text:
    Kenneth WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1854.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2012.
    Rehearing Denied Sept. 20, 2012.

      Kenneth Whitfield, Lowell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kenneth Whitfield appeals from the denial of his petition for writ of habeas corpus, in which he challenges his current detention on a February 20, 1998, 30-year habitual violent felony offender (“HVFO”) sentence, imposed on a robbery charge. The trial court correctly denied the petition, and we affirm.

Whitfield seems to be confused by the fact that the trial court later imposed a 15-year sentence for a firearm charge in an unrelated case, and ordered that sentence to be served “concurrent and coterminous” with other charges from that case, as well as sentences imposed in other cases — including the 30-year HVFO sentence. Whitfield’s confusion is perhaps understandable, as the later 15-year sentence clearly should not have been imposed as coterminous with the longer 30-year sentence. See Moore v. Pearson, 789 So.2d 316, 319 (Fla.2001) (explaining that “a coterminous sentence is a sentencing decision in which a court exercises its discretion to mitigate a defendant’s sentence” by ordering it to end simultaneously with another shorter sentence); Jefferson v. Florida Parole Com’n, 982 So.2d 743, 745 (Fla. 2nd DCA 2008) (explaining that it would be “incongruous” to designate a shorter sentence as coterminous with a longer sentence). As recognized by the Jefferson court, it makes no sense to order a shorter sentence to run coterminous with a longer sentence because the shorter sentence will in fact end first irrespective of the designation — which means that' the two sentences will not end simultaneously.

Whitfield may also be suffering under the misimpression that by designating the 15-year sentence as coterminous with the earlier 30-year HVFO sentence, the trial court somehow modified and shortened the 30-year sentence. However, the trial court clearly did not purport or attempt to modify the HVFO sentence when sentencing in the later, unrelated case. Additionally, according to Whitfield’s habe-as petition, the coterminous 15-year sentence was imposed on December 11, 2000, well after the trial court would have lost jurisdiction to modify the 30-year HVFO sentence imposed in 1998. See, e.g., Colvin v. State, 63 So.3d 889 (Fla. 5th DCA 2011).

AFFIRMED.

. SAWAYA, LAWSON and COHEN, JJ., concur.

      . This sentence was imposed in Manatee County Circuit Court Case No. 97-1766-CF.

      . This sentence was imposed in Manatee County Circuit Court Case No. 97-2911-CF.

      .A coterminous sentence is a sentence that runs concurrently with another sentence and is ordered to terminate simultaneously with the other sentence. See Madden v. State, 535 So.2d 636, 637 n. 1 (Fla. 5th DCA 1988).


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Robert Corbin SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4514.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Nancy A. Daniels, Public Defender, and Charles Catanzaro, Specially Appointed Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Robert Corbin Smith, Jr., (“Appellant”) challenges his conviction and three-year sentence for trafficking in hydrocodone raising three arguments. He challenges the trial court’s denial of his motions to suppress statements and physical evidence, and he argues that section 893.101, Florida Statutes, renders the statute under which he was convicted, section 893.135(l)(e)l.a., Florida Statutes (2010), an unconstitutional strict liability statute. As to the latter issue, the Florida Supreme Court’s recent decision in State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), is fatal to Appellant’s argument. However, we conclude that the trial court should have granted the motions to suppress, and we reverse Appellant’s conviction and sentence.

The circumstances leading to Appellant’s arrest are as follows. On June 30, 2010, just before 3:00 a.m., Santa Rosa County Sheriffs deputy was patrolling a residential neighborhood when he discovered a person lying on the ground in the yard of one of the homes. The person lay next to a truck parked not in the driveway, but up on the yard. It was raining; the person was not moving; the driver side door of the truck was wide open, the keys were in the ignition, and the radio was playing loudly. No one else was around, and the residence was dark.

The deputy shone his spotlight on the man. When the man got to his feet and started walking toward the officer, the deputy stopped his patrol car, got out, approached him. The deputy asked the man’s name and asked for identification. The man turned and walked to the truck; the deputy followed. At the truck, the man retrieved his driver’s license from his wallet and gave it to the deputy. The license identified the man as the Appellant in this case. The deputy observed that Appellant was unsteady and slurring his speech, and appeared intoxicated “or under the influence of something.” Appellant explained that the residence belonged to the sister of his estranged wife, and that he believed his wife was staying there.

After producing his license, Appellant put his wallet back in the truck, on the driver’s seat. It appeared to the deputy that Appellant, when returning his wallet to driver’s seat, was trying to obscure a small, clear plastic bag containing several white pills also lying on the seat. The deputy told Appellant to step aside, and then reached in the vehicle, picked up the bag, and asked Appellant what kind of pills were in the bag. Appellant answered that they were Lortab pills, and then volunteered that he had just purchased them for ten dollars each. He further volunteered that he had gone to jail for “this” before.

Appellant filed two motions to suppress. In one, he sought to suppress the pills, arguing that when the deputy seized the plastic bag he lacked probable cause to believe the pills inside were contraband. In the second motion, Appellant sought to suppress his incriminating statements because when he identified the pills as Lor-tab and admitted to having purchased them for ten dollars apiece, he was under custodial interrogation, and the deputy failed to comply with Miranda v. Arizona before propounding any questions. The trial court denied both motions.

Reviewing a lower court ruling on a motion to suppress is a mixed question of fact and law: we defer to findings of historical fact supported by competent, substantial evidence; we review de novo the application of those facts to the law. See State v. Hankerson, 65 So.3d 502, 506 (Fla.2011); Cuervo v. State, 967 So.2d 155, 160 (Fla.2007). “[Ajppellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” Nelson v. State, 850 So.2d 514, 521 (Fla.2003). Here, the trial court’s factual findings have evidentiary support and are not in dispute. We therefore turn to applying the facts to the relevant law.

Florida law recognizes three levels of police-citizen encounters: consensual encounter, investigatory stop, and formal arrest. Popple v. State, 626 So.2d 185, 186 (Fla.1998). In a consensual encounter, a law enforcement officer may approach an individual to ask questions or request identification, but the individual is free to decline the requests and leave. Id.; see also Caldwell v. State, 41 So.3d 188, 195 (Fla.2010); State v. Goodwin, 36 So.3d 925, 926 (Fla. 4th DCA 2010) (“[T]he mere questioning of an individual, including a police request for identification, does not amount to a Fourth Amendment detention.”) (quoting State v. Dixon, 976 So.2d 1206, 1208 (Fla. 4th DCA 2008) (emphasis in original)); Brevick v. State, 965 So.2d 1246, 1249 (Fla. 5th DCA 2007) (“A detention does not occur simply because an officer approaches and asks questions or requests to examine identification.”).

The next level of encounter is a temporary detention known as an investigatory stop. Popple, 626 So.2d at 186 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Such a detention, commonly called a Terry stop, is a seizure of the person permissible under the Fourth Amendment only if the officer has “a well-founded, articulable suspicion of criminal activity.” Id.; see § 901.151(2), Fla. Stat. (permitting investigatory detention when “circumstances ... reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state.... ”); Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004) (stating that investigative detention only justified if the officer has reasonable suspicion that individual detained has committed or is about to commit a crime). An officer’s mere suspicion or hunch is not enough to permit this type of detention. Popple, 626 So.2d at 185. A consensual encounter becomes a Terry stop “when an officer makes ‘an official show of authority from which a reasonable person would conclude that he or she is not free to end the encounter and depart.’ ” Majors v. State, 70 So.3d 655, 659 (Fla. 1st DCA 2011) (quoting Dees v. State, 564 So.2d 1166, 1167 (Fla. 1st DCA 1990)).

The third level of police-citizen encounter is custody or arrest, for which a law enforcement officer must have probable cause that a crime has been, or is being, committed. Popple, 626 So.2d at 185 (citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); § 901.15, Fla. Stat.). Only the first two levels are at issue in this case.

Appellant does not dispute that his encounter with the deputy initially was consensual. The deputy found Appellant lying on the ground in the rain, seemingly passed out. He approached Appellant, asked for identification, and accompanied Appellant as he went voluntarily to retrieve his wallet and license from his truck. Cf. State v. Goodwin, 36 So.3d 925, 927 (Fla. 4th DCA 2010) (holding that where officer used spotlight and flashlight when approaching appellant, but did not have her hand on her weapon or direct appellant to do anything more than produce identification, encounter remained consensual), and cases cited therein.

But Appellant argues that the encounter became an investigatory detention when the deputy told Appellant to step aside, removed the bag of pills from the truck and, holding the bag, asked Appellant what they were. We agree. The deputy’s actions constituted a show of authority that would lead a reasonable person to conclude he or she was not free to end the encounter and leave. See Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple, 626 So.2d at 188; Majors, 70 So.3d at 659. Indeed, the deputy testified at the motion hearing that Appellant was not free to leave at that point. Had the deputy simply inquired about the pills, which were in plain view, without taking them from the truck, we could conclude that the interaction between Appellant and the deputy remained a consensual encounter. Cf. Keller v. State, 946 So.2d 1233, 1234 (Fla. 4th DCA 2007). (finding encounter between deputy and appellant consensual where deputy on patrol saw appellant sitting on a ledge outside convenience store, approached appellant and asked for identification, saw prescription bottle bearing another person’s name in appellant’s open purse, asked appellant about it, and appellant replied that bottle belonged to her roommate and contained hydrocodone).

The question now becomes whether the deputy had the requisite reasonable suspicion of criminal activity to permit an investigatory detention. If the detention was invalid, “any statement appellant may have made and any evidence that may have been seized were tainted and should have been suppressed.” Dames v. State, 566 So.2d 51, 52 (Fla. 1st DCA 1990). Thus we may not need to determine whether Appellant was under custodial interrogation, triggering the need for Miranda warnings.

“Whether an officer has a founded suspicion of criminal activity ... is determined by the ‘totality of circumstances.’ ” State v. Gandy, 766 So.2d 1234, 1236 (Fla. 1st DCA 2000). The State contends that the circumstances—Appellant appeared passed out on the ground; when aroused he appeared intoxicated with slurred speech; and he tried to obscure the bag of pills—reasonably led the deputy to believe the pills were contraband. We disagree. The circumstances may have justified a reasonable belief that Appellant was under the influence of whatever was in the pills, which in and of itself is not criminal activity. But we find the circumstances insufficient to create a reasonable suspicion that Appellant was in unlawful possession of a controlled substance. Notably, at the motion hearing, the deputy did not testify that in his experience, people illegally in possession of prescription drugs usually carry them in plastic bags. On the contrary, he testified that in his experience, “many people” carry their prescription medications in plastic or other types of bags, and that such practice “is not uncommon.”

Moreover, the incriminating nature of the pills was not immediately apparent to the deputy such that he had probable cause to seize the bag under the plain-view doctrine. See Rimmer v. State, 825 So.2d 304, 313 (Fla.2002) (warrantless seizure of property in plain view permissible only “if at the time of the search: (1) the seizing officer was legitimately in a place where the object could be plainly viewed; (2) the incriminating nature of the seized object was immediately apparent to the police officer; and (3) the seizing officer had a lawful right of access to the object itself.”) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). The deputy did not testify to any markings on the pills, or lack thereof, which helped him identify what they were; he observed only that they were larger than a certain brand of breath mint and larger than aspirin tablets. Again, it is not uncommon, in the deputy’s experience, for individuals to carry their legally prescribed medication in plastic bags. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (“If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., if ‘its incriminating character [is not] “immediately apparent,”’ Horton [v. California], 496 U.S. [128,] 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 [ (1990) ] — the plain-view doctrine cannot justify its seizure.”); Caplan v. State, 531 So.2d 88, 91 n. 1 (Fla.1988) (“The issue, however, is not merely that something can be seen, but that what is seen creates a suspicion that rises to the level of probable cause.”).

For the foregoing reasons, we find the investigatory detention invalid for lack of reasonable suspicion of criminal activity, and the seizure of the pills invalid for lack of probable cause. Appellant’s statements and the physical evidence the deputy obtained should have been suppressed. Accordingly, we reverse Appellant’s conviction and sentence, and remand to the trial court to grant the motions to suppress and discharge Appellant for the offense. See Panter v. State, 8 So.3d 1262, 1264 (Fla. 1st DCA 2009).

REVERSED and REMANDED.

LEWIS, and CLARK, JJ., Concur.

      . Lortab contains hydrocodone and acetaminophen. Physician’s Desk Reference, available at http://www.pdr.net/drugpageslconcise monograph.aspx?concise=1479. Hydrocodone is included among Schedule II and Schedule III substances. See §§ 893.03(2)(a)l.j., 893.03(3)(c)4„ Fla. Stat. (2010).

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In fact, the deputy testified he would not have had grounds to arrest Appellant for driving under the influence because Appellant was not in physical control of his truck at the time.


author: DAVIS, J. SWANSON, J.,

text:
    CATHEDRAL ARTS PROJECT, INC., Appellant, v. DEPARTMENT OF ECONOMIC OPPORTUNITY, Appellee.
    No. 1D11-5064.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2012.

      Stephen D. Busey and John F. MacLen-nan of Smith Hulsey & Busey, Jacksonville, for Appellant.
    Peter Penrod, Assistant General Counsel, Office of General Counsel, Tallahassee, for Appellee.
   DAVIS, J.

Appellant, Cathedral Arts Project, Inc., seeks review of an order of the Agency for Workforce Innovation (now the Department of Economic Opportunity), which dismissed for lack of jurisdiction a portion of Appellant’s appeal from a Department of Revenue tax ruling and which adopted the special deputy’s determination that Appellant is liable for the payment of unemployment compensation tax. Appellant contends that the dismissal was erroneous and that it is exempt from unemployment taxation pursuant to section 443.1216(4)(a)2., Florida Statutes (2009), because it is operated primarily for religious purposes and is controlled by St. John’s Cathedral of Jacksonville. Finding no error in the dismissal of a portion of Appellant’s tax appeal and concluding that competent, substantial evidence supports the special deputy’s determination that Appellant is not operated primarily for religious purposes, we affirm.

As found by the special deputy, Appellant is a nonprofit corporation that was formed in 2000 to promote and support the arts in Jacksonville, Florida by providing instruction in public schools and in after-school programs. Appellant was incorporated by the Chancellor of St. John’s Cathedral. Appellant’s general purposes, as set forth in its Articles of Incorporation, are to exist and operate solely for scientific, educational, and charitable purposes within the meaning of Section 501(c)(3) of the IRS Code and to create spiritual enrichment and personal growth through the promotion and support of the arts in Jacksonville and its surrounding communities. In a 2003 memorandum, Kimberly Hyatt, Appellant’s Executive Director, explained that Appellant was created in response to cutbacks in performing and visual arts instruction in Duval County’s public elementary schools. Appellant’s Board of Directors consists of up to twenty-four lay members and one clergy member. The initial lay directors were elected by the Incorporator, and all subsequent lay directors are to be nominated by the Board of Directors and elected by Appellant’s Members, who are those persons holding the offices of the Rector, Wardens, and Vestry of St. John’s Cathedral.

On July 5, 2008, the Department of Revenue (“Department”) mailed an Independent Contractor Determination to Appellant, informing it that the individuals named therein constituted employees for purposes of unemployment compensation and that it was still required to submit quarterly reports to include the workers and to pay tax on the wages. On July 8, 2008, the Department sent a Special Liability Notice to Appellant, informing it that it had met the liability requirements for unemployment tax and that it was required to file an employer’s quarterly report. Both documents notified Appellant that the determinations would become conclusive and binding within twenty days unless it filed a written protest. According to Stephen D. Busey, Appellant’s in-corporator and St. John’s Cathedral’s Chancellor, the address to which both determinations were mailed was Appellant’s attorney’s address. Appellant did not protest either determination.

In a June 7, 2010, Notice of Determination, the Department, after having completed an audit, informed Appellant that it owed $20,209.80 in unemployment tax for the period between January 1, 2006, and December 31, 2009. Appellant filed a protest letter in response to this determination, arguing that it was exempt from taxation because it operated primarily for religious purposes and was supervised, controlled, or principally supported by St. John’s Cathedral.

During the hearing before the special deputy, Mr. Busey testified that Appellant, which has a different physical location than the Cathedral, “performs spiritual enrichment and personal growth to underprivileged children” in Jacksonville through the arts, which includes dance and music. He further testified that Appellant derives its funding primarily from individuals who either give directly or through the Cathedral and that Appellant’s instruction occurs in the public schools. When asked what he observed with respect to what the instructors do, he replied, “Teachers giving instructions in the arts.” When asked. if Appellant is operated primarily for religious purposes, he replied, “It is.” When asked what type of spiritual instruction the instructors provide, he replied, “They associate the arts that they teach with the Gospel of Jesus Christ.” When asked if the instructors taught only in association with Christianity or in other religions as well, he replied, “I don’t think that it is— the teaching is denomination specific.” When asked if the public school system would allow the teaching to be denomination specific, he replied, “I don’t know what the public school system will allow and not allow.” When asked whether the music that is taught is religious or not, Busey explained that “all forms” of music are taught.

In the recommended order, the special deputy determined that although the testimony provided at the hearing revealed that Appellant was created to be an outreach ministry, it was not shown that Appellant is operated primarily for religious purposes. According to the special deputy, Appellant’s primary purpose is to promote and support the arts in Jacksonville and surrounding communities by providing instruction to students in public schools and in after-school programs. The special deputy also found that it had not been shown that Appellant was operated, supervised, or controlled by a church or that it was principally supported by a church. The deputy concluded that Appellant was not statutorily exempt from unemployment taxation and recommended that Appellant’s appeal for the period of time prior to July 29, 2008, be dismissed for lack of jurisdiction and that the Notice of Proposed Assessment be affirmed for the period of time beginning July 29, 2008.

Appellant filed exceptions to the recommended order. The Agency for Workforce Innovation (“Agency”) rejected the exceptions and accepted the special deputy’s recommendations, determining that the deputy’s findings were supported by competent, substantial evidence and that the conclusions of law reflected a reasonable application of the law to the facts. It dismissed Appellant’s appeal for the period of time prior to July 29, 2008, for lack of jurisdiction and affirmed the Notice of Proposed Assessment for the period of time after that date. This appeal followed.

Appellant contends that the Agency erred in dismissing its appeal for the period of time prior to July 29, 2008, for lack of jurisdiction. We reject this argument as both the 2008 Independent Contractor Determination and Special Liability Notice informed Appellant of its liability to pay unemployment tax. Yet, Appellant failed to file a written protest in the statutorily prescribed protest period. As a result, both determinations became final and binding. See Fla. Admin. Code R. 73B-10.035(5)(a)l. As such, the Agency did not err in dismissing Appellant’s appeal in part for lack of jurisdiction.

Appellant also contends on appeal that it is exempt from paying unemployment tax under section 443.1216(4)(a)2., which provides that the employment subject to chapter 443 does not apply to service performed in the employ of an organization that is operated primarily for religious purposes and that is operated, supervised, controlled, or principally supported by a church or a convention or association of churches. Our standard of review as to this issue is whether the special deputy’s findings are supported by competent, substantial evidence. See His Kids Daycare v. Fla. Unemployment Appeals Comm’n, 904 So.2d 477, 480 (Fla. 1st DCA 2005). We agree that no competent, substantial evidence supports the special deputy’s finding that Appellant is not controlled by a church. As Appellant’s Articles of Incorporation provide, Appellant’s Board of Directors is elected by its Members, who are those persons holding the offices of the Rector, Wardens, and Vestry of St. John’s Cathedral.

With that said, however, we reject Appellant’s argument that the special deputy’s finding regarding its primary purpose in operating is not supported by competent, substantial evidence. Not only did Kimberly Hyatt’s memorandum state that Appellant was formed in response to cutbacks in performing and visual arts instruction in Duval County’s public elementary schools, Mr. Busey testified that Appellant’s teachers give instruction in the arts to underprivileged children. Although Mr. Busey testified that the instructors associate the arts they teach with the Gospel of Jesus Christ, and although Appellant’s Articles of Incorporation provide that one of its general purposes is to create spiritual enrichment and personal growth, the statute at issue addresses an entity’s primary purpose in operating. While Appellant’s motivation may be religious in nature, its primary purpose in operating, as found by the special deputy and as supported by the evidence, is to give art instruction to underprivileged children.

Contrary to the dissent’s assertion, our analysis of this case is not focused solely upon the service delivered by Appellant. Our focus is on whether competent, substantial evidence supports the special deputy’s finding that Appellant’s primary purpose is to promote and support the arts in Jacksonville and surrounding communities by providing instruction to students in public schools and in after-school programs. Rather than focusing on the question before us, the dissent focuses on Appellant’s motivation. In doing so, it fails to recognize that the Legislature, had it wished to exempt all religious outreach ministries from unemployment taxation, could have easily done so by expressly providing that any outreach ministry, any organization that is operated for religious purposes, or any organization having a religious motivation is exempt. Moreover, even if, as the dissent contends, the question under the statute’s language is “why” the organization provides a service, the evidence in this case supports the special deputy’s finding that Appellant’s primary purpose in providing instruction to students is to promote and support the arts.

While the dissent also reaches the conclusion that control is the “channel marker” for purpose in this case, the exemption at issue looks at two separate and distinct elements: an entity’s primary purpose in operating and its relationship to a church. Thus, contrary to the dissent’s characterization of this case, the fact that Appellant may be controlled by St. John’s Cathedral has no bearing on our determination that competent, substantial evidence supports the special deputy’s finding that Appellant does not operate primarily for religious purposes.

In reaching our conclusion, we reject Appellant’s assertion that our opinion in His Kids Daycare supports reversal in this case. Not only are the facts in that case distinguishable from the facts in this case, given that the daycare at issue was operated out of a church-owned building containing pictures of Jesus and having religious phrases on the wall, we rejected the Unemployment Appeals Commission’s argument in that case that the issue of whether the daycare was operated for religious purposes was a legal conclusion. 904 So.2d at 480. Appellant’s reliance upon the Fourth District’s opinion in Peace Lutheran Church v. State, Unemployment Appeals Commission, 906 So.2d 1197 (Fla. 4th DCA 2005), is similarly misplaced. Not only did the employee policy in that case indicate that religious purposes pervaded all aspects of the school/daycare center, a fact not present in the case before us, the Fourth District found the record devoid of any competent, substantial evidence to support the finding that the center did not operate primarily for religious purposes. Here, as stated, the special deputy’s finding on that point is supported by competent, substantial evidence.

Our opinion today should not be taken to mean that all organizations throughout Florida that provide both religious and secular services are liable for unemployment taxation. It should instead serve as a reminder that organizations claiming a tax exemption under section 443.1216(4)(a)2. have the burden to prove that they operate primarily for religious purposes. Although the dissent concludes that spiritual enrichment is Appellant’s primary purpose, the special deputy, as the finder of fact, found the evidence of such lacking and found instead that Appellant’s primary purpose is secular in nature. Whether or not we would have found differently should have no bearing on our decision in this case.

Accordingly, we AFFIRM.

WETHERELL, J., concurs; SWANSON, J., dissents in part and dissents from the judgment with opinion.

SWANSON, J.,

dissenting in part, and dissenting from the judgment.

I respectfully dissent.

The facts of this case are simple. The outcome is troublesome.

Cathedral Arts Project (hereinafter “Cathedral Arts”) is a Florida not-for-profit corporation. It was incorporated in 2000 by St. John’s Episcopal Church in Jacksonville, Florida, as an outreach ministry of the Church. According to the incorpo-rator, “[i]t performs spiritual enrichment and provides personal growth to underprivileged children in Jacksonville, Florida, through the arts.” This ministry provides an arts program within the public schools for youngsters who would otherwise be deprived of those educational opportunities.

The issue in this appeal is whether Cathedral Arts is exempt from the Florida Unemployment Compensation Tax pursuant to a statutory exception for religious organizations. Section 443.1216(4)(a)2., Florida Statutes (2009), contains only two requirements for qualifying corporations to be exempt from paying unemployment compensation taxes: [a]n organization that is [1] operated primarily for religious purposes and that is [2] operated, supervised, controlled, or principally supported by a church or a convention or association of churches. Cathedral Arts operates primarily for religious purposes and is controlled by St. Johns Episcopal Church, thus meeting both requirements.

The majority agrees that Cathedral Arts meets the second part of the statutory test because it is controlled by the Church. The majority misinterprets the plain meaning of the first part of the statute, however, which specifically focuses only upon the “primary purpose” of the organization. Rather than focus on the “primary purpose” of the organization, the majority takes a non-textual approach in focusing solely upon the service delivered. The statute is neutral as to the type of service an organization provides; it speaks only in terms of the purpose of the organization. The legal question under the statute’s language is “why” the organization provides the service (i.e., its purpose) and not “what” the organization provides (i.e., arts instruction, food bank, etc.).

Spiritual enrichment is not simply one of Cathedral Arts’ purposes, it is its primary purpose. Cathedral Arts’ goal, objective, and end are to provide opportunities for underprivileged children, through the arts, to achieve spiritual enrichment. Instruction in dance, music, and the arts constitutes the means by which Cathedral Arts seeks to promote that spiritual enrichment and personal growth in the lives of these children.

Spiritual enrichment is not a secular concept. To the contrary, it is, in this instance, a manifestation of a religious mission. Cathedral Arts teachers “associate the arts that they teach with [faith and spirituality]” and “instruct students in dance and music as being expressions of the beauty of the world that is brought to us by [faith and spirituality].”

The Department of Economic Opportunity minimizes Cathedral Arts as an outreach ministry of the Church and concludes the ministry is not operated primarily for religious purposes. What other primary purpose, goal, objective, or end can an outreach ministry of a church have?

The outcome in this case creates an intolerable “Catch-22” for Cathedral Arts and all other ministries that reach out in support of the underprivileged in our public schools or other public institutions. On the one hand, the majority opinion concludes Cathedral Arts’ purpose is not religious enough to qualify for the statutory exemption. On the other hand, if Cathedral Arts was overly zealous and religious in the service provided (for example, if their stated purpose was to proselytize or advance a particular theological doctrine), it would no doubt be declared unconstitutional for it to provide this program for disadvantaged students in the public schools altogether. Catch-22. Interpretive action taken by the Department of Economic Opportunity in this case constructs a secular road block to a faith based outreach ministry that is inconsistent with a plain reading of the statute. This result is also inconsistent with a statewide tradition of tax exempt faith based initiatives designed to help the disadvantaged.

While spiritual enrichment is Cathedral Arts’ primary purpose, it recorded other purposes in its Articles of Incorporation in order to mirror requirements contained in the Internal Revenue Code. That effort to qualify for certain federal tax exemptions does not detract from the primary purpose.

The majority acknowledges Cathedral Arts’ “motivation may be religious in nature.” The motivation or driving force of an organization can be synonymous with its primary purpose. In this case, Cathedral Arts’ motivation is religious. Similarly, its primary purpose is religious.

The majority concedes, and I agree, there is church control over Cathedral Arts. Cathedral Arts’ Articles of Incorporation provide the organization’s Board of Directors be elected by its “members.” Those “members” are “the Rector, Wardens and Vestry of St. John’s Parish at Jacksonville, Florida,” and comprise the governing body of St. John’s Episcopal Church. The governing body of the Church has the power to elect the board of directors for Cathedral Arts. While the “members” might not control the day-today operations of Cathedral Arts and may not dictate how directors vote on issues, it is clear they possess overall control.

The majority opinion is inconsistent in finding the Church controls Cathedral Arts, but that Cathedral Arts does not operate with a primarily religious purpose. Control is the channel marker for purpose. Cathedral Arts, as an outreach ministry, is an arm of the Church with a purpose that is no less religious than that of the Church itself.

Finally, the majority opinion is in direct and clear conflict with Peace Lutheran Church v. State, Unemployment Appeals Commission, 906 So.2d 1197 (Fla. 4th DCA 2005), where the Fourth District found the evidence undisputed with respect to primarily religious purpose, and that “the function of the child care center was to take care of children and provide an outreach for the church.” Id. at 1199 (emphasis added). That type of outreach is the primary purpose in this case, as Cathedral Arts is an outreach ministry controlled by the Church. It operates with the same overall motivation or purpose as the church controlling it. Finding church control supports the conclusion that Cathedral Arts’ primary purpose is religious.

I conclude Cathedral Arts should be exempt from the Florida Unemployment Compensation Tax, pursuant to the statutory exception for religious organizations under section 443.1216(4)(a)2.

      . Not only is this case factually distinguishable from Peace Lutheran Church, we also note that the Fourth District in that case cited St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 101 S.Ct. 2142, 68 L.Ed.2d 612 (1981), in support of its conclusion that the evidence was undisputed that the child care center operated primarily for religious purposes. Yet, in that case, the Supreme Court addressed section 3309(b)(1)(A) of the Federal Unemployment Tax Act, which provides a tax exemption for "a church or convention or association of churches,” not the tax exemption provided for in section 3309(b)(1)(B) for an organization which is operated primarily for religious purposes. 451 U.S. at 784, 101 S.Ct. 2142. It should also be noted that while the Fourth District in Peace Lutheran Church cited St. Martin a second time for the proposition that the Federal Unemployment Tax Act is framed entirely in terms of the nature of the employer and not in terms of the work performed or the place at which the employee works, the Supreme Court in that case stated such in relation to section 3309(b)(1)(A). Id. at 783, 101 S.Ct. 2142; see also Bach v. Steinbacher, 80 Ohio App.3d 461, 609 N.E.2d 607, 608-09 (1992) (holding that the appellant's reliance upon St. Martin in arguing about whether the employer operated primarily for religious purposes was misplaced given that the Supreme Court analyzed section 3309(b)(1)(A), not section 3309(b)(1)(B)).

      . See Transcript of the telephonic hearing held on May 9, 2011, page 47.

      . Joseph Heller, Catch 22 (Simon and Schus-ter 1961).


author: WALLACE, Judge.

text:
    Bobby Martin WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2835.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Bobby Martin Watson challenges his judgment and sentence for abuse of an elderly person, a violation of section 825.102(1), Florida Statutes (2010). Because the State failed to establish that the victim of the alleged offense qualified as an “elderly person” within the meaning of the statute, we reverse.

I.THE FACTUAL BACKGROUND

James Eugene Murphy, the victim of the alleged offense, lived alone in a single-family residence in St. Petersburg. Before the incident in question, Mr. Murphy had met Mr. Watson through a mutual acquaintance. Mr. Watson had been inside Mr. Murphy’s residence, and he knew where Mr. Murphy kept his wallet.

On August 28, 2010, Mr. Watson knocked on Mr. Murphy’s door, and Mr. Murphy allowed Mr. Watson to enter the residence. The two men spoke briefly. Then, Mr. Watson asked Mr. Murphy for some money. Mr. Murphy declined this request, and Mr. Watson became more insistent. Mr. Murphy responded by telling Mr. Watson to leave.

Instead of leaving, Mr. Watson physically attacked Mr. Murphy. Mr. Watson beat Mr. Murphy, forced him to the floor, and strangled Mr. Murphy until he lost consciousness. When Mr. Murphy regained consciousness, Mr. Watson was gone. Mr. Murphy cleaned up the blood on the floor and checked to see if his wallet was in its place. It was missing. In response to Mr. Murphy’s call for help, paramedics responded and treated him at the scene for his injuries. Mr. Murphy was not hospitalized.

After the incident, Mr. Murphy can-celled the credit cards that had been in his wallet and arranged for the replacement of his missing driver’s license. Later, a man who lived about four blocks away from Mr. Murphy found the wallet and returned it. The credit cards and the driver’s license were still in the wallet, but Mr. Murphy’s cash — about forty dollars — was gone.

II.THE STATE’S CHARGING DECISION

The recital of these facts suggests that the State had a “slam dunk” case against Mr. Watson for strong-arm robbery under section 812.13(1), (2)(c), Florida Statutes (2010). See Jones v. State, 652 So.2d 346, 349-50 (Fla.1995); Mitchell v. State, 407 So.2d 343, 343-44 (Fla. 4th DCA 1981). Instead, for reasons unexplained in our record, the State charged him with the abuse of an elderly person under section 825.102(1). Strong-arm robbery is a second-degree felony, and abuse of an elderly person is a third-degree felony. §§ 812.13(2)(c), 825.102(1).

III.THE STATUTE

Section 825.102(1) provides as follows:

(1) “Abuse of an elderly person or disabled adult” means:
(a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(b) An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.
A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.Ó83, or s. 775.084.

Section 825.101(5) defines the term “elderly person” as follows:

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

Thus, as used in the statute, “elderly person” is a defined term that means something substantially more than a person who is sixty years of age or older.

III. FRAMING THE ISSUE

The recital of the factual background and our examination of the statute bring us to the issue we are called upon to resolve. At trial, the State presented a prima facie ease that Mr. Watson had abused Mr. Murphy within the meaning of the statute. The beating and strangulation would certainly qualify as “intentional infliction of physical or psychological injury” under section 825.102(l)(a). Thus the issue before us is whether Mr. Murphy qualified as an “elderly person” within the meaning of section 825.101(5). Before analyzing this issue, it will be necessary to provide additional information about Mr. Murphy, the alleged “elderly person.”

Unquestionably, Mr. Murphy was more than sixty years of age. When the incident occurred, he was seventy-nine; Mr. Murphy was still seventy-nine at the time of trial, less than a year after the incident. Mr. Murphy testified that he had undergone a hip replacement, heart surgery, back surgery, and the insertion of four stents. Nevertheless, at the time of the incident, Mr. Murphy was living alone in his home in St. Petersburg. Mr. Murphy walked unassisted into the courtroom, and there is no mention in the record that he had any observed disability or weakness.

Mr. Murphy testified that he had “always been active and ... played tennis for many years.” When arthritis limited his ability to play tennis, Mr. Murphy began riding a bicycle so that he could continue “to stay in pretty good shape.” Mr. Murphy said that he did not suffer from dementia. He conceded that he occasionally would “forget things,” but he denied having a “serious problem.” The evidence showed that after the subject incident, Mr. Murphy successfully coped with the loss of his wallet on his own by cancelling his missing credit cards and by applying for a duplicate driver’s license.

A week before the trial, Mr. Murphy had sold his home in St. Petersburg and moved to Georgia to be closer to his family. However, Mr. Murphy planned to continue his independent lifestyle; he intended to rent his own apartment. And Mr. Murphy had flown from Georgia to Florida to testify at the trial without an escort or other assistance. The State did not present any expert witness testimony or other evidence about any infirmities or other conditions that impaired Mr. Murphy’s ability to take care of himself at the time of the subject offense.

IV. THE PARTIES’ ARGUMENTS

At the conclusion of the State’s case, Mr. Watson moved for a judgment of acquittal and argued that the State had failed to establish that Mr. Murphy was an “elderly person” at the time of the alleged offense. Defense counsel argued that the only evidence that supported Mr. Murphy’s status as an “elderly person” was that he was seventy-nine years of age. But there was “no evidence that [he was] suffering from the infirmities of aging” as required under section 825.101(5). Defense counsel argued further that Mr. Murphy had been living alone for the past twenty-five years and that although he had undergone various surgeries, there was no evidence that these surgeries had caused Mr. Murphy to be infirm or to be unable to care for himself. Furthermore, Mr. Murphy walked without assistance, did not require the assistance of a nurse or health care aide, was able to ride a bicycle, and remained in good shape. Finally, defense counsel argued that Mr. Murphy demonstrated that he had the presence of mind to cancel his credit cards and to apply for a new driver’s license when his wallet was stolen. Mr. Murphy did not suffer from any dementia or any significant memory loss.

In response, the prosecutor argued that the State was not required to prove that Mr. Murphy’s ability to protect himself was impaired in order to establish that he qualified as an “elderly person” within the meaning of the statute. Instead, the prosecutor argued that the State could establish that an individual qualified as an “elderly person” in one of three ways: (1) advanced age; (2) organic brain damage; or (3) physical, mental, or emotional dys-functioning “to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.” § 825.101(5). Under the prosecutor’s interpretation of the statute, the phrase, “to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired” applies only to physical, mental, or emotional dysfunctioning and not to the first two manifestations of “the infirmities of aging” mentioned in the statute.

The trial court denied the defense motion for judgment of acquittal and submitted the case to the jury on the theory of abuse of an “elderly person.” The trial court also instructed the jury on the offense of misdemeanor battery under section 784.03(1), Florida Statutes (2010), in accordance with the parties’ agreement.

Y. DISCUSSION

The parties have not cited, and our independent research has not disclosed, any case addressing the definition of “elderly person” contained in section 825.101(5) in circumstances similar to those in this case. The only case remotely on point is Bayer v. State, 788 So.2d 310 (Fla. 5th DCA 2001). In Bayer, the defendant was charged with aggravated manslaughter under section 782.07(2), Florida Statutes. 788 So.2d at 311. To find the defendant guilty of aggravated manslaughter under that subsection, the jury had to find that the victim met the definition of an “elderly person” in section 825.101(5). Id. at 818. The Fifth District found the evidence sufficient to sustain the jury’s verdict of guilty. Id. at 311. But the victim in Bayer was eighty-nine years old, had a feeding tube, and was apparently bedridden. Id. In addition, the issue before the Bayer court was whether the jury instructions given in the trial court on the offense of aggravated manslaughter of an elderly person were erroneous. Thus Bayer provides little guidance here, and we approach the issue presented with a relatively clean slate.

We disagree with the State’s reading of section 825.101(5). In our view, the phrase, “to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired,” modifies all of the listed manifestations of “the infirmities of aging” mentioned in the statute. Thus, to establish that a person qualifies as an “elderly person” under the statute requires proof of three elements: (1) the person is sixty years of age or older; (2) he or she suffers from one or more of the infirmities of aging resulting in some kind of physical, mental, or emotional dysfunction; and (3) the extent of the person’s resultant dysfunction is such that it impairs his or her ability to provide adequately for his or her own care or protection.

Our reading of the statute is in accord with both its plain meaning and with common sense. Experience teaches that the effects of aging vary widely from individual to individual. A few people are feeble before they reach sixty; others remain strong and lead active lives well into their eighties. In other words, a person’s chronological age is not a reliable indicator of his or her ability to function independently in the world. The purpose of section 825.102 is to provide additional protection for individuals sixty years of age or older when the infirmities of aging result in a dysfunction that impairs their ability to provide adequately for their own care and protection. Even if a person is sixty years of age or older, a person does not qualify as an “elderly person” within the meaning of the statute if he or she does not have an age-related impairment of his or her “ability ... to provide adequately for the person’s own care or protection.” Thus we reject the State’s argument that Mr. Murphy qualified as an “elderly person” simply because he had reached the relatively advanced age of seventy-nine.

The State argued alternatively that the evidence did establish that Mr. Murphy was suffering from the infirmities of aging to the extent that his ability to provide adequately for his own care or protection was impaired. The State pointed out that Mr. Murphy had undergone several surgeries and occasionally forgot things. In addition, he had moved to Georgia to be closer to his family. The relocation— which occurred almost one year after the alleged offense — would make it easier for his family to “keep tabs on him” and to provide assistance as needed.

We disagree with the State’s alternative argument. The evidence showed that Mr. Murphy remained an active and vital man who exercised regularly to stay in shape, lived alone, and functioned successfully in his environment without assistance. In a nutshell, the evidence about Mr. Murphy at the time of the subject offense showed functionality, not dysfunction. Under these circumstances, we conclude that the State failed to present a prima facie case that any infirmity of aging had impaired Mr. Murphy’s ability to provide adequately for his own care and protection. Granted, Mr. Watson was able to overpower Mr. Murphy and strangle him. But this result was not a function of any age-related impairment. Mr. Watson had the advantage of surprise, and he was taller and heavier than his victim. On the facts shown here, the trial court should have granted Mr. Watson’s motion for a judgment of acquittal on the charge of abuse of an elderly person.

VI. CONCLUSION

For the foregoing reasons, we reverse Mr. Watson’s judgment and sentence for abuse of an elderly person. On remand, the trial court shall adjudge Mr. Watson to be guilty of misdemeanor battery and sentence him for that offense.

In closing, we note that the outcome in this case was avoidable. The State could have charged Mr. Watson with strong-arm robbery, a second-degree felony. See § 812.13(1), (2)(c). Instead, it charged him with a third-degree felony that it could not prove.

Reversed and remanded with directions.

DAVIS, J., Concurs.

CRENSHAW, J., Dissents.

      . In determining whether substantial, competent evidence exists to support the conviction, we consider the evidence in the light most favorable to the State. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). At trial, Mr. Watson presented an alibi defense which we need not discuss.

      . In the information, the State charged Mr. Watson with abusing “an elderly person or disabled adult.” But the State did not attempt to establish that Mr. Murphy qualified as a "disabled adult.” The trial court submitted the case to the jury only on the theory that Mr. Murphy was an "elderly person.” In its verdict, the jury found Mr. Watson "guilty of ABUSE OF ELDERLY PERSON, as charged.”

      . In addition to his point about the denial of his motion for judgment of acquittal, Mr. Watson also argues that the circuit court erred in admitting collateral crime evidence during his trial. This issue is without merit and does not warrant discussion.

      . "In the past, aging was thought to be invariably accompanied by diminution in mental and other capacities. A persons [sic] abilities [sic] were thought to deteriorate in direct proportion to their [sic] age. Almost every investigation that has been undertaken on the topic has shown definitively that chronological age and functional ability are not related. Aging as a process of wearing out is related to the concept of biological age, but biological age and chronological age are not correlative .... The concept that a person at age sixty-five, or for that matter seventy or seventy-two inexorably has suffered a loss of ability and functional capacity is completely at variance with known facts.... There is no rational basis for taking age sixty-five as a milestone as [sic] either physical or mental capacity.” Age Discrimination in Employment Amendments of 1977: Hearings on S. 1784 Before the Subcomm. on Labor of the Senate Comm. on Human Resources, 95th Cong., 1st Sess. 174 (1977) (statement of A.E. Gunn, J.D., M.D.) (omissions and use of "sic” in original), quoted in Comment, O'Neil v. Baine: Application of Middle-Level Scrutiny to Old-Age Classifications, 127 U. Pa. L.Rev. 798, 812 (Jan. 1979).


author: SILBERMAN, Chief Judge. WHATLEY, Judge,

text:
    Norma GRIFFITH, Appellant, v. Marlene SLADE, Patricia Gash and Anita Hoyle, Appellees.
    No. 2D11-2153.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.

      Stephen D. Carle, Zephyrhills, for Appellant.
    No appearance for Appellees.
   SILBERMAN, Chief Judge.

Norma Griffith appeals the circuit court order terminating the power of attorney given to her by her mother, Antonia Mel-horn, and the order denying Griffith’s motion to strike and set aside the order terminating her power of attorney. Because Griffith was never properly served in this action, we reverse.

Our very limited record contains allegations as to the following factual background. Antonia and Carl Melhorn had five children, four daughters who live in Florida and a son who lives out of state. Carl passed away in June 2008, leaving the care of Antonia to their four daughters. In October 2008, Antonia executed a durable power of attorney in favor of her youngest daughter, Norma Griffith. In February 2011, Antonia’s other daughters, Marlene Slade, Patricia Gash, and Anita Hoyle, filed a pro se petition to terminate Griffith’s power of attorney. They alleged that Griffith, among other things, withheld medical and financial information from the rest of the family, monopolized health care decisions, and refused to allow family members to visit Antonia unless Griffith supervised. A hearing on the petition was set for March 18, 2011. Both the circuit court and Slade apparently sent notices of the hearing to Griffith, with Slade’s being sent by certified mail. However, no summons or other process was ever issued or served upon Griffith. Griffith did not appear at the hearing, and the circuit court entered an order on March 18, 2011, granting the petition and terminating her power of attorney.

On March 25, 2011, Griffith filed a motion to strike and set aside the order of March 18, 2011. She alleged that the plaintiffs failed to have process issued by the court and failed to serve process on her. The circuit court heard her motion on April 12, 2011. The circuit court denied the motion, and this appeal ensued.

The Supreme Court of Florida has described the relationship between service of process and personal jurisdiction as follows:

Both are necessary before a defendant, either an individual or business entity, may be compelled to answer a claim brought in a court of law. Personal jurisdiction refers to whether the actions of an individual or business entity as set forth in the applicable statutes permit the court to exercise jurisdiction in a lawsuit brought against the individual or business entity in this state. Service of process is the means of notifying a party of a legal claim and, when accomplished, enables the court to exercise jurisdiction over the defendant and proceed to judgment.

Borden v. E.-European Ins. Co., 921 So.2d 587, 591 (Fla.2006) (citations omitted). The procedure as to the issuance of process is set out in Florida Rule of Civil Procedure 1.070(a): “Upon the commencement of the action, summons or other process authorized by law shall be issued forthwith by the clerk or judge under the clerk’s or the judge’s signature and the seal of the court and delivered for service without praecipe.” Under section 48.031(l)(a), Florida Statutes (2010), “Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.” Rule 1.070(b) describes the individuals who may serve process and the mailing of proof of service. “Further, because of the importance of litigants receiving notice of actions against them, statutes governing service of process are to be strictly construed and enforced.” Shurmcm v. All Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001).

Here, neither a summons nor other process was issued, and service of process was not accomplished. Griffith was sent a “Notice of Hearing” via certified mail. Although Florida Rule of Civil Procedure 1.070(i) provides that defendants may accept service of process by mail and waive formal service, the rule has strict requirements that were not followed here. For example, there is no evidence in the record that the “Notice of Hearing” was accompanied by the petition, requested that Griffith waive service of a summons, or informed Griffith of the consequences of compliance or failure to comply with the request to waive service. See id. Significantly, “[a] judgment entered without service of process is void and will be set aside and stricken from the record on a motion at anytime.” Myrick v. Walters, 666 So.2d 249, 250 (Fla. 2d DCA 1996) (quoting Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987)) (alteration added).

We have also considered the possible effect of the notice requirements contained in section 709.08, Florida Statutes (2010). Section 709.08(5) provides in pertinent part as follows:

(a) A notice, including, but not limited to, a notice of revocation, notice of partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, notice of death of the principal, notice of suspension by initiation of proceedings to determine incapacity or to appoint a guardian, or other notice, is not effective until written notice is served upon the attorney in fact or any third persons relying upon a durable power of attorney.
(b) Notice must be in writing and served on the person or entity to be bound by the notice. Service may be by any form of mail that requires a signed receipt or by personal delivery as provided for service of process. Service is complete when received by interested persons or entities specified in this section and in chapter 48, where applicable.

The statute does not contemplate an alternative method for service of process, but rather it addresses the notice referenced by section 709.08(4)(a), which provides: “Any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal’s lack of capacity to manage property until the third party has received notice as provided in subsection (5).” In other words, a notice may be issued that informs the recipient that a person may no longer have authority to act pursuant to a power of attorney. However, such notice is not sufficient to bring a person within the jurisdiction of a court for legal proceedings. Indeed, nothing in the statute suggests that it may be used instead of service of process to bring a person before the court.

Although we acknowledge the circuit court’s concern over the alleged behavior of Griffith, “[procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard.” Carmona v. Wal-Mart Stores, E., LP, 81 So.3d 461, 463 (Fla. 2d DCA 2011). Griffith was afforded neither.

Because service of process was never properly accomplished or waived, we reverse the order terminating Griffith’s power of attorney and the order denying her motion to strike and set aside the order terminating her power of attorney.

Reversed.

LaROSE, J., Concurs.

WHATLEY, J., Dissents with opinion.

WHATLEY, Judge,

Dissenting.

I respectfully dissent. The plain language of section 709.08(5), Florida Statutes (2010), provides that notice via certified mail was sufficient. Section 709.08 explicitly addresses rules relating to a durable power of attorney, and subsection (5) of that statute specifically discusses notice requirements relating to a durable power of attorney. None of the cases relied upon in the majority opinion involve proceedings related to a durable power of attorney. Borden, 921 So.2d 587; Shurman, 795 So.2d 952; Carmona, 81 So.3d 461; Myrick, 666 So.2d 249.

Further, this appeal may be moot as the record indicates that proceedings may have been initiated to appoint a guardian for the principal, and therefore, Griffith’s power of attorney would have been suspended when such proceedings were initiated.

Because the Appellees complied with the notice requirements of section 709.08(5), I would affirm.

      . In 2011, the Florida Legislature substantially revised and renumbered Chapter 709, and repealed sections 709.01, 709.015, 709.08 and 709.11. Ch.2011-210, § 33, at 3273, Laws of Fla. (2011). These changes became effective on October 1, 2011, and are not applicable to the case at bar.


author: ALTENBERND, Judge.

text:
    Willie CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4313.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.
    Willie Clark, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Willie Clark appeals an order denying his postconviction petition to remove the requirement that he register as a sex offender. He filed his petition pursuant to section 943.04854, Florida Statutes (2011), the so-called “Romeo and Juliet” special circumstance. We conclude that we have jurisdiction of this appeal as one from an order entered after final judgment. See Fla. R.App. P. 9.140(b)(1)(D). Although from this record we cannot determine why the trial court denied this petition, we affirm because the petition was untimely. Mr. Clark’s offense occurred after July 1, 2007. As a result, he needed to raise this issue in a motion filed before his sentencing hearing. See § 943.04354(2). He is not eligible to file a petition after sentencing. See § 943.04354(3).

Mr. Clark’s petition alleges that he engaged in sexual activity with a fifteen-year-old girl on September 8, 2008, when he was eighteen years old. As a result, the State charged him with lewd and lascivious battery under section 800.04(4)(a), Florida Statutes (2008). In October 2009, he pleaded nolo contendere. The trial court adjudicated him guilty and placed him on one year of community control, followed by four years of probation as a sex offender. Persons who are convicted of violating section 800.04 are subject to substantial sex offender registration requirements. See § 943.0435.

Mr. Clark filed a “Petition to Remove Sex Offender Designation,” along with an appendix in June 2011. Apparently, the trial court conducted a hearing on this motion on July 25, 2011, although we have no transcript from that hearing. Mr. Clark appealed the denial of his motion before the trial court rendered any order. On September 14, 2011, the trial court entered an order denying the petition without any written explanation “after considering Mr. Clark’s petition, the State’s objection, and reviewing the case.”

Our review of this order has been hampered by the fact that Mr. Clark’s designation as a sex offender is not regarded as a portion of his sentence. See § 943.0435(12). He is handling this matter without the assistance of counsel. He sought to include a transcript of the July 2011 hearing in the record, but none was ever prepared. We have no idea whether the State objected to his petition in writing or at the hearing. The record contains no information about the position taken by the State in the trial court.

On appeal, the State takes the position that the decision to grant such a petition is “discretionary” and, thus, the order is not appealable. We disagree. There are many decisions made by trial courts that are discretionary. Neither the Florida Constitution nor the Florida Rules of Appellate Procedure exclude orders containing discretionary decisions from appellate review. Instead, such decisions are reviewed for an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). This standard of review rarely results in relief because it requires affir-mance of the trial court order unless no reasonable judge could have reached the decision challenged on appeal. Id. at 1203.

Florida Rule of Appellate Procedure 9.140(b)(1)(D) permits a defendant to appeal “orders entered after final judgment.” Although it may be that some orders following final judgment do not receive review in this fashion, we note that orders imposing a sexual predator designation are so appealable. See Saintelien v. State, 990 So.2d 494, 496 (Fla.2008). Given that the right to seek removal of the requirement to register as a sexual offender or predator is provided by statute and the defendant is provided only one opportunity to exercise this right, we see no reason not to treat this order as an appealable order. See § 943.04354(2); see also Miller v. State, 17 So.3d 778 (Fla. 5th DCA 2009) (reviewing a similar order without discussion of the jurisdictional basis).

Unfortunately for Mr. Clark, section 943.04354 is complex, and he has filed his petition under subsection (3) when it should have been filed under subsection (2). The relevant sections of the statute state:

943.04354 Removal of the requirement to register as a sexual offender or sexual predator in special circumstances.—
(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:
(a) ... committed a violation of ... s. 800.04 ... for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of ... s. 800.04 ...;
(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and
(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.
(2) If a person meets the criteria in subsection (1) and the violation of ... s. 800.04 ... was committed on or after July 1, 2007, the person may move the court that will sentence or dispose of this violation to remove the requirement that the person register as a sexual offender or sexual predator. The person must allege in the motion that he or she meets the criteria in subsection (1) and that removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the motion at least 21 days before the date of sentencing or disposition of this violation and may present evidence in opposition to the requested relief or may otherwise demonstrate why the motion should be denied. At sentencing or disposition of this violation, the court shall rule on this motion and, if the court determines the person meets the criteria in subsection (1) and the removal of the registration requirement will not conflict with federal law, it may grant the motion and order the removal of the registration requirement. If the court denies the motion, the person is not authorized under this section to petition for removal of the registration requirement.
(3)(a) This subsection applies to a person who:
1. Is not a person described in subsection (2) because the violation of ... s. 800.04 was not committed on or after July 1, 2007;
(b) A person may petition the court in which the sentence or disposition for the violation of ... s. 800.04 ... occurred for removal of the requirement to register as a sexual offender or sexual predator. The person must allege in the petition that he or she meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the petition at least 21 days before the hearing on the petition and may present evidence in opposition to the requested relief or may otherwise demonstrate why the petition should be denied. The court shall rule on the petition and, if the court determines the person meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law, it may grant the petition and order the removal of the registration requirement. If the court denies the petition, the person is not authorized under this section to file any further petition for removal of the registration requirement.

(Emphasis supplied).

For defendants who are eligible for relief under subsection (1), the time to seek relief depends on whether the violation of section 800.04 was committed before or after midnight of July 1, 2007. For a defendant like Mr. Clark, who committed his offense on or after July 1, 2007, relief must be sought by a motion filed before sentencing and the trial court must rule on the motion at sentencing. See § 943.04354(2). For a defendant who committed an offense before July 1, 2007, there is no requirement that the motion be filed before sentencing. See § 943.04354(3). Because Mr. Clark did not commit his violation of section 800.04 before July 1, 2007, his petition filed under subsection (3) was unauthorized and could be denied, or perhaps stricken.

It is noteworthy that our result in this opinion does not derive from a review of the order for an abuse of discretion. Before a trial court can make a discretionary decision, it must be presented with a pleading and a factual basis to make that decision. Here we review the petition de novo and determine, as a matter of law, that it was insufficient or unauthorized. The trial court was required to deny this petition as a matter of law, not as an issue of discretion.

If we were actually required to review this order for an abuse of discretion, we might have been obligated to reverse it. Section 943.04354 contains no explanation of the facts a trial court must consider in ruling on a motion filed under it. As explained in Canakaris, discretion is not unbridled:

The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.

Canakaris, 382 So.2d at 1203. When a statute provides no guidelines to assure that trial courts render similar results in similar cases, it is more important for trial courts to explain their reasoning.

Nothing in the order appealed or in the record explains the trial court’s ruling. If the court intended to make a discretionary-decision, we have no ability to determine why it ruled or whether there is any logic or justification for the result. In the future, almost all of these issues will be resolved at sentencing with an attorney representing the defendant. We are optimistic that records of discretionary decisions made under subsection 943.04354(2) will be more transparent and easier to review for an abuse of discretion than is the order in this case.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

      . For example, orders on motions filed pursuant to Florida Rule of Criminal Procedure 3.800(c) are orders entered after final judgment that have long been reviewed by petition for writ of certiorari. See Spaulding v. State, 93 So.3d 473, 476 (Fla. 2d DCA 2012) (emphasizing that the Second District "typically limit[s] certiorari review of orders denying relief under rule 3.800(c) to errors involving jurisdiction, violations of due process, patent applications of the wrong law, and other clear deprivations of constitutionally guaranteed rights”).

      . Obviously, the missing transcript may have demonstrated the logic and justification of the ruling. If we had been required to review a discretionary decision, in the absence of an explanation in the order, we would have needed the transcript in order to have an adequate record to review this issue.


text:
    Harry Dillon MADONNA, Appellant, v. Robert Lee GAYNOR, by and through Classie GAYNOR, Guardian de son tort; LTCSP-Pasadena, LLC; Long Term Care Institute of St. Petersburg, LLC; Florida Institute for Long Term Care, LLC; Senior Health Management-Florida, LLC; Daniel R. Davis; Linda J. Fecso; Debra Howe; Bruce M. Blake; Carol A. Crews; and Fannie L. Howell (as to Pasadena Man- or), Appellees.
    No. 2D11-4558.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.
    George M. Vinci, Jr., Karen Rich, and Jeremy W. Rogers of Spector, Gadon & Rosen, LLP, St. Petersburg, for Appellant.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee Robert Lee Gaynor, by and through Classie Gaynor, Guardian de son tort.
    No appearance for remaining Appellees.
   ALTENBERND, Judge.

Harry Dillon Madonna appeals the trial court’s nonfinal order denying his motion to dismiss the amended complaint for lack of jurisdiction over his person. We conclude that the trial court erred in failing to conduct an evidentiary hearing as required by Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), to resolve the issues of fact relating to personal jurisdiction.

Robert Lee Gaynor was a resident of a nursing home known as Pasadena Manor for a period of a year beginning in October 2007. During that year, the home allegedly was negligent in its care of Mr. Gaynor. He apparently suffered falls, decubitus ulcers, and other health issues relating to hygiene. Mr. Gaynor, by and through Classie Gaynor, his guardian de son tort, filed this action alleging negligence, breach of fiduciary duty, and statutory violations of section 415.1111, Florida Statutes (2007).

According to the amended complaint, the nursing home was owned by LTCSP-Pasadena, LLC, which is the entity that holds the license for this home. Long Term Care Institute of St. Petersburg, LLC, is a Delaware limited liability company that allegedly is an owner of LTCSP-Pasadena, LLC, and an entity that managed and oversaw the nursing home. Likewise, Florida Institute for Long Term Care, LLC, allegedly is an owner of LTCSP-Pasadena, LLC, and an entity that managed and oversaw the nursing home. Senior Health Management-Florida, LLC, is a Florida limited liability company that allegedly was “a management company” for the nursing home. The named individual defendants, including Mr. Madonna, are all associated in one fashion or another with one or more of the limited liability companies. From the amended complaint, it appears that all of the individual defendants are management-level personnel. None of the named defendants appear to be nurses or other employees at the nursing home who would have directly cared for Mr. Gaynor.

Mr. Madonna is a Pennsylvania resident who allegedly serves as the president and manager of all of the entities involved in operating and managing the nursing home except for Senior Health Management, LLC. The complaint alleged in rather general terms that he is one of the “Defendants” who committed negligence, breach of fiduciary duty, and statutory violations.

Initially, Mr. Gaynor could seek to obtain jurisdiction over Mr. Madonna, a nonresident defendant, “by pleading the basis for service in the language of the statute without pleading the supporting facts.” Venetian Salami Co., 554 So.2d at 502; see also Fla. R. Civ. Pro. 1.070(h). The amended complaint contained three theories of jurisdiction under Florida’s long-arm statute, two alleging specific jurisdiction and one alleging general jurisdiction. See § 48.193(1), (2), Fla. Stat. (2007). First, the complaint alleged that Mr. Madonna is the managing member of three of the limited liability companies involved in the operation and management of Pasadena Manor and that he was thereby doing business in Florida. See § 48.19S(l)(a). Second, it alleged that Mr. Madonna had committed tortious acts against Mr. Gay-nor in Florida. See § 48.193(l)(b). Finally, it alleged that Mr. Madonna engaged in substantial and not isolated activities within the State of Florida through his ownership of and involvement with nursing homes in Florida, including Pasadena Manor. See § 48.193(2).

Mr. Madonna filed a motion to quash service of process and to dismiss the amended complaint for lack of personal jurisdiction. He contended that Florida lacks jurisdiction over his person because (1) he is protected from personal jurisdiction under the corporate shield doctrine and (2) he has insufficient minimum contacts with the State of Florida. Both parties filed affidavits supporting their positions. These affidavits alleged complex facts that are in direct conflict and cannot be reconciled.

The trial court conducted a hearing on Mr. Madonna’s motion. The transcript reflects some confusion as to whether this hearing was required to be an evidentiary hearing. Nevertheless, it is clear that the trial court never received testimony or evidence. The order denying the motion contains no reasoning and does not explain how the trial court resolved the disputed issues of fact. Because the order does not assert the bases for the ruling, we cannot determine whether the trial court relied on one theory of personal jurisdiction or on all three theories. Although the nature of the evidentiary hearing on personal jurisdiction contemplated by the Florida Supreme Court in Venetian Salami is, by definition, to be “limited,” we cannot conclude that the proceeding in the record was sufficient to satisfy the requirement of a “limited evidentiary hearing” to determine the issue of personal jurisdiction. See Venetian Salami, 554 So.2d at 503.

As to Mr. Gaynor’s first theory of jurisdiction, it is plausible that because of Mr. Madonna’s ownership of and involvement with the Florida entities operating and managing Pasadena Manor, he is “[ojper-ating, conducting, engaging in, or carrying on a business or a business venture in this state” sufficient to subject him to specific personal jurisdiction under section 48.193(l)(a). However, without a resolution of the factual issues by the trial court, this record lacks any factual determination to support the trial court’s denial of Mr. Madonna’s motion to dismiss.

Concerning the corporate shield doctrine, to overcome this defense as to the theory of jurisdiction under section 48.193(l)(b), Mr. Gaynor would need to establish that Mr. Madonna “personally” committed the alleged tortious acts in Florida. See Doe v. Thompson, 620 So.2d 1004, 1005-06 (Fla.1993). The allegations of the amended complaint are somewhat general and do not specify acts personally committed by Mr. Madonna. On remand, if Mr. Gaynor wishes to establish this theory of jurisdiction, it may be appropriate for the trial court to require him to allege the tortious acts committed in Florida by Mr. Madonna personally with greater specificity. At this point, however, we cannot determine the factual basis relied upon by the trial court to decide that Mr. Madonna personally committed tortious acts or statutory violations in Florida.

As to Mr. Gaynor’s final theory of jurisdiction, it is plausible that Mr. Madonna’s ownership of and involvement with nursing homes in Florida, including but not limited to Pasadena Manor, show that Mr. Madonna has “initiated and maintained continuous and systematic business contacts” with this state sufficient to establish general jurisdiction. See Oldock v. DL & B Enters., Inc., — So.3d -, 2011 WL 4467636 (Fla. 2d DCA 2011); see also May v. Needham, 820 So.2d 430, 431 (Fla. 4th DCA 2002). Although Mr. Madonna’s affidavit alleged that he does not “personally own, operate, manage or consult with nursing homes, including Pasadena Manor, within the State of Florida,” Mr. Gaynor’s competing affidavit alleged that Mr. Madonna is the president and manager of “at least [twenty-eight] other Florida LLCs with their principal place of business in Florida,” all of which operate nursing homes in Florida. Because this factual dispute was not resolved by the trial court at an evidentiary hearing, we cannot determine from this record whether there is factual support for the trial court’s denial of Mr. Madonna’s motion.

Therefore, we reverse and remand for a proper evidentiary hearing to determine the issue of personal jurisdiction. Because the facts and the factual disputes related to personal jurisdiction are complex, we recognize that it may be necessary for the parties to engage in discovery limited to the jurisdictional facts prior to the evidentiary hearing. See McMillan v. Troutman, 740 So.2d 1227, 1229 (Fla. 4th DCA 1999).

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.

      . We are aware that Mr. Madonna has been a party in past nursing home litigation in the trial court and that he has appeared as a petitioner in this court in one such case in which he did not raise the issue of personal jurisdiction. See Fla. Inst, for Long Term Care, LLC v. Estate of Marchetta, 6 So.3d 63 (Fla. 2d DCA 2009) (table decision). We note that Mr. Madonna's failure to raise the issue of personal jurisdiction in prior litigation does not equate to doing business in Florida and that it is not a waiver of the issue in this case.

      . We are aware that this court recently reversed two orders denying motions to dismiss for lack of personal jurisdiction in nursing home litigation similar to this case. See Schwartzberg v. Brown, - So.3d -, 2012 WL 2361510 (Fla. 2d DCA 2012); Schwartzberg v. Knobloch, 2012 WL 1698746 (Fla. 2d DCA 2012). Those cases are distinguishable from this one in that the defendants apparently had only a remote ownership interest in the nursing homes, whereas here, Mr. Gaynor has alleged that Mr. Madonna has a direct ownership interest in and direct management involvement with the entities involved in operating and managing Pasadena Manor. The allegations in this case were disputed in competing affidavits, thereby creating the need for a proper evidentiary hearing.


author: MORRIS, Judge.

text:
    Jose CONTRERAS-GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5579.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2012.

      Jose Contreras-Garcia, pro se.
   MORRIS, Judge.

Jose Contreras-Garcia appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Contreras-Garcia did not waive his right to raise all collateral claims, we reverse the postconviction court’s order and remand for further proceedings.

In 2010, Contreras-Garcia was charged with lewd molestation on a child under twelve by a person over eighteen. The amended information states that the offense is a violation of section 800.04, Florida Statutes, and is a life felony. The judgment indicates that he entered a guilty plea to the purported lesser-included offense of “LEWD/LASC MOLES-TATN VICT UNDER 12, DEF OVER 18, a lesser[-]included offense.” The judgment states that the offense is a violation of section 800.04 and is a first-degree felony. Contreras-Garcia was sentenced to twelve years in prison followed by ten years’ probation and was designated a sexual predator.

On March 2, 2011, he filed a timely rule 3.850 motion raising the following claims: (1) his plea was involuntary because he thought he was pleading to a lesser-included second-degree felony, but the judgment and plea form lists the offense as a first-degree felony and there is no first-degree felony of lewd and lascivious molestation found in section 800.04, Florida Statutes (2009); therefore, he pleaded to a nonexistent crime; (2) his counsel was ineffective for allowing him to plead to a nonexistent crime; (3) his counsel was ineffective for failing to object when the prosecutor switched the first page of the plea form, which states that he was pleading to a first-degree felony; (4) he was improperly designated as a sexual predator because he was improperly convicted of a nonexistent first-degree felony and he would not qualify as a sexual predator if he had been properly convicted of a second-degree felony; (5) his conviction is the result of prose-cutorial misconduct when the State got him to agree to plead to a second-degree felony but then changed the plea form to indicate a first-degree felony; (6) his counsel was ineffective in failing to advise him that the charge should have been dismissed because the State failed to file charges within 175 days of his arrest; and (7) the trial court had no jurisdiction because the information was not filed within the required 175-day period.

The postconviction court summarily denied Contreras-Garcia’s rule 3.850 motion on the basis that he “waived his right to pursue any postconviction matters” as indicated by his signed plea form and the transcript of the plea hearing. The post-conviction court also found that the plea transcript showed that Contreras-Garcia did not object in court when trial counsel informed the court that he would be pleading to a first-degree felony. The postcon-viction court went on to note that because the State mentioned other instances of molestation by Contreras-Garcia against the victim, it was unlikely that the State would have allowed him to plead to a second-degree felony.

A copy of the plea form attached to the postconviction court’s order indicates that Contreras-Garcia waived all collateral remedies, including rule 3.850. But the postconviction court improperly concluded that he waived his right to raise all the claims that he raised. “[A] defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.” Stahl v. State, 972 So.2d 1013, 1015 (Fla. 2d DCA 2008) (citing Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.2005)). “However, ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.” Id. (citing Nixon v. United States, No. CV206-071, 2006 WL 2850430, at *2 (S.D.Ga. Oct.3, 2006)). Here, Contreras-Garcia claimed that his plea was involuntary because he did not know that he was pleading to a nonexistent crime and that counsel was ineffective in this regard. He also claimed that counsel was ineffective in failing to advise him that the case should have been dismissed on the basis that the State did not file charges within 175 days of his arrest. Because these claims relate to the voluntariness of his plea and the effectiveness of counsel in advising him on the plea, the waiver of his right to seek collateral relief does not bar these claims and the postconviction court erred in not considering these claims on their merits. See id. at 1016 (holding that defendant who waived right to seek collateral relief as part of his plea could “move to withdraw his plea by alleging that it was not knowingly or voluntarily entered ’ or [by] alleging] that his counsel was ineffective for misadvising him to enter into the plea agreement”).

Turning now to the merits, we first address Contreras-Garcia’s claim that counsel failed to advise him that the charge should have been dismissed because the State failed to file the information within 175 days of his arrest. He claimed that counsel made an oral motion to dismiss on the day of trial but that when the parties agreed to a plea, the motion to dismiss was not ruled upon. Contreras-Garcia is correct that he would have been entitled to discharge and dismissal of the charge if the State did not file the information within 175 days of his arrest. See Fla. R.Crim. P. 3.191; State v. Naveira, 873 So.2d 300, 305 (Fla.2004) (“[T]he State may file a charging document at any time within the applicable speedy trial period_ [H]ow-ever, the State cannot charge the defendant after that [175-day] period expires. Essentially, then, the speedy trial deadline also acts as the deadline for charging the defendant.” (citing State v. Williams, 791 So.2d 1088 (Fla.2001))); Doctor v. State, 68 So.3d 335 (Fla. 1st DCA 2011) (holding that defendant should have been discharged when state did not file charges within 175 days of his arrest and noting that state is not entitled to recapture period when state has not filed charges within that 175-day period). The record before this court does not refute his claim that the charge was not filed within the 175-day period or his claim that counsel failed to properly advise him that the charge should have been dismissed. Accordingly, we reverse and remand for further proceedings on this issue.

Next, we address Contreras-Garcia’s claim that his plea was involuntary and based on ineffective assistance of counsel because he was convicted of a nonexistent crime. “It is a fundamental principle of Florida jurisprudence that one cannot be convicted of a nonexistent crime.” Jordan v. State, 801 So.2d 1032, 1035 (Fla. 5th DCA 2001) (citing Achin v. State, 436 So.2d 30, 30 (Fla.1982)). This is true even when the defendant has been convicted of the crime as part of a plea agreement. Id.

The record indicates that both the State and the defense were under a mistaken belief that there is a first-degree felony-offense of lewd and lascivious molestation. The plea form indicates that Contreras-Garcia ultimately agreed to plead guilty to the lesser offense of “(FI) lewd molestation.” The judgment also lists the offense as “LEWD/LASC MOLESTATN VICT UNDER 12, DEF OVER 10, a lesser[-] included offense.” The judgment identifies the degree as “FI.” The offense in this case was alleged to have occurred on September 26, 2009. Under the 2009 version of section 800.04, Florida Statutes, the offense of lewd and lascivious molestation of a child under twelve by a person over eighteen is a life felony. § 800.04(5)(b). The other types of lewd and lascivious molestation listed in the statute are second- and third-degree felonies. § 800.04(5)(c)(l)-(2), (d). Therefore, there is no first-degree felony lewd and lascivious molestation. Furthermore, the other types of prohibited conduct in section 800.04 are either second- or third-degree felonies. § 800.04(4) (lewd and lascivious battery), (6) (lewd and lascivious conduct), & (7) (lewd and lascivious exhibition). Therefore, Contreras-Garcia was convicted of a nonexistent offense. The transcript of the plea hearing indicates that he understood he was pleading to a first-degree felony, but it does not refute his claim that he was unaware that there is no such first-degree felony.

Accordingly, we reverse the postconviction court’s order of denial and remand for an evidentiary hearing on these narrow issues. If the court determines that there is merit to his claim that counsel was ineffective in failing to inform him that the charge should have been dismissed, he would be entitled to withdraw his plea and have the charge dismissed. But if there is no merit to his claim that the charge should have been dismissed, the postcon-viction court shall determine whether Contreras-Garcia’s plea was involuntary based on counsel’s misadvice regarding the nonexistent first-degree felony. If the court determines that his plea was involuntary on this basis, Contreras-Garcia may withdraw his plea. We warn him that if he were to choose to do so, the State would be able to proceed on the original life felony charge and would not be required to negotiate a plea agreement on any lesser-included offense.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.

      . There may have been an earlier discussion about pleading to a lesser-included second-degree felony; Contreras-Garcia submitted a copy of a plea form that is difficult to decipher based on the quality of the copy, but it appears to contain the phrase "lewd molestation (F2)."

      . We also point out that even though Contreras-Garcia argued that he would not qualify as a sexual predator if he was convicted of a second-degree felony under section 800.04, see § 775.21(4)(a)(l), Fla. Stat. (2009), a defendant may agree to be designated as a sexual predator as a bargained-for part of a plea agreement, even if his conviction does not qualify for such designation under the statute. See Kingry v. State, 28 So.3d 173, 174 (Fla. 1st DCA 2010).