception to the confidentiality established for juvenile criminal history records by section 985.04(1), and that FDLE had complied with the applicable statutes by making appellant’s arrest record available to the public. We hold that appellant, whose offense did not meet the requirements of section 985.04(2), Florida Statutes (2006), was entitled to confidential treatment of her juvenile criminal records. Accordingly, we reverse and remand for further proceedings. We do not address G.G.’s constitutional challenges to the actions of FDLE. State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) (adhering to “settled principle of constitutional law that courts should endeavor to implement the legislative intent of statutes and avoid constitutional issues.”).

The Miami Beach Police Department arrested G.G. in 2006 when she was thirteen years old for allegedly stealing a can of soda, charging her with petit theft under section 812.014(3)(a), Florida Statutes (2006). Several weeks after the incident, G.G.’s attorney paid $23 to conduct a “Criminal History” public records search on FDLE’s website, which returned a record for appellant that included the petit theft arrest information. Thereafter, she filed the action that is the subject of this appeal.

Chapter 985 of the Florida Statutes governs Florida’s juvenile justice system. Section 985.04 governs the treatment of the records and other information obtained or created under chapter 985. Section 985.04(1) establishes the confidential treatment afforded information relating to juveniles and provides, in pertinent part, as follows:

(1) Except as provided in subsections (2), (3), (6), and (7) and s. 943.053, all information obtained under this chapter in the discharge of official duty by any judge, any employee of the court, any authorized agent of the department [of Juvenile Justice], ... any law enforcement agent, ... is confidential and may be disclosed only to the [designated entities and personnel], and others entitled under this chapter to receive that information, or upon order of the court .... (emphasis added).

Section 985.04(2) creates an exception to the general rule of confidentiality for juvenile records and provides, in pertinent part, as follows:

(2) Notwithstanding any other provisions of this chapter, the name, photograph, address, and crime or arrest report of a child:
(a) Taken into custody if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony;
(b) Found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors;
shall not be considered confidential and exempt from s. 119.07(1) solely because of the child’s age.

Section 943.053(3), relied upon by FDLE, provides, in pertinent part:

(3)(a) Criminal history information, including information relating to minors, compiled by the Criminal Justice Information Program from intrastate sources shall be available on a priority basis to criminal justice agencies for criminal justice purposes free of charge. After providing the program with all known identifying information, persons in the private sector and noncriminal justice agencies may be provided criminal history information upon tender of fees as established in this subsection and in the manner prescribed by rule of the Department of Law Enforcement....
(b) The fee per record for criminal history information provided pursuant to this subsection is $23 per name submitted, ...

FDLE argues that it is required by chapter 943 to collect and maintain fingerprint information for minors who are charged with or found to have committed petit theft, section 943.051(3)(b)10, Florida Statutes (2006), as well as the other offenses listed in section 943.051(3)(b). Further, section 943.053(3)(a) directs FDLE to provide such information as a public record upon request. FDLE interprets the first sentence of section 943.053(3)(a) as expressly including “information relating to minors” within “criminal history information,” and the second sentence as allowing “persons in the private sector” to have that criminal history information provided to them after tendering a fee of $23 per name submitted. According to FDLE, section 985.04(1), upon which appellant relies, contains an express exception to confidentiality of juvenile records as contained in “s. 943.053.”

G.G. contends that FDLE’s interpretation of section 943.053(3)(a) renders section 985.04(1) meaningless. G.G. argues that a minor’s criminal history information loses its confidential status only when the minor and her arrest report fit within section 985.04(2).

Legislative History and Background

Section 119.07(l)(a), Florida Statutes (2006), provides that “[e]very person who has custody of a public record shall permit the record to be inspected and copied by the person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.” However, the legislature may, by general law, exempt certain records from the “access requirements of s. 119.07(1), s. 286.011, or s. 24 Art. I of the State Constitution.” § 119.011(8), Fla. Stat. (2006).

In 1993, section 39.045(9), Florida Statutes, now reworded and renumbered as section 985.04(2), authorized the release of the identity of a juvenile who was 16 years of age or older and had been arrested for a felony or convicted of three or more misdemeanors. In 1994, the legislature substantially amended section 39.039(1), Florida Statutes, by requiring fingerprinting of juveniles charged with felonies and enumerated misdemeanors and requiring those fingerprints to be retained by FDLE marked “Juvenile Confidential.” Ch. 94-209, § 28 at 1272-73, Laws of Fla. Importantly, the newly-amended statute retained the language “[n]otwithstanding s. 119.14, these records shall not be available for public disclosure and inspection under s. 119.07(1), but shall be available to other law enforcement agencies ...” Id. at 1273.

In 1994, the FDLE Commissioner submitted a question to the Attorney General of Florida asking:

If a juvenile is arrested for a felony, do the recent amendments to chapter 39, Florida Statutes, prohibit a law enforcement agency or a criminal justice agency from releasing the law enforcement agency’s crime or arrest reports or disclosing any information about the crime other than the name, address, and photograph of the juvenile offender?

Op. Att’y Gen. Fla. 94-91 (1994).

The Attorney General answered as follows:

I am of the opinion that if the juvenile is arrested for a felony, the recent amendments to chapter 39, Florida Statutes, which reflect a legislative intent to make more information regarding juvenile crime available to the public, permit a law enforcement agency to release its crime or arrest report or to disclose information regarding the crime. This conclusion would appear to be equally applicable when such law enforcement records have been transmitted to and are in the hands of a criminal justice agency such as the Department of Juvenile Justice.
To the extent that any previous opinions of this office may be inconsistent with the conclusions herein, they are hereby modified. In light of the uncertainty that has been expressed by the law enforcement community, however, it may be advisable for the Legislature to clarify these issues.

Id. (emphasis supplied). Accord Op. Att’y Gen. Fla. 95-19 (1995).. The Attorney General reached this conclusion even though section 39.045(9), Florida Statutes (Supp. 1994), limited the information that could be released by a law enforcement agency to the name, photograph, and address of the child.

Apparently responding to this concern, the 1996 Florida Legislature amended section 39.039(l)(a)(b), Florida Statutes (1995), renumbered to section 985.11(l)(a)(b), Florida Statutes (2006); section 39.045(5), Florida Statutes (1995), renumbered to section 985.04(1), Florida Statutes (2006); section 39.045(9), Florida Statutes (1995), renumbered to section 985.04(2), Florida Statutes (2006); and section 943.053. Ch. 96-388, § 17, 18, and 21 at 2315-21, Laws of Fla. In section 17 of chapter 96-388, the legislature retained the language of section 39.039(l)(b) that required fingerprint records and photographs of juveniles to remain separate and marked “Juvenile Confidential,” but amended the statute by allowing the following exemption from this confidentiality requirement:

Such fingerprint records and photographs shall be retained by the law enforcement agency in a separate file, and these records and all copies thereof must be marked “Juvenile Confidential.” Notwithstanding s. 119.14, these records shall not be available for public disclosure and inspection under s. 119.07(1), except as provided in ss. 39.015(9) and 913.053, but shall be available to other law enforcement agencies, criminal justice agencies, state attorneys, the courts, the child, the parents or legal custodians of the child, their attorneys, and any other person authorized by the court to have access to such records....

Ch. 96-388, § 17, at 2316, Laws of Fla.

At the same time, section 39.045(9), now 985.04(2), was amended as follows:

(9) Notwithstanding any other provisions of this part, a law enforcement agency-may release for publication the name, photograph, and address, and crime or arrest report of a child:
(а) Taken into custody if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; — or the name, photograph, and address- of any-child who-has- been
(б) Found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors
shall not be considered confidential and exempt from the provisions of s. 119.07(1) solely because of the child’s age.

Ch. 96-388, § 18 at 2319, Laws of Fla.

Section 39.045(5), now section 985.04(1), was amended as follows:

(5) Except as provided in subsections (3), and (8), (9), and (10), and s. 91-3.053, all information obtained under this part in the discharge of official duty ... is confidential and may be disclosed only to the authorized personnel of the court, ... [or other authorized agencies].

Ch. 96-388, § 18 at 2318, Laws of Fla.

Finally, pertinent to the issue in this case, the first sentence of section 943.053(3) was amended by adding the words “including information relating to juveniles ” after “[criminal history information” in the first sentence of section 943.053(3). Ch. 96-388, § 21 at 2320-21, Laws of Fla.

Analysis

Examining the law preceding the 1996 amendments and studying the changes made to the pertinent statutory provisions, we conclude that the first sentence of section 943.053(3)(a), limited by its express language, means simply that “[c]riminal history information,” “including information relating to minors,” is available to criminal justice agencies on a priority basis and free of charge. The second sentence of section 943.053(3), which states that “persons in the private sector ... may be provided criminal history information upon tender of fees” (emphasis supplied), is limited by section 985.04(2). Thus, only those juveniles defined in section 985.04(2) lose the confidential status of their arrest records.

We read sections 985.04(1) and (2) as a whole. See St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 967 (Fla.2000). Further, “statutes relating to the same subject matter should be read in pari materia, and such rule is particularly applicable where such statutes are enacted as part of the single act.” McGraw v. R and R Inv., Ltd., 877 So.2d 886, 890 (Fla. 1st DCA 2004). As read, sections 985.04 and 943.053(3) are not in conflict or inconsistent. To accept FDLE’s reading of section 943.053(3), as allowing the public access to all juvenile arrest records regardless of the severity of the offense or offenses committed by the juvenile, would render section 985.04 meaningless. “[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of a statute meaningless.” State v. Goode, 830 So.2d 817, 824 (Fla.2002). “[I]t is ... an axiom of statutory construction that an interpretation of a statute which relates to an unreasonable or ridiculous conclusion or a result obviously not designed by the Legislature will not be adopted.” Allied Fid. Ins. Co. v. State, 415 So.2d 109, 110— 11 (Fla. 3d DCA 1982).

Thus, we reject FDLE’s argument that section 943.053(3) authorizes it to disseminate publically all juvenile criminal history records in its possession. We agree with G.G. that FDLE’s authority to disseminate criminal justice information under section 943.053(3) is expressly limited by section 943.053(1), which provides that release of such information shall be made “only in accordance with federal and state laws, regulations and rules.” Section 985.04 is one such state law that specifies which juvenile records may be released and which must be maintained as confidential and not publically released.

Below and on appeal, FDLE relies upon the staff analyses prepared in 1996 by the Senate Committee on Criminal Justice and the House Committee on Criminal Justice for its contention that the changes made by chapter 96-388 in 1996 were meant to expand the public’s access to juvenile criminal history records. “While we recognize that staff analyses are not determinative of final legislative intent, they are, nevertheless, ‘one touchstone of the collective legislative will.’ ” White v. State, 714 So.2d 440, 443 n. 5 (Fla.1998) (quoting Sun Bank/South Florida, N.A. v. Baker, 632 So.2d 669, 671 (Fla. 4th DCA 1994)).

Our decision does not rely on staff anal-yses. Further, upon a closer examination of those analyses, we find the FDLE’s reliance is misplaced. The staff analyses support the position advocated here by G.G., not FDLE. Specifically, the final bill analysis prepared for the Senate Committee on Criminal Justice explained the law before the changes were made and summarized the changes, in pertinent part, as follows:

Currently, a juvenile who is charged with or found to have committed a felony offense or one of the enumerated misdemeanors must be fingerprinted and the fingerprints must be submitted to FDLE. The section further provides that the records are not available for public disclosure or inspection under s. 119.07(1), F.S., but are available to other law enforcement agencies, criminal justice agencies, ... FDLE and all other law enforcement agencies are only authorized to use juvenile fingerprint and photograph records for identification purposes. Currently, records relating to juveniles cannot be commingled with records of adult offenders. This bill expands public access to juvenile records by providing that the records will be available as provided in s.s. 39.015(9) and 913.053, F.S.
Section 39.015(9), F.S., is amended to provide that, notwithstanding any other provision of Part II of ch. 39, F.S., the name, photograph, address, and crime or arrest report of a juvenile taken into custody for a felony violation or found to have committed three or more misdemeanors shall not be considered confidential and exempt from public disclosure solely because of the juvenile’s age at the time the juvenile was taken into custody.
Section 943.053, F.S., is amended to provide that criminal history information, including information relating to juveniles, must be available on a priority basis to criminal justice agencies for criminal justice purposes free of charge and to other noncriminal justice governmental agencies on an approximate-cost basis.

Fla. Sen. Comm, on Crim. Justice, Major Legislation Passed, 1996 Regular Session 7-8 (1996) (emphasis supplied). The final bill analysis prepared for the House Committee on Criminal Justice is similar. Fla. H.R. Comm, on Crim. Justice, SB 156 (1996) Final Bill Analysis 8-9 (August 9, 1996) (emphasis supplied).

Conclusion

When subsection (1) and (2) of section 985.04 are read in pari materia with section 985.11(l)(a)(b) and section 943.053(3), it is clear that only the arrest records of those juveniles who the legislature has designated in section 985.04(2) have lost their confidential status and are available to the public pursuant to section 943.053(3)(a). G.G., who allegedly stole a can of Coke, is not one of the juveniles defined in section 985.04(2), and her arrest record is not a public record.

REVERSED and REMANDED for further proceedings consistent with this opinion.

CLARK and RAY, JJ., concur.


author: MARSTILLER, J.

text:
    Glenn Arthur WHIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3543.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.

      Nancy Daniels, Public Defender, Tallahassee, and James T. Miller, Special Assistant Public Defender, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Glenn Arthur Whigham (“Appellant”) seeks reversal of his convictions and sentences for aggravated battery using a firearm, possession of a firearm by a felon, and shooting a deadly missile into a building. He challenges the trial court’s rulings on two statements the prosecutor made during closing arguments. Finding no error, we affirm.

The first statement at issue involves prosecution witness Deborah Flowers, who saw Appellant shoot the victim in the leg with an assault rifle. Appellant contends that the prosecutor improperly vouched for Ms. Flowers’ credibility by saying:

Ms. Flowers was too proud to admit she was getting beat. I told you in opening statement you may not like all the witnesses, you’re going to hear that they have criminal histories, and we didn’t try to hide any of that from you. The witnesses are who they are. We don’t get to pick them. We don’t get to pick who crimes are committed against. But she came in here and she told you the truth about what happened to her.

(Emphasis added). Appellant’s counsel objected to the statement “she told you the truth,” but the trial court overruled the objection.

The court committed no error for the comment was not improper. “[A]n attorney is allowed to argue ... credibility of witnesses or any other relevant issue so long as the argument is based on the evidence.” Miller v. State, 926 So.2d 1243, 1254-55 (Fla.2006). “Improper prosecuto-rial ‘vouching’ for the credibility of a witness occurs ‘where a prosecutor suggests that she has reasons to believe a witness that were not presented to the jury,’ or, stated differently, where the prosecutor ‘implicitly refers to information outside the record.’ ” Jackson v. State, 89 So.3d 1011, 1018 (Fla. 4th DCA 2012) (quoting United States v. Rivas, 493 F.3d 131-37 (3d Cir.2007)). Such vouching did not occur here. Rather, the prosecutor, in rebuttal, appropriately explained Ms. Flowers’ demeanor on the stand after Appellant’s counsel in closing argument attacked her credibility based on her demeanor and purported evasiveness on cross-examination.

The second statement at issue also was made during the prosecutor’s rebuttal argument. Appellant claims the prosecutor improperly commented on his right to remain silent. The prosecutor argued:

But why are you here? Why are you here? Because Ms. Abel suggested to you that you’re here because of this chivalrous man came to the aid of a woman. He did, he came to the aid of Ms. Flowers and up until the point he got the gun, his defense, his actions were justifiable, fighting fists with fighting fists. But he left and he removed himself and that fact and that fact alone is extraordinarily important when you’re considering the law of self-defense and justifiable use of deadly force. Now, Ms. Abel brought up to you all of this doesn’t matter, none of it’s relevant the State of Florida is just bringing all this stuff here to take up your time and keep you from your friends and family. This is here because up until yesterday he says it was somebody else.

(Emphasis added). Here, Appellant’s counsel moved for mistrial, and the trial court denied the motion. Thereafter, the prosecutor continued:

On April 24th, 2010, when this defendant was captured by the Jacksonville Sheriffs Office SWAT team and taken into custody, he told the police someone else did it. Leroy Thomas, so called into question, and that’s why the State of Florida has presented all this evidence to you, it was to show you that this man committed this crime.... So this evidence is not worthless, it’s not useless, it’s State of Florida who has to prove to you beyond a reasonable doubt that this defendant committed this crime.

“In Florida, we have adopted a very liberal rule for determining whether a comment constitutes a comment on silence: any comment which is ‘fairly susceptible’ of being interpreted as a comment on silence will be treated as such.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). “We must apply harmless error analysis to the fairly susceptible comment in order to obtain the requisite discriminatory capacity.” Id. at 1136. “To determine whether a prosecutor has improperly commented on a defendant’s right to remain silent, it is necessary to evaluate the actions of the prosecutor in context rather than focus on the challenged statement in isolation.” Bright v. State, 90 So.3d 249, 260 (Fla.2012).

Viewed in context, we do not interpret the prosecutor’s statement as a comment on Appellant’s right to remain silent. Rather the prosecutor highlighted for the jury the inconsistency between what Appellant told police upon being arrested— that a man named Leroy Thomas shot the victim — and the defense he presented at trial. Appellant’s statement was admitted into evidence, as was testimony about a letter he wrote to the victim while in jail telling her to stick to the story that Leroy Thomas shot the victim. The prosecutor argued to the jury that the Appellant’s statement, together with the rest of the State’s evidence, refuted the claim of self-defense. We conclude that the prosecutor properly commented on the admitted evidence, and that the trial court correctly denied Appellant’s motion for mistrial.

AFFIRMED.

THOMAS and WETHERELL, JJ., concur.


text:
    Washington TROTTER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3573.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.
    Washington Trotter, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Phillippe FRANKLIN, Petitioner, v. STATE of Florida, et al., and Larry Campbell, Sheriff of Leon County, Respondents.
    No. 1D 12-3614.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.
    Phillippe Franklin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Bobbie D. DRESSEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3878.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.
    Bobbie D. Dressel, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, DAVIS, and ROBERTS, JJ., concur.


author: JACOBUS, J.

text:
    Edward S. MORRIS, Appellant, v. John P. MASCIA, Appellee.
    No. 5D11-2643.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Rehearing Denied Oct. 8, 2012.
    Brett A. Hastings of Hastings, Kinney & Sasso, Jacksonville, for Appellant.
    Kathryn D. Weston and Scott W. Cichon of Cobb Cole, Daytona Beach, for Appel-lee.
   JACOBUS, J.

Edward S. Morris appeals a permanent injunction for protection against domestic violence entered by the trial court against him on behalf of John P. Mascia. Because Mascia failed to prove the elements necessary for the entry of a domestic violence injunction, we reverse.

Mascia filed a petition seeking an injunction for protection against domestic violence against Morris, the uncle of Mascia’s wife. In order to have standing to seek such an injunction, section 741.30(l)(e), Florida Statutes, requires that a petitioner be a “family or household member[].” Section 741.28(3), Florida Statutes defines a “family or household member” as follows:

“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

(emphasis added). Thus, a party filing a petition under section 741.30 must prove “that the parties are residing, or have resided, together in the same single dwelling unit.” Fuccio v. Durso, 48 So.3d 1013, 1014 (Fla. 5th DCA 2010) (citing section 741.28, Fla. Stat.). This is a requirement that must be present before a court may enter an injunction for protection against domestic violence under section 741.30. See id.; see also Bond v. Bond, 917 So.2d 268, 271-72 (Fla. 5th DCA 2005).

In this case, neither Mascia’s petition nor the evidence presented at the injunction hearing indicates that Mascia ever lived in the same single dwelling unit as Morris. Accordingly, Mascia did not establish that he had standing to seek an injunction under section 741.30 and the trial court did not have the authority under the statute to enter an injunction in this case.

REVERSED and REMANDED.

ORFINGER, C.J. and LAWSON, J„ concur.


text:
    Jean FILARSKI, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 4D11-4490.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Jeffrey Keddie of Coast to Coast Legal Aid of South Florida, Plantation, for appellant.
    M. Elaine Howard, Tallahassee, for ap-pellee.
   PER CURIAM.

After the appellant failed to file a timely appeal of the final order of the Reemployment Assistance Appeals Commission (RAAC), and her appeal to this court was dismissed for lack of jurisdiction, she filed a motion with the RAAC to vacate and reenter its order so that she could take a timely appeal. The RAAC denied the motion, and the appellant timely appeals that order. We have jurisdiction. See Fla. R. App. P. 9.110(a)(3); Gundlah v. Moore, 831 So.2d 780 (Fla. 4th DCA 2002) (noting that claimant could appeal agency’s order denying motion to vacate and re-enter order); Velazquez v. Florida Unemployment Appeals Com’n, 53 So.3d 1237 (Fla. 3d DCA 2011) (same).

The Agency for Workforce Innovation issued a notice of determination that was unfavorable to the appellant and required her to repay a specified amount. Subsequent overpayment determinations were issued, and the appellant appealed all the determinations. The appeals referee reversed. However, on appeal, the RAAC disagreed with the referee’s legal conclusion and reversed. The RAAC issued its order February 18, 2011, and mailed a copy to the appellant’s last known address along with a notice advising the appellant she had thirty days to appeal.

The appellant did not file her appeal until March 23, 2011, and we dismissed the appeal. The appellant then filed with the RAAC a motion to vacate and re-enter its order, pursuant to Florida Rule of Civil Procedure 1.540.

In the motion, as supported by an affidavit and a copy of a change of address request filed with the postal service, the appellant alleged the following: She began receiving unemployment compensation benefits soon after an appeals referee made a determination favorable to her. She lived with her son at the address provided to the RAAC until October of 2010, when she moved. She filed a change of address with the postal service in November of 2010, but did not notify the RAAC of her change of address. When she didn’t receive her benefits check on March 7, 2011, she contacted the RAAC hotline on or about March 14 or 15 and was informed that an adverse order had been entered. The agent misadvised her that she had twenty days to appeal. The appellant called her son who found the RAAC order; he told her the date of the order was February 18, 2011. Relying on the agent’s misinformation, the appellant believed she had already missed the deadline. The RAAC’s order was not forwarded to her new address. She waited until March 21 to obtain a copy of the order from her son’s house because she believed she had already missed the deadline to appeal. When she read it, she realized she really had thirty days to appeal and could have still filed a timely appeal on the date she spoke to the agent. She immediately contacted her attorney at legal aid and he filed the appeal on March 23, 2011.

The RAAC denied the motion to vacate, finding that the agent’s misinformation was not sufficient to vacate the order where the order had been delivered to the appellant’s last known address.

The appellant’s sole argument on appeal is that the RAAC erred because the circumstances warranted relief under Florida Rule of Civil Procedure 1.540, based on the appellant’s excusable neglect. As support for her position, the appellant relies on a Third District opinion, New Washington Heights Cmty. Dev. Conference v. Dep’t of Cmty. Affairs, 515 So.2d 328, 329-30 (Fla. 3d DCA 1987). The problem with her reliance on that case is that its holding has been disapproved in part by a Florida Supreme Court case. See Millinger v. Broward Cnty. Mental Health Div. & Risk Mgmt., 672 So.2d 24 (Fla.1996).

In New Washington Heights, a claimant’s attorney was misled as to the procedure for filing an administrative appeal when his secretary received incorrect information from an agency clerk. The Third District wrote that “[i]t is ... well-settled that where state action deprives a party of the ability to file a timely notice of appeal, the appellate court, although deprived of jurisdiction over the appeal, will provide the thus-rejected appellant with an alternative avenue of review ... It would be anomalous indeed if similar relief were unavailable to one appealing an administrative determination merely because the procedure governing administrative matters contains neither a counterpart to [rule 1.540] nor anything resembling [it]. Therefore, although we dismiss this appeal, we do so without prejudice to the appellant to apply to the Department to vacate and re-enter the operative order.” New Washington Heights, 515 So.2d at 329-30.

In Millinger, a worker’s compensation appeal also involving an attorney’s secretary’s reliance on advice from an agency employee, the supreme court affirmed the First District’s dismissal of a claimant’s appeal. Millinger, 672 So.2d at 27. The First District had found that the Judge of Compensation Claims (“JCC”) did not have authority to vacate its own final order, and it dismissed Millinger’s appeal of the JCC’s newly issued order. Millinger v. Broward Cnty. Mental Health Div. & Risk Mgmt., 655 So.2d 104 (Fla. 1st DCA 1994). In affirming the First District, the supreme court wrote that “the reasoning of New Washington Heights is not disposi-tive of this case” because the untimely appeal was not the direct result of the clerk’s misrepresentations, where the attorney should have been aware of well-settled rules regarding filing appeals. Millinger, 672 So.2d at 26. The court found that the facts of the case weren’t sufficient to permit vacation and re-entry of the administrative order. Id. Notably, the court also approved of the First District’s reliance on Farrell v. Arnica Mutual Insurance Co., an opinion holding that rule 1.540 could not be used in administrative matters in the absence of any incorporation of the civil rules of procedure into the worker’s compensation rules of procedure. 361 So.2d 408, 411 (Fla.1978). The supreme court also noted that in Farrell, it “concluded the JCC did not have authority to vacate a final order because that power had not been granted to it by the legislature or rules of procedure.” Millinger, 672 So.2d at 26.

The court, however, recognized limited circumstances under which the JCC could grant relief:

[W]e acknowledge that substantial rights are involved in worker’s compensation claims which are protected by due process guarantees under our state constitution. Art. I, § 9, Fla. Const. We envision that there could be a set of egregious circumstances which occur that prevent a litigant from timely filing an appeal that could be remedied by the JCC or an appellate court. For instance, a due process violation would probably occur if the JCC’s order was entered but never actually provided to the litigants, and the thirty-day period to file a timely appeal then passed. Those circumstances are not present here.

Id. at 27.

Subsequent to Millinger, this court acknowledged that an agency may not vacate its final order based on a party’s negligence. See W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So.2d 1224, 1225 (Fla. 4th DCA 1996) (relying on Millinger in observing, “While we agree that agency reissuance of a final order may not be used to breathe life into an appeal where the notice of appeal is untimely due to the appellant’s negligence, reissuance is appropriate where the time to appeal expires before the appellant has notice that the agency has entered the final order.”) (Emphasis added.) See also Sclease v. Constr. Indus. Licensing Bd., 881 So.2d 98, 98 (Fla. 1st DCA 2004) (citing Milling-er for the proposition that “an agency has authority to vacate and reenter otherwise final orders in order to avoid due process problems”).

Millinger makes it clear that an administrative agency may vacate and reenter its final orders only where the agency has express authority to do so, or where there has been a due process violation. The First District has also acknowledged that an administrative tribunal has inherent power to correct its own errors in its orders. Johnson v. Terry Hunt Constr. Co., 878 So.2d 1282, 1284 (Fla. 1st DCA 2004) (citing Taylor v. Dep’t of Prof'l Regulation, Bd. of Med. Exam’rs, 520 So.2d 557, 560 (Fla.1988)).

There is no legislative authority for the RAAC to vacate its final orders and this case does not involve any clerical errors in the RAAC’s order. Although Mil-linger acknowledges that an administrative agency may vacate its final order on due process grounds, the appellant did not raise the due process issue on appeal. Instead, she argued that her excusable neglect required vacation of the RAAC’s order pursuant to rule 1.540. Because the appellant did not raise the due process issue on appeal, we do not consider it. See Victorino v. State, 23 So.3d 87, 103 (Fla. 2009) (citations omitted) (finding that defendant waived due process argument where he failed to fully brief and argue the issue on appeal). Accordingly, we affirm.

Affirmed.

WARNER, HAZOURI and CIKLIN, JJ., concur.


author: GROSS, J.

text:
    STATE of Florida, Appellant, v. Christopher SARRIA and Jorge Sarria, Appellees.
    Nos. 4D11-2473, 4D11-2474.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Sean Conway, Fort Lauderdale, for ap-pellees.
   ON MOTION FOR REHEARING

GROSS, J.

We grant the motion for rehearing, withdraw the opinion that issued on June 20, 2012, and issue the following opinion.

The state challenges orders granting motions to suppress filed by two defendants who occupied a car in which marijuana was discovered after a traffic stop. We sua sponte consolidate these two cases and reverse. The strong odor of raw cannabis emanating from the car’s interior gave the officer probable cause to both arrest the occupants and search the vehicle.

While patrolling U.S. 27, Officer Eric Abrahamson spotted a black, four-door In-finiti with what he suspected were illegally tinted windows. The officer stopped the car, which was driven by Christopher Sar-ria. Jorge Sarria, Christopher’s father, was in the front-passenger seat. At that time, other vehicles were traveling at high rates of speed on U.S. 27, a highway. On one side of the highway was the Everglades; on the other, a field.

While talking to Christopher, the officer “notic[ed] the distinct odor of raw cannabis emitting from the interior of his vehicle.” The odor was so strong that Officer Abra-hamson could smell it with the door shut and window open. The officer requested backup, resulting in Officer Kevin Burg’s arrival at the scene. Officer Abrahamson then asked Christopher to get out of the car, telling him he smelled marijuana. No guns were drawn.

Officer Abrahamson placed Christopher in handcuffs. The officer also had Jorge exit the car and placed Jorge in handcuffs. As Christopher and Jorge waited at the rear of the car under Officer Burg’s supervision, Officer Abrahamson conducted a search of the car.

After several minutes, the search uncovered a bag containing twenty-eight grams of marijuana in the glove box, an old, burnt marijuana roach, and a small piece of loose marijuana in the center console.

Officer Burg’s testimony was consistent with Abrahamson’s. He, too, “detected a very strong smell of raw, unburnt cannabis emanating from the open driver side window.”

After the search revealed the marijuana, Officer Abrahamson read both Sarrias their Miranda rights. Both Sarrias made statements implicating themselves in the possession of marijuana.

The Sarrias filed motions to suppress the fruits of the search and their statements.

The trial judge appears to have denied the motion to suppress the physical evidence, but granted the motion to suppress the statements. She ruled that once the officers smelled the odor of marijuana coming from the vehicle, they had probable cause to search the car. However, she granted the motion to suppress because she found that the handcuffing of the Sar-rias amounted to an illegal arrest, because it occurred before the officer discovered the marijuana. She reasoned that the Miranda warnings failed to purge “the primary taint of the illegal arrest.”

Officer Abrahamson’s initial stop of the Sarrias’ car was valid. “[A] law enforcement officer is clearly entitled to stop a vehicle for a traffic violation.” Cresswell v. State, 564 So.2d 480, 481 (Fla.1990) (citation omitted). Excessive rear-window tint is a noncriminal traffic violation. § 316.2954, Fla. Stat. (2010). The trial judge found that the “rear windows” were “illegally tinted.” Officer Abrahamson therefore had probable cause to make the stop. See Holland v. State, 696 So.2d 757 (Fla.1997) (a traffic stop is constitutionally reasonable when supported by probable cause that a violation of traffic law has occurred).

Once the officers smelled the raw marijuana, the traffic stop evolved into something more. The odor of burnt cannabis generates probable cause to both search a vehicle and arrest the occupants. See State v. Williams, 967 So.2d 941, 941 (Fla. 1st DCA 2007) (“the odor of burnt cannabis emanating from a vehicle constitutes probable cause to search all occupants of that vehicle”); State v. T.P., 835 So.2d 1277, 1278 (Fla. 4th DCA 2003) (“[Ujpon approaching T.P.’s car and smelling previously burnt marijuana, the officer had probable cause, based upon the smell alone, to detain and search T.P. and his vehicle for contraband.” (citations omitted)); State v. K.V., 821 So.2d 1127, 1128 (Fla. 4th DCA 2002) (“Here, the tip from the security guard, the smoke billowing out of the car, and the smell of burning marijuana gave Deputy Vazquez ample probable cause to arrest the occupants and search both their persons and the vehicle.”). For the purpose of providing a basis for probable cause, we see no reason to distinguish the odor of burnt marijuana from the odor of raw marijuana. See Kimball v. State, 951 So.2d 35, 37 (Fla. 1st DCA 2007) (holding that the odor of raw marijuana coming from a vehicle provided probable cause to search it). In fact, the smell of burnt marijuana coming from a car window is consistent with personal use of marijuana in the passenger compartment, raising the possibility that all of the drug has been consumed by combustion. On the other hand, “the overpowering smell of raw marijuana” raises a “fair probability that the car is being used to transport large quantities of marijuana,” U.S. v. Downs, 151 F.3d 1301, 1303 (10th Cir.1998), thereby providing an even stronger basis for a search than exists when the odor of burnt marijuana is present.

Once Officer Abrahamson detected the distinct odor of raw cannabis, he had probable cause to search the car and arrest the Sarrias; it did not matter if he arrested first and searched later. For example, in State v. Wells, 516 So.2d 74, 74 (Fla. 5th DCA 1987), an officer smelled the odor of burning marijuana coming from a van as the defendant exited the van. The officer detained the defendant and searched the van’s passenger compartment. Id. The search revealed over two dozen roaches and five baggies of marijuana. Id. The officer then formally placed the defendant under arrest. Id. The defendant moved to suppress the evidence, and the trial court granted the motion. Id.

On appeal, the fifth district wrote, “When a police officer who knows the smell of burning marijuana detects that odor emanating from a vehicle, or from a person who has recently exited a vehicle, he has probable cause to believe a crime has been committed and that such person has committed it.” Id. The probable cause authorized the “the arrest of such person and a warrantless search, either before or after the arrest, of the passenger compartment of the vehicle.” Id. Other cases have similarly held that, as long as probable cause exists, whether the search precedes the arrest or vice versa does not matter for the purpose of the Fourth Amendment. See, e.g., State v. Hutchins, 636 So.2d 552, 553 (Fla. 2d DCA 1994) (“Once probable cause exists, it is immaterial whether the search precedes the arrest or vice versa.” (citing Dixon v. State, 343 So.2d 1345,1349 (Fla. 2d DCA 1977))).

Because he had probable cause to arrest, Officer Abrahamson did not have to justify the use of handcuffs as would be required for a temporary, investigatory stop. See Reynolds v. State, 592 So.2d 1082, 1084-85 (Fla.1992) (officer may use handcuffs as part of temporary detention “where it [is] reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee,” but for only for so long as is necessary to confirm or dispel the reasonable suspicion). Because there was no illegal arrest, the trial court’s analysis under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), was inapposite.

Finally, we note that two circumstances discussed at the trial level were irrelevant to the Fourth Amendment analysis: (1) Officer Abrahamson did not formally inform the Sarrias they were under arrest and (2) the officer considered the encounter to be an investigatory stop. Whether a seizure has occurred is an objective, contextual inquiry that does not depend on the formal announcement of an arrest or the officer’s subjective beliefs. See F.E.H., Jr. v. State, 28 So.3d 213, 215 (Fla. 4th DCA 2010) (“Whether a seizure [in the absence of a formal arrest] has occurred ‘is determined by what a reasonable person in [the defendant’s] position would have concluded based upon the conduct of the officers.’” (quoting G.M. v. State, 19 So.3d 973, 980 n. 5 (Fla.2009))).

For these reasons, we reverse the orders granting the motions to suppress statements and remand to the circuit court where the court may consider other Miranda related issues, such as the voluntariness of the statements.

POLEN and LEVINE, JJ., concur.


author: CIKLIN, J.

text:
    Derrick Lamar LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2394.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Antony P. Ryan, Regional Counsel, and Genevieve Hall, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Derrick Lamar Lewis appeals his convictions for kidnapping, falsely personating an officer during the commission of a felony, threats or extortion, home or private business invasion by false personation, and robbery. Because we find the jury instruction for falsely personating an officer during the commission of a felony constituted fundamental error, we reverse Lewis’s conviction for that offense and remand for a new trial as to that count. We affirm the remaining convictions and sentences without comment.

Lewis was charged with falsely personating an officer during the commission of a felony, in violation of section 843.08, Florida Statutes (2008), which provides in relevant part:

A person who falsely assumes or pretends to be a ... police officer ... or a federal law enforcement officer as defined in slection] 901.1505, and takes upon himself or herself to act as such, ... commits a felony of the third degree ...; however, a person who falsely per-sonates any such officer during the course of the commission of a felony commits a felony of the second degree ....

§ 843.08, Fla. Stat. (emphasis added). The trial court instructed the jury as follows:

To prove the crime of Falsely Personat-ing an Officer during the Commission of a Felony, the state must prove the following two elements beyond a reasonable doubt:
1) Derrick Lamar Lewis falsely assumed or pretended to be a police officer and/or federal law enforcement officer and/or federal agent, or took it upon himself to act as such.
2) Derrick Lamar Lewis did this during the commission of a felony.

(Emphasis added).

Thus, to prove Lewis guilty of falsely personating an officer in violation of section 843.08, the state had to prove: (1) that Lewis falsely assumed or pretended to be a police officer or federal law enforcement officer, and (2) that Lewis took it upon himself to act as such. The given instruction, however, required the state prove only one of those two required elements: Lewis falsely assumed or pretended to be a police officer or federal law enforcement officer or took it upon himself to act as such. Therefore, this instruction allowed the jury to convict Lewis of the charged crime without requiring the state to prove all of the required elements beyond a reasonable doubt.

“The failure to give a jury instruction on an element of a crime is fundamental error if the element was disputed at trial.” Nash v. State, 951 So.2d 1003, 1005 (Fla. 4th DCA 2007). We conclude that the erroneous jury instruction rose to the level of fundamental error because Lewis disputed whether the state proved that he “falsely assumed or pretended to be” a police officer or federal law enforcement officer. For example, during closing argument, defense counsel emphasized that the victim had testified that Lewis was driving a small unmarked car, was wearing shorts and a shirt, and never presented any form of identification to the victim indicating that Lewis was a law enforcement officer.

In summary, the erroneous jury instruction constituted fundamental error because the error pertained to an element of the crime that was disputed in the case. Accordingly, we reverse Lewis’s conviction and sentence for falsely personating an officer during the commission of a felony and remand for a new trial on that count. We affirm Lewis’s remaining convictions and sentences.

Affirmed in part, reversed in part, and remanded.

STEVENSON, J., and WALSH, LISA S., Associate Judge, concur.

      . The state was also required to prove that Lewis personated an officer during the commission of a felony in order to convict him as charged in the information. The jury, however, was also instructed on the lesser included charge of personating an officer (while not in the course of committing a felony) a third-degree felony. The instruction for the lesser-included offense contained the same fundamental error as the instruction for the charged offense.


text:
    Sherrell STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4020.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Appellant’s challenge to her sentence as being in excess of the plea agreement was not properly preserved. See Hall v. State, 765 So.2d 282, 284 (Fla. 4th DCA 2000) (“[I]f the court imposes a sentence in excess of the plea bargain, his claim will be cognizable on appeal only if he filed a motion to withdraw his plea to preserve his claim.” ); Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001) (sentence which exceeds plea agreement is not considered an illegal sentence but must be challenged by a motion to withdraw plea agreement). We affirm without prejudice for appellant to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Hall, 765 So.2d at 284.

WARNER, HAZOURI and CIKLIN, JJ., concur.


author: STEVENSON, J.

text:
    Jeffrey Albert GOSLING, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1251.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing, Rehearing En Banc & Certification

STEVENSON, J.

We grant the State’s motion for rehearing, deny rehearing en banc and certification to the Florida Supreme Court, withdraw our previous opinion, and substitute the following in its place.

In this appeal, the defendant challenges his conviction for the criminal offense of the failure of a sex offender to report to the Department of Motor Vehicles (DMV) within forty-eight hours of a change in address. He contends, among other things, that the trial court erred in denying his motion for judgment of acquittal. We agree and reverse the defendant’s conviction.

Section 943.0435(4)(a), Florida Statutes (2010), requires a “sexual offender” to report to DMV within forty-eight hours of any change in residence. The statute defines the term “sexual offender” and sets forth four ways in which an individual may qualify as a “sexual offender.” See § 943.0435(l)(a)l.a.-d., Fla. Stat. Here, the State sought to prove the defendant was a “sexual offender” as the result of an out-of-state sex crime conviction and the jury was instructed on two subparagraphs of the statute, (l)(a)l.a. and b.:

(a) 1. “Sexual offender” means a person who meets the criteria in sub-sub-paragraph a., sub-subparagraph b., sub-subparagraph c., or sub-subparagraph d., as follows:
a. (I) Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent or guardian; s. 794.011, excluding s. 794.011(10); s. 794.05; s. 796.08; s. 796.085; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; or s. 985.701(1); or any similar offense committed in this state which has been re-designated from a former statute number to one of those listed in this sub-sub-subparagraph; and
(II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-sub-subparagraph (I). For purposes of sub-sub-subparagraph (I), a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fíne, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility;
b. Establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction, without regard to whether the person otherwise meets the criteria for registration as a sexual offender; ...

To prove the defendant’s status as a “sexual offender” within the meaning of the statute, the State introduced (1) a certificate from the New York State Department of Correctional Services, reflecting that, in September of 1993, the defendant was convicted of “Sexual Abuse 1st” and was incarcerated from September 28, 1993, through September 20, 1995, when he was paroled and (2) a certified copy of the New York sentencing order, reflecting a conviction for “Sexual Abuse 1st, 130.65, ID Felony” and an “indeterminate sentence” of between two and one-half and five years imprisonment. Such evidence was insufficient to establish the defendant’s status as a “sexual offender” under either (l)(a)l.a. or b.

Subsection (l)(a)l.a. requires proof that the defendant was released from the sanction imposed for the offense subjecting him to treatment as a “sexual offender” on or after October 1, 1997. The only evidence before the jury was that the defendant was paroled for the New York offense in 1995. There was no evidence that the defendant continued to be on probation, community control, or parole on or after October 1, 1997. There could thus be no conviction under this subsection.

As for subsection (l)(a)l.b., the defendant argues that, to prove a defendant’s status as a “sexual offender,” the State must offer evidence that the out-of-state jurisdiction “designated” the defendant as a “sexual offender” and the mere fact that the defendant has an out-of-state conviction for a sex offense similar to one of the enumerated Florida offenses is insufficient.

The defendant contends that had the legislature meant convicted in another state for an offense similar to one of the enumerated Florida offenses it would have said so, pointing to the fact that in subsection (l)(a)l.a., the legislature did just that.

The State insists we have already decided this issue adversely to the defendant, relying upon Harvey v. State, 17 So.3d 890 (Fla. 4th DCA 2009). Harvey, though, stands only for the proposition that, in Florida, there is a distinction to be made between a “sexual predator” and a “sexual offender.” While section 775.21, Florida Statutes, expressly requires the Florida courts to make a written finding that the defendant is a “sexual predator,” section 943.0435 “contains no provision for a court order designating such offenders as sexual offenders,” rather “they attain that status merely by virtue of their convictions.” Id. at 891 n. 2. Accord Watkins v. State, 57 So.3d 986 (Fla. 5th DCA 2011). Harvey does not purport to address the circumstances under which a defendant who commits a crime in another jurisdiction will be treated as a “sexual offender” in Florida or whether a “designation” will be required for the out-of-state offense.

We thus turn to the plain language of the statute. The very framework of the statute indicates the legislature appreciated the distinction between simply being convicted for a sex offense and being designated a “sexual offender.” In the context of subsection (l)(a)l.b., the legislature appears to recognize there is no “sexual offender” designation in Florida, i.e., the subsection states “[ejstablishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state.” (emphasis added). Nonetheless, the subsection goes on to speak in terms of a “designation” being required for out-of-state offenses: “[e]s-tablishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration .... ” (emphasis added).

Moreover, the use of the word “designation” in subsection (l)(a)l.b. serves a purpose. Under subsection (l)(a)l.a., a defendant’s treatment in Florida as a “sexual offender” for his out-of-state sex offense conviction turns upon whether the out-of-state offense is similar to the enumerated Florida offenses, i.e., the elements of the offenses are to be compared. And, if the elements are similar, the defendant will be treated as a “sexual offender” in Florida; the subsection makes no mention of a designation as a “sexual offender.” The same is true for subsection QXajl.c. Subsection (l)(a)l.b., though, does not require that the out-of-state offense be compared to an enumerated Florida offense. Rather, the defendant will be treated as a “sexual offender” in Florida, if he now maintains a residence in Florida and was “designated” a “sexual offender” by the out-of-state jurisdiction.

Where the words of a statute are not ambiguous, this court must enforce the statute as written. See, e.g., Anderson v. State, 87 So.3d 774, 777 (Fla.2012). We thus hold that, in the absence of evidence that the State of New York designated the defendant as a “sexual predator,” a “sexually violent predator,” or some other “sex offender designation,” the defendant could not be found to be a “sexual offender” under subsection (l)(a)l.b. of the statute either. The trial court thus erred in denying his motion for judgment of acquittal.

Reversed.

TAYLOR and CIKLIN, JJ., concur.

      . Subsection (l)(a)l.c. provides as follows: c. Establishes or maintains a residence in this state who is in the custody or control of, or under the supervision of, any other state or jurisdiction as a result of a conviction for committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes or similar offense in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim's parent or guardian; s. 794.011, excluding s. 794.011(10); s. 794.05; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; or s. 985.701(1); or any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-subparagraph; ...

      . Our holding on this issue renders the defendant’s remaining points on appeal moot.