author: THOMAS, J.

text:
    DEPARTMENT OF REVENUE and Steven McLeod, Petitioners, v. Marianne McLEOD, Respondent.
    No. 1D11-1124.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.

      Pamela Jo Bondi, Attorney General, William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner Department of Revenue.
    Rhonda S. Clyatt, Panama City, for Respondent.
   ON MOTION FOR REHEARING

THOMAS, J.

This cause is before us on Petitioners’ motion for rehearing, rehearing en banc; or alternatively, certification of question of great public importance. We deny the motion, but write to clarify our original opinion. Accordingly, we withdraw our former opinion of June 18, 2012, and substitute this opinion in its place.

Petitioner, the Department of Revenue (DOR), seeks a writ of certiorari to quash a non-final order dismissing DOR’s petition for modification of child support, filed on behalf of co-Petitioner, Steven McLeod, Respondent’s former husband and the non-custodial parent. DOR challenges the trial court’s ruling that DOR could not represent the non-custodial obli-gor parent, because the child was not receiving public assistance, and DOR sought to lower the obligor’s payments. Although we agree that the trial court’s basis for dismissing the petition was erroneous, we also find that the court reached the right result. We hold that DOR does not have standing to seek a modification of child support on behalf of a non-custodial parent obligated to pay support, unless either party or the child is receiving public assistance, or when the obligor has failed to make support payments and DOR is called upon by the custodial parent to assist in enforcing a child support order. Thus, because the challenged ruling was not incorrect, DOR has failed to establish that the trial court departed from the essential requirements of law; therefore, we deny the petition.

Procedural Background

Co-Petitioner Steven McLeod and Respondent were divorced in 2006. Under the final dissolution judgment, Mr. McLeod was the non-custodial parent and was required to pay child support “through the Florida Disbursement Unit.” In 2007, Mr. McLeod filed a petition for modification of his child support obligation, which was followed by Respondent’s counter-petition. That year, the trial court entered two contempt orders against Mr. McLeod for child support arrearages. In September 2008, Mr. McLeod voluntarily dismissed his petition. Mr. McLeod apparently proceeded pro se in these post-dissolution proceedings, whereas Respondent was represented by counsel.

In November 2009, DOR, “on behalf of’ Mr. McLeod, filed a “Supplemental Petition for Modification of Support,” stating, inter alia, that Mr. McLeod and the child “are eligible for child support services of [DOR] pursuant to chapter 409, Florida Statutes.” The petition also stated: “DOR’s participation and the undersigned attorney’s representation are limited in scope as set forth in Section 409.2564(5), Florida Statutes.” The trial court conducted a hearing and entered a written order dismissing DOR’s supplemental petition.

In its order, the trial court relied on Department of Health and Rehabilitative Services v. Heffler, 382 So.2d 301 (Fla.1980), and explained that “the Florida Supreme Court addressed the constitutionality of a statute allowing the Department of Health and Rehabilitative Services to bring a paternity action. In holding the statute constitutional, the Supreme Court addressed the fact that children should be maintained from resources of the parents, not the citizens of the State of Florida.” The trial court then found:

Here, DOR is representing a non-custodial parent whose child does not receive public assistance in a proceeding to lower child support. Obviously, if child support was lowered, the child would be harmed. This is contrary to the rationale of Hejfler whereby responsible parents should maintain their children. The funds and resources of this State should not be utilized by bringing court actions on behalf of a non-custodial parent, whose child is not receiving public assistance, when such action would be to the detriment of the child. Accordingly, the Court finds that the statutes, as applied in this case, [do] not allow representation of Former Husband by DOR.

(Emphasis in original.)

Analysis

“It is an established principle of law in this jurisdiction that common law certiorari is not a permissible vehicle for seeking review of an interlocutory order rendered in a law action unless it is clearly established that (1) the ruling, if erroneous, constitutes a departure from the essential requirements of law; and (2) it will cause material injury to the petitioner throughout the remainder of the proceedings; and (3) the injury is one for which there will be no adequate remedy by appeal after final judgment.” Dairyland Ins. Co. v. McKenzie, 251 So.2d 887, 888 (Fla. 1st DCA 1971). Here, DOR fails to satisfy the first prong of this tripartite test.

DOR contends that the trial court’s ruling that DOR lacks standing to seek a downward modification of child support, when neither the parent nor the child have received public assistance, is contrary to DOR’s federal and state mandates and established precedent. We disagree.

The statutory requirement that DOR review child support orders on a periodic basis, and if necessary, seek a modification, exists only with respect to “child support orders in Federal Title IV-D cases at least once every 3 years when requested by either party, or when support rights are assigned to the state under s. 414.095(7)....” § 409.2564(11). As discussed below, however, based on the relevant statutes, there is no Title IV-D case with respect to child support obligations unless either or both parents, or the dependent child, are receiving public assistance, or if the custodial parent has requested DOR’s assistance in enforcing or modifying a child support order. Based on the record, there is no evidence that either situation exists here.

As DOR itself notes in its petition to this court: “To be eligible for a federal Temporary Assistance for Needy Families (TANF) welfare block grant under Title IV-A of the Social Security Act, states must operate a child support enforcement program in accordance with an approved state plan under Title IV-D of the Act.” (Emphasis added.) DOR also states that “the Title IV-D program required the states to provide custodial parents with legal assistance in collecting child support from noncustodial parents.” See also 42 U.S.C. § 602(a)(2) (providing that for a state to be eligible for the program’s block grants, it must submit, inter alia, “[a] certification by the chief executive officer of the State that, during the fiscal year, the State will operate a child support enforcement program under the State plan approved under part D of this subchap-ter.”) (emphasis added).

To this end, 42 U.S.C. section 651 provides:

For the purpose of enforcing the support obligations owed by noncustodial parents to their children and the spouse (or former spouse) with whom such children are living, ... obtaining child and spousal support, and assuring that assistance in obtaining support will be available under this part to all children (whether or not eligible for assistance under a state program funded under part A of this subchapter) for whom such assistance is requested, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part.

(Emphasis added.)

Pursuant to 42 U.S.C. section 654(3), participating states must “provide for the establishment or designation of a single and separate organizational unit ... within the State to administer the plan” for enforcing child support orders and obtaining support. In Florida, DOR is the agency charged with performing these statutorily-required tasks. See § 409.2557(1), Fla. Stat.

Subsection 654(4) provides that a participating State must also agree that it will:

(A) provide services relating to the ... modification, or enforcement of child support obligations, as appropriate, under the plan with respect to—
(i) each child for whom (I) assistance is provided under the State program funded under part A of this subchap-ter, (II) benefits or services for foster care maintenance are provided under the State program funded under part E of this subchapter, (III) medical assistance is provided under the State plan approved under subchapter XIX of this chapter, or (IV) cooperation is required pursuant to section 2015(1 )(1) of Title 7, unless, in accordance with paragraph (29), good cause or other exceptions exist;
(ii) any other child, if an individual applies for such services with respect to the child; and
(B) enforce any support obligation established with respect to—
(i) a child with respect to whom the State provides services under the plan; or
(ii) the custodial parent of such a child;....

42 U.S.C. § 654(4) (emphasis added).

DOR contends that the italicized language gives it standing in this case. However, this provision must be read in conjunction with 42 U.S.C. section 666, entitled “Requirement of statutorily prescribed procedures to improve effectiveness of child support enforcement.” (Emphasis added.) Subsection (10)(A) of this statute provides that a state’s plan must include:

(i) ... Procedures under which every 3 years (or such shorter cycle as the State may determine), upon the request of either parent or if there is an assignment under part A of this sub-chapter, the State shall with respect to a support order being enforced under this part, taking into account the best interests of the child involved—
(I) review and, if appropriate, adjust the order in accordance with the guidelines established pursuant to section 667(a) of this title if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines;!]
Procedures which provide that any adjustment under clause (i) shall be made without a requirement for proof or showing of a change in circumstances.
(B) Proof of substantial change in circumstances necessary in request for review outside 3-year cycle
Procedures under which, in the case of a request for a review, and if appropriate, an adjustment outside the 3-year cycle (or such shorter cycle as the State may determine) under clause (i), the State shall review and, if the requesting party demonstrates a substantial change in circumstances, adjust the order in accordance with the guidelines established pursuant to section 667(a) of this title.

42 U.S.C. § 666(10)(A) (emphasis added).

Based on the foregoing, a non-custodial parent may seek DOR’s assistance to modify a child support order, but only “with respect to a support order being enforced under Title IV-D. This interpretation is further supported by several Florida Statutes enacted to implement the federal requirements and our decision in Florida Department of Revenue, Child Support Enforcement v. Baker, 24 So.3d 1254, 1257 (Fla. 1st DCA 2009) (holding trial court erred by prohibiting DOR from intercepting tax refund, noting this court’s agreement that state courts may not interfere with a “comprehensive child support enforcement scheme.”) (emphasis added).

As noted, section 409.2557(1), Florida Statutes, designates DOR “as the state agency responsible for the administration of the child support enforcement program, Title IV-D of the Social Security Act.” (Emphasis added.) Subsection (2) of this statute provides: “The departments authority shall include, but not be limited to, the establishment of ... support obligations, as well as the modification, enforcement, and collection of support obligations.” Section 409.2558(1) provides: “The department shall distribute and disburse support payments collected in Title IV-D eases in accordance with 42 U.S.C. s. 657 and regulations adopted thereunder....”

Section 409.2564, Florida Statutes, addresses “Actions for support.” Subsection 409.2564(1) provides: “In each case in which regular support payments are not being made as provided herein, the department shall institute, within 30 days after determination of the obligor’s reasonable ability to pay, action as is necessary to secure the obligor’s payment of current support and any arrearage which may have accrued under an existing order of support.” Subsection (2) provides: “The order for support entered pursuant to an action instituted by the department under the provisions of subsection (1) shall require that the support payments be made periodically to the department through the depository.” It is in this context that this statute also addresses DOR’s obligation to periodically review support orders to determine if modification is warranted, either on its own or at a party’s request. See § 409.2564(11), (12), Fla. Stat.

Based on the foregoing, DOR’s authority to seek modification to a child support order exists only when either party or the child is receiving public assistance, or when the obligor has failed to make support payments and DOR is called upon by the custodial parent to assist in enforcing a child support order. Here, although Mr. McLeod was required to make his child support payments through DOR’s disbursement unit under the divorce decree, and the trial court entered two contempt orders related to child support, Respondent never enlisted DOR’s assistance in her child support enforcement action, and DOR never instituted such an action. Instead, Respondent retained her own attorney. Although both parties sought modification of the child support order, by the time DOR appeared in November 2009, no enforcement action was pending then or when DOR filed an amended petition in 2010.

Before DOR first appeared in the case, this was a private post-dissolution dispute between former spouses concerning whether either party was entitled to modification of a child support order. Although our decision in Florida Department of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010), supports DOR’s position that it has standing to seek a downward modification of a child support order, even if neither party nor the child has received public assistance, our decision there does not support DOR’s reasoning here that a child support obligor can convert a private legal dispute into a Title IV-D matter by enlisting DOR’s assistance. This is especially true where none of the parties concerned is receiving or had been receiving public assistance; the payor is current on his obligations or no enforcement action is pending; or, as here, the custodial parent has never sought DOR’s assistance in enforcing a child support order.

DOR also contends that it had standing because it was providing the periodic review of support orders described above to Mr. McLeod “through the child support modification proceeding below.” This is a variation of the argument that DOR has standing simply by virtue of filing a petition. Either way, neither the case law nor any of the statutes relied upon by DOR support this expansive interpretation of DOR’s standing. Nor was standing conferred simply because the divorce decree ordered the non-custodial parent to make his child support payments through the State’s disbursement unit.

In its rehearing motion, DOR contends that, based on our original opinion, it would not have standing in the following situations:

1. Providing child support establishment services to the custodial parent in those circumstances in which neither the custodial parent nor child are receiving public assistance;
2. Providing paternity establishment services to the custodial parent in those circumstances in which neither the custodial parent nor child are receiving public assistance;
3. Providing child support modification services to the custodial parent in those circumstances in which neither the custodial parent nor child are receiving public assistance; such as in a post-dissolution of marriage action in which the custodial parent seeks an upward modification of the child support obligation that was established in what this Court refers to as ‘private legal dispute.’

This is an overbroad interpretation of the narrow holding of our opinion. First, neither of these scenarios was involved here. Rather, this ease involves a noncustodial parent seeking a downward modification of his child support obligation where neither of the parents, nor the dependent child, was receiving public support and the custodial parent was not requesting any assistance from DOR with respect to the non-custodial parent’s child support obligation. Second, to the extent it was possible to misconstrue our holding to foreclose DOR’s standing to assist a custodial parent seeking DOR’s assistance in seeking an upward modification of the noncustodial parent’s support obligation, that is not what we held, nor is it what we hold now. As for the other two scenarios envisioned by DOR in its motion, we express no opinion on DOR’s standing in those situations.

Consequently, the trial court’s dismissal of the modification action brought by DOR based on DOR’s lack of standing was not a departure from the essential requirements of law, even if the court’s reasoning was flawed. See D.R. Horton, Inc.-Jacksonville v. Peyton, 959 So.2d 390, 397-98 (Fla. 1st DCA 2007) (holding under “tipsy coachman” rule, when trial court reaches right result, but for wrong reasons, that decision will be upheld on appeal if there is any basis which would support judgment in record). This, in turn, obviates the necessity of addressing DOR’s contention that the court’s order also will result in irreparable harm that cannot be rectified on direct appeal.

Petition for Writ of Certiorari is DENIED.

BENTON, C.J., and SWANSON, J., concur.

      . We have jurisdiction pursuant to Article V, section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(2)(A). The order under review is non-final, because the trial court has not yet disposed of Respondent’s petition seeking modification of child support.

      . Section 409.2563(l)(f), Florida Statutes, defines a "Title IV-D case" as "a case or proceeding in which the department is providing child support services within the scope of Title IV-D of the Social Security Act.”

      . DOR also points to 42 U.S.C. section 654(25) in support of its position. This subsection requires that a state's plan
      provide that if a family with respect to which services are provided under the plan ceases to receive assistance under the State program funded under part A of this sub-chapter, the State shall provide appropriate notice to the family and continue to provide such services, subject to the same conditions and on the same basis as in the case of other individuals to whom services are furnished under the plan, except that an application or other request to continue services shall not be required of such a family and paragraph (6)(B) shall not apply to the family;....
      According to our review of the record, however, this subsection is not implicated in this case, because there is no evidence anyone involved here received public assistance.

      . 42 U.S.C. section 677(a) addresses state support guidelines.


source: Caselaw Access Project

author: CLARK, J.

license: Public Domain

text:
    Nick MOLFETTO, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D11-5398.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Nick Molfetto, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, C. Ian Garland, Assistant Attorney General, and Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   CLARK, J.

Nick Molfetto, a state prisoner, appeals the circuit court’s dismissal of his circuit court action for review of administrative disciplinary proceedings. The dismissal was based on the circuit court’s finding, after the Department of Corrections responded to the petition, that Molfetto had failed to exhaust his administrative remedies before filing the action. Because the record demonstrates that Molfetto properly exhausted his administrative remedies, the order dismissing the action is reversed.

The circuit court’s dismissal of a petition for review of administrative disciplinary action by the Department of Corrections for failure to exhaust administrative remedies is reviewed as an appeal, in contrast to the review of a circuit court’s appellate review on the merits of administrative disciplinary action, which is reviewed by this court under the more limited certiorari standard. See Thomas v. State, Florida Department of Corrections, 89 So.3d 300 (Fla. 1st DCA 2012); Mora v. McDonough, 956 So.2d 1203 (Fla. 1st DCA 2007). The standard of review of a circuit court’s order granting a motion to dismiss for failure to exhaust administrative remedies is de novo. See Serchay v. State Farm Fla. Ins. Co., 25 So.3d 652 (Fla. 4th DCA 2010); Wilson v. Orange County, 881 So.2d 625, 629 (Fla. 5th DCA 2004).

The record before us demonstrates that while serving his prison sentence in the custody of the Florida Department of Corrections, Appellant received an administrative disciplinary report for possession of narcotics and other violations of the prison disciplinary code. After investigation and a disciplinary hearing, the administrative disciplinary team found Appellant guilty of the rule violation. The disciplinary action decision was issued on February 11, 2011.

On February 28, 2011, the institutional grievance office received Appellant’s administrative appeal or “formal grievance,” filed pursuant to rule 33-103.006(2)(h), Florida Administrative Code. On March 7, 2011, this formal grievance was “returned without processing” because it “was not received within 15 calendar days of the date on which the incident or action being complained about occurred.” See Fla. Admin. Code R. 33-103.014(l)(e).

Appellant then filed his administrative appeal to the Secretary of the agency, pursuant to rule 33-103.007, Florida Administrative Code. One of Appellant’s arguments in his appeal to the Secretary was that he had timely filed his grievance on February 25, 2011, a Friday, and that the Secretary’s office stamped the appeal as “received” on February 28, 2011, a Monday. The Secretary’s response to this appeal stated that the institutional-level grievance was required to be “received within 15 days of the hearing” and that Appellant “had ample time to appeal” but that Appellant “did not meet that time frame.” The Response concluded that the administrative appeal was “being returned without action.”

Judicial review of the administrative proceedings was initiated by Appellant in the circuit court when he filed his complaint for writ of mandamus on April 18, 2011. He challenged the Department’s administrative disciplinary action on the basis that it was not supported by sufficient evidence to find him guilty of possession of narcotics. The Department’s response did not address the merits of Appellant’s complaint but sought dismissal of the action due to Appellant’s failure to exhaust his administrative remedies prior to filing his complaint. The circuit court dismissed the action on that ground.

Time frames applicable to prison inmate grievances are governed by rule 33-103.011, Florida Administrative Code. Under rule 33-103.011(l)(b)2., the deadline for receipt of Appellant’s institutional level grievance was 15 days after the disciplinary report ruling was issued on February 11, 2011, making the deadline Saturday, February 26, 2011. Rule 33-103.011(5) provides that when “the 15th day ... falls on a weekend or holiday, the due date shall be the next regular work day.” Thus, the deadline in this case was Monday, February 28, 2011, and this is the date Appellant’s institutional level grievance was received by the institutional office. Accordingly, it was timely. Appellant’s argument on this issue in his appeal to the Secretary preserved the issue of timeliness for later consideration. Under these circumstances, the circuit court’s dismissal of the action for failure to exhaust administrative remedies was error.

The order dismissing the circuit court action for failure to exhaust administrative remedies is reversed. This case is remanded for further proceedings, including the filing of any supplemental response by the Department as the circuit court deems appropriate.

BENTON, C.J. and MAKAR, J., concur.


author: PER CURIAM.

text:
    Catherine M. FRYM, Petitioner, v. FLAGSHIP COMMUNITY BANK; Michael R. Frym; Brooker Creek North III & IV Condominium Association, Inc., a Florida nonprofit corporation; and Bank of America, N.A., Respondents.
    No. 2D12-2908.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.

      J. Andrew Crawford, Saint Petersburg, for Petitioner.
    No «appearance for Respondents.
   PER CURIAM.

Catherine M. Frym seeks a writ of prohibition restraining the circuit court in and for Pinellas County from exercising jurisdiction in a foreclosure action over property located in Hillsborough County. “When it is shown that a lower court is without jurisdiction or attempting to act in excess of its jurisdiction, prohibition may be granted.” Sanders v. Laird, 865 So.2d 649, 651 (Fla. 2d DCA 2004) (citing English v. McCrary, 348 So.2d 293, 296 (Fla.1977)). Because we conclude that the trial court is acting within its jurisdiction, we deny the petition but write to explain our decision and clarify certain procedural concerns.

On March 2, 2006, Frym executed and delivered a Multipurpose Note and Security Agreement, a Mortgage and Security Agreement, a Second Mortgage and Security Agreement, and a Uniform Commercial Code Financing Statement to Flagship Community Bank (Bank). Specifically, the promissory note was secured by the following two mortgages: one on commercial property in Pinellas County and one on Frym’s personal residence in Hillsborough County. On May 15, 2009, the Bank filed a complaint in Pinellas County seeking to foreclose on each mortgage. Frym filed a motion to dismiss, alleging that the trial court lacked subject matter jurisdiction to foreclose on the mortgage encumbering land in Hillsborough County. Frym challenges the denial of that motion with her current petition for writ of prohibition.

In the petition, Frym claims that pursuant to section 47.011, Florida Statutes (2006), actions involving property shall only be brought in the county in which the property in litigation is located. This long-established “local action rule” specifically provides that “[t]he circuit court in this state, under our Constitution and laws, cannot by its officers take possession of property beyond its territorial limits.” Ga. Cas. Co. v. O’Donnell, 109 Fla. 290, 147 So. 267, 268 (1933). Furthermore, “[t]he local action rule is one of subject matter jurisdiction, not venue, and subject matter jurisdiction cannot be conferred by waiver or consent.” Hudlett v. Sanderson, 715 So.2d 1050, 1052 (Fla. 4th DCA 1998). However, an exception to the local action rule provides that “[w]hen a mortgage includes lands ... lying in two or more counties, it may be foreclosed in any one of said counties, and all proceedings shall be had in that county as if all the mortgaged land ... lay therein.” § 702.04, Fla. Stat. (2006). Finally, this exception can apply to both contiguous and noncontiguous real properties. See Penton v. Intercredit Bank, N.A., 943 So.2d 863, 864-65 (Fla. 3d DCA 2006).

Frym maintains that her situation does not fall under the exception to the local action rule and that thus the Bank is required to bring a separate action in Hillsborough County with respect to her personal residence there. To illustrate, Frym points to Hudlett, 715 So.2d at 1051, in which the Third District analyzed a situation involving three separate notes secured by three separate mortgages encumbering land in three separate counties. Addressing an action brought in Palm Beach County, the Third District held that the exception to the local action rule “is not applicable to [a] mortgage which on its face shows it encumbers only land in Broward County.” Id. at 1052 (footnote omitted). Here, Frym notes that, as in Hudlett, the mortgage at issue encumbers land only in Hillsborough County. Thus, Frym argues, the Pinellas County court lacks subject matter jurisdiction to foreclose on that mortgage because the plain language of section 702.04 does not apply when separate mortgages encumbering lands in separate counties are involved.

In addressing the motion to dismiss, the trial court distinguished the Hudlett case from Frym’s situation. Specifically, Hud-lett dealt with three separate notes secured by three separate mortgages, each encumbering land in three separate counties. Here, a single note is secured by two mortgages encumbering land in two separate counties. Primarily because this case involves only one transaction, the court denied the motion. In support, the court explained that the mortgage follows the debt and that thus the two mortgages here should be construed as one instrument.

We agree with the trial court’s reasoning and hold that this case does fall under the umbrella .of section 702.04 and should be handled accordingly for , the duration of the proceedings. Thus, we deny Frym’s petition for writ of prohibition.

Denied.

DAVIS, KHOUZAM, and MORRIS, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Ramanand J. DUKHARAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D10-5602, 2D11-3487.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.
    Rexford Darrow of Faett & Darrow, Naples, for Appellant.
   ALTENBERND, Judge.

Ramanand J. Dukharan appeals two orders disposing of four postconviction motions. We affirm the rulings as to three of the motions and remand for a hearing on the fourth motion.

In 2005 and 2006, Mr. Dukharan had sexual relations with a fifteen-year-old girl. He was over twenty-one years of age at the time. As a result of this sexual activity, he was charged with and convicted of two counts of lewd and lascivious battery in 2009. He received sentences of two years’ incarceration followed by ten years’ sex offender probation.

In his various motions and accompanying affidavits, Mr. Dukharan explains that his relations with the young woman resulted in the birth .of a child. He wants to care for the child and raise the child in a normal family setting. The young woman, who is legally his victim, is now an adult. She wants to reside with him and raise the child in a family setting. The defendant’s mother lives with him and is supportive of his plan for a multigenerational family in their home. But the conditions of Mr. Dukharan’s probation treat the woman as a victim and require that he have no contact with her or the child.

In case number 2D10-5602, Mr. Dukharan appeals an order denying his motion filed under section 943.04354, Florida Statutes (2010), for removal of the requirement that he register as a sexual offender. He was entitled to seek removal at this time because his offense occurred prior to July 1, 2007. See § 943.04354(3)(a)(l); cf. Clark v. State, 95 So.3d 986 (Fla. 2d DCA 2012). Nevertheless, he is considerably more than four years older than the young woman and, thus, is statutorily ineligible for this relief. See § 943.04354(1)(c); State v. Welch, 94 So.3d 631 (Fla. 2d DCA 2012).

In case number 2D11-3487, Mr. Dukharan appeals an order that first denies his motion to correct an illegal sentence. Simply stated, his sentences are not illegal. He next challenges the part of the order denying his motion to clarify sentence. The motion claims that he was not served with a copy of his order of probation until well after the sentencing hearing, but it does not allege anything in the order of probation that actually needs to be “clarified.”

Finally, he challenges the denial of his motion to rescind or modify the conditions of his probation. In this motion, he seeks modification of the conditions of probation to permit him to live as a family with the young woman and their child. The trial court treated the motion as one filed under Florida Rule of Criminal Procedure 3.800(a) or 3.800(c) and denied it without a hearing.

This motion, however, is actually a standard motion to modify conditions of probation, which the trial court is authorized to consider under section 948.03(2), Florida Statutes (2010). Cf. Stuart v. State, 988 So.2d 1287 (Fla. 2d DCA 2008) (reviewing a similar circumstance by certiorari). Mr. Dukharan has filed a facially sufficient motion to modify the conditions of his probation. The trial court erred by denying the motion without conducting a hearing and providing both Mr. Dukharan and the young woman, who is the victim, an opportunity to present their arguments for modification of the conditions of Mr. Dukhar-an’s probation.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and MORRIS, JJ., Concur.


text:
    Scott LYONS and Bradley Drake, Appellants, v. Tanois CHAMOUN, Appellee.
    Nos. 4D10-872, 4D10-2171.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Neil Rose of Berstein, Chaekman, Liss, & Rose, Hollywood, for appellants.
    Marlene S. Reiss of Marlene S. Reiss, Esq., P.A., Miami, for appellee.
   On Motion for Rehearing

PER CURIAM.

We grant the Appellants unopposed motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

In consolidated appeals, the defendants (the owner and driver of a car), challenge final orders awarding attorney’s fees and expert witness fees following a jury verdict in the plaintiffs favor. They argue the trial court erred in awarding those fees because the proposal for settlement (“PFS”) did not attach a release or sufficiently describe its terms. We reverse.

The plaintiff filed suit against the owner and driver of a car for injuries sustained in an auto accident. The plaintiff served the owner with a proposal to settle the case for $40,000 on August 13, 2004. The proposed settlement provided:

As a condition of this Proposal for Settlement, in exchange for the $40,000.00 hereinabove offered to settle this matter, Plaintiff, TANOIS CHAMOUN, will execute a full release of liability in favor of Defendant, BRADLEY DRAKE, and HIS affiliated insurance company, and a Stipulation for Voluntary Dismissal.

The plaintiff did not attach a release or describe its terms. Because the PFS was not accepted within thirty days of service, it was deemed rejected. Fla. R. Civ. P. 1.442(f)(1).

The jury returned a verdict for the plaintiff; the trial court entered a final judgment of $186,796.20, reserving jurisdiction for determination of attorney’s fees and costs. The plaintiff moved for attorney’s fees and costs under the PFS. The owner moved to strike the PFS, contending that it failed to state with particularity the relevant conditions and non-monetary terms of the PFS in conformity with section 768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442. The parties filed extensive memoranda regarding the validity of the PFS.

The trial judge heard arguments on the motion and entered an order denying the owner’s motion to strike the plaintiffs PFS. The trial court stated:

It was not until September 1, 2004 that Florida’s Fourth District held that if a proposal for settlement required an of-feree to execute a release, the release had to be attached to the proposal or summarized therein. Swartsel v. Publix Super Mkts., Inc., 882 So.2d 449 (Fla. 4th DCA [2004] ). Because Plaintiffs August 2004 Proposal for Settlement was formed before this September 1, 2004 ruling, this Court finds that Plaintiffs release did not have to be attached to the Proposal or summarized therein.

The trial court found the release sufficiently unambiguous and ultimately determined the reasonableness and appropriateness of the fees. The trial court awarded attorney’s fees in the amount of $141,475 with statutory interest and reserved jurisdiction to award expert witness fees. The owner and driver appeal that order in Case No. 4D10-872. The trial court subsequently awarded expert witness fees in the amount of $4520. The owner and driver separately appealed this order in Case No. 4D10-2171. We have consolidated these appeals.

We have de novo review of orders concerning section 768.79 and Florida Rule of Civil Procedure 1.442. Papouras v. Bellsouth Telecommunications, Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006).

Here, the PFS provided: “As a condition of this Proposal for Settlement, in exchange for the $40,000.00 hereinabove offered to settle this matter, Plaintiff, [TA-NOIS CHAMOUN], will execute a full release of liability in favor of Defendant, and HIS affiliated insurance company, and a Stipulation for Voluntary Dismissal.” Our supreme court has held that, if the release is not attached, then the PFS must satisfy the requirements of Rule 1.442 and eliminate any reasonable ambiguity about its scope. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). The Nichols court “agree[d] with those courts that have treated releases as conditions or nonmonetary terms that must be described with particularity” and concluded that Rule 1.442 “merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id. at 1078, 1079 (emphasis added). “If ambiguity within the proposal could reasonably affect the offer-ee’s decision, the proposal will not satisfy the particularity requirement.” Id. at 1079.

As the owner and driver argue on appeal, the critical ambiguity regarding the terms of the release in the PFS is its failure to define the parties included. The PFS does not state whether the driver is covered by the release. This term is essential for the owner because he is responsible for the driver’s negligence under the dangerous instrumentality doctrine. Even if State Farm, the owner’s insurer, is the unnamed insurance company in the release, it remains unclear whether “a full release of liability” includes a release of the driver. Without the actual release or a detailed description, the PFS fails to eliminate any reasonable ambiguity about its scope.

This case is similar to Papouras. There, the complaint alleged liability against BellSouth as owner of the vehicle under the dangerous instrumentality doctrine and vicariously for the negligence of the driver. Papouras, 940 So.2d at 479. Following a jury verdict for the plaintiff, the trial court entered final judgment against BellSouth, but denied plaintiffs motion for costs and attorney’s fees under a PFS. Id. at 479-80. “[T]he parties agree[d] the only basis [for the denial of fees and costs] was the lack of the requisite particularity required by rule 1.442.” Id. at 480.

We think it clear that when an offeror insists that an offeree sign a general release, the release becomes a stipulation or prerequisite of the contract. Even if the release does not constitute the essence of the settlement proposal— and thus a condition under subdivision (c)(2)(C) of the rule [Fla. R. Civ. P. 1.442] — at the very least it qualifies as a nonmonetary term under subdivision (c)(2)(D).

Id. (quoting Nichols, 932 So.2d at 1078-79). We concluded:

In this case, the proposal simply provided for the plaintiff to execute a full release without further detail. A copy of the release was not attached and no summary of the terms was included in the proposal. BellSouth argues, and we agree, that this proposed release lacked sufficient detail to eliminate any reasonable ambiguity about its scope. It failed to indicate which party was required to draft the release, and more importantly failed to indicate whether BellSouth’s employee, the driver of the other vehicle, would be released in exchange for the payment.
Just as our supreme court found in Nichols, the proposal for settlement in this case was too ambiguous to satisfy Florida Rule of Civil Procedure 1.442. We therefore affirm the trial court’s order denying the plaintiff attorney’s fees, pursuant to the plaintiffs proposal for settlement.

Id. at 480-81. Papouras is dispositive of the issue in this case. We therefore reverse and remand for the trial court to vacate the attorney’s fee award. Since we reverse the attorney’s fee award, we reverse the expert witness fee order relating to the attorney’s fee hearing as well.

Reversed and remanded,.

CIKLIN, GERBER and CONNER, JJ„ concur.

      . We also note that the driver was not served with the PFS, and thus the award should not have been entered against the driver regardless of the outcome of this appeal.

      . Swartsel was abrogated by State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So.2d 1067 (Fla.2006), which held that a summary of a proposed release is sufficient to satisfy Rule 1.442, provided that there was no reasonable ambiguity concerning its scope. We note that "[a]n appellate opinion explaining and applying the meaning of the law is applicable to all cases in progress and not yet final when it is released.” Rivera v. Publix Super Mkts., Inc., 929 So.2d 1184, 1185 (Fla. 4th DCA 2006).


author: TUTER, JACK B., JR., Associate Judge.

text:
    Daniel M. CAREY, Appellant, v. Michelle J. BATISTE, Appellee.
    No. 4D11-1135.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Chet E. Weinbaum, Fort Pierce, for appellant.
    Margaret M. Anderson, Vero Beach, for appellee.
   TUTER, JACK B., JR., Associate Judge.

The Appellant, Daniel Carey (“Father”), timely appeals an order denying his supplemental petition to modify a final judgment. The parties are parents of fourteen-year-old twins. The Appellee, Michelle Batiste (“Mother”), was awarded primary residence of the children in 2000. Subsequently, the parties have participated in bitter litigation over the children.

In 2010, the Father filed a supplemental petition to modify primary residence and child support obligations. The Father alleged the Mother was interfering with the Father’s relationship and access to the children. The joint pre-trial statement signed by both parties’ attorneys indicated “Relief Claimed": “Former Husband seeks modification of access and finding of contempt. Former Wife seeks finding of contempt and dismissal of petition to modify access.

At the hearing on the petition to modify, the following exchange took place during the Father’s testimony:

Father’s Counsel: And your second choice would be that they be allowed to travel to Maine for summer break and Christmas break?
The Father: Yes.
Mother’s Counsel: Your Honor, I’m going to object to that. That’s not what was pled, and therefore that’s something he didn’t ask for. He did not ask there be a modification on the prior order. Father’s Counsel: We asked for modification and access.
The Court: ... the petition requests that the children live with Dad in Maine?
Father’s Counsel: Yes, Your Honor.
The Court: And the proposed timeshar-ing plan also is based on the children living in Maine?
Father’s Counsel: Yes, Your Honor.
The Court: Sustain the objection.

After the hearing, the court entered an order denying the Father’s petition. The order reflects the court spoke with the minor children and that they “want to continue to live with their mother, continue in their school and remain with their friends.” The court found the Mother’s “continuing failure to comply with time-sharing constitutes a substantial change in circumstance.”

On appeal, the Father argues the trial court abused its discretion when it refused to consider the alternative of extended vacations with the Father in lieu of changing the primary residence. The Mother responds that the Father’s petition failed to request the alternative relief. We review orders regarding a petition to modify primary residence for an abuse of discretion. Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005).

The Father is correct that a trial court considering a change in primary residence may also consider a change in the timesharing arrangement. See Dodge v. Dodge, 578 So.2d 522, 522 (Fla. 4th DCA 1991). We have held that “[ojrdinarily, a trial court that is properly considering the custody of a child is also empowered to consider visitation as a necessary component of any custody arrangement. As in this case, a trial court may determine that a change in custody is not warranted, but increased visitation with the noncustodial parent may be. Hence, parties on notice that a change in custody is sought should also be on notice that the court may consider a change in the parties’ visitation arrangements.” Id. See also George v. George, 600 So.2d 1253, 1255 (Fla. 4th DCA 1992) (Polen, J., specially concurring) (citing Dodge in rejecting mother’s argument that court abused its discretion in awarding father increased visitation in absence of such request in pleading); Vanoy v. Johnson, 459 So.2d 453, 454 (Fla. 5th DCA 1984) (finding father was on notice of possibility of change in mother’s visitation where mother petitioned for change in primary custody).

The trial court erred in refusing to consider the Father’s testimony regarding a change in the timesharing arrangements. Because the Father requested a modification of primary residence, the court had jurisdiction to consider a modification of timesharing and the Mother had notice of that possibility. In fact, the parties’ pretrial stipulation indicated the Father sought a modification of access as a claim for relief.

We reverse and remand for the Court to consider the Father’s request for modification of time-sharing arrangements.

Reversed and remanded.

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


author: COHEN, J. PALMER, J.,

text:
    TRAPPER JOHN ANIMAL CONTROL, INC., etc., et al., Appellants, v. Lawrence M. GILLIARD, M.D., et al., Appellees.
    No. 5D10-1879.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.

      Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, Fort Lauderdale, for Appellees.
   COHEN, J.

This appeal arises out of an action brought under Florida’s Uniform Contribution Among Tortfeasors Act (“the Contribution Act”), section 768.31, Florida Statutes. In the underlying wrongful death action, the estate of Robert Cardini (“the estate”) sued Trapper John Animal Control, Inc. (“Trapper John”), for negligently spraying rat poison into an air duct, which Mr. Cardini then inhaled. Mr. Car-dini had been treated by Dr. Lawrence Gilliard before succumbing to the effects of the poison. The doctor was not named as a defendant in the wrongful death action.

Trapper John settled with the estate for $1 million and obtained a release from Katherine Rider-Cardini on February 11, 2002 (“the first release”). The first release provided in relevant part:

I, the undersigned, Katherine L. Rider-Cardini, individually, and as the Personal Representative of the Estate of Robert G. Cardini (“Releasor”), for and in consideration of payment of the sum of One Million Dollars and NO/ 100 ($1,000,000.00), receipt of which I hereby acknowledge, do ... hereby remise, release, acquit and forever discharge Trapper John Animal Control, Inc., d/b/a Trapper John Rodent and Animal Specialist, LIPCA, Inc., American Safety Risk Retention Group, as well as any and all of their principles [sic], subsidiaries, partners, officers, directors, agents, shareholders, representatives, assigns and employees (“Re-leasees”), of and from any and all claims, losses, ... any and all manner of action and actions, cause and causes of action, suits ... arising from any act, omission or matter that is the subject of [the wrongful death action].[]

The release did not mention Dr. Gilliard and the settlement was approved by the trial court in the estate’s probate case. Some fourteen months later, Trapper John procured from Ms. Rider-Cardini a second release that specifically discharged Dr. Gil-liard’s liability. Dr. Gilliard was not involved in providing consideration for, or otherwise procuring, the second release. That release provided in pertinent part:

Katherine L. Rider-Cardini, individually, and as the personal representative of the Estate of Robert G. Cardini (“Releasor”), for and in consideration of payment of the sum of Ten Dollard [sic] ($10.00) and other good and valuable consideration, receipt of which is hereby acknowledged, does hereby remise, release and forever discharge Lawrence M. Gilliard, M.D., ... from any and all actions, claims and demands ... arising on account of or in connection with any medical treatment rendered to Robert G. Cardini as a consequence of an accident, occurrence, incident or event that [was the subject of the wrongful death action]....

Subsequently, Trapper John sought contribution from Dr. Gilliard under the Contribution Act, alleging that the doctor had negligently treated Mr. Cardini. Dr. Gilliard moved for summary judgment, claiming, inter alia, that Trapper John was not entitled to contribution because the settlement between Trapper John and the estate did not extinguish Dr. Gilliard’s liability. After a hearing, the trial court granted final summary judgment in favor of Dr. Gilliard. The court ruled that the first release was unambiguous and did not extinguish Dr. Gilliard’s liability to the estate, that the second release was not connected to the first release and original agreement, and that Trapper John’s contribution claim was barred by the statute of limitations. This appeal followed.

The Contribution Act gives a settling tortfeasor a right of contribution against other joint tortfeasors. Section 768.31(2)(a), Florida Statutes (2003), provides: “[Wjhen two or more persons become jointly or severally liable in tort for the same ... wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of thepi.” This right, however, is subject to a caveat: “A tortfea-sor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the ... wrongful death is not extinguished by the settlement....” § 768.31(2)(d), Fla. Stat. Additionally, when a release is given in good faith to one of two or more persons liable in tort for the same wrongful death, the release does not discharge any of the other tortfeasors unless its terms so provide. § 768.31(5)(a), Fla. Stat. (2003). Thus, a settling tortfeasor “is only entitled to contribution if the settlement also releases the tortfeasor from whom contribution is sought.” Woods v. Withrow, 413 So.2d 1179, 1181-82 (Fla.1982).

In the instant case, the trial court properly found the first release settled only Trapper John’s liability and left open the estate’s right to pursue any claim for medical malpractice against Dr. Gilliard. The language of the release clearly and unambiguously settled Trapper John’s liability. See Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006) (stating exculpatory clauses relieving party from liability must be clear and unequivocal). While the release could have discharged Dr. Gilliard by either specifically naming him or referring to him through use of “all persons” language, it failed to do so. See Hester v. Gatlin, 332 So.2d 660, 662 (Fla. 2d DCA 1976) (finding “any and all other persons” released unnamed joint tortfeasor).

Trapper John’s attempt to alter the terms of the first release by parol evidence, in the form of deposition testimony as to its attorney’s intentions and the proffer of a second release, did not raise a genuine issue of material fact. The second release, prepared more than a year later, does not refer to or otherwise describe the original release, nor does it include the same parties or subject matter. See OBS Co. v. Pace Constr. Corp., 558 So.2d 404, 406 (Fla.1990) (discussing generally rule for construing two or more documents together as a single contract); see also Citicorp Real Estate, Inc. v. Ameripalms 6B GP, Inc., 633 So.2d 47, 49 (Fla. 3d DCA 1994) (stating writings are construed together when they are part of a “contemporaneous” transaction, which “has been interpreted as so approximate in time as to grow out of, elucidate and explain the quality and character of the transaction, or an occurrence within such time as would reasonably make it part of the transaction.” (quotation omitted)). As such, it is not necessary to construe the two releases together to infer the parties’ intent as to the first release. “[Cjlear and unambiguous terms of a release may not be changed upon a claim of unilateral mistake where that mistake results solely from the want of due care and diligence.... ” Plumpton v. Cont’l Acreage Dev. Co., 830 So.2d 208, 211 n. 3 (Fla. 5th DCA 2002) (quoting Dean v. Bennett M. Lifter, Inc., 336 So.2d 393, 395 (Fla. 3d DCA 1976)).

We agree that the trial court violated Trapper John’s due process rights by granting summary judgment on the basis of the statute of limitations. Not only did Dr. Gilliard’s motion for summary judgment not raise the statute of limitations defense, his counsel specifically stated that he would not be arguing the expiration of the statute of limitations at that hearing. Given our resolution of the first issue, however, that issue becomes moot.

AFFIRMED.

SAWAYA, J., concurs.

PALMER, J., dissents, -with opinion.

PALMER, J.,

dissenting.

I respectfully dissent because genuine issues of material fact exist in the record as to whether the settlement between the parties extinguished Dr. Gilliard’s liability to the estate. Because the first release does not indicate that it incorporates all terms of the settlement, other evidence could be presented to establish that another term of the settlement was a release of Dr. Gilliard. Trapper John presented such evidence — the second release and the testimony of its attorney. I would reverse the trial court’s entry of summary judgment.

      . The record does not disclose the relationship of LIPCA, Inc., to the case. American Safety Risk Retention Group was Trapper John's insurer.


author: ORFINGER, C.J.

text:
    Annie R. BISHOP, as Personal Representative of the ESTATE OF Robert L. RAMSAY, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellee/Cross-Appellant.
    No. 5D11-2004.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2012.

      Celene H. Humphries, Steven L. Bran-nock, Sarah C. Pellenbarg and Tyler K. Pitchford, of Brannock & Humphries, Tampa; Brent R. Bigger and John Hamilton, of Abrahamson & Uiterwyk, Tampa, for AppellanVCross-Appellee.
    Benjamin H. Hill, III, Troy A. Fuhrman and Marie A. Borland, of Hill, Ward & Henderson, P. A., Tampa; Stephanie E. Parker, John F. Yarber and John M. Walker, of Jones Day, Atlanta, Georgia, for Appellee/Cross-Appellant, R.J. Reynolds Tobacco Company.
    Elan M. Nehleber, Karen C. Dyer and Cynthia M. Christian, of Boies, Schiller, & Flexner LLP, Orlando; William P. Ger-aghty and Geri E. Howell, of Shook, Hardy & Bacon, L.L.P., Miami; Geoffrey J. Michael, of Arnold & Porter LLP, Washington, District of Columbia, for Appel-lee/Cross-Appellant, Philip Morris USA, Inc.
   ORFINGER, C.J.

Annie R. Bishop (“Appellant”), as personal representative of the estate of Robert L. Ramsay (“Decedent”), appeals the trial court’s order granting summary judgment in favor of R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. (collectively “Appellees”) in this Engle-progeny case. Appellant’s amended complaint alleged that as a result of smoking Appellees’ cigarettes, Decedent suffered from smoking-related medical conditions that resulted in his death. Appellees moved for summary judgment, claiming that the statute of limitations barred Appellant’s causes of action because Decedent was not an Engle class member and, as a result, was not entitled to its tolling benefit. On cross-appeal, Appellees argue that the trial court misperceived the preclusive effect that the Florida Supreme Court intended for the Engle jury findings (“Phase I findings”). We reverse the trial court’s order granting summary judgment, but decline to rule on the issue raised in the cross-appeal. We also affirm, without comment, the trial court’s discovery order challenged on appeal.

Engle and its Progeny

In 1994, a nationwide smokers’ class action lawsuit was filed against numerous cigarette companies and tobacco industry organizations (“Engle defendants”), including Appellees, for injuries allegedly caused by smoking. The class originally encompassed “[a]ll United States citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA 1996) (“Engle I”). In Engle I, the Third District affirmed the trial court’s class certification, but limited it to include only Florida citizens and residents.

As directed by Engle I, on November 21, 1996, the trial court issued an amended order recertifying the more limited class (“Engle class”). The trial court then divided the trial proceedings into three phases. Phase I consisted of a trial to consider “common issues relating exclusively to the [Engle ] defendants’ conduct and the general health effects of smoking.” At the conclusion of Phase I, the jury rendered a verdict against each of the Engle defendants, making specific factual findings of wrongful conduct. In Phase II, the same jury determined that the Engle defendants’ conduct was the legal cause of injuries to the three class representatives, and awarded compensatory and punitive damages. However, before the Phase III proceedings began, the Engle defendants appealed the Phase II verdicts. In Liggett Group Inc. v. Engle, 853 So.2d 434, 440-41 (Fla. 3d DCA 2003) (“Engle II”), the Third District reversed the final judgment with instructions to decertify the class. The class representatives then appealed to the Florida Supreme Court.

In Engle v. Liggett Group, Inc., 945 So.2d 1246, 1268 (Fla.2006) (“Engle III”), the supreme court prospectively decerti-fied the class, finding class treatment was not appropriate for Phase III “because individualized issues such as legal causation, comparative fault, and damages predominate.” The court allowed all class members to proceed with individual lawsuits if filed within one year of its mandate, specifically approving and giving res judicata effect to most of the Phase I findings in the individual suits. In its opinion, the court held that November 21, 1996, the date that the trial court issued its class recertification order, was the cut-off date for Engle class inclusion. Id. at 1274-75.

Present Case

Decedent was born in 1940 and lived most of his adult life in Virginia. He moved to Florida in August 1990, where he bought a home, registered his vehicle, and obtained a Florida’s driver’s license and voter registration card. In December 1991, Decedent was diagnosed with lung cancer. In May 1992, failing to respond to treatment in Florida, his doctors advised him that he had weeks to live, and told him to go wherever he wanted to spend his remaining days. Appellant took Decedent “to Virginia Beach for him to die.” Decedent died on June 14, 1992, at Virginia Beach General Hospital. Decedent’s death certificate lists a Virginia address, his funeral service was held in Virginia, and he is buried in Virginia.

As required, Appellant filed the underlying wrongful death suit within a year of Engle Ill’s mandate. Appellees moved for summary judgment on all claims, arguing that the statute of limitations barred Appellant’s suit because Decedent was not a member of the Engle class, and thus, was not entitled to Engle Ill’s tolling benefit. Appellees argued that to prove Engle class membership, Appellant had to show, inter alia, that Decedent was a Florida citizen and resident at the time of his death. However, according to Appellees, Decedent was a citizen and resident of Virginia, not Florida, at the time of his death because he left Florida with the intention of living the remainder of his life in Virginia. Appellant disagreed, contending Decedent’s inclusion in the Engle class was supported by his Florida residency or citizenship at the time that he suffered from a smoking-related illness, irrespective of his residence at his time of death.

After a hearing, the trial court granted Appellees’ motion for summary judgment, finding, in relevant part:

To be included in the Engle class, [Decedent] must have been “a Florida resident” at the time of his death in June of 1992, nineteen years ago.
[Appellant’s] opposition fails because it is legally impossible for a person to be a resident of a state to which he or she intends never to return. [Appellant] conceded clearly and unequivocally that [Decedent] left Florida in May of 1992 and never intended to return. Based on undisputed facts, the Court concludes that [Decedent] was not a resident of Florida at the time of his death. At the time of his death he was a resident of Virginia where he was born, raised and lived most of his adult life, and where he died and is buried.
The Engle class was limited to “all Florida residents” fitting the class description as of the trial court’s order dated November 21, 1996. [Decedent] died prior to November 21, 1996, and the only logical application of this requirement means that [Decedent] must have been a Florida resident at the time of his death. If [Decedent] was not a Florida resident at the time of his death in June of 1992, he logically cannot qualify as a member of the clas,s.

Analysis

This Court reviews summary judgment orders de novo, affirming only when there are no genuine issues of material fact and the moving party is entitled to summary judgment as a matter of law. See The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The party moving for summary judgment has the burden to conclusively establish the non-existence of any genuine issue of material fact. City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000). Issues of fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence in the record, including any supporting affidavits, must be construed in the light most favorable to the non-moving party. If the record reflects any genuine issue of material fact, summary judgment must be reversed. Dreggors v. Wausau Ins. Co., 995 So.2d 547, 549 (Fla. 5th DCA 2008).

In Engle III, the supreme court held that the Engle class included Florida residents who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine, and that the “cut-off’ date for class inclusion was November 21, 1996. In considering whether certain putative class representatives qualified as class members, the supreme court, looking to the plain language of the trial court’s revised class description, held that the “critical event [to qualify for Engle class membership] is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Engle III, 945 So.2d at 1276. We believe it necessarily follows that inclusion in the Engle class requires Florida residence or citizenship when the disease or condition first manifests itself, not at the time of death. See Rearick v. R.J. Reynolds Tobacco Co., 68 So.3d 944, 945 (Fla. 3d DCA 2011) (holding qualification for membership in Engle class requires plaintiff to show that decedent was Florida resident at time of medical diagnosis of smoking-related disease or at time evidence of causal relationship of cause of action had otherwise manifested itself). Appellees argue that Rearick is distinguishable because in addition to the time of disease manifestation, Engle class membership requires Florida residency either on November 21, 1996, or at the time of his death, if that occurred first. We disagree. Engle III clearly holds that November 21, 1996, is a cut-off date for class inclusion and nothing more.

On cross-appeal, Appellees argue that the trial court misconstrued the preclusive effect that the supreme court gave to the Phase I findings. Below, Appellees filed a motion asking the trial court to determine the role of the Phase I findings, arguing that the Phase I findings approved in En-gle III did not establish the specific wrongful conduct or dangerous product that caused Decedent’s harm and Appellant could not use the Phase I findings to prove legal causation. Appellees further argue that giving the Phase I findings any res judicata effect would violate their federal due process rights. The trial court declined to rule on the merits of the matter, denying the motion. We decline to address this interlocutory ruling. Appellees will, before trial, have the opportunity to renew their motion. M.S. v. Nova Se. Univ., 881 So.2d 614, 620 (Fla. 4th DCA 2004); Grier v. Bankers Land Co., 539 So.2d 552, 553 (Fla. 4th DCA 1989).

AFFIRMED in part; REVERSED in part.

LAWSON, J., and ROUSE, JR., R.K. Associate Judge, concur.

      . The court gave res judicata effect to the Phase I findings to which the jury answered "yes” to the following: (1) cigarettes cause specifically enumerated diseases; (2) nicotine is addictive; (3) all of the defendants placed cigarettes on the market that were defective and unreasonably dangerous; (4) all of the defendants made a false or misleading statement of material fact with the intention of misleading smokers; (4)(a) all of the defendants concealed or omitted material information, not otherwise known or available, knowing that the material was false or misleading, or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both; (5) all of the defendants agreed to misrepresent information relating to the health effects of cigarettes or the addictive nature of cigarettes with the intention that smokers and the public would rely on this information to their detriment; (5)(a) all of the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment; (6) all of the defendants sold or supplied cigarettes that were defective; (7) all of the defendants sold or supplied cigarettes that at the time of the sale or supply did not conform to representations of fact made by the defendants; (8) all of the defendants were negligent.

      . Appellant also contended that there was a question of material fact as to Decedent’s residence at the time of his death, precluding summary judgment, offering his Florida driver’s license, voter registration card, homestead exemption and Florida probate proceedings as evidence.

      . Even if Decedent was required to be a Florida resident at the time of his death, a jury question would remain. There is no doubt Decedent was a Florida resident prior to his final departure to Virginia. He went to Virginia to die, which he did several weeks later, not to establish a new life. That falls far short of establishing new residence.

      . The Florida Supreme Court is currently considering the merits of Appellees’ argument. See Philip Morris USA, Inc. v. Douglas, 83 So.3d 1002 (Fla. 2d DCA 2012), review granted, SC12-617 (Fla. May 15, 2012).


text:
    PHILIP MORRIS USA, INC., Petitioner, v. Mary BROWN, as Personal Representative of the Estate of Rayfield Brown, as surviving spouse, and on behalf of the estate, Respondent.
    No. 1D12-3090.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2012.

      Gary L. Sasso and Joseph Hagedorn Lang, Jr. of Carlton Fields, P.A., Tampa, and Kenneth J. Reilly of Shook, Hardy & Bacon, LLP, Miami, for Petitioner.
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, John S. Kalil of the Law Offices of John S. Kalil, P.A., Jacksonville, and Leslie J. Bryan of Doffermyre, Shields, Canfield & Knowles, LLC, Atlanta, GA, for Respondent.
   PER CURIAM.

By petition for writ of prohibition, Philip Morris USA, Inc., seeks review of the trial court’s order denying petitioner’s motion for disqualification. We have jurisdiction. See, e.g., Lusskin v. State, 717 So.2d 1076, 1077 (Fla. 4th DCA 1998). By order entered on June 27, 2012, we granted the petition for writ of prohibition and directed the lower tribunal to appoint a successor judge. We now write to explain our reasoning.

This Engle -progeny wrongful death action was brought against Philip Morris in November 2007. After nearly five years of fiercely contested litigation, the trial of this action began on June 11, 2012, with Circuit Judge A.C. Soud presiding. On June 19, 2012, a hearing was held outside the presence of the jury regarding the admissibility into evidence of a 1971 videotape of Philip Morris’ former CEO, Joseph Cullman, in which Cullman suggests that lower birth weights caused by smoking may actually be desirable to some women who “might prefer having smaller babies.” During the hearing, Judge Soud made several statements which Philip Morris characterizes as being highly inflammatory and raising in Petitioner a reasonable fear of judicial bias. We agree that these remarks warrant Judge Soud’s disqualification.

At the hearing, Judge Soud made several remarks comparing Philip Morris’ former CEO to Dr. Josef Mengele, the infamous Nazi war criminal known as the “Angel of Death.” Philip Morris argues that these remarks have caused it to reasonably question Judge Soud’s ability to remain impartial in this matter. The respondent, Mary Brown, asserts that, considered in context, the remarks demonstrate that Judge Soud does not himself believe Mr. Cullman to be comparable to Dr. Mengele. Instead, as Brown argues, Judge Soud was simply observing that this is a comparison that the jury could potentially draw.

The record before us reflects that Judge Soud’s unedited remarks are, as follows:

“Let me tell you what I’m thinking, where I’m leaning. I’m leaning about letting it in to show — I think it bears on — I’m not saying they are. I’m saying what one of the possible verdicts could be in this case. And if they were to find liability on the substantive charge, this type of statement could be used to assess punitive damages, because what it shows, when considered — and I’m going to use a phrase that one of my mentors used when I came on the bench in 1981, a great judge here in Duval County. “Whenever there are questions, legal questions — you know, like just like pulling this out of thin air, you would have serious questions. But when you look with the totality of the circumstances— old Judge Goodfriend — when you — he says on those tough issues of evidence or whatever, look at the totality of the evidence, what has come in before, what is anticipated.
“And when you consider in the light of all the evidence in the case, what this jury could find — I’m not saying they are, but what they could find is that Philip Morris has a very callous attitude toward people’s lives, toward serious illnesses and death that can come on their customers; that it’s been going on, at least our time, since the '40s, late '40s and '50s; that when you hear some of the evidence — that’s what I’m considering, some of the totality of circumstances, some of these memoranda that talk about concealing it, finding excuses for it.
“And then this gentleman — this gentleman says — it almost reminds me of Dr. Mengele — I’m not saying he is — of almost Dr. Mengele during World War II that wanted to use chemicals and different type things to alter — genetic altering of people.
“I’m not saying it’s that serious, but what I am saying, if you listen to his attitude, his attitude would be, ‘Well, yes, we injected nicotine into these ladies, and — these pregnant young women — and we know they’re going to have small babies,’ and therefore it sort of justifies it.
“And that attitude is reprehensible. It may be that some of the young ladies, pregnant ladies that he wanted to give— they’re giving their cigarettes to, the jury could find that they — instead of a cheerleader, they’d like a Tony Boselli. “And it’s — to take his attitude, it’s ‘we know we’re dealing with a bad side. You may — smoking our product may give you a small child.’ It’s almost outside alteration of the genetic structure of the baby. And I think it’s permissible.
“Now, that’s where I’m strongly inclined to go.”

Philip Morris orally moved to disqualify Judge Soud. Judge Soud denied the motion on the record, stating:

“Your motion’s overruled — motion’s denied and objection’s overruled. And if it gets that far, they will say I’m making— I’m the one hearing the case and the record is in front of me. It’s replete.”

On June 20, 2012, Philip Morris made a renewed motion for disqualification in writing, which was denied the same day. The following morning, June 21, 2012, Philip Morris petitioned this court for prohibition.

As an initial matter, we note that this is Philip Morris’ first motion for disqualification. Thus, if the motion to disqualify was legally sufficient, under Florida Rule of Judicial Administration 2.330, Judge Soud was required to enter an order of disqualification. The standard of review for the legal sufficiency of a motion to disqualify is de novo. See R.M.C. v. D.C., 77 So.3d 234, 236 (Fla. 1st DCA 2012). “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id. (quoting MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990)).

Our de novo review of the motion below shows that it was legally sufficient to warrant disqualification. The petitioner is not seeking disqualification because the trial judge admitted into evidence the 1971 video of the petitioner’s former CEO. Rather, disqualification was sought based on statements made by the trial judge to explain his ruling and, then, to explain his statements. We find the trial judge’s statements were so inflammatory that a party would be placed in reasonable fear of judicial bias sufficient to warrant disqualification.

Although Judge Soud employed qualifying statements, such as “I’m not saying it’s that serious” or “I’m not saying he is,” we believe that a reasonably prudent person would nevertheless be placed in fear of judicial bias. Put simply, no amount of qualifiers negate the fact that the trial judge made the connection between Petitioner’s former CEO and a Nazi war criminal, and remarked that this would be a plausible comparison for the jury to draw. Moreover, the transcript makes it clear that Judge Soud himself was, reminded of Dr. Mengele by Mr. Cullman’s remarks and that he was not merely speculating on what the jury might conclude.

Petition granted.

VAN NORTWICK, LEWIS, and THOMAS, JJ., Concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . Dr. Mengele is best known for conducting horrific experiments on human subjects in the Auschwitz concentration camp during the Second World War. Among numerous other experiments, he experimented on over 1,500 sets of twins to research the effects of various bacteria, chemicals, and viruses on the human body. In these experiments, he injected one twin with the substance to be tested and then performed autopsies on both twins to compare the differences. See In the Matter of Joseph Mengele, Report to the Attorney General of the United States, Office of Special Investigations, Criminal Division (October 1992) 1, http://www.justice.gov/crimi nal/hrsp/archives/1992/10-01-92mengele-rpt. pdf ("Mengele was also notorious for performing grotesque pseudo-medical experiments on prisoners — children and adults alike — especially those who were twins.”); and Lucette Matalón Lagnado and Sheila Cohn Dekel, Children of the Flames: Dr. Josef Mengele and the Untold Story of the Twins of Auschwitz (Penguin 1992) 29-33, 70.

      . Judge Soud’s remark that "it [the videotape] almost reminds me of Dr. Mengele” makes this clear. (Emphasis added).


author: SCHWARTZ, Senior Judge.

text:
    Nadia GARCON and Joshua D. Robinson, Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D11-925.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2012.
    Suarez & Taylor, and Stephen A. Taylor; Burlington & Rockenbach and Nichole J. Segal, West Palm Beach, for appellants.
    James H.K. Bruner, Sr., Adam J. Stal-lard, Tallahassee, and Michael A. Kolcun, Jr., Jacksonville, for appellee.
    Before ROTHENBERG and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   On Appellants’ Motion for Rehearing and/or Certification

SCHWARTZ, Senior Judge.

Upon consideration of the appellants’ post-opinion motion, we withdraw the opinion of June 13, 2012 and substitute the following in its place. The motion is considered as directed to the substituted opinion and is otherwise denied.

Robinson suffered a devastating gunshot injury which rendered him totally and permanently disabled. After the. Medicaid program had expended the concededly reasonable amount of $244,590.57 for his past medical expenses, he received a $1 million settlement from a tortfeasor which was stipulated to represent compensation only for past and future medical expenses and nothing for any intangible elements of damage for which Medicaid would not have been entitled to reimbursement. The issue in this case involves the extent of Medicaid’s lien on the settlement. The trial court correctly held, on undisputed facts, that the extent of the lien was the $244,590.57 already expended by the program. This decision was, again undisput-edly, in complete accordance with section 409.910(1), (ll)(f), Florida Statutes, which provides:

409.910 Responsibility for payments on behalf of Medicaid-eligible persons when other parties are liable.—
(I) It is the intent of the Legislature that Medicaid be the payor of last resort for medically necessary goods and services furnished to Medicaid recipients. All other sources of payment for medical care are primary to medical assistance provided by Medicaid. If benefits of a liable third party are discovered or become available after medical assistance has been provided by Medicaid, it is the intent of the Legislature that Medicaid be repaid in full and prior to any other person, program, or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or other creditors paid. Principles of common law and equity as to assignment, lien, and subrogation are abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources. It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources.
(II)(f) Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party, the amount recovered shall be distributed as follows:
1.After attorney’s fees and taxable costs as defined by the Florida Rules of Civil Procedure, one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid.
2. The remaining amount of the recovery shall be paid to the recipient.
3. For purposes of calculating the agency’s recovery of medical assistance benefits paid, the fee for services of an attorney retained by the recipient or his or her legal representative shall be calculated at 25 percent of the judgment, award, or settlement.

Relying on Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), appellant argues for reversal essentially upon the ground that this section is pre-empted by federal law and that a Florida trial court is obliged to “allocate” any settlement based upon a “fair evaluation” of the plaintiffs injuries, which his purported “expert” testified would be over $8 million, between past and unreimbursable future Medicaid payments and between medical expenses and intangibles. We entirely disagree.

Like every Florida authority which has considered the precise issue, we hold that section 409.910(1)(11)(f) is not federally pre-empted and is, as the lower court held, fully effective and enforceable. See R.J. v. Azia, No. 09-21043-CIV, 2010 WL 5140591 (S.D.Fla. Nov. 8, 2010), aff'd, 2010 WL 5341814 (S.D.Fla. Dec. 9, 2010); Scharba v. Everett L. Braden, Ltd., No. 8-07-cv-1294-T-33EAJ, 2010 WL 1380121 (M.D.Fla. Mar. 31, 2010); Russell v. Agency far Health Care Admin., 23 So.3d 1266 (Fla. 2d DCA 2010); Baby Angela ex rel. Elsass v. Bryson, No. 2D09-824, 2010 WL 655204 (Fla. 2d DCA Feb. 24, 2010) (per curiam affd, citing Russell); Storey ex rel. Storey v. Hickcox, 44 So.3d 600 (Fla. 1st DCA 2010) (per curiam aff'd, citing Russell); Smith v. Agency for Health Care Admin., 24 So.3d 590 (Fla. 5th DCA 2009). Moreover, as these authorities indicate, there is nothing in the Ahlborn case which is contrary to this position. Ahlborn struck down an Arkansas statute to the extent that it allowed for Medicaid recovery that could impinge on an entire plaintiffs award and not merely past medical damages for which Medicaid may be reimbursed. Indeed, Ahlbom specifically recognized that even when a settlement is not allocated-as was this one-entirely to a recovery amount representing medical damages, a state was free to adopt “special rules and procedures” to fix the lien. Id. at 288 n. 18, 126 S.Ct. 1752. The Florida statute is just such a “special rule.” See Tristani ex rel. Karnes v. Richman, 652 F.3d 360 (3d Cir.2011); Andrews ex rel. Andrews v. Haygood, 362 N.C. 599, 669 S.E.2d 310 (2008), cert. denied, Brown v. N.C. Dep’t of Health & Human Servs., _ U.S. _, 129 S.Ct. 2792, 174 L.Ed.2d 291 (2009); State Dep’t of Health & Welfare v. Hudelson, 146 Idaho 439, 196 P.3d 905 (2008).

Affirmed.


author: MARSTILLER, J.

text:
    Bernard PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0610.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Donna A. Gerace and Angela R. Hensel, Assistant Attorneys General, Tallahassee, for Appellee.
   MARSTILLER, J.

Bernard Parks (“Appellant”), a sex offender, appeals the denial of his dispositive motion to dismiss an information charging him with failing to notify authorities that he had changed or vacated his permanent residence, a requirement for all sex offenders under section 943.0435(4), Florida Statutes. Appellant argues that the State did not make a prima facie showing that he violated the statute because the undisputed facts failed to establish both that he vacated his registered residence and that he was residing elsewhere. We disagree and affirm.

On June 23, 2011, Appellant was released from prison and, in compliance with section 943.0435, the sex offender registration statute, informed the proper authorities that his permanent address would be 609 Allen Avenue, Panama City, Florida, 32401, a local rescue mission. Panama City Police Officer Bethlehem conducted address verifications for Appellant on June 27, 2011, and July 1, 2011. Both attempts were unsuccessful. Officer Bethlehem then spoke with Mission Client Advocate Jack McCord, who provided records indicating Appellant had spent the night in the shelter only once, June 25, 2011, since his release from prison. Officer Bethlehem also spoke with additional staff and clients at the shelter, none of whom knew Appellant’s current location. Based on these facts, the State charged Appellant with failing to comply with the registration requirements of section 943.0435(4), Florida Statutes (2011).

After conducting discovery, Appellant moved to dismiss the information, asserting that there were no material facts in dispute, and that the undisputed facts do not establish a prima facie case of guilt. In the sworn motion, Appellant alleged, inter alia:

11. Mr. McCord stated that he is the manager of the Day Center at the Rescue Mission ... Mr. McCord explained the documentation that was provided to Ofc. Bethlehem is the recorded times when the Defendant utilized available resources. Mr. McCord works only during the day and is not present at night to verify whether or not the Defendant is staying in the Rescue Mission or sleeping outside the Mission. The Rescue Mission has limited space available for sleeping. Clients who do not utilize the Emergency Shelter resource often sleep outside of the Rescue Mission on the property. There is Rescue Mission staff who will patrol the grounds of the mission and may “run off’ the clients and the clients may return to the property after being “run off’. The staff, however, does not document who are sleeping outside on the grounds of the Rescue Mission. The last time defendant utilized the Rescue Mission’s resource of Emergency Shelter was June 25, 2011.
12. There is no evidence offered that Defendant lived in any other place than 609 Allen Avenue.

The trial court denied the motion to dismiss, and Appellant thereafter pled no contest to the charge, reserving the right to appeal the denial of his dispositive motion.,

Under Florida Rule of Criminal Procedure 3.190(c)(4), a defendant may-move to dismiss an indictment or information if “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” The State is not required to pre-try its case in defense of a motion to dismiss, but need only present sufficient facts that, when viewed in a light most favorable to the State, show that a reasonable jury could find in its favor. See State v. Terma, 997 So.2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, “the state is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant”).

Here, the information that Appellant moved to dismiss charged him with violating section 943.0435(4), Florida Statutes (2011), which provides, in pertinent part:

(a) [Wjithin 48 hours after any change in the [sexual] offender’s permanent, temporary, or transient residence ... the offender shall report in person to a driver’s license office....
(b) A sexual offender who vacates a permanent, temporary, or transient residence and fails to establish or maintain another permanent, temporary, or transient residence shall, within 48 hours after vacating the permanent, temporary, or transient residence, report in person to the sheriffs office of the county in which he or she is located. The sexual offender shall specify the date upon which he or she intends to or did vacate such residence.... The sexual offender must provide an address for the residence or other place that hé or she is or will be located during the time in which he or she fails to establish or maintain a permanent or temporary residence.

The facts the State relied on showed that Appellant’s only documented stay at the Rescue Mission was June 25, 2011, and that Officer Bethlehem searched there for Appellant on two occasions but did not find him. In addition, neither staff nor other clients of the facility had seen Appellant there since June 25, 2011, or knew his whereabouts as of July 1, 2011. Viewed in the light most favorable to the State, we conclude that the facts and reasonable inferences show Appellant had vacated the Rescue Mission.

Relying on Robinson v. State, 6 So.3d 677 (Fla. 1st DCA 2009), Appellant contends that the State also was required to show he was not sleeping on the grounds of the Rescue Mission in order to establish a prima facie case of guilt. But that case was in a different procedural posture than the one now before us, and is, for that reason, distinguishable. In Robinson, we held that the State failed to rebut the defendant’s testimony at trial that he had been sleeping for two weeks on the sidewalk outside the shelter he had registered as his permanent residence. 6 So.3d at 678-79. Here, for purposes of establishing a prima facie violation of section 943.0435(4), we find it sufficient that Officer Bethlehem spoke to the Rescue Mission manager, staff, and other clients, and that no one had seen Appellant there since June 25, 2011.

Appellant further contends that the State could not establish a prima facie violation without presenting facts showing he was living elsewhere. We disagree. Section 943.0435(4)(a) requires a sexual offender to report to a driver’s license office within 48 hours after “any change” in residence. In State v. Cutwright, 41 So.3d 389, 391 (Fla. 1st DCA 2010), we interpreted identical language in section 775.261(4)(d), Florida Statutes, relating to career offender registration, to include not only establishing a new residence, but also abandoning a previous residence. Moreover, section 943.0435(4)(b) contemplates the circumstance in which the offender has vacated a permanent, temporary, or transient residence “and fails to establish or maintain another permanent, temporary, or transient residence[.]” Therefore, the State had only to set forth facts showing that Appellant had vacated or abandoned his registered residence. Because the undisputed facts provided prima facie proof that Appellant vacated the Rescue Mission and failed to report the change in residence as required by section 943.0435, the trial court correctly denied Appellant’s motion to dismiss.

AFFIRMED.

THOMAS and WETHERELL, JJ., concur.

      . We review the denial de novo. See State v. Sholl, 18 So.3d 1158, 1160 (Fla. 1st DCA 2009).

      . The State posits that this appeal is moot because Appellant was sentenced to time served, meaning his sentence is already complete. We disagree because there is a distinction between appeals challenging the illegality of a sentence and the illegality of the underlying conviction. Even if a defendant’s sentence has expired, when "the issues to be raised on appeal challenge the legality of the conviction, rather than the sentence!,] [t]he possibility of removing the stigma of a conviction represents a significant practical purpose demonstrating the continuing viability of the appeal.” Lamb v. State, 526 So.2d 998, 998 (Fla. 1st DCA 1988).

      . "[W]ithin 2 working days after any change of the career offender’s residence ... the career offender must report in person to a driver’s license office....” § 775.26l(4)(d), Fla. Stat. (2009).


text:
    Kevin L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1643.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2012.
    Kevin L. Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.850 postcon-viction motion containing four claims which the trial court denied. We affirm the order denying relief and note that claim four involves a challenge pursuant to Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). The Florida Supreme Court has since held that section 893.13, Florida Statutes, is not unconstitutional. See State v. Adkins, 96 So.3d 412 (Fla.2012). We therefore affirm.

AFFIRMED.

MARSTILLER, RAY and SWANSON, JJ., concur.


text:
    Cheryl B. YOUNG, Appellant, v. Michael D. YOUNG, Appellee.
    No. 1D11-6098.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2012.
    Justin D. Jacobson and Gina E. D’Amico of the Law Office of Richard M. Knelling-er, P.A., Gainesville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Cheryl B. Young appeals the trial court’s issuance of a domestic violence injunction against her pursuant to section 741.30, Florida Statutes (2011). We review the trial court’s conclusion of law de novo. See Achurra v. Achurra, 80 So.3d 1080 (Fla. 1st DCA 2012). The evidence showed that Ms. Young engaged in improper behavior, but it did not constitute domestic violence, and we reverse.

During their dissolution proceeding, Michael Young gave Cheryl Young his computer password so that she could install some anti-virus software that he had purchased, which allowed multiple users. Later, without his consent, she used the password to read his email and then changed the password so that he could no longer gain access to his account. She filed a paper in the divorce proceeding that contained extensive personal information taken from the emails. The trial court rejected Ms. Young’s explanation for her conduct and issued the injunction. In denying her motion for rehearing, the trial court suggested that her conduct amounted to cyberstalking.

Section 741.30(6) authorizes the court to issue an injunction when a person shows that he or she has been or is in imminent danger of being a victim of domestic violence as defined in section 741.28. “Domestic violence” under section 741.28(2), Florida Statutes (2011), includes the offense of “stalking” as one of the enumerated forms of domestic violence, which is the only offense that could possibly apply to the facts at bar. That term, as used in section 784.048, Florida Statutes (2011), includes willful, malicious, and repeated harassment, and defines “harass” in sub-paragraph (l)(a) as “to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” Stalking also includes cyber-stalking, defined in section 784.048(l)(d) as the communication of “words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. See Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011); Randolph v. Rich, 58 So.3d 290 (Fla. 1st DCA 2011); Gustafson v. Mauck, 743 So.2d 614 (Fla. 1st DCA 1999); Young v. Smith, 901 So.2d 372 (Fla. 2d DCA 2005); Giallanza v. Giallanza, 787 So.2d 162 (Fla.2d DCA 2001). Ms. Young used her husband’s email in an inappropriate manner but did not threaten or stalk him.

Although the trial court cited this court’s opinion in Murphy v. Reynolds, 55 So.3d 716 (Fla. 1st DCA 2011), as implicitly approving the finding that “offensive email, hacking into another person’s email account, deleting email or changing an email signature,” could be grounds for a repeat-violence injunction under section 784.046(2), Florida Statutes (2009), this court held in that case that the petitioner had failed to show that the respondent was the perpetrator of the incidents alleged. This court did not decide whether any of the petitioner’s allegations constituted cy-berstalking.

Ms. Young’s acts in the case at bar, which consisted of changing her husband’s password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyberstalk-ing, because they were not electronic communications by her of “words, images, or language ... directed at” Mr. Young.

REVERSED and REMANDED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Lorena Dragon BARROSO, Petitioner, v. SHERIDAN HEALTH CORP and Travelers Ins., Respondents.
    No. 1D12-3631.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2012.

      Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
    Christine Tomasello, Palm Beach Gardens, for Respondents.
   PER CURIAM.

In this workers’ compensation cáse, Claimant filed a petition for writ of certio-rari challenging three pre-trial rulings made by the Judge of Compensation Claims (JCC). Claimant fails to establish, as is her duty, a basis for this court to conclude that the JCC’s pre-trial rulings have caused or will cause irreparable harm that is not remediable on plenary appeal. See Taylor v. TGI Friday’s, Inc., 16 So.3d 312 (Fla. 1st DCA 2009) (explaining it is petitioner’s obligation to establish irreparable harm); see also, Burgess v. Buckhead Beef Fla., 15 So.3d 25 (Fla. 1st DCA 2009) (reversing and remanding for new trial on plenary appeal where JCC improperly denied motion for continuance and excluded relevant medical testimony). Irreparable harm is a condition precedent to invoking certiorari jurisdiction, and should be considered first. See Spry v. Prof'l. Employer Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008). Accordingly, Claimant’s petition for writ of certiorari is denied.

DENIED.

WOLF, CLARK, and MARSTILLER, JJ., concur.