author: CANADY, C.J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Gilda MENENDEZ, et al., Respondents.
    No. SC10-116.
    Supreme Court of Florida.
    Aug. 25, 2011.

      Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, FL, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, FL, for Petitioner.
    Lauri Waldman Ross and Theresa L. Girten of Ross and Girten, Miami, FL, and Karel Remuo of Coral Gables, FL; Gonzalo R. Dorta and Jonathan H. Kaskel of Gonzalo R. Dorta, P.A., Coral Gables, FL, for Respondent.
    Mark Andrew Boyle, Sr., Geofrey H. Gentile, Sr., Debbie Sines Crockett and Michael W. Leonard of Boyle and Gentile, P.A., Fort Myers, FL, and Stephen A. Marino, Jr., Miami, FL, on behalf of the Florida Justice Association, as Amicus Curiae.
   CANADY, C.J.

State Farm Mutual Automobile Insurance Company seeks review of State Farm Mutual Automobile Insurance Co. v. Menendez, 24 So.3d 809 (Fla. 3d DCA 2010), in which the Third District Court of Appeal determined that the household exclusion in State Farm’s policy issued to Gilda Menen-dez is ambiguous and therefore could not be enforced to eliminate coverage for bodily injuries suffered by members of the household of a permissive-driver insured. The Third District thus applied the rule that ambiguous policy provisions must be interpreted in favor of the insured. The Third District’s decision expressly and directly conflicts with Linehan v. Alkhabbaz, 398 So.2d 989 (Fla. 4th DCA 1981), in which the Fourth District Court of Appeal concluded that a similar household exclusion provision did bar coverage for the injury claims of a member of the permissive driver’s household. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We conclude that the household exclusion provision in the policy issued to Menendez unambiguously applies to claims by members of the household of a permissive-driver insured. We therefore quash the Third District’s decision and approve Line-han.

I. BACKGROUND

Menendez, the named insured in an automobile insurance policy issued by State Farm, permitted' her granddaughter, Fabi-ola G. Llanes, to use her vehicle. While operating the vehicle, the granddaughter was in an accident with another vehicle, resulting in injuries to herself, her parents, Fabiola P. and Roger Llanes, and Menen-dez. When the accident occurred, the granddaughter was living with her parents, and Menendez was living at a separate address. Menendez filed a declaratory judgment action against State Farm and Fabiola G., Fabiola P., and Roger Llanes, seeking a determination that the policy provided insurance coverage for the bodily injuries suffered by the Llaneses. State Farm asserted in defense that due to the household exclusion in the policy, there is no coverage for the Llaneses’ bodily injuries. In addition, State Farm filed a cross-claim seeking a declaration that it had no obligation to defend or indemnify the granddaughter in any action filed by the parents or Menendez arising from the accident.

The policy issued to Menendez expressly defines terms in the insurance policy that appeared in bold and italicized type. Specifically, the policy defines the following material terms and phrases:

Insured — means the person, persons or organization defined as insureds in the specific coverage....
Relative — as used in Sections I, III, IV and V means a person related to you or your spouse by blood, marriage or adoption (including a ward or foster child) who resides primarily with you. It includes your unmarried and unemanci-pated child away at school.
As used in Section II, relative means a relative of any degree by blood or marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere.
You or Your — means the named insured or named insureds shown on the declarations page.

The portion of Menendez’s policy titled “Liability — Coverage A” — which appears in Section I of the policy — obligates State Farm to “defend any suit against an insured” for covered damages and to pay damages which “an insured becomes legally liable to pay” because of bodily injury or property damage caused by accident resulting from the ownership, maintenance, or use of Menendez’s car. The Coverage A provision — in its omnibus insured clause — then provides that for purposes of that coverage, the term “insured ” includes “you,” “your spouse,” “the relatives of the first person named in the declarations,” “any other person while using such a car if its use is within the scope of consent of you or your spouse,” and “any other person or organization liable for the use of such a car by one of the above insureds.”

The household exclusion to Coverage A provides that there is no coverage for “any bodily injury to” “any insured or any member of an insured’s family residing in the insured’s household.” State Farm asserted that the meaning of the household exclusion is plain and that “the insured’s ” as used in the exclusion refers to the prior phrase “an insured’s ” used earlier in the exclusion. State Farm thus reasoned that because the granddaughter, as a permissive driver of Menendez’s vehicle, was an insured under the policy and the granddaughter and her parents resided in the same household, there is no coverage under the policy for the parents’ bodily injuries.

In contrast, Menendez and the Llaneses contended that the term “the insured’s ” at the end of the exclusion could not have the same meaning as the term “an insured’s ” used earlier in the exclusion. They argued that “the insured’s ” refers to the named insured, Menendez, and that “the insured’s ” does not include permissive drivers. Under this interpretation, the household exclusion would eliminate coverage for bodily injury claims of members of only the named insured’s household. Accordingly, Menendez and the Llaneses asserted that because the parents did not reside with the named insured at the time of the accident, the household exclusion is inapplicable to their injuries. In addition, the Llaneses argued that the granddaughter is not an insured under the policy and thus State Farm was obligated to provide coverage for her injuries.

State Farm, the Llaneses, and Menen-dez each filed a motion for summary judgment. After hearing arguments from the parties, the trial court concluded that the household exclusion is ambiguous. As a result, the trial court granted the motions for summary judgment filed by Menendez and the Llaneses, denied State Farm’s motion for summary judgment, and entered a final summary judgment against State Farm. State Farm appealed the final summary judgment.

The Third District Court of Appeal affirmed. Based on the section of the policy which defines “insured ” as including both the named insured and “any other person while using such a car if its use is within the scope of consent of’ the named insured, the Third District concluded that the household exclusion clearly eliminates coverage for any bodily injury claims asserted by Menendez and her granddaughter. Menendez, 24 So.3d at 811. The Third District agreed with the trial court, however, that the household exclusion is susceptible to more than one reasonable interpretation regarding coverage of the parents’ bodily injuries. After discussing the arguments made by the respondents and State Farm, the Third District construed the exclusion in favor of the insured and against the insurer and thus affirmed the trial court’s order. Id. at 811-12. State Farm then petitioned this Court for review on the basis of express and direct conflict, and we accepted jurisdiction.

II. ANALYSIS

Before this Court, State Farm and the respondents agree that at the time of the accident, the granddaughter was using Menendez’s car with Menendez’s consent and therefore qualified as an omnibus insured under the policy. They further agree that absent an applicable exclusion, State Farm would be bound by Coverage A to defend the granddaughter in an action for bodily injuries arising from the accident and that if the granddaughter was found legally liable, State Farm would be bound to pay those damages. Finally, the parties agree that at the time of the accident, the granddaughter and her parents lived in the same residence but that Men-endez did not live with them.

Thus, the sole question before this Court is the conflict issue — whether the household exclusion barring coverage for “any bodily injury to” “any insured or any member of an insured’s family residing in the insured’s household” unambiguously eliminates coverage for bodily injuries suffered by the members of the household of a permissive-driver insured. We agree with the Fourth District’s decision in Line-han that the plain language of the household exclusion bars coverage for bodily injuries suffered by members of the household of a permissive-driver insured.

In Linehan, the Fourth District addressed the applicability of a substantively similar household exclusion, which provided — as paraphrased by the district court— that “this insurance does not apply under coverage A to bodily injury to any insured or any member of the family of any insured residing in the same household as the insured.” 898 So.2d at 990 n. 1. In that case, Katherine Alkhabbaz loaned her automobile to her aunt, Marianna R. Line-han. The vehicle was involved in an accident, killing Marianna and injuring her daughter, Laura Linehan, who was driving at the time. Marianna and Laura had resided together in the same household. Marianna’s personal representative sued Alkhabbaz, Laura Linehan, State Farm, which insured the Alkhabbaz vehicle, and Liberty Mutual Insurance Company, which insured a vehicle owned by Marianna but not involved in the accident. State Farm contended that Laura, as a permissive driver, was an insured under the policy and asserted that since Marianna and Laura were residents of the same household, the household exclusion defeated the claims by Marianna’s estate. The trial court granted summary judgment in favor of State Farm, and the Fourth District affirmed the summary judgment. Id. at 990.

In interpreting an insurance contract, we are bound by the plain meaning of the contract’s text. “If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written.” Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla.2004). “Policy language is considered to be ambiguous ... if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ” Id. (quoting Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003)). A provision is not ambiguous, however, “simply because it is complex or requires analysis.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla.2010) (quoting Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla.2007)). “When language in an insurance policy is ambiguous, a court will resolve the ambiguity in favor of the insured by adopting the reasonable interpretation of the policy’s language that provides coverage as opposed to the reasonable interpretation that would limit coverage.” Travelers Indem. Co., 889 So.2d at 785-86. “Generally, courts will strive to interpret an automobile insurance policy based on the definitions contained within the policy.” Grant v. State Farm Fire & Cas. Co., 638 So.2d 936, 937 (Fla. 1994).

Here, the text of the policy unambiguously excludes coverage for any bodily injury claims asserted by members of a permissive-driver insured’s family residing in the household of the permissive-driver insured. This meaning emerges from the policy’s separate definitions of the terms “insured” and “the named insured” and the way the words “insured” and “insured’s ” are used in the text of the household exclusion. Both the broader context of the policy’s defined terms and the immediate context of the policy exclusion provision point unambiguously to the conclusion that the household exclusion is applicable here.

Contrary to the respondents’ argument, the policy clearly and consistently distinguishes the term “insured ” from the concept of “the named insured.” In the definitions, the policy provides that Menendez, the individual who contracted with State Farm for insurance coverage, will be referred to as “you ” throughout the policy. The policy then consistently uses “you ” or the equally unambiguous phrases “the first person named in the declarations” or “the first insured named in the declarations” to refer to Menendez. The fact that Menen-dez, “the named insured,” is consistently distinguished from the broader category of “insured,” undermines the Third District’s conclusion that the household exclusion is ambiguous.

Moreover, after defining “insured” for purposes of Coverage A as including individuals other than Menendez, such as permissive drivers, the policy does not distinguish “an insured ” or “any insured ” from “the insured.” To the contrary, the policy uses the terms “an insured” and “the insured” interchangeably to refer to any type of insured, bolding and italicizing only the word “insured,” not the article preceding the defined term.

In the text of the household exclusion itself — excluding coverage for “any bodily injury to” “any insured or any member of an insured’s family residing in the insured’s household” — the reference to “the insured’s household” cannot reasonably be understood as denoting only “the named insured’s household.” The interpretation advanced by the respondents ignores the preceding reference in the exclusion to “any insured or any member of an insured’s family.” The initial reference in the exclusion to “any insured” governs the succeeding reference to “an insured’s family” and “the insured’s household.” In the last phrase, the word “the” points back to the preceding reference to “any insured ” and “an insured’s family.” The is “used as a function word to indicate that a following noun or noun equivalent refers to someone or something previously mentioned or clearly understood from the context or the situation.” Webster’s Third New International Dictionary 2368 (1993). The exclusion’s reference to family members “residing in the insured’s household” therefore encompasses family members residing in the household of any insured.

State Farm’s position regarding the household exclusion is supported by this Court’s decision in Webb v. American Fire & Casualty Co., 148 Fla. 714, 5 So.2d 252 (1941). In Webb, the plaintiff obtained a judgment against Sophie and Louis Davidson and then instituted garnishment proceedings against American Fire & Casualty Company by reason of an indemnity policy issued to Sophie Davidson. Anna Webb was an employee of Louis Davidson. American Fire claimed that Webb’s injuries, which occurred while Louis was driving, were not covered because of a policy exclusion that stated, “This policy does not apply ... (f) Under Coverage 1, to bodily injury or to death of the Insured; or to bodily injury or to death of any employee of the Insured while engaged in the business of the Insured.” Id. at 252.

This Court concluded that American Fire was not liable under the policy. In interpreting the exclusion, this Court looked at the policy’s definition of insured, which included “not only the named Insured but also any person while using the automobile when such actual use is with the permission of the named Insured.” Id. at 253. Because there was a dispute regarding whether Louis Davison had been added to the policy as a named insured before the accident occurred, this Court’s holding addressed both possibilities. This Court concluded that if Louis were a named insured, Webb could not recover “because the accident occurred while she was engaged as an employee of the insured.” In the alternative, this Court determined that even if Sophie Davidson were the only named insured on the policy, Webb nevertheless could not recover “because the exclusion clause applies not only to the named insured but also applied to Louis Davidson who was using the automobile with the knowledge and consent of the named insured to transport his employee under his contract of employment with the plaintiff.” Id. In brief, this Court interpreted the term “the Insured,” used in an exclusionary clause, as incorporating the policy definition of “insured,” which includes permissive drivers.

Our interpretation of the household exclusion provision here is consistent with the reasoning of Webb and with the view adopted by the large majority of other jurisdictions that have addressed similarly worded policy provisions. See Zipperer v. State Farm Mut. Auto. Ins. Co., 254 F.2d 853, 855 (5th Cir.1958) (concluding that an exclusion stating that coverage did not apply “to the insured or any member of the family of the insured residing in the same household as the insured” barred coverage for injuries sustained by a passenger who was a relative of a permissive-driver insured); State Farm Mut. Auto. Ins. Co. v. Northwest Leasing Corp., 295 F.Supp. 516, 519 (D.N.D.1969) (concluding that an exclusion for “bodily injury to the insured or any member of the family of the insured residing in the same household as the insured” applied to the wife of a permissive insured); Third Nat’l Bank of Ashland v. State Farm Mut. Auto. Ins. Co., 334 S.W.2d 261, 262-63 (Ky.1960) (concluding that an exclusion barring coverage for bodily injuries “to the insured or any member of the family of the insured residing in the same household as the insured” applied to injuries suffered by the cohabitating sister-in-law of a permissive driver), superseded by statute as recognized in Lewis v. West Am. Ins. Co., 927 S.W.2d 829 (Ky. 1996) (concluding that in light of Kentucky Motor Vehicle Reparations Act, household exclusions in automobile liability insurance policies violate public policy and thus are not enforceable); State Farm Mut. Auto. Ins. Co. v. Ballmer, 899 S.W.2d 528, 525-26 (Mo.1995) (concluding that an exclusion for bodily injury to “any insured or any member of an insured’s family residing in the insured’s household” was unambiguous and that “the insured” simply referred to any person or organization identified previously in the exclusion as “an insured,” which under the facts of that case included the permissive driver); Nodak Mut. Ins. Co. v. Wacker, 154 N.W.2d 776, 778-80 (N.D.1967) (concluding that “the insured” in a household exclusion included a permissive driver and barred the claim by the wife of the permissive driver). But see Patton v. Patton, 413 Pa. 566, 198 A.2d 578, 580, 582-83 (1964) (concluding that “the insured” in an exclusion eliminating coverage for bodily injury “to the insured or any member of the family of the insured residing in the same household as the insured” meant only the named insured and did not bar a claim by the wife of a permissive driver against the named insured).

III. CONCLUSION

Based on the foregoing, we quash the Third District’s decision, approve Linehan, and remand for proceedings consistent with this opinion. The plain language of the household exclusion precludes coverage for bodily injuries suffered by members of the household of a permissive-driver insured, such as the parents in this case, Fabiola P. and Roger Llanes.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


source: Caselaw Access Project

author: LABARGA, J.

license: Public Domain

text:
    Solveig Edna HILL, Petitioner, v. Douglas DAVIS, etc., Respondent.
    No. SC10-823.
    Supreme Court of Florida.
    Sept. 1, 2011.

      Louis K. Rosenbloum, Pensacola, FL, and H. Guy Green, Marianna, FL, for Petitioner.
    Frank A. Baker, Marianna, FL, Michele M. Lenoff and Steven Lenoff, Deerfield Beach, FL, for Respondents.
   LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Hill v. Davis, 31 So.3d 921 (Fla. 1st DCA 2010). The district court certified that its decision is in direct conflict with the decision of the Third District Court of Appeal in Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The issue before us is whether an objection to the qualifications of a personal representative of an estate is barred by the three-month filing deadline set forth in section 733.212(3), Florida Statutes (2007), a provision of the Florida Probate Code, when the objection is not filed within that statutory time frame. For the reasons explained below, we hold that section 733.212(3) bars an objection to the qualifications of a personal representative, including an objection that the personal representative was never qualified to serve, if the objection is not timely filed under this statute, except where fraud, misrepresentation, or misconduct with regard to the qualifications is not apparent on the face of the petition or discovered within the statutory time frame. Accordingly, because fraud, misrepresentation, or misconduct was not alleged in relation to the objection to the personal representative in this case, we approve the decision of the First District Court of Appeal in Hill. To the extent that the decision of the Third District in Angelus involved allegations of fraud and misrepresentation not revealed in the petition for administration, we approve the result in Angelus. However, we disapprove Angelus to the extent that it holds section 733.212(3) does not bar objections that a personal representative was never qualified to serve. We turn first to the facts of this case.

FACTS

Following the death of Katherine Davis (the “decedent”) in Florida in 2007, Douglas Davis, a resident of New York, filed a petition for administration asserting that he was entitled to be appointed personal representative of the estate because he was the decedent’s stepson and was nominated as personal representative in the will. The trial court admitted the will to probate and appointed Davis as the personal representative. The court granted letters of administration and Davis published the notice of administration on July 13, 2007. A copy of the notice of administration was served on Solveig Edna Hill, the decedent’s mother, on July 24, 2007. After filing several motions challenging the validity of the will, Hill filed a motion challenging Davis’s qualifications to serve as a nonresident personal representative on August 6, 2008. In that motion, Hill contended generally that Davis was unqualified to serve as a nonresident personal representative under the requirements in section 733.304(3), Florida Statutes (2007). Section 733.304(3) sets forth certain qualifications for nonresident personal representatives and provides in pertinent part:

733.304 Nonresidents.—
A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity [] to any such person....

§ 733.304(3), Fla. Stat. (2007) (footnote added).

At a hearing held March 9, 2009, the trial court ruled on the record that Davis was qualified to act as a nonresident personal representative, but no written order was entered at that time. Hill subsequently filed a renewed motion to disqualify Davis as personal representative, alleging that decedent’s husband, John Davis (the father of respondent Davis), was not decedent’s spouse at the time of her death because he had predeceased her, and therefore respondent was not a lineal descended of decedent’s spouse for purposes of section 733.304. A hearing was held on June 8, 2009, at which the trial court again rejected the challenge to Davis’s qualifications as a nonresident personal representative. The court found that Davis, as the son of decedent’s now-deceased spouse, was qualified to be personal representative under the provisions of the nonresident personal representative statute. The circuit court’s written order was entered on July 10, 2009, finding Davis was qualified to serve as personal representative and also finding that Hill’s objection was not filed within the three-month time frame set forth in section 733.212(3). Hill then timely filed her notice of appeal to the First District Court of Appeal.

On appeal, the First District did not reach the merits of the claim that Davis was not qualified under the nonresident personal representative statute, but affirmed the probate court’s denial of Hill’s motion to disqualify Davis, finding that her objection was barred by the three-month time limit in section 733.212(3). This provision states:

(3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

§ 733.212(3), Fla. Stat. (2007). The First District then certified conflict with the Third District’s decision in Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA 2004), which held that “[t]he three-month statute of limitations period contained in Section 733.212(3) does not apply to bar Angelus’s petition because [the nonresident personal representative] was never legally qualified to serve as personal representative at any time.” Angelus, 868 So.2d at 573. First, we set forth the standard of review applicable to our analysis.

ANALYSIS

Standard of Review

Because this issue is one of statutory interpretation, review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007). This Court has explained, “Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” Fla. Dep’t of Children & Family Servs, v. P.E., 14 So.3d 228, 234 (Fla.2009). In this regard, “legislative intent is determined primarily from the text” of the statute. Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 374 (Fla.2008). This is because “the statute’s text is the most reliable and authoritative expression of the Legislature’s intent.” Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 820 (Fla.2007) (quoting V.K.E. v. State, 934 So.2d 1276, 1286 (Fla. 2006)). Courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (emphasis omitted) (quoting Am. Bankers Life Assur. Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). “Thus, if the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.” GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). With these principles in mind, we turn to the statute at issue in this case.

Discussion

The conflict issue in this case revolves around the provision in section 733.212(3), Florida Statutes (2007), of the Florida Probate Code setting forth a three-month time limit for filing objections to the qualifications of a personal representative. Hill contends that although her objections to Davis’s qualifications as a nonresident personal representative were filed more than three months after service of the notice of administration, the motions were not untimely because the three-month filing deadline does not preclude a challenge to the qualifications of a personal representative who was never eligible to serve. She argued below that because the decedent’s spouse had predeceased her, the probate court erred in finding that Davis was “a person related by lineal consanguinity to” the decedent’s spouse, as set forth in section 733.304(3). Hill contended that Davis was never qualified to serve as a nonresident personal representative and, for that reason and based on the holding in Angelus, her objection to Davis’s qualifications was not barred by section 733.212(3). As explained more fully below, we disagree with Hill’s contention that the time limit in section 733.212(3) does not apply to objections that the personal representative was never qualified to serve.

Examination of the text of section 733.212(3) is our first task. Importantly, the text of section 733.212(3) makes no exception for objections that the personal representative was never qualified to serve. The statutory three-month time limit for filing objections, on its face, applies to any objections to the qualifications of a personal representative. Hill contends otherwise and argues that the Ange-lus court was correct in holding as follows:

The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§ 733.304 [the nonresident qualification statute], 733.3101, Fla. Stat. (2003). We find no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute nor upon Rule 5.310, particularly where the applicant was never otherwise legally qualified to serve.

Angelus, 868 So.2d at 573. The First District in this case took a different view of the time limit set forth in section 733.212(3), and explained:

[W]e disagree with the sweeping holding in Angelus because it effectively renders part of section 733.212(3) meaningless. The statute clearly states that interested persons such as appellant “must object to ... the qualifications of the personal representative” within three months of the service of the notice of administration or such an objection is “forever barred.” A claim that a nonresident is not qualified to serve as a personal representative pursuant to section 733.304 is an objection to “the qualifications of the personal representative” and should be subject to the clear and unambiguous provisions of section 733.212(B).... Contrary to the Third District’s decision in Angelus, we find nothing in Florida Probate Rule 5.310 or sections 733.304 and 733.3101, Florida Statutes, which would preclude the application of the three-month statute of limitations period contained in section 733.212(3) to appellant’s claim that appellee was not qualified to serve as a nonresident personal representative pursuant to section 733.304 where the factual basis for the claim was known to appellant and could have been raised within the three-month period.

Hill, 31 So.3d at 923-24 (emphasis supplied) (citation omitted). We agree with the First District’s analysis of the applicability of section 733.212(3) to an objection that a personal representative was never qualified to serve where the factual basis for the claim was known to the challenger and could have been timely raised under the statute. The broad statement in Ange-lus that section 733.212(3) does not bar untimely objections to a personal representative who was never eligible to serve is unsupported by the text of section 733.212(3). Further, that broad statement in Angelus would improperly engraft upon section 733.212(3) an exception not included there by the Legislature. We have long held that courts are not at liberty to extend, modify, or limit the express and unambiguous terms of a statute. See, e.g., Holly, 450 So.2d at 219.

The Angelus court characterized section 733.304, the nonresident personal representative statute, as a qualification statute standing separate and apart from section 733.212(3), which provides for objections to the qualifications of a personal representative within the three-month time limit set forth there. Section 733.304 does enunciate the requirements for a nonresident personal representative, and it is silent as to any deadline for objecting to such person’s qualifications. This silence, however, does not require or even suggest that the section be interpreted to mean there is no time limit for filing such objections. As the First District concluded, a claim that a nonresident is not qualified to serve is an objection to the qualifications of a personal representative, a matter expressly addressed in section 733.212(3).

This conclusion is buttressed by the fact that both section 733.304, regarding nonresident personal representatives, and section 733.212, which governs the filing of objections, are contained within the Florida Probate Code (chapters 731-735, Florida Statutes). The Florida Probate Code constitutes a unified statutory scheme intended to govern all probate matters— section 731.102, Florida Statutes (2007), expressly states that the probate code “is intended as unified coverage of its subject matter.” § 731.102, Fla. Stat. (2007). This Court has recognized that statutes relating to the same subject matter should be read in pari materia. See Fla. Dept. of State v. Martin, 916 So.2d 763, 768 (Fla.2005) (“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.”). Where, as here, the Florida Legislature has provided a unified and comprehensive statutory scheme, this Court will “attempt to follow the requirements that it has set forth.” E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009) (stating as to certain provisions in chapter 985, Florida Statutes, pertaining to juvenile justice, that “the Florida Legislature has provided a comprehensive statutory scheme, and we attempt to follow the requirements that it has set forth”).

Because section 733.212(3) states in a comprehensive fashion when an objection to the qualifications of a personal representative must be filed, it was unnecessary for the Legislature to state a time deadline in section 733.304 for objecting specifically to the qualifications of a nonresident personal representative. Moreover, there is no indication in section 733.212(3) that the three-month deadline for filing objections applies only to resident personal representatives. The First District correctly noted that section 733.212(3) “clearly states that interested persons such as appellant ‘must object to ... the qualifications of the personal representative’ within three months of the service of the notice of administration,” and that “[a] claim that a nonresident is not qualified to serve as a personal representative pursuant to section 733.304 is an objection to ‘the qualifications of the personal representative’ and should be subject to the clear and unambiguous provisions of section 733.212(3).” Hill, 31 So.3d at 923. We agree. Moreover, as the district court also noted, it is significant that Hill knew at the outset of the administration of the estate that Davis was the son of decedent’s deceased husband. Nothing was concealed or misrepresented, as apparently occurred in Angelus. Accordingly, we approve Hill, and hold under the facts of this case that Hill’s objection to Davis’s qualifications to serve as personal representative was not timely filed under section 733.212(3), and is thus barred.

CONCLUSION

For the reasons expressed above, we approve the decision of the First District in Hill, which affirmed the order of the circuit court denying Hill’s motion to disqualify Davis as personal representative, and we remand for further proceedings consistent with this decision. To the extent that Angelus involved fraud or misrepresentation that was not revealed in the petition for administration, we approve of the result in Angelus. However, we disapprove Angelus to the extent that it broadly holds that section 733.212(3) does not apply to bar objections that a personal representative was never qualified to serve. Because we approve the decision below affirming denial of Hill’s motion to disqualify Davis as personal representative, Hill’s pending motion for conditional award of appellate attorney’s fees is denied.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

CANADY, C.J., and POLSTON, J., concur in result.

      . This case does not involve a proceeding filed under probate code sections 733.504, Florida Statutes (2007), and 733.506, Florida Statutes (2007), which provide for an adversary proceeding to remove a personal representative for reasons set forth in section 733.504. Thus, our decision in this case is limited to objections filed pursuant to section 733.212(3).

      . It is undisputed, and the petition made clear, that Davis is the son of decedent’s husband, who died before the decedent, and that Davis was nominated in the decedent’s will to be appointed personal representative of her estate.

      . Although the exact date that Hill was served with the notice of administration is not reflected in the district court’s opinion or in the record, Hill has not disputed that she was served on July 24, 2007. Hill also concedes that she did not file and serve her motion to disqualify Davis within the three-month time frame set forth in section 733.212(3).

      . Black’s Law Dictionary defines "lineal consanguinity” as ”[t]he relationship between persons who are directly descended or ascended from one another (for example, mother and daughter, great-grandfather and grandson, etc.).” Black’s Law Dictionary 322 (8th ed. 2004).

      . The district court did not reach the issue of whether Davis was, in fact, qualified to serve, and Hill did not brief that issue in this Court. Accordingly, our decision is limited to the conflict issue concerning the three-month filing deadline in section 733.212(3).

      . Our holding renders it unnecessary for us to reach Davis’s claim that Hill lacked standing to challenge Davis’s qualifications as personal representative.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Jane Marie LETWIN, Respondent.
    No. SC09-2360.
    Supreme Court of Florida.
    Sept. 1, 2011.

      John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Alan Anthony Pascal, Bar Counsel, The Florida Bar, Sunrise, FL, for Complainant.
    Jane M. Letwin, Pro se, Coral Gables, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent, Jane Marie Letwin, be found guilty of professional misconduct and disciplined. We have jurisdiction. See art. V, § 15, Fla. Const. As more fully explained below, we approve the referee’s findings of fact and recommendation that Respondent be found guilty of violating Rules Regulating the Florida Bar 3-4.2 (violation of the rules of professional conduct is a cause for discipline), 4-7.4(a) (solicitation), and 4-8.4(d) (lawyer shall not engage in conduct in connection with practice of law that is prejudicial to administration of justice). However, we disapprove the referee’s recommendation that Respondent be found not guilty of violating rules 4-4.1 (in course of representing client, lawyer shall not make false statement of material fact to third person), 4-8.4(a) (lawyer shall not violate or attempt to violate rules of professional conduct), and 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation), and her recommendation that Respondent be suspended for ninety days. Considering Respondent’s prior disciplinary history, the seriousness of the misconduct involved therein, and the seriousness of the misconduct proven in this matter, we conclude that a one-year suspension followed by three years of probation is the appropriate sanction.

FACTS

On December 28, 2009, the Bar filed a complaint against Respondent Letwin alleging that in August 2008, she sent an improper solicitation letter to numerous current and former part-time adult education teachers in Broward County, Florida. After a hearing, the assigned referee made the following findings of fact:

1. In or about August 2008, respondent sent a letter to numerous current and former part time adult education teachers in Broward County, Florida. The number of letters sent, according to the respondent’s own testimony, was over 900 letters to these individuals.
2. Each letter improperly solicited these part time teachers to join a purported class action suit against the Bro-ward County School Board. A copy of respondent’s August 28, 2008, correspondence to the over 900 prospective clients with attachment was attached to the complaint as Composite Exhibit B.
3. The letter contained inaccuracies and statements of fact that induced approximately 50 clients to retain respondent’s legal services.
4. First, the case referenced by respondent in the letter had not been certified as a class action by the trial court.
5. Respondent’s letter further did not identify it as an advertisement, as required by The Rules Regulating The Florida Bar.
6. Further, the contract that respondent enclosed with the letter was not marked as a sample, as required by The Rules Regulating The Florida Bar.
7. The letter also stated that “I need to have your express acceptance of my legal representation or the COURT will not recognize your claim.”
8. Such statement was improper and not an accurate statement of law or fact.
9. Respondent failed to explain that the recipients of the letter were free to choose and hire any attorney to represent them in a lawsuit.
10. Statements contained within her solicitation letter were both inaccurate and erroneous, and meant to induce prospective clients to hire her.
11. Finally, respondent’s actions were clearly prejudicial to the proper administration of justice.

Based on these findings of fact, the referee recommended that Respondent be found guilty of violating rules 3-4.2 (violation of the rules of professional conduct is a cause for discipline), 4-7.4(a) (solicitation), and 4-8.4(d) (lawyer shall not engage in conduct in connection with practice of law that is prejudicial to administration of justice), but not guilty of violating rules 4-4.1 (in course of representing client, lawyer shall not make false statement of material fact to third person), 4-8.4(a) (lawyer shall not violate or attempt to violate rules of professional conduct), and 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

The referee recommended that Respondent be suspended for ninety days and attend an “education workshop dealing with Solicitations/Advertisements, if available or obtain written materials on the topic.” In recommending this sanction, the referee noted the following aggravating factors: (1) prior disciplinary offenses, (2) pattern of misconduct, and (3) multiple offenses. The referee also found and considered three mitigating factors: (1) personal or emotional problems (illness and subsequent death of Respondent’s spouse); (2) absence of selfish or dishonest motive; and (3) interim rehabilitation.

The Bar seeks review of the referee’s recommendation that Respondent be found not guilty of violating rules 4-4.1 (in course of representing client, lawyer shall not make false statement of material fact to third person), 4-8.4(a) (lawyer shall not violate or attempt to violate rules of professional conduct), and 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation) and the referee’s recommendation of a ninety-day suspension. Respondent has filed a cross-petition for review challenging the referee’s recommendations as to guilt and discipline.

ANALYSIS

Both parties challenge the referee’s recommendations as to guilt. First, the Bar challenges the referee’s recommendation that Respondent be found not guilty of violating rules 4-4.1, 4-8.4(a), and 4-8.4(c) as charged in the complaint.

The Bar’s arguments in this regard are well taken. Rule 4-4.1 states, in pertinent part, that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” Rule 4-8.4(c) states, in pertinent part, that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” The referee found that the letter Respondent sent “contained inaccuracies and statements of fact that induced approximately 50 clients to retain respondent’s legal services,” and that statements contained in the letter were “both inaccurate and erroneous, and meant to induce prospective clients to hire her.” Specifically, the referee found that the case referenced by Respondent as a “class action” had not yet been certified as a class action in the trial court, and that her statement in the letter that “I need to have your express acceptance of my legal representation or the COURT will not recognize your claim” was “improper and not an accurate statement of law or fact.” These factual findings are in direct contravention to the recommendations that Respondent be found not guilty of violating rules 4-4.1 and 4-8.4(c). Accordingly, the referee’s recommendation in this regard is disapproved, and we conclude that Respondent is guilty of violating rules 4-1.4 and 4 — 8.4(c).

We also disapprove the referee’s recommendation that Respondent be found not guilty of violating rule 4-8.4(a). That rule states that a lawyer shall not “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Thus, by its plain language, that rule is necessarily violated whenever any other rule of professional conduct is violated. Because the referee recommended that Respondent be found guilty of violating other rules, she should have recommended Respondent be found guilty of violating rule 4-8.4(a).

Respondent challenges the referee’s recommendation that she be found guilty of violating rule 4-7.4(a) (solicitation). In pertinent part, this rule provides that, except as set forth in subdivision (b) of the rule (setting out the parameters of permissible written communications with prospective clients), “a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” The rule also provides that a lawyer “shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule,” and that the term “solicit” includes “any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule.” R. Regulating Fla. Bar 4-7.4(a). Subdivision (b) prohibits unsolicited written communications with prospective clients if, among other things, the communication “contains a false, fraudulent, misleading, or deceptive statement or claim.” Subdivision (b) also sets forth certain requirements for such written communications, such as they must be marked in red ink as “advertisements,” they must be sent only by regular U.S. mail, they must be accompanied by a written statement of the lawyer’s background, training, and experience, and if a contract for representation is included, the contract must be marked as a “sample” and the words “do not sign” must appear on the client signature line. R. Regulating Fla. Bar 4-7.4(b). Here, the referee found, and Respondent does not dispute, that she sent a written communication to prospective clients for the purpose of obtaining professional employment that did not meet the requirements of rule 4-7.4. Although Respondent contends that she already viewed the recipients of the letter as her “clients” and that because of the multiple lawsuits she had filed, there was a “budding attorney-client relationship” between her and the putative class members, nothing in the record showed that a true attorney-client relationship had been established. Accordingly, we approve the referee’s recommendation that Respondent be found guilty of violating rule 4-7.4(a).

Next, both parties have challenged the referee’s recommended discipline of a ninety-day suspension. The Bar contends that at least a ninety-one-day suspension is warranted, mainly due to Respondent’s prior misconduct and prior discipline. Respondent argues that only a public reprimand is warranted.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

In cases involving unethical solicitation of clients, we have imposed a wide variety of disciplinary measures. See Fla. Bar v. Barrett, 897 So.2d 1269 (Fla.2005) (noting wide variety of discipline depending on the specific facts of each case; citing cases ranging from public reprimand to disbarment). Citing our decision in Barrett, the referee in this case correctly concluded that a suspension is appropriate in such cases “when respondent’s actions are knowing, intentional and potentially injurious to a client, the public or the legal system as a whole.” Further, the referee correctly noted that a suspension in this case is supported by standards 7.2 (suspension is appropriate when lawyer knowingly engages in conduct in violation of duty owed as a professional and causes injury or potential injury to client, public, or legal system) and 8.0 (suspension is appropriate when lawyer has been publicly reprimanded for same or similar conduct and engages in further similar misconduct that causes injury or potential injury to client, public, legal system, or profession).

Although we agree with the referee that a suspension is warranted in this case, we disagree that a ninety-day suspension is sufficient, given Respondent’s disciplinary history and continuing pattern of misconduct.

In 2009, Respondent was found guilty of four separate counts of serious and intentional misconduct. In count I, she was found guilty of failing to respond to a request for production and interrogatories propounded to her client, intentionally failing to appear at a hearing on attorneys’ fees that had been awarded against her client, failing to answer calls from the court inquiring into her whereabouts during the hearing, and knowingly failing to comply with terms of a six-month probation sentence (and order that she pay the entire amount of attorneys’ fees awarded to the opposing party) imposed upon her as a result of being held in indirect criminal contempt of court. In count II, she was found guilty of refusing to produce her client for a deposition, resulting in an order for sanctions against her and her client (and ordering her to pay $3100) for her intentional interference with the opposing parties’ discovery attempts. In count III, she was found guilty of failing to execute on a default judgment that had been entered in favor of her client, resulting in dismissal of the case for failure to prosecute and failing to properly communicate with and inform her client with regard to the case. Finally, as found in count IV, a federal judge ordered that she pay $5,802.25 in attorneys’ fees as a sanction. She failed to make any payment on such sanction, was held in contempt and again ordered to pay the sanction, improperly appealed the sanction to the U.S. Court of Appeals for the Eleventh Circuit, again failed to pay the sanction, and was again held in contempt. The federal magistrate in that case found that Respondent “contemptuously defied” the court’s order and further stated that Respondent practiced law “in a manner that unreasonably burdens the judiciary and harms other parties by causing them to needlessly expend time and effort and incur legal fees. Her repeated poor judgment and unprofessional conduct puts at risk the legitimate interests of her clients.” Aldavero v. St. Louis, No. 05-22098 (S.D. Fla. filed Mar. 19, 2007) (Report and Recommendation of United States Magistrate Judge). The magistrate also recommended that Respondent’s actions be referred to The Florida Bar as well as the Southern District Ad Hoc Committee on Attorney Admissions, Peer Review, and Attorney Grievance. Id.

As a result of these instances of misconduct, the referee in the prior disciplinary case recommended that Respondent be found guilty of violating multiple rules and be suspended for ninety days followed by a three-year period of probation with a supervising attorney providing “continuous monitoring” of her clients’ case files and providing quarterly reports to the Bar. The referee also recommended that she be required to pay $1600 in restitution to one of the injured clients. In making this disciplinary recommendation, the referee noted, in mitigation, that during the period in which the misconduct took place, Respondent’s husband became very ill and subsequently died. The referee’s uncontested report and recommendation was approved by the Court on July 9, 2009. Fla. Bar v. Letwin, 14 So.3d 243 (Fla.2009).

Given the seriousness of this prior misconduct and Respondent’s continuing pattern of misconduct as proven here, we conclude that a one-year suspension is warranted in this case. We have previously imposed rehabilitative suspensions in unethical solicitation cases. See Fla. Bar v. Wolfe, 759 So.2d 639 (Fla.2000) (imposing one-year suspension followed by three years’ probation where attorney engaged in in-person solicitation of clients in areas damaged by tornado, offering legal services and presenting individuals with pamphlets and prepared contingency fee contracts that did not comply with rules); Fla. Bar v. Stafford, 542 So.2d 1321 (Fla.1989) (imposing six-month suspension where attorney engaged in arrangement for solicitation of clients with police officer); Fla. Bar v. Curry, 211 So.2d 169 (Fla.1968) (imposing six-month suspension where attorney, who was also an accountant, mailed out approximately 800 letters to individuals for whom he had previously prepared income tax returns soliciting those individuals as legal clients). The over 900 letters sent by Respondent clearly fell under the restrictions of rule 4-7.4 and clearly violated that rule. Although the illness and subsequent death of Respondent’s spouse shortly before the letter was sent does constitute significant mitigation, given the clear violation and the seriousness of Respondent’s prior misconduct, we conclude that under the specific circumstances of this case, the referee’s recommendation is inadequate, and a one-year rehabilitative suspension, followed by three years of probation and attendance at The Florida Bar’s Advertising Workshop, is required.

Accordingly, Respondent, Jane Marie Letwin, is hereby suspended from the practice of law for one year. The suspension will be effective thirty days from the filing of this opinion so that Respondent can close out her practice and protect the interests of existing clients. If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Respondent shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Respondent shall accept no new business from the date this opinion is filed until she is reinstated. As a condition of reinstatement, Respondent shall be required to attend The Florida Bar’s Advertising Workshop. Upon reinstatement, Respondent shall be further placed on probation for three years.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Jane Marie Letwin in the amount of $2,026.75, for which sum let execution issue.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., concurs in result.

      . The complaint originally contained two counts. The allegations described herein constituted count II. Count I was voluntarily dismissed by the Bar because the aggrieved client is deceased.

      . Neither party specifically challenges the referee’s findings of fact; accordingly, they are approved without further discussion.

      . The referee's recommendations that Respondent be found guilty of violating rules 3-4.2 (violation of the rules of professional conduct is a cause for discipline) and 4-8.4(d) (lawyer shall not engage in conduct in connection with practice of law that is prejudicial to administration of justice) are also approved.

      . In her answer/initial brief on cross-petition for review, Respondent does not make arguments specific to any particular recommendation of guilt by the referee, but rather generally contends that the referee should not have found that she engaged in "improper solicitation.” Thus, we interpret this argument to be a challenge to the referee's recommendation that she violated rule 4-7.4(a).

      . Specifically, in Bairett, the Court stated that in unethical solicitation cases, the Standards for Imposing Lawyer Discipline "authorize either disbarment or suspension ... depending on the amount of harm or potential harm caused and on whether the conduct was intentional versus knowing.” Barrett, 897 So.2d at 1276.

      . In 1995, Respondent received a public reprimand for misrepresentation, Florida Bar v. Letwin, 652 So.2d 818 (Fla.1995), and in 2009, she received a ninety-day suspension with three years’ probation (including monitoring by a supervising attorney) for contempt, neglect, and misrepresentation, Florida Bar v. Letwin, 14 So.3d 243 (Fla.2009).

      . The magistrate’s March 19, 2007, order was affirmed by United States District Judge Patricia Seitz. Aldavero v. St. Louis, No. 05-22098 (S.D. Fla. filed Aug. 2, 2007) (Order Affirming Report and Recommendation of Magistrate Judge).

      . The misconduct in the case discussed above occurred from 2005 through 2007. The Bar’s complaint in that case was filed in June of 2008. As noted, the letter at issue in the instant case was sent in August 2008.


author: LEWIS, J.

text:
    Steven W. MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4688.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2009.
    Rehearing Denied Feb. 12, 2009.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING, CLARIFICATION AND REHEARING EN BANC

LEWIS, J.

We deny the State’s motion for rehearing and rehearing en banc. We grant the State’s motion for clarification, withdraw our previous opinion, and substitute the following therefor.

Steven Montgomery, Appellant, appeals his judgment and sentence for second-degree murder. He contends the trial court fundamentally erred in giving the standard jury instruction for manslaughter by act, as it erroneously suggests that intent to kill is an element of that crime. We agree with Appellant because the standard instruction imposed an additional element on the crime of manslaughter by act, and that offense was one step removed from the crime for which Appellant was convicted. Accordingly, we reverse Appellant’s judgment and sentence and remand the case for a new trial consistent with this opinion. This resolution renders the remaining issues moot.

At Appellant’s trial for first-degree murder, the court instructed the jury on second-degree murder and manslaughter by act, as lesser-included offenses of the charged crime. The trial court gave the following instructions regarding second-degree murder:

[T]o prove the crime of second degree murder the state has the burden of proving these three things: The first being that [the victim] is dead. Secondly, that the death was caused by the criminal act of Mr. Montgomery. Thirdly, that there was an unlawful killing of [the victim] by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
Now in order to convict of second degree murder it is not necessary for the state to prove the defendant had an intent to cause death.

The court instructed the jury that to prove the crime of manslaughter, the State had to prove “two things: The first being again that [the victim] is dead and, secondly, that Mr. Montgomery intentionally caused her death.” After an intervening instruction regarding excusable and justifiable homicide, the court continued, “In order to convict of manslaughter by intentional act it is not necessary for the state to prove that the defendant had a premeditated design to cause death.... ” These instructions are consistent with the standard jury instructions for second-degree murder and manslaughter by act. See Fla. Std. Jury Instr. (Crim.) 7.4, 7.7.

On appeal, Appellant contends that the giving of these instructions constituted fundamental error. To resolve this issue we must determine whether intent to kill is an element of the crime of manslaughter by act, and if not, whether the instructions given by the trial court had the effect of adding such an element, such that the instructions “taint[ed] the underlying fairness of the entire proceeding.” See Hankerson v. State, 831 So.2d 235, 237 (Fla. 1st DCA 2002). For the reasons explained below, we hold that intent to kill is not an element of manslaughter by act and that the trial court fundamentally erred in giving instructions that suggested the State was required to prove intent to kill to prove the crime of manslaughter.

Turning to the first step in our analysis, we note that there is a split of authority among Florida district courts as to whether manslaughter by act, under section 782.07, Florida Statutes, has intent to kill as an element. This split is based on opposing interpretations of the supreme court’s decision in Taylor v. State, 444 So.2d 931 (Fla.1983), which held that attempted manslaughter was a cognizable crime in this state. In Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), the Second District interpreted Taylor as holding that “intent to kill is an element of attempted manslaughter” but did not be-lleve such a holding “require[d] a determination that an intent to kill is an element of manslaughter by act.” In contrast, the Fifth District opined, based on Taylor, that the words “act” and “procurement” in the manslaughter statute “obviously refer to acts evidencing an intent to kill, as required at common law for voluntary manslaughter.” Barton v. State, 507 So.2d 638, 641 (Fla. 5th DCA 1987), rev’d on other grounds, State v. Barton, 523 So.2d 152 (Fla.1988); see also State v. Sherouse, 536 So.2d 1194, 1194-95 (Fla. 5th DCA 1989) (Cobb, J., concurring). The Fifth and Second Districts seem to agree that the supreme court held that intent to kill was an element of attempted manslaughter, but they disagree as to that holding’s significance to the elements of manslaughter. See Hall, 951 So.2d at 96; Barton, 507 So.2d at 641.

As noted above, the Second District, in Hall, opined that the Taylor court’s holding regarding the intent element of attempted manslaughter did not control its determination of the intent element of manslaughter by act. Hall, 951 So.2d at 96. Because the Second District concluded that Taylor did not control its analysis, that court determined the intent element of manslaughter by act primarily by reference to policy considerations. See id. at 95-96. One of the Second District’s concerns was that recognizing an intent-to-kill element would “elevate the crime above second-degree murder,” which requires a lesser showing of intent. Id. We agree with the Second District that this result would be undesirable. We also note, however, that the Second and Fifth Districts’ interpretation of Taylor yields another unsettling result. If Taylor held that intent to kill is an element of attempted manslaughter, then the crime of attempted manslaughter would, in a sense, be elevated above aggravated battery, even though aggravated battery is statutorily categorized as a more serious offense, punishable to a greater extent. See § 784.045(2) (categorizing aggravated battery as a second-degree felony); 782.07(1) (categorizing manslaughter by act as a second-degree felony); 777.04(4)(d) (providing that the attempt to commit a second-degree felony is a third-degree felony). Thus, under the Second and Fifth Districts’ view of Taylor, a person who attacked another with an intent to kill might be punished to a lesser extent than one who attacked another ■without an intent to kill, as attempted manslaughter is only a third degree felony, while aggravated battery is a second-degree felony.

We take a different view of the Taylor opinion, the result of which is to avoid the problems discussed in the Hall opinion, as well as the problems created by interpreting Taylor as holding that intent to kill is an element of attempted manslaughter. The Taylor court isolated its holding as follows:

We ... hold that there may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act. This holding necessitates that a distinction be made between the crimes of “manslaughter by act or procurement” and “manslaughter by culpable negligence.” For the latter there can be no corresponding attempt crime. This conclusion is mandated by the fact that there can be no intent to commit an unlawful act when the underlying conduct constitutes culpable negligence. On the other hand, when the underlying conduct constitutes an act or procurement, such as an aggravated assault, there is an intent to commit the act, and thus, there exists the requisite intent to support attempted manslaughter.

444 So.2d at 934. In addition to emphasizing that the crime of attempted manslaughter exists only where the completed offense would be manslaughter by act or procurement, this express holding identifies the intent element of attempted manslaughter. Id. We interpret this language as requiring the State to prove only an intent to commit an act that would have resulted in the death of the victim except that the defendant was prevented from killing the victim or failed to do so. This interpretation of the Taylor holding results from our reading of its plain language, as well as Florida’s general concept of the crime of attempt, which requires the jury to find that the defendant would have completed the relevant underlying offense except that he or she was either prevented from doing so or failed to do so. See State v. Brady, 745 So.2d 954, 957 (Fla.1999) (listing the elements of attempted second-degree murder). If the Taylor court had intended to recognize an intent-to-kill element for the crime of attempted manslaughter by act, rather than an “intent to commit an unlawful act,” it would have stated so in its direct holding. Although Judge Cobb correctly notes in his concurring opinion in Sherouse that the Taylor court referred to an intent to kill when discussing voluntary manslaughter (i.e., manslaughter by act or procurement), this language can only be construed as dicta when compared with the Taylor court’s direct statement of its holding. See Sherouse, 536 So.2d at 1194-95; Taylor, 444 So.2d at 934 (expressing its direct holding without referring to an intent to kill).

While Taylor addressed attempted manslaughter, rather than the completed offense of manslaughter by act, its holding controls our analysis. In Gentry v. State, 437 So.2d 1097, 1098-99 (Fla.1983), the supreme court explained this state’s position on the level of intent required for the crime of attempt vis-a-vis the level of intent required for the crime attempted to be committed. The Gentry court held that where the completed offense would be a general intent crime, the attempt to commit such an offense also involves general, rather than specific, intent. Id. The Gentry holding was expressed as follows:

We now hold that there are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense. The key to recognizing these crimes is to first determine whether the completed offense is a crime requiring specific intent or general intent. If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime.

Id. This rationale suggests that the same intent is required for an attempt as is required for a completed offense. The Taylor court’s direct holding indicates that attempted manslaughter is a general intent crime, requiring only an intentional act, rather than a specific intent to kill. Accordingly, based on the rule articulated in Gentry, we hold that manslaughter by act also requires only an intentional unlawful act, rather than an intent to kill. See Gentry, 437 So.2d at 1098-99.

Having determined that the State is not required to prove intent to kill in order to establish the crime of manslaughter by act, we must next consider whether the instruction read in the instant case improperly imposed that additional element. The relevant portion of the instruction read in the instant case tracked the language of the standard jury instructions for manslaughter by act, providing that the State had to prove that Appellant “intentionally caused [the victim’s] death” in order to establish that he committed manslaughter. The Hall court opined, in dicta, that the same instruction did not impose an intent-to-kill element, but rather indicated that the State simply had to prove an intentional act that caused the death of the victim. 951 So.2d at 96. We disagree. The average juror would likely interpret the instruction as requiring an intent to kill, as there is no direct language regarding an intentional act. The word “intentionally” in the instruction modifies the word “caused.” Thus, the instruction would be naturally understood as requiring a finding that the defendant intended for the victim to die. The likelihood of such an interpretation is illustrated by the fact that the phrase “intentionally caused the death of’ is commonly associated with first-degree murder in charging documents. See, e.g., Cambareri v. State, 746 So.2d 1215, 1216 (Fla. 5th DCA 1999) (noting that the defendant “was indicted for first degree murder in that he intentionally caused the death of [the victim] by shooting him in the chest”); Lorance v. Alabama, 770 So.2d 644, 647 (Ala.Crim.App.1999) (reciting that the indictment for murder alleged that the defendant had “intentionally caused [the victim’s] death”); Lincecum v. State, 736 S.W.2d 673, 674 (Tex.Crim.App.1987) (stating that an indictment for capital murder alleged the defendant had “intentionally caused [the victim’s] death by strangling her” while “intentionally committing and attempting to commit the offense of kidnapping [sic], robbery or aggravated sexual assault”).

Unlike in the instruction for second-degree murder, there is no language in the instruction for manslaughter focusing on the defendant’s intent to do the act that caused the victim’s death, as opposed to intent to accomplish the result of death. The manslaughter by act instruction would be more accurate if it provided that the State was required to prove that the defendant “committed an intentional act that caused the death of the victim.” Because this language is not present, the instruction is misleading. The subsequent instruction that manslaughter does not require a premeditated design does not cure its defect, as both the court system and the average reasonable person recognize a distinction between a premeditated design and an instantaneous formation of intent. See, e.g., Carpenter v. State, 785 So.2d 1182 (Fla.2001) (citation omitted) (noting the distinction between premeditated intent and “mere intent”); Green v. State, 715 So.2d 940, 943 (Fla.1998) (citation omitted); Neal v. State, 854 So.2d 666, 670 (Fla. 2d DCA 2003) (citations omitted). Accordingly, we hold that the instructions, as given, improperly imposed an additional element on the lesser-included offense of manslaughter.

Appellant contends that, due to the erroneous instructions, the jury was prevented from returning a verdict for manslaughter, even though, through its verdict of second-degree murder, it found that Appellant did not intend to kill the victim. This contention, as well as the contention that the defect in the instructions constituted fundamental error, is supported by our decision in Hankerson. In Hankerson, we concluded that “[t]he addition of an element regarding a lesser included offense ... taints the underlying fairness of the entire proceeding.” 831 So.2d at 287. In finding fundamental error, we observed that the jury in Hankerson “may not have returned a verdict as to a lesser included offense because it found there was insufficient proof of intent to kill.” Id. This language applies precisely to the instant case. Appellant has correctly identified the nature of the errors in Hankerson and the instant case:

[I]f the jury found the defendant did not intend to kill, the erroneous instruction effectively precluded the jury from choosing between two possible verdicts: second degree murder or manslaughter by act. Under the erroneous instruction, the jury was directed to pick the greater of these two offenses.... Such interference with the jury’s deliberative process tainted the underlying fairness of the entire proceeding.

Because the jury in the instant case found that Appellant did not intend to kill the victim, we are constrained, under the authority of Hankerson, to reverse Appellant’s conviction for second-degree murder and remand the case for a new trial consistent with this opinion.

In determining that there is no intent-to-kill element in manslaughter by act, we have come into conflict with the Fifth District. Although we reached our decision by a different route, we agree with the Second District regarding the elements of the crime of manslaughter by act. We believe that the contrary holding espoused by the Fifth District in Barton leaves a gap in the law, as it would not allow for a manslaughter conviction in cases where the defendant commits an unlawful act that unintentionally results in the death of the victim. Because we are unable to reconcile our holding with the Fifth District’s position, we certify conflict with Barton. We also believe, irrespective of the deci-sional conflict, that our decision passes upon an important issue that should be addressed by the Florida Supreme Court. Although the supreme court recently approved a modification to the standard jury instructions for manslaughter by act that is consistent with our holding, it has not yet reviewed this issue with respect to substantive law. See In re: Standard Jury Instructions in Criminal Cases — Report No. 2007-10, 997 So.2d 403 (Fla. 2008). Accordingly, we certify the following question of great public importance:

IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?

REVERSED; REMANDED; QUESTION CERTIFIED; CONFLICT CERTIFIED.

HAWKES, C.J., and WEBSTER, J., concur.

      . The trial court did slightly depart from the standard instructions. The standard instructions provide that, to prove manslaughter by act, the State need not prove that the defendant had a "premeditated intent.” Fla. Std. Jury Instr. 7.7. The trial court replaced this phrase with "premeditated design.”

      . We recognize that the concept of attempted manslaughter without an intent to kill is difficult to fathom. We can envision few scenarios from which it would be appropriate to charge attempted manslaughter, as opposed to attempted murder or aggravated battery. Nonetheless, we see no other way to give effect to the Taylor court's choice to omit any reference to an intent to kill in its express holding. Moreover, we note that many of the problems inherent in the recognition of attempted manslaughter without an intent to kill also inhere in the recognition of the crime of attempted second-degree murder without an intent to kill. Yet this state’s highest court has decided that Florida will recognize the crimes of attempted manslaughter and attempted second-degree murder, and it has unequivocally stated that proof of attempted second-degree murder does not require proof of an intent to kill. State v. Brady, 745 So.2d 954, 957 (Fla.1999).

      . The modified instruction reads, "In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007).” In re: Std. Jury Instr. in Crim. Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008). In approving this modification, the supreme court emphasized, "[W]e express no opinion on the correctness of this instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction.” Id. Thus, the supreme court has made it clear that it has not reviewed this issue on the merits yet. This statement also suggests that the reasoning in Hall has not yet been tested by Florida’s highest court.


author: WOLF, J.

text:
    David GARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1637.
    District Court of Appeal of Florida, First District.
    July 7, 2010.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

On the court’s own motion, we withdraw our previous opinion dated February 5, 2010, and substitute the following in its place.

Appellant raises a number of issues. We affirm as to all issues but one: whether appellant’s sentence of life in prison for crimes he committed when he was a juvenile violates constitutional prohibitions against cruel and unusual punishment.

In light of the United States Supreme Court’s recent decision in Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), we quash his sentence and remand for resentencing and for appointment of conflict-free counsel.

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

HAWKES, C.J., and DAVIS, J„ concur.


text:
    Levone R. STOKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6661.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Levone R. Stokes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied as legally insufficient.

VAN NORTWICK, LEWIS, and ' ROBERTS, JJ., concur.


text:
    Shernerd RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5842.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.

      Shernerd Richardson, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

Because this petition for writ of habeas corpus was the 13th original writ filed in this court since 2005 to challenge his conviction, petitioner was directed to show cause why sanctions should not be imposed against him, including a prohibition against any future appeals or petitions challenging the judgment and sentence, unless petitioner is represented by an attorney in good standing with The Florida Bar. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999). Petitioner has failed to file a response.

As such, because it is apparent that petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Levy County Circuit Court Case number 38-2005-CF-00252. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are signed by a member in good standing of The Florida Bar.

Petitioner is warned that any filings which violate the'terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2010) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections). Fla. R.App. P. 9.410.

BENTON, C.J., KAHN and WETHERELL, JJ., concur.


text:
    Antonio R. FELK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0042.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2011.
    Rehearing Denied April 6, 2011.
    Antonio R. Felk, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, DAVIS, and HAWKES, JJ., concur.


text:
    Melvin E. NANCE, Appellant, v. John RUTHERFORD, Duval County Sheriff's Department, Appellee.
    No. 1D10-1869.
    District Court of Appeal of Florida, First District.
    March 14, 2011.
    Rehearing Denied April 26, 2011.
    Melvin E. Nance, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kathleen Von Hoene, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See In re Forfeiture of 1987 Ford Escort GL 2 Dr. Hatchback, VIN 2FAPP2192HB164806, 624 So.2d 385, 385 (Fla. 2d DCA 1993) (forfeiture action under Florida Contraband Forfeiture Act viable even though vehicle owner was never prosecuted for possession of crack cocaine found in the vehicle).

VAN NORTWICK, THOMAS, and MARSTILLER, JJ., concur.


text:
    Montez ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-411.
    District Court of Appeal of Florida, First District.
    March 31, 2011.

      Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Michael T. Kennett, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

Montez Anderson, Appellant, challenges his conviction and sentence for attempted second-degree murder. We reverse and remand for a new trial because the trial court fundamentally erred in instructing the jury that intent to kill was an element of attempted manslaughter by act, which was the lesser-included offense one step removed from the crime of which Appellant was convicted. See State v. Montgomery, 39 So.3d 252, 258-60 (Fla.2010); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009); Herring v. State, 43 So.3d 823, 824 (Fla. 1st DCA 2010).

Our reversal based on the erroneous attempted manslaughter instruction renders Appellant’s remaining arguments moot. However, we will address one additional issue because it is likely to arise again at the new trial. Below, Appellant was charged with attempted first-degree murder, and he requested instructions on aggravated battery and simple battery, among other crimes, as permissive lesser-included offenses of the charged offense. The trial court denied the requested instructions. We conclude that the trial court should have instructed the jury on aggravated battery and simple battery for the reasons that follow.

In charging Appellant with attempted first-degree murder, the State made the following allegations:

On August 14, 2007, Montez Anderson and Lamonte Herring did unlawfully attempt to kill a human being, Kenneth A. Moore, by shooting with a firearm, and the attempted Wiling was perpetrated from or with a premeditated design or intent to effect the death of Kenneth A. Moore, and in the course of committing the attempted murder, carried and actually possessed and discharged a firearm inflicting great bodily harm, contrary to [sections 777.04(4)(b), 782.04(l)(a)l[,] and 775.087(l)(a)[,] Florida Statutes.

At trial, the State presented evidence from which the jury could conclude that Appellant shot at the victim, causing a gunshot wound.

Because the applicability of a permissive lesser-included offense is a purely legal issue, our review is de novo. See Williams v. State, 957 So.2d 595, 598 (Fla.2007). A necessarily lesser-included offense is one for which the elements are always subsumed by the elements of the greater offense. Carle v. State, 988 So.2d 693, 695 (Fla. 1st DCA 2008). In contrast, a permissive lesser-included offense is one that may or may not be applicable, depending on the charging document and the evidence presented. Amado v. State, 585 So.2d 282, 282 (Fla.1991). The Florida Supreme Court has explained that a permissive lesser-included offense exists “when ‘the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.’ ” Williams, 957 So.2d at 598 (citations omitted) (alterations in original). If this condition is met and the evidence adduced at trial establishes the elements of the lesser-included offense, then the trial court must instruct the jury on that offense upon request. Khianthalat v. State, 974 So.2d 359, 360 (Fla.2008).

Aggravated battery, the first requested lesser-included offense, is statutorily defined as follows:

(l)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.

§ 784.045, Fla. Stat. (2007). Here, the facts alleged in the information directly supported the elements of aggravated battery by stating that Appellant inflicted great bodily harm with a firearm while intending to cause the victim’s death. State v. Johnson, 601 So.2d 219, 220-21 (Fla.1992) (holding that it was proper to instruct the jury on aggravated battery as a permissive lesser-included offense of attempted first-degree murder where the State alleged in the information and presented evidence that the defendant shot the victim in an attempt to kill him); see Andrews v. State, 679 So.2d 859, 859 (Fla. 1st DCA 1996) (acknowledging that aggravated battery is a permissive lesser-included offense of first-degree murder when the information sufficiently alleges commission of aggravated battery either by causing great bodily harm or by using a deadly weapon). Based on those allegations and the evidence adduced at trial, the court should have instructed the jury on aggravated battery.

Simple battery, the second requested lesser-included offense, consists of (1) actually and intentionally touching or striking another person against his or her will or (2) intentionally causing bodily harm to another person. § 784.03(l)(a), Fla. Stat. (2007). Here, the allegations of the information and the proof adduced at trial directly supported a finding that Appellant intentionally caused bodily harm to the victim. The fact that the evidence also supported a conviction for a much greater offense did not obviate the need for honoring Appellant’s request that the jury be instructed on simple battery. See Amado, 585 So.2d at 283 (holding that the trial court reversibly erred in depriving the jury of its pardon power by refusing to instruct the jury on simple possession as a lesser-included offense of trafficking in cocaine where there was overwhelming evidence that the amount of drugs the defendant possessed exceeded the amount required for a trafficking conviction).

In sum, we reverse for a new trial based on the Montgomery issue and note that, at the new trial, the court should instruct the jury on aggravated battery and simple battery as lesser-included offenses of attempted first-degree murder if those instructions are requested.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Edgar BIRD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1666.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Edgar Bird, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, ROBERTS, and WETHERELL, JJ., concur.


text:
    Woodrow THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1571.
    District Court of Appeal of Florida, First District.
    May 4, 2011.
    Woodrow Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Baker v. State, 878 So.2d 1236 (Fla.2004). Moreover, this court notes that this is the second habeas corpus petition filed by Mr. Thomas in this calendar year presenting a procedurally barred attack on his 2002 conviction. Petitioner is warned that sanctions may be imposed against him if such filings continue.

PETITION DENIED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Ruven CRUZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6639.
    District Court of Appeal of Florida, First District.
    May 4, 2011.
    Ruven Cruz, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Ruven Cruz is hereby granted belated appeal of judgment and sentence entered in Suwannee County case number 09-166-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Harry James PARAMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0447.
    District Court of Appeal of Florida, First District.
    May 4, 2011.
    William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We are satisfied in light of the recent order directing the state to respond to the petitioner’s motion for postconviction relief that the circuit court is taking appropriate measures to dispose of that motion. Accordingly, the petition for writ of mandamus is denied. See Munn v. Florida Parole Commn., 807 So.2d 733 (Fla. 1st DCA 2002). Nonetheless, as we did in Munn, we encourage the circuit court to expeditiously rule on the motion pending before it.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.